|
Judgment
-
Issues
-
Extraneous or irrelevant
-
Judge must not raise suo motu
extraneous or irrelevant issues
in judgment.
Practice and procedure
-
Pleadings
-
Fraud
-
Court will not consider plea
unless raised in pleading.
The appellant sued the
respondent for a declaration
that the disputed market stall
was allocated to him by the
Kumasi City Council and
perpetual injunction to restrain
the respondent from interfering
with his enjoyment of the stall.
The respondent counterclaimed
for a declaration that he was
the lawful owner of the stall
and recovery of possession. The
trial judge trial judge held
that the appellant illegally and
fraudulently got his name
inserted in the market register
and entered judgment for the
respondent. The appellant
appealed to the Court of Appeal.
Held,
The respondent neither pleaded
nor adduced evidence in support
of fraud or illegality neither
was he and his witnesses
cross-examined on the issue. The
trial judge ought not to have
adjudicated a case for the
respondent different from that
put forward by the respondent.
Dam v Addo [1962] 2 GLR
200, SC, referred to.
Case referred to:
Dam v Addo
[1962] 2 GLR 200, SC.
APPEAL to the Court of Appeal
against the judgment of the High
Court.
LAMPTEY JA.
On 9 November 1987 Kwame
Gyinaye, the appellant herein,
took action in the High Court,
Kumasi against Mohammed Owusu,
the respondent herein. The
appellant sought a declaration
that central market stall, No BH
13, Kumasi was properly
allocated to him by the Kumasi
City Council (KCC). He sought a
further order of perpetual
injunction to restrain the
respondent from harassing him in
the possession, occupation and
enjoyment of the said stall. The
respondent resisted the case of
the appellant. He counterclaimed
for a declaration that he was
the lawful allottee of the said
stall. He therefore sought an
order for recovery of possession
of the said stall. The case was
heard on the merits. The trial
judge dismissed the claim of the
appellant. He entered judgment
for the respondent on his
counterclaim. Aggrieved by the
judgment the appellant appealed
to this court.
Before us, counsel for the
appellant argued ground 1 on the
notice of appeal. He submitted
that the trial judge erred in
law when she held that exhibit
1, put in evidence by the
respondent, was conclusive proof
that the stall in dispute was
lawfully allocated to the
respondent. He contended that in
law exhibit 1 constituted an
offer of the stall to the
respondent. He pointed out that
the respondent did not adduce
evidence to satisfy the court
that he accepted the offer made
to him by the council. He drew
attention to the terms of the
offer and the manner these
should be accepted as spelt out
in exhibit 1. He contended that
the respondent led no evidence
to show that exhibit 1 satisfied
and complied with the said terms
and or fulfilled the conditions
stated in.
In reply, counsel for respondent
reluctantly conceded that there
was no evidence to prove that
the respondent accepted the
offer made to him by exhibit 1
and further that he fulfilled
the conditions stated therein. I
find that the trial judge erred
in law in the conclusion she
reached in respect of the legal
efficacy of exhibit 1. I set
aside her finding that exhibit 1
was conclusive proof that the
stall was lawfully allotted to
respondent.
The next ground of appeal argued
by counsel was founded on the
Limitation Decree. He complained
that the trial judge should have
dismissed the counterclaim
because the evidence before her
conclusively showed the
counter-claim was
statute-barred. In the light of
my finding above I do not think
any useful purpose would be
served in considering this
ground of appeal on the merits.
The counterclaim was a claim
that the respondent was the
lawful allottee of the stall,
meaning that in law, the
respondent was tenant of the
council. Since I have found that
the stall was never lawfully
allotted to the respondent, I am
satisfied that in law, the
respondent had never been a
lawful tenant of the council.
Time would therefore not run in
his favour or against him. It is
for this reason that I find that
no useful purpose would be
served by considering the issue
based on the Limitation Decree
1972 (NRCD 54).
Counsel for the appellant
submitted that the trial judge
erred when she held that the
failure of the appellant to call
Kwame Badu as his witness was
fatal to his case. He took the
court through the evidence and
showed that the duty to call
Kwame Badu was assumed by the
respondent. In reply, counsel
for the respondent stated that
respondent did not call Kwame
Badu because Kwame Badu would
have embarrassed the respondent.
He did not advert to the finding
made by the trial judge. Was it
the duty of the appellant to
call Kwame Badu as a witness in
this case? The evidence before
the court from the respondent
himself in his evidence-in-chief
threw some light on the role of
Kwame Badu in this matter.
In his evidence-in-chief the
respondent testified as follows:
“In 1974 I fell ill so I decided
to travel for treatment. I
handed over the stall to Kwame
Badu … I was away for six
months.”
From the above passage the
respondent was away from Kumasi
for a period of six months. As
to what the respondent did in
relation to the stall in dispute
when he returned after six
months he continued his evidence
as follows:
“On my return I went to Kwame
Badu and asked for my stall. He
told me I sold the stall to him
for ¢800 so he had given it to
the plaintiff.” (My emphasis.)
From the evidence-in-chief of
the respondent, it is plain and
clear that Kwame Badu claimed
that he had bought and paid ¢800
to respondent for the stall. If
indeed it was not true that the
respondent sold the stall for
¢800 to Kwame Badu, I expected
the respondent to give evidence
to show and satisfy the court in
his evidence-in-chief that he
did not sell the stall for ¢800
and further that he did not
receive an amount of ¢800 from
Kwame Badu. He was not asked to
deny nor challenge what he
stated Kwame Badu had confronted
him with on his return to
Kumasi. Since the respondent's
testimony that he sold the stall
to Kwame Badu was neither
challenged nor disputed by
respondent himself in open court
it is difficult to appreciate
the finding of the trial judge
that the appellant should have
called Kwame Badu as a witness.
It is clear from the evidence
given by the respondent that he
it was who sold the stall to
Kwame Badu for ¢800. That in my
opinion is the truth of the
matter. It is the truth because
the respondent did not
throughout his evidence deny nor
dispute it. There was in law no
need for the appellant to call
Kwame Badu to repeat the
evidence voluntarily given by
respondent that Kwame Badu
bought the stall for ¢800 from
the respondent. I find that the
trial judge misdirected herself
on the evidence on this issue.
Her finding on this issue is not
supported by the evidence on
record. The appeal on this
ground succeeds. There is
evidence on record to show the
further step respondent took in
this matter which in my opinion
was not adverted to by the trial
judge. The respondent told the
court that on his return to
Kumasi after a period of only
six months in 1974 he went to
see Kwame Badu. I have already
dealt with what transpired at
that meeting. The next step the
respondent took would be found
in the passage following:
“My investigation at the market
revealed that the plaintiff’s
name was in the market register
as allottee so I went to KCC to
complain to the City Treasurer.”
The impression created by the
evidence from the respondent was
that this event took place
almost immediately after he had
confronted Kwame Badu in 1994.
On a careful reading of his
evidence it would be found out
that this event took place in
1983, some nine years after the
respondent returned to Kumasi. I
reproduce the relevant evidence:
“The City Treasurer asked me to
go and that he would write me.
The day was a Tuesday and the
following Thursday, I received a
letter inviting the four of us
to the treasurer’s office.
There the plaintiff and I laid
claim to the store. This was in
1983” (My emphasis.)
I have reproduced the evidence
in chief of the respondent in
extenso in order to show that
the respondent did not lay claim
to the stall between 1974 and
1983. He did not explain to the
court why he did not challenge
the occupation and possession of
the stall by the appellant for a
continuous period of some nine
years. He did not give reason
for not paying rent in respect
of the stall for the period of
nine years. In my opinion, the
trial judge failed to appreciate
the real issue in dispute
between the parties and
therefore misdirected herself on
the evidence. The claim of the
appellant was that the stall was
allocated to him in 1974. That
he had enjoyed continuous
possession and occupation since
1974. That he had regularly paid
rent to the council and tendered
some receipts in support. His
direct and unchallenged evidence
was corroborated by his
witnesses. I refer to evidence
of PW2:
“PW2: My name is Anthony Osei
Poku. I am a solicitor at Kumasi
Metropolitan Assembly (KMA) …BH
13 is one of our market stalls
in Kumasi. I was served with an
order of this court to find out
who is the allottee of this
stall …”
In obedience to the order of the
tria1 court PW2 gave the
following answer;
“I wrote to the registrar of the
High Court … the plaintiff's
name appeared in the
register as the lawful allottee”.
(My Emphasis.)
The answer sought by the court
was given by PW2 in plain and
very simple language. PW2 was
cross-examined on the procedure
adopted and followed by KMA in
the allocation of market stalls.
His answers were as follows:
“Q. Every year a new register is
opened.
A. That is correct.
Q. Did you find out who the
original allottee was?
A. No I did not. There were
no records.”
My understanding of the evidence
of PW2 is that the tenancy
created and granted by KMA is a
yearly tenancy. Understood this
way, it becomes obvious why the
council does not keep records
pertaining to previous years.
That system may not meet the
approval of most Ghanaians but
that is the system adopted by
the KMA. Indeed the respondent
did not claim that he was
granted a tenancy of the stall
for any particular period of
time; say for his life, or for
ten years or five years. He
counterclaimed that the stall
was allotted to him without
indicating the period of the
tenancy. He failed to prove that
claim as I have sought to show.
A complaint that was made by
counsel for the appellant was
that the trial judge erred in
law when she held that appellant
illegally and fraudulently got
his name inserted in the market
register. In reply, counsel for
respondent could not point to
evidence which remotely
supported this finding of the
trial judge.
The respondent did not plead
fraud or illegality in his
counterclaim. The respondent did
not adduce any evidence to
arrive and establish fraud and
or illegality. The appellant and
his witnesses were not cross
examined to show and prove fraud
and or illegality. The finding
of the trial judge that “the
plaintiff and Kwame Badu
illegally got his (sic) name
inserted in the market register”
is not supported by a shred of
evidence. I so find. Indeed it
is trite learning that the trial
judge should not make a case for
the respondent different from
that put forward by the
respondent, see Dam v Addo
[1962] 2 GLR 200, SC. For all
the reasons given above, I find
that the appeal against the
judgment entered in favour of
the respondent succeeds. I set
aside that judgment.
I now deal with the appeal
against the dismissal of the
claim by the appellant. I have
earlier in this judgment
reproduced the claim of the
appellant. Counsel for appellant
submitted that the appellant
proved and established his
claim. Counsel for respondent
submitted that appellant failed
to prove his claim. I have
already found that the tenancy
between the KMA and its tenants
was a yearly one. In his
submission on exhibit 1 counsel
for appellant pointed out the
terms of the tenancy created by
the KMA. Three of these terms
appear to me to be of paramount
importance. These are (a) being
put into possession (b) payment
of the recoverable rent and (c)
having your name listed in the
register of market stalls for
any particular year.
In his evidence the appellant
told the court that since 1974
he had regularly paid the rent
due and owing in respect of the
stall. That the KMA accepted the
rents he paid. This was not
challenged during
cross-examination. The
respondent gave the evidence to
show that the name of the
appellant is listed in market
stall register. This was
corroborated by PW 2. There is
undisputed evidence on record
that appellant had continued to
occupy and enjoy possession of
the stall since 1974. The
appellant therefore adduced
undisputed evidence to prove and
establish his claim. I so find.
The trial judge misdirected
herself on the evidence before
her in respect of the claim of
the appellant. She erred in law
in dismissing the claim of the
appellant. I allow the appeal of
the appellant. I set aside the
judgment dismissing his claim. I
enter judgment for the appellant
for all the reliefs claimed by
him.
ESSIEM JA.
I agree.
FORSTER JA.
I also agree.
Appeal allowed.
S Kwami Tetteh, Legal
Practitioner |
