MAJOR MAC DORBI AND W. O. SAVIOUR vs. RICHARD ADOM FRIMPONG, GEORGE GYESI AND MAR GEORS LTD [2013]DLSC2727

MAJOR MAC DORBI AND W. O. SAVIOUR vs. RICHARD ADOM FRIMPONG, GEORGE GYESI AND M... [2013]DLSC2727

Date	2013-01-30
Suit No.	CIVIL APPEAL NO. J6/1/2012
Citation No.	[2013]DLSC2727

ATUGUBA J.S.C. (PRESIDING)

DATE-BAH J.S.C.

ADINYIRA (MRS.) J.S.C.

DOTSE J.S.C.

GBADEGBE J.S.C.

T. N. WARD BREW FOR THE PLAINTIFFS/RESPONDENTS /APPELLANTS

PAUL K. OPOKU FOR THE DEFENDANTS/APPELLANTS /RESPONDENTS.

[2013]DLSC2727
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													<main id="main" class="content" style="min-height: 60rem" >MAJOR MAC DORBI AND W. O.&nbsp;
SAVIOUR<o:p></o:p>vs.<o:p></o:p>RICHARD ADOM FRIMPONG, GEORGE GYESI AND MAR GEORS LTD<o:p></o:p>&nbsp;[SUPREME COURT,
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. J6/1/2012&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 30TH JANUARY, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>T.&nbsp; N.&nbsp;
WARD BREW FOR THE PLAINTIFFS/RESPONDENTS /APPELLANTS<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">

PAUL
K. OPOKU FOR THE DEFENDANTS/APPELLANTS /RESPONDENTS.<o:p></o:p>

</div>CORAM: <o:p></o:p>ATUGUBA J.S.C.
(PRESIDING), DATE-BAH J.S.C., ADINYIRA (MRS.) J.S.C., DOTSE J.S.C., GBADEGBE
J.S.C. <o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
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<o:p>&nbsp;</o:p>

<p class="MsoNormal" align="center" style="text-align:center;line-height:150%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div><o:p>&nbsp;</o:p>ATUGUBA, J.S.C.<o:p></o:p><o:p>&nbsp;</o:p>The substantially common
facts of this consolidated appeal are briefly that the Appellants are both
retired army officers. Whilst attached to the Castle in the 1980s while still
in active military service they procured through the then Chief of Staff the 3
disputed plots of land, noted for them, from the Lands Department. These plots
formed part of land vested in the Government of Ghana. They were swampy areas
and they were made to understand that unless they developed them significantly,
leases would not be granted to them. They did so by expending considerable sums
of money filling up these plots and in the case of Mac Dorbi, constructing the
foundation of a building and a sceptic tank. <o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In the course of events the 1st respondent
professing to be a grantee of these same lands, of Nii Kotey III of La, entered
upon them and discovered the developments of Mac Dorbi, whose workman
Bartholomew, known as Bato for short, informed him that he held Mac Dorbi’s
plots as joint ownership for them both. The 1st respondent without
recourse to Mac Dorbi decided to buy off their interest, rather sadly, at the
gargantuan amount of twenty thousand US Dollars ($20, 000).<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Since Mac Dorbi and W. O. Saviour, the appellants, would
not relinquish their claims to the land this litigation inevitably ensued. The
trial judge Ofoe J (as he then was) reviewed the evidence at length and gave
judgment in favour of the appellants, but was reversed on appeal to the Court
of Appeal.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Court of Appeal per Kanyoke J.A. held, inter alia,
that there were conflicts between the appellants’ pleadings and evidence as to
the identities of the lands, their manner and source of acquisition.<o:p></o:p>It is trite learning that
the credibility of witnesses is a matter for the trial judge who has the unique
advantage of a live trial atmosphere, unpossessed by an appellate court and
provided there is evidence to support his findings, the same should not be
disturbed by an appellate court. Indeed there is a presumption that trial
findings of fact are right. It is further solidly established that where a
party’s evidence is supported by the admissions or evidence of his opponent
then, barring very exceptional circumstances, judgment should be given in
favour of such a party. See Asante v.
Bogyabi (1966) GLR 232, SC, Banahene
v. Adinkra (1976) 1 GLR 346, CA, Agyakuma
v. Opuni (1987-88) 1 GLR 47, SC at 50, Bisi
v. Tabiri (1987) 1 GLR 360, SC, holdings (5) and (6) and Manu v. Nsiah (2005-2006) SCGLR 25,
holding (2) and at 32-33.<o:p></o:p>In this case the
undisputed physical evidence of the developments on the ground coupled with the
act of payment of the $20, 000.00 by the 1st respondent in
acknowledgement of Mac Dorbi’s title to the 2 plots of land, which he acquired in consimili casu with regard to the
acquisition of the third plot by W. O. Saviour, make the inconsistencies and other
supposedly unsatisfactory aspects of the evidence in favour of the appellants,
pale into insignificance.<o:p></o:p><o:p>&nbsp;</o:p>Procedural
Lapse<o:p></o:p>From the record of appeal
and the Court of Appeal held it to be fundamental, W.O. Saviour did not enter
appearance let alone file a defence. He however participated to the hilt in the
proceedings and emerged from them as a victorious counter claimant. As to this
we wish to point out that the battle for substantial, as opposed to technical
and fastidious justice, has been irreversibly won. At the time of the
institution of the consolidated suits herein, as noted by Kanyoke J.A. in the
Court of Appeal, the new High Court (Civil Procedure) Rules 2004, C.I. 47 had
come into force. The comprehensive terms of Order 81 rule 1(1) and 2(2) have
indubitably given statutory stamp to the ancient maxim cuilibet licet renunciare juri pro se introducto, i.e. a person can
waive what the law has ordained for his own advantage. In Obeng v. Boateng (1966) GLR 689 Amissah J.A. (as J) did not
invalidate the participation in the proceedings of certain third parties who
had filed no appearance thereto.<o:p></o:p>In the striking case of Nyako v. A.E. Akwa (1949) 12 WACA 465 at
467 it was held that a litigation which ensued without the issue of a writ of
summons was good since the parties appeared before the court and were heard and
that the absence of a writ did not vitiate the substantive jurisdiction of the
court over the case. Even in criminal trials where the stakes are high it has
been held, departing from high classical authority of old, that the absence of
a plea or conviction before </main>