OBENG vs. BEMPOMAA [1993]DLCA4911

Date	1993-11-18
Suit No.	[1992 – 1993] 3 G B R 1027 – 1037 C.A
Citation No.	[1993]DLCA4911

LAMPTEY JA

BROBBEY JA

FORSTER JA

KWAKU BAAH FOR THE APPELLANT.

BERCHIE-ANTWI FOR THE RESPONDENT.

[1993]DLCA4911
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													<main id="main" class="content" style="min-height: 60rem" >OBENG<o:p></o:p>vs.<o:p></o:p>BEMPOMAA<o:p></o:p>[COURT
OF APPEAL]<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">

[1992 – 1993] 3 G B R 1027 – 1037
C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 18 NOVEMBER 1993<o:p></o:p>

BERCHIE-ANTWI
FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:<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">

LAMPTEY
JA, BROBBEY JA, FORSTER JA<o:p></o:p>

</div><o:p>&nbsp;</o:p>LAMPTEY JA. <o:p></o:p>On
the 20 December 1974 Moses Yaw Obeng made a will and by clause 2 devised house
No 36 Agogo in the Ashanti Region to his wife, Felicia Bempomaah (the
respondent herein) and her children. Death laid its icy hands on Moses Obeng on
14 January 1983 at Agogo Ashanti. When the will of the deceased Moses Obeng was
read after his death, Isaac Kwaku Obeng, in his capacity as head of the family
and customary successor of the deceased, authorised one Seth Oduro Amaa to sue the
respondent for a declaration that house No 36 Agogo Ashanti was family
property, not the self-acquired property of the deceased, Moses Obeng.
Additionally, the plaintiff sought the following ancillary reliefs: recovery of
possession and perpetual injunction. He also sought an order striking out
clause 2 of the will. At the conclusion of the hearing of the case, the Kumasi
High Court judge dismissed the action. Aggrieved by the judgment, the plaintiff
appealed to this court.<o:p></o:p>Two
grounds of appeal were argued on behalf of the plaintiff. The first ground was
that the trial judge erred in law when he held that the plaintiff did not prove
the title he claimed. Learned counsel for the plaintiff submitted that the
evidence adduced by the plaintiff and his witnesses established the claim of
the plaintiff. He contended that the trial judge should have believed and
accepted the evidence proffered by the witnesses of the plaintiff to prove the
acquisition of the land on which the house in dispute stood. According to him
the conflicts in the evidence of the plaintiff and his witnesses were minor
conflicts. He complained that the trial judge placed undue weight on the
evidence led by the respondent without giving reasons for so doing. He stated
that the case of the respondent was also full of inconsistencies yet the trial
judge overlooked these. He submitted that the trial judge was wrong in
accepting the case of the defendant.<o:p></o:p>In
reply, learned counsel for the respondent submitted that the trial judge was
right in law in the conclusion he reached. He took the court through the record
to demonstrate that the plaintiff failed to attain the standard of proof
required of him. He pointed out serious conflicts and glaring contradictions in
the evidence led by the plaintiff and his witnesses and submitted that they
were fatal to the case put forward by the plaintiff. The defence put up by the
defendant was not disputed or challenged. The trial judge was right in
believing and accepting it.<o:p></o:p>I
must observe at this early stage that the trial judge was in no doubt that the
plaintiff assumed the burden of proving his claim and was to succeed on the
strength of his own case. On this issue he made reference to the following
decided cases: Rufai v Ricketts (1934) WACA 95, Kodilinye v Odu (1935) 2 WACA
336, Wangara v Wangara [1982-83] GLR 639, Duagbor v Akyea Djamson [1984-86] 1
GLR 697, CA and Ebu v Ababio&nbsp; (1956) 2
WALR 55, PC. It has not been shown that the trial judge applied the wrong
principles of law to the facts before him. Indeed, the evidence before the
court supported the findings of fact made by the trial judge. The argument that
the conflicts in the evidence of plaintiff and that of his witnesses were not
fatal to his claim is clearly and plainly misconceived.<o:p></o:p>In
the instant case, the evidence led by the plaintiff and his witnesses failed to
establish who had actually purchased the land in dispute. There was no evidence
to explain why the late Moses Obeng was permitted to build on the land in
dispute and further, why he exercised overt acts of ownership over the land in
dispute throughout his lifetime. There was no evidence that Salome Nketia and
or Salome Obenewaah who, according to the plaintiff bought the land, farmed on
the land in dispute. There was no evidence that any of the female or male
members of the family of these two women farmed on the land in dispute.
Contrary to custom among the Akans, there was undisputed evidence that the wife
of the late Moses Obeng, the respondent herein, and a stranger in Obeng’s
family farmed onions on the land in dispute. More importantly, there was
undisputed evidence that the late Moses Obeng built house No 36 on the land in
dispute. When the house was completed, it took him some time to invite Salome
Nketia and after some further passage of time to invite Salome Obenewaah to
come and live in one room each in the house. In my opinion, the above pieces of
evidence adduced by the respondent destroyed the claim put forward by the
plaintiff.<o:p></o:p>I
now turn to the evidence relating to what transpired at the first session.
There was evidence from PW2, R M Wireko on this issue. He repeated evidence
which he stated was given before the first session of the Presbyterian Church
at Agogo. This was what he said:<o:p></o:p>“At the first session, Mama Nketia
told us that it was her mother who had acquired the land and because Moses
Obeng was the eldest child they used his name on the plot.”<o:p></o:p>It
will be seen from the above passage that the land was acquired by Salome
Nketia’s mother. This meant that the mother of Moses Obeng was not a
co-purchaser and therefore not a co-owner or joint owner with Salome Nketia.
The pleading of the plaintiff was that the land in dispute was jointly acquired
by Salome Nketia and Salome Obenewaah. From all the above matters it is plain
and clear that the issue of who had purchased the land in dispute was decided
in favour of Salome Nketia’s mother by the first session. This decision of the
first session is in conflict with the pleadings. The trial judge was right when
he rejected the evidence which showed that the first session held that the land
in dispute was the family property of the late Moses Obeng.<o:p></o:p>I
wish to make a further observation on the meeting and decision of the first
session. The evidence of PW1, Rev Darko was plainly hearsay evidence. He
admitted that he was not present and did not take part in the proceedings of
the first session. The plaintiff’s attorney, Isaac Kwaku Obeng told the court
that he did not attend the meeting of the first session. His evidence touching
upon what took place at that meeting was hearsay, and clearly not admissible
evidence. The other piece of evidence as to what took place at the meeting of
the first session was given by PW2, Wireko. I have already reproduced th</main>