IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2019
AGNES POKUA - (Plaintiff/Appellent)
MRS. REGINA ODURO CUDJOE AND EBENEZER MANFORD CUDJOE - (Defendant/Respondent)
DATE: 28TH MARCH, 2019
SUIT NO: H1/241/2018
JUDGES: P. K. GYAESAYOR J.A (PRESIDING), AVRIL LOVELACE-JOHNSON J.A, NICHOLAS CHARLES AGBEVOR J.A
SIMON OKYERE FOR THE PLAINTIFF/APPELLANT
OKYEAME YANKSON FOR 1ST DEFENDANT/RESPONDENT
AKU SHIKA DADZIE FOR THE 2ND DEFENDANT/RESPONDENT
AVRIL LOVELACE-JOHNSON (J A):
This is an appeal against the judgment of the High Court sitting at Tema dated 19th July 2017 on the following grounds
i. The Learned trial Judge erred when he stated at page 3 of the Judgment that “a court of competent jurisdiction has adjudged the Tema property as joint property of the Defendants”
ii. The Learned judge erred when he stated at page 5 of the judgment that having divested her interest in the Tema property Plaintiff in turn disposed of her interest in the property to the 2nd Defendant.
iii. The Learned Judge erred when he stated in paragraph 6 of the judgment that the construction of permanent structure on the Land meant that the Plaintiff had disposed of her interest
iv. The Learned Judge erred when he stated in paragraph 7 when he stated that grounds rents paid to Tema Development Corporation were ever paid from monies provided by the Plaintiff and therefore she could not be said to be the owner of the property
v. The Learned Judge erred when he decreed, on presumption that the Plaintiff had sold the property to the Defendants
vi. The Judgment is against the weight of evidence adduced at the trial
vii. Additional issues maybe filed later on receipt of the proceedings
Contrary to the last mentioned, no additional grounds were filed. The parties will be referred to by their designations in the High Court in this judgment.
The background facts that are relevant to the present appeal are that upon the dissolution of the marriage between the 1st and 2nd Defendants by the Circuit Court on 21st March 2014, the court, treating the present property as one acquired during the marriage held that it was jointly owned by them.
The Plaintiff claiming to be owner issued a notice of claim and followed up with the present writ (when according to her the Registrar was delaying in issuing the interpleader summons) against both the Defendants for a declaration that she is the owner of the property in dispute. Both Defendants filed defences and the 1st Defendant counterclaimed for declaration of title to the disputed property, recovery of possession, perpetual injunction and costs.
It is the dismissal of her claim which has led to the present appeal on the grounds earlier stated. She seeks from this court a reversal of the judgment in question and an entry of judgment in her favour instead.
The arguments by the Plaintiff in support of these grounds in sum are that;
The 1st defendant having failed to satisfy the conditions for invoking such a rule, the learned trial judge was wrong when he took the position that the ownership of the property in dispute was res judicata as between the 1st and 2nd defendants.
The 1st defendant having admitted that the transaction relating to the land was a lease from TDC to the plaintiff, and thus confirming the position taken by the plaintiff, the high court ought not to have assumed that the transaction between plaintiff and 2nd defendant was a sale by which the former transferred all her interest from TDC to the 2nd Defendant.
The failure to provide for the effect of the termination of a lease on permanent structures put up by a lessee does not transform the lease into a different agreement. The principle of quicquid plantatur solo solo cedit became applicable and the said structures together with the land reverted to the lessor. Thus it was wrong for the learned trial judge to hold that the permanent structures put on the land by the 2nd Defendant meant that the plaintiff had disposed of her interest in the land.
The 2nd defendant had been paying the ground rent on her behalf as her agent, she being the principal and so it was irrelevant where the money used for payment came from and that in any case this payment of rent on her behalf was not denied and is thus deemed to have been admitted
The documentary and oral evidence of the Plaintiff supported plaintiff’s position that the transaction between her and 2nd Defendant was a sub-lease for 20 years. The court should have preferred her documentary evidence to the oral evidence of the 1st defendant, the former’s having been supported by that of 2nd defendant, the actual party to the transaction, unlike 1st defendant who was not even consistent about the consideration given for the lease and none of whose witnesses witnessed the transaction. On the basis of all this, Counsel for the Plaintiff submits that the judgment is against the weight of evidence led.
In response to these arguments, counsel for the 1st defendant submits that the Plaintiff stood by and did nothing during the divorce proceedings and so she is estopped from laying claim to the property.
Counsel bases this notice on the fact that it was counsel for the 2nd Defendant who filed a notice of claim on plaintiff’s behalf. He also states that the judgment of the high court was based on the totality of the evidence led.
It is further submitted in sum, in response to grounds 2,3,4 and 5 that the admission of the 2nd defendant that he paid the ground rent but in the name of the plaintiff and the fact that the plaintiff has shown no interest in the property since putting the second defendant into possession support the position taken by the trial court that Plaintiff divested her interest in the property to the 2nd Defendant. Finally, counsel takes the position that in the circumstances of this case the effect of a lease and sale is the same.
It is clear that the main issue before the trial court was the nature of the transaction between the plaintiff and the defendants. In that regard, to succeed in this appeal, the Plaintiff has to successfully establish that the evidence led during the trial showed that on the balance of probabilities that the transaction is a sublease rather than a sale as is contended by the 1st defendant.
In dealing with an appeal, this court by virtue of its statutory powers of rehearing under section 8(1) of the Court of Appeal Rules CI 19 is mandated to put itself in place of the trial court and evaluate the evidence and where it is satisfied that the said court has misapplied the law or failed to apply it or make the necessary inferences from the evidence led, set aside the trial Court’s findings and substitute its own. Further it is the duty of the plaintiff as appellant to point out the lapses in the judgment which are the basis of her complaint in the 6th ground of appeal that the judgment is against the weight of evidence. See the cases of
ABBEY V ANTWI  SCGLR 17
ATTORNEY-GENERAL V FAROE ATLANTIC CO LTD [2005-2006] SCGLR 271
DJIN V MUSA BAAKO (2007-2008) SCGLR 684@691
Res judicata in its ordinary sense means that a matter has been conclusively pronounced upon on the merits by a court of competent jurisdiction in relation to either the cause of action (cause of action estoppel) or issue (issue estoppel) arising in a case.
For cause of action estoppel to apply, the parties and facts in the previous and subsequent action where it is raised must be the same. In relation to issue estoppel, it is the parties and the issues which must be the same. When these conditions are met, then the parties and their privies are absolutely barred from relitigating the same cause of action or issue. See the cases of
RE SEKYEDUMASE STOOL; NYAME V KESSE ALIAS KONTO [1998-99] SCGLR 476@478
In re Kwabeng Stool; Karikari v Ababio II [2001-2002] SCGLR 515 @530
It is not in dispute that 1st and 2nd defendants were the parties in the matrimonial cause before the circuit court. The cause of action was clearly one for divorce and ancillary reliefs. In relation to the issue of the ownership of the property in dispute, the record of proceedings which would have helped the trial high court to decide if that issue was determined on its merits was not tendered. Clearly, the proceedings were needed for the said court to make that determination since the matter before the circuit court was essentially a matrimonial cause. See APPIAH VS. ASAMOAH [2003-2004] SCGLR 226 cited by Counsel for the Plaintiff.
In the case of OTU X V OWUODZI [1987-88] 1 GLR 196@ 203, the Supreme Court took the position that the tendering of record of proceedings was not an inflexible rule and that the necessity for such proceedings had to be decided case by case. This is one of those cases that I am satisfied called for the tendering of the record of proceedings for a determination to be made as to whether or not ownership of the disputed property was determined on the merits by the circuit court.
There having been no such evidence on record, I am satisfied that the trial high court erred in making the finding that the ownership of the disputed property, as between the defendants had already been determined. Having found merit in this ground of appeal, it succeeds and is upheld.
The submission by counsel for the 1st defendant that Plaintiff had notice of the matrimonial cause because she filed a notice of claim per the then counsel for the 2nd defendant and so is estopped from laying claim to the disputed property is without substance and not rooted in law. The learned trial rightly stated the position of the law at page three of his judgment and stated that the plaintiff as a stranger adversely or injuriously affected by the judgment of the circuit court
“has exercised her right under the law to sue both defendants thus following the laid down procedure….”
The learned trial judge also rightly stated that in the circumstances of this case, had he found the transaction to be a lease, the rules of equity would override the requirement for writing and signing as required under sections 1 and 2 of the Conveyancing Act by virtue of section 3(2) which states that these sections are subject to the rules of equity.
Further, the trial judge again rightly found that the property in question had been leased to the plaintiff by TDC but made a finding that the evidence lent credence to the subsequent transaction between the plaintiff and the defendants being a sale and stated that
“I will decline any invitation not to give effect to the sale…”
There being no controversy that it was the unexpired term of Plaintiff’s lease from TDC that 1stdefendant was claiming was purchased by herself and the 2nd defendant, the transaction, if proved would be an assignment not a sale irrespective of the state of mind of the parties. See this court’s judgment in the case of
P Y ATTA & SONS V KINGSMAN ENTERPRISES LTD [2003-2005] GLR 90
It must be borne in mind that the transaction in question was actually negotiated by the Plaintiff and the 2nd Defendant. For some reason, perhaps the outcome of the matrimonial cause, the trial judge did not give the evidence of this defendant much weight and no reason is given for this in the judgment.
2nd Defendant admitted paragraphs 7, 8, 9 and 10 of the plaintiff’s statement of claim. These were as follows:
7. Plaintiff states that in 1989 she leased the said property to the 2nd Defendant for a period of twenty (20) years from 1990 to 2010
8. Plaintiff says the said lease has expired since 2010 and although the lease has expired 2nd Defendant still stays on the property because of ongoing negotiation for a possible renewal
9. Plaintiff says she also has a file with the Tema Development Corporation as at now evidence that she is the undisputed owner of the property
10. Plaintiff says that as a result of Judgment given on 21st day of March 2014 in respect of a matrimonial suit between the 1st and 2nd Defendants, her property was wrongly attached in satisfaction of the said judgment.
At page 180 of the Record of Proceedings ROA, 2nd defendant relied on his witness statement as his evidence in chief on oath. Both counsel for 1st defendant and that for the plaintiff did not cross examine him! This witness statement confirmed the position of the Plaintiff that the transaction between her and the 2nd defendant was a lease for twenty years and not one to divest plaintiff of all her interest in the land. Plaintiff could not have found a better source of corroboration.
See paragraph 40 of the witness statement at page 140 of the ROA.
In spite of the fact that this position was contradictory to that of 1st defendant, the latter did not cross examine him.
The 1st defendant pleaded fraud at paragraph 22 of her statement of defence in which she alleged connivance between plaintiff and 2nd defendant in sub paragraph (g). The court made no finding on the alleged fraud in its judgment and I am satisfied that there was no evidence on record that proved this to the standard required that is proof beyond reasonable doubt. See section 13(1) of the Evidence Act.
The evidence of 2nd defendant was therefore to be treated as that of any party and the weight to be put on it determined by the provisions of the Evidence Act.
On the other hand, the 1st defendant in support of her position that the lease with the Plaintiff was intended to divest the former of all her interest in the land called their children Akasi Owusua Cudjoe and Kwesi Nyarko Cudjoe who stated that the rest of the unexpired term of the lease from TDC had been purchased by the defendants in the name of their company. The first mentioned said that she got this information from 2nd Defendant when she was about 10 or 11 years and it was confirmed by plaintiff when she was 26 years.
Clearly, the evidence of the Plaintiff has been fully corroborated by a person directly involved in the transaction ie the 2nd defendant. The judgment does not give a reason for preferring the evidence of 1st defendant who admits that the transaction was entered into by the 2nd defendant (on their joint behalf) supported by that of her children who also allegedly got their information second hand to that of the plaintiff which is supported by the 2nd defendant with whom she entered the transaction.
It is trite that it is the trial judge who determines the credibility of witnesses and “an appellate court should be slow in reversing the decision of a trial court where it is founded on the credibility or otherwise of witnesses”. See
Republic v Boateng II; Ex parte Dansoa [1982-83] 2 GLR 913
Ntiri & Another V Essien & Another (2001-2002) SCGLR 451
However, the judgment of the trial court on the face of it does not proffer any of the factors set down in section 80(2) of the Evidence Act or the like for preferring the position of 1st defendant and her witnesses on this issue. I am satisfied that this is one of those instances when the preference is without justifiable basis in the light of corroborated evidence on record and should not tilt the scales of probability in favour of the 1st defendant. See
Tonado Enterprise & Others v Chou Sen Lin (2007-2008) SCGLR 135 @141
The court’s statements that the amount paid as consideration could well have been the purchase price of the property or the expectation of the court that if plaintiff was indeed owner of the property she would have demonstrated more definite commitment in safeguarding her interest in the land is pure conjecture.
Further even the mere fact that the ground rent was always paid in plaintiff’s name whether with her money or somebody else’s is prima facie evidence that she had an interest in the land. It is the obligation of a sub lessor to pay the rent reserved by a head lease. See
Part 3 of the 2nd schedule of the Conveyancing Act 1973.
The judge’s finding that payment of ground rent was actually by the 2nd defendant and not the Plaintiff, does not mean the latter is not the owner of the disputed property and it also does not make the 1st defendant owner. More than this is required to establish ownership because payment of ground rent may also be evidence of occupation or control. For example when it is paid by a caretaker. See page 140 of the Tonado case Supra.
By this finding, the 4th ground of appeal succeeds and is also upheld.
While admitting that documents on record (ie the offer of a lease from TDC, her acceptance letter, receipts for payment of rent and the permit to enter the land) raise a presumption that plaintiff was owner, the learned trial judge found that this presumption had been “sufficiently rebutted by the preponderance of the probabilities of the evidence on record” The record does not support this finding of rebuttal.
All the above documentary evidence including demands for rent and receipts of their payment in her name even after the expiration of the oral sub lease with 2nd defendant together with the corroborating evidence of 2nd defendant override the conjecture of the court and strongly support her position on the balance of probabilities that the transaction between her and 2nd Defendant was a sublease the remainder of which she continued to hold and she was therefore “owner” of the disputed property. Her evidence is to be preferred unless the judgment gives good reason for not doing so. The judgment proffers no such reason. The trial judge’s finding of a sale is inconsistent with this evidence. This inconsistency is sufficient reason for setting it aside.
A lease and a sale cannot be the same contrary to the submissions of counsel for the 1st defendant and the present sub lease could not have metamorphosed into a “sale” (or assignment) in the present circumstances as the learned high court judge appeared to hold
I am satisfied that the finding by the court that the Plaintiff disposed of all her interest in the disputed property to the defendants to the extent that the court found the said disposition to be a sale is not borne out by the evidence led. The second ground of appeal succeeds and is upheld.
Grounds three and five of the grounds of appeal attack the inferences the court made from the fact that the Plaintiff allowed the 2nd defendant to put up permanent structures on the land without a definite agreement on what was to happen to the structures upon the expiration of the lease and the appearance that “plaintiff was not even interested to know the nature of development Defendants were putting on the land”.
To the court these were in consonance with the transaction being a sale. A lease usually vests the right of exclusive possession in the lessee. It is therefore not surprising that the plaintiff did not concern herself with the details of the developments being put up on the land by the defendants
As stated earlier, plaintiff’s position that the transaction was a lease had been confirmed by the 2nd defendant’s uncontested evidence on oath, a position also corroborated by the documentary evidence. The undisputed evidence is that there was the need to put up permanent structures on the land in compliance with the policy of the head lessor, Tema Development Corporation (TDC), so plaintiff would not forfeit it and also be able to obtain a title deed. See exhibits G1 G2 and APT 2 found at pages 129, 131 and 130 respectively of the Record of Appeal (ROA).
The court’s inferences from these so called lapses on the part of the plaintiff cannot be described as “proper inferences drawn from the facts” and so cannot override the corroborated evidence that the transaction was not a sale. See Amoah v Lokko & Alfred Quartey (2011) SCGLR 505 Holding 2
For this reason, I am satisfied that grounds three and five have been made out and therefore succeed.
They are upheld.
The last ground of appeal is that the judgment is against the weight of evidence.
From the findings on the preceding grounds of appeal which could all have been conveniently argued under this omnibus ground, it is clear that as between the plaintiff and 1st defendant it was the plaintiff who proved her case on the balance of probabilities. The 1st defendant as a counterclaimant failed to discharge the similar burden she bore. See JASS CO LTD & ANOTHER V APPAU & ANOR  SCGLR 265 HOLDING 1 This ground of appeal also succeeds and is upheld.
In conclusion the appeal succeeds in its entirety and the Plaintiff is declared owner of the disputed property to the extent of the unexpired term of the lease granted her by TDC.
Costs of GH₵5,000.00 in favour of the Plaintiff/Appellant.