NII MATE TESA AND OTHERS vs. NUMO NORTEY ADJEI FIO AND OTHERS [2014]DLSC2996

Date	2014-05-15
Suit No.	CIVIL APPEAL NO. J4/44/2013
Citation No.	[2014]DLSC2996

OWUSU (MS) J.S.C. (PRESIDING)

ANIN YEBOAH J.S.C.

BAFFOE BONNIE J.S.C.

GBADEGBE J.S.C.

AKOTO BAMFO (MRS) J.S.C.

E. A. ACCAM ESQ. FOR THE PLAINTIFFS/RESPONDENTS/ RESPONDENTS/ CROSS-APPELLANTS.

OSAFO BUABENG ESQ. FOR THE 1ST DEFENDANT/APPELLANT / RESPONDENT

FOSU GYEABOUR ESQ. FOR THE 5TH DEFENDANT/APPELLANT/APPELLANT.

[2014]DLSC2996
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													<main id="main" class="content" style="min-height: 60rem" >NII MATE
TESA AND OTHERS<o:p></o:p>vs.<o:p></o:p>NUMO NORTEY
ADJEI FIO AND OTHERS<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. J4/44/2013&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;&nbsp;DATE: 15TH MAY, 2014<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>E.&nbsp; A.&nbsp;
ACCAM ESQ. FOR THE PLAINTIFFS/RESPONDENTS/ RESPONDENTS/
CROSS-APPELLANTS.<o:p></o:p>OSAFO
BUABENG ESQ. FOR THE 1ST DEFENDANT/APPELLANT / 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">

FOSU
GYEABOUR ESQ. FOR THE 5TH DEFENDANT/APPELLANT/APPELLANT.<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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<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;mso-outline-level:1;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">OWUSU
(MS) J.S.C. (PRESIDING), ANIN YEBOAH J.S.C., BAFFOE BONNIE J.S.C., GBADEGBE
J.S.C., AKOTO BAMFO (MRS) J.S.C. <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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JUDGMENT<o:p></o:p>

</div>GBADEGBE
JSC:&nbsp;&nbsp;&nbsp; <o:p></o:p>This is an appeal from the unanimous decision of
the Court of Appeal that affirmed the decision of the trial High Court in the
matter herein. By the said decision, the Court of Appeal had substantially
accepted the case of the plaintiff/respondent/respondent (hereinafter
conveniently described as the plaintiff) and rejected the defendants’ (also
conveniently referred to as the defendants) claim to the disputed land. By the
appeal herein, the 5th defendant seeks an order reversing the
decision of the Court of Appeal whiles the 1st to 4th
plaintiffs and the 6th plaintiff have appealed praying for an order
reversing the order that had them struck out as plaintiffs on grounds of
misjoinder. <o:p></o:p><o:p>&nbsp;</o:p>We think that from the processes filed in the
proceedings herein, the issues for our decision turn on whether the concurrent
findings of fact made by the two lower courts are right and or are instances of
a blunder or miscarriage of justice. Then&nbsp;
we also have to consider the points of law relating to the question of
estoppel by two previous judgments that was strenuously pressed on the court by
the defendants as well as the question touching the capacity of the 5th
respondent to maintain the action in view of the determination by the Court of
Appeal that the other plaintiffs who were proved to have originated from the
female and not the male line were not members of the family on whose behalf the
plaintiffs sued in the High Court.<o:p></o:p><o:p>&nbsp;</o:p>In our thinking the grounds that pose for our
consideration the right of the rival parties to the disputed land, its extent
and description being particularly in the domain of facts that were
concurrently upheld by the two lower courts, this court as the final appellate
court can only interfere with those findings of fact ifit is established with
absolute certainty that there has been some error or blunder resulting in
miscarriage of justice. Also included in this consideration is the ground of
appeal formulated “The judgment is against
the weight of the evidence.”
See:&nbsp; Mondial Veneer (Gh) Ltd v Amuah Gyebu [2011] SCGLR 466, 470 per
Wood CJ. We have carefully read the record of appeal and anxiously considered
the written briefs submitted to us by the parties herein and have come to the
conclusion that the findings of fact relating to which of the rival parties to
the action herein owns the disputed land, its description and extent are amply
supported by the evidence on the record without the slightest suggestion of any
error or blunder that might justify our interference. In this regard, we wish
to reiterate the settled attitude of appellate courts regarding issues of fact
that as these are primarily within the domain of trial courts except where such
findings are proved to have been due to considerations that might be said to be
perverse and unreasonable resulting in a miscarriage of justice, it is not proper
that they interfere even if in considering the evidence they would have come to
a different conclusion from that of the trial judge. They can only do so when
the findings of fact are not supported by the evidence but the mere fact that
from the admitted evidence it was open to the trial court to have accepted
either of the rival versions is not sufficient ground for their interference
but, unfortunately, so it seems, the defendant by his urgings in the matter
herein seeks to persuade us to embark upon a review of the evidence that was
thoroughly sifted by the two lower courts for the purpose of preferring their
version of the facts. But, the choice as to which of the contested versions is
preferable is a matter for the trier of fact and the said version having been affirmed
by the intermediate appellate court-the Court of Appeal for very clear reasons
that are contained in the lead judgment of Akamba JA (as he then was the
reasons advanced by the Court of Appeal impress me in view of the tedious
nature of the task that they were faced with &nbsp;and we are unable to embark upon an examination
of the evidence for the purpose of determining that which is preferable. Reference
is made in this regard to the cases of Odonkor
v Amartei [1992] 1 GLR 577, 585 per Hayfron Benjamin JSC; and In re Agbenu (decd); Agbenu v Agbenu
[2009] SCGLR 636, 639 per Atuguba JSC. We think it is for this reason that the line
of authorities precludes us as the final appellate court from interferi</main>