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BRAKOWAAH v. AWUAKYEWAH AND GYASI


  • appeal
  • 1961-03-17
  • SUPREME COURT
  • GLR 164-167
  • Print

KORSAH C.J., VAN LARE AND SARKODEE-ADOO, JJ.S.C.


Summary

Practice and procedure?-Proof of service of writ of summons?-Case remitted back to native court?-Whether trial native court?'s findings of fact may be reversed by High Court.

Headnotes

The issue between the parties was remitted to the native court by the West African Court of Appeal on the grounds that ?"the evidence as to service of the writ of summons in the case against the plaintiff [was] unsatisfactory, and that the native court misdirected itself as to proof of service.?"At the re-trial, the local court found that the service of the writ of summons was proved, relying upon the evidence of the bailiff only. Service was denied by the respondent, and the president of the local court which had heard the previous abortive proceedings also gave evidence that the respondent had not been served. In the record book, the note recording service on the respondent appeared to be in a different and fresher ink than the other entries.The Land Court, Cape Coast, reversed the finding of the trial native court on the ground that it had ignored decisive evidence and accepted ?"the obviously interested evidence of the bailiff in preference to the distinterested and unimpeachable evidence of the president at the material time.?" On appeal to the Supreme Court,

Judgement

APPEAL from the decision of Adumua-Bossman J. sitting in the Land Court, Cape Coast on the 10th July, 1957 (unreported) reversing the decision of the North Birim Native Court ?"A?" held at Oda given on the 22nd February, 1957. The plaintiff (the respondent herein) sought declaration of title to a cocoa farm which was sold in execution of writ of fi. fa. The facts are set out in the judgment of the Supreme Court.

JUDGMENT OF VAN LARE J.S.C.

The plaintiff (the respondent herein) was a defendant in a suit instituted by the first defendant in the present case before the North Birim Court ?"A?" in the year 1953, against her and another by the name of Kwame Noah for a debt due and owing. Judgment was purported to have been entered by the court against both defendants in that suit and following a fi. fa. the plaintiff?'s cocoa farm was attached and sold in execution of the purported decree against her. The said property was bought by the second defendant in the present case. By this action before the said native court instituted in July, 1954, the plaintiff challenges the judgment recovered against her on the ground that she had not been served with any writ of summons concerning the matter and was not present at the hearing and that therefore the judgment entered against her was in the circumstances null and void of effect, and could not warrant the sale of her cocoa farm, the subject-matter in dispute, concerning which she seeks a declaration of title. It is common ground that the only issue for determination in this matter was whether the plaintiff was served with the writ of summons which was numbered as 642/53 and exhibited as exhibit A in these proceedings.

This is the second time that this matter has reached this court, an earlier appeal having been allowed by special leave by the predecessor of this court, i.e., the West African Court of Appeal, which set aside a judgment in favour of the defendants and the case was remitted to the native court for a re-hearing in whole on the grounds that ?"evidence as to service of the writ of summons in the case against the plaintiff [was] unsatisfactory, and that the native court misdirected itself as to proof of service?".

It was observed that in the abortive proceedings the bailiff or person entrusted with service of the writ of summons did not give evidence but the court appeared to have taken notice of some scribbled notes, not quite conclusive of service on the plaintiff in the instant case, appearing on the summons directed for service on the other party as evidence of service on the plaintiff. Following an indication in the judgment of this court remitting the case as to the best evidence required with respect to proof of service, the native court in the present proceedings heard the bailiff. He deposed that he effected service on the plaintiff, who in no uncertain terms denied the same, alleging that she had been absent from the place where service was supposed to have been effected. Not only in this, but also as to non-service of the writ of summons in the case, she was supported by the president of the panel that tried the case, and also by the other party Noah who deposed that it was made known at the trial that as the plaintiff had not been served, judgment was to be given against him alone. The trial native court, however, found that the plaintiff had been served.

On appeal to the Land Court, Adumua-Bossman J., in his characteristic manner went through the whole of the evidence which he sifted and analysed with great and meticulous care; he reviewed the bailiff?'s evidence in the light of the other evidence such as that of the president of the panel [p.166] which tried the original case between the parties, the absence of an issue of a writ of summons directed to the plaintiff, the scribbled notes of the purported proof of service which leaves one with a grave air of suspicion of foul play, the evidence of Noah concerning the whereabouts of the plaintiff at all times material to the alleged service on her. It must also be pointed out that a scrutiny of the original notes of proceedings in the record book exhibited in the present proceedings clearly bears out the testimony of the president of the panel, Yiadom Bekoe, the Omanhene?'s Asafohene, when he deposed as follows:

?"I told the plaintiff that is to say defendant in this present case, that as Afua Brakowaah has not been served with the civil summons each time we sit on the case it will worry [her] Afua Awuakyewah, so if she so wishes judgment can be delivered against Kwame Noah alone. Defendant [i.e.,] Afua Awuakyewah agreed and judgment was delivered against Kwame Noah alone.?"

This question of non-service on the plaintiff appears to be supported by reference to the original notes in the record book which shows that the writing, that is to say, ?"served on 22/12/53?" is in a different and fresher ink than that which records ?"second defendant [referring to the plaintiff in the instant case] absent?". The irresistible conclusion is that the entry in the record book purporting to show that service was effected on the plaintiff in this case, (defendant in that case) was made subsequently and definitely not at the same time when it was noted that he was absent. The cumulative effect of all these matters can leave no doubt in one?'s mind that service had in fact not been effected on the plaintiff and also that no judgment had in fact been entered against her.

I find, therefore, that there is every justification for the learned judge finding himself impelled to declare that it seems

?"to reflect little or no credit on the new trial panel, to ignore the decisive evidence and pretend to accept the obviously interested evidence of the bailiff in preference to the disinterested and unimpeachable evidence of the president at the material time?".

That the bailiff is an interested person is plain. He had a stake in the game. He had created a make-believe which he had to support in order to save his own skin.

Dr. Danquah for the defendant-appellants in this court has nevertheless contended that a question of fact which had been decided in favour of his clients by the trial native court should not have been reversed on appeal before the Land Court. This would have been an argument of great weight if the re-hearing, that is the present proceedings, simply depended on either accepting or rejecting the evidence of the bailiff and nothing more; but this is not so. In any re-hearing as a whole, as in the present proceedings, the whole issue is at large and it must be presumed that the trial native court realised this position and came to its conclusion through its own views drawn by inference from the evidence as a whole. The Land Court in its appellate jurisdiction had formed the opposite view by the same method, that is by evaluating the whole of the evidence and I agree with the Land Court as I am convinced that the trial native court took a wrong view of the facts. [p.167]

In the result I would confirm the decision of the Land Court and dismiss the appeal.

JUDGMENT OF KORSAH, C.J.

I agree.

JUDGMENT OF SARKODEE-ADOO, J.S.C.

I also agree

Decision

<P>Appeal dismissed.</P>

Plaintiff / Appellant

Dr. J.B. Danquah

Defendant / Respondent

J.B. Short

Referals

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