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AKOTO-BAMFO JSC:
Yaw Oppong, the respondent
hereafter referred to as the
plaintiff, commenced an action
in the High Court against
Charles Anarfi, the appellant
now simply referred to as the
defendant for this relief:
“An order for the defendant to
yield vacant possession and hand
over House No_ Plot 35 Block AB
Patase, West Kumasi to the
Plaintiff”.
Briefly ,the Plaintiffs case, as
gleaned from the accompanying
Statement of Claim, was that he
purchased House no Plot 35 AB
Patase, the subject matter of
this appeal from the defendant
at an agreed sum of GH¢40,000.
According to him the transaction
was reduced into writing; that
even though the 6 month period
granted the defendant to yield
vacant possession expired; he
remained in possession despite
repeated demands.
The defendant resisted the
Plaintiff’s claim. The gist of
his case as per the Statement of
Defence filed was that he sought
financial assistance from the
Plaintiff in the sum of
GH¢40,000 cedis to recapitalize
his 2nd hand clothing
business. He used the house in
issue as security. When,
however, the Plaintiff’s agent
produced a document supposedly
evidencing the transaction for
his signature, he realized it
was a purchase agreement as
opposed to the loan transaction.
He protested but subsequently
signed upon the assurances given
by the agent that the terms of
the agreement would not be
enforced since they were good
friends.
According to him, the
disbursement of the loan was
made in tranches and not one
-time as asserted by the
plaintiff. In the course of
time, the Apagyahene had to
intervene. He invited the
Plaintiff for a discussion on
the matter as a result of which
the Plaintiff offered to take
interest on the borrowed sum.
The issues for determination
before the High Court were:
1.
Whether or not the house was
sold to the Plaintiff
2.
Whether House No_ 35, Block AB
was used as a security for the
grant of financial assistance
After a full trial, the learned
High Court Judge found that the
transaction between the
plaintiff and the defendant was
a loan transaction and not a
purchase agreement. He therefore
entered judgment for the
defendant against the plaintiff.
After an expatiation of the
principles of unjust enrichment,
he delivered himself in these
terms:
“I therefore order the defendant
herein based on the principles
above cited to pay to the
Plaintiff an amount of GHc37000
to the plaintiff with interest
at the prevailing Bank rate from
the 6th of June when
the amount was due to the date
of the issuance of the writ till
date of payment.”
The Plaintiff registered his
protest against the decision by
filing a Notice of Appeal
consisting of 5 grounds namely:
1.
The Learned Judge erred when he
held that there was no burden of
proof on the
Defendant/Respondent to prove
matters canvassed in his defence
to the action
2.
The Learned Judge erred when he
held that the transaction
between the parties to the suit
was not a sale of House Number
Plot 35 Block AB Patasi and was
rather a loan advanced to the
Defendant/Respondent in
installments.
3.
The Learned Judge erred when he
discarded the clear legal effect
of Exhibit
A
4.
The Learned Judge erred when
he made findings of fact not
borne out by the evidence on
record
5.
The Judgment is against the
weight of evidence
6.
Additional Grounds of Appeal to
be filed on receipt of the
record of proceedings
On the 26th of March
2009, the Court of Appeal by a
2-1 majority allowed the appeal
and set aside the judgment and
consequential orders made by the
learned trial Judge.
Dissatisfied, the defendant
mounted a challenge against the
decision of the Court of Appeal.
He premised his attack on these
grounds:
a)
The Learned Judges in the
majority failed to consider
adequately the
effect of the alleged sale
document exhibited at the trial
in the High Court
b)
The majority judgment is
against the weight of the
evidence;
c)
Additional grounds may be
filed on receipt of the judgment
and
Proceedings
It
must be noted that no additional
grounds were subsequently filed.
Arguing Ground A- namely that
the learned Judges in the
majority failed to consider
adequately the effect of the
alleged sale document, he
submitted that since the whole
case for the defendant hinged on
Exhibit A whose admission into
evidence was challenged albeit
unsuccessfully; the said Exhibit
could not legally form part of
the evidence owing to its
erroneous admission. He
contended that the admission of
Exhibit A into evidence
occasioned a substantial
miscarriage of justice.
According to him, both the trial
court and the Court of Appeal
erred in finding that Exhibit A
was a receipt. He submitted that
since Exhibit A was an
instrument affecting land, non
registration thereof was fatal
and therefore constituting an
instance in which the Court
could properly depart from the
findings of fact concurrently
made by both the trial and
appellate Courts.
In reply learned Counsel for the
Plaintiff contended that the
submission should not be
countenanced since the defendant
failed to appeal against the
ruling in the course of the
trial; and that having failed to
avail himself of the
opportunity, it was too late in
the day for him to raise same.
Section 6 of the Evidence Decree
NRCD 323 provides:
1)
In every action and at every
stage thereof, any objection to
the admissibility of evidence by
a party affected thereby shall
be made at the time the evidence
was offered.
2)
Every objection to the
admissibility of evidence shall
be recorded and ruled upon by
the Court as a matter of Course.
Undoubtedly, the Counsel for the
defendant complied with the
rules, his objection was however
overruled.
The Court in delivering its
ruling stated as follows “this
Court shall consider the
validity or otherwise of the
said document as judgment; at
most the document is just like a
receipt and the intention behind
the maker of the document is
another matter to be determined
by the Court”.
What remedies were open to the
defendant then?
He should have appealed within
21days of the date of the
ruling since it was clearly an
interlocutory order; for as
provided for under Rule 9 (1)
(a) of C1 19 the Court of
Appeal Rules,:
9(1) subject to any other
enactment governing appeals, an
application shall not be brought
after the expiration of
(a)
21 days in the case of an appeal
against an interlocutory
decision.
The defendant cannot be heard to
complain. Assuming Exhibit A was
wrongly admitted could that fact
by itself result in a reversal?
The answer is in the negative;
for the Evidence Act Sec 5 (2)
sets out the circumstances under
which a judgment will be set
aside on account of an erroneous
admission of evidence.
5.2 In determining whether an
erroneous admission of evidence
resulted in a substantial
miscarriage of justice, the
Court shall consider
a)
Whether the trial court relied
on that inadmissible evidence,
and
b)
Whether an objection to, or a
motion to exclude or to strike
out, the evidence could and
should have been made at an
earlier stage in the action, and
c)
Whether the objection or motion
could and should have been so
stated as to make clear the
ground or grounds of the
objection or motion, and
d)
Whether the admitted evidence
should have been excluded on one
of the grounds stated in
connection with the objection or
motion, and
e)
Whether the decision would have
been otherwise but for the
erroneous admission of evidence.
It is therefore evident that the
only criterion for a reversal is
that the erroneous admission
must have resulted in a
substantial miscarriage of
justice.
Factors which should weigh on
the Court in arriving at such a
decision are clearly set out
above.
It is necessary at this stage to
consider whether Exhibit A was
erroneously admitted into
evidence. In other words what
was the exact nature of Exhibit
A; was it a receipt as found by
both the trial Court and the
Court of Appeal, or an
instrument affecting land, the
non registration of which is
fatal and therefore cannot be
the basis of a judicial
decision? Agyei Osae V Adjeifio
2007/2008 SCGLR 499.
Exhibit A was described as a
sale agreement; the parties were
described as vendor and vendee;
the agreed sum was set out and
the subject matter of the sale
was clearly stated. Indeed in
the 3rd paragraph
appears the following: “the
vendor agreed to sell his above
described property at the total
cost of ¢400,000.00 (FOUR
HUNDRED MILLIONS) and the said
vendee (Yaw Oppong) has agreed
to purchase the said House No
plot_ 35 Block AB
Patase-West-Kumasi”.
One would say the document
speaks for itself. The said
paragraph leaves none in any
doubt as to not only its form
i.e. a sale transaction but
equally that the property on
plot no 35 Patasi was the
subject of the transaction.
There was an agreement on the
contract sum
The defendant does not deny
that on the face of Exhibit A,
the transaction could be
described as a sale agreement.
His case was that he should be
allowed to lead extrinsic
evidence, as it were, to
contradict the terms of the
written document. The Court of
Appeal dealt adequately with
the issue and came to a
conclusion and rightly so in our
view that there was a sale
agreement and that the
circumstances of this case do
not afford an exception to the
general rule as lucidly stated
in Wilson v. Brobbey (1974 1
GLR.250 at 251 in these terms:
“Where parties have embodied the
terms of their contract in a
written document extrinsic
evidence or oral evidence will
be inadmissible to add to, vary,
subtract from or contradict the
terms of the written instrument”
Indeed in Gallie v. Lee (1969) 2
Ch. 17 at p. 36, C.A. Lord
Denning M.R. stated the
principle that mere negligence
in not reading a document before
signing cannot amount to a
defence of non est factum thus:
“Whenever a man of full age and
understanding, who can read and
write, signs a legal document
which is put before him for
signature—by which I mean a
document which, it is apparent
on the face of it, is intended
to have legal consequences—then,
if he does not take the trouble
to read it but signs it as it
is, relying on the word of
another as to its character or
contents or effect, he cannot be
heard to say that it is not his
document”.
It is therefore settled that a
party of full age and
understanding would normally be
bound by his signature whether
he reads, understands it or not
particularly in the absence of
the requisite evidence that the
other party misled him.
On the nature of EXH A we are of
the view that it is a receipt as
found by both the trial court
and the Court of Appeal.
In Donkor v. Alhassan 1987-88
2GLR 253 at 256 Ampiah JA as he
then was faced with a similar
situation stated “These receipts
were not meant to transfer, by
themselves any interests in
land. They only evidenced
payment in pursuance of an
agreement to transfer an
interest in the land.” Exh A
was therefore not required to be
registered under the Land
Registry Act, 1962(Act 122
Sec.24 (I) to be effective.
Exhibit A was not tendered to
prove the respondent‘s title to
the property .The learned Judge
rightly overruled the objection.
It is pertinent to note that in
his submissions before the High
Court; Counsel for the
respondent (now appellant)
described Exhibit A as a
receipt.
At page 60, of the Record of
Proceedings, this is what he
stated “Even granted that the
Plaintiff and the defendant duly
signed Exhibit A; at best
Exhibit A can be regarded as a
receipt evidencing
a loan that has given to the
defendant”.
The appeal fails on this ground
and is hereby dismissed.
Learned Counsel for the
appellant submitted that the
judgment is against the weight
of the evidence adduced.
According to him contrary to the
view held by the majority in the
Court of Appeal, the defendant’s
evidence on the nature of the
transaction was amply
corroborated.
There is a wealth of authorities
on the burden allocated to an
appellant who alleges in his
Notice of Appeal that the
decision is against the weight
of the evidence led.
Even though it is ordinarily
within province of the trial
court to evaluate the veracity
or otherwise of a witness, it is
incumbent upon an appellant
court in such a case, to analyse
the entire record of appeal,
take into account the
testimonies and all documentary
evidence adduced at the trial
before it arrives at its
decision, so as to satisfy
itself that, on the
preponderance of the
probabilities, the conclusions
of the trial Judge are
reasonable or amply supported by
the evidence. Tuakwa v Boson
2001/2002 SCGLR 61.
In Charity v EMS 2007/2008
SCGLR 985,
Georgina Wood CJ stated “the
well-established rule is that an
appeal is by way of rehearing
and an appellate Court is
therefore entitled look at the
entire evidence and come to the
conclusions on both the facts
and the law.
Learned Counsel for the
appellant submitted that
contrary to the majority view of
the Court of Appeal that the
defendant’s case was not
corroborated; the pieces of
evidence offered by the
defendant’s wife amply
corroborated the defendant’s
case.
A reading of the record of
proceedings show that this
submission is not rooted in the
record. The defendant called one
witness, his wife, who obviously
had no personal knowledge of the
transaction. An excerpt of the
cross-examination is relevant:
Q. You said that you were not
part of the negotiations and you
said
That your husband asked
for a loan so the issue of the
loan was what
your husband told you, it
was your husband who told you he
had
been given a loan.
A. Yes.
Q. And it is your husband who
told you that there a balance of
¢30,000.000.00 cedis.
A. Yes.
The evidence given by the
witness for the defendant
clearly did not advance the
frontiers of the defendant’s
case since his wife admittedly
had no personal knowledge of the
events as stipulated under
section 60 of the Evidence Act,
1973.
Again in both his Statement of
Defence and evidence before the
High Court
One Nana Agyapahene was named as
having intervened in the matter
and having succeeded in getting
the plaintiff to agree to exact
some interest on the loan. This
piece of evidence was
strenuously denied by the
plaintiff; yet the defendant
failed to call Nana Agyapahene.
He is a material witness whose
evidence would have assisted the
Court immensely. Failure to call
him clearly dealt a big blow to
the defendant’s case.
The Court of Appeal, after
reviewing the evidence on record
and the decision of the learned
Judge of the High Court rightly
came to the conclusion that the
appeal lodged against the
decision of the High Court,
which entered judgment for the
appellant herein, ought to
succeed.
Kanyoke JA stated as follows:
“On the evidence and for the
reasons given herein, I have
come to the conclusion that the
appellant had sufficiently
established on a preponderance
of probabilities and satisfied
me that the judgment of the
court below is clearly and
manifestly and overwhelmingly
against the weight of evidence.
The serious omission by the
trial judge to reject as
inadmissible oral or extrinsic
evidence to subtract vary and
contradict the clear, and
express terms of and intention
of the parties in Exhibit A,
coupled with his erroneous
placing of the burden of proof
of issues raised by the
respondent in his pleadings on
the appellant and exacerbated by
his cursory scrutiny and
evaluation and assessment of the
totality of the evidence laid
before him has resulted in a
substantial miscarriage of
justice in this case”.
We are satisfied that the
conclusions of the Court of
Appeal were amply supported by
the evidence on record. We would
accordingly dismiss the appeal.
[SGD]
V. AKOTO-BAMFO [MRS.]
[JUSTICE OF THE SUPREME COURT]
[SGD] W. A. ATUGUBA
[JUSTICE OF THE SUPEME COURT]
[SGD] DR S. K.
DATE-BAH
[JUSTICE OF THE SUPREME COURT]
[SGD] R. C. OWUSU(MS.)
[JUSTICE OF THE SUPREME COURT]
[SGD] B. T. ARYEETEY
[JUSTICE
OF THE SUPREME COURT]
COUNSEL:
KWASI AFRIFA FOR THE APPELLANT.
YAW BOAFOR
PLAINTIFF/APPELLANT/RESPONDENT.
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