IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KOFORIDUA - A.D 2018
ASONAHENE KWASI MANYEH - (Defendant/Appellant)
MR JONAS FRANK AKO-LARBI - (Plaintiff/Respondent]
DATE: 27 TH NOVEMBER, 2018
SUIT NO: H1/08/2017
JUDGES: K. A. ACQUAYE JA (PRESIDING), SAEED K. GYAN JA, MRS. M. AGYEMANG JA
MS. JUSTINA TITI DONKOR FOR THE PLAINTIFF/RESPONDENT
MR. MARTIN AMOYAW FOR THE DEFENDANT/APPELLANT
SAEED K GYAN, JA
In a way, this appeal seems to me to be quaintly reminiscent of the narrative contained in 1Kings 3; 16-28. Every conscientious Bible student or avid reader of the Good Book must be familiar with the classical case of the two women contending over one dead child and a living one, which came before wise King Solomon. Each of the mothers, naturally, fought for the living child as their own. King Solomon ordered:
“ Cut the baby in half!
That way each of you
Can have part of him”
(see page 287 of The POVERTY & JUSTICE BIBLE).
The rest of the story, as is often said, is history.
In the instant case, the Defendant/Appellant had appealed against the judgment of the Akropong Akwapim Circuit Court, dated 25th August 2011, on the sole ground that the decision of the Court was against the weight of the evidence and sought an order of this Court setting aside the aforesaid judgment of the Trial Tribunal.
Ultimately, however, Learned Counsel for the Defendant/Appellant, in his written submission, prayed that this Court of Appeal should set aside the judgment of the trial Court and order a rehearing of the case altogether.
This case was initiated in 1993. The original Plaintiff, Jonas Frank Ako-Larbi died and was substituted by Kwame Offei-Gyebi, who having also died was substituted by Samuel Larbi.
Remarkably, the original Defendant, Asonahene Kwesi Manyeh similarly died and was substituted by Godfred Addo Manyeh, who also having died was substituted by Bruce Manyeh Koranteng.
As was to be expected, the case, from 1993, went through the hands of a number of judges before judgment was eventually delivered by Ernest Obempeh, J as Additional Circuit Court Judge in August 2011.
The Plaintiff/Respondent (hereafter referred to simply as Plaintiff or Respondent) commenced the suit by a Writ of Summons backed by an 11-paragraph statement of claim seeking a declaration of title to a piece or parcel of land located at Abiriw Akwapem; recovery of possession of the said land; perpetual injunction; damages for trespass and damages for conversion.
The Defendant in response filed an 18-paragraph statement of defence together with a counter-claim praying for the “enforcement of arbitration award against the Plaintiff” as well as “general damages”.
It was the case of the Plaintiff that his property, which is the land in dispute, shares boundary with the property of the Defendant, among other boundary features. He averred that he acquired the land from the Abiriw stool in 1959 and at all times material had been in possession, having partly constructed a residential facility on the land after duly registering his land and obtaining a building permit from the relevant authority.
On his part, the Defendant contended that the land in dispute was part of a larger land he obtained by way of customary gift from one Opanyin Yaw Henaku, Chief Priest of Bosompra shrine as far back as 1937 which was confirmed by a deed of gift in 1957; that he built a dwelling house on part of the land; that in 1957 the Plaintiff started construction on a portion of his said land which project was stopped in 1961/62 following a complaint he lodged with the Abiriwhene. According to the Defendant, the Committee for the Defence of the Revolution (CDR) heard the case involving the land in dispute upon arbitration and found for him, and consequently, warned the Plaintiff against entering the said land. The Defendant maintained that the Plaintiff was bound by the award of the CDR.
The case went through a full trial and the Learned judge, upon a considered judgment, found for the Plaintiff and entered judgment in respect of the Plaintiff’s claims for declaration of title to the disputed land, recovery of possession and perpetual Injunction. The Court, however, dismissed the Plaintiff’s claims for damages for trespass and conversion. The Defendant’s case was rejected and his counter-claim dismissed as being without merit. The Court awarded cost of Gh¢1,000 against the Defendant and in favour of the Plaintiff.
It is against this judgment, delivered on 25/8/2011, that the Defendant, being aggrieved and dissatisfied with the same, mounted the instant appeal by filing a notice of appeal on 15/9/2011, relying on the omnibus ground of appeal, namely, that the judgment was against the weight of evidence, together with the customary indication that additional grounds would be filed upon receipt of the record of appeal.
No further or additional grounds of appeal were filed.
In arguing the appeal, however, Learned Counsel for the Defendant/Appellant, in the written submission filed on 10/11/2017, went out of his way to raise very fundamental complaints and issues relating to the capacity of the Plaintiff, the validity of the Power of Attorney donated by the Plaintiff as well as the propriety of the order of substitution made by the Court, upon the Plaintiff’s death, all of which factors together rendered “the whole proceedings” of the Court below “flawed”, according to Appellant’s Counsel.
Consequently, Counsel for the Appellant called for the setting aside of the impugned judgment and a further order of this court compelling the trial Court to re-hear the case, by way of a re-trial.
Not surprisingly, Learned Counsel for the Plaintiff/Respondent in her written submission filed on 30/11/2017, descended heavily on Appellant Counsel’s excursion into the slippery and forbidden legal/Appellate territory alluded to earlier on.
According to Counsel for the Plaintiff/Respondent, Rule 8 of the Court of Appeal Rules, C.I. 19 “provides for the mode of filing appeals”; that under the rules, grounds of appeal alleging error in law are not permitted unless specifically set out, and for that reason Appellant could not, in the circumstances of the instant appeal, now raise issues of law touching on the validity of the Power of Attorney tendered at the trial without objection. Counsel referred to the Supreme Court case of: DAHABIEH VRS. S. A. TURQUIS and BROS (2001-2002) SCGLR 500.
Counsel for the Respondent further delivered herself in the manner as follows;
“ ……………. The Appellant cannot argue or be heard in support of the issue of law which is not mentioned in the Ground of Appeal. Appellants prayer to order a re-trial of the suit initiated in 1993 in which all necessary parties are dead will lead to an absurdity.
Appellant’s appeal should therefore be limited to the sole ground set out by the Appellants”.
We think there is merit and substance in this issue or preliminary legal objection and compliant raised by Learned Counsel for the Plaintiff/Respondent herein.
It cannot be stressed often enough that the appeal process is strictly regulated by statute, and further that the law is trite that there is no inherent right of appeal in a litigant.
See: FRIMPONG AND ANOR VS. NYARKO (1998-99) SCGLR 734; ZABRAMA V. SEGBEDZI (1991) 2 GLR 221.
The Court of Appeal Rules, 1997 (C.I.19) specifically prescribe the mode and manner in which grounds of appeal must be formulated and set out in a notice of Appeal. See; Rule 8 sub-rules 4-8 of C.I.19.
In respect of the particular preliminary complaint raised above, attention may especially be drawn to
Rule 8(8) of C.I.19 which provides as follows:
“ (8) The appellant shall not without the leave of the Court, argue or be heard in support of a ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal on the terms that the Court thinks just”.
It is worth noting that the Defendant/Appellant herein did not take advantage of the window of opportunity afforded by rule 8(8) of C.I. 19 to duly seek leave of this Court to amend the grounds of appeal as required by law.
Akamba, JSC pointedly underscored the importance of complying with the appropriate rules of Court as follows:
“ As Courts by law we administer justice according to law and equity which are strictly guided by laid down rules fashioned out over the centuries to guide our conduct. In AYIKAI VS. OKAIDJA III (2011) SCGLR 205 this Court did stress the fact that non-compliance with the rules of Court have very fatal consequences……”
See: F.K.A CO. LTD AND ANOR VS. NII AYIKAI AKRAMAH II AND 4 ORS (2016) 101 GMJ 186
In the above mentioned case, the Supreme Court proceeded to strike out all but one of the 17 grounds of appeal filed in the case as falling foul of the Supreme Court Rules.
In the instant appeal, the attempt, through the back-door, by Learned Counsel for the Defendant/Appellant herein to draw this Court into considering and determining the specific legal complaints or objections alluded to above and touching on questions of capacity, alleged improper substitution, as well as invalid Power of Attorney, which were matters not raised at the Court below during the trial and which, furthermore, did not form part of the grounds of appeal urged in this case, but which were just raised by way of arguments or submissions contained in Learned counsel’s written submissions, without the leave of this Court, duly sought and obtained, can only clearly suffer rejection and, consequently, be discounted by this Court in this appeal. They are inappropriate and inadmissible at this stage of the appellate process.
I feel further fortified in my conclusion, in this regard, by the authority of the Supreme Court contained in the case of IN RE AWERE-KYERE (DECD); AWERE-KYERE V FOSTER AND ANOTHER (2003-2004) SCGLR 1050 where the Court held as follows in the head notes at page 1052:
“ (2) An appellate Court should not allow to be raised before it a point which had not been raised in the Court below except in the most exceptional circumstances. In the instant case, the appellant’s contention about the need to have resorted to citation procedure would be rejected because there had been no ground of appeal filed covering the citation point specifically”.
In this respect, no exceptional circumstance was drawn to this Court’s attention in the instant appeal.
The ground of appeal which may appropriately or properly be countenanced in this appeal, then, is the omnibus ground, to the effect that the judgment is against the weight of evidence.
Of course, this is without prejudice to the general legal proposition, which now finds statutory support in rule 8(1) of C.I.19 that an appeal to the Court of Appeal shall be by way of rehearing. This means that this Court is by law enjoined to examine and to consider the entire record to arrive at a just and proper determination of the matter before it.
Additionally, Rule 8(9) of C.I.19 empowers this Court, in deciding the appeal, not to confine itself to the grounds set out by the appellant; except that the Court “shall not rest its decision on a ground not set out by the appellant unless the respondent has had sufficient opportunity of contesting the case on that ground”.
As duly noted earlier on in this judgment, the only ground of appeal admissible and which may consequently be entertained or considered in the instant appeal is the omnibus ground that the judgment is against the weight of evidence.
The duty of the appellate Court in such a case and the obligation of the appellant in such a situation have been discussed in many judgments of the Supreme Court and other superior Courts, but the principles still bear adverting to.
In such a case, it is incumbent upon the appellate Court, in a civil matter, to consider and analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial so as to satisfy itself, in arriving at its decision, that, on the balance of probabilities, the conclusions of the trial judge as well as the facts found by the Court below are amply or reasonably supported by the admissible evidence on record.
See: TUAKWA VS. BOSOM (2001-2002) SCGLR 61.
In this connection the appellate Court is placed in the same position as the trial Court, regarding the evidence led, to evaluate the said evidence and to come to its own conclusions in support of or against the findings and conclusions of the impugned judgment.
Ref: OPPONG KOFI AND ORS VS. ATTIBRUKUSU III (2011) 1 SCGLR 176;
BENJANIN NII AYI ARYEE VS. MINERAL COMMISSION AND ANOR (2018) 118 GMJ 224 (CA) per Agyemang (Mrs.) JA
The appellate Court should determine whether or not the correct inferences were drawn and whether the conclusions arrived at by the trial judge were supportable by the evidence on record.
The duty imposed on an appellant in such a case is captured by Kwofie, JA in SAMUEL GBADAGO VS. ALHAJI BABA MOHAMMED AND ORS (2018) 11 AMJ thus:
“ the law is settled that where an appellant complains that a judgment is against the weight of evidence, he is complaining that there were certain pieces of evidence, on record which if applied in his favour, could have changed the decision in his favour or certain pieces of evidence have been wrongly applied against him. The onus is therefore on such an appellant to clearly and properly demonstrate to the appellate court lapses in the judgment being appealed against. See: the case of DJIN VS. MUSA BAAKO (2007-2008) SCGLR 686”
It must be stressed that when faced with findings of fact made by a trial Court, especially where the said Court had the opportunity of witnessing the demeanour of witnesses, an appellate Court ought to be slow in deciding to reverse the conclusions of the trial Court.
Thus, in BONNEY VS BONNEY (1992-93) GBR 779 at page 787 Aikins, JSC declared as follows:
“ …….. the appeal Court should not under any circumstances, interfere with the findings of fact by a trial judge except where they are clearly shown to be wrong, or that he did not take all the circumstances and evidence into account, or has misapplied certain of the evidence, or has drawn wrong inferences without any evidence to support them or he has not taken proper advantage of his having seen or heard the witnesses”.
See also: PRAKA VS. KETEWA (1964) GLR 423
It is obvious that, as against the trial Court, an appellate tribunal has a decided comparative disadvantage in the sense that, except where it does take fresh evidence in exceptional circumstances, that Court has to make its determination based on the cold print contained in the record of appeal, whereas the trial judge had the opportunity to normally hear the evidence directly from the available witnesses, being afforded thereby the chance to observe their demeanour and other conduct in the witness box.
Even a cursory examination of the record of appeal in the instant appeal would demonstrate that the fundamental matter raised for determination in the case essentially borders on issues of fact. In law, issues of fact are matters preponderantly in the domain of the trial judge to determine.
Ansah, JSC in accepting the position of the law as espoused by the Court of Appeal in the case of FOSUA AND ADU-POKU VS. ADU-POKU MENSAH (2009) SCGLR 310 delivered himself at page
331 as follows:
“ The generally accepted principle of law is that findings of fact made by a trial judge should not be disturbed unless they are perverse or not supported by the evidence or record.
In BRUCE VS. ATTORNEY GENERAL (1967) GLR 170, it was held, inter alia, that an appellate
Court should not disturb findings of fact made by a trial judge; but it was equally true that an appellate
Court was not precluded from doing so”.
Similar sentiments may be found in the following cases:
ABAKA NTA VS. ANGUAH BENNIEH (1939) 2 WACA 1: AGYARE VS, KWAKYE, 10 WACA 1; BISI VS. TABIRI alias ASARE (1984-86) GLR 282, PER ADADE, JSC, AGBESHIE AND ANOR VS. AMORKOR AND ANOR (2009) SCGLR 594 PER ANSAH JSC
It is of particular importance, in connection with the instant appeal, to take note of the position taken by the Supreme Court of Ghana when it held, as captured in the Headnote, in the case entitled; TAKORADI FLOUR MILLS VS. SAMIR FARIS (2005-2006) SCGLR 882 at page 883 as follows:
“ (3) A tribunal of fact can decide an issue on the evidence of only one party. A bare assertion on oath by a single witness might in the proper circumstance of a case be enough to form the basis of a judicial adjudication. The essential thing is that the witness is credible by the standards set in Section 80(2) of the Evidence Decree, 1975….. The adjudicator has the whole of the oral evidence of the party and the documents tendered in evidence, if any, before him to consider for his decision”.
To succeed in his appeal, therefore, the Appellant herein was expected to establish that, at the trial, he was able to adduce such credible, intelligent and quality evidence, which also had the character of certainty around it that the trial Court ought, ipso facto, to have been convinced that he, the appellant, had met the essential criteria for proving his case on the preponderance of the probability test. This is particularly critical seeing that the appellant was also a counter-claimant in the case at the trial Court.
Can it, be said, in the instant appeal, that the appellant had succeeded in showing or otherwise demonstrating that the impugned judgment was wrong, based on the ground of appeal he had set out, or even that, in the alternative, by virtue of Rule 8(9) of C.I.19 there are other grounds upon which this Court itself can properly rest its determination of the appeal before it?
I have examined the record of appeal in this case thoroughly and dispassionately. I have considered in detail the judgment of the trial Circuit Court in this matter. I have equally critically examined the arguments contained in the written submissions respectively filed by the Lawyers on behalf of the parties in the instant appeal before this Court.
It is my respectful view that the issues raised by the appellant and encapsulated in his ground of appeal and argued in the written submissions filed by Learned Counsel on behalf of the Appellant lack the necessary peg on which to hang on for success in this appeal.
To be taken seriously, I believe that those complaints or objections, raised by the Defendant/Appellant herein, must rest on a solid foundation, or be based on “credible, intelligent and quality evidence” (as declared in ASSIBEY VS. GBOMITTAH AND 2 ORS (2012) 47 GMJ 61), which I, regrettably, find lacking and absolutely wanting in the Defendant/Appellant’s case, as assessed and established by the decision of the trial Circuit Court in the instant matter.
It is my firm opinion that on the evidence on record and fairly assessing the impugned judgment in its totality, the findings and conclusions arrived at by the Learned trial Judge cannot be faulted.
In the peculiar circumstances of this case, as established by the record, I do not find it necessary to cite chapter and verse of the record with regard to where specific evidence may be found to support the position I have taken in this case. See; ATTITSOGBE VS. C.F.C. CONSTRUCTION CO. (WA) LTD AND READ (2005-2006) SCGLR 858 at page 878, per DATE-BAH, JSC.
I believe that, on the record, there is sufficient evidence and satisfactory grounds to justify the decision of the Learned trial Judge.
In particular, whereas the case of the Plaintiff/Respondent herein can properly be said to be supported by credible documents, the oral testimony proffered by the Defendant/Appellant herein at the trial lacked legal substance, weight and character to tilt the judgment of this Court in his favour and upset the judgment appealed against.
In the case of DUAH VS. YARKWA (1993-94) GLR 217 it was held that whenever there was in existence a written document and conflicting oral evidence, the practice of the Court was to lean favourably towards the documentary evidence, especially if it was authentic.
See: KWAME OFEI VS. MRS JANET DARKO AND ORS (2018) 118 GMJ 1; Mariama Owusu, JA, had this to say in the case of ALHAJI MAMUDU SALLEY AND ANOR VS. RASHID PEREGRINO BRIMAH AND ORS (2017) 105 GMJ 231 at page 259:
“The law is that documentary evidence should prevail over oral evidence. Thus where documents supported one party’s case as against the other, the Court should consider whether the latter party was truthful but with faulty recollection. In the words of Atugugba, JSC:
‘ Given the high evidential potency of documentary evidence, in the eyes of the law, the trial Judge should have given cogent reasons for doubting the veracity of Exhibit 2 being the undertaking given by the late Kwaku Poku’.
See the case of FOSUA AND ADU-POKU VS. ADU-POKU MENSAH (2009) SCGLR 310, 311 HOLDING (1)”
In the instant case, the fulcrum around which the Defendant/Appellants case essentially revolved was a supposed decision handed down by an amorphous entity described as the Committee for the Defence of the Revolution (CDR) during the heady revolutionary era of the PNDC regime.
The Defendant/Appellant had sought to rely on that purported determination as an arbitration award which was binding on the Plaintiff/Respondent herein. That contention was rightly, in my view, shot down by the Learned trial Judge.
The Appellant herein has not, in this appeal, satisfied us why the position of the trial Court in respect of the CDR and its alleged action was wrong in law or in fact and, consequently, why the findings of the Learned trial Judge in that connection ought to be rejected or set aside.
Indeed, it is obvious that Learned Counsel for the Defendant/Appellant was himself uncertain of the viability of the Defendant’s case were it to rely solely or essentially on the so-called intervention of the CDR in the matter, otherwise, he would not be urging this Court of Appeal to order a rehearing or retrial of the case.
The very expedient of seeking a retrial or rehearing of the case, where the Defendant/Appellant had filed and depended upon a Counter-Claim, highly undermines the potency of the Defendant/Appellant’s case before this Court.
In this appeal, no compelling or exceptional circumstances have been urged on us to justify an order for a retrial or rehearing of the case.
On the contrary, I believe that, on the record, there is sufficient evidence and satisfactory grounds to justify or otherwise sustain the judgment of the trial Court.
I have no hesitation, therefore, in generally accepting and adopting the assessment of the evidence as well as the findings of fact together with the analysis of the issues raised for determination of the Court by the Learned trial Judge in this case, as contained in the record of appeal.
I find and accept as essentially sound and valid the conclusions arrived at by the trial Court. Basically, I consider the judgment of the trial Circuit Court to have been generally well and satisfactorily written.
In conclusion, I wish to emphasise that the Appellant failed to demonstrate, from the record, any compelling or overwhelming reason or circumstance, as he was enjoined to do, why the relevant findings of fact made by the Learned trial Judge, in connection with this case, ought to be set aside. See WA NA, B.K. ADAMA (substituted by) ISSAH BUKARI AND ANOR VS. YAKUBU SEIDU (2005-2006) SCGLR 1088: per Holding 1 of the Headnotes.
Consequently, I do not accept that the judgment of the trial Circuit Court is against the weight of evidence led, having regard to all the material put before the lower Court for its consideration and the determination of the case. It is my view that where the Learned trial Judge had to exercise his discretion, he had generally done so satisfactorily and reasonably, and not perversely in the circumstances of the case.
In the event, I find no merit in the instant appeal and, accordingly, I hereby dismiss the same in its entirety.
It is my respectful opinion that the request, by Counsel for the Appellant, entreating this Court to order a retrial or rehearing of the case by the Court below is, with due respect, not well grounded or properly founded in law. That prayer is, therefore, rejected and discarded.
Therefore, the impugned judgment of the trial Circuit Court, Akropong-Akuapim, dated 25th August, 2011 is hereby endorsed and confirmed: and, as noted above, the appeal is, consequently, dismissed as being without merit or substance.
Cost of GH¢5000.00 against the Defendants/Appellants in favour of the Plaintiff/Respondent.
JUSTICE SAEED K. GYAN
(JUSTICE OF THE COURT OF APPEAL)
I AGREE ………………………
K. A. ACQUAYE
(JUSTICE OF THE COURT OF APPEAL)
I ALSO AGREE ………………….
MABEL AGYEMANG (MRS)
(JUSTICE OF THE COURT OF APPEAL)