OFOE,J.A:

This is an appeal emanating from a judgment of the District Court, Amasaman, which was reversed on appeal by the High Court. Dissatisfied with the reversal the plaintiff/appellant is in this court with complains he has identified in his grounds of appeal.

In this opinion the appellant will be referred to as the plaintiff and the respondents the defendants.

The plaintiff’s case is that he bought a 100ft by 70ft plot of land from the Ga, Gbese Korle Stool in 1995. He tendered exhibit A as evidence of this purchase. It turned out from the information given him at the Lands Commission that the land was already registered in the 1st defendant’s name. He therefore met and negotiated with the 1st defendant who was ready to sell the land to him at an amount of GH¢370. As evidence of payment of this amount the plaintiff tendered exhibits C, C1 and C2. His earlier purchase from the Ga Gbese Korle Stool was for GH¢350. After purchasing the land from the 1st defendant he never had peace because he was confronted incessantly on the plot by the 2nd defendant who happened to be the brother of the 1st defendant. He had to pay again GH¢1600.00 to the 2nd defendant. Peace still eluded him he had to report to the Judicial Committee of the Amasaman District Assembly where he was given the authority to continue with his structure. That he attended this Assembly was not disputed. Indeed a staff of the Assembly testified to this fact and the decision of the Assembly after deliberations. Presently he is in occupation of part of his building which is at lintel level.

The defendants do not deny these payments to them for the purpose of selling the land to the plaintiff. Their source of disagreement with the plaintiff is that the sale price of the land was GH¢15,000 and all the payments mentioned by the plaintiff were part payment of this amount. They contend that it is rather the plaintiff who is refusing to pay the balance on the amount.

On reading of the record of appeal the most crucial issue that the trial magistrate was call upon to determine was whether the plaintiff repurchased the disputed land from the 1st defendant at GHC370.00? The trial magistrate in a reasoned judgment found for the plaintiff that he purchased the land from the 1st defendant and paid GH¢370.00 for it. 1st defendant’s contention that this amount of GH¢370.00 was not payment for the land but gifts the plaintiff gave to his children anytime the plaintiff visited his house, the trial magistrate had no difficulty dismissing as untruthful. Untruthful because she found it unusual for gifts to children to be covered with receipts. She consequently rejected the contention of the defendants that the agreement for the plot was GH¢15,000.

There is uncontroverted evidence that the plaintiff paid GH¢1,600 to the 2nd defendant. This amount which was not evidenced by any receipt, according to the plaintiff was paid to the 2nd defendant because 2nd defendant kept threatening him anytime he went unto the land. On one occasion the 2nd defendant even chased him and a Land Title Registry staff, who was to do official work, off the land. The 2nd defendant does not deny this payment to him. He contended that the GH¢1,600 was part payment of the GH¢15,000 which was the price they agreed to resell the land to the plaintiff. The trial magistrate concluded that these payments totaling GH¢1,600 was extorted from the plaintiff and not part of the purchase price of the land. And that the plaintiff had to pay this amount to have peaceful occupation of the land. She argued that if indeed the payment was for the land, receipts would have been issued as was done with even the smaller amount of GH¢370. The land indisputably was for the 1st defendant and if there was going to be any payment for the land, it would have been made to the 1st defendant and not the 2nd defendant, she concluded. There was this date 2009 which the defendants claim was the date they sold the land to the plaintiff at the alleged agreed amount of GH¢15,000. According to them it was in 2009 when plaintiff made part payment of GH¢1,600 that he was permitted unto the land to put up his two rooms. There was evidence however that when the subcommittee of the Assembly visited the land in 2001 there was already an uncompleted house on the land. The trial magistrate therefore rejected the evidence of the defendants that they allowed the plaintiff unto the land in 2009 after he had made part payment of GH¢1,600.

In conclusion she found that the plaintiff had proved his case on the balance of probabilities and therefore entitled to his claim. She consequently dismissed the counterclaim of the defendants. Defendants appealed to the High Court.

The High Court judge did not find the trial magistrates judgment supported by the evidence. His first disagreement with the trial magistrate was her failure to dismiss the plaintiff’s case based on his own pleadings file before the court. It is worth quoting what the appellate judge said:

“Since the plaintiff’s pleading is that he did not agree to buy the land from the 1st defendant he cannot depart from his pleadings and now lead evidence that the land was sold to him for GH¢350.00 since this is a departure from his pleadings. Even though this was a District Court case, the parties filed statement of claim, statement of defence and a reply. Since it was the defendants who pleaded a sale which pleading had been denied by the plaintiff, the defendants were under an obligation to prove a sale of part of the land to the plaintiff, and for the plaintiff to lead evidence that no sale took place between him and the defendants, and that he acquired the land from the Ga, Gbese Korle priest.

Since the plaintiff himself had now abandoned his pleading and admitted that he bought the land from the defendants, whereas the defendants had pleaded and led evidence that they only sold part of the land measuring 100 feet by 70 feet to the plaintiff, the magistrate should have rejected the plaintiff’s evidence of sale as being contrary to his pleadings and dismissed his claim”.

After quoting the cases of Dzainsu and Others vrs Ghana Breweries Ltd(2007-2008)SCGLR 539, Mann vrs Nsiah(2005-2006) SCGLR 25, Bisi vrs Tabiri alias Asare (1984-86)2 GLR 282 and Dam vrs Ado(1962)2 GLR 200 all concerning pleadings he continued:

“In this case since the plaintiff did not mention any purchase, and even denied the defendants pleadings that they sold part of the land to the plaintiff at an agreed price, the plaintiff had no business to lead evidence on a sale of the land to him”.

The other consideration which led to the High Court judge setting aside the judgment of the trial magistrate was on the payment of the GHC370 to the 1st defendant. It will be better we listen to the High Court judge:

“Again even on the purchase price, the plaintiff pleaded that he paid GH¢370 to the 1st defendant and GHC1,660 to defendants respectively to buy his peace. When the plaintiff led evidence at page 43 of the record of proceedings, he said he paid GH¢370 as the price for the land and another GH¢1,600 for which no receipt was issued.

Even though the plaintiff says he was not issued with a receipt, he tendered exhibits C,C1 and C2. Exhibt C2 is dated 2nd February 2001 and it is said one million two hundred (ie GH¢120.00) payment for hiring of carterpillar.

Exhibit C is monies received from August 1997 to October 2000 and its GH¢200. Exhibit C1 the date is not clear, but it says C500,000 and its part payment for a piece of land. GH¢ 200.00 plus GH¢50 totals GH¢250. This is less than the pleaded GH¢370 and the evidence of the plaintiff that he paid GH¢370 is not supported by the evidence.”

Still believing that by the plaintiff’s pleadings he denied any sale to him by the defendants the judge found this denial corroborative of the defendants case that they sold the land to the plaintiff at GH¢15,000. He said

“Since the plaintiff denied the sale in his pleading but has now admitted the a sale of the land, I consider the plaintiff’s evidence on the sale as a corroboration of the defendants’ case. I also accept the defendant’s case that the contract price was GH¢15,000. Since plaintiff says he has paid GH¢1,970, I will accept same and deduct this from the contract price of GH¢15,000 which leaves a balance of GH¢13,030. I have reached this conclusion because if the land was to be for GH¢370 as claimed by the plaintiff, he would not have paid GH¢1,970”.

The plaintiff/appellant is aggrieved at the High Court’s judgment and is seeking its reversal and restoration of that of the trial District Court. The grounds of appeal are quoted as follows:

“a. The judgment is against the weight of evidence adduced at the trial court.

b. The appellate court erred in not considering the time the negotiations took place ie in 1996

c. The appellate court failed to take judicial notice of the fact that in 1996 no one sold a plot of land in the Dome area for GHC15,000(ie one hundred and fifty million cedis)

d. The court therefore erred in asking the appellant to pay the sum of GH¢12,970 with interest”.

I propose to dispose of all these grounds under the first ground of appeal, the judgment is against the weight of evidence adduced at the trial since in my view all the grounds in effect are complaining about the assessment of the evidence put before the magistrate court. I must emphasize that in an appeal we are deemed to be doing a hearing. And this demands that we study the entire records to determine whether the is evidence supporting the conclusion reached by the appellate High Court judge, in this case whether there is sufficient reason on the record justifying the judge interfering with the decision of the trial magistrate. Refer to the case of Osei vrs Korang(2013-2014)SCGLR221.

In the appeal which came before the trial judge he was to also to examine the records and convince himself that the trial magistrate erred in giving judgment to the plaintiff noting what the authorities say in respect of findings of fact made by a trial court. Here am referring to cases like Ntiri vrs Essien(2001-2002)SCGLR451, Koglex Ltd No 2 vrs Field(2000)SCGLR175, Agbeshie vrs Amorkor and another(2009)594 at 601. These authorities forbid interference with preliminary findings of fact made by a trial court unless the findings starkly have no support of the evidence on record.

I will examine the issue of pleadings which the trial court believed hopelessly destroyed the case of the plaintiff and for which reason he found the trial magistrate wrong in giving success to the plaintiff. His understanding of the pleadings of the parties was that the plaintiff pleaded that he did not agree to buy the land from the 1st defendant. If he has so pleaded then he had no business giving evidence inconsistent with these pleadings. In his evidence to the court, according to the Judge, he did testify to the contrary and for that reason he should lose the case.

Unfortunately the first appellate court ie the High Court did not mention the paragraphs in the pleadings where the plaintiff stated he “did not agree to buy the land from the 1st defendant”.

But flipping through the few pages of what the judge referred to as the pleadings what I chanced upon is paragraph 9 of the reply of the plaintiff which was a reply to paragraph 8 of the defendants’ defence. For sake of clarity I will quote these paragraphs. Paragraph 8 of the defence provided:

“8. The defendants say further that the portion of the land that they sold to a third party does not include the portion that they agreed to sell to the plaintiff”.

Plaintiff’s paragraph 9 in reply stated

“That in response to paragraph 8 of the defence, the plaintiff avers that defendants had never sold any land to plaintiff”.

Probably it is from these quoted pleadings that the trial judge derived his conclusion that the plaintiff has pleaded he did not agree to buy the land from the defendants. But then it was necessary to read the processes the parties filed in total to get their import. For there is also paragraph 11 of the statement of claim which provides

“11. That on two separate occasions 1st and 2nd defendants received from plaintiff GHC370 and GH1660 respectively promising not to disturb plaintiff on the land again”.

What effect should this paragraph 11 have on the entire understanding of the “pleadings” when read within the whole evidence put before the court? I will come back to this question.

It is important to underline the fact that this case was filed and determined at the District Court. The District Court has its own rules of procedure and therefore our first move will be to resort to these rules and find out what they dictate as regards to presentation of suits before district courts. The rules applicable at the time this suit was instituted in 2011 was the District Court Rules 2009, C.I 59. I will however quote its predecessor rule, Cap 4 Order 25, to begin with for a better appreciation of the current rule. It provides:

“Suits shall be heard and determined in a summary manner without pleadings: but where it appears to the court (for reasons to be recorded in the minutes) that the nature and circumstances of any case render it expedient in the interest of justice to do so, the court may order the plaintiff to file a written statement of his claim (called a petition) and may likewise order the defendant to file a written answer or statement of his defence. The filing of a petition shall not necessarily involve, unless the court so directs, that an answer shall also be filed. The order shall be made at any stage of a suit, either before or at the hearing.”

This Order 25 does not present any interpretation problem.

The current rules C.I 59 provides in Order 18 as follows:

“1(1) An action shall ordinarily be heard and determined in a summary manner without written statements but where it appears to the court(for reasons to be recorded in the minutes) that the nature and circumstances of a case make it expedient in the interest of justice to have written statements the court may order

a. The plaintiff to file a written statement of claim and

b. The defendant to file a written answer or statement of defence

2. The order to file a written statement may be made at any stage of an action, either before or during the hearing.

3. Despite subrule 1, written statements shall be filed in cases of

a. probate and administration

b. matrimonial cause

c. defamation

d. adoption and

e. negligence”.

It appears clear on reading the foregoing Order 18 rule 1 and 2 that the word pleadings was not used as in its counterpart repealed rule quoted earlier. Additionally also pleadings or statements are not required as a matter of procedural law unless the court directs otherwise. Under these rules until the court directs that statements be filed the suit shall be heard in a summary manner without written statements. The law maker has reasons why pleadings and written statements are such regulated. It needs noting that where the court directs written statements to be filed, it is enjoined to record the reasons for the order. It appears to me that it is not the expectation of the law maker that parties on their own choose to file, what the first appellate court described as pleadings and impose them on the court. The court not having ordered filing of statements in terms of these rules, or pleadings, as the appellate Judge preferred to call them, it was entitled to proceed in a summary manner no matter what the parties have filed before it. As earlier quoted in this judgment the rules permit the court to order filing of statements anytime within the trial. When the lawyers joined the suit to represent their respective clients they did not apply for any such order. I am of the respective view that the appellate High Court’s resort to the rules on pleadings as one of the reasons, in fact the major reason, to set aside the trial magistrates judgment is erroneous. The trial magistrate was therefore not bound to the rules of pleadings as the trial court sought to portray.

There is more to be said about this invocation of the principles of “pleadings” by the judge. I will here again quote paragraph 11 of the statement claim, paragraph 8 of the defence and paragraph 9 of plaintiff’s reply to make my next point on this pleadings issue.

“11. That on two separate occasions 1st and 2nd defendants received from plaintiff GHC370 and GH¢1,660 respectively promising not to disturb plaintiff on the land again”.

Paragraph 8 of the defence provided:

“8. The defendants say further that the portion of the land that they sold to a third party does not include the portion that they agreed to sell to the plaintiff”.

Plaintiff’s paragraph 9 in reply stated:

“That in response to paragraph 8 of the defence, the plaintiff avers that defendants had never sold any land to plaintiff”.

The defendants are saying that they agreed to sell a portion of their land to the plaintiff. Plaintiff is saying that defendants have not sold any land to him. At the same time he is saying that he paid GH¢370 and GH¢1,660 to the defendants for him to have his peace. There is definitely some explanation to be given by the plaintiff what he meant by the defendants have not sold any land to him and at the same time saying he paid these monies to them.The explanation could be got from the evidence led before the court. For the trial judge to ignore the explanation and simply hold the plaintiff to his statement that the defendants have not sold any land to him and for which reason he should lose the case is a little startling, to say the least. The so called pleadings are processes filed by laymen, most likely with the assistance of other laymen. Such being the case it cannot be an unusual occurrence to have inaccuracies and misstatements in such processes filed before the courts which can be clarified only through evidence. Not only will I maintain that in district courts we should look for the substance of the matters put before the court always as guide to the trial instead of the form but I will also mention that even where pleadings are guiding a trial we should note that the current attitude of the courts, particularly in areas of procedure, is now looking for the substance and not the form with the purpose of achieving substantial justice. Refer to the case of Oklika vrs Amuzu(1998-1999)SCGLR144, In re Okine(2003-2004)SCGLR611. In the Ghana Consolidated Diamonds Ltd vrs Tantuo(2003-2004)2 SCGLR1144 the court was clear in its statement that in ascertaining the nature of a claim, a court looks at the substance of the claim and not the form in which it has been cast.

In this case the plaintiff testified and clearly that he bought land from the defendants. This was not denied by the defendants. What they are contending with the plaintiff is the price. For the trial judge to resort to technical application of pleadings to rather challenge what the parties are not disputing to determine the case, it is my respectful view, difficult to accept even if we are to accept that the trial was on pleadings.

The trial judge also stated that the plaintiff in his evidence said that he was not issued with a receipt when he bought the land. It appears to me the trial judge, with due respect misread the evidence. Nowhere did the plaintiff say he was not issued a receipt for the payment of GH¢ 370.00. A t page 32 of the record of appeal the plaintiff is recorded as having said:

“When I started the building defendants confronted me to stop work. They said the land was theirs. I went to the Lands Department to conduct a search and I found Mr. Ashitei’s name there. I have ever paid monies to 1st defendant. When I saw his name there that was why I paid monies to him. He asked me to pay the monies to him as payment for the land. He said he was selling the land to me at GHC370. I originally bought the land at GHC350 from the chiefs. I have receipts. TENDERED AND MARKED EXHIBIT C,C1 AND C2”.

We have clear evidence contradicting the trial judge’s statement that the plaintiff said he was not issued with a receipt when he paid the monies. The evidence that he was not given a receipt, which was admitted by the 2nd defendant, was in relation to the GH¢1,600 paid by the plaintiff to the 2nd defendant.

One other reason the judge had for setting aside the trial magistrates judgment was the totals he got after adding the payments receipted in exhibit C, C1 and C2. Exhibit C was for ¢2,000,000.(GH¢200). Exhibit C1 was for ¢500,000(GH¢50) and exhibit C2 was for ¢1,200,000(GH¢120). What he did was to exclude the amount of ¢1,200,000( GH¢120) from the total payments made for the land because, according to him, that payment was recorded for caterpillar hire and not for purchase of land. It is by this exclusion he came to a total of GH¢250. He then concluded that since the total payment did not amount to GH¢370 the plaintiff failed to establish even the purchase price he was contending. But a careful reading of the plaintiff’s evidence will reveal that he explained in cross examination that he paid C 1,200,000(GH¢120) to the plaintiff as part of the purchase price which the 1st defendant said was going to be used for hiring a tractor to clear a road. He was asked:

“Q. It is written that payment from David Asare Amoah being GH¢1,200 being payment hiring of caterpillar to open up the road. Is it payment for land?

A. Yes. It was paid in the presence of my nephew and a mason.. I paid the money to him but he claimed he was using it to hire a caterpillar and I said I don’t care all I know is that I have paid money to him. I gave 2nd defendant GHC1600 but he refused to give me a receipt. This shows he wanted to defraud me” .

What the plaintiff is saying here is that he paid the money meant for the land but the defendant said he would be using it for hiring caterpillar, something the plaintiff told him he did not care about.

The trial magistrate after assessing the evidence accepted that the payment of GHC120, even though was receipted as for hiring caterpillar, was further payment for the land. Being a finding of fact, as earlier mentioned, the authorities are clear in principle under what circumstances such findings can be interfered with. It is the trial court who saw the witnesses as they testified and has the sole responsibility, using that advantage, to come to acceptable findings. It is his duty to assess the evidence before him and make the appropriate findings. That the payment was for the land as found by the trial magistrate has the support in the record of appeal. The trial high court judge gave no reason why he disagreed with this finding of the trial magistrate and was therefore not permitted to reverse this finding in so far as the finding has the support from the evidence led before the trial magistrate. Further his calculations he made of the total payments made to the 1st defendant short of this GH¢120 has no basis in the evidence.

The appellate judge concluded further that the defendants case was more acceptable also because of the same admission he claims the plaintiff made that the defendant has not sold any land to him. I have already addressed this thought of the High Court in my consideration of his resort to pleadings.

It is my view that the evidence as found by the trial judge supports a finding that the plaintiff bought 70feet by 100 feet land from the 1st defendant and paid a total agreed price of GH¢370. He had to pay GHC1600 to the 2nd defendant brother of the 1st defendant to enable him peacefully stay on the purchased land. With these findings the trial magistrates conclusion declaring title in the plaintiff was in order. They are findings supportable on the evidence. Granting plaintiff recovery of possession of the land and an injunction restraining the defendants, their agents, assigns, workmen from interfering with this land and the plaintiff’s enjoyment thereof is confirmed by this court. The appeal succeeds in its entirety. The judgment of High Court is set aside the District Magistrates Court is hereby restored.

(sgd.)

VICTOR OFOE

JUSTICE OF APPEAL

(sgd.)

KORBIEH,J.A                        I agree                     F.G.KORBIEH

(sgd.)

MENSAH,J.A                        I also agree                 L.L. MENSAH

JUSTICE OF APPEAL