IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
IN THE MATTER OF THE ESTATE OF ABENA ASUBONTENG LATE - (Applicant/Appellant)
IN THE MATTER OF THE GRANT OF LETTERS OF ADMINISTRATION BY AISHA - (Claimant/Respondent)
DATE: 12 TH NOV., 2018
SUIT NO: H1/55/2017
JUDGES: ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
LAWYERS: ALFRED AGYEMANG GYIMAH FOR APPLICANT/APPELLANT. CLEMENT OWUSU SARPONG FOR CLAIMANT/RESPONDENT.
This is an appeal from the High Court Kumasidated Monday the 17th day of October, 2016. The Applicant/Appellant filed a motion on notice for an order to remove the caveat filed by the Caveator/Respondent, which was preventing her from administering the property of her deceased mother, Abena Asubonteng.
The Applicant/Appellant herein who is the daughter and customary successor of the deceased Madam Abena Asubonteng was granted Letters of Administration on the 23rd day of June, 2015 to enable her administer the estate of the deceased. The property which formed part of the estate of the deceased was a building described as H/No. Plot 18, Block1,Adumanu-Kumasi, Kumasi which was inventoried in the Applicant/Appellant’s motion for grant of Letters of Administration in the High Court, Kumasi. On the 22nd day of July, 2015, the Caveator/Respondent caused a caveat to be issued. The Caveator subsequently filed an Affidavit of Interest on the 19th day of January, 2016. In the affidavit of interest, the Caveator/Respondent advanced her claim to the property at Adumanu-Kumasi which was inventoried in the Applicant/Appellant’s motion for grant of Letters of Administration.
An application dated the 24th day of March, 2016 was brought on behalf of the Applicant/Appellant to the High Court, Kumasi for an order removing the caveat on the ground that the Affidavit of interest of the Caveator/Respondent did not raise any issue with the Applicant/Appellant as to her right to administer the estate of her deceased mother. The Caveator/Respondent filed an affidavit in opposition on 20th July, 2016 to the Applicant/Appellant’s application and attached “Exhibits OA2, OA3 and OA4” being a copy of Receipt allegedly executed by the deceased Madam Abena Asubonteng to the Caveator/Respondent for the sale of the building at Adumanu-Kumasi, an Allocation Note and Site Plan respectively, in the name of the Caveator/Respondent in proof of her title to the property at Adumanu-Kumasi.
The Caveator/Applicant filed a supplementary affidavit inopposition dated the 25th day of July, 2016 (see page 24 of the ROA) in which he alluded that the sole purpose of the application for grant of Letters of Administration by the Applicant/Appellant was to perpetrate fraud against the Caveator/Respondent when she had caused her son one Khalid Atta (now deceased) to dispose of the building at Adumanu-Kumasi to the Caveator/Respondent herein. Surprisingly, none of the documents attached to the Caveator/Respondent’s documents with regards to her alleged transaction in respect of the building at Adumanu-Kumasi bear the name of the Applicant/Appellant or the said Khalid Atta.
After the application was heard, the trial Court ruled in favour of the Caveator/Respondent. Being dissatisfied, the Applicant/Appellant appealed to this Court against the said ruling, canvassing the following grounds:
Grounds Of Appeal:
a. That the Court erred when it held that the Caveator had demonstrated by the exhibits he attached to his Affidavit in opposition to the Applicant’s application seeking leave to remove the caveat issued by the Caveator that he had proved unimpeachable title to the disputed property when the application called for a determination as to whether the Applicant, a daughter of the deceased was entitled to a grant of Letters of Administration.
b. That the learned judge erred in law when he held that his predecessor HIS LORDSHIP JUSTICE J. B. BOON wrongly exercised his discretion to direct the posting of the notices of grant of Letters of Administration for 14 (fourteen) days instead of 21 (twenty-one) days as he purported thereby to sit in appeal over the decision of a court of co-ordinate jurisdiction.
c. That the learned judge erred in law when he set aside the grant of Letters of Administration to the Applicant by his predecessor on the basis that the Caveator had title to the disputed land when the issue before the Honourbale Court was whether or not the caveat issued by the Caveator should be removed.
d. That the ruling is against the weight of evidence on record.
In this appeal, the Applicant/Appellant is hereinafter referred to as the Appellant, the Caveator/Respondent is hereinafter referred to as the Respondent, the House No. Plot 18 Block 1, Adumanu-Kumasi, is hereinafter referred to as the Property and the Record of Appeal is hereinafter referred to as the ROA.
The authorities are legion that an appeal is a way of rehearing. It is against this background that this
Court deems it timely to refer to Rule 8 of C.I 19 at this juncture. It states explicitly that:
“An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.”
In furtherance, Her Ladyship, Georgina Wood, CJ (as she then was) in the case of Agyeiwaav P & T Corporation (2007-08) SCGLR 968 @ 989, stated inter alia that:
“The well-established rule of law is that an appeal is by way of rehearing and an appellate court is therefore entitled to look at the entire evidence and come to proper conclusions on both the facts and the law”.
Again, it is settled law that an appeal to an appellate court is a way of rehearing and the appellate court, in addressing same, ought to consider the entire record before it so as to satisfy itself that the facts and the law are properly and adequately applied according to laid down principles and best practices and that the decision of the trial judge reasonably support the evidence on record. This position of the law was adequately demonstrated in the case of TuakwaV. Bosom [2001-2002] SCGLR 61, where the court held that;
“It was incumbent upon the appellate court in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision so as to satisfy itself that in a balance of probabilities the conclusion of the trial judge are reasonably or amply supported by the evidence.”
Since grounds (a) and (c) of the appeal are similar, this Court will consider them simultaneously first, before dealing with grounds (b) and (d) respectively:
Ground (a):That the court erred when it held that the Caveator had demonstrated by the exhibits he attached to his affidavit in opposition to the Applicant’s application seeking leave to remove the caveat issued by the Caveator that he had proved unimpeachable title to the disputed property when the application called for a determination as to whether the Applicant, a daughter of the deceased was entitled to a grant of Letters of Administration. And; Ground (c): That the learned judge erred in law when he set aside the grant of Letters of Administration to the Applicant by his predecessor on the basis that the Caveator had title to the disputed land when the issue before the Honourble Court was whether or not the caveat issued by the Caveator should be removed.
We wish to start our analysis of this ground with the oft quoted legal maxim: Nemodat quod non habet, whichliterally means that one cannot give what he or she does not have.
In his ruling, the learned trial Judge held at pages 33 and 34 of the ROA that “the fact in point 9 (of the Affidavit in Opposition) as to the caveator having acquired the property from the deceased, AbenaAsubonteng and having completed its construction and having, at least since acquisition somewhere in 2004, been in occupation of it, was not denied by the Applicant. So also was there no document referred to by the applicant as giving her title to the property as was done by the Caveator in the form of all the documents he filed after reference to documents had been made by Applicant’s own lawyer”. He further held that: “I am of the opinion that if the Applicant really had documents covering the property she would have made them available to her lawyer when the issue of ownership cropped up. Sadly, this was not done”. The learned High Court judge therefore fortified his decision by relying on section 23(5)of Land Title Registration Law, 1986 (PNDCL 152) and the case of Hayfron vEgyir [1984-86] GLRD/79,in which the Court of Appeal held that in a claim to land, a claim based on documentary evidence was preferable to one based on oral traditional evidence and physical possession.
However, in her Written Submission on behalf of the Appellant herein, Counsel argued at page 4; paragraph 2 that she disagrees with the learned trial judge where in refusing the Appellant’s application, the learned Judge held in paragraph 5 of pages 33 to 34 of the ROA that “there was no document referred to by the Appellant as giving her title to the property as was done by the Caveator in the form of all the documents he filed. That if the Appellant genuinely had documents covering the property she would have exhibited same”. Counsel further submitted on the same page that: “The Applicant/Appellant never disclosed in her application for grant of Letters of Administration that she had title to the property at Adumanu. The basis for her application was for the court to clothe her with capacity to deal with the property at Adumanu which formed part of her deceased mother’s estate”.
In the case of Re Asere Stool; NikoiOlaiAmontia IV (Substituted By TafoAmon II vAkotiaOworsika III Substituted By LaryeaAyiku III (2005-2006) SCGLR 637 it was held that:
“Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct”.
Since Counsel has admitted that the Appellant never disclosed that she had title to the property, why then did she include same in the list of the inventories of her deceased mother’s estate for the Court to clothe her with authority to administer? Matters of title and capacity are very fundamental and crucial in the successful determination of a case.
Counsel further averred at page 4; paragraph 3 of her written submission that, “the Appellant herein is under no obligation to produce documents covering the properties which formed part of her deceased mother’s estate”.
This statement made by Counsel for the Appellant was unfortunate. This is because, in litigation over a property, proof of unimpeachably valid title is what would persuade the Court to decide in one’s favour. Evidence is the rule of the game of litigation in court. We are of the candid view that, the Appellant has the burden producing credible and admissible evidence in order to make her case stronger.
The law is settled that 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. [See: Ababio vAkwasi II [1994/5] GBR III 174].
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. [See:In Re AshalleyBotwe Lands; AdjeteyAgbosu&Ors vKoley&Ors [2003/4] SC GLR 420].
Counsel further argued at page 5; paragraph 1 of her written submission that: “The only determination to be made by the High Court, Kumasi was who among the parties was entitled to the grant of Letters of Administration and not the person who had title to the building at Adumanu. The High Court, Kumasi exceeded its jurisdiction when it delved into matters concerning the ownership of the property at Adumanu which was not properly before it to consider”. On this position Counsel cited the case of Re Agyepong(Deceased); Donkor and Others vAgyepong (1973) 1GLR (CA) at page 326where the issue of who to grant letters of Administration to arose before the Court and the Court held inter alia at page 334 that it was satisfied that there was no conflict in the Court below as to who was entitled to administer the estate on the ground that the affidavits of interests filed by the three Caveators did not raise any issue with the Respondent as to her right to administer the estate. Counsel further supported her argument by saying that; the issue of ownership or title to property cannot be raised by a caveat for the determination by a court and to that effect cited the case ofRe GyanFosu (Deceased); Boafo vAkwatia-Penkoh III (1974) 1 GLR (CA) at page 145, where it was held that in a determination of the issue as to who was entitled to Letters of Administration in summons under L.N. 140A, Order 60 r 21(2), the Court should not couple that determination with that of ownership of properties listed in the inventory. The issue of ownership of disputed properties should be left at large and determined in appropriate proceedings if the parties so desired.
At this juncture, we are tempted to remind Counsel on the objectives of C.I. 47 which is to the effect that litigation must come to an end in order to avoid unnecessary cost and to save time among other things.[See: Order 2 rule (1) sub-rule (2) of C.I. 47]. Again, the L.N. 140A represents the old position of the law. The law has moved on, hence the inception of the C.I. 47. The law now promotes a faster and less expensive adjudication of cases. This will help bring litigation to a reasonable end and more affordable for all.
Also, the ROA before us did not evince that the Respondent was challenging the validity of a Will if any at all.
Counsel further shot herself in the foot at page 6; paragraph 1 of her written Submission, where she cited and relied on the case of Re Kumi (Deceased) vNartey (2007/2008) SCGLR at page 625, where it was held in holding 4 of its decision that a challenge to a specific devise in a Will does not affect the validity of the Will. That such a Will according to the Court, could be admitted to probate while the action is taken to determine the ownership of such property.There was no Will in the instant case and also, the Respondent herein was not challenging the validity of Will, granted that the deceased died testate. All what the Respondent was saying is that the Appellant should produce a better title to that particular property she inventoried for the grant of the Letters of Administration. We are of the view that, this argument boil down on Capacity and same must be determined by the Court before further proceedings.
In ouropinion, we believe that counsel for the Appellant is misleading the Court in relying on the above authorities that she has cited in support of her argument. This is because the facts of the above mentioned cases on one hand are different from the facts of the instant case on the other hand, hence both cases are distinguishable. It is evident on the ROA that unlike the cases of Re Agyepong (supra); Re GyanFosu (supra); and Re Kumi (supra) where the issues were who to grant the Letters of Administration; in the instant case the Caveator was rather challenging the inclusion of the Property that the Appellant has no title or interest in. The simple question to answer in the instant case is whether or not the Property in contention belongs to the estate of the deceased. In other words, whether or not the Appellant herein has the interest in or title to the said Property inventoried for which she wanted the Court to clothe her with the capacity to administer? Basing our answer on the nemodatquod nonhabet principle, the Appellant herein has no proof of evidence of such interest in or title to the said Property. This is because a thorough scrutiny of the ROA indicates that title to the Property has been divested from the deceased to the Respondent when same was purchased by the Respondent for valuable consideration of One Hundred and Fifty Million Cedis (GH₵150,000,000.00). Therefore the Appellant, being the daughter of Abena Asubonteng(deceased) cannot claim title towhat her mother does not have title toin her lifetime. This is because one cannot give what he or she does not have. In other words, Abena Asubonteng (Deceased) cannot devise what she did not have title to or interest in to her children, in this case the Appellant herein.
Again, we agree with the learned trial judge on the footing that the unchallenged exhibits (Exhibits OA2, OA3 and OA4) being a copy of Receipt allegedly executed by the deceased, Abena Asubonteng to the Respondent for the sale of the Property; the Allocation Note; and the Site Plan respectively, that were attached by the Respondent to his affidavit in opposition on 20th July, 2016 to the Applicant/Appellant’s application, are clear documentary evidence that the Appellant herein does not have any better title to the said property. Also, the Appellant has not disputedthe validity of all those documents by adducing a more authentic and superior title to that effect.
Capacity goes to the root of any litigation. Therefore, when the issue of capacity in any court action arises; whether unpleaded or pleaded by any of the adversary, same must be determined by the court first before proceeding to hear the substantive issue.
We are therefore of the opinion that the Respondent herein had proved unimpeachable title to the disputed property and therefore same cannot form part of the deceased person’s estate and so must be removed from the list of inventories prepared by the Appellant or the Appellant must adduce a superior title than that of the Respondent to it.
Also, the learned judge was right in law when he set aside the grant of Letters of Administration by his predecessor to the Appellant on the basis that the Respondent had title to the disputed land and therefore the caveat issued by the Appellant should be removed for proper determination of the case on merit.
Upon a careful study of the ROA, we are satisfied that, the Appellant herein, a daughter of the deceased was not entitled to a grant of the Letters of Administration as per the circumstances of the instant case. The learned trial judge was right to allow the caveat to hold.
Ground (b): That the learned trial judge erred in law when he held that his predecessor His Lordship Justice J. B. Boon wrongly exercised his discretion to direct the posting of the notices of grant of Letters of Administration for 14 (fourteen) days instead of 21 (twenty-one) days as he purported thereby to sit in appeal over the decision of a court of co-ordinate jurisdiction.
There are plethora of judicial authorities that enunciate the principle that, when the law laid down specific procedure for performing a particular act, that must be followed religiously (i.e. strictly).
In the instant case, the dictum of the Supreme Court as demonstrated in the case of Boyefio v NTHC Properties Ltd (1996-97) SCGLR 531 that;
“The law was clear that where an enactment had prescribed a special procedure by which something was to be done, it was that procedure alone that was to be followed”, is inescapably applicable under the present circumstance.
On the issue for the grant of the Letters of Administration, we would make reference to Order 66 rule 9, sub rules (1) and (3); and rule 10, sub rules (1) and (4) of C.I. 47.
“9(1) On an application for the grant of probate or letters of administration, the Court may require evidence of the identity of the applicant in addition to that provided by the applicant, where such additional evidence seems necessary or desirable.
(3)The applicant shall make a declaration of the value of the property of the deceased and the Court shall as correctly as the circumstances allow ascertain the value.
We note that the position of Order 66 is given credence by the provision under rule 10 (4) as stated below:
“10(1) The Court shall not allow any grant of letters of administration to issue unless after the grant, notice of it is given for a period not less than twenty-one days, or such other period as the Court may order in the following manner..
(a) In the Court where the application for grant was made;
(b) In any public place within the jurisdiction of the Court where it is likely that the notice will be seen by those who may have an interest in the estate; and
(c) At the last known place of abode of the deceased in respect of whose estate the grant has been made.
(4)The Court shall afford as great a facility as possible for obtaining probate or letters of administration as is consistent with due regard to the prevention of error and fraud”.
Counsel for the Respondent seems to issue a word of caution to the court to be diligent enough when faced with the duty to grant probate of Letters of Administration to any applicant when he submitted at page 3 of his Written Submission as follows: “the effect is that the Court must be diligent enough to avoid fraud or error. The Court under the circumstance owe a duty to avoid it being used for fraud. Fraud in essence vitiates everything, it is to forestall fraud and error that notice has to be posted to ensure the attention of all interested parties and the public in general”. He further argued at the same page that “the fact is that the only property inventoried in the Application for the Letters of Administration did not form part of the estate of the deceased and that the value ascribed to it were false. They were fraudulent misrepresentation to secure the orders of the Court and to lay Claims on the property in question, of course the deceased never lived in the disputed property which was uncompleted in her life time”.
This assertion of alleged fraud was vehemently disputed by Counsel for the Appellant in paragraph 2 at page 7 of her Written Submission. She however argued in paragraph 4 (the last paragraph) at the same page that: “Order 66 rule (1) of C.I 47 gives the judge the discretion to alter the period within which the notice of the grant is given in the manner as specified supra. Therefore the trial judge erred in law when he stated in the second paragraph at page 34 of his ruling that it was a bad oversight of the High Court to have specified that the notice of the grant of Letters of Administration to the Applicant/Appellant be posted for 14 days instead of 21 days which according to him was in contravention with Order 66 of the High Court Civil Procedure Rules, 2004 (C.I.47)”.
This Court is of the candid view that the learned trial Judge has erred in his judgment found in paragraph 2 of page 34 of the ROA, when heheld inter alia that: “…let me state that it must have been an oversight of this court to have allowed the grant of the Letters of Administration to issue in the first place when notice of it had not been given for not less than 21 days as directed by Order 66 rule 10 sub rule (1) of the Rules of the High Court (C.I. 47)”. It is quite plain from the record that the Court Order specified 14 days. This was bad oversight.”
The learned trial judge went further in the same paragraph and page and said as follows: “Also relevance is Order 66 rule 10 sub rule (3) which appears to me not to have been strictly observed… i.e.the Court shall not allow any grant of probate or letters of administration to issue until all inquiries which it sees fit to make have been answered to its satisfaction”. According to the trial judge, due diligence was not done by the Court under the circumstances and therefore, he was not impressed. We however share a different opinion from the learned trial judge to the extent that the first learned trial judge has exercised his discretion rightly within the scope of the law.
The judicial authorities are indeedlegion that the judge who is supposed to know the law has the right to apply it. This is so even if the law is unknown to the parties or they misconceive it (See: Seraphim v Amua Sakyi  2GLR 132).
We also observed from the ROA that the first trial judge has exercised his discretion properly as demanded by the facts of the instant case and same must be allowed to prevail.
We note that, Article 296 of the 1992 Constitution of Ghana, has clear guidelines on the excise of discretion.When a person is vested with a discretionary power, the Constitution enjoins that:
(a) “The discretionary power shall be deemed to imply a duty to be fair and candid;” and
(b) “The exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislike and shall be in accordance with due process of law.”
Indeed, case law have further provided for clear guidelines as to the exercise of discretion by people in authority when making decisions. In Komegbe v The Republic  2 GLR 170, the Court per Andoh J (as he then was) adopted the meaning of “discretion” propounded by Lord Halsbury LC in Sharp v Wakefield AC 173 at 179, HL where he stated thus:
“…‘discretion’ means that when it is said that something is to be done according to the rules of reason and justice, not according to private opinion that ….according to law, and not honour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself.”
We are of the candid view that the first learned trial judge applied the law as he ought to have done under the circumstances. By directing the posting of the notices of grant of Letters of Administration for 14 (fourteen) days instead of 21 (twenty-one) days does not constitute a fragrant breach of the law as alleged by Counsel for the Appellant.
This is because the first trial judge in our view exercised his discretion within the spectrum of the law. Thus the direction by the judge to post the letters of administration for 14 days instead of 21 days is not fatal in this instance. This court therefore accedes to the prayer of the appellant to allow this ground. This ground is accordingly allowed.
Ground 4: The judgment is against the weight of evidence on record.
It is trite law that where a party is of the view that the judgment is against the weight of evidence, there is a burden imposed upon him to substantiate the allegation. In Conduah, Ex Parte Aaba (substituted by) Asmah [2013/2014] 2 SCGLR 1032 (Holding 2), the Supreme Court held that:
“The effect of an appeal on the ground that the judgment is against the weight of evidence was to give jurisdiction to the appellate court to examine the totality of the evidence before it and come to its own conclusion on admitted and undisputed facts. In the instant case, the Appellant, by that ground of appeal, was implying that there were pieces of evidence on record which, if applied properly or correctly, would have changed the decision in his favour; or that certain pieces of evidence have been wrongly applied against him. The onus in such an instant was on the Appellant to clearly demonstrate to the appellate court the lapses in the judgment being appealed against. Akufo-Addo v Catheline  1 GLR 377; and Djin v Musah Baako [2007-2008] 1 SCGLR 688 cited”.
Also, in the case of Tonado Enterprise and others V. Chou Sen Lin [2007-2008] SCGLR 135, the court stated that:
“When a party in a ground of appeal states that the judgment is against the weight of evidence he imposes upon himself the onus of satisfying the appellate court that the evidence let in the trial was not such as to warrant the findings made on it”.
In the instant case, Counsel for the Respondent herein on this omnibus ground canvassed the following argument in paragraph 2 of page 6 of her Written Submission as follows:
“In the Caveator/Respondent’s Affidavit of interest it was alleged in paragraph 5 of that document that the deceased Madam Abena Asubonteng by a receipt duly executed by her transferred her interest in the building at Adumanu to one Josephine Osei who is now the bona fide owner of the said property….A cursory look at “Exhibit OA2” reveals that the document was signed on behalf of
Madam Asubonteng even though the content of the same suggests that the document was prepared by the deceased herself. There is nothing on the face of that exhibit which reveals that the deceased appointed someone to prepare “Exhibit OA2” on her behalf. There is nothing linking the deceased to the purported sale of the building at Adumanu”. According to the Appellant, it is based on this reasoning that they maintain that the ruling in itself is against the weight of evidence provided by the Appellant which the High Court heavily relied on in delivering its ruling.
The appellant herein 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 the omnibus ground is now trite. The authorities are therefore legion that 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 v Musah Baako [2007/08] SC GLR 686,
(ii) Tuakwa v Bosom [2001/2] SC GLR 6,
(iii) Owusu-Domena v 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.
A thorough study of the ROA indicates that the evidence on record as provided by the parties commensurate the ruling given by the learned High Court Judge. In our candid opinion, the learned High Court judge did not err in any way in his ruling on the instant case.
We think that this argument advanced by the Appellant herein is an afterthought. This Court expects the Appellant not to impeach the admissibility and credibility of “Exhibit OA2”, but also, “Exhibits OA3 and OA4” as well which are equally in the possession or custody of the Appellant herein. This is because on the face of the ROA, the Appellant was not able to produce any title; superior or inferior to challenge the one heavily relied on by the Respondent herein. We wish to remind the Appellant that, the Courts are courts of evidence. It is on the basis of admissible and credible evidence that the courts are able to give fair rulings as done in the instant case. There is therefore nothing on the face of the ROA that shows that indeed the ruling of the learned judge was against the weight of the evidence on record as alleged by the Appellant herein and has want the court to believe.
We are not tempted in any way to allow this ground of appeal. This ground of appeal is also dismissed.
With the exception of Ground B of the appeal, we do not have any justification to disturb the judgment of the trial judge. For these reasons, the decision of the High Court dated 17th October, 2016 is affirmed in part, by allowing Ground B and dismissing the rest of the grounds.
MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]
I AGREE K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I ALSO AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]