IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - GHANA
AD 2011
CORAM: M. OWUSU (MISS) J.A (PRESIDING) DUOSE J.A
HONYENUGA J.A
CIVIL APPEAL NO. H1/8/2011 20TH OCTOBER, 2011
JOHN BART ADDISON	PLAINTIFF/APPELLANT
HANNA KORDAJADDY	DEFENDANT/RESPONDENT
Land law - Lease - Oral Agreement —ss. 1,Z3& 10 Conveyancing Decree,
1973
Evidence-Burden of proof— ss. 10(1) (2),11 (1),12 (1) (2) Evidence Act, 1975 (NRCD 323)
JUDGMENT I-IONYENUGA I.A.
This is an appeal by the plaintiff/appellant from the decision of the High Court; Accra dated the 17111 day of December 2009. The said decision decreed that the lease agreement under which the plaintiff/appellant entered the land had long expired. The decision also decreed recovery of possession and ejectment of the plaintiff/appellant from the land.
 
The facts of this appeal are that the plaintiff/appellant claimed to have orally leased a building plot from one Oye Codjoe who is also known as Dunkrong Amartiokor, a fetish priestess for 50 years. The purpose of the grant was for the construction of a two storey commercial building. The plaintiff/appellant paid a customary drink of e200.00 (old cedis) or GHe0.02 before completion of the building. He also paid e200.00 (old cedis) a month and a total rent of el20,000.00 (old cedis) or GI-le12.00 representing the 50 years duration of the lease without a receipt issued to him. The said building was later demolished by the City Engineers because there was litigation on the land. He was rather advised to put a single storey but on 11 th-
J u ly 1987, the lessor died. The
plaintiff/appellant filed a Caveat to the letters of administration applied for by the defendants/respondents •because they were interfering with the use of his plot.
The defendants/respondents denied the claim of the plaintiff/appellant. As a result, the plaintiff/appellant caused the instant writ of summons to be issued against the defendants/respondents claiming as follows:-
"1. That the Court orders that plaintiff leased a plot from late Oyc Cocljoe alias Dunkrong Amartiokor and the plaintiff from his own resource built House No. B 672/6 on the leased plot situate lying and being at
Abossey Okai.
2.	That the lease is still in subsistence.
3.	That an order for account of all monies accruing to the Estate of
Deceased who died on 11"' July 1987 up to the date of judgment.
4.	Alternatively, the refund of the money plaintiff paid to the lessor and
money spent to put up the house plus interest on the whole amount.
5.	An order for injunction not to distribute the estate without reference
6.	to the plaintiff. General Damages for interfering with the enjoyment of the plaintiff
lease.
7.	An order that the plaintiff is joint owner of the House No. B 672/6 with late Oye Cocijoe alias Dunkrong Amartiokor.
8.	The Court order that cost be awarded against the Defendants.
 
I,-'.	9.	Damages for breach of contract and misrepresentation."
The Writ of Summons was accompanied by a Statement of claim which was subsequently amended. The defendants/respondents also filed an amended Statement of Defence and Counterclaim as follows:
,,a.	A declaration that the lease agreement under which plaintiff entered the land has long expired.
b.	Ejectment and recovery of possession of the land from plaintiff, and says that plaintiff is not entitled to his claims".
The plaintiff/ respondent filed a reply to the amended Statement of Defence and Counterclaim. Summons for directions was filed but from the record of appeal, there is no evidence that it was taken by the Court before hearing commenced. However, the following issues were filed:-
"a		Whether or not the plaintiff leased the plot from OYE CODJOE alias DUNKRON AMARTIOKOR.
b		Whether or not the plaintiff leased from his own resources built the house No. B 672/6, Abossey Okai on the leased plot.
C. Whether or not the Lessor OYE CODJOE alias DUNKRONG AMARTIOKOR failed to disclose to the plaintiff that there was a litigation on the plot.
d. Whether or not because of litigation Building Engineers of A.M.A. instructed the plaintiff to put UI) Single Storey Building which was demolished twice by the litigants.
C		Whether or not by the misrepresentation of the Lessor the plaintiff spent a lot of money to put up the building.
f.	Whether or not the disputed House is jointly owned by the plaintiff and Amartiokor (Deceased).
g.	Whether or not alternatively the defendants refund the amount the plaintiff spent plus interest to the plaintiff.
h.	Any further issues appearing on the pleadings".
The plaintiff/ appellant opened his case but called no witness The original first defendant died in the course of the trial but was not substituted. The defendant/respondent's attorney opened the defendant/ respondent's case and
 
called DW1 and DW2. In his judgment the learned trial judge dismissed the
plaintiff/appellant's claim and entered judgment for the defendant/respondent on
111111106vt,
her counterclaim.	Dissatisfied with the judgment of the trial Court, the
plaintiff/appellant has filed the instant appeal on the following grounds: 
"i.	The judgment is against the weight of evidence led by the appellant. The reasons on which the judgment is founded are farfetched and did
not arise in the course of proceedings.
Additional grounds of appeal will be filed on receipt of record of
proceedings".
No additional grounds of appeal were filed. In this appeal, the plaintiff/appellant would be referred to as- the appellant and the defend-ant/respondent as the
respondent.
. Before I consider the grounds of appeal as filed, I have observed that the summons for directions as filed were not taken by the Court but the trial
 
proceeded. Although the suit was filed under the old rules, High Court Civil Procedure Rules 1954 (LN 140 A) subsequent documents filed and the trial were conducted under the new High Court (Civil Procedure) Rules 2004 (C.I. 47). In such circumstance, order 1 rule 2 of C.I. 47 enjoined the trial court to interpret
the rules so as to achieve speedy and effective justice, avoid delays and unnecessary expense and as far as possible ensure that all matters in dispute between the parties are effectively and effectually determined and avoid multiplicity of suits. Moreover, Order 81 rule 1 of C.I. 47 enjoins such non-compliance or omissions to be treated as mere irregularity that does not result in a nullity.
See Republic vs High Court, Accra Ex Parte Allgate Co. Ltd. (Amalgamated Bank Ltd. Interested Party) [2007-2008] SCGLR 1041. The failure therefore of
the learned trial judge in not taking out the Summons for Directions before proceeding with the hearing of the suit is a mere irregularity and cannot result in
a nullity.
 
Now, to the first ground of appeal that the judgment is against the weight of evidence. The onus cast upon an appellant who complains that the judgment is against the weight of evidence is to clearly and properly demonstrate to the appellate court that there were certain lapses in the evidence on record which if applied in his favour, could have changed the decision in his favour or that certain pieces of evidence have been wrongly applied against him. See Djin vs Musah Eaako [2007-20081 SCGLR 686 at p.687. A perusal of the Written Submission filed by counsel for the appellant leaves much to be desired. Counsel for the appellant never adverted his mind to the grounds of appeal as filed and therefore did not argue on its merits. The only credit to Counsel for the appellant is the attachments of the pleadings in the trial and what he termed proceedings coupled with the settlement of record and other administrative duties performed before the trial court's Registrar. Counsel have a duty to their clients to perform their role as expected in the best interest of their clients. However, since an appeal is by way of rehearing, and it is the duty of the appellate court to evaluate the veracity or otherwise of any witness and analyse the entire record of appeal and take into account the testimonies and all the documentary evidence adduced at the trial before arriving at a decision Sc) as to satisfy itself that on the balance of the probabilities, the conclusions of the trial judge are reasonable or amply supported by the evidence. See Tuakwa vs Bosom [2001-20021 SCGTLR 61. Therefore, despite the failure of Counsel for the appellant to demonstrate why the judgment is against the weight of evidence, we shall by the above stated principle of law examine the totality of the evidence including documentary evidence on record before arriving at a conclusion.
Counsel for the respondent has submitted that the appellant failed to lead any convincing evidence during the trial and therefore the trial judge did not place substantial weight on his evidence and prays that this ground of appeal must fail. In a civil ease, the plaintiff has the burden of proof and'persuasion on a balance of probabilities. See sections 10(1) and (2), 11(1) and 12(1) and (2) of the Evidence Act, 1975 (NRCD 323). The plaintiff must therefore lead credible and admissible evidence from whic h the facts he asserts can be inferred. See Zabrama vs
 
Segbedzi [1991] 2GLR 221 at p.224. The respondent having counter claimed has
assumed the same burden of proof like the appellant. See Jass Co. Ltd. & Anor vs Appau & Anor [2009] SCGLR 265. It is trite that a lease agreement is a contract for the lease of land and thus the terms of the contract has to be by
mutual agreement. The appellant in paragraph 2 of the Amended Statement of
claim stated as follows:-
"2.	In 1979 the plaintiff orally leased a building plot for 50 years from ()yc Codjoe a fetish priestess alias Dunkrong Amartiokor at Abossey Okai
in Accra for the purpose of building two storey commercial buildings
on the plot".
In his testimony in court he repeated his assertion that he made an oral lease
agreement with the said fetish priestess to put two storey buildings for commercial purposes and had even paid 0200.00 (old cedis) a month in 1979 and paid 0120,000.00 (old cedis) to cover the fifty year lease. The respondent in her Statement of Defence and Counterclaim denied the assertion of the appellant in
paragraphs 3 and 4 as follows:-
"3.	Save that the late Dunkrong Amartiokor leased part of her plot to plaintiff for ten years, effective from 1980 defendant denies all the
1	4.	averments contained in paragraph 2 of the Statement of Claim.
In further denial of the said paragraph 2 of the Statement of Claim, defendant denies that the late Dunkrong Amartiokor was also called Oye Codjoc. Again defendant says the land was leased to plaintiff to
construct a wooden workshop but plaintiff rather constructed a dwelling place contrary to what was initially agreed which the late
1	Dunkrong Amartiokor objected to".
tr , In the testimony of the respondent she again challenged the appellant's evidence. Upon denial both in the pleadings and the testimony in court, it was incumbent upon the appellant to lead credible and admissible evidence to corroborate his
case.
I, a..,,,	The only evidence led in support of the appellant's case was the tendering of Exhibit A, the site plan of the land registered in the name of his lessor, Exhibit B
 

an application to build a residential single storey building with fence wall, Exhibit 131 an extract from Accra building regulations, Exhibit B2 an application form for a building permit, Exhibits B3, B4, B5, B6 and 137 demand notices for the payment of property rates which bear his name. These exhibits only go to establish that the appellant did put up a building on the land. These did not prove whether the lease was granted to him for 10 years or 50 years. Despite having mentioned one Maame Hannah who is still living in the wooden structure on the land, as the person who introduced him to the late Dunkrong Amartiokor, the appellant woefully failed to call her although she is material to his case.
p -
___. Moreover, it is strange that the appellant who is literate and an Electric Techinician could pay such a huge sum of money to an illiterate the late Dunkrong on a lease without having insisted on receipt being given to him. His explanation as to why he could not obtain any documentation is unacceptable. He stated in cross-examination as follows:-
"Q. A very educated person like you, you made fifty years lease without taking document, do you want the court to believe that?
A. I paid a bulky sum of money, she was illiterate and asked me to go and come. I did not want anybody to say I had cheated the old lady and she never did. So when I heard of the litigation I went to demand my money".
It is equally strange that the appellant in all these circumstance did not find it prudent to have gone to pay for an oral lease without going with another person to witness the transaction. In cross-examination he stated as follows:-
"Q. In all these who and who were present?
A.		When I went there I expected the old lady to bring somebody but she
said 1 should deal with her".
This explanation sounds very funny. lie thus could not prove his allegations he made both in his statement of claim and his testimony in court.
Furthermore, the law as stated in section 1 of the Conveyancing Act, 1973, required that a transfer of an interest in land shall be in writing, signed by the
7
 
person making the transfer or by the agent of that person duly authorized in
1111	writing unless relieved against the need for a writing by section 3. Section 1(2) of
11110***, 
the Conveyancing Act, 1973, NRCD 175 also required that a transfer of an interest in land be made in a manner other than as provided in sections 1 and 10 shall not
confer an interest on the transferee. Section 2 of NRCD 175 required that a
contract for the transfer of an interest in land is not enforceable unless:-
 
(a)	It is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorized to sign on
behalf of that person, or
(b)	It is relieved against the need for a writing by section 3. A perusal of section 3 of NRCD 323 which states the transactions permitted without
writing, indicate that the appellant is not covered by the exceptions. Although the appellant had undertaken an interest in land, he did not lead any evidence to show that his transaction was under an oral customary grant. His evidence simply is that he had an oral lease with the late Dunkrong Amartiokor. The appellant cannot even be protected under NRCD 175 because his oral lease is not covered.
The principle is that evidence against a deceased person must be scrutinized with the utmost suspicion. See Moses vs Anane [1989-90] 2 GLR 694 at 697. The
oral lease between the appellant and the late Dunkrong must be viewed with suspicion particularly when the appellant did not tender any documentary evidence and Dunkrong Amartiokor died before the writ was filed. We therefore
having regard to the record, do not believe the claim of the appellant as it is not convincing and unsupportable. It is thus clear to hold that the appellant failed to
prove that he had an oral lease for 50 years. The evidence on record supports an
oral lease for 10 years which had long expired.
In the appellant's statement of claim particularly in paragraph 2 he stated that it was a building plot that was orally leased to him. In his evidence, the appellant stated that the respondent had interfered with portions to others. A perusal of the
record of appeal indicate that from the exhibits tendered by the appellant, it is clear that he was granted only a portion of the land. There is sufficient evidence
 
8
 

 
on record from the respondent, DWI and 0W2 that before the appellant was granted the land, other persons had been living in wooden structures constructed by the late Dunkrong. The appellant himself admitted that DWI DW2 and Maame Hannah were living in wooden structures on part of the land. Exhibits 2 and 3 supports this contention. The appellant also admitted in cross-examination that he did nothing to those who occupied portions of the land whom he came to meet on the land in structures belonging to his lessor, from 1979 to 2004 when he issued the writ of summons. We would therefore not interfere with the finding of fact by the learned trial judge that the late Dunkrong Amartiokor leased only a small portion of the land to the appellant but not the whole land. This finding is supported by the record of appeal. In re Okine (Deceased) Dodoo and Another vs Okine & Others [2003-2004] SCGLR 582, the principle was stated by the Supreme Court to the effect that an appellate Court must not interfere with the findings of fact made by a trial court unless the finding of fact was wholly unsupportable. In the instant appeal, therefore, we would not disturb the finding of fact since it is supportable.
We would also not disturb the findings of fact by the learned trial judge that the appellant was to have built a wooden structure since wooden structures are all scattered in the area bt he built a sandcrete at his own risk. Likewise, the finding of fact that there was no litigation on the land would not be disturbed since these findings are all supported by the evidence on record.
On the other hand, the respondent as a counter claimant led credible and corroborative evidence. The respondent testified and was supported by the evidence of DWI and DW2. The respondent was consistent that the oral lease to the appellant was for 10 years and that DWI, DW2 and Maame Hannah had their wooden structures on the land before the appellant came to the land. She also led evidence to the fact that the appellant was to have built a wooden structure but contrary to the lessor's instructions, he built a block house. She also denied that there was litigation on the land and that the appellant's lease had long expired. The respondent also stated that the appellant was to put up a structure for a
 
workshop but he rather used his structure as a dwelling house. Further, she stated that the appellant changed the name of the lessor on the payment of the property rate into his own without the consent of his lessor. She was also consistent that only a portion of the land was leased to the appellant. She tendered Exhibit "C" to show that the respondent is next of kin to the late Dunkrong Amartiokor. Exhibit 2, 2A and 2B also depict wooden structures scattered on the land. DW1 confirmed that he was on the land before the
appellant came and that wooden structures were on it. DW2 corroborated the
evidence of the respondent that he took the appellant to late Dunkrong for the release of the land to him. He confirmed that the appellant and his lessor agreed
to an oral lease for 10 years. With such consistent and corroborative evidence by
the respondent and DWI_ and DW2, we have no doubt that the holding and finding of the learned trial judge in dismissing the appellant's claim is supported. The •	first ground of appeal is thus dismissed.
Now to the second ground of appeal that the reasons on which the judgment is founded is farfetched and did not arise in the course of the proceedings. We think that this ground of appeal is superfluous because they are linked to the first ground of appeal that the judgment is against the weight of evidence. If learned Counsel had adverted his mind to the first ground, he would have observed that
this ground of appeal is of no consequence to this appeal. Having dismissed the first ground of appeal, we find it fruitless to consider this ground.
In this appeal, we find that there is no basis to depart from the findings of fact and conclusions reached by the learned trial judge.
In the circumstance, the appeal is dismissed and the judgment of the High Court dated the 171/1 December 2009 is hereby affirmed.
rt,.		C. J. HAIIENUGA (JUSTICE OF APPEAL)
10
 
V
-	S	•	I	i
M. OWUSU (MISS) J.A.	I agree	M. OWUSU
(JUSTICE OF APPEAL)
I
I. DUOSE J. A.	•	I also agree	T.. DIJOSE
•	(JUSTICE OF APPEAL)
COUNSEL:
MR. YAW AMO-FARKYE FOR THE PLAINTIFF/ APPELLANT
MR. JOSEPH K. OYIMAH FOR THE DEFENDANT/RESPONDENT
t ..
C ft
