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JUDGMENT
ATUGUBA JSC:
This is an appeal by special
leave of this court from the
judgment of the Court of Appeal
reversing the judgment of the
Circuit Court; Accra presided
over by His Honour Judge
G.K.Minta
The facts of the case as stated
by the Court of Appeal per Quaye
J.A. are as follows:
“Robert Agbenu died intestate on
13th December, 1979.
The Plaintiff/Appellant herein,
claiming to be one of only two
surviving children of Robert
Agbanu filed an action in the
Circuit Court, Accra on 15th
August, 2001 against the
defendant/respondent, whom he
identified as the other child of
his father, claiming three heads
of relief. These reliefs are:-
a)
a declaration that the subject-
premises forms part of the
estate of their deceased father,
Robert Agbenu aforementioned.
b)
an order appointing the
Registrar of the Court to
gather-in the estate and
distribute it to the parties
herein;
c)
Defendants/respondent to render
accounts of all rents and
proceeds from the disputed house
with effect from 1980.
The averments in the
accompanying statement of claim
sought to assert the plaintiff’s
capacity, the blood (paternal)
relationship between him and the
defendant/respondent, the extent
of the estate of Robert Agbenu
and the attempts that had been
made to call the respondent to
account.
In her pleadings however, the
respondent denied substantially
the averments of fact made by
the appellant. Apart from
denying any blood relationship
with the appellant, the
respondent asserted ownership of
the disputed house No.E 119/14
Nima and counter claimed for a
declaration to that effect.
At the end of the trial, the
lower court dismissed the claims
of the appellant, found in
favour of the respondent and
made orders upholding the
counterclaim”.
The plaintiff failed at the
trial court but prevailed in the
Court of Appeal. The
defendant/respondent has
appealed to this court on the
following grounds:
“∙That the judgment of the Court
of Appeal is against the weight
of evidence addressed at the
trial.
∙That the judgment of the Court
of Appeal cannot be supported by
evidence adduced at the trial.
∙That the learned Court of
Appeal Judges erred in law when
they adjudged the deceased to be
the owner of the disputed land
and house.
∙The Court of Appeal failed to
give the appropriate weight to
the Defendant’s title Deeds
(Exhibit A)”.
The parties gave evidence
themselves and by two witnesses
each. The trial judge however
took the view that once the
defendant holds a registered
document evidencing title in
herself that is conclusive of
the case. Thus at p. 69 of the
record of appeal he stated as
follows:
“From the evidence adduced in
court, the court finds as a fact
that the plaintiff
surprisingly tendered an
indenture in respect of the
house in dispute bearing the
name of the defendant.
The indenture was tendered and
marked as exhibit ‘A’. It was
dated 26th January
1978, stamped as AC 5426/85 and
registered at the Land Title
Registry as 4565/1985 of 6th
August 1985”
Continuing at p. 70 he said:
“In so far as the ownership of
the plot has been registered at
the Land Registry, it amplifies
the position of the defendant as
the owner of the land. Her
ownership therefore cannot be
impugned or disputed.
Furthermore she is the
house-owner collecting rent from
the tenants as the landlady. The
defendant is thus in legal and
physical possession of the
property.
X X X X X
With the type of registration
effected by the defendant it can
be conclusively presumed that
she is the owner of the house in
dispute. The question to be
asked by this court is by what
stretch of imagination can the
plaintiff claim a property for
which he does not have any
document to support his claim?
The plaintiff, however, must
fail in his claim on two
different grounds, namely (a)
that he did not prove sufficient
possession and (b) the defendant
proved beyond all reasonable
doubts that she was the owner of
the House in dispute. As
the equity maxim goes “equity
follows the law”. Therefore
inasmuch as the defendant has
been wise enough to register the
plot as her property, she is the
owner of the plot. Again
any claim by the plaintiff is
defeated by the provision of the
Limitation Decree of 1972 (SMCD
54).”
Consequently though he set out
in extenso the
evidence led in the case between
pages 66-69 of the record, he
regarded it as virtually
irrelevant and did not assess
the same. As to the Limitation
Decree, the same was never in
issue as it was not pleaded.
The Court of Appeal for its part
rightly held that registration
of purported documents of title
per se does not necessarily
establish the validity of the
title in question. Beyond this
however they also did not
evaluate the evidence on record
to any penetrating degree.
If the trial court had
discharged its function properly
that would have been the end of
the matter. That function has
been well known since the days
of Majolagbe v Larbi
(1959) GLR 190 and Quaye v
Mariamu (1961) GLR 93 C.A.
That function with regard to the
facts in issue, has been
restated in more recent times.
Thus is Nti v Amina
(1984-86) 2 GLR 13 C.A. at148
Abban J.A. (as he then was with
the concurrence of his other
brethren) said: “As I said
earlier on, the learned
trial judge made a thorough and
critical analysis of the
evidence in the light of the
issues raised before him,
and the decision he
arrived at was correct
and should not be disturbed.”
Again in Bisi v Tabiri
(1984-86) 2 GLR 282 C.A. at 287
Adade JSC (his other brethren
concurring) said: “As a
judge of fact, it is his
peculiar province, listening to
the evidence and having the
witnesses before him, to
weigh the several statements on
each issue and to decide which
to believe and which to reject.
And so
long as his
conclusions can find support
from statements on record,
it is not open to an
appellate tribunal, except for
just and compelling reasons, to
disturb them.” All this must be
done in the light of S.80 of the
Evidence Decree, 1975 (N.R.C.D.
323) relating to factors for the
evaluation of evidence.
With regard to the Court of
Appeal they should have also, as
aforesaid critically evaluated
the evidence since the trial
judge had failed to do so, in
order to render their decision
on the facts supportable. Thus
in Appiah v Takyi
(1982-83) GLR 1 C.A at 3 Mensa
Boison J.A. (his other brethren
concurring), said: “though an
appellate court may not lightly
upset findings of fact made by a
trial court, it may properly do
so where, especially in a
non-jury trial, all the
circumstances are adverse to
such finding of fact:
see George Mattouk v Ellie
Massad (1941) 7 WACA 91 at
93”.
Similarly in Kofi v Kumansah
(1984-86) 1 GLR 116 C.A. at
121 the court stated:
‘In the case of Codjoe v
Kwatchey (supra), Webber
CJ said at 374:
“The Appeal Court is not
debarred however from coming to
its own conclusion on the facts
and where a judgment has been
appealed from on the ground of
the weight of evidence the
Appeal Court can make up its own
mind on the evidence; not
disregarding the judgment
appealed from but
carefully weighing and
considering it and not
shrinking from overruling it if
on full consideration
it comes to the conclusion that
the judgment was wrong…”’
From all the foregoing it is
clear that with respect, neither
the trial court nor the Court of
Appeal directed itself
satisfactorily by critically
evaluating the matters of fact
in issue. Of course the
incidence and degree of these
principles may vary on the facts
of a particular case.
All this apart, we have detected
much confusion in the
proceedings. It appears from the
record that counsel for the
parties adopted the question and
answer form of leading their
witnesses in evidence rather
than the free narrative style.
However, recording such evidence
in the form of question and
answer is the appropriate method
with regard to
cross-examination. When the same
method is applied, to the
adduction of evidence in chief,
as was done in this case, it
makes the same clumsy and
disjointed and impedes a fluent
perusal of the evidence so led.
Then also, on 12/11/2003,
after the conclusion of the
evidence of DW1 at
p 42 of the record the following
note appears:
“BY COURT:
Adjourned to 8th
December, 2003 for continuation”
However for some inexplicable
reason the evidence of PW2
commences on
20/11/2003 at p.43 and
concludes at p. 46 on
11/12/2003.
That is not all. Although this
case related to land situate at
Nima, Accra there is between
pages 91 to 110 a judgment of
the Court of Appeal in a case
intituled J.K.Nyamekye versus
Kofi Yeboah, C.A. No. 93/95
dated 15th April,
1999 relating to land ‘“known
and called Asanteman Council…”
on Mim Stool Land in the Brong
Ahafo Region of Ghana.’
How did this case get into the
proceedings of this case and for
what purpose?
It is trite learning that where
the facts have not been
satisfactorily found by the
lower courts this court can
itself do so upon the recorded
evidence. However in the
circumstances of this case where
counsel in the case were unable
to unravel the facts of the case
to the court by evidence and
there is little to choose from
the two cases as to the facts,
the demeanour of the witnesses
might have been of help. See
Atsu v. The Republic(1968)
GLR 716 C.A. at 720.
Unfortunately there is no
indication as to the incidence
of this factor in the trial
court’s judgment and with the
added confusion in the
proceedings as earlier alluded
to supra we think the best and
benign course to take in this
case is to order a retrial. See
Khoury v Choitel (1964)
GLR 100 SC. Quagraine v
Davies (1962) 1 GLR 104 S.C.
of course is authority for
retrial based on confusion in a
case. See also Commissioner
of Police v. Tunday Lagos
(1962) 1 GLR 127 S.C.
We accordingly allow the appeal,
set aside the judgments of the
Court of Appeal and the Circuit
Court and remit this case for
trial below before a Circuit
Court, Accra, differently
constituted.
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
S.A.B. AKUFFO (MS)
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
R. C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL
FREDERICK ASAMOAH FOR THE
APPELLANT
WILLIAM ANTHONIO FOR THE
RESPONDENT
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