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Agreement -
Lease agreement - Estate
– Administration of the Estate
– Termination -
Non-payment of rent - Non
development - Adduce fresh
evidence – Whether or not the
evidence/document sought to be
adduced at this stage has at all
material times to and during
this suit been in the custody
and/or possession of the
Defendant/Applicant - Rule 26 of
the Court of Appeal Rules, 1997,
(C. I. 19) -
HEADNOTES
The Plaintiff
averred that the deceased, and
the Defendants entered into a
lease agreement duly signed,
sealed wherein the Defendants
leased the demised plot numbers
TDC 346/48/18 and 19 located at
the heavy industrial area near
Aluworks Tema, for a term of 60
years to the Plaintiff’s late
husband. Attempts by the
Plaintiff to have the said lease
transactions vested in the
personal representatives of the
Deceased, by the Defendants
failed, whereupon she caused the
said writ of summons to be
instituted on her behalf against
the Defendants. After trial, the
learned Circuit Court Judge
dismissed the Plaintiff’s claim.
Dissatisfied with the decision
of the Circuit Court, the
Plaintiff appealed to the Court
of Appeal However, before the
Court of Appeal could deliver
judgment in the appeal lodged
against the Circuit Court
decision by the Plaintiff, the
Defendants sought the leave of
the Court of Appeal to adduce
fresh evidence and this was
dismissed. Being dissatisfied
with the decision of the Court
of Appeal on the dismissal of
this application to adduce fresh
evidence, the Defendant
successfully obtained leave from
the Court of Appeal
HELD
Under the
circumstances, once it appears
certain to us that the Defendant
did not make any genuine, real
and strenuous efforts to look
for this fresh evidence during
the trial, the appeal herein
must fail. We have indicated
that, judgment was entered in
favour of the Defendants herein,
and since the fresh evidence was
at all times available during
the trial and no serious effort
was made to locate and tender
same at all material times, the
criterion set out eloquently in
Rule 26 of the Court of Appeal
Rules and in Poku v Poku
(supra) has not been made out.
In the premises, the
appeal herein against the Court
of Appeal judgment, dated 5th
June 2018 fails in its entirety
and is dismissed. The case is
remitted to the intermediate
appellate court for judgment to
be delivered in the substantive
appeal which had been adjourned
sine die.
STATUTES
REFERRED TO IN JUDGMENT
Court of
Appeal Rules, 1997, (C. I. 19)
Conveyancing
Act 1972 NRCD 175
Wills Act,
1971 (Act 360),
CASES
REFERRED TO IN JUDGMENT
Poku v Poku
[2007-2008] SCGLR 996
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DOTSE JSC: -
COUNSEL
OPOKU-WARE
BOATENG FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
OSAFO BUABENG
FOR THE
PLAINTIFF/APPELLANT/RESPONDENT
WITH HIM PATRINA DEFIA AND
STEPHEN SOWAH CHARWAY.
PREAMBLE
DOTSE JSC:-
This
interlocutory appeal raises
issues which relate to the
criteria or guidelines that an
appellate court such as this
Supreme Court must consider when
an appeal lies against the
refusal of the Court of Appeal
in allowing a party to
adduce
fresh evidence as is
provided for under
Rule 26
of the Court of Appeal Rules,
1997, (C. I. 19) and
expatiated further by the
decision of this Court in
Poku v Poku [2007-2008] SCGLR
996.
FACTS OF THE
CASE
The
Plaintiff/Appellant/Respondent
hereafter referred to as the
Plaintiff on the 7th
day of July, 1998, commenced a
suit in the Circuit Court, Tema
as the
Administrator of the Estate
of Ogyadu Obuadabang Larbi
(Deceased) against the
Defendants/ Respondents/
Appellants,
hereafter referred to as the
Defendants, claiming the
following reliefs:-
1. “A
declaration that the said
lease
agreement between TDC and
Ogyadu Obuadabang Larbi
(Deceased) on plot numbers TDC
346/48/18 and 19 is subsisting
and not terminated.
2. A
declaration that by his death,
the said lease property
automatically became part of the
deceased’s estate fully vested
in the Plaintiff to deal with.
3. An
order of injunction to restrain
TDC to allocate the land to any
other person or to enter same
either by themselves, their
servants, agents or anyone
claiming through TDC, or any
other person.” Emphasis
In an
accompanying Statement of Claim,
the
Plaintiff averred that the
deceased, and the Defendants
entered into a lease agreement
duly signed, sealed and
delivered on the 11th
day of March 1980 wherein the
Defendants leased the demised
plot numbers TDC 346/48/18 and
19 located at the heavy
industrial area near Aluworks
Tema, for a term of 60 years to
the Plaintiff’s late husband.
Attempts by
the Plaintiff to have the said
lease transactions vested in the
personal representatives of the
Deceased, by the Defendants
failed, whereupon she caused the
said writ of summons to be
instituted on her behalf against
the Defendants.
The
DefendantS on their part,
entered appearance and filed a
Defence in which they admitted
the lease, but averred that the
lease agreement between them and
the deceased husband of the
Plaintiff was
terminated as far back as 1985
for non-payment
of rent
and
non development of the plot
as per their paragraph 5 of the
defence.
DECISION BY
THE CIRCUIT COURT
After trial,
the learned Circuit Court Judge
dismissed the Plaintiff’s claim
in
the following terms:-
“From the
totality of evidence adduced by
Plaintiff, I do not think the
Plaintiff has discharged the
legal burden prescribed by law
particularly section 14 of the
Evidence Act. Having denied
the Plaintiff’s claim of the
existence of a lease agreement,
the entire burden of proof
albeit on the balance of
probabilities or the
preponderance of the evidence
lies squarely on the Plaintiff.
Within the meaning of the
Conveyancing Act, unless the
transaction forming the basis of
Plaintiff’s claim is exempted as
provided under the provisions of
Section 3 of Act 175, unless the
Plaintiff produced evidence of
the said lease in writing, her
burden of proof would not have
been discharged. That is why
from all the evidence, the
Plaintiff’s claim must fail and
it is hereby dismissed. Emphasis
APPEAL
AGAINST CIRCUIT COURT DECISION
TO COURT OF APPEAL
Dissatisfied
with the decision of the Circuit
Court, Tema, dated the 6th
day of April 2017, the Plaintiff
herein appealed against the said
decision to the Court of Appeal
as per
grounds of
appeal contained in the Notice
of Appeal filed by her on the 31st
day of May 2017.
However,
before the Court of Appeal could
deliver judgment in the appeal
lodged against the Circuit Court
decision by the Plaintiff, the
Defendants sought the leave of
the Court of Appeal to adduce
fresh evidence.
Indeed, as
per paragraph 12 of the
affidavit sworn and deposed to
by the Defendant’s Goff Opoku
Gyamfi who described himself as
Estate Officer, and filed on 18th
April, 2018 the following
depositions were made:-
12.
“That the Record of Appeal was
compiled and forwarded to the
Court of Appeal and subsequently
parties, filed their written
submissions to the court and
same has been fixed on 10th
of May 2018 for judgment to be
delivered.
In paragraphs
13, 14, 15 and 16, the Defendant
made a very strong case for the
adduction of fresh evidence in
the following terms:-
13.
“That the Applicant until
recently has decided to
digitized its operations by
scanning all its property files
which will become easy to search
and locate.”
14.
“That it was in the process of
scanning the property files when
somewhere in April 2018, the
file of Mr. Ogyadu Obuadabang
Larbi with Plot No.
IND/A/48/18-19 emerged and the
Legal Department of the
Applicant was informed of
it. The property file is
attached and marked as exhibit
“GOGI”.
15.
“That I have been informed and I
believe same to be true that the
information on the file
especially at folios 15 and 17
which show the letter of
termination will assist the
court in arriving at a just
decision of the process the
Applicant went through in having
the tenancy of the said plot
terminated.
16.
That this evidence has become
necessary to be adduced as fresh
evidence on appeal since the
main argument of the Respondent
(who is the Plaintiff herein) is
that the Applicant failed to
show any such termination.”
Emphasis
The Plaintiff
quite naturally opposed the
application to adduce this fresh
evidence as per paragraphs 15
and 19 of the affidavit sworn to
by Kumi Obuadabang Larbi in
opposition and filed on
24/5/2018 as follows:-
15.
“That the
evidence/document sought to be
adduced at this stage has at all
material times to and during
this suit been in the custody
and/or possession of the
Defendant/Applicant.
19.
“That the evidence sought to be
adduced does not fall within the
ambit permitted by the rules of
this Honourable Court, same
being documentary in nature.
“Emphasis
DECISION OF
THE COURT OF APPEAL UPON
RECEPTION OF ARGUMENTS TO ADDUCE
FRESH EVIDENCE
Following the
reception of arguments on the
adduction of fresh evidence by
the Defendants in terms prayed
for and referred to supra, the
Court of Appeal, Coram V. D.
Ofoe, B. Ackah-Yensu and S. G.
Suurbareh, (JJA’s) in a
brief ruling dated 5th
June 2018
dismissed the application in
the following words:-
“After
listening to both Counsel and
reading the processes filed and
the record of appeal, this is
an application that we should
refuse. Application accordingly
refused”. The appeal itself
is due for hearing which we had
adjourned sine die. Depending
upon the circumstances the
Registry should issue hearing
notice for the hearing of the
appeal.” Emphasis
LEAVE TO
APPEAL TO SUPREME COURT AND
GROUNDS OF APPEAL
Being
dissatisfied with the decision
of the Court of Appeal on the
dismissal of this application to
adduce fresh evidence, the
Defendant on 16th day
of July 2018 successfully
obtained leave from the Court of
Appeal
Coram:
Marful-Sau J.A (as he then was)
E. K. Ayebi J.A, and
Lovelace-Johnson JA, (as she
then was)
Following the
grant of leave, the Defendants
filed the following as the sole
ground of appeal.
“The learned
Justices failed to give due and
proper consideration to the
appellant’s application for
leave to adduce fresh evidence.”
From the
above sole ground of appeal, the
Defendants sought the setting
aside of the ruling of this
court dated 5th June
2018 and referred to supra.
ARGUMENTS IN
SUPPORT OF THE GROUNDS OF APPEAL
BY THE DEFENDANTS
Learned
counsel for the Defendants
Opoku-Ware Boateng anchored his
submissions on Rules 26 of the
Court of Appeal Rules 1997 C. I.
19 which provides as follows:-
26.
“New Evidence on Appeal
(1) It
is not open as of right to a
party to an appeal to adduce a
new evidence in support of the
original case but in the
interest of justice may allow or
require new evidence to be
adduced.
(2)
Evidence allowed under sub rule
(1) shall be in the form of an
oral examination in court, an
affidavit or a deposition taken
before an examiner or
commissioner who the court may
direct.
(3) 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 allegations.” Emphasis
On reception
of arguments, learned counsel
for the Defendants submitted
that, the justice of the case
required that the property file
on the lease transactions
between the parties herein which
has now been located and thus
available, be produced to settle
once and for all the issues
which ought to have been settled
during the trial. Learned
counsel made really strenuous
efforts in his arguments that,
the said property file was not
available during the trial
despite diligent and thorough
search for them at the time. It
was also contended by learned
Counsel that, the property file
was only recently located during
the digitization process of the
Defendants documents and
processes.
In support of
his arguments, learned counsel
for the Defendants referred to
the Supreme Court case of
Poku v Poku [2007-2008] SCGLR
996.
Learned
counsel therefore concluded
that, in order to arrive at a
fair and just decision, this
court should allow the appeal
for the adduction of the fresh
evidence as stated supra.
BY THE
PLAINTIFF
Learned
Counsel for the Plaintiff,
Osafo-Buabeng, also relied
heavily on the Supreme Court
case of Poku v Poku
supra, and contended that, the
evidence sought to be adduced on
appeal was at all material times
in the actual possession of the
defendants and same would have
been obtainable had the
defendants exercised some
diligence during the trial of
the case. It was indeed
argued by learned counsel for
the plaintiff, that had the
defendants exercised the same
level of diligence they
purportedly exercised during the
digitization process, they would
have found the property file
during the trial of the case
especially as the trial process
took a long time to be
completed.
Concluding
the arguments, learned counsel
invited the court to dismiss the
appeal.
ANALYSIS OF
LEGAL ISSUES RAISED
What are the
facts of the Poku v Poku
case supra? This was a
case in which the
Plaintiffs/Appellants therein
appealed against the leave
granted to the
defendants/respondents by the
Court of Appeal under Rule 26 of
the Court of Appeal Rules,
referred to supra, seeking to
adduce fresh or new evidence
before the Court of Appeal after
the trial High Court had given
judgment for the Plaintiffs.
By that
judgment, the will of the
deceased Francis Poku, was
declared invalid on the ground
that as a blind man, the Will
was not read and interpreted to
him before it was executed by
him as required by the
Wills
Act, 1971 (Act 360), S. 2
(6).
In a majority
decision, the Supreme Court held
as follows:-
“On
construction, the adduction of
fresh or new evidence in the
“interest of justice” as
provided in rule 26 (1) of the
Court of Appeal Rules, 1997 (CI.
19) was clearly delimited by the
facts delineated in rule 26 (2).
Consequently, in an
application to lead fresh or new
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
diligence or human ingenuity
before the impugned decision was
given by the lower court. It
was only when that 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 was not
met, no useful purpose would be
served by examining the other
factors.” Emphasis
From the
peculiar circumstances of this
appeal, the first point to be
noted is that the Defendants
herein at all material times had
judgment in their favour at the
trial Circuit Court.
Secondly, the
Defendants as a statutory body,
were in possession of all the
property files of all leases
granted by them to the lessees,
like the Plaintiff’s deceased
husband.
Thirdly, a
reading of all the processes and
the entire appeal record has
revealed that the Defendants did
not exhibit any diligence and
seriousness in the conduct of
the case at the trial court.
Finally, the
Defendants did not exhibit any
degree of professionalism, and
reasonableness in ensuring that
the property file in this case
was procured to help them in
prosecuting their case.
In other
words, the Defendants were not
able to establish that they did
all that was humanly possible to
locate the fresh document but
failed.
In all
fairness, the Defendants were
lackadaisical and sloppy in
their conduct of the case at the
trial and did not exhibit any
evidence of seriousness in their
bid to locate the said documents
which would have been very vital
to their case. That
notwithstanding, the Defendants
had judgment in their favour, at
the trial court and the logic
behind their application to
adduce fresh evidence beats our
imagination and is therefore
unreasonable. The justice of the
case in our opinion does not
require that the Defendants be
granted leave to adduce any
fresh evidence as prayed for.
Under the
circumstances, once it appears
certain to us that the Defendant
did not make any genuine, real
and strenuous efforts to look
for this fresh evidence during
the trial, the appeal herein
must fail.
We have
indicated that, judgment was
entered in favour of the
Defendants herein, and since the
fresh evidence was at all times
available during the trial and
no serious effort was made to
locate and tender same at all
material times, the criterion
set out eloquently in Rule 26 of
the Court of Appeal Rules and in
Poku v Poku
(supra) has not been made out.
In the
premises, the appeal herein
against the Court of Appeal
judgment, dated 5th
June 2018 fails in its entirety
and is dismissed. The case is
remitted to the intermediate
appellate court for judgment to
be delivered in the substantive
appeal which had been adjourned
sine die.
V. J.
M. DOTSE
(JUSTICE OF
THE SUPREME COURT)
N. S. GBADEGBE
(JUSTICE OF
THE SUPREME COURT)
G. PWAMANG
(JUSTICE OF
THE SUPREME COURT)
A.
M. A. DORDZIE (MRS.)
(JUSTICE OF
THE SUPREME COURT)
PROF. N.
A. KOTEY
(JUSTICE OF
THE SUPREME COURT)
COUNSEL
OPOKU-WARE
BOATENG FOR THE
DEFENDANT/RESPONDENT/APPELLANT.
OSAFO BUABENG
FOR THE
PLAINTIFF/APPELLANT/RESPONDENT
WITH HIM PATRINA DEFIA AND
STEPHEN SOWAH CHARWAY
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