AYEBI, JA

This is an appeal against the ruling of the High Court, Kumasi wherein the trial judge ruled that a preliminary legal issue raised and argued is not appropriate to dispose of plaintiffs/respondents’ claim and directed that a full trial should be held.

From the pleadings, one Nana Owusu Yaw Ababio alias Nana Yiadom Bauchie Acheampong alias Kwabena Acheampong was the Kaasehene on Baaye Siakwan Kuampah Stool from 1963 to 2008 when he died. The plaintiffs/respondents say they are administrators of his estate. According to them, in appreciation of the invaluable services the late chief rendered to the people of Kaase, the chiefs and elders gifted 62.50 acres of Kaase Stool land to him personally.

In paragraph 5 of their statement of claim, they described the land as “situate at a place commonly known and called Asaago on Baaye Siakwan Kuampah Stool land also known as Site for Industrial and Residential Estate in the Nkinkasie-Sokoban Wood Village layout including plots Nos. 35 and 37 Odum Street, Sokoban-Kumasi”.

The plaintiffs/respondents further pleaded that the late chief exercised acts of ownership over the whole stretch of land until his death. And upon grant of Letters of Administration, they set out to gather the estate of the late chief for the purposes of administration. In course of that exercise, they realized that plots Nos. 35 and 37 which formed part of the estate has been trespassed upon.

Upon their investigations, they discovered that the 1^st defendant/appellant, the Adontenhene of Kaase granted the two plots to the 2^nd defendant/appellant, a businessman in Kumasi. Based upon this discovery, the plaintiffs/respondents found a cause of action upon which they sued the defendants/appellants for amongst others, declaration that the plots form part of the estate of the deceased chief, recovery of possession, an order for general damages for trespass and an order of perpetual injunction.

On entry of appearance, the defendants/respondents filed a statement of defence in which they alleged fraud in the acquisition of the large chunk of the stool land. In compliance with the order of the court, the plaintiffs/respondents filed documents including the allocation note with the site plan and a statutory declaration with the layout of the land gifted to the late chief. On 2/05/13, the 4^th plaintiff/respondent started giving evidence for himself and on behalf of the other plaintiffs/respondents. He tendered some documents that day before the proceedings was adjourned to 20/05/13.

But the hearing stalled as a result of a motion for leave by the defendants/appellants to amend their statement of defence and then add a counter-claim. The only reason they gave for seeking the amendment is that they have come upon very vital information to aid the court in determining the case. In the absence of an affidavit in opposition, the motion was granted.

In the amended statement of defence and counter-claim, the defendants/appellants pleaded that on 1^st November 1991, by the Kumasi – Kaase Stool Land (Vesting) Instrument, 1991, E.I. 30 the PNDC government took over Kaase Stool Lands and vested the said lands in the PNDC government in trust for the people. But the Statutory Declaration made by the chiefs and elders of Kaase purported to gift the 62.50 acres of Kaase lands to the late chief on 12^th November 1991 in his private capacity as Mr. Kwabena Acheampong absolutely. Thus as at that date, there was no land at Kaase to be given to the late chief by his elders.

Specifically in paragraph 8, defendants/appellants pleaded thus:

“The defendant by way of general reply to the statement of claim relies on the maxim Nemo dat qui non habet and adds that on the 12^th November 1991, those who prepared the Statutory Declaration purporting to give a portion of the land to Nana Owusu Yaw Ababio then Kaasehene in his private capacity already had actual knowledge of the fact that they did not have the capacity to do so because they were aware of E.I. 30”.

The pleading continued that by E.I. 6 dated 18^th January 1996, E.I. 30 was revoked and the Kaase lands were released to the Stool. That notwithstanding, the gift of the portion of the lands to the late chief as at the time the gift was made is null and void as the gift was also tainted with fraud. In the counter-claim, the defendants/appellants sought a declaration that since E.I. 30 which vested the Kaase Stool lands in the government of the PNDC in trust for the people was earlier in time to the gift made by the chiefs and elders of Kaase to the late chief, the said gift is null and void.

In denying that assertion by the defendants/appellants, the plaintiffs/respondents pleaded in their Amended Reply and Defence to Counter-claim in paragraph 5 as follows:

“Plaintiffs deny paragraph 5 of the Amended Statement of Defence and state that the Kaase Stool lands which were taken over and vested in the then PNDC government by Executive Instrument (E.I. 30) did not cover the Nkankasie Sokoban Wood Village Layout Area. The plaintiffs shall tender in evidence the Planning Scheme of the Nkankasie Sokoban Wood Village Layout area during the hearing of this matter”.

Then in paragraph 6, they pleaded portions of the Kaase Stool Lands named as vested in the then government in E.I. 30. It is worthy to note that defendants/appellants who rely on E.I. 30 to deny the claim of the plaintiffs/respondents, have not in the court below identified to the court, portions of the Kaase Stool lands named in E.I. 30 as having been vested and in E.I. 6 as having been released.

As expected, amongst the issues set out at the application for direction stage in relation to the vesting of the Kaase Stool Land in the government is issue “2”. It reads:

“Whether or not the Kaase Stool lands which were taken over and vested in the then PNDC government by Executive Instrument (E.I. 30) included the Nkinkasie-Sokoban Wood layout area”.

This was one of six issues set out to be set down for the determination of the suit. On 19^th

February 2014, the court set down the six issues for trial. But then on 7^th March 2014, counsel for the defendants/appellants gave notice to raise and set down a legal issue for argument. And the issue is that:

“That looking at particularly the Amended Statement of Defence and Counter-claim, E.I. 30 of 1991 and E.I. 6 of 1996 the land in dispute cannot legally be given to Nana Owusu Yaw Ababio (deceased) based on the principle of Nemo dat qui non habet”

The trial judge granted the application, listened to arguments on both sides and ruled out the defendants/appellants because in his view there is the need for evidence to be taken to establish the capacity of the 1^st defendant to alienate plots to the 2^nd defendant, to establish the fraud alleged against the deceased and to establish whether or not the portion of land gifted to the deceased chief was outside the vested lands named in E.I. 30 of 1991. The third reason given in my view is very fundamental and germane to this appeal.

Dissatisfied with the ruling, defendants appealed to us to set it aside on the grounds that:

(a) It is against the weight of evidence, and

(b) The High Court judge did not exercise his discretion judiciously.

The counsel for the defendants/appellants argued the two grounds of appeal together. In the submission on behalf of the defendants/appellants, counsel referred to local and foreign cases in which the maxim nemo dat quod non habet was invoked and explained as an equitable principle which simply means that one cannot give what he does not have – see Seidu Mohamed vrs Saanbaye Kangbaree [2012] 2 SCGLR 1182 and Sasu vrs Amua Sakyi [1987/88] 2 GLR 221 and Kwanko II vrs Lebanon Society [2014] 70 GMJ 118.

Let me state from the onset that pleadings and evidence perform different functions in a trial. While pleadings define the issues in controversy between the parties and thereby give either party notice of the case to be met at the trial, evidence is led to prove the case of a party in accordance with the pleadings or as pleaded – see Hammond vrs Odoi [1982/83] GLR 1215, SC. So it is erroneous for a party to equate pleadings with evidence or assume pleadings as such. In relation to the submission on behalf of the defendants/appellants, it suggests that the plaintiffs/respondents have admitted or it has been proved that the portion of land as pleaded in paragraph 5 of the statement of claim as gifted to the deceased chief formed part and parcel of the Kaase vested lands in E.I. 30. But then there is no such admission or proof.

The plea of the plaintiffs/respondents is that the portion gifted to the deceased is outside the vested lands. Implicitly by the plea, the plaintiffs/respondents have admitted that some other portions of Kaase Stool lands have been vested. That issue was set down for determination at the trial. Where then is the evidence upon which counsel for the defendants/appellants argued conclusively that the chiefs and elders of Kaase had no land to give the deceased after the date of E.I. 30? There is indeed none, hence the direction of the trial judge that evidence should be led to determine the issue. The ground of appeal that the ruling is against the weight of evidence is completely baseless and it is dismissed.

Additional to that, in Margaret Mary Adjei vrs The Attorney-General & Ors. [2013] 50 GMJ 198, CA this court held that in an appeal against the judgment of a trial court based on legal arguments, the appellant cannot canvass the ground that the judgment was against the weight of evidence. This is because no evidence was led at the trial which the appellate court must analyse and come to its own conclusion by way of rehearing. The ground of appeal that the ruling is against the weight of evidence in this instance is therefore incompetent.

In response to the submission of counsel for defendants/appellants, counsel for plaintiffs/respondents inspite of his pleading in paragraph 5 of the statement of claim and issue 2 set down for determination, labored to interpret the long title of E.I. 30 drawing the difference between a general and specific mention of affected portions of the Kaase Stool lands. With all due respect to counsel, it is a wasted effort so far as the resolution of this appeal is concerned.

Apart from taking evidence before a judgment is delivered, or judgment on admission or summary judgment, judgment based solely on legal arguments is one of the modes of trial permitted under the Rules of Court. By the provisions of rule 4 of Order 33 of C.I. 47, the trial judge has the discretion to direct a particular mode of trial he deemed appropriate in a particular case. Where a matter is determined solely on legal arguments as permitted in rule 3, the court under rule 5 can dismiss the cause or matter or make such other order or give such judgment as may be just.

This mode of trial strengthens the hand of the trial judge to effectively manage cases placed before him so as to achieve the purpose of the Rules of Court as stated in Order 1 rule 1(2) of C.I. 47: that is to apply the rules so as to achieve speedy and effective justice, avoid delays and unnecessary expense.

Thus in Everett vrs Ribbands [1952] 2 QB 198 applied in Ebusua Panyin Kofi Essuon vrs

Charles Kofi Boham, Civil Appeal No. J4/1/2014, 21^st May 2014, it is explained that:

“Where there is a point of law raised in a pleading which if decided in one way, is going to be decisive of the litigation, then advantage ought to be taken of the facilities offered by the procedure to have it disposed of at the close of pleadings or very shortly after the close of pleadings”.

Clearly for a cause or matter to be disposed by legal argument, the point of law must arise out of the pleadings. That being the case, the facts underpinning the point of law should be settled and undisputed. But that cannot be said of the facts in this case. As is evident from the pleadings, the plaintiffs/respondents have denied that the portion of the land gifted to the deceased as described in paragraph 5 of the statement of claim falls within the vested lands. An issue has been raised on it in the application for directions.

It is noticed that the legal issue/point raised by counsel for defendants/appellants and set down for legal argument is not one of the issues set down for trial or determination. It appeared farfetched looking at the plaintiffs/respondents Amended Reply and Defence to Counter-claim to the defendants/appellants Amended Statement of Defence and Counter-claim. I am surprised that counsel for plaintiffs/respondents did not challenge the issue as raised for legal arguments.

I am similarly surprised that the trial judge did not in the exercise of his discretion under rule 3 of Order 33 of C.I. 47 refuse that mode of trial as requested as most inappropriate in view of the pleadings.

The failure of the trial judge to determine that the legal issue/point as raised and the mode of trial requested, though permitted by the Rules of Court, will not advance the cause of justice suggest to me that some trial judges do not appreciate the onerous duty they bear at the Application for Direction stage of the trial. Trial judges are reminded that settlement of issues is the main business at the hearing of the application. It is therefore his duty to ensure that the issues set down for determination and the mode of trial would aid him in making a valid decision on the relief(s) sought – see Nyamaa vrs Amponsah [2009] SCGLR 361.

In Smith vrs Blankson [2007/08] 1 SCGLR 374, appellant indorsed his writ of summons with several reliefs in a simple case of refund of purchase price of a house on a contract he had himself abrogated or ended. At the application for direction stage as many as 26 issues were set down for trial. Similarly on appeal to the Supreme Court, no less than fourteen grounds were filed. On the role trial judges must play in setting down issues for trial, Sophia Akuffo JSC emphasized at page 385 thus:

“… trial judges would also be well advised to be more proactive in the pursuit of effective case management by using the application for directions proceedings to hone into sharper definition, and with more specificity, the issues that are admitted for trial. Every time a trial judge admits to trial issues that are not central to the litigation, all he or she does is to open a floodgate of needless facts and evidence”.

As I have determined, the trial judge erred in admitting that issue raised for legal argument in order to dispose of the matter expeditiously. But he rightly held, after listening to the arguments that evidence must be led before a valid decision could be made. On our finding based on the pleadings, there is absolutely no merit in the appeal. It is dismissed. The suit is remitted to the trial court for full trial.

(SGD.)

E. K. AYEBI

(JUSTICE OF APPEAL)

(SGD.)

G. TORKORNOO (MRS.),    I agree            G. TORKORNOO

(JUSTICE OF APPEAL)

(SGD.)

A. M. DOMAKYAAREH (MRS.), I also agree                     A. M. DOMAKYAAREH

(JUSTICE OF APPEAL)