CELESTINE KUAGBENU vs. CECILIA SPENCER [2015]DLSC3224

Date	2015-06-03
Suit No.	CIVIL APPEAL NO. J4/58/2013
Citation No.	[2015]DLSC3224

WOOD CJ(PRESIDING)

DOTSE JSC

ANIN YEBOAH JSC

GBADEBE JSC

BENIN JSC

B. B. QUAYE ESQ. FOR THE DEFENDANT/RESPONDENT/APPELLANT.

SAMUEL CODJOE ESQ. (WITH HIM JAMES MENSAH KULLEY FOR THE PLAINTIFF/ APPELLANT/RESPONDENT).

[2015]DLSC3224
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													<main id="main" class="content" style="min-height: 60rem" >CELESTINE KUAGBENU<o:p></o:p>vs.<o:p></o:p>CECILIA SPENCER<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;
padding:0in 0in 1.0pt 0in">

CIVIL APPEAL NO. J4/58/2013&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;
DATE: 3RD JUNE, 2015<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>B.
B. QUAYE ESQ. FOR THE DEFENDANT/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">

SAMUEL
CODJOE ESQ. (WITH HIM JAMES MENSAH KULLEY FOR THE PLAINTIFF/
APPELLANT/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;
padding:0in 0in 1.0pt 0in">

WOOD CJ(PRESIDING), DOTSE JSC, ANIN&nbsp; YEBOAH JSC, GBADEBE JSC, AND BENIN 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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JUDGEMENT<o:p></o:p>

</div>GBADEGBE
JSC:<o:p></o:p>This is an appeal from the decision of
the Court of Appeal by which the previous decision of the trial High Court in
the action herein was reversed and judgment entered for the plaintiff (the
respondent herein) against the defendant (the appellant herein). In these
proceedings, the appellant seeks a reversal of the decision of the Court of
Appeal, and as the said decision had earlier on reversed that of the trial
court, the question for our decision is whether the judgment of the Court of Appeal
is supported by the admitted evidence on the record. In particular, we are
required to determine if the decision of the trial High Court has suffered from
a wrong conclusion on the effect of the evidence and or was perverse or
unreasonable. As our task is in the nature of a re-hearing, we are carefully to
review the evidence contained in the record of appeal for the purpose of
determining whether the appellant’s complaint to us based on the grounds of
appeal contained in the notice of appeal by which these proceedings were
initiated are well made out.<o:p></o:p>In their decision, the learned justices
of the Court of Appeal faulted the learned trial judge for acting on &nbsp;impressions allegedly made by him at an
inspection of the locus to&nbsp; determine
the&nbsp; question as to which of the rival
versions placed before him was more probable. An examination of the record of
appeal before us reveals that beyond the said impressions which apparently tilted
the learned trial judge’s opinion in favour of the appellant’s case, the effect
of the evidence pointed to the conclusion reached by the learned justices of
the Court of Appeal at pages 247 – 248 of the record of appeal that the space
between the contesting parties is the road which unfortunately had been fenced
by the appellant in an apparent exercise of her right of ownership to the
property. The evidence also established that the appellant had occupied a
larger area than that contained in her site plan. As the evidence on the record
pointed to these clearly established facts, it is right to say that in the
absence of any legitimate reason that might preclude the &nbsp;trier of fact from accepting them, the&nbsp; respondent herein had satisfied the&nbsp; evidential burden placed on her under the
Evidence Act, (NRCD 323) and was entitled to judgement. <o:p></o:p>&nbsp;Although
the learned trial judge appeared to have acted upon impressions gathered by him
at the inspection of the locus to come to a different conclusion the record of
appeal is silent on any such inspection. Indeed, even though the record of
appeal shows that the matter herein was adjourned on two occasions namely 28
July and 08 August 2008, for a visit to the locus in quo, no such inspection
ever took pace. The effect of the absence of any such inspection compels us to
the inference that the learned trial judge had acted on extraneous and indeed,
inadmissible evidence in preferring the case of the appellant to that of the
respondent. When the said illegal evidence is expunged from the record of appeal,
as indeed the learned justices of the court below were entitled to do by virtue
of the rules of evidence and in particular section 8 of the Evidence Act, 1975,
(NRCD 323), we are left on the crucial issue of fact which the trial court had
to determine regarding the location of the disputed land with the evidence of
the surveyor from the Town and Country Planning Department and that of the town
planning officer. The pieces of evidence testified to by these independent
witnesses were derived from documents which were undisputed and tended to
render their evidence quite&nbsp; worthy of
belief. Further, the unchallenged pieces of evidence testified to by the said
persons dealt with matters in the realm of specialised knowledge, and had the
mark of reliability. As the reliance placed on his own impressions by the
learned trial judge was for the very clear reasons stated by the Court of
Appeal in error, the irresistible conclusion is that the respondent’s land did
not fall within the road as alleged by the appellant and that the appellant had
not only transgressed the limits of her own land but also occupied an area that
properly speaking was a road reservation. We venture to say that the said error
by the learned trial judge was an instance of justice that had miscarried and
required to be corrected.<o:p></o:p>&nbsp;On these facts, the learned justices of the
Court of Appeal were right to have interfered and substituted the proper
findings for that of the learned trial judge. In our opinion, having excluded
that illegal evidence from the record of appeal, it was reasonable for the learned
justices to conclude in view of the &nbsp;statutory requirements on the burden of proof
contained&nbsp; in sections 10 to 15 of the
Evidence Act, 1975 ( NRCD 323),that the plaintiff had succeeded in satisfying
the court that the&nbsp; version of the matter
placed by her before the court was more probable than its non-existence; for
which reason&nbsp; she was entitled to have
the decision of the trial High Court to the contrary set aside as having been
made unreasonably and or perversely. See: Barclays Bank Ghana v Sakari
[1996-97] SCGLR 639<o:p></o:p>