Grushie vrs Kapongo ( 83/2001) [2004] GHACA 2 (29 October 2004);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - GHANA
CIVIL APPEAL
NO. 83/2001
29TH OCTOBER, 2004
CORAM - ANINAKWAH, JSC [PRESIDING]
AKOTO BAMFO, JA
ASARE KORANG, JA
MOHAMMED GRUSHIE ] … PLT/RESPT.
VRS.
MADAM KAPONGO ] … DFT/APPLT
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J U D G M E N T
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AKOTO- BAMFO[MRS] JA - By an amended writ of summons and statement of claim, the plaintiff/respondent hereinafter referred to as the plaintiff claimed against the defendant/appellant now simply referred to as the defendant the following reliefs.
Declaration that the plaintiff is the bona fide owner of the House on plot No. 163. Block A, Navrongo.
- An order for the return of plaintiff’s lease document in respect of the said House on plot No. 163, Block A, Navrongo.
- An order of perpetual injunction restraining the defendant and/or assigns, agents, servants from interfering with plaintiff’s possession and enjoyment of the said house on plot No. 163, Block A, Navrongo.
- General damages of 2 million cedis.
- Declaration of possession of House No.Block A, Navrongo.
- An order that the defendant does account to the plaintiff for all the rents she collected from the 3 rooms in House No. 163, Block A, Navrongo since 1993 and further that the amount thus accounted for be paid to the plaintiff.
Briefly the plaintiff’s case is that he contracted an Islamic marriage with the defendant which was blessed with 8 children. After about 30 years; cracks began to appear in the marriage on grounds of religion.
It is his case that he applied and was allocated the plot in dispute by the Government; the transaction was reduced into writing, he subsequently developed the plot from his own resources and that the defendant rented 3 rooms in the house to tenant from whom she collected rents from 1992.
In resisting the defendant’s claim, the defendant averred that the plot in issue was a gift to her by her father upon her marriage to the plaintiff; she allowed the plaintiff to develop the said plot with funds provided by her and that she intended that the property be jointly owned by them.
According to her, she rented the rooms to the tenants in her capacity as the owner and did not therefore require the consent of the plaintiff.
She therefore counter-claimed for an order declaring the Lease null and void, perpetual injunction restraining the plaintiff from interfering with her ownership thereof; a further declaration that she is the owner of the house and general damages of 10 million cedis.
Among the issues set down for determination were whether or not the plaintiff is the owner of Plot No. 163.
- whether or not the defendant was owner of the plot
- whether or not the plaintiff is entitled to his reliefs.
- Whether or not the defendant is entitled to her reliefs.
On the 30h of August 1999, Peasare J, as he then was sitting at the High Court, Bolgatanga entered judgment for the plaintiff against the defendant for all the reliefs on the writ of summons and statement of claim as amended..
Being naturally aggrieved; the defendant lodged an appeal against the decision. She premised her attack on these grounds:
- That the trial judge did not adequately consider the case of the defendant.
- That the judgment was against the weight of the evidence.
Clearly the issues which confronted the learned trial judge were a mixture of law and facts and he made specific findings on them.
It admits of no argument that an appellate court has the primary duty in an appeal largely based on findings of facts to carefully examine the record of proceedings and to satisfy itself as to whether the evidence on record support the findings so made.
Ordinarily, it is within the competency of a trial judge to make findings of specific facts and an appellant court will not interfere with the decision of the court on the facts unless such decision is shown to be perverse or not the result of a proper exercise of discretion.
Cudjoe Vrs. Kwatchey [1935 2 ] WACA 371. Domfeh Vrs. Adu [1984-86] 1 GLR 655. It must be stated though that an appeal court is not debarred from coming to a conclusion on the facts in a proper case
Learned Counsel for the defendant contended that the learned judge did not adequately consider the case for the defendant.
The gist of the plaintiff’s case is that he was granted lease of the plot in issue by the Government of Ghana, the transaction was reduced into writing as per Exhibit B, he thereafter engaged artisans after obtaining a building permit; that he developed the property from his own resources and named the artisans who were engaged in the construction. The artisans corroborated the evidence of the plaintiff on the issue of engagement and that he provided the materials for the construction and paid them wages as well.
In her pleadings the defendant averred that the land was gifted to her upon contracting her marriage with the plaintiff, and that even though she financed the project from her own resources, she intended same to be jointly owned by them out of love and affection.
In court however she testified that the land belonged to her father; that after her marriage, she approached her father in the company of the plaintiff; the land was granted to them, she performed the customary rites in relation to the grant and subsequently financed the construction through her trading activities.
It is evident that the court preferred the evidence of the plaintiff to that of the defendant on the issue of both the acquisition and the development thereof. I must say I do unhesitatingly agree with the findings of the Learned Judge for the evidence on record supports the findings so made.
It is evident that the land in issue was vested in the Government of Ghana in trust for the Navrongo skin as far back as 1963; significantly the transaction between the plaintiff and the Government of Ghana on the land took place in 1975.
Therefore assuming the defendant’s father had any links to the land, E187 did sever them and vested the land in the President who became the proper authority to alienate those lands. Indeed there is evidence that the Plaintiff applied to the Lands Commission, before his application, no other person had applied for the allocation of the plot; he went through the laid down procedure, the lease was executed and in, the records of the Lands Commission, the Plaintiff is the bona fide owner.
On her part the defendant gave evidence which stood at variance with her pleadings, for even though in the statement of defence, she averred that the land was gifted to her upon her marriage, in court she said she approached the father in the company of her husband to request for the land and she performed the customary rites. The 2 scenarios cannot be the same, and it is trite learning that a party, being bound by her pleadings cannot be allowed to set up a case which is at variance with her pleadings Dam Vrs. Addo [1962] 2 GLR 200
Her brother naturally corroborated her evidence on the acquisition, but having regard to the evidence led,particularly,the force of Exhibit B; the written document on the transaction, the learned judge rightly, in my view, rejected the evidence of the defendant, for in DUAH VRS. YORKWA [1993-94] 1 GLR 217; it was held that where there is in existence a written document and oral evidence over a transaction the practice is to consider both the oral and documentary evidence and often lean favourably towards the documentary evidence particularly where there is no question as to its authenticity. In the instant case, in the light of the existence of exhibit B and the evidence led by the official from the Lands Commission, the pieces of evidence offered by the defendant and her brother fell and they were rightly rejected by the learned Judge. Therefore,contrary to the assertions of learned counsel for the defendant,learned Judge adequately considered the evidence offered by the defendant on the issue and came to the right conclusions. Therefore the attack mounted against the judgment on that front cannot be sustained. The appeal therefore fails on the ground.
On the 2nd ground of appeal, namely that the judgment was against the weight of evidence, I must say the learned counsel for the defendant did not demonstrate this in his submission; it is not sufficient to trot out, as it were, the fact that the judgment was against the weight of evidence, without demonstrating where the imbalance occurred. proof in an action for a declaration of title to land is the preponderance of the probabilities. Adwubeng v. Domfeh [1996-97] S.C. GLR 670.
The plaintiff is required not only to lead evidence on the identity of the land, he must also show acts of possession. In the instant case, it cannot be said the plaintiff failed; for he led evidence that he made the requisite application, his evidence was corroborated by PW1 the official from the Lands Commission; which had the authority to process such allocations as agents of the Government of Ghana. The evidence of the defendant on the acquisition was not credible having regard to the conflicts.
On the development of the plot; even though the defendant claimed that she financed same,the witnesses for the plaintiff; particularly the artisans were unshaken during cross examination: the learned judge preferred the evidence of the plaintiff and his witnesses to the defendant’s, the balance therefore rightly titled in favour of the plaintiff.
I am of the view that in terms of quality; the evidence led by the plaintiff on the issue was superior and therefore the learned Judge’s findings cannot be faulted.
The appeal fails on this ground as well.
In the result, I would dismiss the appeal and affirm the decision of the High Court, Bolgatanga . The appeal is accordingly dismissed.
V. AKOTO-BAMFO[MRS]
JUSTICE OF APPEAL
I agree.
R. T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
I also agree. A. ASARE KORANG
JUSTICE OF APPEAL
COUNSEL - GABRIEL PWANANG FOR APPELLANT.
~eb~ A.A. LUGUTERAH FOR RESPONDENT.
