AUGUSTINE SEYIRE vs. CATHERINE SEYIRE
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    TAMALE - A.D 2017
AUGUSTINE SEYIRE - (Plaintiff/Appellant)
CATHERINE SEYIRE - (Defendant/Respondent)

DATE:  26TH JULY, 2017
SUIT NO:  H1/04/2017
JUDGES:  ADJEI J.A, LOVELACE-JOHNSON J.A, ACKAH-YENSU J.A
LAWYERS:  RAYMOND BAGNABU ESQ. FOR THE PLAINTIFF/ APPELLANT DEFENDANT/RESPONDENT IN PERSON
JUDGMENT

ADJEI, J.A:

The Plaintiff/Appellant dissatisfied with the judgment of the High Court, Tamale delivered on 5th February, 2013, filed a notice of appeal against same to the Court. The notice of appeal was filed on 7th February, 2013.

                        

There are two divergent evidence adduced by the parties at the trial regarding ownership to H/No. C6, Navrongo and a house commonly called ‘Old UTC’ and situated at Navrongo. The parties were ad idem as to the identities and the location of the two disputed properties. The parties also agreed that plot No. C6 Navrongo was acquired by Peter Seyire. The Defendant asserted that her late grandfather gifted the property to her father. The Plaintiff on the other hand insisted that the property remained the property of his father but devolved unto the late Everist Seyire through succession. The Plaintiff who is an uncle of the Defendant asserted that both properties were acquired by his father; the late Peter Seyire who died in 1963. The Defendant who is a granddaughter of the late Peter Seyire also alleged that the UTC property was acquired by her late father while Plot No. C6 was acquired by her grandfather and gifted to her father. The trial High Court Judge found that the UTC property was acquired by the late J. Evarist Seyire and Peter Seyire gifted H/No Plot 6 to Everist Seyire. The trial High Court judge therefore granted all the reliefs sought by the Defendant on her counter claim. The trial High Court Judge dismissed the claim for the plaintiff and being dissatisfied with it the plaintiff filed an appeal against same to this Court. Parties will maintain respective designations at the trial High Court, that is, the Plaintiff/Appellant will be referred to in this appeal as Plaintiff and the Defendant/Respondent as Defendant.

 

The six grounds of appeal filed by the Plaintiff against the Defendant are as follows:

“i. The trial Judge erred in law when he failed to properly allocate the burden of proof and place same on the defendant having regard to the pleadings in this case.

ii. The trial Judge erred in law when he interpreted ambiguous statements by the plaintiff made prior to the litigation as admission of the claim of the Defendant’s claim in the circumstances of the case.

iii. The trial judge erred in law by treating minor and immaterial discrepancies in the evidence of the plaintiff and his witnesses on events that occurred about sixty years ago as weakening Plaintiff’s case whereas the Plaintiff and his witness remained consistent on the main issues of fact in the case.

iv. The trial Judge erred in law when he held that payment of property rates, utilities and using property a security for loan all without the knowledge and consent of the Plaintiff are proof of ownership by Defendant.

v. The trial Judge did not adequately consider the whole case of the plaintiff.

vi. The judgment is against the weight of the evidence”.

 

The Plaintiff did not file additional grounds of appeal even though he indicated that he may file one upon receipt of the record of appeal.

 

We wish to state that the Defendant/Respondent did not file written submission in answer to the Appellant’s written submission in accordance with Rule 20(4) of the Court of Appeal Rules C.I. 19. The law is that where a party fails to file her written submission as is the instant appeal; the Respondent shall not be heard at the hearing of the appeal except as to the question of costs. We are satisfied by Rule 20 sub rule 8 of the Court of Appeal Rules and shall embark the voyage of determining the appeal on its merits without giving the Respondent a hearing except as to the question of costs.

 

We address the appeal in the manner in which the Plaintiff argued his appeal. We now address the omnibus ground of appeal which is that the judgment is against the weight of evidence on record. The omnibus ground empowers an appellate court to rehear the matter by evaluating the evidence and the exhibits on the record and correcting all the errors committed by the trial court in its evaluation of the evidence on record. We are therefore required to correct all the errors committed by the trial High Court in the evaluation of the evidence on record.

 

The law is that an appellant who alleges that a judgment is against the weight of evidence on record is to demonstrate to the appellate court the errors committed by the trial Court in respect of the evidence which were wrongly evaluated and the evidence it failed to evaluate but which were material to the determination of the case. The duty of the court is to correct all the errors found to have been committed by the lower court, apply the standard burden of proof in the corrected evidence and come to a conclusion which is supported by law. In the case of Djin v. Musa Baako (2007-2008) SCGLR 686, the Supreme Court held that an appellant who complains that a judgment is against the weight of evidence on record must demonstrate that there were certain pieces of evidence on record which were material and which the trial court either wrongly applied in favour of a party who was not deserving, or that the trial court did not evaluate them at all, and if the corrections are made, it should overturn the judgment. The trial Judge found as a fact that the Old UTC property was not acquired by Peter Seyire but was acquired and owned by his eldest child J. Everist Seyire, the father of the Defendants. The Plaintiff in his evidence sought to prove that her late father was a farmer, businessman and a lay preacher in the church and a man of substance. According to the Plaintiff his late father acquired three houses in Navrongo including the two disputed properties. In proving that her late father acquired the U.T.C. house, he testified that his father provided land for the construction of the ‘Old UTC’ and was appointed as an agent by UTC as a reward for the land.

 

According to the Plaintiff, his elder brother J. Everist assisted his late father in operating the store in the UTC building from 1931-1949. The properties of the late Peter Seyire devolved unto J. Everist after the death of the former in 1963. The Defendant on the other hand tendered certificate of occupancy in the building made between Joseph Everist Seyire, a trader in Tamale and the Governor General and Commander-in-chief of Ghana on 25th Septemeber,1958. The certificate of occupancy was made to take retrospective effect for a term of twenty-one years from 1st day of April, 1955. We find as a fact that at the time exhibit ‘22’ was executed in 1958, the late Peter Seyire was alive and the certificate of occupancy was not issued in his name. The late Peter Seyire died in 1963 and if the property was for him he would have discovered that the certificate of occupancy was not in his name but rather in the name of his son. The certificate of occupancy made in favour of Everist Seyire for 21 years commenced from 1st April, 1955 and expired on 31st March, 1976. Rent payable per annum was 5 pounds.

 

We are satisfied that the Defendant was able to prove that during the lifetime of her grandfather, it was her father who had a certificate of occupancy which is analogous to a lease for a period of twenty-one years. The Plaintiff who alleged that the property was for his father could not produce any receipt evidencing rent paid by his father to the Governor-General who was the owner of the land. The oral evidence adduced by the Plaintiff and his witnesses were not satisfactory and failed to meet the standard burden of proof required in land matters, that is, proof by the preponderance of probabilities.

 

The Plaintiff could not also adduce evidence to challenge the authenticity of the certificate of occupancy which established the root of title for Everist Seyire. The law is that documentary evidence should prevail over an oral evidence except where the oral evidence was adduced to erode the veracity of the document which was not the case in the instant appeal. The law is that consideration should be given to documentary evidence as opposed to oral evidence unless the document in question was discredited by the evidence adduced so as to cause it to lose its veracity. This law was discussed by the Supreme Court in the case of Fosua Adu-Poku v Dufie (Decesed) Adu-Poku Mensah [2009] SCGLR 310. The Supreme Court in holding 1 of the headnote stated thus:

 

“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”.

 

The Defendant proved possession of the UTC building by the late Everist Seyire as well as his umblish title to the land. We find and hold that, the trial High Court Judge’s findings of fact made to the UTC property is unassailable and we affirm same.

 

There is no dispute as to who acquired H/No C 6 Navrongo. The Plaintiff and the Defendant agreed that H/No C6 Navrongo was acquired by the late Peter Seyiri.

 

The Plaintiff’s position was that the property devolved unto Everist Seyire after the death of his father Peter Seyiri. The Defendant on the other hand stated that, the property was acquired by his grandfather who gifted it to her father.

 

The Defendant in proving her case tendered a document which was executed by the late Peter Seyiri to transfer his interest in the property which later on became H/No C6 to Everist Seyire. It provides thus:

 

“I, Peter Seyire, have on this 4th day of August, 1953 transferred my house situated in the town of Navrongo to my son Joseph Everist Seyire. It is to be notices by the general public that all work towards maintenance, rent is left in the hands and is the responsibility of the said J.E. SEYIRE.

 

The house is my BONAFIDE property and I have today transferred it to him”.

 

The letter of transfer was signed by the parties. The Plaintiff sought to challenge the gift from Peter Seyire to Everist Seyire but could not adduce evidence to prove that the signature on the document is not that of the late Peter Seyire. The Plaintiff in his ground (ii) of the appeal stated that the trial High Court Judge erred in law when he interpreted ambiguous statement by the plaintiff prior to the litigation as admission of the claim. We would refer to exhibits ‘5’ and ‘6’ in which documents the plaintiff made admissions in respect of plot No. 6 Navrongo.

 

The evidence adduced by the Defendant was that exhibits ‘5’ and ‘6’ were written by the Plaintiff and were referable to H/No. C6 Navrongo in both letters. The Plaintiff admitted that H/No. C6 was the property of the late Everist Seyire. The trial High Court Judge found that both exhibits ‘5’ and ‘6’ were letters written by the Plaintiff in respect of H/No. Plot 6 Navrongo and the finding of facts made by the trial High Court Judge is supported by the evidence on record. In exhibit 5, the Plaintiff in making reference to Plot No. 6 wrote as follows:

 

“Many regards. Hope everything is fine. We shall meet when I come around in April.

 

I now have responsibility of Mr. J.E. Seyire’s house. In this regard I want you to give his two wives at Navrongo ¢15,000(fifteen Thousand cedis each at the end of every month with effect from March (emphasis mine)”.

 

From the above, the Plaintiff unambiguously stated that H/No. 6 Navrongo was the property of the late Everist Seyire. A similar admission was further made by the Plaintiff in his letter written on 10th March, 1998. The salient part of the letter stated thus:

 

“Could you give the keys to the upstairs rooms in your dad’s residence in town to Martin”.

 

The Plaintiff made unambiguous admission in the two aforesaid letters that the property he made reference to that is H/No C6, is the property of Everist Seyire. Where a party by his own volition states a fact in a written document such as a letter, subject to law including rules of equity, the facts recited therein will operate as a conclusive presumption against the parties and their successors in interest. Section 25 of the Evidence Act, NRCD 323 binds parties to the facts they state in a document. It provides thus:

 

“1. Except as otherwise provided by law, including a rule of equity, the facts recited in a written document are conclusively presumed to be true as between the parties to the document or their successors in interest.

2. Subsection (1) does not apply to the recital of consideration”.

 

We find that by exhibits ‘5’ and ‘6’, the Plaintiff admitted that H/No. C6 Navrongo is the property of the late Everist Seyire and therefore estopped by those letters. Section 25 of the Evidence Act is also on conclusive presumptions and once the Defendant has proved on the preponderance of probabilities that the Plaintiff wrote those letters and were referable to H/No. C6, he is bound by the two letters and cannot adduce oral evidence to contradict them.

 

Furthermore, exhibits ‘5’ and ‘6’ are statements intentionally and deliberately made by the Plaintiff for the Defendant to believe that Plot No. 6 was the property of the late Everist Seyire. Section 26 which is one of the conclusive presumptions and relates to estoppel by a person’s own statement or conduct provides thus:

 

“Except as otherwise provided by law, including a rule of equity, when a party has, by that person’s own statement, act or omission, intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon that belief, the truth of the thing shall be conclusively presumed against that party or the successors in interest of that party in proceedings between

a. that party or the successors in interest of that party, and

b. the relying person or successors in interest of that person”.

 

In the case of Obeng & Others v Assemblies of God Church, Ghana [2010] SCGLR 300, the Supreme Court held that Section 26 of the Evidence Act, if proved against a party in a suit operates as a conclusive presumption against that party unless a law including rules of equity provides otherwise.

 

In the case of T.K Sebeh v Mensah [2005-2006] SCGLR 341, the Supreme Court held that facts in a written statement made by a person creates a conclusive presumption against the parties to the document unless there is a law including rules of equity which provides otherwise. It does not also apply to recital of consideration in a document. We therefore conclude that the trial High Court Judge properly evaluated the evidence and applied the law as provided by the Evidence Act and we affirm it.

 

We therefore dismiss ground II of the appeal as unmeritorious. We affirm the judgment delivered by the High Court Tamale delivered on 5th February, 2013 and dismiss the appeal in its entirety as unmeritorious.

 

(SGD.)

DENNIS ADJEI

JUSTICE OF APPEAL

 

                                                                                                (SGD.)

LOVELACE-JOHNSON,J.A.                               I agree                          LOVELACE-JOHNSON

                                                                                                           JUSTICE OF APPEAL

 

                                                                                                               (SGD.)

ACKAH-YENSU,J.A                             I also agree                               ACKAH-YENSU

                                                                                                                        JUSTICE OF APPEAL

 

 

 

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