COURT OF APPEAL
DATE: 3 JULY 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
CASES REFERRED TO
(1) Benmax v. Austin Motor Co., Ltd. [1955] A.C. 370; [1955] 2 W.L.R. 418; [1955] 1 All E.R. 326;
99 S.J. 129; 72 R.P.C. 39 H.L.
(2) Morris v. West Hartlepool Steam Navigation Co., Ltd. [1956] A.C. 552; [1956] 1 W.L.R. 177;
[1956] 1 All E.R. 385; 100 S.J. 129; [1956] 1 Lloyd’s Rep. 76, H.L.
(3) Tonazzi v. Brunetti (1953) 14 W.A.C.A. 403.
NATURE OF PROCEEDINGS
APPEAL by the defendant from a decision of the High Court in an action for recovery of possession of land. The facts are sufficiently stated in the judgment of the court delivered by Ollennu J.A.
COUNSEL
D. S. Effah for the appellant.
No appearance by or on behalf of the respondent.
JUDGMENT OF OLLENNU J.A.
Ollennu J.A. delivered the judgment of the court. The plaintiff, respondent to this appeal (hereinafter called the plaintiff), and the defendant, the appellant (hereinafter called the defendant), were married under customary law; their marriage subsisted for about twenty years, and was dissolved in or about April 1961.
It is the plaintiff’s case that he made two farms during the period of the marriage, one at a place called Ampontua-Kwayem, the other at Nkonsia. The plaintiff alleged that he made a gift of the Ampontua-Kwayem farm to the defendant, and partitioned the farm at Nkonsia, and permitted the defendant to occupy one portion of it for her use, but never made a gift of it to her as he did in the case of the Ampontua-Kwayem. That portion is the subject-matter of this appeal.[p.465] of [1967] GLR 463 The plaintiff alleged that upon the dissolution of the marriage he demanded the return of the farm in the presence of the arbitrators who dissolved the marriage, and that the defendant agreed to surrender it, whereupon, he said, each of them paid the customary arbitration fee. The plaintiff says that subsequently, the defendant refused to surrender the farm, hence the action.
The defendant on the other hand contends that the farm in dispute is her self-acquired property. She says she acquired it by cultivating the virgin forest with employed labour, and without any assistance in any form from the plaintiff, her husband. The issues joined upon these contradicting claims are: (1) was the farm made by the plaintiff; and if it was (2) did the plaintiff make a gift of it to the defendant? The first issue is a pure question of fact, the second is mixed law and fact. Evidence was led by each party and his or her witnesses in support of his or her claim. Upon the evidence before him, the trial judge came to the following findings:
“I have come to the conclusion, and I find as a fact that the plaintiff’s version is the correct one, that he acquired a large tract of land, cultivated it, and gave a portion to the defendant during the subsistence of the marriage. It was not a gift to the defendant.” Against that judgment the defendant appealed to this court on two grounds namely:
“(1) the judgment is against the weight of evidence, and (2) in view of the plaintiff’s own case that when he gave the farm to the defendant it was newly cultivated, and in view of the fact that the defendant had occupied the farm for seventeen years, the learned judge of the High Court erred in holding that ‘it is not contrary to justice, equity and good conscience that the plaintiff should be entitled to revoke the grant to the defendant and deprive her of this only source of income in her old age because the marriage has been dissolved’.” On the issue of fact, counsel submitted that the evidence led on behalf of the defendant is more impressive and convincing than that for the plaintiff, and that the admission by one witness for the plaintiff that the defendant has had possession of the farm ever since it came into being weighs the probabilities heavily in favour of the defendant, and therefore the court below erred in accepting the weak case of the plaintiff in preference to that of the defendant. Counsel therefore urged the court to set aside the judgment of the court below, and substitute therefore an order dismissing the plaintiff’s case and entering judgment thereon for the defendant.
[p.466] of [1967] GLR 463
It must be observed that the question of impressiveness or convincingness are products of credibility and veracity; a court becomes convinced or unconvinced, impressed or unimpressed with oral evidence according to the opinion it forms of the veracity of witnesses. That being so the court of first instance is in a decidedly better position than the appellate court. Different considerations apply in the case of inference to be drawn from established facts. The principles which regulate the right of an appellate court to interfere with findings of fact made by a trial court are fully dealt with in Benmax v. Austin Motor Co., Ltd. [1955] 2 W.L.R. 418, H.L., Morris v. West Hartlepool Steam Navigation Co., Ltd. [1956] 1 W.L.R. 177, H.L. and Tonazzi v. Brunetti (1953) 14 W.A.C.A. 403 among others, where the principles are fully discussed. These may be summarised as follows: where the appellate court is satisfied that the reasons given by the trial court in support of its findings are not satisfactory, or where it irresistibly appears to the appellate court that the trial court has not taken proper advantage of having seen and heard the witnesses, then in any such case the matter will become at large for the appellate court, in which case the appellate court is under a duty to give such decision as the justice of the case requires, and, if need be, reverse the decision of the trial court and substitute its own judgment for it. In any other case, the appellate courtshould not interfere with findings of fact made by a trial court.
Counsel has not been able to show any error in the reasons given by the trial court for its decision. He has also failed to show that the trial judge has not taken proper advantage of his having seen and heard the witnesses. Therefore the submissions on the first ground of appeal fail. On the second ground of appeal, it was submitted that the defendant had improved the farm, and having regard to the undisputed long occupation and use of the farm by her, the learned trial judge erred in holding that there was no gift of the farm to the defendant. Now possession or occupation is consistent with ownership, licence or pledge as well as with trespass. Therefore the mere fact that the defendant has, to the knowledge of the plaintiff, had long possession of the land is not conclusive evidence of her title as owner. Where in an action for recovery of possession of land in which it is alleged that the defendant is a licensee, or for redemption of land alleged to have been pledged, the defendant pleads ownership based upon title acquired from the plaintiff, the onus shifts upon the defendant who so admits the original title of the plaintiff to show
[p.467] of [1967] GLR 463
that the transaction by which he entered into possession of the land is a sale or gift and not a licence or pledge. In the present case the defendant led no evidence of gift since her case is that the farm is her self-acquired property, and she did not avail herself of an alternative plea. Again the evidence of grant led by the plaintiff proved only licence or permission, it has none of the legal requisites of a sale or gift. That being the case, the attack upon the judgment of the court below on the second ground of appeal is baseless. Finally, counsel for the appellant submitted that the trial is unsatisfactory and therefore the case should be remitted to the court below for trial de novo. Counsel was not able to point out any irregularity which would make the proceedings irregular, so as to warrant a re-trial. What counsel is seeking for his client by this application is an opportunity to raise at the re-trial, an alternative defence of gift, a defence which was open to her, but of which she took no advantage.
An appeal court will not reverse a judgment of a lower court against which there is no justifiable complaint, simply to enable the losing party to re-litigate the whole matter in order to raise at a fresh trial, a plea which had been open to him all the time, but which he would not make, or to enable him to lead at the re-trial, evidence he was possessed of at all times, but which he neglected to lead at the trial.
For the reasons given above, the appeal must be dismissed, and it is accordingly dismissed; but there will be no order as to costs, the respondent not having appeared.
DECISION
Appeal dismissed.
S.O.
