GIHOC REFRIGERATION & HOUSEHOLD vs. JEAN HANNA ASSI [2006]DLSC2422

Date	2006-02-01
Suit No.	CIVIL APPEAL NO. J4/11/2005
Citation No.	[2006]DLSC2422

AKUFFO (MS) (PRESIDING)

DR. DATE-BAH J.S.C

PROF. OCRAN J.S.C

ANSAH J.S.C

ANINAKWA J.S.C.

AHENKORAH FOR APPELLANT CROSS-RESPONDENT.

AMEGATCHER WITH MRS. AFARLEY DADSON EDMOND FOLEY AND MRS.

VICTORIA BARTH & PETER OKUDZETO FOR RESPONDENT CROSS APPELLANT

[2006]DLSC2422
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													<main id="main" class="content" style="min-height: 60rem" >GIHOC REFRIGERATION &amp; HOUSEHOLD<o:p></o:p>vs.<o:p></o:p>JEAN HANNA ASSI<o:p></o:p>SUPREME
COURT<o:p></o:p>CIVIL
APPEAL NO. J4/11/2005<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE: 1ST FEBRUARY 2006.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>AHENKORAH
FOR APPELLANT CROSS-RESPONDENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AMEGATCHER
WITH MRS. AFARLEY DADSON, EDMOND FOLEY AND MRS. VICTORIA BARTH &amp; PETER OKUDZETO
FOR RESPONDENT CROSS APPELLANT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

AKUFFO
(MS) (PRESIDING), DR. DATE-BAH, J.S.C., PROF. OCRAN, J.S.C., ANSAH, J.S.C.,
ANINAKWA, J.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>J U D G M E N T<o:p></o:p>AKUFFO (MS), J.S.C.<o:p></o:p>&nbsp;I have been fortunate to have had previous
sight of the opinion about to be read by my learned brother Dr. Date-Bah, JSC
and I am in agreement with his conclusion that the substantive appeal must be
dismissed. I fully support his reasons leading to this conclusion.
Unfortunately, however, I cannot agree with his conclusion regarding the
Respondent’s cross-appeal. Rather, for the reasons stated in his dissenting
opinion on the matter, I join my esteemed brother Prof. Ocran JSC in the view
that the cross appeal should succeed. I, however, wish to express myself
further on this aspect of the matter before us.<o:p></o:p>Throughout
the trial of this matter, the Respondent’s original ownership of the property
was never in any serious question, and, therefore, once the trial judge found
that the Appellant had never acquired any adverse title to the same, it
necessarily followed that the Respondent remained the owner thereof, since his
title had never been affected by the government’s confiscatory action and the
Appellant’s occupation of the land. Hence, the trial judge’s declaration of the
Respondent’s title was in the nature of a consequential relief, a verbalisation
of a status that was necessarily implied by his findings. <o:p></o:p>It
needs to be noted that of the issues set down for trial, issue 2 of the
Additional Issues read as follows:-<o:p></o:p>“Whether
or not the Defendant holds full legal title to the property in question.”&nbsp;&nbsp; <o:p></o:p>Thus,
in the course of the trial, the Respondent tendered, through the Appellant,
without any objection, various correspondence (exhibits 1 – 6), which
overwhelmingly establish the Respondent’s title to the land and the
Respondent’s entitlement to immediate possession thereof. Additionally, the
Respondent’s Land Title Certificate no. GA 8570, issued by the Land Title
Registry was placed into evidence as exhibit 8. Now, Section 43(1) of the Land
Title Registration Law, 1986 (PNDCL 152) stipulates that:-<o:p></o:p>“Subject to subsections (2), (3) and
(4) of this section and section 48 of this Law, the rights of a registered
proprietor of land whether acquired on first registration or acquired
subsequently for valuable consideration or by an order of a Court, shall be
indefeasible and shall be held by the proprietor together with all privileges
and appurtenances attaching thereto free from all other interests and claims
whatsoever.” <o:p></o:p>&nbsp;(It is clear that the section and subsections
to which this provision is made subject are inapplicable to the facts of this
matter). <o:p></o:p>The
learned trial judge, therefore, held that the Respondent’s title was
indefeasible. In these circumstances, it is my respectful view that we would be
stretching procedural technicality to the point of absurdity to conclude that,
just because counsel for the Respondent failed or neglected to include in the
Statement of Defence a counterclaim against the Appellant for a declaration of
title and an order for recovery of possession, the learned trial judge did not
have the jurisdiction to grant, as he did, those reliefs to the Respondent.
Since the trial judge was properly seised of the action before him, and the
defence raised therein placed into issue the title of both parties to the
subject matter in dispute, the learned trial judge had the power to consider
the title of both parties and award reliefs that naturally and logically flowed
from his findings; I am not aware of any statutory rule to the contrary. <o:p></o:p>Until
the enactment of the Evidence Decree, 1975 (NRCD 323) conventional practice had
crystallised into a legal principle that a person seeking to recover land must
do so by the strength of his case rather than the weakness of the other
person’s case. I, however, doubt that the necessary implication of this
principle was that a party must always bring her own suit or counterclaim to be
able to succeed in her objective, even when all the issues arising from such an
objective form part of an action by the party against whom she could have
claimed or counterclaimed. In any event, it is also my respectful view that,
there is no special procedural magic in this principle; it was in fact nothing
more than a rule of evidence, allocating the burden of proof. As such,
therefore, it has been overtaken by Part II of NRCD 323, the more relevant
provisions of which I wish to set out for ease of reference.<o:p></o:p>“10.
(1) For the purposes of this Decree, the burden of persuasion means the obligation
of a party to establish a requisite degree of belief concerning a fact in the
mind of the tribunal of fact or the court.<o:p></o:p>(2)
The burden of persuasion may require a party to raise a reasonable doubt
concerning the existence or non-existence of a fact or that he establish the
existence or non-existence of a fact by a preponderance of the probabilities or
by proof beyond a reasonable doubt….<o:p></o:p>&nbsp;“11. (1) For the purposes 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….<o:p></o:p>(4)
In other circumstances, (i.e. civil matters) the burden of producing evidence
requires a party to produce sufficient evidence so that on all the evidence a
reasonable </main>