IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
OBAAPANIN ABENA MANU & 43 ORS - (Plaintiffs/Appellants)
OPANIN KWAKU MENSAH & 4 ORS - (Defendants/Respondents)
DATE: 27TH FEBRUARY, 2018
SUIT NO: H3/58/2016
JUDGES: ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
LAWYERS: DR. ERNEST OWUSU DAPAAH FOR DEFENDANTS/RESPONDENTS
This is a story of a very loving family of brothers who did a lot in common. The story is told that they farmed together and acquired property together. These brothers, who I will describe as “ancestors” in this appeal, were the late Yaw Bour, Yaw Adusei, Kwadwo Adutwum, Amoako Atta Senior and Amoako Atta Junior.
The case of the Appellants is that the 1st Appellant is the surviving spouse of the Late Yaw Bour and the other Appellants are the children of the Late Yaw Bour, Yaw Adusei, Kwadwo Adutwum, Amoako Senior and Junior.
According to the Appellants their deceased fathers jointly acquired four different lands at PEPOSO and KUKUBOSO near Mpasatia, NTABAWU near Mankranso and ASUOKAW near Bibiani and cultivated cocoa farms on the said lands. The Appellants stated that their fathers and husbands jointly built a House at WADIE ADWUMAKASE for their family out of the proceeds of the said cocoa farms. The Appellants further stated that the deceased fathers subsequently jointly built House No. ME 32, Block 12, Manhyia Extension in Kumasi for them and their mothers. The said house is the subject matter of the instant action. The Appellants also contended that their deceased fathers lived in the disputed house with their wives including the Appellant and other Appellants during their lifetime until they died. The other wives are also dead leaving the 1st Appellant. The 2nd – 6th Appellants are at the moment living in their respective rooms in the house in dispute, the other Appellants having consented to their staying there.
It is also the case of the Appellants that the Late Amoako Atta Junior who was also one of the Appellants’ deceased father and a husband became old and unemployed. He therefore pleaded with the Appellants to be permitted to rent out the vacant rooms in the house to tenants to enable him make a living which request was consented and granted to him by the Appellants. The Late Amoako Atta Junior pursuant to the permission rented the vacant rooms to the Respondents who some of the Nephews and Nieces of the Appellants’ deceased fathers and a husband and other tenants.
According to the Appellants the Respondents are now claiming title to the house in dispute on grounds that it was their uncles being the Appellants’ deceased father who gifted it to them but the Appellants have vehemently resisted the Respondents’ claim. The Respondents have even asked the 2nd – 6th Appellants to quit their respective rooms for them to rent out the same to prospective tenants. The Appellants further stated that the Respondents have evinced a clear intention to eject the 2nd – 6th Appellants from their respective rooms in the house if not restrained by the courts. The rent advances of the Respondents have expired and the Appellants need the rooms for their own use since some of the Appellants are facing ejection by their respective landlords.
The Respondents resisted the claim of the Appellants. According to the Respondents, the Appellants’ deceased husband and fathers died on different dates. They stated that the deceased did everything in common during their lifetime and agreed that whatever properties they acquired become family property after their death. The Respondents also contended that each and every Appellant and their mothers have a share of their own rooms in the house in dispute as well as their own share of the cocoa farms and that the 2nd – 6th Appellants are still occupying their own rooms in the house without any disturbances and interruption. The Respondents initially stated that the Appellants are Ashantis and are governed by the matrilineal law of the Ashanti’s and that the applicable law during the death of the Appellants’ deceased father was the customary law in force at that time, and for that matter PNDCL Law 111 of 1985 is not applicable to this case. They further submitted that the system of inheritance in Ashanti is still matrilineal and consequently the Appellants have no capacity to bring the instant action as such the same must be dismissed.
The trial judge dismissed the Appellants’ claims as unproved. Dissatisfied with the decision of the
High Court, Kumasi, the Appellants appealed to this court on the following grounds:
The learned trial judge erred in law when he confused a customary law gift with the common law doctrine of advancement and misted himself in dismissing the Plaintiffs/Appellants’ case.
The judgement is against the weight of evidence.
Additional grounds of appeal will be filed upon receipt of the record of appeal.
As at the time of hearing the appeal no further additional grounds had been filed I shall therefore consider the two grounds as formulated.
Ground a. The learned trial judge erred in law when he confused a customary law gift with the common law doctrine of advancement and misted himself in dismissing the Plaintiffs/Appellants’ case.
The Appellant is suggesting that the trial judge confused a customary law gift with the common law doctrine of advancement thereby dismissing the Appellant’s case.
What were the facts as borne out from the record? As stated earlier, it is not in dispute that all the parties are members of the same family, being the surviving spouse, children, nephews and nieces of the late “ancestors” as described above.
Was it the case of the Plaintiffs that the “ancestors”, late Yaw Bour, Yaw Adusei, Kwadwo Adutwum, Amoako Atta Senior and Junior put up the disputed property for the benefit of their wives and children? Or does the record show that the late Yaw Bour, Yaw Adusei, Kwadwo Adutwum, Amoako Atta Senior and Junior, presented the disputed property to the wives and children as a customary gift?
Advancement, is defined in Blacks Law Dictionary, Sixth Edition, at page 52 as : Money or property given by a parent to his child or, sometimes, presumptive heir, or expended by the former for the latter’s benefit, by way of anticipation of the share which the child will inherit in the parent’s estate and intended to be deducted therefrom. It is the latter circumstance which differentiates an advancement from a gift or a loan.
In the case of Warren v Ganney 2 All ER 4272 and Pettit v Pettit 1970 AC –it was established that presumption of advancement applies in all cases in which the person providing the purchase money has an equitable obligation to support or make provision for the person to whom the property is conveyed … But the presumption of advancement may itself be rebuttable by evidence that the person paying the money did not intend to forgo his beneficial interest.
In the case of Dr. Lawrence K. Addai Boakye v Yaw Boakye and Most Rev. Dr. R. Aboagye Mensah and 2 ors Suit No. BL 48/2007 delivered on 18th October, 2013 by H/L Justice K. N. Aduama Osei JA (Sitting as an additional High Court Judge) extensively discussed this principle of advancement.
In that case, the brief facts were that the Plaintiff and defendant are brothers in the paternal side. The Plaintiff asserted ownership of the disputed land, which he alleged to have documents on same made between him and one Boatin K. Busia. The Plaintiff’s father was the late E.O. Boakye who died in August 2006.
During the era of the AFRC and the PNDC, certain properties of the late E.O. Boakye were confiscated and among them was he property in dispute.
The Plaintiff alleged that the disputed property was confiscated in the mistaken belief that it belonged to their father, the late E.O. Boakye. The Plaintiff petitioned the Commission on Human Right and Administrative Justice (CHRAJ). On procuring the release of the property from confiscation, he placed it under the care of his parents till his father died in August 2006. The Plaintiff averred that the father rented the property to the defendant for a one year term at the cost of $5,000.00.
The Plaintiff’s complaint was that when he arrived in October, 2006, for the burial of his deceased father, and he visited the property, he found to his profound dismay that the defendant had started digging a foundation on it for a building. Thus the Plaintiff stated in his statement of claim that the defendant did this without his consent or knowledge and therefore defendant conduct was unlawful and constituted trespass. Indeed, when the Plaintiff caused his solicitors to write to the defendant to demand that he stopped his acts of trespass on the property, the defendant rather accelerated his unlawful activity on the property.
The defendant in his defence, disputed the Plaintiff’s claim to ownership of the disputed property and alleged that it was purchased by their late father, E.O. Boakye who made full payment for it but caused the document on it to be made in the name of the Plaintiff for security and other reasons. According to the defendant, the property was purchased in 1997 when the Plaintiff was only seven years old, and he contended that at that age, the Plaintiff could not have validly acquired the property.
The defendant also rejected the Plaintiff’s contention that the disputed property was confiscated by mistake and insisted that it truly belonged to their late father. He justified his conduct by alleging that he purchased the property from their late father and made part payment before he died in August 2006. Therefore having purchased the property from their late father, he did not need the Plaintiff’s consent to enter same.
His Lordship Aduama Osei discussed the case of In Re: Sasu-Twum vrs Twum (deceased)  1
GLR 23 where H/L Abban J, (as he then was) stated that:
“Where a father took a conveyance in the name of his child, there would be a presumption that the father intended to part with his legal and beneficial interest in the property to the child and that the property was intended to be a gift to the child”.
Abban J considered that the party who disputed the presumption of advancement carried the burden of rebutting that presumption and the evidence in rebuttal in his words, “must be strong, such as a contemporaneous - not subsequent –declaration or act of the father manifesting a clear intention that the child was to hold as a trustee”.
In the Sasu Twum case, there was evidence that on the completion of one of the houses, the father occupied it with Plaintiff and the children but later moved out and let it out to tenants.
There was also evidence that the father collected rents and made use of same. Abban J (as he then was) however was of the view that, those subsequent acts and dealings of the father in relation to the house were inadmissible to rebut the presumption. What could rebut the presumption was evidence that at the time he caused the houses to be put in the name of the eldest son, the father made some statements which tended to indicate that he never really intended to advance those houses to that son.
Aduama Osei JA held at page 15 of his erudite judgment that:
“There is no evidence that the Plaintiff at any time transferred his interest in the disputed property to E.O. Boakye the determination that the Plaintiff was at all material times the absolute owner of the property means therefore that E.O. Boakye was not the owner of the said property at the time he is purported to have sold same…
There is also no evidence that the Plaintiff at any time authorised E.O Boakye to sell the disputed property to the Defendants or any other person. Any purported sale of the property by E.O Boakye did not therefore pass any interest in the property.
I therefore hold in respect of the third and fifth issues set for trial that E.O. Boakye did not have capacity to sell the disputed property and that he could not and had not sold same at the time of his death”.
Similarly, in the case of Tinker v Tinker (No. 1)  P 136, in which a husband had purchased a house in the name of his wife with the intention of preventing the house being seized by creditors if his business failed. When the marriage broke down, evidence of that intention was rejected as evidence in rebuttal of the presumption of advancement. In respect of that evidence, Lord Denning observed that:
“He cannot say that the house is his own and, at one and the same time, say that it is his wife’s. As against his wife, he wants to say that it belongs to him. As against his creditors, that it belongs to her. That simply will not do. Either it was conveyed to her for her own use absolutely; or it was conveyed to her as trustee for the husband. It must be one or the other. The presumption is that it was conveyed to her for her own use and he does not rebut that presumption by saying that he only did it to defeat his creditors”
In the instant case, this principle was actually not advanced by the Appellants at the trial. I have also combed the entire record for any evidence on whether or not it was a customary gift to the wives and children. The record is bereft of any such evidence. None of the attributes that accompany customary gifts such as aseda can be found. None of the witnesses of either side testified to that. At best the evidence proffered by the parties and their witnesses to all intents pointed to property that was meant to be used by the “ancestors” and their families.
The two esteemed authors BJ da Rocha and CHK Lodoh in the book entitled Ghana Land Law and Conveyancing in Chapter 13 at page 261, discuss the implications of co-ownership of land. In their view, there are two types of co-ownership of land, namely joint tenancy and tenancy in common. According to them the ultimate determinant as to the type of ownership is in the case of a gift or a grant of land, the intention of the acquirers; and in the case of a gift or a grant of land, the intention of the donor or grantor. However, where the parties or their grantors or donors are silent on how they should share the property acquired by them, then the law will imply that they hold the property as tenants in common.
The nature of joint tenancy is such that there must be the right of survivorship and the four unities, namely, unity of possession, unity of interest, unity of title and unity of time.
With respect to the right of survivorship, it means that if one joint tenant dies his interest in the land passes on to the surviving joint tenants and so on until there is only one tenant left who then becomes entitled to the whole property as the sole owner.
Regarding tenancy in common, the tenants all have shares in a single property which has not yet been divided among them, none of them can claim sole ownership of any part of the property concerned. The essential feature in a tenancy in common is unity of possession.
The present state of the law in Ghana according to the learned authors is that where a grant of land is made to two or more persons, it is presumed that it is made to them as tenants in common in equal shares unless a contrary intention is expressed in the grant, (see section 14(3) of the Conveyancing Act, 1973 (NRCD 175) which provides as follows:
A conveyance of an interest in land to two or more persons, except conveyance in trust, creates an interest in common and not in joint tenancy,
Unless it is expressed in the conveyance that the transferees shall take jointly, or as joint tenants, or to them and the survivor of them, or
Unless it manifestly appears from the tenor of the instrument that it was intended to create an interest in joint tenancy.
From the facts in the record of appeal it can be seen that the ancestors intended a tenancy in common and not a joint tenancy as stated above, it is implied by law unless it can be proved that they held the property in trust for the beneficiaries. I therefore find that this ground is not borne out from the record and I find no reason to disagree with the trial judge’s conclusions on this issue. The ground is therefore dismissed.
Ground b. The judgement is against the weight of evidence.
Where an Appellant makes this a ground of appeal, then in other words, he is asking the court to re-hear the matter. This is in consonance with Rule 8 of C.I 19 which states that “an appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal.”
Counsel for the Appellants argues that the court below failed to properly evaluate the evidence on its merit and thereby arrived at an erroneous decision.
It is trite 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 Tonado Enterprise and ors 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”
Therefore, as was held in Tuakwa v Bosom [2001-2002] SCGLR 61, “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.”. It is also the duty of the Appellant to point out lapses in the judgment which when corrected will enure to his benefit.
In Margaret Mary Adjei v The Attorney-General and two Others  50 GMJ 198, CA, it was held that where an appeal is based on the ground that the judgment against which the appeal has been filed is against the weight of evidence, the Appellant implies 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 were wrongly applied against him. .
It was held in Oppong v Anarfi  SCGLR 556 that where the appeal is based on the ground that the judgement is against the weight of evidence, “it is incumbent on the appellate court to analyse the entire record of appeal, take into account the testimonies and documental evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on the preponderance of probabilities, the conclusions of the trial judge were reasonable or amply supported by the evidence (holding4).” The same view had earlier been taken in Aye &Akakpo v Ayaa Iddrisu  SCGLR 891.
In Akufo Addo v Catheline  1 GLR 377, the Court of Appeal held that:
“Where an appeal is against the weight of evidence, the appellate court had the jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts”.
As stated earlier, the clear intention of the original owners, (the ancestors) were to hold the property for themselves, their wives and children.
At page 16 of the record of appeal, the 3rd Plaintiff Abena Adoma (Junior) testified for herself and on behalf of all the other Plaintiffs as follows:
“I know property No. ME 32 Block 12, Manhyia Extension, Kumasi. The house is owned by my mothers and their children. It was built by our fathers for us. The Plaintiffs and our deceased fathers’ parents lived in the subject house. Aside the 1st Plaintiff who is our mother, all the other mothers have passed away.
Presently, the 2nd and 6th Plaintiffs (including me) live in the subject house. The rest of the Plaintiffs live in rented accommodations at different locations in Kumasi.
Currently, their landlords are bent on ejecting them so they are finding it difficult to get places to live in.
During the life of Amoako Atta Junior, he told us that he was weak and therefore pleaded with us to allow him to rent some rooms in the subject house to generate money. We agreed. He rented the vacant rooms to non-relatives and some of the nephews. These includes the 2nd and 3rd defendants.
The defendants claim that the house belongs to them so we should quit same and allow them rent it out. We objected to their demands and decided to sue for the court to determine the issue. We objected to them because the house was given to us by our fathers. The defendants asked all the Plaintiffs to quit the house. Those affected are the Plaintiffs resident in the subject house.
We know that that the rent advances our fathers’ nephews renting rooms in the house have exhausted a long time ago.
It is not true that our deceased fathers decided that whatever property they will acquire will be family property upon their deaths. It is not true that we and our mothers have our rooms in the house and have our share of cocoa farms. It is not true that the 2nd and 6th Plaintiffs are staying in the rooms without interruption. The defendants are harassing us to leave the premises. I pray the court to grant us our reliefs.”
During cross examination by Counsel for the Defendants, Abena Adoma (Junior) agreed with the suggestion that their fathers agreed among themselves that any of them could develop their individually acquired properties in the ensuing discourse:
Q. In the course of time your fathers agreed amongst themselves that any of them could go elsewhere to acquire land to develop for himself
A. I have heard of that.
Q. Anyone that acquired land elsewhere, received the support of the others in the development of the properties.
A. That is correct.
Q. Because of this, Yaw Bour went to Kasapee to acquire land and he was supported financially to develop it.
A. That is correct.
Q. Kwadwo Adutwum went to acquire land at Wenchi and the rest supported him financially to developed.
A. That is correct.
Q. Amoako Atta (Senior) went to Barnie near Bibian to acquire land and he was assisted to develop.
A. That is correct.
She agreed that in furtherance of that understanding, Yaw Buor bought land at Kasapee and was supported financially to develop it. Likewise Kwadwo Adutwum was assisted to develop his land at Wenchi. Amoako Atta Senior was equally assisted by his brothers to develope his land at Barnie near Bibiani. Amoako Atta Junior was assisted to establish his tailoring business since he was not interested which they took funds to assist themselves.
PW1, Nana Owusu Achiaw, a farmer at Aboabogya, the Akyeamehene of Abuobogya testified at pages 27-29 of the recod that he knew the ancestors and that they have all died. He knew the property in dispute House Number ME 32 Block 12, Manhyia. He narrated how he destroyed some cocoa trees belonging to the “ancestors” in the course of his felling activities as a timber merchant.
When confronted by one of the ‘ancestors’ he met the siblings on the issue of the destroyed cocoa trees at the disputed house where he was told how the siblings built the house for their wives and children. After negotiations he paid them some compensation and left. That was the gist of the evidence offered by the Plaintiffs.
The defendants had the 5th defendant, by the name Akua Felicia, testify for them and herself (see pages 30-33 of the record of appeal). The summary of her testimony was that the 1st defendant is her senior brother. All the other defendants are her siblings. She further stated that the “ancestors” were her uncles who have all died. She also affirmed that whilst alive, her uncles were united and did things together. She testified that they built a house at Wedie Adwumakase with cocoa proceeds for the family. That they built House No, ME32 Block 12, Manhyia Extension, Kumasi. She maintained that it was a family house and not for the wives and children.
She however stated on page 31 of the record that :
“The house is a family house. There is nothing to indicate that our uncles built that house for their children.
House No. ME 32 has been occupied by nephews of our uncles and also the children of our uncles. All the Plaintiffs reside in the subject house. I now say that some of them reside in the subject house. Those in the house are called Atta Kwasi, Abena Adoma (Senior), Abena Adoma (Junior), Yaa Pokuaa, Akosua Nyanta.
About six of the Plaintiffs are in occupation of the six rooms. The rooms are six and they are also six.
It is never true that we have asked the 2 nd – 6th Plaintiffs to vacate their rooms in the subject house. They still live in the house. It is not true that our uncles and the Plaintiffs’ fathers gave them the subject house in Kumasi so they cannot recover same.
By Akan custom, “aseda” is provided for gifts made. There is no such “aseda” by the Plaintiffs to indicate any gift by their fathers. There is also no documentary evidence of the said gift of the subject house to them. The Plaintiffs do not pay rent to us. It is not true that we are claiming that our uncles gifted the house to us. It is not true that our uncles built the house for the Plaintiffs and their mothers.
My uncles had two sisters who helped them in various ways. They could not therefore have built the house for their wives and children alone”.
The above discourse confirmed the Plaintiff’s testimony that the house was inhabited by the spouse and children of the “ancestors” together with some defendants who were the nephews and nieces of the deceased “ancestors”.
In the judgement of the learned trial judge on 65-66 of the record, he stated that :
“Both sides agree that the subject house was built jointly by the husband and fathers of the Plaintiffs and uncles to the defendants. It is also agreed that the said persons acquired joint properties and operated joint a fund from which they created their properties. Beside the joint properties, each also created individual assets. The issue as to who constructed the subject house is therefore not in doubt. What is in issue is the Plaintiffs’ claim that the said house was vested in them by their husband and fathers. The Plaintiffs were careful in their pleading and evidence not to use the word gift. Their counsel re-emphasized that stand when he cross-examined the 5th defendant.
The germaine question is, how are properties vested in people? The owner of property may dispose of his self-acquired property either inter-vivos or by an arrangement through a Will upon his death. Customary oral Wills (Semansew) are also a method by which a person may dispose of his property. Where the property is not disposed of inter-vivos through a Will, the property owner is said to have died intestate. His assets fall to be distributed under the Intestate Succession Law (PNDCL III).
In the instant case, the Plaintiffs’ husband and fathers did not make a Will by which they distributed the estate to the Plaintiffs. No evidence was given of any death bed wishes; otherwise known as customary Wills or “Semansew”. The property therefore falls to be distributed under PNDCL III; unless the Plaintiffs or the defendant could show that it is not exigible under that law. On the other hand, the property will fall to be distributed as had been directed by the Plaintiffs’ husband and fathers during their life.”
I am in agreement with the above dictum of the trial judge. I have perused the entire record and I do not find any scintilla of evidence that points, either to a customary gift of the property in dispute to any of the parties, or a vesting of the property in any of the parties in this matter.
In the case of In Re Suhyen Stool; Wiredu and Obenwaa v Agyei and others [2005-2006] SCGLR 424
428 per Holding 5:
“The requirements of a gift at customary law were: (i) there must be a clear intension on the part of the donor to make a gift; (ii) publicity must be given to the making of the gift: and the donee must accept the gift by himself or herself giving thanks-offering or conventional aseda or by non-conventional aseda such as simply using and enjoying the gift or by doing act which fulfilled the obligative which the giving of aseda was meant to fulfil, namely, the expression of gratitude and the symbolic acceptance of the gift. In the instant case the defendants had failed to establish a clear intention on the part of the Omanhene of New Juaben to make a gift of the Mponua Stool to the Ekuona Clan. In the absence of such donative intension, the court would conclude that no customary gift of the said stool was made to the Ekuona Clan”.
These requirements as stated in the above case are absent from the instant Record of Appeal.
At best what is ad idem among the parties are the persons who acquired the property, namely the worthy “ancestors”, Yaw Buor Yaw Adusei, Kwadwo Adutwum, Amoako Atta Senior and Amoako Atta Junior and their intention to hold it as tenants in common. As discussed earlier, section 14(3) of the Conveyancing Act, 1973 (NRCD 175), also presumes such an acquisition as a tenancy in common. I therefore find that the trial judge assessed and evaluated the evidence before him and arrived at the right conclusions.
This ground is similarly dismissed. In conclusion, the entire appeal is dismissed.
Cost of GH¢5,000.00 to the Respondents against the Appellants
MARGARET WELBOURNE (MRS.)
[JUSTICE OF APPEAL]
I AGREE K. N. ADUAMA OSEI
[JUSTICE OF APPEAL]
I ALSO AGREE SENYO DZAMEFE
[JUSTICE OF APPEAL]