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J U D G M E N T
DR. DATE-BAH, J.S.C:
The Plaintiff’s story, as set
out in his statement of claim,
was that he owned a piece of
land near Achimota, Accra, and,
around 1991, agreed with the
Defendant that he should
construct a building for the
Plaintiff on that piece of
land. The agreed price for this
service was 17 million cedis.
The Plaintiff paid, in 1991,
through his father, 14 million
cedis out of this agreed price
to the Defendant. The Plaintiff
claimed that by 1994 the
building had been roofed and he
put a caretaker into it, pending
the final completion of the
construction. When at this
point the Defendant demanded
payment of 3 million cedis,
being the balance of the agreed
contract price, the Plaintiff
rejected the demand, arguing
that by the terms of the
agreement the balance was to be
paid when the building had been
completed and the keys handed
over to him. The Defendant then
threatened to sell the building,
started showing prospective
purchasers around the property
and harassed the Plaintiff’s
caretaker.
The Defendant’s version of
events was different. He
averred that the land near
Achimota belonged to him and
that he was developing it into a
dwelling house when the
Plaintiff requested to buy it
through his father. He averred
further that the building was
completed in 1994, but the
Plaintiff failed to pay the
balance of the contract price,
namely the 3 million cedis
referred to above, in spite of
repeated demands. Therefore,
after waiting for a long period
without receiving payment, he
agreed with the Plaintiff’s
father, who acted as agent for
the Plaintiff in the
transaction, to rescind the
contract and refund the
Plaintiff’s money to him. In
accordance with this agreement,
he refunded 4 million cedis by
cheque to the father on 12th
September 1994. The Defendant
had subsequently offered to
refund the balance of 10 million
cedis to the Plaintiff’s
father. Although, he was
willing to accept the refund, he
had been prevailed upon by the
Plaintiff’s mother, who was the
Plaintiff’s lawful attorney in
this suit, to refuse the refund.
This was a classic example of
conflicting stories by the
parties to a suit and, in our
adversarial judicial process, it
was for the trial judge to make
findings of fact from the
pleadings and the evidence
adduced at the trial. This he
did, but some of his
determinations were reversed on
appeal by the Court of Appeal
and the central issue in this
case is whether the Court of
Appeal was right to reach a
conclusion on the facts that was
different from the trial
judge’s. The law governing what
the Court of Appeal may do in
such a situation is hackneyed
and need not be restated at
length. One quotation will
suffice.
In Zanyo v Fofie [1992]
GLR 475, Francois JSC expounded
the law as follow (at pp.
484-5):
“The appellate court's criticism
of the trial judge's performance
in scathing language, was as
unfortunate as it was unsound.
Most of it was based on the
difference in perception of the
evidence, and regrettably on the
law. Where a judge or trial
court arrives at a conclusion
based on the advantage of seeing
and hearing witnesses at first
hand, the appellate court should
be very slow to form a contrary
view. It is trite law that an
appellate court, when reviewing
the exercise of discretion by a
lower court, should not
interfere unless the court below
had applied wrong principles in
arriving at the result or taken
into account matters which were
irrelevant in law or had
excluded matters which were
crucially necessary for
consideration, or had come to a
conclusion which no court
properly instructing itself on
the law could have reached: see
Re Reed (A Debtor); Ex parte The
Debtor v. Official Receiver
[1979] 2 All E.R. 22, D.C. In
Gross v. Lewis Hillman Ltd.
[1969] 3 W.L.R. 787 at 798, C.A.
Lord Widgery cautioned that an
appellate court:
“… which sees only the
transcript and does not see the
witnesses, must hesitate for a
very long time before reaching a
conclusion different from that
of the trial judge as to the
credibility or honesty of a
witness."
In Adorkor v. Gatsi [1966]
G.L.R. 31 at 34, S.C., the
Supreme Court summed up
appellate powers as follows:
"The law governing this is that
while findings of specific facts
are within the competency of the
trial court alone, a finding of
fact which is an inference to be
drawn from specific facts found
is within the competency of an
appeal court no less than the
trial court; in other words, an
appeal court is in as good a
position as the trial court to
draw inferences from specific
facts which the trial court may
find."
Unfortunately what the Court of
Appeal attempted to do was to
set aside not inferences drawn
from facts but the very findings
on specific facts of the trial
judge. These factual conclusions
were supported to the hilt by
the evidence,…. In the
circumstances, there was no
lawful warrant for the appellate
court to differ from the
conclusions of the trial court.”
These words are directly
relevant to the case before us.
They require this Court to
examine the evidence adduced at
the trial to determine whether
the findings of fact made by the
trial judge are supported by the
evidence. If so, even if this
Court is inclined to interpret
or perceive the evidence
differently, it is not
permissible for it or any other
appellate court to interfere
with the Honourable trial
judge’s determination. The
grounds of appeal filed by the
Plaintiff which are based on
this trite law were Grounds 1
and 2 and they were to the
following effect:
“1. The learned Justices
erred in law by interfering with
the primary findings of the
trial Court which findings were
sufficiently supported by
concrete evidence on the record
and the credibility of the
Defendant.
2.
The learned Justices erred in
law when they relied on their
own assumptions to reverse the
findings of fact of the trial
Court instead of the
unchallenged evidence on
record.”
I will consider these first two
grounds together.
After the close of pleadings,
the issues set down for trial by
an Order dated 27th
March 1996 of the Honourable
trial High Court judge, Justice
Gbadegbe J, as he then was,
were:
“a. Whether or not
Defendant completed the building
in accordance with the contract.
b.
Whether Plaintiff failed to pay
the balance in breach of the
contract.
c.
Whether or not the contract
mutually was rescinded.”
In our view, the learned trial
judge then proceeded
conscientiously to determine
these issues on the basis of the
evidence adduced at the trial.
On the first issue, this is what
the learned judge had to say in
his judgment (at p. 99 of the
Record):
“The issues formulated for a
decision in my view revolve
around simple issues of fact. I
proceed first to consider
whether or not the building was
completed in accordance with the
contract? I have attended to
the evidence on the record and I
accept that related by the
plaintiff that at the time they
went into the property, it was
uncompleted. This means that
the plaintiff’s rejection of the
demand to pay the outstanding
balance of c3 million is a right
derived from the contract; that
is to say the defendant’s demand
was bad. On this point I wish
to say that I find from the
evidence that the plaintiff
through his attorney, the
mother, was genuinely concerned
with the purchase of the
property and anxious to
discharge his part of the
bargain. I think that having
paid up a very substantial
portion of the amount leaving a
paltry sum of c3 million, the
plaintiff’s interest could be
reasonably seen as being in the
completion of the works. On the
other hand, the defendant was
unable to impress me that he had
by 1994 duly completed his part
of the bargain by completing the
building. In my view, in all
probability if he had done so
the plaintiff would have paid up
the balance. I think that what
happened is that when the
defendant noticed that the
plaintiff had caused a caretaker
to reside in the property, he
tried to take advantage of this
to demand the balance although
clearly he must have been aware
that he (sic) time for payment
was not due. I think that since
the plaintiff insisted on his
contractual rights that should
have been the end of the demand
which no doubt was not in
accordance with the agreement
between them. I also accept the
evidence of the plaintiff and
his witness that at the time
P.W. 1 went into possession of
the disputed property, it was
uncompleted.”
This finding of fact made by the
learned trial judge that the
building was uncompleted at the
time the caretaker moved in was
challenged by the Court of
Appeal. Mrs Akoto-Bamfo JA made
the following pronouncement on
the issue (at pp.129 – 130 of
the Record):
“The learned judge found that
the building was not completed
in accordance with the terms of
the contract.
As noted, the
plaintiff was out of the
jurisdiction, he was at all
material times represented by
his father – his agent, who was
therefore present during the
negotiations, the plaintiff’s
attorney came into the picture
long after the terms had been
agreed upon. Since the
agreement was oral and the
plaintiff’s attorney denied any
knowledge of the terms of the
contract, for in an answer to
the question formulated thus:
“Q. Did your son tell you
that the uncle was to build a
completed house or a
semi-completed house for him.
A.
I do not know about the
agreement.”
It is obvious that the evidence
of the agent would have assisted
the court immensely. He was
not however called.
Furthermore, it is
not in dispute that P.W.1 the
caretaker was put into
occupation by the plaintiff and
she remained there for over 2
years. Significantly, the
defendant demanded the balance
after the caretaker had moved
into the building.
If the defendant was
to hand over the building to the
plaintiff upon completion and
the defendant had not completed
same, under which conditions did
the plaintiff put a caretaker
there? If the defendant had not
completed the building and
therefore could not have handed
same over to the plaintiff, he
would undoubtedly be responsible
for the security and other
arrangements. The fact that the
plaintiff posted a caretaker
there would, to my mind, lend
credence to the assertions of
the defendant that he indeed
completed the building in
accordance with the terms of the
contract.
The attorney
admittedly knew nothing about
terms of the agreement,
significantly it is the
plaintiff who put the caretaker
there.
The conduct of the
plaintiff in my view makes the
defendant’s story on the issue
more probable particularly in
the absence of the father whose
evidence would have assisted the
court.
The learned Judge
ought to have made a finding for
the defendant on the issue for
the evidence on record was such
that only one conclusion could
have been properly drawn; that
the building was completed in
accordance with the terms of the
contract. Dompreh v Adu 1984-86
1 GLR 655.”
We disagree, respectfully, with
this analysis. Indeed, in our
view, the learned Justice of
Appeal, by this analysis,
unlawfully invades the province
of the trial judge and displaces
him from his right to assess the
credibility of witnesses who
have appeared before him and to
determine what weight to accord
to the evidence of particular
witnesses in the light of his
assessment of their demeanour
and conduct in court.
There was, indubitably, evidence
on record which could support
the learned trial judge’s
finding of fact on this issue,
if he chose to believe it. We
refer in particular to the
evidence of the Plaintiff’s
attorney and that of the first
witness of the Plaintiff, that
is, the caretaker. The fact
that a particular appellate
court would prefer to give
greater weight to other evidence
on record does not entitle the
appellate court to reverse the
trial judge’s primary finding of
fact which is supportable on the
evidence.
Moreover, from the fact that the
Plaintiff’s caretaker was put in
occupation of the disputed
building, there is not only one
inference possible. Though the
inference made by learned Appeal
Court Justice was one of the
possibilities, another
reasonable inference could be
that the building was so near
completion that it was prudent
for the plaintiff to put in
occupation a caretaker to
safeguard his substantial
interest in the property.
Indeed, in the evidence of his
attorney, his mother, she said
(at p. 63 of the Record):
“A caretaker of the Plaintiff
was placed in the disputed
property for 3 years commencing
from the time he came on
holidays at which time the
workers had reached the ceiling
and he wanted someone to look
over the place to prevent theft
of the items.”
This would make sense, given the
fact that the Plaintiff had
already paid the bulk of the
contract price. Moreover, the
Defendant’s initial acquiescence
in the occupation by the
caretaker does not necessarily
connote his belief that the
construction was complete. He
could have been acquiescing in a
convenient arrangement that
saved him the cost of
maintaining security for the
uncompleted building.
In his Statement of Case, the
Defendant seeks to support the
Court of Appeal’s reversal of
the trial judge’s finding of
fact on this issue, saying:
“It is my respectful submission
that the Court of Appeal was
right in reversing the findings
of the trial judge because he
failed to consider and
appreciate the full effect of
the evidence given by P.W.1 and
chose merely to base himself on
a small portion of the evidence,
as indeed Counsel for Appellant
in the present Appeal has also
sought to do, quoting only a
small portion and conveniently
omitting the major part of
P.W.1’s evidence.”
This argument is untenable and
contains an admission which is
fatal to the Defendant’s case.
It admits that there was
evidence on which the learned
trial judge based his finding.
Once there was such evidence,
the trial judge’s finding should
ordinarily stand, even if the
appellate court, if it were the
trial judge, would have chosen
different pieces of evidence on
which to base its findings.
What weight to give to which
part of the evidence is for the
trial judge and, even if there
is room for an appellate court
logically to reach a different
conclusion on the evidence, this
does not necessarily mean that
there is a basis for reversing
the trial judge’s findings of
fact. The evidence might lend
itself to more than one
logically coherent
interpretation. The trial
judge’s interpretation cannot be
faulted simply because it does
not coincide with that of the
appellate court.
Finally, we do not accept the
Defendant’s argument, expressed
in his Statement of Case, that
this case falls within the
exception of the “the most of
glaring of cases” referred to by
Professor Kludze JSC in In Re
Okine (Decd); Dodoo and Anor. V
Okine and Ors [2003-2004]
SCGLR 582, at p. 607, where he
said:
“There is a long line of cases
to the effect that, even if the
appellate court would have come
to a different conclusion, it
should not disturb the
conclusion reached by the trial
court. This is because the
trial court is presumed to have
made the correct findings.
Therefore, where the evidence is
conflicting, the decision of the
of the trial court as to which
version of the facts to accept
is to be preferred, and the
appellate court may substitute
its own view only in the most
glaring of cases.”
We do not think that the facts
of this case bring it within
this category of the most
glaring of cases. For, as
Professor Kludze JSC himself
admitted in that same judgment
(at p.607):
“If the evidence can lead to two
or more plausible conclusions,
the conclusion of the trial
judge should prevail, even
though a different judge might
come to a different conclusion.”
We would thus allow the appeal
on grounds 1 and 2.
The third ground of appeal was
that the Court of Appeal had
erred in law by holding that the
contract for the building was
rescinded. The particulars of
error were set out as follows:
“(i) From the evidence
title to the property was vested
in the Plaintiff.
(ii) There was no
evidence that the Plaintiff
authorized any person to rescind
the contract on his behalf.
(iii) The Defendant’s
brother (Plaintiff’s father) who
allegedly rescinded the contract
on behalf of his son had denied
same.
(iv) The so-called c4
million part payment refund made
no reference whatsoever to the
contract in dispute.”
The fourth ground of appeal was:
“The learned Justices erred in
law by placing the burden of
proof on the Plaintiff to
disprove Defendant’s allegation
that the contract was rescinded
which allegation both the
Plaintiff, and the party who
allegedly agreed to rescind
rescinded the contract
vehemently denied.”
We will examine these grounds
together next.
The trial judge made the
following determination on this
issue of rescission (at
pp.100-101 of the Record):
“I now turn to the third issue
which relates to the question of
rescission. Before proceeding I
wish to state that from the
defendant’s pleading, his
version is that the rescission
was by agreement between him and
the plaintiff’s father, his
elder brother. I have no doubt
that for the defendant to
succeed based on the said
assertion there must be
mutuality between the two
contracting parties; for it is
only that which would have the
effect of discharging the two of
them from any future obligation
or further performance under the
contract of sale. The evidence
to my mind on this is quite weak
and I am of the clear opinion
that the contract was never
rescinded as the defendant
contends. I cannot imagine how
the father of the plaintiff
would agree with his brother to
resile out of a contract for the
non-payment of a paltry sum of
c3 million. I think this
assertion by the defendant is an
afterthought. When the said
evidence is looked at within the
context of our society, it looks
rather improbable for I cannot
imagine how an uncle who has
received c14 million out of c17
million from a nephew a person
who is like a son to him, would
walk out of a contract on the
mere ground that he has not been
paid c3 million more
particularly when at the time
that he purports to do so, he
the innocent party has already
completed his part of the
bargain. On the defendant’s own
evidence, at the time that he
purported to resile from the
contract, he had nothing more to
do, hence the breach if any by
the plaintiff could not have
been of a serious nature to
lawfully entitle him so to do.
I think that the defendant was
not truthful on this aspect of
the matter and indeed I must
observe that I have noted from
the proceedings that he was not
frank to the court. For
instance, whiles by his
pleadings, he by virtue of the
operation of the rules must be
held to have admitted the fact
of the contract sum being c17
million, in his oral evidence he
tries to portray the impression
that it was c24 million,
notwithstanding the fact that
the admission contained in the
pleadings also finds support in
his affidavit in support of an
application in his behalf dated
22/12/95. That he offered no
explanation for this sudden
change of events must be held
against him as demonstrating the
absence of candour on his part.
I think he only offered this to
rescue himself from his apparent
inability to honour the contract
of sale in respect of which the
action herein has been brought.”
This determination by the
learned trial judge was
criticized on appeal by Mrs
Justice Akoto-Bamfo JA. This is
what she had to say on the issue
of rescission (at pp 131-132 of
the Record):
“The defendant’s story was that
after waiting for about 2 years
without payment of the balance,
he agreed with the plaintiff’s
agent that the contract be
rescinded, that in pursuance of
the agreement, he issued a
cheque for 4 million cedis, the
cheque was drawn on the National
Investment Bank; the plaintiff
did not deny that a cheque was
issued, but claimed that it was
in respect of some business
transactions totally unconnected
with the contract.
The cheque was tendered in
evidence and even though in the
plaintiff’s reply, he gave an
indication that he would lead
evidence to show that cheque was
issued in respect of some other
business transaction, no such
evidence was led.
Since the plaintiff admitted
receiving the cheque, but
asserted that it was relation
(sic) to some other business
transaction, it was incumbent
upon the plaintiff to have
called evidence to that effect.
I am therefore of the view that
the learned judge fell into an
error when he held that the
defendant did not discharge the
burden placed on him, for when
the plaintiff admitted receiving
the cheque but claimed that it
was in respect of some other
business, it is my considered
view that the burden then
shifted onto him to lead
evidence, as he indeed indicated
he would. Having failed to
discharge the burden, the
learned Judge ought to have made
a finding against him on the
issue; he therefore erred when
he found that the contract was
not rescinded in the light of
the evidence adduced. This
ground of appeal also succeeds
The learned judge, as it were
ignored the evidence on record
and substituted his own notions
of what should have happened;
he seemed to have placed over
reliance on the blood relations
between the parties – for it was
established that the plaintiff’s
father was the senior brother of
the defendant; who is therefore
an uncle to the plaintiff and
brother-in-law to the
plaintiff’s attorney. For this
was what he stated “when the
said evidence was looked at
within the context of our own
society, it looks rather
impossible for I cannot imagine
how an uncle who has received 14
million cedis out of 17 million
cedis from a nephew, a person
who is like a son to him would
have walked out of a contract on
a mere ground that he has not
been paid 3 million.”
The learned Judge unfortunately
allowed extraneous matters to
come into play; the parties,
irrespective of the blood
relations, entered into a
contractual relationship, their
rights have to be determined
within the context of the terms
they voluntarily agreed upon;
their blood relationship has
nothing to do with the terms and
should therefore have assumed a
secondary role.”
It is these remarks of the
learned Justice of Appeal which
prompted the third and fourth
grounds of appeal. Her remarks
raise issues in the law of
evidence. The errors of law
complained of in the third and
fourth grounds, thus, relate to
those issues.
Since the Defendant claimed that
the admitted oral contract
between himself and the
Plaintiff had been rescinded by
mutual agreement, the persuasive
burden clearly was on him to
prove that assertion. Ei
incumbit probatio qui dicit, non
qui negat. Section 10(1) of
the Evidence Decree, 1975 (NRCD
323) provides that:
“For the purposes of this
Decree, the burden of persuasion
means the obligation of a party
to establish a requisite degree
of belief concerning a fact in
the mind of the tribunal of fact
or the court.”
This burden of persuasion
remains on the Defendant, even
if the evidential burden shifts
as a result of any assertion
made by the Plaintiff in
response to this claim. The
common law has always followed
the common sense approach that
the burden of persuasion on
proving all facts essential to
any claim lies on whoever is
making the claim.
The Defendant proved that he had
issued a cheque for 4 million
cedis to the Plaintiff’s
father. Was this fact
sufficient to discharge the
Defendant’s burden of
persuasion? From the fact alone
of the payment of the 4 million
cedis to the Plaintiff’s father,
it cannot, in our humble view,
be said that the only reasonable
inference possible was that the
Plaintiff and the Defendant had
agreed to rescind their
contract. It will be recalled
that an inference is defined in
section 18(2) of the Evidence
Decree 1975 as “a deduction of
fact that may logically and
reasonably be drawn from another
fact or group of facts found or
otherwise established in the
action.” Mrs. Justice
Akoto-Bamfo complained that an
alternative explanation for the
payment that the Plaintiff had
proferred had not been proved by
him. The learned Justice of
Appeal was referring to the
Plaintiff’s reply in which he
had pleaded as follows:
“4. In further response
to the said paragraphs Plaintiff
says that his father was never
authorized to rescind the
contract nor did he ever do so.
Neither did he collect c4
million a (sic) as refund from
Defendant.
5. Plaintiff shall at
the trial lead evidence to show
that the cheque of c 4 million
paid to his father was in the
course of business between the
Defendant and his brother
(Plaintiff’s father). Under
this “convenient” business
arrangement the Defendant
occasionally pays monies into
Plaintiff’s fathers accounts
which is subsequently disbursed
on Defendant’s instructions.
And this is exactly what
Defendant did on this occasion.”
But even if an evidential burden
was passed on to the Plaintiff
in order for this alternative to
be given serious consideration,
the burden of persuasion
remained throughout on the
Defendant to prove his claim of
rescission. The fact that the
Plaintiff did not prove his
alternative explanation did not
relieve the Defendant of his
burden of persuasion on the
issue of whether the contract
had been rescinded.
In assessing whether the burden
of persuasion had been
discharged by the Defendant on
the evidence on record, the
learned trial judge had the
prerogative to give what he
considered to be the appropriate
weight to the fact that 4
million cedis was paid to the
Plaintiff’s father. This
assessment of weight was to be
carried out alongside that for
the other evidence on the record
on this issue of rescission.
The evidence on the record on
the issue was pretty thin.
To help him determine this
matter of weight, the learned
trial judge referred to the
blood relationship between the
parties in order to facilitate
the assessment of the
probabilities regarding the
evidence adduced. We do not
consider that this was
impermissible. On the whole, we
do not see a justification for
disturbing the learned trial
judge’s finding of fact that
there had not been a rescission
of the contract. Thus, with
respect, we disagree with the
Court of Appeal’s conclusion
that the Defendant had
discharged his burden of
persuasion. The fact that the
Plaintiff did not discharge the
evidential burden cast upon him
in consequence of the averments
in his reply did not logically
imply that the Defendant had
discharged his burden of
persuasion on the issue of
rescission. The evidence that
he led on it was sparse and we
can understand why the learned
trial judge found against him on
the issue. In our view, the
Court of Appeal was, with
respect, in error in not making
a distinction between the burden
of persuasion carried by the
Defendant and the burden of
producing evidence cast on the
Plaintiff by the averments in
his Reply. By failing to adduce
evidence on his averments, he
was unable to establish that the
cheque was paid to his father as
part of the convenient business
arrangements alleged. His
failure to prove this, however,
did not detract from the
Defendant’s obligation to prove
the existence of the claimed
agreement to rescind the
original contract. The learned
trial judge’s obligation was to
look at the totality of the
evidence on the record on this
issue, whether adduced by the
Plaintiff or the Defendant, and
then to make his finding. There
was thus a basis for his
finding. We would accordingly
allow the appeal on grounds
three and four as well.
In the result, the appeal is
allowed on all four grounds.
DR. S. K DATE-BAH
JUSTICE OF THE SUPREME COURT
W. A. ATUGUBA
JUSTICE OF THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF THE SUPREME COURT
J. ANSAH
JUSTICE OF THE SUPREME COURT
R. T. ANINAKWAH
JUSTICE OF THE SUPREME COURT
COUNSEL:
Mr. L.S. Akuetteh for
Plaintiff/Respondent/Appellant.
Mr. Osei Nyame for
Defendant/Appellant/Respondent
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