IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
EMMANUEL OSEI ASAMOAH - (Petitioner/Appellant)
AGNES NURO AMPOFOWA - (Respondent)
DATE: 31 ST OCTOBER, 2018
SUIT NO: H1/167/2018
JUDGES: OFOE J.A (PRESIDING), GERTRUDE TORKORNOO (MRS) J.A, SIMON SUURBAAREH J.A
EMMANUEL OSEI ASAMOAH FOR PETITIONER/APPELLANT
AGNES NURO AMPOFOWA FOR RESPONDENT/RESPONDENT
OFOE : J.A:
In the trial court the petitioner, Mr. Emmanuel Asamoah sought the following reliefs:
“1.That the marriage be dissolved
2. The properties acquired during the marriage being House No 2 North Dome Accra be distributed equitably
3. Any further orders as this honourable court may seem fit”.
The respondent, Agnes Ampofoaa also cross petitioned and sought the following reliefs:
“1.The marriage between the parties be dissolved on the respondent’s cross petition.
An order that the petitioner maintains the respondent with a monthly allowance of GHC500
That the petitioner be ordered to transfer the home in petitioner’s village which land was acquired by the respondent to the respondent absolutely
That the petitioner be ordered to pay a lump sum of GHC50,000 to the respondent as compensation for the several sale of her lands in Accra by the petitioner or in the alternative as financial settlement.
That the petitioner pays the respondent’s legal and all other costs of this action”.
At the end of proceedings, the trial judge after reciting the evidence of the parties and their witnesses and without making any findings relevant to the case before her, concluded stating simply that:
“In view of the foregoing, the marriage between the parties contracted under customary law is hereby dissolved as having broken down beyond reconciliation. Bearing in mind that the petitioner herein is a pensioner on government pension, the petitioner is to pay the respondent an amount of GHC10,000. As financial settlement since this court will not permit the petitioner to dump the respondent after her useful services without regard to her human rights. Let each party bear their own cost”.
The petitioner is dissatisfied with these orders of the trial judge and has appealed on four grounds to wit:
“a. The judgment is against the weight of evidence adduced in court
b. The judge grossly misdirected herself on the rights of the parties to a divorce especially when either one of the parties, or both acquired properties during the pendency of the marriage
c. The findings of fact or the decision based on the facts found are muddled up making the whole judgment unintelligible or lacking clarity
d. The judgment is greatly in error when it said the respondent has sold the matrimonial house, being House No. 2, North Dormi in the year 2010 because there is clear evidence that in 2013 and 2015 the respondent was still managing it as her own and even submitted an application to the Land Registration Division of the Lands Commission for the registration of the matrimonial home in her name, and in 2015 using the property as collateral for a loan from DCI Microfinance Ltd.
e. The judgment’s veiled justification of the alleged sale of the matrimonial home is wrong because by the year 2010, there was no justification for the sale of the property since the family had no debt to service”.
Even though counsel for the petitioner intimated he will file further grounds of appeal on receipt of the record of proceedings no such additional grounds were filed.
I will continue to refer to the parties in this appeal as they were designated in the trial court: the appellant as petitioner and respondent as respondent.
I will keep grounds (a) for consideration in this appeal and submerge grounds (c) into ground (a) since I am of the view ground (c) is complaining about mistreatment of the evidence on record resulting in devalued judgment. I will treat ground (b) also on its own. Then grounds (d) and (e) will be considered differently. Even though grounds (d) and (e) could be treated as an evidential matter under grounds (a) they have their own importance that needs emphasis in the entire case, to wit: has the property been sold to an Alhaji?
I must mention that even though I have segregated the grounds of appeal as mentioned in the preceding paragraph, I do not see why submissions and my consideration of this appeal should not be directed at mainly solving the straight forward issues;- (1) whether the property House No. 2 Dome is jointly acquired property of the parties and (2) whether the respondent has indeed sold the property to an Alhaji. If she has, should consequential orders follow having regard to the evidence before us ?. The same view is expressed by counsel for the respondent when he stated:
“……. It is clear the bone of contention of this appeal is about whether the property referred to as House N. 2 North Dome is jointly owned by both petitioner/Appellant and respondent/ respondent or solely owned by the respondent/respondent and whether that property had been sold by respondent/ respondent in 2010 as claimed”.
These two issues will be my main concern in this appeal.
Unfortunately, the trial judge did not make any findings on these issues. In fact the trial judge made no relevant findings at all. I agree therefore with counsel for the petitioner in his submission that the trial judge failed to make any findings on who owned the property. I don’t think we need to be reminded that trial courts are enjoined to make findings of fact on relevant issues that will effectively and finally dispose of the case before them, they being the first court of instance and had had opportunity of seeing the parties as they testified. As rightly stated by counsel for the respondent, relying on the Supreme Court case of Quaye vrs Mariama (1961) GLR at 95, it is the trial judge’s duty to make up his mind one way or the other on the primary facts and when he has made up his mind he should state his findings and then proceed to apply the law giving reasons for his judgment. Refer also to the case of Mainoo vrs Republic(1984-86)2 GLR 727.
In the view of His Lordship Francois in the Mainoo case, the magistrate, as an arbiter should weigh the pros and cons and make findings from which rest his conclusions and reasons. If there were no findings the appellate court would be disabled from determining whether the magistrate’s conclusions were justified. But as mentioned in the Ntoah vrs Appeadu (1984-86) 1 GLR47, this failure by the trial judge, does not incapacitate this appeal court from proceeding to make its own findings from the evidence led before the trial judge. Refer to the case of Logs and Lumber Ltd vrs Oppong(1977)2GLR 263 at 267. Such jurisdiction arises from the legal position that an appeal is by way of rehearing and this casts a duty on us to review the whole of the evidence on record and determine whether the trial judge has in anyway faltered in his consideration of the evidence as applied to the law as to give cause to upholding the appeal lodged by an appellant. The powers of the appellate court in reviewing the whole evidence and when those powers would be exercised in interfering with the trial court’s findings have been expounded in several authorities. Refer to the cases of Gregory vs. Tandoh IV &Hanson (2010) SCGLR 971 at 985 Obeng vrs Assemblies of God Church (2010) SCGLR 300, Achoro vrs Akanfela (1996-97) SCGLR 209, Akuffo Addo vrs. Cathline (1992) 1GLR 377, Koglex (No2) vs. Field (2000) SCGLR175,
The concern of this appeal is mainly a disagreement with the refusal sub-silentio by the trial judge in ordering an equitable distribution of this Dome property, herein after referred to as the property. Why does the petitioner believe he was entitled to an equitable share of the property? Has he led such evidence to entitle him to such claim? We resort to the evidence of the parties as presented before the trial court.
It is not in dispute that the parties got to know each other when the petitioner was a sergeant in the military. Eventually the respondent got herself enrolled as a military woman. They are currently retired. There are two children to the marriage aged about 40 and 45. The petitioner is about 83 years and the respondent 73. From evidence on record other properties have passed through the hands of the couple but have sold leaving only this property in dispute. Whilst in her response to the petition the respondent denied any involvement of the petitioner in the acquisition of this property, in her evidence in court, she made several admissions that appear on the totality of the evidence to lend support to the petitioner’s claim to equitable share of the property.
The evidence of the petitioner is that after he retired from the military he stayed with respondent at Kokomlemle and later in Asylum Down before moving to Dome, the property in dispute. They started developing the property when they were in Dome. They purchased the land on which they have the property together and were issued exhibit A, B and C series. Exhibit A is a receipt for part payment of the land in their joint names, Mr. and Mrs. E. O. Asamoah. Exhibit B is the site plan of the land which they were given on purchase of the land, also in their joint names. According to the petitioner, and this was corroborated by his witness, Mr. Joshua Tettey, the land was then within the Kwabenya government lands and therefore indentures were not being given by the vendors but site plans, exhibit B. In support of their joint purchase of the land petitioner tendered further receipts marked exhibit C series also in the name of Mr. and Mrs Asamoah. In respect of the construction of the building itself it is the evidence of the petitioner that together with the wife they organized the military vehicle which supplied them sand and other building materials which they paid for. He supplied fuel for this truck and gave the driver his pocket money. The wife did the same at times. Because he was then on retirement he did in addition the supervision of the construction of the building. Even though on retirement he was working as a taxi driver.
Mr. Asamoah, the petitioner, called the surveyor/draughtsman who both parties admitted assisted them in the purchase of the land and construction of the building. He is Joshua Tettey. He testified as to how the petitioner came to him on referral from the chief whose cousin had sold the plot of land originally sold to the respondent for replacement. He did the replacement. Subsequently the respondent came with the husband and he got the land demarcated for them. He testified that it was the respondent who took him round and showed him the type of building they wanted to put up on their land. When the building started both parties visited the land. He told the court that he made the site plan for the parties in the name of Mr. and Mrs. Asamoah and that that name was given to him to use on the site plan by the respondent in the absence of the petitioner. As earlier mentioned, he testified that at the time the land fell within the Atomic Energy lands and therefore all they gave purchasers were site plans and affidavits. As testified to by the petitioner, the witness told the court he remembers going with the petitioner to Kyebi Duame to purchase wood and in Tema to purchase steel and roofing sheets. As to who paid for the land, witness said he does not know. About 4 to 5 years later witness recollected the daughter of the parties came to him that she wanted documents on the land to enable her secure a loan she was contracting from a Bank. He referred her to the new land owners who gave her a new document bearing only the respondent’s name.
The son of the parties, Godfriend Yaw Asamoah, testified as a witness for the father. He also recollects that when the building was being put up both parents visited the site together and it was his father who was supervising the construction. Both contributed in the purchase of the building materials. He on some occasions sent sand to the site on the instructions of the parents at the time he was 20 years.
I must say that both witnesses stood unscathed after their cross examination.
Respondents evidence relevant to the matter of the property was that she bought the land with her own money without the involvement of the petitioner. She paid for it at a go and not by instalments. She does not therefore know where the petitioner got the receipts exhibit A and C series from. She testified that subsequently when she needed a loan it was difficult using the site plan so he went back to the new land owners who gave her an indenture. As to the name Mrs. Asamoah she appeared to disown it as her name. She maintained, as in her reply to the petition of the petitioner, that the petitioner was poor and was not involved in the purchase and construction of the property. She singlehandedly financed the construction at a cost of GH¢3,500. But then she made certain crucial admissions that cannot escape the attention of a court. She admitted that the respondent indeed went to Potuarese in Kyebi to fell and sawn the wood for the roofing of the property with the petitioner’s first witness.
However, according to her, she gave out the money for the purchase of the wood. Also on some occasions she gave money to the petitioner, who was then on pension but driving a commercial car at the Tema Station, to purchase items for the construction of the property. She was then at Burma Camp as a soldier and could not take time off for such jobs. The petitioner however accounted to her later. In her own words the petitioner gave her help in kind in the construction of this building. He even bought cement for the construction of the manhole. But was the petitioner so indigent as she wanted the court to believe? From the evidence I don’t think she succeeded painting that picture. There is no dispute the petitioner travelled to Germany and Libya and back. The evidence is that he brought with him a car which he used as commercial car. I believe it was this car which the petitioner was using at the Tema Station mentioned by the respondent. The respondent maintains the petitioner brought nothing on these travels because he was deported. The respondent admits however that the petitioner gave out certain monies to the daughter when she was in need $2300 and GH¢2000.
The contention of the respondent is that she has sold the disputed property in 2013. But she was confronted with documents exhibit E, E1 to 4 being respondent’s application for Land Title Certificate. These exhibits are dated 2013. Also in evidence to challenge the respondent’s claim to having sold the land in 2013 is correspondence from DCI, a micro finance company, from which conclusion can be drawn that in 2015 they were in a loan transaction with the respondent who wanted to use the property as collateral for a loan.
The foregoing is a fair representation of the evidence of the parties and their witnesses. It is these pieces of evidence we pitch against the legal principles in arriving at a decision in this appeal. Before then I have a duty of making findings on some of the relevant issues worth determining in giving a final answer whether the petitioner is entitled to any equitable share of the property as he claims. I think there is sufficient evidence the property was bought in the name of Mr. and Mrs. Asamoah, the couple, because they believed it was to be commonly owned. I cannot lose sight of the fact that the name was given for use in the receipts and the site plan by the respondent herself. I will agree with the submissions of counsel for the petitioner that the property bought in the name and site plan issued in the name of the parties, is indicative of their intention to jointly own the property. To deny the name Mrs. Asamoah, as the respondent sought to do in her evidence in court, will be an afterthought if not dishonest.
She gave out that name because she knew and it was their intention that the property be jointly owned. That the property be jointly owned was the intention of the couple and that was why the petitioner could go to the forest to get timber sawn for roofing the property and also to Tema in the company of Mr. Tettey, the witness, for aluminum roofing for the property. The visits to the building site by the couple when it was being constructed and the supervision by the petitioner, as testified to by Mr. Tettey, is also evidence within the matrix of the entire evidence of the intention of the parties that the property be jointly owned.
The respondent admitted that the petitioner provided other help in kind. What exactly that meant was not explained but that admission gives credence to the evidence of the petitioner that he was involved in the construction of the property. The respondent sought to categorize the petitioner as very poor who could do nothing on his own when it came to finances because he was on retirement. But her own evidence and pleadings does not sustain such description of the petitioner. In paragraph 21 of her cross petition she stated:
“The respondent says that petitioner used the GHC200 he brought from Germany and the proceeds from the commercial operation of the vehicle he brought from Germany to build on the land respondent got for petitioner in his own village as well as spending a lot on other women to the exclusion of the respondent”.
Refer to paragraph 23 where she made similar admission of the financial strength of the petitioner. So the petitioner could build after all, even on his retirement and had a lot to give out to other women. In her own evidence in chief also she said:
“In 2005 (my emphasis) petitioner’s brother notified us that my father in law had been ejected so I agreed for one of my plots to be used for development for him. My husband built on that plot for the father”.
I have to conclude that there are clear pieces of evidence that even though the petitioner retired 1978 he was still in business and capable of contributing to putting up the disputed property.
Bearing in mind that matrimonial affairs is not a commercial venture which should involve expenditure recordings in line with accounting principles, I will accept, as contended by the petitioner, that he on occasions paid for some of the building materials towards the building of the property just as the wife did. It is only by avoiding accounting principles that the respondent’s evidence that she put up a whole storey building with GH¢3,500 would be understood. This amount can hardly put up a storey building at the time but the inaccuracy could be explained by the fact that during the construction no recordings were being made by her because it was a husband/ wife matter.
Reading the entire record of appeal there is no iota of evidence from which any deduction can be made that the parties or the respondent intended to own this property exclusively. Godfriend Asamoah the son of the parties gave a vivid picture of the occupation of the rooms after completion of the property. He had one room, the sister had one room and the parents had one room each, for all these years until the petitioner had to move out of the house due to some misunderstanding. This evidence also strengthens the conclusion on the evidence that it is more probable than not that the parties intended joint ownership and enjoyment of this property.
From the foregoing I will uphold the petitioner’s grounds (a)and(c) that the judgment is against the weight of evidence. The evidence supports joint ownership of the property
I noticed in the submission of counsel for the respondent that he was asking this court to find that the property in issue now is different from that allegedly sold by the respondent. With respect to counsel there is no evidence of such nature from any of the parties: either from their pleadings or evidence in court. I will reject such submission.
Should such involvements as I have found entitle the petitioner to half share of this matrimonial property as the most equitable distribution having regard to the evidence on record?
This is the appropriate stage of this delivery that I should refer to the legal principles churned out by our case law authorities that guide matters of this nature in the distribution of matrimonial property.
The recent Supreme Court cases of Mensah vs. Mensah (1998-99)SCGLR 350 and Boafo vs. Boafo (2005-2006)SCGLR 705, Gladys Mensah vrs Steven Mensah(2012) 1 SCGLR 391, Fynn vrs Fynn (2013-2014) SCGLR 727 to mention a few, are the appropriate authorities in this area of the law. Both counsel and the trial judge made reference to some of these cases.
It is also essential to mention section 20(1) of the Matrimonial Causes Act 1971(Act367) and Article 23(3) of the 1992 Constitution. We quote them hereunder.
“20(1) The court may order either party to the marriage to pay to the other party such sum of money or convey to the other party such movable or immovable property as settlement of property rights or in lieu thereof as part of a financial provision as the court thinks just and equitable”.
“Article 22 (3). With a view to achieving the full realization of the rights referred to in clause
(2) of this article-
(a) Spouses shall have equal access to property jointly acquired during marriage:
(b) Assets which are jointly acquired during marriage shall be distributed equitably between spouses upon dissolution of the marriage”
What did the Supreme Court say in respect of Mensah vs. Mensah(supra) in respect of property distribution on dissolution of the marriage. It was an issue about which of the divorced couples should have the estate house with extension made thereon. Both parties had asked the court to declare the property as their individual property. Summary of the evidence is that the house was acquired in 1973 and the extension works were made in 1978/79 when the parties were married and co-habiting. There was evidence that it was the husband who applied to the State Housing for permit to make the extension works. He also engaged someone to make drawings of the extension works. The husband provided a room divider in 1983 and paid for the ceiling panel. During this construction period he was still contributing to the household expenses. Based on these pieces of evidence the Supreme Court disagreed with the Court of Appeal’s conclusion granting the extension solely to the woman.
The Supreme Court held that in such circumstances the principle that property jointly acquired during marriage becomes joint property of the parties applies and such property should be shared equally on divorce. In coming to this conclusion the court considered cases like Rimmer vr. Rimmer(1952)1QB 63at page73 and our local case of Achiampong vrs. Acheampong (1982-83)2 GLR 1017 C.A. The contribution of each party in these cases was such that the courts found it equitable making a finding that the properties in issue were jointly owned and therefore the principle of equality is equity should be applied and the property shared equally.
In Boafo vs. Boafo (supra) the trial High Court made findings that the wife had made financial contributions to the acquisition of the properties in issue and the couple had also conducted their finances jointly. The trial judge found also that all the properties were acquired during the subsistence of the marriage. In upholding the redistribution ordered by the Court of Appeal, the Supreme Court through His Lordship Date- Bah, cited with approval the reasoning and conclusions in the Mensah vs. Mensah case emphasizing Lord Denning in the Rimmer vs. Rimmer case where the Lord Justice had this to say:
“where it is clear that the matrimonial home or furniture in common use belong to one or the other of the married couple then the courts would respect the proprietary rights of the particular spouse. But where it is not clear to whom the beneficiary interest belongs or in what proportions, then the equitable maxim of equality is equity would be applied”
His Lordship Date Bah understood the Supreme Court in Mensah vs. Mensah to have stated
“That the principle of the equitable sharing of joint property would ordinarily entail applying the equality principle, unless one spouse can prove separate proprietorship or agreement or a different proportion of ownership”
He approved of it.
He found further the following statement of the Court of Appeal unexceptional and approved that also:
“The Constitutional provision(and indeed section 20(1) of the Matrimonial Causes Act, 1971(Act 367) only makes provision for the equitable distribution of property jointly acquired without, understandably, laying down the proportions in which such property may be distributed. The reason is not difficult to find. The question of what is “equitable” in essence, what is just, reasonable and accords with common sense and fair play, is pure question of fact, dependent purely on the particular circumstances of each case. The proportions are therefore, fixed in accordance with the equities of any given case”.
In respect to the mode of distribution he said at page 713 of the report:
“An equal division will often, though not invariably be a solution to this imbalance. The logic underlying this solution is that equal partners should share equally. However, the particularities of an individual case may make this general approach unsound in specific instances”
In the current Supreme Court case of Gladys Mensah vs. Stephen Mensah( supra), His Lordship Jones Dotse dilated at length on the principles governing distribution of property acquired during the subsistence of the marriage if the marriage is subsequently dissolved. After considering the cases of Mensah vs. Mensah(supra) and Boafo vs. Boafo(supra) he came to the conclusion that even though Boafo vs. Boafo affirmed the equality is equity principle it gave further meaning to section 20(1) of Act 367 and Article 22(3)(b) of the 1992 Constitution. In agreement with these cases he stated that when it comes to the issue of proportions they are to be fixed according to the equities of each case. He stated:
“The court duly recognizes the fact that an equal (half and half) distribution though usually a suitable solution to correct imbalances in property rights against women, may not necessarily lead to a just and equitable distribution as the Constitution and Act 367 envisages. It is submitted that the court made room for some flexibility in the application of the equality is equity principle by favouring a case to case approach as opposed to a wholesale application of the principle”
Obviously infatuated by the desire to protect women who have been cheated for far too long and I think further infuriated by the circumstances of the Mensah case, where the husband was in fact attempting fraudulently to deny the illiterate wife her due share of the properties acquired during the marriage, His Lordship Dotse added
“The above notwithstanding, it must be noted that the paramount goal of the court would be to achieve equality. Thus the court endorsed the court of appeal position to the effect that an inability or difficulty to identify clearly distinct contributions in the acquisition of the joint property would not in itself preclude a half and half sharing”
I believe I have been able to titrate from the current judicial authorities the applicable principles that should guide me in determining the distribution of this property I have found to be jointly owned.
Firstly, as mentioned in the Mensah vrs Mensah the law recognizes the wifely duties performed by the woman in the house while the man goes acquiring property as contribution in the acquisition of the matrimonial property. Conversely just as a woman performs wifely duties in the matrimonial home so a man performs husbandly duties within the matrimonial network. He fathers the children and provides for the upkeep financially of the home to keep the home worth describing a home and not a house. Property acquired by the woman in the course of such marriage in most cases can be aptly described as jointly acquired to be shared equally. Of course in certain situations a wife helps or takes over the financial aspect of this joint matrimonial endeavor if the circumstances of the marriage so demand. But that does not change anything if the husband performs his chores at home as a dutiful husband while the woman goes to work to acquire property for the home.
The evidence on record admits of a conclusion on the balance of probabilities that the petitioner in the whole course of the marriage, until its ending stages, was the man of the house performing all that it takes a man to provide a peaceful environment for his family. Even if the property was acquired by the respondent, just like wifely duties that may entitle a woman to half share of the matrimonial property, so should the petitioner, on the evidence in this case, be entitled to half share of the disputed property. But if there is any doubt in this conclusion which is based on husbandly duties, we have further and reliable evidence on record of the petitioner’s contribution to support such conclusion of half ownership. I have alluded to these earlier in my findings. It is true as mentioned by the case law authorities that the application of the equality is equity principle is subject to the peculiarity of each case and it is not simply marriage that invokes this principle. This appears to be the major submission of counsel for the respondent.
But I am in agreement with counsel for the petitioner that on application of the facts of this case and my findings thereon, the principle of equality is equity should have been given more detailed consideration by the trial judge and given its full operation as to entitle the petitioner to half share of the property, House No. 2 North Dome, Accra. Consequently, grounds of appeal (b) is also upheld. I will conclude that on the evidence, as guided by the case authorities mentioned herein, the petitioner is entitled to half share of the property. As stated in the Mensah vrs Mensah case by His Lordship Jones Dotse the difficulty in identifying clearly distinct contribution in the acquisition should not preclude a half and half share.
I can now consider the contention of the respondent that she has already sold the property. The contention of the respondent that she has sold the property came out of her response to the petition. This contention was challenged. And as is accepted without any deviation in legal circles, the respondent has the duty to lead evidence to establish this claim. Evidence the respondent gave is simply that she has sold the property to an Alhaji to pay her medical bills. She tendered exhibits 1,2 and 3. Exhibit 1 is an indenture from an Acting Head of Family of Onamrokor Adain Family to Mad Agnes Nuroh Ampofoah dated the 6th of December 2007.
This is the document the respondent confessed she had to go for from the new land owners in exchange for the site plan that was given her, exhibit(B), when she bought the land earlier. For what reason should she go for this new document in her name without the knowledge of the petitioner when the site plan bore her name and that of her husband? I will come back to consider this question. Exhibit 2 are medical reports and receipts which should have been marked in series but were all bungled up as exhibit 2. Exhibit 3 is the contract of sale between respondent and an Alhaji Ibrahim Omar Mojo.
This contract of sale is dated the 15th June 2010. In her evidence in chief she told the court she sold the property as far back as 2013. I will accept that the alleged sale happened 2010 because there is documentary evidence, exhibit 3, which should be preferred to oral evidence unless there is a good reason to determine otherwise. To counter the respondent’s claim that she has sold the property, the petitioner tendered exhibits E to E4, exhibits F and G.
Before I assess the value and weight to give to these documents tendered by the petitioner, I need to address counsel for the respondent’s submissions that documents E to G were not tendered by the authors and therefore inadmissible and secondly that these exhibits are hearsay evidence and should not have been admitted. I will quote his submission on these points:
“It is submitted that although the documents at pages 121 to 127 of the record of appeal were admitted in evidence they should in fact be inadmissible in the ground that no one knows the providence of these documents. The petitioner/appellant should have called evidence on these documents that should have been tendered in evidence through their authors. To the extent that this is the case we implore the court to reject the documents as evidence in the case. The Evidence Decree 1975,(NRCD 323) section 8 empowers the appellate court to reject evidence which ought to have been rejected at the trial court”.
The other submission is as follows:
“We submit that to the extent that the providence of the documents at pages 121 to 127 of the record of appeal is not known from any evidence from the maker of the documents to prove that the documents were made in the regular course of business as envisaged by section 125(1)(a) of the Evidence Decree 1975, Act 323, we submit that these documents are hearsay under section 117 of Act 323 and cannot be admitted in evidence. We would respectfully canvass for this appeal to be dismissed as devoid of merit on grounds (d)”.
He made these submissions based on the authority of Juxon-Smith vrs KLM Dutch Airlines (2005-2006) SCGLR438, Edward Nasser vrs Mc Vroom (1996-1997) SCGLR468 to the effect that even though these documents have been admitted this court has the jurisdiction to ignore them in its assessment of the evidence. Applying these authorities to section 8 of the Evidence Decree I cannot agree with counsel any better on this principle of law.
But are these exhibits indeed what counsel describes them to be? They are not, is my answer. Who are the authors that counsel thinks should have been called to tender them failing which the trial court should have rejected them as hearsay? Apart from exhibit E all the other exhibits E1, E2, E3,E4 are documents the respondent herself deposited with the Land Title Registry and which were tendered through her and admitted without objection. I will disagree will counsel submitting that these documents should have been tendered through the author. The author is the respondent who had no objection to the admission of these documents. Exhibits G was written by counsel for the petitioner to DCI warning them to be ware if they intended granting any loan to the respondent because the property was not wholly for the respondent. Exhibit F was the response of DCI to the petitioner’s lawyer. How could such documents be rejected by this court with the reasons given by counsel for the respondent?
Here again I will reject the submission of counsel. The documents and their route of entry into the records would not permit their rejection on grounds that they are legally inadmissible documents.
Now the purpose the petitioner tendered these documents was to show that having regard to the dates they bore it cannot be true the respondent sold the property in 2010. Exhibit E1 and E3 have the date May 2013. Exhibit F and G have the dates 30th June 2015 and 29th June 2015 respectfully. The submission of the petitioner based on these dates is that if the respondent had sold this property in 2010 as shown on the contract of sale document, exhibit 3, how come the same respondent applied in 2013 for registration as owner of the property allegedly sold. The answer of the respondent when she was confronted in cross examination was that:
“It was the purchaser who wanted to register because the land was not in the name of the client”.
I must confess I don’t understand this answer and counsel for the respondent did not seek to re-examination to make this answer clearer. How could she have sold the property and still seek title certificate for it in her name? Again how could she have applied for loan on the basis of this property allegedly sold? It appears doubtful the respondent has sold the property. But a combined reading of sections 1,2 and 3 of the Conveyancing Act, NRCD 175 as interpreted in the Supreme Court case of Anthony Wiafe vrs Dora Borkai Bortey, Civil Appeal No. J4/43/2015 of 1st June 2016 gives some legal status of a sale to the Alhaji, by virtue of exhibit 3.
By this authority all that is needed for an effective transfer of landed property is a writing to that effect and signed by the grantor as evidenced by exhibit 3. But I have found that the property is jointly owned in the proportion of 50-50. If there is any sale at all then the respondent can sell only here half share and not the whole property. The evidence is clear that the respondent wrongfully, and fraudulently, subsequently got the property transferred into her own name and sought to sell to the Alhaji. Should such fraudulent act be left prevailing? I don’t think so. The courts have not shied away from attacking fraudulent acts where the evidence is profuse on the record. Refer to the case of Amuzu vrs Oklika(1998-1999) SCGLR141. For the justice of the case and to prevent the respondent from benefitting from her own wrong and the fraudulent scheme, I will order the detachment of petitioner’s 50% interest from the property and vest same in him as beneficial owner thereof.
It is a portion the respondent had no authority to sell. The respondent can give out only what she has and no more. Refer to section 13 (2) and (3) of the Conveyancing Act. NRCD 175. Consequently, I will uphold grounds of appeal (d) and (e).
I noticed counsel for the petitioner sought to make submissions on the GHC10,000 financial award made by the trial court in favour of the respondent. I ignored it since there was no grounds of appeal, the only substructure, on which such submissions could be made. Rule 8 (8) of Court of Appeal rules C.I.19 supports this view.
The foregoing is my delivery on this appeal before this court. All grounds of appeal are upheld in terms of this judgment.