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JUDGMENT
ESSILFIE-BONDZIE, JA.
The case that
culminated in the appeal before this Court was commenced
in the High Court dated 5th day of March 1992, the Court
found for the plaintiff/respondent (who will hereafter
be called the plaintiffs) and being aggrieved the
defendant/appellants (who will hereafter be referred to
as defendants, have appealed.
In the Court below the
plaintiffs claim against the defendants who are the
administrators of the Estate of Joseph Kweku Gyesi was
for
(a) Recovery of
¢2million being loan the said Joseph Kweku Gyesi
(deceased) took from the Gomoa Rural Bank, Apam on
30/3/89.
(b) Interest of 30% on
the loan from 30/3/89 until the suit was disposed of,
(c) ¢1 million damages
for breach of contract.
d) Costs”
The defendants
counter-claimed against the plaintiff jointly and
severally for
(a) ¢3,200,000.00 being
loss of use of vehicle number GN 4625 for 8 months from
September 1989 to June 1990.
(b) Recovery of
¢255,000 being loss of repairs to GN 4625.
(c) Recovery of
possession of GN 4625 wrongfully detained
(d) ¢3million damages
for detinue and / or conversion of the truck GN 4625.
(e) Loss of use at
¢400,000.00 per month till date of judgment or date
vehicle is released to the first and second defendants.
(f) Perpetual
injunction restraining the plaintiffs their servants and
/ or agents from interfering with GN 4625 or other
assets of the estate.
The first defendant
alone counter-claimed against the plaintiffs jointly and
severally for ¢1,500,000 for unlawful arrest detention
and assault.
Briefly the facts of
the case are that Joseph Kweku Gyesi (deceased) was a
brother of the 1st defendant and married to the 2nd
defendant in his lifetime. In his lifetime the late
Joseph Gyesi was a customer of the Gomoa Rural Bank
Apam, with which he kept a current account. On 30th
March 1989 the late Gyesi paid a Co-operative Bank
cheque number 147043 having the face value of ¢1,680,000
in his account. Without waiting for the cheque to be
cleared, its value was immediately credited to the
account of Gyesi by the Bank. Subsequently the cheque
was dishonoured. The bank then debited the account of
the deceased with the value of the cheque, which had
already been credited to his account. When 1st plaintiff
(Joseph Kofi Apreku) the bank manager realised that the
deceased’s indebtedness to the bank was in the region of
¢2,000,000 as indicated by the bank statement, Exhibit
E, he invited the deceased to provide security for his
indebtedness to the bank.
The testimony of 1st
plaintiff which was accepted by the Court was that the
deceased took his own witnesses to the bank at Apam
where he signed a document, Exhibit D which was
captioned “Simple Equitable Pledge” by which he pledges
his three vehicles as security for his indebtedness. The
evidence shows that not long after Exhibit D had been
signed the deceased died without paying any portion of
his indebtedness. The Manager who gave evidence as the
1st plaintiff was faced with the difficulty of
recovering the debt. He therefore caused to be seized
one of the three vehicles which had been provided as
security. In all the vehicle was detained for eight
months but later it was given back to the driver who had
driven it immediately before the seizure. It is in
evidence that when the 1st defendant arranged to get the
vehicle repaired the bank manager caused its seizure by
soldiers from Gondor Barracks to where the 1st defendant
was taken after the arrest. He was later released and
the vehicle was repaired for the use on the road.
The Court below came to
the decision that the credit loan advance totaling
¢2million was not paid. This among other things to be
discussed later in this judgment compelled him to give
judgment in favour of the plaintiffs and to dismiss the
defendants counter-claim.
The defendants have
appealed against the decision of the trial judge on a
number of grounds. Of these I consider the original
ground one namely “The judgment is against the weight of
the evidence” very crucial for the determination of this
appeal. The undisputed evidence on record is that the
deceased paid into his current account with the Gomoa
Rural Bank the cheque Exhibit A and its face value was
immediately credited to his account. It is also not
disputed that at the time the cheque was paid the
deceased's accounts were in the red to the tune of
¢557,677.40 as evidenced by the two bank statements,
Exhibit E and one. It. is also in evidence from the bank
statements that before the cheque was returned as
dishonoured the deceased withdrew monies amounting to
¢1,270,000 from his current account. So that when the
dishonoured cheque was debited, the deceased was
indebted to the bank to the tune of ¢2,000,000.
The plaintiffs’
witnesses testified and their testimony was believed by
the trial judge that when the deceased asked Insaido
(PW2) and Otabil (PW3) to accompany him to the bank
where he intended to use his three vehicles to provide
security, he disclosed to them that he was indebted to
the bank to the tune of ¢2,000,000. Kwesi Otabil (PW3)
told the Court inter alia that “Gyesi told me and PW2
that he had collected a loan from the Bank Manager. He
told me the loan was ¢2,000,000”. The judgment of the
trial judge shows that the testimonies of PW2 and PW3
left him in no doubt that the deceased was present at
the bank when the document was executed. He believed
that the signature and thumb print of PW2 and PW3
respectively appeared on the document as witnesses
because they were taken to the bank for that purpose. On
the question whether the deceased infact signed Exhibit
D and thereby acknowledged his indebtedness to the bank,
there is the undisputed evidence as indicated by the
bank statement Exhibit E and one that the deceased was
indeed indebted to the bank before Exhibit D was
executed.
Defense counsel
contended in his written address that vehicle No. GN
4625 which was seized at the instance of the 1st
plaintiff was acquired by the deceased sometime after
Exhibit D. If this were true how could the plaintiffs
have known the vehicle No. GN 4625 as one of the
vehicles to be pledged. There was no evidence before the
court that Exhibit D was backdated to give impression
that the vehicles were pledged before the deceased was
granted the credit facility which permitted him to
withdraw. As said the defendant did not produce any oral
or documentary evidence that the deceased bought the
Vehicle No. GN 4625 in July 1989 after Exhibit D. The
mere assertion that vehicle No. GN 4625 was purchased in
July 1989 without proof was rejected by the trial judge.
The defendants’ counsel
further raised a serious contention by attacking the
signature of the deceased on Exhibit D as not genuine.
The defendants had to call a hand writing expert in the
person of DW5 to testify as to the authenticity of the
signature of the deceased appearing in Exhibit D.
Concerning the weight
of an expert’s evidence, Phipson puts it at page 403 of
his book, Phipson on Evidence (9th edition) thus “The
testimony of experts is often considered to be of slight
value since they are proverbially though unwillingly
biased in favour of the side which calls them” see also
Tackie & ors vs. The State (1964) GLR p. 262 SC: Held
“There is no rule of law that evidence of hand writing
can only be given by handwriting expert. A trial judge
is entitled to rely on the evidence of non-expert whose
testimony is tested before in cross-examination”.
In this case the
learned trial judge observed the witness and after
examining his evidence came to the following conclusion
“in my view therefore his evidence that came out with
the conclusion that the signature on Exhibit D was not
that of the deceased was unreliable. On the other hand
there is evidence of PW2 and PW3 who were present when
the deceased was supposed to sign the document..…”.
He concluded “Therefore
in my opinion the signature of the deceased appearing on
Exhibit D taken together with the evidence adduced on
behalf of the plaintiff was a clear admission by the
deceased of the indebtedness to the bank”. After reading
the record of proceeding I am satisfied that the
findings of the learned trial judge constitute a correct
analyses and inference from the facts on record.
Regarding the
defendant's counter-claim there is evidence on record
which was accepted by the court that the detention of
the vehicle was in effort to get a purchaser to buy the
vehicle in fulfilment of a settlement between the
plaintiffs, and the deceased's family who had accepted
the indebtedness of the deceased to the bank that the
vehicle should be sold. The trial judge found as a fact
that there was understanding between the lst plaintiff
and the family of the deceased that the vehicle should
be detained for a prospective purchaser to be found.
That the proceeds of the sale of the vehicle were to be
used in settling the indebtedness of the deceased to the
bank. In respect of the 1st defendant’s, counter-claim,
it is my view that the learned trial judge was right in
holding that there was no evidence that the lst
plaintiff personally directed the arrest detention and
assault of the 1st defendant. The 1st defendant could
not call any witness to corroborate his assertion. He
did not produce any medical report to show that indeed
anybody assaulted him.
The learned trial judge
in my opinion made a critical analyses of the evidence
in the light of the issues raised before him. It seems
to me that the decision the learned judge arrived at is
correct and supported by the evidence. It should not be
disturbed without clear proof that it is wrong and I
fail to find proof, in the instant case, that it is
wrong. The settled law is that an appellate court should
not reverse findings of fact made by a trial court
unless those findings are not justified see Atade vs.
Ladzekpo (1981) GLR 218 and Nkansah vs. Adjebeng and
Another (1961) GLR 465.
In my view the appeal
cannot succeed on any of the grounds of appeal and I
would dismiss the appeal.
A. ESSILFIE-BONDZIE
JUSTICE OF APPEAL.
OWUSU-ANSAH, JA
The view expressed by
my learned brother Essilfie-Bondzie, JA. coincides with
my own views on the matter, and I agree that the appeal
be dismissed for the good reasons he has given. There is
not very much I can usefully add.
However, let me avail
myself of this opportunity to make a brief comment by
way of an addendum in connection with the application
for amendment.
A careful perusal of
the record of proceedings reveals that on the 19/6/91 a
motion on Notice for Leave to amend the statement of
Defense and counter-claim was filed.
At page 103 is the
Plaintiff’s Affidavit in opposition.
At page 105 is an
amended statement of Defense and counter-claim of 1st
and 2nd defendants, “pursuant to leave having been
granted by the Court on the lst November, 1991.”
Yet from the 19-6-91
when the “MOTION ON NOTICE” was filed there is no record
as to when the MOTION was moved, let alone granted.
Indeed I have thoroughly gone through the record of
proceedings, but I am regretfully unable to find any
evidence of the motion having been moved, especially
when it was being vehemently opposed. Nor is there any
record of leave having ever been granted.
When, as in this case,
a party files a MOTION NOTICE for leave to amend a
pleading, supported by an Affidavit in opposition
thereto it is essential for the trial judge to grant or
refuse the application for leave and thereafter to make
a specific Ruling on the pursuant Motion as to whether
the pursuant MOTION was granted or refused and the
reasons therefor. This must be evident from the record
of proceedings.
In the absence of any
such record, the parties must be deemed to have
abandoned the MOTION, and the hearing must proceed
accordingly as if no application for amendment was ever
filed as pursued. In other words the Motion lapses.
In the instant case,
rejection of the proposed amendment would make no
material difference to the merits of the appeal. But it
could be crucial in other matters.
As already indicated, I
share the views expressed by my learned brother. The
appeal shall be dismissed accordingly and the judgment
of the High Court affirmed.
P. K. OWUSU-ANSAH
JUSTICE OF APPEAL
TWUMASI, JA.
I agree
P. K. TWUMASI
JUSTICE OF APPEAL
COUNSEL
MR. P. C. KOBI-FORDAH
FOR THE DEFENDANTS/APPELLANTS
MR. D. O. AKOTO FOR THE
PLAINTIFFS/RESPONDENTS. |
