WILLIAM ASHITEY ARMAH v. HYDRAFOAM ESTATES GHANA

APPIAH, J.A.:

I write in support of the conclusion just reached by my brother Akamba, J.A. The facts have been sufficiently set out by him so I will not repeat them except where necessary.

I would like to highlight a few issues.The central issues before the Judge in the court below were whether or not the land sold to the defendant by the plaintiff was 16.08 acres (i.e. approximately 64 plots or rather 22 residential plots and whether or not both parties subsequently agreed on the price of US$10,000 per plot for the remaining 42 plots.For me, these central questions resolve themselves, at bottom, to one of fact.At the summons for direction stage, the learned trial Judge mindful of Orders 32 r.7 and 33r.5 of C. 1.47 consented to admission and agreement by parties to take legal arguments after limiting the issues to the sole issue of the value to be placed on the 42 plots.

And in pursuance to that the trial Judge after hearing legal arguments from counsel for the parties and five witnesses, two of whom were court expert witnesses, with the remaining three being witnesses for the defendant and evaluating the evidence in relation to the applicable law, resolved the issues in favour of the respondent.But reading through the record of appeal, one point which stands out is whether a court is justified in deciding a case upon legal argument only when the facts are disputed by a party.

Secondly,whether in taking only legal argument, a court is justified in deciding upon the factual issues as well, without taking oral evidence from the parties.

These legal points are the most crucial ones to resolve this case.I must say that there appears to be a real controversy between the parties hereto on the ground when the facts are disputed by the defendant.

In such situation, the best way out for the court to arrive at a fair decision is to hear evidence from the parties including their witness(es), if any.

However, the trial Judge in the face of this real controversy between the parties on the facts,decided to take legal arguments to resolve the factual issues.In any case, the learned trial Judge in the course of the proceeding conceded having adopted a wrong approach to resolve the issue(es) in this case when he lamented at page 39 of the record that:If I knew this case would have turn (sic) this way we would have tried the case itself to knowThe trial Judge, having admitted adopting a wrong approach in this case, I have no doubt in my mind that, he misdirected hims