AKOSUA DUFIE VRS.pdf - Judicial Training Institute

IN THE SUPERIOR COURT OF JUDICATURE 

IN THE SUPREME COURT OF GHANA 

ACCRA 

CORAM: WOOD (MRS), CJ (PRESIDING) 

ATUGUBA, JSC 

ANSAH, JSC 

ADINYIRA (MRS), JSC 

DOTSE, JSC 

CIVIL APPEAL 

NO. J4/25/2006 

27 TH JULY, 2009 

1. MADAM AKOSUA DUFIE ) PLAINTIFF/RESPONDENTS/ 

) ... RESPONDENTS 

2. KINGSLEY ADU-POKU MENSAH ) 

VRS 

1. MADAM AMMA FOSUA ) ... DEFENDANTS/APPELLANTS/ 

) APPELLANTS 

2. KOFI ADU POKU ) 

____________________________________________________________ 

WOOD (MRS), CJ. : 

J U D G M E N T 

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. 

ATUGUBA, JSC: 

G. T. WOOD (MRS) 

(CHIEF JUSTICE) 

The surviving 2 nd Plaintiff/Respondent/Respondent together with her late sister 

who was then the 1 st Plaintiff got locked up with the defendants 

1

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. 

There are concurrent findings of fact on these matters in the High Court and 

Court of Appeal in favour of the plaintiff. 

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. 

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. 

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. 

Ownership of the disputed house 

The courts below came to the conclusion that the house was not financed only 

by the late Kwaku Poku. 

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 

2

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. 

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.” 

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 

3

some cases of days of the week that he cannot be debited with faulty 

recollection. How then was he visiting a non-existent house in 1955? It stands to 

reason that since as per exhibits 2 and 4, not until as late as 9 th May 1958 the 

late Kwaku Poku was still battling for a development permit he could not have 

commenced let alone completed he said building much earlier. 

Furthermore the documents tendered in evidence tend strongly to show that the 

plot on which the disputed house stands was acquired in or around 1958. For 

several receipts show that the earliest demands and payments for ground rent 

date back only as far as 1958. 

Also the earliest demand notices and payments in respect of property rate, then 

known as general rate, are dated between 1963/64-1971/72. See pp 156-194 of 

the record of appeal. Again, on the evidence, the best known time when 

occupation of the house began, with tenants renting it is 1964 when PW3 rented 

some rooms and connected electricity to it and thereafter the 1 st late plaintiff 

herself came in there. If the house was completed in 1955 was it lying idle all 

this long? 

The Star Witnesses 

The courts below were highly captivated by the evidence of PWS 1 and 5 in 

particular. Their evidence however requires closer scrutiny. 

PW 1 

PW1’s evidence at p.45 between lines 31-36 is as follows: “One day I and my 

husband came to Kumasi from a cottage where we were farming. When 

we came the 2 nd plaintiff approached my husband and told him he had 

acquired a plot at Krofofrom and so he had come to see him build a house 

on the plot for him.” This evidence stands alone and is not even supported by 

the plaintiff himself. The nearest support for it is when the plaintiff at p. 30 of 

the record, in cross-examination and obviously as an afterthought, between 

lines 31-37 said thus: “I left the allocation sheet with my elder brother because I 

was leaving the country and I wanted him to use the proceeds of my shop 

to develop the land for me.” He does not even indicate where this took place. 

In any case from these two extracts the house was to be built not for the family 

but for the plaintiff. 

4

Again the evidence of PW1 on this issue lost compressure under cross- 

examination at p.46 lines 39-46 thus: “Q: When you said 2 nd plaintiff sent money 

to your husband, did he send the money from abroad. 

A: I cannot tell. What I know is that 2 nd plaintiff gave money and some 

documents to my husband. 

Q: Did you know what those documents were. 

A: No, what I know is that 2 nd plaintiff told my husband that he had 

acquired a plot.” 

Then at p.47 between lines 4-10 she continued thus: “Q: Did you know the 

purpose for which the money was given to your husband? 

A: What I know is that 2 nd plaintiff told my husband that he had acquired 

a plot at Krofofrom and that he should take the money and the 

documents and build a house for him.” One cannot fathom any consistency 

in such evidence. Nor should it be forgotten that though she admits that PW5 

used to visit them at the Abompe farm, she maintained that he used only to 

come for school fees but did not help on the farm. PW5 sharply challenges that 

evidence at p.78 lines 1 to 10 thus: “Q: Afua Manu (P.W.1) has told this court 

that no member of Kwaku Poku’s family assisted in the cultivation of the Abompe 

Cocoa Farm. 

A: If PW 1 said so, that is not correct because I was there and I 

assisted in the cultivation of that cocoa farm.” Naturally PW1 at least 

would have helped in the way he claims at p.74 of the record to have done. 

Between lines 20-21 thereof PW5 said: “I was assisting him to plant the 

cocoa trees.” 

It is quite clear that the courts below glossed over all these material 

considerations. 

PW 5 

In one breath at p. 74 lines 20-27 PW5 claims that only he and his grandmother 

assisted the late Kwaku Poku on his Abompe cocoa farm but in another breath at 

5

p.78 admits between lines 1 to 4 that Afua Manu (PW1) also assisted on that 

farm. 

At p. 73 of the record PW5’s trend of evidence clearly is that when plaintiff was 

leaving the country he entrusted the store to him PW5. He was running it and 

“using the proceeds of the sale to replenish the store.” Later he tries to 

rope in the late Kwaku Poku by saying that it was he that put him in charge of 

the store before the plaintiff left the country for Britain. But not even the plaintiff 

himself has said that before leaving the country he entrusted his store to the late 

Kwaku Poku! 

It is also amazing that though at p.34 of the record the plaintiff claimed between 

lines 29-30: “My daily earnings ranged between £25-£30. Yes, up to 

1952,” he could not even start developing his alleged plot of land before he left 

for Britain. His explanation at p. 40 between lines 23-24 that “I did not 

develop the plot before I left because I was busy working on my shop” 

is very strange indeed since PW5 his nephew in whose charge he left it before 

leaving for Britain was around till he also left for Britain in 1958. In any case it is 

difficult to see how a vibrant store business’ proceeds could only be used as PW5 

said to replenish it. 

The only indisputable evidence is the connection of water and electricity to the 

house by the deceased first plaintiff. But in my view such contributions to an 

already completed house can at best be a claim for restitution in equity but not 

co-ownership of the house. Even there she and her daughter enjoyed free 

accommodation in that house. This aside, it is incredible that the only two 

members of the family, particularly the plaintiff, who claims to have been the 

chief financier of the house, should have to leave that house especially as the 

plaintiff is quite clear that he has no other house. 

The courts below did not consider all these matters. 

Ownership of the Cocoa Farms 

This issue is the easiest to determine in this case. It is quite clear on the 

evidence that the Abompe farm is the earlier of the two farms and indeed the 

thrust of the evidence is that the second farm (the Siiso farm) is an offshoot of 

6

the Abompe farm. It therefore follows that if the earlier one is not family 

property then the Siiso farm cannot be family property. 

PW1, testified at p. 45 of the Record between lines 31 and 37 thus: “One day I 

and my husband came to Kumasi from a cottage where we were 

farming…” Again at p.46 between lines 16-26 she said: “Yes I took part in 

cultivating the Abompe farm. I was the only one who assisted to cultivate the 

Abompe farm- no member of my husband’s family assisted in cultivating the 

Abompe farm. We used the proceeds at the Abompe farm to finance the 

Siiso farm”. She maintained this under cross-examination. 

PW5, a nephew of both the plaintiff and the late Kwaku Poku was also clear both 

in examination-in-chief and cross-examination that the late Kwaku Poku owned 

the Abompe farm. At p.73 between lines 39-40 he said “When I was operating 

the store, I used to render accounts to my uncle Kwaku Poku anytime 

he came from his farm. The store was sold for £400. My uncle Kwaku Poku 

said the 2 nd plaintiff had instructed him to use the proceeds from the sale of the 

store to build a house on his (2 nd plaintiff) plot and use the rest to finance his 

(Kwaku’s farm). That farm is at Abompe” 

At p.74, between lines 23-27, still under examination in chief he continued thus: 

“Yes I have been to the Abompe farm. I was even living there with my uncle 

Kwaku Poku. I was assisting him to plant the cocoa trees. My grandmother 

Yaa Mensah also went to Abompe. Apart from me and my grandmother nobody 

else went to Abompe to assist my uncle.” 

More clearly under cross examination at p.76 between lines 39-47 he said “Q: 

When did Kwaku Poku start cultivation of the Abompe Cocoa farm. 

A: In about 1949 

Q: At what point in time did you go to assist him. 

A: I was then a student so I used to go and assist him during the holidays. 

Q: So he started cultivating the Abompe Cocoa farm before 2 nd plaintiff 

travelled abroad. 

A: Yes” 

7

PW1 admitted under cross-examination that PW5 used to come to them at 

Abompe during holidays. PW2’s evidence is clearly confused. Granting that PW5 

assisted in the Abompe farm in the manner claimed by him, such casual filial 

vacation assistance cannot count as any serious contribution towards the family 

character of that farm. There is no other affirmative and meaningful assistance 

from any other person other than PW1, the deceased’s ex-wife. As to the alleged 

financial assistance by the plaintiff towards the acquisition of that farm, the least 

said of it the better. In one breath all the proceeds of the plaintiff’s beer bar and 

provisions store were to be used to construct the disputed house. 

In another breath it was £100 of those proceeds that was to assist in the 

cultivation of that form. Yet in another breath it was simply the residue of those 

proceeds that was to so assist. In any event one wonders how there could be 

spare money from a house that was without electricity, water and a fence wall, 

to be spent on a farm. 

The clearest pointer of the evidence is that at least the principal or founding farm 

at Abompe long predated the proceeds of the sale of plaintiff’s business. 

It is however felt that the plaintiff and PW5 stand to gain from the disputed 

properties and so their evidence is not disinterested. But so also do the 

defendants under the Intestate Succession Law, PNDCL 111, 1985, though the 

latter have the benefit of the rule of caution about claims against the estate of a 

deceased person, on their side. 

CONCLUSION 

For all the foregoing reasons including the rule about caution regarding claims 

against the estates of deceased’s persons it is quite clear that the concurrent 

findings of the two courts below suffered, in the respects indicated, from 

material misdirections and inadequate considerations as to the law and the 

evidence. 

Such circumstances warrant the reversal or variation of such concurrent findings. 

See Adu v Akamah (2007-2008), SCGLR 143, In re Fianko Akotuah (Dec’d) 

Fianko v Djan (2007-2008), SCGLR 165. 

Accordingly I will allow the appeal. 

8

ANSAH, JSC: 

W. A. ATUGUBA 

(JUSTICE OF THE SUPREME COURT) 

This is an appeal from the judgment of the Court of Appeal dated 17 May 2005 

which dismissed an appeal brought before it from the judgment of the High 

Court, Kumasi, where the plaintiffs sued for certain reliefs. 

The facts and issues in dispute as well as the respective cases of the parties 

have been stated so accurately in the opinions read my brother Atuguba JSC that 

I have anything to add to them, lest I create unnecessary boredom. I agree with 

them and adopt them as my own. 

I only wish to add a few words of my own to the opinion just read. 

The respective cases for the parties adumbrated in their pleadings, evidence and 

submissions, have been stated with equal accuracy. 

The plaintiffs are the uterine sister and brother respectively of the late Kwaku 

Poku who died intestate on 21 st July 1996; the 2 nd plaintiff was his customary 

successor, whilst the defendants are his personal representatives, the first being 

his widow and the second, his son. 

The pleadings concerning the acquisition of the land in dispute by the parties 

have also been referred to by my esteemed brethren. I will not repeat them 

here. 

The trial judge entered judgment for the plaintiffs on their claims as endorsed 

on the writ of summons and on the strength of the evidence before him. The 

defendants felt aggrieved by the judgment and appealed against it, first to the 

Court of Appeal which affirmed the decision of the trial Court and further to this 

court, on the grounds that: 

1) “The Court of Appeal in its leading judgment erred in law when 

it’s (sic) accepted as facts that the subsequent plot acquired by 

Opanin Kwaku Poku was replacement of the plot acquired earlier 

by the 2 nd Plaintiffs. 

9

2) The Court of Appeal again erred in not giving adequate 

consideration to the inconsistencies of the evidence given by the 

Plaintiffs/Respondent as to the acquisition of the properties. 

3) The Court of Appeal erred in not bringing the issue of capacity 

witness’s exception of Kwan v Nyenia (sic) principle. 

4) The Court of Appeal erred in holding that the 2nd Plaintiff could 

sue in respect of thee properties as customary successor to the 

late Kwaku Poku (sic) when he was claiming same as family 

properties, as a responsibility that, in the actual head of family of 

the family of the plaintiff/Respondent.” 

It is obvious this was a typical dispute between a family on one hand and the 

survivors of a deceased family member and his immediate family on the other, 

over title to a house and other properties. This being an action for the 

declaration of title to land and recovery of possession the issue is what must a 

plaintiff do in order to succeed? 

Section 10, 11 and 12 of the Evidence Decree, 1973, (NRCD 323), come in handy 

in answering this question. Section 10 provided that: 

1) “For the purposes of this Decree, the burden of persuasion 

means the 

obligation of a party to establish a requisite degree of belief 

concerning a fact in the mind of the tribunal of fact or the 

court. 

2) The burden of persuasion may require a party 

(a) to raise a reasonable doubt concerning the existence or 

non- 

existence of a fact, or 

(b) to establish the existence or non-existence of a fact by 

a 

preponderance of the probabilities or by proof beyond a 

reasonable doubt, or that he establish the existence or 

non-existence of a fact by preponderance of the 

probabilities, or beyond a reasonable doubt.” 

Section 11 on the definition of the burden of producing evidence provided in the 

relevant portions that: 

X X X X X X X X 

10

(4) In other circumstances the burden of producing evidence requires a 

party to 

produce sufficient evidence which on the totality of the evidence, leads 

a reasonable mind to conclude that the existence of the fact was more 

probable than its non-existence. 

Section 12 of the Decree also defined proof by a preponderance of the 

probabilities as: 

(1) “Except as otherwise provided by law, the burden of 

persuasion requires 

proof by a preponderance of the probabilities.” 

(2) “Preponderance of the probabilities” means that degree of 

certainty of 

belief in the mind of the tribunal of fact or the Court by which 

it is convinced that the existence of a fact is more probable 

than its non-existence.” 

Brobbey JA (as he then was) wrote in explanation of these provisions of the 

Decree in Yorkwa v Duah [1992-93] GBR 278, at 282 that: 

“Part II of NRCD 323 which deals with the burden of proof covers on one 

hand the burden of producing evidence under sections 11, 12 and 13. 

Considering the wording of section 10(1) in the light of the Commentary on the 

Evidence Decree…I am of the view that the expression burden of persuasion 

should be interpreted to mean the quality, quantum, amount, degree or extent 

of evidence the litigant is obligated to adduce in order to satisfy the requirement 

of proving a situation or a fact. The burden of persuation differs from the burden 

of producing evidence. 

Under sections 11, 12 and 13, particularly section 179(1) of the Decree, 

the burden of producing evidence means the duty or obligation lying on a litigant 

to lead evidence. In other words, these latter sections cover which of the 

litigating parties should be the first to lead evidence before the other’s evidence 

is led. 

… Therefore it is the plaintiff who will lose first, who has the duty or 

obligation to lead evidence in order to forestall a ruling being made against him. 

This is clearly amplified in section 11(1) of NRCD 323 which provides that: 

‘“For purposes of this Decree, the burden of producing 

evidence means the obligation of a party to introduce 

sufficient evidence to avoid a ruling against him on the 

issue.”’ 

11

The learned justice went further to explain that: 

“The Evidence Decree makes provision for the duty or obligation to adduce 

evidence to shift from one party to the other. In a situation …the duty or 

obligation could shift from the plaintiff to the defendant. If and when it is shifted, 

the defendant would be required to lead evidence to establish the sale once he 

claimed to have had possession by reason of sale of the house to him. When the 

duty or obligation to adduce evidence shifts, and the defendant fails to adduce 

evidence or any evidence on the sale, the ruling of the court on the sale will be 

against the defendant. This is the reason for the provision in section 14 which 

says that: 

“Except as otherwise provided by law, unless and until it is shifted a 

party has the burden of persuasion as to each fact the existence or 

non-existence of which is essential to the claim or defence he is 

asserting.’” 

Applying these legal provisions, explained in such details by the learned Judge to 

the facts of this appeal, it becomes clear that the respective positions have been 

that whereas the plaintiffs asserted title to the properties in dispute to have 

belonged to the family, the defendants laid it in the late Kwaku Poku as his selfacquired 

properties. Section 11(4) of the Decree put the obligation in civil 

proceedings like the present, of producing evidence on a party to produce 

sufficient evidence so that on all the evidence, a reasonable mind could conclude 

that the existence of the fact was more probable than its non-existence. It was 

all a question of which of the parties was better able to prove its case than the 

other on all the evidence led at the trial? 

In Odoi v Hammond [1971]2 GLR 375, CA, Azu Crabbe JA, (as he then 

was), said at p 382 that: 

“it is now common learning in this country that in an action 

for declaration of title to land the onus is heavily on the 

plaintiff to prove his case, and he cannot rely on the weakness 

of to the defendant’s case. He must indeed ‘show clear title’: 

per Yates Ag C.J. in Kuma v Kuma 1934 2 WACA 178 at p 179. 

In Kponuglo v Kodadja 1933 2 WACA 24 at p. 25, the Judicial 

Committee of the Privy Council observed that in an action for 

a declaration of title the “first question logically and 

chronologically, to consider in the appeal is the traditional 

evidence regarding the acquisition of a title to the disputed 

territory.” For a stool or family to succeed in an action for a 

declaration of title it must prove its method of acquisition 

12

conclusively, either by traditional evidence, or by overt acts of 

ownership exercised in respect of the land in dispute.” 

As stated the plaintiffs led evidence to discharge of the onus that lay on them./// 

as outlined above in this opinion. There was evidence from the PW1 Afua Manu 

the widow of the late Kwaku Manu that the original plot was eaten up or 

swallowed by the newly constructed road, PW5 operated the provisions store 

that was sold for #400.00 by Kwaku Poku out of which #300 was used for the 

building and #300 for developing the Abompe farm; PW2, Kofi Adu, supported 

the claim that Kwaku Poku cultivated the Abompe farm; PW3, Charles Kusi and 

the PW4 Amma Ode, corroborated the plaintiff’s evidence that the second 

plaintiff’s sister, the deceased 1 st plaintiff contributed to the acquisition of the 

house, which consisted of providing electricity power and other utilities to the 

building, and also cement blocks for a fence wall around the building. 

The plaintiffs having led that kind of evidence in favor of the family as owners of 

the disputed properties, the onus shifted to the defendants who laid ownership 

in the properties in Kwaku Poku, to lead that kind of evidence that would tilt the 

balance of the probabilities in their favor. 

The defendants accepted the gauntlet and led evidence by the DW1 Dauda Ali a 

caretaker for Kwaku Poku’s cocoa farm at Siiso and a house in the Stadium area 

in Kumasi. It is common knowledge that that is not the same as New Amakom 

where the disputed house is situated. The DW2 Isaac Asare Lartey said he was 

a tenant and the first defendant his landlady as per the tenancy agreement in 

Exhibit D. 

In this appeal, the learned trial judge properly directed himself in resolving the 

dispute before him by referring to the principle in Kodilinye v Odu (2 WACA), 

explained in Ricketts v Addo [1975] 2 GLR, before coming to his judgment. 

It is trite that an appeal to this court is by way of a rehearing and this court will 

consider the evidence led at the trial to see whether or not it supported the 

judgment of the lower courts, and the submissions before it in support of or 

against the appeal. I must observe from the record that the 1 st plaintiff died in 

the course of the trial but was never substituted, thus leaving the second as the 

lone crusader. 

In support of ground one of appeal, the appellant submitted that the Court of 

Appeal confirmed the findings of the trial judge relying on the evidence adduced 

at the trial by the second plaintiff, supported as it were by the PW1, Afua Manu 

the widow of Kwaku Poku and the PW5, Yaw Agyei his nephew. The Court of 

Appeal considered the evidence as corroborating each other; for example, the 

13

evidence of the second plaintiff was that the construction of the house started 

before the second plaintiff left the shores of Ghana for the United Kingdom (UK), 

whereas the evidence on the record showed that it took place whilst he was in 

the UK. The trial judge found as a fact that Kwaku Poku built the house in 

dispute. 

The implication was that the house was under construction before the second 

plaintiff left for the UK, for there was evidence that the plot acquired by the 

second plaintiff was eaten up by the construction of the Kumasi-Accra road; 

whilst the second plaintiff was in the U.K; there was no development on the land 

for if there had been any that would have been eaten up as well by the said 

construction. But the evidence was that whilst the second plaintiff was in Ghana, 

the construction had not even started. That was why he only asked Kwaku Poku 

to take a replacement plot and not a replacement house. If his evidence were to 

be true, that would have been also eaten up during the construction of the road. 

In another consideration, the evidence of the second plaintiff/ respondent was 

not too creditworthy. Why did he ask Kwaku Manu to take the replacement plot 

in his Manu’s name but not his if he was truly the owner of the lost plot? 

On the acquisition of the house and the cocoa farms, the trial judge found that 

proceeds from the Abompe farms were used to acquire the Siiso farms and the 

house in dispute; and also that the family contributed substantially towards the 

acquisition. Besides this, the second plaintiff asserted in his evidence that 

proceeds from his store and stock-in-trade was used for the same purpose. 

This finding has been severely criticized by the appellants. To their counsel, the 

evidence by the plaintiffs was inconsistent with each other on fundamental issues 

before the court, like the acquisition of the disputed properties and so the 

plaintiff’s claims should have been dismissed. I shall come back to this aspect of 

submissions by the appellant. 

The admitted fundamental issues are issues of fact, and the law is settled that all 

issues of facts are for the trial judge to determine. Counsel cited Doku v Doku & 

Another [1992-93] GBR 367, CA, and Bisi v Tabiri alias Asare [1987-88] 1 GLR 

360, to buttress his point. The facts in Doku v Doku (supra) were that each party 

claimed sole ownership of the property in dispute, but at the end of the trial, the 

trial judge made definite findings of facts and upheld the claim by the 2nd 

defendant on his counterclaim for a declaration of title. The plaintiff appealed 

against the judgment on several grounds a summary of which was that the 

judgment was against the weight of evidence on record. Dismissing the appeal, 

the Court of Appeal stated the settled principles governing appeals on such 

grounds to be that: 

14

“The generally accepted principle of law is that findings of 

fact made by a trial judge should not be disturbed unless they 

are perverse or not supported by the evidence on record. In 

Bruce v Attorney General [1967] GLR 170, it was held, inter 

alia, that an appellate court should not disturb findings of 

fact made by a trial judge, but it was equally true that an 

appellate court was not precluded from doing so.” 

These principles of law were correctly stated by the Court of Appeal and ought to 

be affirmed. 

In Bisi v Tabiri alias Asare [1987-88] GLR 360, this court reiterated this principle 

when it held that: 

“I cannot believe that it was ever intended that the Court of 

Appeal (or any other appellate court for that matter) should 

move into a new era of regular questioning of decisions of 

trial judges on issues of fact, as distinct from law, which are 

supportable. For this reason there could be no ground for 

caviling at the judge’s exercise of discretion or duty in the 

selection of witnesses to believe or in stating his findings of 

fact.” 

In stating his the SC did not make any reference whatsoever to what was stated 

in Bruce v Attorney General. 

On the sore question whether Kwaku Poku acquired the plot of land on which the 

Amakom house stood by himself, the trial judge minced no words when he found 

as a fact that it was given as a replacement to the plot that had been given out 

to him previously but was eaten up as a result of the construction of the Kumasi- 

Accra road. I think the judge had enough evidence to make his finding and for 

that reason was not so perverse as to be reversed on appeal. The question was 

where was the evidence led to corroborate this claim of replacement plot? The 

second plaintiff said in his evidence in chief that he obtained an allocation paper 

from the Amakom stool, but he did not tender it in evidence saying he left it with 

Kwaku Poku. Dead men do not speak. The second plaintiff also made a startling 

statement in his evidence in chief that there were no title deeds to the house. He 

was literate who knew the importance of such documents; he would have taken 

them from Poku if he truly owned or even built the house. He could have 

changed all names on all documents on the house into either his or the family as 

he said he had wanted to have built the house for. He did not and left a huge 

credibility gap in his evidence concerning the ownership of the house. I therefore 

have some disquiet about how the Court of Appeal affirmed the findings of 

ownership of the house by the trial court. 

15

It must be borne in mind in this appeal that the Court of Appeal unanimously 

affirmed the judgment of the trial court on all facts and concurred in its 

judgment. An appeal from such a judgment is governed by the principle stated in 

Koglex No 2 v Field [2000] SCGLR 175 that: 

“(2) Where the first appellate court had confirmed the 

findings of the trial court, the second appellate court would 

not interfere with the concurrent findings unless it was 

established with absolute clearness that some blunder or 

error resulting in a miscarriage of justice, was apparent in 

the way in which the lower court had dealt with the facts.” 

Authorities on this principle abound in our books and Achoro v 

Akanfela [1996-97] SCGLR 209, Obresiwa II v Otu [1996-97] 628 are 

cited for further elucidation and support. 

A second appellate court would justifiably reverse the judgment of a first 

appellate court where the trial committed a fundamental error in its findings of 

fact but the first appellate court did not detect the error but affirmed it and 

thereby perpetuated the error. In that situation it becomes clear that a 

miscarriage of justice had occurred and a second appellate court will justifiably 

reverse the judgment of the first appellate court. 

Thus stated, it cannot be said an appellate court cannot set aside a judgment 

where two lower courts had made concurrent findings of facts. 

An appeal this court is by way of a rehearing meaning this court is entitled to 

review the evidence on the record to ascertain whether there is enough 

satisfactory evidence in support of both the findings and conclusion which was 

supported by the Court of Appeal since an appeal is by way of a rehearing of the 

case: see Wangara Gyato v Gyato Wangara [1982-83] GLR 639, holding 1; 

Akufo-Addo v Cathline [1992] GLR 377, holding 3; Fijal Stool v Effia Stool… 

In the present appeal the appellant assayed to demonstrate why the judgment of 

the Court of Appeal ought to be reversed by submitting before us that there 

were inconsistencies, and contradictions in the evidence proffered by the 

plaintiffs in support of their case. 

The above submissions deserve some analysis. In Effisah v Ansah [2005-2006] 

SCGLR 943, one of the issues in the appeal was the submission by the appellant 

that there were inconsistencies and contradictions in the evidence of the plaintiff. 

This court had no difficulty in dismissing the appellant’s complaint and said, in 

stating the law, in the opinion delivered by Mrs. Georgina Wood JSC (as she then 

was, but now CJ) that: 

“In the real world evidence led at any trial which turns 

principally on issues of fact and involving fair number of 

16

witnesses, would not be entirely free form inconsistencies, 

conflicts or contradictions and the like. In evaluating 

evidence led at a trial, the presence of such matters per se 

should not justify a wholesale rejection of the evidence to 

which they may relate. Thus, in any given case, minor, 

immaterial insignificant or non-critical inconsistencies must 

not be dwelt upon to deny justice to a party who has 

substantially discharged his or her burden of persuasion.” 

The learned Chief Justice then went on to give a proper direction which I find 

very useful in guiding a court in the face of such criticisms in a judgment as a 

ground of appeal, at page 960 of the judgment that: 

“Where inconsistencies or conflicts in the evidence are 

clearly reconcilable and there is a critical mass of evidence 

on crucial or vital matters, the court would be right to gloss 

over these inconsistencies.” 

In this appeal, the Court of Appeal observed that the events about which the 

witnesses testified took place over 40 years earlier and in circumstances as these 

there were bound to be inconsistencies in the narratives without any intention to 

tell a lie, as explained in Adjeibi Kojo v Bonsie…. 

I have examined the so called inconsistencies and found the criticism to have 

been well founded. They were not inconsistencies at all, or even if they were 

any, they were not so monumental or irreconcilable that the evidence must be 

rejected. At the highest, the most important part of the evidence was that the 

house was built by Kwaku Poku and whether it was before or after the second 

respondent journeyed to Europe was of a little or no significance. At any rate this 

was an issue of fact entirely within the province of the trial judge to determine 

one way or the other. Provided he resolved the issue in favor of or against one 

side based on the evidence before him, the settled law is that an appellate court 

would be slow to interfere with or set aside the finding of fact so made. ///And 

that corroborative evidence was not lacking for it was provided by the PW1, Afua 

Manu, the widow of Kwaku Poku and the PW5, Yaw Agyei, his nephew. The trial 

judge not only had the benefit of hearing these witnesses in their viva voce 

evidence in court, he also saw their demeanor as they did so. He came to the 

conclusion that their evidence was credible and worthy of belief. The veracity or 

otherwise of a witness is a function reserved exclusively for the trial judge and 

will ordinarily not be interfered with except it was proved he did not take 

advantage of seeing the witnesses as they testified before him, or drew the 

wrong inferences from the evidence. That appears to have been the case here. 

17

From the nature of the facts and issues before the court, all the evidence must 

be considered dispassionately. The appellants relied heavily on the fact that 

documents on the house like building plans and permits, demand notices and 

receipts for payments of rents were in the name of Kwaku Poku but though in 

law that, per se, was no proof of title to a property in dispute, they are not be 

glossed over for they serve as strong acts of ownership which may be spokes in 

a claim for declaration of title by a plaintiff. 

I am bold to say that in the face of the strong challenge by the defendants on 

the title to the house in dispute, it was not enough for the plaintiffs to have 

relied on only the viva voce evidence by the plaintiffs no matter who how many 

they are. Corroborative evidence that was likely to exist were their evidence to 

be believed as true; official documents from official or public sources could have 

been produced, see Majolagbe v Larbi [1959] GLR…But in this case nothing like 

that came from the plaintiffs. 

The respondent led no sufficient evidence to show how the second plaintiff 

acquired the plot of land on which the house stood. The evidence in the 

documents in his name must be matched against the totality of the evidence on 

record that even if Kwaku Poku built the house, the family made contributions, 

substantial or otherwise, towards the acquisition, for the store run by the PW5 

and the stock in trade were sold and the proceeds or part thereof were pooled 

together for the acquisition, proceeds from the farm at Siiso was utilized in 

acquiring the Abompe farm.In circumstances like this the legal conclusion was 

that the house at New Amakom Extension, Plot Number 11, Block 24, so 

acquired are stamped with the family character, or badge was against the weight 

of the evidence . The case that they were acquired by the second plaintiff was 

not supported by the evidence on record as found by the trial court. The appeal 

by the respondent must fail. 

The sum total of grounds one and two of appeal was that the judgment of the 

trial court was against the weight of evidence. It requires no authority to be cited 

in support of the proposition that an appeal to this court is by way of a rehearing 

and even though it is not the function of the appellate court to assess 

the veracity, truthfulness or otherwise of the witnesses in a civil case, it is 

incumbent on the court to take into account the testimonies and all the evidence, 

documentary or oral, adduced at the trial before arriving at its decision so as to 

satisfy itself that, on a preponderance of the probabilities, the conclusions of the 

trial judge are reasonably or amply supported by the evidence: see Tuakwa v 

Bosom [2001-2002] SCGLR 61. 

Accordingly the Court of Appeal erred in affirming the findings of fact by the trial 

court and grounds 1 and 2 of Appeal are both allowed. 

18

Grounds 3 and 4 of appeal touching and dealing with the plaintiffs’ capacity to 

sue raise important issues of law and will be considered together. 

These grounds of appeal were that: 

3. “The Court of Appeal erred in not bringing the issue of 

capacity within the reception (sic) of Kwan v Nyieni principle 

and the Court of Appeal erred in holding that the 2 nd plaintiff 

could sue in respect of these properties as customary 

successor to the late Kwaku Poku when he was claiming 

properties a responsibility that, in the prerogative of the 

actual Head of family of the Plaintiff/Respondent. 

4. The issue of capacity is fundamental to our law and being 

a question of law can be raised at anytime even on appeal. 

The Court therefore erred in holding that the 

Defendants/Appellants did not raise that issue at the trial 

court and therefore could not do so at the Appellate Court.” 

The material holding in Kwan v Nyieni [1959] GLR 67 was: 

“as a general rule the head of family, as representative of the family 

is the proper person to institute suits for the recovery of family land; 

(1) to this general rule there are exceptions in certain special 

circumstances, such as: 

(i).where the family property is in danger of being lost to the 

family, and it is shown that the head either out of personal 

interest will not make a move to save or preserve it; 

(ii). where owing to a division in the family, the head and 

some of the principal members will not take any step; 

Or 

iii. where the head and the principal members are deliberately 

disposing of the family property in their interest, to the 

detriment of the family as a whole. 

In any such special circumstances, the Court will entertain 

an action by any member of the family, either upon proof 

that he has been authorized by other members of the family 

to sue, or upon proof of necessity, provided that the Court is 

19

satisfied that the action is instituted in order to preserve the 

family character of the property.” 

The grounds of appeal quoted above sum up much of the dispute in this appeal. 

There is no paucity or dearth of authority on this point. Nyamekye v Ansah 

[1989-90] 2GLR 152 CA considered who qualifies to be head of family and made 

it clear at page 162 of the report, that when a successor is appointed by the 

family he/she automatically becomes the head of family; he can also be 

appointed by popular acclamation or by virtue of the fact that he/she is the 

oldest member of the family. Again, any person who the family permits to deal 

with family property for and on behalf of the family, or to exercise the functions 

of a head of family, is deemed to be the head of family until the contrary is 

proved: see Mills v Addy (1958) 3 WALR 357, and also Sarbah’s Fanti Customary 

Laws (1897 ed). 

In Nyame v Ansah (supra), the Court of Appeal held further that: 

“As a general rule, the head of family as representative of the family is the 

proper person to institute suits for the recovery of family land: see Kwan v Nyieni 

[1959] GLR 67 at 72, CA. And where the authority of a person to sue in 

representative capacity is challenged, the onus is on him to [prove] that he has 

been duly authorized. He cannot succeed on the merits without first satisfying 

the court on that important preliminary issue. 

The plaintiffs/appellants sued as the “customary successor of the late 

Kwaku Poku for themselves and on behalf of the family of the late 

Kwaku Poku” for reliefs itemized above. They sought declarations that the 

properties were for the family, pleaded facts and led evidence in support. In 

those circumstances the exception in the proviso to the principle in Kwan v 

Nyieni (supra), does apply as respondents acted to claim and protect the family 

character of the properties in dispute. 

At the application for directions the parties settled, inter alia, the following issues 

for trial: 

“3 Whether or not the purchase price of the Beer Bar and provisions 

Shop was given to the late Kwaku Poku to put up house on Plot 11, 

Block 24, New Amakom, for the family. 

5 Whether or not the house in dispute is family property. 

8 Whether H/No. Plot 11, Block 24, New Amakom extension is family 

property. 

9 Whether or not the Abompe and Siiso cocoa farms are family 

properties. 

20

12 Whether or not the plaintiffs are entitled to the reliefs being 

sought by them.” 

Thus, whether the plaintiffs had the requisite capacity to sue was made an issue 

for trial. That issue was raised by virtue of the general traverse in the statement 

of defense. 

It is unfortunate the trial judge did not consider the issue of capacity anywhere 

in his entire judgment. When he considered whether or not the properties in 

dispute were for the family he should have gone forward to also consider if they 

were family properties then whether or not the plaintiffs were clothed with the 

requisite capacity to sue in respect thereof. That was irrespective of whether or 

not the parties made that an issue for trial. Capacity to sue was a matter of law 

and could be raised at any stage of the proceedings even on appeal. It can be 

raised by the court suo motu. 

It was the Court of Appeal which raised the issue and resolved it by holding that 

the plaintiffs pleaded in paragraph 4 of their statement of claim that the second 

plaintiff was “the customary successor of the late Kwaku Poku.” The respondents 

admitted the averment in the said paragraph 4 and with that there was no need 

to prove the fact any further. Akamba JA, concurring with the opinion of Anin 

Yeboah J.A (as he then was, who read the leading judgment), said that in Akan 

customary law, a person appointed a customary successor to a deceased in the 

family becomes the head of the immediate family and is the proper person to 

sue and be sued in respect of that particular family 

Property. The Court relied on Atta v Amissah (1970) CC 73, that: 

“The person appointed successor to the deceased becomes, 

under customary law, the head of the immediate family, and 

is as such head, the proper person to sue and be sued in 

respect of that particular family property.” N.A. Ollennu’s 

invaluable Customary Land Law in Ghana made the same point at 

page 151. 

In Sarkodie I v Boateng II [1982-83] GLR 715, SC, this court said that 

“It was elementary that a plaintiff or petitioner whose capacity was 

put in issue must establish it by cogent evidence. And it was no 

answer for a party whose capacity to initiate proceedings has been 

challenged by his adversary to plead that he should be given a 

hearing on the merits because he had a cast-iron case against his 

proponent.”(es) 

The Supreme Court considers the question of capacity in initiating proceedings as 

very important and fundamental and can have a catastrophic effect on the 

fortunes of a case. Thus, in Republic v High Court, Accra, Ex parte Aryeetey 

(Ankra Interested Party, [2003-2004] SCGLR 398, the brief facts were that the 

21

interested party knew that his father had died testate and the will had been 

read, though probate had not been taken, he failed to disclose to the court that 

he was one of the executors of the said will, and that probate had not been 

taken. In suing, therefore as a beneficiary and customary successor, of his late 

father the interested party lacked the capacity to sue, rendering the writ and 

subsequent proceedings thereon null and void. 

The Court held that: 

“Any challenge to capacity therefore puts the validity of a writ in 

issue. It is a proposition familiar to all lawyers that the question of 

capacity, like the plea of limitation, is not concerned with the merits 

so that if the axe falls, then a defendant who is lucky enough to 

have the advantage of the unimpeachable defence of lack of capacity 

in his opponent, is entitled to insist upon his rights: see Akrong v 

Bulley [1965] GLR 469 SC.” 

It must be pointed out that in the present appeal, there was no issue raised on 

the position of the plaintiff as a head of family for that was admitted on the 

pleadings. 

Thus, it became clear that the Court of Appeal did consider all the issues at stake 

including the capacity of the plaintiff to sue, took into consideration all the 

relevant authorities governing the issue before concluding that any attempt by 

the appellants at this stage to question the Respondent’s capacity after the initial 

admission thereof, is unfounded, uncalled for and a mere waste of time and 

effort. 

In my opinion, the Court of Appeal did err on grounds 1 and 2 of the appeal, as 

the findings by the trial court were not supported by the evidence on record, and 

the conclusion was not proper. The Court of Appeal disabled itself from coming 

to the proper conclusion in affirming the decision of the trial court. 

With that I am persuaded that the appeal ought to succeed and is 

consequently allowed. 

I may remark now that in United Products Ltd. v Afari (1929) D.C. ’29-’31 

at p11, Deane CJ held that: 

“the (frequently adopted) presumption with regard to land in 

this country is that it is family land.” Lingley J made the same point in 

Andoh & Anor. v Franklin & Ors. D,C.(Land) 52-55; see also Codjoe v Kwatchey 

1935 (2) WACA 371, and more recently, Nti v Amina [1984-86] 2 GLR 135 at 

146-147, C.A. With the passage of time the presumption reduced in strength 

and became rebuttable. By 1935, it had become not too strong a presumption as 

it used to be in time past, so however that in 1960 the then Court of Appeal 

summed up the situation in Larbi v Cato [1960] GLR 146 that: 

22

“Whilst it is true that customary law requires that the presumption in favor 

of family property should be rebutted by evidence and that the onus is on 

who asserts sole ownership, that onus shifts once it is shown that that 

person has been dealing with the property as his own….” 

In 1986, the Court of Appeal held at p 147 that: “in modern Ghana the said 

presumption should not be a strong one and the burden of proof on the one who 

asserts sole ownership should be very light and that any slight but reliable 

evidence should be sufficient to rebut that presumption.” see Nti v Amina (supra) 

The defendants in this appeal bore the onus of rebutting the presumption in 

favour of the plaintiffs even though it may be weak now. 

Now, it is common knowledge that statute has given more recognition to the 

ownership of property by the individual than the family. See The Intestate 

Succession Law, 1986, PNDCL 111. In this appeal, the defendant who assumed 

the burden of proving on the preponderance of the probabilities that the 

properties were for the estate of Kwaku Poku and not the family, was able to 

rebut the presumption with evidence that was more than slight and reliable. 

Now, the old order has changed giving way to the new. The lower courts did not 

pay proper regard to the law applicable to the facts of this case, and came to the 

wrong conclusions and gave judgment in favor of the plaintiffs on their claims. 

This is a proper case to interfere with and to set aside the concurrent judgments 

of the lower courts. 

The judgment of the Court of Appeal is hereby set aside and the appeal allowed. 

ADINYIRA (MRS), JSC: 

J. ANSAH 


I have had the privilege of reading the judgments of my brothers Ansah JSC and 

Dotse JSC, and I agree that the appeal be allowed. After a careful scrutiny of the 

record, I find it very difficult to accept the concurrent decisions of the trial and 

appellate court that the properties in dispute were family properties. The 

23

principles governing appeals against concurrent findings of fact by two lower 

courts is well grounded and expounded in the case cited by my brother Dotse, 

ACHORO & Anr v. Akanfela & Anr [1996-97] SCGL 209. In support I wish to add 

the cases of Kpoglex Ltd. No. 2 v. Field [2000] SCGLR 175 and the more recent 

case of Adu v. Ahamah [2007 -2008] SCGLR 143. Boateng (No.2) v. Manu (No.2) 

[2007-2008] SCGLR 1117. Social Security Bank Ltd. V. CBAM Services Inc. [2007- 

2008] SCGLR 894. Applying the principle to this case I agree that there was 

overwhelming evidence both documentary and overt acts of ownership by 

Opanin Kwaku Poku which if the Court of Appeal had properly appreciated and 

evaluated, they would have come to a different conclusion from the trial court. 

Had the lower courts applied the rule of evidence of presumption of title raised 

by acts of ownership under section 48 (2) of the Evidence Decree, 1975 NRCD 

323 their conclusion would have been different. 

I wish to cite one example of overt acts of ownership, to add to what my brother 

Dotse enumerated in his well written opinion. The 2 nd Plaintiff who claimed he 

bought the land and provided money to put up the house in dispute was ejected 

from this same house by the late Opanin Kwaku Poku. Yet during Opanin Kwaku 

Poku’s lifetime, the 2 nd plaintiff did not lift a finger to protest nor assert his right 

even if not as the owner but as a member of a family that is alleged to own the 

house. Clearly the 2 nd Plaintiff’s conduct exposes the hollowness of his claim 

against the widow and children of Opanin Kwaku Poku. The preponderance of 

the evidence weighs heavily against the findings of the courts below and 

accordingly this Court ought to interfere and reverse the finding of the lower 

courts. The appeal accordingly succeeds. 

S. O. A. ADINYIRA (MRS) 


24

DOTSE, JSC: 

FACTS 

The Plaintiffs/Respondents/Respondents, hereinafter referred to as the Plaintiffs 

instituted action against the Defendants/Appellants/Appellants, hereinafter 

referred to as the Defendants in the High Court, Kumasi claiming reliefs in the 

nature of Declarations in respect of three immovable properties as their family 

properties, namely; 

i. House No. Plot II Block 24 Amakom Kumasi 

ii. Cocoa farm situate at Siiso on Kwapong Stool lands and 

iii. Farmstead situate at Abompe and Kunso stool lands. 

The Defendants did not counterclaim before the trial court. 

FACTS OF THE CASE 

The Plaintiffs are the sister and brother of one Opanyin KWAKU POKU who died 

intestate in Kumasi on the 21 st day of July 1996. 

Following his death intestate, the Defendants herein, who are the widow and son 

respectively of the said OPANYIN KWAKU POKU successfully applied for and 

obtained Letters of Administration in respect of the estate of their deceased 

husband and father. 

Included in the inventory of the properties listed in the application for the grant 

of the letters of Administration are the properties referred to supra. The Plaintiffs 

contending that the said properties are family properties, initiated the suit 

against the Defendants in the High Court Kumasi. 

The Defendants denied the claims by the Plaintiffs and asserted that the 

properties in dispute were the self acquired properties of the deceased Opanyin 

Kwaku Poku. 

25

On 23-09-03, judgment was entered for the Plaintiffs on all their reliefs in the 

trial court and aggrieved by that decision the Defendants filed a notice of Appeal 

in the Court of Appeal. The Defendants main ground of appeal was that the 

judgment was against the weight of the evidence. The Defendants subsequently 

argued two additional grounds of appeal namely that the learned trial judge 

shifted the burden of proof onto the Defendants and the Plaintiffs lacked the 

capacity to institute the action in the first place. 

On the 17 th day of May 2005, the Court of Appeal by a unanimous decision 

dismissed the appeal on the grounds that the appeal in its entirety lacked any 

merits whatsoever. 

Further aggrieved by the decision of the Court of Appeal the Defendants 

appealed to the Supreme Court by filing a notice of Appeal on the 15 th of July 

2005. 

GROUNDS OF APPEAL 

The grounds of appeal were as follows: 

1. The Court of Appeal in its leading judgment erred in law when it accepted 

as fact that the subsequent plot acquired by Opanin Kwaku Poku was 

replacement of the plot acquired earlier by the 2 nd Plaintiff. 

2. The Court of Appeal again erred in not giving adequate consideration to 

the inconsistencies of the evidence given by the Plaintiffs/Respondents as 

to the acquisition of the properties. 

3. The court of Appeal erred in not bringing the issue of capacity within the 

reception of Kwan v Nyieni principle. 

4. The Court of Appeal erred in holding that the 2 nd Plaintiff could sue in 

respect of these properties as customary successor to the late Kwaku 

Poku, when he was claiming same as family properties, a responsibility 

that is the prerogative of the actual Head of family of the Plaintiff- 

Respondent. 

At the trial court, both parties testified and called witnesses. 

26

Whilst it was the 2 nd Plaintiff who testified for and on behalf of the Plaintiffs, and 

called five witnesses, both Defendants testified and also called witnesses. 

PLAINTIFFS CASE 

What was the evidence led by the Plaintiffs to prove the method of acquisition of 

the property in dispute? According to the 2 nd Plaintiff sometime around 1949, he 

acquired a piece of land from the Amakomhene on orders from the Asantehene 

Prempeh II. In 1952, he traveled to the United Kingdom and whilst there, he was 

informed by his mother that the plot of land he had acquired had been affected 

by the construction of the Accra-Kumasi highway. According to the Plaintiff, his 

mother assured him that she had informed the Otumfuo and the Amakomhene 

who promised to give him a replacement plot but his absence from Ghana at the 

time was going to pose a problem. He therefore instructed his mother to let his 

brother, the late Kwaku Poku to act on his behalf. 

He also led evidence that he owned a beer bar and a provision store which he 

left in the care of his late brother when he departed for the UK. He later directed 

that the bar and the stock in it be sold and the proceeds used to fund the 

construction of the house. According to the 2 nd Plaintiff, he came back from 

England in 1955 and the Deceased took him round to show him the completed 

house. He said the property had not been fenced at the time. He left again for 

the UK and came back in 1960 where the house was in the same condition as he 

had seen it in 1955 except that a fence wall had now been built around the 

house. He said the fence wall had been constructed by the 1 st Plaintiff out of her 

own resources. Later in 1974, he visited again and the 1 st Plaintiff informed him 

that she had moved into the house and had connected water and electricity to 

the House. He tendered in Evidence Exh A, which is a receipt from the Ghana 

Water and Sewerage Corporation dated January 1994 and in the name of Akosua 

Dufie who until her demise was the 1 st Plaintiff in this matter. 

From the record, this was the only evidence tendered by the Plaintiff in support 

of his case of proving title to the land. The 2 nd Plaintiff also said in his evidence 

that he had been given an “allocation paper” evidencing the acquisition of the 

27

property. This the Plaintiff alleges he handed over to his brother before he left 

for England after explaining to him what it was. 

DEFENDANTS CASE 

2 nd Defendant in his evidence stated that the properties in dispute were the self 

acquired properties of his late father. In support of this, he tendered in exhibits 

1-13. Exhibit 1 was a goldsmith’s license even though it was not in dispute that 

the deceased had been a goldsmith before becoming a farmer. Exh 2 entitled 

“undertaking” was dated 23 rd June 1958 and attested to by the deceased and an 

officer from the Asantehene’s Land office. It was also copied to the 

Amakomhene. Also tendered in evidence were copies of site plans and receipts 

for the payment of tribute to various stools and property and ground rent all 

issued in the name of Kwaku Poku the deceased. 

From the grounds of appeal filed by the Defendants in this court, coupled with 

the Statement of Case filed by Counsel for the parties, it is clear the thrust of the 

appeal revolves around the rival contentions of the Plaintiffs that the properties 

in dispute are family properties in contrast to the Defendants claims that that the 

properties were the self-acquired properties of the deceased, KWAKU POKU. 

From the evidence on record, the resolution of this dispute will revolve around 

1. Assessment of the conflicting pieces of evidence adduced by the parties at 

the trial court. 

2. The source of funding as determined by the learned trial judge at the trial 

court and; 

3. Since the issue of CAPACITY has been argued, it will be considered first as 

a matter of procedure. 

SUBMISSIONS ON CAPACITY 

The Counsel for the Appellants argued doggedly the issue of capacity of the 

Plaintiffs to institute the present action. Counsel advanced the argument that as 

the Plaintiffs were claiming family property, they had to be clothed with the 

requisite capacity. The endorsement on the Writ of Summons read as follows: 

28

1. MADAM AKOSUA DUFIE PLAINTIFFS 

2. KINGSLEY ADU POKU-MENSAH 

(Customary successor to the late Kweku Poku For themselves and on behalf of 

the family of the late Kwaku Poku) 

It is apparent that the 2 nd Plaintiff was the customary successor of the late 

Kwaku Poku and this was admitted by the Defendants in their defence and 

testimony. Capacity is a point of law which if raised goes to the root of the 

action. The law on the position of a customary successor must then be examined 

to determine whether or not the 2 nd Plaintiff was clothed with the capacity. 

In GHANA MUSLIMS REPRESENTATIVE COUNCIL AND OTHERS v 

SALIFU AND OTHERS [1975] 2 GLR 246-265, the learned Judges held that 

in a representative action it was necessary, both in the writ and all 

subsequent pleadings to state clearly that the parties were suing or 

being sued in their representative capacity on behalf of the members 

of a defined class. 

It must be stated that the Plaintiff/Respondent had endorsed their Writ and 

pleadings as such and therefore no issue could be raised about the procedure or 

the capacity in which they sued.- 

In NYAMEKYE v ANSAH [1989-90] 2 GLR 152-163 it was held that as a 

general rule, the head of a family as representatives of the family was 

the proper person to institute suits for the recovery of family land. And 

where the authority of a person to sue in a representative capacity was 

challenged, the onus was upon him to prove that he had been duly 

authorized. He could not succeed on the merits without satisfying the 

court on that important preliminary issue. The customary law position 

was that when a successor was appointed, he was ipso facto the head 

of the immediate family. In the instant case, the 2 nd Plaintiff had been 

appointed the successor and therefore he became the head of the immediate 

29

family. He therefore had the capacity to sue and the judgment of the court of 

Appeal in that respect ought not to be disturbed. 

What weight then ought to be put on the conflicting evidence adduced 

by both parties? 

In the case of Yorkwa v Duah [1992-93] GBLR 278, CA, it was held that 

whenever there was in existence a written agreement and conflicting 

oral evidence over a transaction, the practice in the Court was to lean 

favourably towards the documentary evidence, especially if it was 

authentic and the oral evidence conflicting. See also Nsiah v Atuahene, 

[1992-93] GBLR 897 C.A 

It is interesting to note that in an action for a declaration of title to land, all the 

Plaintiffs were able to produce in support of their claim was a utility receipt 

dated January 1994 especially also as the burden of proof and persuasion rested 

firmly on them. 

The Defendants on the other hand have been able to produce enough 

compelling evidence to support their claim that the properties were the self 

acquired properties of the deceased. The Plaintiff claimed that the building was 

completed in 1955 whereas the Defendant tendered in Exh 4 dated 9-5-58 which 

was a receipt for the preparation of permit to develop Plot No 11 Block 24 which 

is the property in dispute. 

Other pieces of evidence which go to confirm that the deceased exercised overt 

acts of ownership more than the Plaintiffs were able to prove, are the following; 

1. It was not disputed that the deceased exercised overt acts of ownership 

over the properties without challenge from either the 1 st or 2 nd Plaintiff. 

He rented out the property to tenants and was never once called to 

account for the proceeds of the rent. 

2. He paid all the ground rent and property rates by himself without any help 

from anyone. All these acts go to support the assertion of the Defendants 

30

that indeed the properties were the self acquired properties of Kwaku 

Poku. 

In cross examination, the 2 nd Plaintiff was asked if he ever asked his brother 

about the title deeds to the properties and his answer was that he never did 

because the deceased was his elder brother and he didn’t have to ask him for 

the title deeds. 

Indeed this flies in the face of reason especially if as he claims he only put the 

deceased in charge because he was outside the country at the time. This 

assertion by the 2 nd Plaintiff is contrary to logic and his subsequent conduct in 

seeking to establish that the properties were family properties. His conduct any 

time he came back from the UK was inconsistent with someone who was 

financing or had financed the acquisition of the disputed properties. 

Indeed in the Defendants statement of case, learned Counsel for the Defendant 

strongly argued that both the Trial Judge and the Court of Appeal failed to 

consider the inconsistencies in the evidence of the Plaintiffs and their witnesses 

and rather tended to give weight to such inconsistencies contrary to the principle 

of law laid down in Odametey v Clocuh [1989-90]1 GLR 14 @ 28 S.C. 

3. The evidence of PW1 that she divorced the deceased Kwaku Poku 

because he did not give her a portion of the farm they cultivated together 

is telling and should have been scrutinized by the learned trial judge. If 

she knew that it was family property why would she be claiming a part 

when she was aware that she was not part of Kwaku Poku’s family and in 

her own testimony, this was the reason why she divorced the deceased. 

This in my view would rather corroborate Defendants assertion that the 

property was not family property but rather the self acquired property of 

Kwaku Poku. 

4. In addition to this, from the evidence on record, Kwaku Poku was never 

called upon to account for the proceeds from the cocoa farms in his 

lifetime, neither is there evidence on record to show that he of his own 

31

volition ever accounted to the family for the proceeds from the cocoa farm 

or for the Amakom property. 

All these pieces of evidence lead to one irresistible conclusion that the property 

was not family property. 

WEAKNESSES IN PLAINTIFFS CASE 

i. 2 nd Plaintiff also gave evidence that it was his sister the 1 st Plaintiff who 

connected utility services to the property in Amakom. P.W 3 also testified 

that he was responsible for connecting electricity to the house. In his 

testimony, he informed the Landlord Kwaku Poku and this was before 1 st 

Plaintiff came to live in the house. He also testified that 1 st Plaintiff 

refunded the money to him but does this refund of the money convert the 

property to family property? I don’t think so. Indeed in Ghana, it is not 

unreasonable nor uncommon for tenants to make certain improvements to 

properties they have rented to make conditions favourable for them. It is 

therefore not unreasonable for the 1 st Plaintiff to pay for the water 

connection to the house. Afterall, she was living in the house at the time 

and did it to make life easier for herself. Since the deceased was not living 

there himself at the time I would think that it certainly was not on his list 

of priorities. 

ii. Again, in the testimony of PW5, he claims the cocoa farm at Abompe was 

acquired around 1949, this was a full three years before the 2 nd Plaintiff 

left for his sojourn in the UK. The evidence that it was ₤100 realised from 

the sale of the beer bar that was used to cultivate the farm therefore 

cannot be correct. This is because from the evidence, the beer bar was 

sold much later. PW5 further testified that he helped in the cultivation of 

the farm during vacations from school, however PW1 contradicts this as 

she said no member of the family helped in the cultivation. PW 2 also 

testified that so far as he knew the cocoa farm belonged to Kwaku Poku. 

In my opinion, these are the inconsistencies and conflicts in the Plaintiffs 

case which are weaknesses inherent in their entire story. In this regard, if 

32

one considers the restatement of the principle in KODILINYE v ODU 

(1935) 2 WACA 336 in the case of ODAMETEY v CLOCUH already 

referred to supra, it would mean that the Plaintiffs had not met the 

standard of proof required on a balance of probabilities to require a 

consideration of the weaknesses if any in the Defendant’s case. 

Obeng v Bempomaa [1992-93] GBR 1027, held that 

inconsistencies, though individually colourless, may cumulatively 

discredit the claim of the proponent of the evidence. 

iii. Furthermore, in the Statement of Claim of the Plaintiffs, they pleaded that 

it was the proceeds from their father’s cocoa farm which was used to 

acquire the farms at Abompe and Siiso. They alleged that their father died 

testate but they put Kwaku Poku in charge as he was the eldest among 

the siblings. The question one may be tempted to ask is why the 

deceased will want to engage in the arduous task of cultivating virgin land 

when he already had three cocoa farms to take care of. Again, no 

evidence was led as to what happened to the cocoa farms bequeathed to 

them by their father. The only reasonable inference to draw here is that 

Kwaku Poku went to all that trouble to acquire the two new farms 

because he intended it for himself and not as family property. In any case, 

the Plaintiffs did not lead any credible evidence to prove that the 

Deceased used the proceeds from his father’s estate to enrich himself. 

As has already been stated, the glaring inconsistencies should not have been 

glossed over by the court below as “minor discrepancies” but should have been 

put under the strictest of scrutiny as they leave gaping holes in the evidence 

proffered by the Plaintiffs. 

Besides, as the deceased himself could not be brought to testify, the learned trial 

judge should have gone through the evidence with a fine toothed comb to 

untangle all the knots. See the English case of Garnett, In re; Gandy v 

Macaulay (1886) 31 Ch D 1 @ 9 where Brett MR stated as follows 

“The law is that when an attempt is made to charge a dead 

person in a matter, in which if he were alive he might have 

33

answered the charge, the evidence ought to be looked at with 

great care; the evidence ought to be thoroughly sifted, and the 

mind of any Judge who hears it ought to be, first of all in a state 

of suspicion…” 

In my opinion, the judgment of the trial court was indeed against the weight of 

the evidence as the Plaintiffs were not able to discharge the burden to entitle 

them to the declaration they sought. 

Secondly, it has to be noted that from the pieces of evidence referred to above, 

it is clear that the Plaintiffs have not been able to establish convincingly that the 

source of funding the acquisition of the properties came from the 2 nd Plaintiff. 

This will be explained. 

PRINCIPLE ON DEPARTING FROM CONCURRING FINDINGS OF FACT 

BY LOWER COURT 

At this stage, it must be observed that any attempt to come to different findings 

of fact other than those that have been made by the learned trial judge and 

affirmed by the learned justices of the Court of Appeal would be met by an 

established principle of law. This principle of law is that, an appellate court, such 

as this court, can only differ from the findings of fact made by a trial court and 

concurred in by an appellate court (just as happened in the instant case) unless 

it is satisfied that any advantage enjoyed by the trial court in seeing, hearing and 

observing the demeanour of witnesses cannot be explained by the conclusions 

reached by the trial court. 

Indeed, there is a long line of distinguished foreign and local cases to illustrate 

this time honoured and hallowed principle of law. 

Cases which immediately come to my mind and attention are the following: 

34

1. THOMAS v THOMAS [1947] All ER 582 

2. CLARKE v EDINBURGH TRAMWAYS CO [1919] S.C H.L 35@36 

3. POWELL v STREATHAM MANOR NURSING HOME [1935] AC 243 

@250 H.L 

4. AKUFO-ADDO v CATHLINE [1992] 1 GLR 377 per Osei-Hwere JSC 

5. ASANTE v CFAO [1961] GLR 12 PC 

6. NTIRI & ANR v ESSIEN & ANR [2001-2002] SCGLR 451 

7. ACHORO & ANR v AKANFELA & ANR [1996-97] SCGLR 209, 

holding 2 

Where the Supreme Court, speaking with one voice through Acquah JSC as he 

then was stated the principle as follows: 

“In an appeal against findings of facts to a second Appellate 

Court like [the Supreme Court] where the lower appellate court 

had concurred in the findings of the trial court especially in a 

dispute of which the subject matter was peculiarly within the 

bosom of the two lower courts or tribunals, this court will not 

interfere with the concurrent findings of the two lower courts 

unless it was established with absolute clearness that some 

blunder or error resulting in a miscarriage of justice was 

apparent in the way in which the lower tribunals had dealt with 

the facts. It must be established e.g that the lower courts had 

clearly erred in the face of a crucial documentary evidence, or a 

principle of evidence had not been properly applied, or that the 

finding was based on an erroneous proposition of the law that if 

that proposition be corrected, the finding would disappear. It 

must be demonstrated that the judgment of the courts below 

were clearly wrong.” 

See also the Nigerian Supreme Court case of ADEGBITE v OGUNFAOLU & 

ANOR [1990] 3 N.S.C.C 66 Holding 1. 

35

From the above authorities, the principle might be stated that an appellate court 

such as this court may interfere with the findings of fact of a trial court where 

the latter failed properly to evaluate the evidence or make the proper use of the 

opportunity of seeing or hearing the witnesses at the trial or where it has drawn 

wrong conclusions from the accepted evidence or where its findings are shown 

to be perverse. 

In the instant case, it must be noted that one of the principal characters, 

Opanyin Kwaku Poku had died. The law is settled that whenever issues touching 

the estate of a person who is deceased comes into play, the courts must be very 

slow in construing evidence against the dead person. 

See cases of In re Krah (Decd) Yankyeraah & Ors v Osei-Tutu & Anor 

[1989-90]1GLR 638 @ 662, Bisi v Tabiri [1987-88] 1 GLR, 360 @ 409, 

where the principle was stated that; 

“The well-known rule is that claims against a deceased’s estate 

must be scrutinized with circumspection” 

Secondly, if the trial court and the Court of Appeal had adverted their minds to 

the fact that the Plaintiffs by their common desire to claim the property as family 

property needed to produce very cogent, reliable, credible and convincing 

evidence that the properties in dispute did not belong to the deceased, they 

would have been more cautious in their evaluation of the case. This is especially 

crucial and important in view of the overwhelming documentary evidence 

proffered by the Defendants to support their contention that the properties were 

self-acquired by the deceased, Kwaku Poku. 

This has been further buttressed by the many overt acts of possession and 

ownership exhibited by the deceased in his lifetime without challenge by the 

Plaintiffs and their collaborators. 

What must be equally noted is that the evidence of PW1 AFUA MUNU, the 

divorced wife of the deceased should have been evaluated and assessed with 

circumspection. 

36

This is because she claimed she was married to the deceased before the widow, 

1 st Defendant was married to the deceased. However, as at the time of the 

deceased’s death, PW1 was no longer married to him. 

The evidence of this witness PW1 differed materially from that of the 2 nd Plaintiff 

and in some instances exposed herself as someone who is bitter against the 

deceased and the Defendants. 

The 2 nd Plaintiff in his evidence-in-chief testified thus: 

“In respect of the replacement plot, I directed my mother to tell 

Kwaku Poku to use the proceeds from my store to clear the plot 

and sell the beer bar and the provisions shop for ₤400 and use all 

these proceeds to put up a house on the plot. I further directed 

that the balance be used to cultivate cocoa farm at Abompe” 

However, PW1 in her testimony told the court that one day in the company of 

the deceased to Kumasi, she heard 2 nd Plaintiff inform the deceased that he had 

acquired a plot at Krofofrom and that he 2 nd Plaintiff had come to see the 

deceased for the purposes of the latter building a house on the plot for him. 

This meant that the 2 nd Plaintiff was in Kumasi when he gave those instructions. 

There was no indication that he had traveled or had planned to travel. As 

between the deceased who was reputed to be living in the cottage and the 2 nd 

Plaintiff who lived in Kumasi who had the better chance to supervise a house if 

indeed the 2 nd Plaintiff wanted to build a house? 

Secondly, PW1 stated that the 2 nd Plaintiff sent money to the deceased but she 

was unable to say whether that was the money used for the construction of the 

house. 

Thirdly, PW1 stated in clear terms that the deceased cultivated the Abompe 

farms first, and with the proceeds from the said farms, went on to cultivate the 

farm at Siiso. 

37

In view of the claims by the PW1 that the deceased was not assisted by anybody 

in cultivating the said farms except herself, is it not surprising that the learned 

trial judge failed to appreciate the import of the said testimony? 

Finally, PW1 stated clearly that it was because of the failure of the deceased to 

give her a portion of the farms that they jointly cultivated that she divorced him. 

If the farms were family farms or property, why would PW1 ask for a portion? 

PW1 definitely does not belong to that family.. 

It is because it was the deceased who personally cultivated these farms from his 

own resources that PW1 demanded a share which was rejected. 

Thus, it must be noted that PW1 as an estranged wife to the deceased is bitter 

and jealous of the 1 st Defendant who was her rival in the marriage. The learned 

trial judge should have seen through the intrigues that were at play in this case. 

Again, the evidence of PW5 a nephew of the Plaintiffs is suspect. He is someone 

who definitely stands to gain if the properties are declared family properties in 

contra distinction to the claims of the Defendants that they were the self- 

acquired property of the deceased. 

With the passage of the Intestate Succession Law, 1985, PNDCL 111 as 

amended, which law has as it were strengthened the succession rights of widows 

and children by giving them the protection under the law, it is to be expected 

that courts of law will look at the public policy measures behind the passage of 

PNDCL 111. 

If that is not done, spurious claims by family members as has happened in the 

instant case to deprive widows and children from succeeding to their husbands 

properties would be protected. 

Furthermore, it is to be noted that the law is firmly settled that for a family or 

stool to succeed in an action for declaration of title to properties, it must prove 

its method of acquisition beyond doubt either by traditional evidence , 

documents of title or by overt acts of ownership exercised over the properties. 

See Odoi v Hammond [1971] 1 GLR 375 per Azu Crabbe J.A as he then was. 

38

In the instant case, the Defendants have been able to establish evidence by 

recent facts of overt acts and documentary evidence that the properties in 

dispute were self-acquired by the deceased. 

Finally, once there is such abundant evidence on record to establish conclusively 

that the Plaintiffs did not lead evidence to meet the standard of proof settled in 

the locus classicus of ODAMETEY v CLOCUH, already referred to supra, the 

trial court should have rejected the Plaintiffs story. 

Thus it has been established that the Plaintiffs have not made out a case 

sufficient enough to entitle them to their reliefs, it is pointless to consider the 

Defendant’s case whether there are any weaknesses therein or not. It is only 

when the Plaintiff in a civil case has met the first part of the test in the 

ODAMETEY v CLOCUH case already referred to supra that a court will go 

forward to consider the Defendants case. 

From the above, it is clear that there are cogent and credible pieces of evidence 

which this court on its own can use to differ from the findings of fact made by 

the trial court and the first appellate court. 

I am therefore of the view that since there are enough pieces of evidence to 

interfere with the findings of fact made by the two lower courts because the said 

findings are not supported by the conclusions arrived at by the said courts, any 

advantage enjoyed by the trial court as a court of first instance is clearly eroded 

by the wrong conclusions arrived at. 

Since it is the duty of the courts of law to do substantial justice, I will depart 

from the said findings of fact. 

See Hanna Assi (No 2) v GIHOC Refrigeration & Household Products 

Ltd. [2007-2008] SCGLR 16 Review Decision per Prof. Ocran JSC of blessed 

memory. 

Using the said principles, I will therefore hold and rule that the properties in 

dispute are the self-acquired properties of KWAKU POKU deceased, and the 

39

findings of fact by the trial court and the Court of Appeal on the score that they 

are family properties are accordingly set aside. 

CONCLUSION 

In the result, the appeal herein against the Court of Appeal decision dated 17 th 

May 2005 is hereby allowed. By parity of reasoning, the judgment of the High 

Court, Kumasi, dated 23 RD September 2002 is also hereby set aside. Instead 

there will be judgment for the Defendants. 

COUNSEL 

J.V. M. DOTSE 


J.V. M. DOTSE 


J.V. M. DOTSE 


J.V. M. DOTSE 


J.V. M. DOTSE 


40

TOTOE LEGAL SERVICE FOR THE APPELLANT. 

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

41

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