KWAME PERBI vs. NII KWAME PERBI II & 5 OTHERS [2016]DLCA4956

Date	2016-03-24
Suit No.	CIVIL APPEAL NO. H1/236/2015
Citation No.	[2016]DLCA4956

MARFUL- SAU JA (PRESIDING)

AGNES DORDZIE JA

TANKO AMADO JA

KOFI FRIMPONG- MANSO FOR THE FIRST DEFENDANT/APPELLANT

K. A. OWUSU- ANSA FOR THE PLAINTIFF/ RESPONDENT

[2016]DLCA4956
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													<main id="main" class="content" style="min-height: 60rem" >KWAME PERBI<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>NII KWAME PERBI II &amp; 5 OTHERS<o:p></o:p>(1ST
DEFENDANT/APPELLANT)<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.
H1/236/2015&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; 24TH MARCH, 2016<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KOFI FRIMPONG- MANSO FOR THE FIRST DEFENDANT/APPELLANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM:<o:p></o:p>MARFUL- SAU JA (PRESIDING), AGNES DORDZIE JA, TANKO
AMADO 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 (Land Division), Accra
which was delivered on the 17th of November, 2014. The trial court
after taking evidence from the parties entered judgment for the plaintiff;
declaring the plaintiff family owners of a parcel of land situate at Samsam-
Odumase near Nsawam as endorsed on the writ of summons. The first defendant who
was dissatisfied with the judgment filed a Notice of Appeal on the 20th
of November 2014 and formulated seven grounds of appeal. In this judgment the
plaintiff will be referred to as the Respondent while the first defendant will
be called the Appellant.<o:p></o:p>Upon
examining the record of appeal, we observed that the entire trial suffered some
procedural errors committed by the parties and the court alike. These errors we
find are very fundamental and for that matter flaws the judgment entered by the
court at the end of the trial. We shall now address the errors committed in the
trial.<o:p></o:p>The
first is that the respondent who initiated this action did not testify
personally at the trial. He donated a Power of Attorney to one David Duodu who
from the record testified for and on behalf of the respondent. The evidence of
the said David Duodu is at page 94 to 105 of the record. At page 95 of the
record David Duodu stated that he was given a Power of Attorney to testify on
behalf of the respondent. He then sought to tender the Power of Attorney and
same was objected to on grounds that the document had not been stamped under
the Stamp Duty Act, 2005( Act 689). The trial court in a short ruling on the
objection admitted the document in evidence subject to stamping before the end
of the trial. The court ruled at page 95 as follows:-<o:p></o:p>‘’BY COURT:- Power of Attorney
tendered and marked Exhibit A subject to the stamping before the end of this
case.’’<o:p></o:p>Pursuant
to this ruling the Attorney of the respondent was allowed to continue his
evidence. The record however revealed that the order of the trial court that
the Power of Attorney is stamped before the end of the case was not complied
with, in that as at the time judgment was entered on the 17th
November 2014; the document had not been stamped. Notwithstanding the non- compliance
of the court’s order above made on the 1st day of April 2014, the
trial court went ahead to deliver its judgment in which heavy reliance was
placed on the evidence of David Duodu. The Supplementary Record of Appeal,
which was prepared after an application to this court by Counsel for respondent,
ostensibly to exhibit the stamped Power of Attorney, indicates that the Power
of Attorney was stamped on the 28th November, 2014, eleven (11) days after the
trial court had delivered its judgment on the 17th of November,2014.<o:p></o:p>From
the narration above it is clear that the respondent breached the order of the
court and for that matter the evidence that was adduced under the authority of
the Power of Attorney should have been disregarded by the court for
non-compliance of the said court order. The general principle of law is that
documents that are not stamped in accordance with the Stamp Duty Act ought not
to be admitted in evidence. In the case of Nartey v. Mechanical LIoyd Assembly
Plant (1987-1988) 2 GLR 314, the Supreme Court described an unstamped document
as worthless for evidential purposes. Again in the case of Ricketts &amp;
Another v. Addo &amp; Another and Ricketts v. Borbor &amp; Others (Consolidated)
(1975) 2 GLR 158, this Court held among others that objection to unstamped
documents ought to be taken and it cannot be waived by the parties. See also
the case of Mansah v. Asamoah (1975) 2 GLR 225, CA.<o:p></o:p>It
is trite law however that in practice the court may allow the admission in
evidence of an unstamped document when the party seeking to tender it gives a
positive intention to get the document stamped if given time. Whenever such
concession is given by the court, the admission of the unstamped document in
evidence is made conditional subject to the stamping of the document before the
conclusion of the trial; failing which the document would not be considered in
the judgment. The line of legal authorities supporting this approach of dealing
with unstamped documents at a trial include the case of Antie &amp; Adjuwuah v.
Ogbo (2005-2006) SCGLR 494; and Amonoo v. Dee (1975) 1 GLR 305, where this
court held that nothing precludes the reception of an unstamped document which
could be properly stamped upon the proper payment of fees and both the law and
ordinary justice demand this to be so in the circumstances of the case.<o:p></o:p>&nbsp;Relying on the above cases therefore, it is
clear that an unstamped Power of Attorney like any document could be admitted
in evidence during trial since the act of stamping a document has no time bar
and also that the essence of stamping was for purposes of revenue only for the
State. The caveat however has been that when the court grants such a concession
to a party to tender the unstamped document subject to its subsequent stamping
same must be done before the trial terminates, else the court shall not rely on
the unstamped document in its judgment. <o:p></o:p></spa</main>