OPANIN YAW BOAKYE vs. OPANIN KWAME MARFO [2011]DLSC2623

Date	2011-04-20
Suit No.	CIVIL APPEAL NO. J4/41/2010
Citation No.	[2011]DLSC2623

WOOD (MRS) CJ (PRESIDING)

DOTSE JSC

YEBOAH JSC

GBADEGBE JSC

AKOTO-BAMFO JSC

FELIX AMOAH FOR THE APPELLANT

KWABENA POKU-MENSAH FOR THE RESPONDENT

[2011]DLSC2623
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													<main id="main" class="content" style="min-height: 60rem" >OPANIN YAW BOAKYE<o:p></o:p>vs.<o:p></o:p>OPANIN KWAME MARFO <o:p></o:p>[SUPREME COURT, ACCRA]<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">

CIVIL APPEAL NO. J4/41/2010 &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
DATE: 20TH APRIL, 2011<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>FELIX AMOAH FOR THE
APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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KWABENA
POKU-MENSAH FOR THE RESPONDENT <o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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WOOD
(MRS) CJ, (PRESIDING) DOTSE, JSC YEBOAH, JSC GBADEGBE, JSC AND AKOTO-BAMFO, JSC<o:p></o:p>

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

</div>GBADEGBE
JSC:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>My Lords, the question for
our determination in these proceedings is whether the decision of the Court of Appeal
that reversed the judgment of the trial High Court in the mater herein was
right having regard to the evidence contained in the record of proceedings
before us?&nbsp; In my view since the
proceedings before the Court of Appeal was in the nature of a rehearing, the
court was entitled after hearing the parties and considering the evidence
contained in the record of proceedings to give in the words of rule 32 of the Court of Appeal Rules, CI 19
“a
judgment and make an order that ought to have been made, and to make a further
or any other order as the case may require including an order as to costs”. The jurisdiction so conferred on the
court under rule 32, however, must be exercised only in cases where it comes to
the view after considering the facts that the decision appealed from is
unreasonable or perverse. See: FOSUA v ADU-
POKU MENSAH [2009] SCGLR 310. In
such a situation, the court and indeed any appellate court may interfere with
the findings of fact of the trial court which did not properly evaluate the
evidence or made wrong inferences from the accepted evidence.<o:p></o:p>Turning to the appeal
herein, the case of the appellant in the High Court was as averred to in the
statement of claim filed in the matter herein on 22 October 1998 that sometime
after he had acquired Plot No Block 16, Old Amakom Kumasi and built a house
thereon he fell into debt and pledged his property to the family of the late
Kwabena Gyasi for the sum of five hundred pounds. According to the pleadings
filed on his behalf the property was to be redeemed after it had been in
possession of the defendant for some time and that although the property has
been in possession of the family for over 20 years, they have in the words
employed in paragraph 8 of the statement of claim “failed to redeem the pledged
property to him.” &nbsp;&nbsp;The writ of
summons herein was therefore taken out by the appellant against the respondent
as successor to Kwabena Gyasi for a declaration of title to the disputed
property, recovery of possession and perpetual injunction.&nbsp; <o:p></o:p>Upon service of the writ and
the accompanying statement of claim on the respondent, he submitted himself to
the jurisdiction of the trial court and filed a statement of defence by which
he denied the allegation of a pledge of the disputed property and asserted a
purchase by Yaw Barima alias Yaw Gyasi from the appellant for the sum of five
hundred pounds. According to the respondent who claimed to be a successor to
the late Yaw Barima alias Yaw Gyasi, the sale transaction was covered by a deed
of assignment that was registered at the Lands Registry on 7 September 1964.
Having denied the pledge on which the appellant based his claim and asserted a
purchase by his predecessor of the disputed property, the respondent
counterclaimed for a declaration of title and an order of perpetual injunction.<o:p></o:p>The action proceeded to a
full scale trial at the end of which the learned trial judge of the High Court
pronounced judgment in favour of the appellant on his claim and dismissed the
respondent’s counterclaim. In his judgment, the learned trial judge accepted the
appellant’s version of the matter in preference to that of the respondent. In
the judgment, the learned trial judge said among others that since the
appellant denied the deed of assignment, it was incumbent upon the respondent
to prove the execution of the assignment by the predecessor of the appellant
and that its failure amounted to not having led the requisite evidence in
respect thereof. Closely linked with this was the opinion which the learned
trial judge expressed of the claim by the respondent that the sale was
evidenced by a deed of assignment in so far as the deceased plaintiff was
concerned. According to him, the reliance by the respondent on the said deed
was an attempt by him to make a claim against the estate of a deceased person
and having scrutinized the evidence relating thereto in line with settled
judicial pronouncements, he found it not credible and accordingly rejected it
as an afterthought. As a result, he accepted the evidence of the appellant and
his witness that the transaction between the parties concerning the disputed
property was a pledge and not a sale.<o:p></o:p>Following the decision of
the trial court, the respondent appealed to the Court of Appeal which after a
consideration of the issues that were raised in the appeal, reversed the
decision and entered judgment in his favour on the counterclaim. The instant
proceedings before us are subsequent to the lodgment of an appeal from the
delivery of the Court of Appeal to this court. As said in the opening paragraph
of this delivery,&nbsp; &nbsp;the task before us is to discern from the
facts accepte</main>