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Evidence - Property -
Leasehold - Document - Burden
of proof and persuasion -
Whether defendant was right to
placed great reliance on the
leasehold document - Whether
learned trial judge was right to
uphold an objection to its
admissibility in the course of
the trial -Whether the plaintiff
was right to raised an objection
to the decision of the court
below on the admissibility of
the lease document -
HEADNOTES
This is an appeal from the
unanimous decision of the Court
of Appeal, which reversed the
decision of the trial High Court
and entered judgment for the
defendants/ appellants/
respondents herein on their
counterclaim. In view of the
fact that the two lower courts
differed on the issues of fact
which turned on the pleadings,
it is necessary for us as the
final appellate court to
interrogate the two decisions
for the purpose of determining
which of the said judgments can
be supported having regard to
the admitted evidence placed
before them. In this regard, we
are to consider the
probabilities which arise from
the rival versions of the
dispute on all the evidence
tendered by the parties and
contained in the record of
appeal herein on which our
jurisdiction in the appeal
herein has been invoked in the
nature of a re-hearing for the
purpose of determining that
which is more probable. This
requires a careful scrutiny of
the two judgments of the courts
below in terms of the burden of
proof and persuasion and as the
decision in both courts turned
on the question of the
admissibility of leasehold
agreement that was rejected by
the trial court (exhibit
“Rejected 3”), we are required
to turn our attention to the
question arising therefrom as
indeed, the appellants seek from
us in relation to ground one of
the notice of appeal before us
HELD :-
In the light of the foregoing,
we are of the opinion that the
learned justices of the Court of
Appeal came to the right
conclusion on the effect of the
evidence that the case of the
defendants was more probable
than that of the plaintiff. In
reaching this view of the matter
upon all the evidence, we are
not disregarding the very clear
reasons provided by the learned
justices of the court below for
the judgment on appeal to us.
But as we are in agreement with
them on the inferences reached
by them from the evidence
contained in the record of
appeal, we do not think that it
is necessary for us to repeat
those reasons. Having reached
the same conclusion as the
learned justices of the Court of
Appeal, we do not think it is
necessary to detain the precious
time of the court in considering
the cross-appeal of the
defendants and the same is
accordingly struck out. For the
above reasons, we disallow the
appeal and affirm the decision
of the Court of Appeal.
STATUTES REFERRED TO IN JUDGMENT
Conveyancing Act, NRCD 175
High Court Rules, LN 140 A
Evidence Act, NRCD 323 of
1975
CASES REFERRED TO IN JUDGMENT
Oppong v Anarfi [2011] 1
SCGLR 556
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
GBADEGBE, JSC:-
COUNSEL
GBADEGBE, JSC:-
This is an appeal from the
unanimous decision of the Court
of Appeal, which reversed the
decision of the trial High Court
and entered judgment for the
defendants/appellants/respondents
herein on their counterclaim. In
view of the fact that the two
lower courts differed on the
issues of fact which turned on
the pleadings, it is necessary
for us as the final appellate
court to interrogate the two
decisions for the purpose of
determining which of the said
judgments can be supported
having regard to the admitted
evidence placed before them. In
this regard, we are to consider
the probabilities which arise
from the rival versions of the
dispute on all the evidence
tendered by the parties and
contained in the record of
appeal herein on which our
jurisdiction in the appeal
herein has been invoked in the
nature of a re-hearing for the
purpose of determining that
which is more probable. This
requires a careful scrutiny of
the two judgments of the courts
below in terms of the burden of
proof and persuasion; and as the
decision in both courts turned
on the question of the
admissibility of leasehold
agreement that was rejected by
the trial court (exhibit
“Rejected 3”), we are required
to turn our attention to the
question arising therefrom as
indeed, the appellants seek from
us in relation to ground one of
the notice of appeal before us.
For reasons of convenience, the
parties shall hereafter be
referred to by the designation
that they bore in the trial High
Court.
In his judgment, the
learned trial judge after
setting out the facts placed
before him, rejected the version
of the defendants which was
planked substantially on a
leasehold agreement between the
1st defendant’s
predecessor in title and tenants
who have a coterminous interest
in the subject matter with the
plaintiff. The case of the 1st
defendant placed great reliance
on the leasehold document, which
was not accepted in evidence
when the learned trial judge
upheld an objection to its
admissibility in the course of
the trial at pages 392-394 of
the record of appeal. His
reasons for rejecting the
document, which was as a result
marked as “Rejected 3”
(not ‘Reject 3’) is that
firstly, it was not signed and
also that it contained
insertions in ink although
without any attestation.
Pausing here, we would like to
say that insertions in
type-written documents or any
document for that matter are not
required to be attested but
initialed by the maker. The word
‘attestation’ imports bearing
witness to the execution of a
document, as for example, in the
case of deeds and wills as part
of the requirements of formal
validity. We think that the
learned trial judge slipped when
he used “attestation”
instead of signed and would deal
with the matter on this
understanding. Consequent upon
the rejection of the said
document, the learned trial
judge basing himself solely on
the rejection of the leasehold
agreement did not attach any
value to the oral evidence
preferred by the defendants
which sought to establish the
possession of the property by
Azar and Aschkar under ‘Rejected
3’. In our view, having
rejected the leasehold document
and any oral evidence tending to
prove the facts recited therein
including the possession of the
property by the lessees as well
as acts derivable only from the
lease such as the payment and
receipt of rents, there was
little left of the defendants
case in the dispute which from
the evidence was fought by the
contestants on very tenuous
facts. In the said
circumstances, it is not
surprising that the learned
trial judge preferred the case
of the plaintiff to that of the
defendants when he came to
evaluate the pieces of evidence
led before him at pages 506 –
520 of the record of appeal.
Before the learned
justices of Appeal, the decision
of the learned trial judge on
the admissibility of the lease
document was overruled. Before
us in these proceedings, the
plaintiff has raised an
objection to the decision of the
court below on the admissibility
of the lease document that
appears in ground (1) of the
notice of appeal to which we
must first turn our attention.
We have carefully considered the
reasons provided by the learned
justices of the Court of Appeal
that are contained in the
delivery of Acquaye JA and are
satisfied that he expounded the
law on the matter correctly. In
the said judgment, the learned
justices at pages 150-151 of the
record of appeal came to the
conclusion that the leasehold
agreement satisfied the
conditions for its admissibility
under the applicable evidentiary
rules contained in the Evidence
Act, NRCD 323 of 1975 and
consequently admitted ‘Rejected
3’ in evidence. As it was a
rehearing, we think that having
disagreed with the learned trial
judge on the admissibility of
the said document, they should
have had it formally admitted
into evidence as an exhibit and
marked as such. We do not,
however think that their
omission so to do has any dire
attribute. In our thinking as
the document was a certified
true copy and had clearly
indicated thereon in ink on its
last page by the person before
whom it was proved, the
Registrar of Deeds that it had
been ‘Compared and verified with
the original’, the said document
had the mark of regularity
arising from section 37 of the
Evidence Act by virtue of the
fact the process of registration
of documents qualifies as an
official act. When section 37 is
read together with section 126
of the Evidence Act to which
reference was made by the
learned justices in their
judgment in the court below, the
error of the learned trial judge
in upholding the objection to
the leasehold document, which
had previously been tendered
without objection by the
plaintiff in application for
judgment under Order 25 of the
repealed High Court Rules, LN
140 A and in respect of which no
issue as to its authenticity was
raised on the pleadings becomes
quite apparent. We observe from
the absence of any challenge to
the authenticity of the said
leasehold agreement that parties
should not be enabled by courts
to raise challenges to the
admissibility of documents on
grounds that are not contained
in their pleadings particularly
in cases where from the rival
cases pleaded by them, there is
an indication by the other party
of its reliance on such a
document.
But that is not all. There
is the further requirement in
section 130 regarding ancient
documents to which the said
leasehold having been made as
far back as 07 March 1929
belonged. At the date that it
was being tendered at the trial
court on 06 June 2007, it was 78
years old - seventy-eight years
more than the required number of
years provided for in section
130 of the Evidence Act. In
our view, the insertions which
formed the basis of the
rejection of the document by the
learned trial judge that are
expressed in the words to wit, ‘where
the context admits shall include
the Revisionary….’ when
read together with the words
which appear before it and those
which come immediately
thereafter namely ‘which
expression’ and ‘for the
time being immediately expectant
upon the terms hereby created’
deal with matters that are
implied in any conveyance for
consideration as spelt out in
section 22 (1) of the
Conveyancing Act, NRCD 175 of
1975 as follows:
“In a conveyance for valuable
consideration there shall be
implied the covenants for right
to convey, quiet possession,
freedom from encumbrances and
further assurance in the terms
set out in Part One of the
Second Schedule.”
Although the lease in
question was executed in 1929,
section 22(1) of the
Conveyancing Act was just a
restatement of the position
prevailing under the Statute of
Frauds and therefore the mere
insertion of those words ought
not to have detracted from its
admissibility. In the
circumstances, we are of the
opinion that the learned
justices of the court below were
right when they overruled the
exclusion of the leasehold
document by the learned trial
judge. But before we end our
consideration of this aspect of
the matter, we are of the view
in regard to the insertion of
some writing in ink into the
agreement that a better approach
to the objection raised was to
have given effect to it without
the said insertion. Accordingly,
the ground of appeal numbered as
(1) and formulated as follows
fails:
“That the learned Justices of
the Court of Appeal erred in law
and on the facts by admitting
the Deed of lease tendered and
rejected by the
Defendant/Appellant/Respondent
at the trial court”
As the question of
admissibility of a document is
one of law for the judge who
presides at the trial of an
action, the formulation of
ground (1) by the appellant
should properly speaking have
left out the words ‘and on
the facts’. Although the
ground as expressed tended to
create the impression contrary
to section 1(1) of the Evidence
Act that questions of
admissibility may turn on facts,
as was the unfortunate
impression created that the
rejection of the document in the
trial court was done by the
defendants. We have in our
determination of the issues
raised in the appeal herein
construed ground (1) to mean
that the learned justices of the
Court of Appeal erred in law
when they admitted the said
exhibit. We are hopeful that by
adopting this approach, we
occasion no injustice to the
respondent as both parties
contested the appeal on the
common understanding that it
concerns a question of law
whether the learned justices of
the Court of Appeal were right
in admitting “Rejected 3.”
Having had the document
admitted into evidence, we think
that it was proper for the
learned justices of the Court of
Appeal to take it into
consideration before reaching a
decision on the appeal before
them. Taking the said document
into account, we are of the
opinion that the possession of
the land by persons through whom
the plaintiff claimed was
consequent upon its execution as
pleaded by the defendants. There
is also the fact that although
the learned trial judge for
reasons which are obviously in
error rejected the evidence of
the defendants based on acts
unequivocally performed under
the leasehold agreement
including possession of the land
by lessees and the receipt of
rents from them which properly
form part of acts which in
equity constitute part
performance thereby rendering
the agreement exempt from the
strict requirements of a writing
under sections 1 and 2 of the
Conveyancing Act, NRCD 175. In
our opinion, had the learned
trial judge properly adverted
his mind to the position of the
law on acts such as part
performance, he would in all
probability have reached a
different view of the facts as
the totality of the acts
performed by the lessees under
the agreement rendered the
evidence of the plaintiff to the
contrary inherently improbable
when tested in the light of
recent acts in relation to the
disputed property. Indeed, the
following passage from his
judgment at page 514 leaves us
in no doubt that but for the
rejection of the lease document,
which resulted in his
misapprehension of the value to
be attached to the oral evidence
of the defendants in support of
acts done by the lessees
(through whom the plaintiff
claims), the learned trial judge
would not only probably have
reached a different view of the
matter but in reality have
decided in favor of the
defendants:
“Had the lease document not been
rejected, defendant’s claim of
possession of the building, at
least the ground floor for a
period of 50 years in the first
place would have been well
grounded. This would have been
so because of the occupation by
Obaamra’s lessees namely Azar
and Aschkar. But since the lease
document was rejected, the
defendant’s claim of possession
must fail.”
We venture to say that the
above words which fell from the
lips of the learned trial judge
brought the matter within the
scope of section 5(3) of the
Evidence Act and entitled the
learned justices of the court
below to set aside the judgment
of the trial court on the ground
that the ends of justice were
not well served by the erroneous
exclusion of the lease document.
See: Oppong v Anarfi
[2011] 1 SCGLR 556. It is clear
that the exclusion of the
document from evidence was the
foundation of the outright
rejection by the learned trial
judge of oral evidence
concerning the said agreement
and must have occasioned great
prejudice to their case, a
situation which as hereinbefore
alluded to in this delivery is a
proven instance of miscarriage
of justice within the
contemplation of section 5 (3)
of the Evidence Act. As the
leasehold agreement is part of
the exhibits contained in the
record of appeal, having
overruled its erroneous
exclusion from the evidence, the
learned justices of the court
below acted rightly when they
took it into account before
determining the appeal before
them. We think that by section
5(3) of the Evidence Act, the
mere erroneous exclusion of
evidence at a trial is not a
sufficient ground for setting
aside the judgment founded
thereon, the appellate court is
required from the words by which
the section is expressed to go
further and consider whether the
erroneous exclusion resulted in
a miscarriage of justice.
There is the issue
relating to the defendant’s
inability to produce any
document from which their
predecessor derived title before
making the grant of a lease to
the plaintiff’s predecessors.
The fact that persons through
whom the plaintiff derived
title-Obaamra’s lessees
acknowledged her as the owner of
the disputed property, estops
the plaintiff by conduct within
the scope and extent of section
26 of the Evidence Act from
contending to the contrary and
indeed, it being a matter that
falls under conclusive
presumptions, we are also
precluded by section 24 of the
Evidence Act from considering
any evidence contrary to the
conclusively presumed fact.
Reference is made to sections
24 and 26 of the Evidence Act as
follows:
(24) “When the basic facts that
give rise to a conclusive
presumption are found or
otherwise established in the
action, no evidence contrary to
the conclusively presumed fact
may be considered by the
tribunal of fact.
(26) Except as otherwise
provided by law, including a
rule of equity, when a party
has, by his own statement, act
or omission, intentionally and
deliberately caused or permitted
another person to believe a
thing to be true and to act upon
that belief, the truth of that
thing shall be conclusively
presumed against that party or
his successors in interest in
any proceedings between that
party or his successors in
interest and such relying person
or his successors in interest.”
Then there is section 27
of the Evidence Act which in our
opinion also has some relevance
to the action herein, which from
the case of the defendants
raises the relationship of
landlord tenant between them and
the plaintiff’s predecessors in
title who were lessees of
Obaamra. Section 27 of NRCD 323
provides as follows:
“Except as is otherwise provided by
law, including a rule of equity,
against any claim by a tenant
the title of the landlord at the
time of the commencement of
their relationship is
conclusively presumed to be
valid.”
In our view, when sections
24, 26 and 27 I are read
conjunctively the case of the
plaintiff totally crumbles as we
are statutorily barred from
giving consideration to a
contrary view of the matter; we
can only reach the decision that
the defendants’ predecessors in
title are the owners of the
disputed property.
In the light of the
foregoing, we are of the opinion
that the learned justices of the
Court of Appeal came to the
right conclusion on the effect
of the evidence that the case of
the defendants was more probable
than that of the plaintiff. In
reaching this view of the matter
upon all the evidence, we are
not disregarding the very clear
reasons provided by the learned
justices of the court below for
the judgment on appeal to us.
But as we are in agreement with
them on the inferences reached
by them from the evidence
contained in the record of
appeal, we do not think that it
is necessary for us to repeat
those reasons. Having reached
the same conclusion as the
learned justices of the Court of
Appeal, we do not think it is
necessary to detain the precious
time of the court in considering
the cross-appeal of the
defendants and the same is
accordingly struck out.
For the above reasons,
we disallow the appeal and
affirm the decision of the Court
of Appeal.
N. S. GBADEGBE
(JUSTICE OF THE SUPREME COURT)
W. A.
ATUGUBA
(JUSTICE OF THE SUPREME COURT)
J. V. M. DOTSE
(JUSTICE OF THE SUPREME COURT)
ANIN YEBOAH
(JUSTICE OF THE SUPREME COURT)
A. A. BENIN
(JUSTICE OF THE SUPREME COURT)
COUNSEL:
KWAKU ADDEAH FOR THE
PLAINTIFF/RESPONDENT/APPELLANT.
S. KWAMI TETTEH WITH HIM
KWAMI ADOBOR FOR THE DEFENDANTS/
APPELLANT/ RESPONDENTS AND
CR0SS APPELLANTS. |
