INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(552, 'K. AMISSAH KOOMSON\r\nH/N0. 216\r\nBaba Yara\r\nMadina, Accra  ---  PLAINTIFF\r\nVRS\r\nGHANA REVENUE AUTHORITY\r\nCustoms Division\r\n28th February Road\r\nMinistries,Accra.  ---  DEFENDANT', 'IN THE SUPERIOR COURT OF IUDICATURE, IN THE AUTOMATED FAST TRACK HIGH COURT, ACCRA HELD ON THURSDAY THE 2311D DAY OF FEBRUARY, 2012 BEFORE HIS LORDSHIP JUSTICE E.A. ASANTE\r\nSUIT NO.AHR. 90/2010\r\nK. AMISSAH KOOMSON H/NO.2 16\r\nBABA YARA\r\n\r\n	\r\n\r\nPARTIES ABSENT\r\nEMMANUEL AMOFA FOR THE PLAINTIFF PRESENT BOB SENYALA FOR THE DEFENDANT PRESENT\r\nPensions - Entitlements - Terminal Benefits - Plaintiff suing for accrued entitlements for thirty- three and halfyears of service - whether defendant has breached conditions of service with regards to plaintiffs entitlements.\r\nLand Law - Title Deeds - Pull Payment not made - Requirement for full payment.\r\n \r\nJUDGMENT\r\n•\r\nThe Plaintiff is a retired employee of the erstwhile Customs Excise and Preventive Services [CEPS] and now, a branch of the Ghana Revenue Authority, the Defendant herein. The Plaintiff''s complaint is that he worked for the CEPS for a period of thirty three and a half [33.5] years but upon his retirement, he was denied the payment of his terminal benefits; hence instituted this action against the Defendants for the following reliefs:\r\na.	An order compelling the Defendant to pay to the Plaintiff all his legitimate welfare package or accrued entitlements for his thirty three and a half years of service with the Defendant.\r\nb.	An order compelling the Defendant to release the title deeds of his premises for which Plaintiff has fully discharged his obligations to the Defendant.\r\nc.	Interest on the Plaintiff''s accrued entitlements at the prevailing bank rate from 1st April 2008 to date of final payment.\r\nd.	Costs.\r\nFrom the Plaintiff''s pleadings as well as his evidence at the trial, he contended that he retired from the employment of the Defendant on the 8th of March 2008 and became entitled to some end of service benefits to which all retired officers of the Defendant were entitled.\r\nHe maintained per his January 2008 pay slip which he tendered into evidence as exhibit "B", that his basic salary at the time of his retirement was GH4J,871.32. He went on to say that the entitlements which he was denied were:\r\n[a] One large size deep freezer; [b] GH4460.00 being medical subsidy from 2008 to 2011; [c] Long Service Award of GI-1 5,613.96 being three months salary, and [d] a Certificate of Honour as per Article 40[1c] of their conditions of service which conditions he tendered into evidence as exhibit "A"; [e] GH02,689.22 being four (4) weeks salary for every year served; and [f] a kente cloth. The Plaintiff again stated in evidence that he purchased a vehicle from the Defendant and his salary had been over- deducted to the tune of GH78.00 and so he was entitled to a refund of it. In all therefore the Plaintiff contended that he was entitled to be paid the sum of GH08,243.21 from the Defendant by virtue of the Conditions of Service which the Defendant has refused to pay to him. He went on to say that whilst in the employment of the Defendant, he was granted a housing facility by the Defendant and so the title deeds of the premises were used as security and kept by the Defendant. He contends that he is left with the balance of GH4t257.00 which he expects the Defendant to deduct from his entitlements, but the Defendant has refused to do so and to release the\r\n \r\ndocuments to him despite demands for it. In respect of the vehicle, the\r\n• Plaintiff states that it was valued at GH4:6,300.00 by the State Transport Company and it was offered to him at the same amount by the Defendant and that from deductions made by the Defendant from his salaries, he has overpaid to the tune of GH75.64 to which he is entitled to a refund. The Plaintiff totally rejected and denied the Defendant''s contention that his End of Service Award of three months'' salary was GH43,208.29, that his welfare package was one week basic salary for every year served totaling GH48,269.48, and that his car loan balance stood at GH10,502.61. In all therefore he denied the Defendant''s contention that the total amount due for collection by the Plaintiff from Defendant was GHc975.61.\r\nFrom the statement of defence as well as the evidence at the trial, the Defendant denied being liable to the Plaintiff for his claims.\r\nThe Defendant contended strongly that under their conditions of service, there is nothing like retirement benefit comprising of four weeks'' salary of every year served as claimed by the Plaintiff. Rather, the Defendant maintained that there was a special welfare package under which the Plaintiff was entitled to one weeks'' basic salary for every year served. Again, the Defendant stated that upon the Plaintiff''s retirement, he was entitled to a large size fridge or a deep freezer not a large deep freezer. The Defendant again contended that the Plaintiff is also entitled to a medical subsidy not exceeding GH440.00 per annum. Defendant also contended that the Plaintiff was entitled to three months basic salary as Long Service Award which Defendant quoted as GH43,208.29. The Defendant again maintained that the Plaintiff was owing on the car loan to the tune of GHc10,502.61. The Defendant again stated that the Plaintiff had not put in an application for the release of his documents to him as required and so it will be done if he applies for it upon final payment.\r\nAt the close of pleadings, the following issues were set out for the determination of the case:\r\na.	Whether or not the Plaintiff was in the service of the Defendant for thirty three and a half years.\r\nb.	Whether or not the Plaintiff''s entitlements consist of four [4] weeks'' salary for every year served.\r\nc.	Whether Defendant has complied with the payment of the Long Service Award under the Defendants'' Conditions of Service.\r\nd.	Whether the Defendant was required to release the title deeds of the Plaintiff''s property after fully discharging his financial obligation to the Defendant.\r\n \r\n4\r\ne.	Whether the Defendant is indebted to the Plaintiff in respect of the car •	loan.\r\nf.	Whether the Defendant has breached the Conditions of Service as regards the payment of Plaintiff''s entitlements.\r\ng.	Whether the Plaintiff is entitled to his claims.\r\nAdditional issues:\r\n1.	Whether or not by the Conditions of Service for staff of the Defendant there is a provision for retirement benefits.\r\n2.	Whether or not the officially documented award for retired officers of the Plaintiff category is a large size fridge or deep freezer and a medical subsidy not exceeding GH00.00 per annum.\r\n3.	Whether or not in addition to the retirement award the Plaintiff is entitled to "Long Service Award" of three months'' basic salary and a Certificate under Article 40 of the Conditions of Service for staff.\r\n4.	Whether or not officers granted housing loans apply officially for the return of their title deeds used as collateral for the loan after fully discharging all obligations attached to the loan.\r\n5.	Whether or not it is on record that as at the date of this suit Plaintiff had applied for the return of his title deeds.\r\nI will deal with the issues raised as and when they arise. For me issue [a] as set out does not arise at all because the defendant has not disputed the Plaintiff''s contestation that he worked for thirty three and half years. I therefore find as an undisputed fact that that the Plaintiff worked for the Defendant for thirty three and half years. On issue [b], whereas the Plaintiff contends that he is entitled to four weeks basic salary for every year served as his retirement award, the Defendant contended per its witness that he was entitled to one week basic salary for every year served. There is evidence on record that for lack of funds the Defendant agreed to pay two weeks and sometimes one week basic salary for each year served, depending on the year of retirement and availability of funds. For instance under cross-examination of the Defendant''s Welfare Officer by the Plaintiff''s counsel, he stated that those who retired in 2007 were paid two weeks basic salary for every year worked but those who retired in 2008 were paid one week''s salary for every year worked as their retirement awards. It is also undisputed on record that the agreed period for the payment of the retirement award was four weeks for every year served and that those received payments for periods less than that would be re-imbursed when the time came for\r\n \r\nS\r\nthe full payment. In the circumstances, since the Defendant''s witness\r\n• stated that they were in the position of paying two months, I hold that the Plaintiff herein is entitled to the payment of two weeks for every year served. The unchallenged evidence is that the Plaintiff''s monthly basic salary at the time of his retirement was GH41,871.32. To buttress this contention, the Plaintiff tendered his pay slip for January 2008 into evidence as exhibit "B" I therefore order the Defendant to calculate the Plaintiff''s retirement award based on this figure. I now come to the issue of the title deeds. The Plaintiff contended that he has just GH4257.00 left on his housing loan to repay and that the Defendants have failed to deduct it from his terminal benefits so they can release his title deeds to him. From the Defendant''s contention, the Plaintiff has not fully paid for the facility; hence his title deeds have not been released to him. On this issue I agree with the Defendant''s stance. The Plaintiff has to take steps to make full payment before his title deeds would be released to him. There was no agreement that the loan would be deducted from his terminal benefits. I therefore hold that the Plaintiff is entitled to the release of his title deeds from the Defendant immediately upon payment of the balance of GH257.00 to the Defendant. Upon payment of the balance, the Defendant is ordered to immediately release his title deeds to him. The next issue is on the payment of the car loan. In respect of this, the Plaintiff contended that the car was valued by the State Transport Company to cost GH6,300.00 and that in all the sum of GH6,378.64 had been deducted from his salary. He therefore contended that he had overpaid by GH478.64. The Plaintiff again exhibited the letter of request sent by the Defendant to the Intercity STC to value the\r\nPlaintiff''s vehicle together with other cars as exhibit "D". He also tendered the valuation report as exhibit "E" in proof of the price and he also tendered as exhibit "F" the offer letter from the Defendant offering the car for him at the valued price of GHc6,300.00. All these were admitted into evidence without objection by the defence counsel. The Defendants denied the Plaintiff''s assertion that he had fully paid the car loan but were unable to state the debt position when asked to do so.\r\nUpon request by the Plaintiff''s counsel, the Defendants could not produce the account. The only available evidence for consideration by the court is the documents tendered by the Plaintiff. On the face of exhibit "B", the Plaintiff has overpaid the car loan and is entitled to a refund of the overpayment. I therefore order the Defendant to refund the Plaintiff''s amount of GH478.64 to him. The issue of the Long Service Award does not arise at all. The Defendant''s own witness admitted that the Plaintiff is entitled to End of Service Award of three months basic salary. I therefore find that the Plaintiff is entitled to be paid his End of Service Award of three months basic salary. The Defendant also admitted per its witness that the Plaintiff is entitled to a deep freezer and I order the Defendant to procure the said deep freezer to the Plaintiff. The other issue is the medical subsidy. The Defendant per its witness admitted that the Plaintiff\r\n \r\n()\r\nis entitled to be paid the sum of GH40.00 annually as medical subsidy\r\n• but he was not practically entitled to it because no officer had been paid that subsidy. He however admitted that under article 36(4)ii all retirees including the Plaintiff who had worked for fifteen years and more were entitled to this subsidy. Following this admission, I find that the Plaintiff is entitled to be paid his medical subsidy of GH40.00 by the Defendant from 2008 when he retired until his death.\r\nIn sum therefore, I enter judgment for the Plaintiff against the Defendant in the following terms: Defendant is ordered to pay to the Plaintiff his terminal award being two weeks of his basic salary of GH1,871.32 for every year worked, with the remaining two weeks to be paid when the company decides to pay for all staff of the Plaintiff''s category as agreed. Defendants are in addition ordered to pay to the Plaintiff his Long Service Award which is his three months basic salary. Defendant is also ordered to refund the Plaintiff''s GH478.64 to him and in addition write a letter to transfer the titled to the Toyota Corolla to him. The Defendant is also ordered to release the Plaintiff''s title deeds which he used to secure the loan to him upon payment of the outstanding balance of GH4257.00. The Defendant is also ordered to pay the Plaintiff his medical subsidy in terms of the Conditions of Service tendered as exhibit "A".\r\nUpon the Defendant''s own admission, it is ordered to buy the Plaintiff a large deep freezer refrigerator in accordance with the conditions of service. Interest is to be calculated on all sums adjudged to be paid to the Plaintiff by the Defendant. It is also ordered that all payments and orders made under this judgment are to be complied with within sixty days from today. I award cost of GH4,000.00 for the Plaintiff against the Defendant.\r\n(SGD) EDWARD AMOAKO ASANTE\r\nJUSTICE OF THE HIGH COURT\r\nEY/...\r\n', '../links/cases/Document (203).pdf', 'Yes', '', '2012', 'high', '<i><b><font face="Times New Roman" size="3">Pensions - Entitlements - Terminal Benefits - Plaintiff suing for accrued entitlements for thirty-three and half years of service - whether defendant has breached conditions of service with regards to plaintiff''s entitlements.Land Law - Title Deeds - Full Payment not made - Requirement for full payment.</font></b></i><br>', 'JUSTICE E.A. ASANTE', 'Civil', '', 'AHR.90/2010', '', '', 'high', '2012-02-23', ''),
(553, 'FREDERICK MENSAH  ...  PLAINTIFF/RESPONDENT\r\nVRS\r\n1. DIRECTOR NEWMONT\r\n2. NEWMONT GOLD GH. LTD.  ...  DEFENDANTS/APPELLANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE COURT OF APPEAL\r\nACCRA-GHANA\r\nCORAM:	A. ASARE-KORANG, J.A (PRESIDING) V. OFOE, J.A.\r\nC.J. HONYENUGA, J.A\r\nSUIT N0.1-11/72/2012 15T1 NOVEMBER, 2012\r\nFREDERICK MENSAH	PLAINTIFF/RESPONDENT\r\nVRS.\r\n1.	DIRECTOR NEWMONT\r\n2.	NEWMONT GOLD GH. LTD	DEFENDANTS/ APPELLANTS\r\nLand Law - Compulsory Acquisition - Compensation - Method of Payment— Minerals and Mining Acts s. 73 and 74 - Law on compensation payment requires agreement by the parties on what compensation to be paid —Agreed method of compensation is Acreage method.\r\nPractice and Procedure —Appellate Court - Circumstances under which it can interfere with findings of trial court —Justifiable to do so when findings is inconsistent with crucial evidence on record\r\nOFOE, IA.:\r\nThe defendant acquired a mining lease from the government of Ghana in Ad ausena in the New Abirem District of the Eastern Region. By law it is obliged to pay compensation to persons, including farmers, who found themselves on the acquisition area.\r\n \r\n\r\n \r\nand were to be displaced. The plaintiff, a farmer, happens to be one of these persons. It is the accepted practice that the farmer affected, in this case the plaintiff, the chief farmer of the area, officials of the defendant company and an officer of the Land Valuation Board approves of the type and quantities of the crops found on the affected farmers land. What was found on plaintiff''s land and signed by these personalities was tendered as exhibit A. The dispute between the plaintiff and the defendant in the trial court and indeed in this court is in respect of some 5000 nursery seedlings which plaintiff claims he is entitled to be compensated for. The defendant does not intend paying the plaintiff this demand because it is its case that there is an accepted mode of payment for seedlings which is not what the plaintiff is demanding. The defendant contends that the payment is on acreage basis. The matter had to go to the Nkawkaw High Court for determination.\r\nBy his writ of summons, which was home brewed i.e. issued by the plaintiff personally, he asked for an order from the court directed at the defendant to pay compensation to him as per the valuation report of his farm.\r\nDefendants'' case on the pleadings is that it is true that they found 5000 seedlings and other crops belonging to the plaintiff on the land. These were duly recorded and that is what is recorded in exhibit A. They were to facilitate the movement of the seedlings to any place of choice for the plaintiff but he refused insisting he was\r\n \r\nentitled to be paid compensation for these 5000 seedlings which are\r\nnot crops planted on the land.\r\nThe trial court agreed and gave him judgment directing the defendant to pay the plaintiff compensation for all crops including the 5000 seedlings, rejecting the acreage mode of payment offered by the defendant.\r\nThe trial judges reasoning for this conclusion can be noted under two heads. Firstly that it was not right for the second defendant to object to the planting of 5000 seedlings on the plaintiff''s 5 acre piece of land on the grounds that the seedlings were too many to occupy that size of land. Such objection the trial judge found unreasonable because it was the view of the trial court that it was the plaintiff''s right to decide on the most economic use for his land and not the defendant. Secondly the purpose of the stock taking was to identify and record the crops growing on plaintiff''s land and since counsel for the defendant in his address admitted that the 5000 seedlings are crops then the seedlings qualify to be paid compensation like any other crop.\r\nThe defendant does not agree with the trial judge and has appealed against the judgment on the grounds that the judgment is against the weight of evidence and that the order of the trial court that it pays compensation for all the 5000 seedlings is arbitrary and has no basis in law or the facts.\r\n \r\nThe authorities are now agreed that where a trial court took into consideration the demeanor of the witnesses before him or her as well as the substance and quality of oral and documentary testimonies before giving judgment then an appellate court has no power to disturb or interfere or reverse the judgment of the trial court. But then it is also recognized that an appellate court may reverse findings of fact made by a trial court based on established facts. It may justifiably interfere with a finding of fact by a trial court where the finding is inconsistent with crucial evidence on record or the finding of the trial court is perverse. Refer to the cases of Agbemashie vs. Amorkor (2009) SCGLR 594, Koglex No 2 vrs Field (2000) SCGLR 175 at 184. This the appeal court does by examining the record of appeal critically to satisfy itself that the said findings of the trial court are supportable having regard to the evidence on record. As is commonly said, an appeal is by way of rehearing and we are duty bound to review the record of appeal whether the appeal of the defendant is supportable\r\nBy the appeal records the valuation report plaintiff had in mind at the time of instituting the suit was exhibit A. He was asking that he be paid compensation according to this report, exhibit A. It is clear however from the record of proceedings that exhibit A is not a valuation report to form the basis of any payment as contended by the plaintiff. I will agree therefore with the defendant that exhibit A is a record of the personal data of plaintiff, and the description and enumeration figures of the crops plaintiff had on the farm at the\r\n \r\ntime of the enumeration and not a valuation report. There is therefore a defect in the claim of the plaintiff in that he was making claim on a report which has not made any valuation entitling him to any monetary payment. This defect notwithstanding it is my view that the plaintiff''s claim should not be dismissed only because of this defect in his claim. I have earlier mentioned that the plaintiff was in court without the assistance of a lawyer. The authorities have in certain circumstances permitted the courts in looking at the substance of the claim and not the form in ascertaining the nature of the claim before it. Refer to the case of Ghana Consolidated\r\nDiamond Ltd vs. Tantuo (2003-2004) SCGLR 1144. They have also permitted the courts to amend the claim of parties before it if the circumstances will so permit and no injustice will be occasioned the other party so as to grant parties any award due them to meet the justice of the case. For this position we may look at the case of Amakom Sawmills vs. Mansah (1963) 1 GLR 368, Akyea Djamson vs. Duagbor (1989-90) 1GLR 223. What then in substance did the plaintiff want from the defendant company and did the record of appeal disclose he was entitled to any such relief against the defendant?\r\nBefore I proceed with this judgment it is worth mentioning that the record of appeal discloses that as regards compensation matters there is this negotiating committee, the Compensation Negotiation Committee (CNC) comprising representatives of farm owners, the Newmont Company, the Lands Commission and Town and Country Planning and the valuation Board. The plaintiff admits this\r\n \r\ncommittee exists, and admits further that the decision of this committee binds him.\r\nReading the record of appeal in whole the defendant''s position appear not to be denying the plaintiff any compensation but rather to pay him according to the operative rules in the field which accords with the Minerals and Mining''s Act 2006 (Act 703). According to the defendant these are rules that have been crafted by the CNC for use and have been in use in the payment of compensation to others also entitled. To the defendant therefore the plaintiff is entitled to compensation but not for the whole of the 5000 seedlings.\r\nI will then ask, how much compensation is the defendant admitting the plaintiff is entitled to?\r\nDefendant testified through a Mr. Paul Obeng, an employee of the defendant company. He told the court the CNC has subcommittees. It was the Crops Compensation Committee that assessed the rate of payment for crops. The crops were classified into three: seedlings, medium and matured plants. At a meeting of the Crops Subcommittee meeting it was agreed that the definition of a seedling is a young plant that can be found on the nursery bed or on the field but has not developed new roots and leaves. This witness testified further that they found out that sixty oil seedlings\r\n \r\ncan plant one acre of land. So any anything in excess of the sixty is to be transported to another land. His evidence continued:\r\n"We found out that the plaintiff had another land of about five acres in the area. We are now processing compensation for that five acres land but the extra 5000 seedlings compensation will also be added to the compensation on the five acre land. For the 0.1 acre we are going to estimate the number of seedlings which can be planted on the 5 acre land and add to the 0.1 acre land. We are only paying the transportation of the extra 5000 seedlings to the 5 acre land"\r\nEven though it would be right to say that this evidence is not too clear, the import becomes clearer after reading submissions of both counsel. The meaning gathered is that while the plaintiff wants to be paid simply for his 5000 seedlings, since these were counted and recorded as found on his farm, the defendant wants to apply acreage payment method. In other words how many acres would the plaintiff need to be able to plant the whole of his 5000 seedlings? If by the standard practice sixty seedlings can be planted over an acre of land then for the 5000 seedlings the plaintiff would need over 80 acres of land to plant the whole of the 5000 seedlings. They found that the plaintiff had no such land. All he had was a 5.1 acre land and will therefore be paid for the number of seedlings that can be planted on this acreage and would be assisted to carry the remainder of the seedlings to any place of his choice. This acreage\r\n \r\nmethod of payment approved by the CNC was what was used for payment of compensation all other farmers. This evidence was not denied by the plaintiff.\r\nSubmissions of counsel for the defendant in support of his ground of appeal were that there should be no doubt that exhibit A was not a valuation report but a recording of the crops that were found on plaintiff''s land. Also there was the CNC which was responsible for categorizing and working out the procedure by which compensation would be paid the beneficiaries. It is counsel''s submission that it was wrong for the trial judge to have ignored this CNC, its subcommittees and its guidelines and ordered payment to the plaintiff for all the 5000 seedlings, in effect failing to properly assess the probative value of exhibits 1 and 2. It is counsel''s submission that compensation payment has been by the acreage method to all other farmers, who like the plaintiff have agreed to be bound by the decisions of the CNC.\r\nCounsel for the plaintiff on the other hand had a simple position in his submission. The compensation payment by the defendant based on the acreage approach is not only arbitrary but unknown to the Mining Commission. He emphasized that the plaintiff is entitled to nothing than the full value of all the 5000 seedlings as granted by the trial judge. This to him is the agreement between the plaintiff and the defendant and nothing else.\r\nI have stated earlier in this judgment that plaintiff''s claim on the writ is defective but that we will not hold him to it if the justice of\r\n \r\nthe case so demands. From the record of appeal it appears clear that what the plaintiff is asking from the court is for an order to be paid compensation for the 5000 seedlings. What is the basis for this claim? Since he is asking for this payment he has the evidential burden to convince the court the basis for this claim. I think the position of the law on this is clear. In his counsel''s submission he refers to exhibit 1 at page 7 land 72 as the contract and the "law" which binds the defendant to pay t7 per seedling to the plaintiff Try as I could I found no basis for considering this exhibit as a contract or law governing compensation. Exhibit 1 is the report of the 7th meeting held by the crop subcommittee. The report contains deliberations and definition of mature plant, medium plant and seedlings and nothing else. Counsel again refers to exhibit 2 as an agreement to pay (P7 as compensation rate for seedlings. Here again there is nothing in there that specifies t7 as compensation rate for all seedlings found on a farm. It would appear therefore that the plaintiff failed to establish any basis for the compensation of all the 5000 seedlings he is asking of this court.\r\nThe trial judge concluded that in so far as counsel for the defendant has admitted that seedlings are also crops then the seedlings are entitled to compensation. With all due respect to the trial judge counsel''s submission is not evidence and therefore it was wrong for him to have relied on such submission to find for the plaintiff Again nowhere in the record of appeal is it stated that if seedlings are found to be crops then they are entitled to compensation. In any case it has never been in doubt that in\r\n \r\nexhibit 1 seedlings are crops. The issue before him was what mode of payment existed for the payment of seedlings. Was it payment on acreage basis as contended by the defendant or payment for the whole 5000 seedlings as contended by the plaintiff and why? This was not answered by the trial judge. The trial judge''s next argument he made in favour of the plaintiff was why the defendant would want to determine for the plaintiff how many seedlings should fill an acre of land. According to the trial judge it was for the plaintiff to determine how many seedlings he will want to put on a plot and not the defendant. This position taken by he trial judge is not accurate. The law on compensation payment as will be shown presently requires agreement by the parties on what compensation to be paid and not a sole decision of the plaintiff. He argued further that since the seedlings were in existence before the moratorium then the defendant was bound to pay for the 5000 seedlings. Here again with all due respect to the trial judge he begged the question. Why should the plaintiff be paid for all the 5000 seedlings only because they were in existence before the moratorium? It is not an accurate position to take that every crop in existence before the moratorium was entitled to compensation. The record of appeal does not support such position.\r\nI have stated earlier in this judgment that the defendants admit the plaintiff is entitled to compensation but not to the whole of the 5000 seedlings as claimed by the plaintiff. They contend that their chosen method of payment is in accordance to Act 703, the Minerals and Mining Act which governs compensation payments. What does this\r\n \r\nlaw say? On reading this enactment I find the following provisions very relevant to our case i.e. sections 73 and 74 of this Act.\r\n1173(1) The owner or lawful occupier of any land subject to\r\na mineral	right is entitled to and may claim from the\r\nholder of mineral right compensation for the disturbance\r\nof the rights of the owner or occupier, in accordance with\r\nsection 74.\r\n"74.(1) The compensation to which an owner or lawful\r\noccupier of land may be entitled	may include\r\ncompensation for:\r\n(a)Deprivation of the use of or particular use of the\r\nnatural surface of the land or part of the land\r\n(b)Loss of or damage to immovable property\r\n(c)In the case of land under cultivation, loss of\r\nearnings or sustenance suffered by the owner or\r\nlawful occupier, having due regard to the nature of\r\ntheir interest in the land\r\n(d)Loss of expected income, depending on the nature\r\nof the crops on the land and their life expectancy..."\r\n \r\nReading the law in whole and the above mentioned sections in particular, one will not fail to come to the conclusion that there is no iron clad rule as to what compensation should be paid to beneficiaries. It is a function to be determined by agreement noting that at the end of the deliberations fair compensation will be paid all beneficiaries. This is a constitutional, Article 20(2)(a) of the 1992 constitution. The Act also provides for steps to be taken where there is no agreement. Refer to section 73(3). So was there agreement between the parties as to the compensation payable to the plaintiff? From the record of appeal it would appear that because several other farmers were affected by the acquisition it became necessary to have an umbrella body, the CNC, for the decision on the modalities and how much compensation to pay beneficiaries to be determined. It is reasonable to conclude from the evidence therefore that the CNC was the body that did the negotiation and it is at that point that agreement, the agreement required under the law, is reached with the beneficiaries. This is what the plaintiff said in cross examination:\r\n"Q. You said the compensation is done by the CNC (Compensation Negotiation Committee)\r\nA. Yes they negotiate the price\r\nQ. Whatever CNC agreed is binding on you?\r\nA. Yes"\r\n \r\nI have earlier mentioned the composition of the CNC.\r\n \r\nWhat then did the CNC agree should be the mode of handling seedlings and how much was to be paid for seedlings? From the evidence on record I think the plaintiff should be bound by the decision of the CNC which is that the plaintiff will have to be paid for the number of seedlings that will cover the area 5.1 acres and should be assisted to convey the remainder of the seedlings to any place of his choice.\r\nIn consequence of the analysis of the evidence on record and on application of the law governing compensation payments, the Minerals and Mining Act, I find myself unable to support the findings and judgment of the trial court. He failed to give adequate consideration to the evidence on record thereby coming to a wrong conclusion granting the order that the plaintiff be paid compensation for all the 5000 seedlings.\r\nI will uphold the appeal and set aside the judgment and order of the trial court.\r\n(SGD.)\r\nVICTOR D. OFOE\r\nJUSTICE OF APPEAL\r\n(SGD.) ASARE KORANG, J.A I agree	A.ASARE-KORANG\r\nJUSTICE OF APPEAL\r\n \r\n(SGD.)\r\nC.J. HONYENUGA JUSTICE OF APPEAL\r\n \r\nCOUNSEL\r\n•	DR. J.E. OPPONG FOR THE PLAINTIFF/RESPONDENT\r\n•	MR. SEY\r\nCO. LEGAL PRACTITIONERS FOR THE\r\nDEFENDANT/APPELLANT\r\n\r\n', '../links/cases/Document (204).pdf', 'Yes', 'V.OFOE, J.A., C.J.HONYENUGA, J.A', '2012', 'appeal', '<i><b><font face="Times New Roman" size="3">Land Law - Compulsory Acquisition - Compensation - Method of Payment - Minerals and Mining Act,s.73 and 74 - Law on compensation payment requires agreement by the parties on what compensation to be paid - Agreed method of compensation is Acreage method. Practice and Procedure - Appellate Court - Circumstances under which it can interfere with findings of trial court - Justifiable to do so when findings is inconsistent with crucial evidence on record</font></b></i><br>', 'A.ASARE-KORANG, J.A.', 'Civil', '', 'H1/72/2012', '', '', 'appeal', '2012-11-15', ''),
(554, 'KOJO ANYANFUL  ---  PETITIONER/APPELLANT\r\nVRS\r\nTHERESA ANYANFUL  ---  RESPONDENT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE COURT OF APPEAL\r\nACCRA A.D. 2011\r\nCORAM: ABBAN, JA (PRESIDING)\r\nDUOSE, JA\r\nOFOE, JA\r\nSUIT NO.: 141149/2011 17Th1 November, 2011\r\nKOJO ANYAFUL	PETITIONER/APPELLANT\r\nVRS\r\nTHERESA ANYAFUL	RESPONDENT/RESPONDENT\r\nFamily Law— Husband and wife— Dissolution of marriage— Grounds upon which divorce petition is granted by the court— Petitioner to adduce strong and weighty evidence to show marriage has broken down beyond reconciliation— Matrimonial Causes Act, ss. 1,2 & 3.\r\nIUDGMENT OFOE, l.A\r\nThe appellant who was the petitioner in the trial court sought from the court the dissolution of the marriage between him and the respondent. By his petition he was seeking the dissolution of the marriage because the respondent has been abusive, that they had not lived together since 1999, all diligent efforts have been made to\r\n \r\nresolve their differences to no avail and that the respondent has behaved in such a way and manner he cannot reasonably be expected to live with her. In respect of property settlement he prayed the court to settle House Number 120 Park Road, Uxbridge, Middlesex, England which he claims he purchased alone and one other house in Rome on him. A two bedroom NTHC property in Accra which he built with the contribution of the respondent he asked that it be settled on them jointly and an uncompleted house in Dome which he claims he built alone be settled on him.\r\nThe respondent denied the allegations of the petitioner and accused him rather of abandoning the home most of the time. It was the case of the respondent that they lived together in the U.K until the petitioner returned to Ghana in1991. They agreed that she stayed behind in the U.K to study Nursing. They visited each other regularly until the petitioner got a job with the United Nations and moved to Rome in 1996. After her course in the UK she joined the petitioner in Rome. On agreement of both parties he had to go back to the UK with the children for medical reasons. This was in 1999. Kwesi their 13 years old child is medically challenged and needed continious care and medical attention. Their other child is Yaa who at the time of the petition was 11 years. The petitioner abandoned them in the UK and on any of the rare visits he made to them there were quarrels with occasional threats from the petitioner to divorce her. She also thinks the marriage has broken down beyond reconciliation and prays for dissolution of the marriage, custody of the two children, maintenance including medical bills and\r\n \r\nallowance for the children. In respect of the properties she claims to be a joint contributor and therefore the London and the Lashibi property in Ghana, which they jointly owned, be settled on her for the petitioner to keep the Italy and Dome house in Ghana. I must mention here that the respondent mentioned that she had commenced divorce proceedings in the UK through her solicitors because she and the children are British citizens and domiciled in the UK and their joint assets are in the UK, Italy and Ghana. When she commenced this proceeding her father in Law called that she should not proceed with the proceedings but come to Ghana for a discussion on the matter\r\nThe petitioner''s reply to the respondent''s answer sought for different reliefs. He asked that the London property be sold and the proceeds be split between them after payment of the mortgage balance and all the other properties be shared according to each person''s contribution. When the case came on for hearing the respondent was not in court and the court proceeded to take evidence in her absence on the 27" July 2009 and delivered its judgment on the 19th October 2009 refusing the petition for divorce.\r\nIt is this refusal that the appellant, who I have referred to as the petitioner and I will continue to refer to as such in this appeal, is aggrieved with and has appealed to this court. To him the judgment is against the weight of evidence and is not warranted by law. There is a lot wrong with this other ground of appeal that simply states that "the judgment is not warranted by law". It has been repeated and several times that Rule 8 sub rule 4 requires that where the\r\n \r\nground of appeal alleges error of law particulars of the error should be clearly stated. I will make no issue out of this omission by counsel and proceed to find out whether indeed there was such error of law as alleged by the petitioner.\r\nThe brief of the evidence put before the court why he thinks the marriage has broken down irreconciliably were that the wife has been very abusive towards him and on one occasion she struck him at the back of his head. After this incident Mr. Kojo Owusu Tieku, a Diplomat came in and their differences were resolved and they agreed to continue with the relationship. This was in 2005. Another difference between them was resolved by a Mr. Asante in London and they agreed to continue the marriage for the sake of the children. Their differences continued anytime they met. On one other occasion the respondent came to his office and abused him in front of his secretary and this to the petitioner broke the camel''s back. To the petitioner these were sufficient acts of the petitioner clearly indicating their marriage had broken down beyond reconciliation. He ended his evidence that the last time they had sexual relations was a year ago. It needs noting that the petitioner gave these pieces of evidence on the 271h July 2009.\r\nWhat was the trial judges assessment of the evidence and its application of the law that the petitioner finds unacceptable. After referring to section 2(1) and 2(3) of the Matrimonial Causes Act and emphasizing that the court should not grant divorce petition unless it finds that the marriage had broken down beyond reconciliation the trial judge proceeded and concluded:\r\n \r\n"The Petitioner in the instant case led no corroborative evidence in support of his assertions. The parties are living apart of each other by their own mutual arrangements. Quarrels, conflicts, insult and differences between spouses and I dare to say occasional romantic assaults are normal incidents of married life. Not having had sex for a year without more is no ground for divorce especially when the parties are not living together and there is no complaint of having had any adverse health related consequences. By the petitioners own evidence the two attempts at reconciliation were successful when they both agreed to continue for the sake of the children.\r\nMarriage is a sacred institution ordained by God, sanctioned by the state and approved and consented to by two families. The law requires very strong and weighty reasons to dissolve such a union. On the evidence led in this case, no weighty reasons have been advanced to convince me to grant the prayer. Accordingly the prayer will not be granted."\r\nCounsel for the petitioner disagrees with these views expressed by the trial judge and argues that there are sufficient pieces of evidence provided by the petitioner for the grant of the petition for divorce. He submits that the Matrimonial Causes Act, Act 367 of 1971, specifically section 2(1) provides that to show that the marriage has broken down beyond reconciliation there is the need to establish the existence of certain facts. (2) (1)(b) provides that:\r\n \r\n"the respondent should have behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". This standard, according to counsel was met by the evidence given by the petitioner. The two incidents that were settled can''t be the basis for concluding that the marriage had not broken down beyond reconciliation, as the trial judge reasoned. For according to counsel, if there had indeed been a settlement, the subsequent incident where the respondent had to abuse him, a diplomat, in his office before the secretary would not have occurred. To interpret these incidents, including an assault as "romantic assaults" and conclude that the law requires" strong and weighty reasons to dissolve such a union is not only a wrong assessment of the evidence but also a wrong application of the law on burden of proof. Counsel submits that our civil law demands proof on the preponderance of the probabilities and not "strong and weighty reasons" as the trial judge stated. It is counsel''s submission that to wait until an irreversible harm is caused to one of the parties, as the court appeared unconsciously to have preferred, should be rejected for His Lordship Sarkodie''s views in the case of Addo vrs Addo (1973) 2 GLR 103 at 106, where he said,\r\n"The injury may be to physical or mental health but where one spouse complains of unreasonable behavior of the other spouse it seems to me the injury need not be actually suffered. A reasonable apprehension (emphasis mine) that injury will result if the conduct is persisted in will be enough; for the\r\n \r\nCourt should not wait for a spouse to be actually injured\r\nbefore offering (her) relief."\r\nIt would be necessary to quote the relevant portions of the\r\nMatrimonial Causes Act for a better appreciation of the application\r\nof the facts to the applicable law.\r\n"Section 1	Petition for Divorce.\r\n(1)	A petition for divorce may be presented to the court by\r\neither party to a marriage.\r\n(2)	The sole ground for granting a petition for divorce shall be\r\nthat the marriage has broken down beyond reconciliation.\r\nSection 2—Proof of Breakdown of Marriage.\r\n(1) For the purpose of showing that the marriage has broken\r\ndown beyond reconciliation the petitioner shall satisfy the\r\ncourt of one or more of the following facts:—\r\n(a)	that the respondent has committed adultery and that\r\nby reason of such adultery the petitioner finds it\r\nintolerable to live with the respondent; or\r\n(b)	that the respondent has behaved in such a way that\r\nthe petitioner cannot reasonably be expected to live with\r\nthe respondent; or\r\n(c)	that the respondent has deserted the petitioner for a\r\ncontinuous period of at least two years immediately\r\npreceding the presentation of the petition; or\r\n \r\n(d)	that the parties to the marriage have not lived as man and wife for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to the grant of a decree of divorce; provided that such consent shall not be unreasonably withheld, and where the Court is satisfied that it has been so withheld, the Court may grant a petition for divorce under this paragraph notwithstanding the refusal; or\r\n(e)	that the parties to the marriage have not lived as man and wife for a continuous period of at least five years immediately preceding the presentation of the petition; or\r\n(1) that the parties to the marriage have, after diligent effort, been unable to reconcile their differences.\r\n(2)	On a petition for divorce it shall be the duty of the court to inquire, so far as is reasonable, into the facts alleged by the petitioner and the respondent.\r\n(3)	Notwithstanding that the court finds the existence of one or more of the facts specified in subsection (1), the court shall not grant a petition for divorce unless it is satisfied, on all the evidence, that the marriage has broken down beyond reconciliation".\r\nA cursory reading of these provisions will show that the sole grounds for granting a petition for divorce is that the marriage has broken down beyond reconciliation. Whether a marriage has got to\r\n \r\nthat stage or not is for the trial judge to determine after examining all the facts put before him. By subsection 3 of section 2 even though there may be established any of the facts specified in subsection 1, the court should still be satisfied that the marriage has broken down beyond reconciliation. Looking at the evidence led before the trial court there has been two incidents but settled. Then was the abuse in the office. Should these two incidents that were settled and the subsequent abuse in the office be sufficient grounds for a conclusion that the respondent has behaved in such a way as not to expect the petitioner to reasonably live with her? I don''t think the trial judge''s conclusion in the negative is baseless. This is especially so when the petitioner himself told the court that the last time they had sexual affair was over a year ago. And these are couple not living together, by their own agreement, because each had to work at a different location on the globe for financial reasons- one in the UK and the other in Rome. As rightly stated by the trial judge petitioning for divorce is a different thing from its grant. A party is at liberty to petition for divorce but it is the duty of the court to look at the entire evidence before it whether it is satisfied the marriage has broken down beyond reconciliation. Underlying section 2 of the Act, quoted earlier, is a clear duty imposed on the court to give maximum scrutiny to petitions for divorce and be satisfied before grant. I am of the view the trial judge did exactly that before concluding refusing the petition.\r\nIt is true that the trial judge made reference to strong and weighty reasons before the grant of divorce. Counsel finds this an\r\n \r\nintroduction of another yardstick not known to the law in the\r\ndischarge of the evidential duty imposed on parties in civil litigation. How strong and what weight should be given to the evidence led by the petitioner? For the trial judge to find that no such weighty evidence has been given by the petitioner and that the evidence he led is not strong enough for the petition to be granted, I don''t think should be interpreted as introducing an unknown evidential principle on proof in our law of evidence. If he did, it is a known common principle that an appeal is by way of rehearing. Is there evidence for which on application of the evidential burden of proof on the balance of probabilities the judgment can be supported? I think the answer should be a yes.\r\nIssue of jurisdiction has tangentially been raised but on reading of the appeal record I don''t think it is worth any bother to this court. The essential conclusion is that the prayer in the petition has been refused. Whatever happened in the UK, if indeed it happened, by way of earlier divorce, was not canvassed before the trial judge because the respondent who raised it in her pleadings did not testify before the trial judge.\r\nFrom the foregoing the appeal is consequently dismissed.\r\nVICTOR D. OFOE\r\n(JUSTICE OF APPEAL)\r\n \r\nHENRIETTA ABBAN, JA I agree	HENRIETTA ABBAN (JUSTICE OF APPEAL)\r\nISAAC DUOSE, JA	I also agree	ISAAC DUOSE (JUSTICE OF APPEAL)\r\nCOUNSEL\r\n. MR. GEORGE KOM FOR PETI''I''IONER/APPELLANT(WITH HIM FRANCIS KOKU)\r\nMR. FRANCIS ACHIBONGA FOR RESPONDENT/RESPONDENT\r\n\r\n', '../links/cases/Document (205).pdf', 'Yes', 'DUOSE, JA, OFOE, JA.', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Family Law - Husband and wife - Dissolution of marriage - Grounds upon which divorce petition is granted by the court - Petitioner to adduce strong and weighty evidence to show marriage has broken down beyond reconciliation - Matrimonial Causes Act, ss.1,2 &amp; 3.</font></b></i><br>', 'ABBAN(MRS), J.A.', 'Civil', '', 'HI/49/2011', '', '', 'appeal', '2011-11-17', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(555, 'EXPOM GHANA LTD  ---  PLAINTIFF\r\nVRS\r\n1. VANGUARD ASSURANCE AND ANOR\r\n2. TRI-STAR INSURANCE SERVICES GHANA LTD  ---  DEFENDANTS', 'IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF\r\njUSTICE ACCRA, (COMMERCIAL DIVISION) HELD ON TUESDAY THE 8TH\r\nDAY OF JANUARY, 2013. BEFORE HIS LORDSHIP, JUSTICE RICHARD\r\nADIEI-FRIMPONG.\r\nSUIT NO.INS14/2010\r\nEXPOM GHANA LTD	PLAINTIFF kTj M1\r\n1.	VANGUARD ASSURANCE AND ANOR\r\n2.	TRI-STAR INSURANCE SERVICES GHANA LTD -	DEFENDANT\r\nPARTIES: PLAINTIFF REPRESENTED BY DOMENICO FALCONE-PRESENT DEFENDANTS ABSENT\r\nCOUNSEL: THADDEUS SORY FOR PLAINTIFF WITH HIM CYNTHIA FRIMPOMAA-PRESENT\r\nMARTIN AGYEN SAMPONG WITH HIM BARBARA OKINE TETTEY AND MICHAEL GYAN NYARKO FOR 1ST DEFENDANT-PRESENT AYITTEY ARMAH TETTEH FOR 2ND DEFENDANT-PRESENT\r\nLaw of Contract - Insurance - Failure of insurer to settle claim made by insured - Whether the insured deliberately caused the peril - Burden of proof - Onus on insurer to adduce credible evidence that insured committed arson - Standard of proof required in civil cases tainted with criminality is proof beyond reasonable doubt - Evidence Acts. 13(1)\r\nIndemnity - Measure of indemnity - whether plaintiff has to he restored to the position existing at the time of the fire -- Onus on plaintiff to adduce evidence to prove quantum of loss suffered.\r\n \r\nh.\r\n- •\r\n \r\nJUDGMENT\r\nLying at the heart of Insurance Contracts are those situations where an insurance company can lawfully refuse to settle a claim.\r\nSuch is the situation that confronts this court in the instant litigation. The Vanguard Assurance is resisting a claim put in by Expom Ghana Ltd, under an insurance policy.\r\nIn some cases, an insurer may not repudiate the contract of insurance itself but the liability that has arisen thereunder. Lord Justice BANES draws the distinction between the two instances in the case of WOODALL VS PEARL ASSURANCE CO. LTD. (1919) 1 KB 593 at 604 as follows:\r\n"I am not able to agree with the Learned Judge upon this point. In considering this part of the case, it is necessary to draw a clear and sharp distinction between two separate classes of cases. One class is where the insurance company is repudiating a contract, in the sense that they are disputing the existence of any binding contract at\r\nThe other is where Company is repudiating liability under the contract, but accepting the existence of the contract as a binding contract...."\r\nCuriously, as it will become manifest from the facts pleaded by the Insurer in this case, issues are raised both against the contract itself and the liability that has ensued thereunder. What is to be examined are the grounds proffered for the position taken.\r\n \r\n- •\r\n \r\nBut a brief background events of the controversy are as follows: Some time in\r\n2006 a Company called TRUSTY FOODS took up a combined All Risks\r\nInsurance Policy with Vanguard.\r\nTrusty Foods had been engaging in the business of processing tomato paste into finished products. Subsequently, by separate special resolutions by the two companies passed for that purpose, Expom took over the business of Trusty Foods as well as its assets and liabilities. The take-over process however took a bit of time. But essentially as part of the process, the policy of insurance was renewed this time in the name of Expom Ghana Ltd to span from 20/11/09 to 20/11/10, a period of 12 months. The renewal was done through the brokerage of the 2nd Defendant.\r\nAdmittedly Expom paid all premiums due in its own name. Then on 10th of May 2010, fire gutted part of the premises of the company causing extensive damage to property, mainly raw materials purported to be processed into finished products. Expom then commenced processes to claim indemnity. The denial of the claim and the subsequent events have culminated in the instant suit in which Expom seeks the following relief:\r\ni.	A declaration that defendants are liable to indemnify Plaintiff for\r\nthe loss and damage suffered by Plaintiff as a result of the fire that\r\ndamaged Plaintiffs raw materials and goods on 10/05/10\r\nii.	A declaration that under and by virtue of the insurance contract\r\nbetween Plaintiff and Pt Defendant, 1st Defendant is under an\r\nobligation to indemnify Plaintiff in respect of all costs incurred by\r\n \r\nPlaintiff in cleaning the debris left as a result of the fire incident that destroyed Plaintiffs raw materials and goods on 10/5/10.\r\niii.	An order directed at the Defendants to pay forthwith to Plaintiff the sum of four million, nine hundred and forty two thousand, three hundred and eleven Euros, fifty-three Euro cents (€4,942,311.53) being the value of raw materials and goods damaged by the fire which occurred on Plaintiffs premises on 10/5/10.\r\niv.	An order directed at 1st Defer1dant to pay all costs incurred by Plaintiff in clearing all the debris left at the Plaintiffs premises as a result of the fire that destroyed Plaintiffs raw materials and goods on 10/5/10.\r\nV. Compensation by way of interest on the aforesaid sum of €4,942,311.53 at the prevailing bank rate from 11/05/10 when the Plaintiff made its first demand for payment of the aforesaid sum up to the date of final payment which interest shall to the extent possible compensate Plaintiff for the loss of profits resulting from Plaintiffs inability to carry on production by reason of Defendants'' refusal to honour their obligations under the contract of insurance concluded between Plaintiff and 1st Defendant timeously.\r\nvi.	Interest on any and all sums e;:pended by Plaintiff in clearing the debris left as a result of the fire which caused damage to Plaintiffs raw materials and goods on 10/5/10.\r\nvii.	Costs for prosecuting the present suit on a full indemnity basis.\r\n \r\n- •\r\n \r\nLet me first of all note that the Plaintiff joined the TRI-STAR as a party in the action on the basis of its understanding that the 2nd Defendant was an agent to Vanguard. This is summed up in paragraph 5 of the Plaintiff''s statement of claim where it is pleaded thus:\r\n"S. Plaintiff avers that accordingly at all times material to this suit, 2" defendant acted as Pt defendant''s agent and for that matter persuaded Plaintiff to insure its properties witn Pt Defendant and that it is the contract of the insurance brokered by the 2nd defendant and concluded between the Plaintiff and 1st Defendant which provides the basis for the Plaintiffs present suit against Defendants".\r\nHowever the fact which all the parties admit is that, TRI-STAR was a broker in\r\nthe transaction. The position of an insurance broker is clearly specified in\r\nSection 73 of the Insurance Act 2006 (Act 724) as follows:\r\n" insurance broker'' means a person who acts as an independent contractor or consultant who for commission or other compensation and not being an agent of the Insurer, carries out any of the following activities:\r\n(a)	The Soliciting or negotiating on insurance business including the\r\nrenewal and continuance of such business, on behalf of an insurer or a\r\nprospective insured other than himself\r\n(b)	The bringing together, enter directly or through the agency of a third\r\nparty, with a view to the insurance of risks, or persons seeking insurance\r\n \r\nand carried out work preparatory to the conclusion of contract of insurance".\r\nBy law therefore, an Insurance Broker is not an agent to the Insurance Company whose engagement with another party he brokered and does not for that reason alone incur liability under that transaction.\r\nThat the 2d Defendant did not incur liability on the Plaintiffs claim was later to be admitted by the Plaintiffs Managing Director Domenico Falcone under cross-examination as follows:\r\n"Q: Mr. Falcone, you don''t have any contractual agreement with TRI-STAR to pay you any insurance claim?\r\n"A: No, my claim is against Vanguard\r\nA:	Tri-Star was not an agent of 1st Defendant Company, Vanguard Assurance\r\nQ:	My Lord, Tn -star was a Broker".\r\nThe foregoing can only lead to the conclusion that the Plaintiffs claim in so far as it relates to the 2n1 Defendant is not maintainable.\r\nThe real triable issues therefore emerge between the Plaintiff and Vanguard whom I shall hereinafter refer to also as "the Defendant".\r\nThe Defendant has pleaded a number of grounds to repudiate liability.\r\nThose shall be examined against the backdrop of the evidence and the law later in this delivery. One issue I consider fundamental however is the claim that the Plaintiff did not have an insurable interest in the property damaged. It is considered so fundamental because in my thinking it calls the validity of\r\nthe insurance contract itself to question. Indeed Counsel for the Defendants goes as far as demanding of the court to ''first of all examine whether the Plaintiff is the insured at all".\r\nInterestingly, when the Defendant pleaded in paragraph 10 of the statement of defence that the Plaintiff had no insurable interest in the raw materials, no factual narration was pleaded as the basis for that conclusive averment. 1 suppose the rules on pleadings would require of the defendants to plead the material facts that formed the basis of that !''iind of defence. Be that as it may, 1 observe that the reason for that defence has been put across in defence Counsel''s address.\r\nI shall ignore the procedural glitch associated with the question and consider the argument put forth by Counsel on its merits. Counsel has submitted as follows:\r\n"Trusty Foods Limited was acquired by Expom Ghana Limited by a resolution in 2008. Expom Ghana Limited thus, took over all the assets and liabilities of Trusty Foods including the insurance.\r\nThe process of the above acquisition took a bit of time according to the Plaintiff and whilst the process was on going, Plaintiff caused 2nd Defendant to instruct 1st Defendant of the take-over and subsequently paid premium to 1st Defendant Company in the name of Expom Ghana Limited per the endorsement schedule of Exhibit "A".\r\nOn the schedule, the insured''s name is Expom Ghana Limited which endorsement took effect on 2011 November 2009. A proper due diligence\r\n \r\n- •\r\n \r\nin the acquisition process clearly indicates that at the time of making premium payments to 1st Defendant in the name of Expom Ghana, the process had not been completed successfully and therefore the Plaintiff cannot be said to have any insurable interest in the raw materials that got damaged by fire on May 10, 2010".\r\nThe logical deficit in this argument lies it1 the suggestion that even though Expom had taken over the assets and liabilities of Trusty Foods including the policy, even though the policy had been renewed in the name of Expom, and even though Expom had assumed payments of premiums in its own name, because the take over process was still on going, Expom did not have an insurable interest in the raw materials. That certainly cannot be an acceptable deduction.\r\nPerhaps the argument also did not take into account the recital contained in the endorsement schedule of the renewed policy attached to Exhibit ''H'' which sets out the scope of the policy as endorsed by Vanguard itself.\r\nIt reads:\r\n"RENEWAL OF POLICY\r\nIn consideration of the payment of the renewal premium of US$64,652.48 (equivalent to Euro 50,000.00) the Insurance by this policy is renewed for a period of twelve months from 20th November 2009 to 20th November 2010 and the schedule of the policy is to read as follows:\r\n \r\nDESCRIPTION\r\n1. "FIRE: All Real and personal property of every kind and description of Expom Ghana Limited''s own or for which they may be held responsible including but not limited to Buildings, Plant, Machinery Stocks, Inventory and Equipment as detailed below as well as public and products liability...."\r\nSignificantly, in the same schedule the policy No. is given as P-001-5054-2006-060-6 and the insured''s name is provided as ''Expom Ghana Ltd.'' Trusty Food is not mentioned anywhere.\r\nThe renewal therefore created an independent contractual relationship between Vanguard and Expom which had nothing to do with the takeover process.\r\nThe Defendant knew that Expom had taken over the assets of Trusty Foods. It could not have underwritten the policy in a vacuum. In the light of the evidence any argument that Expom did not have insurable interest in the stocks will signify a clear misconception of what insurable interest actually implies. What an insurable interest implies in the law of insurance is a belaboured subject and does not require a long list of authorities to make plain.\r\nIn IVAMY, "GENERAL PRINCIPLES OF INSURANCE LAW, 2'' edition (1990) at page 19, the Learned Authors have written and the statement has received approval in several judicial decisions thus:\r\n \r\n"Where, as in the case of personal accident insurance and most branches of property insurance, the subject matter of insurance is a physical object exposed to certain perils, an insurable interest is constituted by the fact that the assured, from his relation to the subject matter, will suffer prejudice if the subject matter is lost or damaged by such perils".\r\nSee MACDONALD VS CANADA ACCIDENT & FIRE ASSURANCE CO. (1978) 77 DLD (3d) 746\r\nGEISMAR VS SUN ALLIANCE & LONDON INSURANCE LTD (1979) Q B 838. LUCENA VS CRAUFURD 127 ER 630 at 643 (11L)\r\nMy understanding of the law is that generally, courts do not look favourably to arguments that an insured had no insurable interest. The reason is that insurable interest is the basic reason why an insurer will issue a legal insurance cover.\r\nThe Learned authors of "General Principles of Insurance Law" referred to\r\nsupra make this point as follows:\r\n"The inclination of the courts is to find in favour of an insurable interest\r\nwherever the facts of the case and the law applicable permit".\r\nAnd the words of LORD BRETT MR in the cr se of STOCK VS INGLIS (1884) 12\r\nQ8D 564 at page 571 strongly make this point as follows:\r\n"It is the duty of a court always to lean in favour of an insurable interest, if\r\npossible for it seems to me that after underwriters have received the\r\npremium, the objection that there was no insurable interest is often as\r\n \r\nnearly as possible, a technical objection, and one which has no real merit, certainly not as between the assured and the insurer".\r\nOn this note, I dismiss the defendant''s claim that Expom did not have an insurable interest and hold the parties bound by the terms of the policy.\r\nThe real question to examine is essentially whether within the limits of the policy the Plaintiff has made a case to warrant the claim made and/or whether sufficient grounds have been demonstrated for the defence to except the claim.\r\nAnd the nerve centre of making such a determination is the question as to who bears which burden of proving what, and by what standard of proof.\r\nThe law is that where an insurance Company has alleged a breach on the part of the insured to repudiate liability the Company bears the burden of proving the breach. What the insured need to do foremost is to show that the policy covers the peril that has occurred. If the insured shows by a prima fade evidence that the damage that has occurred is within the scope of the policy the burden shifts on to the insurer to provc that the damages is in exception due to the alleged breach.\r\nIn COLLINUAUX''S LAW OF INSURANCE 7TH edition at 112 paragraphs 4-45 is the following statement;\r\n"The burden of proof is upon the assured to show that the loss was proximately caused by a peril insured against To prove a prima facie case, the assured need not prove how the casualty occurred, or what\r\n \r\nparticular peril caused it, he need merely prove that the cause fell within the perils insured against.... Once the assured has produced a prima facie case the burden shifts to the insurers if they wish to show that it was in fact a cause excepted by the policy which proximately caused the loss".\r\nSimilarly, the authors of BULLEN & LEAKE & JACOBS, PRECEDENTS OF PLEADINGS, 13th edition at page 523-524 have stated:\r\n"It is always for a insurer to prove an exception and also for the insurer to prove the breach of a condition which would relieve him from liability in respect of a particular loss".\r\nThe case of BOND AIR SERVICES VS HILL (1955) 2 QB 417,; BENNETT VRS YORKSHIRE INSURANCE CO. LTD. (1962) 2 Lloyds Report 270; and FARNAM VS ROYAL INSURANCE CO. LTD. (1976) 2 Lloyds Report 437 are cited for this position.\r\nIn the Law Reports of the Commonwealth 1986 edition at page 84 is reported the Indian case of NARVINVA KAMAT & ANOR VRS MARTINS & ORS where the Supreme Court of that country pronounced persuasively on the principle as follows:\r\n"The burden to prove that there was a breach of the contract of insurance was squarely placed on the shoulders of the Insurance Company. It could not be said to have been discharged by it by a mere question in cross examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company wriggle out of the liability under the contract of insurance. The insurance company could have got\r\n \r\nthe evidence produced to substantiate its allegation. Applying the test, who would fail if no evidence is led, the obvious answer is the insurance Company".\r\nObviously, paucity of local decisions in insurance cases on this point makes citing of some of them impossible. Nonetheless it is my view that this common law position on burden of proof is in accord with our general rules of evidence which emphasize the point that depending on the particular issue which arises, from time to time in the course of a trial, the burden of proof shifts from party to party.\r\nHaving said all that, the immediate question is whether the Plaintiff has shown by prima facie evidence that the cause of the damage fell within the peril insured against.\r\nIt is not controverted anywhere in the proceedings that it was fire that caused the damage in question. I doubt if any need arose to call evidence on that The Plaintiff also tendered Exhibit "H", the renewed policy which clearly shows that fire was one of the perils insured against. The Plaintiff therefore showed the prima facie evidence required of it to shift the burden on to the defence to prove the exception alleged. I shall consider separately the various grounds set out by the defendant in repudiating liability.\r\nI do so because depending on the gravity of the allegation, the standard of proof shall vary. First, the Defendant alleges arson on the part of the Plaintiff in causing the damage.\r\n \r\n- •\r\n \r\nIt is pleaded in paragraph 11 of the statement of defence thus:\r\n"11.	Defendants in further denial of paragraph 11 of the statement of\r\nclaim say that they have reason to believe that the Plaintiff deliberately\r\ncaused the fire that destroyed the goods and raw materials":\r\nRelated closely to this claim are the averments contained in paragraphs 12, 13\r\nand 18 of the same process.\r\n"12.	Defendants will contend at the trial that at all material times the\r\nPlaintiff was aware that the raw materials and goods purportedly\r\ndestroyed by the fire had expired or were about to expire.\r\n13. Defendants will further contend at the trial that the Plaintiff took\r\ncalculated steps to prepare the grounds for this claim and that this claim\r\nis actuated by malice.\r\n18. Defendants will further contend at the trial that the events leading to\r\nthe fire show that Plaintiff made calculated attempts to cause the fire so\r\nas to make an undue claim on stock which had already lost their value".\r\nWhat all these averments read together mean is no doubt that, the defendant is alleging criminality on the part of the Plaintiff. I do agree that within the tenets of the insurance policy, these alleged acts if proven constitute ample basis for the defendants to repudiate liability.\r\n \r\nThe Policy without doubt does not cover "loss or damage occasioned by the willful act" of the Plaintiff or its agents just as it does not cover "loss or damage where any inmate or member of the insured''s household or any of his business staff is concerned as principal or accessory; or less or damage due to the willful or negligent act or with the connivance of the insured"\r\nWith the instant allegation being criminal in nature and being directly in issue, I am certain that the standard of proof pursuant to Section 13 (1 ) of the Evidence Act NRCD 323 is proof beyond reasonable doubt. Going through the written submission of defence Counsel I notice that somehow, this criminal standard in our statute is ignored and a different standard of proof adopted.\r\nI also noticed that even though in the statement of defence the alleged willful act of setting the fire was pleaded separately from fraud, Counsel in the address has subsumed the alleged arson conduct under fraud and examined it as fraud. Whilst one may argue that willfully setting fire on a property to make a false insurance claim is itself fraudulent a conduct, since the act of setting the fire is itself a criminal conduct separate from the motive, and given the manner in which the allegations have been pleaded and the fraud particularized, each allegation had to be examined separately. Be that as it may, I suppose the duty of the court is to examine the merits of the evidence adduced to prove the allegations.\r\nIn prescribing the standard of proof which I find to be out of tune with our law Learned Counsel for the Defendant submitted as follows:\r\n \r\n\r\n• •\r\n \r\n"In fraudulent claims, the burden of proof is on the insurer who alleges fraud on the part of the insured. The standard of proving this is slightly higher than the preponderance of probability in civil cases but not as high as beyond reasonable doubt in criminal cases".\r\nIt is important to mention that in referring to "fraudulent claims" Counsel was\r\nreferring to the alleged willful act of setting the fire. That being the case then\r\nthis court does not accept the standard of proof indicated.\r\nIn the oft cited case FENUKU & ANOR VRS JOHN TEYE (2001-2002) 2 GLR\r\n985 at page 003, the supreme court considers Section 13 (1) of the Evidence\r\nAct and states:\r\n"With regard to proof of forgery or for that matter any allegation of a criminal act in a civil trial, one cannot go outside that statutory provisions. In this country, the position is governed by section 13 (1) of the Evidence Decree 1975 (NRCD 323) and no amount of foreign authorities, however persuasive can dislodge this requirement of the law. It provides:\r\n13 (1) in any civil or criminal act the burden of persuasion as to the\r\ncommission by a party of a crime which is directly in issue requires proof\r\nbeyond reasonable doubt. Generally in a civil trial, the burden of persuasion is on a preponderance of probabilities. Where, however, a\r\ncriminal act is in issue in a civil trial, the burden of persuasion requires\r\nproof beyond reasonable doubt, though the sufficiency of that evidence\r\n \r\nrequired to attain that standard would depend to a large extent on the gravity of that particular offence".\r\nThe allegation here in sum is that the Plaintiff, knowing well that the stock of raw materials were either expired or near expiry, took calculated steps and willfully set the fire on them in order to claim on the policy.\r\nWhat evidence was adduced to prove this allegation beyond reasonable doubt?\r\nCounsel for the Plaintiff thinks that no evidence was adduced to prove that the fire was willfully set. He submitted thus:\r\n"Like the charge of negligence, Ft defendant also provided no evidence of arson. 1s, Defendant suggested to M:. Domenico Falcone during cross- examination that there were some email correspondences between Domenico Falcone and Mr. Walter Russo regarding the fire. This was denied by Mr. Falcone. When it was Ft defendant''s turn to adduce evidence to substantiate this point, no scillinta of evidence was adduced on this point...."\r\nMy understanding of the Plaintiff''s Counsel''s position that the defendant did not adduce evidence to prove the willful act is that there was no direct evidence as opposed to circumstantial evidence to prove the allegation. If this understanding is accurate, then, I take it that both Counsel agree that the evidence on record to prove the allegation is purely circumstantial.\r\n \r\nIndeed no scillinta of direct evidence was adduced and Learned Defence Counsel in her address does not allude to a single direct evidence. She invites the court to consider a number of factors as constituting the circumstantial evidence in proof of the allegation. She then cites a number of external authorities where the courts have considered circumstantial evidence as proof of allegations of the nature being considered.\r\nI do agree with Defence Counsel that the instant allegation could be proved by circumstantial evidence. I however have to point it out that under our law circumstantial evidence is relied upon to draw conclusions where there was no co existing circumstance which would weaken the inference. In other words circumstantial evidence had to be acted upon only when the circumstances had, of necessity to be inferred and that the facts led to no other conclusion. Put in another way, the circumstances must exclude any other rational conclusion and must lead as is usually said, to the irresistible conclusion that the crime was actually committed.\r\nSee DUAH VS THE REPUBLIC (1987/88) 1 GLR 343.\r\nAnd I sounded the above caution on the assumption that the factors listed in Defence Counsel''s address as constituting circumstantial were founded cogent and backed by the evidence on record. If they were not, then in my view they cannot constitute circumstantial evidence in the first place to afford the court draw the necessary inference. It has become necessary to make this point because a cursory glance at the list of fifteen (15) or so factors indicated by Counsel prompts questions as to how some of them were obtained.\r\n \r\nFor instance under paragraph 14 of the list, a statement has been made as\r\nfollows:\r\n"14. Plaintiff was in distress, production had declined and plans were\r\nunderway to sell the Company\r\nI do not know where this information was constituted. Nobody from the record said so, the defence did not plead this and no evidence was adduced to establish this fact. It is a complete fabrication. Judging from the way certain factors have been bandied around, I am compelled to sacrifice brevity and examine the list set out in the address. Perhaps that is the only way their credibility could be ascertained as established facts. It has become even necessary for me to analyse the list because a part from a few of them, the rest were not based on pleaded facts. They were raised whilst the trial was on going and after the Plaintiff had closed its case.\r\nIn this consideration, I shall however not follow any particular order and where it is not backed by any evidence, I shall simply say so. Also where two or more tie in and can be resolved together, I shall not hesitate to do so. The first to consider states:\r\nPlaintiff Knew or had reason to believe that the 12, 246 bins/boxes of raw  tomato paste packed in its compound had expired or were near expiration and  that it could not process all of them prior to their expiry.\r\nFirst of all there was no evidence that any of the raw material had actually\r\nexpired. The Defendant''s own witness Detective Sgt. Okuampah who said he\r\nremoved exhibit 16 (i.e. a label from one of the burnt bins) could at best show\r\n \r\nthat the paste had five S more months to run before expiration. He gave the following answers under cross examination:\r\n"Q Assuming without admitting that this is the expiry date, it reads 2611 September 2010 for a raw material. The Company was in production when you went there that is true.\r\nA:	That is true\r\nQ:	When did the fire take place\r\nA:	That was in May.\r\nQ:	So from May to September, how many months will that be\r\nA:	Five months\r\nQ:	That Company was in production at the time ofthefire\r\nA:	That is so my Lord\r\nQ: So if the product was to expire in September the raw material could have been used in production to get the finished product before the expiry date.\r\nA: The materials that they were using were in their warehouse which they had us into the warehouse but this was on isolated place in the Compound.\r\nQ:	Would they still have used this in their production before September.\r\nA:	Icannot tell\r\nAnother Defence witness whose evidence touched on the question of expiration of the raw materials was Mr. Ebenezer Kofi Essel from the Food & Drugs Board. He did not state that any raw materials were expired or were near expiry. He recounted an event where the board ordered certain raw\r\n \r\nmaterials imported by Expom to be destroyed and the reason was that when they were shipped into the Country and went through the GC NET system, it was discovered that the products were bloated spilling and maggot infested. He said when the board ordered the destruction Expom complied with the order.\r\nHe said the following under cross-examination:\r\nQ:	The products were not destroyed because they were expired but they were destroyed because of the spilling...."\r\nA:	Yes my Lord\r\nQ:	Mr. Essel read Exhibit ''19'' the last bit of it which you read to the court that if the Plaintiff did not comply with certain regulation you\r\nwere going to close the company down. To your knowledge was the company ever closed down after you sent them the order?\r\nA: My Lord, I will not be in the position to say this because the plaintiff complied with this order. When this letter was sent to them. They complied and we have a report that effect that the destruction was carried out".\r\nWitness also stated under cross-examination that as part of their monitoring duties, they monitored raw materials that Expom imported into the Country. From the testimonies of those two witnesses who indeed were the defendants own witness, none of the raw materials was expired and the ones closest to expiry had 5 months to run.\r\n \r\nThe Plaintiffs Managing Director Domenico Falcone explained how significant a period of S months in the life of the raw materials was. He said this in his evidence-in-chief.\r\n"Q: They are also saying that you caused the fire to get rid of the goods that were expired or nearing expiry\r\nA: My Lord that is also not true. The nearest expiry date was five (5) months. But again these were raw materials which can even be used a day to its expiration and get the finished product with two (2) years shelf life. In other words! could produce and even sell it in two (2) years time".\r\nAlso important to note is the evidence of the Plaintiff''s stock Manager Rosario Parlato that, in their production, they did not always deal with the raw materials in first come first used basis. Sometimes they selected the materials in a mixed up fashion.\r\nHe said the following under cross-examination:\r\n''9: Do you maintain the practice of first come first served of your raw material\r\nA: Yes, but I want to explain during the production, we have some characteristics or specs that we should get during the production. In all over the world tomato paste are not the same. For instance tomato concentrates from USA and Italy are very thick but that from china is of different quality. In Exhibit ''P''from example there is something like that there. We see that the first goods that we imported in March 2009, in percentages almost all was used. In\r\n \r\ngeneral we use first in first out so the first goods that come we put it outside. But it is also true that we have some specification that the customers are asking for so sometimes we have to take a different batch code to get that characteristics or quality".\r\nDomenico Falcone himself made a similar statement under cross- examination as follow:\r\n"Q: So it means in order to ensure that your concentrates do not expire you will by all means process the first one before you process the second one?\r\nA:	No, I have also answered this question before.\r\nWe don''t process based what arrived earlier but based on different factors. We have different suppliers and to quality can be slightly different but even between the same suppliers the batch numbers are different which means that the goods were on different days and the quality could be different. Some can have a very red colour or some can also have a very high thickness among others. And we consider these when we receive an order because some customers prefer some particular type but we also have the premium brand where we give or course higher quality product. We consider all these factors before criJosing what to process. And it may happen that we may choose something that has just arrived instead of something that had arrived 1 year before because we still have another 1 year to process it".\r\n \r\nThis evidence was not controverted. The effect of this explanation is that it was not always the case that the batch of raw materials closest to expiry had to necessarily wait till the very last day.\r\nEven if it did, it could still be used and the finished product will still have the 2 years shelf life.\r\nFrom the evidence, the defendant could not prove the crucial part of its case that the raw materials were expired or near expiration.\r\nSignificantly, the defendants'' failure to prove this claim tremendously diminishes the motive ascribed to the plaintiff to desire to burn the product. Mr. Domenico Falcone makes this point in his evidence-in-chief.\r\n"Q: They are also saying that the fire outbreak was as a result of a deliberate act?\r\nA: It is not true. My Lord, I want to explain that these were raw materials and ifyou process them, you would get more. So why should we destroy them and claim the value of the raw materials"\r\nClosely related to the above point is the claim that the:\r\n"The stock of tomato paste in drums /bins had been packed in a bushy and muddy area on Plaintiffs compound, exposed them to the vagaries of the weather when it has sufficient space in the warehouse to store them".\r\nThe first question to ask on this point is whether, the place where the raw materials were kept had been so bushy and muddy at the time the fire occurred. The question is pertinent because the defence witness who\r\n \r\ndescribes the place as such went there some time after the fire when the place\r\nhad been abandoned due to on going investigations.\r\nDetective Sgt. Okuampah who particularly attests to that scene went to the place on the 11/7/2010 about two (2) months after the fire. When it was suggested to him under cross examination that he found the place in that state because due to on going investigation, the place had been left in that state, he said he did not believe so.\r\nI did not find his answer convincing simply because he had not had the benefit of visiting the place prior to the outbreak or even immediately thereafter. The explanation that the place looked bushy and muddy because the place had been left so after the outbreak makes a lot of sense. One point which this court cannot gloss over is the fact that the premises of Expom was a custom bonded warehouse. At all material times before the fire the raw materials\r\nwere under the supervision of CEPS becc.use of the in bond arrangement where the Plaintiff had to produce before paying tax on the imports. According to the Plaintiffs stocks Manager because of this arrangement, a custom officer was always inside the factory to check on the goods before parts are taken for production. I do not believe that customs will supervise raw materials in that bushy and muddy area which is their bonded warehouse. There is also the evidence that forklift was used to pick the bins and drums of paste. It cannot be suggested reasonably that the forklift was operated through the mud and the bush.\r\n \r\nAgain, the evidence does not show that, the raw materials had previously been kept elsewhere and because of the plan to set them ablaze they were brought to that portion of the premises. According to the stocks Manager the raw tomato paste had always been kept at that place where they had the most space whilst the cans are kept inside because of rains.\r\nIn the light of the evidence that, that particular place is where the Plaintiff had been keeping its raw materials from the beginning, and given the lack of evidence that the place had been so bushy and muddy at the time of the outbreak, it cannot be said that, that is evidence of a plan to set the raw materials ablaze.\r\nStill on the stocks, it has been said that between February and August 2009, the Plaintiff imported 14,288 bins/boxes but had used only 2,042 and that the Plaintiff had kept on importing new stock and rather used it in production whilst failing to testify as to plans it had for that large stock of tomato paste (see 12 and 13 on the list).\r\nFirst of all it is not said anywhere in the evidence that the Plaintiff imported raw materials and used them out of turn and left old stock unused. That is another fabrication. I think I have pointed out from the evidence of the Plaintiff''s stock Manager how they picked the raw materials from the stock for production. It was not always on first come first used basis. Some times if they needed a particular specification for a particular quality they chose from the appropriate batch. And to suggest also that the Plaintiff kept on importing when they had stock only to set them ablaze leads to a conclusion that the\r\n \r\nPlaintiff deliberately spent money and resources to import and burn to make insurance claim. That is an absurdity. In any case it was not shown that the Plaintiff did not have the capacity to process the stock of paste before the expiry dates.\r\nCircumstantial evidence was also sought to be generated out of the how bins and drums had been arranged and what has been described as the pattern of burn. The three (3) factors listed can be considered together. They were listed as follows:\r\n"9. Bins/Drums had been arranged by Plaintiff in a horse-shoe shape and\r\nafter the fire, the vacant middle portion had debris of charcoal\r\nindicating that prior to the fire, the middle portion had been packed\r\nwith wooden pallets to accelerate the burning.\r\n10.	Failure of Plaintiff to adduced evidence to explain the purpose of the\r\nempty wooden pallet in the middle of the horse shoe arrangement.\r\n11.	Undenied evidence on record that the pattern of burn was from the\r\nmiddle outwards".\r\nReading those three (3) statements together, the impression sought to be created is that the bins and drums were deliberately arranged in the so called horse shoe pattern, with the middle part stacked with wooden pallets to start the burning.\r\nThis allusion emanates from the evidence of defence witness, Divisional Fire Officer Owusu Adjei.\r\n \r\nInterestingly, if his evidence is read as a whole, it does not support the defendant''s circumstantial evidence that the Plaintiff deliberately set the materials ablaze.\r\nHaving given the description of the arrangement, the fire expert said that from his investigation he could not trace the seat of fire.\r\nHe stated as follows in his evidence-in-chief:\r\n"Q: You made some analysis of burn, do you want to add anything\r\nA: Yes the analysis of burn you could see that the middle part was really burnt so that was where the intensity was located. You could then see that the pattern of burn was from the middle outwards.\r\nQ: Ifyou say the fire was from the middle outwards why do you then say that no specific seat offire could be identified because if that is where the fire was intensified then that could be the seat\r\nA: No it does not necessarily mean that when you have intense burning, it''s seat The seat could start from a small area and then propagate to a bigger area where there are a lot of combustible elements and so you could have an extensive burn even at a place where it is not the seat offire".\r\nThe most critical point is the conclusion the fire expert drew.\r\n"Q: Did you draw any conclusions from your investigations\r\nA: Yes after we had analysed, we came to the conclusion that looking at the risk exposures of the products, we could see that no specific cause offire could be pinpointed to, so we saw that the risk exposures were electricity and the fact that a naked light could be introduced to that\r\n \r\nplace so in that case it was the probable causes, we couldn''t get a\r\nspecific cause so we then alluded it to electrical fault or introduction\r\nof a naked light".\r\nThis is the Defendants own witness speaking.\r\nThe scenario is this;\r\nThe Defendant seeks to make the case that the Plaintiff willfully set fire to the raw materials and seeks to prove it by circumstantial evidence. And the defence calls a fire expert whose conclusion is that electrical fault was a probable cause of the fire. Can it then be said that that circumstantial evidence leads to an irresistible conclusion that the Plaintiff willfully set the fire? I think far from that. What is worse, the fire officer whose report comes after an initial fire report vouched for the validity of the initial report.\r\nThe initial report is in evidence as Exhibit "L" which specifically attributes the\r\ncause of the fire to an electrical fault.\r\nI think rather than strengthen it, the evidence of the Defendant''s fire expert\r\nweakens the defence as far as the claim of arson is concerned. Then about the\r\ndogs in the cage also, there was no evidence that the dogs on the premises had\r\npreviously been released at nights to guard the yard. The fact therefore that\r\nthey were in the cage in the night of the fire was a routine occurrence.\r\nThe 1st Defendant further alleges that prior to the fire outbreak the Plaintiff\r\nhad inquired to know whether the 1st Defendant could issue a policy to cover\r\n \r\ntomato paste that had deteriorated. The 1st Defendant pleaded this in paragraph 19 of the statement of defence as follows:\r\n"19 Defendant state that prior to the fire incident the Plaintiff sought to know from the 2nd whether the Pt Defendant could issue an insurance policy to cover raw tomato paste if the tomato paste deteriorated before it was used for production but 2;d Defendant indicated that it could not issue such a policy."\r\nThis averment was denied by the Plaintiff in the reply.\r\nSurprisingly the broker from whom the sad inquiry was allegedly made did not plead this in its statement of defence. Be that as it may with the Plaintiff denying this, a duty was cast on the Defendant to have called the broker to give corroborative evidence to prove this especially so when the alleged inquiry was not made directly from the Defendant. The least the defendant could have done to prove this allegation was to have called the alleged recipient of the inquiry (2h11 Defendant) to attest to it. This was not done and even when the representative of 2'' Defendant was in the box the Defendant failed to seek a confirmation from her. This allegation remains unproven and cannot form the basis for the court to draw the inference urged upon it. On the authority of the oft cited case of MAJOLA GRE VRS LARD! (1959) 1 GLR 190 what the Defendant''s Representative Charles Ansong Dankyi sought to do was to repeat an averment on oath which does not amount to proof.\r\n \r\nIn any case, by this court''s earlier finding on the basis of the defendant''s own\r\nwitness''s account that no tomato paste had deteriorated, that allegation\r\nspeaks of nothing.\r\nPerhaps the strongest circumstantial evidence relied on by the Defendant to prove the allegation that the Plaintiff willfully set the raw materials ablaze is the fact that prior to the fire the Plaintiff had sent home the 11 or so security men on duty and replaced them with its own workers who were a driver and a carpenter on grounds of an alleged theft of money in the Plaintiffs offices.\r\nAccording to the Defendant this was part of the scheme to pave the way for the Plaintiff to embark on the alleged ungodly venture that night. It is not in doubt that the Plaintiff sent away the 11 security men and replaced them with Zakaria Awudi and Seth Awuley a driver and carpenter respectively on the day of the fire. Admittedly, this act should arouse a very strong suspicion. But the Plaintiffs explanation as given by Domenico Falcone was that, there had been cases of theft previously. In one instance a report had been made to the police but nothing came out of it. On this occasion one Senior Officer Mr. Gyenaro found in his office that a drawer had been broken into and money taken away.\r\nFalcone said he himself was not around at the time but Gyenaro called their boss in Italy one Mr. Russo who instructed that the security men be sent away to send a strong lesson to them and resolve the issue with their principals later.\r\n \r\nI shall in a short while comment on this explanation in particular whether the action taken was appropriate. But I think it is important first of all to determine whether the alleged theft actually took place.\r\nDetective Lance Corporal George Anyima Mensah who conducted an investigation into the cause of the fire stated that when he got to the premises he was told about the theft that had occurred and he confirmed it. His evidence was as follows:\r\n"1 asked the director of the company why such a big company like Expom had just skeleton (sic) security men at post. And my lord, he informed me that they had competent security men from K9 and Ex force Security company but a day before the incident they detected that somebody had broken into one of their drawers in one of the offices and stole (sic) an unspecified amount of money. Due to that they asked their bosses to withdraw them for the meantime whilst they make an alternative arrangement, if possible to change those who were on duty that day."\r\nWitness continued as follows:\r\n"My lord I asked him to lead me to the offices where this alleged theft took place. I was led to one first office just after you enter their administration block My lord, they showed me the drawer in which the money was before the theft took place. On inspection, although I didn''t find much on the door, it was clear that the drawer had been forced open with some implement"\r\n \r\nBoth, Seth Awuley and Zakaria Awudi corroborated the evidence of the break\r\nin saying they went to see it for themselves.\r\nAwule went further to say that he was made to fix the broken drawer later.\r\nHe said so under cross-examination thus\r\n"Q: This drawer that you were talking about were you called to fix it.\r\nA:	I fixed it later."\r\nContrary evidence was adduced by the defence through Detective Sgt.\r\nOkouampah who said that when he went to do his investigation he did not see\r\nany sign of a break in on the drawer.\r\nHe testified as follows:\r\n"So with him and the HR''S assistance, we all moved to the office of the Managing Director one Domenico Falcone and! explained why I am there. From there I moved to the office of the Technician who alleged his office was broken into and monies stolen from his drawer, but nothing of that sort was detected."\r\nNoticeably Exhibit Y is the report produced by Sgt. Okouampa on his\r\ninvestigation.\r\nUnder cross-examination of Sgt. Okuampah I think his own answers show how\r\nhis account about the drawer is not reliable. The following ensued:\r\n"Q: Mr. Okuampah the Detective who did the earlier investigation, the\r\none who had first hand knowledge of the incident was in this court and\r\ntestified that the day he went to the scene that is Monday after the fire he\r\n \r\nsaw visible signs of a break in, in the drawer the alleged theft took place in but in your report two months after the incident you said you saw no signs of a break in.\r\nA:	That is so my lord.\r\nQ:	But the company was working after the fire outbreak and in between the time that you went there is that not so.\r\nA:	Yes.\r\nQ:	So they could have fixed the broken drawer in the two months before you went there.\r\nA:	This could be so.\r\nQ: So the fact that there was no visible sign when you went there was because they may have fixed it and that it could have happened the day they reported that there was a theft at the place.\r\nA:	It''s possible."\r\nThese answers clearly put the mind of the court beyond doubt that the account of Corporal Anyimah I''vlensah is preferable to the unreliable evidence of Sgt. Okuampah.\r\nWith all the evidence considered I make a finding of fact that t he theft actually took place.\r\nNotwithstanding the theft, I am of the view that sending away the entire security detail and replacing them with Awuley and Awudi was inappropriate a decision to take in the circumstances of the case. Especially so when both\r\n \r\nAwuley and Awudi were not on premises at the time and had to be called from home. The security men in the view of the court could have been made to stay on whilst their principals were sent for, for the matter to be resolved. The decision to send all of them away though I find inappropriate, is however not in itself sufficient to lead me to the conclusion that the Plaintiff did so in order to set the place. The fact that the action arouses suspicion does not mean that it was not taken for a genuine reason, more so when undoubtedly the decision was taken upon orders from a superior officer, Walter Russo in Italy. The standard is proof beyond reasonable doubt and a mere suspicion is not enough. Finally, the impression sought to be created that, the Plaintiff all of a sudden went to pay all arrears of premium in April is misleading.\r\nThe evidence of Domenico Falcone considered as a whole shows that though the Plaintiff did not pay in November when it was supposed to pay, it paid in several stages and the final payment made in April. This should not be understood to mean that the Plaintiff rushed to pay the outstanding premium in April because it planned to burn the place in May.\r\nI have painstakingly examined the totality of the allegation put forth as constituting circumstantial evidence of proof of the alleged deliberate act of burning down the raw materials. As i~ has been shown, some of the allegations were unfounded, some, not established as facts, others fabricated, and on the conclusions that I have drawn on them, they, when put together cannot constitute any reliable circumstantial evidence out of which the court can infer that the Plaintiff willfully set the materials ablaze.\r\n \r\nI accordingly dismiss the Defendant''s claim that the Plaintiff deliberately set fire to the raw materials to make a claim.\r\nHaving said all that, let me put on record that it was never the duty of the Plaintiff to prove that the fire was due to an electric fault.\r\nEarlier in this delivery I referred to BULLEN & LEAKE & JACOBS PRECEDENTS OF PLEADINGS on the question of burden of proof. But at page 533 of their 1311) edition,\r\nthe authors make specific point on fire insurance which I find very instructive. They state:\r\n"Damage by ''fire" occurs if there is damage by ignition of the property insured. A fire is always caused by combustion but combustion does not always cause fire. if property is damaged by fire then the cause ofthefire is immaterial, unless the fire was started deliberately by the insured himself. The Plaintiff need not prove the cause of the fire. It is for a defendant insurer to assert and prove that the fire was caused by the deliberate act of the insured or that he was privy to the arson."\r\nThe authors cite the cases of SLA4TTERY V MA4NCE (1962) 1BQ 676 and THE A4LEXJON HOPE (1988)1 Lloyds Rep 311 for his view.\r\nOn account of this principle, which I approve of, and with the defendant''s failure to prove that the Plaintiff deliberately set the fire the question about the cause of fire is immaterial and the Plaintiff bears no burden of proving the electrical fault.\r\n \r\nEven if the question still fell for determination as to whether the Plaintiff adduced evidence to prove the electrical fault, I answer it in the affirmative. The Plaintiff tendered two reports from the Ghana Police Service and the Ghana National Fire Service which were received in evidence as Exhibits "K" and "U'' respectively. Both reports indicated that the cause of the fire was electrical. Also tendered by the Plaintiff was Exhibit "V" which confirms the cause of the fire to be electrical.\r\nEven Exhibit "Y" which I have already referred to as having been prepared by\r\nthe fire expert called to give evidence by the defence gave electrical fault as a\r\nprobable cause of the fire.\r\nIn the Defendant''s attempt to diffuse the overwhelming evidence that the cause of the fire was electrical, one Engineer Joseph William Anguah was called to testify that the cause of the fire could not have been due to electrical fault. Admittedly, Ing Anguah has an impressive C.V. but regrettably his expert opinion does not pass the credibility test. He had visited the scene about 2 years after the fire. At the time he did, he knew this matter was in court and that the Defendant''s entrenched position was that the place was deliberately set ablaze by the Plaintiff. He had been solicited by the Defendant and most probably had been paid by them to go to the scene and soon thereafter appear in court to give evidence. I received his evidence with a lot of suspicion as he was most likely to do the bidding of his client the defendant.\r\n \r\nLearned Counsel for the Plaintiff drew the court''s attention to the provisions in Section 80(1) of the Evidence Act 1975 NRCD 323. The provision there provide the guide to the court in determining the credibility of the witness.\r\nUnder Section 80(2) the matters relevant to the determination of the credibility of a witness include:\r\n"(c) the existence or nonexistence of bias, interest or other motive."\r\nI strongly believe that Ing. Anguah went to the scene with his biases actuated by the defendant''s position and interest in the matter and that he came to this court well motivated to execute the defendant''s schedule. I did not believe him.\r\nIn any case the entrenched opinion of Ing. Anguah that electrical fault was out of the question conflicts with the opinion of the Defendant''s own fire expert who had gone to the scene much earlier in time and who mentioned electrical fault as a probable cause of the fire. This shows the apparent inconsistency in the defence on this issue. I fail to throw away the overwhelming evidence on record that the fire was caused by electrical fault in preference to the opinion of Ing. Anguah.\r\nI find sufficient evidence on record to attribute the cause of fire to electrical fault and so is the finding of the court. This position leads me to hold that there was no malice on the part of the Plaintiff as far as the burning of the raw materials is concerned.\r\nI now proceed to consider the other defences pleaded by the Defendant in the statement of defence. But before I do so, there is one matter which arose in the course of the evidence about a suit between Trusty Foods Ltd. and a\r\n \r\ncompany called THONKET which is pending in the High Court Kumasi. Technically, Expom is not a party to that suit but I suppose because of the corporate relationship between Expom and Trusty Foods, the defence roped those proceedings into this one to make up a case. In those proceedings an order was made in that court for some finished products supplied to Thonket by Trusty Foods to be destroyed because they were unwholesome. The case sought to be made out of this was that those products were made from expired or about to expire raw materials and that informs the plan by Expom to burn its raw materials expired or about to expire in order to make the instant claim.\r\nI find the conclusion drawn by the defence bizarre. There is nothing to show that the finished product destroyed in that suit were produced from the Plaintiff''s raw materials. The subject matter of that suit was finished products which Thonket was unable to sell and which expired on its shell It had absolutely no connection with Expom and its raw materials which got burnt. I dare say that this whole Thonket''s story represents one of the desperate attempts by the Defendant to wriggle out of liability by every conceivable excuse.\r\nIt is not relevant to the real issues in this case.\r\nNow, Defendant has pleaded misrepresentation on the part of the Plaintiff\r\nAgain contrary to the rules on pleadings no particulars were provided. Be that as it may it was further alleged in another averment that the Plaintiff fraudulently misrepresented to the Defendant that it was the same legal entity as Trusty Foods. Did the Defendant adduce evidence to prove this? I do not find any evidence of any misrepresentation much less it being fraudulent. On\r\n \r\nthe contrary the Defendant''s representative Charles Ansong Dankyi in his evidence admitted that he knew Expom Ghana Ltd. and that Expom had a policy of insurance with Vanguard. If Vanguard had been in any confusion whatsoever between Expom and Trusty foods, witness who said he was head of broker relations department with oversight responsibility of business matters would have said so.\r\nThe broker through whom the defendant dealt with the Plaintiff did not allude to any such misrepresentation and the question was not put across to them anywhere in their evidence. The averments therefore remained a bare assertion.\r\nThe Defendant also pleaded fraud particulais of which were given as follows:\r\n''(a) Fraudulently misrepresenting to the defendants its relationship with Trusty Foods Ltd.\r\n(b)	Deliberately omitting to submit vital document in respect of its operation immediately prior to the fire with the view of deceiving the 1st Defendant into paying the claim.\r\n(c)	Deliberately causing the fire with the view to making afalse claim."\r\nI do not find it useful to comment on the particulars given under paragraphs (a) and (b) as I have had the opportunity of dealing with those issues earlier in the course of this delivery.\r\nFor the particulars given in paragraph (b) I wonder how they amount to fraud.\r\nAs Counsel for the Plaintiff posed the question: "How does failure to submit documents to another amount to fraud? As the principle is well known fraud\r\n \r\ninvolves a representation of an existing fact made dishonestly without belief in its truth or without caring whether it be true or not and intended to be relied upon by the other party and which the other party actually relies upon to suffer a damage.\r\nThere is authority to say that any allegation of fraud should possess of these ingredients.\r\nI have had a number of occasions to cite the caution of the Supreme Court contained in the case of OKWEI MENSA4H V LA4RYEA (2011) 1 SCGLR 31 D which in the words of ANIN YEBOAH JSC was expressed thus:\r\n"In the particulars of fraud stated in the instant case, it was not averred that there was misrepresentation offacts which the defendants had made dishonestly by word or conduct with knowledge that same was false and intended for the Plaintiff to rely on it to his detriment. Indeed, a careful perusal of the particulars above does not in the least conform with any standard known to rules of procedure relating to pleading fraud in a statement of claim. It must be pointed out thatfraud qua fraud is such a serious allegation in legal proceedings that it should not be pleaded when Counsel could not, from available instructions form a strong opinion in favour of it."\r\nThis is the context in which I view the particulars contained in the paragraph in question. It does not constitute fraud I do not find any evidence in support of it and I dismiss the allegation it purports to contain.\r\nWith all the facts considered and the evidence examined, I come to the conclusion that the Defendant could not establish any breach on the part of\r\n \r\nthe Plaintiff which could warrant a repudiation of liability in the policy neither\r\nis the contract itself vitiated in any way.\r\nI hold that the Defendant is bound to indemnify the Plaintiff for the loss\r\nsuffered as the result of the fire in fulfillment of the terms of the policy.\r\nIn Halsbury Laws of England 4th edition volume 25 the Learned authors have\r\nwritten in paragraph 653 as follows:\r\n"Measure of Indemnity"\r\n"The assured is not fully indemnified unless, so far as money can do it he is\r\nrestored to the position existing at the time of the fire. The amount\r\nrecoverable must therefore be measured by the amount of his loss, that is\r\nto say by the value which the fire has taken from his property."\r\nIn paragraph 652, the authors have further written.\r\n"No Recovery beyond the sum assured"\r\n"Afire policy always specifies the sum insured which merely represents the\r\nmaximum sum for which the insurer accepts liability. Unless the policy is\r\na valued policy, the assured does not in the event of a loss become entitled\r\nto be paid it as a matter of course. What he is entitled to is a full\r\nindemnity within the limits of the policy. He cannot recover more than the\r\nsum assured even though the amount of the loss exceeds it and he cannot\r\nrecover even the sum insured unless he proves a loss to that amount."\r\nThe implication of this is that the Plaintiff has to prove the quantum of loss\r\nsuffered to determine the amount of indemnity.\r\n \r\nIt is not in doubt that the sum assured was 5 million Euros. The Plaintiff claims that the loss suffered amounts to 4,942,311.53 Euros. The Plaintiff is not entitled to recover the 5 million Euros. What the Plaintiff is entitled to recover is the 4,942,311.53 and even that, it had to prove it.\r\nThe Plaintiff''s case is that the said amount represents the value of 12,246 drums and bins of tomato paste that were destroyed in the fire. Domenico Falcone in his evidence tendered Exhibit ''NI'', ''P'', ''Q'' and ''R'' as the main documents of proof.\r\nExhibit ''NI'' indicates the Plaintiffs tomato paste import details from 2008 to 2010 Exhibit ''P'' indicates the import documents including commercial invoices, import declaration forms and bills of lading.\r\nExhibit ''Q'' according to the Plaintiff represents the value of the tomato paste that was damaged in the fire whilst Exhibit ''R'' represents the value of other stocks.\r\nIn his own words, Falcone said of Exhibit ''NI''.\r\n"Q: Please take a look at this and tell the court what it is A:	This is tomato paste import details"\r\nHe said of Exhibit ''P''\r\n"A: These are the documents I was talking about. The invoices of the supply, tomato paste import derlaration form and a copy of bill of lading of the whole goods destroyed".\r\n \r\nHe also said of Exhibit ''Q''\r\n"A: This is the computation of the tomato paste that was damage (SIC).\r\nAnd this is also the list of stock holdings as at 10th May in our\r\nwarehouse.\r\nAll these (SIC) information were given the police and copied to the\r\ninsurer"\r\nUnder cross-examination, Falcone admitted his limited knowledge on the details of the stocks and offered to produce his stock Manager who compiled the documents. Mr. Rosario Palato in his evidence attested to the Exhibits as those compiled by him and gave some details of their contents. Material to the quantity of the bins and drums destroyed in the fire, the following ensued whilst Rosario Palato was under cross-examination.\r\n"Q: Turn to page 3 of Exhibit ''Q'' and give us the total of the quantity\r\nimported from February 2009 to August 2009?\r\nA:	14,288 that is if I haven''t made Gay mistake\r\nQ:	Please go to the second page of Exhibit ''Q'' the very first column says\r\n"in stock"— could you add up for me?\r\nA:	12,246"\r\nFurther in the course of cross-examination, Learned Defence Counsel asked\r\nthe following question.\r\n"Q: Out of Exhibit ''Q'' of the total that you imported that we\r\nacknowledge that you imported the total value amount to 14,288\r\n \r\n\r\n\r\n \r\nand from your Exhibit ''Q'' again the total that you had in stock that were damaged were 12,246\r\nA:	Yes".\r\nIt does appear that Counsel conceded finally that the total stock damaged was 12,246, hence she put the following question across.\r\n"Q: in putting it to you that, that you had used 2,042 out of a total import of 14,288 and 12,246 were damaged".\r\nI think the Plaintiff adduced sufficient documentary and oral evidence to prove that a total of 12,246 bins drums were damaged by the fire.\r\nThere is no evidence to show that any of those bins and drums of tomato paste could be salvaged. The evidence shows that after the fire, the plaintiff extended a request to the Standard Board to test whether any of those was whole some. The analytical report from Standard Board is in evidence as Exhibit ''U''.\r\nThe board reports as follows:\r\nREMARKS:\r\n"The samples were picked at random from eleven barrels out of about twelve thousand two hundred and forty six drums and bins. All samples had unpleasant smell and were dark in colour which is uncharacteristic of tomato paste. The batch numbers could not be identified as a result of the fire outbreak Most of the samples at the factory premises were\r\n \r\n•\r\np •\r\n \r\ncompletely burnt to ashes, others were partially burnt and the rest of them were exposed to excessive heat from fire. The wholesomeness of the tomato paste concentrate analysed cannot be guaranteed and therefore should be destroyed".\r\nIn her written address, Learned Counsel fo:. the Defendant construed Exhibit ''R'' to say that goods to the value of 9,018,956.11 were salvaged and therefore that amount has to be deducted from the sum being claimed assuming the Plaintiff is entitled to any claim.\r\nOnce again that point was misconceived and I suppose the import of Exhibit ''R'' was misunderstood. The evidence adduced is that as far as the 12,246 drums and bins were concerned nothing was salvaged and that is clearly buttressed by Exhibit ''U''. Exhibit ''R'' only shows other stocks that the Plaintiff had at the time which had no contact with the fire.\r\nI think on the whole, the Plaintiff adduced sufficient documentary and oral\r\nevidence to prove the claim. The defence did not adduce any contrary\r\nevidence disputing the qua', '../links/cases/Document (206).pdf', 'Yes', '', '2013', 'high', '<i><b><font face="Times New Roman" size="3">Law of Contract - Insurance - Failure of insurer to settle claim made by insured - Whether the insured deliberately caused the peril - Burden of proof - Onus on insurer to adduce credible evidence that insured committed arson - Standard of proof required in civil cases tainted with criminality is proof beyond reasonable doubt - Evidence Act s. 13(1) <br>Indemnity - Measure of indemnity - Whether plaintiff has to be restored to the position existing at the time of the fire - Onus on plaintiff to adduce evidence to prove quantum of loss suffered.</font></b></i><br>', 'JUSTICE RICHARD ADJEI-FRIMPONG', 'Civil', '', 'INS/4/2010', '', '', 'high', '2013-01-08', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(556, 'MADAM AFUA NKUAH  ...  APPELLANT\r\nVRS\r\nYAA KONADU\r\nTONY AGYEMANG BOATENG  ...  RESPONDENTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA- GHANA\r\nCORAM: WOOD (MRS), CJ (PRESIDING) BROBBEY, JSC\r\nANSAH, JSC\r\nANIN YEBOAH, JSC\r\nBAFFOE-BONNIE, JSC\r\nCIVIL APPEAL\r\nN Oj 4/9/2008\r\n11" FEBRUARY, 2009\r\nMADAM AFUA NKUAH	APPELLANT VERSUS\r\nYAA KONADU\r\nTONY AGYEMANG BOATENG	...	RESPONDENTS\r\nPractice and Procedure —Action in Representative Capacity —Procedural Requirements Order 2 Rule 4 of Cl 47— Whether appellant sued in Representative Capacity - Statute - Application - Whether Act 63 and Act 122 were erroneously applied in particular case.\r\nJUDGMENT\r\nANIN YEBOAII, l.S.C:\r\nThis is an appeal against the judgment of the court of Appeal dated the 13/03/2006.The court of Appeal allowed an appeal against the judgment of the Iligh Court, Kumasi which was delivered on 15/07/2002.The Plaintiff/Respondent/Appellant who for the sake of brevity shall be referred to as the Appellant herein on 25/10/1996 issued a writ of summons against the Defendant/Appellant/Respondent (who shall be referred to in this judgment as the Respondent).The action was for a declaration to the effect that a single room in a house at old Amakom known as H/no Plot 2 Block X1I1,0Id Amakom is neither the property of the Respondent nor any member of her family. The appellant also sought as ancillary reliefs, ejectment and recovery of possession and injunction. The case for the appellant was that one lKwabena Bin was the original owner of H/no Plot 2 Block X1 11, Old Amakom, in Kumasi and in 1954 he assigned his interest in the house to one Yaw Mensah a grand uncle of the Appellant. At the time of the\r\n \r\nassignment, one Madam Tiwaa who was the sister of the alleged assignor was occupying two rooms being chamber and hall in the first floor of the house. The said Madam Tiwaa was the mother of the Respondent. Due to the fact that Kwabena Bio hid assigned his interest in the house, her sister Madam Tiwaa had to vacate the house. The assignee on humanitarian grounds offered Madam Tiwaa one room on condition that she could live in the room in only her lifetime. Madam Tiwaa accepted the proposal and lived in one room with her daughter, the respondent herein, till she died in 1995. It was soon after the death of Madam Tiwaa that the appellant demanded rent from the respondent if she wanted to continue to live in the room. The respondent disputed the appellant''s title which led to the action at the High court, Kumasi.\r\nThe respondent traversed most of the allegations of facts upon which the appellant''s claim was based. She pleaded that Kwabena Bio put up the house but received a loan fi om one Yaw Mensah the predecessor-in-title of the appellant and used the house as security which made the transaction a pledge. According to her, it was as a result of the inability of the family of Kwabena Bio to pay off the debt to redeem the pledge whereby Yaw Mensah agreed with her family to exact rents from the house and pay off the debt. Respondent stated categorically that her mother on her own volition moved from the hall and chamber to occupy a single room in the house which is the subject matter of this action. In effect it was her case that kwabena Bio owned the house and that Yaw Mensah was a mere pledgee who never owned the house.\r\nOn the 17/6/1998, one Tony Agyemang -Boateng who claimed to be the head of family of the respondent applied to join the suit as co-defendant. His application was granted. In his statement of defence filed pursuant to the joinder, he virtually repeated the ailegations of facts pleaded in the statement of defence of the defendant. He, however, lodged a counterclaim and put the capacity of the appellant in issue. He denied stoutly any assignment executed by his relative Kwabena Bio and pleaded fraud to deny the assignment any effect in law.\r\nThe learned trial judge was called upon to resolve several issues which emerged from the pleadings. He found as a fact that the property, that is, H/N.9 Plot 2 Block XIII Old Ainakom was indeed put up by Kwabena Bio. He, however, found in favour of the appellant herein that Kwabena Bio in his lifetime assigned his interest in the house to Yaw Mensah. As a trial judge, he proceeded to evaluate the evidence of the respondents touching on the allegations of fraud. According to the learned trial judge, the Deed of Assignment which was tendered as Exhibit ''B'' did not suffer from any fraud. It was therefore concluded by the judge that Exhibit ''B'' upon examination assigned all the interest of Kwabena Bio effectively to Yaw Mensah.\r\nPage 2 of 6\r\n \r\nSeveral exhibits in the form of rent cards and statutory demand notices for payment of property rates were admitted in evidence and they bore the name of Yaw Mensah as the owner of the house in which the single room, the subject matter of this appeal is part of. Based on the evidence the learned trial judge entered judgment for the appellant to recover the single room in the house and further granted all the reliefs sought on the writ of summons and dismissed the counterclaim.\r\nThe respondents being dissatisfied with the judgment of the High Court lodged an appeal to the Court of Appeal. On the 13/03/2006 the Court of Appeal, in an unanimous decision, reversed the judgment not on the merits but on the issue of lack of capacity. As the Court of Appeal held that the appellant had no capacity to bring the action, it did not deem it proper to go into the other issues or grounds of appeal. The Court of Appeal based its decision on the case of CONNEY V BENTUM WILLIAMS [1984-86] GLR 310 CA and held that as the appellant was deriving her title from an e'';tate in which she was a beneficiary she required a vesting assent to enable her to initiate legal proceedings involving the estate''s property.\r\nThe appellant has lodged this appeal to this court obviously seeking the reversal of the judgment of the Court of Appeal on several grounds apparent in the notice of appeal.\r\nThe judgment of the court of Appeal has been seriously attacked under ground (a) of the grounds of appeal which stated as follows:\r\nfiie Court of Appeal erred in holding:\r\n(a) that the plaintiff did not have the requisite capacity to sue at the court below in view of the fact that the court did not have any factual evidence to support its holding, particularly as the issue of capacity raised at the court below and the Court of Appeal related to the plaintiff''s lack of vesting assent and not as to her lack of capacity as the head of family.\r\nIn civil actions, usually commenced by writ of summons, if a party to the suit initiated an action in a representative capacity, such capacity ought to be fully endorsed on the writ and appear in subsequent processes filed. The action which has culminated in this appeal was commenced on 25/10/96 when the High Court Civil Procedure Rules [N 140 A of 1954 was in force. Order 3 Rule 4 of the operative rule states as follows:\r\n \r\nPage 3 of 6\r\n \r\n4. If the plaintiff sues or the defendant or any of the defendants is sued in a representative capacity, the endorsement shall show in the manner appearing by such of the forms in appendix A, part II, as shall be applicable to the case or by any other statement to the like effect in which capacity the plaintiff or defendant sues or is sued"\r\nSee GHANA MUSLIMS REPRESENTATIVE COUNCIL & ORS V SALIFU  [1975] 2 GLR 246 CA.\r\nIn this appeal before us it is obvious from the proceedings, specifically the writ of summons that the appellant as plaintiff did not sue in any representative capacity whatsoever. Her case was simple. Both in her evidence and statement of claim it was her case that the house formed part of the estate of one Yaw Mensah, and that after his death one Kwame Adum Atta obtained letters of administration and administered the estate. It was her case that as Yaw Mensah had another landed property as H/Ng K077 his estate was distributed and H/Ng Plot 2 Block XIII Old Amakom of which the room in dispute form a part was given to her by the family.\r\nShe was obviously not suing as the head of her family. Both the pleadings and the evidence did not disclose so. It was therefore not proper for the defendant and co¬defendant to plead that she had not capacity to institute the suit. In my respectful view, the learned judges of the Court of Appeal did not consider the procedural requirement of suing in a representative capacity as laid down in the applicable rules of court as it then stood at the time the writ was issued. Order 3 Rule 4 of LN 140 A of 1054 has been subsequently repeated in Order 2 Rule 4 of the new High Court (Civil Piocedure) Rules, 2004 CI 47 and nothing turns on the difference. In my opinion the Court of Appeal erred in raising the issue of capacity against the appellant in the manner it did.\r\nAnother error which touches on the issue of capacity was the application of the ratio decidendi in the case of CONNEY V BENTUM WILLIAMS [1984-86] 2 GLR 301 CA which states inter alia, that lack of vesting assent and registration of same does not vest legal title in a beneficiary under a will by virtue of Land Registry Act 1962 (ACT122).\r\nIn as much as I do not doubt the correctness of the decision in the Conney''s case, it is clear that this case is easily distinguishable from the Conney''s case. In the Conney''s case, the testator had died on 30/04/1976, at a time when both the Administration of Etates Act 1961 (Act 63) and the Land Registry Act 1962 (ACT 122) were in full force and effect. In this case before us, Yaw Mensah, on the evidence, died in 1957 and Letters of Administration was obtained in 1957 by one Adum Attah. It is therefore\r\nPage 4 of 6\r\n \r\nerroneous for learned counsel for the respondent to invoke Act 63 and Act 122 which were both wholly inapplicable given the circumstances of the case. As the evidence was not clear from the record when the property was given to the appellant, it was with due respect equally wrong for the Court of Appeal to raise this point against the appellant and based its judgment on it by applying the Conney''s case to deny the appellant her capacity to sue.\r\nApart from the erroneous application of both statutes which influenced the Conney''s case, the appellant in this case had sued for only one room in the house which had been gifted to her. The title of the whole house was not put in issue in her claim in anyway. The respondents rather counterclaimed for the house on the simple grounds that the house was pledged by Kwabena Bio to Yaw Mensah and sought declaration of title and the usual ancillary reliefs or recovery of possession, injunction and accounts.\r\nIii my respectful opinion, there was therefore no basis to deny the appellant her right to sue to recover only the one room which was the subject or her claim. I am of the view that the appeal ought to be allowed and the judgment of the High Court granting the reliefs endorsed on the writ to the plaintiff restored.\r\nANIN YEBOAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nI igree\r\nG. T. WOOD (MRS) (CHIEF JUSTICE)\r\nI agree\r\nS. A. BROBBEY\r\n(JUSTICE OF THE SUPREME COURT)\r\nI agree\r\nJ. ANSAH\r\n(JUSTICE OF THE SUPREME COURT)\r\nPage 5 of 6\r\n\r\n \r\nI dgree\r\n \r\nP. BAFF0E-BONNIE\r\n( JUSTICE OF THE SUPREME COURT)\r\n \r\nCOUNSEL:\r\nDR. L. K. AGBOSU FOR THE APPELLANT.\r\nK A. ASANTE-KROBEA FOR THE RESPONDENTS.\r\n \r\n\r\n \r\nPage 6 of 6\r\n\r\n', '../links/cases/Document (207).pdf', 'Yes', 'BROBBEY JSC, ANSAH JSC, ANIN YEBOAH JSC, BAFFOE-BONNIE, JSC', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and Procedure - Action in Representative Capacity - Procedural Requirements - Order 2 Rule 4 of CI 47 - Whether appellant sued in Representative Capacity - Statute - Application - Whether Act 63 and Act 122 were erroneously applied in particular case.</font></b></i><br>', 'WOOD (MRS), CJ', 'Civil', '', 'J4/9/2008', '', '', 'supreme', '2009-02-11', ''),
(557, 'AMBROSE DOTSE KLAH  ...  PLAINTIFF/RESPONDENT/APPELLANT\r\nVRS\r\nPHOENIX INSURANCE CO  ...  DEFENDANT/APPELLANT/RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT OF GHANA\r\nACCRA, GHANA.\r\nCORAM: DATE-BAH JSC (PRESIDING)\r\nANSAH JSC\r\nDOTSE JSC\r\nBONNIE JSC\r\nAKOTO-BAMFO (MRS) JSC\r\nCIVIL APPEAL\r\n14/19/2011\r\n30111 MAY 2012\r\nAMBROSE DOTSE KLAH	PLAINTIFF/RESPONDENT/APPELLANT\r\nPHOENIX INSURANCE CO.	DEFENDANT/APPELLANT/RESPONDENT\r\nPractice and procedure— Pleadings— Whether ones pleadings must contain his statement of claim and evidence— Evidence not needed in the statement of claim— Cl 47, Order 11(7,) (U— Plaintiff under a duty to adduce evidence to support claim made— EvidenceAct,ss.1O& 11\r\nContract— Breach of contract— Damages— Calculation of damages— Quantum subject to the duty of mitigation of damages\r\nJUDGMENT\r\nAKOTO-BAMFO (MRS) JSC:\r\nIt is important to stress that the efficient conduct of a case includes the drafting of\r\ncorrect pleadings, the marshaling and adducing of the relevant evidence during the trial and the invocation of the correct principles of law. These are well-known basics. If counsel falls short in any of these areas, it may lead to failure of the\r\naction he or she has initiated or, correspondingly,\r\n \r\n\r\nsuccess of an action he or she is defending. In such a situation, it is no use for counsel to turn around and blame the court for allowing technicalities to frustrate its primary and important function of justice. Courts do justice according to law. Accordingly, counsel cannot afford to take their eyes off the details of the law. This case is a classic example of counsel paying insufficient attention to detail resulting in the inevitable loss of the claim which is the subject of this inattention.\r\nOn the 30th of June 2009, the appellant herein, Ambrose Dotse Klah, filed a Notice of Appeal in the Registry of this court by which process he served notice that he was dissatisfied with the Judgment of the court of Appeal dated the 18th of December 2008.According to him the object of his dissatisfaction was:\r\n"The part of the judgment which set aside the award of "severance and other awards"\r\nThese were his grounds of appeal:\r\na The Court of Appeal erred in setting aside the award of severance award and other benefits having confirmed that the appeal was wrongfully dismissed\r\na The Court of Appeal failed in its duty to do justice to the applicant when it failed to\r\ninvoke its general powers to protect the applicant.\r\nc The Court of Appeal should have exercised the discretion to order the payment of\r\nSeverance awards having found that the Defendant/Appellant/Respondent severed\r\nthe employment relationship.\r\nd The	Court	of	Appeal	erred	in	requiring	the Plaintiff/Respondent/Appellant to lead\r\nexhaustive and elaborate evidence on his "severance and other\r\n \r\n\r\nawards [benefits]"\r\nwhen what he claimed to be due him was not challenged.\r\ne Additional grounds of appeal may be filed upon receipt of the\r\nrecord of proceedings.\r\nEven though there was an indication that additional grounds would be filed; no such grounds were filed.\r\nIn order to appreciate the issues raised, it is necessary to set out briefly the events culminating in to the present appeal.\r\nBACKGROUND\r\nUntil the 5th day of March 2005, the appellant was the Chief Accountant of the Phoenix Insurance Company, the respondent in the present appeal. He was employed in 1996 and assigned the post of a Chief Accountant, a position he held until he received the letter of the 5th of March informing him of the decision of management to dismiss him summarily from the employment of the company with immediate effect.\r\nIn the ensuing paragraphs of the letter of dismissal, which was marked as exhibit A in the Court of first instance, were set out various acts which\r\nmanagement claimed constituted the appellant''s "refractory and\r\nunprofessional behavior in the company."\r\nExhibit A left the appellant in no doubt that flowing directly from the dismissal was the loss of all benefits due him.\r\nNaturally unhappy at this turn of events, the appellant took out a writ of summons in the High Court claiming against the respondent and two of its executive directors jointly and severally these reliefs:\r\n1. Declaration that the dismissal of the Plaintiff is unlawful.\r\n \r\n\r\n2.	GH1,000,000,000 General Damages for DEFAMATION and personally disparaging the Plaintiff.\r\n3.	GH03,731,353,000 special Damages for DEFAMATION rendering\r\nhis employment opportunities as a Chartered Accountant negligible up to and including his Retirement age.\r\n4.	GH070I,128,000 SEVERANCE AND OTHER BENEFITS as the Plaintiffs normal Entitlements.\r\n5.	Perpetual Injunction to restrain the Defendants, their Agents and Servants from publishing the said defamatory words or any similar words against the Plaintiff.\r\n6) Legal Cost.\r\nAfter a full trial, the learned Judge found that the dismissal was wrongful and proceeded to make these pronouncements and orders:\r\n"In the case the Plaintiff is asking for the payment of normal benefits which he fixed at GH$701,128,000 being severance award and other benefits.\r\nThere is no evidence challenging this piece of evidence on record." He then continued later:\r\n"Since the amount found is what he is to earn by virtue of his employment, he needs to be compensated for the trauma that he encountered.\r\nThe Court in addition awards GH$200 million as general damages. I also award costs of GH$50 million to the plaintiff."\r\nThe respondent company registered its protest against the decision by lodging an appeal at the Court of Appeal. The court unanimously dismissed the appeal on all the grounds with the exception of the 3rd ground. It reversed the findings of the learned trial Judge on the severance award and accordingly quashed the orders made.\r\n \r\n\r\nNot surprisingly, the appellant lodged an appeal against the decision of the Court of Appeal by filing the Notice of Appeal referred to earlier in this judgment.\r\nEven though five (5) Grounds of Appeal were filed, learned Counsel for the appellant argued all the grounds together with an explanation that they were interrelated.\r\nIt is evident that the central issue raised in this appeal was the reversal of\r\nthe order for a severance award in the sum of GH¢701,128,000 in favour of the appellant by the Court of Appeal.\r\nIn his Submissions contained in the Appellant''s Statement of Case, learned\r\nCounsel argued that, the Court of Appeal abandoned its primary and important duty to do substantial Justice by allowing technicalities to hold sway over substance.\r\nIn the view of learned Counsel, since the issue of the GH¢701,128,000 was\r\nneither set down as an issue for determination in the High Court, nor were the pieces of evidence by the appellant on the issue challenged, the Court of Appeal erred when it reversed the findings of the High Court on the issue. He additionally contended that since there was no dispute, owing to the fact that the severance award was not an issue set down for determination, the appellant was relieved of his duty to call further evidence on the issue. There being no cross examination on the issue, he contended (and the trial Court thus having admitted same) the Court of Appeal erred in reversing same.\r\nIn reply, learned counsel for the respondent submitted that since the appellant failed to discharge the burden laid on him to produce evidence to establish the requisite degree of belief in the mind of the Court, as set out under section II of the Evidence Act 1975, the attack mounted by the appellant was bound to fail.\r\nIn paragraph 38 of the Statement of Claim filed on 30/7/2005, the appellant\r\nclaimed as follows; "38; Plaintiff further says that by reason of Defendant''s\r\naction he is not likely to get any job befitting his qualification and status as a chartered Accountant, and thus at his age with nine years more to reach his retiring age, the following are his expected losses, i.e.3, 731,353,000 in\r\n\r\nexpected income. WHEREOF: Plaintiffs claim is against the Defendants jointly and severally as per Writ of Summons as follows:\r\na.	Declaration that the dismissal of the Plaintiff is unlawful.\r\nb.	GH¢1,000,000,000 General Damages for DEFAMATION and\r\npersonally disparaging the Plaintiff\r\nc.	GH03,731,353,000 Damages for DEFAMATION rendering his\r\nemployment opportunities as a Charted Accountant negligible up to and including his Retirement age.\r\nd.	GH07001, 128,000 SEVERANCE AND OTHER BENEFITS as\r\nPlaintiff''s normal Entitlements.\r\ne.	Perpetual Injunction to restrain the Defendants, their Agents and Servants from publishing the said defamatory words or any similar words against the Plaintiff.\r\nf.	Legal Cost.\r\nSubsequent to this, the respondents filed a Statement of Defence consisting of 41 paragraphs. In paragraphs 39 to 41 appear the following:\r\n"39. Defendants say that in response to paragraph 38, they are not responsible in any way whatsoever for the conduct of Plaintiff''s profession, and he is put to the strictest proof to justify how GH¢3.731,353,000.00\r\ncould be his expected income as Chief Accountant.\r\n40.	Except as otherwise admitted in this Defence, Defendants deny every material allegation in Plaintiff''s Statement of Claim.\r\n41.	Defendants finally state that Plaintiff is not entitled at all to the reliefs he seeks, as being avaricious, unmeritorious and founded on falsehoods."\r\n \r\n\r\nWhat is the effect of the above?\r\nIt is common learning that pleadings are written statements of the parties setting out in summary form the material facts on which each relies in support of his claim or defence; thereby enabling each party to state and frame the issues in dispute between them.\r\nIn Hammond v Odoi 1982-83 GLR 1215 at 1235, Crabbe JSC pronounced on the functions of pleadings thus:\r\n"Pleadings are the nucleus around which the case- the whole case-\r\nrevolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case. And the reply is very much a part of the\r\npleadings."\r\nThe Plaintiff is required to formulate the factual grounds upon which he bases his claim or relief and thus define his cause of the action against the defendant. In Accra-Tema City Council v Ntim 1969 CC 62, the crucial role of pleadings was stated in these terms:\r\n"It is the purpose of such pleadings that they should help to define the\r\nissues and to indicate to the party who asks for them how much of the range of possible evidence will be relevant and how much irrelevant to those issues. But if an appellate court is to treat reliance on them a pedantry or mere formality I do not see what part they have to play in our\r\ntrial system."\r\n \r\n\r\nTraditionally, the Plaintiff is required to conclude the Statement of Claim with a relief or the remedy claimed.\r\nThe Statement of Defence, on the other hand, informs the Plaintiff precisely how much of the Statement of claim the defendant admits or denies. It is obvious that the respondent positively denied the averments in paragraphs 38 of the Statement of Claim as per paragraphs 39, 40 and 41 of the Statement of Defence.\r\nSince a party''s pleadings constitute allegations, as opposed to evidence; where an averment is positively denied as in the matter under consideration, it is incumbent upon the party asserting to substantiate those averments by leading evidence thereon; a cardinal rule of pleadings is that the material facts on which the party pleading relies for his claim, but not the evidence by which those facts are to be proved, should be contained in the Statement of Claim. Order 11 (7)(1) of 01.47 provides\r\n"Subject to this rule, and rules 10 to 12, every pleading shall contain only a\r\nStatement in summary form of the material facts on which the party pleading relies for the Claim of Defence, but not the evidence by which those facts are to be proved, and the Statement shall be as brief as the\r\nnature of the case admits". Whittaker V. Nanka Bruce 1994-95 GLR 784.\r\nWe are of the view that the appellant, having pleaded and endorsed his claim for the sum of GH0701,128,000 and same having been denied; he\r\nwas under an obligation to lead evidence in proof of those allegations.\r\nIt was not sufficient for him to have pleaded without more; he failed to prove the avements contained in the Statement of Claim. Therefore the assertions of learned Counsel that the issues raised in paragraph 38 of the Statement of Claim metamorphosed into admitted pieces of evidence have no basis in law. The appellant failed to discharge the burden placed upon him by virtue of sections 10 and 11 of the Evidence Act, 1975.\r\nIndeed what constitutes proof has been laid down in the celebrated case of Majolagbe v Larbi 1959 GLR 190 at Page 192 relying on Khoury V. Ritcher\r\n"Where a party makes an averment capable of proof in some positive way e.g. by producing documents, description of things, reference to other facts,\r\n \r\n\r\ninstances and his averment is denied, he does not prove it by merely going into the witness box and repeating that averment on oath or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what\r\nhe avers is true."\r\nAdditionally learned Counsel contended that the appellant''s evidence on the GH$701,128,000 was not challenged and therefore constituted\r\nadmitted facts which the High Court rightly considered but which findings were wrongly reversed by the Court of Appeal.\r\nWe take note of the fact that the Court of Appeal adequately dealt with this issue; and rightly concluded that no evidence was led on same. This is what Aduamah Osei J A at page 467 of the Record said on the issue;" In considering the respondent''s claim for the said sum, the trial Court stated as follows:\r\n"In this case plaintiff is asking for the payment of his normal benefits which he fixed at GH0701,128,000 being severance award and other benefits. This represents monies he earned for working for the company. There is also no evidence challenging this piece of evidence on record". On the\r\nabove findings of the learned trial Judge, Aduamah Osei JA delivered himself thus:\r\n"I have gone over the evidence several times and I find nothing on record in support of the trial\r\ncourt''s statement that the said sum represents monies the respondent "earned for working for\r\nthe company". There was no such evidence which the appellant was enjoined to challenge.\r\n \r\n\r\nAll the respondent did was to endorse on his writ of summons, as one of the reliefs claimed by\r\nhim, a claim for "GH0701,128,000 SEVERANCE AND OTHER BENEFITS, as Plaintiff''s\r\nnormal Entitlement", and to repeat the endorsement at the end of his Statement of Claim.\r\nThe repeat of the indorsement at the end of the Statement of claim is prefixed with the words, "WHEREOF; Plaintiff''s claim is against the Defendants jointly and severally as per his writ of Summons as follows;\r\n"This is obviously intended to suggest that the reliefs that follow flow from\r\nthe preceding averments. There is however nothing in the preceding averments on which the claim for the said sum can be based. And even if there were any such averments, there is no evidence on record which\r\nestablishes, supports, or even explains the claim."\r\nHaving perused the Record of Appeal, we cannot but agree with those findings.\r\nIt is therefore our considered view that since the appellant made no attempt at substantiating the allegations contained in the Statement of Claim, they remained allegations and not proof. The case of the appellants crumbles and we accordingly dismiss same.\r\nSignificantly the learned trial Judge simply stated at page 467 of the Record " In this case Plaintiff is asking for the payment of his normal benefits which he fixed at GH$701,128,000 being severance award and other benefits. This represents monies he earned for working for the\r\n \r\n\r\ncompany. There is no evidence challenging this piece of evidence on record".\r\nWhat was the nature of the award? Was it within the scope of the exercise of its jurisdiction to award general damages or special damages as and\r\nwhen appropriate? If the former; what was the award of GH0200,000.00?\r\nWas it in respect of his Salary for the period in lieu of notice and therefore represented the amount of wages he was prevented from earning as a result of the wrongful act? If the latter; was it pleaded, particularized and proved?\r\nA distinction exists between general and special damages; for whereas general damages arise by inference of law and therefore does not need to be proved by evidence, special damages, a loss which the law will not presume to be the consequence of the defendant''s act but which depends in part, on the special circumstances, must therefore be claimed on the pleading and particularized, to show the nature and extent of the damages claimed. The plaintiff must go further to prove by evidence that the loss alleged was incurred and that it was the direct result of the defendant''s conduct. Chahin and sons v. Epope Printing Press 1963 1 GLR 163-173.\r\nThis undoubtedly was a contract of employment. The respondent committed a breach thereof.\r\nWhere an employer wrongfully dismisses an employee as in the instant case, which was the finding made by the trial Judge and rightly affirmed by the Court of Appeal; the measure of damages is calculated largely on the basis of the principles applicable to actions of breach of contract as enunciated in Hadley v Baxendale 1854 9 Ex .341 and 354-355. "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such of breach of contract should be such as may fairly and reasonably be considered as either arising naturally i.e., in the usual course of things from such breach of contract itself, or such as may reasonably be supposed to\r\n \r\n\r\nhave been in the contemplation of both parties at the time they made the contract, as the probable result of a breach of it.\r\nThe principle is to place the injured party as far as money could do so in the position he would have been but for the breach. Royal Dutch Airways v Farmex 1989-9 2GLR 623.\r\nOver the years, our courts have enhanced the awards beyond the notice period under the contract.\r\nHemans V. Ghana National Trading Company 1978 1GLR 4.\r\nNkegbe V. African Motors Division of the United Africa Company of Ghana Ltd. 1978 1GLR 32.\r\nThis development does not detract from the essential nature of a contract of employment which is clearly determinable and does not therefore give the wronged party the right to be paid salary until his retirement, the exception being contracts affected by Public Law Provisions as demonstrated by the Ghana Cocoa Marketing Board V. Agbettor line of cases. ([1984-86] 1GLR 122.)\r\nWe take note of the fact that there was an award of GH$200,000,000 which\r\nwas affirmed by the Court of Appeal. Since that issue is not on appeal, we refrain from commenting on same, Suffice it to say that generally a plaintiff is entitled to such damages as would have been suffered by a party acting reasonably after the breach. Therefore in the case of an employee wrongfully dismissed, he is required to make a reasonable effort to secure a comparable job. Ashun v Accra Brewery Ltd 2009 Sc.GLR 81\r\nAt page 84, the Supreme Court speaking through Prof Date-Bah JSC\r\nstated ''the duty of mitigation of damages for wrongful dismissal devolves\r\non the employee. Accordingly, he or she has the duty to take steps to find alternative employment. In principle then, in the absence of any contrary statutory or contractual provision, the measure of damages for wrongful termination of employment under the common law of Ghana is\r\n \r\n\r\ncompensation, based on the employee''s current salary and other conditions of service, for a reasonable period within which the aggrieved party is expected to find alternative employment. Put in other words, the measure of damages is the quantum of what the aggrieved party would have earned from his employment during such reasonable period, determinable by the court, after which he or she should have found alternative employment. This quantum is, of course, subject to the duty of\r\nmitigation of damages".\r\nIn the main, we find no merit in the Appeal. We would accordingly dismiss\r\nsame\r\nV. AKOTO-13AMFO (MRS)\r\nJUSTICE OF THE SUPREME COURT\r\n \r\nDR. S. K. DATE- BAH\r\nJUSTICE OF THE SUPREME COURT\r\n \r\nI\r\nJ. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\n\r\nJ. V. M. DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\nP. BAFFOE BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL;\r\nAURELLIUS AWUKU FOR THE AIELLANT. AUUMAI-I OCANSEY FOR THE REPONI)ENT.\r\nN\r\n', '../links/cases/Document (208).pdf', 'Yes', 'ANSAH,J.S.C., DOTSE,J.S.C., BONNIE JSC,AKOTO-BAMFO (MRS) JSC', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and procedure - Pleadings - Whether one''s pleadings must contain his statement of claim and evidence - Evidence not needed in the statement of claim - C.I 47,Order 11(7) (1) - Plaintiff under a duty to adduce evidence to support claim made - Evidence Act,ss.10&amp;11<br>Contract - Breach of contract - Damages - Calculation of damages - Quantum subject to the duty of mitigation of damages</font></b></i><br>', 'DATE-BAH JSC', 'Civil', '', 'J4/19/2011', '', '', 'supreme', '2012-05-30', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(558, 'KWAKU FRIMPONG\r\nA.K.A IBOMAN  ---  APPELLANT\r\nVRS\r\nTHE REPUBLIC  ---  RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA, 2010\r\nCORAM: BROBBEYJSC (PRESIDING)\r\nADINYIRA (MRS) JSC\r\nOWUStJ (MS) JSC\r\nDOTSE JSC\r\nGBADEGBE JSC\r\nCRIMINAL APPEAL\r\nNO. 131512010\r\n18TH JANUARY, 2012\r\nKWAKU FRIMPONG	APPELLANT\r\nA.K.A IBOMAN\r\nVRS\r\nTHE REPUBLIC	RESPONDENT\r\nEvidence - Failure to call material witnesses - Evidence Act, 1975 NRCD 323 s.51 (1) and (2) Quality of evidence not quantity of witnesses important - Circumstantial Evidence - NRCD 323 s.120.\r\nCriminal law - Conspiracy to commit crime - Criminal Offences Act, 1960 Act 29 ss. 23 & 149 - Robbery - Act 29 s.149 - Whether court ought to have mitigated sentence - First offender - Constitution, 1992 art. 14 (6) - Whether sentence run concurrently or consecutively - Act 30 ss.302 & 303\r\nJUDGMENT\r\n \r\nINTRODUCTION\r\nJONES DOTSE JSC: \r\nThe appellant herein and three others were tried and convicted by the High Court, Fast Track Division, Accra on the following charge\r\nsheet:\r\nCount One\r\nConspiracy to commit crime namely robbery contrary to sections 23 and 149 of the Criminal Code 1960 Act 29 as\r\namended by Act 646, 2003.\r\nParticulars of Offence\r\nKwaku Frimpong a.k.a Iboman, Ernest Ababio a.k.a Blackie, Daniel Amewu a.k.a Coffie and Raymond Kwasi Wilson on 23rd April, 2002 at about 2.30am you did act together to rob, Albert Mawusi Biga''s BMW No. GR 2158Q and other items in his house at Lashibi within the jurisdiction of this court.\r\nCount Two\r\nStatement of Offence\r\nRobbery, contrary to section 149 of the Criminal Code 1960, Act 29 as amended by Act 646, 2003\r\nParticulars of Offence\r\nKwaku Frimpong a.k.a Iboman, Ernest Ababio a.k.a Blackie, Daniel Amewu a.k.a Collie and Raymond Kwasi Wilson on 23rd April 2003 at about 2.30 am you did rob Albert Mawusi Biga''s BMW No GR 2158Q and other items in his house at Lashibi in\r\n2\r\n \r\nthe Greater Accra Region and within the jurisdiction of this court.\r\nand sentenced to a term of imprisonment for 65 years on each count with hard labour.\r\nOn the 23rd day of October 2008 the Court of Appeal dismissed an appeal lodged by the appellant against the conviction and sentence of the High Court.\r\nFollowing that dismissal, the appellant filed this appeal to this court with the following as grounds of appeal:\r\nGROUNDS OF APPEAL\r\na.	That the Court of Appeal failed to properly evaluate the evidence which formed the basis for the conviction of the appellant by the trial court.\r\nb.	That the dismissal by the court of Appeal of Appellant''s appeal was unreasonable and occasioned the Appellant a substantial miscarriage of justice.\r\nC.	That the Court of Appeal and the trial court failed to give\r\nadequate and proper consideration by appellant''s defence.\r\nd. That the Court of Appeal ought to have mitigated the sentence imposed on appellant by the trial court.\r\nBRIEF FACTS\r\nThe undisputed facts before the trial High Court are that, on the 23rd day of April 2002 the appellant and his three accomplices armed with a gun and other offensive weapons attacked the residence of PW1 and PW2, namely Albert Mawusi Biga and Ebo Jackson at Lashibi a suburb of Accra. Under threat of death, the appellant and his group managed to procure the keys to a BMW 5 series car belonging to PW1. It was into this BMW car that some electrical gadgets including two Toshiba DVD players, a Pioneer\r\n3\r\n \r\nDVD player, a JVC amplifier, a CD player, wrist watches and mobile phones were put and thereafter the appellant drove the car off with the items and the other robbers.\r\nThe appellant later procured the services of someone at Dansomari and had the original number plate of the BMW car changed from GR 2158Q to GR 9204Q and then drove the car to his hometown Domeabra, near Konongo in the Ashanti Region.\r\nAs the robbery had been reported to the Police, investigations led to the arrest of one Daniel Amewu, the 3rd accused who mentioned the names of the appellant and the others.\r\nThe said Daniel Amewu, led the Police to arrest the appellant and a search in the house of the appellant led to the retrieval of a DVD player that was stolen from the house.\r\nIn the course of the Police investigations, the appellant admitted and confessed his involvement in the offence and led the Police to retrieve the BMW car from his hometown where he had gone to hide the vehicle.\r\nIt was based upon these facts that the appellant and the three others were prosecuted and convicted. It must be noted at this stage that even though the appellant challenged the voluntary nature of the confession statement that was procured from him, a mini trial conducted by the learned trial Judge upheld the prosecution''s case that the confession statement was voluntarily given and witnessed by an independent witness as required by and under section 120 of the Evidence Act, NRCD 323.\r\nEven though learned Counsel for the appellant argued the ground of appeal on sentence first, for purposes of clarity, it is considered imprudent to follow the same pattern. We will therefore consider grounds (a) and (c) together, then ground (b) and lastly ground (d) on sentence.\r\n \r\n4\r\n \r\nGROUNDS A AND C\r\nGround A: That the Court of Appeal failed to properly evaluate the evidence which formed the basis for the conviction of the appellant by the trial court.\r\nGround C: That the Court of Appeal and the trial court failed to give adequate and proper consideration by the appellant''s defence.\r\nIn his submissions in support of the above two grounds of appeal, learned counsel for the appellant made heavy weather of the admissibility of the confession statements Exh E and El. Learned Counsel contended that on the basis of provisions contained in section 120 of the Evidence Act, NRCD 323 and the testimony of the independent witness during the mini trial, the court should not have relied so much on the confession statement without carefully enquiring into the circumstances under which the said confession statement was procured.\r\nLearned Counsel therefore submitted that the learned trial Judge should have hastened slowly in concluding that the appellant was guilty in view of the many lapses inherent in the procuration of the confession statement.\r\nOn the basis of the above, learned Counsel pointed out that, it was equally wrong for the learned trial Judge to have relied on pieces of CIRCUMSTANTIAL EVIDENCE to draw the necessary inferences of guilt especially where there was clear evidence that the bits and pieces of circumstantial evidence do not irresistibly lead to guilt. See the case of Bosso v Republic [2009] SCGLR 420.\r\nIn this respect, learned Counsel for the appellant drew attention to the following:\r\n \r\n5\r\n \r\ni.	Failure of the Court of Appeal to detect the inconsistency in the prosecution''s case which stems from their failure to call material witnesses like a houseboy, watchman and his wife.\r\nii.	Failure of the Court of Appeal to link the presence of the appellant at the crime scene to the crime, e.g. inability of the prosecution to establish for instance that the DVD player that was retrieved from the appellant''s room was among the items stolen from the house of PWI contrary to appellants assertion that they were found in the car. See case of Dogbe v Republic [1975J1 GLR at 118.\r\niii.	That the Court of Appeal failed to consider the issues of whether the conduct of the appellant in the crime in relation to offences after the robbery had been committed were relevant to the offences with which he had been charged.\r\niv.	That the mere possession of items stolen from the crime scene does not automatically lead to proof of guilt of robbery, at worst, learned counsel contended that the appellant could have been charged with stealing or dishonestly receiving.\r\nv.	That the offence of robbery is a one off event, but not a continuous one for which acts committed after the robbery continue to be used to ground an offence of robbery.\r\nOn the basis of all the above points, learned Counsel for the appellant finally submitted in respect of the above grounds of appeal that it was wrong for the appeal court to have confirmed the conviction of the appellant on the basis of suspicion where his defence that the vehicle had been brought to him to purchase had not been considered.\r\nLearned Counsel for the Respondent, Mrs Evelyn Keelson, Principal State Attorney, in her brief but incisive submissions as contained in the Respondent''s statement of case, made light work of the\r\n \r\n6\r\n \r\nsubmissions made by learned counsel of the appellant Edward Darlington.\r\nLearned Counsel made references to the evidence of PW1 and PW2, both of whom were robbed and were therefore eye witnesses to the crime. In addition to the evidence of PW1 and PW2, learned Principal State Attorney made references to the evidence of PW3, D/Insp. Philip Anipa, the Police Investigator who investigated the crime and made very positive and crucial findings which confirmed the testimony of PWI, PW2 and the confession statement of the appellant at the trial court.\r\nFAILURE TO CALL MATERIAL WITNESS\r\nIt must be noted that, evaluating evidence in a criminal trial such as one involving a serious offence of robbery and indeed any other criminal offence is not based on the quantity of witnesses called at a trial in proof of the case of the prosecution or defence, but the quality of the evidence that the witnesses proffer at the trial.\r\nThis court in a unanimous decision in the case of Gligah & Anr v\r\nthe Republic [2010] SCGLR 870, at holden 5, where the Supreme Court, speaking with one voice through me stated thus:\r\n"The Supreme Court would affirm as good law, the principles of law regarding the need for a party to call a material witness in support of its case. However, the said principle of law did not apply in the circumstances of the instant case. In establishing the standard of proof required in a civil or criminal trial, it was not the quantity of witnesses that a party who had the burden of proof, called to testify, that was important, but the quality of the witnesses called and whether at the end of the day the witnesses called by the party had succeeded in proving the ingredients required in a particular case. In other words, the evidence led must meet the standard of proof required in a particular case. If it did, then it would be a surplusage to call\r\n7\r\n \r\nadditional witnesses to repeat virtually the same point or seek to corroborate evidence that had already been corroborated."\r\nSee also the cases of Tettey v Republic 12001-2002] SCGLR holden 2 and Dexter Johnson v Republic to be reported in [2011] SCGLR 601.\r\nIt is therefore clear that the inability or failure of the prosecution to call the houseboy, watchman or his wife has not resulted into a miscarriage of justice for which appellant should have any benefit.\r\nWhat is important to consider is whether the evidence of the three prosecution witnesses who gave evidence in the case, testified upon what is relevant and material evidence.\r\nIf their evidence is relevant and material in establishing the necessary ingredients of the offence charged, then the prosecution must be deemed to have discharged the burden of proof that lies upon them.\r\nSee sections 51 (1) and (2) of the Evidence Act, 1975 NRCD 323 which states as follows:-\r\n1.	"Relevant evidence is admissible except as otherwise provided by an enactment.\r\n2.	Evidence is not admissible except relevant evidence."\r\nIn this case, as has already been stated, PW1 and PW2 were the victims of the robbery attack and were able to give detailed testimony that linked not only the appellant, but also the other convicted persons.\r\nPWI testified under cross-examination that whilst he actually saw and identified A2, A3 and A4 there was a fourth person outside at the entrance of the outhouse whom he did not identity.\r\n \r\n8\r\n \r\nPW2 also in his evidence in chief narrated coherently the sequence\r\nof events in which by his narration he also identified 4 robbers in\r\nall, corroborating the evidence of PW1. Since the evidence of PW1\r\nand PW2 were relevant and germane to the crux of the case, there\r\nwas no need to look elsewhere.\r\nIt is important to note that in this case, it is sufficient if the\r\nprosecution succeed in proving the essential ingredients of the\r\noffences of conspiracy to commit robbery and robbery. For the\r\noffence of conspiracy, it is necessary to establish the following: \r\ni.	Agreement to commit the unlawful act of robbery - acting\r\nfor a common design. There need not be any prior\r\ndeliberation.\r\nii.	Intention on their part to commit that unlawful act - this\r\nwas manifested in their common pursuit of the robbery\r\nagenda.\r\nSee the following cases which have all espoused the provisions on\r\nsection 23 of the Criminal and other Offences Act, 1960, Act 29\r\nwhich deals with conspiracy:\r\n1. Behome v Republic [1979] GLR 112\r\nii. State v Boahene [1963] 2 GLR 554\r\niii.	State v Otchere & Others [1963] 2 GIAR 463\r\niv.	Azametsi v The Republic [1974] 1 GLR 228 CA\r\nIn this latter case, the first appellant who was the head of a fishing\r\ngroup decided to offer human sacrifice to the sea god for a bumper\r\ncatch. The victim, a member of the group was killed in the house of\r\nthe first appellant and this was witnessed by the appellant, his wife\r\nand others after which the body was disposed off. The first\r\nappellant was convicted inter alia, of conspiracy to commit murder.\r\nOn appeal against the conviction, the court held that there was\r\nI!]\r\n \r\nenough evidence of a common purpose and therefore he was guilty of the offence of conspiracy.\r\nFor the offence of Robbery, it is important to establish the following ingredients:-\r\n1.	That the appellant stole something from the victim of the robbery of which he is not the owner.\r\n2.	That in stealing the thing, the appellant used force, harm or threat of any criminal assault on the victims.\r\n3.	That the intention of doing so was to prevent or overcome the resistance.\r\n4.	That this fear of violence must either be of personal violence to the person robbed or to any member of his household or family in a restrictive sense.\r\n5.	The thing stolen must be in the presence of the person threatened.\r\nFor example it was held in the case of Behome v Republic [19791 GLR 112 that:\r\n"One is only guilty of robbery if in stealing a thing he used any force or caused any harm or used any threat of criminal assault with the intent thereby to prevent or overcome the resistance of his victims to the stealing of the thing."\r\nThus, as in the instant case, where it was the appellant who kept guard outside, whilst his accomplices used threat to procure the stolen items and the keys to the BMW car which he drove away and kept the car, he is as much guilty of the offence as those who used the threat. For it was he who facilitated the committing of the offence and their exit from the scene.\r\n \r\n10\r\n \r\nAs is well known, it is trite law that in criminal cases, the duty on\r\nthe prosecution is to prove the allegations against the appellant\r\nbeyond all reasonable doubt.\r\nThe prosecution have a duty to prove the essential ingredients of\r\nthe offence with which the appellant and the others have been\r\ncharged beyond any reasonable doubt. The burden of proof remains\r\non the prosecution throughout and it is only after a prima facie case\r\nhas been established i.e. a story sufficient enough to link the\r\nappellant and the others to the commissioning of the offences\r\ncharged that the appellant, therein accused is called upon to give\r\nhis side of the story. See cases like:\r\n1.	Amartey v The State [1964] GLR 256 at 295\r\n2.	Gligah and Anr. v The Republic referred to supra.\r\n3.	Dexter Johnson v The Republic to be reported in the\r\n[2011] SCGLR at 601.\r\nBased on the above principles, it is clear that the prosecution led\r\nrelevant evidence and satisfied the standard of proof that is\r\nrequired in a criminal case.\r\nIn the instant case, the prosecution in our opinion have led credible\r\nand cogent evidence to support all the necessary ingredients of the\r\noffence charged.\r\nFor instance, the fact of the robbery having occurred in the house of\r\nPW1 and PW2 on the night of 23rd April, 2002 is not in doubt.\r\nSecondly, the fact that the robbers were armed and put the inmates\r\nof the house in which the BMW car number GR 2158Q was stolen\r\ninto fear and threat of death is also not in doubt.\r\nThirdly, the fact that during investigations into the case, the\r\nappellant was mentioned and evidence was adduced which showed\r\nhis total and unequivocal involvement in the dastardly act i.e. he\r\n11\r\n \r\nwas the one who stood outside and kept guard whilst the others robbed and it was he who finally drove the stolen vehicle away and kept it.\r\nFourthly, the role and importance of the evidence given by Investigative officers during trial of accused persons needs to be put into proper contest and in this case the evidence of P.W.3 D/Insp. Anipa had to be understood in that contest.\r\nCIRCUMSTANTIAL EVIDENCE\r\nWhat must be noted is that, a crime is always investigated after the act had been committed. However, during the investigation, the Police are able to put together strings of activities and draw the necessary inferences and conclusions. Some of the evidence might be direct and therefore quite conclusive, but others might be indirect, and referred to as circumstantial.\r\nSome crimes are investigated based solely upon circumstantial evidence as apart from the accused there might not be any living eye witness of the crime. But courts of law will not throw their hands in despair only because there is no other eye witness account of the crime. This is the relevance and importance of circumstantial evidence which can be used to put together a very strong credible case capable of securing conviction for the prosecution.\r\nThe Supreme Court in the celebrated case of State cr Anani Fiadzo [1961]GLR 416 held on the issue of circumstantial evidence as follows: -\r\n"Presumptive or circumstantial evidence is quite usual as it is rare to prove an offence by evidence of eye-witnesses and inference from the facts may prove the guilt of the appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence, and in order to justify the inference of guilt the inculpatory facts must\r\n12\r\n \r\nbe incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt. A conviction must not be based on probabilities or mere suspicion."\r\nSee also:\r\n3.. R v Onufrejczyk [1955] 1 QB 388\r\n2.	Bosso v Republic [2009] SCGLR 420, holden I\r\n3.	Gligah 85 Anr v The Republic referred to supra\r\n4.	Dexter Johnson v The Republic referred to supra where the Supreme Court again stated as follows at 605 holden No. 2\r\n"Circumstantial evidence was quite usual as it was rare to prove an offence by evidence of eye-witnesses; and inferences from the facts proved might prove the guilt of the appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption would follow irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the appellant and incapable of explanation upon any other reasonable hypothesis other than that of guilt.\r\nIn the instant appeal, even though the trial Judge in directing the jury, had not referred to the magic word "circumstantial", the Judge had taken pains to refer in great detail to pieces of evidence from both the prosecution and defence on record which linked the appellant irresistibly to the commission of the offence. Furthermore, there had been no substantial miscarriage of justice resulting from the directions to the jury and the conviction for murder would therefore be affirmed.\r\n13\r\n \r\nSee also Dogbe v The Republic [1975] 1 GLR 118, holden I, where the High Court, per Ata-]3edu J, stated thus:\r\n"In criminal trials, the identity of the accused as the person who committed the crime might be proved either by direct testimony or by circumstantial evidence of other relevant facts from which it might be inferred by the court. Thus opportunity on the part of the accused to do the act and his knowledge of circumstances enabling it to be done were admissible to prove identity."\r\nAs at now, so far as the evidence on record is concerned, there are bits and pieces of evidence connecting the appellant to his deep involvement in the commissioning of the offences with which he was charged. In this instance, we will venture to state that, the inferences that have logically been made in this case appear so strong, cogent, credible and reasonable that assuming the confession statement is even disregarded, they constitute the best evidence against the appellant and upon which the court must convict.\r\nOther forms of evidence which can be termed circumstantial and accepted by the law courts are some of the following:\r\ni.	Forensic examinations etc.\r\nii.	DNA\r\niii.	Mobile phone conversations or SMS messages\r\niv.	Email messages where these are available and relevant V.	Crime scene investigations, and others.\r\nIn this case, the evidence of PW3, the Investigator even though got involved in the case after the robbery event, his evidence is so material that no fair minded court can disregard it.\r\n \r\n14\r\n \r\nFor instance how come that, out of the many people in Accra, it was only the appellant and his two other friends that the 3rd accused Daniel Amevvu pointed out as being part of the robbery gang.\r\nThis event is significant in many respects. This is because not only was the appellant mentioned, but he led the Police to retrieve the car that was stolen and used to carry the other stolen items away.\r\nSecondly, he also led the Police to discover how he changed the number plate of the BMW car No GR 2158Q to GR 9204Q\r\nThirdly, the many things that the appellant said in his caution statement which as it were is a confession statement could only have been made by a participis criminis.\r\nPW3 D/Insp. Anipa is definitely not a magician, in any case, no such evidence has been given to credit him with any magical or martial arts powers to read the minds of persons. Quite clearly therefore, only the appellant could have stated those things which themselves are consistent with the general tenor of the case. The only matter to critically consider is whether this confession statement was voluntarily made.\r\nADMISSIBILITY OF THE CONFESSION STATEMENTS\r\nWe have no doubt that the mini Trial was properly conducted and meets the Standard required in section 120 of the Evidence Act, NRCD 323.\r\nThe only issue we would want to deal with here is the role Independent Witnesses perform during the taking down of confession statements and the relevance of what the independent witness did in this case.\r\nIt is provided in sections 120, sub-sections (1) (a) (b) (c) and 2 (a) 86 (b) 3 (a) and (b) and 4 (a) (b) (c) as follows:\r\n \r\n15\r\n \r\n(1) (''In a criminal action, evidence of a hearsay statement made by an accused admitting a matter which:\r\n(a)	constitutes, or\r\n(b)	forms an essential part of or\r\n(c)	taken together with other information already disclosed by the accused is a basis for an inference\r\nOf,\r\nthe commission of a crime for which the accused is being tried in the action is not admissible against the accused unless the statement was made voluntarily.\r\n(2) Evidence of a hearsay statement is not admissible under subsection (1) if the statement was made by the declarant while arrested, restricted or detained by the State unless the statement was made in the presence of an independent witness, who\r\n(a) can understand the language spoken by the accused,\r\n(c) can read and understand the language in which the statement is made,\r\nand where the statement is in writing the independent witness shall certify in writing that the statement was made voluntarily in the presence of the independent witness and that the contents were fully understood by the accused.\r\n(3) Where the accused is blind or illiterate, the independent witness\r\n(a) shall carefully read over and explain to the accused the contents of the statement before it is signed or marked by the accused, and\r\n \r\n(b) shall certify in writing on the statement that the independent witness had so read over and explained its contents to the accused and that the accused appeared perfectly to understand it before it was signed or marked.\r\n(4) For the purposes of this section, a statement that was not made voluntarily includes, but is not limited to a statement made by the accused if\r\n(a)	the accused when making the statement was not capable because of a physical or mental condition of understanding what the accused said or did; or\r\n(b)	the accused was induced to make the statement by being subjected to cruel or inhuman conditions, or by the infliction of physical suffering upon the accused by a public officer or by a person who has a direct interest in the outcome of the action, or by a person acting at the request or direction of a public officer or that interested person; or\r\n(c)	the accused was induced to make the statement by a threat or promise which was likely to cause the accused to make the statement falsely, and the person making the threat or promise was a public officer, or person who has direct interest in the outcome of the action, or a person acting at the request or direction of a public officer or the interested person."\r\nThe relevance of these provisions is seen in the light of the objections taken to the admissibility of the charged cautioned statement of the appellant. In those statements exhibits E and E I, the appellant opened his mouth very loosely as if he was suffering from a mouth diarrhoea. This is in essence what is called a\r\n \r\n17\r\n \r\nconfession statement, where the statement admits of the declarant''s involvement in the commissioning of the offence.\r\nThe objection of learned Counsel for the appellant at the trial court, Mr. Hoeyi to the tendering of the statement is in the following terms:-\r\n"My Lord the statement was not that of his, it was not voluntarily given by him. The statement was given under duress and infact he was compelled to thumbprint it, he is an educated young man who can read and write and since he was not agreeing to sign they compelled him to thumbprint it. So it is inadmissible in law".\r\nHowever, in his evidence during the mini trial, the appellant stated thus:-\r\n"My Lord, I did make a statement to the Police but I don''t know the content of the statement you have in hand".\r\nIt is interesting to observe and note that, the appellant admitted that he saw PW3 write down the statement that he gave him at the CID Headquarters in Accra.\r\nAppellant however denied ever meeting the independent witness or seeing him anywhere during the taking down of the statement.\r\nAfter a careful perusal of the proceedings during the mini trial, we are satisfied that the statement was procured in accordance with the provisions of the Evidence Act, referred to supra.\r\nThis is because, according to the appellant, whatever he said he saw that PW3 put it down on paper. Thereafter he read it over to him and it was exactly what he told him. Out of abundance of caution, this is what the appellant said in answer to a question:-\r\nQ. "What he wrote down, was read back and explained to you in Twi language."\r\nIn]\r\n \r\nA. My Lord, after writing down the statement the investigator read over the statement exactly what I said."\r\nThe only difference is that the appellant denied admitting the crime\r\nand the presence of the independent witness. During cross-\r\nexamination, the appellant admitted thumbprinting the statement\r\nhe gave to PW3 and stated clearly that he made several\r\nthumbprints. This is consistent with the many thumbprints on the\r\nstatements, exhibits E and El.\r\nThe appellant also admitted that he gave the statement of his own\r\nvolition. This is what he said:-\r\n"Yes my Lord, I did give the statement on my own volition".\r\nThe above evidence clearly renders illogical the basis of the\r\nobjection by learned Counsel for the appellant that the statements\r\nwere procured from the appellant under duress and therefore not\r\nvoluntary.\r\nFrom a careful reading of section 120 of the Evidence Act, 1975,\r\nNRCD 323, the following procedure must be complied with to give\r\nvalidity to a confession statement and make it admissible in law.\r\n1. If the declarant of the statement made the statement while\r\narrested, restricted or is detained by the State then the statement is admissible only if \r\ni.	it was made in the presence of an independent witness, who\r\nii.	understands the language in which the declarant spoke i.e. accused therein, herein appellant.\r\niii.	can also read and understand the language in which the statement Is made.\r\n \r\niv.	whenever the statement is in written form, the independent witness shall certify in writing on the statement as follows:\r\n"that the statement was voluntarily made in his presence and that the contents were fully understood by the accused."\r\nv.	where the declarant is illiterate or blind, there are further provisions to protect the declarant by ensuring that the state does not take advantage of his disability by ensuring that\r\nvi.	the independent witness shall carefully read over and explain to the declarant the exact contents of the statement before it is marked or signed.\r\nvii.	the independent witness shall certify on the statement in writing that he had so read over and explained the contents of the statement to the declarant and that he appeared perfectly to understand it before making his mark or signature.\r\nThe rationale for the above elaborate provisions are clear. They are\r\nto ensure that the rights of the declarant, i.e. accused who is under\r\nrestriction are not trampled upon by the Police or the investigative\r\nagencies. These constitute the rights of all accused persons as has\r\nbeen protected in the Constitution 1992.\r\nFor example, what is meant by an independent witness? Taken\r\nliterally, this should mean someone other than the person,\r\ninstitution or body taking down the statement. The Longmans\r\nEnglish Larousse, defines independent as follows: \r\n"adj. free from the authority, control or influence of others, self governing, casually unconnected, these factors are independent\r\n20\r\n \r\nof each other, self supporting, not dependent on others for one''s living, not subordinate, not depending on another for its value."\r\nThe Chambers 201h Century Dictionary, (Geddie) Revised Edition defines the word independent also as follows: \r\n"adj. not dependent or relying on others, not subordinate, completely self governing, thinking or acting for oneself; too self respecting to accept help, not subject to bias etc."\r\nFrom the above definitions of the word independent, the definition which best suits the use of the word independent witness in the context can be said to be the meaning subscribed as follows:-\r\n"An independent witness is a person who is free from the authority, control or influence, or is not dependent or relying on anybody for direction, and or assistance."\r\nThis means therefore that, in the scheme of things, the independent witness envisaged under section 120 of the Evidence Act, referred to supra must be someone who satisfies the above definition.\r\nSuch a witness must not be subordinate to or under the authority, control or influence of the person investigating the crime and for which the independent witness is needed to authenticate the statement that has been given by the declarant.\r\nComing home to the instant case, it means that the independent witness in the case, Abukari Atta, who was procured by the Police to perform and satisfy a statutory requirement in section 120 of the Evidence Act referred to supra, undertook the performance of that duty to achieve a given result, so however that in the actual execution of that duty or requirement, he was not supposed to be under the order, control, influence or authority of the person for whom he did the work, i.e. the Police.\r\n \r\n21\r\n \r\nIn this case, the independent witness gave his name and occupation\r\nas follows:-\r\n"My name is Abukari Atta"\r\nI live at house No. D203/3 Timber Market\r\nI am a secretary to Nanumba community Chief resident in Accra here"\r\nThe independent witness stated that he visited a cousin of his, who\r\nis a Police Detective Sgt. at the CID Headquarters and it was there\r\nthat he was invited by the Investigator to witness the taking down of\r\nthe statement.\r\nWe are more than satisfied that the independent witness herein is\r\ncompetent as such and there has not been any imputation of bias\r\nagainst him to make him lose his independent stature. Learned\r\nCounsel for the appellant, did not pursue the evidence of his being\r\na friend to the Police and therefore incapable of being an\r\nindependent witness.\r\nUnder the circumstances of this case, we are more than convinced\r\nthat the independent witness having satisfied the qualities expected\r\nof an independent witness as defined supra and having also\r\nsatisfied the proficiency test as was shown and found by the trial\r\ncourt and the court of appeal, has complied with section 120 of the\r\nEvidence Act, referred to supra.\r\nWe believe the law does not allow the Police to secure the services of\r\nany person for this exercise. Care must be taken to ensure that the\r\nsaid independent witness is however known to the Police so that if\r\nas happened in this case, the need arises for a mini trial, the\r\nwitness can be contacted.\r\n22\r\n \r\nHowever, it must also be ensured that the said person is not tied to\r\nthe apron strings of the Police such as to question his neutrality\r\nand independence as was depicted in the definition or meaning of\r\nindependent.\r\nIt was quite unfortunate that learned Counsel for the appellant did\r\nnot pursue the frequent use of the independent witness by the\r\nPolice in other cases to strengthen his case against his being\r\nindependent. If Counsel had been diligent he could easily have\r\nprocured the necessary evidence to back that claim. This would\r\nhave been overwhelming in view of the vague, inconsistent and\r\nunreliable answers given by the independent witness on the subject\r\nmatter during cross-examination.\r\nIn short, an independent witness must not be someone who is so\r\nclosely connected to the Police as to make him more or less\r\ndependent on the Police. Such a scenario will defeat the purpose for\r\nwhich the law was enacted.\r\nSecondly, the independent witness must not only understand the\r\nlanguage in which the declarant spoke, but also understand the\r\nlanguage in which the statement was written down if it was written\r\nby someone other than the declarant.\r\nThirdly, the independent witness must also be able to read and\r\nunderstand the language into which the statement was written so\r\nas to enable him explain the contents to the declarant.\r\nFor example if the appellant, who spoke Twi, and the statement was\r\ntaken down in English by PW3 it meant that the independent\r\nwitness, must demonstrate sufficient proficiency in the Twi\r\nlanguage and also show ability to read English and interpret same\r\ninto Twi for the benefit of the declarant.\r\nIt also means that, if the investigative officer does not speak and\r\nunderstand the language which the declarant spoke, then the skills\r\n \r\n23\r\n \r\nof the independent witness as provided for in section 120 of NRCD\r\n323 become more relevant and crucial.\r\nUnfortunately, we have not seen anywhere in the record of appeal\r\nany cross-examination of PW3 to test his ability to understand Twi\r\nlanguage which was spoken by the appellant.\r\nThe only demonstrable test that was conducted during cross\r\nexamination at the mini-trial was that of the independent witness\r\nwho was given a clean bill of success and competence by the\r\nlearned trial judge and confirmed by the Court of Appeal.\r\nWe believe that, any attempt by a party to invalidate a confession\r\nstatement on the basis of non-compliance with section 120 (2) & (3)\r\nof the Evidence Act, 1975, NRCD 323 must begin with a\r\ndemonstration of the competence of not only the independent\r\nwitness of the language spoken by the declarant, but also by the\r\ninvestigator or person who writes down the statement. This\r\nbecomes more crucial when the statement is thumbprinted which\r\ngives the rebuttable presumption that the declarant is illiterate.\r\nThe various Investigating Agencies especially the Police must ensure\r\nthat independent witnesses they procure for witnessing such\r\nstatements satisfy these requirements.\r\nIn addition, the Investigators themselves must be proficient in the\r\nsaid language, otherwise they will be depending upon the\r\ncompetence of the independent witnesses, and if their skills or\r\nproficiency are suspect, then the whole edifice will crumble i.e. the\r\nstatements will not meet the test in the Evidence Act.\r\nFinally, it is desirable but not mandatory that the certificate on the\r\nstatement must be in the hand of the independent witness. Thus,\r\ncounsel should not only look at the form of such statements, but\r\nunravel the circumstances under which they were procured\r\nthrough cross-examination and proficiency tests conducted during\r\ntrials.\r\n24\r\n \r\nThese are the only methods by which the courts will ensure that the provisions in section 120 of the Evidence Act are complied with, save for allegations of torture, duress and other reasons which have to be proved on their own standing.\r\nUnfortunately, in this case, the appellant has not succeeded in casting any doubts on the proficiency of the independent witness in the Twi language as was found by the learned trial Judge and confirmed by the Court of Appeal. And since no test was performed on the Investigator, PW3, we are of the considered view that exhibits E and El were obtained in compliance with section 120 of the Evidence Act\r\nFrom the above analysis, it is clear that, Exhibits E and El had been voluntarily procured and the Court of Appeal was therefore right in confirming the findings of the learned trial Judge.\r\nWe similarly find and hold that the Court of Appeal was right in confirming the decision of the trial Court to convict on the pieces of circumstantial evidence.\r\nIt is therefore our conclusion that the failure of the prosecution to call other witnesses like the houseboy, watchman and his wife has not created any lapses in the prosecution''s case. The Court of Appeal was thus not in error when it affirmed same.\r\nSimilarly, even though robbery might be a one off event, series of activities before, during and after the event can be used to effectively nail an accused person in the offence of conspiracy and robbery itself. However, the fact that it was the appellant who drove the BMW car from the scene of the robbery meant that he was present at the scene. Whether he took part in the actual threat on the inmates or not is immaterial. The transaction is a one whole event, any person who engages in any part of the transaction is liable for the offence. The person who keeps watch whilst the\r\n25\r\n \r\ninmates of the house are subjected to torture and threat is as guilty as the person who threatens.\r\nIn this case, what must be noted is that, the appellant was not convicted because items stolen from the robbery scene were found in his possession. He was inextricably linked to active participation from the crime scene, i.e. driving the car from the scene and hiding it in his hometown.\r\nIt is therefore clear that, the confirmation of the conviction of the appellant by the Court of Appeal had been based on cogent and properly evaluated evidence that cannot be disturbed by this court.\r\nAfter an evaluation of the entire appeal record and the statement of case of the parties, what comes out clearly is that, the trial court, and the Court of Appeal did evaluate and consider the defence of the appellant. The fact that the defence of the appellant did not find favour with both the trial and the first appellate court did not mean that it was not considered.\r\nFor our part, we cannot but agree with the learned trial Judge that the defence of the appellant was but an attempt to extricate himself from the crime at that last stage. As a matter of fact, the defence of the appellant not only lacked substance, but was infantile and lacked merit.\r\nThe appellant was therefore properly convicted by the trial court and the confirmation of same by the Court of Appeal was in order.\r\nGround B: THAT THE DISMISSAL BY THE COURT OF APPEAL OF APPELLANT''S APPEAL WAS UNREASONABLE AND OCCASIONED THE APPELLANT A SUBSTANTIAL MISCARRIAGE OF JUSTICE\r\n \r\nme\r\n \r\nFrom the analysis that has been made supra, it is apparent that the\r\nCourt of Appeal considered the appeal that the appellant lodged\r\nbefore it and after evaluating same on sound principles of criminal\r\nlaw dismissed same. In any case it must be noted that an appeal is\r\nby way of a re-hearing and the Court of Appeal did just that.\r\nIn this regard, it must be pointed out that from the facts, the\r\nevidence of both the prosecution and defence and the law\r\napplicable, the dismissal of the appeal of the appellant did not\r\noccasion a substantial miscarriage of justice to the appellant.\r\nIn coming to this irrevocable conclusion, this court based its\r\ndecision on the fact that the appellant has not been able to proffer\r\nany convincing reason why he should be acquitted and discharged.\r\nHaving perused the entire appeal record in detail it is our\r\nconclusion that both the trial and appellate courts applied all the\r\ntests that are deemed to be applicable in criminal cases before coming to their decisions. See case of Amartey v Republic already\r\nreferred to supra.\r\nOnce the proper tests for evaluating the evidence of the witnesses\r\nand appellant has been properly done before the conviction of the\r\nappellant, this court is of the opinion that the dismissal of the\r\nappeal by the Court of Appeal was not unreasonable.\r\nIndeed, as was stated earlier, the defence the appellant proffered in\r\ncourt was a complete pathological lie which was very childish and\r\nbereft of any merits. That notwithstanding, the learned trial Judge duly considered same but came to the conclusion that "obviously,\r\neither the accused person was deliberately lying or his memory had been befuddled by the effluxion of time".\r\nWhat must be noted is that in a criminal trial or appeal, the fact\r\nthat the conclusion reached by a trial court or an appellate court\r\nwhich is inconsistent with the defence of the accused or appellant\r\n \r\n27\r\n \r\nshould not be construed as the failure of the court to consider the case put forward by the accused/ appellant.\r\nIt is enough if in the judgment the court makes references to the defence story, considers same and gives reasons why that story or defence cannot be believed.\r\nIn the instant case, both courts, trial and appellate did just that and in all cases concluded just like this court that the appellants defence is wishy washy, unconvincing, unreasonable and quite inconsistent with normal acceptable behaviour and conduct.\r\nSecondly, taking all the circumstances of this case into consideration, the appellant has not suffered any miscarriage of justice, much more substantial.\r\nWe will as well dismiss this ground of appeal.\r\nGROUND D: THAT THE COURT OF APPEAL OUGHT TO HAVE MITIGATED THE SENTENCE IMPOSED ON APPELLANT BY THE TRIAL COURT.\r\nIn view of what is at stake here in the consideration of the sentence of 65 years imposed on the appellant, we are inclined to commence our discussions and analysis with this quotation of a U. S States man John Tay in 1778: \r\n"I am now engaged in the most disagreeable part of my duty, trying criminals - punishment must of course become certain, and mercy dormant - a harsh system, repugnant to my feelings but nevertheless necessary".\r\nThis brings us to a discussion of the last ground of appeal which is on sentence.\r\n \r\n28\r\n \r\nIn dismissing the appeal against sentence, this is what the court of\r\nappeal stated per Acquaye J. A.\r\n"1 notice from the record of proceedings that the appellant was said to be a first offender and most of the items stolen was recovered. The evidence on record is that it was the appellant who drove the stolen car from the complainant''s house at Lashibi, Accra to his hometown in the Ashanti Region.\r\nTo reduce his sentence will be unfair to the other accused persons who are all serving 65 years jail sentence. The appeal against sentence is also dismissed." emphasis mine\r\nIn his statement of case before this court, learned Counsel for the\r\nappellant, Edward Darlington, based his arguments on the reasons\r\nwhy the sentence of 65 years should be varied.\r\n1.	That the appellant is a first offender and is young.\r\n2.	That modern view of punishment is to look at the correctional\r\nand reformative approach rather than attempting to crack a\r\nwalnut with a sledge hammer. That appellant needs a second\r\nchance.\r\n3.	That the period the appellant spent in lawful custody on\r\nremand was not taken into consideration when the sentence\r\nwas passed as he was constitutionally mandated to do under article 14 (6) of the Constitution 1992. Bosso v Republic\r\n[20091 SCGLR 420\r\n4.	That the learned trial Judge and the appeal court failed to\r\nexplain or justify the sentence of 65 years on each count\r\nwithout making it to run concurrent or consecutive as they\r\nwere obliged to do under the circumstances.\r\nOn her part, learned Principal State Attorney Mrs. Evelyn Keelson\r\nargued as follows:-\r\n29\r\n \r\n1.	That, robbery, being a first degree felony with no maximum\r\nsentence, meant the trial Judge acted within his discretion in\r\nimposing the 65 years in hard labour.\r\n2.	Considering the factors of punishment as laid down in the celebrated cases of Kwashie v Republic 1971 1 GLR 488 and in Republic v Adu Boahen 1972 GLR 70-78, what was\r\ndesirable under the circumstances was deterrent sentence. See unreported Supreme Court case of Kamil v Republic\r\nCriminal Appeal No.J3/3/2000 dated 8th December, 2010\r\n3.	That the learned trial Judge should have stated whether the\r\nsentences are to run concurrent or consecutive. Learned\r\nCounsel however stated that, the failure of the trial and\r\nappellate court to have stated the concurrent nature of the\r\nsentence has not occasioned any miscarriage of Justice as\r\ncontained in section 30 of the Courts Act 1993, Act 459.\r\nLearned Counsel urged this court to correct it.\r\n4.	Whilst conceding that the trial court did not state whether the\r\ntime spent by the appellant in lawful custody before sentence\r\nwas taken into consideration as is provided under article 14\r\n(6) of the Constitution, learned counsel for the Republic stated\r\nthat under the authority of the decision of the Court of Appeal in the case of 0 Jo v The Republic [1999-20001 GLR 169-181\r\nit is to be presumed that the court took the period the\r\nappellant spent in lawful custody into considertion before\r\nimposing the sentence.\r\nBased on the above, learned Principal State Attorney prayed this\r\ncourt not to interfere with the sentence imposed by the trial court\r\nand confirmed by the Court of Appeal.\r\nFrom the above arguments, the following issues need to be\r\ndiscussed and analysed in order to resolve the arguments raised\r\n \r\n30\r\n \r\nover the inappropriateness of the sentence imposed on the appellant by the trial court and confirmed by the Court of Appeal.\r\ni.	Whether or not on the totality of the facts and law, a sentence of 65 years on the appellant, a first offender according to the record then aged 31 years is appropriate.\r\nii.	That a trial court ought to take into consideration the period served by an accused person in lawful custody before sentence is imposed, pursuant to article 14 (6) of the Constitution 1992.\r\niii.	That the sentence of 65 years each on the offences should have been expressly made to run concurrent and not leave it blank as was done by both the trial and appellate courts.\r\nAPPROPRIATENESS OF SENTENCE OF 65 YEARS ON APPELLANT AS A FIRST OFFENDER\r\nThere is absolutely nothing on record to contradict the fact that the appellant is a first offender.\r\nDespite the misgivings expressed by the learned trial Judge on the accuracy of Police reports and or information that the appellant is a first offender, for now, Police records constitute the most authentic and reliable source of data upon which the courts act, in cases where records on accused persons are demanded by the courts.\r\nIt is also generally accepted that a first offender must normally be given a second opportunity to reform and play his or her role in society as a useful and law abiding citizen.\r\nThat is why it is desirable for a first offender to be treated differently when a court considers sentence to be imposed on a first offender vis-â-vis a second or a habitual offender. However, all that will change and evaporate into thin air if the crime committed by the first offender is such that the minimum sentence is fixed by law. For example, narcotics offences where the minimum sentence is 10 years, then the principle of considering first offenders will only be\r\n31\r\n \r\ntaken into account after the court considers that minimum and mandatory sentence.\r\nAgain if a first offender commits murder for example and the jury return a guilty verdict, the presiding Judge is mandated to impose the death penalty. See Dexter Johnson v Republic referred to\r\nsupra.\r\nThere are other examples like defilement, rape and some motor offences where death results. In all these cases, the minimum custodial sentence is fixed by law upon conviction and the fact that the accused/appellant is a first offender would be of no consequence. The minimum sentence in these cases would have to be imposed before the fact of being a first offender will be considered.\r\nThe point being articulated here is that, notwithstanding the general principle that first offenders should be treated leniently when sentence is being imposed, the measuring rod or standard in any circumstance is the offence creating statute and the punishment provided therein.\r\nWhere, as in the instant case, just like the other examples given, the minimum sentence is imposed, then the hands of the courts are tied.\r\nSecondly, the court will also have to consider whether the first offender indeed acted as a first offender i.e. a novice. This can be deduced from the type of crime committed, the circumstances under which the crime was committed and the casualties if any.\r\nTherefore if a first offender commits a serious crime like robbery which is a first degree felony, then it is to be presumed that the first offender himself had divested himself of any lenient considerations. In this case for example, section 149 of the Criminal Code 1960 Act 29, under which the appellant was charged provides as follows:-\r\n32\r\n \r\nSection 149\r\n(1)	"Whoever commits robbery is guilty of an offence and shall be liable, upon conviction on a trial summarily or on indictment, to imprisonment for a term of not less that ten years, and where the offence is committed by the use of an offensive weapon or offensive missile, the offender shall upon conviction be liable to imprisonment for a term of not less that fifteen years."\r\n(2)	For the purposes of subsection (1) the Attorney-General shall in all cases determine whether the offence shall be tried summarily or on indictment.\r\n(3)	In this section "offensive weapons" means any article made or adapted for use to cause injury to the person or damage to property or intended by the person who has the weapon to use it to cause injury or damage; and "offensive missile" includes a stone, brick or any article or thing likely to cause harm, damage or injury if thrown.\r\nThen section 150 of the Criminal Code 1960 Act 29 as amended at the time defines robbery as follows:-\r\n"A person who steals a thing is guilty of robbery if, in and for the purpose of stealing the thing, he uses any force or causes any harm to any person, or if he uses any threat of criminal assault or harm to any person, with intent thereby to prevent or overcome the resistance of that or of any other person to the stealing of the thing."\r\nWhat is to be noted here is that, whilst the minimum sentence for robbery has been fixed at 10 years simpliciter, in cases where offensive weapons have been used, the legislature has deemed it fit and proper to enhance the minimum to 15 years imprisonment. Being a first degree felony means that the legislature has categorized the offence of robbery as a grave one. The maximum\r\n33\r\n \r\nsentence can therefore be any number of years that a court deems suitable and appropriate under the circumstances unless the statute states otherwise.\r\nThere is no doubt that robbery is a serious crime and various legislations in this country have sought to deal with it as best as they could.\r\nIn the unreported criminal appeal case of Daniel Ntow v The Republic, Criminal Appeal No. CRA No. H2/25/05 dated 6th April, 2006 the Court of Appeal, Coram Owusu-Ansah JA presiding, Jones Dotse JA as he then was, and Iris May Brown J (Mrs) as she then was in a consideration of the legal regime and effect of the various amendments to section 149 of the Criminal Code, 1960 Act 29 observed as follows:-\r\n"In an attempt to rationalise the seriousness which society attached to the menace of armed robbery, NRCD II"\r\n(which is the suppression of Robbery Decree 1972, NRCD II) went to the other extreme by limiting the courts to only two sentences upon conviction in a robbery charge, namely:-\r\n1.	Life Imprisonment and\r\n2.	Sentence of death\r\nThis was the situation until Act 646 was enacted in 2003 which has indirectly amended and or repealed not only the original section 149 of Act 29 referred to supra, but also NRCD II as it is relevant and applicable to section 149".\r\nContinuing further, the Court of Appeal observed in the Daniel Ntow v Republic case referred to supra as follows:-\r\n"In effect, the result of the enactments in Act 646 are to do away with life imprisonment and sentence of death in\r\n34\r\n \r\nall cases of robbery, even where violent means are used\r\nwhich results in death."\r\nThe result has been the lengthy sentences that trial courts started\r\nto impose on convicted robbers. This has led to inconsistency in the\r\nsentences handed down by the courts. Whilst the minimum\r\nsentences have been fixed by operation of law, i.e. 10 or 15\r\nyears as the case might be, the sky appears to be the limit for\r\nthe maximum. That is where the court in appropriate cases must\r\nconsider the factors of punishment before sentences are imposed on\r\nconvicted robbers.\r\nWhat this court has been requested to do is to consider whether the\r\nsentence of 65 years is appropriate under the circumstances.\r\nThe learned trial Judge indicated what factors influenced him in\r\nimposing the sentence of 65 years. Speaking for ourselves we will\r\nstate that the sentence of 65 years is undoubtedly harsh and\r\nsevere. But is the trial Judge not justified?\r\nConsidering the menace of robbery in our Ghanaian society and the\r\nhigh incidence of the crime coupled with the revulsion which right\r\nthinking members of society feel about the crime, there is the\r\nurgent need to deal swiftly, and in a manner that will serve as a\r\ndeterrent to other like minded citizens. The principles upon which\r\nsentences are imposed have been stated in the locus classicus case\r\nof Kwashie v The Republic [1971] 1 GLR 488 at 493 where it\r\nwas stated thus:-\r\n"In determining the length of sentence, the factors which the trial Judge is entitled to consider are:\r\ni.	The intrinsic seriousness of the offence.\r\nii.	The degree of revulsion felt by law abiding citizens of the society for the particular crime.\r\n35\r\n \r\nUI	The premeditation with which the criminal plan was executed.\r\niv. The prevalence of the crime within the particular locality where the offence took place, or in the country generally.\r\nthe sudden increase in the incidents of the particular crime\r\nvi. Mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed."\r\nComing closely on the heels of the Kwashie v The Republic case supra, is that of The Republic v Adu-Boahen, [19721 GLR 70-78 where the court stated thus:\r\n"Where the court finds an offence to be grave, it must not only impose a punitive sentence, but also a deterrent or exemplary one so as to indicate the disapproval of society of that offence once the court decides to impose a deterrent sentence the good record of the accused is irrelevant." Emphasis mine.\r\nSee also the caution of the Supreme court in the unreported case of Kamil v Republic, Criminal Appeal No. J31312009 dated 8th December 2010 where the Supreme Court, speaking through Ansah JSC stated in relation to the harshness or otherwise of a sentence as follows:-\r\n"Where an appellant complains about the harshness of a sentence he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country considering the sentence of 20 years which was passed on the appellants in the Kamil v Republic case supra, and considering also the principles on sentencing enunciated in the\r\n36\r\n \r\ncase of Hodgson v Republic 120091 SCGLR 642, this court\r\nheld on the said sentence as follows:"- Considering all this we find no good reason to disturb the sentence on the appellant by the Court of Appeal, and think it was even on the low side and should have been increased."\r\nUsing all the factors and principles enunciated in the above cases, it would appear that the trial court had some justification in imposing the sentence it did.\r\nThis is because if one uses the factors in the Ktvashie v The\r\nRepublic case supra, there is no doubt that robbery is one of the most serious cases that has plagued this country for about two\r\ndecades now.\r\nThe security and law enforcement agencies have been battling to control the menace of robbery with varying degrees of success and or failure.\r\nSecondly, it is quite certain that the degree of revulsion felt by law abiding citizens at the mention of (armed) robbery is such that there appears to be complete unanimity that robbery is a canker that must be eliminated from our society.\r\nThirdly, there is also no doubt that the appellant and his gang of robbers actually planned and swiftly executed their robbery agenda successfully. As a matter of fact, the ease with which the robbery was executed gives the impression that the gang must have been experts at the criminal conduct.\r\nThe only snag was that, there was no criminal record on them as at that time. The appellant and his team acted professionally in the robbery act.\r\nFourthly, it will be an understatement that the prevalence of (armed) robbery was pronounced at the material time April 2002. We believe judicial notice can be taken of the fact that, that was the\r\n37\r\n \r\nperiod during which hardly a week passes by without a robbery\r\nincident being reported in the national dailies. What about those\r\nthat never get reported for us to read about?\r\nFifthly, it is correct to say that as at the material time and beyond\r\nthere was an upsurge in the crime of robbery with or without\r\nviolence.\r\nIt is only the last factor that enure''s to the benefit of the appellant.\r\nEven then, there is a big question mark. We have already stated\r\nand discussed the youthful age of the appellant. But then, as a\r\nyoung man, the appellant did not act according to his age, but\r\nacted like a matured, swift and experienced professional robber.\r\nUnfortunately, there was no solid and concrete evidence of good\r\ncharacter about the appellant on record save the fact that he was\r\nnot known by the Police records.\r\nEven under a consideration of this last factor, the violent nature\r\nwith which the offence was committed is an aggravating\r\ncircumstance rather than mitigating.\r\nFor us, the most appropriate and encompassing principle is to be found in the case of the Republic v Adu-Boahen supra which\r\nconcerns the deterrence nature of sentences. Whenever we talk of\r\ndeterrent or exemplary nature of sentence, whom are we really\r\nreferring to as being deterred?\r\nWe believe it cannot be the accused/ appellant himself. This is\r\nbecause he himself would have been in the "cooler" and nothing can\r\ndeter him at that stage. Perhaps the length and nature of the\r\nsentence can deter him from committing offences in future. That is\r\nafter serving and completing the current sentence.\r\nIn reality, it is our belief that those to be deterred are the members\r\nof the society who know about the severity of sentences imposed for\r\nthis or that crime. Under these circumstances, assuming persons\r\n38\r\n \r\nwith criminal propensities will think properly, then •they might be\r\ndeterred from any criminal conduct and realise that it does not pay\r\nto engage in criminal activities to wit robbery, rape etc as the case\r\nmight be.\r\nIt might also be necessary sometimes to protect society by keeping\r\nsuch persons away from society for a long time. The primary duty of\r\nany government is to ensure that citizens go about their duties in\r\npeace, tranquility and in safety.\r\nThe organs of the state constitutionally mandated to ensure that\r\nthere is law and order have a responsibility to enforce due\r\nobservance and maintenance of law and order.\r\nHowever, considering the five fold effect of sentences propounded in the kamil v Republic case referred to supra, it does appear that\r\nthe punishment in this case has been punitive enough. It may also\r\ndeter others who are right thinking.\r\nWe however, doubt really, if such a sentence, or long sentences by\r\ntheir nature reform offenders. There is absolutely no doubt that\r\nsuch a long sentence of 65 years will appease society and safeguard\r\nthem from criminal conduct.\r\nIt is however our view that for such sentences to be really deterrent\r\nto others, then a different approach must be adopted to the\r\nimposition of sentences. This is because as in this appeal, if the\r\nappellant successfully completes the term of 65 years, we doubt\r\neven if his peers in Domeabra, near Konongo will be alive for them\r\nto be deterred upon his release, that is, if he survives the hard\r\nprison conditions in this country\r\nWe similarly doubt if those around Kantamanto, in Accra where\r\nappellant had a store will also be available upon his release after\r\nserving the 65 years to be deterred from engaging in criminal\r\nconduct. The greatest deterrence to our mind is the swift but\r\nunlawful mob action that society unleashes upon those suspected\r\n39\r\n \r\nof committing crimes especially, stealing, robbery and ritual\r\nmurders. If what happens to suspects in robbery cases is anything\r\nto go by, there would have been no robbery or stealing cases by\r\nnow. We will therefore advocate a scheme of sentence where the\r\nlength of the sentence whilst being commensurate to an extent with\r\nthe gravity of the crime and revulsion which law abiding citizens\r\nfeel towards the crime, will be such that, the peers and younger\r\npersons of society will have an opportunity to observe the life of the\r\nconvict after his release and hopefully be deterred thereby.\r\nIn this case for example, we think there is the need for a reduction\r\nin the sentence. In the case of Daniel Ntow v Republic, referred to\r\nsupra, the Court of Appeal confirmed a sentence of 18 years\r\nimposed on the appellant by the trial High Court because he was\r\nyoung and a first offender whilst his two co-accused were handed\r\n30 years prison terms.\r\nGiven the age of the appellant as at the material time, he was 31\r\nyears at the time the crime was committed in April, 2002 then by\r\nparity of reasoning he would be 40 years plus as at date of this\r\njudgment.\r\nThe remission that the appellant would benefit from ought to be\r\nconsidered in any reduction of sentence.\r\nIn that scenario, people in his community, peers, old and young will\r\nthen have something to learn from the hopelessness of engaging in\r\ncrimes such as robbery when reference is made to the appellant\r\nand others in same category.\r\nWe will also consider the fact that even though the robbery gang\r\nwas violent, no one was injured or harmed during the robbery. In\r\naddition, most of the items were retrieved.\r\nTo us, these factors constitute sufficient mitigating circumstances\r\nwhich should have been considered by both the appellate and trial\r\ncourts. In any case, one cannot fault them because at all material\r\n40\r\n \r\ntimes society was highly enraged at the menace of robbery at the time, and the courts need to complement the efforts of the law enforcement agencies whenever there was proven, cogent, reliable and credible evidence upon which they could convict.\r\nFinally, we believe also that long sentences such as was imposed on the appellant, 65 years, meant that he was virtually being consigned to a life in prison throughout his active adult life. This would mean an extra strain on the scarce resources of the state to cater for him for all the period in prison.\r\nThe time has perhaps come for more reformative methods of punishment to be fashioned out by the state. For example, it is not desirable to consign convicted robbers to lengthy prison terms say 65 years without taking into account the social effects it will have on the social fabric of society generally.\r\nThis is because if as is happening, the lengthy prison sentences have failed to deter people and the resultant effect is that many more young p', '../links/cases/Document (208).pdf', 'Yes', 'ADINYIRA (MRS.), JSC, OWUSU (MS.) JSC,DOTSE JSC,GBADEGBE JSC', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Evidence - Failure to call material witnesses - Evidence Act, 1975 NRCD 323 s.51(1) and (2) - Quality of evidence not quantity of witnesses important - Circumstantial Evidence - NRCD 323 s.120.<br>Criminal law - Conspiracy to commit crime - Criminal Offences Act,1960 Act 29 ss.23 &amp; 149 - Robbery - Act 29 s.149 - Whether court ought to have mitigated sentence - First offender - Constitution, 1992 art. 14 (6) - Whether sentence run concurrently or consecutively - Act 30 ss.302 &amp; 303</font></b></i><br>', 'BROBBEY JSC', 'Criminal', '', 'J3/5/2010', '', '', 'supreme', '2012-01-18', '');

INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(560, '1. RICHARD ODUM BORTIER\r\n2. DANIEL QUAYE  ...  PLAINTIFFS\r\nVRS\r\n1. THE ELECTORAL COMMISSION OF GHANA\r\n2. THE ATTORNEY GENERAL  ...  DEFENDANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT OF GHANA\r\nACCRA AD 2012\r\nCORAM: ATUGUBA (PRESIDING) JSC\r\nAKUFFO (MS) JSC\r\nBROBBEY JSC\r\nANSAH JSC\r\nADINYIRA (MRS) JSC\r\nYEBOAH JSC\r\nBONNIE JSC\r\nGBADEGBE JSC\r\nAKOTO - BAMFO (MRS) JSC\r\nWRIT\r\nNO. 1119/2011\r\n23RD FEBRUARY 2012\r\n1.	RICHARD ODUM BORTIER) PLAINTIFFS\r\n2.	DANIEL QUAYE\r\nVRS\r\n1.	THE ELECTORAL COMMISSION OF GHANA) DEFENDANTS\r\n2.	THE ATTORNEY GENERAL\r\n \r\nConstitutional law - Interpretation - Demarcation of constituency boundaries - was brought - Whether Supreme Cm Constitution, 1992, art. 48 - Whether\r\nprescribed by Constitution.\r\nJUDGMENT\r\n \r\nSOPHIA A. B. AKUFFO (MS) J.S.C; \r\nThe Plaintiffs, by their Writ filed on 22nd July 2011, claimed the\r\nfollowing reliefs: -\r\na.	"A declaration that upon a true and proper interpretation of Article 47 clauses (3) (4) and (7) of the Constitution 1992, the boundaries of Constituencies, as demarcated by the Electoral Commission of Ghana shall be made so as to ensure that it is in\r\naccordance with the egalitarian principle of fair representation\r\nsolidly embodied in the Constitution\r\nb.	"An order directed against the Electoral Commission of Ghana to review the boundaries of all constituencies as they exist now by altering them in order to conform with Article 47 (3) and (4) emphasising more on population distribution in accordance with the egalitarian principle of fair representation solidly embodied in the Constitution.\r\nc.	"A further order directed against the Electoral Commission of Ghana to review the 230 Constituencies as they stand now by altering them following the publication of the enumeration figures after the holding of the 2010 Population Census in accordance with the egalitarian principle of fair representation\r\nsolidly embodied in the Constitution."\r\nIn support of these claims, the Plaintiffs in their Statement of Case made various assertions which may be summarised as follows: -\r\na. Despite the dictates of article 47, particularly clauses (1), (3) and (7), the Electoral Commission of Ghana (hereinafter variously\r\n \r\n2\r\n \r\nreferred to as "EC or 1st Defendant") has since the year 2000 made alterations to constituency boundaries that are in\r\ncontravention of these said provisions.\r\nb.	The practice adopted by the EC, as evidenced by the manner in which constituency boundaries had been drawn in previous years, fails to take into account "the philosophy behind representation of the people in a democratic process which is to ensure that the inhabitants of a nation are adequately represented in Parliament", and the same practice, moreover, contravenes the letter and spirit of Chapter 7 of the Constitution, dealing with the representation of the people, as well as other laws and Constitutional Instruments made by Parliament and the EC.\r\nc.	The past practice/conduct of the EC, has been arbitrary and inconsistent with the letter and spirit of the Constitution; such\r\npractice include:\r\nthe insistence by the EC that each district of Ghana must have a constituency.\r\n-ii.	the EC''s insistence on giving a 9 point weight to population and a I point weight to land size.\r\nd.	Such practices have a tendency to result in under-representation in some constituencies or over-representation in others, thereby failing to assure equal/fair representation. As a consequence of these anomalies Ghana''s Parliament "can be described as mal \r\napportioned and disproportional" with a "wide discrepancy between the share of legislative seats and the share of population held by constituencies".\r\n \r\n3\r\n \r\ne. Since the EC has intentions to review the number of constituencies by creating 20 more through the application of factors which are inconsistent with the proviso to Article 47 (3), it is necessary for the Court to interprete Article 47 in such a manner as will foster the democratic principles under-pinning Chapter 7 by placing greater emphasis on Article 47 (3) rather than 47 (4), which is the exception, and ordering the EC to proceed accordingly.\r\nArticle 47 of the Constitution reads as follows: -\r\n(1)	Ghana shall be divided into as many constituencies for the purpose of election of members of Parliament as the Electoral Commission may prescribe, and each constituency shall be represented by one Member of Parliament.\r\n(2)	No constituency shall fall within more than one region.\r\n(3)	The boundaries of each constituency shall be such that the number of inhabitants in the constituency is, as nearly as possible, equal to the population quota.\r\n(4)	For the purposes of clause (3) of this article, the number of inhabitants of a constituency may be greater or less than the population quota in order to take account of means of communication, geographical features, density of population and area and boundaries of the regions and other administrative or traditional areas.\r\n(5)	The Electoral Commission shall review the division of Ghana into constituencies at intervals of not less than seven years, or within twelve months after the publication of the enumeration figures after the holding of a census of the population of\r\n \r\n4\r\n \r\nGhana, whichever is earlier, and may, as a result, alter the\r\nconstituencies.\r\n(6)	Where the boundaries of a constituency established under this article are altered a result of a review, the alteration shall come into effect upon the next dissolution of Parliament.\r\n(7)	For the purposes of this article, "population quota" means the number obtained by dividing the number of inhabitants of Ghana by the number of constituencies into which Ghana is\r\ndivided under this article.\r\nBoth of the Defendants have filed their statements of case in response to that of the Plaintiffs, and whilst the Plaintiffs, 1st Defendant and 2nd Defendant each filed their separate memorandum of issues, thereby presenting the Court with a welter of issues to ponder over in this matter, it is quite clear to the Court that the crux of the matter is whether or not the original jurisdiction of the Court has been properly\r\ninvoked in this instance.\r\nTo start off with, there is no question as to whether the Plaintiffs have the locus standi to bring this action for interpretation and enforcement of the provisions of Chapter 7 of the Constitution. As citizens of Ghana, which they aver, and which averment has not been seriously challenged by either Defendant, they may bring such an action, given the proper circumstances.\r\nAs to whether they have brought a proper cause of action that is another matter, however. Firstly, it is rather late in the day to mount any serious challenge based on the manner in which the EC has performed its functions in the past. Secondly, and more importantly, the crux of the Plaintiffs action relates to the manner in which the EC has demarcated or is intending to demarcate constituency boundaries. Aside from the fact that the EC is yet to perform such task, and it is,\r\n5\r\n \r\nat present, entitled to the presumption that it will perform its functions in due form, there remain the clear provisions of Article 48 of the Constitution. Since it is axiomatic that, in reading or construing a Constitution, the Court is required (as with all other legal instruments) to read the entire provisions with a view to assure that every provision is given effect and any internal conflict is duly resolved without doing damage to any provision thereof, it is quite inexplicable that the Plaintiffs chose to ignore totally the impact of the Article on their ease, and did not attempt to address the same, even in their reply to the l Defendant''s statement of case.\r\nNow, Article 48 states as follow: -\r\n1.	"A person aggrieved by a decision of the Electoral Commission in respect of a demarcation of a boundary, may appeal to a tribunal consisting of three persons appointed by the Chief Justice, and the Electoral Commission shall give effect to the decision of the tribunal".\r\n2.	"A person aggrieved by a decision of the tribunal referred to in clause (I) of this article may appeal to the Court of Appeal whose decision in the matter shall be final".\r\nThe Plaintiffs cause of'' action herein is one in respect of which the Constitution has prescribed a specific course of action, which clearly does not include the Supreme Court. Even though the declarations sought appear, largely to be based on basic Constitutional principles, we have no doubt that, in this case, what the Plaintiff seeks to dispute is the manner in which the EC has demarcated, is demarcating and might demarcate boundaries in the exercise of its power under Article 47. Such a challenge cannot be mounted in this court through an invocation of our original jurisdiction. This matter is, therefore, not properly before the court and the case is hereby dismissed.\r\n \r\n6\r\n \r\nFortunately, the Tribunal stipulated by Article 48 has, alter so many years of delay, been finally constituted, as the Chief Justice in November 2011 inaugurated the same. Therefore, the Plaintiffs are advised to mount their challenge in that proper forum.\r\n(SGD) S. A. B. AKU FF0 (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) W. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) S. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) J. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) S. 0. ADINYIRA (MRS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) P. BAFFOE BONNE\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n7\r\n \r\n(SGD) N. S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) V. AKOTO BAMFO (MRS)\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL:\r\nAYIKOI OTOO FOR THE PLAINTIFFS\r\nA. K. DAB! FOR THE 1ST DEFENDANT\r\nSYLVESTER WILLIAMS (PRINCIPAL STATE ATTORNEY) FOR THE ATTORNEY GENERAL.\r\n\r\n8\r\n', '../links/cases/Document (210).pdf', 'Yes', 'AKUFFO (MS)JSC,BROBBEY JSC,ANSAH JSC,ADINYIRA (MRS)JSC,YEBOAH JSC,BONNIE JSC,GBADEGBE JSC,AKOTO-BAMFO (MRS)JSC', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Constitutional law - Interpretation - Constitution, 1992,art. 47 - Demarcation of constituency boundaries - Whether a proper cause of action was brought - Whether Supreme Court has original jurisdiction - Constitution, 1992, art. 48 - Whether there is specific course of action prescribed by Constitution.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J1/9/2011', '', '', 'supreme', '2012-02-23', ''),
(561, 'JOHN BART ADDISON  ---  PLAINTIFF/APPELLANT\r\nVRS\r\nHANNA KORDAI ADDY  ---  DEFENDANT/RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE COURT OF APPEAL\r\nACCRA - GHANA\r\nAD 2011\r\nCORAM: M. OWUSU (MISS) J.A (PRESIDING) DUOSE J.A\r\nHONYENUGA J.A\r\nCIVIL APPEAL NO. H1/8/2011 20TH OCTOBER, 2011\r\nJOHN BART ADDISON	PLAINTIFF/APPELLANT\r\nHANNA KORDAJADDY	DEFENDANT/RESPONDENT\r\nLand law - Lease - Oral Agreement —ss. 1,Z3& 10 Conveyancing Decree,\r\n1973\r\nEvidence-Burden of proof— ss. 10(1) (2),11 (1),12 (1) (2) Evidence Act, 1975 (NRCD 323)\r\nJUDGMENT I-IONYENUGA I.A.\r\nThis is an appeal by the plaintiff/appellant from the decision of the High Court; Accra dated the 17111 day of December 2009. The said decision decreed that the lease agreement under which the plaintiff/appellant entered the land had long expired. The decision also decreed recovery of possession and ejectment of the plaintiff/appellant from the land.\r\n \r\nThe facts of this appeal are that the plaintiff/appellant claimed to have orally leased a building plot from one Oye Codjoe who is also known as Dunkrong Amartiokor, a fetish priestess for 50 years. The purpose of the grant was for the construction of a two storey commercial building. The plaintiff/appellant paid a customary drink of e200.00 (old cedis) or GHe0.02 before completion of the building. He also paid e200.00 (old cedis) a month and a total rent of el20,000.00 (old cedis) or GI-le12.00 representing the 50 years duration of the lease without a receipt issued to him. The said building was later demolished by the City Engineers because there was litigation on the land. He was rather advised to put a single storey but on 11 th-\r\nJ u ly 1987, the lessor died. The\r\nplaintiff/appellant filed a Caveat to the letters of administration applied for by the defendants/respondents •because they were interfering with the use of his plot.\r\nThe defendants/respondents denied the claim of the plaintiff/appellant. As a result, the plaintiff/appellant caused the instant writ of summons to be issued against the defendants/respondents claiming as follows:-\r\n"1. That the Court orders that plaintiff leased a plot from late Oyc Cocljoe alias Dunkrong Amartiokor and the plaintiff from his own resource built House No. B 672/6 on the leased plot situate lying and being at\r\nAbossey Okai.\r\n2.	That the lease is still in subsistence.\r\n3.	That an order for account of all monies accruing to the Estate of\r\nDeceased who died on 11"'' July 1987 up to the date of judgment.\r\n4.	Alternatively, the refund of the money plaintiff paid to the lessor and\r\nmoney spent to put up the house plus interest on the whole amount.\r\n5.	An order for injunction not to distribute the estate without reference\r\n6.	to the plaintiff. General Damages for interfering with the enjoyment of the plaintiff\r\nlease.\r\n7.	An order that the plaintiff is joint owner of the House No. B 672/6 with late Oye Cocijoe alias Dunkrong Amartiokor.\r\n8.	The Court order that cost be awarded against the Defendants.\r\n \r\nI,-''.	9.	Damages for breach of contract and misrepresentation."\r\nThe Writ of Summons was accompanied by a Statement of claim which was subsequently amended. The defendants/respondents also filed an amended Statement of Defence and Counterclaim as follows:\r\n,,a.	A declaration that the lease agreement under which plaintiff entered the land has long expired.\r\nb.	Ejectment and recovery of possession of the land from plaintiff, and says that plaintiff is not entitled to his claims".\r\nThe plaintiff/ respondent filed a reply to the amended Statement of Defence and Counterclaim. Summons for directions was filed but from the record of appeal, there is no evidence that it was taken by the Court before hearing commenced. However, the following issues were filed:-\r\n"a		Whether or not the plaintiff leased the plot from OYE CODJOE alias DUNKRON AMARTIOKOR.\r\nb		Whether or not the plaintiff leased from his own resources built the house No. B 672/6, Abossey Okai on the leased plot.\r\nC. Whether or not the Lessor OYE CODJOE alias DUNKRONG AMARTIOKOR failed to disclose to the plaintiff that there was a litigation on the plot.\r\nd. Whether or not because of litigation Building Engineers of A.M.A. instructed the plaintiff to put UI) Single Storey Building which was demolished twice by the litigants.\r\nC		Whether or not by the misrepresentation of the Lessor the plaintiff spent a lot of money to put up the building.\r\nf.	Whether or not the disputed House is jointly owned by the plaintiff and Amartiokor (Deceased).\r\ng.	Whether or not alternatively the defendants refund the amount the plaintiff spent plus interest to the plaintiff.\r\nh.	Any further issues appearing on the pleadings".\r\nThe plaintiff/ appellant opened his case but called no witness The original first defendant died in the course of the trial but was not substituted. The defendant/respondent''s attorney opened the defendant/ respondent''s case and\r\n \r\ncalled DW1 and DW2. In his judgment the learned trial judge dismissed the\r\nplaintiff/appellant''s claim and entered judgment for the defendant/respondent on\r\n111111106vt,\r\nher counterclaim.	Dissatisfied with the judgment of the trial Court, the\r\nplaintiff/appellant has filed the instant appeal on the following grounds: \r\n"i.	The judgment is against the weight of evidence led by the appellant. The reasons on which the judgment is founded are farfetched and did\r\nnot arise in the course of proceedings.\r\nAdditional grounds of appeal will be filed on receipt of record of\r\nproceedings".\r\nNo additional grounds of appeal were filed. In this appeal, the plaintiff/appellant would be referred to as- the appellant and the defend-ant/respondent as the\r\nrespondent.\r\n. Before I consider the grounds of appeal as filed, I have observed that the summons for directions as filed were not taken by the Court but the trial\r\n \r\nproceeded. Although the suit was filed under the old rules, High Court Civil Procedure Rules 1954 (LN 140 A) subsequent documents filed and the trial were conducted under the new High Court (Civil Procedure) Rules 2004 (C.I. 47). In such circumstance, order 1 rule 2 of C.I. 47 enjoined the trial court to interpret\r\nthe rules so as to achieve speedy and effective justice, avoid delays and unnecessary expense and as far as possible ensure that all matters in dispute between the parties are effectively and effectually determined and avoid multiplicity of suits. Moreover, Order 81 rule 1 of C.I. 47 enjoins such non-compliance or omissions to be treated as mere irregularity that does not result in a nullity.\r\nSee Republic vs High Court, Accra Ex Parte Allgate Co. Ltd. (Amalgamated Bank Ltd. Interested Party) [2007-2008] SCGLR 1041. The failure therefore of\r\nthe learned trial judge in not taking out the Summons for Directions before proceeding with the hearing of the suit is a mere irregularity and cannot result in\r\na nullity.\r\n \r\nNow, to the first ground of appeal that the judgment is against the weight of evidence. The onus cast upon an appellant who complains that the judgment is against the weight of evidence is to clearly and properly demonstrate to the appellate court that there were certain lapses in the evidence on record which if applied in his favour, could have changed the decision in his favour or that certain pieces of evidence have been wrongly applied against him. See Djin vs Musah Eaako [2007-20081 SCGLR 686 at p.687. A perusal of the Written Submission filed by counsel for the appellant leaves much to be desired. Counsel for the appellant never adverted his mind to the grounds of appeal as filed and therefore did not argue on its merits. The only credit to Counsel for the appellant is the attachments of the pleadings in the trial and what he termed proceedings coupled with the settlement of record and other administrative duties performed before the trial court''s Registrar. Counsel have a duty to their clients to perform their role as expected in the best interest of their clients. However, since an appeal is by way of rehearing, and it is the duty of the appellate court to evaluate the veracity or otherwise of any witness and analyse the entire record of appeal and take into account the testimonies and all the documentary evidence adduced at the trial before arriving at a decision Sc) as to satisfy itself that on the balance of the probabilities, the conclusions of the trial judge are reasonable or amply supported by the evidence. See Tuakwa vs Bosom [2001-20021 SCGTLR 61. Therefore, despite the failure of Counsel for the appellant to demonstrate why the judgment is against the weight of evidence, we shall by the above stated principle of law examine the totality of the evidence including documentary evidence on record before arriving at a conclusion.\r\nCounsel for the respondent has submitted that the appellant failed to lead any convincing evidence during the trial and therefore the trial judge did not place substantial weight on his evidence and prays that this ground of appeal must fail. In a civil ease, the plaintiff has the burden of proof and''persuasion on a balance of probabilities. See sections 10(1) and (2), 11(1) and 12(1) and (2) of the Evidence Act, 1975 (NRCD 323). The plaintiff must therefore lead credible and admissible evidence from whic h the facts he asserts can be inferred. See Zabrama vs\r\n \r\nSegbedzi [1991] 2GLR 221 at p.224. The respondent having counter claimed has\r\nassumed the same burden of proof like the appellant. See Jass Co. Ltd. & Anor vs Appau & Anor [2009] SCGLR 265. It is trite that a lease agreement is a contract for the lease of land and thus the terms of the contract has to be by\r\nmutual agreement. The appellant in paragraph 2 of the Amended Statement of\r\nclaim stated as follows:-\r\n"2.	In 1979 the plaintiff orally leased a building plot for 50 years from ()yc Codjoe a fetish priestess alias Dunkrong Amartiokor at Abossey Okai\r\nin Accra for the purpose of building two storey commercial buildings\r\non the plot".\r\nIn his testimony in court he repeated his assertion that he made an oral lease\r\nagreement with the said fetish priestess to put two storey buildings for commercial purposes and had even paid 0200.00 (old cedis) a month in 1979 and paid 0120,000.00 (old cedis) to cover the fifty year lease. The respondent in her Statement of Defence and Counterclaim denied the assertion of the appellant in\r\nparagraphs 3 and 4 as follows:-\r\n"3.	Save that the late Dunkrong Amartiokor leased part of her plot to plaintiff for ten years, effective from 1980 defendant denies all the\r\n1	4.	averments contained in paragraph 2 of the Statement of Claim.\r\nIn further denial of the said paragraph 2 of the Statement of Claim, defendant denies that the late Dunkrong Amartiokor was also called Oye Codjoc. Again defendant says the land was leased to plaintiff to\r\nconstruct a wooden workshop but plaintiff rather constructed a dwelling place contrary to what was initially agreed which the late\r\n1	Dunkrong Amartiokor objected to".\r\ntr , In the testimony of the respondent she again challenged the appellant''s evidence. Upon denial both in the pleadings and the testimony in court, it was incumbent upon the appellant to lead credible and admissible evidence to corroborate his\r\ncase.\r\nI, a..,,,	The only evidence led in support of the appellant''s case was the tendering of Exhibit A, the site plan of the land registered in the name of his lessor, Exhibit B\r\n \r\n\r\nan application to build a residential single storey building with fence wall, Exhibit 131 an extract from Accra building regulations, Exhibit B2 an application form for a building permit, Exhibits B3, B4, B5, B6 and 137 demand notices for the payment of property rates which bear his name. These exhibits only go to establish that the appellant did put up a building on the land. These did not prove whether the lease was granted to him for 10 years or 50 years. Despite having mentioned one Maame Hannah who is still living in the wooden structure on the land, as the person who introduced him to the late Dunkrong Amartiokor, the appellant woefully failed to call her although she is material to his case.\r\np -\r\n___. Moreover, it is strange that the appellant who is literate and an Electric Techinician could pay such a huge sum of money to an illiterate the late Dunkrong on a lease without having insisted on receipt being given to him. His explanation as to why he could not obtain any documentation is unacceptable. He stated in cross-examination as follows:-\r\n"Q. A very educated person like you, you made fifty years lease without taking document, do you want the court to believe that?\r\nA. I paid a bulky sum of money, she was illiterate and asked me to go and come. I did not want anybody to say I had cheated the old lady and she never did. So when I heard of the litigation I went to demand my money".\r\nIt is equally strange that the appellant in all these circumstance did not find it prudent to have gone to pay for an oral lease without going with another person to witness the transaction. In cross-examination he stated as follows:-\r\n"Q. In all these who and who were present?\r\nA.		When I went there I expected the old lady to bring somebody but she\r\nsaid 1 should deal with her".\r\nThis explanation sounds very funny. lie thus could not prove his allegations he made both in his statement of claim and his testimony in court.\r\nFurthermore, the law as stated in section 1 of the Conveyancing Act, 1973, required that a transfer of an interest in land shall be in writing, signed by the\r\n7\r\n \r\nperson making the transfer or by the agent of that person duly authorized in\r\n1111	writing unless relieved against the need for a writing by section 3. Section 1(2) of\r\n11110***, \r\nthe Conveyancing Act, 1973, NRCD 175 also required that a transfer of an interest in land be made in a manner other than as provided in sections 1 and 10 shall not\r\nconfer an interest on the transferee. Section 2 of NRCD 175 required that a\r\ncontract for the transfer of an interest in land is not enforceable unless:-\r\n \r\n(a)	It is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorized to sign on\r\nbehalf of that person, or\r\n(b)	It is relieved against the need for a writing by section 3. A perusal of section 3 of NRCD 323 which states the transactions permitted without\r\nwriting, indicate that the appellant is not covered by the exceptions. Although the appellant had undertaken an interest in land, he did not lead any evidence to show that his transaction was under an oral customary grant. His evidence simply is that he had an oral lease with the late Dunkrong Amartiokor. The appellant cannot even be protected under NRCD 175 because his oral lease is not covered.\r\nThe principle is that evidence against a deceased person must be scrutinized with the utmost suspicion. See Moses vs Anane [1989-90] 2 GLR 694 at 697. The\r\noral lease between the appellant and the late Dunkrong must be viewed with suspicion particularly when the appellant did not tender any documentary evidence and Dunkrong Amartiokor died before the writ was filed. We therefore\r\nhaving regard to the record, do not believe the claim of the appellant as it is not convincing and unsupportable. It is thus clear to hold that the appellant failed to\r\nprove that he had an oral lease for 50 years. The evidence on record supports an\r\noral lease for 10 years which had long expired.\r\nIn the appellant''s statement of claim particularly in paragraph 2 he stated that it was a building plot that was orally leased to him. In his evidence, the appellant stated that the respondent had interfered with portions to others. A perusal of the\r\nrecord of appeal indicate that from the exhibits tendered by the appellant, it is clear that he was granted only a portion of the land. There is sufficient evidence\r\n \r\n8\r\n \r\n\r\n \r\non record from the respondent, DWI and 0W2 that before the appellant was granted the land, other persons had been living in wooden structures constructed by the late Dunkrong. The appellant himself admitted that DWI DW2 and Maame Hannah were living in wooden structures on part of the land. Exhibits 2 and 3 supports this contention. The appellant also admitted in cross-examination that he did nothing to those who occupied portions of the land whom he came to meet on the land in structures belonging to his lessor, from 1979 to 2004 when he issued the writ of summons. We would therefore not interfere with the finding of fact by the learned trial judge that the late Dunkrong Amartiokor leased only a small portion of the land to the appellant but not the whole land. This finding is supported by the record of appeal. In re Okine (Deceased) Dodoo and Another vs Okine & Others [2003-2004] SCGLR 582, the principle was stated by the Supreme Court to the effect that an appellate Court must not interfere with the findings of fact made by a trial court unless the finding of fact was wholly unsupportable. In the instant appeal, therefore, we would not disturb the finding of fact since it is supportable.\r\nWe would also not disturb the findings of fact by the learned trial judge that the appellant was to have built a wooden structure since wooden structures are all scattered in the area bt he built a sandcrete at his own risk. Likewise, the finding of fact that there was no litigation on the land would not be disturbed since these findings are all supported by the evidence on record.\r\nOn the other hand, the respondent as a counter claimant led credible and corroborative evidence. The respondent testified and was supported by the evidence of DWI and DW2. The respondent was consistent that the oral lease to the appellant was for 10 years and that DWI, DW2 and Maame Hannah had their wooden structures on the land before the appellant came to the land. She also led evidence to the fact that the appellant was to have built a wooden structure but contrary to the lessor''s instructions, he built a block house. She also denied that there was litigation on the land and that the appellant''s lease had long expired. The respondent also stated that the appellant was to put up a structure for a\r\n \r\nworkshop but he rather used his structure as a dwelling house. Further, she stated that the appellant changed the name of the lessor on the payment of the property rate into his own without the consent of his lessor. She was also consistent that only a portion of the land was leased to the appellant. She tendered Exhibit "C" to show that the respondent is next of kin to the late Dunkrong Amartiokor. Exhibit 2, 2A and 2B also depict wooden structures scattered on the land. DW1 confirmed that he was on the land before the\r\nappellant came and that wooden structures were on it. DW2 corroborated the\r\nevidence of the respondent that he took the appellant to late Dunkrong for the release of the land to him. He confirmed that the appellant and his lessor agreed\r\nto an oral lease for 10 years. With such consistent and corroborative evidence by\r\nthe respondent and DWI_ and DW2, we have no doubt that the holding and finding of the learned trial judge in dismissing the appellant''s claim is supported. The •	first ground of appeal is thus dismissed.\r\nNow to the second ground of appeal that the reasons on which the judgment is founded is farfetched and did not arise in the course of the proceedings. We think that this ground of appeal is superfluous because they are linked to the first ground of appeal that the judgment is against the weight of evidence. If learned Counsel had adverted his mind to the first ground, he would have observed that\r\nthis ground of appeal is of no consequence to this appeal. Having dismissed the first ground of appeal, we find it fruitless to consider this ground.\r\nIn this appeal, we find that there is no basis to depart from the findings of fact and conclusions reached by the learned trial judge.\r\nIn the circumstance, the appeal is dismissed and the judgment of the High Court dated the 171/1 December 2009 is hereby affirmed.\r\nrt,.		C. J. HAIIENUGA (JUSTICE OF APPEAL)\r\n10\r\n \r\nV\r\n-	S	•	I	i\r\nM. OWUSU (MISS) J.A.	I agree	M. OWUSU\r\n(JUSTICE OF APPEAL)\r\nI\r\nI. DUOSE J. A.	•	I also agree	T.. DIJOSE\r\n•	(JUSTICE OF APPEAL)\r\nCOUNSEL:\r\nMR. YAW AMO-FARKYE FOR THE PLAINTIFF/ APPELLANT\r\nMR. JOSEPH K. OYIMAH FOR THE DEFENDANT/RESPONDENT\r\nt ..\r\nC ft\r\n', '../links/cases/Document (211).pdf', 'Yes', 'DUOSE, J.A., HONYENUGA, J.A.', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Land law - Lease - Oral Agreement - ss.1,2,3 &amp; 10 Conveyancing Decree,1973<br>Evidence - Burden of proof - ss.10 (1) (2),11 (1),12 (1) (2) Evidence Act,1975 (NRCD 323)</font></b></i><br>', 'M. OWUSU (MISS) J.A.', 'Civil', '', 'HI/8/2011', '', '', 'appeal', '2011-10-20', ''),
(562, 'GAISE ZWENNES HUGHES & CO.  ---  PLAINTIFF/APPELLANT/APPELLANT\r\nVRS\r\nLODERS CROCKLAAN B.V.  ---  DEFENDENT/RESPONDENT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCORAM: DATE-BAH, JSC (PRESIDING)\r\nOWUSU, JSC\r\nDOTSE, JSC\r\nBONNIE, JSC\r\nGBADEGBE, JSC\r\nCIVIL APPEAL\r\n1412412011\r\n1ST FEBRUARY, 2012\r\nGAISE ZWENNES HUGHES & CO PLAINTIFF/ APPELLANT/ APPELLANT VRS\r\nLODERS CROCKLAAN B.V --- DEFENDANT/RESPONDENT/ RESPONDENT\r\nLegal practitioners Recovery of fees - Whether there was compliance with Legal Profession Act 1960 (Act 32) s.30 - Whether defence not raising point of non-compliance constitutes waiver - Cl 16 rule 6(7) (b) - Whether non-compliance with rules of court renders action incompetent.\r\nJUDGMENT\r\n \r\nDR. DATE-BAH JSC: \r\nI have had the privilege of reading before-hand the lucid and authoritative judgment about to be read by my brother Gbadegbe JSC and I agree with him. The interpretation put on section 30(1) of the Legal Profession Act, 1960 (Act 32) by the Court of Appeal in Ayarna & Anor V Agyemang & Ors [1976] 1 GLR 306 and by the Supreme Court more recently in Narter v Gati [2010] SCGLR 745 makes it\r\ninevitable for us to dismiss this action.\r\n(SGD) DR. S. K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\nGBADEGBE JSC: \r\nOn or about 14 March 2006, the defendant instructed the plaintiff, a firm of legal practitioners, regarding a contract that they had previously entered into with a company known as International Business Group, Ghana Ltd and its managing director. It\r\nappears from the pleadings in this case that the contract was one of purchase of shea¬nuts for which the defendant had made payment but did not receive supplies due to it.\r\nThe instructions from the defendant to the plaintiff provided for differential schemes of payment of professional fees in the event of a settlement or a full scale trial of the dispute. Based upon the agreement reached between the parties herein, the plaintiff issued a writ to demand payment of the outstanding amounts owed to the client and in the course of the pendency of the action reached an agreement with the debtors and executed terms of settlement dated 20 December 2006. The said terms of settlement were consequently duly entered as a judgment of the court in the matter.\r\n \r\nFollowing the conclusion of the case, the plaintiff basing himself on the retainer agreement took out a writ of civil summons to claim from its client (the defendant herein) professional fees owing to it following the recovery of judgment in the action that it had concluded against International Business Group and the managing director. In paragraph 11 of the statement of claim filed on its behalf, it was averred as follows:\r\n"As a consequence of the above and in line with their Retainer Agreement, Plaintiff requisitioned for payment of US$44,50, being 1.25% of the settlement sum recovered and received by Defendants of US$3,564,000.00 as a result of professional services rendered by the Plaintiffs."\r\nThe action proceeded to a trial that was determined against the plaintiff by the High Court. An appeal to the Court of Appeal was also determined against the plaintiff and as a result the proceedings herein were initiated before us by way of a further appeal seeking a reversal of the decision of the Court of Appeal. Before us, the parties submitted their respective statements of case and in the course of considering the matter before judgment; we raised for their consideration a point of law that was carefully drafted by the court as follows:\r\n"Was Section 30 of the Legal Profession Act 1960(Act 32) regarding the submission of a bill of fees by a legal practitioner to his client at least a month before the commencement of suit against the client complied with in this case?\r\nThe above question was responded to by the parties and we now proceed to consider the arguments presented to us in the matter. In my thinking, the question that we first have to decide in the appeal herein is that which turns on section 30 of the Legal Profession Act, which was raised by us. In its answer to the said question, while admitting non-compliance with section 30 of Act 32, the Legal Profession Act, the plaintiff in what I consider to be a confession and avoidance submitted that\r\n \r\nnotwithstanding the non-compliance by it with section 30 of the Act, the defendant by its conduct in not raising the point regarding same is deemed to have waived the non¬compliance with the statutory provision. In the supplementary statement of case filed on its behalf on 21 November 2011, it was stated at page 1 thus:\r\n"However could it be said that the failure by the Plaintiff to comply with the provisions section 30(1) of the Legal Profession Act renders the entire action null and void? We respectfully do not think so. It must be noted that the Defendant who was represented by Counsel in the trial court entered appearance unconditionally to the action and filed a Defence as well as a Counterclaim did not raise any such legal objection. Not having done so we submit that Defendant is deemed to have waived any such non-compliance to the irregularity."\r\nThis view of the matter that is urged on us by the plaintiff does not find support in the pronouncement of this court in the case of Nartey v Gati [2010] SCGLR 745.In the course of his judgment in the above case my respected brother, Date- Bah JSC reading the lead judgment of the court expounded the applicable law at page 758 as follows:\r\n"In Ayarna v Agyemang [1976] 1 GLR 306, the Court of Appeal held that the true object of section 30(1) of the Legal Profession Act, 1960 ( Act 32), was to enable the court to oversee and supervise the charging of professional fees if a dispute arose between a lawyer and his client as to the quantum or proprietary of the fees charged and that compliance with section 30 (1) of Act 32 was a mandatory pre-condition for the commencement of an action by a lawyer to recover his fees."\r\nIn my opinion, not having satisfied the mandatory requirement of Act 32 regarding the service on the client of a bill of fees before suing out the action herein, the action was improperly constituted and the appeal herein must fail. The non-compliance with the mandatory statutory requirement contained in section 30 of the Legal Profession Act,\r\n \r\n(Act 32) rendered the action in the form in which it was taken before the High Court one that was not sanctioned by law and as such it was competent for the court by itself to raise the point of law turning on it under rule 6(7) (b) of Cl 16, the Supreme Court Rules. The non-compliance in this case being a failure to comply with a mandatory statutory requirement invalidated the writ of summons on which proceedings in the matter herein were based as was decided by this court in the case of Republic v High Court, Accra, Ex-parte Allgate CoLtd [2007-2008] SCGLR, 1041. The decision of the Supreme Court in this case appears to have overruled the collection of cases including Heward MiIlsv Heward Mills [1992-93] GBR 239 which hold that non-compliance with rules of court renders an action incompetent; to have a nullifying effect, the non-compliance must also be a breach of the Constitution or of a statute or the rules of natural justice such as to affect jurisdiction. The situation that we are confronted with in the appeal herein being one of non-compliance with the provisions of a statute has the effect of invalidating the action. I add that in view of the breach of the statutory provision, we are left with no discretion in the matter such as to make any substantive order or orders in the action.\r\nRegarding rule 6 (7) of the Supreme Court Rules, Cl 16, I think that the framers of the rule conferred a power on us to be utilised in instances such as for example, that which has unfolded before us in the matter herein in order that proceedings commenced in clear violation of mandatory statutory requirements might not escape the scrutiny of the law. It seems to me that this is a useful tool in the hands of the court by which we are enabled to strike down proceedings even though the default in complying with mandatory statutory requirements might have escaped notice in the courts below. It is a weapon that enables us to uphold the rule of law as to do otherwise would have the effect of condoning breaches of statute. The above rule is of considerable standing and one on which there is no conflict of judicial opinion. The judgment of my worthy brother, Date-Bah JSC in the case of Republic v High Court ( Fast Track Division) Accra; Ex-parte National Lottery Authority [2009] SCGLR 390 is an illustration of this rule. At page 402, the learned judge observed as follows:\r\n \r\n"No judge has authority to grant immunity to a party from consequences of breaching an Act of Parliament. But this was the effect of the order granted by the learned judge. The judicial oath enjoins judges to uphold the law rather than condoning breaches of Acts of Parliament by their orders."\r\nThe result is that the appeal herein is dismissed and the action that was commenced\r\nbefore the High Court in the matter herein on 15 November 2006 is also dismissed.\r\n(SGD) N S. GBADEGBE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) R. C. OWUSU (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) J. V. M. DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) P. BAFFOE BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nPETER ZWENNES FOR THE PLAINTIFFS! APPELLANTS/APPELLANTS.\r\nMRS. ABENA NTRAKWAH-MENSAH FOR THE DEFENDANTS! RESPONDENTS /RESPONDENTS.\r\n\r\n', '../links/cases/Document (212).pdf', 'Yes', 'OWUSU, JSC, DOTSE,JSC,BONNIE JSC, GBADEGBE, JSC', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Legal practitioners - Recovery of fees - Whether there was compliance with Legal Profession Act 1960 (Act 32) s.30 - Whether defence not raising point of non-compliance constitutes waiver - CI 16 rule 6(7) (b) - Whether non-compliance with rules of court renders action incompetent.</font></b></i><br>', 'DATE-BAH JSC', 'Civil', '', 'J4/24/2011', '', '', 'supreme', '2012-02-01', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(563, 'MOHAMMED IBRAHIM KAMIL  ---  APPELLANT\r\nVRS\r\nTHE REPUBLIC  ---  RESPONDENT', 'IN THE SUPERIOR COURT OF jUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCORAM: ATUGUBA JSC (PRESIDING)\r\nBROBBEY JSC\r\nDATE-BAH (DR) JSC\r\nANSAH JSC\r\nGBADEGBE JSC\r\nCRIMINAL APPEAL NO. 13/3/ 2009\r\n8TH DECEMBER, 2010\r\nMOHAMMED IBRAHIM KAMIL	APPELLANT\r\nVRS\r\nTHE REPUBLIC	RESPONDENT\r\nCriminal law - Possession of Narcotic Drugs - Narcotic Drugs (Control, Enforcement and Sanctions) Law, PNDCL 236. 1990 £56— Whether PNDCL 236 created strict liability - Whether appellant had requisite mens rea - Whether second appellate court could interfere with concurrentfindings of lower court.\r\nJUDGMENT ANSAH, ISC:\r\nThe appellant and five others were charged jointly with a count each of the following offences before the High Court, Accra:\r\nCount One\r\nStatement of offence.\r\n"Engaging in criminal conspiracy to commit crime relating to Narcotic Drug\r\nContrary to section 56 (c) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law,PNDCL 236,1990"\r\n \r\n2\r\nThe particulars of offence were that: all the accused persons engaged themselves in Spain, the United Kingdom and Tema, Ghana, on a date between September 2003 and 7th January 2004 in criminal conspiracy to commit an offence relating to narcotic drug.\r\nCount Two\r\nStatement of Offence.\r\nImportation of narcotic drug without licence contrary to Section 1 of the Narcotic Drugs Control Enforcement and Sanctions Law,1990, PNDC Law 236. The particulars of the offence were that the accused imported 588.33 kilograms of cocaine a narcotic drug without a licence issued by the Minister of health.\r\nCount Three\r\nStatement of Offence\r\nPossession of Narcotic Drug without lawful authority contrary to section 2 of the Narcotic Drugs ( Control Enforcement and Sanctions Law, 1990 PNDCL 236. The particulars of the offence were that between 30 December 2003 and January 2004 the accused persons possessed cocaine weighing 588.33 kilograms at Tema.\r\nCount Four\r\nStatement of Offence\r\nUse of property for Narcotic Offence contrary to section 10(1) (a) of the Narcotic Drugs (Control, Enforcement and Sanctions Law) 1990, PNDCL236.\r\nThe particulars of the offence were that the accused person, Kevin Dinsdale Gorman, used his property House No. 33/137, Community 10, Tema, with the intention of carrying on a narcotic offence.\r\nIt is not necessary to consider count four in this appeal for the appellant was not charged with it, or convicted and sentenced for that offence either.\r\nEach accused pleaded not guilty to the offence but was found guilty at the trial, convicted and sentenced to a jail term of twenty (20) years imprisonment, and also confiscated all monies found on the accused persons as well as the house in which they were arrested. The Court of Appeal subsequently acquitted and discharged the convicted 1St, 2nd and 3rd accused persons on counts one and two by a 2-1 majority, but dismissed the appeal on count three and sentenced the\r\n \r\n3\r\nappellant to 15 fifteen years IHL; whereupon the 2 nd accused appealed further to this court on the following grounds quoted in extenso, hereunder:\r\n"a. That the Court of Appeal erred in law in upholding the decision of the trial High Court that the Appellant was guilty of possession of Narcotic Drug without lawful authority contrary to section 56 of PNDCL 236, 1990.\r\nb.	The judgment was not supported by the evidence on record.\r\nc.	That the conviction and sentence of the appellant to a term of 15 years IHL is harsh and excessive and has occasioned a miscarriage of justice.\r\nd.	Further grounds would be filed upon the receipt of the records of proceedings."\r\nFacts and evidence of the case.\r\nThe facts and evidence grounding this appeal need recounting in order to appreciate the reasons for our judgment. They were that: following intelligence reports from sister international agencies, the Ghana Narcotics Control Board mounted surveillance on the first accused in the trial, a shareholder and operations manager of Tuna-To-Go a Tema based Shipping Company for some time. Telephone bills intercepted on 31-12-03 between 2.00 and 7.00 a.m. showed that the first, second and sixth accused persons were engaged in conversation with each other. At the same time, one Craig, and four ''black men'' non-accused non-appellants, landed what was supposed to have been fish at the Prampram beach.\r\nIn the meantime, the accused persons began to arrive in Ghana in a sequential order; thus, on 2-1-04, the 1st accused arrived from Venezuella through London, on 30-12-03, with the 3rd accused arriving at the Kotoka International Airport on..., and the 4th accused on 6-1-04. On the 3-1-04, the 5th accused followed suit.\r\nWe can now shift focus to have a shot at what happened at the Prampram beach; the PW2, Tetteh Kofi, who worked there as a watchman at the Captains Lodge, said between December 2003 and New Year''s Day, 1-1-2004, the second accused, (hereafter called the appellant herein), told him they were bringing fish from abroad and three days later, the sixth accused brought the ''fish'' in parcels; he PW2 and PW3, Jonathan Lartey Awuley discharged the ''fish'' from a boat and loaded them into a vehicle brought and driven there by the appellant. The appellant paid him 4200,000.00 (two hundred thousand Cedis) for his services.\r\nThe PW2 was supported by the PW3, Jonathan Lartey on all material particulars for he was also paid the same amount for doing the same piece of work that day. Events that followed showed what was truly or exactly the ''fish'' in question.\r\n \r\n4\r\nWe may shift attention to events taking place in the house now. Kwame Boateng, the houseboy of Gorman the first accused, testified as the PW4 and said Gorman traveled but returned on 30-12-03. The next day he saw the appellant and 6th accused come to the house in a big car like what the appellant drove. He the PW4 received some boxes from the car which the 1st accused asked him to carry upstairs and he did so. The appellant brought some more boxes later which he the PW4 similarly carried upstairs.\r\nThen on 7-1-03, a combined team of personnel from the Narcotic Control Board and the Drug Enforcement Unit of the Ghana Police Service raided the residence of the 1st accused and discovered ''bails'' and parcels of whitish substances suspected to be cocaine concealed in specially recently constructed compartments in a wall covered by a large dressing mirror. The 3, 4th and 5th accused at the trial were in the house at the time of the raid.\r\nWhen confronted with the substance the first accused said it was ''cocaine'' brought to the house by one Yakuba for safekeeping for a fee of $50,000.00. All the accused persons who were in the house were arrested and sent to the Narcotic control board offices and later charged with the offences.\r\nThe case for the prosecution was further strengthened by the evidence of the PW1, Husseima Iddrisu, a house-help of the first accused who traveled to London but returned with money which she counted. After that ''Krail'' and the appellant came for the money. She saw the 5th accused a mason, partition a room in the house into two and plaster them; he removed a cupboard upstairs and replaced it with a big mirror previously in the room of the first accused; then the 1st and 5th accused rebuilt the compartment. During the raid on the house on 7-1-04, the police found the boxes in the compartment behind the mirror.\r\nThe PW5 David Tei Ahulu saw Hodgson, the 5th accused, working on the wall on 7-1-04 and corroborated the evidence on how he also heard PW11 Ben Ndego ask the 1st Accused what the parcels contained whereupon the latter said it was cocaine given him by a friend called Yakuba for safekeeping for a fee of\r\n$50,000.00\r\nBen Ndego said upon the receipt of intelligence from sister international bodies the National Narcotic Control Board mounted surveillance on the accused persons. They identified the accused and their associates as involved in the illicit activities. When his outfit conducted a raid on the house of the 1st accused, 22 boxes of substance suspected to be cocaine were found hidden in a concealed compartment behind a big sized mirror in the house of the 1st accused upstairs. A field test conducted on the samples tested positive for cocaine. A further search in the house led to the discovery of a book entitled ''Cocaine''\r\n \r\n5\r\nOn his part the PW10 said he took photographs of the scene and tendered them in evidence as Exhibits D, Dl to Dig. Forensic evidence by PW6 and 8 the analysts, confirmed that the substances were indeed cocaine in exhibit 8, weighing 588.33 kilos.\r\nAt the close of the case of the prosecution the learned trial judge ruled that the prosecution established a prima facie case against each accused and called upon him to enter his defence.\r\nEach accused flatly denied the offence charged against him and led evidence in his defence. At the end of the trial, the court held the prosecution succeeded in proving its case against each accused beyond reasonable doubts, found each guilty of the offence and convicted him accordingly. It then imposed a jail term of 20 years Il-IL imprisonment on each accused. It also confiscated all monies found on them during the raid as well as the house in which the contraband drugs were found.\r\nThe convicted accused persons were dissatisfied with the conviction and sentence and appealed to the Court of Appeal, which dismissed the appeal on count 3 by a 2-1 majority decision. The 3rd and 4th accused appealed further to this court on numerous original and additional grounds and on 7 February 2007, and in its unanimous judgment upheld the appeal; see Logan & Laverick v the Republic [2007-2008] SCGLR 75. Allan William Hodgson, the 5th accused at the trial, had his appeal to this court against the judgment of the Court of Appeal dismissed in Hodgson v The Republic [2009] SCGLR 642.\r\nAs it is only the second accused at the trial who is appealing against the judgment of the Court of Appeal, this time, I shall therefore recap the evidence he led in his defence. He said he went to Kevin Gorman, his brother in law, in his house on 31-12-03 in the morning to see him and one Aisha; he denied going there to offload boxes. He denied the offences leveled against him, and the evidence by the Prosecution witnesses, particularly that he hired and paid some of them to offload the boxes in which the cocaine was found.\r\nIn his statement of case, counsel for the appellant stated that there was nothing in PNDC Law 236 which required, or, created a strict liability offence on an accused person so that a person who did not know the nature and quality of the substance he possessed cannot be said to have been engaged in dealing in Narcotic Drug but is a mere ''luckless victim''.\r\nThis being a criminal trial, the prosecution bore the onus of proof that the appellant possessed the narcotic drug as charged against him, which they must discharge on proof beyond reasonable doubts.\r\n \r\n6\r\nTo secure the conviction of an accused person on such a charge, Atuguba JSC after considering the authorities in an exhaustive manner, stated the ingredients\r\nof the offence in Bonsu alias Benjillo v The Republic [2000] SCGLR 112 at 138 to be as follows:\r\n''I hold that on a charge of possessing a narcotic drug under PNDCL 236 the prosecution must prove: (i) custody or control of the drug by the accused; (ii) knowledge of the presence of the drug: see Warner v\r\nMetropolitan Commissioner [1969] AC 256 HL; R v Soyeson [1982] 2 A/I ER 161 and Akosah v The Republic [1979] GLR 250; and (Hi) knowledge of the nature of the drug possessed."\r\nThe trial court found that the appellant had possession of the drugs and the first appellate court concurred with the trial judgment.\r\nIf the evidence on record was studied carefully, it would show that even though the drugs were not found in the actual possession of the appellant, whether or not the appellant possessed it constructively, or by imputation, could be inferred from the circumstances that they were under his control. There was evidence it was the appellant who drove the vehicle, (a van), containing the boxes, hired the services of some of the prosecution witnesses to offload boxes supposed to contain fish upstairs; he himself carried some of those boxes upstairs. Of course, once the appellant denied the evidence by the prosecution, it became a question of which version of the rival facts as between the prosecution and the appellant the court ought to believe. The trial court cast its preference in favor of the case of the prosecution and was affirmed on appeal. Thus on the vital issue of whether or not the appellant had anything substantially to do with the boxes and their contents, the concurrent findings of fact by the lower courts was that he did carry the boxes found to contain the drugs physically and also hired and paid carriers to send them upstairs for hiding in the specially constructed compartments.\r\nIt was now well settled in our jurisprudence that it is not easily permissible for a second appellate court like this one to interfere with concurrent findings of fact by lower courts unless such findings were not supported by evidence so as to make the findings unreasonable. We have not spared ourselves the burden of reading the evidence several times over and come to the conclusion the findings by the lower courts were supported by the evidence on record thus rendering them amply supported by the evidence and thus were by no means perverse. On this reference is hereby made to Achoro v Akanfella [1996-97] SCGLR 209 cited in Obrasiwa v Otu [1996-97] SCGLR 618.\r\n \r\n7\r\nThe conditions under which this court will interfere with concurrent findings of facts by lower appellate courts have been stated several times in this court. In the Achoro case, this court said:\r\n"in an appeal against findings of facts to a second appellate court like court where the lower appellate court had concurred in the findings of the trial court, especially in a dispute.....this court will not interfere with the concurrent findings of the lower courts unless it is established with absolute clearness that some blunder or error resulting in a miscarriage of justice, is apparent in the way in which the lower tribunals dealt with the facts."\r\nSee pages 214-215 where some of the errors which must be established, such as the lower courts had clearly erred in the face of a crucial documentary evidence, or that a principle of evidence had not been properly applied: see Thakur Harihar Buksh v Thakur Umon Parshad (1886) LR 141 Al; or, as pointed out Robins v National Trust Co. [1927] AC 515, that the finding is so based on erroneous proposition of the law that if that proposition be corrected, the finding disappears. In short it must be demonstrated that the judgments of the courts below are clearly wrong. The examples are by no means exhaustive.\r\nIt is equally well settled that physical possession alone would not be sufficient to prove a case of possessing narcotic drugs against the appellant. The issue was, was there evidence establishing that the appellant had the requisite mens rea or guilty knowledge, or evidence from which it was reasonable to presume the appellant proved to be in possession well knew, or ought to have known that the article he possessed was prohibited drugs, in this case cocaine? In Ghanaian criminal jurisprudence, this ingredient in the offence was stated by 011ennu JSC in Armartey v The State [1964] GLR 256 at 261, that:\r\n"What is the possession proof of which without more, makes a person guilty of an offence under section47 (1), unless he proved that his possession is lawful. Upon a proper construction of the section, the possession must be possession with knowledge of the nature and quality of the article; awareness that what is possessed is ''opium or Indian Hemp'' or residue from the smoking of Indian Hemp''. Physical possession without knowledge of the nature and quality of what is possessed physically is no offence. Without that knowledge there is no legal possession which can support the charge. Therefore to succeed on such a charge, the prosecution must prove legal knowledge; that is, in addition to proving physical or constructive possession, they must go further to lead evidence which establishes that the defendant had the requisite knowledge, or evidence from which it will be reasonable to presume that the defendant proved to be in possession well knew or ought to have known, that the article he possessed was ''opium or Indian Hemp'' i.e.'' cocaine'' in this context.\r\n \r\n\r\n8\r\nIn Warner v Metropolitan Police Commander [1969] AC 132, [1969] 2 All ER.\r\n356, a majority of the House of Lords held that a person could not be in possession of dangerous drugs unless he was at least aware of the nature of that which was under his control although it was unnecessary for the prosecution to show that he knew of its quality. The current statutory English law is contained in the Misuse of Drugs Act, 1971, which provided that an accused might be acquitted and discharged if he proves he neither believed nor suspected nor had reason to suspect that the substance he possessed was a controlled drug. We would say English law was different from the Ghanaian on the requirement of knowledge sufficient to fix an accused with liability for the possession of what was found in his possession. We must observe that whether or not our law on the subject created a strict liability offence was adequately considered in Bonsu alias Benfflo v The Republic [supra] where Atuguba JSC held it did not.\r\nWe fully endorse his view for our criminal law is on all fours with the common law principle that a crime such as we have in question requires a mental element, or a mens rea.\r\nThe Amartey case (supra) made it clear that possession is physical or constructive control coupled with knowledge of the nature and quality of that which was possessed. Therefore the settled law in Ghana is that to sustain a charge under section 2 of PNDCL 236, 1990, the prosecution must prove that the appellant had not only physical control or custody of the drugs but also was aware of its nature and quality. Whether or not the appellant had legal possession of the substance in question was a matter of evidence.\r\nTo be fair to the appellant the cocaine was not found on him physically, but hidden in a specially constructed chamber in the wall of the house of first accused. Was there proof of any connection or nexus by the appellant to these things?\r\nThere was evidence he carried or hired and paid carriers to carry boxes containing the substances from the beach in a van to the house and into the recently constructed chamber in the wall. It is not usual to carry boxes of fish into such chambers for anything.\r\nBut by far the most important fact consideration was that whether or not the appellant carried the boxes from the beach into the house or hired and paid prosecution witnesses for the job were issues of fact to be determined by the trial judge, and when he who had the advantage of seeing and hearing the witnesses as they gave evidence had come out with a finding of fact on those vital matters, and concurred in by a first appellate court, then a second appellate court like this court must be very slow indeed to interfere with the findings of fact so made; unless it can be demonstrated that the findings if facts were perverse as lacking any credible evidential support.\r\n \r\n-	9\r\nIn a brazen effort to avoid detection, was the fact that the chamber was covered with a mirror, so that behind the façade of a mirror, was the chamber in which were hidden boxes containing the noxious substances. There was evidence the appellant drove the van containing the boxes from the beach, carried some of them himself, hired others to do it for him and paid them for their labor. He who does anything through others does it himself. Whichever way one looks at it, either actually or constructively, the appellant was found to have possessed the boxes and known their contents at one stage or the other.\r\nIt was settled it was not sufficient for the prosecution to prove only physical handling of the substance but equally important was this coupled with knowledge of the nature and quality of what was possessed. Knowledge, in this context, was akin to what was requisite for stolen goods under section 147 of the Criminal Code, 1960, Act 29. To constitute an offence under the section was proof of the knowledge that the property in question was obtained or appropriated by an offence and the issue was how that was proved.\r\nIn Republic v Bayford [1973] 2 GLR 421, the court said guilty knowledge was largely a matter of inference from the circumstance and on the merits of a particular case; the nature of the property was important. It is not derogatory of evidence to say it was circumstantial; it is often the best. In cases of this nature such as we are considering in this appeal, seldom does an accused admit or confess this all important knowledge. It is often inferred from the circumstances, albeit not in a rash manner. Care ought to be and is often taken that the evidence must support the inference. The parameters are well circumscribed and adumbrated in the local locus classicus on the subject, namely, State v Anani Fiadzo [1961] GLR 416where the Supreme Court held at page 418 that:\r\n"Presumptive or circumstantial evidence is quite usual as it is rare to prove an offence by evidence of eye-witnesses and inference from the facts may prove the guilt of appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt. A conviction must not be based on probabilities or mere suspicion."\r\nIn the celebrated case of R v Onufrejcyk [1955] 1 QB 388, it was said in further explanation of circumstantial evidence that\r\n \r\n10\r\nthe accuracy of mathematics. It is no derogation of evidence to say it is circumstantial."\r\nThus, a judge is permitted to infer from the proven facts, other facts necessary to complete the elements of guilt or to establish innocence. It is not permissible to castigate a judgment simply because it was founded on circumstantial evidence as was done by the counsel for the appellant.\r\nA close study of the evidence revealed that there was more than sufficient evidence to support the findings of fact by the trial court so that the first appellate court was perfectly right in affirming them.\r\nThe evidence showed the role played by the appellant in the saga which may easily win laurels in any annual best film award contest as recounted above (by which he first drove the vehicle that transported the boxes from the beach with he himself carrying some of the boxes, hiring and paying others to assist him in so carrying the boxes upstairs for hiding and hiding them in that compartment in the wall), were acts suggestive of one fact, namely that he knew he was handling an obnoxious substance, and as it turned out to be, cocaine. The appellant before us played a pivotal role in the affair.\r\nWe do not entertain the least doubt the trial court was right in its findings of fact concerning him. The first appellate court was equally right in affirming the trial court in finding the appellant guilty, convicting him and sentencing him according to law. The ground of appeal that the judgment was against the weight of evidence finds no merit and is therefore dismissed.\r\nThe ground of appeal against sentence can be disposed of in only a few words: it did not carry merit for it was adequate under the circumstances. The trial court considered a lot of factors before passing sentence on the appellant. He said even though he was not obliged to give reasons for his sentence:\r\n"But taking into consideration the method or design of the mode of importation of the offending drug — cocaine into the country and by the very huge quantity of the drugs brought in and the modus operandi of all the accused persons in this case, they appear to be leaders or grand masters for the distribution of this condemned drug in Ghana and elsewhere."\r\nWhere the trial judge got that information or evidence from about the distribution of the condemned drug in Ghana so as to make that damning sweeping statement about the accused persons was not indicated and certainly was not disclosed in the entire evidence. Excluding that statement from that part of the judgment for this reason, it could be said the trial judge was right in taking these factors into consideration in sentencing the appellant. In fact, sentencing either after conviction in a trial of first instance\r\n \r\n11\r\nor, on appeal, is a matter entirely within the discretion of the judge or the court. The factors a court would consider in determining the length of\r\nsentence are stated in Kwash/e v The Republic [1971] 1 GLR 488 at 493, LA\r\nto be:\r\n"(1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally;(5) the sudden increase in the incidence of the particular crime: and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed. Thus a judge in passing sentence may consider the offence and the offender as well as the interest of society".\r\nWhere an appellant complains about the harshness of a sentence he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country see; also what this court said in a\r\nsimilar situation in Hodgson v The Republic (supra).\r\nHowever one looks at it, counsel for the appellant did not make any submissions on the ground of appeal against sentence and it is deemed he abandoned that ground sub silentio; other than that, that ground is without any merit and is therefore dismissed.\r\nConsidering all this, we find no good reason to disturb the sentence on the appellant by the Court of Appeal, and think it was even on the low side and should have been increased.\r\nIn conclusion, we hold that the judgments of the lower courts were impeccable, for the evidence amply supported the finding of guilt and conviction for possession of the drug by the appellant. The sentence ought to be and is hereby affirmed; we also affirm their decision and dismiss the appeal as it failed entirely.\r\n3. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\nW. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n\r\n12\r\nS. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\nDR. S. K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\nN. S. GBADEGBE JUSTICE OF THE SUPREME COURT\r\nCOUNSEL: \r\nK. ADJEI-LARTEY FOR THE APPELLANT.\r\nASIAMAH SAMPONG P. S. A. FOR THE RESPONDENT.\r\n\r\n\r\n', '../links/cases/Document (213).pdf', 'Yes', 'BROBBEY JSC, DATE-BAH (DR),J.S.C,ANSAH JSC, GBADEGBE,J.S.C', '2010', 'supreme', '<i><b><font face="Times New Roman" size="3">Criminal law - Possession of Narcotic Drugs - Narcotic Drugs (Control,Enforcement and Sanctions) Law,PNDCL 236,1990 s.56 - Whether PNDCL 236 created strict liability - Whether appellant had requisite mens rea - Whether second appellate court could interfere with concurrent findings of lower court.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Criminal', '', 'J3/3/2009', '', '', 'supreme', '2010-12-08', ''),
(564, '1. REBECCA GYAMFI\r\n2. ERIC MANU BOAFO  ---  PLAINTIFFS/RESPONDENTS\r\nVRS\r\nADU ESQ.\r\nANAJI  ---  DEFENDANT/APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE COURT OF APPEAL\r\nACCRA, A.D. 2011\r\nCORAM: S. MARFUL-SAtJ, J.A (PRESIDING)\r\nSENYO DZAMEFE, J.A\r\nDENNIS D. ADJEI, J.A\r\nSUIT NO. 111/155/10 27TH OCTOBER, 2011\r\n\r\n	\r\n\r\nCivil Practice and Procedure - Application to set aside default judgment - Whether defendant''s affidavit in support and supplementary affidavit disclose triable defence - No automatic right to set aside judgment but must demonstrate to court credible defence against claim.\r\nJUDGMENT DENNIS D.ADIEI (IA)\r\nOn 911, June2009 the High Court,Sekondi gave final judgment in default of defence in favour of the Plaintiffs/Respondents to recover the sum of GI-Je 15,500.00 with interest at the current bank rate from July 2003 to the date of final payment. On 2711, July 2009, the Defendant/Appellant applied to the High Court to set aside the default judgment entered in favour of the Plaintiffs and a further order adopting the statement of defence filed out of time. The Defendant''s\r\n \r\napplication to set aside the judgment in default of defence was dismissed by the trial High Court for failing to disclose any triable\r\nissue.\r\nOn 29th October, 2009, the Defendant/Appellant being dissatisfied with the ruling of the trial High Court which refused to set aside the default judgment, appealed against it to this Court.\r\nThe brief facts of this appeal are that the Plaintiffs/Respondents instituted this action against the Defendant at the I Ugh Court, Setwitch\r\nfor the following reliefs:\r\n"1. Recovery of the sum of GIR15,500.00 being monies advance to the Defendant by the 1st Plaintiff for the purchase of a house which\r\nthe Defendant sold to another person and has refused to refund\r\nthe money despite repeated demands for same.\r\n2. Interest at the prevailing hank rate from June 2007 to the date\r\nof final judgment".\r\nThe writ of summons was accompanied by seven (7) paragraph\r\nstatement of claim.\r\nThe efforts by the Plaintiffs to serve the Writ of Summons and the Statement of Claim on the Defendant personally failed as the Defendant could not be located. On 21st April, 2009, the Court granted\r\nan application Ex-parte for substituted service of the Writ of Summons and the Statement of Claim on the Defendant. The notices were posted\r\n \r\nas ordered by the trial Court. On 5tII May, 2009, (he Defendant entered appearance but failed to file his Statement of Defence. On 2811, May, 2009, the Plaintiffs flied notice for judguieiit in default of defence and was duly served on the tlieii lawyers for the 1)ekmdant on that vety date. The Defendant fiuled to file his Statement of Defence and fhiled to appear in Court on the return (late. The trial I 11gb Court therefore entered judgment for the Plaint 11Th for the reliefs endorsed on [heir writ of summons. On 1 GIII June, 2009, the entry ofjiulgment was served on the Defendant personally. The Defendant''s house was subsequently attached by the Sheriff of the trial I ugh Court upon (he writ of lien faeias filed by the Plaintiffs. The Defendant in his el fbrt to abate the execution process, filed the motion to set aside the judgment ill (lefault of defence and for a Ilirther order adopting the statement of defence flied by him on 271'' July, 2009.\r\nThe three (3) grounds of appeal filed by (lie Defendant are as follows: - "a) That the ruling is against the weight of the affidavit evidence.\r\nH That the affidavit of the Defendant raised triable issues and the trial Court erred in not granting the Defendant leave to defend the action.\r\ne) That it was the Defendant''s ease that time was the essence of the contract and that by failing to complete within the stipulated time, the Plaintiff''s caused loss and damages to the De!bndant a ground which the trial Court fniec1 to appreciate-,\r\nThe Defendant indicated Ins intention to file additional grounds of- appeal but did not file any.\r\n \r\nThe import of Defendant''s grounds 1, 2 and 3 of the appeal is that the ruling is against the weight of the affidavit evidence as there are triable issues. By this the defendant is saying that the affidavit in support of his application filed on 1401 August, 2009 and the Supplement my Affidavit filed on 25th August, 2009 disclose triable issues and the judgment should be set aside on such terms as the Court thinks just. Order 13 Rule 8 of the High Court (Civil Procedure) Rules C.I. /17 provides for the circumstances under which judgment obtained in default of defence tinder Order 13 of C.I. 47 could be set aside or varied.\r\nOrder 13(8) of C.I. 47 provides as follows: -The Court may, on\r\napplication by a party affected and on such terms as it thinks just set\r\naside or vary any judgment entered in pursuance of this order."\r\nThe it-latter for consideration is whether or not the Defendant''s Affidavit\r\nin Support and the Supplementary Affidavit disclose a triable defence. If they do not, then, it will not be just to set it aside but if there are triable issues(s), it would be just to set it aside subject to the award of costs to compensate the Plaintiff. The application to set aside default judgment should be refused except in cases where there are no triable issues. Due to the high rate of illiteracy in the country particularly as to knowledge in law, it would not be fair to refuse to set aside default judgment on the ground that he failed to take advantage of the rules and equity will not avail the indolent. In the case of Conea Engineering (Ghana) Ltd. vs. Moses [1984 - 86] 2GLR 31 ) at 328, this Court\r\n \r\nspeaking through Apaloo CJ (as lie then was) had this to say when a Judge is confroiited with an application to set aside a (lel2IlIlt judgment.\r\n"I think the modern approach to judgnient, by default which the New Brunswick and Kok l-h)ong eases typify is a more suitable weapon of achieving the ends of justice and should be lollowed in this country. If a judgment by clelatult does not necessarily preclude (lie parties ill a highly literate and sophiscated society 111cc England because the defendant may have been ignorant. or negligent or iridi ffernt in the former action it must be a !ortiori in this coimntiy where the level of literacy and sopiiiscation is much less than in England."\r\nLord Atkin ill	I louse of Lords case of Evans vs. l3artlam [ 1937J AC\r\n473 ill down the principle upon winch default judgment could be set aside held thus: "The Courts, however, have laid down for themselves rules to guide them in the nornial exercise of their discretion. One is that where the judgment was o])Uunedl regularly, there must he an affidavit of merits, meaning that the applicant must produce to (lie Court evidence that he has a pi-iiiia facie defence." This Conrt in the case of Quarnryne vs. Afeyesi and Others [1981 - 861 2 GLR 430 quoted the above case with approval.\r\nI have carefully examined the deposition contained in paragraphs l- 17 of the deFendant''s Affidavit ill support of his application as well as the supplementary Affidavit filed on 25th August, 2009 and I arn satisfied that they do not raise triable issue to make it just for the Court to set aside the judgment.\r\n \r\nI am not satisfied that the defendant has been able to prove by his affidavit that the GI-K=10,000.00 was a deposit anti there was """"a condition in the agreement that if there is a breach on the part of the Plaintiffs they could forfeit it. Furthermore, he could not satisfy me that time was of essence and it was the defendant who breached the contract. The defendant by his paragraph 16 of his affidavit in support deposed that if he had forfeited the deposit for breach of contract. To rue, the Defendant has taken the law into his hand. The Contract Act, Act 25 does not say that security money or inoncy placed with a person as earnest money or security for the performances of a contract is forfeited by the depositor. Counsel for the defendant relied on the English case (House of Lords) of Mayson vs. Clouset and Another [1924] JC 980 and urged the Court to hold that the GIRI0,000.00 paid to him by the plaintiffs was a deposit and should be forfeited as it was the plaintiffs who breached the contract. If Counsel for the defendant had adverted his mind to the decision of Cotton L.J. and f3ornen L.J. at page 986, he would not have impressed upon this Court to accept his position. Whether or not the deposit or the part payment would be forfeited if there is a breach on the part of the contract must be a condition in the agreement or the contract. Their Lordships held thus: "the question as to the right of the purchaser to the return of the deposit money must, in each case, be a question of the conditions of the contract".\r\nThe defendant did not say that it was a condition in the oral agreement\r\nthat if there was a breach of the contract emanating from the plaintiff,\r\nhe was going to forfeit the sum of GH010,000.00. The defendant''s case is\r\n \r\nthat the plaintiffs have breached the contract and that he has forfeited the part payment or the deposit. It is not the position of the law and if the judgment is set aside and he is coining to rely oil this wrong proposition of the law, it would be unjust to the plaintiffs.\r\nA default jiidgrnenti should always he set aside where the defendant demonstrates that he has a good defence through his Affidavit. Where the defendant is relying or wrong proposition of the law to set aside a judgment as in the instance ease, it will not sei-v(, any tisehil purpose to set it aside. In the instant appeal, the defendant has fiuled to demonstrate loth and/on either the facts or law that he has a defence and the appeal should be dismissed.\r\nI am not oblivious of the ratio in the ease of Evans vs. l3arlanx (Sripra) which is to the effect that unless and until the Court has proiioiincecl a judgment. upon the merits by content, the Courts 5110111(1 not use rules of procedure to shut the door of justice. Iii this case, the appeal is being dismissed not by technical or procedure errors committed by (lie defendant before the trial Court but simply he has not got any defence to the plairitifi''s action.\r\nIt would not serve any useful purpose to set aside tI ic jil(lglnent as the defendant has huled to disclose that lie has any triable issue for the Court to consider.\r\nThe appeal is dismissed as unmeritorious and (lie judgment of the 1-ugh Court dated 22-1 October, 2009 is affirmed.\r\n \r\n- -\r\n„ 0\r\nDENNIS D. ADJEI JUSTICE OF APPEAL\r\nMARFUL-SAU, JA: This is an interlocutory appeal from the ruling of the High Court Selcondi, dated the 22ml October, 2009. In that. ruling the trial I ugh Court refused to set aside a judgment in default of defence entered for the plaintiffs/respondents to recover an amount of GIIC 15,500.00, from the defendant/appellant. The respondents on the 20,1, of March2009 issued a writ against the appellant for the recovery of the above sum and interest thereon from June 2007 to date of final\r\npayment. According to the respondents the money was advanced by the first respondent to the appellant Epr the purchase of a house, which the appellant sold to another person. The appellant refused to refund the amount paid hence this action.\r\nFrom the record of appeal the writ was served on the appellant through substitution, to which an appearance was entered on 5th May, 2009. The respondents then filed a motion for judgment after the appellant failed to file a defence within the time prescribed by the rules. This motion was served on counsel for the appellant, but at the hearing there was no affidavit in opposition and appellant and his counsel were absent. The court thus rightly entered judgment in default of defence against the appellant for the reliefs endorsed on respondents'' writ of summons.\r\nOn the 27th ,July 2009, the appellant filed a motion on notice to set\r\naside the judgment entered against him. The motion was opposed by\r\nthe respondents and same was dismissed by the trial court on the 22"\r\n \r\nOctober, 2009. Through this appeal the appellant is urging this court to reverse the ruling of the trial court, the reason being that he has a defence to the respondents.claim. Appellant bled three main grounds of appeal and argued all the grounds together in his statement of case. The law is trite that a party, against whom default judgment has been entered, has no automatic right to set aside the judgment, even though such applications have no time limit. Such a party has to demonstrate to the court that hc- has a credible defence in law against the claim. See Quarmyne v. Afeyesi (1984-86) 2GLR 430,CA.\r\nThe courts at common law have always reserved the discretion to revoke default judgments upon the showing, that a reasonable defence do exist against the plaintiff''s claim In EVANS v. 13ARTLAM (1937) AC 473, HL, Lord Atkin delivered at 480 thus:-\r\n"The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure."\r\nIt was therefore the duty of the appellant to demonstrate at the hearing of the motion that indeed he had a reasonable defence in law to the respondents claim. This the appellant could have done in the affidavit that supported his application. I have read the affidavit filed by the appellant in support of his motion and what the appellant seemed to rely on as a defence is an allegation that the respondents delayed with the payment of the agreed purchase price and for that matter breached\r\n \r\n\r\n \r\nthe contract of sale. The question is can this be a credible defence to\r\nthe respondent''s action to recover the amount paid which the appellant never denied? Clearly, I think the appellant could not hide under the\r\nalleged breach of contract of sale as a ground to forfeit the amount paid to him. Indeed, if the respondent failed to pay the purchase price within the alleged agreed period the cause of action opened to the appellant was not to forfeit the respondents'' money; but to sue for damages for breach of contract.\r\nParagraph 16 of the appellant''s affidavit in support of the motion to set aside the default judgment gave the appellant away. It reads as\r\nfollows:-\r\n"16. That I pointed out that they had seriously injured me in my business and that I was going to forfeit the deposit for breach of contract because if they had paid as promised I\r\nwould be free of debt."\r\nFrom the above averment appellant''s refusal to refund the amount paid him by the respondents was not that it was agreed that the payment of GEC 10,000.00 was to be a deposit guarantying the performance of the contract, as argued by his counsel, and thus not refundable. Rather it was an arbitrary decision which must be deprecated since such unilateral acts leads to anarchy and lawlessness; and no court mindful of doing justice would countenance such acts of self help. The English case of MAYSON v. CLOUET and Another (1924) AC 980 cited by counsel for appellant is distinguishable from the instant case in the sense that in that case the parties expressly agreed that deposits were to be forfeited.\r\n \r\nI have carefully read the affidavit in support of the motion to set aside the judgment and I do not see any credible defence in law raised therein in contest to respondents'' clairn to recover the amount paid for the house, which was sold to another person by the appellant. 11 the claim that the payments were delayed is even found to be credible appellant''s remedy will be in damages for breach of contract but not the arbitrary act to forfeit the amount paid.\r\nFor the reasons expressed above I also agree that this appeal should fail, to hold otherwise will amount to unjust enrichment by the appellant.\r\nMARII.JL-SAU -\r\nJUSTICE OF APPEAL\r\nSENYO DZAMEFE, J.A	I agree	SEN''PO DAMEFE JUSTICE OF APPEAL\r\n \r\nCOUNSEL\r\nMR. !SIIMAI3L C. CARSON FOR THE DEFENDANT/APPELLANT MR. EMMANUEL AVI''H UR FOR TI-JE PLAlNTIFFS/RESlQNDF9NT\r\n', '../links/cases/Document (214).pdf', 'Yes', 'SENYO DZAMEFE,J.A, DENNIS D.ADJEI,J.A', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Civil Practice and Procedure - Application to set aside default judgment - Whether defendant''s affidavit in support and supplementary affidavit disclose triable defence - No automatic right to set aside judgment but must demonstrate to court credible defence against claim.</font></b></i><br>', 'S. MARFUL-SAU,J.A', 'Civil', '', 'HI/155/10', '', '', 'appeal', '2011-10-27', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(565, 'F.K.A. LIMITED  ...  PLAINTIFF/RESPONDENT\r\nVRS\r\nADJEI BOADI  ...  DEFENDANT/APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE COURT OF APPEAL;\r\nACCRA - AD 2010\r\nCORAM: ABBAN (MRS) J.A (PRESIDING)\r\nDUOSE, J.A\r\nOFOE, J.A\r\nH1117012010 17TH NOVEMBER, 2011\r\nF.K.A LIMITED -----¬ PLAINTIFF/RESPONDENT VRS\r\nADJEI BOADI	-------DEFENDANT/ APPELLANT\r\nLand Law - Compulsory Acquisition - Whether government commitment to release land to Weija Stool gives capacity to alienate lands - No revocation instrument - Whether court is entitled tofindfraud even if not pleaded - Whether defendant can challenge ownership to land belonging to someone else.\r\nJUDGMENT\r\nABBAN (MRS), l.A.: This appeal emanates from a judgment of the Land Division of the High Court, Accra, dated the 2911, October, 2009. The judgment went against the defendant (herein referred to as the Appellant) and being aggrieved, he has appealed to this court.\r\nThis case has no complexity as to the facts put before the trial High Court Judge. It is a case of two entities - one an individual and the other a company purchasing land from the same stool under different circumstances. The plaintiff''s Managing Director claims he acquired the land from the Weija Stool. He got the\r\n \r\nland by way of customary grant in year 1980. Subsequently, he\r\nrequested that all documentation in respect of the lands he\r\npurchased should be prepared in the name of the plaintiff\r\ncompany, PICA Ltd. This was done in May 1998 and the\r\ncompany was given an indenture which it claims it got registered. Because of defendant''s trespass on the land, it sued him claiming -\r\na	Declaration of title to all that piece or parcel of land situate lying and being at New Weija, Accra containing an\r\napproximatd area of 95.104 acres more orilcss bounded on the North-West by proposed road measuring 28991.7ft more or less on the North-East by a proposed road measuring 2656.39ft. more or le on the South-East by the source land measuring 1889.3911. more or less On the South-West by thc source land .measuring 2068.55ft. more or less.\r\nCieneral damages for trespass\r\nSpecial damages of (1:300,000.00\r\nPerpetual Injunction restraining the defendant, Ids agents, assigns and workman froin further dealing with pltintiff''s land.\r\nl''he defendant on the °tiler liand (2hums that mitt illy In bought the land frorn the stool of Amnnfrom in 1999. Aftel- purchase and planting corner pillars, 11c travelled out of tile counti-y only to come back to realize on his /-eturn that the land did not 1)clong\r\n2\r\n \r\nto the Amanfrom stool but to the Weija Stool. lie was advised by tlic Amanfroin Stool to see the Weija Stool since their ownership of the land had been confirmed. After consulting the Weija Stool, they agreed and made a grant to him of the kind, lie claims to have partly developed the land given him by building thereon. Whilst accusing the plaintiff of forgery for causing to be prepared a site plan which wrongly covers his land, he also now believes that the land, iftei ill, did not and does not belong to the Weija ''tool but to the Government of Ghana. He got this information when he subsequently made a search at the Lands Commission With this seat eh result he has a eotmteielairn asking for the court to declare the 16th May Indenture plaintiff got Li orn the Weij m Stool null and void and order the cancellation of this indentui e I must mention that at the trial court, the defendant queslioned the capacity  of the plaintiff to issue the writ on the grounds that the land, by the plaintiff''s own pleadings shows that the plaintiff does not own the land. Capacity to sue should rather be in the plaintiff''s managing\r\ndirector personally and not time plaintiff company The trial judge upheld the capacity of the plaintiff company to sue and granted it ill its reliefs except that for the special damages. It granted the p1 tintiff Ght 5000 general damages\r\nThe defendant questions this judgment of the trial judge and has inounled appeal against the judgment on six (6) grounds which I\r\nquote hereunder:\r\n"U		The learned ti tat judge erred in law in holding that tn\r\nspite of the (onLpulsonJ acquisition of the disputed\r\n \r\n3\r\n \r\nland by the government of Ghana and (sic) Weija Stool\r\nmade a valid grant to the plaintiff\r\nThe learned trial judge erred in holding that the\r\ngovernment of Ghana had given the disputed land\r\nback to the Weija Stool.\r\nThe learned trial judge erred in failing to hold that  the plaintiffs acquisition of the disputed land is fraught with fraud.\r\nrl''he learned trial judge erred in holding that thc plaintiff has capacity to maintain its action. \r\nThe learned judge erred in 	dismissing the cow derel ail n.\r\nThe judgment is against the weight of the evidence."\r\nOn the first ground of appeal which relates to the government acquisition and ownership of the land in dispute, the evidence cannot be doubted that the land is government kind acquired under E.I.60 but then government had taken a firm decision to return some of these compulsorily acquired lands to the original owners. Several administrative meetings have been held at high government levels which resulted in a press release by the then Minister for Lands on the 811) of October 2008. As a follow up, the Survey Department has been directed to conduct a c.idastral survey, the cost to be borne by the affected traditional owners, including the grantor of the pLirties i.e. the Weija Stool. Indeed\r\n4\r\n\r\n \r\nthe evidence is that they have paid for the preparation of the cadastral survey. On the basis of this evidence, the trial judge concluded that even though technically the executive instrument covering the compulsorily acquired lands had not been revoked iii reality, the government had released the land to the original owners and therefore the Weija Stool had the competence to grant the lands to the parties and that sine the disputed land had been granted earlier by the Stool to the plaintiff, on the principle of neino dot good non Iwbet, the Stool was completely divested of this disputed land and it had no capacity to grant the saint land to the defendant Counsel for the appellant dis igi ees with this reasoning He submits forcefully th it in so ftir as the executive instrument has not been revoked, the WcJja Stool can have 110 title to pass to anybody, not even his own client, the defend mt From the reasoning of counsel it appears cli it to mu that lit is not enthused with thedistinction the Urn] judge sought to draw between the land i dc iseci "in reality" to the original owners and "teetirucal" non revocation of the executive instrument. To him the hinds are still government lands and nobody c in give valid title than the govei nmcnt lie relics on the cast oh Memuna Moudy vrs Antwi (2003-2004) S C G L R\r\n967\r\nCounsel for the respondent contends otherwise. lit is strongly of the view that the corresponcicnce. correspondence. by the govul nnient, including the press release, clearly indicating the coinmitmunt of government to release the lands is suffh tent giouncls to support any sales made of these lands by the traditional owners, in this case the Weija Stool I have i e id Exhibits E, 1, G and there is a reason son disagi ceing with i the plaintiff''s position that there is the\r\n	\r\n \r\ncommitment to release some of these compulsorily acquired\r\nlands to the traditional owners. These exhibits are deliberations, a report and the press release. But the important question is\r\nwhether such commitment should he sufficient to vest the title of\r\nthese lands in the Wcija Stool to give it capacity to alienate these lands? In other words is an administrative decision suffiCient to re-vest these government lands to the original owners?. Mernuna Moudy vrs. Antwi (supra) does not appear to support an affirmative tinswer to this question. The underlying reasoning in that case that it relates to government acquired lands is that it is\r\nonly the government who has the capacity to -deal with such compulsorily acquired lands.	The press :reletise Exhibit\r\nprovides at its first page, last paragraph that:	.	.\r\n''1 he ministry met with the chiefs and. elders of La, Ac/cola,\r\nOgbojo Mpelmasem, NUUTILO Nirl.Ultic- family. Government\r\nhas agreed with the land owners thatthe portions to be released would be in lieu of compensation for the pot lion be retained by government.J (empfrasis mine).\r\nFrom this ptirag,raph it is clear that the portions to be released to the traditiontil owners had not yet been finalized for the stools to know what it -ea of land has been released to them. And this is where the importanee of the revocation instrument becomes important. For it is in such instrument that the lands ICICLISCC1 will be explicitly stated. It may be difficult for the government to resile from this position it had taken to release some of these kinds to its original owners, especially when it had got the respective Stools to -pay for cadtish-al survey as earlier indictited. The respective stools may have strong legal right to inhibit tiny\r\n6\r\n\r\n \r\nback-tracking by the government. But such right not firmly established yet, it is my view that government commitment we have here in this case should not be sufficient title on which to base any grants yet. It is true that equily considers as done what ought to he done and that there is some sense in concluding that the Wcija Stool by the decision of the government should he highly expectant having sonic of their lands back, but ill circumstances of this case what lands exactly would be returned to them is yet to be known It would be rushing equity too early to the rescue when the circumstances ard not ripe for it. Any purchaser of any of these lands which recordings are in the name of the government does so knowing what risk he is unch i Viking Where the govenunent''s intention to rcicasc these lands come to fruition and there had been purchasers like the parties hclorc this court the stool could he compelled by the principle of feeding the estoppel to perfect he title of tli sc grantees. Until then, the stool has no capacity to grant the disputed lands to any of the parties.\r\nFor the above icasons grounds (a) and (b) of the grounds of appeal would he upheld\r\nThe defend mt''s next complaint Is in respect of the trial judge''s failure to find that the plaintiff w is Ii muduk nt in its cicqUiSiti011 of the land Defendant admits that they did not plead fraud as demanded d by the rules, neither did they give any particulars of the fraud to enable the ipp I lant respond properly during the\r\ntrial He would want to rely oil	case of Aniuzu vrs Oklika\r\n(1998-99) S C G L R 141	Counsel submits that on the\r\nauthot ity of this case whei e the ft aud is clear on the record, the\r\n7\r\n \r\ncourt is entitled to find fraud even if not pleaded. There is no quarrel about the existence of this principle but when should this principle be invoiced should depend upon the circumstances. In the Oklika case the circumstances were such\r\nthat even the devil would cry the loudest fraud, insincerity, unconscionability and in fact thievery. I do not think the same can be said of this ease before us. Let us even look at the fraud the defendant is complaining about. What is the nature of the fraud the defendant is alleging? He is	.\r\n\r\nThat the land was bought in the name of a company that did not exist at the time of purchase. What is fraudulent itbout this? Who was defrauded? Was it the stool that was defrauded or the defendant? Answers to these questions clearly show the weakness in this allegation of fraud.\r\n2		That the respondent changed the site plain in the\r\nindenture executed for ibby the Weija Stool. I will ask the\r\nsame questions again. What is  :Ole fraud find who was\r\n.	.\r\ndefrauded? The evidence on record is that there was indeed a new site plan in the indenture.\r\n		--.	-\r\nAs a consequence, the date of .execution of the indenture and that on the site plans±confliet. But the explanation the respondent gave was that the site plan Ofigimdly in the indenture got tornThecause he had to use this site ph in at the several court attendances that had been his lot sMee purchtttsing\r\n:\r\nlands from the	owners. He therefore had to cause a\r\n.	.\r\nsurveyor to prcpait him another site plan. And that is how come he.: canie.by the new site plan with a new date. With this\r\n \r\nexplanation, I do not think we can talk of palpable fraud on the face of the record to invoke the Olclika principle on finding fraud siio itiotu even if not pleaded. More importantly, there is unchallenged evidence that the new site plan in the indenture is not different in content froiii the earlier one. It is the same in every material particular. I must confess I do not find the fraud like cancer that the appellant is alleging for me to act swiftly as advocated in the ease of West African Dyeing Industry Ltd. vrs. Tanoh (1984-86) 2 G.L.R. 561 at 605 relied oil counsel. We will dismiss this ground of ''appeal Counsel in his written submission ili -indoned his next ground of appeal which qii stioneci tin c II) i( ity of the plaintiff to sue We tiierefon lay tli a ground of appe il to rest.\r\nExamination of the oniniln is ground of appeal, the judgment is against the weight of evidence should dispose of the other last ground of appeal also i.e. the trial judge erred in dismissing their counterclaim.\r\nPlaintiff''s claim is for declaration of title B J da Rocha and Christian Lodoh ill hook, "Ghana Land Law and Conveyancing" have this to ''ay in respect of title\r\n"Title to land is the means by which a person establishes his right to land A person''s title indicates by what means TIE claims to be the owner of land. Title may take the form of possession or it may take the form of document or series of docuiiients..."\r\n \r\n9\r\n \r\nFrom the pleadings of the parties and the evidence led in court each party believes he is in possession and that should protect him against the other. It is each party''s case that he is in possession before the other trespassed on the disputed land. By\r\nthe plaintiff''s pleadings and evidence he is in possession and had made roads and erected electric poles and transformer on the land. It is part of this land the defendant has trespassed on Defendant on the other hand claims that after buying from the Amanfrom Stool he erected corner pillars but subsequently he has put up a building on part of his land. From  the court -atipoitited surVeyör''s repor-ind evidence bcfoitc time c011/ t the conclusion cannot be avoided that the defendant is churning land not captured by his site plan. While the plitintiff''s site ph in agreed with the land on the ground, the defenthint''s site plan puts his land at a place which is different from where he is disputing with the plaintiff. Part of defendant''s cross examination was as follows:\r\n"Q. ''lime two parcels of land are located far apart from each other.\r\nA.	Yes.\r\nQ.	So you will agt-ee	inc that your land does not fall within plaintiff''s land C1CCO7Wing to the exhibit.\r\nA.	Yes."\r\nSo where the defendant is contesting with the i)Itiintiff cannot be what was granted him going by his site plan. But more\r\n10\r\n \r\nimportantly who is and was in possession of this disputed land? Plaintiff''s evidence is that when the defendant trespassed on the land he warned him, but he refused to heed (he warning. He continued to build. The defendant himself said in answer to his cross examination that he came back from abroad and noticed that the plaintiff had walled part of the land. He went to the land but was arrested together with his workers anridst warning shots by aimed policemen to Odorkor Police Station, If he came back front abroad and noticed the plaintiff had w illed part of tlu land, then at what Period did he start putting up his building? This floffFUibè.ddëhbe, shouldH5d il1tdf -1 -1 taken possession of the land. And it is more likely than not that it was because he ignored the plaintiff''s w''-n ning to vat ate the land that the police came to effect his arrust together with his workers. Ihcic is sufficient evidence that it was th plaintiff who was and is still in possession of the disputed land The hackneyed legal principle is that possession by itself gives good title against the whole world except someone having better legal right. Where as\r\nin this case both parties bought front Weija Stool, who T have found has no title to make a grant to any of ftem, the one in possession i.e.  the plaintiff has bc ttei title to the land awaiting anybody who claims to have better title to dislodge him Tile defendant cannot rely on his own strength in the circumstances of this case to challenge thu plaintiff''s possession over the land iii dispute. There is no Principle that will support the defendant, also a squatter, challenging the claim to ownership of the land by the plaintiff on the ground that the land does not belong to the p1 nntiff but to somebody else, in this case the government,\r\nsince hc is not claiming to derive title front	government. Ile\r\nH	I!\r\n \r\nhas no business therefore questioning the documentation of the\r\nplaintiff no matter how erroneous.\r\nFrom the foregoing, we will dismiss this ground of appeal, i.e.\r\nthat the judgment is against the weight of evidence and the cornplaint I ht--tt the trial judge erred in dismissing the defendant''s counterclaim.\r\n''Hie appeal succeeds in part only The reliefs the defendtmt is seeking in this court cannot be granted. The judgment of the trial court cannot be set aside neither can judgment be granted on his counterclaim as he prays from this court.-\r\n\r\n413i3A.-N\r\n( •-)	(trui\r\n•)\r\nJ.A. -1 agi-ee\r\n(41STI __OF_APPI:EAL)\r\nOFOE, J.A. - I also lp-,t-er	V. D 0 &#61550;\r\nPUS TIC D V 144 PEAL)\r\nCOUNSEL\r\n•	MR YAW AWE! AF''fi''RAM FOR DEFENI)ANT/APPEIAANT\r\n•	MR HENRY omccA-TErrEH FO1: PLAINTIFF/RESPONDI NT\r\n12\r\n', '../links/cases/Document (215).pdf', 'Yes', 'DUOSE, JA, OFOE, JA.', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Land Law - Compulsory Acquisition - Whether government commitment to release land to Weija Stool gives capacity to alienate lands - No revocation instrument - Whether court is entitled to find fraud even if not pleaded - Whether defendant can challenge ownership to land belonging to someone else</font></b></i><br>', 'ABBAN (MRS), J.A.', 'Civil', '', 'HI/170/2010', '', '', 'appeal', '2011-11-17', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(566, 'ISAAC KWESI YEBOAH  ...  PLAINTIFF/RESPONDENT\r\nVRS\r\n1. GODWIN AHELE a.k.a. MR.AGO  ...  DEFENDANT/APPELLANT\r\n2. AGNES NARTEY  ...  1ST CO-DEFENDANT/APPELLANT\r\n3. CLIFFORD ARMAH  ...  2ND CO-DEFENDANT/APPELLANT  ', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE COURT OF APPEAL\r\nVsttM 1A\r\nCORAM: MARIAMA OWUSU l.A (PRESIDING) ISAAC DUOSE, J.A\r\nC.J. HONYENUGA, J.A\r\nISAAC KWESI YEBOAH	---- PLAINTIFF/RESPONDENT\r\n \r\nVRS\r\n1.	GODWIN AHELE a.k.a MR. AGO\r\n2.	AGNES NARTEY	-\r\n3.	CLIFFORD ARMAH	-\r\n- DEFENDANT/APPELLANT\r\n1ST CO-DEFENDANT/APPELLANT 2ND CO-DEFENDANT/APPELLANT\r\n \r\nCIVIL APPEAL\r\nSUIT NO: 1-11119212008\r\n DECEMBER 15, 2011\r\nLand Law - Title to land —ss. 166 & 168 Evidence Act, 1975 (NRCD 323) - Photocopy of document good as original - Onus on appellants to properly demonstrate lapses in judgment - Whether trial court relied on forged documents - s.24(1) Land Registry Act, 1962 (Act 122) - Non registration of document and consequences.\r\nJUDGMENT\r\nMARIAMA OWUSU, l.A.\r\nOn 20-9-2005, the Circuit court, Accra gave judgment for the Plaintiff. The court held amongst other things as follows:\r\n"I declare that Plaintiff has title to the land in dispute.\r\nI order the Plaintiff to recover possession of the land in Dispute as described in paragraph 4 of the statement of Claim and containing an approximate area of 0.46 acres.\r\nThe land is inclusive of the land now occupied by the 1st Co-Defendant. I order the Plaintiff to recover possession of the land in Dispute and adjudged to belong to him.\r\n \r\nI order that the Defendant, the 1st Co-Defendant and\r\n•	2nd Co-Defendant, their agents, servants and assigns be and are hereby restrained perpetually from interfering\r\nor intermeddling in any way with the Plaintiff quiet\r\nenjoyment of the land.\r\nCost of 05m (5 million) against Defendant. 05m\r\n(five million) each against each of the Co-Defendants".\r\nDissatisfied with the decision of the court, the Defendants appealed to\r\nthis court.\r\nThe Grounds of Appeal for Defendant are:\r\na. The decision is against the weight of evidence on record.\r\nb.	That the trial judge failed to direct itself in applying an interlocutory ruling as a judgment.\r\nc.	That the trial court relied on forged documents of the Plaintiff which is also not registered to deliver judgment in favour of Plaintiff.\r\n\r\nd.	The trial Judge failed to consider the defence of the Defendant and to recognize his prior possession.\r\ne.	That the trial Judge failed to address issue as to whether land was at Sowutuom or Kwashieman.\r\n'' f. That additional grounds will be filed upon receipt of the record of proceedings.\r\nRelief Sought: \r\nTo reverse the decision of the trial Judge and enter judgment for Defendant.\r\nFor the Co-Defendants the following Grounds of Appeal were filed on their behalf:\r\n1. The judgment is wrong in law.\r\n2\r\n \r\n2. The judgment is against the weight of evidence.\r\n•	3. Further grounds of appeal to be filed when the record of proceedings is ready.\r\nBefore dealing with the arguments canvassed in support or against the\r\nappeal, I would like to give a brief background of the case.\r\nThe Plaintiff at the court below issued a writ of summons against the\r\nDefendant claiming the following reliefs:\r\n1.	Declaration of title to all that piece or parcel of land described in the Statement of Claim and delineated on the plan annexed.\r\n2.	Damages for trespass to the land.\r\n, 3. Recovery of possession.\r\n4. Perpetual Injunction restraining the Defendant whether by himself or agents, or assigns, or servants, etc.\r\nThe Plaintiff''s writ of summons was accompanied by a 15 paragraph Statement of Claim in which he avers that, sometime in 1989, he =acquired a portion of Kwashieman land from the chief of Kwashieman\r\nand the Head of Ahiaku family with the consent and concurrence of the\r\nprincipal members of the said family. Plaintiff avers further that his\r\ngrantor executed a document in his favour which has been stamped at\r\nthe Land Valuation Board as LVB 130/6/2000 and it is the course of ''registration.\r\nThe Plaintiff gave the description of the land as "lying at North\r\nKwashiman-Accra and bounded on the North-East by the lessor''s property ''measuring 277 feet more or less, on the South-West by proposed\r\ntoad measuring "295" feet more or less, on the North-West by Extension Kwashieman Road measuring 80 and 20 feet respectively and on the\r\nSouth-East by lessor''s property measuring 70 feet more or less and\r\ncontaining an approximate area of 0.46 acre more or less".\r\nThe Plaintiff continues that he went into possession after the grant by\r\nplacing corner pillars on the land and entrusted same to a caretaker\r\n3\r\n\r\n \r\nwhen he was travelling abroad. That this caretaker has been farming on the land and clearing same.\r\nIt is the Plaintiff''s case that he returned to the jurisdiction somewhere in 1992 and the land was intact as the caretaker was still farming on the land.\r\nPlaintiff avers further that, sometime in 2000, he put sand and stone on the land in preparation to developing it, and the Defendant went and destroyed them. He therefore reported the matter to the police and also his grantor. In consequence of his complaint, the Sempe Mankralo who is the Overlord of Kwashieman, invited the parties to his palace in an attempt to settle the matter but to no avail. The Plaintiff concluded that, unless restrained the Defendant if allowed to develop the land, it will cause him irreparable loss, as he cannot get a replacement hence this action. See paragraphs 1 - 15 of the Statement of Defence filed on the 3-5-2001.\r\nOn receipt of Plaintiff''s writ of summons and Statement of Claim, the Defendant reacted and filed a Statement of Defence and Counterclaim denying Plaintiff''s claim.\r\nIn particular, the Defendant avers that, the land in dispute is at Sowutuorn and not part of Kwashieman. He avers further that he acquired the disputed land in 1988 from the Sempe Stool and went into immediate possession by fixing corner pillar''s and depositing sand and stone and erecting a wooden structure on the land. The Defendant continues that he had been in undisturbed possession of the land until 1995 when the Abola Piam Family confronted him and after a series of meetings he decided to pay monies demanded from him and obtained documents as the Sempe Stool was dragging its feet in granting him documents. That the Plaintiff used land-guard to demolish his two- ,room building which he intended to use as a block factory.\r\n\r\n \r\nThe Defendant maintains the Plaintiff is not entitled to his claim and\r\n''counterclaim as follows:\r\n1.	Declaration of title to all that piece or parcel of land situate at Sowutuom Accra, and bounded on the North by lessor''s land measuring 114 feet more or less, on the South by Proposed Road measuring 114 feet more or less, on the West by Proposed Road measuring 80 feet more or less, on the East by lessor''s land measuring 80 feet more or less and containing approximate area of 0.21 acre more or less.\r\n2.	Damages for the demolition of Defendant''s building.\r\n3.	Perpetual Injunction restraining the Plaintiff, his agents, assigns, from further dealing with Defendant''s land\r\nAt the close of pleadings, the following issues were set down for the trial\r\nof the suit:\r\na.	Whether or not Plaintiff is entitled to his claim.\r\nb.	Whether or not Defendant is entitled to his counterclaim.\r\nc.	Whether or not Plaintiff or Defendant is in possession of the land.\r\nd.	Whether or not the land the subject matter of dispute, is part of Kwashieman lands or is situate at Sowutuom.\r\ne.	Any other issues arising out of the pleadings.\r\n,At the trial, the Plaintiff testified and called 3 witnesses.\r\nAfter PW2 had testified and been crossed examined, lst Co-Defendant applied and was joined to the suit. She then filed her Statement of\r\nDefence and averred that she acquired the land in dispute from Akotia\r\nOworsika Stool which is also known as Asere Stool in 1986. Co \r\n/\r\nDefendant further avers that the disputed land is situate at Sowutuom at a place popularly called Polo Junction and measures 200 feet x 70 feet. Co-Defendant continues that he gave one of the plots measuring 100 feet x 70 feet to a friend who had since developed it as far back as\r\n4989.\r\nShe continues that she has since developed the remaining plot of land\r\nmeasuring 70 feet by 100 feet as far back as 1999 with people living in\r\n5\r\n \r\nthe said building without any hindrance from Plaintiff or his agents.\r\n•	The Co-Defendant therefore concluded that, the Plaintiff''s action is\r\nstatute barred. See paragraphs I - 9 of the Co-Defendant Statement of Claim filed on the 10-12-03.\r\nThe case then proceeded.\r\nOne Clifford Clottey Armah also applied and was joined to the suit as 2nd Co-Defendant at the close of Plaintiff''s case. He also filed his Statement of Defence denying Plaintiff''s claim. In particular, the 2'' Co-Defendant avers that, he acquired the disputed land from the Akotia Oworsika Stool also known as Asere Stool and that the land in dispute is at Sowutuom at a place popularly called Polo Junction.\r\nHe also described his land as follows:\r\n"bounded on the North-East proposed road measuring 100-0 more or less, on the South-East by Agnes Nartey''s property measuring 200-0 more or less.\r\nOn the South-West by Proposed Road measuringi 00-0 more or less. On the North-West by Kwashieman/ Ofankor road measuring 200-0 more or less\r\nwhich is covering an approximate area of 0.46 acre".\r\nThe Defendant also testified and called 2 witnesses:\r\nPt Co-Defendant testified but did not call any witness. 2nd Co-Defendant testified and called one witness.\r\nAs stated supra, at the end of the trial, judgment was entered in favour of the PlAintiff against the Defendant and Co-Defendants. Defendant''s counterclaim was dismissed hence this appeal.\r\nIn this appeal, the Plaintiff/ Respondent would be referred to as Respondçnt and Defendant as 1st Appellant whilst the 1st Co-Defendant would be referred to as 2nd Appellant. 2'''' Co-Defendant did not file any process in this appeal.\r\n6\r\n \r\n\r\nAt this stage, let me put it on record that the two Appellants did not file 41	additional grounds of appeal as indicated in their Notice of Appeal.\r\nIn arguing the appeal, Counsel for the 1st Appellant on the ground that the judgment is against the weight of evidence on record, submitted that Exhibit A tendered by the Respondent is not the original copy but a\r\nphotocopy.\r\nThis photocopy has the signature of the Chief of Kwashieman superimposed on same. On Exhibits B and C, Counsel submitted that\r\nthey did not show the Respondent''s land. He argued that since the 1st Appellant challenged the Respondent via its Statement of Defence and\r\ncross examination that the land the subject matter of this suit is at\r\nSowutuom, it was wrong for the trial Judge to adjudge that the land is at North Kwashieman without more evidence to support same.\r\nHe submitted further that, Respondent mentioned the root of his title as\r\nthe judgment in Johnny Hansen V. Nii Lartey K. Ahiaku. But the\r\nRespondent never tendered the said judgment in evidence or the judgment plans to show whether the disputed land fell within any judgment plan. He continued that, PW1 admitted the suit is still pending. It was therefore strange for the trial court to rely on the interlocutory decisions to decide the case.\r\n''He referred to Exhibit 1, the document granted the 1st Appellant in 1995 by Abola Piam family and said this tally with the Abola Piam\r\nregistered document Exhibit 2 after superimposition. Counsel then submitted that Exhibit 2 is a registered document with land registration No. AC. 2887A/69. Again thc document being 30 years old, under NRCD 323 (1975) section 130 (2), the trial court erred in failing to give weight it deserved. Additionally, by the evidence of DW3, the area is\r\nknown as Sowutuom in the records of survey department.\r\n7\r\n \r\nCounsel further submitted that the finding by the trial Judge that the\r\nC land is at North Kwashieman without the benefit of any survey plan and superimposition of any document was made in error. Consequently this finding be reversed as the land is at Sowutuom per Exhibit 2.\r\nOn the Ground b:\r\nThat the trial Judge failed to direct itself in applying an interlocutory ruling as a judgment of the court.\r\nOn this ground, Counsel for the 1st Appellant submitted that, the trial Judge errcd when it held that the disputed land is part of Kwashieman lands. Counsel argued that in coming to this conclusion, the trial Judge relied on a customary arbitration ruling in suit No. L14/1982\r\ntitled Peter D. Quartey V. Nii Lartey Kwashie Ahiaku and Johnny Hansen IV. NU Kwashie Lartey Ahiaku which suit is still pending at the time of the judgment.\r\nCounsel for the 1st Appellant submitted that, these cases were only ''mentioned in court, but nonetheless, the trial Judge relied on these decisions in his judgment and came to the conclusion that, the area being claimed by the parties is the same. He submitted this is wrong since the trial Judge is not a surveyor. He should have ordered a superimposition of the respective site plans of the parties to ascertain whether the parties are claiming the same area. Consequently this finding by the trial Judge that the area being claimed by the parties is the same should be reversed.\r\nOn Ground C of the Grounds of Appeal filed, that is;\r\n"The trial Judge relied on forged documents of the Plaintiff which is also not registered to deliver judgment in favour of the Plaintiff''.\r\n8\r\n \r\nOn this ground, Counsel for the 1st Appellant submitted that, the\r\n•	Respondent entered the disputed land for the first time in 2000. He\r\nreferred to the cross-examination of PW2 and submitted that, when the trial commenced, the 1st Appellant was not in court and Respondent tendered photocopy of his document Exhibit A which had the signature of the Chief of Kwashieman superimposed on it. Counsel therefore submitted Exhibit A was prepared in 2000. He invited this court to hold that, Exhibit A is a forged document.\r\nOn Ground d:\r\n"The trial Judge failed to consider the Defence of the\r\nDefendant and to recognize his prior possession"\r\nCounsel for the Appellant referred to the evidence of the 1st Appellant and submitted that there is evidence to show that when 1st Appellant entered the land in dispute, it was bare and he built two-room structure on the land and fenced it in 1998.\r\nCounsel submitted that, if the trial Judge had considered the defence and counterclaim of the 1st Appellant, it will have realised that, the latter waS claiming not through the Sempe nor Asere Stool but through the Abola Piam Twuma ''We'' family. He further referred to Exhibits 1 and 2 and submitted that, these two documents are registered and they form the root of title of 1st Appellant. Consequently, the customary arbitration and the interlocutory decision involving Sempe and Asere Stool should not override the prior possession of the 1st Appellant which ,constitutes 90% of ownership.\r\nThe last Ground, Ground (e) states as follows:\r\n"The trial court failed to address issue as to whether the\r\nland was at Sowutuom or Kwashieman".\r\n\r\n \r\nOn this ground, Counsel for the 1st Appellant submitted that, the trial\r\n• Judge erred when it determined that the land in dispute is situate at North Kwashieman. He argued that, North Kwashieman is not Kwashicman. Therefore any decision about Kwashieman should not be equated with North Kwashieman since the designations of North, South and West are usually used when land is close to a place.\r\ntFurtherrnore the trial Judge not being a surveyor, his visit to the locus without any evidence on record, his statement in the judgment that the place is bustling with economic activities is a none starter since Sowutuom even if it used to be a village in 1960 is also bustling with development and economic activities now. Consequently, the use of economic activity as benchmark to determine where Sowutuom or North Kwashieman is, is rather unscientific and an error in law.\r\n\r\nHe referred to the case of Akoto H & Others V. Kavege & Other (1984/86) 2 GLR 365 and concluded that, in an action for declaration of title the Plaintiff must prove his title or his claim should fail. He continued that since an appeal is a reThearing, he invited this court to look at the entire evidence and reverse the judgment of the trial court based on the decision in Mamudu Wangara V. Gyato Wangara (1982/83) GLR 639.\r\nOn his part, Counsel for the 2nd Appellant after giving a brief fact of the case, stated that 2nd Appellant joined the suit after the Respondent and some of his witnesses had testified in court that the 2-1 Appellant''s case is that she acquired the disputed land from the Oworsika Stool in 1986 also known as Mere Stool and that the land is situate at Sowutuom in Accra at a place popularly known as Polo Junction. That she had since developed her plot by putting a three bedrooms house on the plot and no one challenged her and that she had been living in the said house since 1999.\r\n10\r\n\r\n \r\nCounsel then submitted that the judgment is wrong in law for the\r\nfollowing reasons:\r\n1.	Failing to order a plan to be drawn to identify the proper owner of the land in dispute.\r\n2.	Failing to correctly apply the provisions of Section 24(1) of the Land Registration Act of 1962 (Act 122).\r\n3.	Failing to apply in favour of the 2nd Appellant section 10 of the Limitation Decree 1972 (NRCD 54).\r\n4.	Failing to apply the provisions of the Land Development (Protection Purchases Act) 1960 Act 2 in favour of the 2111 Appellant.\r\nCounsel then referred to a portion of the judgment in contention which mentiond Exhibits 5, 6, 7 and 8 which are judgments of the Supreme\r\nCourt and submitted that, there is nothing in these judgments and or Exhibits to show that the area in dispute forms part of Asere Stool land.\r\n''Counsel then submitted that, the parties tendered their documents of title with judgments to support them. It was up to the court to evaluate the judgMents vis-a-vis the land in dispute before describing them as wild claims. The issue whether the land falls within the Kwashieman lands or Sowutuom could have been resolved by a composite plan. This *issue Counsel submitted, the trial Judge failed in resolving same and\r\nthis failure led to a substantial miscarriage of justice. He referred to\r\nthe Supreme Court unreported case of Civil Appeal No. 5/2001 titled Nana Akwasi Darko V. Nii Allotei Quarshie dated 14-5-2002 and submitted that the trial Judge failed to identify the exact location of the land in dispute either it is on Kwashieman family lands or Asere Stool Sowutuom lands.\r\nOn the failure to apply Act 122 of 1960 section 24(1) thereof, Counsel for the '' 2nd Appellant submitted that the Respondent tendered unregistered document which under the Act referred to supra, should\r\nbe of no effect until it is registered but the trial Judge relied on Exhibit\r\n11\r\n \r\nA to hold that the Respondent is the owner of the land in dispute. •	Counsel cited the case of Amefinu V. Odametey (1977)2 GLR 135.\r\nCounsel also had issue with the trial Judge in relying on the case of Amuzu V. Oklikah (1996-97) SCGLR 141 and submitted that, that decision was clearly dealing with the issue of priority in terms of Section 24 of Act 122 for competing two registered documents.\r\nIn the instant case, the court was dealing with an unregistered document simpliciter and not issue of priority. Consequently, the trial Judge reliance on Exhibit A to grant title to the Respondent is wrong in ''law. He therefore invited this court to allow the appeal on this Ground.\r\nOn the 2nd Ground of Appeal by the 2nd Appellant:\r\n"The judgment is against the weight of Evidence"\r\nOn this ground, Counsel for the 2nd Appellant referred to the writ of summons and submitted that, the Respondent sued only the 1st Appellant and this is an admission of the fact that the 2nd Appellant was not a trespasser on the Respondent''s land. It was after the visit of the court to the locus that the trial Judge asked the 2nd Appellant to join the suit. Counsel continued that, since the 2nd Appellant was not made a party right from the inception of the case, her evidence that she ''only became aware of the suit when the court visited the locus should be accepted as the truth.\r\nAdditionlIy, Counsel argued, the evidence points to one fact and that is, the Respondent does not know the extent of his land, else he would have sued 2nd Appellant. Consequently, the evidence of the 2nd Appellant and the Respondent should have been treated by the court as\r\n \r\nsufficient proof that the 2nd Appellant''s land is at Sowutuom and did not form part of the Respondent''s land at Kwashieman.\r\nHe referred to the case of Dompreh V. Pong & Ors (1965) GLR 126 SC\r\nand submitted that the onus on the Respondent to satisfy the court that title to the land is vested in him was not discharged by merely relying on the weakness of the Defendant''s case. He continued that since the 2nd Appellant has been living in her house between 1986 and 2003, Dc Facto actual possession which she had was in itself proof of prima facie title to the land. Counsel cited Oppong Kofi & Ano. V. Fofie (1964) GLR 174 SC in support of this assertion.\r\nOn section 10 of the Limitation Decree, counsel for the 2n1 Appellant submitte& that there is evidence on record that his client has been in undisturbed possession of the land in dispute since 1986 to 2003 a period of 17 years. That being the case, the 2n1 Appellant acquired a prescriptive title to the land and the Respondent is estopped from bringing the present action to recover the land in dispute from the 2nd Appellant. All these pieces of evidence, Counsel submitted, in the absence of a composite plan go to show that the land in dispute does not form part of Kwashieman lands.\r\nThe last point canvassed in support of the 2nd Appellant''s ease on this ground is that, the 2nd Appellant acquired her land in good faith and put up her building in good faith. The trial Judge should therefore have\r\n,invoked the provisions of the Land Development (protection of purchase'' r) Act 1960 Act 2.\r\nHe referred to the cases of:\r\n1.	Dove Vs. Wuta Ofei (1988) GLR 299, 300\r\n2.	Vanderpuic V. Golightly & Ors (1965) GLR 454 SC\r\nBased on these two decisions, Counsel for the 2111 Appellant submitted that the judgment is against the weight of evidence. He invited us to\r\n13\r\n \r\n''allow the appeal on this Ground and dismiss the Respondent''s claim\r\n•	and judgment entered for the 2nd Appellant.\r\nBased on the foregoing, Counsel invited us to allow the appeal and set\r\naside the decision of the trial court together with the cost awarded\r\nagainst the 2nd Appellant.\r\nIn response to the submissions by Counsel for the 1st Appellant, Counsel for the Respondent submitted that the evidence adduced at the trial supports the findings of fact made by the trial Judge and this court should not interfere with them. Counsel referred to the case of Ababio V. Bekoe 11 (1996-97) SCGLR 392.\r\nCounsel after referring to the respective claim of the parties, referred to\r\nthe 1st Ground of Appeal, i.e.\r\n"The judgment is against the weight of evidence".\r\nOn Exhibit A, Counsel for the Respondent submitted that Exhibit A is a photocopy of the original indenture. The Respondent informed the court that the original copies were at the Lands Commission for the\r\n2\r\nprocessing of his application for registration of his title. At the trial he was not requested to produce the original. Secondly, Exhibit A was tendered;without objection. It is too late in the day for the Appellant to now seelç to request for the original. If the 15t Appellant had issue with Exht A, he should have requested for the production of Exhibit A. Besides, by NRCD 323, a photocopy is as good as the original.\r\nOn the '' issue whether the disputed land is at Kwashieman or Sowutuom, Counsel for the Respondent submitted that, the trial Judge reached a conclusion based on the evidence adduced at the trial, the parties and their witnesses and the Exhibits tendered. On the Respondent root of title, Counsel for the Respondent submitted that, the Respondent never mentioned that his root of his title is the\r\n \r\n14\r\n \r\njudgment of Johnny Hansen V. Nii Lartey Kwashie Ahiaku. He only said he is aware of the said judgment in respect of Kwashieman lands.\r\nCounsel for the Respondent referred to the evidence of Pt Appellant and submitted that, he is not a truthful witness. In that, he cannot obtain a grant of the same piece of land from two different people. He has no valid title as rightly determined by the trial Judge. The reference to two dates of acquisition i.e. 1986 and 1995, according to Counsel is a confusion aimed at getting priority in time over the acquisition of the Respondent.\r\nIn additiàn, Exhibit 2 is not the site plan of the It Appellant. Again, it was not tendered to show that it covered the entire land in dispute. Moreover, the judgment whose plan is Exhibit 2 did not cover Kwashieman and thus was not conclusive on the matter.\r\nOn the point that the trial Judge should have ordered the superimpositions of a plan on the plans by the parties, Counsel submitted that survey plans and superimpositions are supposed to assist a trial Judge to come to a decision. They are not compelling on the Judge. Counsel argued that, the court analyzed the probative value of Exhibit 2 and stated that it could not rely on it in determining the matter.\r\nOn the 2nd Ground of Appeal:\r\n"The trial Judge failed to direct itself in applying Aninterlocutory ruling as aJudgment of a court"\r\nCounsel submitted that, the trial Judge took cognizance of the rulings and judgment in respect of Kwashieman lands and the various descriptions given by the parties to the area where their land is situate and concluded that he accepted the Respondent''s version.	He\r\n15\r\n.:	.:	•.••.••.••••...•.	..\r\n \r\n\r\nsubmitted that, that position of the trial Judge was taken out of\r\n•	context.\r\nOn the 3rd Ground of Appeal\r\n"The trial Judge relied on forged documents of the\r\nRespondent which is also not registered to deliver\r\njudgment in favour of the Respondent".\r\nCounsel for the Respondent submitted that, it is settled law that, proof of forgery or allegation of a criminal act in a civil law is proof beyond reasonable doubt. He referred to Section 13 (1) of the Evidence Decree 1975 (NRCD 323) and the case of Fenuku V. John Teye (2001-2002) SCGLR 985, 1003 and argued that there is no evidence that, the signature is a forgery. Additionally the Ahiaku family denied ''their Head''s signature was forged.'' On the contrary, the successor identified the signature and said he was there when same was put on the document. The effective date is the date the transferor and transferee executed the document. These are the signatures that created the agreement. The Oath of Proof of the signature of the Registrar do not take away the efficacy of the document. Besides, the date of oath of proof and the swearing before the Registrar is always later in time to the date of execution. In any case, Counsel argued the 1st Appellant''s document was also sworn to by the witness of the transferor after the date of alleged execution by the Abola Piam family.\r\nOn the 4th Ground;\r\n"The trial Judge failed to consider the defence of the Defendant and to recognise his prior possession".\r\nCounsel for the Respondent submitted that it is not true, the trial\r\nJudge did not consider the defence of 1st Appellant. He continued that, the defence was hollow, bereft of truth and substance and exposed the 1st Appellant as a trespasser.\r\n16\r\n\r\n \r\n\r\n. On the contrary, the trial Judge evaluated the cases of the 1st and 21x1 Appellants and concluded why he found their case unbelievable. Counsel continued that, 1st Appellant counterclaim is a separate action. The Appellant must prove her counterclaim. He referred to the cases of\r\nHappee V. Happee & Aito. (1971) 1 GLR 104 and Kamara V. Traore (1968) GLR 1009.\r\nCounsel further submitted that, the Appellant pleaded he acquired his land in 1988. When he testified he said he acquired the land in 1995. Counsel then submitted that the 1st Appellant never entered the land in 1988. The pleading was skewed to reflect 1988 to have apparent priority of time over that of the Respondent. The inconsistency in the pleading of the 1st Appellant and his testimony in court only shows that the latter, is not a truthful witness.\r\nFurtherthore, in his pleadings, the 1st Appellant stated he acquired the land from the Sempe Stool. However, in his evidence, he said he bought the land from a citizen of Serape called Nii Samoa. This according to Counsel for the Respondent shows that the I st Appellant is not a truthful witness and his evidence must not be believed.\r\nOn the other hand, the Respondent was able to produce a representative of his grantor to confirm that, it is the Kwashieman people who sold the land to the Respondent, whilst the 1'' Appellant could not produce this Nii Samoa or his representative. Additionally, Exhibit 1'', the indenture tendered by the 1st Appellant as coming from his grantors the Abola Piam family, showed that it is a recently made ,document. To make matters worse, the 211 Co-Defendant said he granted a licence to the Appellant to be on the land.\r\nThe 1st Appellant admitted paying t250,000 to the 2t1 Co-Defendant but said it was a gift whilst the latter insisted it was consideration for the license so granted to the 1st Appellant. Counsel for the Respondent\r\n17\r\n\r\n \r\nfurther highlighted the contradiction in the 1st Appellants case. For 41,	instance, whilst the latter in his evidence said the alleged land given to\r\nhim has a road passing through it, his witness DW2 insisted no road\r\npasses through the land allegedly granted to the 1st Appellant.\r\nAgain, whilst the 1st Appellant said there was no sand and stone when he first went onto the land, DW1 admitted in cross-examination there were trips of sand and stone on the land when it was allegedly demarcated to the 1st Appellant.\r\nOn Ground 5;\r\n"The trial court failed to address the issue as to whether the land was at Sowutuom or Kwashieman".\r\nOn this ground, Counsel for the Respondent submitted that, Counsel for the 1st Appellant has criticized the trial Judge''s finding that the disputed land is at North Kwashieman without the benefit of any survey plan and superimposition of any plan was made in error. He argued that, the fact that the trial Judge made a determination on this issue shows that he addressed the issue. North Kwashieman suggests that it is part of Kwashieman.\r\nHe continued that, no argument or evidence was led by the l st Appellant to show that North Kwashieman is Sowutuom. Counsel concluded that, the trial Judge reviewed all these pieces of evidence and put the necessary weight on ''them. He invited this court not to interfere with the findings of the trial Judge. He cited the cases of Ababio V.\r\n,Bekoe II (1996-97) SCGLR 618 and invited this court to dismiss the appeal of the 1st Appellant as bereft of any merits.\r\nOn the appeal of the 2tA Appellant, after stating the case of the 2nd Appellant, which is that, she acquired the land from the Akotia Stool, otherwise known as the Asere Stool. That she acquired two plots and\r\n \r\n18\r\n \r\nthe land is situate at Sowutuom. That she acquired the land in 1986 •	and had developed one plot as far back as 1999. On the 211d Appellant''s Ground of Appeal which is;\r\n"The judgment is wrong in law"\r\nOn the point that the judgment is wrong in law because the trial Judge failed to order a plan to be drawn to identify the proper owner of the land, Counsel for the Respondent submitted that, the making of the order is discretionary and it is done when the court finds it just to do so. Besides, the evidence of any expert is only to assist the Judge and not to bid him.\r\nAdditionally, none of the party applied to the court to order the drawing of a composite plan. Besides, the 2nd Appellant did not have any document covering her land. She would have lost right from that point if the order had been made.\r\nOn the issue of registration and the application of Section 24 (1) of Act 122, Counsel for the Respondent submitted that, the Respondent led evidence to show that his documents have been sent for registration. Counsel argued that this piece of evidence was not challenged and no contrary evidence was led before the court.\r\nFurthermore, all the documents of title that featured in the case had not been registered and the issue of priority did not arise. The 2nd Appellant and 2nd Co-Defendant themselves did not tender a registered document and it lie ill in their mouth to seek to build a case on registration of title.\r\nOn the issue of Section 10 of the Limitation Decree, 1972 (IVRCD\r\n54), Counsel for Respondent submitted that, same does not inure to the benefit of the 2nd Appellant for the simple reason that, the issue of ,limitation was never raised as a defence. No evidence was led to enable\r\n19\r\n\r\n \r\nthe trial Judge apply the law. The trial Judge therefore was not wrong\r\n•	in relying on same.\r\nOn the Land Development (Protection of Purchase Act) 1960 Act 2,\r\nCounsel for the Respondent submitted same is not applicable to her. He continued that, a person invoking the provisions of the Act must be a person who acted in good faith. Counsel submitted, the 2nd Appellant ''cannot by any definition be a person acting in good faith for the following reason:\r\n1. At the time of the institution of the action, there was no building on the land.\r\n: 2. It was after the injunction that 2nd Appellant started building.\r\n3.	When the 2nd Appellant started work on the land and was confronted, she identified her interest as that of the 1st Appellant.\r\n4.	She hid behind the 1st Appellant when the latter had leave of the court to carry out block making business on the land.\r\n5.	She only joined when she realised that a total restraining order was about to be slapped on her.\r\nBased on the foregoing, Counsel for the Respondent submitted that, the 2nd Appellant acted in bad faith by building the two-room building on the land. That kind of situation is not protected by Act 2. Moreover, the Act is founded on the ground that the person sought to be protected has a defective title. Besides, the Act does not compel the trial Judge but gives it the discretion. Based on the foregoing, Counsel submitted the 2n1 Appellant is not entitled to the benefit of the provisions of Act 2.\r\nOn the Second Ground of 2" Appellant''s appeal;\r\n"The judgment is against the weight of evidence"\r\nCounsel for the Respondent submitted this ground of appeal which was not proved by the 2nd Appellant. He argued that, the Respondent led\r\ncogent evidence to prove how he became the owner of the land and the g\r\novert acts of ownership he displayed. On the other hand, the 2nd\r\n20\r\n\r\n \r\nAppellant and 2nd Co-Defendant were not consistent in their claim and acts of possession of the land. Besides, the 2nd Appellant who was found on the land after the injunction insisted her fortunes are fixed to that of the 1st Appellant.\r\nIn those circumstances, the Respondent was not obliged to sue everybody. Additionally, 2nd Appellant had no document to prove her ownership of the land. The 1st Appellant was not sure who he bought the land from, i.e. whether from the Sempe Stool or Abola Piam family. On the other had the Respondent was consistent in his claim to the ownership of the land. He gave both oral and documentary evidence to support his claim.\r\nBased on the foregoing, Counsel for the Respondent invited this court to dismiss the appeal of the 211t Appellant as well as same is without merit.\r\nOn 26-1-2010, Counsel for the Respondent filed Notice of Intention to Raise Preliminary Objection. The object was to the effect that, the 1st Co -Defend ant/Appellant attached an Exhibit ''SCI'' to his written submissions filed on the 27-62007 which is not permitted by the rules and same ought to be expunged from the record. Exhibit ''SC1'' ''attached to the Appellant''s written submission is a judgment of a court. This is not evidence i.e. new evidence contemplated in Rule 26 of the Court of 24ppeal rules, 1997, Cl 19. This objection is not well founded and same is hereby over ruled.\r\n''From the Record of Appeal, when the Respondent issued his writ of summons on 3-5-2001, he followed it up with an application for an order of Interim Injunction.\r\nIn the affidavit in opposition, the Appellant averred that he constructed a fence wall around the land and also undertook the construction of a two-room structure on the land to use for block\r\n21\r\n \r\nmaking factory but the Respondent caused same to be demolished on\r\n•	two occasions. He attached Exhibits B and C. See paragraph 7 of the\r\naffidavit of Godwin Ahele filed on 24-5-01 at page 23 of the Record of\r\nAppeal.\r\nThe trial court after listening to the arguments of both Counsel and the\r\naffidavits of the Respondent and 1st Appellant, restrained both parties their agents, servants, workmen, assigns from entering upon or\r\nintermeddling with and or developing the land the subject matter in dispute pending the final hearing and determination of the suit. This order is dated 20-9-2001 and can be found at page 41 of the Record of\r\nAppeal.\r\nIn June 2002, the 151 Appellant filed an application for the variation of\r\nthe Order supra. In the supporting affidavit, the 1st Appellant avers\r\nthat:\r\n"That my lease on the land where I operate has expired and I have to pack all my block making equipments from\r\nthe land since the owner of the land wants to use same".\r\nThis application was granted and the trial court varied the order of\r\n!injunction dated 20-9-2002. 1st Appellant was allowed to go back onto\r\nthe land to carry on his block business.\r\nIn his Statement of Defence, 1st Appellant avers that he acquired the disputed land from the Sempe Stool in 1988 and went into immediate possession by fixing corner pillars and depositing sand and stone and erecting a wooden structure on the land. in his evidence under oath,\r\nhe said he acquired a piece of land at Sowutuom in 1995 and deposited sand and stone on it. 1st Appellant continued that sometime in year 2000, the Respondent demolished the two-room structure he had\r\nerected on the land.\r\n22\r\n\r\n \r\nFrom the pieces of evidence of the 1st Appellant and his averments, when the Respondent applied for injunction on the land and the former applied for the variation of the order of injunction restraining the parties, there was no structure on the land.\r\nSecondly, the 1st Appellant from his own showing in June 2002, his lease on the land has expired. The question is from where did the 1st Appellant obtained Exhibit 1? Exhibit 1 is dated 24-2-1995 and the lease granted to the 1st Appellant was for 99 years. See paragraph  of Exhibit 1. In this case, the Appellant counterclaimed for a declaration of title. The position of the law is that in an action for declaration of title, the burden of proof is always put on the Plaintiff to satisfy the court on a balance of probabilities but where the Defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing the case of the Defendant just as was used to evaluate or assess the case of the Plaintiff against the Defendant. See\r\nthe case of Jass Co. Ltd. & Ano. V. Appau & Ano. (2009) SCGLR\r\n269.\r\nThe 1st Appellant''s first ground of appeal is that:\r\n"The judgment is against the weight of evidence".\r\nThe reasons being that, first Exhibit A tendered by the Respondent is not the original copy but a photocopy and this photocopy has the Chief of Kwashieman''s signature superimposed on it.\r\nMy simple answer on this submission is that, Exhibit A was tendered without objection. Secondly, by sections 166 and 168 of the Evidence Act, 1975 (NRCD 323), a photocopy of a document is as good as the original. Thirdly, the Respondent called a member of the Ahiaku family, who incidentally happened to be the successor of his grantor. This witness testified and said the signature on Exhibit A is genuine. He again identified the signature on Exhibit A as that of the late Kwashie Ahiaku and said he was present when the former signed\r\n23\r\n\r\n \r\nand or executed Exhibit A. It is too late in the day for the 1s1 Appellant to raise these concerns.\r\nOn the point that the trial Judge relied on an interlocutory decision to decide the case, it is not correct that the trial Judge relied on interlocutory decisions to give judgment for the Respondent. In his Judgement, the trial Judge said the description of North Kwashieman given by the Respondent''s grantor is more acceptable. This is what he said:\r\n"I believe the description of North Kwashieman given to it by the grantor of the Plaintiff is more acceptable. If the Headman of Kwashieman is appointed by the Sempe Mantse, then the issue as to who controls Kwashieman lands becomes a non issue.\r\nOn Wednesday 21-9-1966, a customary arbitration was held to determine the dispute between the Asere Mantse and Sempe Mantse as to who has the right to install the Headman of Kwashieman. The arbitration panel\r\nheal ded by the late Nii Amugi II, Ga Mantse, decided that, the right to install a chief for Kwashieman falls on the Sempe Mantse.\r\nIt is no wonder that, in suit No. L1411982, Peter D. Quartey Vs. Nii Lartey Kwashie Ahiaku, and Johnny Hansen Vs. Nii Ewashie Ahiaku, His Lordship P. V. Oséi Hwere J.A. sitting as additional High Court Judge refused to grant an interim injunction to restrain Kwashieman Stool then represented by Nii Kwzshie Lartey Ahiaku V. from alienating Kwashieman lands. The same position was taken by his Lordship Armah J. in suit No. L14/82 and L25182 titled Johnny Hansen & Ors. Vs.\r\n24\r\n \r\n\r\nKwashie Lartey Ahiaku & Ors." (The emphasis is mine)\r\nFrom the quotation supra, the trial Judge did not rely on the rulings in the two cases to give judgment. He only mentioned them in passing vis-k-vis the arbitration dated 21-9-1966.\r\nBesides, the description of the land by 2n11 Co-Defendant in his Statement of Defence filed on the 12-3-2004, paragraph 7 thereof supports this finding that the land is at North Kwashieman as the description mentioned one side of the road as being bounded by the Kwashiman/Ofankor road. The paragraph reads:\r\n"The land is bounded on the North East proposed road measuring\r\n100-0" more or less, on the South-East by Agnes Nartey''s\r\nproperty, measuring 200-0" more or less, on the South-West\r\nby proposed road measuring 100-0" more or less, on the North-West\r\nby Kwashieman/Ofankor road measuring 200-0" more or less, which piece of land is couering a approximate area of 0.46 Acre."\r\nAgain 2nd Co-Defendant says he granted 1st Appellant his land even though the latter has denied this. According to DW2, Alphonse Aryeetey, the 1st Appellant asked him to survey his land for him which he did. He said the 1st Appellant did not bring his site plan but he showed him Exhibit 2. This witness admitted under cross-examination that wheb Exhibit 2 was brought to him, the 151 Appellant''s land was not indi&tted on it. He also admitted he did not know the boundaries of the land given to the 1st Appellant. He also admitted there is no road that pass es through the 1st Appellant''s land.\r\nThis is what he said under cross-examination by Counsel for the Respondent:\r\nQ. Before he gave you Exhibit 2, was his alleged piece of land shown\r\non the document? A.	No''\r\n25\r\n\r\n \r\nç. You agree with me that, the alleged land of the Defendant has been clearly delineated on it.\r\nA. Yes\r\nSo the question is, how did DW2 plot 1st Appellant''s land on Exhibit 2,\r\nif he did not know the boundaries of the 1st Appellant''s land?\r\nAgain, Exhibit 2 covers land about 726 acres or 10.467 sq. miles and on it, Sowutuom is indicated as a village in ruins. In addition, the lst\r\nAppellant''s land is indicated by a dot on Exhibit 2 and it is far from\r\nSowutuom, the village in ruins.\r\nIf all these pieces of evidence are put together against Exhibit 1, the ist Appellant''s document granted to him in 1995 which did not include a site plan as his site plan is dated 2001, but even that, he did not give this site plan to DW2 to plot his land on Exhibit 2, then the big question is how did DW2 arrive at the conclusion that, 15t Appellant''s land is at Sowutuom?\r\nAdditionally, the argument that Exhibit 2 is a registered document and\r\nshould have been given weight by the trial Judge is flawed for the simple reason that, if the 1st Appellant did not give the description of his land to DW2, how did the latter come to plot 1st Appellant''s land on\r\nExhibit 2.\r\nThe trial Judge adverted his mind to all these pieces of evidence and ''came to the conclusion he did. In this appeal, the 1st Appellant has not\r\ndemonstrated the pieces of evidence on record that was wrongly applied against him or the pieces of evidence if applied in his favour would have\r\nturned the decision in his favour. See the case of Abbey & Ors. Vs. Antwi V (2010) SCGLR 17, 20-21, holding (4) where their Lordships held amongst other things as follows:\r\n"It was well settled that where an Appellant has alleged\r\nthat the judgment of the trial court was against the weight\r\n26\r\n \r\nof evidence, the appellate court would be under an obligation\r\n•	to go through the entire record of appeal to satisfy itself that\r\na party''s case was more probable than not. Further, the Appellant has to properly demonstrate what lapses he was complaining about (the emphasis is mine)\r\n\r\nFrom the foregoing, grounds a, b and d of the Grounds of Appeal filed are hereby dismissed.\r\nOn Ground C:\r\n"That the trial court relied on forged documents of the Plaintiff which is also not registered to deliver judgment in\r\nfavour of Plaintiff''\r\nI have already held that there was nothing fraudulent about Exhibit A\r\nas the Respondent''s witness identified the signature of the late Ahiaku V. on the document. On the point that Exhibit A was not registered\r\nand therefore same should not have been relied on to give judgment to\r\nthe Respondent. The Supreme Court in the case of Amuzu Vs. Oklikahl (1998-99) SCGLR on registration held that:\r\n"The Land Registry Act, 1962 (Act 122) did not abolish the equitable doctrines of notice and fraud; neither did It confer on a registered instrument a state guaranteed title. Consequently, a later instrument could only obtain priority over an earlier one by registration under\r\nsection 24(1) of (Act 122) if it was obtained without notice\r\nand fraud of the earlier unregistered document".\r\nRelating this case to the case under consideration, Exhibits A and 1 are dated 12-2-1989 and 24-2-1995 respectively. Both Exhibits A and 1 =are not registered even though stamped by Land Valuation Board.\r\nClearly in terms of priority the Respondent''s Exhibit A should prevail\r\nover 1st Appellant''s Exhibit 1. Secondly, the 1st Appellant denied seeing\r\nany trips of sand and stone on the land but his witness DW1 who\r\n27\r\n\r\n \r\nclaimed he was among the persons who demarcated the land for the 1,1\r\nAppellant''s said he did not know how many trips of sand or stone were\r\non the land.\r\nThis implies that there were some trips of sand and stone on the land and this constitutes notice. This ground of appeal too has not been\r\nmade out and same is hereby dismissed.\r\nThis brings me to the last Ground of Appeal;\r\n"This trial court failed to address the issue as to\r\nwhether the land is at Sowutuom or Kwashieman"\r\nI have already held that Exhibit 2 which the 1st Appellant is relying on to say that the disputed land is at Sowutuom does not support his\r\ncontention. The reason being that, on the face of Exhibit 2, Sowutuom is indicated as a village in ruins. Secondly, the village in ruins is far\r\nfrom the dot that is said to be the 1st Appellant''s land. This dot has no dimensions. Thirdly, DW2, the surveyor who plotted the 1st Appellant''s land on Exhibit 2 said he did that without a site plan and also he was not shown the boundaries of the 1st Appellant''s land.\r\nBesides, whilst the Respondent''s 1989 indenture was accompanied by a site plan,t the 1st Appellant''s indenture of 1995 did not have a site plan. Then there is the evidence by 2nd Co-Defendant that he granted the\r\nland in dispute to the 1st Appellant for the latter to operate his block making factory and that the latter paid him 4250,000 for the licence so granted to 1st Appellant. 1st Appellant admits paying t250,000 to the 2nd Co-Defendant, but says it was a gift. Not only this, 1st Appellant\r\nsaid he first acquired the land from the Sempe Stool which Stool is the\r\nOverlord of Kwashieman.\r\nThe Sempe Stool had denied granting the land to the 1st Appellant and\r\nwhen he trespassed on to the land he was warned that the land is for\r\n \r\nAgain, Exhibit 3, the indenture of the 211 CO-\r\n28\r\n \r\nDefendant, the site plan attached to same, one can see that it is the same land being claimed by the Respondent and one of the boundaries given by the 2''"'' Co-Defendant is Kwashieman/Ofankor road i.e. on the North-West. The 2nd Co-Defendant''s indenture is dated 1992. The trial Judge looked at all these pieces of evidence and concluded that, the land is situate at Kwashieman. The trial Judge therefore addressed the issue of whether the disputed land is at Sowutuom or Kwashieman. Counsel for the 1st Appellant also complained that the trial Judge erred by failing to order a superimposition of the respective site plans of the parties.\r\nMy simple answer to this submission is that, none of the lawyers or the parties applied to the court for such an order. The trial Judge therefore did not err in not doing so. Besides, 2nd Appellant did not tender a site plan, so what would have been her fate? But more importantly, expert evidence is only a guide for the trial Judge. He is not bound by it and can make his own inferences from the available evidence. See the ease of Fenub!u Vs. John Teye (2001-2002) SCGLR, 985, 990 holding (6) where thir Lordships held as follows:\r\n\r\n"The principle of law regarding expert evidence was that the trial Judge need not accept any of the evidence offered. The Judge was only to be assisted by such expert evidence to arrive at a conclusion of his own aftr examining the whole of the evidence before him. The expert evidence was only a guide to arrive at the conclusions..."\r\nFrom the foregoing, there is no merit in the appeal of the lst Appellant and same is hereby dismissed.\r\nThis brings me to the appeal filed by the Co-Defendants;\r\n"The judgment is wrong in law"\r\n29\r\n\r\n \r\nOn this ground, Counsel for the 2nd Appellant gave four reasons why the judgment is wrong in law.\r\n1. Failing to order a plan to be drawn to identify the proper owner of the land in dispute.\r\nI have already held that, none of the lawyers or the parties in this case applied to the court for such an order to be made. Secondly, such a plan is only a guide. Thirdly, the 2n1 Appellant both in her defence and her evidence did not give a description of her land just that her land measures 200 feet by 70 feet and was granted to her by Asere Stool in 1986. The boundaries were not given. The trial Judge did not err in\r\nnot ordering a plan to be drawn.\r\n•The second reason for saying the judgement is wrong in law is that the trial Judge failed to correctly apply section 24 (1) of the Land\r\nRegistration Act of 1962 (Act 122). I have already held that non\r\nregistratiOn of the Respondent''s Exhibit A per se does not mean the document is invalid. See the case of Amuzu Vs. Oklika cited supra.\r\nThe third reason for saying the judgment is wrong is that the trial Judge failed to apply section 10 of the Limitation Decree 1972 (NRCD\r\n54).\r\nFrom the 2nd Appellant''s own showing, he developed her land in 1999. ''The friend who she claimed to have given a portion of her land to was not called. From 1999 to 2001 when the suit was filed would not be 12 years. There is no merit in this submission.\r\nThe last point is that the trial Judge failed to apply the Land\r\n''Development (Protection Purchasers Act) 1960, Act 2 in favour of the 2nd Appellant.\r\nFrom the series of application of Interim Injunctions filed by the Respondent, the latter tried to protect his land. In his affidavit in\r\n30\r\n\r\n \r\n\r\nopposition to the application for joinder of the 21d Appellant, the\r\nS Respondent deposed that when the former was served with the application she said, her case is like that of 1st Appellant and they stand or fall together.\r\nThis averment was not denied by the 211d Appellant and it was too late in the day for her to say that he was not aware of the suit until a later date. Besides, the 211d Appellant has not even shown any document as to title. She merely said she acquired the land from Asere Stool. She also did not call any person to substantiate her claim, neither did she tender a document to show her defective title. The 211,1 Appellant is not a person contemplated by Act 2. See the case of Klu Vs. Konadu Apraku (2009) SCGLR 741, 743 holding (2) where their Lordships held;\r\n"The trial Judge had held, rightly on the evidence and the findings, that the Co-Defendant''s claim of having acquired title to the disputed land had been\r\na complete simulation emanating from testes diabolices qul magisfama quam fame moventur. All that was a grand design to over-reach the Plaintiff.\r\nSuch conducts and acts of the Defendants would not attract protection under the provisions of the Land Development (Protection of Purchases) Act, 1960 (Act 2), which was an Act to protect purchasers of land and their successors-in-title whose titles were found to be defective after a building had been erected on the land".\r\nIn the instant case, what title are we being called to protect when the 21d Appellant even failed to tell the court the nature of her acquisition. Was it a purchase, gift, transfer, etc.? From the foregoing, the 1st ground of the 2nd Appellant''s appeal fails and same is hereby dismissed.\r\n \r\n\r\nThis brings me to the second and last ground of appeal of the 2nd\r\n•	Appellant and that is;\r\n"The judgment is against the weight of evidence".\r\nThe Supreme Court had held in a number of cases that, where an Appellant complains that a judgment is against the weight of evidence, he is implying that, there are certain pieces of evidence on record which if applied in his favour, could have changed the decision in his favour or certain pieces of evidence were wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the appellate; court the lapses in the judgment being appealed against. See the following cases:\r\n, 1. WIN Vs. Musa Baako (2007-2008) SCGLR 686\r\n2.	Tualcwa Vs. Bosom (2001-2002) SCGLR 61\r\n3.	Abbey & Others Vs. Antwi (2010) SCGLR 17,20\r\n4.	Aryeh & Akapo Vs. Ayaa Iddrisu (2010) SCGLR 891, 894,\r\nholding 1\r\nIn the instant case, what are the pieces of evidence that was wrongly\r\napplied against the 2nd Appellant or which when applied could have turned the decision in her favour. She did not even give the boundaries\r\nof her land. She did not even tender a receipt or any evidence of epurchase or acquisition neither did she call her grantor to substantiate\r\nher claim, not even a building plan.\r\nAll she said was, she had built three bedrooms and her daughter is living in it since 1999. This daughter was not called. Her evidence was hollow as compared to that of the Respondent. It is true the 2" Appellant did not counter-claim and therefore no burden is put on her but she says she has been in possession of her land since 1999 and wants the protection of the law. Her bare assertion without more that she has been in possession is not enough.\r\n \r\n32\r\n \r\nMariana Owusu (Ms.) (Justice of Appeal)\r\n \r\n\r\n \r\n''C. Atta Akyea for the Plaintiff/Respondent\r\n• Nathaniel Myers for Defendant/Appellant\r\n\r\n\r\n\r\n\r\n', '../links/cases/Document (215).pdf', 'Yes', 'ISAAC DUOSE,J.A., C.J. HONYENUGA,J.A.', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Land Law - Title to land - ss. 166 &amp; 168 Evidence Act, 1975 (NRCD 323) - Photocopy of document good as original - Onus on appellants to properly demonstrate lapses in judgment - Whether trial court relied on forged documents - s. 24(1) Land Registry Act, 1962 (Act 122) - Non registration of document and consequences.</font></b></i><br>', 'MARIAMA OWUSU,J.A.', 'Civil', '', 'H1/192/2008', '', '', 'appeal', '2011-12-15', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(567, 'JOSEPH KOJO DAWSON  ---  APPELLANT\r\nVRS\r\nTHE REPUBLIC  ---  RESPONDENT', 'IN THE SUPERIOR COURT OF jUDICATURE\r\nIN THE COURT OF APPEAL\r\nACCRA\r\nCORAM: APALOO J.A (PRESIDING)\r\nACQUAYE J.A\r\nADUAMA OSEI J.A\r\nCRIMINAL APPEAL SUIT NO. 112/17/20 10\r\n16Th1 IUNE 2011\r\n\r\n	\r\n\r\nTHE REPUBLIC	---- RESPONDENT\r\nCriminal/ow - Use of property for Narcotic Offences - s. 10 (1) (b) Narcotic Drug (Control, Enforcement and Sanctions) Law 1990, PNDCL 236 - Submission of no case - ss. 173 & 174 Criminal Procedure Code, Act 30 - Whether prosecution had established prima facie case - s. 10 (1) (b) PNDCL 236 - s. 11 Evidence Act, !VRCD 323 - Trialudge''s duty to call upon appellant to open defence —Whether trial judge denied appellant presumption of innocence.\r\nJUDGMENT\r\nAPALOO, JA: The appellant was charged together with five others for various narcotic offences before the High Court, Fast Track Division Accra. The appellant in particular was charged with the offence of use of Property for Narcotic Offences contrary to section 10(1)(b) of the Narcotjc Drug (Control, Enforcement and Sanctions) Law 1990, PNDC Law 236.\r\nThe prosecution alleged that Joseph Kojo Dawson who was Managing Director of Dashment Company Ltd owners of a fishing vessel named MV Benjamin was contacted by certain "drug barons" to charter MV Benjamin, and according to the prosecution for the purpose of using it to convey some narcotic substances from the high seas into Ghana. The Drug barons were named as Sheriff Asem\r\nDarke, Ande, Lee, Ande Yul Sing and Jil Bae. Sheriff Asem Darke entered into a rental agreement with the appellant to charter his fishing vessel MV Benjamin\r\n \r\non a barehoat charter basis in February 2006. Upon procuring the vessel, the "barons" engaged one Pak I3ok Sil to do some repair works on it and having completed the works, Pak I3ok Sil paid off some of the workers on the vessel hut retained Isaac Arhin, Philip Bruce Arbin, Cui Xian Li and Luo Yin Xing. The vessel which was docked at the Takoradi !labour under the care of Philip Arhin set sail to the high seas on 9", March, 2006. According to the prosecution Ande Yul Sing was Captain and Arnie was Chief Engineer. The (-Few was made up of Isaac Arhin, Philip Bruce Arhin and James Kingsley Inkoom. In the course of the\r\nMV 13enjamin it is alleged got to the breakwaters of Tema Harbour with the 77 parcels of cocaine on 26/1, of April 2006 and on the same day at about 2.00 am, two canoes drew alongside the MV I3enjamin and collected 76 out of the 77 parcels of cocaine and left one parcel onboard the vessel. A canoe came for the Captain Ande Yul Sing and the Chief -Bngineer Ande and they were never seen again.\r\nMeanwhile the Narcotic Control Board (NACOB) had received intelligence about the cocaine which was delivered to MV Benjamin. A team was organized including the Air Force and the Navy to track down MV Benjamin. The fact that the name of the Vessel Was changed contributed to the escape of the vessel to Tema.\r\nOn 27th April 2006, Naval Officers who had been trying to track down MV Henjamin noticed that an identical vessel with different name MV Made II was anchored at the break waters of the harbor, the security personnel including officers froinNAC013 went into the vessel and after searching it, they found one pm -:eel which contained 30 slabs of substances which were later confirmed by the Ghana Standard Hoard to be cocaine.\r\n2\r\n \r\nArising from these activities that the six persons were charged before the Fast Track Division of the high Court with ofiences under PNI)C Law 236. The six persons were Joseph Kojo Dawson 1St accused and appellant herein, Pak l3ok Si! 21111 accused, Isaac Arhin 31d accused, Philp 131-1.1ce Arhin 4"'' Gui Xian IA 50, accused and lato Yin Xing 61i accused.\r\nThe charge against the appellant as endorsed in the charge sheet isa:follows;\r\n\r\n	\r\n\r\nUSE OF PROPERTY FOR NARCOTIC OFFENCES; CONTRARY TO SECTION\r\n10 (1) (b) OF THE NARCOTIC DRUGS (CONTROL, ENFORCEMENT ANt)\r\nSANCTIONS) LAW, 1990 (PNDCL 236).\r\nPARTICULARS OF OFFENCE\r\nJOSEPI I KOJO I)AWSON, Husinessinan; On or about the 611, of February 2006 at ''I''enia ill Greater Accra Region indirectly without la''ful authority and with the intention of facilitating an activity for the purpose of promoting an enterprise relating to Narcotic Drugs, did allow one ASEM DARK'' @ SIINRIFF to use your vessel MV I3ENJAM IN/ADNIW Ii to import 77 parcels each containing about 30 kilograms of cocaine into Ghana without a license issued by the Minister of lleahh."\r\nThe appellant pleaded not guilty to the count and trial commenced up to the end of the case for the prosecution when a submission of no case was made on behalf of all the accused persons. ''l''hie trial Court overruled the submissions except the one made for the 211(l accused. The trial subsequently continued and by its judgment dated 2511, July 2008 the remaining accused persons were Found guilty convicted and sentenced to a term of 25 years Iii prison ill esp U of the various charges preferred against them.\r\nThe appellant by his petition of appeal is appealing on the following grounds;\r\n1. ''1 hat the U ial judge urred in law in failing at the cnd of the case for tIn prosecution and upon a submission of no case to examine the case that\r\n3\r\n\r\n \r\n''\r\n1.	"That the trial judge erred in law in failing at the end of the case for the\r\nprosecution and upon a submission of no case to examine the case that\r\nthe prosecution had brought in respect of the first accused before determining that the accused had a case to answer.\r\n2.	That the trial judge erred in law in failing to apply the same criteria that he applied in relation to the second accused upon a submission of no case, which criteria would have even more definitely have necessitated\r\nthe acquittal of the first accused.\r\nThat the trial judge erred in law in failing to appreciate that on the totality of the evidence presented by the prosecution, there was no case\r\nfor the accused to answer.\r\n4.	The trial judge erred in law in effectively denying theist accused the presumption of innocence which is a fundamental principle of criminal law that is guaranteed in Article 19 of the 1992 Constitution.\r\n5.	The conviction was wrongful bearing in mind the totality of the\r\nevidence led.\r\nThese grounds appeared as additional grounds of appeal; the original ground and these were all argued by Counsel for the appellant in her submissions filed in this Court. In her opening submissions Counsel argued additional grounds 2 uul 3 together. It is the submission of Counsel by grounds 2 and 3 together that the trial judge failed to satisfy himself, based on the evidence that there is a case for the appellant toi.answer. According to Counsel the trial judge simply dismissed the appellant submission of no case without considering the case the prosecution had put forward Lind without filly reason. Counsel was of the view that the failure of the trial judge to give reasons Pal ticularly when Counsel on both sides had presented at and referred to passages of evidence itself amounted to a failure to uphold the Id quired standards of judicial conduct and is sufficient basis for this appeal to\r\nbe allowed:Counsel cited Afotey yrs the Republic [1984-86] 1 G1,12 475 where Sowah\r\n\r\n4\r\n \r\n\r\n \r\nI\r\n \r\n"Iii the circumstances of this case the learned Judqe ought to have çjivcii (11110/i? careful C/tIC! judicious (IppraiSC!/ of (lie evidence than she appeared to have (/0/16 ........when cases are heavily contested she must he seen to have exercised her powers citici discretion judiciously\r\nAgain Ili Mainoo vt-s The Republic L1984-8612GLR 727 Francois JSC quoted a pronouncement of Lord Dunning before the law Society of England to the effict that;\r\n"Give reasons Jar your decLcions;fln if you give no reasons, it will he cons! rued as a ju4jiilen t without reasons (/11(1(111 unreasonable otiL''."\r\n(:miiìsei for the appellant went further to refer to the Fiiglisli case of Flannery vrs Ilalilax Estate Agencies Ltd. [2000] 1 WLR 378 where Henry 14 delivering the judgment went to great lengths to discuss the duty and oN igation to give reasons.\r\nIndeed the ruling of the trial Judge ;ifier the submission of no case was this;\r\n"In respect of tile fit-st accused person, I have carefully considered the charge against him in this case and the evidence led so for and! aill of the opinion that there is a prima facie case against him to warrant h/ui to open his defence. / accordingly, in tile exercise oft/ic jurisdiction coiiJcrted on inc under Section 174 of Act 30, (1960) cull upon the Jst accused pci somi to open his defence\r\nThere is 110 doubt at all that the trial judge was exercising the power (. onfei icd on him mi(ler both sections 173 and 174 of the Criminal  Pt ocedui e Code, Act\r\n30.\r\n''SI 73 11 at the close oJtheevidence in support of the charge, it appears to III("(out C that ci case is not math out against (hr accused siifju ient/y to require  hun to mate a c/efeiu c, the (ourt shall as to that pat 11(111(11 Lila!-Ye. acquit him."\r\n It Is our considered view that by the strict intci 1)1 etation of''S173 a trial jtidge is not requireti to give reasons for acquitting an accused person if a case is not made out agminst him at the close of the prosecutions case.\r\nS\r\n\r\n \r\nAgain by the strict interpretation of section 174 of Act 30 there is no requirement for the trial judge to give reasons for calling on the accused to make his defence. We reproduce section 174 of Act 30.\r\n"Section 174 At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficielitly to require the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused o f the right of the accused to give evidence personally on oath or\r\nto make a statement."\r\n\r\nFrom the foregoing we are reluctant to accept the view that failure on the part of a trial judge to give reasons for overruling a submission of no case should constitute sufficient ground to set aside a conviction. We are however agreed that it would he desirable to state reasons for the exercise of the discretion one way or the other. In Tsatsu Isikata yrs The Republic [2003-2004] SC61/2 1068 when this same issue came up, i.e. failure of the trial Judge to assign reasons for her decision, the Supreme Court stated that, it encouraged the sound policy of articulating reasons for judicial decisions but added that it knew that lack of articulated reasons do not always lead to a miscarriage of justice. The Supreme Court went further to declare that;\r\n"In the case before us, the ruling on the submission of no case though made without articulated reaso175 Was not without basis in law."\r\nUpon reading the three cases relied upon by Counsel for the appellant for the failure of the trial judge to give reasons in the ruling, upon the submission of no case, we noted that the cases relied on i.e. Afotey Vrs The Republic (supra) Mainoo yrS. The Republic (supra) Flannery yrs Halifax Estate Agencies Ltd (supra) all deal with the failure of trial Judges to give reasons in final decisions to convict in the face of well argued addresses after a full hearing and not t the close of the prosecution''s case. What happens after addresses leading to Alie linal judgment in the criminal trial has been catered for by section 177 of the Criminal Procedure Code. In the circumstances of this.appeal and upon considering these two grounds, we are unable to do\r\n6\r\n \r\nmore than borrow the words of the Supreme Court articulated in ''I''satsu Tsikata vus The Republic (supra) that;\r\n"We livid that in this case, 1/ic failure ojthie trial judge to articulate lieu reasons for rejecting the submission o1 no case, rcgrettable as it is from the statidpoiiit of best judicial practice has occasioned no III isca IT/age ofJustice. We therefore cl/sm iss Lii is groun (I ojappeaL"\r\nIndeed on the strength of this pronouncement we proceed to dismiss this ground of appeal. In arguing the other leg of the two pronged grounds of appeal, it is the contention üí Counsel for the appellant that the judge called upon the appellant to open his defence when the prosecution had not established a prima facie case against him. The charge against the appellant hy section 10 (1) h of the Narcotics Drugs (Control, hnforcejneiit and Sanctions) Act 1990,  PNI)Cl. 236 reads as reproduced herein;\r\n10(1) "A person commits an offence if that person directly or indirectly, leaLc, in relation to or uses ci property within or outside the Republic\r\n(2) With the intention of facilitating or assisting in the promotion, inanaqenien 1, establishment or carrying on an activity Which is an oJfence under any oJtlie sections  to 7."\r\nIn assessing the quality of the evidence led, we must first of all appreciate the ingredients  in the charge pi off ci ccl against the appellant. In our view the following will he suflic ient to establish the ingredients in the offt nce charged.\r\n1 That the accused person directly or indirectly dealt in or allowed his Property to be used in or outside Ghana\r\n2 That the propei ty was used with the intention to facilitate, or assist in the promotion, niaiiagcniunt or cstihlislniient of an activity relating to drugs\r\n3. That.  the property was used to promote a narcotic enterprise.\r\n\r\n7\r\n\r\n \r\nThe he practice is and has always been that the prosecution has the duty to establish the ingredients of the crime charged one after the other in the course of the trial before the close of its case, and ultimately at the close of the prosecution''s case. Thereafter the role of the trial judge continues as follows:\r\n"Section 17:1 is concerned with summary thal where the judge decided both law and fact. It is for the judge in a summaty trial to weigh the evidence and then decide whether frau; the facts proved the guilt of the accused can be inferred. Evidence is said to be sufficient. when it is of such probative farce as to convince and if uncontradicted will justify a conviction."\r\n•\r\nSee The State yrs All Eassena [196211G1,14145.\r\nOur jurisprudence contains volumes of what the duties of the trial judge are in assessing whether or not the prosecution has made out a case for which the accused ought to be called to open his defence. A practice direction in this area, where a SUIMUSSiOn of no case to answer at the close of the prosecution''s cise was delivered by Lord Parker CJ in 1962- which ow- Courts adopted in The State yrs Ali Kassena [supra). This is what Lord.Parker said\r\n"Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following consideratiOnS.\r\nA submission that there is no case to answer may properly be made awl upheld.	•.•\r\n(a)	When there has been no evidence to prove an essential element in the alleged offence.\r\n(b)	When the evidence adduced by the prosecution had been so discredited as a result of cross examination and is so manifestly unreliable that no reasonable tribunal could safely con viii on it.\r\nApart from Mese two situations a tribunal should not in general be called Oil to1each a decision as to conviction or acquittal until the Whole of the evidence which either side wishes to tender has been\r\n8\r\n \r\nplaced before it. If however a submission is made that there is no case to answer, the decision should depend not so niuch on whether the adjudication tribunal (iJcvmpelled to do so) would at that stage Convict or at quit but vii whet/icr 1/id? evidence is such that a reasonable tribunal might convict VII the evidence so far laid before it, there is a case to (uiswer.\r\n1110111 what Parker (1 stated, the answer to a submission of no case to answer should (lepen(l not so miiuch on whether the court would at that stage convict or acquit but whether on the evidence so far laid before it, there is a case to atm sw er.\r\nBy the record what was the evidence against the appellant? According to Counsel for the appellant, the nature of the evidence Presented by the prosecution against the appellant should he viewed against the statute under which the appellant was charged. Counsel submitted that from the particulars of offence, the prosecution set out to prove that the appellant, at the time of entering into the contract with Attico Fisheries knew that the vessel was to he used by Aseni Darke @ Sheriff to transport cocaine into the country so as to promote an enterprise relating to narcotic drug. She referred to the lirosecution''s opening statement of the facts of the case where it was alleged that ''some drug barons" contacted appellant etc. According to Counsel the prosecution implied that appellant knew the persons who contacted him to he drug barons and agreed and gave out his vessel knowing that the purpose for which the vessel was to he used was to Undertake  an activity to facilitate an enterprise relating to narcotic di ugs ( ounsi I was emphatic that when it came to evidence however, not one of the prosecution witnesses provided any testimony which, by any stretch of imagination, COUld amount to 1)1 ''001 that appellant knew the persons who contacted hint to he drug barons and agreed and gave out his vessel knowing the purpose [or which the vessel was to he used.\r\nThere  is no doubt about the soundness of ( ounsel''s i easoning however, thc oliset vations made by ( ouns I have tin ii i oots in the thai gc. sheet. Tile huge slice  should contain two elements namely a statement of thic olkrite\r\n9\r\n\r\n\r\n \r\nalleged to have been committed together with particulars of the offence. See section 112 of Act 30. The statement must refer to the offence creating section of the statute that created it. In respect of the particulars of the offence, the section requires such particulars of the offence as may he necessary for giving reasonable information as to the nature of the charge. Justice A N E Amissah in his Criminal Procedure in Ghana at page 77 has this\r\n \r\n\r\n \r\n"Drafting the part iculars of the offence charged involves following with precision the worditig aJ tlw section defining the crime and alleging that the accused did the act having the ingredients of the ()Thrice."\r\nSee lianson Mensah and Anor vs. COP 119631 2G1.11 536.\r\nAccordingly, it is our view that the particulars of offence in the charge sheet should contain all the ingredients of the offence and in particular what ingredients the prosecution intends to establish and prove in any criminal trial. Some Jurists have described the ingredients of an offence to be the frame or the skeletal part of the body -and evidenCe as the flesh covering it. Upon close study and scrutiny of the charge •sheet we are satisfied that it was laid in accordance with law and practice of criminal law. We are not in any doubt that the law has made provision for challenging or attacking the charge sheet but in the case before us no •thallenge whatsoever has been levelled against the charge sheet. It is also notorious in criminal trials that the opening stiaement made by the proseetition in respect of the facts is not evidence but a statement made to introduce the trier of facts to the case before him. It may even flit ii out to be irrelevant:to the trial after reception of the evidence.\r\nIn order to assess whether on the totality of the evidence presented by the prosecution the accused indeed had a case to answer, in other words, was the prosecution . able to lead enough evidence to show that the appellant committed the Offence air which he was charged in terms of the ingredients. We shall proceed at this juncture to examine the evidence led by the prosecutton in the:Court below.\r\n10\r\n \r\nThere was evidence that Detective Inspector Charles Adaba PW1 3 took over from Inspector James Oppong ill 2006. He tendered Ml the handwritten statement of the appellant dated 5th May 2006. lie went oil board the MV Benjamin at ''l''eina liahour and discovered that the paint around\r\nthe vessel''s name was fresh as compared to the paint oil parts of the vessel, lie proceeded to Takoradi Ghana Ports and I labours Authority where he found that MV Benjamin was formerly owned by a Korean hut was registered uniter the name Daslunent company Ltd with an official number 316915''1 and marked Al: 582 from 2011 April 2000. lie found out that the appellant was the Managing Director of Dashment Co Ltd and that lie was the one who signed Exhibit Cl a Charter Agreement with Sheriff Asein Dark''. This agreement gave Sherill the use of the vessel which brought the 77 parcels of cocaine into Ghana.\r\nThe Detective Inspector found also that it was Dasliment Company Ltd which applied for the vessel to enter the Takoradi Ilarhour. The same company paid all expenses incurred on the vessel for the period it docked at the llalmur. He stated that when the vessel was leaving port on 911, March 2006 the 3, 411,. 5111 and 611, accused persons were oil board. lie testified that conti ai y to appellant''s assertion that lie had paid off all crew members he found that the Port Authority had no records that 3'', 4" and 511, accused persons had been paid oil, lie found out too that the Port Authority required that crew members he registered with them and then their names taken off their register when they were laid oFf The Port Authority had the names of the 3ri, 411, and 511, accused persons as crew members of the MV Benjamin. This was an indication that they had not been disengaged by Dashitnent Company.\r\nHe informed the Court that MV Benjamin received 77 parcels of cocaine oil high seas and oil	of April, 76 out of 77 parcels were taken away by\r\nfishermen in canoes under.thie supervision of the Captain and First Fngineer.\r\nlie said one parcel was left behind ill	hatch of the vessel. A combined team\r\nof NACON official and Naval Officers who were searching for the MV Henjaiiun\r\nfound her at the breakwaters and entered the vessel and oil it found one parcel of cocaine in the hatch. The parcel contained 30 slabs of cocaine each weigh i rig 1 kg.\r\n\r\n11\r\n-''	Ajh;,ciAL SERVU:\r\n \r\nAccording to Inspector Adaba his investigations established that one Sheriff Asem Darke was one of the people behind the importation of the 77 parcels of cocaine into the country. Ile said on 21st December, 2005 Sheriff Asem Darke took a loan of 250 million cedis from Unique Trust Financial Services Ltd to buy marine fuel for the voyage to bring the 77 parcels of cocaine. Sheriff Asem Darke signed as General Manager of Atiko Fisheries Ltd on both the Charter\r\nAgreement Exhibit C and the Loan Agreement Exhibit I.\r\n•\r\nThe witness tendered also the charge statement of the appellant as Exhibit Al A. Ile tendered also the 25kg out of the parcel of cocaine found in the hatch of MV Benjamin.\r\nEarlier Detective Cpl. Edward Yaw Asante had given evidence as PW I. Ile testified that he was a Police Officer attached to the Narcotic Control Board (NAC013). His evidence was that NAC013 received intelligence that the MV Benjamin was carrying cocaine from the high seas to Ghana. Ile and other officers entered the vessel at the breakwaters at Tema and found 130kg of cocaine, a narcotic drug in the hatch of the vessel. PW1 stated that the appellant was the Managing Director of Dashment Company Ltd and owners of MV13enjamin.\r\nIn all the prosecution called 13 witnesses and tendered about 80 exhibits to establish its case. For purposes of assessing the prosecution''s evidence pursuant to the three ingredients in the charge sheet, we have produced in SU mmary form the evidence of PW I and PW13.\r\nWe must admit that Counsel for the appellant in her submissions to this Court took pains to challenge the testimony and attacked the credibility of the two witnesses. Her challenges were very detailed but the facts the two witnesses proferred by the nature of the evidence they gave remained intact. It is necessary to state that the (Vidence of the two witnesses and others as to the facts in issue were never discredited and we shall use these facts in issue as the basis for Mir assessment of the quality of the evidence. We are however guided by the dictum in Tsatsu Tsikata yrs The Republic (supra) as to the proper pOsition 1-0 be taken in an appeal where a submission of no case has been overruled. The Supreme Court held that the appellate court on an appeal\r\n12\r\n \r\nthat considers a submission of no case was to look at all the evidence and make a decision based on it. The Court added that;\r\n"All appellate court Was not C! trier of/acts H! the (((Sc of all appeal an a submission aJno case. However, the appellate court fbi its awn Imuteci purpose, would have to consider the evidence at the trial court to the extent that it was nccessaiy to determine whether the requisite level of p11)0/ was presetit ill respect ojahl the essential ingredients IH the offence c/ice tqecl.\r\nThe emphasis Ili this clictum is the essential ingredients in the offence charged. The evidence under consideration at this juncture. no doubt points to the direction that the appellant directly or indirectly dealt Ili or allowed his l)m0Pe1tY to be used iii or outside Ghana.\r\nAs Counsel for the Republic put it, the critical issue to determine Ili this particular case is whether the appellant allowed his vessel to he used with the knowledge and/or intent that it would he used to deal in narcotics. The argument of the appellant is that the fact of signing tlit various documents is not enough indication that appellant knew the vessel would he used to carry cocaine. [''lieme is this other argument that A3 who signed the documents was at the time not engaged by Daslmnient Company Ltd.\r\nIt has been stated over and over again in criminal law that it is impossible to i cad tlic intention of a person Ii orn his Lice or features hut that the intention of a man call inferred from his actions Accordingly one could pi ovc the mm''t. nimon of a person from events .he voluntarily initiates\r\nThere is evidence on,,, record that at all mnatem tal time the appellant still retained ownership of the vessel as borne out by the various payments he inadc in respect of the vessel It is the case of the prosecution that the idea of the Charter came up after the event to give the appearance that the vessel had hec ii hired to Sheriff and that appellant did not know anything about it The evidence of FWG was clear that appellant registered the vessel oil April 2000 and registered  A 3, A4 and AS as cm ew members. There  was evidence that MV Benjamin hcrthed at Takoradi Ilahotir oil 911, November, 2005 under\r\n \r\nthe agency of Dashment Company Ltd and set sail on 9th March 2006 to the high seas with Dashment Company Ltd still as its agents. Exhibits J, K, l„ M, 0, P and Q were receipts which showed payments for water, power, pilotage and other services rendered to the MV Benjamin by the Port Authorities. From the\r\nabove it will be reasonable to infer that as far as the Takoradi I labour Authority was concerned, Dashment Company Ltd was and remained the registered agents of the MV Benjamin. The evidence of PW6 . was very instructive on this point and we quote from the record to stress the point.\r\n"Q	I am putting it. to you that Dashment was not the agent of the vessel.\r\nA	My Lord, the port does not deal with owners of vessels. It deals with agents of vessels and as a matter of fact, if anybody wants to know the owner ola vessel, either he being the manager, operator or beneficial OWner, the person had to refer to the Maritime Authority. What the Port (1065 15 that the vessel is\r\nrepresented by all agent and it is the agent that the Port knows and we deal for commercial putposes with the\r\nagents of vessels. The owner can Get as agent but at that\r\ntime we look (It the person as the agent and not the owner."\r\nIt is the case of the prosecution further that .there was no evidence to suggest that Dashment Company was acting for Atico Fisheries Company. The Repubic is of the view that as at the close of the prosecution''s case the available evidence was that Dashment Company Ltd was the registered agent for MV Benjamin. Counsel for the Republic had invited us to draw the proper and necessai y inference that the appellant who was the Managing Director of the Comp.my that owned the vessel and made all payments on the vessel right up to the time the vessel sailed to the high seas and brought back the parcels ol cocaine into thft. country, allowed the use of his property and use of the name of his company for the activity. According to Counsel the use of the vessel by the Company lends credence to the fact that the appellant as\r\n14\r\n\r\n \r\n? Managing Director of the Company had some knowledge about the purpose for which the vessel set sail.\r\nAgain Cmtnsel for the Republic has invited us to examine Exhibit C, the Charter Agreement. She is of the view that the document appears to be a cover ill). The evidence shows that Dawson Sm-. the father of the appellant Signed it for his son as boat owner.\r\nThere is evidence acu)rd]iig to Counsel that the vessel was chartered to Sheriff Aseiii l)ake, the charterer ill C  signed under the name Evans (:hiii-tvetey, who was a brother of Sheriff Asein flake. 1-Ic testified as.PWIO. lie denied knowledge of Exhibit (:1 which bore his name. The appellant clid not know the charterer as Evans Charwetey per the document, so how could he have permitted him to sign as such, and this document was supposedly executed in the presence of Lawyers. Such flaws and questionable conduct associated with the document made it more difficult to explain. Counsel for the Republic was of the view that the total evidence adduced was enough and it established that appellant must have known that his vessel would he used to\r\ndeal ill	In Nyarko & On vrs The State 119631 2GLR the Supreme\r\nCourt per MillsOdoi JSC said;\r\n"Where tile 1OSCC1I Hon Jut/s ((1 eStuh/LVil i/ic esseii (jul eleirien ts oft/ic crime cliuiijed, a suh!nLsxu)ii OJ lid) case must succeed. It can then he said with a deqi cc oJ certainty that the prosecution has failed to mate out (1 p111110 Judd'' C C15C\r\nCounsel for the appellant in her submission stated that the only basis upon which the trial judge in this cast may have Concluded that the appellant had a case to answer was cii''cunistaiitial and Counsel proceeded to say that the trial Judge should have paid attention on to the law on circumstantial evidence. Counsel referred to Logan vi''s The Republic (2007-2008] SCGLR 79 where the Supreme Cow t stated\r\n"1 hese are inferences ct/Ic qedly drawn from uic uinctonHul evidence on / cc arc! And the question (lien is sp atinq as an appellate cowl\r\n15\r\n\r\n \r\nwhether in fact such inferences were drawn from facts that really existed in the evidence and whether these findings based on such inferences are supported by evidence on record	\r\nFor circumstantial evidence to support a conviction, it Must be inconsistent with the innocence of the accused. It must lead to irresistible conclusion not only that the crime charged has been:	• conmütted, but it was in fact committed by the persons charged in-. order to arrive at a definite conclusion."\r\n \r\nSee also the State vrs Anani Fiadjoe [1961] G1,12 Court asserted that;\r\n \r\n"Presumptive or circumstantial evidence is quite Usual as it israre to prove an offence by evidence of eye-witness and inference from the facts may prove the guilt of the accused person.: A presumption from circumstantial evidence should be drawn against the appellants only when that presumption follows irresistiblY from the circumstances prywed in evidence; and in ot-der to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt.- A conviction must not be based on\r\n•\r\nprobabilities or mere suspicion."\r\nThe celebrated case of R yrs OnnfrejtV13 (1955) 1Q13 388 cannot be omitted when discussing circumstantial evidence. That case stated that\r\n"It is often the best evidence. It is evidence of surrounding\r\n„\r\ncircumstances which bY:Uhdesigned coincidence is capable of\r\nproving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial."\r\nIn our view,circuinStantial evidence was part of the evidence the prosecution presented in the trial. We have assessed the circumstantial evidence with the\r\n16\r\n,\r\n \r\n-\r\nstandards and yardstick dictated by the cases and we have come to the conclusion that the justice of the matter demanded that the necessary inferences he made because in our view the conduct of the appellant iii the course of the various transactions was incompatible with his innocence.\r\nWe have also considered the provisions of the Evidence Act, NRCD 323 and the evidence led in in Court. We are in no doubt that the prosecution kept within the bounds of Section ii of the Act. For the avoidance of doubt we reproduce the section herein;\r\n"ii (2) in a criminal action, the burden of producinq evidence, when it is or; the prosecution as to a fact which is essential to quilt, requires the prosecution to produce suffIcient evidence so that oil	totality oft!; e evidence a reasonable mind could find the existence of the fact beyond reasonable doubt."\r\nIt is clear that the trial judge was right from the whole of evidence led by the prosecution and at the close of its case to call upon the appellant to open his defence. The inferences the prosecution invited us to make and draw in our view are legitimate inferences arising directly from the testimony of the prosecution witnesses. Having read the record together with submissions of 1)0th Counsel we are left in no doubt that the multiple overt events or acts associated with the vessel MV Benjamin before she set sail to the high seas and other events which occurred thereafter are very strong indications that Daslitnent Company Ltd as registered agents of MV Benjamin per its Managing Director allowed the use of its property and use of the name of the Company with the intention to assist man activity relating to a narcotic enterprise. We accordingly dismiss this ground of appeal as well.\r\nA ground of appeal that "the trial judqe failed to apply the same criteria that he applied in relation to the 2 accused upon a submission of no case, which criteria would have even more definitely, have necessitated acquittal of the first\r\naccused'' presumes a lot in criminal trials. Even in situations where the accused persons are jointly charged with the same offences the reaction of the\r\n17\r\n \r\naccused persons per their caution and charge statements may be different and be poles apart. The evidence against each accused person may be given by the same witness but with different emphasis. In this particular case the charge against 2" accused was laid as Count Two which count referred to Prohibited\r\nbusiness relating to narcotics. The particulars of offence gave ingredients associated with repairs of the MV Benjamin. Indeed the charge against the 2" ilCCUSed has no bearing, whatsoever with the charge against the appellant winch is under consideration in this appeal. We shall be bold enough to say that the ingredients to be proved by the prosecution against the second accused are not the same and cannot be the same hence Counsel was completely out of order when she filed this ground. We consider this ground to be without merit and dismiss it.\r\nThe ground Iii it the trial judge effectively .denied the -appellant the presumption of innocence, a fundamental principle Of criminal law is not borne out by the evidence on record. In ow- View the trial Judge can out Ins judicial functions effectively without any bias Nowhere in the record did we see or find that the Judge short-change the -appellant by denying him his\r\nright to the presumption of innocence.	.\r\nThe original ground of appeal was the following;\r\n"That the conviction and sentence of the 1" accused person to a total of Twenty-rout years- imprisonment was wrong in law. The learned trial judge''s finding-that the .1" accused appellant knew, at the time of entering into the.charter Agreement for the vessel to be used to tow a diStTessed Vessel, that the real intent of the Charter was to employ the ;Same for transporting of narcotic drugs, cocaine, is•wrong in law. The learned trial Judge further finding that the one parcel of cocaine found on board the vessel was to be used to pay the 1" accused for the charter of the vessel is not supported by the evidence."\r\n18\r\n \r\nCounsel for the appellant was of the strong view that the matters which the trial judge used as basis for finding the accused guilty were speculative and based merely oil\r\nIn his judgment the trial Judge was of the view that;\r\n"The facts proved are that as against the accused the vessel MV Benjamin was chartered to Sheriff Asein Darke which went to the high seas to 1)11119 (lie cocaine. Further Sheriff did not Pto'' /r the charter or the lure purchase but was allowed to rise the vessel which went and returned with the cocaine. Furthermore\r\nin the vessel, out of the undisputed fact that seventy seven cartons were found in it, seventy-six were taken away at Tema leaving only one raises questions,"\r\nWe are of the firm view that the trial Judge''s findings of fact at that stage were correctly made based oil evidence on record which were placed before him. It is also true that having taken away 76 cartons of cocaine and leaving only one carton raised many questions. A trial judge at this stage is allowed to make necessary and relevant inferences from the evidence before him. One piece of evidence before the Court was the fact that 110 pesewa or cent was paid for the charter even though the subject matter of the charter was in use. It was legitimate therefore for the trial judge to infer that possibly, the reason for leaving the carton on the vessel was for payment in kind for hiring it. In our view this inference by the trial Judge is not borne out by the evidence and riot supported by the evidence in the least. Indeed we find that conclusion to he speculative. Speculative asthe conclusion was, it (lid not alter the primary findings of fact made by the trial Judge in respect of the ingredients of the offence.\r\nCounsel for the appellant drew our attention to the fact that Dashment Company Ltd was not oil but the person Joseph Kojo Dawson was. We do not hesitate to conclude that in line with the decision in Salomon vrs Salonwn (R8971 AC 22 the trial Judge was familiar with the principle of\r\n19\r\n \r\n\r\n\r\n \r\nseparate legal personality of a Company. A Company however operates and acts through its Directors and/or agents. The Managing Director who is under trial, no doubt has authority to act on behalf of the Company and indeed is the foremost and principal agent of the Company. Accordingly, any deed of the Company carried out by the Company cannot be said to have been done without the knowledge and consent of the Managing Director. The onus indeed is shifted onto the Managing Director of a Company to. rebut the presumption that acts of the Company were not his. Throughout the trial witnesses, i.e. PW1, PW2, PW3, PW13 were all agreed and gave testimony that, the appellant was the Managing Director of Dashment Company Ltd, owners of the MV Benjamin which brought the cocaine into the country.\r\nThere was further evidence by PW5 of the Ghana Maritime Authority who was the Shipping Superintendent and Registrar of Ships that the appellant was the one who registered MV Benjamin in April 2000. That, the crew were engaged by Dashment Company Ltd. The evidence of PW6, the Takoradi Ilabour Master in charge of the Ports and Harbours Authority was clear as to who had responsibility for the vessel. He tendered the Vessel : Movement Card of MV Benjamin as Exhibit II, which indicated that Dashment Company Ltd was the agent of MV Benjamin. The card was stamped by Dashment Company which paid all the debts raised by and on behalf of the vessel. Fresh water supplied to the vessel was paid by the Company as well as the final debt raised before it set sail to the high seas. Surely these payments and other payments cannot be said to have been done by the Company Without the knowledge, consent and approval of the Company''s Managing Director, the appellant herein. Indeed\r\nnowhere in the record Was there evidence that the Company, Dashment was\r\n„\r\nunder trial. The charge sheet was explicit that no person other than the\r\nappellant was the person under trial.\r\nIt is obvious in criminal:trials that at the end of the case for the prosecution, the Court may feet that the case is amply proved unless the defence then produces evidence setting up reasonable doubt, the prosecution will succeed. We have read the ''thilence of the appellant on record in which he denied\r\n20\r\n''\r\n-:	•\r\n \r\nknowledge of the crime. The trial Judge considered his defence in its entirety and this is what he said;\r\n"The explanation of the accused person that he knew nothing about the voyage to me is not the answer to the charges and I do not accept the same given inferences I have drawn from the facts of this case and having taken all the circumstances into consideration. The explanation of the accused person also does not appear to he reasonably probable to raise doubts fOr his acquittal."\r\nBefore we consider the trial judge''s conclusions as to the explanation offered by the appellant in the Court below we shall he guided by the Supreme Court in a statement that;\r\n"Where the submission was rejected cirici the case went to trial it was then that the judge or jury as appropriate being the Trier of flicts would be called upon to determine whether or not the guilt of the accused had been proved beyond reasonable doubt.\r\nSee Tsatsu Tsikata vrs The Republic (supra).\r\nA relevant holding of the Supreme Court is that whether or not the prosecution has proved its case heyond reasonable doubt is a question which must he left until the end of the whole case In State vrs Sowali and Essel [1961] GIR (Part 2) 743 the Court held that;\r\nin a criminal case except in the instance of sanity and matters expressly thrown on the accused by statute, there is in general no presumption against an acnised person and an accused person is not bound to jive evidence. It is wrong therefore to presume the guilt of an accused mainly], om the fiicts proved by the prosecution. The case for the prosecution only provides prima fdcie evidence from which the quilt of the accused may he presumed and which therefore callsfor explanation by the accused. The proper direction is that if the defence answers the case for the prosecution then the jury should find the prisoner not guilty or if the defrnce raises\r\n21\r\n \r\na reasonable doubt in the mind of the jury of the case pr the prosecution, the prisoner is entitled to acquittal because there is doubt. The jury must he told they can return a verdict of guilty only when they are satisfied on consideration Of the case as a whole."\r\nFrom the record we are convinced and are left in no doubt that the trial hike considered the defence raised by the appellant in every material detail .and came to the irrefutable conclusion that the defence was a sham. We Ithve closely and diligently studied the record and do not see any:reason to faultthe assessment of the evidence by the trial Judge. We are of the fur‘ther view that in the court below the prosecution proved its c;_ise beyond te;_.isomible doubt within the purview of Miller vs. Minister of Pensions 119471 1 Al It 372 at 373 where the House of Lords settled the definition Or proof beyond reasonable doubt and we find accordingly that the conviction and sentencing Of the appellant was	appropriate. For these reasonS we dismiss the anima and afrirm the decision of the lower Court.\r\n-.1\r\n•\r\n \r\n\r\n \r\nUSE! (JUSTICE OF APPEAL-)\r\nCOUNSEL \r\n•	NANA OYE LITHuR (MRS) FOR THE APPELLANT\r\n9 YVONNE ATAKORA 013110BISA (MRS) PSA FOR ATTORNEY-GENERAL\r\n22\r\n', '../links/cases/Document (216).pdf', 'Yes', 'ACQUAYE,J.A, ADUAMA OSEI,J.A', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Criminal law - Use of property for Narcotic Offences - s.10(1)(b) Narcotic Drug (Control,Enforcement and Sanctions) Law 1990, PNDCL 236 - Submission of no case - ss. 173 &amp; 174 Criminal Procedure Code, Act 30 - Whether prosecution had established prima facie case - s.10 (1)(b) PNDCL 236 - s.11 Evidence Act, NRCD 323 - Trial judge''s duty to call upon appellant to open defence - Whether trial judge denied appellant presumption of innocence. </font></b></i><br>', 'APALOO,J.A', 'Criminal', '', 'H2/17/2010', '', '', 'appeal', '2011-06-16', '');
