IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
MARY AKYAA BOAKYE - (Plaintiff/Appellant)
THE PRESIDING BISHOP OF THE METHODIST CHURCH - (Defendants/Respondents)
DATE: 26 TH July, 2018
SUIT NO: H1/29/2018
JUDGES: F.G. KORBIEH J.A. (PRESIDING), CECILIA SOWAH (MRS) J.A, HENRY A. KWOFIE J.A.
KWABENA BOYE ADJEKUMHENE FOR THE PLAINTIFF/APPLICANT
AMINA ALI ISSAKA FOR THE DEFENDANT/RESPONDENTS
HENRY KWOFIE J.A.
The present appeal has been launched by the plaintiff/appellant against the judgment of the High Court delivered on 22nd September 2016.
The trial High Court in that judgment dismissed all the plaintiff/appellant’s claims and entered judgment in favour of the defendants/respondents on their counter-claim.
Dissatisfied with the said judgment, the plaintiff/appellant (hereinafter referred to as the plaintiff) launched the instant appeal on 20/12/2016 initially on the following grounds:
a) The judgment is against the weight of evidence.
b) Further grounds of appeal would be filed upon receipt of the record of proceedings.
Subsequently the plaintiff with leave of this Court filed the following additional grounds of appeal on 8th February 2018:
a) The trial Court judge misdirected herself in law on the application of the principle of estoppel against the plaintiff.
b) The trial judge erred when she failed to establish the ownership of the properties in issue.
c) The decision of the trial Court that the plaintiff has only a life interest in House No. 29 Volta Avenue, Nhyiaeso, Kumasi is unsupportable in law.
d) The decision that the demand for payments of monies advanced by the plaintiff to the testator even if valid was statute barred is erroneous and not supportable in law.
e) The decision that the property which was devised under the Will to the Plaintiff was duly vested in her was erroneous.
f) The decision by the trial Court that the Testator during his lifetime exercised control over his properties to the exclusion of the Plaintiff was not supported by the facts on record.
g) The trial High Court judge misdirected herself when she made the decision that property with H/No. 6/14 Walker Avenue, Airport Residential Area formed part of the Testator’s family property.
h) The trial Court judge erred when she decided that the signatures of the Testator on Exhibits D and D1 were markedly different from what occurs on the Will without taking into consideration the usual manner in which the Testator had been writing to the Plaintiff.
i) The trial High Court erred when it stated that the Plaintiff has not been able to adduce any evidence on the gift of the filling station by the Testator to her when indeed evidence on record suggested otherwise.
j) The trial Court erred when it ordered that the Plaintiff should render accounts to the defendant without having considered the position of the Plaintiff in those properties during the lifetime of the Testator.
The reliefs sought from the Court of Appeal is an order to set aside the Judgement of the High Court dated 22nd September 2016.
Before dealing with the arguments advanced in support and against this appeal, I will give a brief background of the case.
By an amended writ of Summons filed on 13/01/2016 the Plaintiff herein claimed against the defendants jointly and severally the following reliefs:
a. A declaration that the underlisted properties mentioned could not properly form and was not part of the estate of the late Edward Osei Boakye, hence the inclusion of same in his last Will & Testament of 10th May, 1997 was unlawful:
i. Furniture Joinery & Construction Co. Limited, Plot No. 3, Brewery Link, Adabraka.
ii. Property with H/No. 29, Volta Avenue, Kumasi
iii Property with H/No. 6 or 14 Walker Avenue, Airport Residential Area, Accra
iv. Property with H/No. 34, Block B, Old UAC flats, Kumasi
v. Property with H/Nos. 13, 14 and 15 Block F, Oforikrom Factory, Kumasi
vi. Petrol Station, (Total Filing Station), United Mattress House, Industrial Area, Kaneshie Accra.
b. A declaration that the Plaintiff owns 49% shares in the company, Furniture Joinery & Construction Co. Limited, Plot No. 3 Brewery Link, Adabraka, Accra.
c. A declaration that the deceased’s part of the shares in Furniture Joinery & Construction Co. Limited, Plot No. 3, Brewery Link, Adabraka, Accra falls into intestacy as the deceased sought to devise the company but not his shares in same.
d. A declaration that the plaintiff is the owner of properties listed in (ii) and (iii) in relief (a) above.
e. An order directed at the defendants to pay to the Plaintiff an amount of US$470,000 being the proceeds realized from the sale of Property with H/No.6 or 14 Walker Avenue, Airport Residential Area, Accra belonging to the Plaintiff which was sold by the deceased to revamp other investments.
f. Interest on the amount in relief (e) above from the year 2004 at Commercial Bank rate till date of final payment.
g. An order revoking the Probate granted in relation to all the properties listed in relief (a) and a further declaration that the vesting of same under the said Will is null and void.
h. A declaration that the Plaintiff as a child of their late mother owns the properties listed as (iv) and (v) in relief (a) with his deceased brother as tenants in common.
i. An order directed at the Defendants to vest the properties in reliefs (a) in the name of the Plaintiff.
j. An order directed at the Defendant to render proper accounts of all rents and fees received in relation to these properties.
k. An order directed at the Defendants to make adequate provision from the estate of the deceased to the Plaintiff in place of Property with H/No. 29, Volta Avenue, Kumasi, which belongs to the Plaintiff but was bequeathed to her under the Will of her late brother.
l. An order of perpetual injunction restraining the Defendants, their agents, assigns, and whosoever may derive an interest from them from interfering with the said properties in anyway whatsoever.
m. Costs including Counsel legal fees.
The original plaintiff in the case Mary Akyaa Boakye and the late Edward Osei Boakye (referred to as the testator) were siblings. The testator popularly called Boakye Mattress died on 21st August 2006.
The testator left a Will dated 10th May 1997. The case of the original plaintiff as can be gathered from the pleadings and the evidence is that the testator in his last Will and Testament included properties which did not belong to him. The properties according to the claim can be grouped or classified as follows:
1. Those the plaintiff claimed belonged to her personally namely:
i) Shares in Furniture Joinery and Construction Co. Ltd part of which the plaintiff claimed she owned.
ii) House No. 29 Volta Avenue Kumasi which was devised to the plaintiff for life in the Will but which plaintiff claims to be her self-acquired property.
iii) Proceed from the sale of House No. 6 or 14 Walker Avenue, Airport Residential Area, Accra which plaintiff claims to be her self-acquired property.
iv) A fuel filling station located at United Mattress House, Industrial Area, Accra which the plaintiff claims was gifted to her intervivos by the testator in his lifetime.
2. Property situate at No. 13, 14, and 15 Block F, Oforikrom Kumasi which the plaintiff claims was the property of their late mother gifted to their mother by her late mother’s husband.
3. H/No. 34 Block B UAC Flats, Kumasi which the plaintiff also claims as land which had been acquired by their late mother and previously had two buildings thereon before her mother permitted the testator to build on the vacant portion of the property.
On the other hand, the defendants denied the plaintiff’s claims and contended that the plaintiff had sought to benefit from the Will complained of and as such she was estopped from making the current claims. They also pleaded that the action relating to the demand for the payment of any debt owed is statute-barred. The defendants accordingly counter-claimed against the plaintiff as follows:
a) An order directing the plaintiff to fully account for all moneys, assets, and for rent received from tenants in occupation of property forming part of the estate of the late Edward Osei Boakye and further order directing the plaintiff to refund such moneys, assets or rent to the defendants.
b) A declaration that the plaintiff has only a life interest in House No. 29 Volta Avenue, Nhyiaeso,
Kumasi and that after her life interest, the property reverts to the 4th defendant in accordance with the Will of the late Edward Osei Boakye.
c) An order of perpetual injunction restraining the plaintiff, her agents, and assigns from interfering with the properties devised to the 4th defendant under the Will of the late Edward Osei Boakye.
d) Costs on full indemnity basis.
The original Plaintiff Mary Akyaa Boakye died during the pendency of the suit and was substituted by his son the present plaintiff Yaw Addei Boakye.
At the trial, the present plaintiff Yaw Addei Boakye gave evidence per his witness statement attached to which were several documents tendered but did not call any other witness. The defendants gave evidence though Gerald Hilary Osei Boakye, a son of the deceased testator. He also tendered several documents in evidence but did not call any other witness.
Counsel for the plaintiff/appellant (hereinafter referred to as the plaintiff) argued grounds b) c) and
together that is to say the trial judge erred when she failed to established the ownership of the properties in issue; the decision of the trial Court that the plaintiff has only a life interest in House No. 29 Volta Avenue, Nhyiaso Kumasi is unsupportable in law and the trial High Court judge misdirected herself when she made the decision that property with House No. 6 or 14 Walker Avenue, Airport Residential Area formed part of the testator’s family property.
Counsel argued that at the heart of the Plaintiff’s claim at the Court below was the contention that she was the true owner of the properties in issue. Counsel submitted that in proving that House No. 29 Volta Avenue Kumasi was her self-acquired property the plaintiff tendered in evidence Exhibit E series i.e. Exhibit E, E1, E2, E3, E4 and Exhibit 5 to prove her claim. In respect of House No. 6 or 14 Walker Avenue Airport Residential Area Accra, Counsel submitted that the plaintiff tendered Exhibits G,H,J,K,L and M. Counsel submitted that in face of the unimpeachable documentary evidence provided by the plaintiff in support of her claim, it was erroneous for the trial judge to have rather agreed with the defendants position that in order to escape political persecution, the testator put the properties in the names of nominees and that explains why the plaintiff had been unable to produce any original conveyancing document in respect of the properties. He further submitted that the authenticity of the evidence adduced by the plaintiff in claiming the said properties cannot be denied and that the evidence on record presented by the plaintiff in asserting her claims to the properties was unimpeachable. Referring to cases like Fosua & Adu Poku Vs. Dufie (Deceased) & Adu-Poku Mensah (2009) SCGLR 310 and Hydrofoam Estates Ltd Vs. Moi Ashong (2012) 49 GMJ 107 counsel submitted that the trial judge’s views was against the time-honoured principle that a Court of law should lean more favourably towards documentary evidence especially if it was authentic and the oral evidence conflicting.
With regard to the plea of estoppel which is at the core of the defendant’s case, counsel for the plaintiff referred to the case Social Security Bank Vs. Agyakwa (1991) 2 GLR 192 and asserted that the best test which ought to have been used by the trial judge was whether her conclusion would occasion any injustice. He submitted that the conduct of the testator in devising properties which did not belong to him was illegal, unlawful and fraudulent and estoppel should not be used to authorise or justify such illegality.
Counsel for the plaintiff further contended that the trial judge erred in her application of the principle of estoppel in arriving at her decision to estop the plaintiff from making her rightful claims. Counsel maintained that the principle of estoppel is an equitable principle of justice and fairness and that in situations where its application would cause injustice, same must not be applied.
Responding to the arguments canvassed in support of these grounds of appeal, counsel for the Respondent submitted that all the properties disposed of in the Will of the testator were exclusively his personal properties. He further contended that the plaintiff’s statements, actions and conduct are supportive of the testator’s title or ownership of the properties devised in the testator’s Last Will.
Also the previous statements, actions and conduct of the plaintiff are contrary to the interests now being alleged in the suit rendering the suit wholly unsustainable in fact and in law.
Counsel submitted that after the funeral of the testator, announcements were made inviting all creditors and debtors of the deceased to come forward and prove their claims or settle their debts. Similarly, the executors made a publication in the Daily Graphic inviting all creditors or claimants to submit their claims to the executors within a month of the publication prior to the distribution of the estate. Not only did the appellant fail to bring up any of the present claims the subject matter of this action but rather wrote several letters to the executors complaining of a variety of issues. Counsel submitted that one of such letters written and signed by the plaintiff on behalf of the Head of family demanded that the lawyer engaged by the executors be withdrawn and a lawyer approved by the family be appointed in his stead to apply to the High Court for probate. Counsel for the respondent further asserted that the plaintiff before instituting the suit that has culminated in this appeal instituted an earlier action against the executors of the last Will and did not in that suit raise the issue of the ownership of these properties in dispute. Counsel contended that the trial judge was right after a review of all documentary evidence led in finding that the acts, statements and omissions of the appellant gives rise to the operation of the doctrine of estoppel by conduct. Further, that the actions, declarations and conduct of the appellant before and after the grant of probate intentionally and deliberately confirmed that the Testator was the exclusive owner of all the properties mentioned in the Last Will and Testament of the testator. With specific reference to the evidence adduced by the appellant in support of her claims to the properties, counsel for the Respondents submitted, that assuming without admitting that the appellant was not estopped from raising any issues pertaining to the dispositions in the Will of the Testator, the appellant had still failed to meet the standard of proof required to prove ownership of the properties in dispute. He submitted that the appellant’s exhibits E series fall short of the standard of proof required to establish ownership of or secure a declaration of title to land.
PROPERTY WITH HOUSE NO. 29, VOLTA AVENUE KUMASI. The plaintiff in his evidence stated that the said House No. 29 Volta Avenue Kumasi devised to the deceased plaintiff for life under clause 17 of the Last Will of the Testator was indeed the self-acquired property of his mother the deceased plaintiff. In paragraph 8 of his witness statement (at pages 298 of the ROA) the plaintiff stated:
“8 That property with H/No. 29 Volta Avenue Kumasi is my late mother’s personal property she personally put up on a parcel of land she acquired from the Government of Ghana in the year 1970; however same was included in the last will of the deceased.
Attached and marked Exhibits E, E1, E2, E3, E4 and E5 are copies of letters from the Ministry of Lands in Kumasi to the applicant on the offer a lease of the parcel of land, a letter of acceptance from the applicant to the Senior Lands Officer, Kumasi, site plan of the said land, an application by the applicant to the Kumasi Metropolitan Assembly to construct a dwelling house on the said land and a building permit by the Kumasi Metropolitan Assembly to the applicant to construct a dwelling house respectively”
Exhibit E is a letter from the Ministry of Lands Secretariat, Kumasi dated 31st March 1970 addressed to the deceased plaintiff Mary Akyaa Boakye which stated in part thus:
“I have to inform you that I am prepared to recommend the grant of a lease of the above-mentioned plot to you on the following terms.
Rent ¢132.60 per annum
Term 99 years from the date right of entry is authorised by Government.
Building Covenant To commence development within one year and complete within two years of the date of lease.
The lease will include such other covenants on the part of the lessee as Government may require and which are usual in leases of land of this nature. ……………………………………………
I have the honour to be Sir/Madam, your
Mary Akyaa Boakye ( )”
Exhibit E1 (page 310 of ROA) tendered by the plaintiff is a response to Exhibit E and is a letter of Acceptance from the Plaintiff to the Senior Lands Officer, Kumasi accepting the terms of the offer of the plot No. 29 Volta Avenue. Exhibit E2 is the Site plan of plot 29 Volta Avenue indicating that the plot belongs to the original plaintiff Mary Akyaa Boakye. Exhibit E3 is the Application Form for a Building permit (pages 312 and 313 of ROA) for the said plot 29. Volta Avenue also bearing the name of the original plaintiff. Indeed, also relevant is Exhibit E4 (317 of Record) dated 26/08/1975 the Building permit No. 218/74/1975 itself for the construction of House No. 29 Volta Avenue. Indeed, a search conducted at the Lands Commission as recently as 13th June 2016 attached to the plaintiff’s witness statement as Exhibit F (page 320 of ROA) in relation to plot No. 29 Volta Avenue Kumasi states clearly that “the plot is the subject matter of a lease and made between the Government of the Republic of Ghana of the one part and Mary Achiaa Boakye of the other part for a term of 99 years form 1st April 1970………….”
In relation to the said House No. 29 Volta Avenue Kumasi the defendants pleaded as follows in paragraph 20 of their statement of defence as follows:
“20. The defendants in further denial state that the testator in an attempt to insulate himself against unlawful confiscation of his assets and other acts of victimisation under unstable political regimes of the past, acquired landed properties in the names of his children and other family members but was at all times in complete control and possession of these properties. The inauguration of House No. 29 Volta Avenue as the official residence of the testator was widely patronized by several dignitaries and family members”.
Under cross-examination the defendant’s main witness Gerald Hilary Osei Boakye was asked as follows:
Q. Kindly take look at Exhibit F dated 13th June 2016 and it is from the Lands Commission is that not so
A. Yes my Lord
Q. Can you read the content of Exhibit F
A. witness reads Exhibit F to the hearing of the Court
Q. From what you have just read you would agree with me that property No. 29 Volta Avenue, Ridge, Kumasi is a lease in the name of your late auntie
A. Yes my Lord.
Q. I suggest to you that per Exhibit E series your late auntie took steps to put up property with House No. 29 Volta Avenue
A. I disagree with the suggestion mainly because of the following: family knowledge tells me that she was not around and she was abroad. Secondly because of those turbulent times and I am privy to the fact that my father would own property in the name of close relatives and mostly sometimes without even their knowledge to avoid unnecessary persecution of business men at that time. I also disagree because after the reading of the Will and in the Will this property was devised to my late auntie and so if you are suggesting she built it and owned it after the reading of the Will she would object to the inclusion of this property in the Will for her life time benefit only. That alone should have made her oppose that clause in the Will.
Her description of beneficiary in the will suggested that she accepted that property in the will and that was the only property that was given to her in the Will.
Q. Per your narration, are you suggesting to the Court that a person cannot put up a property whilst residing outside the country
A. My suggestion is that I was told but I made that you suggested that she authored it.
Q. Can you tell the Court the period that your late auntie was living abroad.
A. I cannot but I am aware that at the building of that property she was aware so if we are talking about building permit or plans, I will assume that she was away.
Q. You have also narrated to this Court that indeed it was usual of your late father to even own properties in the name of other persons without their knowledge in order to avoid persecutions.
A. Yes my Lord.
Q. Can you tell of any such arrangement apart from what you claim is in the situation of the deceased plaintiff
A. I cannot tell by house number or exact location but I knew of a couple involving my brothers
Q. If I am following you rightly, it means there are certain properties of your father which have the names of your brothers, is that not so.
A. Yes my Lord
Q. Did you bring any of such document to Court.
A. No my Lord.
The evidence on record also shows that House No. 29 Volta Avenue Kumasi was completed in 1974.
The record of appeal shows that sometime during the heady days of the Provisional National Defence Council (PNDC) rule this property House No. 29 Volta Avenue Kumasi and House No. 14 or 6 Airport Residential Area Accra both of which the plaintiff claims as her self-acquired property were confiscated to the state, ostensibly because they belonged to the testator E.O. Boakye.
In paragraph 14 of his witness statement the plaintiff stated as follows:
“14 That during the revolutionary days of the PNDC, the properties in paragraph 9,10 and 13 above were wrongly confiscated by the regime as forming part of the deceased testator’s properties.
However, my deceased mother incessantly petitioned the then President of the Republic and the Confiscated Assets Committee and later the properties were released to me.
Attached and as marked Exhibit N, N1, N2, N3, N4, N5, N6 and N7 are copies of petitions by my late mother to the then President of the Republic and the Committee letter confiscating the said properties, letter from Town and Country Planning confirming my late mother’s ownership of plot No. 29 to the Committee.”
The record is replete with copies of the various petitions sent to the office of the then President by the deceased plaintiff and also by her lawyers Mmieh & Co., Legal Practitioners, Kumasi see Exhibit N at page 336 of the Record of Appeal, Exhibit N2 at page 338 of the Record of Appeal, Exhibit N5 at page 341 and Exhibit N6 at page 342 of the Record. For the avoidance of doubt, I set out part of Exhibit N (page 336 of the Record) a petition sent by the original plaintiff to His Excellency the President:
PETITION BY MARY ACHIAA BOAKYE
PROPERTIES (1) NO. 4 – 14 AIRPORT
RESIDENTIAL AREA ACCRA.
(2) 29 VOLTA AVENUE, KUMASI
After exhausting all avenues with the C.A.C. I have decided to humbly petition you direct for your MERCY
1. I am a lady who has spent the best part of my life working in United States of America.
2. That through hard work I purchased the first property the document in respect of 29 Volta Avenue is with the C.A.C. The Kumasi property was finished in 1974.
3. That in 1979 these two properties were confiscated by the State on the grounds that they belonged to Mr. E.O. Boakye my elder brother.
4. That I have all the documents of these properties in my name and that it is never true that Mr. E.O. Boakye is the owner of these properties.
5. That several petitions by me have been refused by C.A.C.
6. That my mother who was 79 years died on Saturday the 7th April
7. That I have no place to lay her in state and to celebrate the funeral.
8. That my brother Mr. E.O. Boakye also has no property in Kumasi to lay our deceased mother in state and for the funeral.
9. That my mother was formerly living in this house from 1975 until she was forced out together with her grand-children in April 1987.
10. That I am really handicapped by the death.
11. I pray fervently that House No. 29 Volta Avenue in Kumasi be released to me to enable me lay my mother in state and to conduct a fitting burial and funeral for her.
Mary Achiaa Boakye
c/o Furniture & Joinery Co. Ltd
Indeed, Exhibit N7 is a copy of a letter from the Office of the President dated 2nd February 1998 by which House No. 6 Walker Avenue, Airport Residential Area Accra was deconfiscated and released to the owner, the original plaintiff Mary Akyaa Boakye with retrospective effect from 8th day of January 1998. It is in my view obvious that the said House No. 29 Volta Avenue Ridge Kumasi and House No. 6 or 14 Walker Avenue Airport Residential Area Accra which were wrongfully confiscated on the assumption that they belonged to the testator E.O. Boakye were deconfiscated and released to the original plaintiff Mary Akyaa Boakye as owner of those properties.
In his written submission, Counsel for the respondents submitted that the petitions sent to the Office of the President (Exhibit N series) in relation to the confiscation of House No. 29, Volta Avenue, Kumasi and House No. 6 or 14, Walker Avenue Airport Residential Area were not written by the plaintiff but rather by someone else using the name of Mary Akyaa Boakye. And yet Counsel failed to disclose the name of the person who he claims wrote those petitions using the name of the plaintiff Mary Akyaa Boakye.
It seems to me that in the face of the documentary evidence in Exhibit E series and the various petitions from the plaintiff to the office of the President (Exhibit N series) that led to the deconfiscation or release of House No. 29, Volta Avenue Kumasi and House No. 6 or 14 Walker Avenue Airport Residential Area, Accra to Mary Akyaa Boakye, the trial judges holding that the plaintiff could not prove ownership of these 2 properties cannot be correct.
For in the case of Fosua & Adu Poku Vrs. Dufie (Decd) and Adu-Poku Mensah (2009) SCGLR 310 it was held as follows:
“i) It was settled law that documentary evidence should prevail over oral evidence. Thus where documents supported one party’s case as against the other, the Court should consider whether the latter party was truthful but with faulty recollection”.
It seems to me that apart from the bare assertion by the defendants that in order to escape political persecutions, the testator put the properties in the name of nominees including the plaintiff was not proved for the defendants could on the evidence not show any property which the deceased testator had acquired in the name of any family member or any of his children.
The assertion that the testator had acquired properties in the names of family members and his children to avoid political persecution was capable of proof in a positive way for as was held in Magolagbe Vs. Larbi and Others (1959) 1 GLR 190 at 192.
“where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of thing, 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 on oath or having it repeated on oath by his witnesses. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true”
Indeed the defendants led no evidence to show that at the time of the acquisition of plot No. 29 Volta Avenue Kumasi the testator had gone through any political persecution. On the contrary, the evidence on record shows that the deceased testator held all his properties including factories and shares in companies in his own name. It is true from the evidence that after the 31st December Revolution in 1981 the testator went into exile and his properties were confiscated, but this was long after House No. 29 Volta Avenue Kumasi had been acquired in 1970.
The defendant had contended that the plaintiff was estopped by her previous conduct and statements from laying claims to these properties as she had failed to bring her claim to these properties to the notice of the executors and also in her earlier suit challenging the validity of the Testator Last Will and Testament.
In her judgment the trial judge in dismissing the plaintiff’s claim referred to previous correspondence between the plaintiff and the executors and also the previous conduct of the original plaintiff with regard to the estate including the judgment given in a previous action instituted by the plaintiff that culminated in the Court of Appeal judgment of 22nd November 2012 in Civil Appeal No. H1/177/2013 intitled Mary Akyaa Boakye and 3 Others Vs. The Presiding Bishop of the Methodist Conference 3 Others.
With regard to the defendant’s plea of estoppel it is important to refer to the view of Brobbey JSC in his book Essentials of Ghana Law of Evidence (2014) at page 3) where the learned justice stated that the general principles for the application of estoppel by conduct are predicated on the principle of fairness and justice. The learned author referred to the case of Social Security Bank Vs Agyakwa (1991) 2 GLR 192 as follows:
“The principle of estoppel by conduct was applicable only in those circumstances where it was just to invoke it, namely in those circumstances in which it would be unjust, inequitable and unconscionable to permit a party against whom a plea of estoppel by conduct was raised to go back on his words or invoking the plea of estoppel by conduct, one has to have regard to the circumstances surrounding the particular conduct which was the subject of the plea invariably each case has to be decided on its own merits.”
In my view on the particular facts of this case it would be inequitable and the height of injustice to deny the plaintiff ownership of House No. 29 Volta Avenue Kumasi.
In my view H/No. 29 Volta Avenue Kumasi was the property of the original plaintiff Mary Akyaa Boakye. Having regard to the view I have taken that the original plaintiff on the evidence was the owner of House No. 29 Volta Avenue, Kumasi means that the decision of the trial Court that the plaintiff has only a life interest in that house is erroneous and same is hereby set aside. In my view the fact that the executors had sought to vest the property in the original plaintiff by preparing a vesting assent which the evidence shows was unregistered should not detract from the original plaintiff’s ownership of the said property. Ground c) of the additional ground of appeal succeeds.
I now wish to deal with issue i) of the additional ground of appeal which is that the trial High Court erred when it stated that the plaintiff has not been able to adduce any evidence on the gift of the filling station by the testator to her when indeed evidence on record suggested otherwise. Although in the additional ground of appeal this is ground i), I notice that this ground is numbered (f) in the plaintiff/appellant’s written submission. Arguing this ground of appeal counsel for the plaintiff contended that the Total Filling Station located at United Mattress House, Industrial Area, Accra was purposely built for her and gifted to her by the testator and she had been in possession of same as far back as the year 2000.
He asserted that the plaintiff and her late mother and others went to the testator to thank him for the gift and the trial judge erred in rejecting that evidence.
On the other hand, counsel for the respondents argued that the status of a dealer is nothing more than a manager of a petrol station, who might be put in place by the owner of the station or by Total Co. Ltd. themselves. He said the eligibility to become a dealer is open to all and not tied to ownership.
Counsel further submitted that a close look at Exhibit P series will show that the appellant was described as the dealer and not the owner of the Total Filling Station.
In her judgment the trial judge was of the view that the premises was only rented by Elf (now Total) and that after the death of the testator, Total Ghana interrupted the business relationship with the testator and only paid rent to the executors after they had obtained probate.
Thus, the basis of the plaintiff’s claim to the Total Filling Station at Mattress House, Industrial area is that it was gifted to the plaintiff by the testator and the plaintiff and others including her mother gave aseda to the testator in his lifetime.
In the case of Yoguo Vs. Agyekum (1966) GLR 482 at 493, Ollenu J (as hen then was) stated thus with respect to what constitutes valid customary gift as follows:
“A valid gift under customary law is an unequivocal transfer of ownership by the donor to the donee, made with the widest publicity which the circumstances of the case may permit. For purposes of the required publicity, the gift is made in the presence of independent witnesses, some of whom should be members of the family of the donor who would have succeeded to that if the donor died intestate and also, in the presence of members of the family of the donee who would also succeed to the donee upon the death of the donee on instestacy” see earlier decision in Summey Vrs Yohuno (1960) GLR 68”.
In effect, the broad essentials of a valid gift at customary law is that i) there must be a clear intention on the part of the donor to make the gift ii) publicity must be given to the gift and iii) the donee must accept the gift by himself giving thanks offering or aseda or enjoying the gift. As noted in the case of Abdul Rahman Vs. Baba Ladi Civil Appeal No. J4/36/2013 27TH July 2013 (unreported), the most important element of a customary gift that runs through the decided cases is that:
“The gift must be offered and accepted and must be witnessed by somebody else other than the donor and the donee.
The need for a third party as a witness is important because when the gift is challenged, it will not be sufficient to state barely that the gift was made; the claimant has to go on to show the occasion, if any, on which the gift was made, the date, the time, if possible, the venue and must importantly, in whose presence it was made”.
I think the requirements of a valid customary gift as laid down makes a lot of sense as in the event of the gift being challenged, most invariably after the death of the donor, those in whose presence the gift was allegedly made could be called to give evidence as witnesses. Although the plaintiff claimed she gave thanks offering or aseda to the testator in his lifetime in the presence of witnesses including her own mother, none of these witnesses were called to testify in support of the alleged gift. Although the plaintiff said that she had been in exclusive possession of the filling station, in this case, I think evidence of user alone was not sufficient as the evidence shows that merely being a dealer or manager of a filling station was not sufficient evidence or synonymous with ownership of same. Ground i) of the additional grounds of appeal fails.
I now turn to ground h) of the additional ground of appeal which is that the trial judge erred where she decided that the signature of the testator on Exhibits D and D1 were markedly different from what occurs on the will without taking its consideration the usual manner in which the testator had been writing to the plaintiff. Exhibit D and D1 it would be recalled are letters supposedly from the deceased testator to the plaintiff dated 28th September 1972 and 18th November 1976 at page 307 and 308 of the Record of Appeal.
These letters are written on letterheads of Furniture Joinery and Construction Co. Ltd. Exhibit D is simply signed:
Exhibit D1 is signed:
Exhibit D is headed “Certificate of Receipt” and the writer acknowledges withdrawing an amount of $14,023.75 which is a 50:50 joint account held by the writer and the plaintiff from Cleveland Trust Company. It also acknowledges receiving $49,800 provided by the plaintiff to be used to settle returned cheques regarding SFJC. Exhibit D1 is a letter allegedly from the testator to the original plaintiff requesting her to come home to assist in the Mattress Factory as well as the Furniture Factory and acknowledging the sacrifice the plaintiff had made in the payment of the Furniture Centre.
These letters Exhibit D and D1 were tendered in support of the plaintiff’s claim that she owned 49% shares or interest in the Furniture Joinery and Construction Co. having invested a lot of money in it.
The authenticity of these letters were however disputed by the defendants who contended that the signatures on the 2 letters are not the known signatures of the testator.
In her judgment the trial judge after examining Exhibits D and D1 stated as follows at page 470 of
Record of Appeal:
“I have also had occasion to study the said documents, albeit not in the original form. It is very apparent, though, that the signatures purporting to have been that of the Testator are markedly different from what occurs on the Will. The substituted plaintiff acknowledges this in cross-examination.
The explanation given by the substituted plaintiff in his testimony is that the testator was writing to his sister in Exhibit D and D1. I find it quite unacceptable as an explanation. In the first place, if the testator was really writing a letter to his sister, would he need to sign it off as your Brother, Yaw Boakye only to proffer a signature, which is not his known signature. Would he also write a letter on the company’s letterhead which is not meant to be a formal or official one. In any case, there are ways of establishing the ownership and shareholding of a company which I do not think can by any stretch of the imagination be said to have been done in this instance. It would have served the plaintiff better if what had been offered in evidence had been some receipt, bank statements from the joint accounts in the Cleveland Trust Company referred to in Exhibit D, which she claims was her contributory capital, or even Company registration documents. As the evidence is now the documents are doubtful and are incapable of proving the claim of the plaintiff that she invested in her late brother’s business”
Having read and closely examined Exhibits D and D1, I cannot but agree with the trial judge’s views. There is no dispute that the known and admitted signatures of the testator is what appears in his last Will Exhibit A. The signatures on Exhibit D and D1 are so markedly different from that on Exhibit A that it would be dangerous to use those signatures as a basis to support the plaintiff’s claim of 49% shareholding in the Furniture Company. Ground h) of the additional ground of appeal has no merit and is dismissed.
I turn my attention to ground j) of the additional grounds of appeal that is the trial Court erred when it ordered the plaintiff to render accounts to the defendant without having considered the position of the plaintiff in those properties during the lifetime of the testator. Counsel for the appellant in his submissions in respect of this ground of appeal impugned the trial judge’s decision to grant an order for accounts in favour of the Respondents on the ground that by doing so the trial judge failed to take the plaintiffs position in those properties into account. The plaintiff’s position with regard to the various properties devised by the testator in his last Will has already been addressed earlier in this judgment.
Counsel for the plaintiff argued that the trial judge erred when she dismissed plaintiff’s claims and entered judgment for the defendants on their counterclaim as there was overwhelming evidence on record indicating that some of the properties being claimed by the appellant indeed belong to her. On the other hand, counsel for the respondents contended that since the appellant was not entitled to the monies collected from the estate of the testator, and in fact her actions in collecting rent are criminal, the rightful owner of the properties being the 4th respondent is entitled to retrieve the said monies from the appellant by way of account.
Per Rule 8(1) of the Court of Appeal Rules as amended, an appeal is by way of re-hearing. Counsel for the parties correctly stated the law as to what is required of an appellate Court when an appellant appealed on the ground that the judgment is against the weight of evidence. We are required to examine the entire record to ascertain whether the decision reached by the trial Court is amply supported by the evidence on record. Additionally, the appellant is under an obligation to pinpoint the lapses he is complaining about. See the cases of Abbey and Others Vs. Antwi (2010) SCGLR 17 at Aryeh & Akakpo Vs. Ayaa Iddrisu (2010) SCGLR 891. Oppong Vs Amarfi (2011) 1 SCGLR 556 and Oppong Kofi and Others Vs. Attibrukusu III (2011) 1 SCGLR 176 at 178.
I have gone through the Record of Appeal critically and I am of the view that the trial judge’s finding particularly that the plaintiff’s conduct in collecting rents from the properties of the estate without having been appointed administrator or executor was unlawful and amounted to intermeddling cannot be impugned having regard to Exhibit 15 series. Ground j) of the additional ground of appeal fails and is dismissed.
In respect of ground d) of the additional ground of appeal that is the decision that the demand for payment of monies advanced by the testator even if valid was statute barred is erroneous and not supportable in law, counsel for the plaintiff submitted that the plaintiff was claiming amounts of money owed to her by the defendants. That was a claim for the sum $470,000 being the proceeds realised from the sale of property with H/No. 6 or 14 Walker Avenue, Airport Residential Area Accra. On the appellants own evidence that property was sold by the testator in 2005.
Under cross-examination the appellant was asked:
Q. This debt of $475,000 can you tell the Court when the money was given to the late E.O. Boakye by Madam Mary Akyaa Boakye.
A. The witness refers to Exhibit M. The date is 16th January 2005
Q. And your uncle E.O. Boakye died in August 2006
A. That is correct.
Q. You will agree with me that on the date of his death payment of this debt should have accrued
A. That is correct
The parties were agreed that the payment of the said debt accrued in 2005, but it was not until 2015, 9 years later that this action was mounted.
The trial judge in her judgment took the view that the claim for the money was statute-barred. Having regard to Section 4(1) of the Limitation Act 1972 (NRCD 54) barring actions founded on simple or quasi-contracts after the expiration of six years from the date on which the cause of action accrued, the trial judge’s finding on that claim cannot be faulted. Ground d) of the additional ground of appeal fails.
With regard to the claims to House No. Block 34 Block B Old UAC Flats Kumasi and House No. 13, 14, and 15 Block F, Oforikrom Factory Kumasi, the basis of the plaintiff’s claim to those properties, was that they were family properties being originally owned by the mother of the testator and the original plaintiff. It is important to state that the plaintiff’s action was not commenced in her capacity as Head of family. She sued in her personal capacity. This raises a fundamental issue as to the capacity of the plaintiff to sue for those properties. But even more importantly the record shows that the plaintiff’s evidence in support of her claims to those properties fell far short of the standard required to discharge the evidential burden on her. In the case of Ackah Vs Pergah Transport Ltd and Others (2010) SCGLR 728 at 736 it was held as follows:
“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 facts in issue that has the quality of credibility, short of which his claim may fail …………it is trite law that 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 that its non-existence”
The appellant failed to lead any credible evidence to prove her assertion that these properties were the properties of her mother which she (her mother) permitted the testator to use. The claim of the plaintiff to these properties on these ground fail and is dismissed.
On the whole therefore save for ground c) of the additional ground of appeal relating to House No.
29, Volta Avenue, Kumasi, all the other grounds of appeal fail and are accordingly dismissed.
Relief (b) of the defendant/Respondent’s counter-claim relating to House No. 29 Volta Avenue Kumasi is accordingly dismissed. Save for these variation the judgement of the trial court is hereby affirmed.