OP. KOFI NYAME-ANE vs. MAD MARTHA MENSAH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    KUMASI - A.D 2017
OP. KOFI NYAME-ANE - (Defendant/Appellant)
MAD MARTHA MENSAH - (Plaintiff/ Respondent)

DATE:  22ND MAY, 2017
CIVIL APPEAL NO:  H1169/2016
JUDGES:  AYEBI J.A. (PRESIDING), TORKORNOO (MRS) J. A., DOMAKYAAREH (MRS) J. A.
LAWYERS:  COUNSEL FOR DEFENDANT/APPELLANT - MATHEW APPIAH
COUNSEL FOR PLAINTIFF/RESPONDENT - PAUL ODURO
JUDGMENT

TORKORNOO (MRS), J.A.

This appeal has absolutely no merit because it was filed out of time. All the expenses incurred and the time used have been much ado about nothing.

 

The 1992 judgement in a suit filed in 1990 and titled Madam Martha Mensah v Opanin Kofi Nyame-Ane formed the basis for the high court suit on appeal herein. The 1992 judgment is found on pages 58 to 63 of the Record of Appeal (ROA). In this judgment, Gyaesayor J (as he then was) had granted inter alia, the first relief sought by the Plaintiff in both that suit and this current one. She had prayed for ‘a declaration that by the judgment in the case of estate of Kwame Bimpeh, Abina Bour vrs Kwame Gyankyi, dated 24/7/45 being Suit No. 17/1945 the late Kwame Bimpeh (deceased) of Ayomso only created a Trust in respect of his properties for his children and that the late Gyankyi (deceased) was only a Trustee of the said properties’. In granting that relief on 3rd April 1992, the learned Judge pointed out that the suit did not seek a declaration of title to land but the resolution of whether a Samansiw created a trust over certain properties in favour of the parties to the suit. For that reason, he was keenly aware that he was not being called upon to make orders relating to land.

 

However, the learned judge concluded his judgment by saying ‘There is no doubt that peace has eluded the family as a result of these properties. I think when a reasonable portion of the Aboabagya farm and rooms in the House is given to Plaintiff there will be peace. Gyanki (sic) is a beneficiary of trust so also is the Plaintiff. I think if they share on equal terms, the ends of justice and fairness will be met. I have not been called upon to share the property but I wish to add that if they share on equal terms, peace shall prevail in the family

 

Clearly the court made no order for distribution of the Trust property that he had declared as belonging to the parties. He only expressed an opinion on what would bring peace.

 

Thereafter, the Plaintiff in that suit and this present one (now deceased), who was the ancestor of the Respondent in this appeal, commenced her action in the high court in July 1996 for the following reliefs:

1. An order of the Honourable court compelling the defendant to share (in equal terms) with the Plaintiff all the properties of the late Gyankyi (deceased) of Ayomso now in the possession of the defendant herein as per the judgment of the Circuit Court, Goaso in the case of Martha Mensah vrs Opanin Kofi Nyame-Ane (being suit No. LS. 3/90) attached hereto.

2. An order for account in respect of the said properties since 1990.

3. General damages for trespass.

4. An order of perpetual injunction restraining the defendant, his agents, workers and/or assigns from interfering with the Plaintiff’s ownership and possession of her portion of the said properties after the said division

 

The defendant/Appellant resisted the action with a Statement of Defence filed as late as December 2006. The gravamen of his defence is that he had appealed against the 1992 Gyaesayor judgment and so the current action was not sustainable. After more years of delays and passing through the hands of several judges, the case was placed before the judge whose decision has been appealed against.

 

In the first record under his hand dated 13th October 2011, the trial judge ordered that a surveyor from the Survey department at Sunyani be appointed to do the demarcation and equal division of the plot ‘as ordered in the judgment of the Circuit Court dated 3rd April 1992. Parties are to bear the cost of the exercise’. None of the parties protested this order. They bore the cost of the exercise. On 13th May 2014, the Divisional Head of the Survey Division submitted three copies of the final plan subdividing the site in issue.

 

He tendered the plan on oath and was cross examined by counsels of both parties. Then on 18th May 2015, the trial judge rendered what was captioned ‘DECISION OF COURT AS TO WHICH PARTY GETS WHAT IN REGARD OF THE DIVIDED FARM’

 

After dishing out directives for distribution of the farm land that the surveyors had worked on, the court ended with

 

The Government Valuer is ordered to inspect the House No OD 4, Ayomso and see how it can be shared equally between the two sides. To this end, the Government Valuer is ordered to come to court for the necessary instructions. Suit adjourned to 5th June 2015

 

It is against the decisions of 18th May, 2015 that this appeal has been mounted. The grounds of appeal filed against it are

 

Grounds of appeal

 

The judgment/decision of the court is against the weight of evidence adduced at the trial.

 

The learned trial judge erred when he ordered that site “A” of the disputed farm/land be given to the Plaintiff whereas site “B” be given to the defendant having regard to the fact that the defendant and his family have cultivated cocoa and other crops on the site “A” of the land in dispute.

 

The sharing of the disputed farm/land was inequitable having regard to the circumstance and evidence in this case.

 

Additional grounds of appal shall be filed upon the receipt of the record of appeal.

 

The following additional grounds of appeal were filed pursuant to leave:

 

The procedure adopted by the learned trial judge was wrong particularly having regard to the fact that the court had on 16/04/07 set out the issues in the application for directions as issues for trial in the case.

 

The learned trial judge erred when he failed to give the parties the opportunity to be heard and thereby breached the fundamental principle of audi auterem partem Rule and this has occasioned substantial miscarriage of justice to the Defendant/Appellant.

 

The learned trial judge erred when he failed to seek the consent of the parties in embarking on the procedure he adopted.

 

The finding of fact by the learned trial judge was not supported by any evidence on record.

 

In his arguments, counsel pointed out that issues for trial had been settled and the case set down for hearing when the learned judge took over the case. He submitted that the settled issues required the resolution of facts and therefore the court was duty bound to take evidence on the matters in controversy.

 

There was also the preliminary legal issue of whether the action was maintainable or the Plaintiff/Respondent was estopped from commencing another action for the execution of the orders of the Gyaesayor judgment. He submitted that all of these issues had been swept aside in the court’s appointment of the surveyor and direction to parties to take different sides of the property in issue. He argued that this decision on appeal is final and yet had failed to resolve the crucial issues of the legality of the action.

 

He drew attention to decisions in cases such as Owusu v Tabiri and Another 1987-88 1 GLR 287 which held that ‘where a trial court failed to evaluate the evidence adduced before it and further failed to resolve the facts in issue…then the decision or ruling ….would be set aside.’

 

He also cited Quaye v Mariamu 1961 GLR 93 where the Supreme Court held that ‘1. It is the duty of the trial judge to resolve the primary facts and having done so to state his findings and apply the law;

 

2. In the absence of such findings of fact, …there should be a retrial.’

 

He decried a failure of the court to hear the parties and said the court breached the audi alterem partem fundamental rule of natural justice.

 

Respondent counsel filed no submissions. After considering all these arguments, my opening observation that this appeal has no merit derives from two factors. First the decision on appeal was obviously an interlocutory decision and did not pretend to resolve the entire case between the parties. Whether it was sound in law because of the facts of the case, the issues set down for trial, the proper context of the judgment it was premised on, or the procedure used by the court or not, cannot be evaluated by this court because of the second factor. And the second factor is that being an interlocutory decision, the appeal against it should have been commenced within 21 days of the decision.

 

Rule 9 (1) (a) of the Court of Appeal Rules 1997 CI 19 reads:

 

Time limits for appealing

 

Subject to any other enactment governing appeals, an appeal shall not be brought after the expiration of:

a. Twenty-one days, in the case of an appeal against an interlocutory decision.

 

While the decision is dated 18th May 2015, the appeal was filed on 9th June 2015. This was 22 days after the decision. Because the appeal was filed out of time, this court cannot at all countenance the appeal. Thus it is dismissed. And perhaps this is best for all the parties. They are ordered to go back to the Sunyani High Court to continue from where the court left off – adjourning the suit.

 

I trust that since the Appellant is of the opinion that the court ought to have heard the parties before issuing its 18th May, 2015 directions, and this constituted a breach of the rules of natural justice, he can bring this alleged error to the attention of the court when they return, because it is trite law that any order arising out of a process which breached the rules of natural justice is void ab initio. In this court, our jurisdiction has not been properly invoked and the appeal is dismissed as having been filed out of time. Cost of GH¢1,500.00 in favour of the Respondent.