THOMAS KWAKU MARFO, YAA POKUA AND JOHN KOJO TAAH vs. KWAME ANTWI A. BOATENG AND PATRICIA NYANKOMANGO [2008]DLCA6638

THOMAS KWAKU MARFO, YAA POKUA AND JOHN KOJO TAAH vs. KWAME ANTWI A. BOATENG AND... [2008]DLCA6638

Date	2008-04-14
Suit No.	CIVIL APPEAL H1/315/2005
Citation No.	[2008]DLCA6638

GBADEGBE J.A. [PRESIDING]

PIESARE J. A.

DUOSE J. A.

[2008]DLCA6638
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													<main id="main" class="content" style="min-height: 60rem" >THOMAS KWAKU
MARFO, YAA POKUA AND JOHN KOJO TAAH<o:p></o:p>(PLAINTIFFS/RESPONDENTS)<o:p></o:p>vs.<o:p></o:p>KWAME ANTWI
A. BOATENG AND PATRICIA NYANKOMANGO<o:p></o:p>(DEFENDANTS/APPELLANTS)<o:p></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 H1/315/2005&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; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 14TH APRIL, 2008<o:p></o:p>

GBADEGBE J.A. [PRESIDING], PIESARE J.
A., DUOSE J. A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>GBADEGBE,
J.A. <o:p></o:p>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. <o:p></o:p>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. <o:p></o:p>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: <o:p></o:p>“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 interest.” <o:p></o:p>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. <o:p></o:p>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</main>