IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2017
CO-OPERATIVE TRANSPORT SOCIETY LTD -(Plaintiff/Appellant)
GHANA PRIVATE ROAD TRANSPORT UNION - (Defendant/Respondent)
DATE: 16TH MARCH, 2017
CIVIL APPEAL NO: H1/127/2016
JUDGES: OFOE JA (PRESIDING), KORBIEH JA, CECILIA H. SOWAH (MRS) J.A.
GLORIA KANKO ARTHUR FOR THE PLAINTIFF/APPELLANT
MODESTO KPODOVIA FOR THE DEFENDANT/RESPONDENT
F.G. KORBIEH, J.A.
The plaintiff/appellant herein filed a writ in the Tema High Court asking for the following reliefs:
a) A declaration that the loading space at the Motorway roundabout directly opposite that of the defendant herein belongs to the plaintiff by virtue of the permit granted to it by TMA dated 15th January, 2002.
b) Perpetual injunction restraining the defendant herein, its agents, privies and assigns from interfering with the business of loading cars and vehicles by the plaintiff at the space granted to it by the TMA.
The plaintiff later amended the writ of summons to include an alternative relief which was couched as follows:
Or in the alternative a declaration that subject to compliance with the regulations and/or guidelines of the Tema Metropolitan Assembly, members of the plaintiff society are entitled to operate their transport business from the loading space at the Motorway Roundabout directly opposite that of the defendant by virtue of the permit granted by the Assembly on the 15th January, 2012.
In support of these claims or reliefs, the plaintiff/appellant (hereinafter simply referred to as the appellant) averred, among other things, as follows: it was a registered transport organization which had applied to the TMA for a permit to use the space at the Motorway Roundabout opposite the space used by the defendant to operate its business. It continued that by a letter dated 15/1/2002 the TMA had granted it a permit to use the space as a lorry park and that it had being paying user fees to the TMA for the space in dispute. But that as soon as it started using the place the defendant/respondent had sought to prevent it from using the place. In its statement of defence, the defendant/respondent had denied the appellant’s claim and most of the material averments of fact in support thereof and instead pleaded that it had been operating its stations at both ends of the Motorway Roundabout for over 22 years. The defendant/respondent (hereinafter referred to simply as the respondent) also averred that it had issued a writ of summons against the plaintiff in the Circuit Court at Ashaiman in Suit No. C1/11/2010 on the same subject matter and that the case was being heard in that court which therefore made this case one of “judicial abuse”. The respondent further averred that the station the subject matter of the dispute had been created by the respondent itself and therefore counter-claimed for the following reliefs:
a) A declaration that the loading spaces at both ends of the Motorway Roundabout belong to the defendant by virtue of their permits and operation at the station for more than 22 years.
b) Perpetual injunction restraining the plaintiff from loading at the station.
In its reply and defence to counter-claim, the appellant again averred, among others, as follows: that it operated alongside the respondent on the disputed site until some members of the respondent union joined the appellant’s society; that the appellant temporarily stopped operating at the disputed location due to the big size of the buses of its members but resumed operating when its members acquired smaller-size buses; that following the construction of the dual carriage road from the Motorway Roundabout to the Kpone Barrier, the appellant sought permission from the TMA to operate at the space opposite the station where the respondent operated from; that the TMA granted the appellant the permission following the failure of the respondent to attend a meeting called by the TMA but later the respondent maneuvered through the police and other authorities to stop the appellant from operating there; that it had a permit and licence from the TMA as far back as 2002 and since then had operated its business from that space. The appellant denied the respondent’s claim to the reliefs as contained in the respondent’s counter-claim and joined issues generally with the respondent on its defence.
At the end of pleadings the trial court set down both the appellant’s issues and the respondent’s additional issues as the issues for trial in the case. The case proceeded to trial at the end of which the trial judge gave judgment in favour of the respondent. It is that judgment that the appellant has appealed against on the following grounds:
1) The learned trial judge erred in dismissing the plaintiff’s claim because in his view there was a potential risk of tension and clashes between the parties.
2) The learned trial judge’s conclusion that the plaintiff failed to adduce cogent evidence to show it was granted a permit to specifically operate from the area it described as opposite the defendant operates from is not supported by the evidence.
3) The learned trial judge was wrong in concluding that the plaintiff had not led evidence to prove that they had lived up to their rights and obligations and therefore were not legitimate licensees of the Tema Metropolitan Assembly in view of the evidence.
4. The learned trial judge failed to appreciate the import of the plaintiff’s alternative claim/relief.
5. The learned trial judge erred in restraining the plaintiff from operating as claimed by the defendant.
6. The judgment is against the weight of the evidence.
7. Additional grounds to be filed upon receipt of the record of appeal.
The relief sought from this Court is for the judgment dated 30th July, 2015 to be set aside and judgment entered for the appellant so that the reliefs endorsed on the writ are granted the appellant.
I have to say, for the record, that no additional grounds of appeal were later or ever filed. Learned counsel for the appellant commenced his submissions by arguing ground one of the grounds of appeal first. For emphasis I will repeat this ground which is couched as follows: the learned trial judge erred in dismissing the plaintiff’s claim because in his view there was a potential risk of tension and clashes between the parties. Before I proceed to consider the details of counsel’s submissions however, I have to say that there are certain ground rules, so to speak, of appeal that an appellate court must consider before it decides whether or not to accede to the appellant’s demand to overturn what, after all, is an otherwise valid and subsisting judgment. It is for that reason that it is provided in Rule 8(1) of the Court of Appeal Rules, 1997 (C.I.19) that an appeal shall be by way of rehearing. This enjoins this Court to go through the entire appeal record as though it were hearing the case afresh. I have done just that and I am sorry to say that I find learned counsel’s arguments on this ground completely miss the point. In the first place, there is evidence to support the trial judge’s finding of fact that there was tension and clashes between the parties and therefore further potential risk of more tension and clashes in the future. On page 100 of the record this is how the respondent’s representative, Gideon Kwasi Kumah testified:
“WITNESS: The police invited both sides to the TMA with the service Commander in attendance. The outcome was that the plaintiffs were stopped. They were ordered to remove their kiosk from the place I wish to tender the notice.
AIDOO: No objection.
BY COURT: Admitted as Exhibit 10.
WITNESS: The plaintiffs refused to abide by the order of the TMA. This resulted in clashes at the place. We filed a case at the Ashaiman Circuit Court. The case is pending at the Tema Circuit Court ‘B’.”
This is what led to the intervention of both the police and the Tema Metropolitan Assembly to try to resolve the impasse. Even though this witness was subjected to cross-examination, this part of his evidence was never challenged. Hence the trial judge had evidence to back his finding of fact that there had been tension and clashes.
Curiously counsel tagged unto his submission an argument that should have been made under a ground of appeal that was one of error of law. This was the argument….
“It is our submission that by reasoning of the Judge supporting the restraining of the Plaintiffs, he erred in law since it amounted to regulating the use of motor parks which by law is the preserve of the Assembly…The effect of the injunction against the Plaintiffs is to revoke the permission granted them by the TMA which the trial Court had no power to do in this case.”
This submission is reminiscent of an argument in support of ouster clause in an enactment since it strongly but erroneously suggests that the “law” in question has the effect of ousting the jurisdiction of the court. The law in question is section 76 of L.I. 1493 (the Local Government (Tema District Assembly)(Establishment) Instrument, 1989) which reads as follows:
“To regulate the use of public vehicles, to regulate routes and parking places to be used by such vehicles, to appropriate particular routes, roads and parking places to specified classes of traffic and where necessary to provide the identification of licensed vehicles as defined in the motor traffic ordinance.”
Nothing in that provision remotely suggests that the jurisdiction of the trial High Court was ousted in interpreting and/or enforcing or giving effect to that law. Hence learned counsel was far from right when he submitted that by granting the injunction, the learned trial judge was usurping the power of the Tema Metropolitan Assembly which the latter had exercised in exhibit B. It is trite learning that it is the constitutional and statutory duty of a court of competent jurisdiction to interpret and enforce laws. So the trial High Court was only doing its constitutional and statutory duty when it granted or ordered the injunction. It is therefore preposterous for counsel to suggest or imply that the trial High Court had no power to grant an order of injunction in the case of a subsidiary legislation simpliciter.
But beyond those arguments, there is further evidence on record that supports the decision of the trial court that the appellant should not operate at the site in dispute. In his evidence-in-chief, PW1, Eden Nyadudzi, stated clearly that the appellant had not registered with the Tema Municipal Assembly (TMA) to use the Motorway Roundabout lorry park and that it was only the respondent that had been authorized to use that place. Bearing in mind that PW1 was the appellant’s own witness, the legal principle that where the evidence of one party on an issue in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one, unless for some good reason (which must appear on the face of the judgment) the court finds the corroborated version incredible or impossible. See the case of Osei Yaw and Another v. Domfeh  GLR 418 where the dictum of Ollennu J. (as he then was) in Tsrifo v. Dua VIII  G.L.R. 63 at pp. 64-65 was approved and Banahene v. Adinkra And Others  1 GLR 346 where the Court of Appeal followed the decision of the Supreme Court in the case mentioned immediately supra. The learned trial judge can therefore not be faulted in deciding to choose the evidence of the respondent over that of the appellant.
In addition to all the arguments above, it was the submission of learned counsel for the respondent that since the lorry park in contention had not been created by the TMA, the exhibit B that the appellant was bandying about was not applicable to the lorry park in dispute. A scrutiny of the said exhibit B reveals that the appellant was given permission to operate at “all Lorry Parks belonging to the Tema Municipal Assembly.” There is incontrovertible evidence that the lorry park in dispute was created by the respondent and not the TMA So the question is: Did that lorry park belong to the T.M.A? It was learned counsel’s argument that in so far as the TMA did not “create” the Tema Motorway Roundabout lorry station, then the TMA did not own that lorry station hence the lorry station was not one of the lorry stations meant to be included in exhibit B. From the totality of the evidence on the record, I cannot help but agree with counsel’s assessment of the evidence because the appellants were debarred from operating from stations other those created by the TMA such as the Community One and Ashaiman stations. (See the evidence of the Respondent’s representative, Gideon Kwasi kumah on pages 100-101 of the ROA.)
Ground one is accordingly therefore dismissed.
I will next treat grounds 2, 3 and 6 together which I will collectively subsume under the omnibus ground: the judgment is against the weight of the evidence. I have already stated that an appeal is by way of rehearing. But when it comes to this omnibus ground of appeal, this principle has been expanded and given meaning over the years by our superior courts. I need only two of them to illustrate my point. In Tonado Enterprises & Others v. Chou Sen Lin [2007-2008] SCGLR 135 at page 139 this is what Brobbey, JSC said:
“The law on this type of appeal is [too] well-settled to require detailed elaboration here. The defendants, who relied on that ground of appeal, assumed the onus of satisfying the appellate court that the evidence led in actual fact was not strong enough to substantiate the findings made on it. This obviously required [an] examination of the entire record in order to evaluate the evidence in relation to the conclusions of the record below.”
In Djin v. Musa Baako [2007-2008] 1 SCGLR 686 the Supreme Court made it clear that:
Where an appellant complained that a judgment was against the weight of evidence, he was implying that there 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 were wrongly applied against him. The onus was on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment appealed against.
Two things stand out clearly in these two cases. The first is what I have already alluded to; that this Court has a duty to scrutinize the entire record with a view to ensuring that the decisions arrived at by the trial court are supported by the evidence on record. That is what is meant by rehearing the case. The second is that the appellant bears the onus to point out the evidence that, if applied in his favour, could have changed the decision in his favour or the evidence that was wrongly applied against him.
In the case on hand the appellant’s complaints are that: the learned trial judge’s conclusion that the plaintiff failed to adduce cogent evidence to show it was granted a permit to specifically operate from the area it described as opposite the defendant operates from is not supported by the evidence; the learned trial judge was wrong in concluding that the plaintiff had not led evidence to prove that they had lived up to their rights and obligations and therefore were not legitimate licensees of the Tema Metropolitan Assembly in view of the evidence and that the judgment is against the weight of the evidence. The arguments of learned counsel for the appellants on these grounds may be summarized as follows: exhibit B is a permit that the TMA granted to the appellants to operate in all lorry stations owned by TMA; the appellants had being paying fees to the TMA for the use of these lorry stations; the trial judge only prevented the appellants from using the lorry station in dispute because the parties were competitors in business; the trial judge thought there was a likelihood of tension and clashes between the parties. A summary of the arguments of learned counsel for the respondent is as follows: the appellants failed to show that they were granted a permit to specifically operate at the lorry station in dispute which had been created by the respondent. These three grounds border mainly on evidence. The learned trial judge made various findings of fact before he reached his decisions which form the bases for all three grounds. The law as laid down in the case of Achoro v. Akanfela [1996-97] SCGLR 209 and re-echoed in Jass Co Ltd. v. Appau  SCGLR 265 at page 275 where Dotse, JSC said as follows: “…findings of fact made by a trial court who heard and observed witnesses when they testified before him or her are generally not departed from by an appellate court save where those findings are clearly unsupportable, having regard to the evidence on record…” must be applied. Accordingly I must uphold the finding that the appellants failed to adduce sufficient or cogent evidence to prove that exhibit B entitled them to operate at the lorry station in dispute. The question that the appellants should ask themselves is: if exhibit B entitled them to operate at all lorry stations, why were they not operating at both lorry stations at the Motorway Roundabout?
But in addition to the above, the appellants’ own pleadings were at variance with their evidence. For instance, they had pleaded in paragraph 7 of their statement of claim as follows:
“7. The Plaintiff says the space granted it was the opposite side of the road to where the Defendant operates its business.”
And yet the only evidence the appellants could come up with was exhibit B which talked of the TMA granting them access to the generality of lorry parks owned by the TMA. As it turned out, this particular lorry park had not been granted exclusively to the appellants for its use. Thus the learned trial judge was right to have held that the appellants failed to adduce cogent evidence to show that they had been granted a permit to specifically operate from the area they described as opposite space the defendant operates from. I therefore dismiss grounds 2, 3 and 6 as being without merit.
I now come to ground 4 which reads as follows: the learned trial judge failed to appreciate the import of the plaintiff’s alternative claim/relief. The plaintiff/appellant’s alternative claim/relief was couched as follows: Or in the alternative a declaration that subject to compliance with the regulations and/or guidelines of the Tema Metropolitan Assembly, members of the plaintiff society are entitled to operate their transport business from the loading space at the Motorway Roundabout directly opposite that of the defendant by virtue of the permit granted by the Assembly on the 15th January, 2012. This permit is the same exhibit B that has been referred to numerous times in this judgment. The arguments of learned counsel for the appellants on this ground are more theoretical than based on the evidence on the record. The gravamen of his arguments is captured in this statement: “should they fulfill their obligations to the TMA they should be entitled to operate from the lorry station mentioned because it is a lorry station belonging to TMA…” It was rather the appellants and their counsel who failed to appreciate the fact that merely paying using fees to the TMA did necessarily entitle them to the use of the lorry station in dispute. This is because there is overwhelming evidence on record (even from their own witness) that they were not entitled so to do. This ground of appeal is also therefore dismissed.
The last ground of appeal is ground 5 which complains that the learned trial judge erred in restraining the plaintiff from operating as claimed by the defendant. It is the appellant’s argument that since both parties were licensees of the TMA, the trial judge’s view that they were trade or commercial competitors was enough ground for him to have debarred the appellants from operating from the lorry station in dispute. Their counsel argued further that the appellants were not total strangers and were “in fact also licensees with the same rights and obligations under the permits issued both parties by the TMA.” This assertion is not all borne out by the evidence on record. One wonders what made the appellants licensees in relation to the lorry station in dispute and which licenses counsel is referring to. There is only one permit that was issued to the appellants, exhibit B, which has been extensively dealt with herein. Exhibit B cannot be said to have conferred equal rights on the appellants as the rights the respondent had. It has been demonstrated, through the evidence on record that the TMA did not mean to grant operating rights to the appellants to operate at the lorry station in dispute when it granted exhibit B to the appellant. (See the evidence of PW 1 on page 78 of the ROA and the evidence of the respondent’s representative, Gideon Kwasi Kumah, on page 104 of the ROA.) This ground of appeal will also be dismissed and is hereby dismissed.
The appeal is accordingly dismissed in entirety as being without merit.