AUGUSTINE BAIDOO vs. YAW NKUAH ALIAS YEHOWA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    CAPE COAST - A.D 2017
AUGUSTINE BAIDOO - (Plaintiff/Appellant/Appellant)
YAW NKUAH ALIAS YEHOWA - (Defendants/Respondents/Respondents)

DATE:  2ND MAY, 2017
CIVIL APPEAL NO:  H1/31/2015
JUDGES:  HONYENUGA J.A (PRESIDING), GYAN J.A, SUURBAAREH J.A
LAWYERS:  MR. PAUL NKUAH GYAPONG FOR THE PLAINTIFF/APPELLANT/APPELLANT MRS. ELLENOR LARBIE FOR THE DEFENDANTS/RESPONDENTS/RESPONDENT
JUDGMENT

SAEED K. GYAN, JA

This is an appeal from the judgment of the High Court, Sefwi Wiawso, dated 17th January, 2014. The High Court dismissed an appeal brought before it from the judgment of the District Court, Juaboso, dated 4th February, 2011. Save for a little variation, the High Court dismissed the Plaintiff’s appeal and basically affirmed the decision of the trial District Court.

 

Being aggrieved by and dissatisfied with the judgment of the High Court, the Plaintiff has mounted this further appeal to the Court of Appeal seeking an order setting aside the High Court’s said judgment and entering judgment in favour of the Plaintiff/Appellant/Appellant on the basis of the grounds of appeal contained in the notice of appeal filed on 3/2/2014.

 

The following grounds of appeal were recorded:

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

B. The Learned High Court Judge erred in law when he wrongly applied the principle of nemo dat quod non habet rule or principle to the facts of the case.

C. The Learned High Court Judge made wrong finding of fact when he held that Plaintiff’s father did not cultivate any virgin land in the area in dispute.

D. The Learned High Court Judge erred in upholding the counter-claim of the 1st Defendant when the evidence on record clearly shows that the Defendants failed to prove their case on the balance of probabilities.

E. The Learned High Court Judge erred in law in his application of customary law on gift vis-à-vis the evidence adduced at the trial and thus came to a wrong conclusion.”

 

It is worth noting that in the appeal to the High Court from where the instant appeal to the Court of Appeal emanated the only ground of appeal urged was the omnibus ground, namely, that the judgment was against the weight of evidence.

 

A critical examination and assessment of the grounds filed in respect of the instant appeal would suggest that they by and large could be subsumed under the omnibus ground of appeal to the effect that the judgment was against the weight of the evidence led at the trial.

 

However, I am of the view that the second ground of appeal in the manner it was formulated falls foul of the requirements of Rule 8(4) of the Court of Appeal Rules, 1997 (C.I. 19)

 

The said rule provides as follows:

 

“ 8(4) where the grounds of an appeal allege misdirection or Error in law, particulars of the misdirection or error shall be clearly stated”

 

The said ground of appeal seems to me to be also vague and general in its terms and therefore equally does not conform to Rule 8(6) of C.I.19.

 

Accordingly, the said ground of appeal is struck out for non-compliance with the relevant rules. See: F.K.A. Company Ltd and Anor V Nii Ayikai Akramah II and 4 others [2016] 101 GMJ 186

 

It is clear that the learned High Court Judge having examined the judgment of the trial District Court and having assessed the same in the light of the evidence led and the record of appeal before him virtually agreed with and affirmed the basic findings of fact made by the trial Court and hence accepted as reasonable and satisfactory the conclusions arrived at and the final determination of the case made by the Learned trial Magistrate, except for the little variation made to rightly exclude PW1, Mr. P.K. Ofori, and his land from the impact of the District Court judgment on the ground that PW1 was merely a witness in the case and not a party to the suit before the trial Magistrate and accordingly there could be no justification from the record for any order which purported to deny PW1 of his land which was not a subject matter in dispute between the parties in the action then pending before the District Court.

 

It is obvious that the instant matter before this Court concerns and touches upon concurrent judgments of two lower Courts, namely the trial District Court and the High Court which was the first appellate Tribunal that handled the case.The case originated from the then Community Tribunal at Sefwi Juaboso upon an application for writ of summons filed on 21/9/2001. The Plaintiff, Augustine Baidoo, commenced the action for himself and on behalf of his unnamed brothers and sisters against the two Defendants, named on the writ of summons as Yaw Nkuah alias Yehowah Adom and Agomay Kwasi, alias two-way for the following reliefs:

 

“(a) A declaration that plaintiff and his siblings are the owners of all that land situate at a place commonly known as “Apemanim” on Bakyire n wore stool land sharing boundaries with properties of Mr. Ofori, kwabena Asante, the 1st Defendant and Opanyin Kintoh.

” (b) General damages for trespass “

(c) An order of perpetual injunction restraining the Defendants, their agents, assigns, workmen family members etc. from entering the said land and in any way interfering with Plaintiff’s ownership of same.”

 

On 3/10/2001, the 1st Defendant reacted by filing a process by which he denied liability for the

Plaintiff’s claims and also filed a counter-claim for the following reliefs:

a) Declaration that 1st Defendant and his siblings are the owners of all the land situate and called “Apemanim” on Amoaya/Bahyirenwore stool land whose virgin forest was first broken by the 1st Defendant’s grandfather namely the 6th Nana Kyeame Kwaku Kye, late Opanin Kwasi Ofori in 1920’s/30’s. the said land share boundaries with the properties of late Opanin Beda and late Opanin Kwame Gyabeng.

b) Recovery of possession

c) General damages for trespass

d) And order for perpetual Injunction restraining the Plaintiff, his Successors, agents, servants, workmen and assigns from having anything to do with the said land”.

 

The parties were initially not represented by Lawyers and no pleadings were ordered by the Tribunal and non were filed by the parties themselves.

 

When trial eventually commenced in January 2005 before the District Court presided over by His Worship Kwaku Osei, Esq. the Plaintiff gave evidence himself and called three (3) witnesses in support of his case.

 

The 1st Defendant also gave evidence himself and called eight (8) witnesses in support of his case. The 2nd Defendant being a tenant farmer put on the land in dispute by the 1st Defendant appears from the record to have assumed the position of a nominal Defendant who took no active part in the proceedings. The 1st Defendant however explained in Court that the 2nd Defendant was absent because of ill health and accordingly he was standing in for himself and on behalf of the 2nd Defendant.

 

As noted above, the trial Magistrate entirely dismissed the claims of the Plaintiff as endorsed on his writ and based on the evidence before the Court. The trial Magistrate, on the other hand entered judgment for the 1st Defendant on his claims in the counter-claim and proceeded further to make an order against the Plaintiff’s first witness in relation to the land claimed by him and which appears to have been the subject matter of a previous dispute between the Plaintiff’s said first witness and the 1st Defendant, but which land clearly did not form part of the suit before the District Court.

 

From the record, it would seem that the Plaintiff and 1st Defendant both pegged their claim and root of title on alleged gift of the land. Whereas the Plaintiff traced his root of title to a gift from his late father and alleged further that the 1st Defendant was one of the boundary owners of the land claimed by him, it was the case of the 1st Defendant that the land claimed by the Plaintiff fell within and formed part of a much larger parcel of land which had originally been acquired by his named ancestors who reduced a virgin forest into cultivation. The 1st Defendant maintained that, that larger piece of land had been left fallow and turned into a secondary forest at the time he obtained same by way of customary gift and he went into possession and exercised acts of ownership and control over the land.

 

Having examined and assessed the contending and conflicting or rival cases of the parties,the trial Magistrate clearly preferred the caseput up by the 1st Defendant and rejected that presented by the Plaintiff. The Court found the witnesses of the 1st Defendant to be also more credible and more dependable than those of the Plaintiff and, accordingly,rejected the Plaintiff’s case, shot down his claims and dismissed his action.

 

Having preferred the 1st Defendant’s version of the matter before the Court, the Learned trial Magistrate naturally entered judgment for the 1st Defendant in relation to his counter-claim.

 

The learned Magistrate concluded his judgment in the manner as follows:

 

“All said and done, the 1st Defendants claim is more probable than the Plaintiff’s. The Plaintiff’s claim is hereby dismissed whilst the 1st Defendant wins in part on his counter-claim.

 

Consequently, the 1st Defendant is hereby declared the owner of the land situate at “Apemanim” on Bahyiwere stool land sharing common boundaries with the properties of Opanin Beda (now in the possession of the Ante Aya) and Opanin Kwame Gyabeng (now in possession of P. K. Ofori) with river Bengromisa being the boundary between the 1st Defendant’s land and that of P.K. Ofori. The 1st Defendant is entitled to recover possession of any portions of the land from the Plaintiffs and PW1. The Plaintiff’s, their agents, assigns, workmen, etc. are perpetually restrained from having anything to do with the land herein above described.

 

It is on record that the Plaintiffs are on the land in dispute cultivating same. They have clearly trespassed and the 1st Defendant is entitled to damages. I award four hundred cedis(GHc400.00) as damages for trespass whilst the cost of the entire matter is assessed at GHc 400.00.”

 

And, as pointed out earlier on, the appellate High Court Judge, having analysed the evidence and material on record, substantially agreed with the trial Court’s assessment of the evidence and the conclusions arrived at and, accordingly, dismissed the Plaintiff/Appellants appeal against the decision of the District Court, Sefwi-Juaboso.

 

It was the view and determination of both the trial Court and the first appellate High Court below that the Plaintiff had failed to discharge the onus of proof that lay on him according to law whereas the 1st Defendant had satisfactorily discharged the onus of proof in relation to the counter-claim on the balance of probabilities as by law enjoined.

 

It is noteworthy, as pointed out above, that the High Court affirmed the judgment of the trial Court on all the material facts and issues raised for determination and concurred in the judgment of the District Court.

 

In a situation such as this the governing principle is that settled by the Supreme Court in KOGLEX LTD (No, 2) V FIELD (2000) SCGLR 175 where the Court held as follows:

 

“ (2) where the first appellate Court had confirmed the findings of the trial Court, the second appellate Court would not interfere with the concurrent findings unless it was established with absolute clearness that some blunder or error, resulting in a miscarriage of justice, was apparent in the way in which the lower Court had dealt with the facts”.

 

On this, see also the case of Achoro V Akanfela (1996-97) SCGLR 209 and Obrasiwah II V Otu (1996-97) SCGLR. 628

 

In the case of Fosua and Adu-Poku V Adu-Poku Mensah (2009) SCGLR 310 at 331, Ansah, JSC, however, pointed out as follows:

“ A second appellate Court would justifiably reverse the judgment of a first appellate Court where the trial Court committed a fundamental error in its findings of fact but the first appellate Court did not detect the error but affirmed it and thereby perpetuated the error. In that situation it becomes clear that a miscarriage of justice had occurred and a second appellate court will justifiably reverse the judgment of the first appellate court. Thus stated, it cannot be said an appellate court cannot set aside a judgment where two lower courts had made concurrent findings of facts.”

 

In the same Fosua and Adu-Poku case (supra) Dotse, JSC beautifully set out in admirable detail the legal position in an appeal such as that confronting the Court in this case.

 

The disarming and tough-minded Supreme Court Judge stated the principle touching upon departing from concurrent findings, at page 348 and 349 of the Report, in such an impressive manner that I find it expedient to quote same in some detail as follows:

 

“ At this stage, it must be observed that any attempt to come to different findings of fact other than those that have been made by the learned trial judge and affirmed by the learned Justices of the Court of Appeal would be met by an established principle of law. This principle of law is that an appellate court, such as this court, can only differ from the findings of fact made by a trial court and concurred in by an appellate court (just as happened in the instant case) unless it is satisfied that any advantage enjoyed by the trial court in seeing, hearing and observing the demeanour of witnesses cannot be explained by the conclusions reached by the trial court. Indeed, there is a long line of distinguished foreign and local cases to illustrate this time-honoured and hallowed principle of law. Cases which immediately come to my mind and attention are the following: Thomas V Thomas[1947] All ER 582; Clarke V Edinburgh Tramways Co [1919] AC 243 at 250 HL; Akufo-Addo V Cathline [1992] 1 GLR 377 SC ( per Osei-Hwere JSC); Asante V CFAO [1961] GLR 125, PC; Ntiri V essien [2001-2002] SCGLR 451 and Achoro V Akanfela [1996-97 SCGLR 209 where the Supreme Court speaking with one voice through Acquah JSC (as he then was) stated the principle (as stated in holding (2) of the Headnotes) as follows:

 

“In an appeal against findings of fact to second appellate court like….. [the Supreme Court], where the lower appellate court had concurred in the findings of the trial court, especially in a dispute, the subject-matter of which was peculiarly within the bosom of the two lower courts or tribunals, this court would not interfere with the concurrent findings of the lower courts unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice, was apparent in the way in which the lower tribunals had dealt with the facts. It must be established, eg, that the lower courts had clearly erred in the face of a crucial documentary evidence, or that a principle of evidence had not been properly applied; or, that the finding was so based on erroneous proposition of the law that if that proposition be corrected, the finding would disappear ….. It must be demonstrated that the judgments of the courts below were clearly wrong.”

 

See also the Nigerian Supreme Court case of Adegbite V Ogunfaolu [1990] 3 NSCC 66, holding 1.

 

From the above authorities, the principle might be stated that an appellate court such as this court may interfere with the findings of fact of a trial court where the latter failed properly to evaluate the evidence or make the proper use of the opportunity of seeing or hearing the witnesses at the trial or where it has drawn wrong conclusions from the accepted evidence or where its findings are shown to be perverse”.

 

What cannot be forgotten or glossed over is that, as against the trial court, an appellate tribunal always has a comparative disadvantage in the sense that, unless in the exceptional circumstances where it takes fresh evidence, it must make its determination based on the cold print in the record of appeal or proceedings whereas the trial Judge had the opportunity to normally take the evidence directly from the available witnesses, being thereby in the position to watch or observe their demeanour and other antics discernable in the witness box. That is why the appellate court would usually defer to the assessment of evidence with regard to facts, except where the record shows clearly that the trial judge had abused his advantage or demonstrated an obvious failure or want of capacity to evaluate matters that directly came before him on a first-hand basis.

 

I am satisfied on a critical examination of the record that the admitted fundamental issues raised for determination in this case border on issues of fact. It is obviously trite that, in law, issues of fact are matters preponderantly in the domain of the trial judge to determine.

 

Thus, Ansah JSC in the Fosua and Adu-Poku case (supra) avidly accepted as correct the law set out by the Court of Appeal in that case thus:

 

“The generally accepted principle of law is that findings facts made by a trial judge should not be disturbed unless they are perverse or not supported by the evidence or record. In Bruce V Attorney General [1967] GLR 170, it was held, inter alia, that an appellate court should not disturb findings of facts made by a trial judge but it was equally true an appellate court was not precluded from doing so”.

 

This means in other words that whereas it is generally agreed that the findings of the trial court should not be disturbed without clear proof that they are wrong, nonetheless, however much a Respondent may hold a judgment to be unimpeachable, the Appellant is always entitled to show or demonstrate that the said findings are wrong. See: Abaka Nta V Anguah Bennieh (1939) 2 WACA1 at page 3 per Lord Atkins; Agyare V Kwakye, 10 WACA1.

 

In Bisi V Tabiri alias Asare (1984-86) GLR 282 Adade JSC emphasised the distinctive character and pre-eminent position of the trial tribunal in the manner as follows:

 

“As a Judge of fact, it is his peculiar province, listening to the evidence before him, to weigh the several statements on each issue and to decide which to believe and which to reject. So long as his conclusion can find support from the statement on record, it is not open to an appellate tribunal, except for just and compelling reasons to dismiss the findings made and the conclusions arrived at by the trial court”.

 

It is apparently against this back-drop that Ansah, JSC made his didactic pronouncement in

AGBESHIE and Anor V AMORKOR and Anor (2009) SCGLR 594 at page 601 thus:

 

“The principle of law was that where a trial Judge took into Consideration the demeanour of witnesses before her/him, as well as the substance and quality of their oral and documentary testimonies, before giving judgment, then, an appellate court has no power to disturb or interfere or reverse the judgment of the trial court; see: Ntiri V Essien (2001-2002)SCGLR 45, where the court held that:

 

‘ it is the trial court which determines matters of credibility of a witness, the existence or non-existence of any fact testified to by the witness:’”

 

In the Appeal Court case of: Akunor V Okan[1977] 1 GLR 173 at page 177 Justice Kingsley Nyinah, in my respectful view, appropriately summarised the basic duty imposed on an appellant when he stated that in order to succeed on appeal, the appellant was enjoined to demonstrate that:

 

There was an error of law on the part of the trial judge, or that there was some misappreciation by him of the facts and salient issues laid before him for determination.

 

See also: ASSIBEY V GBOMITTAH and 2 others (2012) 47 GMJ 61.

 

To achieve this basic objective, the appellant was expected to establish that at the trial court 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 the appellant had met the essential criteria for proving his case on the preponderance of the probability test. [Ref: the Assibey case (supra) per Baffoe-Bonney, JSC.

 

In the instant appeal can it be said that the appellant had succeeded in showing or otherwise demonstrating that the impugned judgment is wrong either in law or on the facts established in the case, based on the grounds of appeal, or that, further or in the alternative, by virtue of Rule 8(8) of the Court of Appeal Rules, 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 thoroughly and dispassionately. I have considered in great detail the judgment of the trial District Court as well as the first appellate High 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 grounds of appeal and passionately argued in the written submissions filed by Counsel on behalf of the Appellant lack the peg on which to hang on.

 

To be taken seriously those complaints or objections must rest on a solid foundation or be based on “credible, intelligent and quality evidence”, which I regrettably find lacking in the Plaintiff/Appellant’s case as assessed and established by the decision of the trial court and confirmed by the judgment of the first appellate High Court below.

 

As pointed out earlier on in this judgment, the issues raised for determination in the case before the trial court were essentially factual. Fundamentally, in law, the determination of such factional matters essentially lies in the province of the trial court.

 

In Holding (3) of the Headnotes of the case entitled: Takoradi Flour Mills v Samir Faris [2005-2006]

SCGLR 882 at page 883 the Supreme Court of Ghana held, inter alia, 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.”

 

It is my firm opinion that on the evidence as analysed and assessed by the trial Magistrate and concurred in by the appellate High Court below, the findings and conclusions arrived at by the two Courts below cannot be faulted.

 

In the particular 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 the specific evidence may be found to support the position I have taken in this case. See ATTITSOGBE V 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 judgment of both the trial magistrate and the Learned High Court Judge.

 

I have no hesitation, therefore, in generally, accepting and adopting their assessment of the evidence and their findings of fact as well as their analysis of the issues raised for their determination, together with the conclusions they arrived at, as contained in the record of appeal. Basically, I find the judgments of the District Court and the High Court to have been well and satisfactorily written.

 

In conclusion, I wish to emphasise that the Appellant failed to demonstrate from the record any compelling or overwhelming reason, as he was enjoined to do, why the relevant concurrent findings of fact made by the two lower courts in respect of the case ought to be set aside. See In re Wa Na; B.K. Adama (substituted by) Issah Bukari & Anor vrs Yakubu Seidu [2005-2006] SCGLR 1088 (Holding 1 of Headnotes).

 

In the circumstances, I do not accept that either the judgment of the trial District Court or that of the first appellate High Court below is against the weight of evidence led, having regard to all the material put before the lower courts for their consideration.

 

Where they had to exercise their discretion, they had generally done so satisfactorily and reasonably, and not perversely.

 

In the event, I find no merit in the instant appeal and, accordingly, I hereby dismiss the same in its entirety. The impugned judgment of the High Court, Sefwi Wiaso, dated 17th January, 2014 is therefore endorsed and confirmed, and the appeal is consequently rejected.

 

SGD

………………

SAEED K. GYAN, JA

JUSTICE OF THE COURT OF APPEAL

 

SGD

I agree .                              .............................

C.J. HONYENUGA

JUSTICE OF THE COURT OF APPEAL

 

SGD

I also agree                           ................................

G.S. SUURBAAREH

JUSTICE OF THE COURT OF APPEAL