Duah v Yorkwa [1993-94] 1 GLR 217

Material Facts:

One Oduro Newman and Kwadwo Adom Isaac took a loan from First Ghana Building Society to build a house on plot No. 4, Block 9A. The house was used as security for the mortgage, and they were to repay the loan by monthly instalments. At some point, the repayment of the loan fell into arrears, and they approached one Kwasi Nyieni, a money lender, to borrow money. In return, they gave Kwasi Nyieni possession of the house. After the death of Nyieni, it was discovered that he had willed the house to his son, Duah, the appellant herein.

Oduro Newman and Kwadwo Adom instituted an action in the High Court for declaration of title. They contended that the agreement between themselves and Nyieni was merely a pledge and not a sale. In responds, Duah argued that the agreement was a sale and not a pledge.

After the commencement of the action, Newman also died, and it was discovered that he willed the house to his widows, one of whom being Yorkwa, who joined the suit as the third plaintiff.

The main issue at the trial was whether the transaction between the Kwasi Nyieni and the two original joint owners was a pledge or a sale. Judgement was given in favour of the plaintiff-respondent (Yorkwa), and the defendant-appellant (Duah) appealed. The defendant-appellant contended that the onus to establish the pledge was on the plaintiff-respondent, who asserted that the transaction was a pledge.

Issue:

Whether or not the onus was on the respondent (Yorkwa) to establish that the transaction between Nyieni and the two original owners was a pledge?

Argument of the Appellant:

1. That the onus was on the respondent who asserted that the transaction was a pledge to establish the pledge

Argument of the Respondent:

1. That it is the appellant who asserts that the transaction was a sale and had the onus to establish that sale.
2. That because the initial ownership of the property was in the original joint owners, the onus shifted to the appellant (Duah) to establish that he had a better title than the original owners. That this is supported by the decision in Kyiafi v. Wono [1967] GLR 463, CA, where it was stated that “Where in an action…for redemption of land alleged to have been pledged, the defendant pleads ownership based upon title acquired from the plaintiff, the onus shifts upon the defendant who so admits the original title of the plaintiff to show that the transaction by which he entered into possession of the land is a sale or gift and not a licence or pledge.”

Holding:

In the trial court, the onus was on Yorkwa, as plaintiff, to establish that the transaction between Nyieni and the two original owners was a pledge.

Ratio Decidendi:

The second argument of the respondent (supra) is untenable in light of the provisions of NRCD 323. Under Part II of NRCD 323, provisions are made for the burden of proof, which includes the burden of persuasion under sections 10, 14, and 15 of NRCD 323 and the burden of producing evidence under sections 11, 12, and 13 of NRCD 323. Per Brobbey J.A., the burden of persuasion should be interpreted to mean:

the quantity, quantum, amount, degree or extent of evidence which a litigant is obligated to adduce in order to satisfy the requirement of proving a situation or a fact.

This burden is different from the burden of producing evidence, which, in the opinion of their lordships, “cover which of the litigating parties should be the first to lead evidence before the other’s evidence is led” and is defined in Section 11(1) of NRCD 323 as:

the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue.

In the present case, the plaintiff-respondent was the party who took the defendant-appellant to court. In light of this, if all the parties decide not to lead evidence, the order sought by the plaintiff-respondent will not be granted, and it is the plaintiff who will lose. Consequently, the plaintiff-respondent “has the duty or obligation to lead evidence in order to forestall a ruling being made against him” because it is her who seeks to repossess the house on grounds that the defendant-appellant did not get possession of the property by virtue of a sale but by a pledge.

Although the plaintiff-respondent bears the burden of proving that the defendant-appellant got possession of the house on the basis of a pledge, NRCD 323 also makes provisions for the burden of proof to shift to the defendant-appellant. In Section 14, for instance, it is provided that:

Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting.

His lordship extensively explained how the above provision would apply to the instant case as follows:

If these were to be applied to the facts of this case, it would mean that, first and foremost, the plaintiffs had the obligation to adduce sufficient evidence on a pledge which is essential to the claim they asserted. This duty or obligation on the plaintiffs is further emphasised in section 11(4) of NRCD 323 which reads:

“11. (4) In other circumstances [which could only be referrable to civil trials since the preceding two paragraphs had dealt with criminal trials] the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.”

In the instant case, when the plaintiffs relied on a pledge while the defendant relied on a sale, it is obvious that the duty or obligation on the plaintiffs was to have produced evidence so that the trial court would conclude that the existence of the pledge was more probable that its non-existence. If they established the pledge and the onus thereafter shifted to the defendant, he too would have been obligated to adduce sufficient evidence on the sale which was essential to the defence he asserted.

In terms of NRCD 323, therefore, the duty or obligation is on the party against whom a ruling on that issue would be given if he fails to lead sufficient evidence. Since the ruling on the initial basis for going to court, ie a pledge would be against the plaintiffs, the initial obligation to adduce evidence will remain on the plaintiffs.

Summarily, the plaintiff-respondent has the burden of producing sufficient evidence to support her claim that the defendant-appellant got possession of the house by way of a pledge. If the evidence caused the trial court to conclude that the existence of a pledge was more probable than its non-existence, the burden then shifts to the defendant-appellant to also adduce sufficient evidence to support his claim that he got possession by way of sale.