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Agreement
-Land - Interpretation of
contents – Enforcement of the
terms of agreement - Interest at
the prevailing bank rate -
Capacity to institute the
present action – Documentation
on land void for uncertainty -
Whether or not plaintiff is the
head of the Ayaa Kwabla family
and as such can sue in respect
of the land described - Whether
or not the Defendant signed an
agreement with Plaintiff to pay
him monies for the use of his
land - Whether Defendants were
put under duress to sign the
agreement of 29th
September 1993 and if so what
was the nature of the duress
HEADNOTES
In its Judgment dated 28th
February, 2008, the Court of
Appeal dismissed the appeal of
the
Defendant/Appellant/Appellants
(hereafter referred to as
Appellant) lodged against the
Judgment of the High Court The
Respondent claimed the following
reliefs in the High Court: An
interpretation of the contents
of the agreement reached between
the parties on 29th
September 1993; An order to
enforce the terms of the
agreement;
Interest at
the prevailing bank rate on the
amount to be paid since 30th
September 1993.The Appellant
counter-claimed for: A
declaration that the Plaintiff
had no capacity to institute the
present action; A declaration
that to the extent that the
grant evidenced by document No.
506/84 affects the Defendants’
land it is void and of no
effect; A declaration that the
agreement dated 29th
September is void for
uncertainty or in the
alternative a declaration that
no payment is due thereon from
the Defendants. The trial court
entered Judgment for the
Respondent on the agreement to
the effect that the Appellants
had agreed to pay rent of ¢2000
per acre for the Respondents’
200 acres of land and also pay
compensation for any more
residential plots encroached
upon by the Respondents The
Appellants appealed to the Court
of Appeal
HELD
At the trial,
the appellant did not go beyond
tendering the Respondent’s title
deed and leading evidence to
show discrepancies in the date
of the alleged gift of 1979 and
the site plan thereon. They
failed on the face of the deed
to prove the forgery or who the
culprits of the alleged forgery
were. I find nothing on the
record on the basis of which
forgery can be said to have been
committed and I will again
dismiss this ground of appeal.
The grounds of appeal are
unmeritorious and the appeal
which fails in its entirely is
dismissed.
STATUTES
REFERRED TO IN JUDGMENT
Supreme Court
Rules CI 16
Evidence
Decree, (1975) NRCD 323
Criminal
code, 1960 (Act 29
CASES
REFERRED TO IN JUDGMENT
Akufo-addo v.
Catherine [1992] 1 GLR 377 SC,
Nyikplorkpo
v. Agbedotor [1987-88]
1GLR 165
Pau On v. Lau
yui long [1979] 3 ALL ER 65.
Universal
Semtinel [1993] 1 AC 366
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BROBBEY, JSC:
COUNSEL
W.A.N.ADUMUA-BOSSMAN FOR THE
DEFENDANTS/APPELLANTS/APPELLANTS
K. FREMPONG
BOADU FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
BROBBEY, JSC:
In its Judgment dated 28th
February, 2008, the Court of
Appeal dismissed the appeal of
the
Defendant/Appellant/Appellants
(hereafter referred to as
Appellant) lodged against the
Judgment of the High Court
presided over by Victor Ofoe J.
(as he then was).
The
Plaintiff/Respondent/Respondent
(hereafter referred to as the
Respondents) claimed the
following reliefs in the High
Court:
1.
An interpretation of the
contents of the agreement
reached between the parties on
29th September 1993;
2.
An order to enforce the terms of
the agreement;
3.
Interest at the prevailing bank
rate on the amount to be paid
since 30th September
1993.
The Appellant
counter-claimed for:
1.
A declaration that the Plaintiff
had no capacity to institute the
present action;
2.
A declaration that to the extent
that the grant evidenced by
document No. 506/84 affects the
Defendants’ land it is void and
of no effect;
3.
A declaration that the agreement
dated 29th September
is void for uncertainty or in
the alternative a declaration
that no payment is due thereon
from the Defendants.
At the close
of pleadings the following
issues were set down for trial
on the 13th of March
2001:
1.
Whether or not plaintiff is the
head of the Ayaa Kwabla family
and as such can sue in respect
of the land described in
paragraph one of the statement
of claim;
2.
Whether or not the Defendant
signed an agreement with
Plaintiff to pay him monies for
the use of his land;
3.
Whether or not the Defendants
have paid the said money to the
Plaintiff apart from the
¢5,000,000.00 they paid as
deposit;
4.
Whether Defendants were put
under duress to sign the
agreement of 29th
September 1993 and if so what
was the nature of the duress;
5.
Any other issue arising out of
the pleadings.
At the trial
the Respondent testified and did
not call any witness. The 2nd
Appellant also testified for the
defence without calling any
witness. The trial court entered
Judgment for the Respondent on
the agreement to the effect that
the Appellants had agreed to pay
rent of ¢2000 per acre for the
Respondents’ 200 acres of land
and also pay compensation for
any more residential plots
encroached upon by the
Respondents. To this end, the
trial Court ordered a survey to
be conducted to ascertain the
number of residential plots
encroached upon.
The
Appellants appealed to the Court
of Appeal on the following
grounds:
“1. The
Judgment is against the weight
of evidence;
2.
The learned trial Judge erred in
failing to consider adequately
whether or not the Odai Ntow
family made any grant of land to
the Plaintiff’s father in 1979;
3.
The learned trial Judge erred in
not dismissing the Plaintiff’s
case on the ground that Exhibit
C is void for uncertainty.”
The
Appellants were granted leave to
argue additional grounds
formulated as follows:
“1. The
learned trial Judge erred by
failing to make any primary
finding of fact to the
respective boundaries of the
alleged share-out of Odai Ntow
family land amongst the various
member beneficiaries and the
Court further erred by finding
that the family gave any land to
Ayaa Kwabla or Korbla in a
share-out of family land in
1979;
2.
The learned trial Judge erred in
his investigation of LR No.
506/1989 since he confined his
analysis to signatures alone
without giving sufficient due
weight to:
a.
The Defendants allegation and
supporting evidence of
backdating the Deed;
b.
The discrepancy between the
nature of that Deed and the
nature of the Lands Commission’s
consent and concurrence endorsed
thereon;
c.
The discrepancy between the
Plaintiff’s tax clearance
certificate and the endorsed
consent and concurrence of the
Lands Commission thereon;
3.
By making the Defendants atorn
tenancy to him as head of Ayaa
Kwablah’s branch family on the
terms contained in Exhibit C,
the Plaintiff and or his branch
family unlawfully took advantage
of their own wrongdoing at the
expense of the innocent
Defendants, and consequently the
resulting tenancy agreement
Exhibit C was null and void;
4.
The learned trial Judge erred by
failing to appreciate the
Defendants made out a valid case
of duress by economic pressure
on the part of the Plaintiff,
with the aid of the Lands
Commission’s Executive
Secretary, the author of Exhibit
D and hence that the agreement
contained in Exhibit C was for
this further reason null and
void;
5.
The composite plan directed by
the Judgment itself was to be
made ex post facto by a surveyor
agreed by the parties, or
alternatively by the Regional
Chief Surveyor, was on the
contrary made by a surveyor
neither known nor chosen by the
Defendants thereby rendering the
resulting composite plan a one
sided or hearsay item of
evidence and inadmissible.”
In this
Court, the Appellants filed only
one omnibus ground of appeal
that the Judgment is against the
weight of the evidence. They did
not file any additional grounds,
neither did they seek leave to
argue any additional grounds.
Out of this single omnibus
ground, they carve out five
“aspects” of the ground. The
Respondent is uncomfortable with
this procedure and cited Rule 6
sub-rule (6) of the Supreme
Court Rules CI 16 which provides
as follows:
“The
appellant shall not, without the
leave of the Court, argue or be
heard in support of any ground
of appeal that is not mentioned
in the notice of appeal”.
The
authorities are replete on the
principle that where an
Appellant appeals that the
Judgment is against the weight
of the evidence, the Court is
bound to consider
comprehensively the entire
evidence before coming to a
conclusion on the matter.
IN AKUFO-ADDO
V. CATHERINE [1992] 1 GLR 377
SC, (holding 3) the court held
that ‘where the appellant
exercised the right vested in
him and appealed against the
judgment on the general ground
that the judgment was against
the weight of evidence, the
appellate Court had jurisdiction
to examine the totality of the
evidence before it and come to
its own decision on the admitted
and undisputed facts’.
Counsel for
the Appellant appears to have
circumvented this mandatory rule
by craftily drawing the Court’s
attention to what he calls
aspects of the same ground which
in fact can qualify as separate
and distinct grounds. It appears
that once the omnibus ground is
stated the Court is invited to
look at the totality of the
record before it.
The appeal in
this Court raises three
fundamental issues as follows:
1.
Whether or not this Court can
find sufficient basis to declare
which of the parties has title
to the land;
2.
Whether or not the Respondents’
indenture covering the land is
forged;
3.
Whether or not the Appellants
were under any form of duress
when they signed Exhibit C.
The Appellant
in the fifth aspect of the
Judgment going against the
weight of evidence argues that
both the Court of Appeal and the
trial High Court erred by
failing to appreciate that since
the Respondent’s case was in
effect discredited shambles the
Court should have dismissed it
and Appellant’s Counterclaim
upheld, and further that the
1981 lease and site plan ex. 1
and the untendered variation
thereof in 1991 prevailed and
stood intact as describing the
land, the true subject matter of
the litigation. They are clearly
seeking to raise the issue of
ownership of the land in
dispute. Marful Sau JA, when a
similar issue was raised in the
Court of Appeal said “I have
carefully examined the above
additional grounds argued…. I
have a problem with ground (b)
of the original grounds of
appeal which is that the learned
trial erred in failing to
consider adequately whether or
not the Odai Ntow family made
any grant of land to the
Plaintiff’s father in 1979…..”
and dismissed this ground thus
“This ground I find does not
arise from the issues agreed for
trial and as such does not
emerge from the issues that were
tried by the Court below”. The
Appellant on the other hand
argues that the issue could have
conveniently been raised at the
trial and the pleadings on the
record could have supported
same. In the alternative the
issue could have been
accommodated under the omnibus
issue “Any other issues arising
out of the pleadings”. When I
read the respective cases of the
parties, the first issue that
jumped at me was one leading to
the declaration of title. To my
surprise neither of the parties
found it a relevant issue to
their respective cases. Nothing
in the reliefs endorsed on the
writ of summons, statement of
claim or counter claim suggested
anything close to that relief.
The
Appellant’s argument that this
could have been subsumed under
that omnibus issue leads me to
ask what evidence was adduced by
either party to have enabled the
trial High Court to make any
pronouncement on it if at ll.
Clearly the Appellant is asking
for a declaration of title in
his favour. In NYIKPLORKPO V.
AGBEDOTOR [1987-88] 1GLR
165 @ 171 Abban JA as he then
was held that to succeed in an
action for the declaration of
title to land, injunction and
recovery of possession, the
Plaintiff must establish by
positive evidence the identity
and the limits of the land he
claims. In the instant
case, it would have been useful
to the Appellant’s case if he
had led any positive evidence on
the root of title. Beyond saying
that they got title from a 1981
lease from the Odai Ntow family
for farming purposes which was
later converted into a land for
estate development and tendered
as Exhibit 1, the Appellants did
not call any witnesses from the
grantor family to corroborate
their case.
They argue
further that once the
Respondents were unable to call
any witnesses to prove their
title the Court should have
automatically held that then the
Appellants had a valid grant
from the Odai Ntow family. This
has never been the position of
the Law. A party who
counter-claims bears the burden
of proving his Counter claim on
the preponderance of the
probabilities and will not win
on that issue only because the
original claim failed. The
Appellant wins on the
counterclaim on the strength of
his own case and not on the
weakness of his opponent’s case.
Nothing on the record before
this court can sufficiently aid
this court to make such a
declaration and this ground of
appeal should fail.
The
Appellants in the third aspect
of their omnibus ground of
appeal argue that the Justices
of the Court of Appeal erred by
failing to appreciate that the
appellants made out a valid case
of duress by economic pressure
exerted on them collusively by
the Respondent and the Executive
Secretary of the Lands
Commission. The relevant cases
are PAU ON V. LAU YUI LONG
[1979] 3 ALL ER 65. In
this case the principle
enunciated was that……… in
determining whether there has
been coercion; the complaining
party has to show that he had no
other reasonable alternative but
to agree and also whether after
entering the contract he took
steps to avoid it.
Again, in the
case of Universal Semtinel
[1993] 1 AC 366, When
the ship owners took steps to
avoid the contract, the Court
found that if the ship owners
had not executed the agreement
they complained about, they
would have suffered
catastrophic consequences.
Considering the foregoing
English authorities I am of the
opinion that a party who
complains about economic duress
has to take positive steps on
his own to set aside the
agreement he complains he
entered into under economic
duress and not wait to raise it
as a defence when the terms of
the agreement are to be enforced
against him. In the action he
brings to set the agreement
aside, he has to prove that he
was compelled to sign the
agreement because he had no
other reasonable alternative and
if he had not entered into the
agreement he seeks to void, he
would have suffered some
catastrophic consequences. I
should believe that by
catastrophic, the Court means
disastrous, calamitous,
shattering, appalling, terrible,
ruinous or tragic consequences.
Applying this
test to the current case, the
Appellant did not take any steps
to avoid Exhibit C dated 29th
September 1993 until 2001 when
the Respondents instituted an
action to enforce the terms of
Exhibit C. They have not led any
cogent evidence to show that
they were compelled to sign the
agreement because they would
have suffered some catastrophic
consequences if he had not
signed the agreement in Exhibit
C, apart from saying that the
they were in the process of
contracting loans from the HFC
Bank and SSNIT to develop the
land. They did not say what
consequences they would have
suffered if they had not entered
into the agreement. In the
absence of these, the terms of
the agreement in Exhibit C
should be considered as the
voluntary act of a contracting
party and enforceable against
him. This ground of appeal also
fails and should be dismissed.
Finally, the
Appellants argue that the title
deed of the Respondent in
Exhibit 1 is a forgery. They
raise inconsistencies in the
document itself and also other
documents that were presented to
the Lands Commission in
procuring the title deed. It is
the Respondents’ case that the
Court of Appeal failed to
address this ground of appeal
because the Appellants never
pleaded the forgery in the High
Court and therefore any evidence
based on it was inadmissible. A
party who seeks to lead evidence
to prove forgery in a civil
trial must specifically plead
the particulars of the forgery.
The Appellant failed to satisfy
this rule at the trial Court. It
is provided under section 6 (1)
of the Evidence Decree, (1975)
NRCD 323 that in every action,
and at every stage thereof, any
objection to the admissibility
of evidence by a party affected
thereby shall be made at the
time the evidence is offered. If
a party looks on and allows an
otherwise inadmissible evidence
to pass without objecting, it
forms part of the court record
and the court will be entitled
to consider it in evaluating the
evidence on record. The trial
Court was therefore entitled to
evaluate the evidence for what
it was worth.
It is
provided in the Evidence Act,
1975 (NRCD 323), s 13(1) that
“In a civil
or criminal action, the burden
of persuasion as to the
commission by a party of a crime
which is directly in issue
requires proof beyond reasonable
doubt”
This rule
emphasizes that where in a civil
case crime is pleaded or
alleged, the standard of proof
changes from the civil one of
the balance of probabilities to
the criminal one of proof beyond
reasonable doubt. Forgery is a
crime by virtue of the Criminal
code, 1960 (Act 29), s 58 which
provides that
“Whoever,
with intent to deceive any
person, forges any judicial or
official document shall be
guilty of second degree felony.”
Every crime
has its ingredients which ought
to be proved by the prosecutor,
in this case the appellant, in
order to secure a conviction.
The
definition of forgery is
provided in section 169 of the
Criminal Code, 1960. The section
sets out the ingredients to be
established in order to prove
forgery. None of the ingredient
was proved.
At the trial,
the appellant did not go beyond
tendering the Respondent’s title
deed and leading evidence to
show discrepancies in the date
of the alleged gift of 1979 and
the site plan thereon. They
failed on the face of the deed
to prove the forgery or who the
culprits of the alleged forgery
were. I find nothing on the
record on the basis of which
forgery can be said to have been
committed and I will again
dismiss this ground of appeal.
The grounds
of appeal are unmeritorious and
the appeal which fails in its
entirely is dismissed.
S. A. BROBBEY
JUSTICE OF
THE SUPREME COURT
J. ANSAH
JUSTICE OF
THE SUPREME COURT
J. V. M. DOTSE
JUSTICE OF
THE SUPREME COURT
ANIN YEBOAH
JUSTICE OF
THE SUPREME COURT
P. BAFFOE-BONNIE
JUSTICE OF
THE SUPREME COURT
COUNSEL:
W.A.N.ADUMUA-BOSSMAN FOR THE
DEFENDANTS/APPELLANTS/APPELLANTS
K. FREMPONG
BOADU FOR THE
PLAINTIFFS/RESPONDENTS/RESPONDENTS
.
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