• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE COURT OF APPEAL
  KUMASI - A.D 2017
  

ADWOA SERWAA - (Deendant/Appellant)

vs.

DANIEL FELIX ANTWI AND OSEI BOATENG - (Plaintiff/Respondents)

JUDGMENT

---

DOMAKYAAREH (MRS) J A

1. This is an appeal from the judgment of the High Court, Kumasi, delivered on the 21^st day of July 2014.

The defendant/appellant (hereinafter called appellant) in this suit was the first wife of late Sampson Kwame Dabo, who died intestate on 3^rd July 2003. He was a member of the family of the two plaintiffs/respondents (hereinafter called respondents). The 1^st respondent sued as the Head of their family. The 2^nd respondent is the customary successor of the late Sampson Kwame Dabo. In the course of the litigation, the 1^st respondent died and has not been substituted. The dispute was about title to, and possession of House Number Plot 8 Block “F” Abrepo, Kumasi, containing two Flats.

 

THE RESPONDENTS’ CASE AT THE TRIAL COURT:

2. In their Statement of Claim, the respondents’ then plaintiffs averred that late Sampson Kwame Dabo inherited the SSNIT benefits from one of his deceased brothers, Charles Brobbey and commenced a transport business with it. Charles Brobbey worked with the Cocoa Services Division of the COCOBOD. In that transport business late Sampson Kwame Dabo was financially assisted by another brother Bossman Kwame Oppong. Bossman even shipped down one cargo truck to Dabo to augment his transport business. Bossman Kwame Oppong who lived in Italy equally assisted late Sampson Kwame Dabo to commence the building of the two flats with the understanding that one would belong to Bossman Kwame Oppong upon completion. The buildings were not completed when Bossman Kwame Oppong died. Bossman’s entitlements in Italy were brought down to Kwame Dabo who was chosen to succeed Bossman.

 

3. With these properties of his late brothers, Dabo was able to expand his transport business and also continued building the flats. He did not complete them when the defendant was ejected from a rented house in Suame, Kumasi, where she lived with her children. At the instance of his sister, late Dabo had to extend water and electricity to one of the uncompleted flats to enable the defendant move in with the children. Just about three months when the defendant and the children moved in, Dabo also died.

 

The family chose 2^nd respondent herein as the customary successor and the properties were distributed in accordance with law. The appellant and her children had been given their fair share out of the estate of her late husband. The house in dispute could not be distributed because the appellant laid claim to it. She claimed it was her self-acquired property. The respondents contended that the said house became family property since it was acquired by Dabo with proceeds from family property. They therefore brought the action for: -

·         A declaration that H/NO Plot 8 Block “F” Abrepo, containing 2 flats was acquired by Samson Kwame Dabo (a.k.a. Odeefour) with proceeds from properties he inherited from deceased family members;

·         A declaration that the subject matter is family property;

·         A declaration that by their positions as Head of Family and Customary Successor respectively, title to the property is vested in them;

·         Recovery of possession and a perpetual injunction to restrain the appellant herein from laying claim to the property or dealing with it in a manner adverse to the respondents rights or interest therein.

 

THE APPELLANT’S CASE AT THE TRIAL COURT:

4. In her Statement of Defence, appellant denied that late Dabo started his transport business as a result of property he inherited from a family member. She averred that the late Dabo started the transport business by purchasing his first taxi partly from his employment as a Lotto Receiver and partly from a loan he obtained from a friend called Kofi Willie. She averred that she bought the plot on which the building was erected by giving one million and five hundred thousand old cedis (₵1,500,000.00), now GH₵150.00 to the late Dabo to purchase same. She also financed the building from proceeds of her tomato business. She was the owner and the deceased only assisted in supervising the construction works. She denied that any entitlements of Bossman were invested into the building project, though the deceased inherited Bossman. She said during the life time of late Dabo, she actually let out one of the flats to tenants. She moved into one as of right. She contended that when her grantor stool requested to see the allocation note and she detected it was made in the name of the late Dabo, she protested and a new allocation note was made in her name in the presence of the late Dabo, her husband. She went further to say the 2^nd respondent (also one of the Administrators of the Estate of the late Dabo) indicated in his affidavit in support of the application for Letters of Administration that the said flats were the self-acquired property of late Dabo and upon her protest the property was removed from the inventory. The appellant contended that, the respondents were bound by the contents of the affidavit they filed to apply for the Letters of Administration. The appellant counterclaimed for: -

·         A declaration that she is the lessee of the building plot in dispute by reason of the lease made between the Dufie Stool, the Asantehene and Adwoa Serwaa;

·         An order of perpetual injunction restraining the respondents either by themselves or persons claiming through them from interfering with her possession and enjoyment of the building plot covered by the said lease and land certificate;

·         And any other reliefs that court may find just and appropriate.

 

5. In their Reply, respondents denied the defence put up by the appellant. They further averred that any purported change of the Allocation Note was a forgery perpetrated by the appellant after the death of Sampson Kwame Dabo.

 

JUDGMENT AT THE TRIAL COURT:

6. After full trial and having examined all the pieces of evidence, the learned trial judge found the case of the respondents more probable than that of the appellant. He therefore gave judgment for the respondents and dismissed the counterclaim of the appellant. Some of the Specific reliefs granted to the respondents were as follows: -

“(2) That the subject property has therefore become the family property of the plaintiffs (respondents herein) and that the administrators of the Estate of the late Sampson Kwame Dabo could go ahead and distribute same as they wish.

(3) That title to the property until its distribution to the beneficiaries is vested in the plaintiffs (respondents herein) as head of family and customary successor of the late Sampson Kwame Dabo”

 

These reliefs will be commented on in due course.

 

The trial judge also ordered the Director of the Lands Commission in Kumasi to revoke or cancel the land title certificate issued in the appellant’s name since he found same to have been obtained fraudulently and in contempt of his court and also to cancel or revoke the lease engrossed in the appellant’s favour in respect of the property in dispute.

 

7. This judgment aggrieved the appellant, hence this appeal to this court praying the court to set aside the judgment entered in favour of the respondents herein. The appellant is assailing the judgment of the trial court on five substantive grounds of appeal, namely: -

a) The learned judge misconceived and misapplied the ratio decidendi in MAJOLAGBE V LARBI AND ORS [1959] GLR 190 when he failed to find that the plaintiffs were unable to prove their case, thereby occasioning substantial miscarriage of justice to the defendant.

b) The learned judge erred in his evaluation of the evidence.

c) The learned judge misapplied the law on what constitutes family property.

d) The learned judge erred when he granted a claim not borne out by the circumstances of this suit and which claim has occasioned a miscarriage of justice to the defendant.

e) The judgment is against the weight of evidence adduced at the trial.

f) Additional grounds of appeal may be filed upon receipt of the record of appeal.

 

No additional grounds of appeal have been filed.

 

As every appeal is by way of re-hearing per Rule 8(1) of the Court of Appeal Rules, 1997, C I 19 we shall now consider the grounds of appeal as per the said directive and the evidence on record.

 

GROUND (a)

The learned judge misconceived and misapplied the ratio decidendi in MAJOLAGBE V LARBI AND ORS [1959] GLR 190 when he failed to find that the plaintiffs were unable to prove their case, thereby occasioning substantial miscarriage of justice to the defendant.

 

8. It is the contention of the appellant that the learned trial judge misconceived and misapplied the ratio decidendi in MAJOLABGE V LARBI & ORS(1959) GLR 190 @ 192 when he failed to find that the plaintiffs (respondents herein) were unable to prove their case, thereby occasioning a substantial miscarriage of justice to the defendant (appellant herein). What is the ratio in the MAJOLAGBE CASE? It is to the effect that once an averment is denied by a party, the onus lies on the one making the averment to prove it in court by proper legal means. Specifically, the court held at page 192 of the said case that:

 

“Proof in law is the establishment of facts by proper legal means. Where a party makes an averment capable of proof in some positive way, example by producing documents, description of things, reference to other facts, instances or circumstances, and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts or circumstances, from which the court can be satisfied that what he avers is true”.

 

9. In his judgment, the learned trial judge was persuaded that the 1^st respondent (deceased and

not substituted) and the 2^nd respondent had proved that the late Sampson Kwame Dabo received the death benefits of his brothers Charles Brobbey and Bossman Kwame Oppong who predeceased him. The respondents averred this in their Statement of Claim and they together with their witnesses repeated this on oath in the witness-box without more. The learned trial judge was of the view that once members of the deceased family had confirmed this, no further positive evidence was required. But is that really the case? It is on record that the appellant denied this and challenged the respondents that the late Dabo did not receive any entitlements of his deceased brothers which provided the startup capital to his transport business from which said business they alleged the house in dispute was built. That being the case, the MAJOLAGBE case enjoins the respondents to go beyond their averments and evidence on oath to produce more cogent evidence to support their assertion. For instance, Charles Brobbey was said to have worked with Ministry of Agriculture/Cocobod and that it was his SSNIT benefits which was paid to the late Dabo with which he bought his first taxi. This court takes judicial notice of the fact that SSNIT is a State institution and keeps record of which benefits have been paid, to whom, how much, and when such payments was made. The Respondents should have therefore produced documents from SSNIT to that effect or called a witness from SSNIT to testify to same before they can be said to have positively proved that averment.

 

10. Similarly, they all testified together with their witness PW1 that the entitlements of Bossman Kwame Oppong were brought from Italy and handed over to the late Dabo. They did not offer any documentary proof or any circumstances or instances surrounding this handover to corroborate their said averment. The three of them were not even ad idem of how much money was involved. The 1^st Respondent (deceased) said he heard the amount was $800.00 (see p 50 of the Record of Appeal) and the 2^nd Respondent said his sister remitted around $4,000.00 (see page 76 of ROA). Was the amount brought down and handed over to the late Sampson Kwame Dabo or it was remitted? PW1, a family member said she did not know the actual amount. (see page 44 of ROA). These facts are material to their case and in the face of denial should have been positively proved. This also being a question of the benefits of deceased persons, there surely would be some documentary evidence relating to same and the circumstances under which the money was handed over to the late Dabo. The Supreme Court case of TAKORADI FLOUR MILLS V SAMIR FARIS [ 2005-2006] SCGLR 882 lends further credence to these matters when it held at page 898 inter alia that:-

“In law, all issues of facts in dispute are proved by evidence. It is a fundamental principle in the law of evidence that he who asserts or claims an entitlement has the onus of proving the basis of that claim. According to the off-cited case of Majolagbe V Larbi [1959] GLR 190, a party on whom the burden of proof lies proves an averment in his pleadings, capable of proof in a positive way, not by merely mounting the witness box and repeating it on oath but by producing corroborative evidence that must necessarily exist if his averment were to be true’’. (Emphasis added)

 

11. The MAJOLAGBE and the TAKORADI FLOUR MILLS cases both cited Supra, are practical manifestations of the Burden of Proof and Burden of Persuasion sanctioned by Sections 11(1), 11(4) and Section 12 of the Evidence Act 1975 (Act 323). Also see the case of AGYENIM BOATENG & 28 ORS v S.K. BOATENG part 5 (2009) 5 GMJ 58 @ 62-63. There could also have been documentary evidence to show that the late Charles Brobbey worked at Cocobod or the Agricultural Department or the Ministry of Agriculture as variously testified to by PW1 and the deceased 1^st respondent. These institutions are also State institutions that keep records but no records were produced and tendered in court to that effect.

 

12. Counsel for the respondents on his part in a terse Written Submission narrated the various findings of the trial court based on which he delivered judgment for the respondents and submitted that there is no merit in the appeal and same should be dismissed. Relying on the case of IN RE OKINE (DECEASED), DODOO & ANOTHER V OKINE & OTHERS (2003-2004) SCGLR 582 he quoted what the Supreme Court held as follows:

“An appellate Court must not disturb the 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 judge were wholly unsupportable by the evidence. Therefore, where the evidence was conflicting, the decision of the trial court as to which version of facts to accept was to be preferred, and the appellate court might substitute its own view only in the most glaring of cases”.

 

Counsel also cited the case of AMOAH V LOKKO & ALFRED QUARTEY (SUBSTITUTED BY) GLORIA QUARTEY & OTHERS (2011) 1 SCGLR 505 which espoused similar considerations as the IN RE OKINE case cited Supra.

 

13. However, in view of the analysis made supra earlier on, it is glaring to this court that the respondents did not meet the burden of proof imposed on them by law concerning the death benefits of the deceased brothers that the late Sampson Kwame Dabo was alleged to have inherited. This court therefore accepts the arguments of Counsel for the appellant on ground (a) of the grounds of appeal.

The said ground (a) is accordingly upheld.

 

GROUND (b):

The learned trial judge erred in his evaluation of the evidence.

14. In arguing this ground of appeal, Counsel for the appellant relied on her submissions on ground (a) of the grounds of appeal which have been upheld by this court. In addition, Counsel contended that the appellant was able to lead cogent evidence in support of her counterclaim by leading evidence to prove that she gave money to her late husband Sampson Kwame Dabo to acquire the plot on which the disputed flats have been built. She testified as to how she protested when she saw that the allocation note was not in her name and how it was subsequently rectified. Her story was corroborated by DW1 Nana Osei Mensah Bonsu, the Gyasehene of Abrepo who testified upon being served with a subpoena. Excerpts of his evidence-in-chief can be found at pages 172 -174 of the Record of Appeal.

 

“I caused a gong-gong to be beaten and also made an announcement and made an advertisement in the Pioneer News Paper informing each and every one who had bought a plot at Abrepo should produce their documents for inspection………..

 

My Lord, after the announcement, the defendant and her husband came to me with an Allocation Note and after inspecting it, I told them that the one who gave the plot to them wasn’t the rightful owner of that land so My Lord I told them that any person who bought a plot from that person would have to pay ¢5 million (old currency) so I asked them to pay ¢5 million old currency ……..

 

My Lord the defendant and her husband came back to pay the money in the palace but it was the defendant who opened her bag and pulled out the money and gave it to the husband who made payment to me. My Lord before I could make a new allocation paper to them, they have to bring me the old allocation paper. It was there and then that the husband brought the Allocation Paper from his pocket when I looked at it I discovered that it bore the name of the husband and my Lord before me there was some misunderstanding between the defendant and the husband, the defendant didn’t understand why the husband made the allocation paper in his name. My Lord since there was exchange of words between the defendant and the husband in respect of the Allocation Paper I caused the old chief who gave out the old Allocation Note to be brought before me. When the old chief came the husband and the defendant called him aside and had some conversation with him. My Lord after their conversation the husband came to me and informed me that I should use the name of the wife on the new allocation paper I was going to prepare for them”.

 

This new Allocation Note is Exhibit 3 found at page 257 of the Record of Appeal. It is dated 10^th September 2001. Sampson Kwame Dabo, the husband of the appellant is said to have died in or about 3^rd July 2003. It therefore means that the new Allocation Note was issued in his life time. In his judgment at page 234 of the Record of Appeal the trial judge said the date on the photocopy of the Allocation Note tendered was not visible.  We clearly see it as 10^th September 2001.  The Allocation Note was however signed by the Asantehene on 29^th September 2003, a date after the death of Sampson Kwame Dabo. The trial judge relied on this date to say that this allocation note was clandestinely fraudulently obtained by the defendant. “to facilitate her selfish and greedy claim to the property”. He rather held at page 235 of the Record of Appeal that the undated allocation note (Exhibit A) issued to Sampson Kwame Dabo is the authentic one. We find that there is no proper basis for the trial judge to hold that the property belonged to the late Dabo. Once the building plot is adjudged by this court to belong to the appellant, it goes with everything on it, to wit, the two flats built thereon whether she actually built them or not.

 

15. The conduct of the 2^nd respondent in his application for Letters of Administration to administer the Estate of the late Kwame Dabo is also worth commenting on. He had included the disputed property in dispute in the inventory of the personal properties of the deceased Kwame Dabo. It was only taken out when the appellant mounted a protest that the property is hers. The trial judge definitely overlooked this evidence and made no comment on it and rather poured a series of needless invectives against the appellant, to wit that she was “not only greedy, she is also selfish, full of covetousness, full of hatred, unforgiving and full of jealousy”. See page 229 of Record of Appeal.

 

16. Some of the reliefs granted by the learned judge have not also been supported by the evidence on record. Among the reliefs claimed by the respondents was a declaration that the subject matter is the family property of the respondent’s family. The declaration that the learned judge made is as follows: -

 

“That the subject property has therefore become the family property of the plaintiffs (respondents herein) and that the administrators of the Estate of the late Sampson Kwame Dabo could go ahead and distribute same as they wish.”

 

If the disputed property is family, on what basis is he also directing that the Administrators of the Estate of the late Sampson Kwame Dabo could go ahead and distribute same as they wish? It is only the self –acquired property of the late Sampson Kwame Dabo that can be distributed by the Administrators of his Estate. Surely the disputed property cannot be family property and at the same time the self-acquired property of the late Dabo. It is further contradictory when he went he went further to declare that “title to the property until its distribution to the beneficiaries is vested in the plaintiffs as head of family and customary successor of the late Dabo.” The confusion is further aggravated when the learned trial judge went on to order at page 235 of the Record of Appeal that the lease executed in favour of the appellant as well as the Land Certificate “be revoked and or cancelled and the name of Sampson Kwame Dabo inserted as the true owner of the property in issue” a relief never claimed by the respondents. This state of affairs revealed by the Record of Appeal clearly demonstrates an error in the evaluation of the evidence by the learned trial judge.

 

17. There were further material contradictions in the case of the respondents. The 1^st respondent (deceased) testified that the deceased Kwame Dabo did not complete the building before he died but immediately turned around to say that he completed the two flats before he died but he did not live there and rather permitted his senior wife to live there and that he had earlier on rented out one flat to tenants and used the rent advance to complete the other flat for the wife to live in. See page 52 of Record of Appeal. PW2 (2^nd wife of Dabo) on the other hand testified at pages 89 – 90 of the Record of Appeal that at the time she met Dabo he was building the house but had not completed it. She said Dabo told her he was building the house with his brother Bossman Oppong. She said the house had reached lintel level at the time of Dabo’s death with the whole house not roofed but immediately went on to say that Dabo rented half to somebody before he died. It is most improbable to rent an unroofed house. PW1 who lives in Canada and a niece to the 1^st Respondent and cousin to the 2^nd respondent also testified at page 36 of the ROA that the deceased Dabo rented part of the building and put the defendant in the other part. So which is which? Was the building completed or not at the time of Dabo’s death? There is no cogent evidence in the ROA in support of any of those various versions. The tenancy agreement of the tenant put in by the late Dabo should have been tendered in evidence or the tenant called to testify but neither of these was done.

 

Ground (b) of the grounds of appeal is upheld.

 

GROUND (C)

The learned judge misapplied the law on what constitutes family property.

18. The trial judge held that the disputed property had acquired a family character because the late Sampson Kwame Dabo built the disputed property with the entitlement of his two deceased brothers.

 

Ollennu J (as he then was) held in the case of LARBI v CATO [1959] GLR 35 at page 37 that “where members of a family assist another of the family with money, materials or labour to build on that others self-acquired land, the members so assisting acquire, at the death of the builder, certain rights with respect to the house so built - the house becomes family property. Further, profits acquired from profits of family property is itself family property.”

 

Holdings 1 – 3 laid down the conditions that must be fulfilled before a property can assume a family character where it is proved that:

(1) (a) members of a family made substantial monetary contribution to another member to build a house on his individual land, or

(b) the moneys used by a member of the family to build on his self-acquired land were entirely, or substantially, proceeds from family or ancestral property, as distinct from what he (the individual member of the family) would normally enjoy as his share of proceeds from family ancestral property, or

(c) in the absence of employed labour (or with partly employed labour) members of the family provided the whole, or a substantial part, of the labour for a member of the family to build a house on his own land, and with his own materials, or

(d) the materials used by a member of the family to build on his own land were, in the main, property of the family, then, in any such case of substantial contribution by the family, or by members of the family, a house built by a member on his self-acquired land becomes by custom family property;

(2) that it would be repugnant to natural justice and good conscience to hold that completely casual and trivial labour by one member or another of a family would make the house family property;

(3) that it would be similarly repugnant to hold that temporary financial assistance, by one member or another of the family, to an amount which was insignificant in relation to the cost of the building, would make the house family property.”

 

19. Counsel for the appellant contends that the learned trial judge misapplied the law on what constitutes family property as enunciated in the LARBI CASE cited Supra. The LARBI CASE clearly states that where a family member receives assistance (financial or otherwise) which is negligible from his family members in putting up a building, that building cannot be termed “family property” solely because of the negligible or occasional assistance that was given to him when this assistance is juxtaposed to the actual cost or value of the property. Counsel submitted that on account of the fact that the respondents could not meet the standard of proof required of them to establish their averment that the late Dabo received the entitlements of his two brothers who predeceased him, it was wrong for the learned trial judge to declare the disputed property a family property. Counsel urged that assuming without admitting that there was contribution from the deceased family members, in the absence of any evidence in the ROA as to the amount of the entitlements and how much contribution Bossman Oppong made, the judge was not right to declare the property family property since it was the value of the contributions as compared with the actual cost of the building that would determine whether it assumed the character of family property or it remained the self-acquired property of the builder. We agree with counsel for the appellant. Ground (c) is thus upheld.

 

GROUND (d)

The learned judge erred when he granted a claim not borne out by the circumstances of this suit and which claim has occasioned a miscarriage of justice to the defendant.

 

20. This ground of appeal relates to the reliefs that were claimed by the respondents in their Writ of Summons and accompanying Statement of Claim in the court below. In dismissing the appellants counter-claim, this is what the learned trial judge said at page 11 of his judgment which can be found at page 235 of the ROA

 

“I dismiss her counterclaim in its entirety and order that the lease executed in her favour as well as the land certificate be revoked and or cancelled and the name of Sampson Kwame Dabo inserted as the true owner of the property in issue.” As mentioned earlier on, at no point in the trial did the respondents say the property in dispute is for the late Kwame Dabo. They were emphatic in their pleadings and evidence that Dabo built that property with money inherited from his two deceased brothers and so it should be declared family property. In their Writ of Summons which can be found at pages 1-3 of the ROA the respondent did not even claim the usual omnibus relief of any other orders/reliefs that the court may deem fit. There is therefore no basis for the judge to have made such a finding and an order in favour of the late Sampson Kwame Dabo. By doing so, he had occasioned a substantial miscarriage of justice to the appellant. The judge had thereby substituted a different case for the respondents and the appellant was prejudiced therein because that was not the case she was put on notice to respond to. Ground (d) of the grounds of appeal is thus upheld.

 

GROUND (e):

The judgment is against the weight of evidence adduced at the trial.

21. This is the omnibus ground of appeal that the judgment is against the weight of evidence adduced at the trial. A plethora of decided cases circumscribe the ambit of this ground of appeal both on the appellant and the appellate court. See the cases of DJIN v MUSAH BAAKO [2007-2008] SCGLR 686; AMPOMAH V VOLTA RIVER AUTHORITY [1989 – 90] 2GLR 28 and TUAKWA v BOSOM [2001-2002] SCGLR 61. According to these authorities, the appellant has the duty to demonstrate in what aspects the trial judge erred and the appellate court also has the duty to evaluate all the evidence in the ROA and satisfy itself as to whether or not the conclusions of the trial judge are supported by the evidence on record.

 

The fact that grounds (a) to (d) of the grounds of appeal have been upheld demonstrates that the findings of the trial judge on those findings are against the weight of evidence on the record.

 

The 2nd Respondent testified in his evidence-in-chief at page 75 of the ROA as follows:

 

‘‘My brother was a lotto-Agent and his senior brother by name Charles Brobbey died so his Social Security contributions were received by Bossman Oppong and Sampson Dabo. So my late brother Sampson Dabo bought a taxi cab with the money.’’

 

PW1, sister of the late Bossman Oppong, Sampson Dabo and Charles Brobbey testified in her evidence-in-chief at page 34 of the ROA that it was when Charles died that Sampson inherited his entitlements and through the entitlements he bought a Datsun Taxi. She did not mention Bossman Oppong as one of those who inherited Charles. These inconsistencies ought not to be glossed over since the issue of inheritance constitutes the foundation of the respondents’ claims.

 

22. At page 79 of the ROA the 2^nd respondent testified that the new allocation note issued to the appellant was a forgery because he had been to the chief who gave the land to Kwame Dabo but he never called the said chief to corroborate his testimony. He did not itemise the particulars of the fraud nor made any attempt to prove same beyond stating same in their Reply to the appellant’s counterclaim and repeating same on oath. The appellant on the other hand called DW1 the chief who issued her allocation note to testify in support of her version.

 

23. The learned trial judge also rejected the exhibit 4 series in the name of the appellant which are the water bill receipts, Exhibit 5 the Land Certificate and the Exhibit 7 series which are receipts for property rates. In respect of these Exhibits, this is what the trial judge said at page 11 of his judgment which can be found at page 235 of the ROA: -

 

“The defendant was all out to deceive this court. All the electricity and water bills tendered bore dates after the death of Sampson Kwame Dabo except one. This cannot be proof of ownership. As the one living in the house she is bound to pay the utility bills.”

 

It is on record that the late Dabo died on 3^rd July 2003 three months after the appellant moved into the flat. Therefore having regard to the time the appellant was giving her evidence (14^th November, 2011), eight years after she moved into the premises, if there is one utility that bears a date within the lifetime of the late Dabo that is reasonable and should be sufficient. The majority of the utility bills will definitely bear dates after the death of Dabo. Besides utility bills are issued in the names of landlords upon proof of ownership or if issued in the name of the tenant or occupier, then with the written consent of the landlord. Though payment of utility bills per se is not evidence of ownership yet the bills are for the most part issued in the name of the owner which was satisfied by the utility bills tendered.

 

24. The learned judge rejected the evidence of DW3 who testified as a tenant in the house but turned out to be a witness to the tenancy agreement she tendered. He commented that the appellant brought her to assist her in her selfish and greedy adventure to claim the property for herself. He overlooked the evidence-in-chief of DW3 at page 201 of the ROA and also failed to comment on same. DW3 testified thus on 20-05-2014:

 

“About 8 years ago my sister and myself were looking for accommodation and somebody directed us to this house in dispute. When we got there we met a certain man whose name we got to know later was Sampson Dabo. He told us his wife was not around, so we should go and come back some other time.

 

We went back subsequently to meet the man and his wife in the house. When we told him we needed accommodation, he directed us to his wife and to enter into negotiations with her. We finally arranged with the wife the flat we needed. It was the defendant who rented the flat to us. This was done during the life time of the defendant’s husband and to his notice. The defendant’s husband did not raise any objection to the deal. I know that the husband of the defendant is dead. We rented the flat from the defendant around 2003”.

 

She had earlier testified at p.200 of the ROA that she knows the property in dispute and that she lives in that house. It is a legitimate inference that she and her sister rented the flat and that her sister signed as tenant while she signed as witness.

 

25. The 2^nd respondent testified at page 75 of the ROA that the late Dabo rented out the flat to people and took a rent advance of ₵18million from them. He did not call those people to corroborate his evidence. He did not tender any tenancy agreement to that effect. The learned trial judge failed to make any comment on that critical lapse.

 

26. Some few other comments are germane to the outcome of this appeal. In the first place, the respondents had the presence of mind to claim the house in dispute because according to them it was built with money inherited from deceased family members, the inheritance having been used to purchase a taxi to start a transport business. It follows as a logical outcome that the property listed in Exhibit 11^B as the movable and immovable property of the late Dabo found at page 288 of the ROA including the five Mercedes Benz trucks were also purchased from this transport business whose seed money was the inheritance. That being the case, the respondents should have also claimed those as family property. But they were content to treat them as the self-acquired property of the late Dabo and the Administrators of his Estate distributed them as such. Indeed they had included the house in dispute as the self-acquired property of the late Dabo and only removed it when the appellant protested. It is a legitimate inference that the respondents later strategized to claim the property in dispute as family property thus approbating (the moveable properties) as self-acquired property and reprobating (the immovable property) as not self-acquired but rather family property. Approbating a part and reprobating another part of the same time is totally frowned upon by the law.

 

27. The second issue is the economic status of the late Dabo as a transport owner vis-à-vis the economic status of the appellant as a trader in tomatoes. Listen to what the learned trial judge said at page 10 of his judgment which can be found at page 234 of the ROA:

 

“I find therefore that the deceased was in good business at the time of his death. What then was he doing with the proceeds from his lucrative transport business? No evidence has been led to show that the deceased squandered his money on anything. And the house is the only property left behind by the deceased which is being contested by the defendant. I find that having regard to the financial strength of the parties, the deceased was in a better position to put up the house than the defendant a student turned seamstress/tomato trader”.

 

The basis for this finding in favour of the deceased cannot be found in the Record of Appeal. There is no evidence anywhere in the ROA as to the weekly/monthly or annual income of the late Dabo and the appellant for the judge to make such a determination. Nor is there any basis to determine that transport business is more lucrative than trading in tomatoes especially when the appellant was not a table top tomato seller but a trader in tomatoes. The appellant testified under cross-examination at page 148 of the ROA that she is a trader in tomatoes and travels to Burkina Faso and other places to bring tomatoes for sale. Surely one will not travel from Kumasi to Burkina Faso to buy one crate of tomatoes for sale back in Kumasi.

 

28. The third comment is on the capacity of the 1^st respondent to institute the action even though he died during the course of the suit after testifying and being cross-examined. Even though he is deceased and has not been substituted, yet his evidence was taken into account by the trial judge in the judgment he delivered. The 1^st respondent disclosed his capacity as Head of Family of the late Sampson Kwame Dabo in paragraph 1 of their Statement of Claim. Now it is trite knowledge that as per KWAN V. NYIENI [1959] GLR 67, it is only the Head of family who can sue to protect family property subject to the exceptions that are enumerated therein. It turned out during the course of the trial that the first respondent was not the Head of family at the time he instituted the action on 20-8-2004. It turned out that one Amo Mensah, who was alive though indisposed was the Head of family.

The 1^st respondent admitted during cross-examination from page 61 et seq of the ROA that Mr. M.F. Amo was the Head of family but because he had sight problems he was currently the head of family.

 

On 17-12-2007, 2^nd respondent gave his evidence-in-chief and was cross-examined on the same day.

 

This is what he said under cross-examination at page 80 of the ROA:

“Q. At the time Sampson Dado died who was your head of family?

A. My head of family was Wofa Amo but he was not well so Mr. Daniel Felix Antwi (1^st respondent) was acting on his behalf.

Q. As what?

A. As Head of Family.

Q. Now is Wofa Amo dead?

A. He is not dead.

Q. Has he been removed as Head of Family?

A. He has not been removed.”

 

 

The 1^st respondent did not demonstrate that he was covered by any of the exceptions where he can sue to protect family property when the substantive Head of Family is still alive and neither did he produce any Power of Attorney from the Head of Family authorizing him to institute the suit on his behalf. This evidence that the 1^st respondent was not the head of family was not hidden but the learned trial judge did not comment on it and actually overlooked the legal consequences of such incapacity. His evidence ought to have been expunged from the proceedings because he instituted the suit and testified in a capacity that he did not have. The judgment is clearly against the weight of the evidence adduced at the trial. Ground (e) of the grounds of appeal is therefore upheld.

 

29. The appeal is allowed in its entirety. The judgment of the trial court dated 21-07-2014 is set aside and judgment entered for the appellant on her counterclaim.

 

Whether this judgment accords with the sense of fairness of the ordinary man on the street is another matter but the justice of the appeal must strictly be based on the evidence on record and this is exactly what has been done.