Ackah v Pergah Transport Ltd. and Others Civil Appeal No. J4/5/2009

Material Facts:

The plaintiff-respondent-appellant, hereafter the plaintiff, instituted an action for declaration of title to house no. plot 642 East Legon Accra. He alleged that on the advice of one Mr. Thompson, the former managing director of SG SSB Bank, he agreed with the 2nd defendant-appellant-respondent to buy the house offered to him by SG SSB Bank in the name of the 1st defendant-appellant-respondent, Pergah Transport Ltd, to increase the company’s assets and consequently enable it to win a bid from the Ghana Commercial Bank, after which the house would be transferred back to him.

These claims were refuted by the first defendant-appellant-respondent, Pergah Transport Ltd., and the second defendant-appellant-respondent, the managing director of Pergah Transport Ltd. They claimed that they made an offer to buy the house, and while the 2 ^nd defendant-appellant-respondent was waiting for funding from her brother, the plaintiff offered financial assistance to them to enable them to purchase the house. They also stated that there was no agreement to transfer the house to the respondent after they won the bid.

Procedural History:

At the High Court, judgement was given in favour of the respondent. On appeal, the Court of Appeal stated that the respondent had the burden of proving the agreement he had with the 2 ^nd defendant, but he failed to discharge this burden when he did not get Mr. Thompson to testify on his behalf. The appeal was therefore allowed. The respondent appealed to the Supreme Court.

Argument of the Plaintiff-Respondent-Appellant:

1. That in the Court of Appeal, the defendants-appellants-respondents only submitted that the judgement of the High Court was against the weight of evidence. However, the Court of Appeal, contrary to the decision in Brown vs. Quarshigah [2003-2004] SCGLR 920, decided to consider the issue of whether the respondent has discharged the burden of proof.
2. That Mr. Thompson was not a material witness because he was not privy to the arrangement the respondent had with the 2^nddefendant.

Ratio Decidendi:

In disagreeing with the argument of the plaintiff, their lordships advanced that an appellate court has the duty to decide if a party who bears the burden of proof has properly discharged that burden. In the judgement of their lordships,

It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things(often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.

Per their lordships, the above principles stem from Sections 10 and 11 of the Evidence Decree.

On the second argument by the defendant on Mr. Thompson not being a material witness because he was not aware of the arrangement between the plaintiff and the 2 ^nd defendant-appellant-respondent, their lordships held that the plaintiff had himself said in the trial court that he had all discussions and arrangements on the house with this same Mr. Thomson who asked him to help the 2 ^nd Defendant to get her business going. There was therefore a positive assertion by the plaintiff that Mr. Thompson knew about his alleged agreement with the 2 ^nd defendant, and the onus was on him to “establish these matters which were capable of proof by simply calling Mr. Thompson as a witness to corroborate the evidence.” Their lordships agree with the Court of Appeal that failing to call Mr. Thompson, a material witness, was fatal to the discharge of the evidential burden he assumed in the trial.

Finally, their lordships evaluated the defendants’ claim that the plaintiff merely gave out a loan to purchase the house. During the cross-examination of the plaintiff, he admitted that it was the first defendant that made the offer to purchase the property and was only concerned with providing assistance to the defendants. Further, the sale agreement also did not make reference to the plaintiff and his interest in the property, and “it is trite law that when a transaction has been reduced into writing by agreement of the parties, extrinsic evidence was in general not admissible to vary the terms.”

Principles in Case:

1. A party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail.
2. Matters that are capable of proof must be proved by producing sufficient evidence so that, on all the evidence, a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence.
3. When a transaction has been reduced into writing by agreement of the parties, extrinsic evidence was, in general, not admissible to vary the terms.