KANNIN v. KUMAH & ORS

JUDGMENT OF VAN LARE AG. C.J.

Van Lare Ag. C.J. delivered the judgment of the Court:

This is an appeal from a decision of the Land Court, Kumasi, reversing concurrent findings of fact as to whether the house in dispute between the parties was validly sold by the predecessor of the plaintiff-respondent to the defendant-appellants. The trial native court resolved this question in favour of the defendants, having been satisfied on the facts that the plaintiff’s predecessor, [p.57] Kobina Agyarko, the original owner of the house in dispute, had sold it during his life-time. The trial-Court was therefore justified in entering judgment for the defendants. The onus was on the plaintiff, who failed to discharge it.

It must be pointed out that although there were six defendants to the suit, the judgment could be entered in favour of two only, that is to say, the 3rd (Kwame Adiyea), and 6th (Chief Kofi Nuamah). The other defendants, according to the evidence, were either dead or not served. These two were the only defendants present, and it was against them only that the plaintiff-respondent proceeded.

Unfortunately the trial-Court did not enter judgment for the defendants simply, but decreed that the property in dispute belonged to the defendants. Since they had not counter-claimed, this part of the judgment is improper and must be expunged.

The Asantehene’s “A2” Court confirmed the judgment of the trial-Court. On appeal, however, to the Land Court, Kumasi, the learned Judge reversed the decision, not on the ground that it was wrong, but because there were circumstances in the trial which made him feel that there was a lack of fairness, the president of the trial-Court not having displayed a favourable attitude towards the plaintiff-respondent. With due respect to the learned Judge, we disagree. There is nothing on the record to substantiate suspicion of unfairness against the president as alleged, and the trial-Court was therefore justified in ignoring the plaintiff-respondent’s allegation.

The Judge also referred to the rejection of a piece of evidence which forms part of the record. This is a copy of the evidence of a certain witness who deposed in a criminal prosecution of the plaintiff-respondent, and in our view cannot be evidence in the present proceedings. The trial-Court was therefore justified in rejecting it as inadmissible. On this point the learned Counsel for the plaintiff-respondent has conceded that the evidence sought to be tendered is inad