IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
KWASI ABENE - (Defendant/Appellant)
MADAM YAA AFRA - (Plaintiff/Respondent)
DATE: 16TH FEBRUARY, 2017
CIVIL APPEAL NO: H1/6/2014
JUDGES: E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
From the record of appeal, this suit was launched by Madam Yaa Afrah on 6th September 1993 against Kwasi Abene in the High Court. The subject-matter in dispute between the parties is H/No. plot 18, Block “C” Nsema-Atwima. All the evidence in the case were presented before Piesare J (as he then was). Specifically on 22nd July 1998, the defendant closed his case. At the request of counsel for the plaintiff that day, the court adjourned the matter to 31st July 1998 to visit the locus at 2.00pm.
But there were no proceedings in the matter until 19th January 2010 when the suit was placed before Debrah J. And when he was properly seised with jurisdiction over the suit by the Chief Justice’s order of transfer, all Debrah J did was to order written submissions upon which he delivered judgment on 24th January 2012.
The claim of the plaintiff as endorsed on the writ of summons against the defendants jointly and severally is for:
(a) A declaration that the immediate family members of Madam Yaa Mobi (deceased) of Nzema are the beneficial owners of H/No. Plot 18, Block “C”, Nzema-Atwima.
(b) Recovery and possession of rooms occupied by defendant and his brothers and sisters.
(c) An order of injunction restraining the defendants or any person(s) from whom they claim from in any way making adverse claim to the house by threatening to eject the plaintiff and her family from the house.
(d) An account for all rents collected by the defendants from May 1987 to July 1993.
Upon entry of appearance, the defendants filed a statement of defence and counter-claimed for:
(a) Declaration that the defendant and his brothers are owners of the property Plot No. 18 Block “C” Nsema-Kumasi.
(b) Recovery of possession of five(5) rooms at the property from the plaintiff.
(c) Perpetual injunction restraining the plaintiff, her servants and/or agents from interfering with the defendant’s and his sisters and brothers enjoyment of this property.
The plaintiff told the court that her grandmother Ama Akyiaa begat Ama Konadu, Yaa Mobi, Akosua Saamaa and three other males. While Ama Konadu begat Kwaku Akosah, her mother was Yaa Mobi. The defendant and his siblings were children of Kwaku Akosah. So plaintiff and Kwaku Akosah were direct descendants of their mothers. The basis of the plaintiff’s claim is that in about 1939, the Regent of Nsema Nkyenkyenhene announced that plots were available for allocation at Nsema New site on condition that a grantee of a plot must build a house.
Her mother Yaa Mobi applied and was granted the plot in dispute. Her mother with her assistance proceeded to build an “atakpame” swish house on the plot at a time defendant’s father Kwaku Akosah was based in Keta in the Volta Region trading. Her mother roofed the four bedroom house and they lived in it until she passed away. But she continued to live in the house.
Later, Kwaku Akosah who was then living and doing business in Kumasi sought her permission to renovate the swish house and live with her. She allowed Akosah in as brother. And when he came, he plastered her mother’s swish building and then made extensions to it by building additional rooms. According to her, she and Akosah lived peacefully in the house and enjoyed the rents from the extra rooms together until he passed away. Some of Akosah’s children have also left the house. But about two years ago, (about 1991), defendant and some others started making adverse claims to the house to the extent that they even threatened to eject her. Plaintiff said the defendants had no title to the house hence the redress she seeks from the court.
Defendant denied the claim of the plaintiff. He pleaded that his late father acquired the building plot from the Nsema stool when Opanin Kyenkyenhene was the Regent. The plot was demarcated for him by Opanin Oti Awere (DW1) amongst others. Out of his own resources, his father put up a swish building on the plot and between 1957 and 1962, he gave out the building to the people to be used as a school. He stated that Madam Yaa Mobi had never lived at the New Site but in her house at the Old Site which her son Kweku Atta has renovated and occupies now.
Further, defendant stated that his father demolished the swish building he had put up and in its place constructed a sandcrete house. Upon completion, he allowed the plaintiff and her children to live in three rooms and he let out the remaining rooms to tenants. In or about 1970, Kwaku Akosah left Kumasi to live in the house as his with his children and grandchildren. Defendant stated that they are asserting their claim of ownership because the plaintiff had been claiming the house for her family. Defendant maintained that although the family did not hold a funeral for Kwaku Akosah when he died, the 40th anniversary was held during which the family gave the disputed house to the children of Akosah. They accepted the gift by providing the requisite aseda. But the plaintiff has unlawfully occupied the two rooms reserved for their father’s customary successor in the house, hence their counter-claim.
Thus from the pleadings, the real/fundamental issue which called for determination is, as between Yaa Mobi and Kwaku Akosah, who acquired the plot from the Nsema Stool. Additional to that, since the defendant claimed his father demolished the swish building he first put up but the plaintiff maintained the swish building of the “atakpame” type put up by her mother is still on the land, it will be good exercise for the court to visit the locus.
In the address filed on behalf of the plaintiff on 12th November 2010, counsel prayed for a visit to the locus. But in the address of the defendant, it was stated that, the counsel for the defendant and the court went to the locus, waited for the plaintiff and his counsel for over three hours but they failed to turn up. According to the address of defendant, what they saw about the house is that the plaintiff had “nicodemously” got a carpenter to remove the roof over a room occupied by a tenant, destroyed the roof of the entrance leading to the main house as well as part of the wall into the main house. According to the address, a report on the matter to the police was pending.
It is evident from the address of both parties that the visit to the locus which the plaintiff fervently craved for since 1998 never took place. But then in his judgment, the trial judge sought to use and rely on impressions gathered at the locus in the absence of the plaintiff to vindicate her claim that the “atakpame” swish house put up by her mother still stands on the land. This is inspite of the trial judge’s own statement that the damage caused to parts of the house caused a stir and he had to intervene by calling on the plaintiff to replace the roofing.
We are of the view that an invitation to the trial court to visit the locus, is prayer to adduce additional evidence. And once the plaintiff whose prayer was granted failed to attend the locus, the trial judge should have called off the visit, especially so when the trial judge saw with his own eyes that the subject-matter of the locus had been tampered with by no less a person than a party who bore the burden of proof on the issue which the evidence to be gathered at the locus was sought to prove. This court would therefore reject the conclusion of the trial judge based on the impressions gathered at the locus on the existence of the “atakpame” house on the land, which evidence, the plaintiff/respondent relied on in his written submission to urge on us to dismiss the appeal.
Again at the trial, DW1 who was more or less the star witness of the defendant asserted that he was 80 years old at the time he was giving evidence. Defendant himself could not give evidence in proof of their counter-claim. DW1 became the star witness amongst the five witnesses called by the defendant because he maintained that he was a member of the team which demarcated the plot for Kwaku Akosah. He also stated that he went to Keta where Akosah gave him £7 10/- and two bottles of schnapps to pay for two plots he acquired for him. This evidence of DW1 is against the backdrop of plaintiff’s assertion that at the time of the demarcation and allocation of the plots, DW1 was a small boy staying with his mother elsewhere. DW1 however at the trial, could not substantiate his age which he told the court could be ascertained from his driving license which he brought to court but failed to tender.
DW1 also claimed in his evidence that Kwaku Akosah was his uncle. But he was unable to mention the name of Akosah’s mother. On the basis of these two matters, the trial judge did not find DW1 worthy of any credit. He proceeded to dismiss the case of the defendant. Aggrieved by the judgment, the defendant appealed to us to reverse it in his favour on the grounds that:
(a) The judgment is against the weight of evidence.
(b) The court erred when it failed to consider or adequately consider the defendant/appellant’s case.
(c) The court erred when it held that the said land is the property of the plaintiff.
In the written submission on behalf of the defendant/appellant, counsel argued ground out of turn. Indeed the whole judgment of the trial court is centred on the failure of DW1 to substantiate or prove that he was 80 years at the time he was giving evidence and the failure to state the name of the mother of Kwaku Akosah whom he described as his uncle. Counsel submitted that the prominence and weight given to the two matters was needless but it formed the basis of the rejection of the defendant/appellant’s evidence. It is the submission of counsel that had the trial court taken pains to examine the other evidence of DW1 as well as other witnesses including DW4, daughter of Kwaku Akosah and DW2 a tenant in the disputed house, the court would have come to a different conclusion than it did.
The response of the plaintiff/respondent conceded the fact that the failure of DW1 to prove his age and that he is indeed a nephew of Kwaku Akosah was given prominence over all other evidence on the record. This is due to the fact that the court did not find the evidence of DW1, the star witness of the defendant/appellant, credible at all. The plaintiff/respondent’s submission admitted that an appeal is by way of rehearing and an appellate court is entitled to make up its own mind on the facts and to draw inferences to the extent that the trial court could. But the submission cautioned as held in Praka v Ketewa  GLR 423 that:
“Where the decision depends on the credibility of witnesses the appeal court ought not to interfere with the findings of fact except where they were shown to be wrong or where those facts were wrong references drawn from admitted facts found by the trial court”.
Thereon counsel for plaintiff/respondent submitted that in view of the evidence of the plaintiff/respondent that at the time the plot was demarcated to her mother, DW1 was a small boy living with his mother elsewhere and for that matter could not have been part of the demarcation team, which evidence, the DW1 sought to deny, the onus is shifted on to DW1 to prove his age – See section 14 of Evidence Act,1975(NRCD 323). DW1 was unable to so prove even from his driving license. Further since DW1 claimed to be the nephew of Kwaku Akosah, the court rightly expected him to know the name of his uncle’s mother. The answer that he had forgotten the name of Akosa’s mother does not acquit him as a credible witness especially so when under cross-examination DW1 stated that although they are related maternally, his family members could not succeeded a member of Kwaku Akosah’s family. The plaintiff/respondent submitted that these clearly discernible doubts in the evidence of DW1 led to the trial Judge’s total disbelief of defendant/appellant’s case and he is justified.
As provided in the Evidence Act, 1975 (NRCD 323) in section 80 (2), amongst the matters relevant to the determination of the credibility of a witness are:
b. the substance of the testimony
c. the existence or non-existence of any fact testified to by the witness
d. the capacity and opportunity of the witness to perceive, recollect or relate any matter about which he testifies, and
e. the existence or non-existence of bias, interest or other motive”.
And in section 80(1), the court is permitted to take into consideration any matter that is relevant to prove or disprove the truthfulness of the testimony of a witness. Rightly in my view, that is what the trial judge did by taking in to consideration the age claimed by DW1 and his relationship to Kwaku Akosah. As I have stated earlier on, the fundamental issue to resolve between the parties in this suit is as between Yaa Mobi and Kwaku Akosah, who acquired the plot on which the house is built. Defendant himself could not give that evidence probably because he was not born then or he did not have any personal knowledge of it because he lived outside Nsema with his late father.
Just like the plaintiff, the evidence DW1 gave about the acquisition of the plot is first-hand evidence of a living witness and not traditional evidence permissible under section 117 of the Evidence Act as an exception to the hearsay rule. In that case, since the matters they testified to occurred about fifty years ago, the inability to relate the fine details of the transaction testified to due to loss of memory is permissible but no further.
The importance of proof of the age of DW1 lies in the fact that amongst the five witnesses, it is only his evidence which sought to prove that it was Kwaku Ansah who acquired the plot. The evidence of all the other witnesses relate to Kwaku Akosah’s user and enjoyment of the house on the land. The further importance of the evidence of DW1 is in the fact that, he portrayed himself as a close family member of Kwaku Akosah who played a role in the acquisition of the plot which he could inherit as a nephew.
But DW1’s claim having been denied, it behoves on DW1 to prove his age on the preponderance of probabilities to show that he was old enough at the time and was a member of the demarcation team which allocated the plots. In her evidence, the plaintiff/respondent mentioned the names of the five members of the allocation team excluding DW1. She added that, the team was responsible to Nkyenkyenhene, the Regent then. From the record, DW1 disclosed himself that as a driver his date of birth could be ascertained from his driving license which he had brought to court ( see page 45 of the record of appeal) but failed to tender it.
In Khoury vrs. Richter decided by the High Court on 8th December, 1958 applied in
Majolagbe vrs Larbi  GLR 190 at 192, the court said on proof thus:
“Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts and instances, and his averment is denied, he does not prove it by merely going into 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 fact and circumstances from which the court can be satisfied that what he avers is true”
For unexplained reasons, DW1 personally or his counsel failed to tender the driving licence in proof of his age to satisfy the court that he was an adult at the time of allocation of the plots as claimed by the plaintiff/respondent. In the submission of the defendant/appellant, the evidence of PW2 was entirely discredited on grounds of bias, he being an in-law of plaintiff/respondent. But I find his evidence about DW1 at page 36 of the record of appeal as candid. He said that at the time of the allocation of the plots, DW1 was a driver but then he was neither an elder nor a member of the allocation committee. So if DW1 had endeavoured to prove his age, this evidence of PW2 would have supported him, leaving only the issue of his membership of the allocation committee.
The second issue on which the court discredited DW1 is equally substantial. DW1 was unable to tell the name of Kwaku Akosah’s mother. DW1 stated that he stayed with Akosah at Keta. Once when Akosah came Nsema, his mother Ama Abrewa suggested to him to go for some of the plots. So he DW1 went to Keta where Akosah gave him £7 10/-and two bottles of schnapps which on his return he gave to Nkyenkyenhene who permitted him, Asamoah and Piabre as members of the allocation team to show the land to plaintiff/respondent’s mother, Yaa Mobi. It is inspite of these pieces of evidence which suggest close relationship between DW1 and Akosah, DW1 has forgotten the name of Akosah’s mother which made the trial judge to disbelieve DW1 as a witness of truth. DW1’s untruthfulness is more profound when he told the court that although they are family members he cannot succeed his uncle Akosah or his family member.
From the record DW1 was in the witness-box for five days. On the last day under re-examination, he stated that “I still don’t remember the name of Akosah’s mother”. Based on these pieces of evidence which DW1 could not show that their existence is more probable than their non-existence, the trial judge in our view, was within the remit of the law to discredit the evidence of DW1 and thereon reject the case of the defendant/appellant.
Although there may be other pieces of evidence on record worth examining or considering, wen are unable to uphold ground (b) of the appeal. It is dismissed.
Moving on, counsel for defendant/appellant argued grounds (a) and (c) together. Ground is the usual omnibus ground that the judgment is against the weight of evidence. And ground (c) which is to the effect that the court erred when it held that the land is the property of the plaintiff can be subsumed underground (a) as its conclusion. On perusal, it is noticed that, the other pieces of evidence of other witnesses which were alluded to in arguments on ground (b) but were not elaborated on, form the substance of the whole submission.
So all the arguments fit into the meaning of ground (a) of the appeal as enunciated and explained in a plethora of cases by the courts. In Margaret Mary Adjei vrs The Attorney-General & Ors.  50 GMJ 198, CA, this court 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.
In Djin vrs Musa Baako [2007/08] SCGLR 686, the same view was expressed of this ground of appeal. But the court went on to state that the onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against – see also Ampomah vrs V.R.A. [1989/90] 2 GLR 28. And this court as a function of re-hearing the suit as permitted by rule 8(1) of C.I. 19, the Court of Appeal Rules of 1997 as amended is enjoined to review and evaluate the whole evidence or record and come to its own conclusion on the preponderance of probabilities – see Tuakwa vrs Bossom [2001/02] SCGLR 61.
From the submission of the defendant/appellant I do not find that the judgment was faulted on the ground that the court failed to give any credit to the evidence of DW1. Rather, the judgment was criticized for giving undue attention and for that matter weight to two matters/facts which dented the credibility of DW1 to the exclusion of other pieces of evidence on the record. The submission pointed out the other pieces of evidence and argued forcefully that if those pieces of evidence were given their due weight and consideration, the court would have come to a conclusion different than it did.
In the first place, the defendant/appellant pointed out that the evidence proffered by the plaintiff/respondent is in many respects contrary to the pleadings she had set forth. In her pleadings, the plaintiff/respondent stated that when her mother put the house on the plot, she gave it out to be used as a school and when the school moved out, her mother and her children including herself moved to settle in it. On the death of her mother, she continued to live in the house with her children until Kwaku Akosah came to join her and made improvements to the house.
But in the evidence-in-chief, the plaintiff stated that, after roofing the house, their plan to plaster it was frustrated by thieves who attacked her and cut her hand for which reason she could not work. Her mother (Yaa Mobi) had then become old. So the house became abandoned. Plaintiff/respondent further gave evidence that her mother completed one room and put Kwame Opoku in it but before then, nobody had ever lived in the house because it was not completed for habitation. She continued that when Akosah took over the house for renovation, he drove away Kwame Opoku. And soon after Akosah had completed the renovation and made the house habitable, she moved into it.
In view of the divergence between the pleadings and the evidence of the plaintiff/respondent, the submission of the defendant/appellant questioned the real state of the building before Yaa Mobi allegedly allowed it to be used as a school and as between the use of the house as a school and occupation of Kwame Opoku, which was first in time.
In the response of the plaintiff/respondent, the complaint that plaintiff/respondent’s evidence is contrary to her pleadings was neither denied nor admitted. Rather the submission found solace in section 6 of the Evidence Act. The section provided that any objection to inadmissible evidence shall be made at the time it is offered and the court shall immediately rule on the objection. The plaintiff/respondent submitted thereon that if an inadmissible evidence is tendered against a party who was present in court but failed to raise any objection and it becomes part of the record, the trial judge is not precluded from favourably considering it in his judgment however contradictory it is. In support, the case of Abowaba vrs Adeshina  12 WACA 18 and Hammond vrs Odoi  1 GLR 375 were cited.
I do not think the plaintiff/respondent can hide under the Abowaba vrs Adeshina rule or principle as a defence to the charge that her evidence is inconsistent with the pleadings. While the rule in Dam vrs Addo  2 GLR 200 defendant/appellant relied on, ensures that evidence adduced at the trial accords with the pleadings, the rule in Abowaba vrs Adeshina is concerned with the admissibility of an unpleaded evidence which is thus inadmissible but was not objected to.
In Abowaba vrs Adeshina at page 20, the rule is stated that:
“The penalty for failing to plead a material fact is the exclusion, upon objection being taken of evidence to establish it. There are certain types of evidence, such as hearsay, and unstamped or unregistered documents which are inadmissible per se, they cannot form the basis for a decision, and objection to them may be taken at any stage of a trial or an appeal, but in our opinion the case is different where evidence, which could have been ruled out as inadmissible because it was adduced to prove a material fact which was not pleaded, has nevertheless been adduced without objection and before the judge. In our opinion, the evidence as to waiver of forfeiture in this case falls within the latter class, and the trial judge was bound to take it into consideration, and the appellant not having raised his objection at the trial is precluded from doing so on appeal”
In Asomah vrs Servordzie [1987/88] 1 GLR 67 at page 74, the Supreme Court explained the rationale for the rule that:
“If at the trial evidence being given by a party has no bearing on the facts he has pleaded, it is the duty of opposing counsel to object to that evidence and to exclude it. If this is not done, and the evidence gets on to the record, then a court cannot shut its eyes to it in considering the case as a whole, particularly if it is against the party who led it”.
On the other hand, the Dam principle states that:
“A court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with that which a party puts forward, whether he be the plaintiff or the defendant”.
In the instant case, the plaintiff/respondent’s evidence in support of her pleadings on completion of the house, the use of the house as a school, her occupation of the house before Kwaku Akosah joined her are contradictory. It is not the case that the plaintiff/respondent led evidence on any new matters outside the pleadings which the defendant/appellant omitted or failed to object to. The rule in Abowaba vrs Adeshina case (supra) is completely inapplicable and it is misconceived to be relied upon by the plaintiff/respondent’s counsel. The applicable rule is that laid in Dam case. The complaint of the defendant/appellant is clearly legitimate under that rule.
But does this departure from the pleadings by the plaintiff/appellant in her evidence inure to the benefit of the defendant/respondent? These matters alluded to in the complaint relate to the use and enjoyment of the house put up on the land. It does not affect or relate to the person who acquired the plot itself. I have noted earlier on that the evidence plaintiff/respondent and DW1 gave is first-hand as living witnesses. But since matters they testified to occurred about fifty years or more ago, the probability that, due to loss of memory, fine details of the transaction they testified to has been forgotten cannot be ruled out.
From the record, none of the witnesses was able to give dates of main events they testified to. The original plaintiff Yaa Afrah told the court that she was 100 years old then. Her age was not disputed. DW1’s claim that he was 80 years old was disputed. Plaintiff/respondent did very well in her recollection and narration of events from the record of proceedings. In view of the evidence of DW1 on the acquisition of the land by Akosah which I shall show presently to be self-devastating and inconsistent, I do not hold that the inconsistency between the pleading and the evidence of plaintiff/respondent on the use of the house has dented or undermined her claim to the land.
The courts have had cause to comment on the effect of variations between the pleadings and the evidence offered at the trial. In the case of Odametey vrs Clocuh [1998/90] 1 GLR 14, the Court of Appeal reversed the decision in favour of the plaintiff on the ground that the evidence the plaintiff put forward violated the Dam principle. On further appeal to the Supreme Court, Taylor JSC observed that:
“It seems to me that it is now common knowledge in all courts that plaintiffs and also defendants often deviate from their pleadings and put forward cases at the trial by their evidence which reveal some variation from their pleadings. If the proposition of law put forward here (by the Court of Appeal) and supported by the majority in R.T. Briscoe vrs Preko is correct, no plaintiff can ever successfully maintain a claim in court who has deviated, however slightly, from his pleadings”.
In Effisah vrs Ansah [2005/06] SCGLR 943, Georgina Wood JSC (as she then was) expressed similar views. In holding 6, she is reported to have stated that:
“In evaluating evidence led at a trial, the presence of conflict or contradictions and the like per se should not justify a wholesale rejection of the evidence to which they might relate. Thus, in any given case, minor, immaterial, insignificant or non-critical inconsistencies must not be dwelt on to deny justice to a party who had substantially discharged his or her burden of persuasion. Where inconsistencies or conflicts in the evidence were clearly reconcilable and there was a critical mass of evidence or corroborative evidence on crucial or vital matters, the court would be right to gloss over those inconsistencies”.
I hold the view the inconsistencies which I noted relate to the user of the house built on the plot is secondary to the fundamental issue of who acquired the plot of land. I will therefore gloss over those inconsistencies. To recall, the plaintiff/respondent gave evidence that when Akosah joined her in the house, she acquired a plot of land for him at Kodode and second one at Nsema was given to him by the oman to entice him to return home permanently. According to her the original defendant had sold the two plots. She mentioned those who purchased the plots.
DW1 by his evidence knew nothing about those plots. His case is that he acquired the plot in dispute for Akosah with £7 10/- and two bottles of schnapps Akosah gave him at Keta. In the absence of Akosah, he showed the plot to the plaintiff/respondent who was farming on it until Akosah took it over and built on it. According to him Akosah first put up a swish building on the plot which he demolished and put up a sundried bricks house after her mother. Again Akosah demolished the sundried bricks house and put up a sandcrete house.
From the evidence, Akosah was a prosperous trader starting from Keta to Accra and then to Kumasi. He is said to have put up two houses in Kumasi according to the evidence of PW1. It is argued for the defendant/appellant that Akosah was thus wealthy enough to acquire his own plot of land and build on it. For that reason the claim by the plaintiff/respondent that at the request of Akosah, she allowed him to live with her in her swish house cannot be true. It is however not explained by DW1 why Akosah had to build and replace the house with different materials.
There is however this piece of evidence offered by DW1 given on 4th January 1998 which makes the case of the defendant not only improbable but totally incredible. At page 49 of the record of appeal under re-examination, DW1 stated on the acquisition of the plot by Akosah thus:
“At the time Akosah bought plot No.18 Block “A” (sic) he was living at Nsema; Opanin Yaw Ofori who had earlier acquired this plot was selling it, and Akosah bought it”.
What this evidence meant compared to DW1’s evidence in his examination-in-chief and cross-examination is that DW1 never went to Keta to collect money to buy the plot for Akosah in Nsema; DW1 never purchased any plot for Akosah from Nkyenkyenhene; no demarcation team of which DW1 was a member showed any plot to the plaintiff on behalf of Akosah and plaintiff never farmed on any undeveloped plot purchased by Akosah.
Clearly in the light of this self-devastating evidence no court instructing itself properly on the facts and the law will uphold the claim of the defendant/appellant. It is trite learning that the courts arrive at their decisions upon cogent and legally credible evidence only. The evidence of DW1 on the acquisition of the plot by Akosah does not pass that test – see Tormekpe vrs Ahiable  2 GLR 432 at holding 1. The trial judge we hold rightly rejected the evidence of DW1 and for that matter the claim of the defendants on the ground of total absence of credibility.
Lastly, counsel for defendant/appellant drew attention to several pieces of evidence which showed that Kwaku Akosah exercised various acts of ownership over the house and enjoyed income accruing from rents paid by tenants living in rooms in the house. In respect of Akosah’s control and enjoyment of proceeds from the house, defendant/appellant conceded that the plaintiff/respondent’s evidence is in tandem with the pleadings. Relying on section 48(2) of the Evidence Act, defendant/appellant submitted that with the control and enjoyment of proceeds from the house, there is strong presumption of ownership created in favour of Akosah. That presumption can only be defeated if the plaintiff/respondent can establish a better title. The submission concluded that the plaintiff/respondent by her evidence failed to displace that presumption. The property therefore stands in the name of Akosah as his legally acquired property and the family rightly gave it to his children on the 40th day anniversary celebration of his death.
The plaintiff/respondent both in her pleadings and evidence in support made it clear that with her permission, Kwaku Akosah did not only renovate her swish house but by way of extension added more rooms. She also stated that Akosah as the man, rented the extra rooms through her and shared the rent with her. That being so, since it was plaintiff/respondent who permitted Akosah to enter the land, renovate and then extend the swish house, the presumption of ownership created in his favour by the use and enjoyment of the property has been rebutted. As I have established, the evidence of DW1, the star witness of the defendant/appellant failed to prove on the preponderance of probability that Akosah acquired the plot of land. So despite Akosah’s investment in the house, the house cannot be regarded as his self-acquired property which he can gift inter vivos or devise to his children. This is because the permission plaintiff/respondent gave him to renovate the swish house on the plot was not a gift or outright grant of the plot or house to him. The interest Kwaku Akosh acquired in the house, if any is limited to his lifetime and not beyond.
That position is supported by the practice in customary law and upheld in Owoo vrs Owoo  11 WACA 81, Ansah vrs Sackey  2 WALR 325 which cases were applied in Biney vrs Biney  1 GLR 318, where this court held that:
“Where a family member built on vacant family land by using his own private resources, unaided by the family whether with or without prior permission from the family, he acquired only a life interest therein. Upon his death intestate his building remained family property and was heritable by members of his immediate family; but if such a family member secured a grant from the family of a portion of unoccupied land for his building in the proper customary manner the house built by his own efforts and means became his self-acquired property which he could alienate inter vivos or testamentary disposition”.
Thus far, having rejected DW1’s evidence of Akosah’s acquisition of the plot as incredible, we uphold plaintiff/respondent’s claim to the plot as proved on the preponderance of probabilities. Consequent upon that, we accept the case of the plaintiff/respondent that she permitted Akosah to enter land and invest in her mother’s swish building. But that investment did not make Akosah bonafide owner of the plot. As the submission on behalf of plaintiff/respondent put it, the owner of the land owns all on it, unless the contrary is proved. For the above reasons, we do not find grounds (a) and (c) tenable. They are dismissed.
Although the trial judge rejected the case of the defendant/appellant solely on the inability of DW1, the star witness, to tell his date of birth or prove his age and his inability to tell the name of Akosah’s (his uncle) mother, for the additional issues discussed which support the claim of the plaintiff/respondent, we found no ground upon which to disturb the judgment of the trial court. The judgment is affirmed and the appeal is dismissed.