Haligah And Another Vrs Tijani (E12//2022 2022) [2024] GHAHC 226 (18 March 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE, DENU HELD ON MONDAY 18 MARCH 2024 BEFORE JUSTICE GEORGE BUADI, J. 1 ABUTSU HALIGAH KWAME ISAAC HALIGAH (Both of Aflao) Versus TIJANI AREMU FRANK (Also of Aflao) } } } } } JUDGMENT SUIT NO. E12//2022 DEFTS/APPELLANTS PLT/RESPONDENT This is a civil appeal against the final judgment of the District Court, Agbozume dated 29 October 2021 presided over by His Worship Iddrisu Issah, Esq. At the end of the trial, the trial court upheld the Plaintiff’s claims and dismissed the Defendants’ counterclaim. Dissatisfied with the “whole judgment” of the court, the Defendants on 1st December 2021, that is just about one month after the decision of the trial court filed this appeal, praying the Court to set aside the judgment of the trial court and its place enter judgment in their favour because: a The judgment [of the trial court] is against the weight of evidence. Page 1 of 14 b Additional ground/s of appeal may be filed on receipt of the Record of Appeal. 2 Indeed, under leave of the Court dated 17 November 2022, the Appellants filed an additional ground of appeal. That is, “… trial Magistrate erred when he failed to call on the 1st and 2nd Defendants/Appellants to cross- examine the 3rd Defendant”. The appeal record is a neatly bound 70-page indexed document that contains 23 process documents filed at the trial court. They include the writ; the pleadings; the witness statements; the exhibits tendered including indenture and conveyance, site plans; the final judgment of the trial court; and the notice of the appeal. Plaintiff, the Respondent herein commenced the suit at the District Court, Agbozume by a formal writ on 23 Sep 2020 against three siblings. Plaintiff, filed the suit by himself; that is, without a lawyer, and thus, naively attached to the writ a Deed of Conveyance, a site plan, and an Indenture, ostensibly as proofs of his root of title to the disputed piece of land marked respectively as Exhibits A, B, and C. His claims were for: 2 Declaration of ownership of 2½ plots of land [at Agblekpui- Aflao in the Ketu South Municipality of the Volta Region]. General damages for trespass. Cost of the writ Denying the claims of the Plaintiff, the Appellants counterclaimed as follows: A Declaration of Title of ownership to the effect that the disputed piece of land, located and situated at Aflao-Agblekpui Page 2 of 14 also known as Lekezugbe land with boundaries described below remains the property of all the [children] of the late Eworho Haligah. Boundaries On the North by the property of Djidan measuring 202.6 feet more or less. On the south by the property of Agbesi measuring 216 feet more or less. On the east by the property of Kudzeanyi measuring 102.3 feet … and On the west by the property of Fiadohu measuring 115.6 feet more or less. Recovery of possession Perpetual Injunction restraining the plaintiff, his agents, workmen, or assigns from further carrying out any acts of trespass on the disputed land. Damages for Trespass Cost. 3 5 The suit was tried based on the pleadings and witness statements the parties filed per the directives of the trial magistrate. Respondent called in support of his case the sole testimony of Samuel Sokpoli (PW1). The testimony of the Appellants (1st and 2nd Defendants) was led by the 2nd Defendant. They called in support of their case the testimony of Torgbui Fiadonu and Esi Haligah (DW1 and DW2). The statement of defence, indeed the testimony of the 3rd Defendant, clearly was in support of the case of the Plaintiff/Respondent. Not surprising therefore that the 3rd Defendant is not part of this appeal by the 1st and 2nd Defendants. Page 3 of 14 At the close of the trial, the learned trial magistrate1 on 29 October 2021 upheld the Plaintiffs’ case and wrote on page 67 paragraph 2 of the appeal record2 thus: The Court observed that aside the existence of documentary evidence and acts of possession by the Plaintiff, the third defendant corroborated the transaction between the plaintiff and the defendants' father. The Defendants placed reliance on the doubts they held on the authenticity of the signatures on the deed of conveyance. They have not supported their assertions with any positive acts or particulars of their assertions. Simply the defendants have failed to establish any fraud or illegality on the part of the plaintiff in acquiring the land. The claim for ownership of the parcel of land by the plaintiff remains unimpeached. It is the above portion of the court's decision that in my view had triggered this appeal, as according to the Appellants, “[t]he judgment [of the trial court] is against the weight of evidence, and further that, “… trial Magistrate erred when he failed to call on the [Appellants] to cross-examine the 3rd Defendant”. Now, to the Appellants' complaints: that is, “the judgment is against the weight of evidence”. The law is that whenever an appellant indicates in the notice of appeal a complaint as in this instant suit, that the judgment of the trial court is against the weight of evidence, the appellate court is under a duty to examine the totality of the evidence on record and come to a conclusion of its own on the facts and the law applicable. See Akufo Addo v. Catheline [1992] 1 GLR 377; Boafo v Boafo [2005-2006] SCGLR 705, at 715. See 2 His Worship Iddrisu Issah, Esq. At page 8 of the judgment of the presiding magistrate Page 4 of 14 also Arhey & Akakpo v Ayaa Iddrisu [2010] SCGLR 8910894; Abbey & Others v Antwi [2010] SCGLR 17; Djin v Musah Baako [2007-2008] SCGLR 686; Tuakwa v Bosom [2001-2002] SCGLR 61. The duty is to review the evidence on record in line with the judgment of the trial court to ascertain the veracity of the Appellant’s claim that the decision of the trial court is at variance with the evidence on record, and cannot be supported by the evidence on record. I have to ascertain further whether there are crucial pieces of evidence on the record that the learned trial judge failed to identify, acknowledge, and make findings of fact thereon under this main complaint; and that, having done so, he applied the relevant law to his findings and conclusions. The main issue the trial court identified and set down for trial was whether or not the ownership of the parcel of land at Agblekpui was in the Plaintiff. Concerning the burden of proof and the standard of proof thereof under this main complaint, I will have to say here that having filed a counterclaim for declaration of title to the same land and for other ancillary reliefs, the Defendants, equally bear the evidential burden of proof as that of the Plaintiff. Indeed, considering claims for declaration of title to land, both parties need to provide proof of their root of title, possession and user, possibly unchallenged acts of possession of the land or portions thereof. Indeed, for a person, a stool or a family to succeed in an action for declaration of title to land it must provide proof of means of acquisition either by traditional evidence or by overt acts of ownership exercised in respect of the land in dispute. See Odoi v. Hammond [1971] 1 GLR 375, at 382 C. A, Azu Crabbe J. A. (as he then was); Oppong Kofi v. Fofie [1964] GLR 174 SC. To secure a victory, the standard proof is one of preponderance of probabilities. Evidence Act, 1975 (NRCD 323) s. 13; Banga & Ors v Djanie & Anor [1989-90] 1 GLR 510. Page 5 of 14 9 From the evidence on record in support of their counterclaim, the Defendants' case was nothing less of a call on the trial court to invalidate the alleged sale of the subject matter land by their late father to the Plaintiff on grounds, firstly, that the document evidencing the sale and transfer of the land to the Plaintiff was fake, forged and fraudulent; secondly, that none of the family, including their father’s children was aware of the transaction, and thirdly, that the Plaintiff did not show up on or after their father’s death in 2014 to inform the family of the sale. The trial court found otherwise when it indicated that the Defendants failed to provide the requisite evidence in support of these claims. The trial magistrate, after evaluating the value of the Defendants' evidence held, as I have stated above that: They have not supported their assertions with any positive acts or particulars of their assertions. Simply the defendants have failed to establish any fraud or illegality on the part of the plaintiff in acquiring the land”. (Emphasis added) I find that the Defendants pleaded fraud and forgery of the document that purportedly evidenced the transaction; indeed, the transfer of the land in dispute to the Plaintiff by their late father. Claims of forgery and fraud are claims of deceit, misrepresentation, and dishonesty. On grounds of public policy, these are criminal acts prohibited by distinct statutes. The standard of proof in these claims is therefore not the same as the standard of proof in civil claims of a preponderance of probabilities. Indeed, section 13 (1) of the Evidence Act id. provides that: In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime [that] is directly in issue requires proof beyond a reasonable doubt. Page 6 of 14 The meaning is that where in a civil case, a crime is pleaded or alleged, the standard of proof changes from the civil proof of a balance of probabilities to the criminal standard of proof beyond a reasonable doubt. In the English case of Kitchen v Royal Air Force Assoc. & Ors [1958] 2 All ER 241, the Court of Appeal took the position that fraud was proved if the evidence provided in proof sufficiently established that what was done was unconscionable, in fact, dishonourable. In Acquah & Dadzie v. Loo [1961] GLR 239, the Supreme Court held that to succeed in claims of fraud, forgery, and dishonesty, there must be clear proof including in particular undue influence, unconscionable bargain, public policy, or that it was inequitable for the transaction to be allowed to stand; and in their absence, the claim must fail. I find that the plaintiff entered into the transaction with the Defendants’ late father over the subject matter land - two and a half plots of land in April 2010. That was four years before 2014 when the vendor, their father died. I find evidence in writing in support of the transaction duly executed by the vendor and the plaintiff, witnessed by persons related to the Vendor, in fact, two of his children Emmanuel Eworho Haligah, Ben Eworho Haligah, and one Atta Vanderpuye in compliance with the earlier Land Title Acts and the sections 34 and 35 of the new Lands Act, 2020 (Act 1036). I find the deeds of indenture Exhibits A and C compliant with the requirements of the law, under both the old and current law. Per their pleadings, the Appellants were mandated by law to lead evidence in the discharge of their ostensible claim for invalidation of the land transaction and the documents associated with it, particularly evidence to show that the signatures on both Exhibits A and C are not that of their father but fake or forged but a look at the vendor’s signatures on Exhibits A and C Page 7 of 14 show that it is the same signatures of their father that were witnessed and signed by Emmanuel Haligah, the elder brother of the Appellants, one of the sons of their father. Redolent in the evidence on record are also concerns of the Appellants that they were not witnesses to the transaction. The Appellants’ father was not obliged by law to call all his children to inform them of the sale or to witness the sale or documentation thereof. The Appellants’ further concern was that the Respondent did not show up three months after the death of their father to claim that the land was sold to him. Respondent’s inability to show up at the death, burial, and funeral rites of the vendor did not, in my view, invalidate an otherwise valid purchase agreement between Appellants’ father and the Plaintiff that was witnessed by some of the sons of their late father. The plaintiff’s response that he was at all material time of the death, burial, and funeral rites of his vendor at Ashaiman was not unreasonable nor improbable of belief. Besides his discharged proof of root of title, the plaintiff gave precise evidence of the size, location, and boundary owners or landmarks of the disputed land. I find further evidence of effective possession by the plaintiff by the erection of a fence wall, which was later trespassed upon and destroyed by persons the plaintiff claims were the defendants. The court dismissed the claims of destruction and damage to the wall for lack of satisfactory evidence in support thereof. I have looked into the evidence on record and I am in full support of the findings and conclusions of the learned trial magistrate that the Defendants failed to meet the required standard of proof of their primary claims of forgery and fraud of the documents on the transfer of the disputed land to Plaintiff. I am very much conscious, indeed not unaware of the caution of the courts on the reception of evidence against the estate of a dead person. Indeed, Page 8 of 14 the well-established rule of law is that a person making a claim against the estate of a dead man cannot sustain that claim by his or her deposition unless there be some corroboration of it; something to satisfy the court that the assertion is literally true. But it’s been held that where the evidence presented is neither incongruous, preposterous, unreasonable, illogical, nor incredible, the judge may proceed to give it the weight it deserves. The consideration relates therefore to the cogency or the weight to be attached to the evidence. In Re Agyepong(dec’d), Poku v. Abosi [1982-83] GLR 254; See also Bisi v Tabiri (alias) Asare [1987-88] 1 GLR 360; Moses v Anane [1989-90] 2 GLR 694; and Amankwah v Nsiah [1994-95] GLR 758. This is not strictly a transaction that the dead person was unaware of, or that the adverse claim of interest is now being made against the person's estate after his death. In this instant suit, the clear fact on record was that there were ample pieces of evidence of a valid purchase agreement over the subject matter land between the vendor during his lifetime and the plaintiff. That was a couple of years before the death of the vendor, but a section of his surviving children, apparently displeased are contending forgery and fraud of the transaction simply as I find on record that they were unaware of the transaction though the trial court found that there were competent witnesses to the transaction including some of the deceased vendor’s children. The three Defendants in this suit are siblings; that is, children of the vendor/ father. The learned trial magistrate found that the 3rd Defendant’s testimony was rather in support of the Plaintiff. That was a clear fact; indeed, 3rd Defendant admitted that Plaintiff bought the disputed land from her father Eworho Haligah during his father’s lifetime and that her father informed some of his children at a meeting in his house at Agblekpui. She mentioned Emmanuel Haligah, Ben Haligah, her deceased brothers, 1st Defendant, Esi Page 9 of 14 Haligah, Yawo Haligah, including herself as present in the house when their father informed them of having sold all his piece or parcel of land at Lekezugbe to the Plaintiff. According to the 3rd Defendant, her father stated further that he used the money to reroof his straw-roofed building, started a two-room building and other developments in his house, and also said he gave GH¢100.00 (One Hundred Ghana Cedis) to Esi Haligah to travel to Accra to solve her problem. The learned magistrate made a finding that the evidence of the 3rd Defendant “corroborated the transaction between the Plaintiff and the Defendants’ father”.3 This finding of the magistrate had become a ground for the appeal, as according to the Appellants, the magistrate was wrong to have made such a conclusion when the clear adverse testimony of the 3rd Defendant was not cross-examined. They contend in this appeal that the trial court ought to have asked them to cross-examine 3rd Defendant on her testimony and that the failure of the trial court amounted to a breach of natural justice and as such 3rd Defendant’s testimony should be expunged, as both parties were unrepresented by lawyers. Though I find no record that the court denied the Defendants of any such request, to some extent, the Appellants were right in some of their contention on this ground. As a general rule, if a party who testifies is not cross-examined, his evidence may in the court’s discretion be expunged from the record or disregarded altogether. Though the 3rd Defendant is not an opposing party, his evidence is adverse and hostile to the Appellants’ case. Cross-examination is not only limited to the testimony of an opposing party but also permissible of an adverse or hostile testimony from a party or a appeal See page 8 para. 2 of the judgment of the trial magistrate; also at page 67 of the record. Page 10 of 14 witness in the suit. Per section 62 of the Evidence Act id. cross-examining a witness or the party of his adverse or hostile testimony is a matter of course whether or not a party is represented by a lawyer. My view is that the testimony of a party in a case or a witness that affects the credibility of another party or witness’s testimony must be cross-examined as a matter of right. The law is that the consequence of failure or default to cross-examine a party or a witness of his adverse evidence must not be applied strictly in the case of illiterate litigants unrepresented by lawyers. See Mante v Botwe [1989- 90] 1 GLR 479 CA; Wiafe v Kom [1973] 1 GLR 240, at 244. It is a fact the parties at the trial court were unrepresented by lawyers. It is also a fact that the three Defendants did not file a common statement of defence. The 1st and 2nd Defendants filed a joint or common defence, whilst the 3rd Defendant filed a separate defence, whose evidence on oath, I reiterate was invariably in support of the plaintiff’s case against the Appellants. Being so, the trial magistrate was under a duty to remind and call upon the Appellants to cross- examine the 2nd Defendant when the latter closed her case. The learned trial magistrate failed to direct, as no record suggests so. Besides, the learned trial was under a duty to caution himself on the unexamined evidence of the 3rd Defendant in his evaluation of the totality of evidence at the trial. This too, the magistrate did not. My view is that, the unexamined evidence of the 3rd Defendant cannot be relied on to determine the suit’s outcome. All the same, per section 5 of the Evidence Act, a finding, verdict, judgment, or decision of a trial court shall not be set aside, altered, or reversed on appeal or review because of the erroneous admission of evidence that in the instant suit included the unexamined evidence of the 3rd Defendant unless the erroneous admission of the evidence resulted in a substantial miscarriage Page 11 of 14 of justice. In determining whether the alleged erroneous admission has resulted in a substantial miscarriage of justice, the prime consideration is whether the trial court relied on any such inadmissible, erroneous, or as in the instant suit, the 3rd Defendant’s unexamined evidence. Per the evidence on record, I am of the calm view that the trial court’s ultimate decision was not hinged solely or materially on the evidence of the 3rd Defendant. The Respondent did not benefit, and neither did the Appellants suffer from the unexamined evidence of the 3rd Defendant or its reliance thereon by the trial court in the outcome of the suit. There was therefore no miscarriage of justice to the Appellants to form the basis of upholding this ground of appeal. The decision of the trial court, I find, was based on crucial findings the court made from the trial other than the evidence of the 3rd Defendant, and I find that the findings derived their support from the evidence on record, indeed, independent, unrelated and unconnected whatsoever to the evidence of the 3rd Defendant. On page 6 paragraph 1 of the judgment4, these are some of the crucial findings from the trial: i The plaintiff made a transaction for a piece of land at Agblekpui in Aflao ii iii The plaintiff constructed walls around parts of the land The plaintiff traces his root of title to the Defendants father Eworho Haligah iv The 1st and 2nd defendants do not have any records on the plaintiff's transaction with their father v The walls constructed by the plaintiff were broken by some people. Also at page 65 of the appeal record Page 12 of 14 22 In conclusion, what the law requires in suits involving declaration of interest and ownership of land is for a plaintiff, or where there is a counterclaim, both parties including the defendant to give persuasive evidence establishing their respective root of title, mode of acquisition, and overt acts of possession. I find evidence in support of satisfactory proof and discharge of the plaintiff of the burden of proof he bore. It is therefore incorrect to say that the decision cannot be supported by the evidence on record. It is also incorrect to say that the unexamined evidence of the 3rd Defendant occasioned a miscarriage of justice. This is because the final decision of the trial court was solidly grounded on other crucial findings that were unconnected with the damned unexamined evidence of the 3rd Defendant. The Appellants were not prejudiced, nor did they suffer any miscarriage of justice; neither did the Plaintiff derive any gain or advantage from the adverse or hostile evidence of the 3rd Defendant. Besides, there is ample support on the face of the evidence that the Defendants Appellants failed to provide satisfactory evidence of the claims that the documents in support of the plaintiff’s claim over the land were fake, forged, and fraudulent. From the evidence on record, I endorse the trial court’s findings and conclusion in favour of the plaintiff and thus hold that the judgment is amply supported by the evidence. I dismiss both grounds of the appeal. The appeal fails in its entirety and is accordingly dismissed.5 George Buadi J High Court Denu. Aremu End of the judgment on the civil appeal in the suit - Abutsu Haligah & 2 Ors v. Tijani Fank (Suit No. E12/13/2022) Page 13 of 14 Lawyers: 2 Kwame Senanu Afagbe, Esq. for Defendants/Appellants Jemima Manyra Addo (Ms) for Plaintiff/Respondent. Page 14 of 14