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JUDGMENT
ANSAH, JA
This is an appeal from
the Judgement of Benin JA, sitting as an additional High
Court judge given in the High Court, Accra on l9
November 1998. It is apparent from the said judgement
that two suits were consolidated for trial by the
consent of counsel. In suit No. 534/95 the first and
second plaintiffs were E.O. Boakye and Asiedu Osei,
respectively. The defendants were Auto Route Limited and
M.A. Dakmak. The reliefs against the defendants in that
suit were:
1. Damages for unlawful
arrest and detention of the second plaintiff.
2. Perpetual injunction
against the defendants and their agents for preventing
the first plaintiff from development and possession of
his property plot No. 86 Tema Motorway Industrial Area.
3. Damages.
The other suit was LS
710/95 wherein E.O. Boakye sued the Attorney-General for
and on behalf of the Land Commission and for the
following relief.
“...... an order to set
aside the grant by the Lands Commission of Plot No. 86
on the Tema Motorway Industrial Area to Auto Route
Limited dated the 29th day of June, 1995 as void and
that the said lease be cancelled as the same land had
previously been leased to the plaintiff”.
It was agreed at the
trial that Auto Route Ltd. be described as the
defendant, M.A Dakmak as the second defendant the
Attorney General for and on behalf of the Lands
Commission, as the third defendant. Of the two
plaintiffs in suit No., 534/95 it was the first who
appeared at the trial, the second did not. No evidence
was led by him. For convenience sake the parties will in
this Judgement continue to be referred to as the
plaintiff and defendants as at the trial.
The plaintiff’s case at
the trial was that Plot No. 86, Tema Motorway Industrial
Area was leased to him by the Government of Ghana acting
through the Lands Commission on 18th November 1977. It
was registered as No. 632/1979. After obtaining
permission from the Department of Town and Country
Planning he started to develop it though the
instrumentality of the second plaintiff. In the course
of the development the first defendant caused him to be
arrested and sent to the police station. When the
plaintiff went to visit him 2nd plaintiff, he was also
asked to write a statement after which he was granted
bail.
The plaintiff
maintained that he having had the plot leased to him,
the Lands Commission erred in purporting to lease same
to the first defendant. Whatever was done on the plot
for the first defendant was null and void. He sought by
this action to have the lease granted for the first
defendant declared null and void, the first defendant
permanently restrained from developing the plot and then
damages awarded in his favour for the unlawful manner in
which he was arrested.
On the other hand the
first defendant said that no grant of a lease was ever
made to the first plaintiff but rather to Boakye Darkwa
and Company and registered as such. Later on he though
forgery had the said name erased in part and an
insertion made to appear as if the lessee was Boakye and
Company. What was purported to have been granted to
Boakye and Company was null and void, the consequence
being then that plot No. 86 was not the property of the
plaintiff. The first defendant counter-claimed for a
declaration of title to the plot in dispute which he
pleaded was leased to him by the Lands Commission on 29
June 1999 and registered as No. 7368/95 and also an
order of perpetual injunction against the plaintiff.
The case for the Lands
Commission was that the lease on the plot was granted to
Boakye and Darkwa Company on 18 November 1977 as borne
out by the original copy i.e lessee’s copy. The lessee
breached the covenant to develop the plot within the
period agreed upon where the plot was re-entered and
subsequently re-allocated to the first defendant.
The issues agreed upon
by the parties as the triable issues in suit No. 710/95
were:
“a. Whether or not plot
No. 86 the subject matter of the action was leased to
Boakye and Company
b. Whether or not the
Lands Commission is estopped from denying the execution
of the lease between the Lands Commission and Boakye and
Company and what is registered as No. 632/1979.
c. Whether or not
Boakye and Company was given notice of Re-entry in
accordance with NRCD 175.”
The material issues in
the summons for directions in suit No. L534/95 was
“(a) Whether or not the
grand for the first defendant of the land previously
granted to the first plaintiff is void ab initio”.
After taking evidence
from both sides the learned trial judge concluded that
the plaintiff’s action in both suits failed, he upheld
the first defendant’s counter-claim and also restrained
the first plaintiff, either by himself his Company
Boakye and Company or his workmen assigns etc,
permanently from having anything to do with the plot in
dispute.
The first plaintiff
felt aggrieved by this judgment and the costs awarded
and has brought this appeal against same seeking that it
be set aside and judgment entered in his favour rather.
The original ground of
appeal is the general ground that the judgment was
against the weight of evidence. Five more grounds were
later added. It is not necessary to set the additional
grounds of appeal word for word as they appear to be
rather very argumentative. It is sufficient to state
that they centred on the locus standi or the legal
capacity of the plaintiff to sue, whether or not in
seeking to re-enter the plot in dispute the Lands
Commission complied with the requisite law, and the
dismissal of the claim for damages for unlawful arrest.
I have decided to tackle these grounds seriatim.
The learned trial judge
after reviewing the evidence before him dealt with the
issue concerning the locus standi of the plaintiff to
sue basing himself on the person to whom the lease was
granted. The plaintiff had pleaded that he applied for
an allocation of the plot in the name of Boakye and
Darkwa Company P.O. Box 22, Kumasi. After the
application had been approved the lease was executed but
not registered. It was further pleaded that the
plaintiff later notified the Lands Commission that the
name should be amended to Boakye and Company, P. O. Box
22, Kumasi, which was done: see paragraph 4(c) and 4(d)
of the amended statement of claim. The first document
was then surrendered to the Lands Commission and a fresh
one prepared. The defence denied these material
averments by the plaintiff. The learned trial judge
considered the evidence led by both sides particularly
Exhibit CE2, the file on the plot and the contents
thereof. After making pertinent observations and
critically analysing the evidence he said:
“Thus from all the
foregoing pieces of evidence which also finds support
from the defendant the lease was never executed in the
name of Boakye and Company”.
He went on from there
to state that there was nothing in the file to show that
the plaintiff applied to have the lease re-prepared in
his own Company’s name which the Lands Commission agreed
to do. The change in name from Boakye and Darkwa Company
to Boakye and Company could not be made orally and in
the absence of any documentary proof of this charge be
disbelieved the plaintiff story that any such change was
made. The finding was made then that the ownership of
the lease hold property remained in Boakye and Darkwa
Company. After a painstaking and meticulous examination
of the evidence the trial judge said:
“From the foregoing I
am satisfied and find as a fact that the Lands
Commission did not give any lease to Boakye and Company.
The lease it gave was to Boakye and Darkwa Company of P.
O. Box 22 Kumasi. For that reason the plaintiff suing
for Boakye and Company has no locus standi.”
Ordinarily locus standi
meant the right to be heard in court or other
proceedings: see Osborn’s, Concise Law Dictionary,
Eighth Edition p. 206. A plaintiff shall have this right
if he has a cause of action which also means the fact or
combination of facts which gives rise to a right of
action. According to Spokesman (Publication) Ltd. v.
Attorney-General 1974 1 GLR 88
“A party has a cause of
action when he is able to allege all the facts or
combination of fact which are necessary to establish his
right to sue. Lord Esher MR. in Read v. Brown 1888 22
QBD 128 at p. 131, CA defined a cause of action as every
fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to
the judgment of the Court”.
The trial judge meant
that the plaintiff had no cause of action for the lessee
was Boakye and Darkwa and Company.
If the plaintiff sued
on behalf of Boakye and Company which had no title to
the lease property then he lacked the capacity to sue.
He therefore has no cause of action and a right to be
heard and held entitled to the plot. I will come back to
this issue of who owned that plot as between Boakye,
Darkwa and Company and Boakye and Company.
If it is appreciated
that that was what the trial judge meant then he was
right in saying that the plaintiff had no locus standi.
In that situation then there was no need for the trial
judge to have amended the title of the suit suo motu. It
must be observed that amendment of the title of a suit
can be affected at any stage of the proceedings and even
on appeal. Ghana Ports and Harbour Authority v. Issoufou
1991 1 GLR 50; Gbogbolulu v. Hodo 1941 7 WACA 164;
Akyrifie v. Paramount Stool of Breman Esiam 1951 13 WACA
331; Dove v. Wuta Ofei 1966 GLR 299, all support this
stand. It was in Mussey v. Darko 1977 1 GLR 147, CA that
it was held that when a sole proprietor of a business
sued in the firm name, the court could treat the mistake
as a mere misnomer and grant an application to amend the
title of the suit or do it suo motu. But then that case
also stated that before that can be done the sole
proprietor must have given an explanation for the
mistake. Also there must have been evidence on record to
justify the exercise of the power to amend. Neither
condition applied in his case.
There was no evidence
that the lease was for Boakye and Co. and from the
plaintiffs an evidence he surrendered that lease in the
name of Boakye, Darkwa and Co. Whatever be the case as
will be shown presently the plot was re-entered by the
3rd defendant. An amendment would serve no propose. The
appeal against the finding on locus standi fails.
The next prong of
attack against the judgment which formed the substance
of the additional grounds of appeal were that the trial
judge erred in law when he held that the Lands
Commission complied with the mandatory and statutory
provisions of section 29 (2) of the Conveyancing Decree
1975, NRCD 175 which required the Commission to send by
registered post notices of intention to re-enter and
re-entry. According to counsel the Commission failed to
discharge the onus which lay on it to prove that it
complied with the law in exercising its option to
re-enter the plot. In support of this it was stated that
the Commission which bore the burden of leading evidence
to show that it did comply with the law when it
purported to re-enter the plot failed to do so. There
was no evidence led by them like the receipt slip from
the post office to authenticate the fact of a registered
post. Only copies of the letters or notices of re-entry
were tendered but these would not be sufficient to show
due compliance with the law. The defendant on the other
hand replied that the notices were sent to the plaintiff
though their Kumasi address. They were not returned to
them which would have been done had the letters and
notices not been delivered.
In law re-entry and
forfeiture are not automatic. They must be exercised in
due compliance with the law governing them. Where a
party asserts that it did comply with the law in
re-entering a leased property and same is denied by his
adversary that party is bound to prove to the
satisfaction of the Court that it did indeed exercise
the option to re-enter lawfully. The whole exercise of
re-entry is well governed by law i.e. the Conveyancing
Decree, 1973, NRCD 175. The procedure is contained in
section 29 which I reproduce in full hereunder:
“(1) A right of
re-entry or forfeiture under any provision in a lease
for a breach of any covenant, condition or agreement in
the lease shall not be enforceable, by action or
otherwise, until:—
(a) the lessor serves
on the lessee a notice;
(i) specifying the
particular breach complained of;
(ii) if the breach is
capable of remedy, requiring the lessee to remedy the
breach and
(iii) (except where the
breach consists of a non-payment of rent) requiring the
lessee to make reasonable compensation in money for the
breach, and
(b) the lessee has
knowledge of the fact that such notice has been served;
and the lessee fails, within a reasonable time
thereafter,
to remedy the breach if
it is capable of remedy and (except where the breach
consists of a non-payment of rent) to make reasonable
compensation in money, to the satisfaction of the
lessor, for the breach.
(2) Where a notice has
been sent by registered post addressed to a person at
his last known postal address in Ghana, then for the
purposes of sub-section (1), that person shall be
deemed, unless the contrary is proved to have had
knowledge of the fact that the notice had been served as
from the time at which the letter would have been
delivered in the ordinary course of post.”
By these legal
provisions a lessor shall have to give the lessee a
notice specifying the breach complained of and also
requiring that the lessee remedies and same or pay
monetary compensation before he re-enters the leased
property. Also the lessee must have knowledge of the
notice served on him. It is when this procedure has been
followed that the lessor can proceed to re-enter the
property. Should the notice be sent in the ordinary
course of post, it must be addressed to the lessee at
his last known postal address in Ghana and if under a
registered cover, the addressee would be deemed to have
had knowledge of the fact that the notice had been
served when the letter would have been delivered as is
usual in the course of post.
The language of section
29 of the Conveyancing Decree is mandatory as to the
requirement of giving notice, the contents of the
notice, each of these must be strictly followed will and
where non-compliance is alleged such as in this case the
onus is on the defendant who asserted the positive that
he did, to prove it by evidence.
A careful reading of
section 29 (1) reveals that a lessor is to serve a
notice on the lessee. It does not prescribe any
particular and exclusive mode of such service. Section
29 (2) only talks of “where a notice has been sent by
registered post addressed to a person at his last known
postal address in Ghana”. That does not mean that every
notice shall be so served. In my view that is an
indication of one of several modes which can be employed
to effect service of a notice on a lessee. The section
only say and means that where this mode has been adopted
then that lessee would be deemed to have had knowledge
of the service of the notice on him. Otherwise the
section does not “require” that the notices must be sent
by registered post. That point made in the body of
additional ground (b), was misconceived.
At the trial, a
representative of the Lands Commission Mr. Samuel Mensah
Addo said in his evidence in chief that “there was a
re-entry and a notice to that effect was served on
Boakye and Darkwa Co. and a new grant was made to the
first defendant. He tendered a copy of the notice of
re-entry served on Boakye and Darkwa Co. for breach of
covenant in evidence as Exhibit 2. Under
cross-examination on this the following emerged:—
“Q. Your evidence was
that notice of re-entry was sent to Boakye and Darkwa
Co. of P. O. Box 22 Kumasi.
A. Yes.
Q. According to you the
note on the left hand corner of folio 20 indicates the
fact of the registration of the letters on 29/3/95.
A. Yes.
Q. You know that when
you register a letter you are given a slip.
A. Yes.
Q. You said the letter
was registered on 29/3/95?
A. Yes.
Q. You agree that as
at 7/3/95 you had not advised anybody of the re-entry of
plot No. 86 by registered letter?.
A. Boakye and Darkwa
Co. was served with the notice of re-entry on 29/3/95
but the letter was written on 8/2/95”.
This witness went on to
say that the decision to re-enter the plot was taken on
21/6/94, and maintained throughout the cross-examination
that there was a re-entry of the plot.
Exhibit 2 was in fact a
notice of intention to re-enter coupled with an offer to
remedy the breach and commence the development of the
site. Exhibit 3 is the notice of actual entry for breach
of building and rent covenants. It was stated in
evidence that Exhibit 2 was sent to the Boakye and
Darkwa company address on 8 February 1995.
The reasons advanced by
the plaintiff convince this court that the Lands
Commission did not serve the statutory notice was that
no slip was tendered in evidence to show that the notice
was registered for posting. While I agree that the mere
tendering of a copy each of the notice and letter to
re-enter would not be sufficient proof of service of
notice on the lessee, I think to say also that
registered slips are the only way to prove such service
is untenable. A registered slip will offer the best
evidence but that cannot be the only acceptable and
recognised proof. Provided the defendant can lead
evidence by any other credible means that will be
sufficient. Above all this was a civil trial where proof
of facts such as the postage of a notice under
registered cover was by preponderance of the
probabilities. A party needs to lead evidence to reach
that standard for him to be held to have proved the
fact. It would have been otherwise if the standard had
been one of proving a fact beyond reasonable doubts,
which applies in criminal trials which this case is not.
In his
evidence-in-chief the representative of the Lands
Commission said that when the original of Exhibit 3 has
posted to the Boakye and Darkwa Co. Box 22 Kumasi
address, it was not returned as undelivered and that
from his experience all such unclaimed letters were
returned to them. Common experience will show that
indeed undelivered registered correspondences are
returned to senders via addresses provided at the back
of the envelope. I think this is a fact which cannot be
ignored. What is more when the writer was cross-examined
on this issue this was what took place:
“Q. Your evidence was
that notice of re-entry was sent to Boakye and Darkwa
Co. of Box 22 Kumasi?
A. Yes.
Q. According to you the
note on the left-hand corner of folio 20 indicates the
fact of the registration of the letters on 29/3/95.
A. Yes.
Q. You said the letter
was registered on 29/3/95?
A. Yes.”
A look at Exhibit 3
reveals the inscription “R/NABO 76” and beneath this
“No. 00041 – 29/3/95”. That probably was the
registration number and the date on which it was made.
It can be presumed that the absence of the registration
slip would not be fatal to the defendants case on this
issue.
Concerning this service
of notice on the lessee, the trial judge said that it
was to be noted that when the letter of offer was sent
through P. O. Box 22 Kumasi, the lessee, Boakye and
Darkwa received it and wrote back to accept it. He
therefore disbelieved that when the Lands Commission
notified the lessee through the same address they said
they did not get it this time. For this reason he said
their story of not receiving the notice of re-entry was
unacceptable and an after thought. He took the view that
the third defendant led sufficient credible evidence to
show that the notice of re-entry was sent by registered
post on 29/3/95. That was so even if section 29 of NRCD
175 did not make it obligatory that the notice must be
sent only by registered post. Now the question whether
or not there was sufficient evidence led by the third
defendant which proved service of the statutory notice
on the plaintiff was for the judge to decide. To resolve
these issue, the judge had first to determine what the
primary facts were. Having determined the facts, he was
required to come to a conclusion on the facts one way or
the other. It was when the judge failed in discharging
this duty on him or came to the wrong conclusion on the
facts found by him that it would be said that he erred.
I do not think the judge erred on this issue. I rather
think he was justified in his findings and conclusion on
the facts found by him. In circumstances such as this,
the appellate court would not be justified in seeking to
interfere with the findings and conclusion. Rather his
findings and that the notice of re-entry were served on
the plaintiff will be and same is hereby affirmed.
Counsels submission on the additional issues 2, 3, and 4
fail. At this stage I will look at the general ground of
appeal that the judgment was against the weight of
evidence.
A careful study of the
pleadings, evidence and submissions of counsel reveals
that the gravamen of this dispute centred around the
issue whether or not the lease of plot No. 86 Tema
Motorway Industrial Area, was granted, to Boakye, Darkwa
and Co., how the name Boakye and Co. came to be on the
registered lease in Exhibit A and did the Plaintiff
managed to get Boakye and Co. too on the lease by
forgery?. The trial judge manifestly directed his
attention to these matters and made findings of facts,
very damaging, of course to the plaintiffs case. He
found that the lease was granted to Boakye, Darkwa and
Co. I think he was supported by the evidence on record.
To start with the plaintiff pleaded that the application
for the allocation of the plot was made in the name of
Boakye, Darkwa and Co. P. O. Box 22 Kumasi. The
application was successful and the Government of Ghana
executed a lease in favour of that body on 18 November
1977. The plaintiff went on to plead that he notified
the Lands Commission to have the name “amended” to
Boakye and Company P. 0. Box 22 Kumasi. The Lands
Commission agreed to the request and effected the
desired amendment and the lease was registered as No.
632/1979. There was also a request for a change in
address to P. 0. Box 6888 Accra-North and that became
the new address of service. The third defendant admitted
the name in which the initial application was made in
respect of which the lease was granted, to wit, Boakye,
Darkwa and Co. but denied the request for the amendment
of the lessee's name from Boakye, Darkwa and Co. to
Boakye and Co. on the lease.
The defendants denied
ever changing the name in the manner stated by the
plaintiff or at all. With that the plaintiff assumed the
burden of proving what they pleaded but were denied. In
seeking to do so, the law was that the plaintiff was not
expected to merely mount the witness box to repeat on
oath what was pleaded but denied by the defendants
Rather he was required to lead proper and credible
evidence in order to prove his challenged averment: see
Majolagbe v. Larbi 1959 GLR 144.
The issue then was did
the plaintiff lead any evidence to prove the amendment
from Boakye, Darkwa and Company to Boakye and Co. as the
lessee and also that the address was changed from P.O.
Box 22 Kumasi to P. O. Box 6858 Accra-North? To start
with, what must be borne in mind is that any dealing
with the Lands Commission on matters title leasing of
land is attended with much documentation and a lot of
correspondences go on between the said body and a party
applying for an allocation of land. So will a change of
address of the party. Documents must be produced to
prove such change of name of lessees and their address.
On the evidence no such document was tendered by the
plaintiff to support his case in this wise. Again these
change might have been in the course of regular official
duties so that both the Lands Commission and the lessee
would have copies. As for the Lands Commission they
would have copies of the documents on their files.
Unlike the plaintiff who failed to produce a single
document on these alleged changes in his name and the
address, the Lands Commission produced a file on plot
No. 86 which was tendered in evidence as Exhibit CE2.
Exhibit CE2 did not contain any document on what the
plaintiff alleged was done by way of application for and
actual changes in the names of the lessee from Boakye,
Darkwa and Co. Boakye and Co. and his address from P. O.
Box 22 Kumasi to P. O. Box 6858 Accra. If in fact such
changes were made but thieves broke into his safe and
made away with all his document, as the plaintiff said
was the case, the Lands Commission would have their
copies intact and just as the plaintiff said he applied
for a copy of the original lease from the Deeds
Registry, he could have also applied for copies of those
application and the Lands Commission’s approval thereto.
If on the other hand the request for the changes was
made orally, then the defendant should have been able to
call the person to whom the request was made to testify
or call any other witness in support of his case. No one
was called as a witness by the plaintiff. It was clear
then that failure by the plaintiff to tender those
documents which would exist were his story to be true
had the effect of reducing the veracity of his story on
the changes in the name of the lessee and his postal
address considerably. At this stage one has to remind
oneself that whether or not the changes were made at all
and on the request of the plaintiff were issues of fact
depending on the credibility of the plaintiff. Such
issues are in the province of the trial judge to
determine and when he had made a finding thereon, the
appellate court would be slow to interfere with it. The
statement of the law is that:
“The principle which
regulate the right of an appellate court to interfere
with findings of fact made by a trial court are fully
dealt within Benmax v. Austin Motor Co. Ltd. 1955 2 WLR
418 HL; Morris v. West Hartlepool Steam Navigation Ltd.
1956 1 WLR 177 and Tonazzi v. Brunetti 14 WACA 403 among
others, where they are fully discussed. There may be
summarised as follows: where the appellate Court is
satisfied that the reasons given by the trial Court in
support of the findings are not satisfactory or where it
irresistibly appears to the appellate Court that the
trial Court has not taken proper advantage of his having
seen and heard the witness then in any such case the
matter will become at large for the appellate Court, in
which case the appellate Court is under a duty to give
such decision as the justice of the case require and if
need be reverse the decision of the trial Court and
substitute its own judgment for it. In any other case,
the appellate Court should not interfere with findings
of fact made by a trial Court.” see Kyiafi v. Waw 1967
G.L.R 463.
The learned trial judge
observed that there was no documentary evidence on the
change from for Boakye and Darkwa Co., to Boakye and Co.
the plaintiff did not tell the Court how he informed the
Land Commission to prepare a new lease in the name of
Boakye and Company and thereafter stated his finding
that no lease was given to Boakye and Co Ltd. but rather
to Boakye and Darkwa Co. of P. O. Box 22 Kumasi. He also
disbelieved the story of the change in address. I have
perused the whole of the record of proceedings and
concluded that the trial judge gave ample consideration
to the evidence before him and gave good reasons for his
rejection of the plaintiff's, story on the alleged
changes. There was forensic evidence to assist him on
the weight to be attached to the copy of the lease
tendered in evidence by the plaintiff and also to
determine it genuiness.
That evidence came from
Bukari Yakubu a Deputy Superintendent of Police
stationed at the police forensic Laboratory—Accra. He
said that in the course of his duties he was asked to
examine two documents being leases to see if there was
any defect in any of them. They were the Record copy and
the lessee copy of the lease. Bukari Yakubu set himself
out to find whether the document had been tampered with
especially the typed inscription “Boakye and Darkwa
Company” on the record copy and “Boakye and Company” on
the lessees copy. His report as contained in Exhibit 6
was that:
“It is established that
the words “Boakye And” on the two documents have same
typescript characteristics with same vertical and
horizontal alignments. The word “Darkwa” does not exist
on the lessee’s copy of the document. It was also
established that the word Company on both documents is
varied, with spacing between the letters in the wording
on the lessee’s copy.
It is also established
that there is a comma after the letter ‘Y’ in ‘COMPANY’
on the first page of the records copy whiles the comma
appears between the letters ‘N’ and ‘Y’ in the word
“COMPANY” on the first page of the lessee’s copy,
CONCLUSION. I view of the above observations, it is
concluded that the two words “Boakye” and “ANY” on the
two documents are from the same type-machine and printed
at the same time, one being a duplicate of the other.
The word ‘DARKWA’ was erased on the lessee’s copy and
the word ‘COMPANY’ was typed and spaced to take the
portion occupied by ‘DARKWA’ and ‘COMPANY’ on the same
document.”
Bukari Yakubu is a
document examiner and he testified as an expert.
An expert is permitted
by law to give evidence and express an opinion on the
matter on which he testifies. It is especially so if the
subject matter is sufficiently beyond common experience
and an expert opinion will aid the court in determining
the issue. This is given statutory backing in section
112 of the Evidence Decree 1975, NRCD 325. The opinion
of the expert is not binding on the trial judge who
still has to make a finding of fact on the issue. He has
the power to admit or reject the opinion. The decision
on the ultimate issue is on the judge and this cannot be
dispensed with by the opinion of the expert witness. As
was held in Conney v. Bentum-Williams 1984-86 2 GLR 301,
CA a judge was entitled to draw his aim inference from
all the pieces of evidence before him including the
expert evidence or report.
The trial judge in this
case did not reject the expert evidence after examining
it. He rather said that the expert confirmed the
alteration which was also obvious from a comparison of
Exhibits A and S, the lessee's copy and the records copy
respectively. The inference is that the judge did not
dwell exclusively on the report of the expert but did
study the two exhibits and compared one with each other
and found that the lessee’s copy Exhibit 5 had
been altered so far as
the lessee's name was concerned. As a result, he found
as facts that the Lands Commission never granted the
plot in dispute to Boakye and Co. but rather to Boakye
and Darkwa Company, that it was the plaintiff who caused
the name on the lease to be altered without the
knowledge and consent of the Lands Commission. Having
succeeded in forging the name, the plaintiff, then had
the lease registered in that name. Needless to say the
judge found rightly that Boakye and Darkwa Company was
the lessee of the Lands Department and not Boakye and
Company.
An observation on the
credibility and impressiveness of the plaintiff a
witness as shown by the record should be made now. When
he was put in the witness box and subjected to the acid
test of a cross-examination this was what transpired in
part:
Q. Is there any
correspondence between you and Lands Commission in
respect of the second lease?
A. I can’t tell because
all my document were destroyed.
Q. Did you write to the
Lands Commission for the second lease?
A. I can’t remember.
Q. Did you get any
reply from the Lands Commission to your request for a
new lease?
A. I can’t remember for
as I said all my documents have been taken.”
Concerning the postal
box number when he asked whether or not P. O. Box 22,
Kumasi was on Exhibit A he replied it was but that was
not his Box number. He added that he did not know the
postal address of Boakye and Darkwa Company and also had
no idea that the Company gave its address to the Lands
Commission as P.O. Box 22, Kumasi. He added at the trial
and of his cross-examination that he knew nothing about
Box 22, Kumasi. That was very strange indeed for that
was a witness who only a few months earlier filed an
amended statement of claim with the following
paragraphs:
“4b. The plaintiff says
that he initially made the application for the
allocation of plot No. 86 in the name of Boakye and
Darkwa Co. P. O. Box 22, Kumasi.
4c. The application was
granted and a lease in respect of plot No. 86 was
executed between the Government of Ghana and Boakye and
Darkwa Company, P. O. Box 22 Kumasi dated the 18th
November 1977. This document was never registered.
4d. The plaintiff
however soon thereafter notified the Lands commission
that the name should be amended to Boakye and Co. P. O.
Box 22, Kumasi.
4e. The Lands
Commission agreed and requested the plaintiff to
surrender the first document, which he did.
4d. The plaintiff says
that the Lands Commission prepared a fresh deed of lease
in the name of Boakye and Company P. O. Box 22, Kumasi
hearing the same date and the said Deed of lease was
duly executed by the parties, stamped and registered as
No. 632/1979.”
Was this man who knew
nothing about P. O. Box 22, Kumasi?
It was obvious that the
plaintiff gave evidence which contradicted this
pleadings. His evidence showing lack of any knowledge of
P. O. Box 22 Kumasi was not worthy of belief for this
ignorance was feigned and not real. A person like the
plaintiff, who displays to the whole world that he is a
victim of acute integrity deficiency syndrome is of no
weight when put in the judicial pair of scales. No
wonder then that the judge whose duty it was to
determine the level of credibility of a witness before
him found the plaintiff to have been unimpressive to put
it mildly. His finding that the plaintiff forged the
name of Boakye and company on the face of Exhibit A was
supported by the evidence and Justified.
It is discernible that
the plaintiff aimed at getting plot No.86 registered in
the name of Boakye and Co. after the death of Darkwa his
Parties in Boakye Darkwa and Co. It was wrong for him to
have thought that with the death of Darkwa, the property
became his. If for no other reason at all, the law is
that “where parties acquired land” as part of their
partnership assets, they were presumed to hold it as
tenants in common. ‘Jus accresendi inter mercatores
locum non habet;’ the right of survivorship has no place
between merchant, see Megarry’s Manual of The law of
Real Property 6th Ed. P. 303. On the death of Darkwa,
Boakye did not become the sole owner to deal with the
land as his own property.
In my opinion the trial
judge's findings of facts particularly that Exhibit A
was forged, were supported by the evidence and the
reasons he gave in support of them were satisfactory.
In such a situation the
judgment was borne out by the evidence, the ground of
appeal that the judgement was against the weight of
evidence therefore fails.
I think the judge was
also right in upholding the defendant's counter-claim
and giving judgment thereon in favour of the defendant.
The reason was that the parties fought on the same
subject matter and that was plain from the statement of
claim and the counter-claim: The preponderance of
evidence was in favour of the defendant and he was
entitled to judgment on his counter-claim.
Concerning the appeal
against the dismissal of the second plaintiff's claim
for damages for unlawful arrest and detention against
the first and second, defendants nothing much can be
said. The judge considered whether or not there was any
unlawful arrest. He found that the first plaintiff was
not present when the second plaintiff was allegedly
arrested by the police and he could not give evidence on
how the second plaintiff was arrested. There was no
evidence on what the first and second defendants did
before the police arrested the second plaintiff. There
was no evidence that the defendants instigated,
commanded or caused the arrest of the second plaintiff.
In that situation the defendants did not assume the
burden of justifying the arrest or detention. The judge
was fortified in this view by cases title Amadjei and
others v. Opoku Ware 1963 1 GLR 150, SC and Narun v.
Armah and others 1972 2 GLR 331 CA: I think the judge
was right in the view of the facts and the law
applicable. This conclusion was right that the
plaintiff’s case failed in this respect of the claim for
assault which he dismissed. The appeal consequently
fails on that also.
Concerning the plot and
the lease thereon, the evidence was overwhelming that
the plaintiff forged the document he dwelt upon to come
to court. Forgery is a vicious and an illegal act which
taints and vitiates any other act founded on it. Whoever
uses this infamous act must not be allowed to profit
thereby. When found out he must be made to lose what he
might it have gained and when he comes to court waving
this fraudulently obtained document, he must be driven
away for the judgement seat as was done to the plaintiff
in the court below.
On the facts the first
defendant was on the other hand able to show that Boakye,
Darkwa and Co. breached its covenants to pay rent and
develop the plot within a specified time, the Land
Commission re-entered that plot and re-allocated it to
him.
That cannot be faulted.
In the result the appeal fails and the judgement of the
Court below is hereby affirmed.
J. ANSAH
JUSTICE OF APPEAL
ESSILFIE-BONDZIE, JA
I agree
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL
TWUMASI, JA
I also agree
P. K. TWUMASI
JUSTICE OF APPEAL
COUNSEL |
