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UNREPORTED CASES OF THE SUPREME

COURT OF GHANA 2019

IN THE SUPERIOR COURT OF JUDICATURE

IN THE SUPREME COURT

                                                                                           ACCRA – A.D. 2019

FRED KWASI AWUAH   VRS THE HONORABLE CHIEF JUSTICE THE HONORABLE ATTORNEY WRIT NO J1/ 9/ 2018 19^TH DECEMBER, 2019

CORAM

YEBOAH JSC (PRESIDING) BAFFOE- BONNIE JSC BENIN JSC PWAMANG JSC MARFUL-SAU JSC DORDZIE (MRS) JSC KOTEY JSC

Constitutional law – Interpretation - Infringement of the 1992 Constitution - Suspension from office as a High Court judge - Impeachment proceedings - Judicial Council - article 146(10)(b) of the Constitution – Whether or not by the true and proper interpretation of Articles 2(1), 130, 146(10) 58(3) 297(c)  of the 1992 Constitution, it is only the President of the Republic who can suspend a Justice of the superior court who is facing an impeachment committee for removal from office - Whether or not the power of the President of the Republic to suspend a Justice of the superior court during impeachment proceedings cannot be delegated to the Chief Justice - Whether or not the Chief Justice cannot suspend a Justice of the superior court who appears before an impeachment committee set up under Article 146 for the purpose of removal from office - Whether or not the suspension of the Plaintiff from office contained in the 1st Defendant's letter dated 24th March 2016 is in breach of the Constitution and null and void - section 37(1) of the Evidence Act, 1975, NRCD 323 

HEADNOTES

 The defendants argued simply that the Chief Justice has the implied authority of the President to suspend a judge who has committed infractions of the criminal law, upon a purposive construction of some named provisions of the Constitution. They maintain the position that the Chief Justice acted to suspend the Plaintiff on the written authorization of the President and this accords with the provisions of Article 146(10)(b) of the Constitution. The point of factual disagreement between the parties relates to whether in fact and indeed the President of the Republic did write to the Chief Justice to suspend the Plaintiff. The Plaintiff claims there was no such written authorization, but the defendants maintain that there was. After a protracted discourse, the defendants filed a copy of the authorization letter in these proceedings. The Plaintiff has mounted a serious challenge to this letter, claiming, in a nutshell, that it is fake and a forgery. He catalogued a number of reasons for this claim and urged the court to reject it. The defendants opposed this, saying the letter must be accepted as an official deed.

 HELD

In none of these actions could the Chief Justice be said to have done anything that suggests personal interest. She was not the plaintiff's accuser, and was not said to have any interest in the accusation beyond following due process in investigating it. There is thus no merit in this issue. We find no merit in any of the issues set down. Consequently, none of the reliefs sought can be granted by the court. In the result the action entirely fails.

 STATUTES REFERRED TO IN JUDGMENT

1992 Constitution

Evidence Act, 1975, NRCD 323,

CASES REFERRED TO IN JUDGMENT

Gibbons v. Ogden, 22 U. S. (9 Wheat) 1 (1824).

Benson v. Benson (1941) P 90

Justice Edward Boateng v. The Judicial Secretary & 2 Others, Suit no. J6/3/2017,28 February 2018

BOOKS REFERRED TO IN JUDGMENT

“Normative Constitutional fact-finding: Exploring the empirical component of constitutional interpretation the University of Pennsylvania Law Review by David L. Faigman

 Black’s Law Dictionary, 9th Edition

DELIVERING THE LEADING JUDGMENT

BENIN, JSC:-

COUNSEL

KWAME ADUOBENG YANKYERAH FOR THE PLAINTIFF

 LESLIE NYANKSON (SENIOR STATE ATTORNEY) FOR DEFENDANTS BEING LED BY ELFREDA DENKYI (CHIEF STATE ATTORNEY).

BENIN, JSC:-

Introduction: Plaintiff's case

The plaintiff filed a writ before this Court claiming that the Chief Justice, the 1st Defendant herein, has committed infringement of the 1992 Constitution by writing to suspend him from office as a High Court judge, pending impeachment proceedings against him for his removal from office. He claims that it is only the President of the Republic who is empowered to suspend a Judge under article 146(10)(b) of the Constitution. In the affidavit in support of the writ, the Plaintiff recounted the facts leading to the setting up of an impeachment committee to investigate bribery allegation against him. He claims the Chief Justice has no role to play in suspending a judge who is undergoing impeachment. He therefore sought the following reliefs from this court:

1. A declaration that by the true and proper interpretation of Articles 2(1), 130, 146(10) of the 1992 Constitution, it is only the President of the Republic who can suspend a Justice of the superior court who is facing an impeachment committee for removal from office.

2. A declaration that by the true and proper interpretation of the said Article 146(10)(b) of the 1992 Constitution, the power of the President of the Republic to suspend a Justice of the superior court during impeachment proceedings cannot be delegated to the Chief Justice.

3. A declaration that the Chief Justice cannot suspend a Justice of the superior court who appears before an impeachment committee set up under Article 146 for the purpose of removal from office.

4. A declaration that the suspension of the Plaintiff from office contained in the 1st Defendant's letter dated 24th March 2016 is in breach of the Constitution and null and void.

5. An order of the court directed to the 1st Defendant to allow the Plaintiff to perform his duties as a Justice of the High Court.

Defendants' case

The defendants argued simply that the Chief Justice has the implied authority of the President to suspend a judge who has committed infractions of the criminal law, upon a purposive construction of some named provisions of the Constitution. They maintain the position that the Chief Justice acted to suspend the Plaintiff on the written authorization of the President and this accords with the provisions of Article 146(10)(b) of the Constitution.

Agreed issues

The parties agreed on the following issues:

1. Whether the President indeed directed the Chief Justice to suspend the plaintiff.

2. If the President indeed directed the Chief Justice to suspend the plaintiff, is such a suspension in accordance with article 146 of the Constitution, 1992?

3. Whether or not the Chief Justice can suspend a Justice of the superior court as in the case of the plaintiff.

4. Whether in the circumstances of this case the Chief Justice has not breached article 284 of the Constitution.

Issue 1

The parties appeared to be disputing over the core facts in the case. The point of factual disagreement between the parties relates to whether in fact and indeed the President of the Republic did write to the Chief Justice to suspend the Plaintiff. The Plaintiff claims there was no such written authorization, but the defendants maintain that there was. After a protracted discourse, the defendants filed a copy of the authorization letter in these proceedings. The Plaintiff has mounted a serious challenge to this letter, claiming, in a nutshell, that it is fake and a forgery. He catalogued a number of reasons for this claim and urged the court to reject it. The defendants opposed this, saying the letter must be accepted as an official deed.

In a case of constitutional interpretation, it behoves the plaintiff to restrict the facts to only the material ones which are incontrovertible, as the court does not embark upon making findings of fact before interpreting the constitutional provision/s in issue. Where the facts are disputed, it would not be a fit case to invoke the court's original jurisdiction to interpret the Constitution under Article 130, in so far as a case of constitutional interpretation is not a safe battleground to resolve disputed facts. In short, the court does not sit as a trial court when its interpretative jurisdiction is invoked.

Where the court is enjoined to sit as a court of first instance to resolve disputes, clear provision is made in the Constitution, like in matters of presidential election disputes. The court may also decide to take evidence in exercising its other jurisdiction, like in appeals, which gives it opportunity to re-hear the matter, or in enforcement of its decisions. But in matters of constitutional interpretation, it deals with purely questions of law, upon the assumption that the underlying facts are correct and undisputed.

Elsewhere, the courts frown on what is termed constitutional fact-finding. In the USA, the Supreme Court describes it as interpreting the facts, and not as finding the facts. It is another way of saying the Supreme Court is not a trial court to make findings of fact, when its jurisdiction to interpret the constitution is invoked. That court has used the best guess or factual assumption approach as it fits a given case. See for instance Gibbons v. Ogden, 22 U. S. (9 Wheat) 1 (1824). Other approaches have been adopted, short of making direct findings of fact.

In an article published in the January 1991 issue of the University of Pennsylvania Law Review by David L. Faigman titled “Normative Constitutional fact-finding: Exploring the empirical component of constitutional interpretation”, the author posited that facts are important as they supply the fulcrum for discerning the clear understanding of the constitutional provision, and also provide the foundation that supports the soundness and legitimacy of the judgment. That “the facts guide and restrain constitutional interpretation” , he wrote. We share these views, as long as the court does not have to make findings of disputed facts.

In the matter before us, we will assume the correctness of the facts, as evidenced by the documents exhibited, as we have them on the record as the foundation for the constitutional interpretation. We do so upon realization that the court should just invoke the presumption of regularity under section 37(1) of the Evidence Act, 1975, NRCD 323, popularly known by its Latin expression 'omnia praesumuntur rite esse acta', and proceed to dismiss the challenge 'in limine'. Also, if the plaintiff had cause to doubt the authenticity of the President’s letter, he should have proceeded to the trial court to test the factual foundation of his suspension by leading evidence to rebut the presumption of regularity. Having failed to do that he cannot be permitted to use this court as a trial court when the business before the court is one for constitutional interpretation. Thirdly, by the very reliefs placed before this court, the Plaintiff has accepted the fact that the Chief Justice acted on the written authorization by the President, and the entire reliefs are based on the truthfulness of these facts. Thus, the challenge to the written authorization undermines the entire case and is contradictory in terms. We reject the challenge to the President's letter accordingly.

We proceed to resolve Issue 1. This is purely a question of fact and construction of documents, not one for constitutional interpretation. We reiterate what we have already stated, that the letter from the office of the President is presumed to be regular, the presumption not having been rebutted in proceedings before a trial court. The letter from the office of the President, dated 24 March 2016 reads:

“RE: SUSPENSION OF HIS LORDSHIP JUSTICE FRED KWASI AWUAH IN ACCORDANCE WITH ARTICLE 146(10)(b)

Thank you for your letter No. SCR/23Vol.14 of 10th March 2016 on the above subject.

In accordance with Article 146(10)(b) of the 1992 Constitution of the Republic of Ghana, I hereby uphold the recommendation to suspend Justice Fred Kwasi Awuah from office as a Justice of the High Court.

Kindly proceed with action on the matter through further due process.”

The President was reacting to a recommendation by the Judicial Council to suspend the Plaintiff from office. The said recommendation was contained in a letter dated 10th March 2016, signed by the Chief Justice.

On the strength of the President's letter, the Chief Justice wrote a letter to the plaintiff dated 24 March 2016 and it reads: “I write to inform you that His Excellency the President in accordance with Article 146(10)(b) of the 1992 Constitution..........has directed that you should be suspended from office as a Justice of the High Court. You are therefore suspended from office with immediate effect.”

It is this communication from the Chief Justice which has sparked this action. The two letters are clear enough and warrant no construction. The President accepted the recommendation of the Judicial Council to suspend the plaintiff and he directed the Chief Justice to carry out the decision. The first issue is thus answered in the affirmative.

Issue 2

The Plaintiff's case is very simple and straightforward. It is that by the scheme of things as set out in Article 146(10)(b), the Chief Justice has no role to play in the suspension of a judge who is before an impeachment committee. That a recommendation to suspend such a judge has to be made by the Judicial Council to the President who acts on the recommendation to suspend the judge concerned. In his words, “the power to suspend excludes the Chief Justice from the process.” There is a fundamental fallacy in this argument, because the Chief Justice is the Chairperson of the Judicial Council which makes a recommendation to suspend a judge, consequently he/ she has a role to play in the suspension of any such judge.

It should be noted from the onset that there is a difference between decision- making and execution and/or communication of a decision already taken. The former may not be delegated, but the latter may. For, executing the decision is an administrative act. It is merely carrying out what the editors of Black’s Law Dictionary, 9th Edition, at page 526 describe as “an instruction on how to proceed”. And as explained in the case of Benson v. Benson (1941) P 90 at 97, per Lord Merriman P, direction is given only after judgment; thus it does not entail decision-making.

Under Article 146(10)(b) it is the Judicial Council that makes a recommendation to the President to suspend a judge who is facing an impeachment committee. The President has the discretion whether or not to accept the recommendation; in other words, the decision to suspend or not is entirely his to take. The question that is agitating the plaintiff is that the President should take the decision and sign the suspension letter himself. Consequently, the direction or authorization given to the Chief Justice is not in accord with the constitutional provision, Article 146(10)(b), to be precise.

It is pertinent to cite the entire provisions of Article 146(10) at this point. They read thus:

146(10) Where a petition has been referred to a committee under this article, the President may-

(a) in the case of the Chief Justice, acting in accordance with the advice of the Council of State, by warrant signed by him, suspend the Chief Justice,

(b) in the case of any other Justice of a superior court or of a chairman of a Regional Tribunal, acting in accordance with the advice of the Judicial Council, suspend that Justice or that Chairman of a Regional Tribunal.

It is clear, as earlier mentioned, that the Constitution gives the President power to suspend a judge who is facing an impeachment committee. That decision-making cannot be delegated for two reasons. To begin with, the provisions have been crafted in a manner as to involve both the Executive and Judiciary in the process of impeaching a judge. It ensures broad-based supervision of, and transparency in, the entire process. The purpose of the provision would thus be defeated if the Executive cedes its role to the Judiciary in this process. Next, there will be a conflict of interest situation contrary to Article 284 of the Constitution because the Chief Justice, as Chairperson of the Judicial Council, cannot act as advisor and decision-maker at the same time. It amounts to taking a decision on his own recommendation. Conflict of interest arises in this context because of the incompatibility of the two acts of advisor and decision-maker.

Then there is the vexed question whether the President can direct the Chief Justice, and for that matter and other person, to carry out the decision taken by him under article 146(10)(b). This is the climacteric moment as far as issue 2 goes. The President’s letter, quoted supra, states clearly that he had accepted the recommendation of the Judicial Council to suspend the plaintiff from office. This means he has taken a decision to suspend the plaintiff, in accordance with the recommendation. And that fully complies with article 146(10)(b).

The letter asked the Chief Justice to carry out the decision. That is also perfectly within the provision. To decide otherwise would mean importing words similar to those used in Article 146(10)(a). Under paragraph (a) of article 146(10), the President is enjoined to personally execute the warrant to suspend the Chief Justice. That requirement is significantly left out in paragraph (b) in matters involving any other judge. This was not a mere omission, but was done on purpose, to enable the President to direct another person to carry out his decision. It does not entail taking any constitutionally-mandated decision on behalf of the President, hence it can readily be delegated under the President’s broad power of delegation under article 58(3) of the Constitution. The court is not entitled to import other words into the constitutional provision, especially so when the provision, as it stands, is clear, purposeful and meaningful. Issue 2 thus fails.

Issue 3

The Plaintiff's case is that the Chief Justice has no power to suspend a judge under Article 146(10)(b) of the Constitution. He can only interdict a judge who is not facing an impeachment committee. For their part, the Defendants cited and relied on the case of Justice Edward Boateng, infra, and concluded that the Chief Justice has the “presumed authority of the President” to suspend a judge.

A judge can be suspended by the Chief Justice, employing his/her administrative power over all staff, including judges, who are alleged to have committed infractions of the criminal law or committed misconduct that warrants their impeachment. The power is assumed as an incidence to the office as administrative head to ensure good governance over the organization. A combined reading of Articles 125(4) and 297(c) supports this view.  These constitutional provisions read:

125(4) The Chief Justice shall, subject to this Constitution, be the Head of the Judiciary and shall be responsible for the administration and supervision of the Judiciary.

297(c) Where a power is given to a person or authority to do or enforce the doing of an act or a thing, all such such powers shall be deemed to be also given as are necessary to enable that person or authority to do or enforce the doing of the act or thing.

As earlier mentioned, the power to discipline a judge is a necessary tool in exercising the supervisory responsibility entrusted to the Chief Justice under Article 125(4).

The situation on hand is distinguishable from that in  the case of Justice Edward Boateng v. The Judicial Secretary & 2 Others, Suit no. J6/3/2017, dated 28 February 2018, unreported, which the parties referred to. That case affirms the position that the Chief Justice has the implied power of the President, who appoints the judges, to discipline erring judges.

But it must be noted that in the Justice Edward Boateng case, the judge was not placed before an impeachment committee, hence the President's power to suspend such judge had not arisen in the matter. The decision must be understood in that context, and the facts must be distinguished from the instant case. The power the Chief Justice exercises in an administrative capacity is independent of that exercised by the President under article 146. It must be emphasized that, where a judge is facing an impeachment committee, the provisions under article 146(10)(b) in respect of suspension of such judge, must prevail; the implied power exercised by the Chief Justice does not arise.

In the instant case, the Plaintiff is facing an impeachment committee hence the power to suspend him is vested in the President upon the recommendation of the Judicial Council. The decision to suspend the Plaintiff was rightfully taken by the President upon the recommendation of the Judicial Council. The Chief Justice carried out the decision upon direction from the President, as fully explained under Issue 2. Hence there was no infraction of the provisions under article 146(10)(b) as the Chief Justice did not purport to act on her own.

Issue 4

Whether or not the Chief Justice is in breach of article 284 of the Constitution. The said article provides:

A public officer shall not put himself in a position where his personal interest conflicts or is likely to conflict with the performance of the functions of his office.

The operative expression in this provision is “personal interest”. What constitutes personal interest cannot be defined generally, but contextually. Thus, in a given case, the court will have to determine in the context and circumstances, whether the public office holder can be said to have a personal interest in the matter, and if so, whether it conflicts, or is likely to conflict, with the performance of the functions of his office. Factors constituting personal interest are varied and diverse and cannot be foreclosed; what passes for personal interest in one case, may not qualify as personal interest in another. Hence, the difficulty and inadvisability in defining the expression.

The Plaintiff's case is that it was the Chief Justice who submitted the petition to the President; she it was who set up an impeachment committee to investigate the plaintiff and she it was who also wrote a letter suspending him from office. In the plaintiff's view, as per his statement of case, the Chief Justice's  “conduct in the prosecution of this case should be a restraining factor for her to suspend the Plaintiff.”

The decision to petition the President against the plaintiff was taken by the Judicial Council. The Chief Justice is the Chairperson of the Judicial Council, by virtue of article 153(a) of the Constitution. Thus the petition submitted by the Chief Justice on behalf of the Judicial Council was in her capacity as Chairperson of the Council, it was not a personal act. Then the setting up of the impeachment committee is also mandated by article 146(4) of the Constitution. It was also not a personal act. The decision to suspend the plaintiff was taken by the President under article 146(10)(b); the Chief Justice carried out the decision as directed by the President. In none of these actions could the Chief Justice be said to have done anything that suggests personal interest. She was not the plaintiff's accuser, and was not said to have any interest in the accusation beyond following due process in investigating it. There is thus no merit in this issue.

Conclusion

We find no merit in any of the issues set down. Consequently, none of the reliefs sought can be granted by the court. In the result the action entirely fails.

                                                                              SGD.          A.A. BENIN

                                                                              JUSTICE OF THE SUPREME COURT

                                                                              SGD.         ANIN YEBOAH

                                                                              JUSTICE OF THE SUPREME COURT

SGD.         P. BAFFOE- BONNIE

JUSTICE OF THE SUPREME COURT

SGD.         G. PWAMANG

JUSTICE OF THE SUPREME COURT

SGD.           S. K MARFUL- SAU

JUSTICE OF THE SUPREME COURT

SGD.            A.M. A  DORDZIE (MRS)

JUSTICE OF THE SUPREME COURT

                       SGD.            PROF N. A KOTEY

JUSTICE OF THE SUPREME COURT

COUNSEL

KWAME ADUOBENG YANKYERAH FOR THE PLAINTIFF

LESLIE NYANKSON (SENIOR STATE ATTORNEY) FOR DEFENDANTS BEING LED BY ELFREDA DENKYI (CHIEF STATE ATTORNEY).

Agreement - Oral agreement  - Released control, possession and management of sand deposits – Maintenance of the private motorways - Unilateral abrogation of agreement - Recovery of the sum of money incurred by the plaintiff in re-gravelling the road – Whether or not  judgment is against the weight of the evidence - Whether or not plaintiff is entitled to the reliefs endorsed - Whether or not the Plaintiff secured a credit facility pursuant to an agreement between the parties - Section 11 (1), 11(4)  of the Evidence Act, 1975 (N.R.C.D 323)

HEADNOTES

The facts of the case briefly are that the respondent claimed that the appellant agreed and released control, possession and management of sand deposits on its concession to him The respondent also alleged that appellant requested him to re-gravel the public road from the town of Atta Ne Atta to Bogoso Junction in the Prestea-Huni Valley District. The respondent further claimed that with the consent of the appellant, he secured a credit from his bankers at an interest rate of 35% to execute the road works. The respondent finally contended that the appellant unilaterally abrogated the agreement without any justifiable reasons and repossessed the sand deposit. The appellant denied the claims of the respondent and insisted that it never entered into any agreement with him to rehabilitate the Atta- Ne Atta to Bogoso Junction road. The appellant also denied that it agreed or consented to the respondent taking a facility from his bankers to execute the road works. The appellant case is, it embarked on a community project involving the rehabilitation of the road and the appellant voluntarily assisted by conveying gravel and laterite for the road works. The appellant also stated that the District Assembly also contributed in the rehabilitation of the road works. After the trial in the High Court, judgment was entered for the respondent, the appellant appealed to the Court of Appeal against the judgment of the trial High Court but the appeal was dismissed. The appellant being dissatisfied with the decision of the Court of Appeal, further appealed to this court praying that the decision of the Court of Appeal be set aside

HELD

From the record of appeal, we are satisfied that the claims alleged by respondent were capable of positive proof. As demonstrated in this judgment, the respondent could have led positive evidence to prove that he was contracted by appellant to execute the road rehabilitation and also the fact that he took a facility of GHC 900,000.00 from his bankers to finance the project. Having failed to positively prove the claims alleged by him, the respondent ought to have lost the contest. we are satisfied that the Court of Appeal was wrong in affirming the judgment of the trial High Court. The judgment of the Court of Appeal was therefore against the weight of evidence adduced at the trial and on that ground alone the appeal ought to be allowed. We accordingly allow the appeal and set aside the judgment entered by the Court of Appeal to the respondent. The appeal succeeds accordingly.

STATUTES REFERRED TO IN JUDGMENT

Supreme Court Rules, 1996 CI 16

Evidence Act, 1975 (N.R.C.D 323)

CASES REFERRED TO IN JUDGMENT

Achoro v. Akanfela (1996-1997) SGCLR 209

Gregory v. Tando IV and Hanson (2010) SCGLR 971.

Re Okine (decd.): Dodoo v. Okine (2003-2004) SCGLR 582

Ackah v.Pergah Transport Ltd & Others (2010) SCGLR 728

BOOKS REFERRED TO IN JUDGMENT

DELIVERING THE LEADING JUDGMENT

BY MARFUL-SAU JSC,

COUNSEL

DAAD AKWESI (MRS) FOR THE DEFENDANT/APPELLANT/APPELLANT.

JOHN MERCER FOR THE PLAINTIFFS/RESPONDENTS/RESPONDENTS

THE UNANIMOUS JUDGMENT OF THE COURT IS READ BY MARFUL-SAU JSC, AS FOLLOWS-:

BY MARFUL-SAU JSC,

This is an appeal against the decision of the Court of Appeal sitting at Cape Coast dated 27^th June 2018. In this judgment, the defendant/ Appellant /Appellant will be referred to as Appellant and the Plaintiff/Respondent /Respondent shall be referred to as Respondent. The facts of the case briefly are that the respondent claimed that in January 2009, the appellant agreed and released control, possession and management of sand deposits on its concession to him. According to the respondent, as part of the agreement, he was to make available to the appellant and its officers quantities of sand as and when they needed it. The respondent also asserted that he was required to maintain the private motorways linking appellant’s concession area of the sand deposits.

The respondent also alleged that in January 2015, appellant requested him to re-gravel the public road from the town of Atta Ne Atta to Bogoso Junction in the Prestea-Huni Valley District. The respondent further claimed that with the consent of the appellant, he secured a credit facility in the sum of GHC 900,000.00 from his bankers at an interest rate of 35% to execute the road works. The respondent finally contended that in November 2015, the appellant unilaterally abrogated the agreement without any justifiable reasons and repossessed the sand deposit.

The appellant denied the claims of the respondent and insisted that it never entered into any agreement with him to rehabilitate the Atta- Ne Atta to Bogoso Junction road. The appellant also denied that it agreed or consented to the respondent taking a facility of GHC 900,000.00 from his bankers to execute the road works. The appellant case is further that in 2015, it embarked on a community project involving the rehabilitation of the road and the appellant voluntarily assisted by conveying gravel and laterite for the road works. The appellant also stated that the District Assembly also contributed in the rehabilitation of the road works.

Based on these facts, the respondent took out a writ of summons against the appellant and claimed the following reliefs:-

‘’(a)Recovery of the sum of GHC 900,000.00 being the cost incurred by the plaintiff in re-gravelling the road from the town of Atta Ne Atta to Bogoso Junction at the instance of the defendant; and

(b)Interest at 35% on the said sum from January to date of payment.

After the trial in the High Court, judgment was entered for the respondent to recover the sum of GHC 500,000.00 and interest on that sum at 35% from January 2015 till date of payment and costs of GHC 12,000.00. The appellant appealed to the Court of Appeal against the judgment of the trial High Court but the appeal was dismissed. The appellant being dissatisfied with the decision of the Court of Appeal, further appealed to this court praying that the decision of the Court of Appeal be set aside.

We observed that in the amended Notice of Appeal, the appellant formulated eight (8) grounds of appeal, the first ground being that the Court of Appeal’s judgment was against the weight of the evidence adduced at the trial.

We note that beside the general ground of appeal, all the other grounds either alleged errors and misapplication of law for which no particulars were provided as required by rule 6 (2)(f) of the Supreme Court Rules, CI 16. Those grounds are incompetent and they are struck out. We intend therefore to address ground (i), which is that the judgment of the Court of Appeal is against the weight of evidence adduced at the trial.

From the pleadings and evidence before the trial court, respondent’s main claim before the court was the recovery of the GHC 900,000.00 and interest at 35%. The respondent alleged that this money was used by him to rehabilitate the road. Indeed, at the Application for Directions, two issues were settled by both parties and same set down for trial. The issues were:

‘’ (1) Whether or not plaintiff is entitled to the reliefs endorsed on his writ of summons, and

(2) Whether or not the Plaintiff secured a credit facility pursuant to an agreement between the parties.’’

In this appeal, we are of the opinion that the fundamental issue disclosed by the pleadings and the evidence on record is whether the respondent was contracted orally to rehabilitate the road for which he allegedly took a loan of GHC 900,000.00 with the consent of appellant. The respondent’s case is that he entered into an oral agreement with appellant to rehabilitate the Atta Ne Atta to Bogoso Junction road and he borrowed GHC 900,000.00 from his bankers to execute the contract. His case further is that the appellant consented to his taking the bank facility. From the evidence on record the appellant denied these claims by the respondent and it was thus the duty of the respondent to lead credible evidence to prove the oral agreement and the fact that he took a loan of GHC 900,000.00 to rehabilitate the road.

Section 11 (1), of the Evidence Act, 1975 (N.R.C.D 323) which deals with the burden of producing evidence provides as follows:-

‘’ For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue’’.

Section 11(4) of the Evidence Act also provide that:

‘’In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of a fact was more probable than its non-existence.’’

As already observed the burden was on the respondent to prove the claims he made against the appellant. So what evidence was led by the respondent? We have combed the entire record of appeal and our considered opinion is that the respondent led no credible evidence to discharge the evidential burden on him. First, we tackle the issue that he was contracted by the appellant to rehabilitate the road. At page 77 of the record of appeal, the respondent under cross-examination testified as follows:

‘’Q. Regarding the re-graveling of the Atta Ne Atta to Bogoso Junction the defendant did not enter into any contract with you?

A. My Lord the defendant invited me and we made that agreement. It was the Mining Manager, Mr. Samuel Takyi who invited me on behalf of the defendant company.

Q. The re-gravelling of the Atta Ne Atta to Bogoso Junction road was a community project the defendant undertook?

A.I did it.’’

Q. You voluntarily approached the defendant and offered to use your trucks to convey laterite and gravels for the project?

A. It was not voluntary work. It was at the invitation of the defendant per Samuel Takyi. I used my trucks, rollers and excavators for the project. I recall that in the beginning the Mining Manager promised to help me with a grader and a roller. They came and worked for two (2) days; went away and never returned.

From the above evidence, respondent asserted that he solely re-graveled the road as a result of the agreement with the appellant. However, the respondent failed to prove this assertion. For example the respondent claimed it was one Mr. Samuel Takyi, the Mines Manger of the appellant who invited him to the meeting where the agreement was concluded, but the respondent made no effort to call such a material witness to testify for him.

The evidence on record is that the respondent was a civil contractor, so we can easily assume that if he actually executed the re- graveling of the road, he would have called some of his workers who worked on the project, to testify as witnesses to support his claim, but he failed to do so.

 The respondent in his Witness Statement testified that the project was supervised by officers of appellant, namely, Iddi Adams and Thomas Nyamesesi, but he failed to call any of them to testify for him. Most importantly, the respondent throughout the trial failed to prove the amount of money he spent on the re-graveling of the road. He only called, PW1, David Badu Bow, from the Ghana Highway Authority, to testify on how much it cost the Government of Ghana, in reshaping and re-graveling of roads. All the respondent stated in his testimony was that it cost the Ghana Government GHC 100,000.00 to reshape and re-gravel a kilometer of road. 

Clearly, from the evidence on record the respondent woefully failed to discharge the evidential burden on him and we find it difficult to appreciate the basis of the decision of both the trial High Court and Court of Appeal to the effect that respondent was contracted by the appellant to re-gravel the road and that he did in fact executed the project from his resources.

We now examine the evidence led by the respondent that with the consent of appellant he had to take a credit facility from his bankers to finance the re-graveling of the road. At paragraph 7 of his Witness Statement, respondent testified that he secured a credit facility in the total sum of GHC 900,000.00. From the evidence he first took GHC 470,000.00 from Freedom Micro Finance Company Ltd. What this means is that the balance of the GHC 900,000.00, which is GHC530, 000.00 was borrowed from the Stanbic Bank, Tarkwa. The trial Court and the Court of Appeal rightly rejected the claim that respondent took GHC 470,000.00 from the Freedom Micro Finance Company Ltd and we do endorse same as we are satisfied that no evidence was led to prove that claim.

With regard to the credit facility from the Stanbic Bank, the respondent tendered exhibit B series, to support his claim that he took a total of GHC 500,000.00 as a loan from Stanbic Bank to execute the road project. The exhibits showed that the loans were taken in July 2015, September 2015 and October 2015, while according to the pleadings and evidence of respondent, the agreement to rehabilitate the road was done in January 2015.

There is no evidence to show that the said loans, if they were granted at all were used to fund the road project. The respondent’s claim was that he borrowed in total an amount of GHC 900,000.00 to fund the project. If we add the GHC 470,000.00 he allegedly took from the Freedom Micro Finance Company and the GHC 500,000.00 he took from Stanbic Bank, the total is GHC 970,000.00 and not GHC 900,000.00. By this alone, respondent’s claim in his pleadings and evidence that he took a total facility of GHC 900,000.00 from his Bankers could not be true by his own evidence.

We also observed that the respondent was claiming interest of 35% on the sum of GHC 900,000.00 as endorsed on his writ of summons. The evidence however, revealed that it was the facility that he took from the Stanbic Bank as evidenced by exhibit B series that attracted the interest of 35%. As the record of appeal further revealed, the GHC 470,000.00 respondent allegedly took from the Micro Finance Company, which was rightly rejected by the trial court, was not even documented and as such no one could have determined the interest rate charged by that company. So from the evidence it was wrong even for the respondent to have lumped the two facilities together and claimed an interest of 35%. The claim was wrong and a misrepresentation.

On the loan facilities, respondent asserted that he took the loans with the consent of the appellant. We note from the record that no evidence was led by respondent to establish this claim and same will be dismissed. The respondent just mounted the witness box and repeated his pleading that he informed the appellant that he will need a loan facility, to enable him execute the road project. No evidence was led by the respondent as to who in appellant’s company, gave the consent and when this took place. The respondent, once again failed the evidential test.

It is trite that an appellate court ought not disturb the findings of fact made by a trial court and in this case concurred by the intermediate appellate court, but there is a caveat, indeed the law is that an appellate court has the authority to disturb and set aside such findings made by a trial court where the findings of fact are wholly not supported by the evidence on record. In this appeal evidence from the record of appeal showed clearly that the respondent failed to adduce credible evidence to prove his claim before the court.

This Court being the second appellate court is therefore entitled to depart from the findings of fact made by the trial court and concurred by the intermediate appellate court.

See: Achoro v. Akanfela (1996-1997) SGCLR 209

Gregory v. Tando IV and Hanson (2010) SCGLR 971.

 In Re Okine (decd.): Dodoo v. Okine (2003-2004) SCGLR 582.

From the record of appeal we are satisfied that the claims alleged by respondent were capable of positive proof. As demonstrated in this judgment, the respondent could have led positive evidence to prove that he was contracted by appellant to execute the road rehabilitation and also the fact that he took a facility of GHC 900,000.00 from his bankers to finance the project. Having failed to positively prove the claims alleged by him, the respondent ought to have lost the contest.

In Ackah v.Pergah Transport Ltd & Others (2010) SCGLR 728, this Court speaking through Sophia Adinyira,JSC held at page 736 as follows:-

‘’ It is a basic principle of 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 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 probable than its non-existence…’’

 From evidence on record, we are satisfied that the Court of Appeal was wrong in affirming the judgment of the trial High Court. The judgment of the Court of Appeal was therefore against the weight of evidence adduced at the trial and on that ground alone the appeal ought to be allowed. We accordingly allow the appeal and set aside the judgment entered by the Court of Appeal to the respondent. The appeal succeeds accordingly.

SGD.             S. K. MARFUL-SAU

(JUSTICE OF THE SUPREME COURT)

SGD.              P. BAFFOE-BONNIE

(JUSTICE OF THE SUPREME COURT)

SGD.               N. S. GBADEGBE

(JUSTICE OF THE SUPREME COURT)

                                                                     SGD.                A.M. A. DORDZIE

(JUSTICE OF THE SUPREME COURT)

                                                                       SGD.                 N. A. AMEGATCHER

(JUSTICE OF THE SUPREME COURT)

COUNSEL

DAAD AKWESI (MRS) FOR THE DEFENDANT/APPELLANT/APPELLANT.

JOHN MERCER FOR THE PLAINTIFFS/RESPONDENTS/RESPONDENTS.