<p class="mb-5" id="contentDlCitation" hidden>[1992]DLCA4292</p> <div class="restriction-wrapper"> <div class="container-lg"> <div class="row"> <div class="col-md-12 restricted-content"> <div class="restricted-content-img-wrapper"> <div class="lock-icon bounce-7"> <img class="" src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png" alt="Subscription based content"> </div> </div> <a href="https://www.dennislawgh.com/login" class="btn btn-primary btn-lg" style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> Login to Read Full Case </a> </div> </div> </div> </div> <main id="main" class="content" style="min-height: 60rem" ><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">YORKWA<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif";color:#00B0F0">DUAH<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center;line-height:115%"><span style="font-size:10.0pt;line-height:115%;font-family:"Book Antiqua","serif"">[COURT OF APPEAL, KUMASI]<o:p></o:p></span></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" align="center" style="text-align:center;line-height:115%; border:none;mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in; mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:10.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">[1993 - 4] 1 GBR 255 – 273 DATE: 19 NOVEMBER 1992<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">COUNSEL:<o:p></o:p></span></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" style="text-align:justify;line-height:115%;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">NANA TABI AMPONSAH FOR THE RESPONDENT.<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><b><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">CORAM:<o:p></o:p></span></b></p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt; padding:0in 0in 1.0pt 0in"> <p class="MsoNormal" style="text-align:justify;line-height:115%;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">ESSIEM JA, BROBBEY JA, OMARI-SASU J<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">BROBBEY JA. The facts which gave rise to the litigation between the parties to this case are as follows: One Charles Oduro Newman and Kwadwo Adom Isaac jointly took a loan from the First Ghana Building Society to build a house on plot No 4, 9A, Dadiesoaba in Kumasi. The house thus became jointly owned by the two men. As security for the repayment of that loan, they mortgaged the house to the First Ghana Building Society which I will refer to hereafter as ‘the building society’. According to PW1 who was one of the joint owners, they were to repay the loan by monthly instalments of £40. The loan was taken from the building society in 1959. The repayment fell into arrears. By 1964 the two mortgagors jointly owed £500 on the monthly repayments in addition to the outstanding capital of £2,050. The building society threatened to sell the house.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">In these circumstances, the two mortgagors approached one Kwame Nyieni for financial assistance. Nyieni was a money-lender. From the evidence of PW1, two separate amounts were taken from Nyieni, one in 1961 possibly taken by Newman alone, and the other in 1964. The 1961 amount had not been re-paid when Newman and Oduro approached Nyieni for further financial assistance in 1964. In fact, Nyieni gave them the amounts they required. Possession of the house was given to him. In 1975 Nyieni died, having willed the house which they jointly owned as per exhibit 2 to his son Kwaku Duah who is the appellant herein.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">Kwaku Duah refused to surrender the house to the two joint owners. The two instituted action in the High Court Kumasi claiming five reliefs. Charles Oduro Newman gave evidence but he did not conclude it before he died. His testimony was admitted in evidence as exhibit C. He was substituted by one Kofi Nimoh. Eventually, Adom and Nimoh learnt that Newman had willed the property to his two widows. Akosua Yorkwa, one of the widows, joined the suit as 3rd plaintiff. Nimoh and Adom withdrew from the case for the reason that Newman had willed the house to his widow. Oduro however testified as PW1 for Akosua Yorkwa who fought the case to the end and now pursues it as the sole respondent. In the High Court, judgment was given in favour of the respondent. It is against that judgment that the appellant has appealed to this court.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">A number of issues have been raised in this appeal. By far the most fundamental one is whether the transaction between the appellant’s father, Kwame Nyieni, and the two original joint owners was a pledge or a sale. In the first place, the appellant contends that the onus was on the respondent who asserted that the transaction was a pledge to establish the pledge. The respondent on the other hand maintains that the appellant who asserted that the transaction was a sale had to establish that sale. In other words, each party bases his case on the issue which, if established, will effectively exclude the consideration of the other party’s case.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">I proceed to resolve the issue of onus of proof as follows: Firstly, this is a land case and therefore the plaintiff-respondent must succeed on the strength of her own case. Secondly, there was the issue of possession of the house. The transaction took place in 1964. For nearly ten years the father of appellant was in possession of the house. Possession was still with the appellant and his predecessor at the very time the respondent’s predecessors in title instituted the instant action to retrieve the house. It is now a settled principle that a person in possession and occupation is entitled to the protection of the law against the whole world except the true owner or someone who can prove a better title: see In re Adjancote Acquisition; Klu v Agyeman II [1982-83] GLR 852, Twifo Oil Plantation Project Ltd v Ayisi [1982-83] GLR 881.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">Thirdly, the provisions of the Evidence Decree (1975) NRCD 323 require that in a case like the instant one the obligation to adduce evidence should first be placed on the plaintiff. This view will be further elaborated upon when the respondent’s case, as argued by her counsel, is considered below. On the basis of these three principles, it is my considered view that, initially, the onus of adducing evidence lies on the plaintiff-respondent to have established her assertion of pledge on which her writ and her entire case was based.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">Nana Tabi Amponsah who appears for the plaintiff-respondent contended that because the initial ownership of the property was in the original joint owners and that fact was admitted by the original defendant, the onus shifted to the original defendant who was in possession to have established that he had better title than the original owners. Counsel founded his contention on the authority of Kyiafi v Wono [1967] GLR 463 in which Ollenu JA of blessed memory stated at pages 466-467 that:<o:p></o:p></span></p><p class="MsoNormal" style="margin-left:.5in;text-align:justify;line-height:115%"><i><span style="font-size:12.0pt;line-height: 115%;font-family:"Book Antiqua","serif"">“Where in an action for recovery of possession of land in which it is alleged that the defendant is a licensee, or for redemption of land alleged to have been pledged, the defendant pleads ownership based upon title acquired from the plaintiff, the onus shifts upon the defendant who so admits the original title of the plaintiff to show that the transaction by which he entered into possession of the land is a sale or gift and not a licence or pledge.”<o:p></o:p></span></i></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">That case was decided by the erstwhile Court of Appeal. The practice in this court is that the Court of Appeal usually follows its previous decisions. The decision in that case can therefore only be departed from on reasoned and convincing grounds. In the first place, that decision is contrary to the provisions of the Evidence Decree 1975, (NRCD 323). Part II of NRCD 323 which deals with the burden of proof covers on the one hand the burden of producing evidence under sections 11, 12 and 13. Considering the wording of section 10(1), in the light of the Commentary on the Evidence Decree (pages 14-16), I am of the view that the expression “burden of persuasion” should be interpreted to mean the quantity, quantum, amount, degree or extent of evidence the litigant is obligated to adduce in order to satisfy the requirement of proving a situation or a fact. The burden of persuasion differs from the burden of producing evidence.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">Under sections 11, 12 and 13, particularly section 179(1), the “burden of producing evidence” means the duty or obligation lying on a litigant to lead evidence. In other words, these latter sections cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify;line-height:115%"><span style="font-size:12.0pt;line-height:115%;font-family:"Book Antiqua","serif"">In our jurisprudence, if two parties </main>
