HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

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JUDGMENT

WOOD (MRS.), J.A:

The plaintiff respondent sued two persons, the 1st and 2nd Defendants/Appellant for:

(a)  A declaration of title to a 20.6 acre land at Okwenya

(b)  general damages for trespass and

(c)  perpetual injunction restraining them from any further tresspassory acts.

The facts upon which he based his claim are  quite simple.  He alleged that as far in as 1962, he acquired the subject matter by purchase from the Narh Mati family, and followed it with a formal registration of the title deed in 1990.  He claimed that he had remained in effective possession by constructing a swish building on the land, to house his caretaker who had carried out farming activities on the land. 

He had however been compelled to institute the action in protection of his rights as a result of the various acts of trespasses committed by the two defendants.  However, he totally abandoned the action against the 1st defendant, ex-husband of the 2nd defendant/appellant, and who had left the jurisdiction and is now resident in his home country, Poland. 

Initially, aside from denying all the material facts upon which the claim was founded, 2nd defendant appellant additionally, counterclaimed for similar reliefs.  However on 16.12.98, she withdrew the counterclaim and contented herself with merely disputing the 1st respondent’s title. Her version is that she was in occupation of the land as such lawful owner, who had acquired title by purchase from the lawful owners, the Atta Ablah family as far back as 1979 and has thereafter exercised various acts of undisturbed ownership over it, including the construction of the dwelling house she occupies.

On 13.12.95, the Court granted an order for joinder as co-defendant to one Tetteh Quarshie, head of the 2nd defendant/appellants grantor family. A similar application for joinder as co-plaintiff brought by Samuel Degbor who described himself as head of the Degbor family also met with success.  Both claimed that they were the lawful grantors of the parties they sought to join.  It does appear that the orders were granted principally to enable them litigate over a much larger land, of which the disputed property forms only a small portion.  At least, this was the clear stated position of the co-plaintiff respondent in his affidavit accompanying the motion for joinder and also when he moved it.  Moreover, the court made no express or even implied order that he was to be limited to prosecuting the original claim, with its limited subject matter. Indeed, such an order would have been plainly incongruous as both grantors, on their own showing, have completely divested themselves of the disputed property and consequently, that none of them have shown either a cause of action or liability as the case may be, as concerns that disputed property.

I believe the same argument goes for the co-defendant respondent, although it would appear from a strict reading of the paragraph 7 of his accompanying affidavit that he was limiting himself to the actual subject matter. However, when the affidavit is read as a whole, and that should be the proper approach, the clear understanding is that he was desirous of defending the family’s large tract of land at Okwenya. Obviously, given their stated positions, the court could not have allowed co-plaintiff to join the action to protect his family’s vast interest, and yet deny the co-defendant a similar right and limit him to defending only the right of the person he sought to join.

Before I proceed to determine the substantive points raised in this appeal, I would like to address a number of procedural matters. One of them is of minor importance, the others are substantial and grave.

The comparatively minor procedural issue is this. It seems to me that the High Court (Civil Procedure) (Amendment) No. 2 Rules 1977, LI 1129, does not admit the use of the expression “co-plaintiff” or 'co-defendant’. The correct nomendature for added parties in my view, is “plaintiff(s)” or “defendant(s)” as the case may be.  I believe what would distinguish such new parties from existing ones would be the numerical prefix.

I would now deal with the more fundamental and I must say more serious procedural matter. Three weeks after the grant of the orders for joinder, the co-plaintiff respondent filed a detailed statement of claim setting out the limits of his family property and claiming against the appellants jointly and severally the following reliefs:—

(a)  Declaration of title to a vast tract of land at Okwenya,

(b) That co-defendant account and pay for all Dzodze Ohata lands sold to developers,

(c)  Recovery of possession,

(d)  Perpetual injunction.

Some seven months later, the co-defendant appellant later filed a defence and made serious allegations of fraud against the respondents. Why it took him that long is difficult to fathom. I must however presume it was regularly filed as no questions about its regularity has been raised at this rehearing.  

The co-defendant was the first to apply for the order, followed by the co-appellant with a similar application. Each made a full disclosure of the facts as they knew them, contended that the land as claimed by their respective grantees, the original parties, was only a small portion of their bigger family lands, and further prayed that they be granted the leave to join the action to protect not only the disputed smaller land, but their respective family’s vast tracts. The court in its wisdom granted both applications and ordered each “applicant to” be joined accordingly “and all processes filed served on them.”

Neither we in this court, nor any of the parties have questioned the propriety of the orders of joinder, although the case was fought to conclusion on the  basis of the pleadings filed by the two new entrants.

I think the nagging legal issue which deserves our serious consideration is this: Is the co-appellant respondent entitled to relief on the basis of his statement of claim, when the original writ has never been amended to include those specific reliefs stated therein, namely title to the vast land at Okwenya, recovery of possession, order for accounts and damages for trespass?

An equally fundamental issue is this. It is plain from the record that the respondent on whom the duty lay, did not take any of the mandatory implemental steps set out under Order 15 rule 8 of LI.1129 essential to giving effect to the order of joinder.  In effect then both co-plaintiff respondent and co-defendant appellant were not parties in the proceedings.

The Order 15 rule 8 stipulates:

“Where an order is made under rule 6, the writ by which the action was began must be amended accordingly and endorsed with:—

(a)  reference to the order in pursuance of which the amendment is made, and

(b) the date on which the amendment is made and the amendment must be made within such period as may be specified in the order, if no period is so specified, within 14 days after the making of the order

2.  where under the rule 6 a person is ordered to be made a defendant, the rules as to service of a writ of summons shall apply to service of the amended writ on him, but before serving the writ on him the person on whose application the order was made must procure the order to be noted in the cause book

3. a person ordered under rule 6 to be added as a party shall not become a party until the writ has been amended in relation to him under this rule and if (he is a defendant) has been served on him”.

The rule 8(1) & (2) spells out the mandatory implemental steps that must be taken on the grant of the order for joinder.  Sub rule (3) deals with the consequences that flow from non-compliance with the rules (1) & (2).

They are quite drastic. A plain reading of the rules shows that in the event of non-compliance, the successful applicant does not become a party to the pending action.  In effect then, the order for joinder or the process becomes ipso facto void.  It is very much like that which flows from a failure to amend under Order 28 rules 7-10 of the High Court rules.

The necessary implemental steps to be taken under rules 8 are quite straightforward and has been spelt out by my brother Benin J, as he then was in Ganda v. Ganda (1989-90) 2 GLR 58 at 60. He reiterated that

“It provides for (i) amendment of the writ, in the title of the continuing action; (ii) the service of the amended writ on any added defendant (iii) the appearance of any added defendant”.

On a strict application of the rules therefore, there would be no co-plaintiff nor co-defendant before us and the co-plaintiff's action can be dismissed on this procedural technicality alone.  But then, the periods stipulated under the rules are all capable of being extended. The trial court failed to draw the guilty parties, particularly the two respondents’ attention to the procedural invalidities existing in the proceedings and allowed the trial to proceed to completion on the basis of the pleadings filed and on the erroneous assumption that they were indeed effectively parties. In the regard, no one side was prejudiced, embarrassed surprised nor suffered any miscarriage of justice.  I think substantial injustice would be done to both sides if I set the trial, particularly between the added parties aside, on the grounds of nullity, having regard among other things to the fact that the case itself, from trial to the appellate court has take 8 long years.  I would therefore take the rare step taken by my brothers in the case of Kwarteng II v. Klu (1991) 2 GLR 93 at 97 when they found themselves caught with some what similar circumstances.

Although the facts are not in any way similar, the problem which faced them at the appeal hearing is the same as that which confronts us now. Up to the date of the hearing of the appeal, no amended statement of defence had been filed by the successful defendant who had been granted leave in the court below to amend his statement of defence. Consequently, at the date of the appeal, the order had become ipso facto void.  The court however granted an extention of time, even at that late stage, being satisfied that it would not occasion any substantial miscarriage of justice to the opposing side, thus lending further weight to the principle that extention of time within which to carry out certain orders of the court e.g. amendments and even an application for the amendment itself, may be granted as late as at appeal stage, if on the facts no embarrassment, prejudice, surprise, in short, no substantial miscarriage of justice would be occasioned thereby.  In order that this case would be adjudged on the merits, I would grant the respondent the same dispensation and extend time for 7 days from this date, for the rule  8 to be complied with. On the peculiar facts of this case, no miscarriage of justice, let alone a substantial one would be caused to either side. It would on the other hand save the parties untold hardship. I must point out however that this favour would not per se, alter the legal consequences of the unamended writ of summon viz a viz the co-plaintiffs intended reliefs, and I would have to decide on that issue also.

The undoubtedly salutary principle of law is that, this court has power in deserving cases to effect an amendment in order to achieve real justice between the parties by determining all the matters in controversy,  avoiding a multiplicity of litigation.

Since this case was fought on the basis of the co-plaintiff respondents pleadings, we should over come this legal and technical difficulty, by amending the writ of summons to reflect the reliefs specified in his statement of claim. The clerk of this court is to effect the necessary amendment forthwith.

What therefore started off as a simple dispute between two individuals ended up as a major battle between the two families.

In his judgment, the learned trial judge chose to limit himself to what he described as the claims of the co-parties.  He reasoned that:

“With the entry of the co-plaintiff and the co-defendant, the interests of the plaintiff were submerged. It will therefore serve no useful purpose to dilate on evidence of the plaintiff and the defendant because in the event that either of them won the victory can be passed on to either of them whichever way the judgment goes”.

Accordingly, judgment was given in favour of the co-plaintiff respondent for the reliefs pleaded in the statement of claim, and the plaintiff respondent, the initiator of the action who had sued for damages for trespass and perpetual injunction against the defendant appellant got absolutely nothing. Clearly dissatisfied with this decision, appellants have appealed to us on a number of grounds including the oft-used omnibus ground—the judgment is against the weight of evidence.  The other grounds, which from the written submissions, were all argued together are that:

1.  “The plaintiff/respondent lacked the requisite title to sue or commence action against the defendant/appellant.

2.  The co-plaintiff respondent did not have the requisite capacity to sue and or join the action.

3.  The learned judge failed to determine which family was represented in the suit herein by the co-plaintiff respondent.

4.  The learned judge failed to make a correct approach to the evidence led by the parties.

5.  The learned judge failed to take a correct view of the evidential (sic) value of Exhibit A relied on by the plaintiff respondent

6.  The learned judge failed to make a proper evaluation of the two judgments relied upon by the co-defendant/respondent together with such evidence as Jackson’s report and Exh. R1 as well as the District Report on Akuse lands. Non of the distinctly specific grounds was argued separately.  All the various grounds were tackled as if only the one omnibus ground was filed.”

The argument may be summed up as follows:

First, that to succeed the co-plaintiff respondent ought to have proved that he had both the capacity to institute the action and also valid title to convey to the respondent. It was submitted that on the evidence, he failed to discharge this burden and consequently, none of them was entitled to relief.

Second, it was submitted that in any event, since the co-appellant respondent contradicted himself on such critical issues like his lineage, the exact location of the land he claimed, and its exact boundaries, he was not entitled to judgment.

The third criticism levelled against the trial judge was that he failed to apply the correct legal principles in determing the issues before him.  The lament was that he wrongly rejected a document tendered by the co-defendant appellant even though it formed part of family history and was clearly therefore protected by and admissible under S.128 of the Evidence Decree, NRCD 323.  Furthermore, it was submitted that he ignored all the salutary principles governing the evaluation of traditional history, thereby leading to the wrong conclusion that the traditional evidence they led was cogent enough to warrant judgment in their favour for all the reliefs sought.

The plaintiff respondent, being quite content with the criticized decision, did not appeal. Perhaps this arose from the trial judge’s opinion that with the “two joinders, the case of the plaintiff and defendant have become subjected to the wider interest of the co-plaintiff and the co-defendant and whatsoever judgment is given can rectify whatsoever lapses there are in the conveyance made to their respective beneficiaries.”

Not that plaintiff ought to have filed a cross appeal, for under the rule 15 of the Court of Appeal Rules 1997, CI.19, he need not take any such step if he was bent on asking for a variation of the appealed decision.  Indeed, under the rules, where an appeal has already been lodged by one dissatisfied party, the prescribed mode for calling for a variation of any part of the criticized decision, by some other equally aggrieved respondent, is spelt out in the clearly self explanatory rule, which is reproduced hereunder.

“15 Notice by respondent of contention that judgment should be varied.

(i) It shall not be necessary for the respondent to file notice by way of cross appeal, but if the respondent intends upon the hearing of the appeal to contend that the decision of the court below should be varied, he shall within one month after service upon him of the notice of appeal, cause written notice as in form 7 in part 1 of the schedule of his intention to be given to every party who may be affected by the contention.”

 He has not taken advantage of this rule. Of course, he is under no compulsion to do so. But given the peculiar facts surrounding the prosecution of this case, one would have thought this was a most prudent course to take, so that in the event that the co-plaintiff respondent for some reason lost this appeal, he might not be left without remedy.  After all, he initiated this action in the first place. He is not only a separate and distinct legal person, but as a plaintiff he has put in his own separate and distinct claims against a clearly identified alleged tortfeasor.  He is therefore entitled to show by legal evidence a cause of action and liability against that person, who is defendant appellant.  Indeed that is what he sought to prove by his own evidence and that of his witness, for which reasons, alone, his case was deserving of a separate treatment, irrespective of his grantors claim to the larger tract of land.  Quite clearly he was, in his own right, in search particularly, of the order of perpetual injunction against the defendant appellant, her privies and assigns as an effective means of checking future threats.  It was therefore entirely wrong for the trial judge to have left his rights unadjudicated.  Be that as it may, he is afforded sufficient protection under the rules, which can take care of any eventualities.

Under rule 32 of CI.19, this court has power “to give any judgment and make any order that ought to have been made, and to make such further order as the case may require including any order as to costs”.

Furthermore, these wide discretionary powers are exercisable “notwithstanding that the appellant may have asked that part only of a decision be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties although the respondents or parties may not have appealed from or complained of the decision.

I now turn my attention to the merits of the case.  In this regard, I think it would be expedient to deal with the co-plaintiffs respondents case first as the plaintiff respondent derives title from him.

As claimant of that ‘very large tract of land lying at Okwenya, one of his primary duties has been spelt out in the case of Nyikplokor v. Agboder (1987-1988) GLR 165 at 171.  This court, speaking unanimously through Abban JA as he then was, and who is now of blessed memory, outlined that duty as follows:—

“ To succeed in an action for a declaration of title to land, recovery of possession and for an injunction the plaintiff must establish by position evidence the identity and limits of the land which he claims”.

The manner in which this uncompromising stand of the law translates into practical terms, is by calling boundary owners or neighbours as witnesses. The calling of boundary owners is so crucial that “the failure to prove boundaries even of only one side was fatal and the fact that the defendant had counterclaimed did not lessen that burden”, per Francois JSC in Akoto II v. Kavege (1984-1986) 2 GLR 361 at 371.

In his statement of claim, the co-plaintiff described the disputed land as being at Okwenya.  It appears that was a vague description.  From his evidence in chief, his family land, which forms only a part of the Okwenya lands, lies specifically at Ladornya.  Indeed other evidence he supplied at the trial confirms the position that the disputed land lies at Ladornya.

However, the wrong or vague naming of the land, or the failure to specifically name it, is to my mind wholly immaterial and does not damage his cause, since Ladornya still forms part of Okwenya.

The more critical issue is this: Did he succeed in proving the identity of the Ladornya land i.e. the disputed land? The duty to prove strictly the identity of the subject matter is crucial, given also that one of his own witnesses Pw2, has distanced himself from Exh. C, a plan he tendered at the trial, ostensibly to prove the identity of the land.  The Pw2 was emphatic that at a landowners meeting held in 1976, at which he was present and at which meeting the various families who owned land at Manya laid claim to and identified their lands, the meeting did not discuss any plan.

In any event, the position of the law is clear.  The mere tendering of a survey plan, which clearly delineates the boundaries, would not relieve him of the required proof of his boundaries.

The description of his boundaries as per his statement of claim were as follows:

The Krobo Mountain, the River Okwe, Susui people land and finally Asafoatse Narh Mati family land.   His evidence in chief however clearly saw him departing from the pleadings regarding one side of the boundaries. He testified that one side shares boundary with  “the people of Nagmane.” No evidence was led to suggest that Nagmane is the same as Susui.  Aside from this marked, and therefore material discrepancy in the co-plaintiff respondent’s own evidence and pleadings, I find that he was unable to prove the identity of the disputed land.

First, he failed to produce two important boundary owners, the Asafoatse Namati family and the Nagmane people.  On his own showing, he shares boundaries with them.

The evidence of the Pw1, the fetish priest of the Krowerki shrine, did little to bolster his case.  From his testimony, Okwenya land belongs to his fetish and the whole Manya people. The Manya people are made up of several clans and families. 

He offered no evidence on who owned Ladornya the disputed land.  This extract from his own evidence show that he knows next to nothing about who either owns the disputed land or who the neighbouring boundary owners are.

“Q.  After the Manya people who has land on the left.

A.  That is left for the Manya people

Q. So you know only about your land and you do not know anything about any other land

A. That is correct.

Q. I am suggesting to you that you do not know the real owner of the land in dispute

A.  I know the land belong to the Manya people.”

Second, the Pw2’s testimony conflicted materially with other evidence led at the trial on two critical issues— the issue of who owned the disputed land and the question of who owned the Krobo Mountain, a very important physical feature that co-plaintiff respondent maintains serves as a boundary mark.

Claiming that he had lived in Okwenya for 60 years, and further that he is not a mere settler, but one who knows the true owners of the land he deposed to the following:

“ I know the location of the land in dispute between the parties. The land belongs to Namati. I am aware that there was a dispute between Namati and the Konor. That litigation gave the land to Namati.”

Namati family has been described by the co-plaintiff respondent as a boundary neighbours. Pw3 created a further dent in the co-plaintiffs case by his flat denial that Okwe stream (another of co-plaintiffs boundaries) is a boundary mark, let alone an important one.  I reproduce the relevant portion of his testimony on that issue.

“Q.  Do you know that the Okwe is a very important boundary mark in the area?

A.  The stream is not a boundary mark.  The stream passes through the land”.

This answer clearly discredits the co-plaintiffs claim that the river serves as one of his family land's boundaries.

On the critical issue of who owns the Krobo Mountain I have presented the two conflicting accounts which were produced by the co-plaintiff's own witnesses Pw2 testified as follows:

“The Degbe lands stretches from the Krobo mountain downwards, the first who owned it was Dodze Okata, after him Akronatebi.  After him Akromoase Nartey Degbe hails from the family.  The land stretches from the Krobo mountain to the Okwe stream.  The co-plaintiff is the current Head of Family of Dzodze Okate”.

In contrast to the above, the Pw3 swore that

 “ I am now at Okwenya for 60 years. …  By our Ewe Tradition, when you want to farm on somebody’s land, you need to seek the permission of the owner. We acquired our land from the Manya people. The Manya people showed us the boundaries of the land so that we do not enter into other people land …. The land of the Manya people started at the top of the mountain.  The Susui people also belong to the Manya Division.  I am referring to the Krobo Mountain.  All the land down the Krobo mountain belong to the Manya and Susui people. The Manya/Susui land lies as the bush:— Kenglesi, Agric farm Asotsokake, Morsorder, Kroku/Akromateder, Mueyoko, Okumi  Saleso, and the universal college.  I know the stream called Lador.  It is on the way to Akuse the owner of the land on which we have lader is owned by Francis Otoo and Asafoatse Na Nmati. ”

Therefore, while Pw3 maintained that from the mountain down is owned exclusively owned by the co-plaintiff respondent family, the Pw3 swore that it is owned by the Manya and Susui people.

The situation I have is this.  We have a claimant who admitted per his statement of claim that this opponent is in possession and has indeed exercised various acts of ownership over the land in dispute i.e. by the sale of portions of the land to a number of individuals.  This explains his prayer for the reliefs of recovery of possession and order of accounts.  The unyielding position of the law in such land disputes is that the claimant succeeds on the strength of his own case and does not rely on any weaknesses in his opponent’s case as proof of his title.  Duagbor v. Akyea Djamson (1984-1986) 697 reiterated this well-known rule of law so clearly it does not admit of any exceptions.  In the words of Abban JA, as he then was:

“ Co-defendants counterclaim could not in any way lighten the weight of the burden on the Plaintiff to establish his title by preponderance of admissible evidence. The defence having demand the plaintiffs’ title and then counterclaimed for title, a burden was placed on the plaintiff to prove his title satisfactorily or else he must fail”.

The co-plaintiff respondent failed to lead satisfactory evidence in proof of the identity of the disputed land. He failed to establish or call the adjoining landowners he had mentioned to establish the boundaries see Beggio v. Ahebo (1983-83) GLR 1171. Not only that, but his own witness maintained unequivocally that the subject matter belonged to Narh Mati family.  In other words it did not belong to his family.

These facts are sufficiently strong enough to destroy his own case and I do not think any historical or other traditional evidence, be they in song, dance or what ever can salvage his case.  In my view even if he had the capacity to sue, he was not entitled to judgment and his claim in respect of the disputed land ought to have been dismissed.

The plaintiff’s case

As claimant, to succeed in obtaining the reliefs claimed, he must rely on the strength of his own case and not on the weaknesses in the defendant’s case.

The well-known rule of law is that “where a party derived his title to land from someone else, either by way of gift or purchase or other form of alienation of land, it was incumbent upon that party whose title was derivative to prove the title of his grantor or vendor or donor as the case might be”.—

Egyir v. Hayfron 1984-1986 1 GLR 510 at

In other words, where his title is put in issue, to succeed, the claimant must prove his root of title.

The plaintiff respondents grantor, who joined the action to defend his family’s alleged bigger interest in a very large tract of land of which plaintiffs own landforms only a very small portion failed woefully to prove his title. On that ground alone, the plaintiff respondent had no legs to stand on and his case must fail.

However, his case itself bore its own patent weaknesses. I think these must be pointed out. In the end, he also like his grantor failed to establish a good case.

First, his own evidence on the mode of acquisition of the disputed land conflicted with the evidence of his grantor.  He spoke of a purchase, his grantor was most emphatic that the transaction was a gift and not a sale.

Second, his version on the date of acquisition itself was most doubtful. It failed to meet the reasonable probability test. He would have us believe that he first acquired the property in 1962. At that date he was only a 14-year-old schoolboy.  His grantor who gave his approximate age as at the date of giving evidence as 65 years, was then only some 29 years old.  He was then not the head of family.  How a young man of his age could sell or gift such a big tract of family land to a school boy non member of the family is itself something altogether. Even more importantly, his grantor himself confessed that he assumed the headship of the family in 1983.  So how could he have validly sold or gifted it and in 1962?  Other unanswered question were how much the 14 years old school boy paid for the property. In the end, I found the story that he purchased the land in 1962 preposterous.  The mere probable story the alleged is acquisition evidenced by the Exh. A of 1990.  By which date the defendant appellant was already in possession.

Third, the grantors evidence of the family to which he belongs to is totally at variance with the plaintiff respondent’s version as pleaded. From his account his grantor belongs to, (and so does the land) the Narh Mati family.  The grantor himself states that he is the head of the Dzodze Okata family, owners of the disputed land.  This throws further doubt on his already weak case on the question of which family owns the land and so had capacity to convey a valid title.

Finally, the evidence of the court appointed surveyor dealt the final death knell to the plaintiff respondents’ case.  He confessed to the following:

(1) the plaintiff's land as evidenced by the site plan was different from what was shown physically on the ground,   

(2) The plotting was irregular,

(3) A small portion of his land fell within land already acquired by the defendants,

(4) Contrary to the plaintiff’s assertion he did not find any thatched building (belonging to him) on the disputed property,

(5) The defendant appellant has built a first class cement block building on the disputed land

On the whole the plaintiffs case was weak, unreliable and unsatisfactory and cannot earn him any of the reliefs claimed.

Asare v. Appau II 1984-1986 1 GLR 600 lays down the governing rules in those cases where a claimant sues to assert title and recover possession from a defendant in possession.  This court per Amuah Sakyi JA as he then was, stated the applicable rule as follows:

“Such a defendant need not, and usually does not seek any relief in the proceedings being, content with things as they are … In that event the plaintiff must rely on the strength of his own case i.e. prove his title and not rely on the weakness of his opponents case, i.e. lack of title in the defendant so that if the plaintiff fails to prove that he is entitled to have a declaration made of his title to the land, the action ought to be dismissed leaving the defendant in possession of the land”.

On the 11th of December 1992 the defendant sought and was granted leave to withdraw her counterclaim.

In the result the plaintiff respondent’s claim fails and is hereby dismissed.

G. T. WOOD (MRS.)

JUSTICE OF APPEAL

ARYEETEY, JA:

I agree.

B. T. ARYEETEY

JUSTICE OF APPEAL

AMONOO-MONNEY, JA:

I also agree.

J. C. AMONOO-MONNEY

JUSTICE OF APPEAL

COUNSEL

*Vdm*

J. B. AKANMA, J.A

This appeal comes from the Accra Fast Track High Court and it is against the judgment delivered on 17th June 2003 by Julius Ansah, J.A, sitting as an additional judge of the High Court.

The plaintiff/respondent (hereinafter referred to simply as plaintiff) issued a writ of summons on 13th of December 2002 against the defendant/appellant (hereinafter referred to as the defendant) in the Fast Track High Court Accra, claiming the following:

"(1) Plaintiff claim against the defendant is for payment of $600,000 US dollars or its cedi equivalent being general damages for deliberate prevention of the plaintiff by the defendant from boarding defendant's airline which occasioned defendant's loss of lucrative contract in Brussels.

(2) Costs."

The facts relied upon by the plaintiff to mount his action are briefly that the plaintiff is a businessman and chief executive officer of Trans Africa (2000) Ltd. Plaintiff resides mostly in London but shuttles between that city and Accra and other parts of the world to attend to his business. The defendant on the other hand is an international airline company with an office in Accra. The plaintiff travelled by a business class ticket from London to Accra aboard the defendant's airline. On 15th July 2002, plaintiff reported at Kotoka International Airport to embark on his return journey to London. At 7:30 pm on that 15/7/2002 plaintiff proceeded to the defendant's check in counter, where the defendant's staff, a lady, asked him (plaintiff) to place his luggage on the weighing scale to which he complied. The defendant's staff upon looking at the scale said the plaintiff had excess baggage. The plaintiff said he responded by telling the defendant's staff that she should have first observed his class of ticket before saying he had excess baggage. As a result, the defendant's staff requested for the ticket and after examining it, told the plaintiff that his ticket was not valid. This prompted the plaintiff to point out that he had travelled from London by the same ticket and being an open ticket he was now using the out bound to fly back to London and that he confirmed his flight from defendant's partnership hotel (Golden Tulip). The defendant's staff, apparently infuriated by the plaintiff's explanations responded that the plaintiff should not tell her how to do her job and that the ticket was not valid, thereby triggering some arguments. According to the plaintiff, in the course of the arguments he told the defendant's staff that he had a business meeting the following day the 16th July 2002 and must be allowed to board the aircraft to London and then to proceed to Brussels. To this, the defendant's staff sarcastically responded that even if the plaintiff were going to visit the Queen of England, he would not be allowed to fly with the defendant's aircraft since his air ticket was not valid. The staff also told the plaintiff that even though there were vacant seats on the aircraft they would not allow him to board. Meanwhile other passengers, mainly whites, who came after the plaintiff to the defendant's counter were processed and made to board the aircraft. The plaintiff remained at the defendant's counter till the close of the flight whereupon plaintiff left for the La Palm Beach Hotel where he lodged for the night.

The following day, plaintiff sent the General Manager of his company, PWI, to the defendant's main office to ascertain the validity of his KLM business class ticket to be told that not only was the ticket valid but that plaintiff should proceed to the airport that same 16th July 2002 to board the plane with the same ticket. The plaintiff accordingly flew to London but was not able to attend the meeting on 16th July 2002 due to the events of the previous evening. This according to plaintiff resulted in his loss of the contract.

The defendant who is aggrieved by the judgment filed an appeal against the whole judgment on the following grounds namely:

(a) That the learned trial Judge erred in law by allowing/permitting unauthenticated and uncertified self serving letters and documents of the plaintiff to be admitted in evidence notwithstanding objections by the Defendant's counsel to same or by the court on its own motion as per Section 8 of the Evidence Decree 1975 (NRCD 323)

(b) That the learned trial judge erred in law by awarding damages to the plaintiff when pleadings and evidence clearly indicate that the plaintiff could not and did not provide specific and sufficient evidence to establish a legal obligation created by mutual agreement between the plaintiff and the defendant that mandated the defendant to fly the plaintiff to a destination in Brussels to allegedly bid for a contract on or before 16th July 2002.

(c) That the learned trial judge also erred in law by finding that, the defendant was in breach of contract and awarding excessive damage and costs to the plaintiff as, even if, the defendant breached its contract with the plaintiff, said heavy damages cannot reasonably be supposed to have been in the contemplation of both plaintiff and defendant at the time of purchase of defendant's airline ticket by the plaintiff.

(d) That the learned trial judge erred by giving judgment in favour of plaintiff when his pleadings and evidence adduced at the trial clearly indicated that he has completely and totally failed to discharge or meet the burden of producing credible evidence on the issue before the court.

(e) That the judgment of the learned trial Judge is against the weight of evidence adduced at the trial.

(f) That further and other grounds of appeal may be filed on receipt of a certified copy of the judgment or ruling.

Arguing the first ground of his appeal, the appellant submitted in the statement of case that certain unauthenticated, uncertified and notarized documents were admitted in evidence despite strenuous objections by counsel. As to what specific documents are referred to, counsel for the appellant has, in the main, not been helpful to the court on the issue. Counsel failed to point to the particular documents that were affected by the trial judge's generous reception into evidence. For instance, the reference in the statement of case to page 27 line 20 is not a reference to a particular document whose reception is being questioned nor is the reference to page 31 paragraph 12 a reference to an exhibit that ought not to have been accepted in evidence. I believe that the reference to page 31 paragraph 12 ought to be a reference to line 12 since the appeal record is read according to the lines and not paragraphs. Thus said, page 31 line 12, does not help the cause mounted by the appellant.

The closest to the point is perhaps appellant's reference to other instances of admissions by the Judge on pages 33 to 35 and 44 of the record of appeal. The exhibits covered on those paces are exhibits E, F and perhaps G, the exhibit G being admitted on page 45. The plaintiff tendered exhibits A, B, C, D, E and F, ostensibly in proof of his assertion that his status as a prominent business man was recognized by the Sierra Leone, Ghana and British governments as well as by the West Africa magazine respectively. Exhibit A is a letter-purportedly written by the Inspector General of Police of Sierra Leone. Exhibit B is a photocopy of a letter from a 'Commission for the Consolidation of Peace (Sierra Leone Government)' appointing the plaintiff as its Ambassador at Large. Exhibit C is another letter signed by a Chairman 'Sammy Doppelt' on a letterhead of Independent Diamond Valuators to the plaintiff to facilitate an invitation to the President of Ghana and his Minister for Mineral affairs to attend a conference. Exhibit D is an unsigned letter bearing the name 'SAMY DOPPELT' Chairman, inviting the President of Ghana to an undated meeting with Al Gore former Vice President in attendance. Exhibit E is a photocopy, albeit faxed copy, of a letter from 10 Downing Street to the plaintiff. Finally Exhibit F is a copy of West Africa magazine issue No 4293. As to whether the reception of any of these exhibits in evidence was proper, the same can only be answered by considering whether their reception complied with the provisions of the Evidence Decree.

Since exhibits A, B, C, D and E purport to be documents or copies thereof of foreign official bodies, their admission must be regulated by section 161 of NRCD 323. Consequently the said exhibits being foreign official documents should be accompanied by certifications attesting to the Genuineness of the signatures and the official positions of the persons who executed the writings in order for them to be presumed genuine and authorized. These certifications must be signed and sealed by a diplomatic agent of Ghana or of a Commonwealth Country who is assigned or accredited to that country.

Needless to say that in these days of phenomenal advancement in science and technology, the quest to guard against frauds generally by strict adherence to these rules cannot be over emphasized. For this reason no value could be placed on the contents of Exhibit A, B, C, D and E. Rule 8 of NRCD 323 empowers this court to exclude, on its own motion, evidence that would be inadmissible if objected to by a party. Exhibits A, E, C, D and E qualify to be so treated and I hereby exclude them from the record. As for Exhibit F, being a periodical, its reception is governed by rule 156 of the Evidence Decree, which makes for its reception as applied by the trial court. Its reception was therefore proper under the circumstance. Reading through the judgment of 17th June 2003 however, I find nothing to suggest that the trial judge placed any reliance on any of the documents just discussed. The judgment was rather informed by legal evidence only for which I cannot fault the judge. In the premises I find no merit in this ground of appeal and dismiss it.

The next two grounds together attack the trial judge's award of damages and excessive costs in favour of the plaintiff particularly when the pleadings and evidence clearly indicate that the plaintiff could not and did not provide specific and sufficient evidence establishing a legal obligation created by mutual agreement between plaintiff and defendant that mandated defendant to fly plaintiff to Brussels to bid for a contract on or before 16th July 2002. In determining these grounds together under the rubric of the omnibus ground that the judgment is against the weight of evidence let me begin by making an observation as to what I consider to be the essence of these grounds of appeal. The crux as I see it, is whether the plaintiff had proved in accordance with S. 15(2) of the Evidence Decree, (NRCD 323), that the defendant was the cause of his alleged loss of contract in Brussels so as to warrant the award of the damages and costs granted by the court. Section 15 (2) of NRCD 323 states that, "Unless and until it is shifted, the party claiming that a person did not exercise a requisite degree of care has the burden on that issue." The case of Hadley vs. Baxendale (1854) 9 Exch.341 @354 blazed-the trail for the award of damages wherein Alderson B stated that, "Were two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally i.e. according to the usual course of things, from such breach of contract itself or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it "

The defendant is here, not contesting the trial judge's finding that, 'In short therefore, the defendant deliberately and unjustifiably prevented the plaintiff from undertaking his journey aboard their flight on 15th July 2002.' The defendant's concern as can be discerned from the record is that there was no mutual agreement between him (defendant) and plaintiff, mandating defendant to fly plaintiff to Brussels to bid for a contract on or before 16th July 2002. In other words the defendant is here contending that Brussels was not within the contemplation of either party at the time the two of them entered into the contract of carriage. The ticket exhibit M provides for carriage from 'London to Amsterdam to Accra to Amsterdam to London'. The defendant's query appears justified, as borne out by the sequence of events apparent on the record. The record of appeal for instance shows that it was in the course of heated exchanges between the plaintiff and the defendant's agent that plaintiff mentioned that he had a business meeting the following day the 16th July 2002 and must be allowed to board the aircraft. Having made the disclosure for the first time and in the obvious heat of passion, the plaintiff required doing more than merely mounting the witness box to repeat the claim, to warrant a determination in his favour. In this endeavour however, I find nothing beneficial to the cause of the plaintiff in this regard to warrant liability being placed on the defendant for the alleged failed trip to Brussels, a claim I find to be otherwise too remote and unproven.

In arriving at this conclusion, I am mindful that the plaintiff failed to lead evidence to show that he had indeed submitted any bid for a contract in Brussels and when. No bid documents were tendered in evidence for scrutiny by the court. The sudden production of exhibit G at the trial court did not advance the issue for the simple reason that the said document did not comply with s. 161 of NRCD 323 and was therefore wrongly received. Exhibit G is the letter dated July 18, 2002 on the letterhead of Independent Diamond Valuators, signed by a chairman and addressed to the plaintiff, informing him of the failed bid. By virtue of section 8 of NRCD 323, exhibit G is hereby excluded from the record. Yet another cause for doubt about the Brussels bid, is the total lack of evidence about any effort made to reach or inform the Brussels authorities about the flight difficulties or problems between the 15th July 2002 when plaintiff failed to board the aircraft and the 16th July 2002 when the bid was supposed to be open for consideration. Furthermore the plaintiff did not consider it necessary to disembark at Amsterdam and proceed to Brussels, which is shorter instead of continuing to London, with the intention of connecting back to Brussels in mainland Europe. Indeed from the plaintiff's own testimony he did not proceed to Brussels after all. The plaintiff also woefully failed to lead evidence stating what time the meeting was scheduled to take place at which he was expected to be present. All this aside, there is nothing to show that it was indeed the absence of plaintiff per se that was responsible for his failure to win the bid. In any case the plaintiff was obliged to show that the Brussels trip was in the contemplation of the parties when they first entered their contract of transporting the plaintiff on defendant's aircraft. These inconsistencies may individually appear harmless but cumulatively they could succeed in discrediting the claim of the proponent of the evidence. This is so with the plaintiff on his claim about his bid in Brussels. Notwithstanding the failure of liability for the alleged Brussels bid, the plaintiff is nonetheless entitled to damages based upon the trial judge's finding that the defendant deliberately and unjustifiably prevented him (plaintiff) from undertaking his journey aboard their flight on 15th July 2002 to London. In awarding damages based upon the findings supra, this court must bear in mind the evidence to the effect that the plaintiff was obliged to take up lodgment at La Palm Beach Hotel that 15th July 2002 and the travail he was put to the next day to verify his ticket. It would appear that with the plaintiff's eyes focused on the $600,000.00 US dollars endorsed on his writ of summons, he failed or did not deem it necessary to throw some light on the expenses he incurred when he was put to this discomfort by the actions of the defendant. In any case, the essence of an award of damages is to give the plaintiff compensation for the damage, loss or injury he has suffered. These comprise two main groups notably pecuniary and non-pecuniary loss. The former is made up of all financial and material loss incurred, such as loss of business profits or expenses of medical treatment. The latter comprises all losses, which do not represent an inroad upon a person's financial or material assets, such as physical pain or injury to feeling. The former being a money loss is capable of being arithmetically calculated in money, even though the calculation must sometimes be a rough one where there are difficulties of proof. The latter is not so calculable. See McGregor on Damages 14th Edition, pane 10, (Sweet and Maxwell). Also the speech of Lord Blackburn in Livingstone vs. Rawyards Coal Co. (1880) 5 App. Cas 25, 39, defines the measure of damages as "that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. “Guided by the authorities cited supra and in the light of the evidence on record, there is no doubt at all that the plaintiff is entitled to damages arising out of damages to his feelings or what is sometimes termed a damaging reflection on the "fair fame" of the plaintiff, but not to the measure awarded by the trial judge which I find excessive and unwarranted. Consequently I hereby set aside the fifty thousand US dollars ($50,000) damages against the defendant. I substitute five thousand dollars ($5000) damages for the plaintiff instead.

The next segment of this ground of appeal complains about the award of costs made against the defendant. The defendant's reason is that the award was excessive and based upon erroneous estimates. It is trite to observe that a successful party is usually entitled to costs but this is a matter of discretion for the trial judge who is required to exercise his discretion judicially, that is to say, according to reason and justice and not according to sentiments or sensibility. However a party who is aggrieved by an award of costs may upset it if he can show that the judge wrongly exercised his discretion in the particular case. See Nartey-Tokoli vs Volta Aluminium Co. Ltd (1987-88) 2 GLR 532, Guardian Assurance Co. Ltd vs Khayat Trading Store (1972) 2 GLR 48, Boullion Industries vs Dizengoff Gh. Ltd, CA, HI/85/2004 of 30th April 2004 (unreported). The trial court awarded costs of ten million cedis in favour of the plaintiff. It is not clear what the basis was for the award of this colossal sum except for what appears to be some measure of trading between counsel which ended in disagreement. The case itself does not appear to be complicated. The trial begun on 5th May 2003 and judgment delivered on 17th June 2003. The plaintiff called three witnesses whilst the defendants called one. I find in the circumstances the costs of ten million unjustifiable and it is hereby set aside. I substitute cost of four (4) million cedis for the plaintiff in the court below.

The last point of contention I propose to deal with is that the learned judge erred by giving judgment in favour of plaintiff when his pleadings and evidence adduced at the trial clearly indicated that he has completely and totally failed to discharge or meet the burden of producing credible evidence on the issues before the court. In his statement of case, the defendant has sought to reopen or reargue the point as to whether the defendant's refusal to allow the plaintiff on board its aircraft manifestly and irresistibly and solely resulted in the alleged loss of a lucrative contract in Brussels on 16th July 2002. That point has already been resolved and I do not intend to return to it. Another issue raised in the statement of case is whether or not the refusal to allow or carry plaintiff on board to London on 15/7/2002 was unlawful. On this point I dare point out that the court below had before it the sole account of the plaintiff and his witnesses. The line of cross-examination not only failed to make any punches in the plaintiff's case, it also failed to set out clearly the case for the defence. This aside, the defendant was content at listening to the evidence led by the plaintiff without leading any evidence of its own to counter that led by the plaintiff. The result, rightly to my mind, is that the trial judge found for the plaintiff based upon the evidence before him that the refusal to allow the plaintiff to board did not accord with the defendants own conditions of carriage. The defendant's own conduct by not cross examining the plaintiff on crucial matters of disagreement between them rendered it unnecessary for plaintiff to lead further evidence on those points in accordance with section 119 (a) and (b) of NRCD 323 which states that a party who fails to cross examine on the evidence led on an issue is deemed to have admitted that evidence. In Fori v Ayirebi (1966) GLR 627 SC, the Supreme Court in its holding (6) decided that: "When a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly when a party had given evidence of a material fact and was not cross-examined upon, he need not call further evidence of that fact" (Emphasis underlined). For instance there was no attempt to cross examine PW2 on his testimony about the lady (defendant's representative) when she was quoted to have said that she did not care and that as far as she was concerned the plaintiff had an invalid ticket and whether the plaintiff had a meeting with the Queen of England was none of her business. From the above scenario the trial judge was right in finding on the evidence that the defendant deliberately and unjustifiably prevented the plaintiff from boarding the aircraft. Equally disturbing for the cause of the defendant was their failure to call any eyewitnesses to testify on their behalf. They may have had a strategic reason for not calling the lady at the center of the controversy but that strategy could also be their undoing. They equally failed to produce the manifest for the day to show whether the claim of the plaintiff that he had booked his flight was borne out. The trial judge who was left with only the testimony of the plaintiff on the issue came to the right conclusion on the matter and I cannot fault him. There is no merit in this ground of appeal and it fails.

In view of the partial success of this appeal the defendant ought ordinarily to be entitled to some costs but taking the total circumstances of this case into consideration I think that there should be no order as to costs.

I. B. AKANIBA

JUSTICE OF APPEAL

OMARI-SASU, J.A

I agree

OMARI-SASU

JUSTICE OF APPEAL.

TWENEBOA-KODUA.

I also agree.

K. A. TWENEBOA-KODUA.

JUSTICE OF APPEAL.

COUNSEL

Kenneth D. Laryea, Esq. of Laryea, Laryea & Co for Defendant/Appellant.

Mr. Prosper Nyahe for Prof. A.C. Kuma for Plaintiff/ Respondent.