GHANA PRIVATE ROAD TRANSPORT UNION vs. NTRAKWA [1999-2000] 2 GLR 278

CASES REFERRED TO

(1) Adai v Anane [1973] 1 GLR 144.

(2) Nkaeguo v Kunadu [1974] 2 GLR 150.

(3) Tanko v Karami [1989-90] 2 GLR 189, CA.

(4) Darkwah v Denteh [1972] 2 GLR 305, CA.

(5) Yendi Skin Affairs, In re; Yakubu II v Abdulai (No 2) [1984-86] 2 GLR 239, SC. (6) Log & Lumber Ltd v Oppong [1977] 2 GLR 263, CA.

(7) Praka v Ketewa [1964] GLR 423, SC.

(8) Kyiafi v Wono [1967] GLR 463, CA.

(9) Sasraku v David [1959] GLR 7, CA.

Appeal from decision of the High Court, Sekondi giving judgment against the appellant in an action by the respondent for, inter alia, an order for the payment of compensation by the appellant to him for the reason that the appellant had prevented him from using his land for business as a petrol station. The facts are sufficiently stated in the judgment of the court delivered by Brobbey JA.

Haizel for the appellant.

Sekyi-Hughes for the respondent.

Brobbey JA. This action started at the High Court, Sekondi where the respondent was the plaintiff and the appellant was the defendant. The plaintiff-respondent (hereinafter referred to as the respondent) claimed two reliefs. The first was for an order for the payment of ¢31,500,000, being agreed compensation for preventing the plaintiff from using his petrol station for business since 1990. The second was an order for the payment of interest on that sum at the rate of 45 per cent per annum from 1 September until the date of payment. After evidence had been taken in a full trial, judgment was given in favour of the respondent.

The defendant (hereinafter referred to as the appellant) then appealed to this court. Their original grounds of appeal were as

[p.283] of [1999-2000] 2 GLR 278 follows:

“(a) The leaned trial judge erred in giving judgment for the plaintiff having regard to the evidence on record.

(b) The learned trial judge erred in awarding interest on the said sum.

(c) The learned trial judge in awarding costs of ¢3 million.

(d) Additional grounds of appeal will be filed on receipt of the record of appeal.”

Four additional grounds of appeal were filed and these were that:

“(d) The learned trial judge erred in law in not dismissing the plaintiff’s claim as the same ought to have been evidenced in writing as it was a matter affecting an interest in land.

(e) The learned trial judge erred in not having the case sent to the High Court, Tarkwa, when an objection to its jurisdiction in terms of venue had been raised.

(f) The learned trial judge’s evaluation of the evidence was wrong and thereby erred in giving judgment for the plaintiff.

(g) The learned trial judge should have dismissed the plaintiff’s claims, as it was clear that judgment in exhibit B of suit No LS 18/95 and entitled J K Ntrakwa v Ghana Private Road Transport Union was wrong and that the same could not be relied upon.”

In his statement of case, counsel for the appellant argued grounds (a) and (f) together. He started by contending that the respondent’s case was based on a previous action in the High Court. But that action was instituted in the name of one “J K Ntrakwa” while the respondent in the instant case was called “Solomon Ntrakwa.” The respondent in the instant case could not use that judgment because that name did not refer to him. The respondent sufficiently explained that issue in his evidence when he averred that J K Ntrakwa was his father’s name and further that it was his father who commenced the action before he continued it. Evidence on that issue was equally sufficient answer to the point made by the appellant when he said that exhibit A, in which a demand was made for the unpaid amount, was written on behalf of J K Ntrakwa and not Solomon Ntrakwa.

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Another point made on behalf of the appellant was that Shell Company and not the respondent or his father operated the station. That did not help the respondent’s case. This is because in this country petrol stations are operated on behalf of oil companies like Shell Company. The companies themselves do not run stations. This is a fact so notorious that judicial notice can be taken of it. In any case, the appellant has admitted paying rent to the respondent, and not Shell Co. That fact is an admission that the appellant accepted the respondent as the one with authority to negotiate business in respect of the land in question.

Counsel for the appellant also argued that the first plaintiff witness who testified for the respondent was the respondent’s brother-in-law and therefore his evidence should not have weighed much on the trial judge or should have been disregarded. The answer to that submission is that the mere fact that a witness is related to a party is no ground for the evidence of that witness to be rejected or disregarded. The rule cited by counsel for the appellant seems to have been originated in Adai v Anane [1973] 1 GLR 144 in which Osei Hwere J (as he then was) held (in the headnote of the report) that:

“A plaintiff in an action for a declaration of title assumed the heavy burden of proof and he could not discharge that onus by merely calling his relations to support his evidence. To do so would invite the failure of his case.”

That statement was often cited as authority for the proposition that a party could not rely on his relations to prove his case. Whether or not that was the ratio decidendi in that case was not clear. In any case, that view was deprecated in Nkaeguo v Kunadu [1974] 2 GLR 150 at 157 where it was held by Edward Wiredu J (as he then was) that:

“I doubt whether Adai’s case cited by learned counsel for the plaintiff laid down any such general principle of law that it is incompetent to prove a fact in issue by calling a relation. If it did then it is respectfully submitted that it is a dangerous principle and should be rejected because the position of each witness must be determined on its own peculiar facts.”

On the other hand, in Tanko v Karami [1989-90] 2 GLR 189, CA, where a witness gave evidence with a motive to help his friend, it was held that the court was entitled to place no weight on that

[p.285] of [1999-2000] 2 GLR 278 evidence. What may be said to be deducible from the decided cases is this: There is no general principle to the effect that the evidence of a witness should be rejected merely because the witness is related to the party on whose behalf he testifies. Whether the evidence should be rejected or accepted depends on the facts and circumstances of each case. Where the only witness available on an issue is a person related to one party, to reject his evidence on the grounds that the witness is related to that party will sometimes not only prevent that party from making his case, but may also deny him justice, as it was held in Nkaeguo v Kunadu (supra). In that case, all but one of witnesses to the demarcation of a piece of land were dead, that one being the defendant’s sister who testified for him. The argument that her testimony should be rejected on account only of the fact of the relationship was overruled.

The evidence of a witness who is a relation is no doubt to be treated with caution for the obvious reason that it is said that blood is thicker than water. It cannot be taken on its face value like the evidence of a witness who is no relation of any of the parties. It has to be examined to determine whether it is tainted by bias, prejudice, interest, motive etc and it may be rejected for any of these. If none of these can be read into the evidence, it may be considered on the same basis that any other evidence before the court will be equally examined.

In the instant case, the first plaintiff witness quickly owned up in cross-examination when asked about his relationship with the respondent and said that he was the brother-in- law of the respondent. At the same time he told the court that he was a member of the appellant union. He said he was at the meeting where it was agreed that would be paid by the appellant. His evidence was subjected to cross-examination and it was not established that he harboured any motive or had any bias or interest because of his relationship with the respondent. It would appear that his continued membership of the appellant union underscored his neutrality and provided a stronger ground for accepting his evidence. If his relation with the respondent could provide a source of his interest in favour of the respondent, his membership of the union could also provide a source of interest for the appellant’s cause. At the end of the trial the trial judge who saw his demeanour in the witness box decided to believe him. The evidence clearly supported the findings of the trial judge on

[p.286] of [1999-2000] 2 GLR 278 this issue even though he assigned no reason for the conclusion he came to in respect of the relationship of the first plaintiff witness with the respondent. That notwithstanding, the trial judge based much of his findings on his observation of demeanour of the parties and their witnesses, as counsel for the respondent rightly pointed out in his statement of case.

The well-established rule is that an appellate court is not entitled to interfere with the findings of fact made by a trial judge unless those findings are not supported by the evidence on the record or that the judge did not take all the circumstances into account or that he misapprehended the evidence or drew inferences where there was no evidence in support thereof. There are several authorities in support of these principles, including Darkwah v Denteh [1972] 2 GLR 305, CA; In re Yendi Skin Affairs; Yakuku II v Abudulai (No 2) [1984-86] 2 GLR 236, SC; Log & Lumber Ltd v Oppon [1977] 2 GLR 263, CA and Praka v Ketewa [1964] GLR 423. In the instant case, counsel for the appellant has not been able to show any error in factual findings made by the trial judge, neither has he been able to show that he made findings or drew inferences which were not supported by the evidence. For these reasons, the grounds of appeal based on the weight of evidence as contained in grounds (a) of the original grounds and grounds (f) of the additional grounds, fail and are dismissed. Direct authority in support of this view is Kyiafi v Wono [1967] GLR 463, CA.

Ground (b) of the original grounds of appeal concerned award of interest. The respondent demanded 45 per cent as interest on the amount claimed in the writ. The trial judge granted that rate of interest to the respondent and added that the interest was to be exacted till the final payment. No reason was assigned by the judge for that award. The evidence on the record cannot sustain the award of 45 per cent interest on the amount claimed. In the first place, neither the respondent nor any of his witnesses led any evidence on the issue of interest. The rate of 45 per cent was therefore arbitrary. The mere fact that it appeared in the writ of summons was no reason for granting it. In the second place, the award made by the trial judge was per incuriam because there are statutes governing the award of interest by the courts but none of them was considered or even referred to. The award of interest is the now regulated by the Courts (Award of Interest) Instrument, 1984 (LI 1295).

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The basis for the award of interest is that the appellant had unjustifiably kept money belonging to the respondent and that they should not be allowed to keep the money plus the profit that would have accrued if the money had been put to business. It is that profit that is demanded as interest from the defendant. In the instant case, the trial judge upheld the respondent claim as appearing in his writ. According to the respondent, the amount became due in 1990. That too was accepted by the trial court. When the court found that the amount claimed in the writ was due to the respondent, but had been kept by the appellants by reason of its non-payment, interest became due on that amount.

On the basis of the principle explained herein, the respondent was entitled to interest on that amount from 1990. The rate of interest should however be at the prevailing bank rate and on simple interest basis as per the terms of LI 1295. The rate of 45 per cent ordered by the trial judge was wrong and should be set aside. Interest in the terms of LI 1295 is payable up to today, the date of judgment. After today and until the date of final payment, interest is to be at four per cent in accordance with Order 42, r 15 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) since this case emanated from the High Court. Of course the prevailing bank rates should be calculated at all relevant times since they differ from day to day.

Prior to the institution of the instant action the respondent’s father had obtained a judgment in the High Court presided over by another judge. That judgment decreed title in favour of his father. Indeed, the instant action was based on that judgment. In ground (g) of the additional grounds of appeal, the appellant contended that that judgment was wrong and that it could not be relied upon. In his statement of case, counsel sought to sustain that ground by attacking the merits of that judgment. That was the wrong way to impugn the judgment. The defendants in that case were the same as the defendants (the appellant) in the instant case. They did not appeal against it or attempt to set it aside. Whatever issue they wished to raise with that judgment was already res judicata. The judgment being one delivered by a court of competent jurisdiction is valid and binding on the parties to it, until it is set aside. Ventilating criticism against it in another case is not the proper mode to set aside or nullify a judgment of a court. There is no merit in the arguments canvassed in support of that ground of appeal. It is accordingly dismissed.

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In ground (d) of the additional grounds of appeal, counsel for the appellant contended that the claim should have been dismissed since it was not evidenced in writing as required by the Conveyancing Decree, 1973 (NRCD 175), s 1(1) That section provides that:

“1. (1) A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorised in writing, unless relieved against the need for such a writing by the provisions of the section 3.”

Section 2(a) of NRCD 175 also provides that:

“2. No contract for the transfer of an interest in land shall be enforceable unless- (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 behalf of such person . . .”

These sections deal with the transfer of an interest in land or contract for the transfer of an interest in land. Quite clearly, the sections are inapplicable to the facts of the instant case. The respondent’s case was based on the fact that the appellant’s had prevented him from using his land as a petrol station. The claim was for compensation for that prevention. It was not for the passing of any interest in the land from one person to another. If any interest was discoverable from the facts, it was interest vested in the respondent himself as landlord to use his own land by himself. That the respondent was the landlord was beyond dispute as the appellants pay rent to the respondent. If that interest had to be in writing, it could be seen in the judgment, exhibit B. Since the relationship between the respondent and the appellants was compensation, how could the respondent have got the appellants to have signed a document or merely to have agreed to sign a document that the appellants were preventing the respondent from using the land as a petrol station? That would not only have been unrealistic, it would have been absurd. If there were any such requirement, at what stage were they to sit down to sign such an agreement or writing—before the prevention, during the prevention or after the prevention? Ground (d) also failed as unmeritorious and should be dismissed.

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In ground (e), the appellant contended that the trial judge erred in not transferring the case to the High Court, Tarkwa, when objection was raised in terms of the venue. When counsel for the appellants argued this ground, he contended that all the parties and their witnesses were resident in Bogosu which was under the Tarkwa High Court. He relied on the High Court (Civil Procedure) (Amendment) Rules, 1977(LI 1107), r 1(1), (3), (5) and (6) The relevant rules are as follows:

“(1) Every writ of summons shall be issued out of the Registry and shall, without prejudice to the provisions of section 99 of the Courts Act, 1971(Act 372) be regulated in accordance with this rule.

(2) All actions relating to land, or any mortgage or charge thereon or any other interest therein or for any injury thereto, shall be commenced in the Region in which the land or any part thereof is situated.

(3) All actions relating to moveable property distrained or seized for any cause shall be commenced in the Region in which the distress or seizure took place.

(4) All actions for recovery of a penalty or forfeiture, and all actions against public officers, shall be commenced in the Region in which the cause of action arose.

(5) All actions for specific performance, or upon the breach, of any contract, shall be commenced in the Region in which such contract ought to have been performed or in which the defendant resides.

(6) All other actions shall be commenced in the Region in which the defendant resides or carries on business.”

It is obvious that the emphasis in these rules is on the region where the cause of action arose or the region where the subject-matter is situated or where the defendants reside. Bogosu, where the land in question is situated; Sekondi where the case was actually tried and Tarkwa to which application was made for the case to be transferred are all situated in the Western Region. The rules would seem to have been complied with. On the face of the law, that ground of appeal cannot be sustained and therefore failed.

The trial judge made matters worse by the reason he assigned for overruling the objection raised against his court as the venue for the trial of the case. In his ruling, he stated that:

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“The matter in controversy or issue here is as to whether the defendants agreed to pay the plaintiff the amount being claimed in this action. I believe that this is a straightforward issue and can be expeditiously dealt with in this court. Application for transfer is therefore overruled”

What made him believe that the matter could not be expeditiously dealt with at Tarkwa? The trial judge could not be right that the trial would be more expeditious in Sekondi where the parties and their witnesses had to travel longer distances to get to court than Tarkwa where the distances were much shorter.

Ground (c) of the original grounds of appeal was that the trial judge erred in awarding costs of ¢3 million for the respondent. The appellant or his counsel canvassed no arguments on that ground. The general principle is that the award of costs is the discretion of the trial judge .This is emphasised in LN 140A, Order 65, r 1. The discretion should however be exercised judicially, having regard to the amount of work put in the preparation and conduct of the case as well as the time taken by the court and the parties in completing the trial. The trial of the instant case did not last long. It started in December 1997 and was concluded within seven months. Judgment was given in July 1998. There were no complicated pleadings and only three exhibits were tendered. Having regard to the shortness of the trial, the speed at which the case was disposed of in the court and the simplicity of the pleadings, the award of ¢3 million as cost was rather on the high side, amounting to almost ten per cent of the total claim in the writ.

If the plaintiff was put out of pocket by the fact that he had to travel with his witnesses to the distant trial court, that was his own making because he did not have to prosecute the claim at Sekondi, for the reasons already stated. Such self-imposed hardship or needless expenditure cannot justifiably ground the award of heavy costs. For instance, in Sasraku v David [1959] GLR 7 at 12, CA, the engagement of an Accra based lawyer who had to make frequent journeys to Kumasi in order to conduct court trial in that case was held to be no justification for the award of two thousand guineas costs which at that time was found to be manifestly excessive. In all the circumstances of this case, ¢3 million was excessive and should be reduced. The ground of appeal relating to cost succeeds and should be allowed.

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In the end, ground (c) of the original grounds of appeal is wholly allowed. Ground (b) of the original grounds of appeal relating to interest is allowed in part. All the other original and additional grounds of appeal fail and are dismissed.

Baddoo JA. I agree.

Afreh JA. I also agree.

Appeal allowed in part.

LSNA