Marfo And Others Vrs Boateng And Another (H1/222/2005) [2008] GHACA 31 (14 April 2008);





                    PIESARE, J. A.

                    DUOSE, J. A.



                                                                                                             14TH APRIL, 2008






2.  YAA POKUA                                            …    PLAINTIFFS/RESPONDENTS



           V E R S U S





                                      J  U  D  G  M  E  N  T



GBADEGBE, J.A.:-  This is an appeal from the decision of an Accra Circuit Court that allowed in favour of the respondents herein their claims in respect of the disputed property situate at La-Bone in Accra.  In his judgment, the learned trial judge accepted the case of the respondents that the disputed property belongs to the maternal family of the deceased Opanyin Kutu Acheampong as well as ancillary reliefs  Following the said judgment; the appellants initiated a process by way of judicial correction before us in these proceedings.  In their complaint the appellants raised issue over the finding that the 1st appellant held the property on behalf of the plaintiff’s family and also attacked the evaluation of the evidence under the general ground that the judgment is against the weight of the evidence.  I have set out the two grounds as it seems to me from the record of proceedings and the statements submitted to us that they are relevant to our determination of the appeal herein.

            In my view our determination in these proceedings must turn primarily on which of the contending parties own the disputed property.  I have carefully considered the statements submitted to us together with the record of proceedings and come to the conclusion that on the available evidence the learned trial judge appears not to have taken

into account certain matters that occurred prior in point of time to the commencement of the action herein that have a decisive effect on the rights of the parties.  The first such matter is the confiscation of the property and its subsequent release and or deconfiscation by the Commission of Human Rights and Administrative Justice (hereinafter or convenience referred to as the Commission).  The unchallenged evidence shows that the property was confiscated sometime after the overthrow of the Acheampong regime on the ground that it was unlawfully acquired by him.  Several attempts were made during the era of the PNDC to have it deconfiscated but these met with no success.  In the constitutional era described as the Fourth Republic, however following representations made in the nature of a petition by the 1st appellant, the property was released to him by the Commission.  In the proceedings in the court below and indeed before us in the court of the appeal herein no issue has been raised over the statutory authority of the Commission for Human Rights and Administrative Justice to receive and pronounce on the petition as evidenced by Exhibit 2 at page 338 of the record of proceedings.  Therefore, in my thinking the presumption in Section 37 of the Evidence Act, 1975 (NRCD 323) concerning the regularity of official acts applies.  In his judgment that is under attack before us the learned trial judge at page 251 of the record of proceedings in the course of his delivery set out three issues, which in his opinion were raised by the parties before him.  And although the admitted evidence includes the proceedings before the Commission he did not think that it was of any consequence to the issues that he had to resolve.  Accordingly, he placed little or no weight  to its effect.  I think that he fell into error for that was a proceeding prior in point of time and the conduct of the parties may have certain attributes at law which he ought to have taken cognizance of.

Before the Commission the 1st appellant made a personal claim to the property.  His claim that was contained in a petition was not challenged by the respondents.  In fact, it is important to say that the respondent family was aware of the claim by the 1st appellant to the property and even assisted him in prosecuting the petition.  In my opinion, this being the case the respondents had as it were by their conduct made a representation that the property belonged to the 1st appellant.  I think that their conduct comes within the language of Section 26 of the Evidence Act, 1975 (NRCD 323), which provides thus:       

“Except as otherwise provided by law, including a rule of equity,

  when a party has, by his own statement, act or omission,

  intentionally and deliberately caused or permitted another person

  to believe a thing to be true and act upon such belief, the truth of

  that thing shall be conclusively presumed against that part or his

  successors in interest in any proceedings between that party or his

  successors in interest and such relying person or his successors in


Under Section 24 of the Evidence Act where the basic facts that give rise to a conclusive presumption are established in the action, no evidence contrary to its effect may be considered by the court.  In my view by not considering the effect of this evidence on the issues that he had to decide the learned trial judge fell into an error. I observe that this prior proceeding was before a constitutional body that had the legal mandate to inquire into confiscated properties and that the conduct of the respondent at the time was an unequivocal act that gave credence to the 1st appellant’s claim to the property.  In particular, I thin that their silence in the face of the claim by the 1st appellant was unreasonable there being a clear duty on their part to assert their interest.  Their silence is deemed to be an admission against their own interest.

See:  Wieidemann v Walpole [[1891] 2 QB 534.  The primary fact established by the proceedings before the Commission was an affirmation of the 1st appellant’s ownership of the property.  Fraud aside the claim by the 1st appellant’s is a clear and positive act of ownership exercised  in the eye of the whole world that was acknowledged by the respondents and cannot be ignored in subsequent proceedings on the same subject matter.

See Lazarus Estates Ltd. V Beasley [1956] 1 All ER 341.

On that view of the matter it is not necessary to consider the other issues that arise in the appeal herein but I shall proceed with the matter as if that view were wrong.  I next turn my attention to part of the evidence that was accepted by the learned trial judge as supportive of the respondent’s claim.  They relate to matters that occurred after the property was released to the 1st appellant by the Commission.  I have carefully considered them and I am of the view that they were in their nature evidence of attempts by the  parties to come to a compromise over the disputed property and those attempts having failed the evidence regarding them was of no effect at law and ought not to have informed the decision of the court.  I think that the evidence on these efforts to settle the matter were inadmissible and do hereby expunge them from the record of proceedings.  In my opinion those meetings were attempted by the                                                                                                                                                                                                                                  respondent to come to some agreement with these appellant over his ownership of the property and consisted in the main of efforts to agree on a sale of the property and how the proceeds might be shared.  Unfortunately, these meetings did not result in a compromise and as such the ownership of the 1st appellant was unaffected by them.  If they had resulted in a compromise I have no doubt in my mind that its effect would have been to substitute for the parties rights that are derived from the compromise, which would supersede whatever rights the 1st appellant may have had previously.  In taking cognizance of this point I am mindful that it is a point that none of the parties have raised but it being a point of law that is apparent from a consideration of the record it is a matter that this court can take on its own else we may allow judgment to be entered per incuriam.  This aside, the Evidence Act, 1975 Section 8 permits a court so to act.  It provides:

            “Evidence that would be inadmissible if objected to by a party may

              be excluded by the court on its own motion.”

See:  Nasser v Mc Vroom [1996-97] SCGLR 468 at 474.

            In my thinking the admission of evidence regarding those matters resulted in a miscarriage of justice in that it tended to create unfair prejudice against the 1st appellant regarding his attendance of those meetings.  Its effect to my mind would also be to create a substantial danger of confusing the issues for trial.  See Section 52 of the Evidence Act of 1975.

            Then there is the unchallenged evidence of the title deeds to the disputed property being in the name of the 1st appellant which has certain legal consequences that I must next consider.

Under Section 35 of the Evidence Act, 1975 (NRCD 323) this fact created a rebuttable presumption in favour of the 1st appellant.  As a result, the initial burden of leading evidence to rebut the effect of the presumption rested on the respondents by virtue of Sections 20 and 21 of the Evidence Act.

            Section 20 of the law provides:

            “A rebuttable presumption imposes upon the party against whom it

             operates the burden of producing evidence and the burden  of

             persuasion as to the non-existence of the presumed fact.”

Section 21 (a) explains the position when a rebuttal presumption arises in an action as follows:

            “In an action where proof by preponderance of probabilities is required:

            (a)  a rebuttal presumption requires the tribunal of fact to assume the

                  existence of the presumed fact unless and until the party against whom

                  the presumption operates proves that the non-existence of the presumed

                  fact is more probable than its existence….”

See:  (1)  Wauchope v Mordecai [1970] 1 All ER 417;

  1. Acquaye v Awotwi [1982 – 83] G.L.R. 1110 at 1115
  2. Amegashie v Okine [1992] 2 G.L.R. 319

At the hearing in the court below the respondents did not lead any direct evidence as to the purchase of the property by a person other than the 1st appellant.  Their evidence was in the main that they know that it was acquired by Opanin Kutu Acheampong.  In my view the evidence tendered by the respondents was not such as to dislodge the effect of the presumption that the law attaches to the title deeds bearing the name of the 1st appellant.  Unfortunately, the learned trial judge did not correctly apply the rules of evidence to its resolution.  In his judgment, for example at page 266 of the record of proceedings, he came to the conclusion that the inability of the 1st appellant to produce any of the receipts for the payments that he had made in respect of the purchase were fatal to his case and accordingly found against him on his claim to having purchased the disputed property.  This clearly is a wrong application of the evidentiary rules having regard to the provisions of the Evidence Act.  The correct position is that as a result of the presumption in favour of the 1st appellant the burden of persuasion by way of leading evidence to dislodge its effect

rested on the respondents.  A clear examination of the judgment creates the unhappy impression that the learned trial judge thought that it was the 1st appellant on whom the initial burden of proof rested and as such in his consideration of the evidence he wrongly placed the evidential burden on him with the result instead of looking for credible evidence from the respondents that might make the non-existence of the presumed fact more probable than its existence, the failure of which would result in the presumed fact being accepted by him, he rather proceeded on the erroneous footing that took no account of the presumption.  Having wrongly applied the evidential burden the natural consequence was that he fell into error in his findings on the contested fact of ownership.  In my opinion had he applied the correct burden of proof he would have come to a different conclusion on the question of who it was who provided the purchase price for the property.  The bare repetition of the pleadings by the respondents without any direct evidence to support their allegation on the other hand does not come within the statutory standard  set out in Sections 20 and 21 of the Evidence Act such as to dislodge the effect of the rebuttable presumption..  In the circumstance, the court below was obliged as a matter of law to come to the conclusion that the existence of the presumed fact is more probable than its non-existence.  It was for these reasons that I pronounced earlier in the course of this delivery that even if the position that I have taken regarding Section 26 of the Evidence Act is rooted in error, by applying the correct standard of proof in the matter the only reasonable conclusion that one may reach on the evidence is that the property was purchased by the 1st appellant.  His unchallenged claim of ownership to the property as well as renting it out without any challenge from the respondents are very positive acts of ownership that tilt the balance of probabilities in his favour.

In my opinion the effect of the admitted evidence pointed to the reasonable probability that the 1st appellant is the owner of the disputed property.

    On the respondent’s claim to the property generally, I think that it was fraudulent and had the effect of undermining the clear legislative purpose for which provision was made for the confiscation and deconfiscation of property.  The claim of the respondents only after the release of the property creates the impression that they

must have known that the facts on which they relied in asserting their claim may not have found favour with the Commission and indeed that if they had petitioned the property may never have been released to them.  I think that for their claim to be admitted in a court of law the court must have shut its eyes to the obvious public policy contained in the process of confiscation and deconfiscation.  The respondents to my mind were not frank and candid to the court.  For example in their statement of claim they never made any reference to the proceedings before the Commission and only raised it by way of an answer to the statement of defence’s find from the surrounding circumstances that the 1st appellant made his claim vigilantly and when rejected continued to pursue same until it yielded fruits before the Commission.  I think that the above reasons are sufficient to have led the court below to the conclusion that the presumed fact was more probable than its non-existence and proceeded to dismiss the action of the respondents.

    For these reasons, we allow the appeal and set aside the decision of the Circuit Court Accra dated 30 July 2004 and in place thereof make an order allowing reliefs 1 and 2 contained in the 1st appellant’s counterclaim.



                                                                                S. GBADEGBE

                                                                            JUSTICE OF APPEAL


I agree.                                                                  E.K. PIESARE

                                                                           JUSTICE OF APPEAL


I also agree.                                                            I.D. DUOSE

                                                                           JUSTICE OF APPEAL