EBUSUAPANYIN EKUMA MENSAH vs. NANA ATTA KOMFO II [2019]DLSC6203

Date	2019-01-23
Suit No.	CIVIL APPEAL NO. J4/33/2017
Citation No.	[2019]DLSC6203

YEBOAH JSC (PRESIDING)

GBADEGBE JSC

APPAU JSC

MARFUL-SAU JSC

KOTEY JSC

J. E. K. ABEKAH FOR THE PLAINTIFF/RESPONDENT/RESPONDENT.

C. OWUSU-ANKOMAH FOR THE DEFENDANT/APPELLANT/APPELLANT

[2019]DLSC6203
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													<main id="main" class="content" style="min-height: 60rem" >EBUSUAPANYIN EKUMA MENSAH <o:p></o:p>(PLAINTIFF/RESPONDENT/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>NANA ATTA KOMFO II
<o:p></o:p>(DEFENDANT/APPELLANT/APPELLANT)<o:p></o:p>[SUPREME
COURT, ACCRA]<o:p></o:p><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J4/33/2017&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:
23RD JANUARY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>J.
E. K. ABEKAH FOR THE PLAINTIFF/RESPONDENT/RESPONDENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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C. OWUSU-ANKOMAH FOR THE
DEFENDANT/APPELLANT/APPELLANT<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>YEBOAH JSC
(PRESIDING), GBADEGBE JSC, APPAU JSC, MARFUL-SAU JSC, KOTEY JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNoSpacing" align="center" style="text-align:center;line-height:115%;
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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>GBADEGBE,
JSC:- The question for our decision in this appeal is within a narrow compass
and is related to the probative value of the evidence on which the judgment of
the two lower courts is founded. As the intermediate appellate court is in
agreement with the trial court on the findings of fact, our task is to
determine if on all the evidence contained in the record of appeal before us, the
decision of the learned justices is supported by the effect of the evidence.
Restating this, we are to discern from the evidence whether placing the case of
the plaintiff against that offered by the defendant within the context of the
controversy herein renders his version more likely to be true; I think this is
the essence of the evidential requirements contained in sections 10-12 of the
Evidence Act, NRCD 323 regarding the burden of proof. The attitude of the
second appellate court to findings of fact concurred in by the intermediate
appellate court has been laid down in the case of Achoro v Akanfela
[1996-97] SCGLR 209 and applied in a collection of cases, the essence of which
is that this court may only depart from such findings if they are proved to be
perverse or unreasonable. In this regard, to succeed, the appellant must
demonstrate that there was some error or blunder in the manner that the lower
courts handled the resolution of questions of fact such as to have had the ends
of justice not well served.<o:p></o:p>&nbsp;<o:p></o:p>Turning to the evidence placed before the lower courts, there is no
conflict of opinion that it was in its nature traditional and as it was not
based on writings contained in documents but related by way of&nbsp; oral history, the&nbsp; narration of both parties suffered&nbsp; from&nbsp;
inconsistencies but as has been stated in several judgments regarding
the attitude of courts to&nbsp; such evidence,
we are not to require proof by mathematical precision and it suffices if having
regard to acts of recency, a particular view of the facts is more probable than
the other. <o:p></o:p><o:p>&nbsp;</o:p>After patiently scrutinizing the record of appeal before us and
attending to the written briefs submitted to us by the parties, we have come to
the conclusion that the view of the facts accepted by the two lower courts is
sufficiently derived from the admitted evidence and that contrary to the considerable&nbsp; submissions by the defendant directed at
overturning the findings, the plaintiff’s case had greater probative value than
that offered by the defendants not only for the very clear reasons provided in
the judgment with which we are concerned in these proceedings&nbsp; but also for reasons such as the failure of
the defendant to lead any evidence in support of the assertion contained in
paragraph 10 of the statement of defence by which it was averred that members
of his family had exercised various overt acts of ownership related to the
disputed land. Although in the said pleading, reference was made to the
plaintiff’s family as well, we think that on all the evidence, the exercise by
the plaintiff’s family of substantial rights sin relation to the land as was found
by the tribunal of fact coupled with the fact of the defendants receiving tolls
from them has the tendency of compelling us to the opinion that the allegation of
grants to other subjects of the stool is untrue. &nbsp;Further, by section 17 of the Evidence Act,
NRCD 323, the incidence of the legal burden on those grants was borne by the
defendants, and their failure to lead any such evidence rendered their
assertion not likely to be true. Section 17 of the Evidence Act provides:<o:p></o:p>“(1)
Except as otherwise provided by law, the burden of producing evidence of a
particular fact is on the party against whom a finding on that fact would be
required in the absence of further proof..”<o:p></o:p>As the defendants have failed to lead any evidence in proof of the
crucial plea in paragraph 4 of their statement of defence, by the operation of
the rules of evidence, they must suffer the consequences of the risk of
non-persuasion within sections 11 and 12 of the Evidence Act, the effect of
which is that the existence of the facts on which the plaintiff’s case is
grounded is more probable than that of their adversaries.<o:p></o:p><o:p>&nbsp;</o:p>In contradistinction to the above, the defendants accepted the fact
that the plaintiffs have been in possession of the land and exercising overt
acts thereon including the erection of buildings and cultivation of cash and
economic crops on the land. Also of significance to the case of the rival
claimants regarding who has a better right to the immediate occupancy of the
land, the defendant admitted that when they entered a portion of the disputed land
occupied by members of the plaintiff’s family and felled palm tress, they paid
for the value of their unlawful acts. This piece of evidence coming from the
defendants reinforces the p</main>