F.A. JANTUAH vs. MRS. JANE C. JANTUAH AND ANTHONY O. JANTUAH [2007]DLCA7014

Date	2007-07-13
Suit No.	CIVIL APPEAL NO. H1/191/2005
Citation No.	[2007]DLCA7014

BADDOO JA (PRESIDING)

ANSAH JA.

GBADEGBE JA.

[2007]DLCA7014
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													<main id="main" class="content" style="min-height: 60rem" >F.A. JANTUAH<o:p></o:p>(DEFENDANT/ APPELLANTS)<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
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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">MRS. JANE C. JANTUAH AND ANTHONY O. JANTUAH<o:p></o:p>(PLAINTIFFS/ RESPONDENTS)<o:p></o:p><o:p>&nbsp;</o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. H1/191/2005 &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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 13TH JULY, 2007<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;
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BADDOO JA (PRESIDING), ANSAH JA.,
GBADEGBE JA.<o:p></o:p>

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</div>ANSAH,
JA:<o:p></o:p>This
is an appeal from the judgment of the High Court, Kumasi, given on 8th November
1996. The plaintiff sought a declaration that H/No. Block 6, Dichemso, Kumasi
was acquired from the proceeds from his pharmacy in Kumasi and the sale of his
Vanguard Saloon car. He also sought a declaration that a cocoa farm at Atronie
in Atuahenekrom, Brong Ahafo Region, was acquired by Madam Afua Gyamaa and was
family property. Lastly, he sought a perpetual injunction to restrain the
plaintiff and her descendants from interfering with the subject matter of this
suit. <o:p></o:p>The
defendant denied the plaintiff’s claim and also counterclaimed for the reliefs
that the aforementioned house and the cocoa farm at Atronie are the bona fide
properties of her deceased husband, the late John Adutwum Jantuah. She further
counter-claimed for a declaration that some 15 piece of cloth and items of
furniture that the plaintiff took away belonged to her husband; she sought an
order for their recovery from the plaintiff. She asked for restraining orders
against the plaintiff concerning these properties. I must remark that after
summons for directions had been take and the trial was in progress and the
plaintiff had closed his case, he for no reason made apparent to the court,
abandoned his case completely. With that, all his claims went away and were no
longer the subject of the trial. That left the defendant alone to prosecute her
counterclaim in court.<o:p></o:p>&nbsp;Of the evidence the Court of Appeal will have
special regard to the facts that the judge saw the witnesses; see Clarke v.
Edinburgh Tramways Co, [1919]S.C. (H.L.) 35-36 per Lord Shaw where he says: “
Where he hears and sees witnesses and makes a conclusion or inference with
regard to what is the weight on balance of their evidence, that judgment is
entitled to great respect and that quite irrespective of whether the Judge
makes any observation with regard to credibility or not”. <o:p></o:p>There
are indeed great deals of locally decided cases on when the Court of Appeal
will or not interfere with the decision of a lower court. In Boateng v.
Boateng [1987-88] GLR 81 C.A. it was held that where an appellant contended
that a judgment was against the weight of evidence, he assumed the burden of
showing from the evidence that that was so. Nyame v Tarzan transport [1973]
1 GLR. 8 at 9 also stated the principles upon which an appellate court
would be disposed to or will not be so inclined to reverse a decision of a lower
court (see also Praka v Ketewa [ 1964] GLR. 438, S.C; Oppong Kofi v Fofie
1964 GLR. 174; Bonney v Bonney [1991-92 GLR. 779.<o:p></o:p>&nbsp;I don’t think the condition in the above case
were satisfied so as to compel this Court to disturbed the finding of facts and
the conclusion by the Judge.<o:p></o:p>&nbsp;On the facts of this case as rightly found by
the trial judge all relevant documents of title were in the name of the
deceased. The common law presumption in those circumstances was that he had the
legal title to the property. That was not all; he also had the full ownership
of the beneficial title as well. Section 35 of the Evidence Decree (supra) has
preserved this presumption. It made it a rebuttable presumption though. The
onus of rebutting this presumption was on the appellant. On the facts as found
by the trial judge (and I have no good and compelling reasons to assail his
findings on those facts), the appellant did not in my view succeed in rebutting
that presumption.<o:p></o:p>&nbsp;In the result I affirm the decision of the
court below and rather dismiss the appeal. <o:p></o:p>GBADEGBE, JA:<o:p></o:p>&nbsp;My Lords, in this appeal the questions which
arise for our determination as can be discerned from the pleadings of the
parties in terms of the controversy which sparked off the action in the court
below and. indeed the statements submitted to us in these proceedings are
whether or not the building standing on plot number 19 block 6, Dichemso,
Kumasi belonged to the appellant herein or formed part of the estate of his
deceased brother whose widow and child are the first and second respondents
respectively; and also whether or not the cocoa farm situate at Atrohenekrom in
the Brong Ahafo Region belonged to the said deceased or the family to which he
belonged in his lifetime? So stated, the instant appeal turns essentially on
the findings of fact the several grounds of appeal seeking to challenge the
conclusions reached by the learned trial judge on the contested facts and
therefore to succeed the appellant has to show that the said findings are not
supported by the evidence or are unreasonable and or perverse, the question
here being n</main>