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Land -
Recovery of possession –
registration of Lease - Value to
place on the land – Whether or
not summons shouldbebe used to
upset a court’s decision -
whether or not the respondent
had developed the entire land -
Whether or not the trial judge
acted in excess of his
jurisdiction - Laches and
acquiescence
HEADNOTES
In or about
the year 1997, the
plaintiff/respondent/appellant,
hereinafter called the
appellant, sold a tract of land
situate at a place called Okpoi
Gonno in Accra, measuring 16.08
acres to the
defendant/appellant/respondent,
hereinafter called the
respondent. The appellant
claimed the land consisted of
sixty-four plots but according
to the respondent it comprised
just twenty-two plots. The
parties agree that the
respondent paid for twenty-two
plots of land at an agreed fee
of two million old cedis per
plot. Thus according to the
appellant forty-two plots still
remained unpaid for, whereas the
respondent’s contention was that
since the land sold comprised
twenty-two plots excluding the
open spaces and a school site
set aside by the city planning
authorities they had fully paid
for the land The court appointed
experts carried out their
assignments and submitted their
reports. These experts testified
as court witnesses and were
cross examined by both sides. At
the end of the day the trial
High Court entered judgment for
the appellant to recover the sum
of GH¢550,000 plus costs of
GH¢10,000 against the
respondent. The respondent
appealed to the Court of Appeal
which allowed the appeal on 16th
December 2010 and ordered a
trial de novo before another
High Court judge mainly
.
HELD
The Court of
Appeal did not set aside the
award by the High Court on merit
but the entire decision was set
aside for reasons explained
already. The present appeal has
not raised any issue concerning
the award or the basis thereof
by the High Court, and there is
no cross appeal either. Hence it
is just that the award should
not be disturbed, except where
this court finds some error,
whether legal or factual
apparent on the record in which
case it will have to intervene.
The High Court judge made
findings of fact based on the
evidence. He gave reasons for
deciding on the award and as
pointed out there is no issue
with the award. We therefore
endorse it and enter judgment
for the appellant and restore
the High Court’s award of
damages. The appellant is also
entitled to recover interest on
the judgment sum from the date
of the High Court’s decision to
date of payment by virtue of
Rule 2(1) of C. I. 52 that is
Court (Award of Interest and
Post Judgment Interest) Rules,
2005. The payment made by the
respondent in the course of the
hearing should be deducted from
the total figure found due to
the appellant. For the reasons
advanced herein we allow the
appeal.
STATUTES
REFERRED TO IN JUDGMENT
High Court
(Civil Procedure) Rules 2004,
C.I. 47
English Civil
Evidence Act of 1972
Evidence
Decree.N.R.C.D. 323
Court (Award
of Interest and Post Judgment
Interest) Rules, 2005. C. I. 52
CASES
REFERRED TO IN JUDGMENT
IN RE
ASHALLEY BOTWE LANDS; ADJETEY
GBOSU and Others v. KOTEY and
Others (2003-2004) SCGLR 420
KARLETSE-PANIN v. NURO (1979)
G.L.R. 194 C.A.
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BENIN JSC
COUNSEL
ERNEST
THOMPSON ESQ. WITH HIM PETER
HAYIBOR AND JOSEPH HACKSON
APPIAH FOR THE
PLAINTIFF/RESPONDENT/ APPELLANT.
EDWARD SAM
CRABBE ESQ. WITH HIM NATASHIA
LAMPTEY FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
BENIN JSC,:-
In or about
the year 1997, the
plaintiff/respondent/appellant,
hereinafter called the
appellant, sold a tract of land
situate at a place called Okpoi
Gonno in Accra, measuring 16.08
acres to the
defendant/appellant/respondent,
hereinafter called the
respondent. The appellant
claimed the land consisted of
sixty-four plots but according
to the respondent it comprised
just twenty-two plots. The
parties agree that the
respondent paid for twenty-two
plots of land at an agreed fee
of two million old cedis per
plot. Thus according to the
appellant forty-two plots still
remained unpaid for, whereas the
respondent’s contention was that
since the land sold comprised
twenty-two plots excluding the
open spaces and a school site
set aside by the city planning
authorities they had fully paid
for the land. This was the state
of the pleadings. The appellant
issued the writ of summons on 12th
April 2007 seeking the following
reliefs against the respondent:
1.
An
order for the recovery of
possession of the remaining
forty-two unpaid for plots of
land forming part of the lease
registered as AR 3590B/97 and
with No. 1636/1998 and stamped
as LVB 5716B/98.
2.
In the
alternative an order that the
defendant pay for the remaining
forty-two plots of land at the
agreed price of the cedi
equivalent of ten thousand
dollars per plot at the exchange
rate prevailing at date of
payment.
3.
Perpetual injunction restraining
the defendant, his agents,
assigns, privies, successors in
title from interfering with,
building on or having anything,
whatsoever to do with the
remaining unpaid for forty-two
plots of land ……..
At the close
of pleadings the appellant took
out summons for directions in
which he proposed ten issues.
The respondent did not file
additional issues. The record
shows that both counsel agreed
to take only one issue in
resolution of the entire dispute
and the court concurred in that
agreement. The only issue set
down for trial was what value to
place on the land, which from
the record was the value of the
remaining 42 plots. The trial
court judge appointed a
professional valuation firm to
carry out the exercise with an
option to the parties to appoint
their own valuation expert.
Subsequently the court appointed
a surveyor to undertake a survey
of the land indicating any
portion that remained vacant.
The court
appointed experts carried out
their assignments and submitted
their reports. These experts
testified as court witnesses and
were cross examined by both
sides. The appellant led no
evidence of his own nor did he
call any evidence, and instead
opted to rely on the evidence
given by the two experts
appointed by the court. The
respondent did not testify but
called three different experts
who testified in the action in
respect of the valuation of the
land. At the end of the day the
trial High Court entered
judgment for the appellant to
recover the sum of GH¢550,000
plus costs of GH¢10,000 against
the respondent.
The
respondent appealed to the Court
of Appeal which allowed the
appeal on 16th
December 2010 and ordered a
trial de novo before another
High Court judge mainly for the
reason that the summons for
directions was not conducted in
accordance with law and practice
considering Order 1(2) of the
High Court (Civil Procedure)
Rules 2004, C.I. 47 leading to
misdirection in law and
consequently to a wrong
decision. The Court of Appeal
took this position because in
its view there were other issues
that the trial court ought to
have considered and so it should
not have accepted the agreement
by counsel to try only one
issue. The trial court was also
faulted for not following the
law as regards the burden of
producing evidence under the
provisions of section 11(4) of
the Evidence Decree, 1975 (N.R.C.D.
323). The Court of Appeal was of
the view that the appellant was
bound to give evidence either by
himself and/or by independent
witness/es and could not rely on
the court appointed expert
evidence in proof of his case.
Being
dissatisfied with the decision
of the Court of Appeal the
appellant has appealed to this
court on the following grounds:
i.
The
Court of Appeal erred in failing
to appreciate the import of
Order 32, and its purpose when
it held that the trial Judge was
wrong in accepting one issue,
out of the issues set by the
appellant, and agreed upon by
Counsel for both parties for
trial and when it was clear
throughout the whole proceedings
and both parties agreed and
indeed tried the only issue
agreed for trial at the
application for direction stage.
By such failure occasioned a
miscarriage of justice.
ii.
The
Court of Appeal erred in its
appreciation of the proceedings
at the trial and adopted a rigid
technical view in presentation
of parties during trial when it
held that, calling of expert
witnesses by the court who
testified and were cross
examined before the defendant
called its witnesses and when
the plaintiff chose not to
testify but rely on the evidence
of the court expert was a wrong
procedure adopted by the trial
High Court Judge and a departure
from the acceptable rules of
engagement in a trial in a
common law setting and by that
occasioned a miscarriage of
justice.
iii.
The
Court of Appeal even though it
appreciated the importance of
Order 1 rule (2) failed to apply
it in the circumstances of the
case to achieve its objective
when it held that the trial
Judge misapplied it side
stepping well established
procedures in the court.
iv.
The
Court of Appeal erred in law
when it failed to appreciate
that even if the trial High
Court Judge failed to follow any
of the rules of court on summons
for directions that will have
amounted to a mere irregularity
(not a nullity) hence not
warranting the whole trial to be
set aside and fresh trial
ordered.
v.
The
Court of Appeal erred in law
when it held that the resolution
of the sole issue set down for
trial as agreed and admitted by
the parties did not determine
the real issue in dispute and an
(sic) other issues set down by
the parties which other issues
by the parties’ own agreement
are deemed waived or admitted
and hence there was no need to
lead evidence on them.
vi.
The
judgment was against the weight
of evidence.
At the
summons for directions the trial
judge is required to identify
the core issue/s for trial. He
does this with the aid of the
lawyers but he/she takes sole
responsibility for whatever
decision he/she takes. The judge
is required to examine the
pleadings carefully and to
determine what issue/s will
completely determine the case
before him/her. In the course of
doing this it is legitimate to
set down one issue only for
trial if that issue is
identified as the real issue or
often called the ultimate issue.
And if in the course of
determining the ultimate issue
or where there are two or more
issues initially set down for
hearing, other ancillary or
collateral matters arise, the
party is entitled to apply and
the trial judge is empowered to
amend the issue/s by adding to
it/them and in general to vary
the original order/s at any time
before judgment. That
flexibility is permitted by
virtue of Order 32 rule 9(2) of
C. I. 47 in view of the fact
that summons for directions is
largely a case management tool
and as such it should hardly, if
ever, be used to upset a court’s
decision on the merits, unless
it has resulted in a miscarriage
of justice. Thus even after the
decision by the trial judge in
respect of the summons for
directions, the parties are at
liberty to apply for further
directions, as long as such
decision or order is not a final
judgment. This is just to
indicate that an appellate court
should be rather slow to set
aside a decision given by a
trial court where the key
complaint is in respect of its
conduct of the summons for
directions, short of a
miscarriage of justice.
Issue for trial
At the close of pleadings in
this case the respondent had
admitted paying for twenty-two
plots out of the 16.08 acres
even though it claimed that was
the full payment. It is common
knowledge that an acre of land
comprises about four plots with
dimensions of 100 x 100 feet,
more or less. The respondent’s
pleadings acknowledged the fact
that apart from the twenty-two
plots, the 16.08 acres consisted
of open spaces as well as a
school site. The respondent
admitted it did not pay for what
it described as open spaces and
school site. Thus from the
pleadings what remained of the
16.08 acres unpaid for was far
bigger than what was paid for.
Having admitted that the total
land sold was 16.08 acres plus,
and having admitted that they
paid for twenty-two plots out of
a possible sixty-four plots, and
having admitted that even
outside the open spaces there
was still a school site unpaid
for it was clear the only issue
was what amount to be paid for
the rest of the land if indeed
the remaining land had been
built upon by the respondent as
averred by the appellant. The
respondent could no longer claim
the land consisted of only
twenty-two residential plots.
Counsel must have realized this
fact hence the agreement to take
the value of the land as the
only triable issue. The trial
court was justified in accepting
it, as the most cost effective
means to end the dispute in line
with Order 32 rule 1 (1)(b) of
the C.I. 47. It was the ultimate
issue. Ultimate issue is defined
in Black’s Law Dictionary, 9th
edition, page 908, as ‘a
not-yet decided point that is
sufficient either in itself or
in connection with other points
to resolve the entire case.’
As to whether or not the
respondent had developed the
entire land was an ancillary
issue to the resolution of the
ultimate issue, hence the
appointment of a surveyor by the
trial judge. The trial court was
thus justified in appointing a
surveyor to inquire whether any
vacant land existed, a fact
which the respondent should have
disclosed on the pleadings
whether they had made use of the
rest of the land besides the
twenty-two plots. As it turned
out the respondent had developed
the entire land into over sixty
residential houses yet it failed
to disclose this material fact
in the pleadings. That conduct
is seriously deprecated; it has
been stressed time and again
that parties owe an obligation
to be frank and candid with the
court. And in this case it is
baffling the fact that even
after the surveyor had inspected
the land, Counsel for the
respondent still insisted that
he should go back there and tell
the court if any vacant land
existed, a fact which was within
the peculiar knowledge of his
client at the time. The court
obliged and sent the surveyor
back to the land only for him to
come back to court the next
adjourned date to inform the
court that the respondent had
fully built up the place. Such
conduct at trials puts the court
in a bad frame, for not only is
the trial unnecessarily delayed
but also parties are put to
avoidable expenses. The
respondent clearly sought to
hide the development on the land
because it suited their plea
that the land consisted of only
twenty-two plots and that they
had fully paid for the land
excluding the open spaces and
the school site when they knew
full well that they had fully
developed the land into more
than twenty-two plots.
We take note of the fact that in
view of rule 7 of Order 32 of C.
I. 47 the trial court could have
gone further to record the fact
the parties had shifted
their positions having
regard to the issue they had
agreed to be tried in the sense
that the plaintiff was no longer
asking for a restoration of the
unpaid for land, that is the
alternative relief asked
for; and on the other hand the
respondent had abandoned the
claim that it had paid for the
entire land. But in this case
there was no injustice caused to
either party as both sides
agreed to the entire process and
fully co-operated with the trial
judge. The respondent even went
further to call three experts to
establish the value of the land.
The respondent also made some
payment to the appellant in the
course of the hearing awaiting
the final outcome of the
case. Even though the payment
was made without prejudice yet
it goes to confirm the sort of
understanding the parties had
reached throughout the case that
the only outstanding issue was
what amount the respondent was
to pay for the remaining land to
the appellant. The payment which
was voluntarily made by the
respondent, without an order of
court, nor was there any demand
by the appellant, nor was it
paid in connection with any
ongoing amicable settlement, was
clearly inconsistent with the
conduct of a person who believed
he owed no money to the other
person. The notification of this
payment was made after the only
issue was agreed upon and
evidence was almost at an end,
only the evidence of
respondent’s last witness
remained to be taken. Respondent
Counsel’s letter dated 7th
May 2008, at page 106 of the
record, stated that the payment
was on account of the purchase
price for the land conveyed by
the appellant to the respondent.
As pointed out a short while ago
this was inconsistent with the
position of a person who claimed
to have made full payment for
the land. Counsel knew what he
was talking about in the letter
if one takes into account his
position during the hearing.
When the court appointed
surveyor Mr Torto testified,
counsel for the respondent
requested that he should be
given further instructions by
the court. The trial Judge at
page 35 of the record asked
Counsel for the respondent:
“What exactly do you want the
surveyor to do?”
and Counsel’s answer was this:
“My Lord he should tell us
exactly how many plots remain
beyond that which was
paid for by my client.” And
with that the Surveyor had to go
back to the field before
resuming his testimony. The
relevance of this discourse was
to confirm that the parties had
all accepted that the only issue
was payment for the remainder of
the land outside the twenty-two
plots.
Thus whether it was the
understanding reached at the
summons for directions or
instructions to the valuer and
surveyor, or the payment on
account during the hearing or
the evidence for the respondent,
or the conduct of the parties
throughout the hearing,
everything was geared towards
finding the actual value of the
plots outside the twenty-two
that both parties agreed were
paid for in order to end the
dispute. There was nothing
illegal about the procedure, and
even if there was a breach of
procedure both parties had
compromised the rules and taken
steps that are irreversible.
Both parties understood and
appreciated the import of the
issue agreed for trial and as
pointed out they actively
participated in the proceedings.
Thus it operates as a consent
agreement which cannot be the
basis of an appeal as it is a
subsisting order from which
there has been no withdrawal by
either party. It would thus be
plainly unfair and indeed unjust
for either party to complain now
about non compliance with the
rules. There was no violation of
the rules on summons for
directions, we so hold.
Failure by plaintiff to give or
call evidence
The other key
point raised in this appeal has
to do with the decision by the
Court below that the appellant
did not prove his case by not
giving evidence by himself or by
any witness. The court below
cited and relied on the
provisions of section 11(4) of
the Evidence Decree. Section
11(1) and (4) should be read
together in order to appreciate
what the lawmaker means. They
read thus:
(1) For the
purpose of this Decree, the
burden of producing evidence
means the obligation of a party
to introduce sufficient evidence
to avoid a ruling against him on
the issue.
(4) In other
circumstances the burden of
producing evidence requires a
party to produce sufficient
evidence so that on all the
evidence a reasonable mind could
conclude that the existence of
the fact was more probable than
its non-existence.
The
appellant’s view was that the
Court of Appeal was wrong.
Counsel for the appellant cited
the authority of IN RE ASHALLEY
BOTWE LANDS; ADJETEY GBOSU and
Others v. KOTEY and Others
(2003-2004) SCGLR 420, which
decided, inter alia, that a
party need not testify by
himself in order to succeed at
the trial. However, counsel for
the respondent argued that the
authority cited was not
applicable to this case.
In this case
the issue agreed upon was the
value of the land. The trial
judge considered it required
expert evidence to assist him to
determine it. The parties appear
to have agreed with that
position taken by the trial
judge, for apart from the fact
that they did not challenge it
neither of them gave evidence by
themselves. They all deferred to
expert evidence. The plaintiff
relied upon the evidence of the
experts nominated and appointed
by the court with the parties’
consent. The respondent went
further to call three other
experts in land valuation.
A party need
not call evidence by himself if
the issue to be resolved is of
such a nature that expert
evidence was the best evidence
that is required to assist the
tribunal of fact to prove it or
if expert evidence is
dispositive of the issue.
Phipson on Evidence 15th
edition paragraph 37-12 at page
924 puts it this way: ‘…..in
cases where it is unavoidable,
expert evidence may be given on
the question which is the
ultimate or real issue in the
case. In certain extreme
situations it is possible for
expert evidence to be
dispositive of the case, as
where there is evidence which
only an expert could provide and
which is unchallenged by any
other expert evidence.’
This
principle is applicable to both
civil and criminal proceedings.
In England, as in Ghana, it is
expressly provided by statute
that in civil cases an expert
may testify on an ultimate
issue, see section 3(1) of the
English Civil Evidence Act of
1972 and sections 112 and 115 of
Ghana’s Evidence Decree.
Sections 112 and 115 of N.R.C.D.
323 provide thus:
112. If the
subject of the testimony is
sufficiently beyond common
experience that the opinion or
inference of an expert will
assist the court or tribunal of
fact in understanding evidence
in the action or in
determining any issue, a
witness may give testimony in
the form of an opinion or
inference concerning any subject
on which the witness is
qualified to give expert
testimony. Emphasis supplied.
115.
Testimony in the form of an
opinion or inference admissible
under section…….112 shall not be
inadmissible because the opinion
or inference concerns an
ultimate issue to be decided by
the tribunal of fact.
Valuation of
land, especially one which is
developed, is the work of
experts, and the trial court
could not be faulted in that
regard when he called for expert
evidence with the support of
both parties. And the value of
the land being the ultimate
issue the parties were
absolutely entitled to rely upon
expert evidence only as expert
evidence was dispositive in the
circumstances of this case. Thus
there was no violation of
section 11(1) and (4) of
N.R.C.D. 323 on the burden of
producing evidence.
The authority
of KARLETSE-PANIN v. NURO (1979)
G.L.R. 194 C.A. is also
inapplicable since there was no
burden on the plaintiff to prove
title to the land as was the
case in the Karletse-Panin case,
supra, where the court rightly
held the plaintiff was bound to
succeed on the strength of his
own case. In the instant case
the value of the land was the
issue which did not warrant the
plaintiff to give evidence by
himself, he not being an expert
in land valuation.
Let us turn
next to this court’s decision in
the ASHALLEY BOTWE case, supra.
The relevant part of the
decision under consideration is
at page 448 where Wood JSC (as
she then was) said this:
“Admittedly, in most civil
actions, the parties themselves
do testify as key witnesses.
Without dispute, that is a most
worthy and prudent step to take,
where the disputed facts happen
to be within their personal
knowledge. Indeed, where the
nature of the dispute calls for
a party’s personal testimony he
cannot avoid the witness box.
But I know of no rule of law
which states that a party would
succeed in his case only if he
testified at the trial. The
standard test in any given case
is not whether the party himself
gave evidence at the trial, but
whether he was able, through
whomever, to provide the needed
evidence. So that even if a
party did not make himself
available at the trial as a
witness, provided sufficient
evidence was led on his behalf
in proof of his case, he ought
not to lose the action on the
basis that he himself never
testified at the trial.”
This decision
was not considered by the Court
of Appeal at all when it decided
that the plaintiff should lose
for failing to give any
evidence. The provisions in
section 11(4) of N.R.C.D. 323
cited by the Court of Appeal and
Order 36 rule 4 of the High
Court (Civil Procedure} Rules
which Counsel for the respondent
relied upon do not enjoin a
party to testify at all costs;
it all depends on the issue to
be tried that will determine
which party assumes the burden
of producing evidence and the
nature of evidence to be adduced
in proof of the issue. Thus the
basic requirement is for the
person with peculiar knowledge
of the facts to testify in the
action. Where the plaintiff and
for that matter any party is not
personally knowledgeable about
the subject-matter, he is not
bound to testify. At the end of
the day what the tribunal of
fact will look for is whether
there is satisfactory and
reliable evidence produced in
proof of the issue on a
preponderance of probabilities.
The court’s concern is not who
has produced the evidence but
whether the witness is credible
and knowledgeable of the facts
about which he testified. Thus
contrary to what Counsel for the
respondent said, the Ashalley
Botwe decision, supra, is
relevant to this case, in view
of the fact that the issue
agreed upon for trial did not
require that the appellant
should testify. He was entitled
to rely upon the expert evidence
only.
A retrial in
this case will achieve no
purpose because the key issues
which Counsel for the respondent
herein in his address at page 2
referred to as being salient and
central to the determination of
the dispute have been resolved.
Issues i and ii have been
established clearly that the
land sold was 16.08 acres and
not twenty-two plots. It was
established that the respondent
did not pay for all 16.08 acres.
That goes for issue iii. On
issue iv the evidence
established clearly that the
respondent had developed the
entire land into residential
properties. It was only issue v
that the parties decided to use
present values thereby
effectively determining any
purported agreement on the
price. These were the five
issues counsel for the
respondent has stated were
central to this case. And with
all of them resolved a retrial
is clearly otiose; it’s a sheer
waste of time and resources.
The court
below should have considered
that whatever limitations the
procedure had, they did not
result in a miscarriage of
justice as the parties were
given every opportunity to do
the case without any coercion by
the trial judge. The appellant
was satisfied with the valuation
done by the expert. The
respondent tried to water down
the figures as testified to by
the court expert in order to pay
less for the plots. The
respondent even made some
payment directly to the
appellant on account. The
parties were satisfied with the
entire process until the High
Court in its judgment decided
against the respondent. Wherein
lay the injustice or miscarriage
of justice? None do we find.
Let us
address a point raised by
counsel for the respondent in
his address. He submitted that
“having set down the value to be
placed on the land as the only
issue for trial, the trial court
had a duty to call upon the
Appellant to adduce evidence in
that regard……contrary to Order
36 r 4 of …C. I. 47….Quite
clearly the rules of procedure
contemplate that in every trial
the parties should state their
cases in accordance with Order
36…” Counsel buttressed this
point when he submitted that
“…the trial judge acted in
excess of his jurisdiction when
he proceeded to enter judgment
without hearing any evidence
from the parties themselves…..”
With all due
respect to learned counsel this
is an erroneous interpretation
of the Order in question and the
decision in KARLETSE-PANIN v.
NURO, supra which he cited in
support. In the case cited the
court’s decision was that the
absence of a defendant from
court did not relieve the
plaintiff from leading evidence
to establish his case when the
burden of producing evidence and
the burden of proof rested upon
him, so it was erroneous for the
court to enter judgment for him
without any evidence. It is an
entirely different situation
from the instant case.
A court has
no duty to call upon any party
to testify in the case; the
court acts as an umpire and only
hears such evidence as the
parties will proffer; whether
the parties will testify or not
is none of the court’s business.
Indeed for a court to insist
that a party should testify will
amount to the judge descending
into the arena of conflict.
After determining the triable
issue/s the trial court leaves
the field clear for the parties
themselves to decide who will
testify. We know of no law or
rule which entitles a court to
call upon a party to testify in
the action. If such a law or
rule does exist we would venture
to say that it is inapplicable
under our legal dispensation.
Laches and
acquiescence and limitation of
action
At the tail
end of his statement of case
counsel for the respondent
submitted that this action is
“…on the face of the pleadings,
caught by laches and
acquiescence or alternatively by
the statute of limitation.” The
argument is in two parts. To
begin with, counsel referred to
the fact that the sale of the
land took place in October 1997
but it was not until April 2007
that the plaintiff commenced
this action claiming the agreed
price of the cedi equivalent of
$10,000 per plot. Counsel’s
submission was that the clam was
unduly tardy so equity would not
come to his aid. Next counsel
cited section 4(1)(b) of the
Limitation Act, 1972
(N.R.C.D.54) which provides that
‘A person
shall not bring an action after
expiration of six years from the
date on which the cause of
action accrued, in the case of
an action founded on simple
contract.’
His argument
was that since the claim for the
alleged agreed price of the land
being founded on a simple
contract it was statute barred
after six years.
The initial
response by counsel for the
appellant was that this was not
pleaded at all to enable same to
be argued as a preliminary issue
under Order 33 rule 5 of the
High Court rules, C. I. 47.
A party who
seeks to rely on laches,
acquiescence or limitation has a
duty or obligation to plead them
or to plead such facts as evince
an intention to rely on same.
Order 11 rule 8(1)(a) of C.I. 47
provides in material terms as
follows:
‘A party
shall in any pleading subsequent
to a statement of claim plead
specifically any matter, for
example……….any limitation
provision…or any fact …..which
the party alleges makes the
claim…of the opposite party not
maintainable.’
These matters
like laches, acquiescence and
limitation are all to be pleaded
since the party who is entitled
to rely on them may decide not
to do so; the other party should
not be taken by surprise and is
therefore entitled to notice in
the pleadings in order to raise
any answer he may have to these
claims. And if they are relied
upon as a defence it will save
the time of the court and the
parties for same to be dealt
with as preliminary matter under
Order 33 rule 5, as counsel for
the appellant rightly pointed
out. Thus they cannot be raised
for the first time on appeal,
unless the pleadings disclose
the factual basis and evidence
on it was led at the trial. That
is not the position in this
case, as there was no plea and
no evidence was forthcoming on
the record. The plea is
accordingly rejected.
Award of
damages.
The Court of
Appeal did not set aside the
award by the High Court on merit
but the entire decision was set
aside for reasons explained
already. The present appeal has
not raised any issue concerning
the award or the basis thereof
by the High Court, and there is
no cross appeal either. Hence it
is just that the award should
not be disturbed, except where
this court finds some error,
whether legal or factual
apparent on the record in which
case it will have to intervene.
The High Court judge made
findings of fact based on the
evidence. He gave reasons for
deciding on the award and as
pointed out there is no issue
with the award. We therefore
endorse it and enter judgment
for the appellant and restore
the High Court’s award of
damages. The appellant is also
entitled to recover interest on
the judgment sum from the date
of the High Court’s decision to
date of payment by virtue of
Rule 2(1) of C. I. 52 that is
Court (Award of Interest and
Post Judgment Interest) Rules,
2005. The payment made by the
respondent in the course of the
hearing should be deducted from
the total figure found due to
the appellant. For the reasons
advanced herein we allow the
appeal.
(SGD) A. A. BENIN
JUSTICE OF THE SUPREME COURT
(SGD) J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD)
ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
COUNSEL
ERNEST
THOMPSON ESQ. WITH HIM PETER
HAYIBOR AND JOSEPH HACKSON
APPIAH FOR THE
PLAINTIFF/RESPONDENT/ APPELLANT.
EDWARD SAM
CRABBE ESQ. WITH HIM NATASHIA
LAMPTEY FOR THE
DEFENDANT/APPELLANT/RESPONDENT.
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