IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
GOOD NEWS CO-OPERATIVE (PLAINTIFF/RESPONDENT) vs. )
GRACE AMOYAW - (Defendant)
FREDERICK AMOYAW - (Claimant/Appellant)
DATE: 16 TH OCTOBER, 2018
CIVIL APPEAL SUIT NO: H1/46/17
JUDGES: ADUAMA OSEI JA (PRESIDING), DZAMEFE JA, M. WELBOURNE JA
MITCHELL DONKOR FOR PLAINTIFF/RESPONDENT
NO REPRESENTATIVE FOR RESPONDENT
The Claimant/Appellant in this appeal, Frederick Amoyaw on 17/4/15 issued a notice of claim on the ownership of Plot No. 34 Block B at Kromoase, Kumasi, the said house been attached by the Plaintiff/Judgment/Creditor to the above-named suit in execution of a judgment debt against the defendant.
The claimant averred that the plaintiff in the case took an action against the defendant and obtained judgment. That the execution of the Fifa was made and the House, No. plot 34 Block B, Kromoase, Kumasi belonging to the defendant was attached.
That on 17/4/15 he filed notice to claim the attached property and on 22/4/15, the Plaintiff/Judgment/Creditor filed a notice disputing the claimant’s claim.
The Registrar on the 29th April, 2015 issued the order for claimant and Plaintiff/Judgment/Creditor to attend court on 26th May, 2015 for the determination of claimant’s claim.
The claimant in his evidence said he is a Systems Administrator and a son to the defendant in the case (mother). He averred the house in issue was built by their father, Ernest Amoyaw between 2004-2009 and they moved into the house in 2010. That three (3) months ago they found a notice posted on the house to the effect that same was to be auctioned because their mother (defendant) had used the house as collateral to secure a loan she defaulted in paying.
It is the claimant’s case that the house does not belong to the defendant, Grace Amoyaw. He said the father acquired the land in 1999 for his children. Their father Ernest Amoyaw testified to confirm the claimant’s evidence that he bought the land in the name of his children and built the house. He said he is an Akuapem who inherits patrilineally and so used the children’s name for the documents covering the house. He insisted the house in issue does not belong to the defendant but for him.
Regina Asamoah told the court he is a banker with the plaintiff company. That the defendant used her home to secure a loan for one Betty Kyei who defaulted in repayment. She informed the defendant who also failed to pay. She tendered exhibits 1, 2, 3 and 4, which are the allocation note, statutory declaration, site plan and a valuation report on the house given to the bank by the defendant as collateral for the loan. She said the house belongs to the defendant and not the claimant.
The trial High Court Judge in his judgment said he carefully perused Exhibits A, B, 2 and 3 and held that aside the signatures of the allotee, the components are the same. The Judge continued: “In the face of the denial of the claimant’s claim by the P/J/Cr to succeed, I hold thatthe claimant must satisfy the court by the same standard of proof as to the cogency and legitimacy of his root of title to the attached house.”
The court held that since the claimant is the one claiming should offer more evidence to support his case for example calling witnesses from the grantors and also some of the artisans who built the house which he failed to do. This failure the court held was fatal to his claim and therefore dismissed. The court ordered the Registrar to proceed with the execution process.
The claimant dissatisfied with this judgment filed this appeal against the whole judgment on the following grounds:
i. The judgment is against the weight of evidence on record.
ii. The learned Judge erred in failing to attach appropriate weight to the claimant’s evidence.
iii. The learned Judge erred in finding that the claimant had failed to prove his claim.
iv. Additional grounds of appeal
All these grounds can effectively be dealt with together under the omnibus ground (Ground 1).
Counsel for the appellant submits that it is the claimant/appellant’s case that their father Ernest Amoyaw developed the house in issue from 2004-2009 and they moved in 2010. That the claimant and his father were in occupation of the building and had no notice or knowledge that the building had been used as security for a loan facility, until an Action Notice was posted on same by the respondent. The subject matter they claim does not belong to the Defendant/Judgment/Debtor, Grace Amoyaw.
Counsel submits further that the trial Judge erred in law when he misdirected himself by placing a greater burden on the claimant who clearly had the law on his side since he was at all material times in possession of the property in dispute in his own right as owner and exercising all rights of an owner.
Counsel argued that the burden of producing evidence of a particular fact is on the party against whom a finding on that fact would be required in the absence of further proof.
Counsel argued further that if the learned trial Judge had properly directed himself on the burden of providing evidence and the burden of persuasion in respect of proof of title to the property in dispute, would not have come to the conclusion he arrived at.
Counsel for the respondent in answer submits this present appeal was filed out of time and same should not be entertained by this Honourable Court since it lacked jurisdiction to hear the appeal.
He referred this court to the case of Darke IX vrs. Darko IV [1984-86] 1 GLR 481where the
Supreme Court held:
“Where the appeal was filed out of time or otherwise suffered from a fundamental and radical defect which went to the very roots of the appeal, then notionally there was nothing before the court with respect to whichthe court might exercise any jurisdiction at all. The court’s jurisdiction was tobe invoked to handle appeals. It wasnot be invoked tohandle nothing. So if there wasno appealpending then the court had no jurisdictionto do anything….”.
He said the judgement against which this instant appeal was filed was delivered on 7th
July, 2015. The instant appeal was filed on 23rd July, 2015. That is 16 days after the judgment.
It is his submission that since the appeal was filed out of time, it is a fundamental defect that goes to the root of the appeal and therefore there is no appeal before this court which deserves our attention.
Counsel submits further that the learned trial Judge gave adequate reverence to the whole evidence adduced at the trial. The learned trial Judge never grossed over any evidence neither did he fail to take into consideration any part of the evidence adduced at the trial. The trial Judge attached the appropriate weight to the appellant’s evidence and this Honourable Court should therefore not interfere with nor disturb the fact findings of the trial court.
When an appellant’s ground of appeal is the omnibus ground of judgment against the weight of evidence, what he meant are the following:
That the appellate court should examine the totality of the evidence before it including all documents and exhibits to satisfy itself that the appellant’s case was more probable than not and also to come to its own decision or conclusion based on the admitted and undisputed facts and the law.
That there were certain pieces of evidence on record which, if applied in his favour, would have changed the decision in his favour.
Certain pieces of evidence have been wrongly applied against him.
It is however the duty of the appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.
The evidence before this honourable court briefly is that Grace Amoyaw, the claimant’s mother used the documents on the property in issue to guarantee a loan for one Betty Kyei from the respondent’s Credit Union Limited. There was default in payment. The respondent therefore went to court for judgment to auction the property for the loan. There, the appellant filed an interpleader notice that the property in issue belongs to him and the siblings. The trial High Court found against him and dismissed his claim hence this instant appeal.
It is interesting to note that the Exhibits “A” and “A1” and Exhibits 1, 2, 3 and 4 are all the same, bearing same names, dates, though the writings and signatures and box numbers differ. Exhibits “A” and “A1” are the documents on the land tendered by the claimant through PW1 the father, who allegedly built the house in issue. Exhibits 1 – 4 are documents on the same house given the Credit Union by Grace Amoyaw, PW1’s wife as owner of the house.
The law is trite that 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 AshalleyBotwe Lands, AdjeteyAgbosu&Ors. Vs. Korley&Ors. [2003/4] SC GLR 420.
A party whose pleadings 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 earn such a ruling – Ababiovrs. Akwasi II [1994/5] GBR 174.
A party who asserts a matter must prove it but he who denies it need not disprove. The maxim is stated in latin“ei qui affirmat, non ei qui negat, incumbitprobatio” SeeFynhont Production Limited vrs. Kwayie& Anor.  1 GLR 475.
All these are codified statutorily by our law as in Section 11 – 14 of NRCD 323. A party has the burden of persuasion as to each facts’ existence or non-existence to the claim or defence of the party asserting.SeeBank of W. A. Ltd. vrs. Ackun  1 GLR 176.
In the instant appeal, the claimant is the one alleging that the house in issue belongs to him and the siblings and not their mother. From the plethora of authorities, we have and from those mentioned above, the onus is on him to establish this assertion. The burden of persuasion is on him to establish to the court’s satisfaction that his claim is the truth or else it fails. He who alleges must establish or prove.
The respondents challenged the claimant as to his claim and therefore it is his burden to establish his claim by positive and cogent evidence to the court.
The learned trial Judge in his judgment said “Even though PW1 told the court the chief from whom he allegedly acquired the subject matter from is deceased, there is no evidence before me that the other people who allegedly executed Exhibit A are deceased.In the circumstance I hold that those people are material witnesses to the success of his claim especially where there is documentary evidence before me that the defendant judgment debtor acquired the plot from the same stool and the same people on the same date. He could have also called the artisans who put up the house per his instructions in support of his case.This notwithstanding the claimant failed to call these material witnesses in support of his claim for which same is fatal to his case”.
I understand the trial Judge to be saying since both parties are claiming ownership of the house and it is the appellant, who is the claimant, who needed to establish his claim by calling the artisans whom his father used to build the house. They become material witnesses to call to establish his claim that his father built the house for them. He also failed to call any witness from the vendors to establish they sold the land to their father. These failures to call any of those witnesses to establish his claim is fatal to his case and this assertion by the trial Judge was apt. See Nkrumah vrs. Foli [1982/3] GLR 1046, Abaidoovrs. Awortwi  GLR 383.
A person who makes an averment or assertion which is denied by his opponent has the burden to establish whether his averment or assertion is true and he does not discharge his burden unless he leads admissible and credible evidence from which the fact or facts he asserts can be properly and safely inferred. Failure of which the assertion is not true. See MemunaAmoudyvrs. Kofi Antwi  3 MLG 183 CAwhere it was held “A person who makes an averment or assertion which is denied by his opponent has theburden to establish that his averment or assertionis true. And he does not discharge his burden unless he leads admissible and credible evidencefrom whichthe fact or facts he asserts can be properly and safely inferred. Failure of which the assertion is not true”.
In the instant appeal, the respondent denied the appellant’s claim the house in issue was his and therefore he had the burden to establish that his averment or assertion that the house belongs to him is true. This the trial High Court held he failed to do.
The general principle of law is that it is the duty of a plaintiff, in this case the claimant, to prove his case, that is, he must prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defendant to lead sufficient evidence to tip the scales in his favour when on a particular issue the plaintiff leads some evidence to prove his claim - AbabiohvrsAkwasi III [1994/5] GBR 774-777
The oft quoted Majolagbe case says “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 for 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 into the witness box and repeating that averment or oath, or having it repeated on oath by his witnesses, he proves it by producing other evidence of facts and circumstances for which the court can be satisfied that what he avers is true”. See Majolagbevrs.Larbi  GLR 190 at 192.
The evidence therefore us from the Record of Appeal is that Grace Amoyaw also lived in the house in issue but because of some problems between her and the husband (PW2 left the house. PW2 in his evidence-in-chief said “I then move to live in same. This was in 2010. I later had problems with my wife which led to our separation which caused her to leave the house”. See [page 11 ROA]. This piece of evidence meant Grace Amoyaw was not a stranger to the house in issue.
Another issue that come to mind is whether the claimants were not aware the house was used as a collateral for this loan.
From the cross examination it appears PW2, Ernest Amoyaw was aware the wife had used the house as collateral for the loan or at least was encumbered for something bythe wife.
Q- You told the court the first time you saw a notice on the building was when you saw the fifanotice on the subject matter
A- There were many others
Q- Which means you were in the known so far as the pendency of the action between your wife and the plaintiff.
A- I known of the loan but I did not know she used the house as guarantee.
When PW2 said there were many other notices posted on ‘his’ house, what did he do as the owner. Did he make any enquiries as to why notices were posted on his house?
Regina Asamoah, the representative of respondent said in her evidence-in-chief “On one occassion she (Grace Amoyaw) even come with her uncle, the representative of the claimant in court who assured us that he would make sure the loan is paid so that we do not sellthe defendant’s attached house” – [page 15 ROA].
This piece of evidence was not challenged so we assume its admitted. That being the case it meant the claimant was aware of the transaction with the Respondent by their mother involving the house.In that case assuming it iseven true the house does not belong to Grace, the claimant had condoned with her to use it to obtain the loan and described same as hers. Even if they did not positively consent to it, by their actions they have acquised to it. From the evidence before us they knew or ought to have known that Grace usedthe house as collateral for the loan. There is default in payment and to avoid the house being auctioned they now claim the house is not for Grace.
I think the trial High Court Judge was right in his decision and I shall not disturb same.
That ground of appeal fails and same is hereby dismissed.
ADDITIONAL GROUND: - That the Learned Judge erred when he put the burden of proof on the claimant instead of the judgement debtor.
The trial court in its discretion made the claimant the plaintiff and made him commence the case as such.
I said earlier in this judgment that it is the plaintiff’s duty in all civil cases to prove his case on the preponderance of probability by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of fact is more probable than its non-existence. See Section 11-14 of the Evidence Act  (Act 323)
It is the claimant who is claiming the house in issue to be his and not judgment debtor so he bore the burden to establish same to the sanctification ofthe court. The judgment debtor denied the claimants claim sothe burden shifted unto the claimant to establish the assertion.The trial judge was thus right to shift the burden onto the claimant to establish this claim. That groundof appeal also fails and sameis dismissed.
On the first issue raised by counsel for the respondent about the fact that the appeal was filed out of time, C.I.47 Ord 44 R (13) (5) states:-
“An appeal against any judgment or order given or made under subrule (4) shall be filed within fourteen days (14) from the date of the judgment or order”.
The judgment of the High Court was 5th day of July 2015 and the appeal was filed on 23rd
July 2015, 14 days after 5th July should be 19th or 20th July and not 23rd July. There is nothing on record showing time had been extended or enlarged for the appellant by any court.
The law is trite that any appeal filed outside the statutory period without any valid extension of time was void – Tinadanavrs Chief of Staff &Attorney Gen. Supreme Court Civil Motion date 17th April 2011.
The courts are there to enforce the law and it is our avowed duty to make sure litigants play the game by the rules.
Ord. 44 makes it obligatory, a shall and so has no exceptions. Technically thereis therefore no appeal before this honourable court since that notice of appeal is void by law.
The appeal in its totality lacks merit and same is dismissed.