WOOD VRS MENSAH (H1/139/2018) [2020] GHACA 23 (28 May 2020)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE COURT OF APPEAL (CIVIL DIVISION), ACCRA – GHANA CORAM: VICTOR D. OFOE JA PRESIDING CECILA HANZZY SOWAH JA P. BRIGHT MENSAH JA SUIT NO. H1/139/2018 28TH MAY 2020 BETWEEN: MRS NAOMI WOOD … PLAINTIFF/APPELLANT vs REGINA MENSAH … DEFENDANT/RESPONDENT ========================================================= JUDGMENT ======================================================== MENSAH JA: This appeal is in a very narrow compass. The appeal filed by the plaintiff/appellant simply referred to as the “appellant” is against the decision of Ocran J., sitting at the High Court, Accra (Land Division) delivered 14th day of November 2014. Historical background: Per her writ of summons sealed in the registry of the High Court, Accra [Land Division] the appellant had claimed against the defendant/respondent simply referred to as “the respondent” the following judicial reliefs: a) Declaration of title to the land situate at Kingsby Junction, New Achimota, Accra and particularly described in the deed of gift dated 12 March 1962 and made by Dorothy Wood (deceased) and registered in the Deeds Registry as No. 3145/1976. b) Damages for trespass to the land, subject matter of this suit. c) Recovery of possession of the land, subject matter of this suit. d) An order for perpetual injunction restraining the defendant, her agents and workmen from entering into, or interfering with, or in any manner dealing with the land subject matter of this suit. To the claim, the respondent filed a defence contending that a search she conducted at the Land Title Registry showed that the appellant has no interest in the land, the subject matter of this appeal. It is on record that the appellant applied for and obtained an order for the appointment of a surveyor to superimpose the site plans of the parties and to prepare a composite plan. See: p 53 of the record of appeal. Pursuant to the order of the appointment of the surveyor, both the appellant and the respondent filed their respective survey instructions. See: pp.54-55 and p.58 of the record of appeal respectively. The surveyor, Daniel Adomako Agyemfowa working with the Surveying & Mapping Division of the Lands Commission, Accra having been commissioned to undertake the job, prepared a composite plan on the disputed plot. He mounted the witness box on 03/02/2014 to tender his report and defend it. After tendering the composite plan, he was then subjected to cross-examination by the lawyer for the plaintiff. See: pp 118 – 120 of the record of appeal. The cross-examination continues on pp 127-130. It is instructive that whilst the Surveyor [witness of the court] was still in the witness-box and under cross-examination, the lawyer for the defendant filed a motion to amend the statement of defence to add a relief of a counterclaim for recovery of possession to the respondent’s defence. The motion was granted by the court on 01/04/2014. See: p. 130 of the record of appeal. Subsequent to the leave of the court, the respondent filed her counterclaim on 03/04/2014. See: pp 131 – 132 of the record of appeal. Significantly, prior to the filing of the motion for leave to amend the defence, the appellant had filed on 17/10/2012, an application for interlocutory injunction against the respondent. The motion and the accompanying affidavit together with its annexures appear on pp 11 – 25 of the record of appeal. The court notes as appearing on pp 112 - 116 of the record of appeal indicates that the court on 24/07/2013 permitted the lawyers to argue the application for the interlocutory injunction. The court then adjourned the matter for a Ruling to be delivered on 14/11/2014. The Ruling delivered on 14/11/2014 appears on pp 158 – 163 of the record of appeal. If the records of the court are anything to go by, it means that the court took over a year to deliver its Ruling on the application for the interlocutory injunction and proceeded to dismiss the appellant’s claim. It is instructive to observe that after the arguments by Counsel, but before the court gave its Ruling on 14/11/2014, the court extended an invitation to the Surveyor to offer evidence on his prepared composite plan. Whereas there is that lack of evidence that the Surveyor who was still under cross-examination has been discharged from the witness- box, the court went ahead and delivered its Ruling on the motion for interlocutory and as stated supra, in the process dismissed the appellant’s suit. It is against this Ruling that the appellant has launched the instant appeal on the grounds that: 1. Having found that part of the land claimed by the defendant fell within the land belonging to the plaintiff, the trial judge erred in dismissing the plaintiff’s action. 2. The learned trial judge erred when it summarily dismissed the plaintiff’s claim endorsed on her writ of summons. 3. The finding by the trial judge that the plaintiff perpetrated fraud on court is not supportable in the circumstances of this court. 4. The judgment is against the weight of evidence. See: Notice of Appeal appearing on pp 166 -167 of the record of appeal. Arguments in support of the appeal: It is noted for the record that the lawyer for the appellant in her written address has indicated that she intended to abandon Ground 1 of appeal but would combine Grounds 2 & 3 and argue them together whilst finally arguing Ground 4. Grounds 2 & 3: Marshalling arguments that the procedure the trial judge adopted by aborting the proceedings and dismissing the appellant’s case at the pre-trial stage was wrong, learned Counsel first stated that the summary process of determining cases does not afford parties the opportunity to put their whole case across. That procedure is sparingly used particularly when it bordered on fraud, Counsel stressed. In support, she referred us to a very popular English case, Eso Petroleum Co. Ltd v Southport Corp. (1956) AC 218. She also drew the court’s attention to Blay v Polard & Morris (1930) 1 KB 628 @ 634 adopted and applied in Mohammed Odartey Lamptey v Lands Commission (2019) GMJ 82 where the court held: “………………. cases must be decided on the issues raised on the record; and if desired to raise other issues they must be placed on the record by amendment. In the present case the issue on which the judge decided was raised by himself with- out amending the pleading and in my opinion he was not entitled to take such a course.” Next, Counsel referred the court to the principle stated in Dam v Addo (1962) GLR 200 SC, to the effect that a judge cannot proprio motu substitute a case inconsistent with the one put forward by a party. She contended that by using the summary process to dismiss the entirety of the appellant’s case, the trial judge denied the appellant the opportunity to present her case and for the court to make a determination on it. She stated further that the trial judge completely misdirected himself when he determined ownership of the disputed land at the stage where the court’s duty in the application for interlocutory injunction was to determine whether the appellant had a prima facie case to enable the court to exercise its discretion in holding the scales evenly between the parties until the trial was concluded and final orders made. Counsel submitted again that the court failing to give the appellant the opportunity to establish her claim, denied her the elementary right to be heard and for the court to determine the rights of the parties based on evidence then led on record. Impugning the rightness of what the court did, learned Counsel referred us to a statement of law espoused by the Supreme Court in Pobee, Tufuhene Elect of Apam v Yoyoo (2012-2014) 1 SCGLR 208 @ 211 that runs as follows: “…………… This appeal raises for our consideration, a point of law that is at the heart of our judicial system and the extent to which non-compliance with it, may have the effect of in- validating any decision rendered in a case where such a non- compliance did take place. The said point of law is this; whether a tribunal that has jurisdiction to determine a subject matter may by pursuing a course of procedure that denies a party to the cause the right to be heard, might thereby act in excess or lack of jurisdiction……………………………………..” On the same point that the court denied the appellant her fundamental right to be heard, Counsel also relied on the dictum of Adinyira JSC when she stated in In re: Kumi (dc’d); Kumi v Nartey (2007-2008) SCGLR 623 @ 632-633 as follows: “………………….. it is trite law that a person cannot be found guilty or liable on order or judgment unless he had been given fair notice of the trial or proceedings to enable him to prepare and defend himself. This is the essence of justice. Failure by a court or tribunal to do so would be a breach of the rules of civil procedure and natural justice. A judgment or order procured under such circumstances is in our view, a nullity.” Learned Counsel submitted finally that the learned trial judge by denying the appellant an opportunity to adduce evidence to explain the disparities in the dates on the land title certificate and the cadastral plan on the account that the appellant had perpetrated fraud ought to be set aside as nullity. As regards the issue of fraud, Counsel articulated that matters that are to pleaded particularly fraud, are governed by Order 11 r 8 of the High Court (Civil Procedure) Rules, 2004 – CI 47. Counsel insisted that the trial judge erred when he dismissed the case when no fraud was pleaded and proved by the respondent. She referred to p. 162 of the record of appeal where the trial court proceeded on the basis that the appellant’s Land Certificate was dated 1st March 1994 yet the cadastral plan upon which it was issued was dated 3rd December 1994 and dismissed the claim. The trial judge had explained that the practice was that before a land certificate was issued to a party, a parcel plan was prepared and where there were no encumbrances, the certificate was then issued. It was never the case that a certificate was issued before a parcel plan was prepared, the court stated further. To the procedure adopted by the trial judge, learned Counsel for the appellant has reiterated that the allegation of fraud by the court was not based on any action or inaction on the part of the appellant in the preparation of her land documents. She submitted that in absence of the respondent pleading and particularizing the criminal elements of fraud and or facts to satisfy the court beyond reasonable doubt that there has been fraud, the trial judge erred when he proprio motu raised it and on that basis proceeded to dismiss the case. In support of that legal proposition, Counsel referred the court to plethora of cases including Okwei Mensah (decd) (acting by) Adumuah Okwei v Laryea (decd) (acting by) Asieteye Laryea & Anr (2011) SCGLR 317 where in a response to a plea of fraud raised by the plaintiff, the court held: “………………..it must be pointed out that fraud qua fraud is is such a serious allegation in legal proceedings that it should not be pleaded when counsel could not, from available instruct- ions, form a strong opinion in favour of it…………………………” Counsel also relied on a statement of law stated by Sophia Adinyira JSC in Osei-Ansong & Passion International School v Ghana Airports Co. Ltd thus: “[The Supreme Court] must stress that fraud is not fraud merely because it has been so stated in a writ to excite the feelings of the courts.” Arguments in reply by Counsel for the respondent: In response, learned Counsel for the respondent referred copiously to the claim of the appellant contained both in the endorsement on her writ and in her statement of claim as well the respondent’s statement of defence. He then referred to the court notes regarding the appellant’s motion for interlocutory injunction and the court’s appointment of the Surveyor. Counsel next referred to that aspect of the evidence, the basis upon which the court held that the appellant perpetrated fraud on the court and submitted that the criticism by learned Counsel against the trial judge has no merit at all. He referred us to the Black’s Law Dictionary 9th ed by B. A Garner that defines fraud as: “A knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment.” Proceeding further, Counsel conceded that although fraud must be pleaded, he submitted nevertheless, that the court was enjoined not to ignore if fraud was clear on the record. In support, he relied on the decisions of the Supreme Court in Appeah & anr v Asamoah (2003-2004) 1 SCGLR 226 and Amuzu v Oklikah (1998-99) SCGLR 141 @ 143. Counsel additionally referred us to the cases of Dzotepe v Harhome III (1987-88) 2 GLR 681 SC and Okofoh Estates Ltd v Modern Signs Ltd (1996-97) SCGLR 233 @ 253 to buttress his argument. He subsequently invited the court to dismiss the appeal as lacking any merit. Findings of this court: An appeal is by way of rehearing. See: Nkrumah v Attaa (1972) 2 GLR 13. Where the court below comes to the right conclusion based on the evidence and the law, the judgment of the court below is not disturbed. It is only where the judgment is unsupportable that attracts an upset on appeal. An appeal being by way of rehearing the case, the appellate court is enjoined by law to scrutinize the evidence led on record and make its own assessment of the case as though it is the trial court. To begin with, to appreciate the context in which the instant appeal has been launched, it is appropriate to advert our minds to the relevant portions of the judgment/ruling of the trial court dealing with the issue. The learned judge having recounted the respective claims of the parties then proceeded to hold: “In this application the plaintiff/applicant’s certificate has been made available as Exhibit C and it is dated 1st March 1994; the defendant/respondent’s certificates are exhibits “A and A1”. Exhibit “A” is dated 20th June 2008 and the other one which is supposed to be Exhibit “A1” but has no number is dated 22nd December 2011. Even though this application could have been moved without any reference to the Survey and Mapping Division of the Lands Commission, the court differently constituted made an order on 16th November 2012 on an application by the plaintiff/applicant that a composite plan should be prepared and same was granted and the order has been complied with. The parties filed survey instructions. The plaintiff/applicant filed only plan number Z5232 and requested that it should be superimposed. The plaintiff/applicant did not however file the certificate number GA 6857. I have held that the order to appoint a surveyor was not necessary because from all intent and purposes, the Plaintiff/applicant had perpetrated fraud on the court, yet the court then differently constituted and Counsel for the defendant did not notice the fraud. The plaintiff/applicant land certificate is dated 1st March 1994 yet the cadastral plan upon which the certificate is said to have been issued is dated 3rd December 1994. The registration is said to be based on the original deed of gift dated 12th March 1962 mentioned in paragraph 1 of the statement of claim which is deed number 2686/1976.” The learned trial judge justifying the alleged fraud the appellant perpetrated on the court, proceeded to hold further: “The practice is that before a land certificate is issued, a parcel plan is prepared and where there are no encumbrances the certificate is issued. It is never the other way round that a certificate is issued before a parcel plan is prepared. Again, since the plaintiff/applicant secured its land certificate before the defendant’s certificates were issued, the defendant’s two certi- cates would not have been issued if the defendant’s two parcels of land fell within the plaintiff’s land. Since no queries were raised against the defendant’s two certificates, it is my holding that they were properly issued….” We think that the learned trial judge seriously goofed when he held that the order for the appointment of the Surveyor made by a court of competent jurisdiction though differently constituted, was unnecessary. First, it is trite law that where a court grants declaration of title to land or makes an order for injunction, the land the subject of that declaration or the order should be clearly identified so that an order for possession can be executed without difficulty. If the boundaries of such land are not clearly established, a judgment or order of the court will be in vain. See: Anane & ors v Donkor & anr (consolidated) 1965 GLR 188 SC. We hold that the court differently constituted was right in making the order based on the law as stated in Anane v Donkor (supra), for the appointment of the surveyor to survey the land because the parties were laying claim to the disputed land though the dimension of the claim differed from each other. Next, we endorse the appointment of the surveyor since that would have assisted the court in identifying the real portion of land in controversy so that any judgment or order of injunction granted in the case would not have been in vain. Put differently, a judgment or order of injunction given in respect of land ought not be rendered in a vacuum. Now, on the issue of fraud, it is common ground as outlined in submissions of both Counsel that fraud as sanctioned by the rules of court must be pleaded. Their point of departure however, as advocated by Counsel for the respondent, was whether the lack of pleading in this case there was evidence on record to found fraud as the court did. The settled principle of law is that fraud vitiates everything. Therefore, when fraud is brought to the notice of the court and there is credible evidence to support it, the court is obliged to deal with it swiftly and decidedly. See: In re: West Coast Dyeing Industries Ltd (1984-86) 2 GLR 561 @ 605. However, there is an unbroken chain of judicial authorities to the effect that for a court to found fraud, it ought to be pleaded and particularized and proved strictly. In Darbah v Ampah (1989-90) 1 GLR 598 the Court of Appeal stated the law that where fraud was pleaded, particulars must be given. Consequently, where no particulars were given, it must be taken that fraud never existed or that the averment amounted to a mere denial. Lord Denning in Lazarus Estates Ltd v Beasley (1956) 1 All ER 341 @ 345 is credited with that statement of law that the court is careful not to found fraud unless it is distinctly pleaded and proved, but once it is proved, it vitiates judgments, contracts and all transactions whatsoever. So pleading fraud is sine qua non for the finding of fraud and by rule of practice and evidence, the standard of proof of fraud even in civil suits is a proof beyond reasonable doubt. See: S. 13(1) of the Evidence Act, 1975 (NRCD 323) that enacts: “(1) In a civil or criminal action, the burden of persuasion as to the commission by a party of a crime which is directly in issue requires proof beyond a reasonable doubt.” For purpose of clarity, it is prudent to resort to the rules of the High Court that deal with matters that are specifically to be pleaded. Order 16 r 8 of the High Court [Civil Procedure] Rules, 2004 [CI 47] provides: “8. (1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any limitation provision, fraud or any fact showing illegality (a) which the party alleges makes any claim or defence of the opposite party not maintainable; or (b) which, if not specifically pleaded, might take the opposite party by surprise; or (c) which raises issues of fact not arising out of the preceding pleading.” [emphasis underscored] The Supreme Court speaking through Pwamang JSC in John Kwadwo Bobie v 21st Century Construction Ltd & 7 ors – Civil Appeal No. J4/5/2014 dated 9TH MARCH 2016 (unreported) is credited with that statement of law stated hereunder: “The position of the law is that for a judgment or an order of a court to be impeached on grounds of fraud, it must be shown that the alleged fraud related to the central issue for determination before the court and that it was the main ground for the judgment. Put in another way, the party impugning a judgment on grounds of fraud must first prove the alleged fraud and further demonstrate that if the fraud is taken out, the judgment cannot stand.” [emphasis underscored] Admittedly, Amuzu v Oklika and Appeah v Asamoah (supra) are good law by all standards. However, those cases ought to be consigned to their own peculiar facts and circumstances. It is plainly obvious reading those cases, that evidence was led in them before the court came to the conclusion that although no fraud was pleaded, once it was lurking on the face of the record, it could not be ignored. Indeed, Supreme Court in Amuzu v Oklika (1997-98) GLR 89 @ 91 held as follows: “Although contrary to the requirement of Order 19, rr 6 and 16 of the High Court (Civil Procedure) Rules, 1954 (LN I40A) that fraud had to be specifically pleaded and the particulars given in the pleading, the appellant failed to plead the respondent's fraud, yet since the respondent did not object to the appellant's evidence that the respondent had been aware of the fraud perpetrated by the vendor and as such he was a particeps criminis, the respondent had not been taken by surprise when the issue of fraud was raised. Accordingly, by the provisions of sections 5, 6 and 11 of the Evidence Decree, 1975 (NCRD 323) the court was entitled to make its own inferences and findings on the issue and interpretation of any legislation relevant to the issue of fraud.” [emphasis mine] It is deduced from this statement that it is recognized that an allegation of fraud must be pleaded. However, if the other party against whom it is alleged did not object to it in terms of S.6 of the Evidence Act (NRCD 323) and was therefore not taken by surprise, the court was then enjoined by law to pronounce on it. It is the judgment of this court that although the court has that unlimited power to strike a case down on account of fraud, the evidence the basis on which it shall proceed to do so must be led by the proponent of the allegation of fraud. Even where fraud was not pleaded, there must be evidence led on record and if not objected to in terms of Ss 5 & 6 of the Evidence Act, 1975 (NRCD 323), then the court can proceed to act or pronounce on it. The evidence must therefore come from either party in the case and not a court witness or the court itself as was done in the instant appeal. The Surveyor in the witness box was an officer of the court and for that matter, its witness. In the circumstance, the court could not have acted on that evidence alone even if it had some misgivings about the appellant’s claim, to dismiss the case without giving the appellant an opportunity to be heard on the allegation and or on the merits of the case. Additionally, we think that fraud was not central issue in the case. Thus, on the authority of John Kwadwo Bobie v 21st Century Construction Ltd (supra) the learned trial judge grievously erred when he proprio motu raised it. In the light of the above, we want to state that those cases Counsel for the respondent referred to supra and relied on although may represent good law, they ought to be consigned to their own peculiar facts and circumstances. Now, on the summary termination of the case, it is worthy of repetition that whilst the court witness [Surveyor] was still in the witness-box for continued cross-examination, the respondent in the instant appeal did obtain leave of the court to add to her defence, a counterclaim for recovery of possession. Having done so, the consequence was that the respondent also put her title in issue. Indeed, in Kpakpo Brown v Bosomtwi & Co. (2001- 02) SCGLR 876 where both parties were claiming title to the disputed land, the Supreme Court speaking through Ampiah JSC @ p. 879 stated the law thus: “………….. both parties had the equal task of identifying the land they each claimed, with clarity. This they discharge by showing clearly all the boundaries of the land and what overt acts of ownership they have exercised on the land over the years.” We think the termination of the case at the stage when the surveyor was still under cross- examination, was to say the least, quite revolutionary and a serious error committed by the trial judge. The position the lower court adopted is unknown to the rules of procedure and therefore, unlawful and or improper exercise of discretion or in excess of jurisdiction. Without giving hearing to the appellant before pronouncing on the merits of her case was a serious breach of the rules of natural justice. On this point, I find a useful passage from Broom Legal Maxims (9th ed p. 78) that states that it has long been a received rule that no one is to be condemned, punished, or deprived of his property in any judicial proceedings unless he has had an opportunity of being heard. Restating the principle in R v Appeal Committee of London Quarter Sessions; Exparte Rossi (1956) 1 All ER 670 @ 674, Lord Denning is credited with the statement of law that runs as follows: “……… It is to be remembered that it is a fundamental principle of our law that no one is to be found guilty or made liable by an order of any tribunal unless he has been given fair notice of the proceedings so as to enable him to appear and defend them. The common law has always been very careful to see that the defendant is fully apprised of the proceedings before it makes any order against him.” On the authority of R v High Court, Bolgatanga; Exparte Hawa Yakubu (2001-2002) SCGLR 53 the decision of the lower court is a fertile ground to be quashed or upset on appeal. Consequently, grounds 2 and 3 of the appeal are allowed. Ground 4: Now, having regard to the conclusion that fraud was not central to the determination of the case and that the lower court grievously erred in raising it proprio motu and terminated the case prematurely, with the consequence that there was a miscarriage of justice, we think it shall be absolutely needless to consider the next leg of ground of appeal ie that the judgment was against the weight of evidence. We hold that on the totality of the evidence, there is merit in the appeal. Consequently, the appeal is allowed. We hereby set aside the judgment of the lower court and in the interest of justice, order a retrial of the suit. SGD P. BRIGHT MENSAH (JUSTICE OF APPEAL) SGD V. D. OFOE (JUSTICE OF APPEAL) SGD CECILIA SOWAH, (JUSTICE OF APPEAL) OFOE JA, I agree SOWAH JA, I also agree COUNSEL A. G. BOADU FOR DEFENDANT/RESPONDENT 18