IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
ANTHONY KESSE - (Defendant/Appellant)
ADWOA AGYEIWAA - (Plaintiff/Respondent)
DATE: 24TH OCTOBER, 2017
CIVIL APPEAL NO: H1/54/2017
JUDGES: E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A., A. M. DOMAKYAAREH (MRS.) J.A.
ELIOT GHARTEY FOR THE DEFENDANT/APPELLANT
MARGARET MARY AGYEI TWUM FOR THE PLAINTIFF/RESPONDENT
DOMAKYAAREH (MRS), J. A.
1. This appeal has arisen from a dispute involving title to a plot of land situate at Fawoade New Site near Kumasi.
The genesis of the dispute is that the plaintiff/respondent (herein after called the respondent) per her Statement of Claim, averred that she acquired the said plot of land in 1998 from the Oheneyere Atta Gyapomaa Stool Land at Fawoade New Site. She was issued with an Allocation Note and a Site Plan. She said she caused a Building Plan to be drawn for her. She started construction of a six bedroom, a hall, kitchen, one toilet and one bath and two store rooms on the plot according to her Building Plan which was approved by the District Assembly. After constructing up to the floor level she suspended construction due to financial constraints and started a garden in-front of the house. She had a call from her son in 2011 that someone had started construction on the foundation she had laid. She went to the site and discovered that the defendant/appellant (hereinafter called the appellant) was constructing four bedrooms on her original plan. The respondent said she confronted the appellant. She subsequently reported the matter to the Mamponteng Police and later, the Lands Commission. She said an officer from the Lands Commission went to the site and wrote “Stop Work” on the building. The parties were invited to the Lands Office and after some deliberations there she was advised to seek legal redress as the parties could not resolve their differences. The respondent therefore instituted this action against the appellant at the Circuit Court in Kumasi on 3rd April 2013 claiming the following reliefs against him, namely:
a) Declaration of title and recovery of possession of House No. Plot 1 Block A, Fawoade New Site near Kumasi.
b) Damages for trespass and
c) Perpetual injunction against the defendant, his agents, assigns and all those who claim title through him from dealing in any way with the property numbered Plot 1 Block A Fawoade New Site near Kumasi.
2. The appellant on his part denied that the respondent was entitled to any of the reliefs at all. On the contrary, he averred per his Statement of Defence that the plot he was working on was Plot 8, Block ‘O’ Fawoade and that the said plot was originally acquired by Kofi Mensah alias Yesu Bogya an ex-husband to the respondent. He said he bought the said Plot 8 Block ‘O’ Fawoade from the late Oscar Ofori Atta a lawful attorney to Oheneyere Atta Gyapomaa Stool Land at Fawoade. He averred that:
· the said Oscar Ofori Atta transferred his title and ownership in the plot to him absolutely;
· the said transfer documents had been signed and stamped by the District Director of the Town and Country Planning Department, Kwabre East, Mamponteng;
· the late Oscar Ofori Atta further made a Statutory Declaration of transfer of ownership to him which was commissioned by the High Court Registrar, Kumasi and signed by the vendor, vendee and witnesses;
· the late Oscar Ofori Atta also made an Indenture date 14th November 2010 signed by the parties and witnesses and stamped by the Land Valuation Department on 4th April 2011;
· he is in possession of the Site Plan of Fawoade Planning Scheme for Kwabre District on plot 8 Block ‘O’.
The defendant/appellant finally averred that the respondent was claiming for a wrong plot since she described her plot as Plot 1 Block ‘A’ Fawoade New Site while he was occupying Plot 8, Block ‘O’ Fawoade.
3. The case went through the normal trial with the respondent calling one witness whilst the appellant called three witnesses.
On 11th December 2013, the trial Circuit Judge delivered judgment in favour of the respondent and granted her reliefs (a) and (c). He awarded only general damages in respect of relief (b) on the grounds that she had not led evidence to establish the quantum of her of loss, whether resulting from trespass or other civil wrong by the appellant.
4. The instant appeal obviously demonstrates that the appellant is not happy with the judgment and in fact he is dissatisfied and aggrieved by same. Consequently, on 13th December 2013 he filed a Notice of Appeal against the said judgment seeking to set same aside. His ground of appeal was essentially one namely that the judgment is against the weight of evidence. He added that additional grounds of appeal would be filed upon receipt of the Record of Proceedings.
Consequent upon this, on 22nd October 2015, the appellant filed 7 additional Grounds of Appeal pursuant to leave granted by this Court on 20th October 2015.
These additional grounds are:
(b) That the learned judge erred in relying on the evidence of PW1 (a Building Inspector) to conclude that Plot No. 8 Block ‘O’ Fawoade New Site and plot No. 1, Block “A’ Fawoade New Site are referable to the same plot.
(c) That the learned trial judge erred in holding that the defendant/appellant is not a bonafide purchaser for value without notice.
(d) The learned judge erred in decreeing title of the disputed plot to the plaintiff when her own witness (PW1) had testified that the plaintiff’s (alleged) grantor (Oscar Ofori Atta) did not allocate the said plot to the plaintiff.
(e) The learned judge erred when he shifted the burden of proof on DW3 when he was not a party to the instant suit
(f) The learned judge further erred in holding that the plot in dispute belongs to the plaintiff when she could not prove on the preponderance of probabilities that she actually put up the structure on the said plot
(g) That the general damages of GH5, 000.00 awarded against the defendant/appellant as well as the costs of GH2,000.00 are unreasonable and without basis having regard to the fact that the plot in dispute did not belong to the plaintiff.
(h) The learned trial judge erred in holding that the plaintiff acquired her plot from Oheneyere Attaa Gyapomaa stool as the said holding is not borne out by the records.
5. Having been seized with jurisdiction in this matter, it now behooves on this Court to comply with Rule 8(1) of CI 19 by rehearing the entire case. We shall do this by evaluating all the evidence on record, both oral and documentary so as to come to our own conclusion as to whether or not the trial judge was right in his assessment of the evidence and hence the judgment he delivered. This is indeed the way to go as has been laid down in a plethora of decided cases by the Supreme Court. For example, see the case of AGYEIWAA VRS. P&T CORPORATION [2007-2008] 2 SCGLR 985 at 989 where the Supreme Court per Georgina Wood CJ (as she then was) stated thus:
“The well-established rule of law is that an appeal is by way of rehearing, and an appellate court is therefore entitled to look at the entire evidence and come to the proper conclusions on both the facts and the law.”
The appellant argued the additional grounds of appeal first and the original ground of appeal last.
We shall evaluate the grounds in the order in which he argued them.
That the learned judge erred in relying on the evidence of PW1 (a Building Inspector) to conclude that Plot No. 8 Block ‘O’ Fawoade New Site and Plot No. 1, Block “A’ Fawoade New Site are referable to the same plot.
6. This ground deals with whether or not Plot No 1, Block ‘A’ Fawoade New Site is the same as Plot 8, Block ‘O’ Fawoade. This was one of the issues set down for trial at the Application for Directions stage at the trial court. In respect of same, this is what the trial judge said in his judgment at page 56 of the Record of Appeal
“With regard to the first issue of the plaintiff and that of defendant, the plaintiff claims her plot is number 1 Block A as shown by Exhibit A & B whiles defendant claims his plot is plot Number 8 Block ‘O’ as per Exhibit 3 & 4. There is no contention of the fact that the plot numbers cited by the parties are referable to the same plot. The defendant did not deny the fact that the drawings tendered in evidence by the plaintiff as the plan of her foundation is the one purported acquisition (sic) from Oscar Ofori Atta of the plot in contention. PW1 who happens to be the Building Inspector at the Kwabre East District Assembly gave evidence to the fact that when the parties appeared before him he realized that the lands are at the same place but with different numbers.”
The appellant has taken issue with this finding by the trial judge. Per his written submission filed on 6th November 2015 pursuant to Leave for Extension of Time dated 20th October 2015, Counsel for the appellant has argued that from the evidence on record, the two plots are not one and the same plot. He relied on the denial by the appellant that he was in possession of Plot No. 1 Block ‘A’ Fawoade New Site and further said a careful look at Exhibit ‘D’ (Sic) the Site Plan of the respondent and Exhibit 4, the Site Plan of the appellant shows that the two plots are not the same. The Site Plan of the plaintiff is rather Exhibit B found at page 67 of the Record of Appeal while Exhibit ‘D’ found at page 70 of the Record of Appeal is the Subpoena Duces Tecum issued to PW1, the Technical Engineer of the Works Department of the Kwabre East District Assembly.
7. Counsel further contended that when PW1 stated at the first page 22 of the Record of Appeal (page 10 of the proceedings of 13th February 2013; there are two pages both numbered 22) that “The land is at the same place but with different numbers” that cannot be interpreted to mean that the two different plot numbers refer to the same plot on the ground. Counsel further contended that the Building Inspector was not competent to make such a statement and rather argued that the plaintiff ought to have called the Surveyor in the Assembly to produce the Planning Scheme and tell the court which of the plots existed.
It is difficult to understand the cannon of interpretation that counsel applied to arrive at his view that the statement by PW1 does not mean that the two different plot numbers refer to one and the same plot. If counsel had read the answer of PW1 as a whole, he would have seen that on the very same first page 22 of the Record of Appeal PW1 went on to testify that “When I went to the land I saw that the site and block presented to me by plaintiff was the very place defendant put up his building. I asked defendant whether he never saw the foundation. He said yes and there was a cassava farm also at the place.”
8. Counsel also submitted that to the extent that the appellant did not counter-claim the respondent bore the burden of proof that the land occupied by the appellant was Plot No. 1 Block ‘A’ Fawoade New Site. That may well be so but the defendant has also asserted that his plot was Plot 8 Block ‘O’ Fawoade and nothing prevented him from also calling the Surveyor to prove same since the adage that “he who asserts must prove” is valid for all time.
In response to this ground of appeal, Counsel for the respondent referred to various pieces of evidence in the Record of Appeal to demonstrate that the two differently numbered plots were one and the same plot. He referred to the respondent’s Statement of Claim where she averred that upon visiting the site, she discovered that the defendant had constructed 4 bedrooms on her original plan and that this was very visible as the two remaining rooms on her foundation were left untouched. Besides, the appellant did not deny that he built on an existing foundation. His only denial was that the foundation did not belong to the respondent. Upon a review of the evidence on record, we find that there was sufficient evidence as analysed above to support the finding by the trial judge that the two differently numbered plots refer to one and the same plot of land.
Ground [b] of the additional grounds of appeal is therefore dismissed.
The learned judge erred in decreeing title of the disputed plot to the plaintiff when her own witness (PW1) had testified that the plaintiff’s (alleged) grantor (Oscar Ofori Atta) did not allocate the said plot to the plaintiff.
9. This ground has to do with whether the trial judge was wrong in decreeing title to the disputed land in favour of the respondent. Counsel for the appellant argued that per the evidence-in-chief of the respondent, she testified that she personally acquired the plot from Oscar Ofori Atta as can be found at pages 13 -14 of the Record of Appeal and tendered Exhibit ‘A’ the Allocation Note in support. The defendant on the other hand testified at P. 27 of the ROA that Oscar Ofori Atta had told PW1 that he never sold any plot to the plaintiff and that the Allocation Note was not signed by him and that the plaintiff also admitted under cross-examination that Oscar said he never sold any plot to her as found at page 22 of the ROA incorrectly referenced by Counsel for the appellant as p. 23. Counsel submitted that all these were corroborative of the defendant’s case and not that of the plaintiff.
Counsel for the respondent canvassed the same arguments in respect of Ground [b] against Ground
since they both relate to the same issue and a resolution of one will automatically resolve the other.
10. It may well be that the late Oscar Ofori Atta denied that he sold any plot to the respondent. Upon a review of the Exhibits tendered at the trial the following Exhibits bear the signature of Oscar Ofori Atta.
- Exhibit A – the Allocation Note to the respondent dated 30th September 1998 [see p. 66 of the ROA]
- Exhibit 1 the Indenture between Kofi Mensah alias Yesu Bogya and Oscar Ofori Atta dated 1st June 2010 [see p. 71 of the ROA]
- Exhibit 2 the Statutory Declaration by Oscar Ofori Atta dated 4th November 2010 that he is the legitimate owner of Plot 8 Block ‘O’ Fawoade.
Even an untrained eye can see that the signatures are the same. Technically speaking, it may be true that Oscar Ofori Atta did not grant any plot to the respondent because he signed Exhibit A in his capacity as “Lawful Attorney for Abusuapanin” of Oheneyere Attaa Gyapomaa Land, while in Exhibits 1 & 2 he signed in his personal capacity. Per paragraphs 3 & 4 of the Statement of Claim of the respondent, she averred that in September 1998 she acquired a plot from the Oheneyere Attaa Gyapomaa Stool Land and that an Allocation Note and Site Plan were issued to her in respect thereof. The Allocation Note, Exhibit 1 was signed by Oscar Ofori Atta in his capacity as lawful Attorney of the Abusuapanin since the Stool Land is not a natural person. It is trite that where there is conflict between oral evidence (the testimony of the appellant) and documentary evidence (Exhibit 1) in respect of the same matter, it is the documentary evidence that prevails.
Ground [d] of the Additional grounds of appeal is thus dismissed.
The learned trial judge erred in holding that the plaintiff acquired her plot from Oheneyere Attaa Gyapomaa stool as the said holding is not borne out by the records.
11. Counsel for the appellant contended that the respondent averred in her Statement of Claim that she acquired her plot from the Oheneyere Attaa Gyapomaa Stool land but made a U-turn in her evidence that it was Oscar Ofori Atta who sold the plot to her. He said the said Oscar who was the only person on the Stool side involved in the transaction signed Exhibit 1 as “Lawful Attorney of Abusuapanin” but no Power of Attorney in respect of same was tendered in evidence. Counsel urged that since the pleadings of the respondent in respect of this issue was at variance with her evidence on the matter, the trial court ought not to have relied on that evidence.
This court disagrees with this submission for the reasons stated earlier on. Counsel is placing much emphasis on minor inconsistencies in order to torpedo the judgment of the trial court. The position of the law on minor inconsistencies is however well settled. See the case of EFFISAH V ANSAH [2005-2006] SCGLR 943 at 960 where the Supreme Court Per Georgina Wood JSC (as she then was) stated that:
“… in any given case, minor, immaterial, insignificant, or non-critical inconsistencies must not be dwelt upon to deny justice to a party who had substantially discharged his or her burden of persuasion.”
Ground [h] is accordingly dismissed as not having been made out.
The learned judge further erred in holding that the plot in dispute belongs to the plaintiff when she could not prove on the preponderance of probabilities that she actually put up the structure on the said plot.
12. Counsel for the appellant submitted that the respondent averred that she put up a foundation on her plot up to the floor level and that she was not a mason who personally constructed the said foundation. We must right away say that this kind of literal interpretation which leads to an absurdity is not countenanced by the law. One does not have to be a mason before he/she can put up a building structure. If one says that she/he has put up a building at a location, the first impression that comes to mind is not that the person personally put up the structure by him/herself. Based on the appellant’s false interpretation, he contended that the respondent ought to have called either the masons or other artisans who constructed the said foundation especially when her ex-husband said he constructed the foundation. The critical issue was that there was a foundation on the plot and the defendant did not deny it. Besides upon evaluation of the evidence, the trial judge was right in rejecting the evidence of DW3, the ex-husband of the respondent since he did not know the plot number and the number of rooms that he allegedly constructed the foundation for. Hear him under cross-examination at page 43 of the ROA.
“Q. You said you had two plots of land from Oscar at Fawoade
Q. Tell the court the numbers of these plots
A. I can’t remember”
At page 44 of the ROA, this is what transpired
“Q. At what stage of the construction did you purport to transfer the plot to the defendant?
A. It was only a foundation because I was not having a building permit and allocation paper so if I build to a higher level the Council will demolish it.
Q. Can you tell the court the number of rooms you laid the foundation for?
A. It could be five or six, with toilet bath and kitchen.
Q. How many rooms in all including toilet, kitchen etc.
A. Eight or nine’’
Here is somebody who has no Allocation Paper, does not know the plot number has no Building Permit, cannot give a definite answer to the number of rooms he laid a foundation for, and yet wants to be believed that he owns the plot on which the foundation stands.
The respondent on the other hand tendered her Allocation Paper, Site Plan, and Building Plan in respect of the plot, all of which were admitted in evidence without objection.
Ground [f] is dismissed.
That the learned trial judge erred in holding that the defendant/appellant is not a bonafide purchaser for value without notice.
13. Counsel for the appellant has taken issue with the holding of the trial judge that the appellant was not a bonafide purchaser for value without notice. Counsel submitted that the evidence of the appellant clearly demonstrated that he exercised due care and diligence in acquiring the plot. From pages 25 - 26 of the ROA, he outlined the following conduct of the appellant as demonstrating due diligence on his part.
· The plaintiff (sic) defendant requested to see the owner (Kofi Mensah) to confirm if he owned the plot
· The defendant asked a number of people to ascertain who owned the plot.
· All people he met told the defendant the land was for Kofi Mensah @ Yesu Bogya
· The defendant went to meet Kofi Mensah where he confirmed his ownership of the plot
· The defendant asked of documents of the land from Kofi Mensah and he showed them to the defendant.
· The defendant asked Kofi Mensah why he was selling and he gave a reason.
· That this due diligence by the defendant was corroborated by DW1 and DW2
14. Indeed, the appellant spent considerable time and energy to make enquiries. He however did that only at the wrong places. None of the people he made enquiries from were the lawful custodians of land records. Indeed, they all told him their perception and what they heard from other people. None of them indicated that they ever cited any documentation on the plot with the exception of Kofi Mensah @ Yesu Bogya whose documents we shall comment on shortly.
Hear DW1 under cross-examination at page 35 of the ROA.
“Q. Before you paid for the disputed plot you were never given any document that shows that the said “Yesu Mogya” really owned that property?
Hear DW2 under cross-examination at page 37 of the ROA
“Q. Did Yesu Mogya ever show you any documents concerning the land?
A. No. He did not personally show me the document but it was Oscar who showed me the site plan with Yesu Mogya’s name on it”
No site plan was tendered with Yesu Mogya’s name on it to prove this assertion.
Going on at page 39 of the ROA the cross-examination of DW2 continued as follows:
“Q. I am putting it to you that Yesu Mogya had never owned that land
A. What I heard is that the land belongs to Yesu Mogya. The plaintiff never mentioned that the plot belongs to her although we were very free” (Emphasis added)
Hearsay evidence is generally inadmissible in court proceedings.
The only legitimate/authoritative place that the defendant could make enquires was to conduct a search at the Lands Commission and this he failed to do.
DW1 testified at page 35 of the ROA that “Yesu Mogya” said he was selling the plot because of financial difficulties.
“Yesu Mogya” himself DW3 however testified as follows under cross-examination at page 44 of the ROA.
“Q. At what stage of the construction did you purport to transfer the plot to the defendant?
A. It was only a foundation because I was not having a building permit and allocation paper so if I build it to a higher level the Council will pull it down”.
The necessary and unavoidable conclusion is that he halted at the foundation not because of financial difficulties but because of lack of documentation on the land in his name.
15. DW1 in his evidence-in-chief at page 35 of the ROA said they did a search (he did not say where) and found out that the land does not bear anybody’s name. They did not tender any search report in evidence. In any event, if you are a diligent purchaser, do you buy property, landed one at that from a named person when your own search reveals that the land does not belong to any named person?
Naturally Counsel for the respondent successfully debunked this Ground [c] of the Additional Grounds of Appeal. Counsel relied on several authorities in support of the legal principle that a bonafide purchase for value without notice will be protected where he/she demonstrates that he/she purchased the property without notice of any encumbrance on it. In the case of KUSI & KUSI VRS BONSU (2010) SCGLR 60 the Supreme Court per Holding 8, stated that
“A party seeking to rely on the doctrine of bona fide purchaser for value without notice, was enjoined to prove that he had no notice at all of his opponent’s interest in the property; not that he had the notice but he did not think or find that the notice conformed to law. Equity would look to the intent rather than the substance and would clearly not endorse any such technicality, intended to defeat the ends of justice. …”
Submitting that a prudent purchaser of land is required to make the necessary searches and enquiries to be satisfied that the property is unencumbered, before going ahead to make his purchase, Counsel referred to the case of BOATENG VRS DWINFUOR (1979) GLR, 360 at 367 where Annin JA (as he then was) posited thus quoting Sneils Principles of Equity (26th Edition) at page 59:
“… if the purchaser has whether deliberately or carelessly abstained from making those enquiries into the title of his vendor that a prudent purchaser would have made, he will be affected with constructive notice of what appears upon the title of the vendor. Apart from investigating the deeds, a prudent purchaser will inspect the land itself. If any land is occupied by any person other than the vendor, this occupation is constructive notice of the estate or interest of the occupier. ...”
16. Counsel submitted that the appellant, having failed to be diligent in inspecting the documents of ownership of the land as outlined earlier on, and also having failed to inspect the drawings of the foundation that he did not lay cannot be considered as a bonafide purchaser for value without notice. Instead of requesting his grantors for evidence of their ownership of the property, the appellant aggravated his case by expediting his construction of the building when he was confronted by the plaintiff which led to the subsequent arrest of him and grantors by the Police. Ground [c] of the grounds of appeal is dismissed.
The learned judge erred when he shifted the burden of proof on DW3 when he was not a party to the instant suit
17. Counsel for the appellant contended that under the law, it is only parties to an action/case who carry the burden of proof and that therefore in so far us DW3 was not a party to the suit, it was wrong for the trial judge to require him to prove his title to the land in dispute.
It is trite learning that in land litigation one must prove his title and this includes the root of his title. In the case of MONDIAL VENEER [GH)LTD V AMUAH GYEBU XV  1 SCGLR 466 AT 475 the Supreme Court held as follows:
“In land litigation, even where living witnesses who were directly involved in the transaction under reference are produced in court as witnesses, the law requires the person asserting title, and on whom the burden of persuasion falls, as in the instant case, to prove his root of title, mode of acquisition and various acts of possession exercised over the subject matter of litigation. It is only where the party has succeeded in establishing these facts on the balance of probabilities that the party would be entitled to the claim”.
The appellant has the burden of persuasion to prove his title. He can do this by himself and/or through the witnesses that he produces in court. In this case the appellant traced the root of his title to DW3. The appellant could thus choose to join DW3 as a defendant when his title was challenged by the respondent or call him as a witness. In either case, DW3 would have been required to give evidence which will establish his title in support of the appellant’s case. Even though the defendant did not counterclaim in this action, yet in so far as he averred in his defence that his plot was different, he was duty bound to establish that by cogent evidence. This he sought to do by his testimony and that of his witnesses including DW3.
DW3 signed the Indenture Exhibit 1 granting his land to Oscar Ofori Atta. DW3 in his evidence said he mandated Oscar Ofori Atta to sell the land. DW3 said he constructed the foundation on the disputed plot. DW3 as the vendor of the appellant has a duty to establish the validity of his title to assure the purchaser of peaceful and quiet enjoyment of the property. DW3 did not show any Receipt, Allocation Note or Site Plan in respect of same. This is what the trial judge wrote in his judgment found at page 58 of the ROA and not 59 as indicated by Counsel for the appellant
“DW3 did not satisfactorily prove that he owned the disputed plot by failing to produce any document to that effect. Between the plaintiff and DW3, the plaintiff has proved on the preponderance of probabilities that she is the owner of the disputed plot since there was no material evidence impeaching the credibility of her documentary evidence …”
The trial judge was thus right in holding that DW3 did not satisfactorily prove that he owned the property because DW3 indeed bore that burden of persuasion to establish the validity of his title. An evaluation of the entire evidence clearly shows that the evidence led by DW3 did not support the case of the appellant who as a party to the suit also bore the burden of persuasion to prove his case. Ground [e] of the additional grounds of appeal is thus dismissed.
That the general damages of GH5, 000.00 awarded against the defendant/appellant as well as the costs of GH2, 000.00 are unreasonable and without basis having regard to the fact that the plot in dispute did not belong to the plaintiff.
18. On the award of Gh⊄5000.00 as general damages and Gh⊄2,000.00 as costs against his client Counsel contended that the general damages awarded by the trial judge was rather exemplary damages. He contends that no such damages or costs ought to be awarded against the appellant since he ought to have won the case. The award of general damages and costs are largely within the discretion of the trial judge. The circumstances under which an appellate court can interfere with the discretion of a trial court have been laid out in several decided cases. In the case of SAPPOR V WIGATAP LTD [2007-2008] SCGLR 676 at 679, the Supreme Court, per Georgina Wood JSC (as she then was) put it thus:
“The well-known and time-honoured legal principle, is that an appeal against a decision based on the exercise of a court’s discretionary jurisdiction would succeed only in those clearly exceptional cases where, in sum, the judge failed to act judicially. … an appellate court would interfere with the exercise of discretion where the court below applied wrong principles, or the conclusion reached would work manifest injustice or even that the discretion was exercised on wrong or inadequate material”
Again, in NKRUMAH V SERWAAH & ORS [1984 – 1986] 1 GLR 190 at 198, the Court of Appeal, speaking through Osei-Hwere J A stated thus:
“The granting or refusal of the application for leave to amend pleadings is discretionary, and the Court of Appeal will not interfere with the exercise of that discretion unless it is satisfied that the trial judge applied a wrong principle or it can be said that he reached a conclusion which would work manifest injustice:”
Also see the case of KYENKYENHENE V ADU [2003 -2004] 1 SCGLR 142 where the Supreme Court reiterated the point that only arbitrary, capricious and uninformed conclusions stand in danger of being reversed on appeal.
Our analysis of the evidence on record has revealed that the circumstances under which an appellate court can interfere with the discretion of a trial court as outlined above have not been made out by the appellant.
Ground [g] of the additional grounds of appeal is therefore dismissed.
That the judgment is against the weight of evidence.
19. As is well known, relying on this omnibus ground of appeal implies that there are some pieces of evidence which if they had been properly applied in favour of the appellant would have changed the case in his favour. The appellant is under a duty to point these instances out.
In DJIN VRS. MUSAH BAAKO [2007 – 2008] 1 SCGLR 686, the Supreme Court held per Holding 1 that:
“Where (as in the instant case) an appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the 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 on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.”
The appellate court also has a duty as part of the function of rehearing the case to consider the totality of the evidence on record before coming to a conclusion on the matter. In TUAKWA V BOSOM [2001 - 2002] SC GLR 61 at 65 Sophia Akuffo JSC (as she then was) put it thus:
“Furthermore, an appeal is by way of a rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence. In such a case, although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil case, to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence”.
20. Counsel for the appellant contended that the plaintiff/respondent’s Allocation Note was not signed by two other persons whose names were on the Allocation Note as signatories, namely Hanna Ofori Atta [Obaapanin for Oheneyere] and Nana Kwabena Mensah [Overall Head]. He submitted that for the Allocation Note to be valid, all these people must sign same. Counsel also submitted that as Oscar Ofori Atta signed as Attorney and not as Principal, same was invalid because he did not produce a Power of Attorney. He submitted that if the trial judge had examined the Allocation Note well, he would have rejected same and the respondent’s case would have failed. He also contended that the respondent and her witnesses gave conflicting evidence about how she acquired the plot. Counsel pointed out that the respondent said she bought the land personally from Oscar Ofori Atta and agreed on the price of Gh⊄120.00 which she paid; that PW1 said at the first page 22 of the ROA (there are two pages both numbered 22) that “the husband of the plaintiff said he bought the land from Oscar and gave it to the wife”. PW1 also said at the same page 22 that “the plaintiff said it was the same Oscar Who sold the plot to her”. Counsel submitted that with these conflicting positions, the trial judge ought not to have believed the case of the respondent.
21. Counsel for the appellant also pointed out that PW1 in his evidence-in-chief said the respondent narrated to him that Oscar Ofori wanted to sell the plot to Kofi Mensah but he could not, and that she the respondent expressed interest in the plot and purchased same. This can be found at the first page of the ROA. Counsel contended that the respondent herself never gave such evidence in court and for that reason the respondent ought to be treated as an untruthful person. It is true that respondent herself did not give that piece of evidence in court. However, at the time PW1 gave that piece of evidence, he was not challenged by the appellant who was in court. Same is deemed to have been admitted.
Counsel for the respondent on his part, referred to other pieces of evidence that support the findings of the trial judge. He said the appellant admitted that there was a foundation laid to the floor level when he purchased the plot and also admitted that he built on that foundation which turned to be the plan of the respondent. This is a solid ground to support the judgment in favour of respondent for her relief (a). For all the reasons outlined earlier on, we find that the trial judge was right in believing the position of the respondent.
Ground [a] being the omnibus ground of appeal fails and is dismissed.
22. One other matter needs to be pointed out before we conclude this judgment. This has to do with DW3 and his ownership of the plot in dispute. In his evidence in chief at page 41 of the ROA he testified as follows:
“The plot that the plaintiff is claiming as hers is not hers but it belongs to me. It was one Oscar Ofori Atta who gave the land to me in return for some financial assistance I helped him to secure. He sold one plot to me and gifted one plot to me. The one in dispute was sold to me on credit …”
Under cross examination at page 42 of the ROA DW3 testified thus:
“Q. You stated that you allegedly acquired two plots from Oscar?
A. He sold one to me and gifted one to me. The one he gifted is water logged so I did not go into that one “(Emphasis added).
At page 45 of the ROA the cross-examination continued thus:
“Q. You said you have two plots of land at Fawoade New Site?
Q. That one was gifted to you and the other sold to you by Oscar?
Q. The disputed plot is not the one gifted to you?
All these unequivocally point to the fact that the plot in dispute was the one DW3 bought and which he allegedly authorized Oscar Ofori Atta to sell on his behalf. Exhibit 1 was tendered in support of this. Now what does Exhibit 1 say? Exhibit 1 is found at page 71 of the ROA. I quote the first paragraph verbatim as follows:
“THIS INDENTURE IS made between KOFI MENSAH ALLIAS YESU BOGYA on the one part and OSCAR OFFORI-ATTAH of Fawoade on other Party. (sic)
That I, KOFI MENSAH of Kumasi, a Driver, today counter balance with a Plot OSCAR OFFORI-ATTAH gifted to me at Fawoade on Plot 8 Block O and endorsed by Nana Agyemang Barnie of Fawoade on the hard working and some financial assistance I, KOFI MENSAH rendered to OSCAR OFFORI-ATTAH on mapping, Demarcating, Surveying and plotting the land on instructions by NANA AGYEMANG BARNIE and late KOFI AMOAKO II…” (Emphasis added)
If the land DW3 authorised to be sold, is the one gifted to him which is water logged and which he did not go into, how come he is using that document as evidence of ownership of a plot that was sold to him and on which there was a foundation? Even if the said plot allegedly sold to him is his property, which we find to be not, he cannot use a document relating to a water-logged plot that was gifted to him as proof of title to that other land which has a foundation on it. Exhibit 1 rather than supporting the case of the appellant has rather collapsed and shredded his case.
The appeal is consequently dismissed in its entirety and the judgment of the trial court affirmed.
ANGELINA M. DOMAKYAAREH (MRS)
(JUSTICE OF APPEAL)
E. K. AYEBI JA I AGREE E. K. AYEBI
(JUSTICE OF APPEAL)
TORKORNOO (MRS), JA I AGREE G. TORKORNOO (MRS)
(JUSTICE OF APPEAL)