PATRICK BARKERS-WOODE vs. NANA FITZ [2006]DLSC2431

Date	2006-11-08
Suit No.	CIVIL APPEAL NO. J4/13/2006
Citation No.	[2006]DLSC2431

ATUGUBA J.S.C. (PRESIDING)

BROBBEY J.S.C

DR. DATE-BAH J.S.C

ANSAH J.S.C

ANINAKWAH J.S.C.

MR. L.S. AKUETTEH FOR PLAINTIFF/RESPONDENT/APPELLANT.

MR. OSEI NYAME FOR DEFENDANT/APPELLANT/RESPONDENT

[2006]DLSC2431
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													<main id="main" class="content" style="min-height: 60rem" >PATRICK BARKERS-WOODE<o:p></o:p>vs.<o:p></o:p>NANA FITZ<o:p></o:p>[SUPREME
COURT]<o:p></o:p>CIVIL
APPEAL NO. J4/13/2006<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: 8TH NOVEMBER 2006.<o:p></o:p>

</div>COUNSEL:<o:p></o:p>MR.
L.S. AKUETTEH FOR PLAINTIFF/RESPONDENT/APPELLANT.<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">

MR.
OSEI NYAME FOR DEFENDANT/APPELLANT/RESPONDENT<o:p></o:p>

</div>CORAM:&nbsp;&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">

ATUGUBA,
J.S.C. (PRESIDING), BROBBEY, J.S.C., DR. DATE-BAH, J.S.C., ANSAH, J.S.C.,
ANINAKWAH, 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>&nbsp;DR. DATE-BAH, J.S.C:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Plaintiff’s story, as set out in his
statement of claim, was that he owned a piece of land near Achimota, Accra,
and, around 1991, agreed with the Defendant that he should construct a building
for the Plaintiff on that piece of land.&nbsp;
The agreed price for this service was 17 million cedis.&nbsp; The Plaintiff paid, in 1991, through his
father, 14 million cedis out of this agreed price to the Defendant.&nbsp; The Plaintiff claimed that by 1994 the
building had been roofed and he put a caretaker into it, pending the final
completion of the construction.&nbsp; When at
this point the Defendant demanded payment of 3 million cedis, being the balance
of the agreed contract price, the Plaintiff rejected the demand, arguing that
by the terms of the agreement the balance was to be paid when the building had
been completed and the keys handed over to him.&nbsp;
The Defendant then threatened to sell the building, started showing
prospective purchasers around the property and harassed the Plaintiff’s
caretaker.<o:p></o:p>The
Defendant’s version of events was different.&nbsp;
He averred that the land near Achimota belonged to him and that he was
developing it into a dwelling house when the Plaintiff requested to buy it
through his father.&nbsp; He averred further
that the building was completed in 1994, but the Plaintiff failed to pay the
balance of the contract price, namely the 3 million cedis referred to above, in
spite of repeated demands.&nbsp; Therefore,
after waiting for a long period without receiving payment, he agreed with the
Plaintiff’s father, who acted as agent for the Plaintiff in the transaction, to
rescind the contract and refund the Plaintiff’s money to him.&nbsp; In accordance with this agreement, he
refunded 4 million cedis by cheque to the father on 12th September 1994.&nbsp; The Defendant had subsequently offered to
refund the balance of 10 million cedis to the Plaintiff’s father.&nbsp; Although, he was willing to accept the
refund, he had been prevailed upon by the Plaintiff’s mother, who was the
Plaintiff’s lawful attorney in this suit, to refuse the refund.<o:p></o:p>&nbsp;This was a classic example of conflicting
stories by the parties to a suit and, in our adversarial judicial process, it
was for the trial judge to make findings of fact from the pleadings and the
evidence adduced at the trial.&nbsp; This he
did, but some of his determinations were reversed on appeal by the Court of
Appeal and the central issue in this case is whether the Court of Appeal was
right to reach a conclusion on the facts that was different from the trial
judge’s.&nbsp; The law governing what the
Court of Appeal may do in such a situation is hackneyed and need not be
restated at length.&nbsp; One quotation will
suffice.&nbsp; In Zanyo v Fofie [1992] GLR
475, Francois JSC expounded the law as follow (at pp. 484-5):<o:p></o:p>“The
appellate court's criticism of the trial judge's performance in scathing
language, was as unfortunate as it was unsound. Most of it was based on the
difference in perception of the evidence, and regrettably on the law. Where a
judge or trial court arrives at a conclusion based on the advantage of seeing
and hearing witnesses at first hand, the appellate court should be very slow to
form a contrary view. It is trite law that an appellate court, when reviewing
the exercise of discretion by a lower court, should not interfere unless the
court below had applied wrong principles in arriving at the result or taken
into account matters which were irrelevant in law or had excluded matters which
were crucially necessary for consideration, or had come to a conclusion which
no court properly instructing itself on the law could have reached: see Re Reed
(A Debtor); Ex parte The Debtor v. Official Receiver [1979] 2 All E.R. 22, D.C.
In Gross v. Lewis Hillman Ltd. [1969] 3 W.L.R. 787 at 798, C.A. Lord Widgery
cautioned that an appellate court:<o:p></o:p>“… which sees only the transcript and
does not see the witnesses, must hesitate for a very long time before reaching
a conclusion different from that of the trial judge as to the credibility or
honesty of a witness."<o:p></o:p>In
Adorkor v. Gatsi [1966] G.L.R. 31 at 34, S.C., the Supreme Court summed up
appellate powers as follows:<o:p></o:p>"The law governing this is that
while findings of specific facts are within the competency of the trial court
alone, a finding of fact which is an inference to be drawn from specific facts
found is within the competency of an appeal court no less than the trial court;
in other words, an appeal court is in as good a position as the trial court to
draw inferences from specific facts which the trial court may find."<o:p></o:p>Unfortunately
what the Court of Appeal attempted to do was to set aside not inferences drawn
from facts but the very findings on specific facts of the trial judge. These
factual conclusions were supported to the hilt by the evidence,…. In the
circumstances, there was no lawful warrant for the appellate court to differ
from the conclusions of the trial court.”<o:p></o:p>These
words are directly relevant to the case before us.&nbsp; They require this Court to examine the
evidence adduced at the trial to determine whether the findings of fact made by
the trial judge are supported by the evidence.&nbsp;
If so, even if this Court is inclined to interpret or perceive the
evidence differently, it is not permissible for it or any other appellate court
to interfere with the Honourable trial judge’s determination.&nbsp; The grounds of appeal filed by the Plaintiff
which are based on this trite law were Grounds 1 and 2 and they were to the
following effect:<o:p></o:p>“1. The learned Justices erred in law
by interfering with the primary findings of the trial Court which findings were
sufficiently supported by concrete evidence on the record and the credibility
of the Defendant.<o:p></o:p>