CELESTINE KUAGBENU vs. CECILIA SPENCER [2015]DLSC6397

Date	2015-06-03
Suit No.	CIVIL APPEAL NO. J4/58/2013
Citation No.	[2015]DLSC6397

WOOD C J (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]DLSC6397
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													<main id="main" class="content" style="min-height: 60rem" >CELESTINE KUAGBENU<o:p></o:p>[PLAINTIFF /APPELLANT/RESPONDENT]<o:p></o:p>vs.<o:p></o:p>CECILIA SPENCER<o:p></o:p>[DEFENDANT/RESPONDENT/APPELLANT]<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;
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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;DATE: 3RD JUNE, 2015<o:p></o:p>

SAMUEL
CODJOE ESQ. (WITH HIM JAMES MENSAH KULLEY FOR THE
PLAINTIFF/APPELLANT/RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>WOOD
C J (PRESIDING), DOTSE JSC, ANIN YEBOAH JSC, GBADEBE JSC, BENIN JSC <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="text-align:center;line-height:115%;
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</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).&nbsp; 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.&nbsp; 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.&nbsp; 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 impressions allegedly made by him at an inspection of
the locus to determine the question as to which of the rival versions placed
before him was more probable.&nbsp; 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.&nbsp;
The evidence also established that the appellant had occupied a larger
area than that contained in her site plan.&nbsp;
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 trier of fact from accepting them, the respondent herein had
satisfied the evidential burden placed on her under the Evidence Act, (NRCD
323) and was entitled to judgement. <o:p></o:p>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.&nbsp;
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[sic].&nbsp; 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.&nbsp;
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.&nbsp; The pieces of evidence
testified to by these independent witnesses were derived from documents which
were undisputed and tended to render their evidence quite worthy of
belief.&nbsp; 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.&nbsp; 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.&nbsp;
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>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.&nbsp; 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 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 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.&nbsp; See: Barclays Bank Ghana
v Sakari [1996-97] SCGLR 639 For the above reasons, the appeal herein fails and
we proceed to dismiss it.&nbsp; The result is
that the decision of the Court of Appeal dated 23 March 2011 is hereby affirmed
and the plaintiff’s claim as endorsed on the writ of summons is hereby granted.
<o:p></o:p>Accordingly,
we award to the respondent the sum of GH¢5000.00 being damages for trespass. <o:p></o:p>(SGD) <o:p></o:p>