AWUAH VRS POMAA (C12/014/2024) [2024] GHAHC 227 (22 May 2024)

1 | P a ge IN THE SUPERIOR COURT OF JUDICATURE, HIGH COURT OF JUSTICE COMMERCIAL DIVISION ‘’A’’ HELD AT SUNYANI ON TUESDAY THE 22ND DAY OF MAY, 2024 BEFORE HIS LORDSHIP JUSTICE HARRY ACHEAMPONG-OPOKU ESQ. SUIT NO. CC12/014/2024 FRANK AWUAH PLAINTIFF/RESPONDENT BEREKUM VRS. BERNICE AFIA POMAA DEFENDANT/APPELLANT BEREKUM JUDGEMENT The plaintiff/Respondent herein issued a writ of summons against the defendant/Applicant at District Court Berekum claiming the follows relief. “Declaration that the unregistered private car (kia sportage) is the bonafide property of the plaintiff/Respondent as same does not form part of the estate of Emmanuel Awuah Adjei @ Kwabena Awuah Before I proceed further it must be noted that plaintiff/Respondent initially sued together with one Ameyaa Franklina against the Defendant/Appellant, however, the said Ameyaa Franklina managed to settle her issue with the said Defendant/Appellant and therefore filed notice of Discontinuance of her action against the Defendant/Appellant. Meanwhile when the parties appeared before the District Magistrate Court, they were instructed to file their pleadings in the case which they complied. 2 | P a ge Indeed, the Plaintiff/Respondent statement of claim could be briefly captured as follows; That before his uncle one Emmanuel Awuah Adjei who is now deceased died he promised to buy the plaintiff/Respondent a car, the subject matter of dispute in this appeal. According to the plaintiff before then he used the said car during his marriage celebration and used it as a friend’s car. That on 31st night of December, 2017 the plaintiff/Respondent who is a pastor told his congregants that his uncle has promised him to buy him a car so the congregants should assist him to thank his uncle the said Emmanuel Awuah Adjei. After the plaintiff/Respondent further averred that it was his friend’s car Kia Sportage which his uncle promised to buy for him after seeing him using it during marriage celebration. That the said car belongs to his church member Amankona Kelvin Agyei (PW2) who was selling the car at the price of GHc38, 000.00 plaintiff also avers that his uncle gave him Ghc30, 000.00 to make initial payment which he gave to PW2 that after paying the said Ghc30, 000 PW2 handed over the car to him but kept the car papers since he had not finished paying for the cost of the car. Plaintiff/Respondent further says that later when he went to his uncle for the remaining GHc8,000.00 his uncle told him that he could not get the said Ghc8,000.00 and that since the car belong to him the Plaintiff/Respondent, he should go and looked for the remaining balance to pay the car owner. Plaintiff therefore went for a balance of Ghc8, 000.00 to pay PW2 therefore bringing the total and the final payment to Ghc38, 000.00 and that when he paid the last Ghc8, 000.00, PW2 then released the papers of the car to him. Plaintiff/ Respondent also said that the papers handed to him by PW2 are receipt of import of the car certificate of the purchase of the car and custom documents of the car. 3 | P a ge Indeed, the plaintiff/Respondent tendered these papers during the trial of the case. Plaintiff/Respondent avers that since then the vehicle has been in his possession as the owner. And that his uncle during his life time never claimed ownership of the said car knowing very well that it belongs to the plaintiff/Respondent further avers that strangely when his uncle died, the Defendant who was the wife of his uncle then included the said car in inventory of properties belonging to his late uncle when going for Letters of Administration to administer the estate of his late uncle. Plaintiff/ Respondent therefore challenged his uncle wife who is Defendant/ Appellant in this case about the inclusion of the said car in inventory of properties, in going for Letters of Administration but all to no avail hence he took action at the District Court Berekum against the Defendant/Appellant. Meanwhile Defendant in her statement of Defence claims that the said car belong to her late husband, the plaintiff/Respondent uncle, that the cost of the vehicle was Ghc35,000.00 and not Ghc38,000.00 that her husband initially gave plaintiff/Respondent Ghc20,000.00 in her presence to make the initial deposit of the said car. Defendant/Appellant later says that plaintiff/ Respondent came for the balance and that her late husband gave him another Ghc20,000.00 when she asked the husband why Ghc20,000.00 the husband told her that the Defendant/Appellant was to used Ghc15,000.00 to pay the balance of the car and used the remaining balance of Ghc5,000.00 to buy her husband cashew nut Defendant/ Appellant avers that her late husband Plaintiff/Respondent uncle bought the said car to be used for campaign purposes as the husband had stood to contest the position of constituency chairmanship of NDC in Berekum West. And that the said car has come into possession of the plaintiff/Respondent as driver for her late husband since the late husband did not know how to drive. Indeed, in the course of the campaign anywhere they went the 4 | P a ge Defendant/Appellant husband introduces Plaintiff/ Respondent as his driver. And that at a certain point before the husband’s tragic death he asked the Plaintiff/Respondent to go and register the car, but Plaintiff/ Respondent told the husband that they should wait since the year was getting to the end. Defendant/Appellant says that all along the car has been the property of her late husband, and that the said car came to the possession of the Plaintiff/ Respondent by the virtue of the fact he was the driver of her late husband, who was the uncle of the Plaintiff/ Respondent. At the close of pleadings, the following issues were set down for trial; (1) Whether or not the writ of summons is competent or not (2) Whether or not the said car, unregistered Kia Sportage 4 x4 forms part of the Estate of the late Emmanuel Awuah Adjei. However, after trial, the trial Magistrate Court gave judgement in favour of the plaintiff/Respondent and concludes as follows; “Flowing from the following there of, the evidence of the plaintiff is more probable than that of the defendant. I therefore enter judgement in favour of the plaintiff to the effect that the plaintiff is owner of the disputed Kia Sport 4x4”. See page 102 of the Record of Appeal. However, defendant being dissatisfied with the said judgement has filed this appeal at this Appellate court against said Berekum District Magistrate Court judgement dated 3rd March, 2023. The Defendant notice of appeal can be found at page 3 of the Record of Appeal and was filed on 8th March, 2023. The grounds of the Defendant/Appellant appeal are as follows; 5 | P a ge (a) The judgement was against the weight of evidence adduced. (b) The trial Magistrate erred in law and this error has occasioned a grave miscarriage of justice when the court ignore a binding decision of the Supreme Court in the case of Standard Offshore Ltd. Vrs. National Investment Bank (2017 - 2018) 1 SCLR 707 case describing same as binding authority. (c) The trial court erred in law and this error has occasioned a grave miscarriage of justice when the court equated receipt paid on behalf of the deceased by the plaintiff as document conferring title in the disputed vehicle on the plaintiff instead of construing same as resulting trust. (d) The court erred in law in the application of law of evidence of proof and presumptions. (e) The trial court erred in law when it failed to consider the video evidence (exhibit ‘D’) which contradicted the plaintiff’s evidence that the deceased gifted the car to him. (f) Additional grounds of Appeal shall be filed upon the receipt of the Record of appeal. These grounds of Appeal can also be found in pages 103 to 104 of the Record of Appeal. Also sought the following relief from this appellate court to set aside or reversal of the whole of the judgement costs and consequential orders of the District Court Berekum dated 3rd March, 2023. See page 104 of the Record of Appeal. In Ghana appeal has also be the creature of statute and therefore whoever invokes the jurisdiction of the appellate court must strictly abide by the terms of the statutes creating the appeal. 6 | P a ge Hence grounds of appeal must be formulated in such a way that it will conforms to rules of appeal as provided by law or rules of procedure. Now looking at the grounds of appeal formulated by the learned counsel for the appellant, from grounds (a) which is omnibus ground of appeal. That is the “Judgement was against the weight of the evidence adduced” The rest of the grounds of appeal talks about error of law on the part of the trial magistrate strangely the learned counsel did not give out particulars of error of law as required. Indeed, order 51 r 2 (3) of C.I 47 state as follows; “If the grounds of appeal allege misdirection or error in law particulars of the misdirection or error shall be clearly stated”. Such a mistake on the part of the learned counsel for the appellant will render such grounds inadmissible or shall not be acceptable. See the case of Alawiye Vrs Agyekum (1984-86) 1 GLR 179 C.A. Indeed, for want of particulars of the alleged errors of law the Supreme Court struck out grounds 2 and 4 as argumentative and full of narratives see the case of West Laurel Co. Ltd Vrs. Agricultural Development Bank (2007-2008)1 SC GLR 556. Finally, in the case of Zabrama Vrs. Segbedzi (1991) 2 GLR 221 where Kpegah J.A. (as he then was) stated as follows; “No ground which is vague or in general terms ….shall be permitted …….and the implication of this rules is that an appellant after specifying the part of judgement or order complained of must state what he alleged ought to have been found by the trial judge or what error he had made in point of law……”. 7 | P a ge In view of the above analysis of the authorities, I would strike out the appeal Appellant’s grounds (b), (c), (d) and (e) of the grounds of appeal since they do not conform to order 51 r 2 (3) of C.I. 47. It must also be noted that the appellant has not filed any additional ground(s) of appeal so only ground left for the appellate court to consider is ground (a) of the grounds of appeal that is; “The judgement was against the weight of the evidence adduced” First as stated in the case of Praka vrs Ketewa (1964) GLR 423 the then supreme Court said that; “An appeal is by way of rehearing and so an appellate court is entitled to make up its own mind on the facts and to draw inference from them to the extent that the trial court could” I therefore intend to treat only ground (a) of appeal that is the; JUDGEMENT WAS AGAINST WEIGHT OF EVIDENCE ADDUCED”. I will start by quoting the following statements on this subject. In the case of Anim Addo Vrs. Catheline (1992) GLR 377 where the Supreme Court stated “Where an appeal is against the weight of evidence. The appellate court had jurisdiction to examine the totality of evidence before it and come to its own decision on the admitted and undisputed facts”. Then in the case of Bonney Vrs. Bonney (1992 - 93) GBR 779 S.C this court held; “Where an appellant contended that, the judgement was against the weight of evidence of showing from the evidence that was in fact so he assumed the burden of showing from the evidence that it was in fact so”. 8 | P a ge The argument that an appeal is by way of rehearing and therefore the appellate make its own mind on the facts and draw inferences from them might well be so but appeal court ought not under any circumstances interfere with findings of fact by the trial judge except where they were clearly shown to be wrong or that the judge did not take all the circumstances and evidence into account, or had misapprehended some evidence or had drawn wrong inferences without any evidence in support or had not taken proper advantage of his having seen or heard in support of the witnesses. Also in the celebrated case of Djin Vrs. Musah Baako (2007 – 2008) SC GLR 687, where this court outlined the duties imposed on an appellant who appeals on the omnibus ground. The court said; “Where the appellant complains that the judgement is against weight of evidence he is implying that there were certain pieces of evidence on record which could have changed the decision in his favour or certain pieces of evidence have been wrong applied against him”. Finally, in the case of George Akpass Vrs. Ghana Commercial Bank Ltd. (J4/08/2021) unreported where the Supreme Court made it emphatically clear that; “The appellant first argued grounds 1 and 3 together ground 1 being a ground dealing with judgement against the weight of evidence. The legal position is that the case is open for fresh consideration of all the facts and related law submitted by the parties to the appellate court. We are therefore invited to re-examine certain pieces of evidence allegedly misapplied against the appellant or which if considered properly will change the decision of the court in appellant’s favour”. Therefore, generally, an appellate court is duty bound to review the entire record of appeal with a view to determining whether or not findings of fact made by the trial or 9 | P a ge lower court as well as the law applied to the facts accord with the practice and procedure prescribed by law. Hence it is my duty as an appellate court judge to go through the entire record to satisfy myself that a party’s case is more probable than not. The trial magistrate in his judgement at page 100 of ROA stated as follows; “The defendant in her defence described the writ as incompetent and same should be struck out. However, the defendant in her evidence before the court failed to tell the court what constitutes an incompetent writ interesting, counsel for the defendant in his written address to the court raised issues concerning the incompetent of the writ which are not borne out of the evidence since the argument of counsel is not borne from the evidence of defence of the defendant they are diversionary. Although I would agree with the said trial magistrate that the said issue concerning the incompetency of the writ issued by the plaintiff/Respondent was not borne by the evidence on record, nevertheless, since it is legal issue which has been raised in the address by the counsel for the defendant/Appellant the trial court cannot ignored it on a mere fact that it is not borne by the evidence on record. However, the question one may ask was the writ issued by plaintiff/Respondent at the District Court incompetent? Indeed, the basis of the Defendant/Appellant description of the plaintiff/Respondent writ was that it does not contain the residential addresses of the parties as mandated by rules of procedure. Order 2 of C.I. 59 talking about commencement of proceedings at the District Court. Order 2 r 1 states as follows; 10 | P a ge “Unless otherwise provided by an existing enactment, the party who commences civil proceedings shall be described as the Plaintiff and the opposing party shall be described as the defendant”. And rule 2 (1) of the same order states that; The forms in the schedules or other similar forms may be used in matters cause and proceedings to which they are applicable with the variations that the circumstances require. In proceedings for which forms are not provided in the schedule or prescribed by any law, Rules or orders of court, the Registrar may subject to the approval of the court frame the forms required using those which have been provided as guides. Furthermore, order 2 r 3 of the District Court rules of procedure C.I. 59 also talks about issue of writ of summons, however relevant provisions pertaining to our issue would be rule 3 (2) which states that a writ of summons shall not be sealed unless at the time the writ is filed for sealing, the person filling the writ leaves with the Registrar a copy or as many copies as there are defendants and the writ is signed or (a) marked by the plaintiff if plaintiff sues in person or (a) By or on behalf of the plaintiff 3 (4) every writ of summons shall be dated on the day on which the writ was issued 3 (5) Except as otherwise provided in these rules, every suit shall be commenced by a writ of summons issued at the registry on oral or written application and filed out and signed or marked by the plaintiff. 3 (6) the writ of summons shall be as set out in form 1 of the first schedule and finally. 3(7) which states that; 11 | P a ge “A writ of summons shall contain the name and the place of abode of the plaintiff and the defendant and to the extent that they can be ascertained, state briefly and clearly; (a) The subject matter of the claims. (b) The relief sought (c) The date of issue, the return day and the place of hearing. Also order 3 or C.I. 59 District Court rules deals with how a writ is to be issued. Indeed, order 3 (3) of C.I. 59 states that; The writ of summons shall not be issued until the plaintiff delivers to the Registrar as many duplicates of the particulars as there are defendant. Rule 4; where the plaintiff is illiterate and unable to furnish the required particulars in writing. It is sufficient for the plaintiff or the plaintiff’s agent to narrate the plaintiff's case to any literate person for the narrative to be reduced into writing. Rule 5; a literate person who reduces a narrative into writing under sub rule 4 shall use the written narrative to produce the particulars in the manner specified in form 1 of the first schedule. Rule 6; The particulars so produced shall be signed or marked by the plaintiff or plaintiff’s agent sealed by the registrar and filed at the registry. Rule (7) The particulars of claim shall be attached to the writ of summons and duplicate of the particulars of claim shall also be attached to each copy of summons for service. I Have therefore subjected the writ of summons issued by the plaintiff (see pages 1 and 2 of the record of appeal) into a clinical scrutiny and found out that the said writ of summons conforms to orders 2 and 3 of C.I. 59 with the reference to form 1 of the first scheduled except perhaps the residential address which has not be provided according 12 | P a ge to the defendant/Appellant non disclosure of the residential address on the writ makes it defective, because it does not conform to rules of procedure as envisaged by C.I. 59. I must admit that schedule is also part of the enactment in this case C.I. 59. See the case of Kuenyehia & Ors. Vrs. Archer & Ors (1993 - 94) 2 GLR 525. Nevertheless, the law is that where in a statutes schedules are incorporated by way of reference and they are in conflict with the provisions in the statute, the previous of statute take precedence over reference made to the schedule. See page 217 of “MODERN APPROACH TO THE LAW OF INTERPRTATION IN GHANA” Third Edition by Professor Dennis Dominic Adjei. It is clear that the said reference schedule of form 1 in respect of residential address is in conflict with order r 3 (7) of C.I. 59, which only talks about place of abode of the parties and not residential address of the party, therefore the conflict must be resolved in favour of the provisions in the enacted statute that is C.I.49. Indeed, the writ of summons issued by the plaintiff/Respondent indicated the parties place of abode as Berekum from the above analysis, it is my considered opinion that the writ issued by the plaintiff/Respondent was competent furthermore since District Court is a court of summary jurisdiction court should thread cautiously when it comes to the issue of technicalities in order to avoid doing injustice or denying a party who seeking justice, where his right has been infringed upon. Furthermore, the Defendant/ Appellant says that the plaintiff/Respondent writ of summons issued is also incompetent, in the sense that, he sued defendant/ appellant, who was not the administrator of the estate of Mr. Emmanuel Awuah Adjei. It must be noted that at the time plaintiff/Respondent issued the writ of summons, no court had then granted Letters of Administration in the estate of the late Emmanuel Awuah Adjei the Defendant/ Appellant late husband and the plaintiff/ Respondent uncle. 13 | P a ge Indeed, per the record of Appeal, plaintiff issued his writ of summons against the Defendant/Appellant on 28th June, 2019, whereas Letters of Administration was granted on 15th July, 2019 in respect of the estate of the late Emmanuel Awuah Adjei. This clearly shows that at the time the defendant/Respondent issued the writ of summons. There were no administrators in the estate of the said late Emmanuel Awuah Adjei. However, the Defendant/ Appellant as surviving spouse and the beneficiary (see PNDCL 111) of the estate of the late Emmanuel Awuah Adjei could be sued in respect of the said estate, especially where there were no Administrator to the said Estate. In any case Defendant/Appellant together with her daughter and the customary successors were later granted Letters of Administration in the estate of her late husband, after plaintiff/Respondent had issued writ of summons against defendant/ appellant did not deem fit to inform the other administrators to join the suit but rather called one of the administrator to give evidence on her behalf. It is a trite law that beneficiaries of an estate can sue and be sued in respect of the said estate. Therefore it was not wrongful for the plaintiff/Respondent to have sued the Defendant/ Appellant who was beneficiary administrator of estate of the late Emmanuel Awuah Adjei, especially when the Defendant/Appellant was claiming that the said subject matter of dispute forms part of the estate of his late husband, Mr. Emmanuel Awuah Adjei. Hence one can conclude that the writ of summons issued by the plaintiff/Respondent is not incompetent so far as the party sued is concerned. In this case plaintiff/Respondent claims the ownership of the said Kia Sportage 4x4 claiming that his uncle the husband of the Defendant/Appellant promised to buy the said car for him which cost Ghc38,000.00 and that indeed his said uncle made good of his promise by gifting the plaintiff/Respondent the cash sum of Ghc30,000.00 to buy the said car and that the plaintiff/Respondent had to top up by Ghc8,000.00 before he could buy the said Kia Sportage 4x4 or subject of dispute. However, this was vehemently denied 14 | P a ge by the defendant/ Appellant who claimed that the said vehicle belong to her late husband Emmanuel Awuah Adjei and therefore forms part of his estate and that the said vehicle came to the possession of the plaintiff/Respondent by the virtue that her late husband could not drive in fact the Defendant/ Appellant claims that her late husband who was also the plaintiff's uncle bought the said car purposely for his political campaign as NDC member at Berekum, in contesting for constituency chairmanship. And that the plaintiff/Respondent was his driver and it was the late husband who gave the money to the plaintiff/Respondent to purchase the said car for him for his political campaign at Berekum and that the cost of the car which her late husband provided was Ghc35, 000.00. Since it was the plaintiff/Respondent who asserted that, the said Ghc30,000.00 was gifted to him to buy the said car as his own and that he did not buy it for the uncle, the late husband of the Defendant/Appellant. Therefore, in this instance since it was the plaintiff/Respondent who initially asserted. Therefore, the burden of producing evidence that the said Ghc30,000.00 was gifted to him by his late uncle as promised to enable him to buy the said car as his own was on the plaintiff. In fact, section 11 (1) (4) of Evidence Act NRCD 323 provides as follows; “In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of evidence leads a reasonable mind to conclude that the existence of fact was more probable then its non-existence”. The burden of producing evidence only comes into play after burden of persuasion (or what is called the legal burden) has been established. So the reference to section 11 (1) (4) alone without reference to other parts of the statute or even other parts of the section may be completely be misled. In fact, section 10 (1) of Evidence Act, NRCD 323 puts the burden of persuasion on the party who asserts a fact and further that section 10 (2) (b) of the said Act, requires that the party having the burden of persuasion, that is the legal 15 | P a ge burden in civil case is required to establish the existence or non-existence of a fact by preponderance of the probabilities. The burden of persuasion is also sometimes referred to the burden of proof. Indeed, section 17 of the evidence Act, NRCD 323 provides as follows; “Except as otherwise provided by law; the burden of producing evidence of a particulars fact is on the party against whom a finding of fact would be required in the absence of further proof. The burden of producing of a particular fact is initially on the party with the burden of persuasion as to the fact”. The combined effect of sections 10 and 17 of the Evidence Act, NRCD 323 is that the plaintiff has the burden of persuasion, which is always on the plaintiff and remanded fix on the plaintiff unless there is counter-claim on the part of the defendant, and he only discharges by adducing evidence such that on the issue that he asserts a fact, will not make a ruling against him on that fact. It is only after the plaintiff has discharged this burden that the defendant is required to adduce evidence in rebuttal of the plaintiff’s assertion, in other words where burden, of persuasion remain in the plaintiff, the evidential burden like pendulum swings from one-end to the other. Applied to this case the Plaintiff/Respondent who asserted that the said Ghc30,000.00 was gifted to him by his late uncle, the late husband of the Defendant/Appellant to enable him to acquire the acquire the car in issue Kia sportage 4x4 as promised him by his uncle, therefore the plaintiff/Respondent to prove his case proffered to give evidence by himself and later called two witnesses as to corroborate his case. Therefore, Plaintiff/Respondent in his evidence-in-chief stated as follows; That one Emmanuel Awuah Adjei @ Kwabena Awua deceased was his uncle and that he promised him of assisting him to buy a car and that when he saw the said car or subject 16 | P a ge matter in issue he informed his uncle, the deceased husband of the Defendant/Appellant who gave him Ghc30,000.00. According to the Plaintiff who is apostle and has his own church and that when his uncle attended the church he made announcement to his congregants, that he would assist Plaintiff/Respondent to acquire a car. Plaintiff further says that since the cost of the car the subject matter of dispute cost, Ghc38,000.00 he went back to his deceased uncle for the balance of Ghc8,000.00 enable him to complete the payment of the car, however, his deceased uncle the husband of the Defendant/Appellant told him he has no money therefore plaintiff had to organized himself in order to look for money to pay for the balance, of Ghc8,000, which he did plaintiff says that after paying for the balance, the documents covering the car was handed to him and that certificate purchase was prepared in his name transferring the said ownership of the said car to him, indeed plaintiff tendered these documents, including the certificate of purchase in evidence without any objection and ever since he has exercised full control possession and ownership of the said car or subject matter in dispute and that, when his deceased uncle was alive, he never claimed ownership of the said car or subject matter of dispute. Later plaintiff/Respondent filed notice to attach a video, which they would be relying on. After this plaintiff/Respondent closed his case and was cross-examined by the counsel for the Defendant/Appellant however, I must admit that after review in the record of the appeal it was clear that the counsel for the Defendant/Appellant could not impeach the credibility of the plaintiff/Respondent and that, the plaintiff/Respondent answers to the questions asked during the cross-examination were very consistent with his evidence and never shifted from his stance of ownership of the said car the subject matter of dispute. 17 | P a ge Counsel for the Defendant/Appellant in his written submission in respect of appeal filed on 14th March, 2024 at page 13 sought to impeach the credibility of the Defendant/Respondent by writing as follows; “Respectfully, my lord in his attempt to produce evidence to establish the assertion that his deceased uncle came to the church to announce to the congregation that his deceased uncle has assisted the plaintiff to acquire the said car the subject matter of dispute”. The plaintiff/Respondent produce a documentary evidence in the nature of video contained in exhibit ‘D’ with due respect to the learned counsel for the Defendant/Appellant, this assertion by him is not borne by evidence on record, in fact, Defendant/Respondent never said that his deceased uncle came to announce to his congregation that he (deceased) has assisted the plaintiff to acquire the disputed car. Indeed, answers to the questions asked by counsel for the Defendant/Appellant during the trial would confirm that the assertion made by the said counsel was not true now page 49 of the record of appeal deals with cross-examination of the Plaintiff/Respondent by counsel for Defendant/Appellant during the trial and this is what transpired between them. Q. In the video you were reporting to the congregation what your uncle allegedly told you? A. That is correct from the above answer it is clear that it was the plaintiff/Respondent who told the congregation what his deceased uncle had told him. Q. From the video we watched, we did not see your uncle making a gift of the disputed vehicle to you. 18 | P a ge A. That is correct, he had told me earlier by then he had not yet given me the money to pay for the car from the account that is why in the video you could not see my uncle gifted the car to me. Indeed, it must be noted that it was the counsel for Defendant/Appellant who introduce the concept of gifted car during the course of his cross-examination of the plaintiff/Respondent a critical review of the record of Appeal would indicate that the plaintiff/Respondent never said that, the said car in disputed was gifted to him by his deceased uncle, the deceased husband of the Defendant/Appellant and that the Plaintiff/Respondent has been very consistent in his evidence that his deceased uncle had promised to assist him to acquire the said car in dispute the deceased uncle, gifted him Ghc30,000.00 out of the total cost of Ghc38,000.00 of the said car. Q. Do you want to tell the court that your uncle gifted the car to you secretly but not publicly A. When he gave me the money, there was nobody there, because I promised him before the congregation about his gift he later game me the money to pay for the car. Q. What you said in the video was that your uncle said I know what I will do, after your former fiancée said she admires the car. A. That is correct by then the woman was my wife not fiancée. And after the weeding, my uncle gave me the money to pay for the car. Q. Your uncle was campaigning together with Hinneh and Cubbage. A. That is not correct they were campaigning together occasionally. Q. Any community that the campaign team went you were introduced as driver. 19 | P a ge A. That is not correct. I was introduce as nephew of my deceased uncle. From the above answers to the questions asked by the counsel for Defendant/Appellant. It was clear that the plaintiff/Respondent was truthful and has been very consistent with his evidence and therefore I have no ground to doubt his evidence. Although the counsel for Defendant/Appellant submitted at page 16 of his written address as follows; The court below did not evaluate the evidence contained in exhibit ‘D’ it is submitted that if the court below had evaluated exhibit ‘D’ tendered by the plaintiff to prove his case. The conclusion would have been different. And that this appellate court is duty bound to evaluate exhibit ‘D’ and the admission made there to by the plaintiff. And come to its own conclusion. Although as the appellate court, I must admit that never had the opportunity to view exhibit ‘D’ which was the video evidence nevertheless after reviewing the totality of all evidence on record in the record of appeal, I am of the firmed believe that the conclusion arrived at by the trial Magistrate in respect of exhibit ‘D’ is tenable. From the above it was clear that Defendant/Respondent deceased uncle made good of his promise to assist the plaintiff/Respondent to acquire the said car in dispute and therefore Ghc30, 000.00 was gifted to the plaintiff/Respondent as an advancement by the said deceased uncle in order to establish his nephew the Plaintiff/Respondent in life. See the case of Taylor Vrs. Taylor (1875) L.R 20, where the court held that advancement is something given to the beneficiary in order to establish him in life so the Plaintiff/Respondent was the sole beneficiary of the said Ghc30, 000.00 from his deceased uncle. 20 | P a ge From the record of Appeal, it is to be noted that the Plaintiff/Respondent deceased uncle after given the plaintiff/Respondent Ghc30,000.00 indicated to the plaintiff/Respondent, he was not going to pay the remaining Ghc8,000.00 if the Plaintiff/Respondent cannot raise the money to pay the said Ghc8,000.00. Indeed, this piece of evidence was corroborated by Plaintiff/Respondent witness PW1. This is what ensued during the cross-examination of PW1 by counsel for the Defendant/Appellant see page 58 and 59 of the record of Appeal. Q. You have also told this court that pastor Frank went for a loan of Ghc8, 000.00 to pay the balance of the car from where did he take the loan. A. I do not know. But the plaintiff told me that he had gone for a loan of Ghc8, 000.00 to be added to Ghc30, 000.00 he had already paid to the car owner. Q. I am suggesting to you that this Ghc8, 000.00 was given to the plaintiff by Emmanuel Kwabena Awuah (deceased) but not a loan as you alleged. A. That is not correct. He first told me that the uncle gave him Ghc30, 000.00 which he gave to the owner of the car, but when the car owner was asking for the balance that the plaintiff went for a loan to pay the car owner. Q. I put it to you that the plaintiff never went in for any loan as you just stated. A. He went for a loan because when the car owner was asking for the rest of the money we took car to his uncle village, who told us that if the plaintiff would not ask for money from somewhere, he would not pay for the balance. Q. I put it to you that you never went to the late uncle of plaintiff to demand any money where upon he told you that if the plaintiff has no money to pay the 21 | P a ge balance he (plaintiff uncle) has also no money to pay for the balance. A. We went to the late uncle and the uncle even introduce the plaintiff to D.O. (District Officer) of cocoa that the plaintiff is his nephew and is a Pastor. Q. I put it to you that at no point in material that during the processes of the acquisition of the disputed car that you in particular went to the house of the late uncle of the plaintiff. A. I went to his house in the village and his house at Jinijini since I was driving the car because plaintiff did not know how to drive a car. Plaintiff as said supra also tendered exhibit ‘B’ and ‘C’ in evidence exhibit ‘B’ is in the certificate of purchase between Anthony Boakye Smith transferor, transferring his interest in the said car in dispute to the plaintiff and accordingly executed by them. This exhibit ‘B’ was tendered in evidence without objection and also exhibit ‘C’ which is GRA or custom document and the said document captured Alfred Ahuettey as importer of the said vehicle plaintiff avers that apart from having these documents he been in possession of the said car ever since he purchased it without any adverse claim from his late uncle, the Defendant deceased husband. From this premise it was clear that plaintiff/Respondent deceased uncle had envisaged the intention of gifting the said Ghc30,000.00 money to the Respondent. This why the disputed car and its documents were with the plaintiff/Respondent during the life time of the deceased uncle and the said deceased uncle never laid adverse claim to the disputed car. Indeed, if the deceased uncle gave the money to the Defendant/Respondent to buy the said car for him, the deceased uncle as educated person, businessman and astute politician he would have requested the documents covering the disputed car from the 22 | P a ge plaintiff/Defendant. Hence resulting trust could not have been created and envisaged. In any case section 48 of Evidence Act, NRCD 323 states that; “The things which a person possesses are presumed to be owned by him”. Furthermore, section 25 of Evidence Act NRCD 323 state that; “Except as otherwise provided by law including rule of equity, the facts recited in a written document are conclusively presumed to true as between the parties to the instrument or their successors in title”. Indeed, the trial Magistrate in considering above provisions in respect of exhibit ‘B’ and long possession of the said disputed car by Respect stated in his judgement at pages 101 and 102 of the Record of Appeal as follows; “The plaintiff by exhibit ‘B’ which is certificate of purchase told the court that the cost price of the car is Ghc38, 000.00 as against the Ghc35, 000.00 that the defendant claimed the late husband bought the car. Exhibit ‘B’ bears the name of the plaintiff as the owner of the disputed car. The defendant could not provide any document to prove that indeed the car belongs to her late husband. Since the plaintiff has documents on the car, bearing his name there is presumption that he is the owner of the car the trial magistrate went on further to state in his judgement that statutory presumption of ownership that is conferred on a person in possession avails the plaintiff in this case. The plaintiff in his evidence averred that he has been in possession of car. This position of the plaintiff was corroborated by defendant and DW2 in their evidence”. Indeed, it is this findings or judgement by the trial magistrate that the counsel for the Defendant/Appellant is fighting against in his appeal. 23 | P a ge Learned counsel for the Defendant/Appellant at page 21 of this written address in this appeal is impressing upon this appellate court that exhibit ‘B’ does not confer title on the Defendant/Respondent, because transferor on exhibit ‘B’ is not the one who imported the said car. The transferor in exhibit ‘B’ Anthony Boakye Smith and that exhibit ‘C’ captured Alfred Amettey as the importer with due respect to the counsel for the Defendant/ Appellate, this position is not supported by law it is an industrial or trade practice that an importer of a car may not be the same as the owner. This point became clear during the cross-examination of plaintiff/Respondent 2nd witness by the learned counsel for the Defendant/ Appellant See page 61 of the record of appeal. Q. Whose name appear on the original document of the disputed car as the owner. . A. I do not remember the name. Q. I put it to you that the vehicle is the name of Alfred Akuettey. A. I do not remember. Q. As at now has Alfred Akuettey transferred ownership of the vehicle to Frank Awuah or any person. A. It has been transferred in the name of Anthony Boakye Q. I put it to you that there is no transfer of owner as you have indicated A. That is what I know it is he who bought the car and prepared document that he bought the car for Anthony Boakye Q. How much money did you receive from Frank Awuah in respect of the transactions involving the disputed vehicle. 24 | P a ge A. I received (Ghc 38,000.00). He first sent me Ghc30,000.00 on and he later brought Ghc8,000.00 Q. What did you do with the Ghc 38,000.00 you received from Frank Awuah. A. I used it to trade and I am still using it to trade. Q. You did not give money to Alfred Akuettey or Anthony Boakye. A. I did not give to Akuettey I work for Anthony Boaky so he asked me to use the money for his work. Indeed, there is no evidence on record disputing the said Anthony Boakye ownership or title and his said transfer of the said car to the plaintiff/Respondent, therefore the learned counsel for the Defendant/ Appellant argument on this point is legally not tenable and therefore lacks any legal merit or substance. The Defendant/Appellant in order to rebutt the case of the plaintiff/Respondent led evidence and called two witness to support her case. Defendant in her evidence alleged that the said car in dispute was for her late husband, the uncle of the deceased, who acquired the said car is dispute for political campaign and that it was her said deceased husband who gave money to the plaintiff to buy the said car for him and also made the plaintiff/Respondent his driver that the cost for the said vehicle was Ghc35,000.00 and not Ghc38,000.00 as being alleged by the plaintiff/Respondent and that plaintiff/Respondent by virtue of being driver to the Defendant/Appellant’s husband was made to keep possession and the documents of the said disputed car since her deceased husband did not know how to drive Defendant/Appellant says in her evidence during the political campaign of her deceased husband, it was the plaintiff/Respondent who was his driver and that it was the plaintiff/Respondent who was driving the deceased husband and his friends for the said 25 | P a ge political campaign and where they went plaintiff/Respondent was introduced as the driver for the deceased husband. And it was rather strange that, after the death of her deceased husband plaintiff/Respondent is now claiming owner of the said disputed car which belongs to her deceased husband and therefore forms part of his estate. That the said disputed car was included in the inventory of properties of her deceased husband who died intestate when they went for Letters of Administration in respect of her deceased husband, which has been granted to the administrators of her deceased husband’s estate. Defendant apart from calling two witnesses also tendered a copy of the said letters of administration and declaration of movable and immovable properties of her decease husband. As noted earlier the burden of persuasion lies on the plaintiff and he can only proof his case by leading cogent and credible evidence to convince the court that his case is more probable than not by balance of probability nevertheless, the evidential burden like pendulum swings from one end to the other depending upon who the burden of evidence has shifted to. Therefore, whenever, the burden of evidence is shifted on the Defendant, must also lead evidence to prove that her assertion is more probable than not in order to satisfy the court from ruling against him. In fact, in the case of Majorlagbe Vrs. Larbi &Others (1959) 1 GLR 1 Ollenu J. stated as follows; “Proof in law is the establishment of facts by proper legal means where a party makes an averment capable of proof in some positive way eg. By producing documents description of things, reference to other facts, instance or circumstances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having its repeated on oath by his witness, He proves it by producing evidence of facts and circumstances from which the court can be satisfied that what he avers is true”. 26 | P a ge In this instance case the Defendant/Appellant on the other hand gave the price of the disputed car as Ghc35, 000.00 she stated same in her evidence in her evidence-in-chief indeed, at the end of the defendant/Appellant evidence, she was cross-examined by the learned counsel for the plaintiff/Respondent and the following ensued – see page 65 of the record of appeal. Q. It is your case that your husband bought the car for Ghc30, 000.00 is that so A. That is so. Q. And the initial payment your husband made was Ghs20,000. A. That is not correct, They collected the Ghc20,000.00 from me. Q. I am putting it to you that the car was bought for Ghc38,000.00 and nt Ghc35,000.00 as you claim. A. That is not correct Q. And the money your husband gave to the plaintiff to make initial payment was Ghc30,000.00 A. That is not correct Although evidence on record in the said record of Appeal by oral and documentary evidence proved to the contrary Defendant/Appellant never led any cogent and credible evidence to prove to the contrary, but what she did was to amount the box to produce her averments on oath. Although Defendant/Appellant called Sylvia Asantewaa who also just repeat her averments on oath without producing any cogent and credible evidence in fact during cross-examination of the said Sylvia Asantewaa, she told the court that her deceased father told her that the cost of the car was Ghc35, 000.00 and that her deceased father also 27 | P a ge told her that he was going to buy a private car for the plaintiff/Respondent to drive him –See page 69 of the record of Appeal. However, this could not be true, since at the time the vehicle was acquired, plaintiff/Respondent did not know how to drive, the question is how, could then deceased father would have bought the car to make Plaintiff/Respondent his driver, in fact it is on record that, when plaintiff/Respondent acquired the said car he had to be driven by PW1 until he learned how to drive. Also it is evidence on record that the car is dispute and its documents were in possession of the Defendant/Respondent during the life time of his deceased uncle Emmanuel Awuah Adjei. This piece of evidence was corroborated by the Defendant/Appellant and her witness. During their cross-examination by the counsel for the plaintiff/Respondent – see page 65 of the record of Appeal. Q. I am putting it to you that when plaintiff purchase the vehicle it remained in his possession during the life time of your husband. A. He never purchased the vehicle. Q. I am putting it to you that the car was always in possession of the plaintiff during the life time of you husband A. It is correct. Q. You would agree with me that you live in own house which has a compound with your husband when he was alive. A. That is correct Q. And his said car could have been parked on his compound is that not so. A. That is correct. The car was in possession of Frank because my husband did 28 | P a ge not know how to drive so any time my husband returned from Sefwi, the plaintiff also drove him. As I have said supra, if indeed, the said vehicle belongs to the deceased husband as shrewd businessman educated and astute politician he would have requested for the documents of the said car from the plaintiff/Respondent. Although the defendant/ Appellant sought to portray in her evidence that Plaintiff/ Respondent came by possession of the said disputed car by virtue of the fact that he was the driver of the Defendant/Appellant deceased husband, but this has been vehemently denied by the plaintiff/ Respondent. Although Defendant/ Appellant says that whenever her deceased husband embarked on campaign with colleague party members namely Hinneh and Cubbage. It was the plaintiff/Respondent who always drive them, whenever, they go her deceased husband introduced the plaintiff/Respondent as his driver. Although this piece of evidence was denied by the plaintiff/ Respondent but the Defendant/Appellant never found it expedient to call the said Hinneh and Cubbage as her witness (es) to corroborate her story. From the above I am not persuaded enough by the Defendant/Appellant to conclude that the existence of the facts of the appellant is more probable than its non-existence. However, in Assibey Vrs Gbomitta (2012) 47 GMJ 61 @ 68 the Supreme Court held that; “The law is that where an attempt is made to charge a dead person in a matter in which if he were alive he might have answered the charge, the evidence ought to thoroughly sifted and the mind of the judge who hears it ought to be first of all in a state of suspicion but. If in the end the truthfulness of the witnesses is made perfectly clear and apparent and the tribunal which has to act on the evidence believed them the suggested doctrine of corroboration becomes absurd”. 29 | P a ge However, in my view it is patent from reading of the record of Appeal that the truthfulness of those testifying in support of the plaintiff/Respondent claim of the said subject matter in dispute was anything but perfectly clear and apparent. Indeed the grounds of overturning decisions were clearly enunciated in the majority decision in the case of Koglex limited Vrs. Field No. 2 (2000) SC GLR 175 as follows; (a) Where the findings of the trial are clearly unsupported by evidence on record or reasons in support of the findings are unsatisfactory. (b) Where there has been improper application of principle of evidence or where the trial court has failed to draw an irresistible conclusion from the evidence (c) Where the findings are based on wrong proposition of law and if that proposition is corrected the findings disappears. (d) Where the findings is inconsistent with crucial documentary evidence on record. Therefore, in the circumstances of this case, there is nothing on the record that would justify over truing of the judgement of the court below. Consequently, it is my view that there is no merit in the appeal before me and same is hereby dismissed. (SGD) ……………………………….. JUSTICE HARRY ACHEAMPONG-OPOKU (JUSTICE OF THE HIGH COURT) Cay/…