|
Property –
Sale of House – Conveyance –
Letters of administration -
Revocation - Fraud - Setting
aside the Sale – Record of
proceedings - Whether or not the
Court of Appeal failed to
resolve completely all matters
raised in the appeal – Whether
or not portions of the evidence
adduced at the trial court were
either not recorded or if
recorded, was not included in
the record of appeal - whether
or not evidence should be taken
over again - Article 19 (13) -
Constitution 1992 - on rule 23
(3) - Supreme Court Rules CI
16
HEADNOTES
The
plaintiffs are the children of
the late Augustus Kofi Oduro,
the undisputed owner of the
house in issue. A year after the
demise of Augustus Kofi Oduro,
the High Court, granted letters
of administration to his
grandson, Augustus Yaw
Oduro to administer the estate.
Augustus Yaw Oduro’s
letters
of administration was
however revoked. Eleven years
after the aforesaid
revocation the plaintiffs
applied for and were granted new
letters of administration to
administer the estate. The
plaintiffs in the course of
administering their late
father’s estate discovered that
the house in issue had been sold
by the discharged administrator.
The purported sale was evidenced
by a Deed of Conveyance No
461/1985 dated 27th
September 1980. The plaintiffs
suspected that the vendor and
purchaser perpetuated fraud
because the recitals in the Deed
of Conveyance are inconsistent
with the date of execution. The
trial court entered judgment for
the plaintiffs. The court
reasoned that the date of
27/9/1980 on the conveyance was
entered for fraudulent reasons
and that at the said date the
intestate was alive. Another
reason advanced was that the
conveyance could not have been
executed before the date of the
re-conveyance in 1984 by which
date the letters of
administration granted the named
vendor had been revoked. It was
therefore an attempt to
fraudulently conceal this fact
that the vendor inserted the
date of the conveyance as
27/9/1980.
HELD
In the
present case, in the light of
the stage at which this appeal
has reached, the nature and
extent of the missing evidence,
the dearth of any reliable
material thereon and in order to
have a full complement of the
evidence necessary for the
determination of this appeal,
this court, relying
on rule
23 (3) of CI 16 directs the
High Court, Accra to re-hear the
concluding part of the
defendant’s evidence in chief
and the cross examination as
well as re-examination thereon,
if any, and same transmitted to
this court for inclusion and
ultimate determination of the
appeal which is before us. We
think that the ends of justice
would best be served by
obtaining the full record of
proceedings by this directive so
as to deal with this appeal once
and for all. The appeal
therefore succeeds to the extent
of the above directive. The
decision of the Court of Appeal
is accordingly set aside. The
trial high court should comply
with this directive and furnish
the outcome to this court within
forty-five (45) days of this
order. Upon receipt of the
outcome of the order, the final
judgment of this court would be
delivered. The Honourable Chief
Justice shall give the requisite
direction as to which High Court
Judge shall carry out the order
in view of the passing on of the
trial judge.
STATUTES
REFERRED TO IN JUDGMENT
Constitution
1992
CASES
REFERRED TO IN JUDGMENT
Achoro vs
Akanfela (1996-97) SCGLR 209;
Koglex (No2)
v Field (2000) SCGLR 175;
Obeng v
Assemblies of God Church, Ghana
(2010) SCGLR 300;
Gregory v
Tandoh and Anor (2010) SCGLR
971).
Akufo-Addo vs
Catheline (1992) 1 GLR 377 SC).
Tuakwa v
Bosom 2001-2002 SCGLR 61
Djin vs Musah
Baako (2007-2008) SCGLR 686 at
687,
Republic v
High Court, Denu; Ex Parte Awusu
II (No 2) (2003-2004) SCGLR 907
at 910)
Ex Parte
Firth, In re Cowburn (1882) C.A,
Vol XIX (1881-1882) The Law
Reports (Chancery Division), 420
at 426;
Adomako Anane
v Nana Owusu Agyemang (Subst by
Nana Banahene) & 7 ors, suit No
J4/42/13, of 26th
February 2014
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
AKAMBA, JSC:-
COUNSEL
ROBERT
KINGSLEY YEBOAH ESQ. FOR THE
DEFENDANT / APPELLANT
/APPELLANT.
KWASI AGYENIM
BOATENG ESQ. WITH HIM CONSTANCE
QUIST FOR THE PLAINTIFFS/
RESPONDENTS / RESPONDENTS.
_______________________________________________________________________________________________
JUDGMENT
_______________________________________________________________________________________________
AKAMBA, JSC:-
This appeal
is from the judgment of the
Court of Appeal entered against
the Defendant/
Appellant/Appellant (hereinafter
simply the Defendant) on
21/10/2010 in an action
commenced by Plaintiffs/
Respondents/Respondents
(hereinafter simply the
Plaintiffs) per a writ of
summons issued on 23/11/1995.
The
Plaintiffs sued the Defendant
seeking the following reliefs:
“ i. A
Declaration that the sale of
H/No C383/2 Amugi Avenue,
Adabraka, Accra by a deed of
conveyance No 461/1985 to the
Defendant by the vendor therein
was a
fraud and therefore null and
void.
ii.
A
declaration that whether or not
the defendant was aware of the
fraud, the sale was null and
void because the vendor had no
power to sell the property and
the sale passed no title to the
Defendant.
iii.
An
order of the Court
setting
aside the sale.
iv.
An
order of the Court ejecting the
Defendant and or his agents
forthwith from the house.
v.
Perpetual injunction restraining
the Defendant from exercising
any rights of ownership or
possession over the property.”
BACKGROUND
The
plaintiffs are the children of
the late Augustus Kofi Oduro,
the undisputed owner of the
house in issue. A year after the
demise of Augustus Kofi Oduro,
the High Court, on 17th
December 1982, granted letters
of administration to his
grandson, Augustus Yaw
Oduro to administer the estate.
Augustus Yaw Oduro’s letters of
administration was however
revoked on 23rd March
1983. Eleven years after the
aforesaid revocation and
precisely on 22nd
September 1994, the plaintiffs
applied for and were granted new
letters of administration to
administer the estate. The
plaintiffs in the course of
administering their late
father’s estate discovered that
the house in issue had been sold
by the discharged administrator.
The purported sale was evidenced
by a Deed of Conveyance No
461/1985 dated 27th
September 1980. The plaintiffs
suspected that the vendor and
purchaser perpetuated fraud
because the recitals in the Deed
of Conveyance are inconsistent
with the date of execution.
The trial
court entered judgment for the
plaintiffs. The court reasoned
that the date of 27/9/1980 on
the conveyance was entered for
fraudulent reasons and that at
the said date the intestate was
alive. Another reason advanced
was that the conveyance could
not have been executed before
the date of the re-conveyance in
1984 by which date the letters
of administration granted the
named vendor had been revoked.
It was therefore an attempt to
fraudulently conceal this fact
that the vendor inserted the
date of the conveyance as
27/9/1980.
The defendant
filed the following grounds for
this court’s determination
namely:
(a)
The
Court of Appeal failed to
resolve completely all matters
raised in the appeal and thereby
disabled itself from considering
the real issues raised in the
appeal
(b)
The
Court of Appeal misdirected
itself on the facts and law
raised by the appeal when it
failed to consider the payment
made by the appellant, on the
direction of the deceased owner
of the house in pursuance of the
contract for the sale of the
property to redeem the property
from the mortgage at the Ghana
Commercial Bank.
(c)
The
Court of Appeal erred in law
when it failed to consider the
effect of the payments made by
the Appellants towards the
purchase of the property
directly to the owner of the
house before his death.
(d)
The
Court of Appeal erred in law
when it failed to order a
retrial after acknowledging that
parts of the evidence of the
Defendant/Appellant were not
recorded by the trial judge.
(e)
The
Court of Appeal erred when it
imputed fraud on the
Defendant/Appellant without
positive evidence of proof of
fraud on the part of the
Appellant.
(f)
The
Court of Appeal erred in law
when it failed to sever the
contract and enforce that part
of the transaction not tainted
with illegality and give effect
to the intention of the parties
for which the Appellant paid
money to redeem the property
from the mortgage.
It is
generally settled that where
findings of fact made by a trial
court are concurred in by a 1st
appellate court, a 2nd
appellate court must hasten
slowly in disturbing the
findings or coming to a
different conclusion unless it
is manifestly clear that the
findings of the two courts are
not supportable on the evidence
or perverse. In such
circumstances, this Court has
the power to review the evidence
as a whole and find whether the
conclusions by the High Court as
affirmed by the Court of Appeal
are supported by the evidence. (See
Achoro vs Akanfela (1996-97)
SCGLR 209; Koglex (No2) v Field
(2000) SCGLR 175; Obeng v
Assemblies of God Church, Ghana
(2010) SCGLR 300; Gregory v
Tandoh and Anor (2010) SCGLR
971).
Where the
appellant alleges that the
judgment is against the weight
of the evidence led, the court
is enjoined to independently
evaluate the evidence on record
and determine whether proper
findings and facts were made and
same supported by the
conclusions reached.
We have
reiterated time and again that
whenever an appeal is based on
the omnibus ground for
consideration the appellate
court has jurisdiction to
examine the totality of the
evidence before it and come to
its own decision on the admitted
and undisputed facts. (See
Akufo-Addo vs Catheline (1992) 1
GLR 377 SC). In Tuakwa v Bosom
2001-2002 SCGLR 61 this
Court delivered itself thus: “an
appeal is by way of rehearing,
particularly where the appellant
alleges in his notice of appeal
that the decision of the trial
Court is against the weight of
evidence. In such a case, it is
incumbent upon an appellate
court, in a civil case, to
analyse the entire record of
appeal, take into account the
testimonies and all documentary
evidence adduced at the trial
before arriving at its decision,
so as to satisfy itself that on
a balance of probabilities, the
conclusions of the trial Judge
are reasonably or amply
supported by the evidence”.
Thus when an
appellant complains that the
judgment is against the weight
of evidence, 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. (See
Djin vs
Musah Baako (2007-2008) SCGLR
686 at 687, holding 1).
GROUNDS (a)
and (d)
We propose to
resolve grounds (a) and (d)
together first because they have
a common bearing on each other
and secondly should the burden
be discharged, could render the
determination of the remaining
grounds unnecessary or defer
consideration for the time
being. The two grounds allege
that:
The
Court of
Appeal failed to resolve
completely all matters raised in
the appeal and thereby disabled
itself from considering the real
issues raised in the appeal
The Court of
Appeal erred in law when it
failed to order a retrial after
acknowledging that parts of the
evidence of the
Defendant/Appellant were not
recorded by the trial judge.
ARGUMENTS OF
COUNSEL
The pith of
the defendant’s dissatisfaction
is that, notwithstanding the
acknowledgment of counsel on
both sides in this appeal and
also at the 1st
appellate court that
portions
of the evidence adduced at the
trial court were either not
recorded or if recorded, was not
included in the record of
appeal, the court of appeal
did not accept that such
omission was fatal to the
presumption of regularity of the
judgment entered. In other words
the court of appeal concluded
that those omissions were not
fatal to the judgment entered by
the trial court.
The plaintiff
for his part considers the
defendant’s stance as pure
scuttling and a refusal to
cooperate. The plaintiff’s
conclusion is in reaction to the
defendant’s refusal to disclose,
as an officer of the court, what
specific evidence, known to him,
which has been left out.
ANALYSIS
By contending
that the court of appeal failed
to resolve completely all
matters raised in the appeal and
thereby disabled itself from
considering the real issues
raised, the defendant in essence
is saying that the judgment
arrived at is against the weight
of evidence.
As we have
intimated in numerous
authorities a few of which have
been cited above, such a ground
of appeal is an invitation to
this court to rehear the matter
and “to analyse the entire
record of appeal, take into
account the testimonies and all
documentary evidence adduced at
the trial before arriving at its
decision, so as to satisfy
itself that on a balance of
probabilities, the conclusions
of the trial Judge are
reasonably or amply supported by
the evidence”.(See Akufo Addo vs
Catheline, supra)
Counsel for
the defendant impugns the
integrity of the trial judge’s
record on account of its failure
to include the closing portions
of the defendant’s evidence in
chief and the beginning of the
cross examination of his client.
They were either not recorded at
all by the trial judge or if
recorded, were not included in
the record of appeal. The record
of appeal bears testimony to the
concerns raised. The evidence in
chief of defendant Adu Baffour
Kwadwo, is recorded at page 68
to 69 of the record of appeal (ROA).
The case was then adjourned to
“25th, 26-7-01 for
continuation”. The record for
the 25th July 2001 is
at page 70 when the suit was
adjourned to 26th
July 2001 because of the absence
of counsel for the defendants.
There is no record of any
proceedings on the 26th
July 2001 in the appeal record.
The next entry in the ROA is at
page 71. It records events made
on 5th August 2002
when the court ordered that
hearing notices be issued to the
defendants and their counsel who
were both absent. The 1st
Plaintiff and his counsel were
however present. The next
significant entry is at page 72
with the following entry:
“I am
informed the exhibit docket
cannot be traced. Suit is
accordingly adjourned to 28th
August, 2002 by which date it
is hoped the docket will have
been found to enable counsel for
the plaintiffs to further
cross examine defendant.”
(Underlined for emphasis)
The obvious
and reasonable inference
discernible from the above entry
is that the defendant had
already completed his evidence
in chief and cross examination
of the witness already
commenced. The adjournment to
the 28th August 2002
was to enable counsel for the
plaintiff to further cross
examine the defendant. It is an
understatement to say that the
record of the completion of the
evidence in chief and the
beginning of cross examination
is very germane for the
determination of the dispute
before the court. Its
significance arises from the
fact that one response or
statement be it positive or
negative, can turn the tables
one way or the other in the
trial. Also, the material nature
of the evidence is not
determined by how elaborate or
terse it is. I think it is
appropriate to state that
inherent in the right to be
heard, otherwise stated as the
audi alteram partem rule, is the
requirement of fair hearing or
trial in a timely manner or
within a reasonable time as
envisaged under
article
19 (13) of the Constitution 1992.
The rules of natural justice are
meant to provide justice through
procedural fairness and to
guarantee fair trials, unbiased
and transparent judgments to all
persons who resort to the law.
(See per Bamford-Addo, JSC
in
Republic v High Court, Denu; Ex
Parte Awusu II (No 2)
(2003-2004) SCGLR 907 at 910)
Indeed
nothing better guarantees fair
trial and transparent judgments
than the production of accurate
records of events which gave
rise to those results.
Incidentally it is not a mark of
courtesy or favour to be
furnished with accurate records
of a trial when required, and
not least in a civil suit such
as the present but subject only
to the fulfillment of laid down
rules if any. Can the
record of
proceedings, as it stands
devoid of the concluding
testimonies of the defendants’
evidence in chief and the
beginning of his cross
examination be a basis for
concluding that the trial and
the judgment arrived at are
unbiased and transparent?
In any case
when the Registrar of the trial
High Court was ordered by the
Court of Appeal to rectify the
record of appeal to include the
omissions stated above this is
what the Chief Registrar
M.W.K.Kwara wrote back on 17th
June 2008 to say:
“With
reference to your letter No
353/H1/84/2007 dated 23rd
day of March, 2008 I return
herewith, four (4) certified
true copies of the appeal
records together with the mother
docket. No omissions or mistakes
were found in the Records.
Please acknowledge receipt.”
One inference
from the above response is that
the trial judge failed to record
those proceedings or
deliberations. Another inference
is that the Registrar simply got
everything wrong. How could
there be no mistakes or
omissions from a record in which
the evidence in chief simply
hangs in the air without
indicating an end or the cross
examination continuing midstream
without showing a beginning? The
Registrar could not be right
when he stated that there were
‘no omissions or mistakes’ in
the records which speak to the
contrary.
If these
inferences are correct, would it
be fair to rely on the record as
it stands – incomplete as it is?
I think the omissions are not
only grave but indeed call into
question the integrity of the
court’s records. Either way, the
court cannot take advantage of
its own wrongs or shortcomings.
No matter whose lapse this was,
whether the trial judge or the
registrar or officers of the
court, this court views with the
greatest disfavor such actions
which have the effect of
stultifying any considerations
that this court could give to
matters before it for
determination.
Yet, in spite
of these grave omissions from
the record of appeal, the Court
of Appeal regrettably found no
merit in this ground of appeal
and dismissed same. The reasons
given by their Lordships of the
Court of Appeal for their
refusal to grant the defendant’s
prayer for an order for a
retrial are as follows:
“The record
of appeal is produced from the
record of proceedings. The two
are not exactly the same.
Aspects of the record of
proceedings may be omitted from
the record of appeal either
because they are not considered
relevant to the appeal or
because they are not available
for one reason or the other,
even though they are relevant to
the appeal. It is possible for
the record of proceedings to
suffer harm or damage after
judgment to the effect that
aspects of the record may be
lost, obliterated, mutilated or
be otherwise unavailable. But
whatever the cause of the harm
or damage, since it is likely to
occur after judgment,
unavailability of any aspect of
the record of proceedings for
the purpose of compiling the
record of appeal does not
necessarily establish that that
aspect of the record of
proceedings was not available at
the time the judgment of the
court written. The presumption
is that an official duty has
been regularly performed and, in
the absence of evidence to the
contrary, I will hold that no
irregularity attended the
writing and reading of the
judgment of the trial court. I
think it will be a dangerous
precedent to hold the judgment
of a court of competent
jurisdiction invalid or
otherwise flawed merely because
aspects of the evidence adduced
at the trial cannot be found
after judgment. In the present
case, I do not accept the
omissions pointed out by counsel
as sufficient evidence to rebut
the presumption of regularity of
the judgment of the trial
court.”
Regularity of
a judgment is not coterminous
with the correctness of the
record of proceedings upon which
same was derived. In my view,
this ground of appeal in so far
as it impugns the correctness of
the trial judge’s conclusions,
based upon the facts led before
him, the same set of facts and
other pieces of evidence put
before him must be placed before
us to independently assess and
arrive at our own conclusion. In
this case, the trial judge must
have considered all the evidence
that was led before him
including the defendant’s
concluding evidence in chief and
the opening cross examination
before rendering his decision
appealed from. It is this very
platform that ought to be
provided to us by way of the
full record of proceedings,
devoid of the omissions
complained of, to facilitate the
re-hearing by this court. That
is the essence of ‘re-hearing’
of an appeal on the records. It
is not enough to presume that
the trial judge regularly
performed his duty in this
case. On the contrary the trial
judge would have regularly
performed his duty if he
recorded all the evidence at the
trial of this case but not
otherwise. If the view espoused
by the court of appeal is to
hold sway, it would set a very
dangerous precedent and
compromise the integrity of the
judicial trial process. It would
justify laxity and decadence in
our trial system. Why would a
court which fails to produce
accurate and reliable records of
its trial sessions be exonerated
from its flaws simply because it
is a court of competent
jurisdiction? Significantly, the
High Court is a court of record
which means that it is obliged
to keep a record of its
proceedings. This record must be
a true and correct entry of what
actually took place in the
trial. As it stands now, one can
at best know only part of the
defendant’s story and this is no
true knowledge. It is indeed
very unsavory for a case to
travel this far only to have to
be sent back for a new trial.
However in the absence of the
full record of proceedings of
all that transpired before the
trial judge being put before
this court to do justice to both
parties, the only option might
be to travail that path. The
missing records which have
necessitated this option,
include records not only of the
concluding portion of
defendant’s evidence in chief,
but also those of his opening
cross examinations and answers
thereto. As Jessel, M.R
correctly stated in
Ex
Parte Firth, In re Cowburn
(1882) C.A, Vol XIX
(1881-1882) The Law Reports
(Chancery Division), 420 at 426;
an appellate court
cannot decide an appeal in the
absence of the evidence on which
the order appealed from was
founded. Such defect is however
curable as occurred in ex
Parte Firth (supra) wherein
the court relied on some other
pieces of evidence. This is
recalled per Jessel, M.R at
p. 426 of the report as
follows: “Before us that
defect has been cured by the
admission of a newspaper report,
which appears to be full.
Therefore we know the evidence
which was before the County
Court Judge, and we find that
the evidence of one of the
witnesses for the present
Respondent, the solicitor who
attested the bill of sale, was
entirely disbelieved by him.”
CONCLUSION
We are not
privy to such other reliable
pieces of evidence that would
place us in a position to do
justice in this matter as in the
ex Parte Firth case
(supra). Given the circumstances
of this case, we do not see it
as one that merits a full
re-trial in the sense of hearing
the whole case from scratch. We
are also mindful of our duty to
achieve speedy and effective
justice, avoid delays and
unnecessary expense and ensure
that as far as possible all
matters in dispute between the
parties advanced at the trial
are effectively determined. It
was in order to achieve these
noble objectives that this court
adopted the same sound policy
reasoning to chart a new path in
suit
No J4/42/13, Adomako Anane v
Nana Owusu Agyemang (Subst by
Nana Banahene) & 7 ors, of 26th
February 2014 (unreported)
to obviate a trial de-novo.
Some of the reasons stated
therein against de-novo trials
include: “(i) the protracted
trials and delay in the delivery
of judgments; (ii) they afford
parties undue advantage to
reconstruct their case and thus
waste more time; (iii) they
encourage parties to seek to
embellish or improve their case
if they believe that their
performance or the performance
of their witnesses did not go
the way they wanted; (iv) they
can sometimes lead to denial of
justice where the witness or
party is dead or otherwise
unavailable and there is no
other means of haring the truth
except to rely on what has
already been reproduced by the
court under cross-examination in
the previous proceedings; (v)
there will be denial of justice
where vital exhibit is lost or
otherwise unavailable but
details of it are on the record
and could have been used to
write the judgment if the
previous proceedings had been
adopted; and (vi) in fact in the
event of the last two reasons,
trials may have to be
discontinued or cases abandoned
or justice denied when, indeed,
adoption of the record would
have saved the continuation of
the trial and the entire case.”
We would,
therefore state the law as
follows: In civil proceedings,
the ultimate question of
whether
or not evidence should be taken
over again i.e. tried de
novo, because the judge’s or
court’s notes are lost, should
be taken by the court depending
upon whether or not the defect
may be cured.
In
appropriate circumstances the
appellate court or court may
accept short hand notes taken of
the proceedings in court,
counsel’s/ solicitor’s notes all
properly verified by affidavit
in order to fill in the missing
evidence. Other recognized means
of curing such defect may be by
admission of reliable newspaper
reports or publications by legal
correspondents of the issue. In
our present times reliable
electronic recordings of the
missing evidence may be
considered. This is not an
exhaustive list and may be added
to subject to reliability and
accuracy.
In the
present case, in the light of
the stage at which this appeal
has reached, the nature and
extent of the missing evidence,
the dearth of any reliable
material thereon and in order to
have a full complement of the
evidence necessary for the
determination of this appeal,
this court, relying on rule 23
(3) of CI 16 directs the High
Court, Accra to re-hear the
concluding part of the
defendant’s evidence in chief
and the cross examination as
well as re-examination thereon,
if any, and same transmitted to
this court for inclusion and
ultimate determination of the
appeal which is before us. We
think that the ends of justice
would best be served by
obtaining the full record of
proceedings by this directive so
as to deal with this appeal once
and for all. The appeal
therefore succeeds to the extent
of the above directive. The
decision of the Court of Appeal
is accordingly set aside. The
trial high court should comply
with this directive and furnish
the outcome to this court within
forty-five (45) days of this
order. Upon receipt of the
outcome of the order, the final
judgment of this court would be
delivered. The Honourable Chief
Justice shall give the requisite
direction as to which High Court
Judge shall carry out the order
in view of the passing on of the
trial judge.
(SGD)
J. B. AKAMBA
JUSTICE
OF THE SUPREME COURT
(SGD)
G. T. WOOD (MRS)
CHIEF
JUSTICE
(SGD)
J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
J. V. M. DOTSE
JUSTICE OF
THE SUPREME COURT
(SGD)
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME COURT
COUNSEL
ROBERT
KINGSLEY YEBOAH ESQ. FOR THE
DEFENDANT / APPELLANT
/APPELLANT.
KWASI AGYENIM
BOATENG ESQ. WITH HIM CONSTANCE
QUIST FOR THE PLAINTIFFS/
RESPONDENTS / RESPONDENTS. |
