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Land - Declaration of
title - Injunction to restrain -
Vacant possession - Specific
performance - Whether or
notCourt Appeal erred in holding
that the High Court was right in
the conclusion - Whether or not
learned Judge erred by not
adequately considering the
defendants case by stating that
appellant had not pleaded a Fact
of Arbitration learned Judge
erred by not adequately
considering the defendants case
by stating that appellant had
not pleaded a Fact of
Arbitration
HEADNOTES
The
plaintiff/respondent/respondent
(hereafter simply the
respondent) issued a writ of
summons at the Tema High Court
claiming against the appellant a
number of reliefs. The
respondent’s initial reliefs as
per his writ were as follows:
Declaration of title to Plot No
W/3/394, Ashiaman New Town,
Injunction to restrain the
(defendant) appellant herein
from ‘unauthorized construction’
on portions of the said plot.
Damages for amount of Ȼ1.5
million (old cedis) for 3 fruit
yielding coconuts deliberately
felled by the defendant on the
said land at Ȼ500,000 (old cedis)
per tree. Order for ejectment of
defendant and recovery of all
that piece and parcel of land
occupied by the said defendant
on the plot named in the relief
one of the endorsement on the
writ. The defendant denied that
the (plaintiff) respondent was
entitled to his reliefs and
asserted his own claims in a
counterclaim for: Specific
performance by the plaintiff
giving letter of transfer to
defendant as he has finished
paying for the cost of plot No.
N/3/394. Declaration that
defendant is the rightful owner
of plot No. N/3/394, Ashaiman
New Town and plaintiff should
not interfere with his peaceful
occupation of the said land. The
High Court after a full trial
entered judgment in favour of
the respondent
HELD :-
In
summary, the appellant failed to
discharge the burden of proof
placed on him by sections 10 and
11 of NRCD 323 on his
counterclaim satisfactorily and
the trial court correctly found
against him. This ground of
appeal therefore lacks any merit
and is accordingly dismissed.
From the foregoing analysis I
agree with the judgment of the
High Court as concurred with by
the Court of Appeal on all the
findings of the trial court
since there was evidence on
record to support those findings
of fact by the said court.
Accordingly, I would dismiss the
appeal and affirm the decisions
of the two lower courts which I
hereby do.
DISSENTING OPINION
STATUTES REFERRED TO IN JUDGMENT
Court of Appeal Rules CI 19,
High Court (Civil
Procedure) Rules 2004 (CI 47)
High Court (Civil
Procedure) Rules 1954 (LN 140A
CASES REFERRED TO IN JUDGMENT
Apeah and Another v
Asamoah, (2003-2004) SCGLR 226.
Awere–Kyere v
Foster (2003-2004) SCGLR 1050
Mosi v
Bagyina (1963) 1 GLR 337 SC.
Friesland
Frico Domo v Dachel Co Ltd
(2012) 1 SCGLR 41.
Republic v High
Court, Accra; Ex Parte Allgate
Co Ltd (Amalgamated Bank Ltd
Interested Party) (2007-2008) 2
SCGLR 1041
Ankumah v City
Investment Co. Ltd (2007 - 2008)
2 SCGLR 970
Skanska v
Klimatechnik Engineering Ltd
(2003-2004) SCGLR 698
Effisah v Ansah
(2005-2006) SCGLR 943
Zabrama v
Segbedzi (1991) 2 GLR 221
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
AKAMBA,
JSC:
COUNSEL
OSAFO BAUBENG ESQ.(WITH HIM
FRANCIS GARIBA APAM) FOR THE
DEFENDANT/APPELLANT/APPELLANT.
DICK ANYADI ESQ.(WITH HIM EDWARD
BRAKU BOADU FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT.
AKAMBA, JSC:
This
appeal was filed on 23rd
July 2001 against the decision
of the Court of Appeal
pronounced on 19th
July 2001 affirming the entire
judgment and orders of the court
below.
The
defendant /appellant/appellant
(hereafter simply appellant) who
is aggrieved by the decision has
appealed to this court seeking
an overturn of the decision.
BRIEF
FACTS
The
plaintiff/respondent/respondent
(hereafter simply the
respondent) issued a writ of
summons at the Tema High Court
claiming against the appellant a
number of reliefs.
The
respondent’s initial reliefs as
per his writ were as follows:
(i)
Declaration of title to
Plot No W/3/394, Ashiaman New
Town
(ii)
Injunction to restrain
the (defendant) appellant herein
from ‘unauthorized construction’
on portions of the said plot.
However
on 17th May 1994, the
respondent filed a notice of
amendment seeking to add the
following further reliefs:
(iii)
Damages for amount of Ȼ1.5
million (old cedis) for 3 fruit
yielding coconuts deliberately
felled by the defendant on the
said land at Ȼ500,000 (old cedis)
per tree.
(iv)
An order that defendant
vacate the said plot forthwith
yielding vacant possession to
the plaintiff herein.
Then again on 17th
June 1994, the respondent filed
yet another notice of amendment
to add the following relief:
(v)
Order for ejectment of
defendant and recovery of all
that piece and parcel of land
occupied by the said defendant
on the plot named in the relief
one of the endorsement on the
writ.
The
defendant denied that the
(plaintiff) respondent was
entitled to his reliefs and
asserted his own claims in a
counterclaim for:
1.
Specific performance by the
plaintiff giving letter of
transfer to defendant as he has
finished paying for the cost of
plot No. N/3/394.
2.
Declaration that defendant is
the rightful owner of plot No.
N/3/394, Ashaiman New Town and
plaintiff should not interfere
with his peaceful occupation of
the said land.
The High
Court after a full trial entered
judgment in favour of the
respondent for all the reliefs
endorsed on the writ of summons
as per the amendments listed
above.
THE COURT
OF APPEAL
The
appellant filed a notice of
appeal on 1st August
1996 against the decision of the
High Court to the Court of
Appeal raising the following
grounds for their Lordships’
determination:
(a)
That the judgment is against the
weight of evidence adduced.
(b)
Additional grounds will be filed
on the receipt of Judgment and
Record of Proceedings.
On 3rd
April 2000 the appellant, per
his counsel filed the following
so called additional grounds:
1.
“The learned Judge erred by not
adequately considering the
defendants case by stating that
appellant had not pleaded a Fact
of Arbitration – See Judgment
page 53 paragraph-lines 37-45 of
Records.
When in fact the “Arbitration
had been pleaded specifically –
See page 10 of Records
paragraphs 40-45” Therefore a
vital piece of evidence had been
ignored.
(a)
In Exhibit 5
Paragraph 7 the last 4 lines.
(The reason why Respondent
changed his mind to Lease or
sell (sic) the land to
Appellant).
Also please see page 4, 1st
paragraph why Respondent changed
his mind to no longer lease or
sell his interest in the land to
Appellant)
(b)
Please see Page 4 – Exhibit 5. 1st
paragraph.
(c)
Please see page 6 last
paragraph.
(d)
Please see page 7 “Remarks” last
paragraph.
(e)
Please see Page 9 paragraph 3
and the last paragraph.
(f)
Please see 11 (Decisions of the
Arbitration). Signed by
Respondent
(2)
Since Respondent signed but had
tried to deny ever attending
Arbitration the judge ought to
have been circumspect in relying
on his evidence.
(3)
Exhibit 5 was tendered without
objection and so the Judge ought
to have relied on it especially
with Respondents signature on
it.”
The fore
going grounds of appeal offend
rather than conform to the
standard requirements for
grounds of appeal set down in CI
19, the Court of Appeal Rules.
It is lamentable to observe that
these poorly drafted and so
called grounds of appeal were
the handiwork of counsel
representing the appellant and
not the client himself. Be that
as it may, the Court of Appeal
wasted no time at all in
arriving at its decision
dismissing the appeal on 19th
July 2001 in the following
words:
” We have
studied the record of
proceedings critically and we
are of the view that the
findings, reasons and
conclusions of the trial judge
are supportable and sound and we
have nothing useful to add
thereto. So we affirm the entire
judgment and orders of the Court
below and accordingly dismiss
the appeal.”
It is
worth recalling this court’s
caution especially to appellate
courts to spurn the temptation
to render terse decisions,
describing them technically as
memoranda in the case of
Apeah and Another v Asamoah,
(2003-2004) SCGLR 226.
In the instant case however one
gets the impression that the
Court of Appeal was compelled to
resort to this mode of delivery
owing to the rather poor and
vague drafting of many of the
grounds of appeal, supra,
adopted by the appellant. The so
called grounds did not even
disclose any reasonable grounds
of appeal as required by rule 8
of CI 19, of the Court of Appeal
Rules, (as amended). The Court
however had a duty to discuss
and consider those of the issues
that were properly raised and to
have given a considered opinion
on those points, rather than to
simply rely on the decisions and
findings made by the trial High
Court, however correct and
unimpeachable they may be.
It is
against the above decision that
the appellant on 23rd
July 2001 filed a notice of
appeal to this court raising the
following grounds of appeal for
determination:
(i)
The Court of Appeal erred in
holding that the High Court was
right in the conclusion it came
to by accepting the judgment
without considering the
Appellant case.
(j)
Further grounds would be filed
when the record of appeal is
completed.
The
appellant has in his statement
of case sought leave of this
court to argue the following
additional ground of appeal:
a.
The learned judges of the Court
of Appeal erred in law in
affirming the decision of the
learned trial judge in respect
of reliefs 3, 4 and 5 of the
purported amended Writ of
Summons.
CONSIDERATION OF ALLEGATION OF
FAILURE TO COMPLY WITH ORDER 28,
R 2 & 6 OF HIGH COURT (CIVIL
PROCEDURE) RULES, 1954 (LN 140A)
I begin
my consideration of the grounds
of appeal with the additional
ground of appeal, it being a
point of law. It is important to
point out that this point of law
is being raised before this
court for the first time, not
having been raised before the
Court of Appeal. It is equally
noteworthy to observe that the
point was not even raised before
the trial court for it to rule
thereon. The point has been
considered as to whether an
appellate court should allow to
be raised before it a point
which has not been raised in the
courts below. This court did
consider the point in
Awere–Kyere v Foster (2003-2004)
SCGLR 1050 wherein my
able and respected brother
Date-Bah, JSC delivered himself
thus:
“An appellate court should not
allow to be raised before it a
point which had not been raised
in the courts below except in
the most exceptional
circumstances………. If this court
were to apply the approach of
the Privy Council in the
Golightly case on this issue, it
would mean not considering the
merits of the procedural point
on the need for the citation
procedure. If the procedural
point went to jurisdiction,
then, of course, it would fall
within the exceptional
circumstances referred to [in
the Golightly case] and this
court should allow it to be
taken.”
Does the
point at issue in this ground of
appeal go to jurisdiction so as
to fall within the exceptional
circumstances envisaged?
APPELLANT’S ARGUMENTS
It is the
appellant’s contention that the
first notice of amendment filed
under order 28 of LN 140A (now
repealed) by the respondent on
17th May 1994 without
the leave of court was within
the permissible limits granted
by the rules, since the
appearance was filed on 9th
May 1994. This however cannot be
said of the second notice of
amendment which was filed on 17th
June 1994 some four weeks after
the appellant had filed his
notice of appearance. This
therefore rendered the said
amendment of 17th
June 1994 void ab initio and as
such nothing could be premised
on it citing reliance on Mosi v
Bagyina (1963) 1 GLR 337 SC.
Counsel further submits with
regards to the first purported
amendment filed on 17th
May 1994 albeit within time,
that by its very wording or
language used the same only
evinced the applicant’s
intention to amend the
endorsement to the writ and not
that the writ had been amended.
Simply put, the appellant’s
counsel submits that what took
place before the trial court on
the issue did not constitute an
amendment to the writ of
summons. The trial court and the
Court of Appeal were therefore
wrong in considering the writ as
having been amended and thereby
proceeding to make orders
pertaining to the purported
amendments regards reliefs 3, 4
and 5 which they granted.
RESPONDENT’S REPLY
The
respondent’s counsel for his
part submits that the objections
being presently canvassed are
rather belated since they ought
to have been raised earlier on.
Had it been raised in the trial
court, the court would have
determined whether this was a
trivial procedural infraction
which was curable, in which case
it could deem the amendment duly
effected as it stood or it could
have granted a dispensation
subject to terms for the
applicant to file the amended
process. Given the present
circumstances, the appellant
would be deemed to have taken a
fresh step despite knowledge of
the irregularity he is now
complaining about amounting to a
waiver of any objection he could
have raised to the alleged
procedural infraction under
Order 70 rule 1 of LN 140A, the
rules of court operative at the
time. Respondent counsel also
lamented the appellant’s failure
to have aired his grievance
about the trial court’s apparent
infraction of the procedural
rules when he came before the
Court of Appeal and only raised
it before this court for the
first time, a situation akin to
what occurred in the case of
Friesland Frico Domo v Dachel
Co Ltd (2012) 1 SCGLR 41.
ANALYSIS
I deem it appropriate to
consider this point as falling
within the exception since it
raises the jurisdictional point
whether the courts below rightly
granted the reliefs 3, 4 and 5
in the circumstances in which
they were made.
It worthy
to recap the provisions of Order
28 r 2 and 4 and Order 70, r 1
of LN 140A due to their
relevance in resolving this
matter as follows:
“Order
28 Amendment
2.
The plaintiff may, without any
leave, amend his statement of
claim, whether indorsed on the
writ or not, once at any time
before the expiration of the
time limited for reply and
before replying, or, where no
defence is delivered, at any
time before the expiration of
four weeks from the appearance
of the defendant who shall have
last appeared.
……..
4. Where any party has amended
his pleading under either of the
last two preceding rules, the
opposite party may, within eight
days after the delivery to him
of the amended pleading apply to
the Court or a Judge to disallow
the amendment, or any part
thereof, and the Court of Judge
may, if satisfied that the
justice of the case requires it,
disallow the same, or allow it
subject to such terms as to
costs or otherwise as may be
just.
…….
6. In
all cases not provided for by
the preceding Rules of this
Order, application for leave to
amend may be made by either
party to the Court or a Judge,
or to the Judge at the trial of
the action, and such amendment
may be allowed upon such terms
as to costs or otherwise as may
be just.”
“Order 70
- Effect of Non-Compliance.
1.
Non-compliance with any of these
Rules, or with any rule of
practice for the time being in
force, shall not render any
proceedings void unless the
Court or a Judge shall so direct, but such proceedings may be set
aside either wholly or in part
as irregular, or amended, or
otherwise dealt with in such a
manner and upon such terms as
the Court or Judge shall think
fit.
2.
No application to set aside any
proceeding for irregularity
shall be allowed unless made
within reasonable time, nor if
the party applying has taken any
fresh step after knowledge of
the irregularity.”
Since the
issue in contention relates to
the accusation that the
respondent had failed to comply
with the rules by his apparent
failure to obtain the leave of
the court prior to filling his
amendment, the applicant would
be satisfying the rules
governing his objections if he
could point to a direction by
the trial judge whereby the
non-compliance thereby rendered
the proceedings void. The same
requirement obtains in regard to
the accusation that the
expressions or language used for
the application connoted an
intention to amend rather than
an amendment to the writ. Worse
still, there was no date of
amendment. There is no record
that the Judge had directed that
the lapses complained of had
rendered the proceedings void to
give the appellant a platform to
urge as he has proffered before
us.
I have no
doubt as to the relevance of the
Friesland Frico Domo case
(supra) to the present dilemma
in so long as the relevant rule
under consideration is order 70
of the LN 140A (now repealed)
which same is quoted supra. This
is what this court said in
holding 1:
“(1)
Both Order 81 of the new High
Court (Civil Procedure) Rules
2004 (CI 47) and Order 70 of the
Old High Court (Civil Procedure)
Rules 1954 (LN 140A), had
provided in clear terms that
non-compliance with the rules of
procedure should not render any
proceedings void but be regarded
as a mere irregularity which
might be allowed, amended or set
aside on terms at the discretion
of the court upon an application
brought within a reasonable time
and the person applying had not
taken a fresh step after
becoming aware of the
irregularity. Thus, contrary to
the contention of counsel for
the Defendant, the distinction
between void and voidable
proceedings could not be
maintained on account of the
plain and ordinary meaning of
the provision in Order 70, r 1
of LN 140A. The word “any” in
the phrase “any of the Rules” in
Order 70, r 1 of LN 140A should
be given its ordinary meaning in
order to serve the ends of
justice. Consequently, in the
instant case, non-compliance
with the procedural rule in
Order 2, r 4 of LN 140A (the
same as Order 8, r 1 of the new
CI 47), should not render the
proceedings in which the
defendant had actively
participated and pursued a
counterclaim, automatically
void. There was no evidence of
disadvantage occasioned by the
irregularity or erosion of
natural justice. Accordingly,
the court did not think it was
fit and just to set aside the
whole proceedings for a mere
irregularity. Republic v High
Court, Accra; Ex Parte Allgate
Co Ltd (Amalgamated Bank Ltd
Interested Party) (2007-2008) 2
SCGLR 1041 at 1052-1053; and
Ankumah v City Investment Co.
Ltd (2007 - 2008) 2 SCGLR 970
cited.”
The
appellant in the present case
was magnanimous enough not to
have swayed into any arguments
about any distinctions between
fundamental errors and mere
irregularities as obtained in
the Friesland Frico Domo
case. The obvious answer is that
non-compliance with the rules of
procedure or any existing
practice is a mere irregularity
that does not automatically
render proceedings following the
non-compliance void. A party who
is aware of any non-compliance
is at liberty to bring an
application to the court for
appropriate orders to issue in
accordance with order 70 rule 1
(as was then the case).
In the
instant case the appellant
participated fully in the trial
notwithstanding the alleged
breaches raised in his present
complaint. Appellant also
proceeded to file processes
including his statement of
defence and counter claim
notwithstanding the lapses.
Appellant effectively waived any
right he had to stay
proceedings. He was neither
disadvantaged nor deprived of
his natural justice. He actively
participated in the trial and
exercised his options. (See
Skanska v Klimatechnik
Engineering Ltd (2003-2004)
SCGLR 698 holding 2). There is
no evidence that he was deprived
of his own volition in the
exercise of his rights. It is
too late in the day to cry foul.
This court as in the Allgate
case does not find any cause to
set aside the amendments for the
mere irregularity complained of,
more so when the appellant dealt
with the matter as though there
was no infringement. This ground
of appeal fails and is
dismissed.
The next ground of appeal to be
determined is that the Court of
Appeal erred in holding that the
High Court was right in the
conclusion it came to by
accepting the judgment without
considering the Appellant’s
case.
It is
obvious from the above stated
ground of appeal that the
appellant impugns the decision
of the Court of Appeal for its
failure to consider the
appellant’s case when it
accepted the judgment of the
High Court as right.
The legal position as espoused
in numerous decisions of this
court is that an appellate court
might interfere with the
findings of a trial tribunal
where specific findings of fact
might properly be said to be
wrong because the tribunal had
taken into account matters which
were irrelevant in law; or had
excluded matters which were
relevant in law; or had excluded
matters which were crucially
necessary for consideration; or
had come to a conclusion which
no court, instructing itself in
the law, would have reached; and
where the findings were not
inferences drawn from specific
facts, in which case such
findings might properly be set
aside. See Effisah v Ansah
(2005-2006) SCGLR 943 holding 5.
Also, when an appellant
complains that the judgment
failed to give due consideration
to the appellant’s case, he is
implying that there are pieces
of evidence on record which if
applied in his favour could have
changed the decision in his
favour or certain pieces of
evidence have been wrongly
applied against him. The onus in
such an instance is on that
appellant to clearly and
properly demonstrate to the
appellate court the lapses in
the judgment being appealed
against.
On this
ground of appeal, the onus is on
the appellant to clearly and
properly demonstrate to this
court the lapses in the judgment
being appealed against.
The
appellant does not dispute that
he was permitted by the
respondent to be on the latter’s
land to undertake his poultry
business. His (appellant’s) case
was however premised upon a
claim of a contract of sale of
the disputed land between him
and the respondent. The agreed
price was said to be 280,000 old
cedis and the only witness to
the contract was one Vorgbe who
died before the action was
instituted. The issue for
determination in the
counterclaim was whether there
was a contract of sale and if so
whether the appellant had part
performed his obligations spelt
out in the contract.
The task
of proof in court is summed up
in the Supreme Court decision in
Zabrama v Segbedzi (1991) 2
GLR 221-247 where the court
aptly stated the proposition in
the following words:
“The correct proposition is
that, a person who makes an
averment or assertion, which is
denied by his opponent, has the
burden to establish that his
averment or assertion is true.
And he does not discharge this
burden unless he leads
admissible and credible evidence
from which the fact or facts he
asserts can properly and safely
be inferred. The nature of each
averment or assertion determines
the degree and nature of that
burden.”
It is
trite to state that a
counterclaim is a separate
action in which the
counterclaimant assumes the
burden to establish that his
assertion is true. Since the
appellant contends that the
trial judge failed to consider
his case we would embark upon an
examination of the judgment to
ascertain the veracity or
otherwise of the claim. This is
what the trial judge said in his
judgment concerning the
appellant’s discharge of his
evidential burden and why he
took such a position:
“The defendant when he opened
his case failed to adduce
satisfactory evidence in support
of his claim that the plaintiff
after initially giving him
permission to establish a
poultry farm on a portion of the
land in dispute, later made an
outright sale to him of that
portion of the land on which he
had established his poultry
farm. It is true that the
defendant sought to support his
case by tendering a number of
documents in evidence, but these
documents were inconclusive. For
example, Exhibit 3 was a
counter-foil of a cheque meant
to be proof of part payment to
the plaintiff in respect of the
sale. The plaintiff denied
having been issued any such
cheque by the defendant. In
those circumstances the
defendant should have gone on to
call on the bank to support his
claim that the cheque had indeed
been issued to the plaintiff and
had been cashed by the person in
whose name the cheque had been
issued. Having failed to do so,
no weight can be attached to
Exhibit 3.”
On the
claim that certain payments were
made to Vorgbe, this is what the
trial court said:
“The defendant also tendered
receipts issued by one Vorgbe to
the defendant. Although these
receipts state that payments had
been made to Vorgbe, there is
nothing to show that they were
received by the plaintiff. The
said Vorgbe had died sometime
before the writ was taken out
and this aspect of the case was
therefore left hanging. In any
case the defendant failed to
satisfactorily explain why
payments were made to Vorgbe
instead of being made directly
to the plaintiff when the
plaintiff had been available and
could have been reached directly
throughout all that time. These
examples could be multiplied but
there are more telling defects
of the defendant’s evidence in
support of his counterclaim.”
On
allegations that the defendant
failed to substantiate certain
factual allegations, the court
stated:
”For example although in his
evidence he made specific
allegations of fact that
required to be substantiated by
witnesses he never called a
single witness in support of his
case. What he did instead was to
issue a subpoena to certain
persons who simply refused to
turn up. One of those persons
even went as far as to write to
the court, that he would not for
certain reasons come to court to
give evidence.”
On the
defendant’s counsel’s failure to
initiate the necessary steps to
compel the potential witnesses
to testify for him, the trial
judge observed as follows:
”In my considered opinion, the
defendant ought to have
compelled the witnesses to come
to give evidence in court, and
if when they came, they refused
to speak the truth, then he
could have applied to have them
treated as hostile witness
(sic). That course of action
would have given the court, a
means of determining whether the
defendant indeed had a case but
his witnesses for some reason or
the other were refusing to speak
the truth.”
The trial
judge considered whether or not
the dispute had gone to
arbitration. This is what he
said:
Again defendant although he did
not plead that the matter had
gone to arbitration and a
finding had been made in his
favour, his case was conducted
placing much reliance on an
arbitration. Curiously, the
defendant had not appended his
signature to the portion meant
to be signed by him although all
other persons at the meeting had
signed. It is difficult to
understand how he could place
reliance on proceedings which
had been attended by him but
which he had failed to sign to
show that he was a party to
those proceedings and that he
had agreed to what had been
recorded.
The trial
judge’s statement that the
appellant did not plead that the
dispute had gone for arbitration
is incorrect. This is because
the appellant had specifically
pleaded same in paragraphs 20 to
23 of his statement of defence
filed on 26/9/1994. The trial
judge however did consider the
proceedings of the arbitration
tendered as exhibit 5, which he
rejected because the appellant
had not only failed to sign it
to signify acceptance of the
outcome but had also disputed
the accuracy of the document.
This is what transpired during
the cross examination of the
appellant on the point as
captured in the record of
proceedings at page 43 thereof:
“Q. What evidence do you have
that the plaintiff received
those sum (sic).
A.
He told the arbitration that he
had received the part-payment of
Ȼ80,000.00 as per exhibit 5.
Q. But you said
yourself that Exhibit 5 is not a
true reflection of what took
place at the arbitration.
A. Some parts were
changed some portions are not
correct-others are correct.
Q. I put it to you
that exhibit 5 is …..(Sic)
A. It is true.
Q. I put it to you
that you have nothing to show
for the land you claim to have
purchased – no site plan etc.
A. At Ashaiman the
purchaser is asked to make his
own site plan. I made one but
the TDC rejected it.”
The trial
judge in his final consideration
of the appellant’s counterclaim
had cause to pronounce upon
counsel’s submission that
respondent had no title to the
disputed land and hence could
not make any grant thereof since
it was only the Tema Development
Corporation which could grant
those lands. In essence the
appellant was denying the
respondent’s title to the
disputed land. This is the
holding of the trial court:
“According to counsel’s argument
it is only the Tema Development
Corporation that can make grants
of the land. The question
arises, if the plaintiff has no
right to make any grant of the
land, then on what basis is the
counterclaim brought that he had
obtained a grant for
consideration from the
plaintiff? For these reasons I
find that the plaintiff has
successfully proved his case and
is entitled to all the reliefs
endorsed on his amended writ of
summons. The defendant on the
other hand has failed to prove
his counter-claim. Accordingly,
judgment is given in favour of
the plaintiff for reliefs 1, 2,
3 and 5 endorsed on his amended
writ. In respect of reliefs 4
and 5 the defendant is given a
period of 4 months within which
to vacate the plot in dispute.
….”
In
summary, the appellant failed to
discharge the burden of proof
placed on him by sections 10 and
11 of NRCD 323 on his
counterclaim satisfactorily and
the trial court correctly found
against him. This ground of
appeal therefore lacks any merit
and is accordingly dismissed.
From the
foregoing analysis I agree with
the judgment of the High Court
as concurred with by the Court
of Appeal on all the findings of
the trial court since there was
evidence on record to support
those findings of fact by the
said court. Accordingly, I would
dismiss the appeal and affirm
the decisions of the two lower
courts which I hereby do.
(SGD) J. B. AKAMBA
JUSTICE OF THE SUPREME COURT
AKOTO
BAMFO (MRS) JSC;
I have had the opportunity of
reading before hand the opinion
of my respected brother
affirming the decision of both
the High Court and the Court of
Appeal and therefore agree with
his conclusion that the appeal
be dismissed.
Additionally I give my consent
that the reading of the decision
be read in my absence.
(SGD) V. AKOTO BAMFO (MRS)
JUSTICE OF THE SUPREME COURT
(SGD) V. J. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL
OSAFO BAUBENG ESQ.(WITH HIM
FRANCIS GARIBA APAM) FOR THE
DEFENDANT/APPELLANT/APPELLANT.
DICK ANYADI ESQ.(WITH HIM EDWARD
BRAKU BOADU FOR THE
PLAINTIFF/RESPONDENT/RESPONDENT. |
