DUAH vs. YORKWA [1992]DLCA722

Date	1992-11-19
Suit No.	1 GLR 217
Citation No.	[1992]DLCA722

ESSIEM JA

BROBBEY JA

OMARI-SASU J

J K AGYEMANG (WITH HIM OSEI BOATENG) FOR THE APPELLANT.

TABI AMPONSAH FOR THE RESPONDENT.

[1992]DLCA722
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">DUAH<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs.<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">YORKWA<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1993-94] 1 GLR 217<o:p></o: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="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 19
NOVEMBER 1992<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J K AGYEMANG (WITH HIM OSEI BOATENG) FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

TABI AMPONSAH FOR THE RESPONDENT. <o:p></o:p>

ESSIEM, BROBBEY JJA AND OMARI-SASU J<o:p></o:p>

</div>JUDGMENT OF BROBBEY JA.<o:p></o:p>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, Block 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 hereinafter referred to as the
building society. According to the first plaintiff witness, who was one of the
joint owners, they were to repay the loan by monthly instalments of £40.<o:p></o:p>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 £2050. The
building society threatened to sell the house.<o:p></o:p>In these circumstances, the two mortgagors approached one Kwasi
Nyieni for financial assistance. Nyieni was a moneylender. From the evidence of
the first plaintiff witness 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 repaid when Newman and Adom 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>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 the third
plaintiff. Nimoh and Adom withdrew from the case for the reason that Newman had
willed the house to his widow. Oduro however testified as the first plaintiff
witness for Akosua Yorkwa who fought the case to the end and now pursues it as
the sole respondent.<o:p></o:p>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. 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, Kwasi Nyieni,
and the two original joint owners was a pledge or a sale.<o:p></o:p>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.<o:p></o:p>If the appellant was able to establish the sale, that would
exclude the issue of a pledge, and if the respondent was able to establish a
pledge, that would exclude the issue of a 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>I proceed to resolve the issue of onus of proof as follows. First,
this is a land case and therefore the plaintiff 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 the
appellant was in possession of the house. Possession was still with the
appellant, 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 Agyemang
II [1982-83] GLR 852, CA and Twifo Oil Plantation Project Ltd v Ayisi [1982-83]
GLR 881, CA. 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.<o:p></o:p>