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Land – Lease
– Forfeiter - Adoption of
proceedings - Article 123(9) -
1992 Constitution - Rule 6(8) -
Supreme Court Rules, CI 16 -
Demeanour - Whether the two
brothers had denied their
landlord’s title - Whether the
two brothers had forfeited the
lease – Whether or not judgment
was was given when the parties
did not agree to the adoption of
proceedings – Whether or not at
the time of the institution of
the action, the plaintiff did
not have any cause of action.-
Whether or not new judge
transferred had no jurisdiction
to use the procee
HEADNOTES
Mr. Charles
Lawrence Quist, now deceased,
instituted action at the High
Court, Accra, against Ahmed
Danawi, for ejectment from a
plot of land that was leased to
him and his brother, Abdulatif
Danawi, because according to
him, the two of them had denied
his title to the land and
therefore forfeited the lease
Ahmed contested the action upon
the basis that they had not
denied Mr. Quist’s title, so the
main issue that called for
determination at the trial court
was whether the two brothers had
denied their landlord’s title
and forfeited the lease.
Judgment was actually delivered
on 3rd June 2010 in
favour of plaintiff by the High
Court. This was overturned by
the Court of Appeal, ordering a
fresh trial.
HELD
We believe
that the trial judge was right
in proceeding to deliver the
judgment based on the
proceedings on record and the
Court of Appeal was wrong in
ordering a fresh trial. We
notice that before the court of
Appeal there was a second ground
of Appeal which was not dealt
with but was not raised before
us. However because all the
record of appeal is before the
court, and also to ensure the
speedy resolution of the main
issue in controversy, we refuse
to accede to the appellants
request that the matter be
remitted to the Court of Appeal
for the appeal to be decided on
its merits. Pursuant to rule
6(8) of the Supreme Court Rules,
CI 16, we will invite parties to
address us on the second ground
of appeal filed before the Court
of Appeal, which was not decided
upon for us to bring finality to
this case in this Court.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Supreme Court
Rules, CI 16
CASES
REFERRED TO IN JUDGMENT
Awudome
(Tsito) Stool V Peki Stool
[2009] SCGLR 681,
AdomakoAnanevrs. Nana
OwusuAgyemang (subst. by Nana
Banahene) and 7ors. (Unreported)
Civil Appeal No. J4/42/2013.
Boama v
Okyere [1967] GLR 548,
Coleshill v
Manchester Corporation [1928] 1
K B 776
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
BAFFOE-BONNIE JSC:-
COUNSEL
JAMES
AHENKORAH ESQ. FOR THE
PLAINTIFF/RESPONDENT
/APPELLANT.
E. K. AMUA
SEKYI ESQ. WITH HIM CYNTHIA
OPARE ESQ. FOR THE
DEFENDANT/APPELLANT/ RESPONDENT.
__________________________________________________________________
BAFFOE-BONNIE JSC:-
The events culminating in this
instant appeal have been
faithfully recounted in material
detail in the judgment of the
Court of Appeal and also the
statements of case of the
parties. We do not therefore
intend to set them out in
extensor. Suffice to say that
for a fuller and better
appreciation of our judgment we
will summarize the material
facts and events that have led
to this appeal before us.
Mr. Charles Lawrence Quist, now
deceased, instituted action at
the High Court, Accra, against
Ahmed Danawi, for ejectment from
a plot of land that was leased
to him and his brother,
Abdulatif Danawi, because
according to him, the two of
them had denied his title to the
land and therefore forfeited the
lease. Ahmed contested the
action upon the basis that they
had not denied Mr. Quist’s
title, so the main issue that
called for determination at the
trial court was whether the two
brothers had denied their
landlord’s title and forfeited
the lease.
The plaintiff gave evidence was
cross-examined and he closed his
case. When it was time for the
defendant to open his defence,
he was absent and his counsel
informed the court that since
his defence was purely
documentary, he sought
permission and same was granted
for the documents to be
tendered. The documents were
allowed in and the defendant
closed his case. Counsel for the
plaintiff was Mr. Ahenkorah
while counsel for the defendant
was Mr. Norvor. The trial judge
who presided over the
proceedings up to this stage was
the late GyamerahTawiah J. At
the close of day both counsel
were informed to file their
respective addresses by
8/11/2002 whereupon the parties
would be notified of the date
for judgment. In pursuance of
that, defendant’s counsel, Mr.
Norvor, filed the relevant
documents on 24th
September 2002 after which an
address was filed on behalf of
the plaintiff.
This was the state of things
when the suit was finally
transferred by the CJ to Justice
Bright Mensah following the
demise of Gyamerah-Tawiah
J.Bright Mensah J. ordered that
the record of proceedings taken
before GyamerahTawiah J, should
be typed so that the parties may
adopt the proceedings for the
case to proceed.
When both counsel appeared
before justice Mensah, there was
an initial discussion on the
exact status of the case. Whilst
Ahenkorah, who had all along
represented the plaintiff,
informed the court that the case
had gone through trial and was
left with judgment to be
delivered, Mr. Yoni Kulendi, who
had recently been appointed
defence counsel, was oblivious
of the real situation.
Apparently not having been
handed the original case docket
he could not even understand how
and why closing addresses had
been ordered and filed when his
client, the defendant, had not
given evidence. It was left to
Mr. Ahenkorah to explain the
situation. While Ahenkorah
insisted on the new judge
continuing from where the late
judge left off and give
judgment, Mr. Kulendi expressed
no opinion on this except to say
that there was a possibility
that the matter could be
settled. After some discourse
the trial judge decided to refer
the matter to the CJ for
directions.
Judgment was actually delivered
on 3rd June 2010 in
favour of plaintiff. Both
counsel were present. Thus ended
the trial at the High Court.
The defendant filed an appeal to
the Court of Appeal on two main
grounds that:
1) the judgment was wrong in law
because it was given when the
parties did not agree to the
adoption of proceedings after
the death of the trial judge and
there was no order for the
adoption of proceedings.
2) the judge failed to consider
the fact that at the time of the
institution of the action, the
plaintiff did not have any cause
of action.
Relying mainly on the case of
Awudome(Tsito)Stool V Peki
Stool [2009] SCGLR 681,
the Court of Appeal heard and
sustained the first ground of
appeal by holding that the new
judge to whom the case was
transferred had no jurisdiction
to use the proceedings prior to
the transfer to him without the
parties agreeing that those
proceedings be adopted. It
therefore set aside the judgment
of Bright Mensah J. and remitted
the case to be dealt with by a
High Court differently
constituted; A decision on the
second ground of appeal was
deferred. It is against the
judgment with respect to the
first ground of appeal therefore
that this appeal was filed.
The appellant has argued
extensively, as he did before
the Court of Appeal, that the
decision in
theAwudomePeki/Tsitocase(supra)
to the effect that the court
need the consent of parties to
adopt proceedings taken earlier
in a case, was wrongly given and
given per incuriam and that the
reliance on same by the Court of
Appeal was wrong. On his part
the respondent fully supported
the Court of Appeal decision to
remit the case back to the High
Court for it to be tried de novo
because the proceedings were not
formally adopted before the High
Court continued to deliver the
judgment based on the
proceedings.
The issue as
to whether proceedings already
taken before an earlier judge
has to be formally adopted
before a new judge, and the role
the parties, or their counsel
and the presiding judge, have to
play in the adoption, has been
finally settled per the decision
of this court in the case of
AdomakoAnanevrs. Nana
OwusuAgyemang (subst. by Nana
Banahene) and 7ors.(unreported)
dated 26th Feb 2014,
Civil Appeal No. J4/42/2013.Coram:
Wood CJ, Ansah, Anin-Yeboah,
Baffoe-Bonnie and Akamba JJSC..In
that case this court used the
opportunity to review various
decided cases on this subject of
adoption of evidence like,Boama
v Okyere [1967] GLR
548,Coleshill v Manchester
Corporation [1928] 1 K B 776and
theAwudome (Tsito) Stool v
Peki Stool (supra) and
pursuant to Article 123(9) of
the 1992 Constitution, departed
from its earlier held position
on this subject.
The Court,
per Wood CJ., in a very
illuminating ruling, gave
reasons for the departure.
Because of its importance we
will like to quote it in
extenso;
“The
pronouncement on this crucial
issue will alter the course of
our jurisprudence, in that it
would provide a more just and
far lasting legal solution to
the challenge which has faced
our courts in the past and
created enormous difficulties
for the smooth and speedy
administration of justice in our
jurisdiction. We concede that
the time is long overdue for a
volte-face from the age–old
legal position of “no agreement
by all the parties no adoption
of evidence” that the courts
have unremittingly followed for
decades. At this re-hearing, we
will not tie ourselves to the
existing legal principle, but
liberate ourselves from its
shackles.
“…..In the
administration of justice,
transfers, ill health, death,
resignations, retirements, and
other vicissitudes of life from
which the judiciary is not
spared have, unavoidably
necessitated the transfer of
part heard cases from one court
to another differently
constituted; that is from one
judge to another. The first
question which arises in such
cases is whether the new judge
must adopt the evidence taken by
the previous judge and continue
from where he or she left off or
the case be retried or heard de
novo, namely that fresh evidence
be received. Hitherto this
ground breaking decision; our
courts have adopted proceedings,
namely the evidence, only where
all the parties have given their
unequivocal consent. But more
often than not, this consent
has, without valid reasons,
unreasonably been withheld.
Under such circumstances, judges
have, in desperation thrown
their hands in the air and
yielded to a de novo hearing,
leading to needless delays.
The main
policy reasoning behind this
approach is the thinking that
the new judge can only serve
justice if he or she saw and
heard the witnesses to enable a
close monitoring or observation
of their demeanour. And yet,
speaking for this bench as
presently constituted, our
judicial experience,
cumulatively spanning a period
of over a century has taught us
that hardly does the demeanour
qua demeanour of witnesses play
a significant role when
evaluating the credibility of
witnesses. Courts tend to rely
on some more reliable criteria
such as documentary evidence,
the testimony of disinterested
witnesses, the implausibility or
otherwise of narrations given in
court, to arrive at their
findings and conclusions. As
noted by the learned author(of
the SCGLR Dr. Bimpong-Buta)
inter alia, (see the editorial
comments in Awudome (Tsito)
Stool v Peki Stool (supra)) :
“The
argument based on observation of
the demean our of parties and
witnesses is not always tenable,
especially where that trial
lasts for many weeks; months or
years as is common in the
courts. The effluxion of time
may cause memories to fade, wane
or totally forgotten and, in
that event, there can be no
legitimate reliance on demeanour
which cannot be recollected.
…If the
specific observation is not
apparent on the face of the
record, it may be attacked as
being speculative. If the
observation is properly recorded
and is apparent in the
proceedings, the second trial
judge can make use of them as
the basis for commenting on or
evaluating the credibility of
parties and witnesses. In that
event, the reason for insisting
on trial de novo will not be
applicable.”
And as he
further urged:
“On the other
hand, arguments for trial de
novo may be countered on the
following grounds: (i) the
protracted trials and delay in
the delivery of judgments; (ii)
they afford parties undue
advantage to reconstruct their
case and thus waste more time;
(iii) they encourage parties to
seek to embellish or improve
their case if they believe that
their performance or the
performance of their witnesses
did not go the way they wanted;
(iv) they can sometimes lead to
denial of justice where the
witness or party is dead or
otherwise unavailable and there
is no other means of hearing the
truth except to rely on what has
already been reproduced by the
court under cross-examination in
the previous proceedings; (v)
there will be denial of justice
where vital exhibit is lost or
otherwise unavailable but
details of it are on the record
and could have been used to
write the judgment if the
previous proceedings had been
adopted; and (vi) in fact in the
event of the last two reasons,
trials may have to be
discontinued or cases abandoned
or justice denied when, indeed,
adoption of the record would
have saved the continuation of
the trial and the entire case.”
Wood CJ
concluded;
“…..The
argument against de novo hearing
is so cogent and compelling that
sound case management policy
reasoning alone constitutes a
sufficient basis for charting a
new legal path in our
jurisprudence. We would,
therefore state the law as
follows. In civil proceedings,
the ultimate question of whether
or not evidence already adduced
before a previous judge be
adopted should not rest on the
parties’ consent. It should
exclusively be at the discretion
of the new judge who takes over
the partly heard case. Since
this involves the exercise of a
discretionary jurisdiction, we
will identify some of the
factors that must be taken into
account to arrive at this
decision. The judge’s broad and
primary concern must be to
ensure that the adoption of the
proceedings would not result in
any miscarriage of justice.
Specific factors that would
influence the decision would
include the length of time that
the case has been on the court’s
calendar, the stage at which a
trial has reached, the number of
witnesses already called, the
disputed issues, the nature of
the evidence- mostly narrative
or documentary, weighty
objections by either party, if
any, to its reliability, the
availability of the witnesses
who have already testified, the
quality and reliability of the
record or transcript.
“In this
appeal, we have before us a
reliable transcript of the
proceedings, signed by the judge
who received the evidence. We
have not the least evidence of
the slightest objection from any
of the parties’ relative to its
reliability. To the contrary,
the Respondent’s lament at one
time had been that the evidence
was not adopted in accordance
with the law. Again, the
availability and or memory of
the only parties and witnesses
who may happen to be alive and
who had earlier testified has
not been guaranteed, in respect
of this forty year old case. On
these bases, we will adopt the
proceedings and, at this
re-hearing, use the evidence to
resolve the disputed facts which
are central to this case.”
In this
appeal, like the one cited
above, we have before us a
reliable transcript of the
proceedings signed by the
judge
who received the evidence. We
have not the least evidence of
the slightest objection from any
of the parties’ relative to its
reliability. The proceedings of
the final day clearly indicate
that the problem of the
defendant counsel who was fresh
in the matter related only to
the state the case had got to
and not the contents of the
proceedings. When the plaintiff
counsel explained things to him
he understood and raised no
further objection.
We believe that the trial judge
was right in proceeding to
deliver the judgment based on
the proceedings on record and
the Court of Appeal was wrong in
ordering a fresh trial.
We notice that before the court
of Appeal there was a second
ground of Appeal which was not
dealt with but was not raised
before us. However because all
the record of appeal is before
the court, and also to ensure
the speedy resolution of the
main issue in controversy, we
refuse to accede to the
appellants request that the
matter be remitted to the Court
of Appeal for the appeal to be
decided on its merits. Pursuant
to rule 6(8) of the Supreme
Court Rules, CI 16, we will
invite parties to address us on
the second ground of appeal
filed before the Court of
Appeal, which was not decided
upon for us to bring finality to
this case in this Court.
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME COURT
(SGD) G. T. WOOD
(MRS)
CHIEF JUSTICE
(SGD) J. ANSAH
JUSTICE
OF THE SUPREME COURT
(SGD) J. V. M. DOTSE
JUSTICE OF THE SUPREME COURT
(SGD) J.
B. AKAMBA
JUSTICE OF THE SUPREME COURT
COUNSEL
JAMES
AHENKORAH ESQ. FOR THE
PLAINTIFF/RESPONDENT
/APPELLANT.
E. K. AMUA
SEKYI ESQ. WITH HIM CYNTHIA
OPARE ESQ. FOR THE
DEFENDANT/APPELLANT/ RESPONDENT.
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