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  • appeal
  • 1961-02-13
  • GLR 93-96
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Practice and procedure?-Failure of trial judge to find material facts.


The plaintiff claimed declaration of title to land in the Land Court, Accra. This claim was dismissed and the plaintiff appealed to the Supreme Court on the grounds that the judgment of the trial court was vague, unsupported by any reasons, and otherwise erroneous and against the weight of the evidence.


APPEAL from the judgment of Sarkodee-Adoo, J., (as he then was) delivered on the 2nd October, 1959, in the Land Court, Accra. The facts are set out in the judgment. [p.94]


Van Lare, J.S.C. delivered the judgment of the court. This is an appeal from the judgment of Sarkodee-Adoo, J. as he then was, delivered on the 2nd October, 1959, in the Land Court, Accra, in a suit in which the plaintiff claims declaration of title to a piece of land at North West Korle Gonno Lay Out, Accra; recovery of possession; damages for trespass and perpetual injunction restraining the defendant, her agents and servants from entry upon the land in respect of which the defendant also counterclaimed for damages for trespass and perpetual injunction against the plaintiff.

The land, the subject-matter of controversy, appears to be a portion of Sempe stool land; the plaintiff bases his claim on a deed of gift purporting to be executed in his favour by Nii Tetteh Kpeshie II, Mantse of the Sempe stool, with the consent and concurrence of the elders and councillors of the said stool. The document executed on the 31st March, 1953, appears to be in order on the face of it and there is no suggestion to the contrary. The defendant on the other hand who has put up a swish building on the land claims to have done so by reason of a grant to her by one Abudulai Tia, who claims to be the caretaker and to have the right to do so, relying upon authority given to him by the Dsasetse, stool mother and elders of the Sempe stool to grant the stool lands in the area concerned to members of the Hausa community to which the defendant belongs. The testimony of Abudulai Tia on this point is supported by that of Nii Kpakpo Muffat, Dsasetse of Sempe. The evidence is not clear whether the gift to the plaintiff or the grant to the defendant is prior in time to the other and there is no finding on this issue. It does, however, appear that at the time material to the grant to the plaintiff by the Sempe stool either Nii Tetteh Kpeshie II had been suspended from acting as an occupant of the stool or had in fact been destooled. There was also the suggestion that even if Nii Tetteh Kpeshie II had been destooled at that time the destoolment had not been recognised by the Government. There was, therefore, the question for a decision whether in the circumstances Nii Tetteh Kpeshie II?'s acts could or could not bind the stool.

Further it should be pointed out that the name of Nii Kpakpo Muffat, the Dsasetse of Sempe, admittedly an elder of the Sempe stool according to customary law, who gave evidence for the defendant does not appear as one of the elders whose consent and concurrence had been obtained for the alleged alienation to the plaintiff. This witness deposed that Nii Tetteh Kpeshie II was, at all times material to the case, destooled for alienating Sempe stool land not in accordance with custom. It became therefore necessary for specific findings as to this and other issues raised at the trial to be given and recorded but the learned judge did not record any findings of such primary facts. This court is therefore left without the necessary foundation as to (1) whether at the time of the grant to the plaintiff Nii Tetteh Kpeshie II was the occupant of the Sempe stool; (2) whether the grant to the defendant was made by a competent person; and (3) arising from (1) and (2) whose right to the disputed land accrued earlier in time, both parties claiming and relying on the same origin of title. [p.95]

In a short judgment the learned trial judge, without assigning any reasons, simply expressed the opinion that he did not think that the plaintiff had discharged the onus of proof which lay on him and he was also of the opinion that the deed of gift to the plaintiff did not confer the title as claimed by him. The defendant?'s counterclaim appears to have been summarily dismissed in this way: ?"On the evidence before the court neither of the parties can succeed on the claim and on counterclaim.?"

From this decision the plaintiff has appealed to this court. The sole matter of complaint in this appeal is that the learned trial judge had not found the primary facts and that the judgment is vague. I think there is great force and substance in this contention. This court can only do justice between the parties if it is satisfied that the foundation has been laid by the trial judge whose duty it is to resolve the primary facts. Once the facts are found an appellate court is in as good a position as a trial judge to draw inferences or conclusions from those facts; but it cannot embark on this task unless the facts are resolved. This court has often expressed the opinion that if the question ?"What are the facts found??" cannot be answered with precision and particularity the judgment ought to be held unsatisfactory and a new trial ordered because the judicial process had not been applied.

There is no doubt in my mind that before writing his judgment the learned trial judge must have directed his mind to the matters in issue to which I have already referred before coming to the conclusion which he reached but unfortunately the written judgment appealed from is only the bare conclusion reached, which in my view falls short of a reasoned judgment required by law. While it is safe for this court to conjecture the exercise that went on in the mind of the trial judge before he wrote his judgment it is impossible on the other hand to conjecture the trial judge?'s findings on the several facts which he must have arrived at but unhappily sub silentio. It is a trial judge?'s duty to make up his mind one way or the other on the primary facts and when he has made up his mind he should state his findings and then proceed to apply the law. It is only then that his court can properly adjudicate as to whether the facts are properly found or the inferences properly drawn or the law properly applied.

Although this court is not debarred from coming to its own conclusion on the facts, it cannot in this present case resolve the matters in controversy between the parties one way or the other in the absence of findings of the primary or the material facts.

I am therefore impelled to the view that the trial of the case was unsatisfactory and there must be a re-trial, and I would therefore allow the appeal and set aside the judgment appealed from, but remit the case to the court below for a re-trial.


<P>Appeal allowed.</P> <P>Case remitted to High Court for a re-trial.</P>

Plaintiff / Appellant

A. W. Acquaah

Defendant / Respondent

B. Pabi


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