MADAM AKOSUA DUFIE & OR vs. MADAM AMMA FOSUA & OR [2009]DLSC2502

Date	2009-07-27
Suit No.	CIVIL APPEAL NO. J4/25/2006
Citation No.	[2009]DLSC2502

WOOD (MRS) CJ (PRESIDING)

ATUGUBA JSC

ANSAH JSC

ADINYIRA (MRS) JSC

DOTSE JSC.

TOTOE LEGAL SERVICE FOR THE APPELLANT.

W. A.N. ADUMUAH-BOSSMAN FOR THE RESPONDENTS.

[2009]DLSC2502
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													<main id="main" class="content" style="min-height: 60rem" >MADAM AKOSUA DUFIE &amp; OR<o:p></o:p>vs.<o:p></o:p>MADAM AMMA FOSUA &amp; OR<o:p></o:p>[SUPREME
COURT]<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">

CIVIL
APPEAL NO. J4/25/2006&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:
27TH JULY, 2009.<o:p></o:p>

</div>COUNSEL<o:p></o:p>TOTOE
LEGAL SERVICE 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">

W.
A.N. ADUMUAH-BOSSMAN FOR THE RESPONDENTS.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <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">

WOOD
(MRS), CJ (PRESIDING), ATUGUBA, JSC, ANSAH, JSC, ADINYIRA (MRS), JSC, DOTSE,
JSC.<o:p></o:p>

</div>J U D G M E N T<o:p></o:p>&nbsp;WOOD (MRS), CJ. :<o:p></o:p>&nbsp;I agree with the opinions to be delivered by
my learned brothers Atuguba, Ansah and Dotse JJSC and my learned sister Sophia
Adinyira JSC. I have nothing useful to add.<o:p></o:p>G.
T. WOOD (MRS) <o:p></o:p>(CHIEF
JUSTICE)&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;
<o:p></o:p><o:p>&nbsp;</o:p>ATUGUBA,
JSC:<o:p></o:p>The
surviving 2nd Plaintiff/Respondent/Respondent together with her late sister who
was then the 1st Plaintiff got locked up with the defendants
appellants/appellants in an estate dispute relating to the ownership of a house
and two cocoa farms. Whilst the plaintiff claims that these are family
properties the defendants claim they are all self-acquired properties of their
late father and husband respectively.<o:p></o:p>There
are concurrent findings of fact on these matters in the High Court and Court of
Appeal in favour of the plaintiff. <o:p></o:p>It
is trite law that an appellate court is not entitled to reverse concurrent
findings of fact unless there are, in effect, strong legal or factual reasons
to the contrary.<o:p></o:p>It
is also to be borne in mind that claims against the estate of a deceased person
are to be viewed with caution and very cogent evidence is necessary to sustain
the same.<o:p></o:p>The
plaintiff’s case is that when he was about leaving the country for Britain he
handed over to the defendants’ late father and husband respectively a document
covering a piece of land which later by substitution, became the plot on which
the disputed house stands. He also owned a store and a beer bar which he left
in the care of the same person, i.e. the late Kwaku Poku. He later instructed
his said late brother to sell the store and beer bar and construct a house for
him on the said plot of land.<o:p></o:p>Ownership
of the disputed house<o:p></o:p>The
courts below came to the conclusion that the house was not financed only by the
late Kwaku Poku.<o:p></o:p>One
matter that did not receive critical attention by the courts below is the date
of the construction of the house. The plaintiff is quite definite that the
house was completed in June 1955 whereas exhibits 2 and 4 dated 9/5/1958 and
23/6/1958 being an undertaking by Kwaku Poku to develop the said land within 2
years and a receipt for payment for the preparation of a development permit in
respect of the said land, tend to show otherwise. Also at p. 42 of the record
between lines 1 to 4 the plaintiff admitted thus: “Yes I know that in the 1950s
the colonial authorities insisted on strict compliance with building
regulations. Yes without a development permit, you could not commence the
development of any plot”. These pieces of evidence point to the high
probability that the disputed house could not have been built in 1955 as
contended by the plaintiff. This is especially so because as laid down in Atadi
v Ladzekpo [1981] GLR 218 CA and Republic v Nana Akuamoah Boateng II, Ex parte
Dansoah (1982-83) 2 GLR 913 S.C. documentary evidence should prevail over oral
evidence. And in Guardian Assurance v Kyat Trading Store (1972) 2 GLR 48 C.A. at
55 Amissah J.A. (his brethren concurring), held that the supportive evidence of
an opponent is as strong as the documentary evidence of the other party in
proof of the latter’s case. However, as was held in Ahiabley v Dorgah (1984-86)
2 GLR 537 C.A., where documents support one party’s case as against the other,
the court should consider whether the latter party was untruthful or truthful
but with faulty recollection. In this case the trial judge saw the relevance of
exhibit 2 only in terms of it being evidence of the acquisition of title to the
property vel non. That exhibit was also relevant in the terms I have
hereinbefore set out.<o:p></o:p>The
trial judge said of exhibit 2 at p. 136 of the record thus: “It is significant
to note that the defendants did not produce for tender the allocation note. It
is an undertaking allegedly made by the late Kwaku Poku. Whether the contents
of Exhibit 2 are true or false is not clear on the evidence on the record”.
Given the high evidential protein which documentary evidence contains, in the
eyes of the law, the trial judge should have given cogent reasons for doubting
the veracity of exhibit 2. The only discoverable reason is the non production
in evidence of the allocation note. But given that the documents pertaining to
grants of Kumasi lands were meticulously kept and processed by the Asantehene’s
Lands Office as clearly shown by exhibits 2 and 4 which clearly show that the
lease document was yet to be prepared for execution by the parties, what does
the allocation note matter? What could it in such circumstances have evidenced
which exhibits 2 and 4 do not evidence? In any case I know of no law that
mandatorily requires an allocation note. Even in Ghanaian popular parlance, it
is a maxim that “Book no lie.”<o:p></o:p>Applying
the principle in Ahiabley v Dorgah, supra, could it be said in the face of
exhibits 2 and 4 that the plaintiff is truthful but with a faulty recollection?
The plaintiff in his evidence was so specific in terms of months and years and
even in some cases </main>