PAPA GYIMAH GENFI vs. DR. J .K. ACQUAYE [2013]DLCA4946

Date	2013-11-14
Suit No.	CIVIL APPEAL NO.H1/189/2013
Citation No.	[2013]DLCA4946

MARFUL-SAU JA (PRESIDING)

OFOE VICTOR JA

TORKORNOO GERTRUDE JA

[2013]DLCA4946
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													<main id="main" class="content" style="min-height: 60rem" >PAPA GYIMAH GENFI<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>DR. J .K. ACQUAYE<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL
NO.H1/189/2013&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;14TH NOVEMBER,2013<o:p></o:p>

</div>CORAM:<o:p></o:p>MARFUL-SAU JA (PRESIDING), OFOE VICTOR JA, TORKORNOO
GERTRUDE JA<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>MARFUL-SAU, JA: -
This appeal is taken from the judgment of the High Court dated the 10th
of April 2008. In the said judgment the court dismissed the claims of the
plaintiff who will be referred to as appellant in this judgment. The trial
court then entered judgment for the defendant herein referred to as the
respondent on his counterclaim.<o:p></o:p>The
facts of this case are simple. The appellant had purchased the parcel of land
the subject of the dispute from one Sarah Korkor Narh, who in turn acquired the
land from one Lawyer E. A. Quaye. Lawyer E. A. Quaye claimed that the land was
gifted to him by the mother Madam Rebecca Nuamah Dodoo. The appellant as the
record indicates was able to register the transaction with her vendor at the
Land Title Registry under a certificate number GA 6434.<o:p></o:p>The
respondent on the other hand claimed the land was gifted to her mother, who was
the daughter of Madam Rebecca Nuamah Dodoo. The respondent claimed that Lawyer
E. A. Quaye who was his uncle forged a Deed of Gift between himself and Madam
Rebecca Nuamah Dodoo affecting the land the subject of the dispute. This forged
Deed of Gift was dated the 5th of May 1996. The respondent brought
an action in the High Court against his uncle and the court declared the Deed
of Gift and all transactions arising there from as a nullity.<o:p></o:p>The
appellant’s claim that he was an innocent purchaser without notice was rejected
by the trial court, as the court found that the appellant had notice of
respondent’s possession of the land. In deed the record revealed that at the
time the appellant went onto the land the respondent had constructed a fence
wall around the land and stationed one Sule on the land. It is against this
judgment that the appeal had been filed.<o:p></o:p>In
the Notice of Appeal two grounds were formulated as follows:-<o:p></o:p>‘’(i)The judgment is
against the weight of evidence.<o:p></o:p>&nbsp; (ii) The court glossed over the crucial fact
that the Appellant was a bona fide purchaser for value without notice.’’<o:p></o:p>In
this appeal I intend to address the first ground as stated above since that
ground would take care of the second. It is trite that when an appellant claims
that a judgment entered by a trial court is against the weight of evidence
adduced at the trial the appellate court is thus empowered to review the trial by
re-assessing the evidence on record to ascertain whether the judgment entered
by the court could be supported by evidence on record. See TUAKWA v. BOSOM
(2001-2002) SCGLR 61.<o:p></o:p>An
appeal is also said to be a re-hearing. Rule 8 (1) of the Court of Appeal
Rules, CI 19 provides thus:-<o:p></o:p>‘’ Any appeal to the Court
shall be by way of re-hearing and shall be brought by notice referred to in
these rules as notice of appeal.’’<o:p></o:p>The
duty of this court under the circumstances is to review the evidence on record
as a way of determining the soundness in law or otherwise of the judgment.
Examining the record I observed that this appeal raises a fundamental issue
that is which of the parties had a better title to the land in law. Tendered in
evidence at the trial is Exibit 2 which is a judgment of the High Court dated
20th July 1994 in suit number 1270/ 91. In that suit the Judge
Justice Akoto-Bamfo, J (as she then was) made serious findings of fact that
negatively affects the interest of the appellant.<o:p></o:p>Learned
Counsel for the appellant in his written submission has argued that the said
exhibit 2 should be ignored by this court because when respondent’s counsel
sought to tender it through the appellant it was objected to and was rejected.
However, the same judgment was re-tendered by the respondent and same was
admitted and then marked as Exhibit 2. Counsel for appellant argued that a
document that is rejected by the court during the tendering cannot be
re-tendered. It is important to state that the document that was re-tendered as
exhibit 2 was not any ordinary document but the judgment of the High Court
which is still valid as it has not been set aside or reversed on appeal. A
judgment of a court is a public document and ought to be admissible evidence in
any proceedings that has a bearing on that judgment. The rejection of the
judgment when tendered was wrong in law and but for its subsequent admission
this court would have admitted it in evidence in this appeal. The reason also
is that apart from the judgment being a public document it was relevant
evidence which the court needed to see to ensure that justice was done.<o:p></o:p>In
this case the appellant traces his title to a Deed of Gift between Lawyer E. A.
Quaye and the mother Madam Rebecca Nuamah Dodoo. Lawyer E. A. Quaye then sold
the land to the vendor of the appellant. Now, in suit no.1270/91 the High Court
in its judgment held that the Deed of Gift made by E.A Quaye and the mother was
procured through fraud. At page 6 and 7 of the judgment which is at pages 180
to 186, this is what Akoto-Bamfo J delivered:-<o:p></o:p>‘’It is my considered view
that Exhibit C did not convey to the said Korkor Narh, for it has been amply
demonstrated that Exhibit B, the foundation upon which Exhibit C rooted was
bogus and of no effect. If the Exhibit B is bogus it follows that Exhibit C
cannot rest on it for it is in common learning that one cannot put something o</main>