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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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