ASARE vs. KUMOJI [1999-2000] 2 GLR 66

CASES REFERRED TO

(1) Mahama Hausa v Baako Hausa [1972] 2 GLR 469, CA.

(2) Mensah v Kyei, Court of Appeal, 5 May 1969; digested in (1969) CC 97.

APPEAL from decision of the Court of Appeal dismissing the appellant’s appeal from the decision of the High Court which had dismissed her claim for transfer to her of a dwelling house originally belonging to the respondent but which the appellant claimed was gifted to her and her children by the respondent. The respondent also cross-appealed. The facts are fully set out in the judgment of the court delivered by Aikins JSC.

[p.67] of [1999-2000] 2 GLR 66

Essamuah for the appellant.

N A O Amegatcher (with him Kpatsa, Aryee, Adadevor and Miss Blackie) for the respondent.

Aikins JSC. Delivered the judgment of the court. The plaintiff-appellant (hereinafter referred to as the plaintiff) sued the defendant-respondent (hereinafter referred to as the defendant) in the High Court, Accra asking for:

“(i) An order that the defendant doth transfer to the plaintiff, the dwelling-house at Tetteh Kwei Street, Dzorwulu, Accra, originally belonging to the defendant but gifted to the plaintiff and her children by the defendant as a result of which the plaintiff expended some US$48,489.4 (or its equivalent in cedis) to renovate and refurbish it.

(ii) ¢10 million as damages for breach of a promise to marry the plaintiff.

(iii) Refund of the sum of US$86,776.5 (or its equivalent in cedis at the date of payment) being various moneys expended by the plaintiff at the request of the defendant for the purposes of renovating, refurbishing or making extensions, to various properties belonging to the defendant which moneys the defendant has failed or wilfully refused to refund to the plaintiff despite repeated demand.

(iv) 30 per cent simple interest on the said sum of US$86,776.5 or any other sum found due to the plaintiff from the 1 November 1998 to date of judgment.”

The defendant denied the claim and counterclaimed for:

“(a) Ejectment from the house at Tetteh Kwei Street, Dzorwulu which the defendant holds as trustee for his son, Dr Robert Kumoji.

(b) Recovery of Datsun 280 saloon car with registration No GZA 5414.

(c) Recovery of one electric generator.

(d) An order that an inventory be taken of the defendant’s electrical appliances and other furnishing at the

Dzorwulu house and same preserved in the premises before plaintiff is ejected.

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(e) Account of rents collected from lodgers at house No 23 Aviation Road, Airport Residential Area from 1985 to 1987.

(f) Return of the sum of (US$57,600) being rent collected from the German Democratic Republic (GDR)

Embassy from 1987 to 1991.

(g) Account of rents collected on the Kanda house from 1987 to 1990.

(h) An order for perpetual injunction restraining the plaintiff, her agents and assigns from dealing with or in any other way interfering with the house at Tetteh Kwei Street, Dzorwulu; house No 143 at Kanda and any other property belonging to the defendant.”

The trial High Court gave judgment for the plaintiff for: (a) recovery of the sum of US$7,000 she remitted to the defendant’s daughter, Evelyn; and (b) recovery of the sum of two air tickets costing ¢897,000 each which she purchased for herself and the defendant. The court however dismissed her other claims, and gave judgment for the defendant on his counterclaim.

Dissatisfied with this judgment, the plaintiff appealed to the Court of Appeal, whilst the defendant asked for a variation of the judge’s order “to expunge from the judgment that part of the decision which ordered the respondent to pay US$7,000 and ¢897,000 to the appellant on the grounds that:

“(a) The plaintiff did not seek any relief in the sum of US$7,000 and ¢897,000 in her writ of summons and statement of claim.

(b) The plaintiff merely mentioned the two sums to explain how she utilised part of the sum claimed by the defendant in his counterclaim concerning the two sums.”

The defendant also asked the Court of Appeal to expunge from the judgment the finding by the learned trial judge that the first plaintiff witness, the mother of the defendant, gave evidence on the alleged gift of house No C11I/14 Tetteh Kwei Street, Dorwulu as it is not supported by the evidence.

The Court of Appeal dismissed the plaintiff’s appeal. The court also dismissed the cross-appeal of the defendant in a very peculiar way. The court said:

[p.69] of [1999-2000] 2 GLR 66

“In this instant case the defendant entrusted the plaintiff with the management of his business and fed on her labour. If he is willing to marry her then the accounts he is asking for to be gone into are normally allowed; but since he has placed himself in a position not to marry, then he must forget about the goods and money which have come into her possession as a result of the immoral association.”

However, the court allowed the defendant’s claim for variation of the High Court judgment in the following terms:

“The judge’s findings complained about in the defendant’s cross-appeal are not borne out by the record and are to be expunged from the judgment. The cross-appeal succeeds. The findings are accordingly expunged from the judgment. In the result, the plaintiff’s claim is dismissed; the defendant’s counterclaim succeeds in part. The cross-appeal succeeds.”

It is against this decision of the Court of Appeal that the plaintiff has appealed and the defendant also has cross-appealed to this court.

Eight grounds of appeal were filed by the plaintiff, but only three of them deserve consideration, namely:

“(a) The whole judgment is against the weight of evidence.

(b) The Court of Appeal erred in failing to appreciate the need for the appellant’s accounts to be sent to a referee to be verified.

(c) The Court of Appeal erred in ordering possession of the Dzorwulu house for Victor Kumoji when all the documentary evidence point to the fact that the premises has been registered in the name of Robert Kumordji and that no power of attorney had been executed by the said Robert Kumoji to Victor Kumoji.”

In his cross-appeal, the defendant’s main ground was:

“The learned justices of the Court of Appeal erred in setting aside the order of the High Court of Justice, Accra awarding the sums of ¢2,592,720 and US$5,040 being 50 per cent of the rent collected by the plaintiff between 1989-1999 in respect of house No 23, Aviation Road, Accra, property of the defendant.”

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The arguments put forward by the plaintiff for consideration are so vague that we had to take great pains to decipher what she was propounding. We believe that with respect to her ground (d) above, she was referring to the refunding of the sum of US $86,778.5 or its equivalent in cedis contained in relief (iii) which has some relevance to accounts. The evidence on record shows that the plaintiff was unable to prove that the various moneys alleged to have been expended by her “for the purpose of renovations, refurbishing, or making extensions to the properties belonging to the defendant was at his request. The trial High Court judge found as a fact that she was not able to satisfy the court on that claim and dismissed the claim. The Court of Appeal agreed with the finding of the trial court. In our view, this court has no reason to disagree with the finding of the court below.

Counsel for the plaintiff contended that arising out of the payment of such monies and the utility bills tendered by her, which she confirmed were paid by her out of the hotel bills collected from lodgers, an accounting relationship had developed between her and the defendant which ought to be settled by a referee. Counsel blamed her inability to present her accounts effectively and the refusal by the trial court to give her the opportunity to present her accounts and the various receipts covering the expenditure and on the technical ground that the accountant’s evidence on the state of accounts were inadmissible, cleverly side-stepping the fact that it was counsel himself who eventually withdrew the document. Perhaps if counsel had adverted his mind to Order 33, r 11 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) as amended by the High Court Civil Procedure (Amendment) Rules, 1997 (LI 1129),dealing with “taking an account” he would have been able to achieve his purpose. This around of appeal therefore fails.

The next ground argued by counsel for the appellant concerns the house at Dzorwulu. Counsel contended that the decision of the trial High Court and the Court of Appeal, dismissing her claim for the Dzorwulu house for herself and her two children, was wrong. The evidence she led at the trial was that the defendant took her to Dzorwulu, Tetteh Kwei Street where he asked her to choose one of two houses there as hers, and thereafter she should not worry him about owning a house of her own. No doubt she was talking about a customary gift inter vivos, but was unable to call any witness to support her claim.

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With regard to such gifts, our courts have stressed that the acceptance of a gift, especially of land, “must be made by the presentation to the donor of some token of acknowledgement and gratitude in the presence of witnesses.” There are two ways of making such valid gifts, either by a conveyance where a deed of gifts is granted to evidence the transaction, or orally where it is governed by customary law. The plaintiff led no evidence to show that any deed was executed in her favour, nor that there was any aseda or thank offering in the presence of witnesses: see Mahama Hausa v Baako Hausa [1972] 2 GLR 469 at 474-475, CA; Bentsi-Enchill, Ghana Land Law at pp 364-365; Danquah, Akan Laws and Customs at p 219: and Mensah v Kyei, Court of Appeal, 5 May 1960, unreported; digested in (1969) CC 97.

In Mahama Hausa v Baako Hausa (supra) Bentsi-Enchil JSC who delivered the lead judgment, after stressing the requirement of acceptance of the gift with aseda in the presence of witnesses, said at 474-475:

“This requirement serves many purposes, and solves many problems relating to gifts. In the first place, a proffered gift which the donee does not accept is thereby prevented from becoming a gift. Secondly, where no gift was intended by a putative donor, a purported acceptance in the presence of witnesses affords an opportunity for express denial of a donative intent. Thirdly, the requirement of acceptance in the presence of witnesses ensures publicity and makes the gift not only impossible or difficult to deny afterwards, but, ope-rates as a double check preventing the donor from making a gift of what is not his own, namely, family property, and preventing fraud.”

The plaintiff failed to prove a gift inter vivos and, in our view, the learned trial judge and the Court of Appeal were right in rejecting her claim in this regard. The mere use and occupation of the house for twelve years cannot raise a presumption of a gift inter vivos. Her appeal, therefore fails. The defendant is thus entitled to recover possession of the property.

We now turn to the cross-appeal by the defendant where he complained about the decision or the Court of Appeal to set aside the award of the High Court to the defendant of the sum of ¢2,592,720 and US $5,040, being half of the rent collected by the plaintiff for a period of two years from house No 23 Aviation Road, Accra, Counsel for the defendant submitted that the learned

[p.72] of [1999-2000] 2 GLR 66 justices of the Court of Appeal wrongly applied the customary principle enunciated by Mensah Sarbah and in the process erred. He further submitted that there was no legal justification for the Court of Appeal in disturbing the verdict of the High Court on the issue.

As stated earlier, the defendant had counterclaimed for the return of the sum of fifty seven thousand, six hundred United States dollars (US$57,600) being rent collected from the embassy of the German Democratic Republic by the plaintiff from 1987 to 1991. According, to the defendant, he permitted her to use the premises only as a guest house, but without his authority, and in breach of the permission to use the premises aforesaid, she entered into a lease agreement with the German Democratic Republic and rented the premises to them for a two year duration with an option to renew for another two years at a rent of US$28,800. In her evidence, she tendered exhibits R and RI to show that 65 per cent of the rent was paid in cedis and 35 per cent in United States dollars. However, the defendant decided to forgo the rent collected by her in respect of the Aviation Road house from 1987 to 1988; and further, out of the rent paid for from 1989 to 1991, he decided to claim only half of the 65 per cent paid in cedis and half of the 35 percent paid in US dollars, ie ¢2,592,720 and US $5,040. The trial High Court gave judgment for the above sums in favour of the defendant. After examining the evidence on record and the law involved, we agree with counsel for the defendant that the Court of Appeal had no legal justification for disturbing the verdict of the High Court. The defendant had been magnanimous enough in forgoing the rent on the premises from 1987 to 1988 and also half of the rent from 1989 to 1991. No reasonable excuse was given by the plaintiff for not refunding the whole rent on the premises.

The cross-appeal is therefore allowed, and the award of the High Court, Accra restored.

Appeal of plaintiff- appellant dismissed.

Cross-appeal of defendant-respondent allowed.

LSNA