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JUDGMENT
WOOD, JA:
The
Plaintiff/Respondent sued the three Defendant/Appellants
for general and special damages, as well as for the
return of building materials collected by them or their
value assessed at ¢100,000.
The brief facts upon
which he based his claim are that in 1970, the 3rd
appellant acting as his agent, bought and held in trust
for him an uncompleted building valued at ¢820,
expressed also as £425, and later conveyed the legal
title to him.
However in 1984, the
1st Appellant, in his capacity as head of his family,
sued the 2nd and 3rd Respondents in respect of the same
property, inter alia for a declaration of title, and
damages for trespass on the basis that the property sold
him was family property, it having devolved on the
family on the death intestate of the original owner, his
brother. The Respondent applied and was joined to the
suit as co-defendant. Those other parties however
settled the matter out of court and the case withdrawn
by the 1st Appellant, the Plaintiff in that suit
numbered L2/84. The Appellants subsequently caused the
subject matter which had then been completed by the
Respondent, obviously, at considerable cost to him to be
demolished, compelling him to institute these
proceedings in vindication of his rights.
Aside from the two
original grounds of appeal one of which is the usual
omnibus ground, the Appellant filed four other
additional grounds. Those which were specifically argued
were the ‘c’, ‘d’ and ‘e’ which state:
“(c) the trial judge
erred in law in not holding that the consent judgment
in suit no L2/84 could not be impugned except on stated
legal grounds.
(d) The trial judge
erred in law in not holding that the purchase of the
land from 2nd Defendant who had no title or authority
from 1st Defendant could not pass title to the
Plaintiff.
(e) The trial judge
erred in law in not resolving the legal effect of the
document executed by the 3rd Defendant without jurat in
favour of the Plaintiff when the 3rd Defendant pleaded
illiteracy”.
The
Plaintiff/Respondent however filed a notice of cross
appeal against that part of the decision of the court
which dismissed the claim for the return of the building
materials or their value and which failed to take
cognizance of the inflationary trends in the country
that has affected his original claim for special
damages.
Under the Court of
Appeal Rules, 1997, CI.19, however, it is not necessary
for a respondent who is nevertheless dissatisfied with
the judgment appealed from (by his opponent), to give
notice by way of a cross appeal. Where he/she also
intends to call for a variation of the decision
complained of (all that in required of him/her under the
rules) is to cause written notice in the model form 7 of
the schedule of his intention to be served on those
parties who may be affected by his contention at the
hearing of the appeal. What must also be included in the
notice is the grounds on which he intends to rely. The
proper procedure is clearly set out in self-evident
rules which I reproduce hereunder.
“15 Notice by
respondent of contention that judgment should be varied.
1. It shall not be
necessary for the respondent to give notice by way of
cross appeal, but if a respondent intends upon the
hearing of the appeal to contend that the decision of
the court below should be varied, he shall within one
month after service upon him of the notice of appeal
cause written notice as in Form 7 in part 1 of the
schedule of his intention to be given to every party who
may be affected by the contention.
2. The respondent shall
clearly state in his written notice the grounds on which
he intends to rely and within the same period shall file
with the registrar of the court below, five copies of
the notice, one of which shall be included in the
record”.
What then is the effect
of non-compliance with the rules, or more specifically
put, what are the consequences, if any, where in
contravention of the rules, a respondent as happened in
this instant case, has filed a cross-appeal.
The answer to this
critical question may be found principally in the sub
rule (3) of Rule 15 of CI.19. Perhaps also rule 63 of
C.I. 19 as well as the undoubtedly just rule of equity
that it looks at the intent rather than the form. The
important sub rule (3), which affords a ready answer to
this question stipulates:
“omission to give the
written notice shall not affect any powers of the court,
but the court may consider it a ground for adjournment
of the appeal upon such terms as to costs or otherwise
as the court considers just”.
Failure to comply with
the rules therefore is not fatal and would not affect
the powers of the court to receive arguments on the
contention and effect the necessarily just changes in
the decision complained of. It must be emphasized that
the rule does not forbid the issue of a notice of cross
appeal. It simply states that it is not a necessity, in
others words that it is a wholly unnecessary step. Of
course the court may, in appropriate cases, adjourn for
due compliance with the rules. Again since equity looks
at the substance rather than the form, the filing of the
notice of cross appeal rather than the forming is
obviously not fatal to the respondent’s case. I believe
the reasoning behind the rule15 (3) is again founded on
the rule 32 subrules (1)
(2). They state:
“The court shall have
power to give any judgment and make any order that ought
to have been made and to make such further or other
orders as the case may require including any order as to
costs.
(2) These powers of
the court may be exercised notwithstanding that
appellant may have asked that part only of a decision be
reversed or varied and may also be exercised in favour
of all or any of the respondent or parties, although the
respondent or parties may not have appealed from or
complained of the decision.”
One of the critical
issues raised at the trial was whether or not the
respondent was bound by outcomes of case numbered L2/84.
The appellants contented that it was a consent judgment
binding on the respondent and consequently that he is
estopped from relitigating the same matter. The learned
judge, maintaining that the plea of res judicata has
been raised identified the question the court will have
to resolve as follows:
“ Whether or not the
matter has been dealt with by suit No. L8/84 (sic)”. She
concluded that” in law the consent judgment entered in
Exhibit 4 does not affect the respondent. “The court
based its opinion on two grounds, both of which have
been described as erroneous.
First that even though
the order for joinder was granted, the title of suit was
not amended to reflect this fact; the import of this
being that the respondent not being a party to the said
judgment was definitely not bound by it.
Second, that in any
event, on being served with the decision of the court in
suit No. L2/84, “They reacted by filing “this present
action”. My understanding of the learned trial judge's
finding is that the respondent never accepted the terms
of the said judgment and never agreed to be bound by it.
At this rehearing the
reasonings and the conclusion have been criticized on
the basis that firstly the law placed the burden of
ensuring that the title is amended to include the new
party squarely on the respondent. The argument therefore
is that, having failed to ensure due compliance with the
rules, it lies ill in his mouth to take advantage of his
own ineptitude and argue that he is not bound by the
decision.
Secondly, it was urged
that the respondent did not, in this instant action,
seek for a setting aside of the consent judgment and
consequently he cannot justify the position taken by the
trial judge, otherwise it would amount to the court
proprio motuo making a case for the respondent.
For my part, I would
like to emphasize that, although contrary to the rules
on pleading, the defendants did not specifically plead
estoppel per rem judicatam, in much the same way that
he expressly pleaded the Illiterates Protection
Ordinance, the cross examination of the respondent,
together with evidence they led through the 1st
defendant raised and indeed at this rehearing, justifies
a consideration of that issue, namely whether or not
the respondent was bound by the decision in Suit No.
L2/84, a decision described as a consent judgment, and I
proceed to do so now.
In my opinion, the
learned trial judge's description of the “decision” in
L2/84 as a consent judgment is not quite accurate, for
it is not. I reproduce the main body of the day’s
proceedings which culminated in the court's order, which
had in my view been misdescribed.
“Tackie Otoo informs
court the matter has been amicably settled on payment of
¢30,000.00 by plaintiff to 2nd Defendant and therefore
wishes to withdraw the case. Also withdraws reliefs
under claims (b) and (a), 2nd Defendant admits the
payment to him of the ¢30,000.00.
By Court:
Case withdrawn as
settled on terms above”
The clear picture
emerging from the Exh. 4 is that the claim was withdrawn
on the basis that it has been settled as between i.e.
the plaintiff and the defendant, the original parties.
In other words, the respondent was not included in that
arrangement. No judgment based on the terms was entered
aging. The necessarily implied substantive decision of
the court was that the case between those parties were
being struck out, (for it was withdrawn) hence my
judgment that the decision was not in the nature of a
consent judgment. A consent judgment by its very nature
must be one capable of enforcement by any of the known
legal modes of execution as provided for under the rules
of court. How does one execute an order withdrawing a
claim?
Be that as it may, the
key question however still stands unanswered. Is the
respondent estopped by the order in L2/84. Since the
evidence on both sides show clearly that even though the
respondent was a party to the suit L2/84, he was not a
party to the settlement (be it a valid customary or
negotiated settlement) he cannot be estopped from
relitigating this matter. I reproduce the answers the
respondent gave to question under cross examination as
well as when the 1st appellant gave his evidence in
chief. They all support the contentions I have made that
he was not a party to the alleged settlement.
Q. “ You applied to be
joined as co defendant and you were so joined as
co-defendant
A. Yes
Q. So suit No. LS
8/84 was amicably settled out of court by the parties.
A. I am not aware of
this I was not a party to the amicable settlement what
happened was that the police arrested me to render
accounts.
Q. After the
settlement the plaintiffs including yourself announced
to the court that the matter had been amicably settled.
A. It is not
correct.
Q. So the court
entered consent judgment to effect
A. Yes but my lawyer
protested that it has been settled with Kwesi Kwo it was
not settled with me”.
Q. As a request (sic)
of this did like and the 3rd defendant had been heeded
to it, he accepted the ¢30,000.00 and so a consent
judgment was entered by the court have ghee settled.
(sic)
A. Not correct, I am
not aware of this verdict.
Q. Are you aware
that the matter was settled
A. Yes I was told of
it later.
Q. So what did you do
as a party to a suit of which you were not a party to
the settlement what did you do.
A. I made motion
before the court and the then presiding judge advised
and to take a proper action. I felt I was cheated”.
Then, also the same
position was reiterated during the cross examination of
the Pw1.
Q. Are you aware that
in 1984 there was a similar case involving this very
land between Opanin Donko who sued the 2nd and 3rd
defendants of which the plaintiff joined as
co-defendant. This was in suit No. L8/84?
The evidence of the 1st
defendant went thus:
“Since the property
belongs to the family, the late 1st defendant sued the
2nd defendant whilst the matter was pending before the
court, the plaintiff joined the suit as a party on
whereas that the 3rd defendant as his nephew and so he
was to help the 3rd herein to litigate the action filed
by the original 1st defendant. The 3rd defendant then
realized that he could not fight the case and so he
agreed for the matter to be settled at have since it was
he who brought the litigation. The settlement was that
3rd defendant was to give details on his accounts on the
land. The final settlement was then the 1st original
defendant was to refund the sum of ¢30,000.00 to the 3rd
defendant and in return the land was to became that of
the original 1st defendant's”.
My view therefore is
that the judge was right in holding that the respondent
was not bound by the decision in LS.8/84 and indeed not
estopped from instituting this present action.
Notwithstanding the fact that his name is not included
in the title, the uncontroverted evidence is that he was
at the date of the settlement, a party to the action.
Rule 8(3) of LI. 1129 stipulates the stage that a
person which has successfully obtained an order for
joinder becomes a party to the action in respect of
which the order was made. By the rules, it is when the
writ has been amended in relation to him and if he is a
defendant (as happened in LS 8/84) has been served on
him.
It was never alleged at
the trial below that:
(1) The writ has not
been amended in relation to him or
(2) That he was never
served with it.
It is pertinent to note
however that if we took the position that he was not a
party, his case even becomes stranger; not being a party
to the suit, he cannot obviously be bound by the
settlement allegedly entered into by the parties.
On the contrary, the
appellants persistently described him as a party to the
proceedings. The apparent deficiency in the title of the
writ notwithstanding, irrespective of what position we
took on his status in the action, the proper conclusion
is that, he was not a party to the settlement. He is
therefore not bound by it and is at liberty to institute
the present action.
A fundamental principle
of law is that where there are more then two parties to
an action, it is only these parties who settle their
claim(s) out of court who are bound by the compromise,
and not these others who were never parties to it.
Indeed, the Exh 3, the appellant's affidavit and which
formed the basis of the Exh 4 clearly shows, the
deponent, the appellant by accepting the ¢30,000
promising to relinquish all claims against Kwame Abassi,
and his family! The appeal based on the ground must
fail.
Again, the learned
trial judge had concluded:
“It is the considered
view of the court that C.K.F has been able to prove his
case on balance of probabilities and on strength of
his own case”.
The simple and
straightforward argument urged in respect of the ground
(d) is that, contrary to the above finding, the
respondent was unable to establish that the 2nd
appellant had title in the disputed property, and which
he validly passed on to him.
Undoubtedly, the title
of the respondent who had sued for damages for trespass
fell issue. More significantly, the appellants have in
their amended statement of defence denied his claim that
the property belonged to 2nd appellant and called him to
strict proof of these averments. Their contention was
that the property which was originally owned by their
family member, one Gyabaah, became family property on
his death instestate. Having regard to the pleadings as
they stood, the respondent's argument that on the
authority of
(1) Otoo v. Biney
(1966) GLR 136
(2) Hayfrom v, Egyir
(1984-1986) GLR 510
the respondents suing
only for damages for trespass without claiming for
perpetual injunction, meant automatically that his title
was not put in issue, is to say the least untenable.
On the contrary, the
very case relied on by counsel, namely Hayfrom v. Egyir
(supra) firstly did not lay down any such proposition of
law and secondly supports the view that he had to
prove his grantors title.
Twumasi J as he then
was held:
“where a party derived
his title to land from some one else, either by way of
gift or purchase or other form of alternation alienation
of land, it was incumbent upon that party whose title
was derivative to prove the title of his grantor or
vendor or donor as the case might be. I would add that
failure to prove affirmative by rely to prove ones root
of title or the title of ones grantor, vendor or donor
as the case might be, particularly as happened in this
instant case when it is put in issue, is fatal.
The question therefore
is did respondent succeed in discharging the burden that
lay an him? I would answer in the affirmative. His
oral testimony which noticeably was not challenged under
cross-examination was confirmed by two persons the Pw2
who shared a boundary with the 2nd appellant and who
also acted as an agent of the 3rd appellant in the sale
transaction. He is also an elder, of Moree. He is the
Twatohene. Both persons are emphatic that the land
belonged to the 2nd appellant. I think considerable
weight must be attached to the evidence of the Pw3
because he does not have any interest in the case and
also because he actually “took part in granting of the
land to the 2nd” appellant. He was emphatic that “2nd
defendant started to develop the land by putting up a
structure on it. He further recounted: I know one Kofi
Gyabaah of Moree Kofi Gyabaah did not put up any
structure on the land granted of (sic) the 2nd
defendant”.
Against this evidence
of the respondent, we have that of the 3rd appellant's,
one of the principal actors in this whole drama which
has been aptly described by the trial judge as a
gossamer. His evidence which I have taken the trouble
to reproduce, would on the balance of propabilities,
confirm the position that the land could not have been
family property but rather belonged to the 2nd
appellant. He deposed as follows:
“My father told me the
land belonged to the 2nd defendant. After about 13
years later I have bought the land from 2nd defendant
he came tell me the land did not belong to him but he
sold it to me due to financial difficulties …… Later the
2nd defendant reported the matter to the police and I
was arrested to Cape Coast Police Regional
Headquarters. However, the 2nd defendant did not
disclose the one who really owned the land”.
Under cross-examination
he confirmed that at all material times the owner of the
property was the 2nd appellant. This answer he gave to
the following question again confirmed his evidence that
2nd appellant would not disclose the name of the elder
who allegedly owned the property.
Q. “Did the 2nd
defendant mention the name of the elder who owned the
land
A. No.”
If the family were the
real owners of the property, why did it take them as
long as 13 years before stepping in to challenge the
validity of the sale? Again why was the 2nd appellant
not forthcoming, even at the police station, with the
name of who owned the land? It can only be because
indeed he was the true owner, with the story about
Gyabaah being a clear after thought, brought into enable
him wriggle out of the sale, and enable him get his
property back. In coming to this conclusion, I have
attached no weight to the evidence of the 3rd
appellant’s witness for the clear confession he made
under cross-examination was that his evidence was not
first hand, but a mere repition of what the 3rd
appellant who had been struck down by stroke, asked him
to come to court to say.
“Q. So what you have
told the court is what the 2nd defendant asked you to
say on his behalf.
A. Yes
Q. I suggest to you
that the condition of the 2nd defendant could not have
given you proper instruction as his condition as it was
in May 1999 (sic).
A. No since I my
self have been told of his side of the case before he
fell ill”
I am therefore of the
view that the evidence supports the finding that the
property belonged to the 2nd appellant, consequently, he
passed valid title to the respondent.
The Exh B was tendered
at the trail by the respondent, in whose favour a
resulting trust was created when the 3rd appellant
bought the property in his own name with funds provided
by 3rd appellant, in proof of two things. First, and
crucially, to prove that the legal interest had
subsequently been transferred to him. Of course the
learned trial judge made no specific findings on the
legal effect of the exhibit B, which is a document made
by one who the evidence overwhelmingly shows was
illiterate. As a result, I find it difficult to dismiss
the criticisms raised by the ground (e)
I however, agree with
counsel that on the authorities, the Exh B cannot
sustain the claim that the legal interest had been
transferred to the respondent.
A long line of cases
stretching from (BP West Africa) Ltd v. Boateng [1963]
1, GLR 232 to Mahama Hausa v. Baako Hausa [1972] 2GLR
469 and the more recent cases of Kotokoli v. Sarbah
[1981] GLR 496 and Zambrahah v. Segbedzi [1992] GLR 221,
clearly emphasizes that in order to found any claim on
the Exh B, the respondent must establish positively that
it was indeed read over and explained to the illiterate
maker and who therefore understood the nature and
consequences of the document. I do not, however think
that the respondent succeeded in establishing this fact.
Nevertheless, there is
evidence to justify the trial judge's final conclusion
that “he was able to prove his case on balance of
probabilities”
Why do I say so?
First, the claim that
he provided the purchase money is confirmed not only by
his witnesses Pw1 and Pw2 both of whom were emphatic
that 2nd appellant did disclose to them that the
property was bought on behalf of the respondent, but
also could be gathered from 3rd appellant's own
evidence.
On his own showing “the
plaintiff even applied to be joined as a party to this
suit and he has so joined. The plaintiff decided to
settle the matter and so gave document for me to claim
my purchase money ….” Why would he allow respondent to
intervene and take major decisions on what was to be
done, if he were not the owner of the subject matter?
Also the evidence
clearly shows that he put him in possession, thus
enabling him to complete the building on the land. Even
if at that date, he was only an equitable owner, he
continued in such effective possession until the
invasion by the 1st and 2nd appellant which ultimately
led to the destruction of his property.
However, liability
would attach to only the 1st and 2nd appellants since on
the respondent's own showing, these acts of destruction
were perpetrated at their instigation.
The Respondent’s Cross
Appeal
Two grounds (c) and (d)
were argued, with the other two being abandoned. The
complaint in respect of the ground (c) is that having
found the appellants liable, the damages awarded was
woefully in adequate. It was argued that the damage
awarded should not only reflect the court's disapproval
of the tortfeasors' conduct in taking the law into their
own hands, but should be such as would put the victim
back into the same position in which he was before the
tort was committed. It was also contended that in
awarding damages, the court ought to have taken into
consideration the fast depreciation of the cedi and the
escalation in prices of building materials”.
Quite plainly, the
court was right in dismissing the claim for special
damages for the simple reason that no evidence was led
in proof of the quantum pleaded.
The ground (d) and the
arguments urged in support thereof are in relation to
the claim for general damages. Notwithstanding the fact
that it was endorsed contrary to law at the specific sum
of ¢500,000.00 the lament is that it is inadequate,
seeing that the true measure of damages, is intended to
put respondent in the same position that he was before
the destruction.
Dodd Properties Ltd and
Anor v. Canterbury City Council and others [1979] 2 ALL
ER 118 spells out the principles governing the
assessment of damages in the case of building damaged
and put in need of repair by the tortuous act of
another. The court held that the victim was entitled to
“the reasonable cost of doing reasonable work of
restoration and repair.” Further that the general
principle is that damages must be assessed at the date
when the damage occurs”, the only rider being that the
rule ought not to be “rigidly applied as a rule of items
fixing the time rigidly by calendar and the clock” page
126 refers. Therefore, where the damage was not
reasonably discoverable for some time, or where it would
take time to put the repairs in hand, the rule would be
relaxed.
Unfortunately, in this
instant case, the respondent did not lead any evidence
on the reasonable cost of replacement as at the date of
destruction or when it was most physically reasonable to
commence the reconstruction. The only evidence we have
of the investment or expenditure made in the land are:
1. The initial cost of
the property which is ¢850.00 and the subsequent outlay
which is ¢84,000 thus bringing the total value to
¢84,500.
Under these
circumstances, I find that the damages of ¢500,000.00
takes care of all the concerns raised. I find it fair
and reasonable.
Having regard to what
constitutes trespass to land in law, the 3rd appellant’s
acts of denial of the respondent’s title, and releasing
the property to another does not constitute trespass,
and the claims against him based on those facts, would
be dismissed.
On the other hand, I do
agree with appellant counsel that the costs of ¢300,000
awarded was grossly inadequate, having regard to the
fact that the case spanned a period of 15 years. Costs
of ¢2m as against 1st and 2nd appellants would be
reasonable and just.
In the circumstances of
this case, I would not think the 3rd appellant should be
entitled to any costs as against the respondent.
G. T. WOOD (MRS.)
JUSTICE OF APPEAL
ARYEETEY, JA:
I agree.
B. T. ARYEETEY
JUSTICE OF APPEAL
AMONOO-MONNEY, JA:
I also agree.
J. C. AMONOO-MONNEY
JUSTICE OF APPEAL
COUNSEL:
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