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YEBOAH, JSC:-
The
plaintiff/Appellant/Respondent
(who shall simply be referred to
as the respondent) commenced
these proceedings at the High
Court, Accra against the
defendants’
respondents/appellants (who for
sake of brevity shall be
referred to as the appellants)
for the following reliefs before
the High Court, Accra (Fast
Track Division)
a.
An order for peaceful and quiet
possession of the disputed
property as covenanted.
b.
Damages for breach of contract
In the alternative
c.
An order to comply with its
statutory duty of ejecting all
trespassers on the disputed
property being government land.
And against the 2nd,
3rd and 4th
defendants as follows;
a.
Recovery of possession
b.
Damages for trespass
c.
An order of perpetual injunction
restraining the 2nd,
3rd and 4th
defendants their assigns,
servants and all persons
claiming through them from
interfering with the disputed
property.
The respondent acquired the
disputed land from first
defendant (Lands Commission)
under a fifty year lease for a
fuel station. Prior to the
grant by the Lands Commission,
he had acquired the property
from the Kwartei family. It was
when the respondent presented
the deed of conveyance for
registration that it came out
that the disputed land belonged
to the Government of Ghana. The
respondent then sought to
regularize his title. The 2nd,
3rd and 4th
defendants trespassed unto the
land to the knowledge of the
first defendant. The respondent
therefore commenced these
proceedings at the High Court to
compel the first appellant to
carry as it were, the statutory
duty by ejecting all the other
appellants from the disputed
land to enable him put up his
fuel station.
The appellants in a statement of
defence stoutly denied virtually
all the averments in the
statement of claim and alleged
that they were not trespassers
on the disputed land. The
second respondent denied that,
its church building does not
form part of the appellant’s
land. The 3rd and 4th
appellants however, contended
that they occupied the land by
virtue of a license granted by
the 2nd appellant and
that the lands granted to them
do not form part of the
respondent’s land. The second
appellant, raised another
defence by contending that the
respondent did not acquire his
land bona fides for the simple
reason that it had already
acquired the land on which the
church stands from one Osei
Assibey in February of 2001 when
the land was bare and free from
any encumbrances whatsoever
whereupon the proceeded to erect
temporary structures initially.
The equitable defence of laches
and acquiescence was also
pleaded in support. The first
appellant, a statutory body,
however, contended that the land
in dispute forms part of land
acquired by the Government of
Ghana under an Executive
Instrument № L.S 506/68 dated
12/07/1968 for a public
cemetery. It went forward to
contend that as managers of the
disputed land it granted to the
respondent a fifty year lease to
commence from 1/05/2000. It
denied that it had ever dealt
with the 2nd and 3rd
appellants and contended that
they are trespasses on the
disputed land.
Due to the fact that the 2nd
and 3rd appellants
were disputing the identity of
the land, the trial court
appointed a surveyor to
ascertain whether the land in
dispute is the same. The survey
plan established that the land
in contention is the same land
being claimed by the parties
with slight shift but majority
of the land appears to be the
same. The composite plan of the
land was tendered to establish
the respective lands of parties.
After going through a trial the
learned High Court Judge
dismissed the respondent’s claim
and based its judgment on
Article 20, clause 5 of the 1992
Constitution. The respondent
lodged an appeal against the
judgment of the High Court and
had same reversed by the Court
of Appeal, the notable ground
for the allowance of the appeal
was the judge’s suo motu
application of Article 20(5) of
the 1992 Constitution which was
not raised by any of the partied
to these proceedings.
The appellants set out the
following grounds of appeal for
our consideration:
a.
The judgment is against the
weight of evidence.
b.
Their Lordships misinterpreted
and misapplied Article 20(5) and
(6) of the 1992 Constitution and
how the effect and impact of
same affected the
plaintiff/respondent’s
acquisition of his land from the
Government of Ghana via the
Lands Commission.
c.
The Court of Appeal wrongly and
unfairly applied the principle
in Kusi & Kusi v Bonsu
[2010] SCGLR at 60 in the
determination of the appeal to
the detriment of the 2nd
,3rd and 4th
defendants/respondents/appellants
and by so doing has occasioned
the 2nd , 3rd
and 4th
defendants/respondents/appellants
substantial miscarriage at
justice.
d.
The Court of Appeal wrongly
applied the principle in Dam
v Addo [1962] 2 GLR 200
with its findings that the trial
judge erred when he invoked
Article 20(5) and (8) of the
Constitution in the adjudication
of the matter before it.
The appellants have taken this
court through the evidence led
by the parties to demonstrate to
us that the Court of Appeal
unjustifiably reversed the
findings of facts made by the
learned judge in their favour.
It appears from the judgment
that the allowance of the appeal
by the Court of Appeal was not
based on the facts. The court
never reversed any of the
primary findings of facts made
by the trial judge and therefore
did not proceed to allow the
appeal by upholding the ground
of appeal which alleged that the
judgment of the High Court was
against the weight of evidence.
Whenever the appellant in an
appeal alleges that the judgment
is against the weight of
evidence, it behoves the
appellate court to review the
record and ascertain from the
records whether substantial
justice had been done. This
court has on several occasions
settled this proposition of law
and in the case of OPPONG
v ANARFI [2011] ISCGLR
556, at 565 stated as follows:
“There is a wealth of
authorities on the burden
allocated to an appellant who
alleges in his notice of appeal
that the decision is against the
weight of the evidence led. Even
though it is ordinarily within
the province of the trial court
to evaluate the veracity or
otherwise of a witness, it is
incumbent upon an appellate
court in such a case, to analyse
the entire record of appeal,
take into account the
testimonies and all documentary
evidence adduced at the trial
before it arrives at its
decision, so as to satisfy
itself that on the preponderance
of the probabilities, the
conclusions of the trial judge
are reasonable or amply
supported by the evidence”
Wood CJ in the case of
AGYEIWAA v P&T
CORPORATION [2007 – 2008]
2SCGLR 985 at page 989 also said
as follows:
“The well-established rule of
law is that an appeal is by way
of rehearing and an appellate
court is therefore entitled to
look at the entire evidence and
come to the conclusions on both
the facts and the law”
The Court of Appeal reviewed the
evidence in its entirety and we
are of the considered opinion
that this ground of appeal is
not supported in law and
accordingly dismiss same.
The main ground which the Court
of Appeal relied on to set aside
the judgment of the trial court
was the invocation of Article
20(5) and (6) of the 1992
Constitution. It was clear from
the judgment of the High Court
that the parties in settling
pleadings never raised any
constitutional provision to rely
on to make a case or defence.
None of them even faintly
referred to the said provisions
of the constitution. However,
the learned High Court judge suo
motu applied the said
provisions, after he did not
find any merits whatsoever in
the defence of the appellants to
give judgment to the appellants
based solely on the
constitutional provisions. This
was a major complaint before the
Court of Appeal which allowed
the appeal, on this legal point.
It should be noted that in civil
proceedings commenced by writ of
summons, the parties file
pleadings to guide the court to
know before the trial their
respective cases and the
evidence that may be led.
Parties are therefore confined
to their respective pleadings in
course of trials and would be
permitted to lead evidence
usually within the confines of
their pleadings. See HAMMOND
v ODOI [1982-83] 2GLR
1215 SC, Pleadings also assist
the court to know the real
issues and the applicable law to
be applied to the facts. A
judge is not permitted to suo
motu raise a point of law and
base his judgment on it. The
court, like the parties, is also
bound by the pleadings filed on
record, and pleadings guide both
the trial and appellate courts,
throughout the case. Before the
often-quoted case of ESSO
PETROLEUM CO. LTD v
SOUTHPORT CORPORATION [1956]
AC 218 HL was decided, SCRUTTON
LJ had cautioned trial judges in
the case of BLAY v
POLLARD & MORRIS [1930] I KB
628 CA at 634 as follows:
“Cases must be decided on the
issues raised on the record; and
if it is desired to raise other
issues they must be placed on
the record by amendment. In
the present case the issue on
which the judge decided was
raised by himself without
amending the pleading and in my
opinion he was not entitled to
take such a course”
Local cases like DAM v
ADDO [1962] 2 GLR 200,
BISSI v TABIRI
[1987-88] 1GLR 360 SC OLOTO
v WILLIAMS [1944] 10 WACA
23. BENNEH v THE
REPUBLIC [1974] 2 GLR 47 and
more recently GAVOR v
BANK OF GHANA [2013-2014] 2
SCGLR1081 affirm the basic
principle that a court of law is
not entitled to raise an issue
ex proprio motu outside the
confines of the pleadings, which
is inconsistent with and
contrary to what the parties
themselves had put forward
without allowing the parties the
opportunity to amend the
pleadings and thereby raising a
surprise in the trial. In this
case, the trial judge raised a
constitutional provision, when
none of the parties had raised
it as a point of law permissible
to be pleaded under Order II (1)
rule of the High Court (Civil
Procedure) Rules, CI 47 of 2004.
We are mindful of the
flexibility in the application
of Order II rule 8 of the
existing High Court [Civil
Procedure] Rules, 2004 CI47,
which states thus:
8(1) A party shall in any
pleading subsequent to a
statement of claim plead
specifically any matter, for
example, performance, release,
any limitation provision, fraud
or any fact showing illegality
a.
Which the party alleges makes
any claim or defence of the
opposite party not maintainable,
or
b.
Which, if not specifically
pleaded might take the opposite
party by surprise; or
c.
Which raises issues of fact not
arising of the preceding
pleading.
(2)
Without prejudice to sub rule
(1) a defendant to an action for
possession of immovable
property shall plead
specifically every ground of
defence on which the defendant
relies, and a plea that the
defendant is in possession of
the immovable property in person
or by a tenant shall not be
sufficient.
Indeed the above-stated rule is
the same as the Order 19 rule 16
of the repealed High Court
(Civil Procedure) Rules, 1954 (LN
140 A). Under the old rules,
which is the same as the new
rules, cases like ASARE v
BROBBEY [1971] 2 GLR 331
CA, NATIONAL OMNIBUS SERVICES
AUTHORITY v OWUO
Court of Appeal, 20th
August, 1969; digested in [1969]
CC 158 CA establish the
principle that if the point of
law raised would not take the
other party by surprise it must
be considered by the court,
regardless of the fact that it
was not pleaded. In the daily
administration of the law by the
courts, constitutional
provisions may be applied on a
regular basis but under this
particular circumstances, the
learned trial judge with due
respect, went beyond bounds and
offered the respondent no
opportunity whatsoever of being
heard on that point when he
based his judgment exclusively
on it.
Our adversarial system of
justice clearly frowns upon this
course. In the case of BISI
& ORS v TABIRI alias
ASARE [1984 – 86] 2 GLR 282
CA, the Court of Appeal per
Adade JSC (sitting as an
additional judge) after
subjecting most of the cases on
the principle above stated thus:
“The principle enunciated in
DAM v Addo [1962] 2
GLR 200 at 230, SC to the effect
that a court must not substitute
for a party a case contrary to,
and inconsistent with, that
which the party himself had put
forward by his pleadings and
evidence was clear and
unexceptional. The general
principles guiding the
application of that principle
deducible from the cases were
that;
a.
The new case was not pleaded
either expressly or by necessary
implication;
b.
The new case was raised after
obvious difficulties with, or
failure of the old case, the
party clearly turning a complete
somersault
c.
Sufficient notice of the new
case was not given, it was not
contested. It was raised either
at the address stage or on
appeal or by the court itself.
d.
The new case was irrelevant to
the resolution of the issues on
hand; and
e.
The new case was not just a
matter of interpreting and
giving effect to a document
relevant to the issue, and
properly tendered in evidence”.
It is thus clear that the
learned High Court judge’s
judgment was based solely on the
invocation of Article 20 clause
5 of the 1992 Constitution and
offended all the principles laid
down in the above case as the
case for the appellant had
failed after facing obvious
difficulties. The resort to the
provisions of the Constitution
and not allowing both counsel to
address him on it was clearly
erroneous and same was righted
by the Court of Appeal. Learned
counsel for the appellant has
not successfully in his written
submission raised any point of
law to show that the learned
justices of the Court of Appeal
were wrong in their application
of the law to the undisputable
facts in this case.
The appeal therefore lacks
merits and same ought to be
dismissed, even though other
grounds were argued by the
appellants, we think that the
grounds discussed could
sufficiently dispose of this
appeal.
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
DOTSE, JSC:-
I agree with the conclusion and
reasoning of my brother Yeboah,
JSC.
V. J. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
BAFFOE-BONNIE, JSC:-
I agree with the conclusion and
reasoning of my brother Yeboah,
JSC.
P. BAFFOE-BONNIE
(JUSTICE OF THE SUPREME COURT)
APPAU, JSC:-
I agree with the conclusion and
reasoning of my brother Yeboah,
JSC.
Y. APPAU
(JUSTICE OF THE SUPREME COURT)
PWAMANG, JSC:-
I agree with the conclusion and
reasoning of my brother Yeboah,
JSC.
G. PWAMANG
(JUSTICE OF THE SUPREME COURT)
COUNSEL
RAPH POKU ADUSEI FOR THE 2ND
– 4TH
DEFENDANTS/RESPONDENTS/APPELLANTS.
NARTEY TETTEH FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.
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