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Land -
Declaration of title - trespass
- Recovery of possession -
Perpetual injunction - General
damages - Certificate of
Purchase – Forgery - section
13(1) of the Evidence Decree,
1975 (N.R.C.D.323).
HEADNOTES
The facts in
this case are fairly simple and
admit of little controversy. At
the High Court the plaintiff
issued a writ claiming, The
appellant’s claim to title on
the land was premised on the
fact that he obtained his title
under a grant from the Oshilanaa
quarter of Labadi. The
transaction was duly recorded
and registered in the year
1959and he immediately started
exercising rights of ownership
over the land by erecting corner
pillars on the land. Sometime
later the defendant started to
interfere with his quiet
enjoyment of the land and when
respondent failed to heed
several warnings he issued a
writ at the Circuit Court where
he also succeeded in procuring
an interim order of injunction.
As a result of the persistence
of the respondent in his
tresspassory activities on the
land he issued the writ at the
High Court. The respondent on
the other hand traced his root
of title to an auction sale of
the land to one E.A Quarcoo who
was the highest bidder at the
auction. The certificate of
purchase evidencing this
transaction was issued on 24th
April 1957. E. A Quarcoo in turn
sold it to Palm Grove Estates
who in turn sold a portion of
the land to the respondents. He
conceded that the appellant
issued a writ and procured an
injunction at the Circuit Court,
but the case was struck out for
want of prosecution when the
appellant abandoned it. He said
that when he remained on the
land the appellant reported him
to the national investigation
committee’s sub-committee on
Labadi stool lands where his (respondent’s)title
was confirmed. The respondent in
turn reported the conduct of the
appellant to the police and he
was arrested and charged. At the
High Court the learned Judge
found for the respondent and
dismissed the appellant’s
action. Dissaisfied with the
judgment of the High Court the
appellant appealed to the Court
of Appeal their Lordships made
findings similar to those at the
High court and came to similar
conclusions
HELD
To conclude
it is our view that the findings
of fact made by their Lordships
at both the High Court and the
Court of Appeal were very much
supported by the evidence on
record and we do not see any
reason to disturb them. The
Court of Appeal rightly rejected
the fresh evidence and we
endorse that. The appeal is
unmeritorious and same is
dismissed.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules, 1954,
(L.N.140A),
Evidence
Decree, 1975 (N.R.C.D.323)
Court of
Appeal rules1997 C. I. 19
CASES
REFERRED TO IN JUDGMENT
Achoro v
Akanfela [1996-97] SCGLR 209,
Robins v
National Trust Co [1927]AC515
Allen v
Quebec Warehouse Co(1886)12 AC
101
Quarm v.
Yankah II and I Other, I WACA 80
Lee v.
Johnstone (1869) L.R. I Sc. &
Div. 426 (H.L.)
Kusi &Kusi v
Bonsu [2010] SCGLR 60
Fori v
Ayirebi[1966]GLR627
Western
Hardwood Ent Ltd v West African
Ent Ltd [1998-99] SCGLR105.
Nti v Anima
1984-86 2 GLR 134
Foli
vAgyaAtta(consolidated)[1976]1GLR194CA
Karikari v.
Wiafe[1982-83]
Apori Stoolv.
WorakeseStool1994]2 GBR629.
Poku V Poku
2007-2008] SCGLR 996
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BAFFOE-BONNIE
JSC:
COUNSEL
YVONNE
AMOATEY FOR THE APPELLANT.
RICHARD AMOFA
WITH HIM NANA SERWAAH GODSON-AMAMOO
FOR THE RESPONDENT
__________________________________________________________________
J U D G M E
N T
__________________________________________________________________
BAFFOE-BONNIE
JSC:
…In
the case of
Achoro v Akanfela [1996-97]
SCGLR 209, at pg
214, Acquah JSC, (as he then
was) made the following
pronouncement:
“Now in an
appeal against findings of facts
to a second appellate court like
this court, where the lower
court had concurred in the
findings of the trial court,
especially in a dispute, the
subject of which is peculiarly
within the bosom of the two
lower courts or tribunals, this
court will not interfere with
the concurrent findings of the
lower courts unless it was
established with absolute
clearness that some blunder or
error resulting in a miscarriage
of justice, is apparent in the
way which the tribunal dealt
with the facts. It must be
established eg. that the lower
courts had clearly erred in the
face of a crucial documentary
evidence, or that a principle of
evidence had not been properly
applied…… or as pointed out in
Robins v National Trust Co
[1927]AC515, that
the finding is so based on an
erroneous proposition of the law
that if that proposition is
corrected the judgment
disappears. In short it must be
demonstrated that the judgment
of the courts below are clearly
wrong . See
Allen v
Quebec Warehouse Co(1886)12 AC
101”
Taking a cue
from this quote, and having
thoroughly reviewed the
judgments rendered by both the
trial judge and the Court of
Appeal, particularly with regard
to the concurrent findings of
fact made by those two courts
and having digested the
submissions of both counsel
before us, our initial reaction
was to just dismiss the appeal
and confirm the judgment of the
Court of Appeal which we feel
was very well thought out.
However ,ex abundante cautela,
and also to give permanent
closure to an appellant who
seems to be clutching at straws,
we decided to give this appeal a
more detailed treatment.
The facts in
this case are fairly simple and
admit of little controversy. At
the High Court the
plaintiff/appellant (hereafter
appellant) issued a writ
claiming:
“A
declaration of title to all
that piece or parcel of land
more particularly described in
the statement of claim
Recovery
of possession
Perpetual
injunction
And
general
damages”
The
appellant’s claim to title on
the land was premised on the
fact that he obtained his title
under a grant from the Oshilanaa
quarter of Labadi. The
transaction was duly recorded
and registered in the year
1959and he immediately started
exercising rights of ownership
over the land by erecting corner
pillars on the land.
Sometime
later the
defendant/respondent(hereafter
respondent) started to interfere
with his quiet enjoyment of the
land and when respondent failed
to heed several warnings he
issued a writ at the Circuit
Court where he also succeeded in
procuring an interim order of
injunction. As a result of the
persistence of the respondent in
his tresspassory activities on
the land he issued the writ at
the High Court.
The
respondent on the other hand
traced his root of title to an
auction sale of the land to one
E.A Quarcoo who was the highest
bidder at the auction. The
certificate of purchase
evidencing this transaction was
issued on 24th April
1957. E. A Quarcoo in turn sold
it to Palm Grove Estates who in
turn sold a portion of the land
to the respondents. He conceded
that the appellant issued a writ
and procured an injunction at
the Circuit Court, but the case
was struck out for want of
prosecution when the appellant
abandoned it.
He said
that when he remained on the
land the appellant reported him
to the national investigation
committee’s sub-committee on
Labadi stool lands where his
(respondent’s)title was
confirmed. The respondent in
turn reported the conduct of the
appellant to the police and he
was arrested and charged.
At the High
Court the learned Judge found
for the respondent and dismissed
the appellant’s action. In her
judgment the Honourable Trial
Judge made some findings of fact
and concluded as follows
“If on 24th
April, 1957, C.S Commey was
divested of ownership of the
property and same vested in E.A
Quarcoo it follows that in 1959,
when he and or Anum Alormoshie
and Tawiah Gbawe purported to
make a grant of a portion of the
land to the plaintiff, they had
nothing and therefore gave
nothing.
I find that
the subject matter of the
dispute forms part of a large
tract of land sold at public
auction to E.A. Quarcoo, the
defendant predecessor in title
upon the orders of the court
made in the case of John Adeoje
v. CS Commey
I therefore
find that when in 1959, C.S.
Commey and/or Alormosie and
Tawiah purported to make a gift
of the land to the plaintiff,
they had nothing and therefore
gave nothing to the plaintiff.”
Dissaisfied
with the judgment of the High
Court the appellant appealed to
the Court of Appeal
on the
following grounds;
1 That the
learned High Court judge failed
to consider the case of the
plaintiff/appellant adequately.
2 That the
judgment is against the weight
of the evidence
3 Other
grounds to be filed upon receipt
of copy of judgment.
From the
records, no additional grounds
were filed.
In the
submissions before the Court of
Appeal, the appellant devoted a
small measure of time to
commenting on the trial judge’s
review of the evidence adduced
at the trial by the appellant,
and devoted the rest of time to
challenging the evidence
regarding the root of title of
the respondent based on some
research he had allegedly
conducted at the archives, which
according to him cast some doubt
on the veracity of the so called
auction sale and the resultant
certificate of purchase. His
research had shown that, there
had never been a case with the
title as given by the appellant
that had given rise to the
auction, that even though the
certificate was supposed to have
been issued by a High Court it
was signed by a magistrate. He
concluded that the certificate
of purchase which seemed to
ground the root of title of the
respondent was forged.
At the Court
of Appeal
their Lordships made findings
similar to those at the High
court and came to similar
conclusions.
After
reviewing the evidence on record
their Lordships noted thus;
“Since the
plaintiff has confirmed the land
was originally owned by C.S.
Commey, how and when did he lose
his title to make him not a
grantor in his own right, but
only an interpreter and a
witness for the grantors? The
plaintiff was totally silent on
this. The answer was clearly and
satisfactorily provided by the
defendant when he said as a
result of that case the court
ordered this property to be sold
hence the auction sale which
E.A.Kwaku as the highest bidder
secured title. So the trial
judge was right when she held
that “ in the absence of any
evidence to the contrary the
sale became absolute and upon
the issuance of the Certificate
of Purchase, E.A. Qurcoo did
purchase the right, title and
interest of C.S Commey”. It
follows and I hold that the
plaintiff’s grantors had no
title to convey to him in 1959
since C.S. Commey who owned the
land had lost his title to it.
That explains why C.S. Commey
did not sign as grantor. And
those who purported to grant
this land to the plaintiff did
not claim to have obtained it
from the original owner C.S.
Commey. The only proper
inference to be drawn from these
facts is that C.S. Commey hid
behind Anum Alormosie and Tawiah
Gbawe to give away what he had
already lost in litigation.”
We have
carefully digested these
concurrent findings of fact made
by their lordships of the High
Court and the Court of Appeal
and we find no reason to disturb
them. Indeed in his submissions
before us the appellant himself
seems to have recognized the
unsurmountabilty of the hurdles
in trying to sway us from the
findings of fact made, and
therefore veered his criticism
of the judgment to the
genuineness or otherwise of the
Certificate of Purchase which
founded the root of title of the
respondent.
The appeal
before us has the following
grounds;
1.
The honorable Court of Appeal
erred in holding that the
certificate of purchase
which constituted the
defendant’s root of title was a
valid or genuine when the said
certificate bore no suit number
and was not signed by a High
Court judge and when a cursory
examination of the said
certificate showed that it was a
bogus document
2.
The honorable Court of Appeal
failed to critically examine and
make a finding on the indenture
of conveyance of Messrs Palm
Grove Ltd and E. Asiama which
contained serious
contradictions/conflicts with
regard to the certificate of
purchase the root of title of
the respondent viz. that the one
and the same certificate of
purchase was issued by “a Senior
Magistrate” and by the “High
Court”
3.
T he whole judgment of the Court
of Appeal was based on
assumptions and speculations
(Further
grounds of appeal to be filed
when the record of proceedings
is available).
These grounds
like the one on the conflict in
the evidence were canvassed at
the Court of Appeal and they
were roundly rejected by their
Lordships. .
At the Court
of Appeal counsel had submitted
that;
A.
The certificate that formed the
root of title of the respondent
was a complete forgery as it
does not bear any suit number.
It is said to have been signed
by a Senior Magistrate although
on the face of the document it a
High Court case.
B.
Next counsel submitted that
based on some searches conducted
at the national Archives it had
been revealed that there was no
record of the so called High
Court case John Adjeode Doe v
C.S. Commey.
These and
others were several challenges
to the certificate of purchase
that were isolated by their
lordships at the court of appeal
and in our view were
appropriately dealt with by
them.
The first
ground for rejecting these
submissions bothering on the
genuineness or otherwise of the
certificate of purchase was
articulated by their Lordships
thus;
“This is an
impressive argument. But I am
sorry to say it lacks any valid
foundation in law. For by Order
19, r.16 of the
High
Court (Civil Procedure) Rules,
1954, (L.N.140A), the party
who seeks to rely on a plea that
a document, which has been
pleaded by his opponent, is a
forgery must plead that fact.
And he who alleges that a
document is a forgery assumes
the burden of persuasion, and
this burden, according to
QUARM V. Y ANKAH II AND I OTHER,
I WACA 80, must
be strictly discharged. And
forgery
being a crime, it must be proved
beyond reasonable doubt though
this a civil suit, as required
by
section 13(1) of the Evidence
Decree, 1975 (N.R.C.D.323).
Thus, even in the absence of
pleadings the plaintiff who
relies on forgery in defence to
the document ought to lead the
requisite evidence at the
hearing and also during the
cross-examination of the
defendant, if no objection is
raised. These documents, namely
the certificate of purchase and
the deed of conveyance had both
been pleaded by the defendant.
So the plaintiff was put on
notice to attack same if he was
so mindful. In a situation where
the material fact is not pleaded
at all, and no attempt is made
to discredit the document
through cross -examination, it
is plainly unjust to attack it
as a forgery for whatever
reason, especially so too as it
went in evidence without any
objection. Indeed during the
cross-examination of the
defendant he was not asked a
single question about this
certificate or the deed of
conveyance. All the points now
raised by counsel could have
been answered if they had been
raised at the trial, which is
the appropriate forum for all
questions of fact to be raised
if they are known at the time”
On the
question of the searches
conducted at the national
archives, their Lordships
deprecated the method of
introducing fresh evidence and
said so, rightly in our view, in
no uncertain terms. Their
Lordships said;
" Counsel
annexed photocopies of the said
searches to his address to this
court. To begin with, one
wonders what sort of procedure
counsel was employing in this
case. I would have thought that
if it was intended that the
search results should form part
of the record of proceedings the
proper thing was to seek leave
to use them as fresh evidence on
appeal, if other legal
requirements are met. A search
result is not a matter of law,
at best it is an issue of fact
that may be used to buttress an
issue in the case or if it is
relevant for any purpose
connected with the action. Being
a matter of fact, the other side
is entitled to be heard on it.
At any rate a search result is
not conclusive evidence of what
it says. The court cannot
therefore be called on to take
any notice of these results, let
alone to consider them in
connection with the appeal. It
must be stated that even if
these results had been filed
with the trial court before the
case was concluded there, that
court would not have been
obliged to use them since they
were not tendered in evidence.
They will be ignored as
irrelevant, not properly
introduced and therefore taking
the other side by surprise, it's
in breach of the audi alteram
partem rule.
Counsel’s
submissions with regard to the
fraudulent nature of the
certificate of purchase, were
articulated this way before
their Lordships at the Court of
Appeal;
"Form 58 at
page 511 of the High Court Rules
1954 is the Certificate of
Purchase form one would expect
to have been used in the matter
if the Adjeode case is a genuine
High Court case, which it is
not; the High Court rules and
forms came into force in 1954
three years before the so-called
decree in the Adjeode case was
issued. Herein lies the fraud
perpetrated by the defendant
Asiama on the High Court by
using a bogus certificate of
purchase to prop up his case."
Their
Lordships’ response was concise.
They said;
“Once again
the plaintiff never pleaded
fraud as required by Order 19
r.16 of L.N.140A. Hence counsel
cannot raise it now and I reject
the argument accordingly.”
Still
attacking the certificate of
purchase counsel had submitted
before their lordships as
follows;
"One
pertinent question to be asked
is this: who was the High Court
Judge who heard and determined
the Adjeode case? And why did
not the High Court Judge or any
other Judicial Officer of the
High Court sign the so-called
Certificate of Purchase? And why
is there no High Court suit
number in the Adjeode case? And
again why is there no record of
the so called High court case
in both High Court registry and
the National Archives?"
Here again
their Lordships answer was apt
and to the point. They said:
“All these
are legitimate questions that
could have been asked the
defendant when he took the
witness stand. The plaintiff
conducted his case with the
active involvement of a lawyer.
The plaintiff’s case was
presented to the court that his
grantor had the capacity and
right to give the land to him
and most important of all that
he had registered his document
long before the defendant
purported to obtain a grant and
to register same. So he did not
bother about whatever case the
defendant was setting up, a very
poor strategy as it has turned
out to be. It is too late to ask
these questions which are purely
matters of fact, at a time when
the defendant has no way of
answering them.
Their
Lordships then concluded on
this point as follows:
“I think this
is one case where the maxim
'omnia praesumuntur rite esse
acta" should apply. The
authenticity of the certificate
was not put in doubt. It was not
objected to in any way. The
evidence that it was issued
after a judicial sale conducted
on an order of court stood
unchallenged. So this court will
have to accept that everything
about it was properly done. This
maxim has been given legislative
blessing by section 37(1) of the
Evidence Decree, 1975,
(N.R.C.D.323) and it
provides: 'It is presumed that
official duty has been regularly
performed.' This presumption
works in favour of the party who
seeks to rely on the official
act in question. So the burden
is placed on the party who seeks
to impugn it to lead the
necessary evidence on fraud,
forgery, mistake and what have
you, the simple reason being
that he it is who is asserting
forgery, fraud,etc,etc. See
LEE
V. JOHNSTONE (1869) L.R. I Sc. &
Div. 426 (H.L.). But
if the plaintiff had made the
authenticity of the certificate
an issue at the trial, the
defendant would have been
compelled to satisfy the court
on its genuineness, without
relying on the presumption. But
I think I have said several
times over that there was never
an issue about the court and/or
the judge that heard the case or
the status of the judicial
officer who signed the
certificate so the defendant was
not obliged to establish
anything more; he could rely on
the presumption only.”
In his
submissions before us, the
appellant has not, in our view,
been able to surmount the three
main legal hurdles identified by
their lordships at the Court of
Appeal. viz (a) failure to plead
fraud, (b) failure to raise any
objections to, or cross examine
the respondents on, the
documents which was their root
of title and finally, (c)the
method of adducing and
presenting fresh evidence.
We thoroughly
endorse their lordships
reasoning on the fatality of
plaintiff’s failure to raise any
objection at the time of the
trial. In the case of
Kusi &Kusi v Bonsu [2010] SCGLR
60 at pg
101-2, I said,
“It is a
basic principle in evidence that
no evidence is necessary to
prove an admitted fact. This is
so basic as to admit of no
dispute. In fact, at the summons
for directions stage, it is only
unadmitted or denied facts that
are in issue and need to be
proved. This principle has found
expression in several decided
cases. Ollennu JSC said in the
case of
Fori v Ayirebi[1966]GLR627
at 647 SC
that,
“When a
party makes an averment and
that averment is not denied, no
issue is joined on that
averment, and that no evidence
need be led. Again, when a party
gives evidence of a material
fact and is not cross examined
upon it, he needs not call
further evidence of that fact.”
See also the
case of
Western Hardwood Ent Ltd v
West African Ent
Ltd[1998-99]SCGLR105.
On the
question of when objection to
admissibility of documents
should be taken this is what I
said at page 104 of the Kusi &
Kusi v. Bonsu case
“Tied to my
position of no need to prove
admitted facts is the provision
on when objections to the
admissibility of a document
should be taken Section 6 of the
Evidence Act, 1975(NRCD 323)
provides as follows:
1. In an
action, and at every stage of
the action, an objection to the
admissibility of evidence by a
party affected by that evidence
shall be made at the time the
evidence is offered,
2 An
objection to the admissibility
of evidence shall be recorded
and ruled upon.
The provision
reproduced above provides the
rules for admissibility of
evidence generally. Act 122 is
specific to the tendering of
registered title deeds. So that
if the specific procedure in Act
122 was not complied with,
section 6 of the Evidence Decree
guides the party against whom a
document is tendered, on what to
do and the time to do same. Not
raising the objection at that
point must be considered a
waiver of that right. One
therefore cannot be heard on
appeal to be raising the
objection he ought to have
raised at the trial… It appears
to me that the
plaintiff/respondent is seeking
to use the appeal process to
cure defects in his case as
conducted at the trial. It would
be an abuse of process to allow
him to do so.”
On the
question of failure to plead
fraud I have quoted their
Lordships treatment of it
earlier in this judgment and we
do not need to belabour the
point. Suffice it to emphasize
that forgery of a document ,like
fraud, ought to be specifically
pleaded with particulars and at
the trial ought to be
specifically proved. It can
therefore not be raised after
trial when the party against
whom fraud has been raised has
no way of answering same. We
endorse their lordships
rejection of the fraud that the
appellant sought to introduce.
See the case of
Nti v
Anima 1984-86 2 GLR 134
where Abban J.A (as he
then was) said
“incidentally, the plaintiffs
did not give particulars of the
fraudulent design by the parties
concerned. Not only that, they
failed to lead any evidence on
the so-called fraudulent design,
and yet they expected the
learned trial judge to make a
finding of fraud against the
defendants. I think the
plaintiffs and their counsel
demanded too much from the
learned trial judge and it is
appropriate that they they
should be reminded of the
oft-cited dictum of
Thesiger LJ in Davy v. Garrett
where the learned lord said
“In common
Law Courts no rule was more
clearly settled than that fraud
must be distinctly alleged and
as distinctly proved, and that
it was not allowable to leave
fraud to be inferred from the
facts.”
In seeking to
mount a challenge on the
genuineness of the documents
tendered by the defendant and to
set it up as fraudulent or
forgery, the plaintiff attached
some search results to the
statement of case submitted
before the court of appeal.
Their Lordships reaction to this
method of presenting evidence
was genuine surprise. They said
“……. Counsel
annexed photocopies of the said
searches to his address to this
court. To begin with, one
wonders what sort of procedure
counsel was employing in this
case. I would have thought that
if it was intended that the
search results should form part
of the record of proceedings the
proper thing was to seek leave
to use them as fresh evidence on
appeal, if other legal
requirements are met.”
In counsel’s
submission before us, even while
conceding that this method of
presenting fresh evidence was
not the best, counsel still
believes that in the interest of
justice this court ought to take
notice of this fresh evidence
and act accordingly. This is
what he said:
“ ………The
search results indicated that
there was no record of this
so-called High Court case of
John Adjeode v. Commey. I duly
filed the result of the searches
in the Court Of Appeal. The
Court of Appeal thought what I
had done was aberrant behavior.
With the greatest respect to the
Court of Appeal I resent its
condemnation of the method I
adopted. Section (sic)26 of the
Court of
Appeal rules1997 C. I. 19
comes into focus here.”
After quoting
Rule 26 Counsel concluded thus:
“Admittedly,
I fell foul of section
(sic)26(2) of C.I.19, but if as
appeared to the Court of Appeal,
as it seems to suggest, that the
result of the searches was
essential to the issues before
it, surely it had power under
secction (sic)26 (1) of C.I.19
suo motu to require that
evidence in the interest of
justice. I humbly submit that in
failing to do so the Court of
Appeal went wrong and as a
result miscarriage of justice
occurred: I humbly implore this
Hon. Supreme Court to put the
Court of Appeal right,”
The rule
regulating the adduction of new
or fresh evidence at the Court
of Appeal is Rule 26 of the
Court of Appeal Rules 1997, C.I.
19 which reads:
(1)
It is not open as of right to
any party to an appeal to adduce
new evidence in support of his
original case but, in the
interest of justice, the court
may allow or require new
evidence to be adduced; such
evidence shall be in the form of
oral examination in court, an
affidavit or a deposition taken
before an examiner or
commissioner as the court may
direct
(2)
A party may, by leave of the
court, allege any facts
essential to the issue that has
come to his knowledge after the
decision of the court below and
adduce evidence in support of
the allegation.
This rule has
been the subject matter of
discussion and interpretations
in several decided cases. See
Foli
vAgyaAtta(consolidated)[1976]1GLR194CA;
Karikari v. Wiafe[1982-83]; and
Apori Stoolv.
WorakeseStool1994]2 GBR629.
From all
these authorities what has been
settled as the principles for
considering the adduction of
fresh evidence while the case is
on appeal are:
(a) the
evidence to be led must not have
been known or available to the
applicant at the time of the
trial; (b) if it was not
actually known or available
during the trial, it must not be
such as could have been known
by diligent efforts; (c) it
should have influence on the
result of the case, though it
need not be decisive;(d) the
evidence must have been such
that if accepted, it would have
an important bearing on the
result of the case.
In the latest
and bench mark case on this
subject,
[Poku V Poku] 2007-2008]
SCGLR 996
the Supreme Court did not
only reiterate these principles,
but went ahead to construe “in
the interest of justice” as
found in the rule. In holding
one of the report the court
said,
”On
construction, the adduction of
fresh evidence “in the interest
of justice” as provided in rule
26(1) was clearly delineated in
26(2). Consequently, in an
application to lead fresh
evidence before the Court of
Appeal, the first criterion,
which an applicant ought to
establish, was whether the
evidence sought to be adduced,
was neither in the possession of
the applicant nor obtainable by
the exercise of reasonable
human ingenuity before the
impugned decision was given by
the lower court. It was only
after the first hurdle had been
surmounted, that the court
should proceed to determine the
other pertinent question of
whether or not the intended
evidence would have a positive
effect on the outcome. If the
first criterion is not met no
useful purpose would be served
by examining the other factors.”
Applying
these principles to the case
before us, the question is, was
the fresh evidence being
canvassed by the appellant i.e.
the results revealed by the
search and the various concerns
raised on the certificate of
purchase regarding case title
and signatories, etc, available
to the appellant or could it
have become available with due
diligence? The obvious answer to
this question is in the
affirmative. The fact is, the
respondent made mention of the
auction sale and the certificate
of purchase and the subsequent
deed of conveyance to him by
Palm Grove Ltd in his statement
of defence. He also went ahead
to tender all these documents at
the trial. Clearly, the
appellant had been put on notice
as to what documents the
respondent was relying on. If he
was doubtful of their
authenticity he had sufficient
time and information to check
and double check. If he chose to
be indolent the law will not
come to his aid. As Asiamah JSC
said in the Poku v Poku
case.
“It is a
salubrious principle of our
jurisdiction that a litigant
should have the opportunity of
being heard , of telling his
side of the story, of being free
to present evidence and argument
to buttress his case; but it is
also settled law and dictates of
common sense require also that
once these opportunities have
been extended to the litigant
but the litigant decides not to
avail himself of them within the
period of the trial, he would
not, on judicial considerations,
be permitted to come later and
plead for the reactivating of
the very opportunities he
declined to embrace. If such an
indulgence is given, the public
confidence in our judicial
system would be seriously put at
jeopardy and the resultant
consequence would be the
breeding of an inimical
infestation of a cancerous
judicial tumour in the very
fabric of our judicial system….”
The final
comment we will like to make is
on the method that the appellant
adopted to have this so called
fresh evidence on record. Rule
26 lays down the steps to take
to procure and have fresh
evidence admitted, and this did
not include attaching them to a
statement of case which will not
afford either the other party or
the court the chance to
challenge it through
examination. It was like
smuggling through the back
window what he failed to do
through the front door! No
wonder their Lordships at the
Court of Appeal deprecated this
method.
To conclude
it is our view that the findings
of fact made by their Lordships
at both the High Court and the
Court of Appeal were very much
supported by the evidence on
record and we do not see any
reason to disturb them. The
Court of Appeal rightly rejected
the fresh evidence and we
endorse that.
The appeal is
unmeritorious and same is
dismissed.
(SGD) P.
BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
(SGD) DR. S. K.
DATE-BAH
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD) R. C.
OWUSU (MS.)
JUSTICE OF THE SUPREME COURT
COUNSEL:
YVONNE
AMOATEY FOR THE APPELLANT.
RICHARD AMOFA
WITH HIM NANA SERWAAH GODSON-AMAMOO
FOR THE RESPONDENT. |
