EBUSUAPANYIN EKUMA MENSAH v. NANA ATTA KOMFO II
January 23, 2019
SUPREME COURT
GHANA
CORAM
- YEBOAH, JSC (PRESIDING)
- GBADEGBE, JSC
- APPAU, JSC
- MARFUL-SAU, JSC
- KOTEY, JSC
Areas of Law
- Evidence Law
- Property and Real Estate Law
- Civil Procedure
January 23, 2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
Gbadegbe, JSC authored the Supreme Court of Ghanas opinion in a customary land dispute between two families, reviewing concurrent findings from the trial court and Court of Appeal. The court framed its role narrowly: to assess whether the admissible evidence made the plaintiffs version more probable, applying sections 1012 of the Evidence Act (NRCD 323). On a record of traditional oral history, the court emphasized acts of recency and admissions. It credited the plaintiff’s family’s long possession, buildings, and cultivation; the defendants’ admissions, including compensating for felled palm trees; and the families’ long practice of toll payments. Those facts supported the plaintiff’s usufructuary rights and recognized the defendant’s allodial title. Estoppel under section 26 and preclusion under section 24 barred contrary proof. Adhering to Achoro v Akanfela, the court declined to disturb concurrent findings and rejected reliance on a Privy Council case without its record. The appeal was dismissed, with YEBOAH, APPAU, MARFUL a0SAU and KOTEY, JJSC concurring.
GBADEGBE, JSC:- The question for our decision in this appeal is within a narrow compass and is related to the probative value of the evidence on which the judgment of the two lower courts is founded. As the intermediate appellate court is in agreement with the trial court on the findings of fact, our task is to determine if on all the evidence contained in the record of appeal before us, the decision of the learned justices is supported by the effect of the evidence. Restating this, we are to discern from the evidence whether placing the case of the plaintiff against that offered by the defendant within the context of the controversy herein renders his version more likely to be true; I think this is the essence of the evidential requirements contained in sections 10-12 of the Evidence Act, NRCD 323 regarding the burden of proof. The attitude of the second appellate court to findings of fact concurred in by the intermediate appellate court has been laid down in the case of Achoro v Akanfela [1996-97] SCGLR 209 and applied in a collection of cases, the essence of which is that this court may only depart from such findings if they are proved to be perverse or unreasonable. In this regard, to succeed, the appellant must demonstrate that there was some error or blunder in the manner that the lower courts handled the resolution of questions of fact such as to have had the ends of justice not well served.
Turning to the evidence placed before the lower courts, there is no conflict of opinion that it was in its nature traditional and as it was not based on writings contained in documents but related by way of oral history, the narration of both parties suffered from inconsistencies but as has been stated in several judgments regarding the attitude of courts to such evidence, we are not to require proof by mathematical precision and it suffices if having regard to acts of recency, a particular view of the facts is more probable than the other.
After patiently scrutinizing the record of appeal before us and attending to the written briefs submitted to us by the parties, we have come to the conclusion that the view of the facts accepted by the two lower courts is sufficiently derived from the admitted evidence and that contrary to the considerable submissions by the defendant directed at overturning the findings, the plaintiff’s case had greater probative value than that offered by the defendants not only for the very clear reasons provided in the judgment with w