IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
AGNES TUFFOUR @ SERWAA - (Plaintiff/Respondent)
AKWASI ADU AND YAA KONADU - (Defendants/Appellant)
DATE: 21 ST FEBRUARY, 2018
CIVIL SUIT APPEAL: H1/67/2013
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA
This is an appeal from the High Court Kumasi. The plaintiff/respondent hereinafter referred to as the plaintiff issued this writ against the defendant/appellant from the following reliefs: -
a) Declaration that the title to all that house situate on land described as No. 84 BLK B, New Suame, Kumasi is vested in the plaintiff.
b) Recovery of possession
c) General damages for trespass
d) Order of perpetual injunction restraining the defendants herein, whether by themselves or their agents, assigns, servant workmen and all or any other persons claiming ownership, under or in trust from them in any way interfering with or dealing with the house.
The plaintiff resides ordinarily in Belgium and the defendants are the younger siblings. The plaintiff’s case is that sometime in 1973 the deceased father Joseph Kwadwo Tuffour acquired a vacant plot No. 84 BLK B, New Suame, Kumasi in her name at the time when she was a minor. When she attained majority, the father asked her to provide money to develop a dwelling house on the plot and this house was to became her property afterwards. This the deceased father said before some witnesses.
Plaintiff said she obtained a building permit for the project and also remitted money to the father to build the house while she travelled abroad in 1978 at the age of 22 years. The plaintiff averred the father put up a two storey building on the land with the funds she provided and completed in 1996. The father and mother lived in the house till their deaths in September 2007 and February 2008 respectively.
It is the plaintiff’s case that after the death of their father, his Will revealed he had devised the said house to their mother and all other siblings. Pursuant to the devise in the Will the defendants have on different occasions sought to take forceful possession of the house.
The plaintiff avers further that sometime in August 2009, the 1st defendant forcefully entered the house and forcefully removed all the things in some of the rooms in order to occupy same. That the defendants have demonstrated clearly that they would persist in their wrongful conduct unless restrained by a court order hence this suit.
The defendant’s in their defence averred that 1st defendant is the eldest son and older than the plaintiff. That the deceased father made it clear to them that he was purchasing the land to erect a building thereon for the benefit of both the plaintiff, defendants and their mother and all other siblings.
It is the defendant’s case that it was made clear to all of them that the title documents shall bear the name of the plaintiff but same to hold the said property in trust for all the siblings as beneficiaries of same. The defendants said the Will of their deceased father stated and confirmed the plaintiff’s position as the trustee.
The defendants averred further that their deceased father used his personal money to erect the disputed house and that the plaintiff did not produce anything towards the construction. They said their father was a very rich successful businessman who owned a factory in Kumasi. They claim after the said Will was read at the Registry by the High Court nobody challenged same nor objected to it. That the defendants are only exercising their legitimate right to live in the disputed house as the plaintiff did not raise any objection to the said devise.
The defendant’s counterclaimed as follows:
1. An order confirming that the parties deceased father by name Joseph Kwadwo Tuffour (hereinafter called the Testator) was the bonafide owner of the disputed property thus H/No. plot 84, Blk 8, New Suame hence has the requisite capacity to devise and bequeath same to the present beneficiaries.
2. An order confirming that the plaintiff holds the disputed property thus H/No. Plot 84 Blk 8, New Suame-Kumasi in Trust for their mother and all their siblings as beneficiary of same.
3. An order compelling the plaintiff and her Attorney as executors to either apply for probate or renounce same.
Whether or not the deceased father of the plaintiff purchased Plot No. 84 Block B New Suame, Kumasi for her sole benefit or for the benefit of their mother and all her siblings.
Whether or not the H/No. Plot 84 Block B, New Suame Kumasi is the personal property of the Plaintiff?
Whether or not the plaintiff constructed H/no. Plot 84 Block B, New Suame, Kumasi from her own personal resources.
Whether or not the plaintiff is entitled to their claims
Whether or not the defendants are entitled to their counter claim.
Any other issues raised by the pleadings.
The court after the trial entered judgment for the plaintiff and granted the reliefs as in the writ of summons against the defendant and also dismissed their counter claim as not established.
The defendants dissatisfied with the judgment filed this appeal on the following grounds:
a) The judgment is against the weight of evidence.
b) The learned trial judge failed to give weight to the time honoured principle of law that if a party’s own witness gives testimony that is adverse to his account and rather corroborates the evidence of the opponent; same cannot easily be gloss over.
c) The learned trial judge failed to give weight to the fact that on the principle and doctrine of presumption of advancement same is rebuttable.
d) Further grounds to be urged on the hearing date.
Ground 1 - The judgment is against the weight of evidence.
The appellant is contesting the judgment of the trial court on the omnibus ground that the judgment is against the weight of evidence on record. What is required of the appellate court when an appellant bases his dissatisfaction with the judgment of the trial court on that ground is now trite. Where an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on record which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.
See (i) Djin vrs. Musah Baako [2007/08] SC GLR 686,
(ii) Tuakwa vrs. Bosom [2001/2] SC GLR 6,
(iii) Owusu-Domena vrs. Amoah [2015-16] SC GLR 790.
This means that appellate court is being called upon to review the entire record to find out whether the conclusions of the trial court is reasonably supported by the evidence on record. In doing so, the appellate court must restrain itself against disturbing findings of fact made by the trial court even if the appellate court would have come to a different conclusion, unless the findings of fact made by the trial court wholly lacked support from the evidence on record. This is so because the trial court had the advantage of following the proceedings and watching the reactions and demeanour of the parties and their witnesses.
Counsel for the appellant submits that according to the evidence of the appellant, one day their father called them and informed them that he intends putting up a house for all the children and their mother and therefore was purchasing the building plot in the name of Agnes Tuffour (respondent herein). The appellants further stated that the leasehold agreement was also put in the name of the respondent but to hold same in trust for all the children as beneficiaries.
The appellant submits further that the house in dispute is the bonafide property of their late father since all the children assisted him during the construction.
Counsel argued that the said purchase by the deceased in the name of the respondent when same was a minor in law raises presumption of advancement in her favour.
Before we go into the merit of the appeal we would want to clarify some issues raised by counsel on both sides.
Counsel for the appellant allege that the plaintiffs’ attorney exhibited no power of attorney and so should not be heard. This cannot be true because the power was exhibited and accepted into evidence as exhibit ‘C’.
The proceedings of the court, dated 30th May 2011 at page 70 (a) of the ROA shows as follows:
“Counsel - We want leave from the court for the plaintiff’s attorney to tender the Power of Attorney which authorise her to give evidence on behalf of the plaintiff
Counsel for defendant - We have no objection
BY COURT – the Power of Attorney admitted as Exhibit C. case adjourned 7/6/2011. Signed by the presiding High Court Judge.” [See page 70 of ROA]
Counsel for the respondent also informed this court that counsel for the appellant failed to exhibit his license number on his submission on behalf of the appellant and so we should disregard.
Counsel for the respondent said “the Supreme Court has in recent times in a plethora of cases held that practicing without a license is not only criminalized; any process borne out there from is equally tainted; it is a forbidden tree; it ought not to be touched, put in the mouth or swallowed, it is poison and must be spewed out of the month”. Henry Neurtey Korboe vrs Francis Amonsa  101 GMJ 1 pg. 75.
We cannot but uphold this submission by counsel for the respondent. It is obligatory on all practicing lawyers to exhibit their license numbers on whatever processes they file. The Supreme Court decisions are strict on this and any process filed by a lawyer without his license must be disregarded. That being the practice directive from the Supreme Court we are bound by same and have no choice but to disregard the submission filed by the counsel for the appellant.
See Nana Adjei Ampofo Kyei Barfour vrs. Justmoh Construction Co. Ltd. Civil Appeal No. J4/51/2016 dated 14th June 2017 Supreme Court.
However, since an appeal is by way of re-hearing especially where one of the grounds is the omnibus ground we shall consider all the grounds filed by the appellant.
To recap the facts briefly, the plaintiffs’ case is that in 1973 while a minor the father, J. K. Tuffour now deceased bought a piece of land, plot No.84 Blk B, New Suame Kumasi for her. All the documentation on the land is in her name. The land was never developed till she attained majority and provided funds for the construction of the house thereon after she herself acquired the building permit. It is her case that the father while alive disclosed to a lot of people that the property is for her. Subsequently, on the death of her father, a Will was read as his last Will which purported to devise the said property to plaintiff, the defendants; the other siblings and their mother. The plaintiff dissatisfied with this devise by the deceased father instituted this action against the defendants who are desirous of taking the house from her according to the Will.
Counsel on both sides, agreed the deceased purchased the land by way of advancement to the plaintiff in 1973. The equitable doctrine of advancement is if a purchase or investment is made by a father or person in loco parentis, in the name of a child or by any person under an equitable obligation to support or made provision for another, a rebuttable presumption arises that it was intended as an advancement that is for the benefit of the child, so as to rebut what would otherwise be the ordinary presumption is such cases of a resulting trust in favour of the person who paid the money. The presumption of advancement may itself be rebuttable by evidence that the person paying the money did not intend to forgo his beneficial interest. In the instant case if indeed the plaintiffs father did not intend to forgo his beneficial interest then there must be some evidence to that effect. There is no evidence on record to show he did anything to rebut that presumption. This presumption of advancement is one between the purchaser, in the instant appeal the plaintiff’s father and the plaintiff. It is incumbent on the father to rebut the presumption that he never intended to divest himself of his beneficial interest in the property.
For those outside the arrangement, for example the defendants in this case, they need to lead positive and credible evidence that their deceased father rebutted that presumption. This they failed to do. Oppong vrs Oppong  1 GLR 83 Supreme Court.
The burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issues asserted and or denied. In Re Ashalley Botwe Lands; Adjetey Agbosu & Ors vrs Koley & Ors [2003/4] SC GLR 420.
A party whose pleading raises an issue essential to the success of the case assumes the burden of proving such an issue; it was incumbent on the party to have produced admissible and credible evidence so as to avoid a ruling against him and the absence of that proof will attract or even earn such a ruling – Ababio vrs Akwasi II [1994/5] GBR III 174.
The plaintiff ordinarily resides in Europe precisely Belgium which is not denied. However, the utility bills of the house are in her name. This assertion was also not challenged. The indenture and the leasehold building permit, utility bills are all in plaintiff’s name.
This court in the circumstances is faced with the dilemma of documentary evidence as against oral evidence as to ownership of the house in dispute.
It is trite that whenever there was in existence a written document and conflicting oral evidence, the practice of the court was to lean favourably towards documentary evidence especially if it was authentic and oral evidence was conflicting – See Agyei Osee & Ors. vrs. Adjeifio & Ors. [2007-08] 1 SC GLR 499 HI.
The plaintiff/respondent tendered exhibit “A”, an indenture between her and Otumfuo Opoku Ware II, the Asantehene as the confirming party representing the Golden Stool of Ashanti. This indenture in the plaintiff’s name is duly stamped and registered at the
Lands Commission. This is a lease for 99 years from 1st April 1973. This was tendered without objection from the defendant’s. The plaintiff also pleaded in paragraph 6 of her statement of claim that she acquired the building permit. Though the defendants denied this, they failed to cross examine her on the issue. The law is well settled that where the evidence led by a party is not challenged by his own opponent in cross-examination and the opponent does not tender evidence to the contrary, the facts deposed to in that evidence are deemed to have been admitted by the opponent and must be accepted by the trial court – see Takoradi Flour Mills vrs. Samir Faris [2005/6] SC GLR 882 H1.
There is also evidence from PW2 unchallenged that the utility bill of the house is in the plaintiff’s name. Since the defendant’s never challenged nor put the plaintiff to strict proof of same she was no longer under any obligation to establish those facts by producing any evidence since same is assume admitted.
The registered indenture is notice to the whole world of one’s ownership of the property involved. With that, the holder has title to the property until someone else comes to establish better title. In the instant appeal from exhibit “A” the land in issue belongs to the plaintiff simpliciter. Whether it was an advancement or for her to hold in trust for the others has to be established with credible evidence by those challenging her ownership. In the absence of any contrary or better title, she is deemed to be the true owner of the property. There is no evidence on record that the deceased father while alive did anything to show he still had any beneficial interest in the property. Living in the house is not enough since a child could allow his parents to live in his house.
Since title in that property still resided in the plaintiff as per the indenture, the deceased father had no right to devise that property in his Will. You cannot give out what you don’t have. Nemo dat quod non habet. Once the property is in the name of the plaintiff as the indenture depicts telling the whole world it is for the plaintiff, the father cannot devise same in his Will.
Where land is conveyed to one person but the purchase price is paid by another person, there is a resulting trust in favour of him who paid the purchase price unless a gift is intended by the one paying the purchase price in favour of the other. Such a resulting trust is based only on prima facie presumption that the person who paid the purchase price did not, in the absence of express words, intend to forgo the beneficial interest to himself. It is a presumption which may be rebutted by showing that the money was paid as a gift or a loan or that the payment was intended as an advancement. See Standing vrs Bowring  31 Ch. D 282.
The presumption of advancement applies to all cases in which the person providing the purchase money has an equitable obligation to support or make provision for the person to whom the property in conveyed e.g. between a husband and wife, a child or a person to whom the purchaser stands in loco parentis. If a father buys property in the name of his child, prima facie, it is a gift to the child and the presumption of advancement arises – See Shephard vrs. Cartwright  AC 431.
The presumption of advancement may itself be rebutted by evidence that the person paying the money did not intend to forgo his beneficial interest, as for example, by his retaining the title deeds of the property or collecting rent or otherwise exercising control over the property. [Emphasis mine].
See (i) Sese vrs Sese [1984-6] 2 GLR 166
(ii) Pettitt vrs Pettitt  AC 777
(iii) Warren vrs Garney  2 AER 472.
The court considers all the circumstances of the case in order to ascertain the purchaser’s real intention. The presumption of resulting trust or of advancement is raised only when there is no evidence to contradict it. Fowkes vrs Pascoe  LR 10 Ch App. 343. Acts and declarations of the parties before or at the time of the purchase or so immediately after it as to constitute a part of the transaction, may be admitted either for or against the person who did the act or made the declaration. Later acts or declaration are admissible only against the person who made them not in his favour. Shephard vrs. Cartwright (supra).
See Ghana Land Law & Conveyancing, 2nd Edition. B. F. Da Rocha & CHC Lodoh.
The law is trite that a father can buy land or property for a child and a resulting trust is created in favour of the father unless the property is intended to be a gift. If the buyer e.g. the father intended it to be a gift to the child, then no resulting trust is created. In the instant appeal the appellant led evidence to show that the father called all of them and told them the land is a gift to her. Her sister, the attorney, confirmed this assertion to our satisfaction.
The father never intended to hold any beneficial interest in the property hence he expressly told them it is a gift to the appellant. When a father buys property in the name of a child, prima facie it is a gift to the child and the presumption of advancement arises. This presumption can be rebutted by the acts of the buyer. We are tasked to take all circumstances of the case into consideration in deciding whether the beneficial interest is still in the father or it is a gift to the child. In the instant appeal the title deeds are in the child’s name. she raised money to build the house in dispute and the utility bills in her name. She called witnesses to corroborate her assertion that she sent money from Europe for the construction. She sent cash and vehicles to be sold for the construction. Her own sister confirmed the house belongs to the appellant.
Considering all the circumstances of the case, we hold that the real intention of the purchaser (J. K. Tuffour) is a gift to the appellant, and not a resulting trust for the others. The law and even our customary law frowns upon conduct such as that of the deceased father, making the appellant to believe it was a gift to her, utilising her resources to construct the house only to devise same to others in his Will.
To endorse this means the courts are opening the floodgates for people to devise properties duly registered in other people’s names to others in their Wills.
We are not oblivious of the authority that between a child and a father, the latter can in his Will nullify a gift made to the child. See Sesse vrs. Sesse & Ors. [ 1984-86] 2 GLR 167 CA.
We differentiate that situation from the current situation where the indenture on the property bears the child’s name. It is different from an oral gift to a child that can easily be revoked in the father’s Will.
We however think that Sese vrs. Sese dealt with a situation completely different from the situation in the present case. In Sese vrs. Sese, the land in issue had, right from the beginning, been acquired by the father as his own property and he had built an out-house on it without any indication that the land was meant to be a gift to the plaintiff. After building the out-house, the father had lived in it with his daughters, the defendant, and their mother and it was subsequent to all these that, with the father’s permission, the 1st plaintiff had built a storey building on another portion of the land. This had happened still without any indication that the land had been gifted to the plaintiff. Rather, the father had continued to treat the land on his own property and had rented out a part of the out-house to tenants and collected rents from them. Later, the plaintiff had started another building project on a different parcel of land for which he needed financial assistance from his bankers, who had demanded a landed security in consideration. The plaintiff had then fallen on his father for help and, to help the plaintiff to get the “landed security” he needed for the loan, the father had made a customary gift of the land in issue to the plaintiff, which had been reduced into writing and duly registered.
We see therefore that unlike the present case, in the Sese Vrs. Sese case, the land in issue was not initially acquired in the name of the plaintiff so as to give rise to a presumption of advancement to him. Also, in the Sese Vrs. Sese case, there was evidence of an understanding contemporaneous with the making of the gift was not meant to be an advancement but only to help the plaintiff to provide security for a loan he was taking.
This is different from the present case where the land was acquired in the name of the plaintiff with no credible evidence of a contemporaneous act or event showing that the plaintiff was meant to hold it as a trustee. In the present case, there is also credible evidence that, understanding from all the circumstances that the land was hers, the plaintiff financed the construction of a building on it and also showed what may be considered as appreciation to her father by lavishing gifts in the form of cars on him.
It was also said in the Sese Vrs. Sese case that under customary law, as between parents and children, gifts could be recalled or exchanged by the parent or any time in his lifetime or by will. And on the basis of this principle, the gift of the disputed land by the father in his will in spite of the earlier gift to the plaintiff, was considered justifiable. It is to be noted however that in the Sese Vrs. Sese case, the gift of the disputed land to the plaintiff was made under customary law. It should therefore be understandable for consideration of the validity or otherwise of the recall of that gift to be guided by customary law principles. In the present case however, the record does not suggest that the transaction whereby the disputed land was purchased in the name of the plaintiff was a customary law transaction. It will therefore not be reasonable to apply customary law principles in considering the validity or otherwise of an attempt to revoke the gift to her.
But talking about customary law principles, while we recognize that under customary law, as between parents and children, gifts could be recalled or exchanged at any time by the parent, we think we also ought to recognize the other customary law principle underscored by the learned jurist, Ollenu at page 66 of his “Principles of Customary Land Law in Ghana” (Sweet and Maxwell, 1962), that customary law abhors greed and ill-gotten gain. The plaintiff having been made to believe, by the acquisition of the land in her name, and having been encouraged to build a house on the land and to show such goodwill towards her father as we gather from the evidence, customary law will deem it unconscionable for the father, whether in his lifetime or by a will, to take back the land and give it to other persons.
We hold that land whose valid registration is in the name of the plaintiff cannot be devised by anyone not even the father who paid the purchase price in his Will.
The defendant and DW1 in their testimony said after the Will was read nobody raised any objection. Objecting to the contents of a Will does not mean you shout and fight it at the Registrars’ Office. One will ask if a caveat was filed. We do not see anything like that on the record but rather the plaintiff initiated this action challenging the Will.
Courts must strive to prevent and avoid ambush litigation by resorting and looking more at substance than the form. Filing a caveat and initiating this action we think make not much difference and will be grave injustice if we should strike out this action. The courts existed to do substantial justice and would be manifestly unfaiir to strike out this action.
The defendant alleged that their deceased father called all the children and told them he purchased the land in plaintiff’s name and building for all of them. He however failed to call any of the siblings to corroborate that piece of evidence. Even 2nd defendant never testified to that effect.
Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way example, by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not prove it by merely going with the witness box and repeating that averment on oath, or having it repeated on oath by his witnesses, he proves it by producing the evidence of facts and circumstances from which the court can be satisfied, not what he avers is true. – Majolagle v. Larbi & 2 Ors.  GLR 190 at 192.
It is the basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The methods of producing evidence is varied and includes testimonies of the party, material witnesses, documentary evidence, admissible hearsay. Matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of a fact is more reasonable than its non-existence.
See Section 10 (1) & (2), Section 11 (1) & (4) of the Evidence Act 1975 (NRCD 323).
The crux of defendants’ case is that PW1 in his testimony told the court the deceased told him that his daughter Serwaa (Plaintiff) and the children assisted him to build the house.
That piece of evidence counsel submits contradicted the plaintiff’s claim that she alone built the house and rather corroborated the 1st defendant’s clan that they all remitted money to help build the house.
We do not think this little inconsistency is sufficient to call for a wholesale rejection of the plaintiffs' claim. PW1 said the deceased told him “Serwaa and the children”. Why did he mention Serwaa first before adding the other children? Serwaa cold fund the building but other children could help physically in the construction. Minor, immaterial, insignificant, little inconsistencies, conflicts and contradictions from many witnesses should not call for wholesale rejection of evidence. The court, if the evidence is overwhelming, could gloss over it. See Effisah vs. Ansah [2005/06] SCGLR 943 – Chief Justice Wood.
We do not think that little piece of evidence contradicted the plaintiff’s case.
The 1st defendant alleged be also remitted money to the father for the construction. He unlike the plaintiff, failed to lead any evidence to establish that fact. He never told the court the mode of remittance to the father. PW3 testified that the plaintiff sent him to bring money to the father for the construction. He cleared two vehicles meant to be sold and the proceeds used for the construction. He also brought two vehicles to be operated as commercial vehicles and proceeds to be used for the construction. All these pieces of evidence were not challenged and so assumed admitted. Thus, the plaintiff has satisfactorily discharged that burden of proof that she single handedly financed the construction of the house.
PW4, Georgina Tuffour who is a sibling in her testimony had this to say, “To my knowledge, the property belongs to the plaintiff. It is not true that our father stated he was buying the plot for all his children. It is not true that the plaintiff is only a trustee for all the children. Our father was not very rich and had no factory as such. It is not true that our father solely financed the construction of the house. The house was solely financed by the plaintiff. When the Will was read, plaintiff objected to the devise concerning the house.” Pg. 41 ROA
Why will Georgina Tuffour, a sibling of the plaintiff who would have benefited from the house if defendant’s claim is upheld saying this. We think she spoke the truth. In cross-examination, she was steadfast and said it is not correct plaintiff and the other siblings built the house in dispute – pg. 45 ROA
She said their father was not a rich man and that he was a shoe mender. She said she herself personally brought money from plaintiff in Belgium to their father for the construction. This is a sibling who would have benefitted if the defendants claim is upheld but said no to her own detriment. We believe her evidence as the truth.
The defendant never led any evidence to support his assertion that the other children also assisted their deceased father in the construction. He himself never led any evidence of his own contribution nor did he call any other sibling to establish their contribution unlike plaintiff who called two witnesses to establish her contribution.
From the totality of the evidence before this court, it is clear that though the plaintiff’s father paid the purchase price of the land it was a gift to plaintiff and also registered the indenture in the plaintiff’s name, the land is solely for her. There is no evidence that title in that property had been legally transferred to anyone. Thus, legal title to that property No. 84 Block 8, New Suame, Kumasi is for the sole benefit of the plaintiff. The plaintiff has led enough credible and positive evidence that she solely financed the building of the house on the land. She called witnesses to that effect. Her own sibling supported her that the house is for her, she built it alone from her own resources. We believe that evidence as credible and hold the house is for the plaintiff.
On the preponderance of probabilities, we believe the plaintiff has established her case as opposed to the defendant who could not establish his contribution. The plaintiff is therefore entitled to her claims. We uphold the trial High Court’s decision and same will not be disturbed.
This appeal lacks merit and same is dismissed in its entirety.