KUSI-APPIAH, J.A.: This appeal arises from the judgment of the High Court, (Fast Track Division), Accra, dated 21^st day of February, 2014, entered in favour of the plaintiff/respondent (hereinafter referred to as the respondent) against the defendant/ appellant (hereinafter referred to as the appellant).

The simple issue in this appeal is a factual one of determining whether the plaintiff (now respondent) harvested the total volume of 2,173m³ teak trees which covered the GH₵500,000 it paid from the area allocated to it by the defendant (now appellant) herein. In my view, that issue was elaborately pleaded and adequately canvassed at the trial to obviate any blurring of it. I turn first to the facts of the case.

The case of the plaintiff (now the respondent) as gathered from its pleadings and especially from the evidence at the trial, is that, the respondent is a Limited Liability Company which carries on the business of felling and production of teak and timber trees. The respondent averred that sometime in October, 2007, it successfully bid for one of the defendant’s timber plantation lot and subsequently entered into a contract (Plantation Timber Utilization Contract) with the appellant on 26^th October, 2007.

According to the respondent, per their contract, the appellant was to give it an area containing 5,513 teak trees or stems with an estimated volume of 2,604m³ for GH₵598,920:00. Respondent contended that it paid a deposit of GH₵500,000:00 to the appellant with an assurance to pay the balance later.

It is the case of the respondent that when it commenced felling of the trees in its operational area it realized only 1,645.09m³ valuing GH₵378,984:00. To arrest the situation, the respondent petitioned the appellant for a top-up to make up for the 2,604m³ the company bid for. The respondent testified that after deliberations on the matter, the appellant agreed to give the respondent an estimated teak volume of 117.423m³ as top up from another plantation, but the appellant failed to honour its promise.

The respondent further contended that from the quantity of timber realized, the payment it made to the appellant was in excess of GH₵121,628:60 which sum the appellant should have refunded to the respondent since May 2008; but has neglected and unlawfully failed to do. The respondent claimed that the appellant has breached the contract by not supplying the shortfall of 959m³ and has thus caused great damage and loss to the respondent. The respondent therefore issued a writ of summons in the High Court claiming:

“(a) Damages for breach of contract or in the alternative

(b) Refund of the sum of GH₵121,628.60

(c) Interest on the sum of GH₵121,628.60 calculated at the commercial bank of final payment”.

The appellant resisted the respondent’s claim by its statement of defence filed on 7^th October, 2010 and stated that the respondent is not entitled to any of the reliefs claimed at all.

According to the appellant, it initially declined respondent’s request for the top-up but eventually agreed to look into the matter upon petition by respondent to the speaker of parliament. It stated that after meeting with respondent’s representatives on 23^rd September, 2008 the appellant agreed to give respondent an estimated teak volume of 117.423m³ as top-up after the respondent had indicated that it had harvested and conveyed teak logs estimated at 1645.192m³ from its operational site.

However, subsequent information submitted on respondent’s operations by appellant’s manager in-charge of the respondent’s operational area revealed that the respondent had harvested and conveyed more teak billets from its operational site in far excess of the 1645.192m³ respondent claimed to have obtained as at 23^rd September, 2008.

The appellant testified that armed with this new information, it consequently communicated its findings and decision to respondent by making it known that its earlier decision to give respondent 117.423m³ as top-up would not hold again as it did not qualify for a top-up. It is the case of the appellant that the respondent was thus informed on 26^th October, 2009 to continue with its outstanding operations to remove 64.576m³ from its operational area which had 466 residual trees with an estimated total volume of 83.963m³ without expecting any top-up from the appellant.

The appellant contended that respondent managed to remove 30.931m³ out of the 83.963m³ before its entry permit expired in November, 2009. It maintained that the said permit was renewed by appellant on 26^th April, 2010 to enable the respondent remove the remaining 33.645m³; 53.032m³ but the respondent rather chose to proceed to court.

These claims were hotly disputed by the parties herein. Therefore, a plethora of issues were joined and thrown up for determination. After a full trial, the learned trial judge entered judgment for the respondent herein and granted almost all the reliefs sought by it. Against this decision, the appellant has lodged this appeal. The grounds of appeal as contained in the Notice of Appeal filed on 11^th March, 2014 are as follows:

“(a) That the ruling (sic) is against the weight of evidence.

(b) The learned trial judge erred when he failed to consider in his ruling (sic) two additional issues that were set down for determination by the court which failure has occasioned miscarriage of justice.

(c) The High Court erred when it held that the term “teak volume” refers to the actual teak taken from the concession and not teak trees felled.

(d) That the learned trial judge erred when he observed that the defendant’s evidence keeps changing from admission to denials, which observation is not borne out of record.

(e) The High Court erred when it granted reliefs (b) to plaintiff as refund of GH₵121,628.20 which amount is estimated at or equivalent to 528.81m³ of tree volume which exceeds by far the 117.423m³ figure initially agreed by the parties as the agreed short fall.

(f) The High Court erred when it held that the defendant agreed to top-up plaintiff’s short fall with teak volume of 117.423m³ on the totality of evidence on record.

(g) Additional grounds of appeal to be filed upon receipt of the record of proceedings.”

I must say that even though the appellant indicated that it would file further grounds of appeal in its notice of appeal, it did not do so.

Several grounds of appeal were filed by (appellant) defendant but to us the omnibus ground that the judgment is against the weight of evidence encompasses all the six grounds of appeal. This omnibus ground is essentially complaining that the trial judge’s findings and conclusions which were predicated on the facts listed by learned counsel for the appellant in his written submissions are not supported by the evidence on record.

It is instructive to note that all the grounds of appeal in the instant case are based on factual issues. The law is quite clear on findings of fact. The position is that if there was sufficient and credible evidence on record upon which the trial court’s conclusion was based, the appellate court would not interfere. But of course, if the findings are perverse and or are not borne out by the evidence on record, the appellate court will not hesitate to interfere.

Moreover, the appellate court is permitted by law to draw its own inferences from the accepted evidence and may reach a different conclusion, bearing in mind however that the court below has had the inestimable advantage of seeing and hearing the witnesses give their testimony.

In Koglex Ltd. (No. 2) vrs. Field (2000) S.C.G.L.R. 175 at 185, the Supreme Court held that an appellate court is justified in interfering with the findings of the trial court where:

“1. The findings of the trial court are clearly unsupported by evidence on record, or where the reasons in support of the findings are unsatisfactory.

2. Improper application of a principle of evidence or where the trial court has failed to draw an irresistible conclusion from the evidence.

3. The findings are based on a wrong proposition of the law, or

4. The findings is inconsistent with crucial documentary evidence.”

Judgment Against the Weight of Evidence

I now proceed to deal with ground “A” of the appeal which is the omnibus ground that the judgment was against the weight of evidence. Whenever an appeal is based on this omnibus ground for consideration, the appellate court has jurisdiction to examine the totality of the evidence before it and come to its own decision on the admitted and undisputed facts. See Akuffo Addo vrs. Catheline (1992) 1 G.L.R. 377 S.C. In Oppong Kofi & Ors Vrs. Attibrukusu III (2011) S.C.G.L.R. 176, the Supreme Court espoused on the Court of Appeal’s obligation and how it discharges it when there is a charge that the judgment is against the weight of evidence. At page 188, the court observed:

“Essentially, the effect of that ground of appeal was to invite the court of appeal to review the whole of the evidence, documentary and oral, adduced at the trial and come out with a pronouncement on the weight of evidence in support of the trial court or otherwise. Where findings are based on established facts, the appellant court is in the same position as the trial court and it can draw its own inferences from the established facts.”

Thus, when an appellant complains that the judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on record which if applied in his favour could have changed the decision in his favour or certain pieces of evidence have been wrongly applied against him. The onus in such an instance is on the appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against. See Djin vrs. Musah Baako (2007-2008) S.C.G.L.R. 686 at 687 holding 1. This court also held in Boateng vrs. Boateng (1987-88) 2 G.L.R. 81 C.A. that an appellant who contended that the judgment was against the weight of evidence assumed the burden of showing from the evidence that that was so. It behoves on the defendant to demonstrate to this court which pieces of evidence the trial court failed to consider and evaluate.

In arguing the first ground of appeal which is that the judgment is against the weight of evidence, the defendant in its written submission takes issue with the conclusion arrived by the trial judge that the plaintiff has been very consistent in his evidence in respect of the volume given and conveyed as well as the shortfall, whilst the defendant’s evidence keeps changing from admission to denials, when the said findings were not supported by the evidence on record.

Learned counsel for the defendant submitted that the trial judge did not adequately consider the evidence of the defendant in its totality. He contended that had the trial court properly evaluated the evidence of the plaintiff especially Exhibits 6, 7 and 8 together with the defendant’s Exhibit 17 series, it would not have so found.

Counsel further submitted that the plaintiff in proving his case at the trial relied on Exhibits 6, 7 and 8 which were the minutes of meeting held on 23^rd September, 2008 where the appellant recommended that teak trees equivalent to 117.423m³ be given to respondent as top up to meet the anticipated shortfall arising out of the 1645.192m³ which the respondent claimed to have harvested out of the estimated volume of 2,604m³.

He lamented that Exhibit 17 series which covered the operations of the respondent within its operational area from 15^th December, 2007 to 18^th December, 2009 disclosed that the respondent had harvested and conveyed teak volumes of 1784m³ from its operational sites which was in excess of the actual volume the respondent would have obtained (i.e. 1645.192m³ + 117.423m³ = 1762.615m³), if the 117.423m³ had been allocated officially. Simply put, counsel for the appellant argued that if the appellant had allocated the 117.423m³ top-up to respondent, the latter would have increased its volume from 1645.192m³ (which it claimed to have only harvested and conveyed) to 1762.615m³.

Counsel for the appellant contended that contrary to the documentary evidence on record, Exhibit 17 series, which indicated that the respondent had harvested and conveyed total log volume of 1784m3 or tree volume of 2,230m³ as at 18^th December, 2009 from its operational site, which was in excess of 56.11 cubic metres valued at GH₵12,905:00 (and thus in excess of what the respondent had paid for), the learned trial judge made a finding that the appellant failed to honour the top-up agreement, hence a breach on its part. In counsel’s view, this finding is inconsistent with crucial documentary evidence on record. Counsel cited the case of Lugudah vrs. Ghana Commercial Bank (2005-2006) S.C.G.L.R. 388 to support his stand.

In considering whether or not the trial judge gave adequate consideration to the defendant’s case vis-à-vis that of the plaintiff herein, we need to examine the evidence on record as a whole. In this appeal, the plaintiff/respondent who asserts the claim that the defendant/appellant has breached the contract which assertion is denied by the defendant, has to adduce evidence sufficient to establish a prima facie case as required by Section 14 of the Evidence Act, 1975 (N.R.C.D. 323).

It was only when it has succeeded in doing so by its evidence, establish facts from which an inference can reasonably be drawn in its favour that the burden of producing evidence would shift to the defendant. For if the plaintiff did not produce that kind of evidence, a ruling would be given against it on that issue.

To meet the test of sufficiency, the plaintiff (or the party with the burden of producing evidence), is entitled to rely on all the evidence on the issue and need not rest only on its evidence to establish the point that the defendant has breached the contract. In this regard, a party may rely on evidence by the other that helps meet the test of sufficiency.

This appeal being a civil suit, the rules of evidence require that the plaintiff produces sufficient evidence to make out its claim on a preponderance of probabilities as defined by Section 12(2) of the Evidence Act, supra. The crucial question now is: did the plaintiff lead sufficient evidence in proof of its claim that the defendant has breached the contract between the parties herein?

At the trial, the plaintiff company through its Managing Director, Mr. Ato Anderson testified under oath how the plaintiff/respondent entered into a contract (Plantation Timber Utilization Contract) with the appellant on 26^th October, 2007 to harvest the total volume of 2604m³ teak trees from the area allocated to it by the appellant for GH₵598,920:00. According to the respondent it paid GH₵500,000 to cart 2173m³ teak trees from the site, but was able to harvest 1645.192m³ leaving a shortfall of 528m³. It is the case of the respondent that since it bid GH₵230 per cubic metre (m³) and having only harvested 1645.09m³, it should be interpreted to mean that it had only benefitted from just GH₵378,984:00 out of the GH₵500,000 already paid, and thus the difference which allegedly stands at GH₵121,628:60 should be deemed outstanding, hence the instant suit against the appellant for the recovery of that amount.

It is pertinent to note that throughout the trial of this case before the court below, the defendant (now appellant) vehemently disputed and contested respondent’s assertion that the defendant has breached the contract. In such situation, the plaintiff (now respondent) ought to lead cogent and admissible evidence to vindicate its assertion that the defendant by its commission or omission did breach the contract between the parties herein.

In the case of Zabrama vrs. Segbedzi (1991) 2 G.L.R. 221 C.A., the Court of Appeal stated the law on proof as follows:

“A person who makes an averment or assertion which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden”.

In the instant case, the plaintiff who asserted that the defendant has breached the contract between the parties herein which assertion was denied by the defendant has the burden to establish that its assertion is true. But a cursory look at the evidence of the plaintiff (now respondent) indicates that it came to repeat its pleadings on oath without more. However, the defendant (now appellant) controverted the plaintiff on the issue of the defendant breaching the contract following the shortfall of teak trees paid for and those harvested by the plaintiff from the area allocated to it.

Admittedly, the law frowns upon proof of evidence by a party repeating its pleadings on oath without more as same is settled in cases like Majologbe vrs. Larbi & Ors. (1959) G.L.R. 190, 195 S.C. and Zambrama vrs. Segbedzi supra. Guided by the above principle of law, I would not describe the bare assertion of the plaintiff on its pleadings that the defendant has breached the contract between the parties herein.

I must say that the contents of Exhibit 17 series authenticate what really took place as far as plaintiff’s operations in Lot 6 are concerned. The evidence on Exhibit 17 series is therefore very crucial. The contents of Exhibit 17 series are very clear that the plaintiff has signed Plantain Production Certificate

(PPC) forms indicating that the company has taken 1784.019m³ from its operational area since the commencement of its operation. Indeed, there is not a single duplication in the entire Exhibit 17 series to arouse an existence of possible double measurement.

This brings me to the question why the trial judge failed to consider the evidence of defendant in respect of Exhibits 17 series which are documentary evidence relating to Plantation Production Certificate (PPC’s) which were duly signed by the Plaintiff’s Managing Director or his representative.

Indeed, the contents of Exhibit 17 series completely eliminated any degree of credibility that may be attached to the plaintiff pieces of evidence that the defendant has breach the contract. In Yorkwa vrs. Duah (1992-93) G.B.R. 278, C.A., the court held inter alia that: “Whenever there was in existence a written document and conflicting oral evidence, the practice of the court was to lean favourably towards the documentary evidence, especially if it was authentic and the oral evidence was conflicting.” That the Exhibit 17 series were authentic cannot be denied. And once the said Exhibit came from the approved and official source, the plaintiff could not have had any conceivable form of objection to its admissibility. I must add that once the documents are accepted as Exhibits, they formed part of the record. The trial judge was therefore bound by law to consider and evaluate them at the end of the trial.

From the foregoing reasons, I find that the trial judge grievously erred when he failed to consider the evidence of the defendant in respect of Exhibit 17 series.

I must say that in contrast to the plaintiff’s (now respondent) tenuous case, the defendant (now appellant) produced documentary evidence which showed that the respondent had harvested and conveyed a total log volume teak billet of 1,784.019m³ equivalent tree volume of 2,230.023m³ which was in excess of 2,173m³ the respondent paid for.

It is interesting to observe that in the teeth of the overwhelming evidence on the record of appeal, established on a preponderance of the probabilities that the defendant/appellant had sufficiently and satisfactorily discharged their burden of proof and persuasion in proving that they have not breached the said contract, as opposed to the failure of the plaintiff/respondent to prove its claim with inconsistencies, contradictions and lingering doubts, the trial judge had this to say to justify his judgment in favour of the plaintiff at page 5 of the judgment as follows:

“Having failed to honour the top-up agreement, I hold that the defendant breached the second part of the contract which it wrote by itself as an addendum to the original contract per Exhibit 6, 7 and 8. On the whole therefore, I find that the plaintiff has proved its case on the balance of probabilities…”

My candid comment on this conclusion of the learned trial judge is that the trial judge obviously stabbed justice at the back by giving judgment on the facts and circumstances of this case to the respondent who did not deserve that judgment whilst denying justice to the appellant who deserved justice in the matter as I have shown in this judgment.

As Edward Wiredu J.S.C. (as he then was), observed in the case of Nyarko vrs. Frimpong (1998-99)

S.C.G.L.R. 734 at 742 S.C.:

 “The justice to be dispensed is justice within the law and not one of sympathy. Judicial sympathy, however, plausible, can never be elevated to become a principle of law.”

In my view, the judgment in this case is one of sympathy and not justice dispensed within the law. For these reasons, I find that the judgment appealed from is heavily against the weight of evidence on record. Accordingly, I would allow the appeal and set aside the judgment of the court below.