|
land
- Declaration of title –
Ownership – Trespass - General
damages - Perpetual injunction –
Deed registration – Fraud -
Dishonesty and misrepresentation
- Whether or not the
judgment is against the
weight of evidence - Whether or
not the Learned
Justices of the Court of Appeal
misconstrued the case of the
Plaintiff -
HEADNOTES
The Plaintiff, averred that one
Barone Fiore Ernesto Taricone by
four separate leases acquired a
vast parcel of land situate at
Adjirigano, Accra. The Plaintiff
asserted that the said
acquisition was made from the
Ashong Mlitse Family of
Odarteitse We of Teshie for a
term of (99) years and that the
said Barone Fiore Ernesto
Taricone assigned the unexpired
term of the lease on the said
land to it (Plaintiff) in 1979.
It is the case of the Plaintiff
that the Deed of Assignment
evidencing same was stamped. It
further asserted that it
obtained a Deed of Confirmation
dated over the portion it
retained and had the said Deed
registered, The Plaintiff
further averred that after the
grant it went into possession of
same and started developing
various dwelling houses on the
land. According to the
Plaintiff, it carried on with
its developments on the land
without any let or hindrance
until about 1998 when the 1st
Defendant was noticed
encroaching on some part of the
land. The Plaintiff averred
further that the 1st
Defendant was laying claim to a
portion of the land by virtue of
Land Certificate and alleged
that the certificate aforesaid
was obtained by fraud. As part
of its case the Plaintiff stated
that the title of Odarteitse We
to the land in dispute was
confirmed by the judgment of the
Court of Appeal in a Civil
Appeal No.9187 entitled Banga
& Others Vs. Djanie & Another
reported in [1989-1990]
GLR 510. The Plaintiff
further asserted that when the
Nungua Stool made an adverse
claim to its land it entered
into a Memorandum of
Understanding with the Stool
with the view to regularizing
its interest with the said Stool
if the Stool’s claim of superior
interest is established. The
Plaintiff further alleged that,
the 1st Defendant
fraudulently registered its
documents over the disputed land
in order to overreach
Plaintiff’s interest in the
land. The 1st
Defendant denied that the land
in dispute belongs to any family
from Teshie and therefore is
Teshie land. It claimed that the
land belonged to the Nungua
Stool and stated that it had
been in possession of the said
land since 1994. It was the case
of the 1st Defendant
that when the Plaintiff
attempted to encroach on the
lands, the youth of Nungua
resisted whereupon the Plaintiff
approached the Nungua Stool to
regularize its occupation of
same but the said Stool had at
that material time already
divested its interest in part of
the land to it The
Trial High Court after a full
trial came to the conclusions
that the land in dispute
is part of a large tract of land
belonging to the Nungua Stool.
Dissatisfied with the judgment
of the Trial Court, the
Plaintiff mounted a challenge
HELD
In the circumstances, we find
that there is no sufficient
basis in law for any appellate
interference with the findings
of fact made by the Trial Court
as affirmed by the Court of
Appeal and consequently no
reason to disturb the order
giving effect to those findings
and conclusions made by the
judgment of the Court of Appeal.
Save the variation made with
respect to the order of the
Court of Appeal which reduced
the term of Plaintiff’s lease,
we affirm the said judgment, and
hereby dismiss the appeal
STATUTES REFERRED TO IN JUDGMENT
1992 Constitution
Supreme Court Rules, (1996),
C.I.16
High Court (Civil Procedure)
Rules LN140A
Evidence Act 1975 (NRCD 323).
CASES REFERRED TO IN JUDGMENT
Banga & Others vs. Djanie &
Another [1989-1990] GLR 510
NPP Vs. Attorney General
[1996/97] SCGLR 729
Banga & Others Vs. Djanie &
Another [1989-90]1 GLR 510
F.K.A Company Limited Vs. Nii
Teiko Okine (Substituted By Nii
Tackie Amoah VI) & Others, Civil
Appeal No./J4/1/2016 13/4/2016
Zabrama Vs. Segbedzi [1991] GLR
221
Dahabieh Vs. S.A.Turqui & Bros.
[2001-2002] SCGLR 498
International Rom Ltd. Vs.
Vodafone Ghana Ltd., Civil
Appeal No.J4/2/2016 6/6/2016
Multi Choice Ghana Ltd. Vs.
Internal Revenue Service
[2011]2 SCGLR 783
Owusu Domena Vs. Amoah
[2015-2016] I SCGLR 790
Gihoc Refrigeration & Household
Ltd. Vs. Hanna Assi [2005-2006]
SCGLR 455
Kwakaraba Vs. Kwesi Bio [2012]2
SCGLR 834
Muller Vs. Home Finance Ltd.
[2012] SCGLR 1234 at 1236
Registered Trustee Of The
Apostolic Church Vs. Olowolemi
[1990]3 WASC 108
Republic Vs. High Court Kumasi
Ex-parte Boateng [2007-2008]
SCGLR 404
Ntrakwa (Decd) In Re Bogoso Gold
Ltd. Vs. Ntrakwa [2007-2008]
SCGLR 389
Fenuku Vs. John Teye [2001-2002]
SCGLR 955
Effisah Vs. Ansah [2005-2006]
SCGLR 943
Fofie Vs. Zanyo [1992]2 GLR 475
and Barclays Bank Ghana Ltd.
Vs. Sakari [1995-97] SCGLR 639
Mondial Veneer (GH) Ltd. Vs.
Amoah Gyebu XV [2011]2 SCGLR 466
Achoro Vs. Akanfela [1996-1997]
SCGLR 209
Gregory Vs. Tandoh IV & Hanson
[2010] SCGLR 971
Mensah Vs. Mensah [2012]1 SCGLR
391
BOOKS
REFERRED TO IN JUDGMENT
Civil Procedure, A Practical
Approach” by S. Kwami Tetteh
DELIVERING THE LEADING JUDGMENT
AMADU, JSC: -
COUNSEL
F. K. QUARTEY FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
AUBREY TAMAKLOE FOR THE
DEFENDANT/RESPONDENT/RESPONDENT
AMADU, JSC:-
(1)
This appeal is from the decision
of the Court of Appeal
pronounced on the 18th
December, 2014 which affirmed in
part the judgment of the High
Court dated 11th
June, 2003. For purposes of
convenience, the parties to the
appeal shall be referred to by
the same description as in the
Trial High Court. The Plaintiff
herein, aggrieved by the
decision of the Court of Appeal
has appealed to this court
seeking an overturn of the
decision.
(2)
The key question for our
decision in this appeal is
whether the Court of Appeal
correctly reevaluated the
evidence on record and applied
the relevant law and
consequently came to the right
conclusion by affirming the
judgment of the Trial Court in
part only.
(3)
BACKGROUND
By a Writ of Summons issued on
24th February 1999
the Plaintiff commenced this
action against the 1st
Defendant for the following
reliefs:
a.
“A
declaration of title to a parcel
of land situate at
Adjiringano-North, Accra
comprising an approximate area
of 456.25 acres the full
description of which were
provided in the statement of
claim.
b.
General damages
for trespass.
c.
Perpetual injunction
restraining the Defendant, her
assigns, privies or workmen from
interfering with the quiet
enjoyment of Plaintiffs land.
d.
An order that Land Certificate
No. T.D 0042 recorded in Land
Register Volume 019 Folio 28
issued in the name of the
Defendant Company be nullified
and expunged from the Lands
Register on ground of fraud,
misrepresentation and, or
mistake.
e.
Costs.”
(4)
The Plaintiff, a limited
liability company registered
under the laws of Ghana averred
that one Barone Fiore Ernesto
Taricone by four separate leases
acquired a vast parcel of land
situate at Adjirigano, Accra.
The Plaintiff asserted that the
said acquisition was made from
the Ashong Mlitse Family of
Odarteitse We of Teshie,
Accra. The Plaintiff gave the
size of the land it is claiming
in the action as 1,863 acres and
stated that are Barone Fiore
Ernesto Taricone acquired same
in 1977
for a term of (99) years.
It added that the land was duly
registered.
(5)
The Plaintiff averred
that the
said Barone Fiore Ernesto
Taricone assigned the unexpired
term of the lease on the said
land to it (Plaintiff) in
1979. It is the case of the
Plaintiff that the Deed of
Assignment evidencing same was
stamped as No.AC 2420/79 and
registered as No.2757/97. It
stated further that in 1987 it
surrendered about 1433 acres of
the land to the Ashong Mlitse
Family and kept only 456 acres
to itself.
It
further asserted that it
obtained a Deed of Confirmation
dated 1st October
1987 over the portion it
retained and had the said Deed
registered as AR 5299B/89.
(6)
The Plaintiff further averred
that after the grant it went
into possession of same and
started developing various
dwelling houses on the land.
According to the Plaintiff, it
carried on with its developments
on the land without any let or
hindrance until about 1998 when
the 1st Defendant was
noticed encroaching on some part
of the land.
(7)
The Plaintiff averred further
that the 1st
Defendant was laying claim to a
portion of the land by virtue of
Land Certificate No. 0042 and
alleged that the certificate
aforesaid was obtained by
fraud. As part of its case the
Plaintiff stated that the title
of Odarteitse We to the land in
dispute was confirmed by the
judgment of the Court of Appeal
in Civil Appeal No.9187 entitled
Banga & Others Vs. Djanie &
Another reported in
[1989-1990] GLR 510. The
Plaintiff further asserted that
when the Nungua Stool made an
adverse claim to its land it
entered into a Memorandum of
Understanding with the Stool
with the view to regularizing
its interest with the said Stool
if the Stool’s claim of superior
interest is established. The
Plaintiff further alleged that,
the 1st Defendant
fraudulently registered its
documents over the disputed land
in order to overreach
Plaintiff’s interest in the
land.
(8)
THE 1ST DEFENDANT’S
CASE
The 1st Defendant
denied that the land in dispute
belongs to any family from
Teshie and therefore is Teshie
land. It claimed that the land
belonged to the Nungua Stool and
stated that it had been in
possession of the said land
since 1994. It was the case of
the 1st Defendant
that when the Plaintiff
attempted to encroach on the
lands, the youth of Nungua
resisted whereupon the Plaintiff
approached the Nungua Stool to
regularize its occupation of
same but the said Stool had at
that material time already
divested its interest in part of
the land to it
the (1st
Defendant).
(9)
The 1st Defendant
claimed that it acquired a total
of 62 acres in two lots of 40
acres and 22 acres and
registered the title deed in
respect thereof at the Land
Title Registry as No. 777/1999.
The 1st Defendant
stated further that it had to
re-acquire 8 acres out of the 40
acre lot from the Nii Whang
Family of Nungua because the
said family was in possession of
that portion of the land.
According to the 1st
Defendant, it registered the
said land as AR 3222/1999 and
further that it paid monies to
other person claiming interest
with respect to the 22 acre
parcel of land to enable it
register same as No. 646/2000
with Land Registry No. GA 15801.
(10)
By processes of joinder upon
application, three other persons
were joined to the action as
Defendants. The Nungua Stool
was joined to the suit to assert
its claim to ownership of the
land in dispute. It was
represented by the 1st
and 2nd
Co-Defendants. The Lands
Commission was also joined to
this action as 3rd
Co-Defendant by reason of the
fact that a portion of the land
claimed by Plaintiff fell within
land already acquired by
Government in 1940 for the
Animal Husbandry Farm and Road.
The 4th party to be
joined to this action was
Reit-Top Housing Estate Limited
which was added as the 4th
Co-Defendant because it had
acquired part of the land in
dispute from the 1st
Defendant and had started
developing same.
(11)
JUDGMENT OF THE TRIAL COURT
The Trial High Court after a
full trial made the followings
findings and conclusions:
i.
That the land in dispute is part
of a large tract of land
belonging to the Nungua Stool.
ii.
The Court dismissed the
Plaintiff’s claim for an Order
for possession of the land.
iii.
The other reliefs claimed by the
Plaintiff in the nature of
damages for trespass, perpetual
injunction and cancellation of
land certificate No. TD 0042
were all dismissed.
iv.
The Court upheld the
Counterclaim of the 4th
Co-Defendant for a declaration
of title to 39.59 acres of the
disputed land and restrained the
Plaintiff from interfering with
4th Co-Defendant’s
possession.
v.
By inference the judgment
provided that the Plaintiff, 1st
Defendant, the 3rd
co-Defendant and 4th
Co-Defendant should retain
possession of the respective
portions of the disputed land
that they have already developed
or were in the process of
developing when the Trial Court
visited the locus in quo.
(12)
APPEAL BEFORE THE COURT OF
APPEAL
Dissatisfied with the judgment
of the Trial Court,
the Plaintiff by a Notice of
Appeal filed pursuant to leave
granted on 17th May,
2006
mounted a challenge against
same. The grounds of appeal set
out in the said Notice are as
follows:
a.
“The Trial Judge erred in
dismissing the Plaintiff’s claim
on the ground that the Plaintiff
lacked capacity under Article
226(4) of the 1992 Constitution
to hold the lease in issue.
b.
The Trial Judge erred in not
referring to the Supreme Court
the interpretation of Article
266(4) of the 1992 Constitution
and its applicability to the
Plaintiff Company.
c.
The Learned Trial Judge erred in
entertaining the issue of
capacity of the Plaintiff to
hold the assignment, which issue
was not properly raised for
determination.
d.
The trial proceeded on the wrong
principles of the burden of
proof, thus disabling a proper
assessment of the Plaintiff’s
case.
e.
The judgment is inconsistent and
illogical in that having
pronounced void the Plaintiff’s
leasehold interest on
constitutional grounds, it
nevertheless upheld the
Plaintiff’s possessory right to
part of the property.
f.
The Learned Trial Judge erred in
dismissing the Plaintiff’s claim
on the ground that part of the
disputed land had been acquired
by the Government of Ghana.
g.
The Trial Judge erred in not
upholding the
Plaintiff/Appellant’s plea that
the 3rd
Co–Defendant/Respondent was
guilty of laches, acquiescence
and estopped from laying claim
to the land of the Plaintiff.
h.
The Judgment is against the
weight of evidence.
i.
The Trial Court erroneously
dismissed the action because it
failed to appreciate the
Plaintiff’s case and the
substantial evidence in support.
j.
The Learned Trial Judge
misconstrued the case of the
Plaintiff when he held that the
judgment in BANGA VS. DZANIE was
tendered to establish estoppel
when it was clear that the
Judgment was tendered for its
historical value.
k.
The reasons for the Judge’s
refusal to cancel the
registration are not supported
by the evidence on record or in
law, there being adequate
evidence on record that the
Defendant was guilty of
dishonesty”.
(13)
JUDGMENT OF THE COURT OF APPEAL
The Court of Appeal after
hearing the appeal, held as
follows:
a.
The phrase “person”
in Article 266(4) of the
1992
Constitution has been
interpreted to “include a
natural as well as legal person
or a corporate body” in
the case of
NPP
Vs. Attorney General [1996/97]
SCGLR 729. There
was therefore no need to refer
it to the Supreme Court for
interpretation again.
b.
The evidence led at the trial
juxtaposed with the laws of
Ghana necessarily raised the
question of capacity to be
determined by the Trial Judge.
c.
The Trial Judge did not err in
raising the capacity of the
Plaintiff because there were
grounds in the record of
proceedings from which the issue
could be determined.
d.
The test for the burden of proof
being by a preponderance of the
evidence is not incompatible
with the saying that a person
seeking a declaration of title
must do so on the strength of
his own case. The Court of
Appeal found the rules on the
onus of proof as set out by the
Trial Judge to be perfect and in
accord with the established
rules.
e.
Since the Appellant failed to
amend its reliefs by the
inclusion of a relief for
possession after it had obtained
leave to do so, the leave
granted thus became void ipso
facto and there was therefore no
claim for possession to enable
the Trial Judge make any order
for possession. The order for
possession is therefore null and
void and thereby nullified.
f.
The 3rd Defendant did
not claim title to it to be
accused of laches and
acquiescence.
g.
The failure by the Appellant to
make required searches when the
Teshie Stool purported to lease
the land to it largely accounts
for its mishap. The Trial Judge
was right in finding that
Plaintiff failed to prove its
title to the land claimed.
h.
Even though registration
constitutes notice to the whole
world, registration per se does
not constitute proof of title.
There was abundant evidence on
record to support the Trial
Judge’s finding that the
disputed land belonged to the
Nungua Stool and not Teshie
Stool.
i.
There was the evidence to show
that before the Statutory
Declaration of ownership by the
Ashong Mlitse Family of Teshie,
the Nungua Stool per its Chief
Nii Odai Ayiku had been granting
leases of the land to its
subjects which were registered
by the Lands Commission.
j.
There was also evidence the
evidence that the Government of
the Gold Coast acquired land
from the Nungua Stool in the
1940’s.
k.
There was also the undisputed
evidence that it was the Nungua
Stool which granted part of
their land to the Teshie people
to settle on, but the Teshie
people went beyond the area
granted to them.
l.
The Ashong Mlitse Family did not
testify to prove ownership of
the land they swore the
Statutory Declaration to claim.
m.
The Plaintiff’s lease was
registered before its grantor,
the Ashong Mlitse Family’s
Statutory Declaration was
registered. The Trial Judge was
therefore right in not attaching
any weight to the Plaintiff’s
grantor’s Statutory Declaration.
n.
The case of
Banga
& Others Vs. Djanie & Another
[1989-90]1 GLR 510
relied on by the Plaintiff was
not helpful to its case because
no boundaries were established
in that case relative to the
land in dispute.
o.
The evidence on record shows
that the Plaintiff later got to
know that the land it occupied
belonged to the Nungua Stool and
not the Teshie Stool and that
was why when it was challenged
by the Defendants it approached
the Nungua Stool to sign the
Memorandum of Understanding to
regularize its occupation of the
Land. The Memorandum per se is
not a deed of conveyance. It
also explains why in the second
suit at Tema the Plaintiff
claimed ownership of the land as
a grantee of the Nungua Stool.
p.
The evidence on record clearly
established that when the
Plaintiff sought to regularize
its grant with the Nungua Stool,
that Stool had already leased
the disputed land to the 1st
Defendant and therefore the
Nungua Stool had no interest in
the land to lease to the
Plaintiff except a reversionary
interest.
(14)
APPEAL BEFORE THE SUPREME COURT
It is against the above
confusions that the Plaintiff by
notice to this court filed on
30/1/2015 appealed from the
judgment of the Court of Appeal
in which eleven (11) grounds of
appeal have been set out as
follows:-
GROUNDS OF APPEAL
i.
“The
judgment is against the weight
of evidence.
ii.
The Learned Justices of the
Court of Appeal erred by not
holding that Defendants’ claim
that the disputed land belongs
to the Nungua Stool was
statute-barred by virtue of
Section 10 of the Limitation
Act, Act 54.
iii.
The Learned Justices of the
Court of Appeal erred when they
held that the decree of
possession made in favour of the
Plaintiff by the Trial Judge was
a nullity.
iv.
The Learned Justices of the
Court of Appeal erroneously
dismissed the appeal because
they failed to properly evaluate
the Plaintiff’s case and the
evidence adduced at the trial.
v.
The Learned Justices of the
Court of Appeal misconstrued the
case of the Plaintiff
when they held that the judgment
in BANGA VS. DZANIE [1989-1990]
1 GLR P. 510 was tendered to
establish estoppel when it was
clear that the judgment was
tendered to establish its
historical value.
vi.
The Learned Justices of the
Court of Appeal proceeded on
wrong principles of the burden
of proof, thus disabling a
proper assessment of the
Plaintiff’s case.
vii.
The Learned Justices of the
Court of Appeal erred by failing
to hold that the Defendant was
guilty of dishonesty.
viii.
The Learned Justices of the
Court Appeal erred when they
held that since the word
“person” had already been
interpreted by the Supreme Court
it was not necessary to refer to
the Supreme Court the
interpretation of Article 266
(4) of the 1992 Constitution and
its applicability to the
Plaintiff Company.
ix.
The Learned Justices of the
Court of Appeal erred by not
holding that the capacity of the
Plaintiff to hold assignment was
not properly raised for
determination.
x.
The Learned Justices of the
Court of Appeal erred by not
holding that the judgment
appealed from is inconsistent
and illogical, in that having
pronounced void the Plaintiff’s
leased interest on
constitutional grounds, it
nevertheless upheld Plaintiff’s
possessory right to part of the
property.
xi.
The Learned Justices of the
Court of Appeal erred when they
held that 3rd
Co-Defendant was not guilty of
laches and acquiescence and
therefore estopped from laying
claim to the land from the
Plaintiff.”
(15)
DETERMINATION OF THE
APPEAL
As can be gleaned from the
Notice of Appeal the Plaintiff
has mounted this appeal on
numerous grounds. We however
note with utmost concern the
poor formulation of most of the
grounds of appeal contained in
the Plaintiff’s Notice of
Appeal. Rules 6(4) and (5) of
the Supreme Court Rules, 1996
(C.I. 16) provide as follows:
“(4) The grounds of appeal
shall set out concisely and
under
distinct heads the grounds on
which the appellant intends to
rely at the hearing of the
appeal, without an argument or a
narrative and shall be numbered
seriatim and where a ground of
appeal is one of law, the
appellant shall indicate the
stage of the proceedings at
which it was first raised.”
“(5) A ground of appeal
which is vague or general in
terms or does
not disclose a reasonable ground
of appeal is not permitted,
except the general ground that
the judgment is against the
weight of evidence and a ground
of appeal or a part of it which
is not permitted under this
rule, may be struck out by the
Court on its own motion or on
application by the respondent.”
(16)
In the context of the rules
regulating appeals in this
court, and the consequences of
contravening rules in mandatory
terms
it is significant to refer to
the observations made by Akamba
JSC in the case of
F.K.A
Company Limited Vs. Nii Teiko
Okine (Substituted By Nii Tackie
Amoah VI) & Others, Civil Appeal
No./J4/1/2016 dated
13/4/2016. In that case, the
Learned Justice observed as
follows:-
"It is important to stress that
the adjudication process thrives
upon law which defines its scope
of operation. It is trite to
state for instance that, nobody
has an inherent right of appeal.
The appeal process is the
creature of law. Any initiative
within the context of the
adjudication process must be
guided by the appropriate,
relevant provision, be it
substantive law or procedural
law. As courts, if we fail to
enforce compliance with the
rules of court, we would by that
lapse be enforcing the failure
of the adjudication process
which we have sworn by our
judicial oaths to uphold".
(17)
The Learned Justice further
observed that:-
"The matter before us presently
has been initiated through the
appeal process and must
therefore be conducted and
guided by the
Supreme
Court Rules, (1996), C.I.16.
We would reiterate compliance
with the rules of this court by
juxtaposing the seventeen
grounds of appeal (supra) filed
by the Defendants with the
provisions of Rule 6(4) of the
Supreme Court Rules (1996),
C.I.16, to determine how far
they are compliant and if not,
what consequences arise".
(18)
The decision and statement on
the law above emphasizes the
need for compliance with the
rules regulating procedure in
this court. Certainly, the
wisdom embodied in the part of
the decision just quoted is very
relevant to the determination of
some of grounds in the instant
appeal due to the gross
contravention of the provisions
Rules 6(4) and (5) of C.I.16 in
the manner in which the
Plaintiff formulated most of its
grounds of appeal which render
them inadmissible and unarguable
as they are incompetent and
liable to be struck out.
(19)
These rules regulating procedure
in this court prescribe the
manner in which an Appellant
must formulate his grounds of
appeal. The Appellant is not at
liberty to settle the grounds of
appeal in any manner. The
grounds of appeal upon which a
party challenges the judgment of
the Court below must therefore
not only be properly formulated
but shall be set out in the
manner prescribed by the rules
of the court. As Kpegah JA.
(as he then was) eruditely
stated in the case
of
Zabrama Vs. Segbedzi [1991] GLR
221 at 226; “The
implication of these rules is
that an Appellant, after
specifying the part of the
judgment or order complained of,
must state what he alleged ought
to have been found by the Trial
Judge; or what error he had made
in point of law. I do not think
it meets the requirements of
these rules to simply allege
misdirection on the part of the
Trial Judge. The requirement is
that the grounds stated in the
notice of appeal must clearly
and concisely indicate in what
manner the Trial Judge
misdirected himself either on
the law or on the facts. To
state in a notice of appeal
that: “The Trial Judge
misdirected himself and gave an
erroneous decision” without
specifying how he misdirected
himself is against the rules and
renders such a ground of appeal
inadmissible. The rationale is
that a person who is brought to
an Appellate forum to maintain
or defend a verdict or decision
which he has got in his favour,
shall understand on what ground
it is impugned”. See the
case of
Dahabieh Vs. S.A.Turqui &
Bros. [2001-2002] SCGLR 498
which cited the above
position with approval.
(20)
The proper formulation of
grounds of appeal assist the
court to clearly identify and
situate the point of law or fact
upon which the judgment appealed
against is assailed. The grounds
of appeal also assist the court
to appreciate the context in
which the Appellant is urging
this court to interfere with the
judgment of the court below. It
is for this reason that the
rules of the court require
clarity where an Appellant
alleges a misdirection or any
error on the part of a Trial or
Appellate court to set out
particulars of the said
allegation. A ground of appeal
that is not compliant with the
above rules is incompetent.
(21)
In determining whether a ground
of appeal is competent, a court
should not be influenced by how
the ground is described by the
Appellant. The accepted practice
is that where the ground of
appeal is based on an allegation
of errors decided from
conclusion on undisputed facts,
it is a ground of law. Where in
the other hand, the error of law
is founded on disputed facts
calling into question the
correctness of the facts
determined, it is a question of
mixed law and fact. This is
because the latter case is a
conclusion of law coupled with
the exercise of discretion. A
ground of appeal being the
aggregate reason why the
decision appealed from is
alleged to be wrong, must
provide the very plank for
setting the decision aside as it
circumscribes the ratio
decidendi of the judgment,
for the purpose of attacking it
in the light of the identified
lapses. In the instant case, we
find from the judgment of the
Court of Appeal that its
acceptance of most of the
findings and conclusions of the
Trial Court were based on
undisputed facts supported by
cogent documentary evidence.
(22)
PLAINTIFF'S GROUNDS (ii),
(iii),(vii),(viii) (ix) and (xi)
OF APPEAL:
In the context of the provisions
of Rules 6(4) and (5) of the
Supreme Court Rules [1996]
C.I.16, we shall examine the
Plaintiff’s grounds of appeal
containing allegations of error
of the part of the court below
without providing particulars of
such error. They are:
i.
“The Learned Justices of the
Court of Appeal erred by not
holding that Defendants’ claim
that the disputed land belongs
to the Nungua Stool was
statute-barred by virtue of
Section 10 of the Limitation
Act, Act 54.
ii.
The Learned Justices of the
Court of Appeal erred when they
held that the decree of
possession made in favour of the
Plaintiff by the Trial Judge was
a nullity.
iii.
The Learned Justices of the
Court of Appeal erred by failing
to hold that the Defendant was
guilty of dishonesty.
iv.
The learned Justices of the
Court Appeal erred when they
held that since the word
“person” had already been
interpreted by the Supreme Court
it was not necessary to refer to
the Supreme Court the
interpretation of Article 266
(4) of the 1992 Constitution and
its applicability to the
Plaintiff Company.
v.
The Learned Justices of the
Court of Appeal erred by not
holding that the capacity of the
Plaintiff to hold assignment was
not properly raised for
determination.
vi.
The Learned Justices of the
Court of Appeal erred when they
held that 3rd
Co-Defendant was not guilty of
laches and acquiescence and
therefore estopped from laying
claim to the land from the
Plaintiff.”
(23)
The Appellant's grounds (ii),
(iii),(vii),(viii) (ix) and (xi)
of appeal simply, vaguely and
severally allege errors
contained in the judgment of the
Court of Appeal without
providing any particulars of the
alleged errors to enable this
Court reasonably appreciate the
basis upon which we are being
invited to interfere with the
said decision on each of those
grounds. What is the nature of
each of the errors alleged in
the said grounds? This has not
been stated by the Plaintiff.
The rules mandatorily require
that particulars of the errors
alleged are provided. The
compelling interrogatory is that
why is this an error? And what
is the type of error? Is it an
error of law of fact?
(24)
In the case of
International Rom Ltd. Vs.
Vodafone Ghana Ltd., Civil
Appeal No.J4/2/2016 dated
6/6/2016 this Court while
striking out all the grounds of
appeal settled by the Appellant
because they are narrative and
argumentative in formulation,
observed that; "the
magnanimity exhibited by this
court over these obvious lapses
and disrespect for the rules of
engagement is being taken as a
sign of either condoning or
weakness hence the persistence
of the impunity. It is time to
apply the rules strictly".
In Multi
Choice Ghana Ltd. Vs. Internal
Revenue Service [2011]2 SCGLR
783, this Court per Wood
C.J reiterated the position of
the law at page 789 of the
report as follows:
“Under the Supreme Court Rules,
1996 (C.I. 16), Rule (4) grounds
of appeal are expected to be set
out concisely and without
argument or narrative. More
importantly, by Rule 6(5) aside
from the well-known and oft-used
general ground of appeal-the
judgment is against the weight
of evidence – a ground of appeal
which is vague or general in
terms or fails to disclose a
reasonable ground of appeal is
not permitted.”
As already expressed the
Appellant's grounds (ii),
(iii),(vii),(viii) (ix) and(xi)
of appeal patently fail to meet
the requirements of the law.
Being non-compliant they are
inadmissible and unarguable
because they are incompetent.
They are consequently hereby
struck out.
(25)
GROUND (x) OF THE APPEAL
“The Learned Justices of the
Court of Appeal erred by not
holding that the judgment
appealed from is inconsistent
and illogical, in that having
pronounced void the Plaintiff’s
leased interest on
constitutional grounds, it
nevertheless upheld Plaintiff’s
possessory right to part of the
property.”
It is observed that the Court of
Appeal set aside the part of the
Trial Court’s judgment that
granted the Plaintiff any
possessory rights over a part of
the land in dispute. It is
further noted that it is the
grant of the same portion by the
Trial Court that founds ground
(x) of this appeal. The above
ground questions the
comprehensibility of the
judgment on that basis. We
abinitio wonder what the
Plaintiff’s issue here is since
the supposed incongruity appears
to have been corrected by the
judgment of the Court of
Appeal. Apart from that, we
cannot fail to notice that this
ground has been formulated in
argumentative terms and is in
itself a contravention of the
mandatory rules of this Court;
specifically Rule 6(5) of
C.I.16, 1996 Besides its
inappropriate formulation, we
find that the said ground also
fails to disclose a reasonable
ground of appeal.
(26)
In holding (1) of the report in
the Multi Choice Ghana Ltd.
Vs. Internal Revenue Service
case (supra), this Court held in
furtherance of the impropriety
of the Appellant’s ground of
appeal which alleged
inconsistency and contradiction
against the judgment of the
Court of Appeal as follows:
“A ground of appeal, questioning
(as in the instant appeal), the
comprehensibility of a statement
of law or finding of fact or a
ruling or decision of the court,
did not constitute a valid
ground of appeal in terms of the
rule 6(4) of the Supreme Court
Rules, 1996 (C.I. 16), and ought
properly to be struck out as
under its (in) Rule 6(5). We
would have thought that in those
cases where a party’s only
complaint is that it finds an
order or a decision
incomprehensible, unless the
rules of court expressly so
prohibit (and we know that of
any such rule), the proper
procedure would be to seek
clarification or directions from
the court which issued the order
or decision complained of, by
invoking its inherent
jurisdiction”.
We are in the circumstances
constrained to strike out the
said ground of appeal as well as
incompetent and we hereby struck
it out. Having so ordered, we
cannot gloss our eyes over any
crucial issues of law which
arise from those grounds in
accordance with the practice in
the case of
Owusu
Domena Vs. Amoah
[2015-2016] I SCGLR
790, where
this court held that where an
appeal is anchored on the sole
ground of appeal that, the
judgment on appeal is against
the weight of evidence both
factual and legal issues arise
for consideration. Guided by
that practice, since the appeal
has to be determined based on
the re-evaluation of the
evidence and the application of
the relevant law, we shall
examine the legal issues
articulated by the Plaintiff in
its statement of case
notwithstanding that as basis
for formulation of grounds of
appeal which is not consistent
with the rules, we have had to
strike them out as distinct
grounds for failure to provide
particulars.
(27)
LEGAL ISSUES ARISING FROM
PLAINTIFF’S STATEMENT OF
CASE
In its statement of case,
Learned Counsel for the
Plaintiff has raised several
legal issues on which the
Plaintiff assailed the judgment
of the Court of Appeal on
grounds of the failure by that
court to favourably attend to
the said issues on which the
judgment of the Trial Court was
challenged. We shall set the
said issues down and deal with
them sequentially.
(i) In arguing ground 3,
Counsel for the Plaintiff
attacked the position
of the Learned Justices of the
Court of Appeal on the failure
by the Plaintiff to file its
amended reliefs to include the
relief of possession within time
having obtained leave of the
Trial Court to do so. At page
154 of Vol.4 of the record, the
Court of Appeal held inter
alia as follows:-
“since the pursuant notice was
not filed within 14 days from 27th
March 2007, the leave became
void ipso facto, meaning there
was no claim for possession to
enable the Trial Judge make any
order for possession in favour
of the Plaintiff/Appellant. See
the case of Akuffo-Addo Vs.
Catheline [1992]1 GLR 172.
The decree for possession
made in favour of the
Plaintiff/Appellant is therefore
null and void and hereby
nullified”.
(28)
According to the Plaintiff’s
counsel, the Court of Appeal
having made this finding only on
grounds of procedure had erred
by misapplying the law. The
Plaintiff argues that contrary
to the finding by the Court of
Appeal, no such amendment was
filed at all. Counsel has
referred to the proceedings of
the Trial Court in Vol.3 of the
record where the counsel on
record at the trial had drawn
the attention of the Trial Judge
to the non-compliance of the
leave granted to amend,
whereupon the Trial Court
granted ‘leave’
for the insertion of the words
intended to constitute the
amendment to be made on the file
copy, with the result that, the
leave for the amendment granted
by the Trial Court was complied
with by insertion albeit as the
Plaintiff argues, with the
indulgence of the Trial Court.
To anchor this argument however
counsel refers to the orders of
the Trial Court as contained in
the reasons of 14th
May 2003 and relies on the
provision of Order 28 Rule 8 of
the High
Court (Civil Procedure) Rules
LN140A, the extant
procedural regime at the time as
the basis for the nature of the
amendment made by the Plaintiff
at the Trial Court.
(29)
The Plaintiff has also relied on
the law of presumptions and
contends that the presumption is
in its favour in that, the Court
of Appeal ought to have upheld
the position of the Trial Judge
to the effect that the amendment
so ordered had been effected and
properly so until otherwise
rebutted by evidence on record.
The Plaintiff has referred to
the decision of this court in
the case of
Gihoc
Refrigeration & Household Ltd.
Vs. Hanna Assi [2005-2006] SCGLR
455, the
Plaintiff submits that the
reliance by the Court of Appeal
on the case of Akufo-Addo Vs.
Catheline (supra) was flawed
and prefers the dissenting view
of Osei Hwere JSC in the said
case. The Plaintiff has further
urged on us to apply the
decisions of this court in
Kwakaraba Vs. Kwesi Bio [2012]2
SCGLR 834 And Muller Vs. Home
Finance Ltd. [2012] SCGLR 1234
at 1236 which
have undoubtedly emphasized the
need for courts to ensure
substantial justice rather than
rely on fanciful technicalities
in the dispensation of justice.
In response, the 1st
Defendant’s simple answer to the
above arguments is that the
Plaintiff having failed to amend
as directed cannot claim to have
amended by insertion of the
amending words only on the file
copy of the Trial Court.
(30)
It needs no further emphasis
that the Trial Court as a
creation of statute, is a court
of record. The record of appeal
before any Appellate court
therefore is presumed to be an
accurate reproduction of all the
occurred in the court from which
the appeal emanates. In our
jurisdiction, where notice to
settle record as per Civil Form
3 is served on parties it is not
intended to be a perfunctory
exercise but a critical process
in the appeal process. The
Appellate court cannot in the
exercise of its jurisdiction
presume the existence of any
step in the proceedings before
the Court below to determine an
issue which is not on record.
The issue arising from the
Plaintiff’s submission on the
Court of Appeal’s order
nullifying the relief of
possession sought to be enforced
by the Plaintiff ought to be
determined within the context of
the peculiar facts. While we
agree with the contention of the
Plaintiff’s counsel that the
amendment sought which was not
more than 144 words could under
the provision of Order 28 Rule 8
of LN140A be effected by
insertion, which the Plaintiff
contends it so effected, there
is no evidence from the record
that upon granting leave to
amend the Trial Court ordered
the manner in which the
amendment could be done as
submitted by the Plaintiff’s
counsel, that it is by the
insertion of the amending words
rather than the filing of an
amended writ to reflect the
specific relief added within the
time permissible by the rules of
Court. If as counsel for the
Plaintiff asserts, the Trial
Court permitted an insertion,
there ought to be an order to
that effect on record. There
being no evidence of such order,
the Court of Appeal cannot be
faulted for pronouncing that the
amendment purportedly effected
was a nullity even though the
reasons for so pronouncing so
may not be entirely accurate as
the Plaintiff’s counsel
suggests.
(31)
In his title “Civil
Procedure, A Practical Approach”
by S. Kwami Tetteh first Edition
page 453 the author refers to
the case of
Registered Trustee Of The
Apostolic Church Vs. Olowolemi
[1990]3 WASC 108
at 122 where the Supreme
Court of Nigeria admonished as
follows:- “There can be no
gainsaying the fact that the
game of advocacy in court is
one which demands maximum
vigilance throughout the
progress of the case. A prudent
and industrious counsel should
be ever vigilant to any
important development during the
progress of the case he has been
briefed to prosecute or defend
which impels him to take, change
or amend a procedural step in
order to achieve the desired
result for his client”.
This statement is very
instructive particularly where
the court has favourably granted
counsel the opportunity to amend
and the amendment is not
effected within the time
permissible by the rules of the
court. The counsel and the party
who sought the amendment would
be deemed to have abandoned the
leave granted.
(32)
We are aware of the decisions of
this court in the Gihoc
Refrigeration & Household Ltd.
Vs. Hanna Assi (supra) and
Muller Vs. Home Finance Ltd.
(supra) cases cited by the
Plaintiff’s counsel where in
ensuring substantial justice,
this court granted reliefs not
specifically claimed and
endorsed. Indeed, the same
thinking was applied in the case
of
Republic Vs. High Court Kumasi
Ex-parte Boateng
[2007-2008] SCGLR 404. But
all the cases referred to above
are not applicable to the
circumstances of this case where
the Trial Court granted leave to
amend but the Plaintiff elected
not to file the pursuant
process. The Trial Court at that
stage was bound by its own
orders and would not have
properly indulged the Plaintiff
to choose any other form of
amendment it preferred which is
not supported by evidence from
the record of appeal. See the
case of
Ntrakwa (Decd) In Re Bogoso
Gold Ltd. Vs. Ntrakwa
[2007-2008] SCGLR 389.
Consequently, we find no merit
in the Plaintiff’s submission on
this issue. The Court of Appeal
cannot be said to have acted in
error when it declared the
decree for possession in favour
of the Plaintiff a nullity not
having been founded on a
properly amended relief.
(33)
The second legal issue provoked
by the Plaintiff’s statement of
case is on the position of the
Court of Appeal on the
citizenship of Baron Ernesto
Taricone and its effect on the
tenure of the lease he obtained
having regard to article 266(4)
of the 1992 Constitution. At
page 150 of Vol.4 of the record,
the Court of Appeal held as
follows:- “……………the true
position of the law was that the
various constitutions, Section 1
of the Lands Commission Decree
NRCD 24 of 1972, Section 6 of
PNDCL 42 continued the
prohibition against foreigners
holding more than 50 years
leases in Ghana. Section 46(5)
of the National Redemption
Council (Establishment)
Proclamation, (We think it
should read Provisional National
Defence Council) PNDCL 42,
reduced the interest of
foreigners holding leases beyond
fifty years to fifty. Thus
whilst Baron Ernesto Tariconi a
naturalized Ghanaian could hold
a ninety-nine year lease, the
interest he transferred to the
Plaintiff company was only 50
years commencing from 22nd
day of August 1969. The lease
of the land of 50 years to the
Plaintiff company is by
operation of law and not by
assignment. The Learned Trial
Judge’s holding at page 8 of the
judgment that; “the Plaintiff
was incapable of granting that
which it had no legal capacity
to have or to hold, we think was
an over statement”. The Trial
Judge should have considered the
Plaintiff/Appellant’s leasehold
interest to be 50 years and not
none at all”.
(34)
As the Plaintiff rightly
contends in its statement of
case, the Court of Appeal
misapprehended the facts
regarding the nationality of
Baron Fiore Ernesto Taricone.
The correct position is that, in
1977 Baron Fiore Ernesto
Taricone took a lease for
ninety-nine from the Ashong
Militse Family, he was a
naturalized Ghanaian. What this
means is that notwithstanding
article 266(4) of the
Constitution, his lease was
valid. In 1979, Baron Fiore
Ernesto Taricone then assigned
the remainder of 97 years of
this lease to the Plaintiff
which was wholly owned by him.
Since the Plaintiff company was
at the time wholly owned by a
Ghanaian citizen, article 266(4)
does not affect his interest.
When Baron Fiore Ernesto
Taricone died and was succeeded
by his children who are not
citizens of Ghana, this matter
of the succession to the shares
of Baron Fiore Ernesto Taricone
by his non-Ghanaian children
came up at the trial during
cross-examination of the
Managing Director of the
Plaintiff who is a son of Baron
Fiore Ernesto Taricone. It was
then the 1st
Defendant capitalized on this
information to contend that
since the current shareholders
of the Plaintiff are not
Ghanaian citizens, then the
Plaintiff is in effect not a
Ghanaian company and cannot own
more than a 50 year lease in the
land, subject matter of the
suit.
(35)
Therefore, the Court of Appeal
was in error in making
pronouncements regarding the 99
year lease of Baron Fiore
Ernesto Taricone and curtailed
it to 50 years from August
1969. We wonder how a lease
taken in 1977 could be curtailed
retrospectively from August
1969. And since Baron Fiore
Ernesto Taricone was a Ghanaian
citizen, there was no
justification for the Court of
Appeal to curtail the
Plaintiff’s interest on that
ground. Besides the Court of
Appeal, the Trial Court also
waded into the issue of
nationality of the Plaintiff’s
shareholders which was not an
issue that arose from the
pleadings. In our view, it was
a red herring thrown into the
dispute by the 1st
Defendant which ought to have
been disregarded by the Trial
Court because whether the
Plaintiff was a foreign company
and thus not entitled to a 50
year term from the date its
ownership of shares changed to
non-Ghanaian citizens, does not
mean the Plaintiff had no
interest at all in the land
subject matter of the suit. The
quantum of the Plaintiff’s
interest in the land was not
central to the dispute before
the court. The Trial Court in
its judgment implied that the
citizenship of the shareholders
of the Plaintiff affects their
capacity but with all due
respect that finding was
erroneous. The citizenship of
the shareholders may certainly
affect the quantum of interest
the Plaintiff may have in the
land, but not the capacity to
sue.
(36)
The Plaintiff is a duly
registered company and by law it
has the legal personality and
capacity to sue. The quantum of
interest in the land in issue
the Plaintiff would be entitled
to by virtue of article 266(4)
of the Constitution, depends on
so many variable facts such as
the date on which the Plaintiff
ceased to be a Ghanaian company
and became a foreign company by
reason of the citizenship of its
new shareholders. Any
determination of this will
require a full enquiry by
itself, and since it was not
pleaded in the instant suit, no
evidence was led on the relevant
facts and as such it was not an
issue necessary for the
resolution of the dispute before
the court. It was therefore
wrong for the two lower courts
to allow themselves to be lured
into discussing and pronouncing
on the issue by the 1st
Defendant. In the circumstances,
the respective holdings by the
Trial Court and the Court of
Appeal that sought to reduce the
Plaintiff’s lease to 50 years
are hereby set aside.
(37)
The Plaintiff in its statement
of the case proferred an
interpretation of the word
“create” in article
266(4) of the Constitution and
tried to limit the effect of
article 266(4) to only the first
interest that may be granted in
respect of the land. We donot
accept that interpretation but
since as we have said, the issue
was not properly before the
court, we shall refrain from
making any pronouncement on it
as it does not belong to the
instant litigation before us.
(38)
THE ISSUE OF FRAUD
The Plaintiff in its statement
of case has alleged that the
Court of Appeal failed in its
duty to digest the allegation of
dishonesty of the 1st
Defendant thus allowing it to
benefit from its own fraudulent
conduct. The Plaintiff submits
that there was glaring evidence
of fraud,
dishonesty and misrepresentation
on the part of the 1st
Defendant as it did not upon the
entry of appearance to the writ
and delivery of defence disclose
any grant nor the existence of
any deed in its favour.
However, by an amendment it
effected in its defence to the
action, the 1st
Defendant averred for the first
time its interest in 62 acres of
the disputed land it had
obtained from the Nungua Stool
which it registered in 1999.
According to the Plaintiff, the
Court of Appeal failed to
evaluate the inconsistency in
the claim by the 1st
Defendant that it acquired its
interest in 1993 and a document
was executed in its favour on 2nd
February 1993 when in fact the 1st
Defendant had willfully and
fraudulently doctored the said
document made in 1998 to read
1993 in order to overreach the
Plaintiff and the court into
believing that its acquisition
was earlier in time before that
Plaintiffs’ acquisition.
(39)
In support of this contention
the Plaintiff has referred to
the testimony of the Gborbu
Wulomo as having denied the 1993
date contained in the 1st
Defendant’s document. The
Plaintiff then assailed the two
lower court’s for their failure
to comment on whether or not the
1st Defendant could
in all probability have
backdated the said conveyance
marked differently at the trial
as Exhibit ‘U’ ‘AA’ and ‘36’.
The Plaintiff relies on the
testimonies of the lawyers who
processed the 1st
Defendant’s conveyance at the
Lands Commission and argued that
the two lawyers not having been
enrolled as lawyers by 1993 but
much later they could not have
truthfully processed a
conveyance created in 1993.
(40)
Another ground on which the
Plaintiff anchors its allegation
of dishonesty, fraud, and
misrepresentation is the date on
which the oath of proof on the
said Exhibit ‘U’ or ‘AA’ or ‘36’
was administered before the
senior High Court register which
is 22nd July, 1998.
The Plaintiff then concludes
that the date 1993 when the
conveyance was dated and the
consistent 1998 date when it was
processed at the High Court and
Lands Commission, as the
evidence per Exhibit 90 reveals,
coupled with the fact that David
K. Agorsor, the solicitor who
purportedly endorsed it having
been enrolled as a lawyer two
years later in 1995,
cumulatively, lead to a
conclusion that Exhibit ‘U’,
‘AA’ or ‘36’, the conveyance
from the Nungua Stool in favour
of the Plaintiff, was
fraudulently procured.
Consequently, as the effect of
fraud vitiates everything, it
ought to apply against the 1st
Defendant. The Plaintiff has
attacked the attitude of the
Court of Appeal in failing to
make a pronouncement on the
evidence of fraud perpetuated by
the Plaintiff which the
Plaintiff alleges resulted in
the conclusion by the Court of
Appeal that at the time the
Plaintiff entered into the
Memorandum of Understanding
Exhibit ‘K’ with the Nungua
Stool, the stool had already
divested itself of the land in
disputed, contrary to the true
position that at that material
time, it is the Plaintiff who
was in possession.
(41)
As further proof of fraud
against the 1st
Defendant, the Plaintiff has
relied on the testimony of ‘DW9’
an official of the Lands
Commission whose testimony
according to the Plaintiff
damaged the credibility of the 1st
Defendant’s Exhibit ‘U’, ‘AA’ or
‘36’. The witness who was
subpoened to produce a copy of
the receipts which were
endorsed on the said Exhibit on
30/12/94 testified that as of
30/12/94 the Lands Commission
was not using receipts books
with initials of ‘AU’ as has
appeared on the document but
were using receipt books with
the initials ‘AR’ and further
that the said receipt quoted as
No.AU/295805 was presented and
received on 27/12/96 in respect
of another transaction. Finally,
the Plaintiff submits that all
the particulars of entries of
the 1st Defendant’s
document at the Lands Commission
were dated in 1998 and the said
dates only confirm the
allegation that the 1st
Defendant was dishonest as it
backdated its conveyance Exhibit
‘U’, ‘AA’ or ‘36’ to 1993 in
order to overreach the
Plaintiff.
(42)
The 1st Defendant has
contested the Plaintiff’s
submission on the allegation of
fraud as substantially
inaccurate. It submits that it
had been in possession of the
disputed land since 1993 and had
been impeded from developing
same in 1995. It submits
further that it was rather the 1st
Defendant who noticed the
Plaintiff’s presence in 1998 and
by reason of having commenced
development, the Trial Court had
to vary an earlier injunctive
order against it in the year
2000 to enable it complete
developing 84 buildings it had
commenced. The 1st
Defendant submits that, what has
been presented to the court to
substantiate the allegation of
fraud or dishonesty on the part
of the 1st Defendant
were actually discrepancies
resulting from lapses in the
land administration system being
run by different agencies of the
Lands Commission at the time and
partly due to an embargo on the
processing of documents from the
Nungua Stool between 1993 and
1998. The 1st
Defendant submits that the Court
of Appeal cannot be faulted in
dismissing the Plaintiff’s
allegation of fraud against the
1st Defendant as the
same was not proved.
(43)
Our examination of the judgment
of the Court of Appeal reveals
that as the Plaintiff has
alleged there was no
pronouncement on the allegation
of fraud, misrepresentation or
dishonesty alleged by the
Plaintiff. It is the Trial
Court in its judgment page 409
of Vol.3 of the record of appeal
which resolved the issue in the
following words:
Even more unimpressive was the
allegation that the Defendant
was guilty of fraud, mistake or
misrepresentation and therefore
its documents should be
cancelled. The situation in
which the Nungua Stool and the
second Co-Defendant found
themselves vis a vis moneys to
be paid for the lands was
brought about by the Stool
representatives and other
officials of the stool who acted
on behalf of the Stool or Nungua
families. People close to the
Stool or representing families
claiming to own lands and acting
for those families were all
collecting moneys at different
times. Everyone felt that he or
she too was entitled to a
portion in the moneys
representing the values of the
land……………….. The situation was
succinctly put thus by the ‘DW6’
in his testimony in court.
“The system had been corrupted
from 1993. The very council
members who were complaining
about the grants were signing
the documents and collecting
monies”.
Significantly, some of the
people even signed a Memorandum
of Understanding with the
Plaintiff granting it permission
to stay on the land only for the
second Co-Defendant to appear in
court to testify that documents
granted by those representatives
were forged”.
(44)
In the instant case, whereas the
Court of Appeal failed to
comment on the mass of evidence
adduced by the Plaintiff to
substantiate its allegation of
fraud, the Trial Court found no
merit in those allegations. In
doing so, the Trial Court made
primary findings of fact about
the conduct of the Nungua Stool
and its principal elders. One
of such findings is the conduct
of the Gborbu Wulomo whose
testimony the Plaintiff sought
to rely on to substantiate the
allegation. The Trial Court
found as follows:-
“The Gborbu Wulomo in particular
could not be taken seriously
when he insisted that the Stool
had not granted the 40 acres to
the Defendant because the
picture of the sod cutting in
Exhibit ‘N’ published to the
whole world in the newspapers
that he endorsed the possession
and development of the 40 acres
of land given to the Defendant
and hence to the 4th
Co-Defendant. There was no
evidence that anyone from Nungua
or the Stool protested at the
publication until the Gborbu
Wulomo testified in the instant
case and the publication was
tendered in this court, that it
was alleged that the sod cutting
was not 40 acres. Having regard
to the high esteem that the
Gborbu Wulomo is held in
society, the inconsistencies in
his evidence were most
unfortunate”.
As the Court of trial which
perceived the evidence and
placed the requisite probative
value on them, we accept the
finding and conclusion of the
Trial Court that the Plaintiff’s
proof of the allegation was
unimpressive with the effect
that, the Plaintiff failed to
sufficiently discharge its
statutory burden which is proof
beyond a reasonable doubt as
required under Section 13(1) of
the
Evidence Act 1975 (NRCD 323).
See the case of
Fenuku
Vs. John Teye [2001-2002] SCGLR
955.
(45)
What we deduce from the drift of
the evidence drawn to our
attention by Plaintiff’s counsel
however is at best a pointer to
a suspicion on the part of the
lawyers who handled the
Plaintiff’s conveyance
document. There is no evidence
on record to prove that the
conveyance itself was
fraudulently procured.
Consequently, the allegation of
fraud dishonesty or
misrepresentation against the 1st
Defendant cannot stand. As Lord
Herschell said in Derry Vs.
Peek (supra) a case cited
by the Plaintiff to make a case
of false misrepresentation
against the 1st
Defendant, “fraud is
proved when it is shown that a
false representation has been
made (1) knowingly or (2)
without belief in its truth or
(3) recklessly, careless whether
it be true or false………..To
prevent a false statement being
fraudulent, there must be, I
think always be an honest
believe in its truth and this
probably covers the whole ground
for one who knowingly alleges
that which is false has no such
honest belief”.
(46)
From the entire record of
appeal, we find no evidence
against the 1st
Defendant that its officers
knowingly knew any
representations made by the
lawyers who processed the 1st
Defendant’s conveyance could be
false nor that the 1st
Defendant’s officers were
reckless in assuming the truth
of those representations.
Accordingly, the two lower
courts could not be faulted for
failing to make a finding of
fraud, dishonesty or
misrepresentation against the 1st
Defendant as alleged.
(47)
GROUNDS (i), (iv), (v) and (vi)
OF THE APPEAL
(i) “The judgment is against
the weight of evidence”.
(iv) The Learned Justices of
the Court of Appeal erroneously
dismissed the
appeal because they failed to
properly evaluate
the
Plaintiff’s case and the
evidence adduced at the trial.
v.
The Learned Justices of the
Court of Appeal misconstrued the
case of the Plaintiff when they
held that the judgment in Banga
vrs. Dzanie (1989 - 1990) 1 GLR
p. 510 was tendered to establish
estoppel when it was clear that
the judgment was tendered to
establish its historical value.
vi.
The Learned Justices of the
Court of Appeal proceeded on
wrong principles of the burden
of proof, thus disabling a
proper assessment of the
Plaintiff’s case”.
An examination of the above
grounds of appeal reveal that
they all relate to the alleged
improper evaluation of the
evidence on record. The
statutory jurisdiction of this
Court is re-inforced by the
established principle that where
the Appellant contends that the
judgment appealed from is
against the weight of evidence
adduced at the trial, then the
appellate court must embark on a
consideration of the record of
appeal in the nature of
rehearing by which we are
enjoined to reach our own
conclusion on the evidence
adduced so however that in so
doing, we can only interfere
with the decision of either of
the two lower courts when we are
satisfied from our consideration
of all the evidence that the
decision appealed from is
unreasonable and perverse. We
refer to this settled practice
of the Appellate courts as
emphasized in the decision of
this court in a number of
cases. In
Effisah
Vs. Ansah [2005-2006] SCGLR 943,
this court of page 959 court
expounded on the rule in the
following words: “the well
settled rule governing the
circumstances under which an
Appellate court my interfere
with the findings of a trial
tribunal, has been examined
times without number by this
court in a number of cases as
for example,
Fofie
Vs. Zanyo [1992]2 GLR 475
and Barclays Bank Ghana Ltd.
Vs. Sakari [1995-97] SCGLR 639.
The dictum of Acquah JSC
(as he then was) in the Sakari
(as he then was) in the sakari
case is for our purpose highly
relevant. (And equally relevant
in the instant appeal). His
Lordship observed (at page 650
of the Report) as follows:
“………….where the findings are
based on undisputed facts and
documents………….the appellate
court as in decidedly the same
position as the lower court and
can examine facts and materials
to see whether the lower courts’
findings are justified in terms
of the relevant legal decisions
and principles”.
(48)
In Owusu-Domena Vs. Amoah
(supra), this court per
Benin JSC held at page 790 of
the report that; “the
sole ground of appeal that the
judgment is against the weight
of evidence throws up the case
for a fresh consideration of all
facts and law by the Appellate
Court……….” On the
strength of this principle of
law, although some of the
grounds of appeal set out by the
Plaintiff has been struck out,
the Plaintiff has been
nevertheless fortuitous because
as a judicial duty, we have had
to determine all matters of the
evaluation of the evidence on
record on both factual and legal
grounds in considering the
omnibus ground upon which the
Plaintiff has also anchored this
appeal. This in no way
diminishes from the reason the
Plaintiff’s improperly
formulated grounds have been
struck out.
(49)
In proceeding on the omnibus
ground of appeal, we are not
oblivious of the fact that this
appeal has been brought against
a judgment which substantially
affirmed the findings of fact
made by the Trial Court. We have
therefore cautioned ourselves in
the discharge of our duty to be
guided by the well-established
principle of law on concurrent
findings of fact made by two
lower courts. In Mondial
Veneer (GH) Ltd. Vs. Amoah Gyebu
XV [2011]2 SCGLR 466
this court re articulated
the legal proposition,
applicable as with held in the
case of Achoro
Vs. Akanfela [1996-1997] SCGLR
209 as follows:
“In an appeal against findings
of fact to a second appellate
court like the Supreme Court
where the lower appellate court
had concurred in the findings of
the trial court especially in a
dispute, the subject matter of
which was peculiarly within the
bosom of the two lower courts or
tribunals, this court would not
interfere with the concurrent
findings of the two lower courts
unless it was established with
absolute clearness that a
blunder or error resulting in a
miscarriage of justice, was
apparent in the way the lower
tribunals dealt with the facts.
It must be established ,e.g.
that the lower courts had
clearly erred in the face of a
crucial documentary evidence, or
that a principle of evidence had
not been properly applied ; or,
that the finding was so based on
erroneous proposition of the law
that if that proposition be
corrected, the finding would
disappear. It must be
demonstrated that judgments of
the courts below were clearly
wrong.”
(50)
The above principle had earlier
found expression in this Court’s
decision in the case of
Gregory Vs. Tandoh IV & Hanson
[2010] SCGLR 971. In
expounding the proposition this
Court held that a second
appellate court could and was
entitled to depart from
findings of fact made by a trial
court and concurred by the first
appellate court under the
following circumstances:
i.
Where from the record of appeal
the findings of fact by the
trial court were clearly not
supported by evidence on record
and the reasons in support of
the findings are unsatisfactory.
ii.
Where the findings of fact by
the Trial Court can be seen from
the record to be either perverse
or inconsistent with the
totality of evidence led by the
witnesses and the surrounding
circumstances of the entire
evidence on record.
iii.
Where the findings of fact by
the trial court are
inconsistently inconsistent with
important documentary evidence
on record.
iv.
Where the first appellate court
had wrongly applied the
principle of law. In all such
situation, the second appellate
court must feel free to
interfere with the said findings
of fact in order to ensure that
absolute justice is done in the
case.
See also the case
in
Mensah Vs. Mensah [2012]1 SCGLR
391 where this Court
held that: “Where finding
of facts had been made by a
trial court and concurred by the
first appellate court, then the
second appellate court, like the
Supreme Court, must be slow in
coming to different conclusions
unless it was satisfied that
there were strong pieces of such
evidence on record.”
(51)
As the second and final
Appellate court therefore, the
law imposes a duty on us to
satisfy ourselves that the
judgment of the first appellate
court was justified and
supported by the evidence on
record and if not, to depart
from it or hold otherwise.
Before embarking on this
exercise, it is the duty of the
appellant first of all, to
clearly, properly and positively
demonstrate to this Court in its
statement of case, the lapses in
the judgment appealed from
which, when corrected, would
result in a judgment in its
favour.
(52)
In summing up their
re-evaluation of the evidence on
record as perceived and weighed
by the Trial Judge before
placing on the evidence the
necessary probative value, the
Learned justices of the Court of
Appeal held at page 156 of
Volume 4 of the record as
follows: “The evidence on
record clearly established that
when the Plaintiff sought to
regularize his grant with the
Nungua Stool the stool had
already leased the disputed land
to the 1st
Defendant/Respondent. The 2nd
Defendant/Respondent did not
have the land to lease to the
Plaintiff/Appellant”.
We find this re-evaluation by
the Court of Appeal as
consistent with the evidence on
record as the Memorandum of
Understanding Exhibit ‘K’
entered into between the
Plaintiff and 2nd
Defendant dated 2nd
May 1996 is not a conveyance and
therefore conveyed no interest
in the disputed land to the
Plaintiff at the time it was
consummated. Neither did it
operate to estop the 2nd
Defendant from conveying same to
the 1st Defendant.
(53)
Upon our review of the entire
record of appeal and having duly
considered the submissions of
both counsel, we are not
persuaded that the findings and
conclusions reached by the Court
of Appeal in its judgment dated
18th December 2014
warrant any interference by this
Court. On the contrary, we are
in agreement with the findings,
reasons and conclusions arrived
at by the Court of Appeal. We
are of the view that both lower
courts correctly applied the
principles of evaluating the
evidence and attached the
correct probative value to the
evidence adduced in relation to
the party who carried the
statutory burden of proof.
(54)
In the circumstances, we find
that there is no sufficient
basis in law for any appellate
interference with the findings
of fact made by the Trial Court
as affirmed by the Court of
Appeal and consequently no
reason to disturb the order
giving effect to those findings
and conclusions made by the
judgment of the Court of Appeal.
Save the variation made with
respect to the order of the
Court of Appeal which reduced
the term of Plaintiff’s lease,
we affirm the said judgment, and
hereby dismiss the appeal.
I. O. TANKO AMADU
(JUSTICE OF THE SUPREME COURT)
P. BAFFOE BONNIE
(JUSTICE OF THE SUPREME COURT)
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
E. Y.
KULENDI
(JUSTICE OF THE SUPREME COURT)
COUNSEL
F. K. QUARTEY FOR THE
PLAINTIFF/APPELLANT/APPELLANT.
AUBREY TAMAKLOE FOR THE
DEFENDANT/RESPONDENT/RESPONDENT. |
