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MRS. GRACE FYNN

vs.
STEPHEN FYNN AND CHRISTIANA OSEI
[SUPREME COURT, ACCRA]
CIVIL APPEAL NO. J4/28/2014 DATE: 12TH FEBUARY, 2014

COUNSEL:
MUJEEB RAHMAN AHMED (WITH HIM KWABENA ATTA AGYEI, NANA KWASI
BOATENG AND DR. FRANK ANKOBEA) FOR THE PLAINTIFF/
APPELLANT/APPELLANT.
MARIAM AGYEMAN GYASI JAWHARY ESQ. (WITH HER SOLOMON OPPONG
TWUMASI) FOR THE 2ND DEFENDANT /RESPONDENT/ RESPONDENT.

CORAM:

WOOD (MRS.) CJ, (PRESIDING) ANSAH, JSC YEBOAH, JSC BONNIE, JSC AND
AKAMBA, JSC

JUDGMENT

WOOD (MRS) C.J

This court has clearly set out the legal principles governing appeals against the
concurrent findings of fact and conclusions of two lower courts. The principle is that
ordinarily, a second appellate court, such as this honourable court, would not interfere
with the findings of fact made by a trial court and confirmed on appeal by a first appellate
court. A second appellate court would overturn such findings and conclusions only in
exceptional cases. The circumstance under which such an intervention may be legally
permissible or justifiable is borne out in such cases as:

Achoro and Another v. Akanfela and Another [1996-97] SCGLR 209, at 214 we reasoned
that the finding would be interfered with where;

“It was established with absolute clearness that some blunder or error resulting in a
miscarriage of justice, was apparent in the way in which the lower tribunals had dealt

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with the facts. It must be established, e.g., that the lower courts had clearly erred in the
face of a crucial documentary evidence, or that the principle of evidence had not been
properly applied; or that the finding was so based on erroneous proposition of law that
if that proposition be corrected, the finding will disappear … It must be demonstrated
that the judgments of the courts below were clearly wrong.”

Obrasiwa 11 and others v Otu and Another [1996-7] SCGLR 618, at 624 affirmed the above
legal proposition.

In Kpakpo v Brown [2001-2002] SCGLR 876, we observed that where the findings and
conclusions are supported by the record and no miscarriage of justice has resulted from
the decisions; the second appellate court would have no choice but to confirm those
findings and conclusions.

The following cases:

Musah v Musah [2011] SCGLR 819,

Fabrina Ltd v Shell Ghana Ltd [2011] SCGLR 429, at 449

Fosua and Adu –Poku v Dufie (Deceased) and Adu- Poku v Mensah [2009] SCGLR 310,

Gregory v Tandoh IV & Hanson [2010] SCGLR 971,

Obeng & Others v Assemblies of God Church, Ghana [2010] SCGLR 300 at 409 and

Mensah v Mensah [2012] 1SCGLR 300

bring out other circumstances under which a second appellate court’s interference would
be justified. On each occasion, this court speaking through our respected brother Dotse
JSC carved out some of the exceptions to the general rule of non interference. Our learned
brother expressed the position in Obeng v Assemblies of God Church (supra), thus:

“…where findings of fact have been made by a trial court and concurred in by the first
appellate court, then the second appellate court like this court, must be slow in coming

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to different conclusions unless it was satisfied that there were strong pieces of evidence
on record which made it manifestly clear that the findings by the trial court were
perverse”, or strong pieces of evidence, where the trial court failed to properly to evaluate
the evidence or make proper use of seeing or hearing the witnesses at the trial.

We thus applied these principles to affirm findings and conclusions of the two lower
courts in Ntiri v Essien [2001-2002] SCGLR 459; Sarkodie v F K A Co Ltd [2009] SCGLR
79; Jass Co Ltd v Appau [20009] SCGLR 266 and Awuku-Sao v Ghana Supply Co Ltd
[2009] SCGLR 713.
Gregory v Tandoh IV [2010] SCGLR 971, (supra) however merited a different treatment.
The court decided in the interest of justice to overturn the concurrent findings of fact, and
therefore had to set out the limits of its jurisdiction in that particular instance. The court
observed:

“It is therefore clear that, a second appellate court, like this Supreme Court, can and is
entitled to depart from findings of fact made by the trial court and concurred in by the
first appellate court under the following circumstances: First, where from the record of
appeal, the findings of fact by the trial court are clearly not supported by evidence on
record and the reasons in support of the findings are unsatisfactory; second, where the
findings of fact by the trial court can be seen from the record of appeal to be either
perverse or inconsistent with the totality of evidence led by the witness and the
surrounding circumstances of the entire evidence on record of appeal; third, where the
findings of fact made by the trial court are consistently inconsistent with important
documentary evidence on record; where the first appellate court had wrongly applied
the principle of law (see Achoro v Akanfela) (supra) and other decided cases on the
principle) the second appellate court must feel free to interfere with the said findings of
fact in order to ensure that absolute justice is done in the case.”

These represent only some of the grounds on which an appellate court may disturb the
concurrent findings of two or more lower courts; they do not present a closed category.

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And so it happens that since this appeal principally turns on just one or two fundamental
issues of fact, which issues both lower courts resolved in the respondent’s favour, in this
court, the appellant bears the rather onerous burden of dislodging the general legal
proposition by situating her case within any of the known exceptions or providing some
other compelling reason that would justify a departure from the general rule.

This inevitably leads to an examination of the main facts culminating in this instant
appeal. The facts which led to the commencement of the action in the High Court are
indeed very simple and not at all complex. The 1st defendant has been married to the
appellant for some thirty years. The couple is blessed with six children. The 1st defendant
sold a store No. 18 Railway Quarters, Kumasi, the subject property of this appeal, to the
respondent, for valuable consideration of GHC40, 000. She went into possession after the
vendor had transferred the property to her upon payment of the full purchase price and
subsequently registered as a member of the Railway Traders Association. A couple of
months thereafter the appellant, claiming to be a joint owner of store No 18, and yet
whose consent and concurrence was never secured before the sale, sued to have the sale
set aside and to repossess the property.

The 1st defendant admitted these facts, but the respondent challenged inter alia, the claim
of joint ownership and asserted that due diligent searches she conducted prior to the
purchase did not disclose that the property was jointly acquired by the couple. She
contended that, to the contrary, these showed that store number 18 was the exclusive
property of the vendor; hence her plea in defence that she was a bona fide purchaser for
value without notice. She therefore counterclaimed in that capacity for declaration of title
and an order for perpetual injunction to restrain the couple from interfering with her
quiet enjoyment of the subject property.

Both the trial and appellate courts in exercising their respective jurisdictions had very
little difficulty in finding for the respondent both on the facts and the law. Dissatisfied,
the appellant has appealed to us in this court; to set aside the findings and conclusions of

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the two lower courts, substitute these with those findings and conclusions that will
ultimately secure judgment in her favour.

The grounds on which the appellant impugned the decision of the court of appeal include
the oft used omnibus appeal ground- the judgment is against the weight of evidence. I
find this ground rather superfluous given the other specific grounds filed. But we cannot
begrudge the appellant, who is obviously desirous of ensuring that nothing is left to
chance and that none of her complaints were left unaddressed in this appeal in which as
already noted, essentially hinges, on a couple of rather narrow questions of fact. The other
appeal grounds are:

i. “The Court of Appeal erred when it held that the subject property is owned
solely by the 1st Defendant/Respondent/Respondent in the face of clear
admissions by the 1st Defendant/Respondent/Respondent himself, to the
contrary.
ii. The Court of Appeal was wrong in law when it held that the 1st
Defendant/Respondent/Respondent did not hold the subject property as a
trustee for and on behalf of himself and the Plaintiff/Appellant/Appellant.
iii. The Court of Appeal erred when it held that the learned trial court was right,
when it declined to order the Plaintiff/Appellant/Appellant to refund the
purchase price, with interest (at the prevailing bank rate) as well as other
incidental expenses merely because the Plaintiff/Appellant/Appellant had not
claimed these reliefs in the suit.
iv. The Court of Appeal was wrong in law in holding that the subject property
belonged solely to the 1st Defendant/Respondent/Respondent in the light of
well settled judicial dicta, and as such same was given contrary to law.”

The complaint I have against these other appeal grounds is that these could have
conveniently been reduced into two main grounds. Grounds (ii) - (v) are repetitions. They
all somehow convey similar thought; only that they are couched differently. Be that as

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this may, the appellant has invited us to overturn the judgment of the two lower courts
and substitute them with an order setting aside the purported sale.

GROUNDS (ii- iv)

At both the trial and appeal hearings, the learned justices after reviewing the evidence on
the record, decidedly concluded that the store No. 18 was solely acquired by the 1st
defendant and not jointly as part of the couple’s matrimonial property as contended by
the appellant. Her principal complaint against this primary finding, as may be gathered
from these three grounds of appeal, is that the court’s finding on this critical issue was
patently in error, given that as is borne out by the record, the 1st defendant as per his
statement of defence, unequivocally admitted her (appellant’s) assertion that this asset
was acquired from the joint resources of the couple. Appellant counsel thus argued that
the trial court and indeed the appellate court really had no option and on the authority
of West African Enterprise Ltd. v Western Hardwood Ltd. [1995-6] 1 GLR 153, was bound
to accept joint ownership as the proven fact and ought properly to have found for the
appellant on this issue. The argument further went that, had the two courts adopted this
approach, and been guided by the line of cases such as Mensah v Mensah [2012] SCGLR
391, and Quartson v Quartson [2012] 2SCGLR 1077, they (the two lower courts) would
have come to the undoubted conclusion that the 1st defendant held the property in their
joint names as part of their matrimonial assets, and thus nullified the sale, which the
evidence clearly showed was effected without her consent and concurrence.

The respondent counsel had urged that we dismiss these arguments given that the
appellant failed to discharge the evidential burden which rested on her on account of the
state of the pleadings, more particularly, given that the 1st defendant’s admissions were
not binding on the respondent. Mensah v Mensah (supra) and Quartson v Quartson
(supra), which dealt with the acquisition of matrimonial property during marriage, he
urged, were clearly distinguishable from this instant case.

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Now, the appellant as plaintiff had pleaded per the paragraph 4 of her twenty
paragraphed statement of claim as follows:

“The plaintiff states that she and 1st defendant pooled their resources together to acquire
property including a house numbered plot 94, F-line at Buokrom Estate, Kumasi, where
they reside and store No. 18, situated at the railway Quarters Shopping Mall, Kumasi.”

It is not disputed that the 1st defendant had in a terse two paragraphed statement of
defence admitted every single fact pleaded by the wife, the appellant.

Undoubtedly, the appellant’s main argument is premised on the 1st defendant’s

admissions. It is noteworthy that the appellant for reasons best known to her sued the
husband as 1st defendant. She could have called him as her witness, whereupon he could
still have had opportunity to confess to his sins in disposing of their jointly acquired
property without her consent. But she avoided that route as indeed was her constitutional
right, choosing rather to make the love of her life her opponent; but perhaps for only that
period they were to find themselves embroiled in this legal duel. That may well have
been her fundamental right but then, she cannot escape the legal consequences flowing
from that singular choice. The 1st defendant in his statement of defence as noted, admitted
the appellant’s assertion that the store was jointly owned by the two of them, leaving the
appellant to argue that these plainly admitted facts inured to her benefit as they are
sufficient to support a positive finding in her favour without more, and placing her under
no legal obligation to provide further evidence in proof of ownership. True, in the case of
In re Asere Stool; Nikoi Olai Amontia IV (substituted by Tafo Amon II) v Akotia
Oworsika III ( substituted by) Laryea Ayiku III [2005-2006] SCGLR, this court laid down
the following salutary rule of law, namely that:

“Where an adversary has admitted a fact advantageous to the cause of a party, the party
does not need any better evidence to establish that fact than by relying on such admission,
which is an example of estoppel by conduct.”

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But will this general legal principle apply in this instant case? Can the 1st defendant
properly, on the peculiar facts of this case, be described as appellant’s adversary? We do
think the rule will not apply in certain cases such as for example where fraud or collusion
is alleged and or proved. The appellant’s arguments invite this further question: what is
the legal import and probative value of the 1st defendant’s admission relative to the
appellant’s claim, given that the respondent, who was joined to the suit in her
independent and separate capacity as 2nd defendant, disputed the assertion of joint
ownership, joined issue with appellant on this crucial fact and put her to its strict proof?

Where two or more persons are sued not even jointly but severally only, that is in their
separate capacities, as in this instant case, any admission by a defendant binds only that
defendant making it. It does not bind another defendant who has challenged the assertion
and called for its strict proof. Furthermore, since no issue is joined as between the plaintiff
asserting the fact and the defendant admitting it, no duty will be cast on the former to
lead evidence on the admitted fact.

But the same cannot be said of another defendant who denies the assertion. Under such
circumstances, a court is under a duty to treat the case of each defendant separately viz a
viz the plaintiff’s case on the merits and as relates to the fact in issue. (See Kusi & Kusi v
Bonsu [2010] SCGLR 65).

Another equally pertinent question is this; what is the duty of a court when faced with a
situation where a defendant’s admission conflicts with the evidence of the another
defendant who joins issue with the plaintiff on the assertion, such as in this instant case
where 1st defendant’s admission is directly in conflict with the evidence supplied by the
respondent at the trial? Which of the two conflicting versions must a court accept and
consequently as being either clearly advantageous or disadvantageous to the plaintiff’s
case? Frankly, this is the difficulty the appellant finds herself in.

We think it is impossible to lay down any hard and fast rules, rules cast in stone in respect
of matters of this nature. These are matters better left to a court’s judgment on the merits

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of each given case. Of course in evaluating the respective weight to be given to the
conflicting positions of the defendants, the court will be guided by the law and the same
considerations that courts employ in “attacking or supporting credibility” as provided
under s 80 of the Evidence Act, 1975, NRCD 323.

Thus for example if one defendant admits facts, and the other defendant challenges the
fact asserted and yet is unable to lead sufficient evidence in disproof of the fact, the
admitted facts would weigh in plaintiff’s favour.

As far as this appeal is concerned, we are of the opinion that the 1st defendant’s admission
does not aid the appellant’s case in any material way. There is more to this case than the
1st Defendant’s admissions. The appellant had a duty to make a solid case against the
respondent, independently of the 1st defendant’s admissions. If it were not so, why did
the she not cut matters short by simply taking advantage of the admissions and move the
court for judgment and altogether avoid a full scale trial?

Unfortunately, the appellant merely relied on this admission as concrete proof of joint
ownership, whereas the respondent did not merely challenge the fact, but as rightly
found by the court below proceeded to adduce evidence, which on the balance of
probabilities, proved that the property was owned exclusively by the 1st defendant and
further that in any event she was a bona fide or innocent purchaser for value without
notice. The evidence proved that the appellant herself had previously owned one of those
stores- registered in her sole name-, which she has in any event disposed of. Also, the
evidence spelt out in great detail how the respondent came to purchase the property and
the due diligence conducted thereto.

Evidence which came from a clearly disinterested witness, the DW4 the Vice-Chair of the
Railway Quarters Association to which both the appellant and the 1st defendant
belonged, proved that contrary to the appellant’s assertion, the Association have
instances where stores have been registered in the name of more than one person, thus
completely discrediting the appellant’s explanation as to why the property was not in

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their joint names but the sole name of the 1st defendant. All these credible pieces of
evidence effectively neutralized the 1st defendant’s bare admissions via the pleadings,
and which the appellant is clutching at as proof of joint ownership.

Truthfully speaking, the appellant did not benefit, not even minimally, from the
admission of the 1st defendant, the defendant who tactically failed to present himself at
the trial so that, he could if for nothing at all, seek leave to cross-examine the respondent
and demonstrate the improbability of her claim to bona fides. Certainly, if he thought the
best strategy was simply to admit the facts and disappear from the court’s radar
altogether, that rather was the appellant’s undoing. She was caught in a rather
anomalous and most awkward position; one from which she could extricate herself if
only she additionally led sufficient evidence, to displace the respondent’s case. Even if to
start with, she could seek solace in the 1st defendant’s admission, given the state of the
respondent’s defence and counterclaim, she bore an evidential burden which she failed
to discharge. She cannot therefore simply rely on the bare admission of her husband to
succeed.

The concurrent findings are not perverse; they are amply supported by the record, and
clearly consistent with the totality of the evidence. No miscarriage of justice has been
occasioned by these findings and conclusions and it would be most unjust on our part, to
interfere with them.

GROUND (v)

The appellant counsel’s argument in under this ground of appeal is untenable. We do not
think this court’s thinking on the status of property acquired during the existence of any
marriage is shrouded in confusion. Indisputably, during the existence of the marriage
union, it is most desirable that the couple pool their resources together to jointly acquire
property for the full enjoyment of all members of the nuclear family in particular. But,
the decided cases envisage situations where within the union parties may still acquire
property in their individual capacities as indeed is their guaranteed fundamental right as

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clearly enshrined under article 18 of the 1992 Constitution, in which case they would also
have the legal capacity to validly dispose of same by way of sale, for example, as
happened in this instant case. No court in such clear cases would invalidate a sale
transaction on the sole legal ground that the consent and concurrence of the other spouse
was not obtained. We would however subject these views we have expressed to this
sound caution. Since, the peace, tranquility, harmony, stability and indeed the health and
general well being of any marriage union thrives best in the environment of mutual
affection, trust and respect for each other as well as transparency; we think a spouse in
such a case is under a moral obligation at any given time, (indeed it is most expedient
and fair) to apprise the other spouse of the intention to acquire and dispose of self
acquired properties at all material times. This is clearly implicit from this court’s view
expressed in Quartson v Quartson (supra), namely that:

“The Supreme Court’s previous decision in Mensah v Mensah …, is not to be taken as a

blanket ruling that affords spouses unwarranted access to property when it is clear on
the evidence that they are not so entitled. Its application and effect will continue to be
shaped and defined to cater for the specifics of each case.”

This instant case was fought on the basis that the appellant contributed to its acquisition,
which we understood from the pleadings as some direct financial contribution. This basic
fact we have found to be unproven. It was never fought on the basis and proven that the
respondent even knew of the existence of the marriage union and further that she knew
that the property was indeed jointly acquired during this period as family property.
Consequently Mensah v Mensah (supra) and Quartson v Quartson (supra) has no bearing
and is clearly inapplicable to the peculiar facts of this case. To hold otherwise would
have amounted to substituting a case different from that which the appellant herself put
up, conduct which is clearly deprecated by the principle enunciated in the case of Dam v
Addo GLR [1962] 342 and cited with approval in a host of other cases. (See Bisi v Tabiri
alias Asare [1987-88] 1 GLR SC and Kwame Serwah [1993-4]1 GLR 360 and Antie &
Adjuwuah v Ogbo [2005-2006] SCGLR 494.

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In the result the appeal fails and is hereby dismissed.

(SGD) G. T. WOOD (MRS)

CHIEF JUSTICE

(SGD) J. ANSAH

JUSTICE OF THE SUPREME COURT

(SGD) ANIN YEBOAH

JUSTICE OF THE SUPREME COURT

(SGD) P. BAFFOE BONNIE

JUSTICE OF THE SUPREME COURT

(SGD) J. B. AKAMBA

JUSTICE OF THE SUPREME COURT

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