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Agreement -
Oral agreement - Released
control, possession and
management of sand deposits –
Maintenance of the private
motorways - Unilateral
abrogation of agreement -
Recovery of the sum of money
incurred by the plaintiff in
re-gravelling the road – Whether
or not judgment is against the
weight of the evidence - Whether
or not plaintiff is entitled to
the reliefs endorsed - Whether
or not the Plaintiff secured a
credit facility pursuant to an
agreement between the parties -
Section 11 (1), 11(4) of the
Evidence Act, 1975 (N.R.C.D 323)
HEADNOTES
The facts of
the case briefly are that the
respondent claimed that the
appellant agreed and released
control, possession and
management of sand deposits on
its concession to him The
respondent also alleged that
appellant requested him to
re-gravel the public road from
the town of Atta Ne Atta to
Bogoso Junction in the
Prestea-Huni Valley District.
The respondent further claimed
that with the consent of the
appellant, he secured a credit
from his bankers at an interest
rate of 35% to execute the road
works. The respondent finally
contended that the appellant
unilaterally abrogated the
agreement without any
justifiable reasons and
repossessed the sand deposit.
The appellant denied the claims
of the respondent and insisted
that it never entered into any
agreement with him to
rehabilitate the Atta- Ne Atta
to Bogoso Junction road. The
appellant also denied that it
agreed or consented to the
respondent taking a facility
from his bankers to execute the
road works. The appellant case
is, it embarked on a community
project involving the
rehabilitation of the road and
the appellant voluntarily
assisted by conveying gravel and
laterite for the road works. The
appellant also stated that the
District Assembly also
contributed in the
rehabilitation of the road
works. After the trial in the
High Court, judgment was entered
for the respondent, the
appellant appealed to the Court
of Appeal against the judgment
of the trial High Court but the
appeal was dismissed. The
appellant being dissatisfied
with the decision of the Court
of Appeal, further appealed to
this court praying that the
decision of the Court of Appeal
be set aside
HELD
From the
record of appeal, we are
satisfied that the claims
alleged by respondent were
capable of positive proof. As
demonstrated in this judgment,
the respondent could have led
positive evidence to prove that
he was contracted by appellant
to execute the road
rehabilitation and also the fact
that he took a facility of GHC
900,000.00 from his bankers to
finance the project. Having
failed to positively prove the
claims alleged by him, the
respondent ought to have lost
the contest. we are satisfied
that the Court of Appeal was
wrong in affirming the judgment
of the trial High Court. The
judgment of the Court of Appeal
was therefore against the weight
of evidence adduced at the trial
and on that ground alone the
appeal ought to be allowed. We
accordingly allow the appeal and
set aside the judgment entered
by the Court of Appeal to the
respondent. The appeal succeeds
accordingly.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules, 1996 CI 16
Evidence Act,
1975 (N.R.C.D 323)
CASES
REFERRED TO IN JUDGMENT
Achoro v.
Akanfela (1996-1997) SGCLR 209
Gregory v.
Tando IV and Hanson (2010) SCGLR
971.
Re Okine
(decd.): Dodoo v. Okine
(2003-2004) SCGLR 582
Ackah
v.Pergah Transport Ltd & Others
(2010) SCGLR 728
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BY MARFUL-SAU
JSC,
COUNSEL
DAAD AKWESI
(MRS) FOR THE
DEFENDANT/APPELLANT/APPELLANT.
JOHN MERCER
FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS
THE UNANIMOUS
JUDGMENT OF THE COURT IS READ
BY
MARFUL-SAU JSC, AS FOLLOWS-:
BY MARFUL-SAU
JSC,
This is an
appeal against the decision of
the Court of Appeal sitting at
Cape Coast dated 27th
June 2018. In this judgment, the
defendant/ Appellant /Appellant
will be referred to as Appellant
and the Plaintiff/Respondent
/Respondent shall be referred to
as Respondent.
The facts
of the case briefly are that the
respondent claimed that in
January 2009, the appellant
agreed and released control,
possession and management of
sand deposits on its concession
to him. According to the
respondent, as part of the
agreement, he was to make
available to the appellant and
its officers quantities of sand
as and when they needed it. The
respondent also asserted that he
was required to
maintain
the private motorways
linking appellant’s concession
area of the sand deposits.
The
respondent also alleged that in
January 2015, appellant
requested him to re-gravel the
public road from the town of
Atta Ne Atta to Bogoso Junction
in the Prestea-Huni Valley
District. The respondent further
claimed that with the consent of
the appellant, he secured a
credit facility in the sum of
GHC 900,000.00 from his bankers
at an interest rate of 35% to
execute the road works. The
respondent finally contended
that in November 2015, the
appellant unilaterally abrogated
the agreement without any
justifiable reasons and
repossessed the sand deposit.
The appellant
denied the claims of the
respondent and insisted that it
never entered into any agreement
with him to rehabilitate the
Atta- Ne Atta to Bogoso Junction
road. The appellant also denied
that it agreed or consented to
the respondent taking a facility
of GHC 900,000.00 from his
bankers to execute the road
works.
The
appellant case is further that
in 2015, it embarked on a
community project involving the
rehabilitation of the road and
the appellant voluntarily
assisted by conveying gravel and
laterite for the road works. The
appellant also stated that the
District Assembly also
contributed in the
rehabilitation of the road
works.
Based on
these facts, the respondent took
out a writ of summons against
the appellant and claimed the
following reliefs:-
‘’(a)Recovery
of the sum of GHC 900,000.00
being the cost incurred by the
plaintiff in re-gravelling the
road from the town of Atta Ne
Atta to Bogoso Junction at
the instance of the defendant;
and
(b)Interest
at 35% on the said sum from
January to date of payment.
After the
trial in the High Court,
judgment was entered for the
respondent
to recover
the sum of GHC 500,000.00 and
interest on that sum at 35% from
January 2015 till date of
payment and costs of GHC
12,000.00.
The
appellant appealed to the Court
of Appeal against the judgment
of the trial High Court but the
appeal was dismissed. The
appellant being dissatisfied
with the decision of the Court
of Appeal, further appealed to
this court praying that the
decision of the Court of Appeal
be set aside.
We observed
that in the amended Notice of
Appeal, the appellant formulated
eight (8) grounds of appeal, the
first ground being that the
Court of
Appeal’s judgment was against
the weight of the evidence
adduced at the trial.
We note that
beside the general ground of
appeal, all the other grounds
either alleged errors and
misapplication of law for which
no particulars were provided as
required by rule 6 (2)(f) of the
Supreme
Court Rules, CI 16. Those
grounds are incompetent and they
are struck out. We intend
therefore to address ground (i),
which is that the judgment of
the Court of Appeal is against
the weight of evidence adduced
at the trial.
From the
pleadings and evidence before
the trial court, respondent’s
main claim before the court was
the recovery of the GHC
900,000.00 and interest at 35%.
The respondent alleged that this
money was used by him to
rehabilitate the road. Indeed,
at the Application for
Directions, two issues were
settled by both parties and same
set down for trial. The issues
were:
‘’ (1)
Whether
or not plaintiff is entitled to
the reliefs endorsed on his
writ of summons, and
(2)
Whether
or not the Plaintiff secured a
credit facility pursuant to an
agreement between the parties.’’
In this
appeal, we are of the opinion
that the fundamental issue
disclosed by the pleadings and
the evidence on record is
whether the respondent was
contracted orally to
rehabilitate the road for which
he allegedly took a loan of GHC
900,000.00 with the consent of
appellant. The respondent’s case
is that he entered into an
oral
agreement with appellant to
rehabilitate the Atta Ne Atta to
Bogoso Junction road and he
borrowed GHC 900,000.00 from his
bankers to execute the contract.
His case further is that the
appellant consented to his
taking the bank facility. From
the evidence on record the
appellant denied these claims by
the respondent and it was thus
the duty of the respondent to
lead credible evidence to prove
the oral agreement and the fact
that he took a loan of GHC
900,000.00 to rehabilitate the
road.
Section 11
(1), of the Evidence Act, 1975
(N.R.C.D 323)
which deals
with the burden of producing
evidence provides as follows:-
‘’ For the
purposes of this Act, the burden
of producing evidence means the
obligation of a party to
introduce sufficient evidence to
avoid a ruling against him on
the issue’’.
Section 11(4)
of
the Evidence Act also provide
that:
‘’In other
circumstances the burden of
producing evidence requires a
party to produce sufficient
evidence so that on all the
evidence a reasonable mind could
conclude that the existence of a
fact was more probable than its
non-existence.’’
As already
observed the burden was on the
respondent to prove the claims
he made against the appellant.
So what evidence was led by the
respondent? We have combed the
entire record of appeal and our
considered opinion is that the
respondent led no credible
evidence to discharge the
evidential burden on him. First,
we tackle the issue that he was
contracted by the appellant to
rehabilitate the road. At page
77 of the record of appeal, the
respondent under
cross-examination testified as
follows:
‘’Q.
Regarding the re-graveling of
the Atta Ne Atta to Bogoso
Junction the defendant did not
enter into any contract with
you?
A. My Lord
the defendant invited me and we
made that agreement. It was the
Mining Manager, Mr. Samuel Takyi
who invited me on behalf of the
defendant company.
Q. The
re-gravelling of the Atta Ne
Atta to Bogoso Junction road was
a community project the
defendant undertook?
A.I did it.’’
Q. You
voluntarily approached the
defendant and offered to use
your trucks to convey laterite
and gravels for the project?
A. It was not
voluntary work. It was at the
invitation of the defendant per
Samuel Takyi. I used my trucks,
rollers and excavators for the
project. I recall that in the
beginning the Mining Manager
promised to help me with a
grader and a roller. They came
and worked for two (2) days;
went away and never returned.
From the
above evidence, respondent
asserted that he solely
re-graveled the road as a result
of the agreement with the
appellant. However, the
respondent failed to prove this
assertion. For example the
respondent claimed it was one
Mr. Samuel Takyi, the Mines
Manger of the appellant who
invited him to the meeting where
the agreement was concluded, but
the respondent made no effort to
call such a material witness to
testify for him.
The evidence
on record is that the respondent
was a civil contractor, so we
can easily assume that if he
actually executed the re-
graveling of the road, he would
have called some of his workers
who worked on the project, to
testify as witnesses to support
his claim, but he failed to do
so.
The
respondent in his Witness
Statement testified that the
project was supervised by
officers of appellant, namely,
Iddi Adams and Thomas Nyamesesi,
but he failed to call any of
them to testify for him. Most
importantly, the respondent
throughout the trial failed to
prove the amount of money he
spent on the re-graveling of the
road. He only called, PW1, David
Badu Bow, from the Ghana Highway
Authority, to testify on how
much it cost the Government of
Ghana, in reshaping and
re-graveling of roads. All the
respondent stated in his
testimony was that it cost the
Ghana Government GHC 100,000.00
to reshape and re-gravel a
kilometer of road.
Clearly, from
the evidence on record the
respondent woefully failed to
discharge the evidential burden
on him and we find it difficult
to appreciate the basis of the
decision of both the trial High
Court and Court of Appeal to the
effect that respondent was
contracted by the appellant to
re-gravel the road and that he
did in fact executed the project
from his resources.
We now
examine the evidence led by the
respondent that with the consent
of appellant he had to take a
credit facility from his bankers
to finance the re-graveling of
the road. At paragraph 7 of his
Witness Statement, respondent
testified that he secured a
credit facility in the total sum
of GHC 900,000.00. From the
evidence he first took GHC
470,000.00 from Freedom Micro
Finance Company Ltd. What this
means is that the balance of the
GHC 900,000.00, which is GHC530,
000.00 was borrowed from the
Stanbic Bank, Tarkwa. The trial
Court and the Court of Appeal
rightly rejected the claim that
respondent took GHC 470,000.00
from the Freedom Micro Finance
Company Ltd and we do endorse
same as we are satisfied that no
evidence was led to prove that
claim.
With regard
to the credit facility from the
Stanbic Bank, the respondent
tendered exhibit B series, to
support his claim that he took a
total of GHC 500,000.00 as a
loan from Stanbic Bank to
execute the road project. The
exhibits showed that the loans
were taken in July 2015,
September 2015 and October 2015,
while according to the pleadings
and evidence of respondent, the
agreement to rehabilitate the
road was done in January 2015.
There is no
evidence to show that the said
loans, if they were granted at
all were used to fund the road
project. The respondent’s claim
was that he borrowed in total an
amount of GHC 900,000.00 to fund
the project. If we add the GHC
470,000.00 he allegedly took
from the Freedom Micro Finance
Company and the GHC 500,000.00
he took from Stanbic Bank, the
total is GHC 970,000.00 and not
GHC 900,000.00. By this alone,
respondent’s claim in his
pleadings and evidence that he
took a total facility of GHC
900,000.00 from his Bankers
could not be true by his own
evidence.
We also
observed that the respondent was
claiming interest of 35% on the
sum of GHC 900,000.00 as
endorsed on his writ of summons.
The evidence however, revealed
that it was the facility that he
took from the Stanbic Bank as
evidenced by exhibit B series
that attracted the interest of
35%. As the record of appeal
further revealed, the GHC
470,000.00 respondent allegedly
took from the Micro Finance
Company, which was rightly
rejected by the trial court, was
not even documented and as such
no one could have determined the
interest rate charged by that
company. So from the evidence it
was wrong even for the
respondent to have lumped the
two facilities together and
claimed an interest of 35%. The
claim was wrong and a
misrepresentation.
On the loan
facilities, respondent asserted
that he took the loans with the
consent of the appellant. We
note from the record that no
evidence was led by respondent
to establish this claim and same
will be dismissed. The
respondent just mounted the
witness box and repeated his
pleading that he informed the
appellant that he will need a
loan facility, to enable him
execute the road project. No
evidence was led by the
respondent as to who in
appellant’s company, gave the
consent and when this took
place. The respondent, once
again failed the evidential
test.
It is trite
that an appellate court ought
not disturb the findings of fact
made by a trial court and in
this case concurred by the
intermediate appellate court,
but there is a caveat, indeed
the law is that an appellate
court has the authority to
disturb and set aside such
findings made by a trial court
where the findings of fact are
wholly not supported by the
evidence on record. In this
appeal evidence from the record
of appeal showed clearly that
the respondent failed to adduce
credible evidence to prove his
claim before the court.
This Court
being the second appellate court
is therefore entitled to depart
from the findings of fact made
by the trial court and concurred
by the intermediate appellate
court.
See:
Achoro v.
Akanfela (1996-1997) SGCLR 209
Gregory v.
Tando IV and Hanson (2010) SCGLR
971.
In Re Okine
(decd.): Dodoo v. Okine
(2003-2004) SCGLR 582.
From the
record of appeal we are
satisfied that the claims
alleged by respondent were
capable of positive proof. As
demonstrated in this judgment,
the respondent could have led
positive evidence to prove that
he was contracted by appellant
to execute the road
rehabilitation and also the fact
that he took a facility of GHC
900,000.00 from his bankers to
finance the project. Having
failed to positively prove the
claims alleged by him, the
respondent ought to have lost
the contest.
In
Ackah
v.Pergah Transport Ltd & Others
(2010) SCGLR 728, this Court
speaking through Sophia
Adinyira,JSC held at page 736 as
follows:-
‘’ It is a
basic principle of law on
evidence that a party who bears
the burden of proof is to
produce the required evidence of
the facts in issue that has the
quality of credibility short of
which his claim may fail. The
method of producing evidence is
varied and it includes the
testimonies of the party and
witnesses, admissible hearsay,
documentary and things (often
described as real evidence),
without which the party might
not succeed to establish the
requisite degree of credibility
concerning a fact in the mind of
the court or tribunal of fact
such as a jury. It is trite law
that matters that are capable of
proof must be proved by
producing sufficient evidence so
that on all the evidence a
reasonable mind could conclude
that the existence of the fact
is more probable than its
non-existence…’’
From
evidence on record,
we are
satisfied that the Court of
Appeal was wrong in affirming
the judgment of the trial High
Court. The judgment of the Court
of Appeal was therefore against
the weight of evidence adduced
at the trial and on that ground
alone the appeal ought to be
allowed. We accordingly allow
the appeal and set aside the
judgment entered by the Court of
Appeal to the respondent. The
appeal succeeds accordingly.
SGD.
S. K. MARFUL-SAU
(JUSTICE OF
THE SUPREME COURT)
SGD.
P. BAFFOE-BONNIE
(JUSTICE OF
THE SUPREME COURT)
SGD.
N. S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
SGD. A.M. A.
DORDZIE
(JUSTICE OF
THE SUPREME COURT)
SGD. N. A.
AMEGATCHER
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
DAAD AKWESI
(MRS) FOR THE
DEFENDANT/APPELLANT/APPELLANT.
JOHN MERCER
FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS.
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