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ANTHONY KESSE
(DEFENDANT/APPELLANT)
vs.
ADWOA AGYEIWAA
(PLAINTIFF/RESPONDENT)
[COURT OF APPEAL, KUMASI]
CIVIL APPEAL NO.: H1/54/2017
DATE: 24TH OCTOBER, 2017
COUNSEL:
ELIOT GHARTEY FOR THE DEFENDANT/APPELLANT
MARGARET MARY AGYEI TWUM FOR THE PLAINTIFF/RESPONDENT
CORAM:
E. K. AYEBI J.A. (PRESIDING), G. TORKORNOO (MRS) J.A., A. M. DOMAKYAAREH
(MRS.) J.A.
JUDGMENT
DOMAKYAAREH (MRS), J. A.
1.
This appeal has arisen from a dispute involving title to a plot of land situate at
Fawoade New Site near Kumasi.
The genesis of the dispute is that the plaintiff/respondent (herein after called the
respondent) per her Statement of Claim, averred that she acquired the said plot of land
in 1998 from the Oheneyere Atta Gyapomaa Stool Land at Fawoade New Site. She was
issued with an Allocation Note and a Site Plan. She said she caused a Building Plan to be
drawn for her. She started construction of a six bedroom, a hall, kitchen, one toilet and
one bath and two store rooms on the plot according to her Building Plan which was
approved by the District Assembly. After constructing up to the floor level she suspended
construction due to financial constraints and started a garden in-front of the house. She
had a call from her son in 2011 that someone had started construction on the foundation
she had laid. She went to the site and discovered that the defendant/appellant
(hereinafter called the appellant) was constructing four bedrooms on her original plan.
The respondent said she confronted the appellant. She subsequently reported the matter
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to the Mamponteng Police and later, the Lands Commission. She said an officer from the
Lands Commission went to the site and wrote “Stop Work” on the building. The parties
were invited to the Lands Office and after some deliberations there she was advised to
seek legal redress as the parties could not resolve their differences. The respondent
therefore instituted this action against the appellant at the Circuit Court in Kumasi on 3rd
April 2013 claiming the following reliefs against him, namely:
a)
Declaration of title and recovery of possession of House No. Plot 1 Block A,
Fawoade New Site near Kumasi.
b)
Damages for trespass and
c)
Perpetual injunction against the defendant, his agents, assigns and all those
who claim title through him from dealing in any way with the property numbered
Plot 1 Block A Fawoade New Site near Kumasi.
2.
The appellant on his part denied that the respondent was entitled to any of the
reliefs at all. On the contrary, he averred per his Statement of Defence that the plot he
was working on was Plot 8, Block ‘O’ Fawoade and that the said plot was originally
acquired by Kofi Mensah alias Yesu Bogya an ex-husband to the respondent. He said he
bought the said Plot 8 Block ‘O’ Fawoade from the late Oscar Ofori Atta a lawful attorney
to Oheneyere Atta Gyapomaa Stool Land at Fawoade. He averred that:
•
the said Oscar Ofori Atta transferred his title and ownership in the plot to him
absolutely;
•
the said transfer documents had been signed and stamped by the District Director
of the Town and Country Planning Department, Kwabre East, Mamponteng;
•
the late Oscar Ofori Atta further made a Statutory Declaration of transfer of
ownership to him which was commissioned by the High Court Registrar, Kumasi and
signed by the vendor, vendee and witnesses;
•
the late Oscar Ofori Atta also made an Indenture date 14th November 2010 signed
by the parties and witnesses and stamped by the Land Valuation Department on 4th
April 2011;
•
he is in possession of the Site Plan of Fawoade Planning Scheme for Kwabre
District on plot 8 Block ‘O’.
The defendant/appellant finally averred that the respondent was claiming for a wrong
plot since she described her plot as Plot 1 Block ‘A’ Fawoade New Site while he was
occupying Plot 8, Block ‘O’ Fawoade.
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3.
The case went through the normal trial with the respondent calling one witness
whilst the appellant called three witnesses.
On 11th December 2013, the trial Circuit Judge delivered judgment in favour of the
respondent and granted her reliefs (a) and (c). He awarded only general damages in
respect of relief (b) on the grounds that she had not led evidence to establish the quantum
of her of loss, whether resulting from trespass or other civil wrong by the appellant.
4.
The instant appeal obviously demonstrates that the appellant is not happy with
the judgment and in fact he is dissatisfied and aggrieved by same. Consequently, on 13th
December 2013 he filed a Notice of Appeal against the said judgment seeking to set same
aside. His ground of appeal was essentially one namely that the judgment is against the
weight of evidence. He added that additional grounds of appeal would be filed upon
receipt of the Record of Proceedings.
Consequent upon this, on 22nd October 2015, the appellant filed 7 additional Grounds of
Appeal pursuant to leave granted by this Court on 20th October 2015.
These additional grounds are:
(b)
That the learned judge erred in relying on the evidence of PW1 (a Building
Inspector) to conclude that Plot No. 8 Block ‘O’ Fawoade New Site and plot No. 1, Block
“A’ Fawoade New Site are referable to the same plot.
c)
That the learned trial judge erred in holding that the defendant/appellant
is not a bonafide purchaser for value without notice.
d)
The learned judge erred in decreeing title of the disputed plot to the plaintiff
when her own witness (PW1) had testified that the plaintiff’s (alleged) grantor
(Oscar Ofori Atta) did not allocate the said plot to the plaintiff.
e)
The learned judge erred when he shifted the burden of proof on DW3 when
he was not a party to the instant suit
f)
The learned judge further erred in holding that the plot in dispute belongs
to the plaintiff when she could not prove on the preponderance of probabilities
that she actually put up the structure on the said plot
g)
That the general damages of GH5,000.00 awarded against the
defendant/appellant as well as the costs of GH2,000.00 are unreasonable and
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without basis having regard to the fact that the plot in dispute did not belong to
the plaintiff.
h)
The learned trial judge erred in holding that the plaintiff acquired her plot
from Oheneyere Attaa Gyapomaa stool as the said holding is not borne out by the
records.
5.
Having been seized with jurisdiction in this matter, it now behooves on this Court
to comply with Rule 8(1) of CI 19 by rehearing the entire case. We shall do this by
evaluating all the evidence on record, both oral and documentary so as to come to our
own conclusion as to whether or not the trial judge was right in his assessment of the
evidence and hence the judgment he delivered. This is indeed the way to go as has been
laid down in a plethora of decided cases by the Supreme Court. For example, see the case
of AGYEIWAA VRS. P&T CORPORATION [2007-2008] 2 SCGLR 985 at 989 where the
Supreme Court per Georgina Wood CJ (as she then was) stated thus:
“The well-established rule of law is that an appeal is by way of rehearing, and an appellate
court is therefore entitled to look at the entire evidence and come to the proper conclusions
on both the facts and the law.”
The appellant argued the additional grounds of appeal first and the original ground of
appeal last. We shall evaluate the grounds in the order in which he argued them.
GROUND (b)
That the learned judge erred in relying on the evidence of PW1 (a Building Inspector) to
conclude that Plot No. 8 Block ‘O’ Fawoade New Site and Plot No. 1, Block “A’ Fawoade
New Site are referable to the same plot.
6.
This ground deals with whether or not Plot No 1, Block ‘A’ Fawoade New Site is
the same as Plot 8, Block ‘O’ Fawoade. This was one of the issues set down for trial at the
Application for Directions stage at the trial court. In respect of same, this is what the trial
judge said in his judgment at page 56 of the Record of Appeal
“With regard to the first issue of the plaintiff and that of defendant, the plaintiff claims her
plot is number 1 Block A as shown by Exhibit A & B whiles defendant claims his plot is
plot Number 8 Block ‘O’ as per Exhibit 3 & 4. There is no contention of the fact that the
plot numbers cited by the parties are referable to the same plot. The defendant did not deny
the fact that the drawings tendered in evidence by the plaintiff as the plan of her foundation
is the one purported acquisition (sic) from Oscar Ofori Atta of the plot in contention. PW1
who happens to be the Building Inspector at the Kwabre East District Assembly gave
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evidence to the fact that when the parties appeared before him he realized that the lands are
at the same place but with different numbers.”
The appellant has taken issue with this finding by the trial judge. Per his written
submission filed on 6th November 2015 pursuant to Leave for Extension of Time dated
20th October 2015, Counsel for the appellant has argued that from the evidence on record,
the two plots are not one and the same plot. He relied on the denial by the appellant that
he was in possession of Plot No. 1 Block ‘A’ Fawoade New Site and further said a careful
look at Exhibit ‘D’ (Sic) the Site Plan of the respondent and Exhibit 4, the Site Plan of the
appellant shows that the two plots are not the same. The Site Plan of the plaintiff is rather
Exhibit B found at page 67 of the Record of Appeal while Exhibit ‘D’ found at page 70 of
the Record of Appeal is the Subpoena Duces Tecum issued to PW1, the Technical
Engineer of the Works Department of the Kwabre East District Assembly.
7.
Counsel further contended that when PW1 stated at the first page 22 of the Record
of Appeal (page 10 of the proceedings of 13th February 2013; there are two pages both
numbered 22) that “The land is at the same place but with different numbers” that cannot
be interpreted to mean that the two different plot numbers refer to the same plot on the
ground. Counsel further contended that the Building Inspector was not competent to
make such a statement and rather argued that the plaintiff ought to have called the
Surveyor in the Assembly to produce the Planning Scheme and tell the court which of the
plots existed.
It is difficult to understand the cannon of interpretation that counsel applied to arrive at
his view that the statement by PW1 does not mean that the two different plot numbers
refer to one and the same plot. If counsel had read the answer of PW1 as a whole, he
would have seen that on the very same first page 22 of the Record of Appeal PW1 went
on to testify that “When I went to the land I saw that the site and block presented to me
by plaintiff was the very place defendant put up his building. I asked defendant whether
he never saw the foundation. He said yes and there was a cassava farm also at the place.”
8.
Counsel also submitted that to the extent that the appellant did not counter-claim
the respondent bore the burden of proof that the land occupied by the appellant was Plot
No. 1 Block ‘A’ Fawoade New Site. That may well be so but the defendant has also
asserted that his plot was Plot 8 Block ‘O’ Fawoade and nothing prevented him from also
calling the Surveyor to prove same since the adage that “he who asserts must prove” is
valid for all time.
In response to this ground of appeal, Counsel for the respondent referred to various
pieces of evidence in the Record of Appeal to demonstrate that the two differently
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numbered plots were one and the same plot. He referred to the respondent’s Statement
of Claim where she averred that upon visiting the site, she discovered that the defendant
had constructed 4 bedrooms on her original plan and that this was very visible as the two
remaining rooms on her foundation were left untouched. Besides, the appellant did not
deny that he built on an existing foundation. His only denial was that the foundation did
not belong to the respondent. Upon a review of the evidence on record, we find that there
was sufficient evidence as analysed above to support the finding by the trial judge that
the two differently numbered plots refer to one and the same plot of land.
Ground [b] of the additional grounds of appeal is therefore dismissed.
GROUND [d]
The learned judge erred in decreeing title of the disputed plot to the plaintiff when her
own witness (PW1) had testified that the plaintiff’s (alleged) grantor (Oscar Ofori Atta)
did not allocate the said plot to the plaintiff.
9.
This ground has to do with whether the trial judge was wrong in decreeing title to
the disputed land in favour of the respondent. Counsel for the appellant argued that per
the evidence-in-chief of the respondent, she testified that she personally acquired the plot
from Oscar Ofori Atta as can be found at pages 13 -14 of the Record of Appeal and
tendered Exhibit ‘A’ the Allocation Note in support. The defendant on the other hand
testified at P. 27 of the ROA that Oscar Ofori Atta had told PW1 that he never sold any
plot to the plaintiff and that the Allocation Note was not signed by him and that the
plaintiff also admitted under cross-examination that Oscar said he never sold any plot to
her as found at page 22 of the ROA incorrectly referenced by Counsel for the appellant
as p. 23. Counsel submitted that all these were corroborative of the defendant’s case and
not that of the plaintiff.
Counsel for the respondent canvassed the same arguments in respect of Ground [b]
against Ground [d] since they both relate to the same issue and a resolution of one will
automatically resolve the other.
10.
It may well be that the late Oscar Ofori Atta denied that he sold any plot to the
respondent. Upon a review of the Exhibits tendered at the trial the following Exhibits
bear the signature of Oscar Ofori Atta.
Exhibit A – the Allocation Note to the respondent dated 30th September 1998 [see
p. 66 of the ROA]
Exhibit 1 the Indenture between Kofi Mensah alias Yesu Bogya and Oscar Ofori
Atta dated 1st June 2010 [see p. 71 of the ROA]
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Exhibit 2 the Statutory Declaration by Oscar Ofori Atta dated 4th November 2010
that he is the legitimate owner of Plot 8 Block ‘O’ Fawoade.
Even an untrained eye can see that the signatures are the same. Technically speaking, it
may be true that Oscar Ofori Atta did not grant any plot to the respondent because he
signed Exhibit A in his capacity as “Lawful Attorney for Abusuapanin” of Oheneyere
Attaa Gyapomaa Land, while in Exhibits 1 & 2 he signed in his personal capacity. Per
paragraphs 3 & 4 of the Statement of Claim of the respondent, she averred that in
September 1998 she acquired a plot from the Oheneyere Attaa Gyapomaa Stool Land and
that an Allocation Note and Site Plan were issued to her in respect thereof. The Allocation
Note, Exhibit 1 was signed by Oscar Ofori Atta in his capacity as lawful Attorney of the
Abusuapanin since the Stool Land is not a natural person. It is trite that where there is
conflict between oral evidence (the testimony of the appellant) and documentary
evidence (Exhibit 1) in respect of the same matter, it is the documentary evidence that
prevails.
Ground [d] of the Additional grounds of appeal is thus dismissed.
GROUND [h]
The learned trial judge erred in holding that the plaintiff acquired her plot from
Oheneyere Attaa Gyapomaa stool as the said holding is not borne out by the records.
11.
Counsel for the appellant contended that the respondent averred in her Statement
of Claim that she acquired her plot from the Oheneyere Attaa Gyapomaa Stool land but
made a U-turn in her evidence that it was Oscar Ofori Atta who sold the plot to her. He
said the said Oscar who was the only person on the Stool side involved in the transaction
signed Exhibit 1 as “Lawful Attorney of Abusuapanin” but no Power of Attorney in
respect of same was tendered in evidence. Counsel urged that since the pleadings of the
respondent in respect of this issue was at variance with her evidence on the matter, the
trial court ought not to have relied on that evidence.
This court disagrees with this submission for the reasons stated earlier on. Counsel is
placing much emphasis on minor inconsistencies in order to torpedo the judgment of the
trial court. The position of the law on minor inconsistencies is however well settled. See
the case of EFFISAH V ANSAH [2005-2006] SCGLR 943 at 960 where the Supreme Court
Per Georgina Wood JSC (as she then was) stated that:
“… in any given case, minor, immaterial, insignificant, or non-critical inconsistencies
must not be dwelt upon to deny justice to a party who had substantially discharged his or
her burden of persuasion.”
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Ground [h] is accordingly dismissed as not having been made out.
GROUND [f]
The learned judge further erred in holding that the plot in dispute belongs to the plaintiff
when she could not prove on the preponderance of probabilities that she actually put up
the structure on the said plot.
12.
Counsel for the appellant submitted that the respondent averred that she put up a
foundation on her plot up to the floor level and that she was not a mason who personally
constructed the said foundation. We must right away say that this kind of literal
interpretation which leads to an absurdity is not countenanced by the law. One does not
have to be a mason before he/she can put up a building structure. If one says that she/he
has put up a building at a location, the first impression that comes to mind is not that the
person personally put up the structure by him/herself. Based on the appellant’s false
interpretation, he contended that the respondent ought to have called either the masons
or other artisans who constructed the said foundation especially when her ex-husband
said he constructed the foundation. The critical issue was that there was a foundation on
the plot and the defendant did not deny it. Besides upon evaluation of the evidence, the
trial judge was right in rejecting the evidence of DW3, the ex-husband of the respondent
since he did not know the plot number and the number of rooms that he allegedly
constructed the foundation for. Hear him under cross-examination at page 43 of the
ROA.
“Q.
You said you had two plots of land from Oscar at Fawoade
A.
Yes
Q.
Tell the court the numbers of these plots
A.
I can’t remember”
At page 44 of the ROA, this is what transpired
“Q. At what stage of the construction did you purport to transfer the plot to the
defendant?
A.
It was only a foundation because I was not having a building permit and allocation
paper so if I build to a higher level the Council will demolish it.
Q.
Can you tell the court the number of rooms you laid the foundation for?
A.
It could be five or six, with toilet bath and kitchen.
Q.
How many rooms in all including toilet, kitchen etc.
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A.
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Eight or nine’’
Here is somebody who has no Allocation Paper, does not know the plot number has no
Building Permit, cannot give a definite answer to the number of rooms he laid a
foundation for, and yet wants to be believed that he owns the plot on which the
foundation stands.
The respondent on the other hand tendered her Allocation Paper, Site Plan, and Building
Plan in respect of the plot, all of which were admitted in evidence without objection.
Ground [f] is dismissed.
GROUND [c].
That the learned trial judge erred in holding that the defendant/appellant is not a
bonafide purchaser for value without notice.
13.
Counsel for the appellant has taken issue with the holding of the trial judge that
the appellant was not a bonafide purchaser for value without notice. Counsel submitted
that the evidence of the appellant clearly demonstrated that he exercised due care and
diligence in acquiring the plot. From pages 25 - 26 of the ROA, he outlined the following
conduct of the appellant as demonstrating due diligence on his part.
•
The plaintiff (sic) defendant requested to see the owner (Kofi Mensah) to confirm
if he owned the plot
•
The defendant asked a number of people to ascertain who owned the plot.
•
All people he met told the defendant the land was for Kofi Mensah @ Yesu Bogya
•
The defendant went to meet Kofi Mensah where he confirmed his ownership of
the plot
•
The defendant asked of documents of the land from Kofi Mensah and he showed
them to the defendant.
•
The defendant asked Kofi Mensah why he was selling and he gave a reason.
•
That this due diligence by the defendant was corroborated by DW1 and DW2
14.
Indeed, the appellant spent considerable time and energy to make enquiries. He
however did that only at the wrong places. None of the people he made enquiries from
were the lawful custodians of land records. Indeed, they all told him their perception
and what they heard from other people. None of them indicated that they ever cited any
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documentation on the plot with the exception of Kofi Mensah @ Yesu Bogya whose
documents we shall comment on shortly.
Hear DW1 under cross-examination at page 35 of the ROA.
“Q. Before you paid for the disputed plot you were never given any document that
shows that the said “Yesu Mogya” really owned that property?
A.
No.”
Hear DW2 under cross-examination at page 37 of the ROA
“Q.
Did Yesu Mogya ever show you any documents concerning the land?
A.
No. He did not personally show me the document but it was Oscar who showed me
the site plan with Yesu Mogya’s name on it”
No site plan was tendered with Yesu Mogya’s name on it to prove this assertion.
Going on at page 39 of the ROA the cross-examination of DW2 continued as follows:
“Q.
I am putting it to you that Yesu Mogya had never owned that land
A.
What I heard is that the land belongs to Yesu Mogya. The plaintiff never
mentioned that the plot belongs to her although we were very free” (Emphasis added)
Hearsay evidence is generally inadmissible in court proceedings.
The only legitimate/authoritative place that the defendant could make enquires was to
conduct a search at the Lands Commission and this he failed to do.
DW1 testified at page 35 of the ROA that “Yesu Mogya” said he was selling the plot
because of financial difficulties.
“Yesu Mogya” himself DW3 however testified as follows under cross-examination at
page 44 of the ROA.
“Q. At what stage of the construction did you purport to transfer the plot to the
defendant?
A.
It was only a foundation because I was not having a building permit and allocation
paper so if I build it to a higher level the Council will pull it down”.
The necessary and unavoidable conclusion is that he halted at the foundation not because
of financial difficulties but because of lack of documentation on the land in his name.
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15.
DW1 in his evidence-in-chief at page 35 of the ROA said they did a search (he did
not say where) and found out that the land does not bear anybody’s name. They did not
tender any search report in evidence. In any event, if you are a diligent purchaser, do
you buy property, landed one at that from a named person when your own search reveals
that the land does not belong to any named person?
Naturally Counsel for the respondent successfully debunked this Ground [c] of the
Additional Grounds of Appeal. Counsel relied on several authorities in support of the
legal principle that a bonafide purchase for value without notice will be protected where
he/she demonstrates that he/she purchased the property without notice of any
encumbrance on it. In the case of KUSI & KUSI VRS BONSU (2010) SCGLR 60 the
Supreme Court per Holding 8, stated that
“A party seeking to rely on the doctrine of bona fide purchaser for value without notice,
was enjoined to prove that he had no notice at all of his opponent’s interest in the property;
not that he had the notice but he did not think or find that the notice conformed to law.
Equity would look to the intent rather than the substance and would clearly not endorse
any such technicality, intended to defeat the ends of justice. …”
Submitting that a prudent purchaser of land is required to make the necessary searches
and enquiries to be satisfied that the property is unencumbered, before going ahead to
make his purchase, Counsel referred to the case of BOATENG VRS DWINFUOR (1979)
GLR, 360 at 367 where Annin JA (as he then was) posited thus quoting Sneils Principles
of Equity (26th Edition) at page 59:
“… if the purchaser has whether deliberately or carelessly abstained from making those
enquiries into the title of his vendor that a prudent purchaser would have made, he will be
affected with constructive notice of what appears upon the title of the vendor. Apart from
investigating the deeds, a prudent purchaser will inspect the land itself. If any land is
occupied by any person other than the vendor, this occupation is constructive notice of the
estate or interest of the occupier. ...”
16. Counsel submitted that the appellant, having failed to be diligent in inspecting the
documents of ownership of the land as outlined earlier on, and also having failed to
inspect the drawings of the foundation that he did not lay cannot be considered as a
bonafide purchaser for value without notice. Instead of requesting his grantors for
evidence of their ownership of the property, the appellant aggravated his case by
expediting his construction of the building when he was confronted by the plaintiff which
led to the subsequent arrest of him and grantors by the Police. Ground [c] of the grounds
of appeal is dismissed.
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GROUND [e]
The learned judge erred when he shifted the burden of proof on DW3 when he was not a
party to the instant suit
17.
Counsel for the appellant contended that under the law, it is only parties to an
action/case who carry the burden of proof and that therefore in so far us DW3 was not a
party to the suit, it was wrong for the trial judge to require him to prove his title to the
land in dispute.
It is trite learning that in land litigation one must prove his title and this includes the root
of his title. In the case of MONDIAL VENEER [GH)LTD V AMUAH GYEBU XV [2011]
1 SCGLR 466 AT 475 the Supreme Court held as follows:
“In land litigation, even where living witnesses who were directly involved in the
transaction under reference are produced in court as witnesses, the law requires the person
asserting title, and on whom the burden of persuasion falls, as in the instant case, to prove
his root of title, mode of acquisition and various acts of possession exercised over the subject
matter of litigation. It is only where the party has succeeded in establishing these facts on
the balance of probabilities that the party would be entitled to the claim”.
The appellant has the burden of persuasion to prove his title. He can do this by himself
and/or through the witnesses that he produces in court. In this case the appellant traced
the root of his title to DW3. The appellant could thus choose to join DW3 as a defendant
when his title was challenged by the respondent or call him as a witness. In either case,
DW3 would have been required to give evidence which will establish his title in support
of the appellant’s case. Even though the defendant did not counterclaim in this action,
yet in so far as he averred in his defence that his plot was different, he was duty bound
to establish that by cogent evidence. This he sought to do by his testimony and that of
his witnesses including DW3.
DW3 signed the Indenture Exhibit 1 granting his land to Oscar Ofori Atta. DW3 in his
evidence said he mandated Oscar Ofori Atta to sell the land. DW3 said he constructed
the foundation on the disputed plot. DW3 as the vendor of the appellant has a duty to
establish the validity of his title to assure the purchaser of peaceful and quiet enjoyment
of the property. DW3 did not show any Receipt, Allocation Note or Site Plan in respect
of same. This is what the trial judge wrote in his judgment found at page 58 of the ROA
and not 59 as indicated by Counsel for the appellant
“DW3 did not satisfactorily prove that he owned the disputed plot by failing to produce
any document to that effect. Between the plaintiff and DW3, the plaintiff has proved on
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the preponderance of probabilities that she is the owner of the disputed plot since there was
no material evidence impeaching the credibility of her documentary evidence …”
The trial judge was thus right in holding that DW3 did not satisfactorily prove that he
owned the property because DW3 indeed bore that burden of persuasion to establish the
validity of his title. An evaluation of the entire evidence clearly shows that the evidence
led by DW3 did not support the case of the appellant who as a party to the suit also bore
the burden of persuasion to prove his case. Ground [e] of the additional grounds of
appeal is thus dismissed.
GROUND [g]
That the general damages of GH5,000.00 awarded against the defendant/appellant as
well as the costs of GH2,000.00 are unreasonable and without basis having regard to the
fact that the plot in dispute did not belong to the plaintiff.
18. On the award of Gh⊄5000.00 as general damages and Gh⊄2,000.00 as costs against
his client Counsel contended that the general damages awarded by the trial judge was
rather exemplary damages. He contends that no such damages or costs ought to be
awarded against the appellant since he ought to have won the case. The award of general
damages and costs are largely within the discretion of the trial judge. The circumstances
under which an appellate court can interfere with the discretion of a trial court have been
laid out in several decided cases. In the case of SAPPOR V WIGATAP LTD [2007-2008]
SCGLR 676 at 679, the Supreme Court, per Georgina Wood JSC (as she then was) put it
thus:
“The well-known and time-honoured legal principle, is that an appeal against a decision
based on the exercise of a court’s discretionary jurisdiction would succeed only in those
clearly exceptional cases where, in sum, the judge failed to act judicially. … an appellate
court would interfere with the exercise of discretion where the court below applied wrong
principles, or the conclusion reached would work manifest injustice or even that the
discretion was exercised on wrong or inadequate material”
Again, in NKRUMAH V SERWAAH & ORS [1984 – 1986] 1 GLR 190 at 198, the Court of
Appeal, speaking through Osei-Hwere J A stated thus:
“The granting or refusal of the application for leave to amend pleadings is discretionary,
and the Court of Appeal will not interfere with the exercise of that discretion unless it is
satisfied that the trial judge applied a wrong principle or it can be said that he reached a
conclusion which would work manifest injustice:”
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Also see the case of KYENKYENHENE V ADU [2003 -2004] 1 SCGLR 142 where the
Supreme Court reiterated the point that only arbitrary, capricious and uninformed
conclusions stand in danger of being reversed on appeal.
Our analysis of the evidence on record has revealed that the circumstances under which
an appellate court can interfere with the discretion of a trial court as outlined above have
not been made out by the appellant.
Ground [g] of the additional grounds of appeal is therefore dismissed.
GROUND [a]
That the judgment is against the weight of evidence.
19.
As is well known, relying on this omnibus ground of appeal implies that there are
some pieces of evidence which if they had been properly applied in favour of the
appellant would have changed the case in his favour. The appellant is under a duty to
point these instances out.
In DJIN VRS. MUSAH BAAKO [2007 – 2008] 1 SCGLR 686, the Supreme Court held per
Holding 1 that:
“Where (as in the instant case) an appellant complains that a judgment is against the
weight of evidence, he is implying that there were certain pieces of evidence on the record
which, if applied in his favour, could have changed the decision in his favour, or certain
pieces of evidence have been wrongly applied against him. The onus is on such an appellant
to clearly and properly demonstrate to the appellate court the lapses in the judgment being
appealed against.”
The appellate court also has a duty as part of the function of rehearing the case to consider
the totality of the evidence on record before coming to a conclusion on the matter. In
TUAKWA V BOSOM [2001 - 2002] SC GLR 61 at 65 Sophia Akuffo JSC (as she then was)
put it thus:
“Furthermore, an appeal is by way of a rehearing, particularly where the appellant alleges
in his notice of appeal that the decision of the trial court is against the weight of the
evidence. In such a case, although it is not the function of the appellate court to evaluate
the veracity or otherwise of any witness, it is incumbent upon an appellate court, in a civil
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 a preponderance of the probabilities, the conclusions of the trial judge are
reasonably or amply supported by the evidence”.
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20. Counsel for the appellant contended that the plaintiff/respondent’s Allocation Note
was not signed by two other persons whose names were on the Allocation Note as
signatories, namely Hanna Ofori Atta [Obaapanin for Oheneyere] and Nana Kwabena
Mensah [Overall Head]. He submitted that for the Allocation Note to be valid, all these
people must sign same. Counsel also submitted that as Oscar Ofori Atta signed as
Attorney and not as Principal, same was invalid because he did not produce a Power of
Attorney. He submitted that if the trial judge had examined the Allocation Note well, he
would have rejected same and the respondent’s case would have failed. He also
contended that the respondent and her witnesses gave conflicting evidence about how
she acquired the plot. Counsel pointed out that the respondent said she bought the land
personally from Oscar Ofori Atta and agreed on the price of Gh⊄120.00 which she paid;
that PW1 said at the first page 22 of the ROA (there are two pages both numbered 22) that
“the husband of the plaintiff said he bought the land from Oscar and gave it to the wife”.
PW1 also said at the same page 22 that “the plaintiff said it was the same Oscar Who sold
the plot to her”. Counsel submitted that with these conflicting positions, the trial judge
ought not to have believed the case of the respondent.
21. Counsel for the appellant also pointed out that PW1 in his evidence-in-chief said the
respondent narrated to him that Oscar Ofori wanted to sell the plot to Kofi Mensah but
he could not, and that she the respondent expressed interest in the plot and purchased
same. This can be found at the first page 22 of the ROA. Counsel contended that the
respondent herself never gave such evidence in court and for that reason the respondent
ought to be treated as an untruthful person. It is true that respondent herself did not give
that piece of evidence in court. However, at the time PW1 gave that piece of evidence, he
was not challenged by the appellant who was in court. Same is deemed to have been
admitted.
Counsel for the respondent on his part, referred to other pieces of evidence that support
the findings of the trial judge. He said the appellant admitted that there was a foundation
laid to the floor level when he purchased the plot and also admitted that he built on that
foundation which turned to be the plan of the respondent. This is a solid ground to
support the judgment in favour of respondent for her relief (a). For all the reasons
outlined earlier on, we find that the trial judge was right in believing the position of the
respondent.
Ground [a] being the omnibus ground of appeal fails and is dismissed.
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22.
One other matter needs to be pointed out before we conclude this judgment. This
has to do with DW3 and his ownership of the plot in dispute. In his evidence in chief at
page 41 of the ROA he testified as follows:
“The plot that the plaintiff is claiming as hers is not hers but it belongs to me. It was one
Oscar Ofori Atta who gave the land to me in return for some financial assistance I helped
him to secure. He sold one plot to me and gifted one plot to me. The one in dispute was
sold to me on credit …”
Under cross examination at page 42 of the ROA DW3 testified thus:
“Q.
You stated that you allegedly acquired two plots from Oscar?
A.
He sold one to me and gifted one to me. The one he gifted is water logged so I did
not go into that one “(Emphasis added).
At page 45 of the ROA the cross-examination continued thus:
“Q.
You said you have two plots of land at Fawoade New Site?
A.
Yes.
Q.
That one was gifted to you and the other sold to you by Oscar?
A.
Yes.
Q.
The disputed plot is not the one gifted to you?
A.
Yes.”
All these unequivocally point to the fact that the plot in dispute was the one DW3 bought
and which he allegedly authorized Oscar Ofori Atta to sell on his behalf. Exhibit 1 was
tendered in support of this. Now what does Exhibit 1 say? Exhibit 1 is found at page 71
of the ROA. I quote the first paragraph verbatim as follows:
“THIS INDENTURE IS made between KOFI MENSAH ALLIAS YESU BOGYA on the
one part and OSCAR OFFORI-ATTAH of Fawoade on other Party. (sic)
That I, KOFI MENSAH of Kumasi, a Driver, today counter balance with a Plot OSCAR
OFFORI-ATTAH gifted to me at Fawoade on Plot 8 Block O and endorsed by Nana
Agyemang Barnie of Fawoade on the hard working and some financial assistance I, KOFI
MENSAH rendered to OSCAR OFFORI-ATTAH on mapping, Demarcating, Surveying
and plotting the land on instructions by NANA AGYEMANG BARNIE and late KOFI
AMOAKO II…” (Emphasis added)
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If the land DW3 authorised to be sold, is the one gifted to him which is water logged and
which he did not go into, how come he is using that document as evidence of ownership
of a plot that was sold to him and on which there was a foundation? Even if the said plot
allegedly sold to him is his property, which we find to be not, he cannot use a document
relating to a water-logged plot that was gifted to him as proof of title to that other land
which has a foundation on it. Exhibit 1 rather than supporting the case of the appellant
has rather collapsed and shredded his case.
The appeal is consequently dismissed in its entirety and the judgment of the trial court
affirmed.
SGD.
ANGELINA M. DOMAKYAAREH (MRS)
(JUSTICE OF APPEAL)
SGD.
E. K. AYEBI JA
I AGREE
E. K. AYEBI
(JUSTICE OF APPEAL)
SGD.
TORKORNOO (MRS), JA
I AGREE
G. TORKORNOO (MRS)
(JUSTICE OF APPEAL)
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