Laryea And Another Vrs Adjei And Others (NO. C.A. 46/2002) [2006] GHACA 7 (17 February 2006);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL [CIVIL DIVISION]
ACCRA - GHANA, A.D. 2005
CORAM - FARKYE, JA [PRESIDING]
ABBAN, JA [MRS.]
MARFUL SAU, J
CIVIL APPEAL
NO. C.A. 46/2002
17TH FEBRUARY, 2006
(1) NANCY LARYEA ] … PLAINTIFFS/RESPONDENTS
(2) AGNES LARYEA ]
V E R S U S
(1) JAMES ADJEI
(2) EMMA ALLOTEY … DEFENDANTS/APPELLANTS
(3) REBECCA QUARSHIE
(4) DANIEL QUARSHIE
(5) ROSE QUARSHIE
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J U D G M E N T
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ABBAN, JA - This is an appeal against the judgment of His Honour G.N. Minta sitting at the Circuit Court, Accra and delivered on 5th February 2002 which judgment went against the Co-Defendant/Appellant.
The Plaintiffs (hereinafter called the Respondents) issued out a writ for the recovery of possession of all the rooms the defendants occupy in House No. E. 487/16, Maamobi, Accra. The Co-Defendant (hereinafter called the Appellant) counter-claimed for the following reliefs:-
- A declaration that House No. E. 487/16, Maamobi belonged to Yemoteley
Ashong (Deceased).
- A declaration that the distribution of the Estate done by the elders after the
demise of Yemoteley Ashong was valid; or in the alternative.
- An order for the distribution of the Estate of Yamoteley Ashong to her
children.
- A declaration of ownership to the late Kweiki Quaynor and Co-Defendant,
Madam Afua Allotey.
- A declaration that the purported documents on the house are void.
- An order of perpetual injunction restraining the plaintiffs herein from holding
themselves out as joint owners of the said property.
- Costs.
The facts of this case are that the Respondents filed a writ to eject the defendants who are tenants in House No. E. 487/16 Maamobi, the house in dispute.
The Appellant counter-claimed for the reliefs stated supra.
The 2nd Respondent who gave evidence on behalf of herself and 1st Respondent, informed the court that their mother Kweiki Quaynor (deceased) owned house No. E. 487/16 Maamobi and she died in December 1982. According to 2nd Respondent the mother bought the land from the Osu Ashanti Stool. After the death of the mother, Letters of Administration were granted to the deceased’s four children namely: Nancy, Agnes, Albert and Theresa Laryea. The Letters of Administration was tendered as Exhibit ‘A’ after an objection from Defence Counsel had been over-ruled.
According to 2nd Respondent the deceased mother put up the house in 1964/65 but could not complete it because of illness. Later on however she recovered from the said illness and completed the building and rented the rooms out to Tenants. The 2nd Respondent stated that her grandmother’s name was Yemoteley Ashong and she lived at Osu Ashanti. She was about 80 – 85 years old, was not working and was looked after by Kweiki Quaynor (deceased).
Pursuant to leave granted the Appellant to do so, on 24/3/05, she filed five additional grounds of appeal.
Her original ground of appeal is the omnibus ground of appeal to wit
“The judgment is not supported by the weight of evidence…….”
The additional grounds filed are as follows:-
(1) The evidence of the Plaintiff/Respondents was riddled with such contradictions
on material issues that their evidence ought to have been disbelieved.
- The trial judge failed to properly evaluate the evidence adduced by the parties.
If he had done so he would not have arrived at the conclusion that he did.
- The Trial Judge erred in law in failing to record the nature of objections raised
To the admissibility of the documents admitted or rejected in evidence and the replies thereto and those which were rejected before ruling on the objections.
- The Trial Judge erred in law when he declared the Respondents the owners of
the property when the writ of summons which initiated the said action contained no such relief nor was there any amendment to claim such a relief.
(5) That the Trial Judge (with all due respect) erred in law when he completely
disregarded the evidence of the Accra Metropolitan Assembly as to the owner-
ship of the property at various periods of time and the dates when the change
in ownership was made.
- The Trial Judge erred in law by failing to apply the principle laid down by the
Supreme Court in Amuzu Vrs. Oklika (1998-1999) S GLR 140 to make a finding of fraud on the evidence against the Respondents even though fraud was not specifically pleaded by the Appellant.
By their statement of claim, the Respondents describe themselves as co-owners of
House No. E. 487/16, Maamobi, Accra; and the Defendants are all tenants in the said house. The Respondents went on to state that on 11th June 1998, through their solicitor, the Defendants were given three (3) months’ notice to quit the said house. Their reason for the ejectment is that they needed the rooms for members of their family to occupy. As at 17th November 1998, the Defendants had refused to quit the premises in spite of the fact that the notice given them had expired long ago.
The Defendants in their statement of defence stated inter alia that it was the Co-Defendant/Appellant who was their landlady and to whom they had been paying rent for periods ranging between twenty – twenty-seven years.
Thereafter summons for directions was filed by the Respondents’ Solicitor. The issues to be tried were as follows:-
(a) Whether or not Plaintiffs are co-owners of House No. E. 487/16, Maamobi,
Accra.
(b) Whether or not House No. E 487/16, Maamobi was originally owned by
Kweiki Quaynor.
- Whether or not House No. E. 487/16 Maamobi, Accra was owned by Madam
Yemoteley Ashong.
- Whether or not Madam Kweiki Quaynor bought the land in dispute from
Osu Stool.
- Whether or not the Defendants forfeit their rights to be tenants in House No.
E. 487/16 Maamobi, Accra for denying the title of the Plaintiffs.
(f) Whether or not Plaintiffs changed the name on the property rates bills from
Yemoteley Ashong to Kweiki Quaynor.
(g) Whether or not the distribution of the house in dispute by the elders was valid
or lawful.
The Defendants’ Solicitor filed two additional issues namely
(1) Whether or not the defendants have been paying rent to Plaintiffs?
- Whether or not there are valid documents on the said property, House No.
E. 487/16, Maamobi, Accra.
Issues having been agreed upon, the Plaintiffs sought to lead evidence to establish how the property which they claim belonged to their mother was acquired by the said mother Kweiki Quaynor. In (deceased) proof of the ownership of the property, 2nd Respondent testified that her mother acquired the land from the Osu Ashanti family from Maamobi she then tendered Exhibit ‘A’ – Letters of Administration granted in respect of the Estate of Kweiki Quaynor (deceased) in support of this claim.
The Learned Trial Judge found as follows:
“From the evidence adduced in court, I find as a fact that House No. E. 487/16 Maamobi belonged to the late Kweiki Quaynor which ownership devolved onto her children by virtue of the Letters of Administration granted to Nancy Larye and Agnes Laryea on 30th December 1997 from which they took vesting assent on 19th May1998 on behalf of Nancy Ayorkor Laryea, Albert Sowah Laryea, Theresa Kai Laryea and Agnes Laryea. The Letters of Administration was tendered as Exhibit ‘A’.”
In our opinion, the finding of the Trial Judge based on the mere production of “Exhibit A” is wrong. We tend to agree with Counsel for the appellant that the evidence adduced was to show how the deceased acquired the property but not how the property devolved onto her children. Since the 2nd Respondent testified that her late mother acquired the land from Osu Ashanti Stool in 1951, then the evidence in proof of this should have been the proof of purchase, gift, lease, assignment or other evidence of the transaction between the late Kweiki Quaynor and the Osu Ashanti Stool. The Learned Trial Judge erred in law therefore, in relying on the Exhibit A (Letter of Administration) in proof of the acquisition of the land by Kweiki Quaynor (deceased).
We also agree with Learned Counsel’s submission that the Respondent lines 27-33 in cross-examination denied 2nd Respondent’s contention that the requisite notices were put up before the grant of the Letters of Administration. The Appellant’s challenge was that no notices were put up otherwise she would have challenged the application for grant of Letters of Administration. The Respondent failed to prove that any such notices were filed and put up by her. The Respondents therefore failed to discharge the burden of proof that the notices were put up in due compliance with the law. The requirements of S. 10 of the Evidence Decree 1975, N.R.C.D 323 and S.11(1)(4) were not discharged by the Respondents. They could have called the bailiff who posted the notices or in the alternative produced some proof that the court had ordered notices to be put up. All that the 2nd Respondent did was to state on oath that notices had been put up. The Trial Judge was therefore wrong in placing so much emphasis on the Letters of Administration. We also agree with the Appellant’s submission that the vesting assent without more cannot be proof of the acquisition of the land from the Osu Ashanti Stool by Kweiki Quaynor, (deceased). The Learned Trial Judge was wrong in concluding that:
“From the evidence adduced in court, I find as a fact that house No. E. 487/16 Maamobi belonged to the late Kweiki Quaynor which ownerwship devolved onto her children by virtue of Letters of Administration granted to Nancy Laryea and Agnes Laryea on 30th December 1997 from which they took vesting assent on 19th May 1998 on behalf of themselves and Albert Sowah Laryea and Theresa Kai Laryea.”
In his judgment the Learned Trial Judge concluded as follows:
“The 2nd Defendant, DW1 and DW2 gave evidence in respect of the property rate but their evidence could not help the court to determine the question of the ownership of the property numbered E. 487/16 Maamobi. Their evidence was based particularly on the payment of the property rate they but could not tell how the house was built and who built it and what work the Co-defendant did in her youthful days. Ownership of property cannot be determined by payment and receipts of property rates. It must be determined by evidential proof as evidenced by the documents tendered by the Plaintiffs?”
In our opinion we think the Learned Trial Judge erred in coming to this conclusion considering the fact that the 2nd Respondent was not able to produce the original receipt evidencing purchase by Kweiki Quayor (deceased). Exhibit “B” purporting to be a certificate dated 2/88/91 from the chief of Maamobi Mohammed Awuley Nii Akwei Saka certifying that a previous certificate given to Kweiki Quaynor in 1951 was lost and the current one replaces the lost one.
Meanwhile there was no evidence that Kweiki Quaynor ever complained to the Maamobi chief about losing a receipt in respect of the purchase of the land and wanting a replacement. This replaced a certificate was issued in 1991 whilst Kweiki Quaynor died in December 1982, nine years after the alleged owners death.
It is strange that the Learned Trial Judge failed to place emphasis on the evidence of DW1 – Ebenezer Asiamah of the Valuation Department, A.M.A. His evidence was so crucial that the Learned Trial Judge should not have glossed over it, since he was a material witness whose evidence was going to sway the case one way or the other. He stated in evidence-in-chief as follows:-
“According to the Land Valuation Board List Vol. I, Ayawaso of 1/3/86, the valuation No. A.104007054 and the new No. E. 487/16 and the old No. C. 112613, during 1963 the name is Madam Yemoteley Ashong and the new name on it is Kweiki Quaynor and the date is 1/3/86. Our Estate Department renumbered it in 1986. After the re-numbering the LVB did revaluation in the whole of Accra.
During this exercise the name changed to Kweiki Quaynor from Yemoteley Ashong. Is it in Maamobi? Yes.”
From the cross-examination of DW1 the 2nd Respondent sought to establish that Kweiki Quaynor was paying the rates on the property in dispute. Yet the DW1 stated categorically that Kweiki Quaynor’s name came into their records during the re-valuation in Accra on 1st March 1986, thus establishing that it was not until 1986 that demands for property rate was made on Kweiki Quaynor who at that time was dead.
From the record of appeal, as at 1st March 1986, Kweiki Quaynor was dead. The evidence of 2nd Respondent, Agnes Laryea, shows that the house was built between 1964-1965. How can a dead person pay for property rates?
The change from Yemoteley Ashong’s name into Kweiki Quaynor’s name at the Land Valuation Board of the A.M.A. during the revaluation exercise could not have been done by Kweiki Quaynor herself because she had then been dead for 4 years. So who did the changing? Before 1986, why was Yemoteley Ashong paying the rates if she never put up the building?
On the totality of the evidence, the Appellant’s version that the building was put up by Yemoteley Ashong, and that upon her demise, the rooms were shared between her and her late sister Kweiki Quaynor, sounds more reasonably probable. This piece of evidence was supported by the fact that she even have tenants in the house some of who have been paying rent to her for 36 years. This is the 2nd Defendant who had lived in the said house from 1963. In fact his evidence which we reproduce verbatim here clearly shows that the deceased Plaintiff’s mother had nothing to do with him before her death as a landlady –
“One day the Co-defendant came with some elders from Osu. It was a Sunday and they came to distribute the rooms to the daughters. I was not part but was told by my wife that my position was for the Co-defendant. After three days the mother of Rose Quarshie came with her husband to say the house has been shared so my portion falls within her portions, so Co-defendant said I should live there and take care of the house.
From that time I was paying rent to the Co-defendant……….. The Plaintiffs’ mother came there on one occasion to the house and said she was no longer my landlady and the Co-defendant was. The Plaintiffs have brought you to court as their tenant? I know not that they are my landlord. It is the Co-defendant who has been my landlord for the past 36 years.”
The case of Co-defendant was corroborated by DW2 and DW3. They were not discredited in cross-examination in any way. Strangely, the Learned Trial Judge allowed all the documents tendered by the Plaintiffs to go in and rejeced all documents sought to be tendered by the Co-defendant without giving reasons for the rejection.
On the totality of the evidence adduced at the court below, we find that the Learned Trial Judge came to the wrong conclusion in finding for the Plaintiffs, when in fact the evidence showed otherwise.
There is no evidence that the Plaintiffs are the Co-owners of House No. E. 487/16 Maamobi and therefore landlords to all the defendants who are tenants in the said house. They are therefore not entitled to recovery of possession of all the rooms the Defendants occupy in the said house.
By this, we are of the opinion that the appeal of the Co-defendant succeeds. The judgment of the Trial Judge is set aside as well as any consequential orders flowing from it. We make a finding that House no E. 487/16 Maamobi is jointly owned by the Co-defendant and her late sister Kweiki Quaynor (deceased) and that the said property devolved on them through Ga customary succession on the death of their mother Yemoteley Ashong who died in 1962.
The Co-defendant succeeds on her counter-claim and the court make the following orders:
Appeal of the Co-defendant succeeds. The judgment of the trial court is set aside as well as any consequential orders flowing from it. We accordingly enter judgment for the Co-defendant/Appellant on her counterclaim as follows:-
(1) That House No. E. 487/16 Maamobi was acquired by Yemoteley Ashong
(Deceased) .
(2) That on the death of Yemoteley Ashong the property House No. E. 487/16,
in accordance with Ga Customary Succession devolved to the Co-
defendant/Appellant and her late sister Kweiki Quaynor, the mother of the
Plaintiffs/Respondents.
(3) That the property be distributed to the two children of Yemoteley Ashong
(deceased) or their respective descendants.
(4) That the purported documents on the said house are null and void and we so
declare.
(5) Finally we declare the children of the late Yemoteley
Ashong or their descendants are joint owners of House No. E. 487/16 Maamobi Accra.
Costs of ¢10 million to Co-defendant/Appellant as against the Plaintiffs/Respondents.
HENRIETTA ABBAN [MRS.]
JUSTICE OF APPEAL
S.T. FARKYE
JUSTICE OF APPEAL
S.K. MARFUL-SAU
JUSTICE OF THE HIGH COURT
COUNSEL - MR. APPIAH KUBI FOR PLAINTIFFS/RESPONDENTS
MR. HAYIBOR FOR THE CO-DEFENDANTS/APPELLANTS
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