Oppong Vrs Danqua III (H1/306/05) [2006] GHACA 3 (17 March 2006);
IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL – ACCRA
CORAM - AKOTO-BAMFO, JA [PRESDING]
ASARE-KORANG, JA
KANYOKE, JA
H1/306/05
17TH MARCH, 2006
NANA BRAM OPPONG … PLAINTIFF/RESPONDENT
V E R S U S
NANA MIREKU DANKWA III … DEFENDANT/APPELLANT
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J U D G M E N T
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ASARE-KORANG - The plaintiff/respondent (hereinafter referred to as the Respondent) sued the defendant/appellant (Appellant for short) claiming a STIHL chain saw machine from the appellant.
The undisputed facts are that whilst the agent of the respondent was working with a chain saw machine belonging to the respondent in a forest near Bramkrom, agents of the appellant who is the chief of Pankese and whose fiefdom is Bramkrom, seized the chainsaw machine and carried same to the palace of the appellant.
The appellant admitted that his agents did seize a chain saw machine.
The matter was brought to court because the parties disagreed as to the make or model of the chain saw machine that was seized. Whist the respondent insisted it was a SHITL machine, the appellant claimed it was a DOLMAR. The appellant also said he had handed over the said machine to the Nkawkaw Police to be delivered to the respondent.
In the court below the issues set down for trial were:
- whether or not the chain saw machine is still with the defendant (Appellant0
- whether the court has ordered the return of the chainsaw machine to the
plaintiff (Respondent).
- whether the chain saw machine given to the Police by the Defendant
(Appellant) is the one unlawfully taken away from the plaintiff (Respondent)
by the defendant (appellant).”
At the end of the trial, the learned judge gave judgment in favour of the Respondent.
Against that judgment the appellant filed an appeal in this court alleging the following grounds.
“(a) The judgment was against the weight of evidence on record.
(b) The court erred in relying on a receipt tendered by the Respondent
which only showed that one Kofi Koranteng had bought a STIHL
machine in Nigeria without evidence that same had come into the
constructive possession of the Appellant
(c) the court erred in calling the Respondent to lead fresh evidence (tendering
the Receipt when Respondent had closed his case.
(d) Cost (sic) awarded was high.
(e) Further grounds will be filed on receipt of the record.”
No further grounds were filed and as counsel for the Respondent in this appeal observed, no submissions were offered in respect of grounds (c) and (e) of the Notice of Appeal.
The Appellant admits that the learned trial judge made findings to the effect that the chain saw machine that was seized by the agents of the appellant was a STIHL machine. But the appellant submits that the trial judge gave reasons that cannot be supported by the law, the evidence on record and the established facts.
The appellant cites the undisputed material fact that a chain saw machine was brought to the palace of the appellant. The appellant, however, argues that the question is the type or make of chain saw machine that came to the appellant. Was it a DOLMAR or a STIHL?
Since the appellant denies that it was a STIHL machine he contends that it was incumbent on the respondent to prove that the machine was a STIHL by calling corroborative evidence to that effect. Because the Respondent testified that he gave his machine to his workman called Amerley, the appellant argues that the Respondent should have called Amerley to confirm or corroborate his averment that the machine was a STIHL.
Instead the appellant says the learned judge proceeded on the assumption that the appellant should have taken down the number on the machine to enable him prove that the respondent’s statement that the machine was a STIHL machine was wrong.
Again the appellant argues that it is a matter of some controversy whether the receipt issued in the name of one Kofi Koranteng in respect of the machine, is proof that the machine belongs to the respondent himself.
Consequently, tendering the receipt, without more, for the machine which was allegedly purchased in Nigeria does not establish that the machine was the property of the Respondent.
The appellant submits that, the findings made on these matters in favour of the respondent were not based on the established facts and desires that those findings be reversed by this court having regard to the decision in the following cases:
Benmax Vrs. Austin Motor Co. Ltd. {1952}2 WLR 418, H.L., Morris Vrs. West Hartlepool Steam Navigation Co. Ltd. {1956} 1 WLR 177 HL and Tonazzi Vrs. Brunetti {1953} 14 W.A.C.A. 403
In this case, the learned trial judge chose to believe the evidence of the Respondent as against that of the appellant when he stated in his judgment at page 42 of the record:
“The plaintiff has produced a document of his chain saw, the chief whose
agents seized the machine have not been able to return it. The agents were
working for the chief and he is vicariously responsible for their commissions
and omissions which go against the law.”
In my view, these findings are in accord with issues (a) and (c) which were tried in the court below and I find no compelling reasons why I should interfere with or disturb those findings.
The Respondent testified in court alone for himself and did not call any witness in support of his case. And the trial judge found him a sufficiently credible witness. See: Kru Vrs. Saoud Bros {1975} 1 GLR 46 C.A. and Logs & Lumber Ltd. Vrs. Oppong {1977} 2 GLR 263 C.A.
The finding made as to the credibility of the respondent is further buttressed by this observation by the learned judge regarding the demeanour of the parties when he said in his judgment at page 42:
“The plaintiff said he went to the chief with his operator. They showed the
chief their permit……..
The operator was not brought to court to corroborate this. But I have
observed the chief and the plaintiff as they came and went away from
this court. I can say the chief has no patience for the impoverished blind
man.”
This is an observation made by the trial judge as to the demeanour of the parties as they appeared before him at the trial and I find no compelling reason to fault it.
The Appellant also recites three or four of what I choose to call HOMILIES delivered by the learned trial judge which are assailed as extraneous, irrelevant and unfortunate, one of which I have just mentioned or set down above. This was the statement made by the trial judge that he had observed the parties coming in and going out of court and had come to the realization that the appellant, a chief, had no patience for the impoverished blind Respondent.
The other observations are as follows:
(a) the learned trial judge accepted the allegation made by the Respondent
that the appellant demanded ¢1,000,000.00 (One Million Cedis) from him
to be paid to the appellant’s Krontihene, because “sheep are slaughtered
in our chiefs courts for the smallest infractions.”
(b) the learned judge believed the ¢1,000,000.00 was going to be used by the
Appellant to finance members of his Task Force who seized the
Respondent’s machine for alleged illegal felling of trees.
- The learned judge, it is said, so disliked the appellant that he stated angrily at
the end of his judgment that –
“…..those who value the rule of law will be encouraged by the heroic stand of the blind man against the tyranny of a monarch.”
What I find about this last statement is that it is in every way a moralizing discourse but as to whether it was delivered angrily by the trial judge, I am not in a position to comment since it is a distinctive attribute assigned to the delivery of the trial judge in the absence of members of this court.
Nonetheless, the appellant submits that these statements did not arise from the evidence before the trial judge and in incorporating them in his judgment, the learned judge was not looking at the evidence recorded by him. In the end, therefore, the appellant contended, the judgment was faulty.
I am of the view that the evidence on record, coming from the respondent, was sufficient to support the finding by the learned judge that the Respondent produced a document on his chain saw in proof of his case that the machine was a STIHL and not DOLMAR and that the agents of the appellant who seized the respondents machine have not been able to return it for which reason the appellant is vicariously liable for the return of the machine or its value to the Respondent. This finding was apparently based on the evidence of the appellant himself that the machine was put in the room of the appellant’s agent, one Kofi Frimpong for later collection but the Respondent deliberately refused or neglected to go for it.
If the learned trial judge indulged in sermonizing or moral exhortations in his judgment about tyrannous monarchs and monarchists and customary practices in chiefs palaces such as the slaughtering of sheep and the imposition of fines, these did not detract at all from the quality of the judgment and the conclusion that the Respondent was entitled to the reliefs he claimed.
I do not think any substantial miscarriage of justice was occasioned by the learned judge’s HOMILECTICS.
The judgment of the learned trial judge is therefore affirmed and this appeal dismissed.
- ASARE KORANG
JUSTICE OF APPEAL
AKOTO-BAMFO, JA - I agree that the appeal be dismissed for the reasons adduced by my learned brother. I am of the view that the extraneous matters referred to by my learned brother should not be allowed to cloud the issues raised in the court below.
V. AKOTO-BAMFO
JUSTICE OF APPEAL
KANYOKE, JA - I also agree.
S.E. KANYOKE
JUSTICE OF APPEAL
COUNSEL - MR. FRIMPONG BOADU FOR THE APPELLANT
MR. BRAM LARBI FOR THE RESPONDENT. (But absent).
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