IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
JOYCE BOADU ASAMOAH - (Plaintiff/Applicant/Respondent)
ALBERTA’S PALACE RESORT, DR. ROLAND EDWARD WESLEY, LINDA WESLEY-JOSEPH AND KWABENA JOSEPH
DATE: 23 RD MAY, 2018
CIVIL APPEAL NO: H1/7/2018
JUDGES: JUSTICE IRENE C. LARBI (MRS) J.A. (PRESIDING), JUSTICE L. L. MENSAH J.A., JUSTICE ANGELINA DOMAKYAAREH (MRS) J.A.
K. O. AMPONSAH-DADZIE FOR 1ST DEFENDANT/APPELLANT
CORNELIUS YAWSON FOR PLAINTIFF/RESPONDENT
LAWRENCE L. MENSAH, J.A.
This is an appeal launched by the 1st Defendant/Respondent/Appellant (who will be referred hereafter as 1st Defendant) against the ruling of the High Court, Cape Coast, dated the 18th of January 2017 in favour of the Plaintiff/Applicant/Respondent (who will be referred hereafter as the Plaintiff). The said ruling was delivered as a result of a motion on notice invoking the inherent jurisdiction of the High Court, Cape Coast for interpretation of the word “land” as used by Dorgu J in his judgment dated the 23rd day of December 2013 in favour of the Plaintiff. That judgment of Dorgu J is found at page 15-19 of the record of appeal.
The facts which gave rise to this appeal can be summarized as follows:- In or about the year 2000, the 2nd Defendant an African-American by name Dr. Roland Edward Wesley now deceased visited Ghana with the Plaintiff’s siblings. The 2nd Defendant was hosted by the Plaintiff and her husband.
In course of deliberations between the Plaintiff and the 2nd Defendant, the 2nd Defendant expressed his interest in investing in hospitality industry in Ghana. The Plaintiff and 2nd Defendant decided to partner each other to establish a hotel business. Pursuant to the said verbal agreement, the Plaintiff was tasked to look for a suitable land which land Plaintiff was able to locate at Ampenyi in the Komenda-Edina-Eguafo-Abrem District in the Central Region. The chief Nana Takyi Akyin IV in whose area the land was situate, sold same at Ten million cedis, now GH¢1,000.00. The Plaintiff and the 2nd Defendant contributed 50% each to pay for the said land. A purchase receipt evidencing the transaction was prepared in their joint names. A company was formed with the 2nd Defendant as the sole shareholder, and a facility was put up for the hotel business exclusively by the 2nd Defendant.
Though Plaintiff did not contribute financially to the establishment to the 1st Defendant company, she was in charge of the supervision of the construction of the hospitality facility, engagement of labour, and when the hotel was finally completed, she acted as the General Manager when same became operational.
Plaintiff was considered by the 2nd Defendant who was in the U.S.A. throughout as her partner. As a result, Plaintiff was made a Director alongside the 2nd Defendant. Later the 2nd Defendant gave Plaintiff a gift of 10% of the shares in the company. While the business seemed to be running well, the 4th Defendant who was a former driver of Plaintiff’s family and was married to 2nd Defendant’s daughter who is listed in the action at the court below as the 3rd Defendant, allegedly ganged up to send the Plaintiff parking from the business. Plaintiff who was aggrieved made a case that the 1st Defendant and 2nd Defendant were indebted to her in unpaid salary at US$2,500 per mensem for several years as the 2nd Defendant had promised to pay her, and having a share in the parcel of land on which stands the 1st Defendant company. Plaintiff therefore sued Defendants jointly and severally for the following reliefs on the 4th of October 2011:
(a) Declaration that Plaintiff and 2nd Defendant are jointly owners of all that piece or parcel of land situate, lying and being at Ampenyi in the Komenda-Edina-Egyafo-Abrem District of the Central Region (with detailed description of same).
(b) Declaration that Plaintiff is entitled to be bought out of her interest in all that parcel of land sufficiently described in paragraph (a) above at its current value.
(c) Recovery of her equal share or interest in all that parcel of land sufficiently described in paragraph (a) above on which 1st Defendant Company is lying and situate.
(d) Declaration that 1st and 2nd Defendants are jointly indebted to Plaintiff in the sum of US$312,500.00 being the total sum of monthly salary of US$2,500.00 due Plaintiff and same which has been in arrears since April 2001 to September 2011.
(e) Interest on the sum of US$312,500.00 from 1st and 2nd Defendants being the total sum of monthly salary of US$2,500.00 due Plaintiff and same which has been in arrears since April 2001.
(f) Interest on the said sum calculated at the prevailing commercial interest rate since April 2001 until date of judgment.
(g) Mesne profit
(h) Damages for breach of contract
(i) Costs occasioned by this suit.
The writ was accompanied with a 37 paragraph statement of claim.
Upon service of the writ and statement of claim on the Defendants, they resisted the action of Plaintiff. The Defendants contended that the Plaintiff had no partnership working relationship with the 1st Defendant Company. On the contrary, the Plaintiff was only a worker in the 1st Defendant Company. That the land on which the 1st Defendant Company sits and operates was solely acquired by the 2nd Defendant who paid the full cost of same, and single-handedly constructed the structures on the land. To the Defendants, the Plaintiff was merely holding the disputed land in trust for the 1st Defendant Company and was to have surrendered same after the incorporation. The Defendants said the Plaintiff not only refused to do same, but ran down the 1st Defendant Company. The Defendants dismissed the claims of the Plaintiff and counterclaimed for the following reliefs:
(a) A declaration that the Plaintiff is holding the said land on which the 1st Defendant is situate in trust for 1st Defendant and or 2nd Defendant.
(b) An order for Plaintiff to transfer her portion of the land to the 1st Defendant and or 2nd Defendant.
(c) An order of this court directed at the Plaintiff for the return of a KIA truck belonging to the 1st Defendant.
(d) An order to the Plaintiff to render accounts to all the operations of 1st Defendant.
(e) An order for the return of Air Conditioners unlawfully appropriated by Plaintiff from 1st Defendant.
After going through a full trial, Dorgu J aforementioned, delivered judgment in favour of the Plaintiff. The Plaintiff however failed to timeously appeal against the said judgment. It would appear that the said appeal was foreclosed by the flux of time.
It is to be mentioned here that this is not a substantive appeal against the full judgment of the court below delivered by Dorgu J on 23rd day of December 2013 Rather the High Court differently constituted was called upon to interpret the import and meaning of the word “land” in the said judgment. It is necessary to set out fully the reliefs of each of the Plaintiff and Defendants as isolated above, so as to put this instant appeal in its perspective.
What however ignited the instant appeal is a motion brought by the Plaintiff to the High Court pursuant to its inherent jurisdiction for interpretation of the word “land” as used by the learned trial Judge in his 23rd December 2013 judgment aforesaid.
The learned Judge who interpreted the word “land” by its inherent jurisdiction, decided that the word “land” as used in a portion of the judgment which define the positions of the parties after the trial, included the buildings and other structures on the land. Aggrieved, the 1st Defendant Company appealed to this Court.
Grounds of Appeal:
The following grounds of appeal are indicated for determination.
(1) That the learned Judge erred when he held that “land”, which in the judgment of the High Court dated 23rd day of December 2013 did not include Appellant’s buildings, includes the Appellant’s buildings.
(2) The learned Judge erred when he interpreted the word “land” in the judgment to include the buildings thereon without considering the context within which the judgment dated the 23rd day of December 2013 was delivered.
(3) The ruling is against the affidavit evidence which was deposed to by parties in support of and against the application for interpretation which clearly stated the facts of context of the use of the word “land” in the judgment dated the 23rd day of December 2013.
The first ground of the appeal tackled by the 1st Defendant’s counsel is ground one which is that:
The learned Judge erred when he held that “land”, which in the judgment of the High Court dated the 23rd day of December 2013 did not include Appellant’s buildings, include the Appellant’s buildings.
In his written submission on this ground of the appeal, the 1st Defendant’s counsel quoted the portion of the judgment of Dorgu J dated the 23rd day of December 2013 aforesaid, at page 19 paragraph 5 of the record of appeal. Given that this part of the judgment contains the word “land” which is the subject-matter of this appeal, it is necessary to reproduce same as follows:-
“On the part of the Plaintiff, I have found as a fact that she is a joint owner of the land on which the 1st Defendant Company stands and operates. I therefore enter judgment for her on her claim as per reliefs (a), (b), (c), (g) and (h). I further hold that Plaintiff is entitled to recover her equal share and or interest in the said land hereby declared as jointly owned by her and 2nd Defendant or in the alternative is entitled to be bought out of her interest in that parcel of land. In this wise, it would be necessary to value the land in order to ascertain its present value and to determine the Plaintiff’s equal share in the land (His emphasis).
In his further submission on this ground of the appeal, counsel contended that the trial judge was specific in declaring the Plaintiff as a joint owner of the land on which the 1st Defendant Company stands and operates. That the learned trial judge“expressly distinguished the parcel of land in favour of the Plaintiff from the buildings of 1st Defendant and NEVER intended to make a declaration that the Plaintiff be entitled to the joint ownership of the 1st Defendant’s buildings”.
In his reaction to the above submission, the Plaintiff counsel who argued grounds 1 and 2 together, submitted that the interpretation the Appellant seeks to impose on the Court does not accord with any known principles of law in Ghana. Counsel contended that the learned judge who dealt with the motion for interpretation which precipitated this instant appeal resorted extensively to all the necessary authorities before arriving at his final conclusion.
Counsel lifted a portion from the ruling of the High Court wherein “land” as defined in section 45 of the Conveyancing Act, 1973 (NRCD 175); in the Black’s Law Dictionary and as defined by Dennis Dominic Adjei in his book “Land Law Practice and Conveyancing in Ghana, 1st Edition, was reproduced in extenso. Counsel concluded his argument on the first two grounds of the appeal and submitted that the High Court Judge properly arrived at the decision when he ruled in favour of the Plaintiff.
We have given a thorough consideration to the opposing arguments traded by both counsel on the interpretation put on the word “land” in the ruling by the learned Judge on the 18th day of January 2017. To really appreciate the mischief raised in this appeal, recourse must be given to the reliefs of the parties, in particular, the Plaintiff’s. Consideration must also be given to the issues raised by the pleadings and which were set down for trial by the court below. A look must also be taken at the Interpretation Act, 2009 Act 792, decided cases etc.
The word “land” as used by Dorgu J in the 23rd December 2013 judgment should be interpreted in its proper context, and not for one to be scavenging for general definitions in statutory provisions and text books which do not help in coming to a just and fair decision. It also means that the case of the Plaintiff in particular must be looked at as a whole and not for one to lift one or two aspects from it and come to a conclusion that will lead to absurdity.
A look at Plaintiff’s reliefs (a), (b) and (c) show that she was asking exclusively for her stake in the bare land minus the buildings and other structures thereon as rightly contended by 1st Defendant’s counsel. To hold that the Plaintiff is entitled to the bare land plus the buildings and other structures thereon is to award Plaintiff reliefs which she did not ask for, to put it frankly and bluntly. This is the only reasonable conclusion to arrive at because in her relief (a), the Plaintiff gave description the minutest detail of the land on which sits the 1st Defendant’s Alberta’s Palace Resort. She repeated her prayer for a share of the land in reliefs (b) and (c) without mentioning any building or structure on the land.
The question is what informed the Plaintiff to fail to mention even in passing her share in the buildings in her 37-paragaph statement of claim found at pages 8 – 14 of her statement of claim? What about her loud silence in her huge evidence-in-chief found at pages 41 to 61 of the record of appeal where she never mentioned for once that she is a joint owner of the 1st Defendant Company with the 2nd Defendant owner. Further would it not have been reasonable if the Plaintiff had described the buildings and other structures of the 1st Defendant and then expressly include them in her reliefs rather than sending the Courts into a voyage of discovery of what “land” connotes in Dorgu J’s judgment?
Again in the issues set down for trial which was reproduced by Dorgu J in his judgment found at page 16 of the record of appeal, the joint ownership of the 1st Defendant Company and the land on which it stands was not set down for trial. The only issue set down by the Court for trial was issue 1. This is: Whether or not the land in dispute was acquired through the joint efforts of the 2nd Defendant and the Plaintiff. No mention was made of any joint ownership of the entire Alberta’s Palace Resort. The above has been confirmed by the Plaintiff’s own pleadings where in paragraph 3 of the statement of claim the Plaintiff averred that “the 2nd Defendant is a Director and a Sole Shareholder of the 1st Defendant Company”. And in paragraph 10 of the same, the Plaintiff credited 2nd Defendant as “… albeit with funding from the 2nd Defendant solely”.
It is also evident that it is only during cross-examination of Plaintiff by Defendant’s counsel found at page 72 of the record of appeal that the Plaintiff mentioned the number of rooms she started the facility with, which was initial 9 rooms and later same expanded to 21 rooms. Why the Plaintiff should be completely silent on the number of structures and buildings on the land and later resort to interpretation of the word “land” as a means of establishing her co-ownership of the 1st Defendant Company is a mystery. In Dorgu J’s judgment the learned trial judge made findings from the primary facts of the issues joined by the parties and concluded that it is only the bare land in which the Plaintiff has a share and no more. This assertion has been scattered throughout the said judgment.
In his ruling, the learned judge who used the court’s inherent jurisdiction (which he rightly has, but wrongfully applied in his interpretation of the word “land”) was carried away by the interpretation of “land, as defined in the Conveyancing Act, in Black’s Law Dictionary, and in Dennis Dominic Adjei’s book as aforementioned. This is where the learned interpreting Judge, with all due deference, got it all wrong.
Indeed the fact that the Plaintiff was asking specific reliefs from the trial court which was granted to her shows in how the Plaintiff tendered the receipt Exhibit “A” dated the 10th day of October 2001 about her joint ownership of the bare land. She also tendered the indenture dated the 16th day of August 2002, bearing the joint names of the Plaintiff and the 2nd Defendant. Same was admitted Exhibit “B”.
Under section 10 of the Interpretation Act 2009, Act 792 sub-titled Aids to interpretation or construction, section 4(d) provides:
Without prejudice to any other provision of this section, a court shall construe or interpret a provision of the Constitution or any other law in a manner
(b) that avoids technicalities and recourse to niceties of form and language which defeat the purpose and spirit of the Constitution and of the laws of Ghana (my emphasis).
What the learned Judge did in interpreting the word “land” in his ruling is to indulge in “technicalities and recourse to niceties of form and language which defeat the purpose and spirit” of the very case each party presented to the trial Judge at the court below. As a court with concurrent jurisdiction with the trial court, what the interpreting Judge did in his 18th day of January 2017 ruling was to, with respect, review, completely overturn, and hand over to the Plaintiff what she did not ask for in her writ and indeed her entire case. The interpretation of the word “land” ought to be confined within the limits of the plaintiff’s case, and not to break the bounds of those limits. See the case of Nartey v. Gati (2010) SCGLR 745 where the Supreme Court in its interpretative powers has to consider article 17(1) of the 1992 Constitution dealing with the notions of “equality”. See also the Supreme Court’s similar interpretation inter alia, of the word “judiciary” in the recent case of Judicial Service Staff Association of Ghana (JUSAG) vs. 1. The Attorney-General 2. National Pension Regulatory Authority 3. Fair Wages and Salaries Commission 116 G.M.J. 1. The ratio decidendi in this huge case which cannot be discussed in this instant judgment into details, brings out the absurdity in the handling of the interpretation of that single word “land” which changes the whole character of the judgment of Dorgu J as if the learned Judge were an appellate court as aforesaid.
From the foregoing, it is clear that this ground of the appeal succeeds.
I now come to the second are and third grounds of the appeal which will be considered together: These
2. The learned judge erred when he interpreted the word “land” in the judgment to include the buildings thereon without considering the context within which the judgment dated the 23rd day of December 2013 was delivered.
3. The ruling is against the weight of affidavit evidence which was deposed to by the parties in support of and against the application for interpretation which clearly stated the facts and context of the use of the word “land” in the judgment dated 23rd day of December 2013.
The arguments by the parties’ and the considerations given to them in the first ground of this appeal can easily be applied in these two grounds of appeal as same are subsumed therein.
In his submission on these two grounds of the appeal, 1st Defendant’s counsel argued that though the learned judge held that no question for interpretation arises with respect to the world “land”, as used in the judgment of Dorgu J, yet he relied on definitions from the Conveyancing Act, the Black’s Law Dictionary and from Dennis Dominic Adjei’s book Land Law, Practice & Conveyancing in Ghana, 1st Edition, in ruling that “land” as used in the judgment include all fixtures on it.
Counsel referred to a number of cases of the Supreme Court such as Ampofo v. CHRAJ (2005-2006) SCGLR 227; Agyei-Twum vs. A-G & Akwetey (2005-2006) SCGLR 732; CHRAJ v. AG & Baba Kamara (2011) 2 SCGLR 746. In these cases, the highest court of the land adopted the modern purposive approach to interpretation of the Constitution, statutory and non-statutory documents rather than any other approach that may bring absurd, unfair and unjust results. Counsel contended that the literal use of “land by the court below from the definition in the Conveyancing Act, 1973 (NRCD 175) is not binding in the word “land” in a non-statutory document such as Dorgu’s J’s judgment in this instant case.
Counsel further contended that in this instant case, the learned Judge adopted the literal and dictionary meaning of the word “land” to include the land itself, anything on the land or fixed on it, the airspace above it and what is beneath the said land.
In his reaction to the above submission by 1st Defendant’s counsel, Plaintiff’s counsel argued that the learned judge “considered all the affidavit evidence on record before arriving at his decision. That the learned judge read the documents in their entirety.
The learned counsel supported his submission with the case of Antie & Adjuwah vs. Ogbo (2005-2006) SCGLR 494 @ 503 where Wood JSC as she then was has this to say:
The elementary rule in statutory interpretation, which rule undoubtedly is based on plain good common sense, is that where the definition of a particular word, term or expression has been specifically provided in an enactment, or where other internal provisions would assist to determine the meaning, it is those definitions and other provisions which we are obliged to follow and not definitions and provisions from other sources.
Further counsel for Plaintiff also referred to the case of Smith & Others v. Blankson (substituted by) Baffor and Another (2007-2008) 1 SCGLR 374 at 382-383 where Sophia Akuffo JSC (as she then was) has this to say:
It is a well-established principle in the law of interpretation of deeds and statutes that a document that is prima facie, clear in meaning does not require interpretation by the court …..
After going through the two arguments of both counsel, it is clear that the two Supreme Court cases isolated above by the Plaintiff’s counsel rather vindicates and supports the position of the 1st Defendant that given the context in which the learned trial judge used the word “land”, there was absolutely no need for any interpretation exercise. What the learned judge did for the word “land” in his 18th January 2017 ruling in this instant case, is to import unnecessary alien and foreign materials to mislead him to pollute the plain and unambiguous judgment of Dorgu J. By doing this the learned interpreting judge has done violence to this otherwise “peaceful” judgment.
It is to be mentioned that it is not only the use of the purposive provisions that the letter and spirit dichotomy sometimes used in interpretation should be applied. Where the letter of a non-statutory document is used to interpret it, and same would result in absurdity, the spirit behind the document or word should be deployed to give meaning to same. Where a narrow, mechanical and literal approach may bring unfair, absurd and unjust result, the common-sensical way is to look at the document holistically and not lift a number of definitions from outside sources and force it into the interpretation.
We have also taken a look at the affidavit in support and against the motion for the court to use its inherent jurisdiction to interpret the word “land”. It is clear that the Plaintiff has not deposed to any material facts to warrant an interpretation of the word “land”, let alone awarding reliefs to the Plaintiff which the trial court had never contemplated. This is because there was zero basis for awarding to the Plaintiff any other reliefs other than the case she had put forth, and which the trial Judge handled admirably by awarding to her the necessary reliefs.
It is difficult to appreciate how a case which was decided upon by a writ of summons, counterclaim, pleadings, a comparately large volume of evidence with witnesses and numerous documentary exhibits in support, can be reversed or completely scaled down by interpretation of the word “land”. If this ruling is allowed to stand it would mean the Dam v. Addo principle has been used by the ruling judge to subvert justice. Apart from this, the Plaintiff has completely departed from her pleadings in terms of Order 11 rule 10. See Adom v. Marfor (2012) 38 MLRG 69. It is also sad to say that in coming to his decision, the learned judge hardly touched on the case that engendered the interpretation. All that he reached out for were the definition of “land” as defined by Dennis Dominic Adjei in his book, in Act 175 and in the Black’s Law Dictionary as aforementioned. By relying on text-book definition of “land”, the learned Judge with respect, gave an absurd decision.
Indeed as aforesaid, the learned trial Judge has granted all the reliefs for which the Plaintiff had led legal evidence. For instance the Plaintiff was awarded an amount of GH¢10,000.00 as mesne profit by the trial Judge. By this the trial court acknowledged the share of the Plaintiff in the bare land. No reasonable court would award mesne profit on a property which the Plaintiff is not possessed of. This shows further that the Plaintiff has been adequately compensated for in relief (g) of the writ of summons.
Seen from another perspective as aforementioned, though this appeal is not a substantive appeal but just an interpretation of “land”, the Plaintiff cannot resile from the letter and spirit of her writ of summons, statement of claim and the massive evidence she marshaled to prove her claim. If she insists on departing from her claim as the court below seemed to hand her in this appeal, she would be estopped from same by section 26 of the Evidence Act, 1975 NRCD 323. This is estoppel by own statement or conduct. Since Dorgu J’s judgment was based strictly on the pleadings of the parties, the Plaintiff cannot, with all due deference, pass through the back door to overreach the Defendants.
After examining this appeal over and over again, we have noticed sadly, that the learned judge has breached the operation of the golden rule in interpretation in exchange for the literal rule, which has ruined the otherwise plain and obvious use of the word “land” in the judgment of Dorgu J. This being the case, that ruling cannot stand. The appeal is allowed in its entirety and the decision of the learned Judge at the court below is hereby set aside.