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Property
- Declaration of title -
Recovery of possession -
Perpetual injunction - Deed of
assignment - Pledge of Property
– Evidence - Setting aside
decision -
HEADNOTES
the appellant
claim that sometime after he had
acquired Plot No Block 16, Old
Amakom Kumasi and built a house
thereon he fell into debt and
pledged his property to the
family of the late Kwabena Gyasi
for the sum of five hundred
pounds. According to the
pleadings filed on his behalf
the property was to be redeemed
after it had been in possession
of the defendant for some time
and that although the property
has been in possession of the
family for over 20 years, they
have “failed to redeem the
pledged
property to him.”
The writ of summons herein was
therefore taken out by the
appellant against the respondent
as successor to Kwabena Gyasi
for a
declaration of title to the
disputed property, recovery of
possession and perpetual
injunction, the respondent,
denied the allegation of a
pledge of the disputed property
and asserted a purchase by Yaw
Barima alias Yaw Gyasi,
According to the respondent who
claimed to be a successor to the
late Yaw Barima alias Yaw Gyasi,
the sale transaction was covered
by a deed
of assignment that was
registered at the Lands Registry
the High Court pronounced
judgment in favour of the
appellant Following the decision
of the trial court, the
respondent appealed to the Court
of Appeal which after a
consideration of the issues that
were raised in the appeal,
reversed the decision and
entered judgment in his favour
on the counterclaim.
HELD
In my view,
having regard to the plain words
of the relevant rule, the said
plea was not properly before the
court and as such it was not
competent for it to be
considered at all. In any event,
even if it was one that was
apparent from the pleadings of
the parties but not raised by
either of them in the appeal, in
raising it the court is obliged
by virtue of Rule 8 (9)
of the Court of Appeal Rules, CI
19 not to rest its decision
thereon without giving the
respondent sufficient
opportunity of contesting the
case on that ground. The result
then is that the appeal herein
fails and the decision of the
Court of Appeal in the matter
herein is affirmed.
STATUTES
REFERRED TO IN JUDGMENT
Court of
Appeal Rules, CI 19
Evidence Act,
NRCD 323 1975
High Court,
(Civil Procedure Rules) 2004, CI
47
CASES
REFERRED TO IN JUDGMENT
FOSUA v ADU-
POKU MENSAH [2009] SCGLR 310
WATT (OR
THOMAS) v THOMAS [1947] 1 All ER
582
NYAME v
TARZAN TRANSPORT
[1973] 1 GLR 8
MAHAMA v ISSA
[2001-2002] 1 GLR 694
BASSIL V
KABBARA [1966] G.L.R. 102
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE JSC:
COUNSEL
FELIX AMOAH
FOR THE APPELLANT.
KWABENA
POKU-MENSAH FOR THE RESPONDENT.
______________________________________________________________________
J U D G M E N
T
______________________________________________________________________
GBADEGBE JSC:
My Lords, the
question for our determination
in these proceedings is whether
the decision of the Court of
Appeal that reversed the
judgment of the trial High Court
in the mater herein was right
having regard to the evidence
contained in the record of
proceedings before us? In my
view since the proceedings
before the Court of Appeal was
in the nature of a rehearing,
the court was entitled after
hearing the parties and
considering the evidence
contained in the record of
proceedings to give in the words
of rule 32 of the
Court of
Appeal Rules, CI 19 “a
judgment and make an order that
ought to have been made, and to
make a further or any other
order as the case may require
including an order as to costs”.
The jurisdiction so conferred on
the court under rule 32,
however, must be exercised only
in cases where it comes to the
view after considering the facts
that the decision appealed from
is unreasonable or perverse.
See:
FOSUA v ADU- POKU MENSAH [2009]
SCGLR 310. In
such a situation, the court and
indeed any appellate court may
interfere with the findings of
fact of the trial court which
did not properly evaluate the
evidence or made wrong
inferences from the accepted
evidence.
Turning to
the appeal herein, the case of
the
appellant in the High Court was
as averred to in the statement
of claim filed in the matter
herein on 22 October 1998 that
sometime after he had acquired
Plot No Block 16, Old Amakom
Kumasi and built a house thereon
he fell into debt and pledged
his property to the family of
the late Kwabena Gyasi for the
sum of five hundred pounds.
According to the pleadings filed
on his behalf the property was
to be redeemed after it had been
in possession of the defendant
for some time and that although
the property has been in
possession of the family for
over 20 years, they have in the
words employed in paragraph 8 of
the statement of claim
“failed to redeem the pledged
property to him.” The writ
of summons herein was therefore
taken out by the appellant
against the respondent as
successor to Kwabena Gyasi for a
declaration of title to the
disputed property, recovery of
possession and perpetual
injunction.
Upon service
of the writ and the accompanying
statement of claim on
the
respondent, he submitted himself
to the jurisdiction of the trial
court and filed a statement of
defence by which he denied the
allegation of a pledge of the
disputed property and asserted a
purchase by Yaw Barima alias Yaw
Gyasi from the appellant for
the sum of five hundred pounds.
According
to the respondent who claimed to
be a successor to the late Yaw
Barima alias Yaw Gyasi, the sale
transaction was covered by a
deed of assignment that was
registered at the Lands Registry
on 7 September 1964. Having
denied the pledge on which the
appellant based his claim and
asserted a purchase by his
predecessor of the disputed
property, the respondent
counterclaimed for a declaration
of title and an order of
perpetual injunction.
The action
proceeded to a full scale trial
at the end of which the learned
trial judge of
the High
Court pronounced judgment in
favour of the appellant on
his claim and dismissed the
respondent’s counterclaim. In
his judgment, the learned trial
judge accepted the appellant’s
version of the matter in
preference to that of the
respondent. In the judgment, the
learned trial judge said among
others that since the appellant
denied the deed of assignment,
it was incumbent upon the
respondent to prove the
execution of the assignment by
the predecessor of the appellant
and that its failure amounted to
not having led the requisite
evidence in respect thereof.
Closely linked with this was the
opinion which the learned trial
judge expressed of the claim by
the respondent that the sale was
evidenced by a deed of
assignment in so far as the
deceased plaintiff was
concerned. According to him, the
reliance by the respondent on
the said deed was an attempt by
him to make a claim against the
estate of a deceased person and
having scrutinized the evidence
relating thereto in line with
settled judicial pronouncements,
he found it not credible and
accordingly rejected it as an
afterthought. As a result, he
accepted the evidence of the
appellant and his witness that
the transaction between the
parties concerning the disputed
property was a pledge and not a
sale.
Following the
decision of the trial court, the
respondent appealed to the Court
of Appeal which after a
consideration of the issues that
were raised in the appeal,
reversed the decision and
entered judgment in his favour
on the counterclaim.
The instant proceedings before
us are subsequent to the
lodgment of an appeal from the
delivery of the Court of Appeal
to this court. As said in the
opening paragraph of this
delivery, the task before us
is to discern from the facts
accepted before the trial court
whether the findings of the
learned trial judge were
unreasonable or perverse? An
examination of the record of
proceedings show that the
primary issue of fact to be
decided by the trial court was
as between the contending
parties whose version of the
nature of the transaction was
more probable? In their
decision, the learned justices
in a judgment read by Appau
JA which appears at pages
175 to 199 of the record of
proceedings thought that the
findings of fact were not right
having regard to the evidence.
The appellant in these
proceedings invites us to set
aside the decision of the Court
of Appeal and affirm that of the
trial court? Is the invitation
from the appellant to this court
one justified by the record of
proceedings? In this regard, we
are to discern from the decision
of the Court of Appeal if they
provided satisfactory reasons
for reversing the conclusions of
the trial court such as may
arise from material
inconsistencies in the evidence
and making wrong inferences from
established facts that have the
effect of the trial court not
taking proper advantage of
having heard or seen the
witnesses. See:
WATT
(OR THOMAS) v THOMAS
[1947] 1 All ER 582.
Applying the principle
enunciated in the case of
WATT v THOMAS
(supra), Azu Crabbe JSC
in the case of
NYAME
v TARZAN TRANSPORT [1973] 1
GLR 8 at 11 made the
following speech on the
function of appellate courts in
cases that turn on the findings
of fact:
“The Court is
loth to disturb a finding of
fact by a trial judge who has
had the advantage of observing
the demeanour of the witnesses,
“ their candour or their
partisanship, and all the
incidental elements so difficult
to describe which make up the
atmosphere of an actual
trial”………….. But it is far more
ready to reverse his decision in
a case which depends on
inferences from admitted or
undisputed facts.”
A careful
reading of the record reveals as
was found by the Court of Appeal
that while in his pleading in
support of his claim the
appellant said he pledged the
property to a family, in his
evidence at the trial what
emerged was a transaction
between him and an individual.
This change in the version of
the appellant between the
statement of claim and the
evidence is fundamental in
nature as not to be seen as a
variation but a conflict in his
case that has the effect of
disentitling him to relief on
the ground that he had departed
substantially from his case and
accordingly his case should not
have been given a favourable
consideration by the learned
trial judge. See:
MAHAMA
v ISSA [2001-2002] 1 GLR 694.
Then there is the evidence of
DW1, a plumber who testified
that he was engaged to do
plumbing works in the house.
According to him he carried out
his works between 1969 and 1970
and at the time the house was
not occupied by anyone. The
evidence tendered by DW1 was in
the main unchallenged and its
effect is that the appellant
could not have pledged a
non-income earning property to
the respondent’s successor; I
think it is more supportive of a
sale. Also in his judgment, the
learned trial judge was at pains
to condemn the reliance by the
respondent on the deed of
assignment, exhibit 1 on the
ground that it was a claim
against the estate of a deceased
person. While not disputing the
correctness of the principle
referred to in the cases cited,
the leaned trial judge
misconstrued their import in
relation to the case of the
respondent. The document which
was relied on by the respondent
was made in the life time of the
appellant and as such it cannot
come within the scope of the
principles expounded in the
cases referred to in the
judgment with which we are
concerned in these proceedings.
The meaning placed on the said
exhibit in terms of its
probative value by the learned
trial judge was wrong and in my
thinking if he had placed the
correct interpretation on it he
would have come to the
conclusion that the respondent
had discharged the burden on
him to lead evidence on the said
fact and that following its
introduction, the burden of
dislodging its effect shifted to
the appellant who unfortunately
appeared to base his challenge
thereto only on the bare
allegation that it was not an
act of his predecessor.
It is
observed that the respondent was
very candid in putting across
his case on the very first
opportunity he had to state his
case in paragraph 7 of the
statement of defence filed on 23
November 1995 by indicating
quite plainly the transaction on
which he relied and the
particulars of the deed of
assignment and the date of its
execution. This served as
sufficient notice to the
appellant and if indeed he
believed in his denial of the
execution of the document that
was tendered in evidence as
exhibit 1 why did he as the
learned justices of the Court of
Appeal commented in their
judgment not adopt a course of
conduct of his case at the trial
that would require the
signatures to be strictly
proved? I also refer to the
challenge to the signature of
the appellant that was raised by
the appellant which,
unfortunately was not pursued in
the course of the trial?
Perhaps, the substituted
appellant was not in a position
to lead any credible evidence in
support of the said challenge
but having raised the issue and
abandoned it, the inference
might be drawn that he came to
the realization that the
signature on the deed of
assignment was actually that of
the deceased. This, would tend
to render the appellant’s case
one not worthy of belief as the
challenge to the signature was
the pivot of his case.
Again,
exhibit 1 qualifies under
section 130 of the
Evidence Act, NRCD 323 of
1975 as an ancient document
and therefore excepted from the
requirements of the hearsay rule
such that once it is admitted in
evidence the burden of
dislodging its effect passes on
to the person against whom it
would operate in the absence of
any other evidence-the appellant
herein. I refer in this regard
in particular to the payment of
property rates under the name of
the assignee, which fact is
inconsistent with a pledge as in
pledges the ownership remains
throughout in the pledgor, it
being only a security for the
payment of a debt. I think that
the leaned justices of the Court
of Appeal were right in their
opinion regarding the erroneous
application of the rules of
evidence by the trial court and
its attendant effect in blurring
the appreciation of the quality
of the evidence that was placed
before him.
There is also
the
evidence which was not
properly evaluated by the
learned trial judge which
concerns the duration of the
pledge as alleged by the
appellant. In his statement of
claim as well as the evidence,
the appellant was unable to tell
when he made a pledge of the
property to the predecessor of
the respondent and yet tries to
impress the court that since the
pledge was more than twenty
years in duration, he was
entitled to redeem it. In my
opinion if indeed there was any
pledge as he asserted, he would
have remembered the year in
which the transaction was
entered into as it is crucial
not only in the determination of
the expiry of the twenty years
but also whether he dealt with
Yaw Gyasi or some other person
for the purpose of considering
the truth or otherwise of his
evidence that when he went to
redeem the property, the pledge
told him that he had purchased
the disputed property and that
if he so desired he could go to
court. The appellant in my view
was not being candid to the
court and was economical with
the truth on what I consider to
be crucial to his allegation of
a pledge.
On the whole,
a consideration of the entire
evidence in terms of section
80(2) of the Evidence Act,
leads one to the conclusion in
terms of the substance of the
rival versions placed before the
trial court, that the narration
of the respondent looked more
credible and the Court of Appeal
was right in preferring his case
to that of the appellant. I
think that exhibit 1 being a
document made by the original
parties to the transaction ought
to have been given greater
weight by the trial court having
regard to the circumstances
surrounding its making including
the giving of statutory consent
to the transaction by the
Minister of Justice and the oath
of proof before the Registrar of
the High Court, Kumasi which
acts being official in their
nature give rise to the
presumption of regularity under
section 37 of the Evidence Act,
NRCD 323 of 1975 in the absence
of any credible challenge
thereto in preference to the
unreliable oral testimony of the
appellant.
Turning to
the question which was posed at
the beginning of this judgment,
I proceed to answer it in the
affirmative, the effect of which
is that the Court of Appeal was
right in
setting aside the decision
of the trial court it being one
that was unreasonable and or
perverse. The above are in my
view sufficient to dispose of
the appeal herein but before I
end, I wish to refer to a point
of procedure that was raised by
the Court of Appeal on its own.
It relates to the issue of
limitation. In my view, it is
a plea which except it is raised
on the pleadings or arises from
the effect of the pleadings one
that ought not to be raised by a
court on its own motion. In its
essence, it is a plea of mixed
question of fact and law and to
be good must be raised in
compliance with the rules of
court. I refer particularly to
Order 11 rule s8 (1) and
11(1) of the
High
Court, (Civil Procedure
Rules) 2004, CI 47 in the
following words:
(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 out of the preceding
pleading.”
(11.1) A
party may in pleading raise any
point of law.”
See:
BASSIL V
KABBARA [1966] G.L.R. 102
In my view,
having regard to the plain words
of the relevant rule, the said
plea was not properly before the
court and as such it was not
competent for it to be
considered at all. In any event,
even if it was one that was
apparent from the pleadings of
the parties but not raised by
either of them in the appeal, in
raising it the court is obliged
by virtue of Rule 8 (9)
of the Court of Appeal Rules, CI
19 not to rest its decision
thereon without giving the
respondent sufficient
opportunity of contesting the
case on that ground.
The result
then is that the appeal herein
fails and the decision of the
Court of Appeal in the matter
herein is affirmed.
[SGD]
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
[SGD] G.T. WOOD
(MRS.)
CHIEF JUSTICE
[SGD]
J. V. M DOTSE
JUSTICE OF THE SUPREME
COURT
[SGD] ANIN YEBOAH
JUSTICE
OF THE SUPREME COURT
[SGD] V. AKOTO-BAMFO [MRS.]
JUSTICE OF THE SUPREME COURT
COUNSEL:
FELIX AMOAH
FOR THE APPELLANT.
KWABENA
POKU-MENSAH FOR THE RESPONDENT. |
