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ADINYIRA JSC:
The
Plaintiff/Appellant/Appellant
(Appellant) on 18th
of October, 2012 issued a writ
of Summons with statement of
claim at the High Court against
defendant/Respondent/Respondent
(Respondent”) for the following
reliefs:
(a)
A declaration that the judgment
of the Judicial Committee of the
Central Regional House of Chiefs
in so far as it purportedly made
a finding of fact that the High
Court and the Court of Appeal
upheld as raising issues
estoppels against the party the
issue was determined against and
privies without giving the
Ayirebi Acquahs and for that
matter the Tumpa Anona Family
members the right of hearing
breached the principles of
natural justice.
(b)
An order to set aside the
judgment of the Judicial
Committee of the Central
Regional House of Chiefs that
purported to determine issues
that directly affect the
interest of the Ayirebi Acquahs
and the Tumpa Anona Royal Family
of Winneba without giving the
family a hearing.
(c)
Cost.
On 9 November, 2012, Respondent
filed application before the
trial court to dismiss the suit
on the ground that it was a
matter affecting chieftaincy.
The Appellant resisted the
application by filling affidavit
in opposition. Counsel for the
parties filed written addresses
for hearing of the application.
On the 17 June, 2013, the
learned judge dismissed the suit
on the grounds that it was an
abuse of process but not that it
was a matter affecting
chieftaincy as raised by the
Defendant. Being aggrieved of
the ruling, Appellant filed
appeal before the Court of
Appeal on the 18th
day of July, 2013 against the
ruling.
On the 12 June, 2014, the Court
of Appeal dismissed the appeal
and affirmed the ruling of the
High Court dismissing the suit
but on grounds of jurisdiction
that the suit was a matter
affecting chieftaincy. The Court
held:
“All the other grounds of appeal
raised by the plaintiff are
without merits and they should
fail. Jurisdiction goes to the
root of the suit and once there
is no jurisdiction we shall
affirm the conclusion by the
trial judge dismissing the suit
but with different reasons
stated in the judgment.”
On the 13th day of
August, 2014, Appellant filed
the instant appeal against the
judgment of the Court of Appeal
on 3 grounds. However in his
statement of case filed on 20
October, 2014, Counsel for the
Appellant argued only the first
ground of the appeal stating he
abandoned the two grounds
because the one ground is
sufficient to dispose of the
appeal.
That ground argued by Counsel
for Appellant was couched thus:
“The Court of Appeal misdirected
itself when it invoked the
principle that an appeal is by
way of rehearing to raise a
point by itself and dismiss the
appeal without giving the
parties opportunity to be heard
on that ground.”
The Appellant submits in
dismissing the appeal for the
reason that the suit was a
matter affecting chieftaincy,
the Court of Appeal failed to
hear the parties or their
counsel on that issue. He
contends that the Court of
Appeal wrongly invoked and
misapplied the principle that
appeal is by way of rehearing in
dismissing the appeal.
His Counsel referred to the
Court of Appeal Rules, 1977,
C.I. 19, rule 8. sub-rules 1,
2, 5, 7 and 8 that states:
(1)
Any appeal to the Court shall
be by way of rehearing and
shall be brought by a notice
referred to these Rules as ‘the
notice of appeal’,
(2)
The notice of appeal shall be
filed at the Registry of the
Court below and shall
(a)
set out the grounds of appeal;
(5) The grounds of appeal
shall set out concisely and
under distinct heads the ground
upon which the appellant intends
to rely at the hearing of the
appeal.
(7) The appellant shall
not, without leave of the Court,
urge or be heard in support of
any ground of objection not
mentioned in the notice of
appeal, but the Court may allow
the appellant to amend the
grounds of appeal upon such
terms as the Court may think
just.
(8) Notwithstanding
sub-rules (4) to (7) of this
rule, the Court in deciding the
appeal shall not be confined to
the grounds set out by the
appellant but the Court shall
not rest its decision on any
ground not set out by the
appellant unless the respondent
has had sufficient opportunity
of contesting the case on that
ground.
Counsel in addressing the above
rule submitted that:
“The rehearing occurs when the
appeal court is listening to
arguments by counsel for the
parties. That is supposed to be
the rehearing because the
parties are expected to argue
appeal points of fact or law
which arise on the face of the
record and leave them for the
court’s determination, whether
or not that point was argued at
the court below. Besides that,
the appellate court itself may
raise any point of law or fact
arising on the record for the
parties to argue though not
raised by the parties. Having
heard the parties on the points
so raised by the parties and the
appellate court itself, the
court will then proceed to
consider the points argued and
give judgment. In this way, in
the days when appeals were heard
by oral argument, the bench
would intercede to draw
attention to relevant points of
fact or law appealing on the
record and necessary for
determination of the appeal not
raised by the parties and
invited the parties to address
it. That is the process of
rehearing.”
Counsel complained that: The
Court of Appeal did not follow
the above rules and that:
“[I]n its judgment the Court of
Appeal based itself on some
other points to dismiss the
appeal without giving the
parties any opportunity to be
heard. It did that under the
pretext that the appeal was by
way of rehearing. It is this
that provoked the plaintiff to
appeal to the Supreme Court“
With due respect to learned
Counsel for the Appellant, we
think Counsel’s understanding of
the principle that an ‘appeal is
by way of rehearing’ is
completely misconceived.
Counsel for the Respondent
rather correctly explained what
it means by ‘an appeal is by way
of rehearing’. He said:
“[I]t is clear that Counsel for
Appellant misapplied the
principle. He failed to draw a
distinction between the process
of hearing the appeal itself
where the bench may invite
parties or their counsel to
address the court on points
raised by the parties, by
counsel, or by the court, on one
hand, and the principle that
appeal is by way of rehearing.
The principle simply means that
the appellate court in coming to
its judgment examines relevant
piece of evidence on the record
including the exhibits, oral or
written submissions of counsel,
to ascertain whether the trial
court below or the first
appellate court below was
justified in arriving at a
finding of fact or law in the
judgment.”
There is a host of jurisprudence
on point that an appeal at
whatever stage is by way of
rehearing as every appellate
court has a duty to examine the
record of proceeding by
scrutinizing pieces of evidence
on record and ascertain whether
the decision is supported by the
evidence. In that respect the
appellate court can draw its own
inferences from the established
facts and in arriving at its
judgment, the appellate court
can affirm the judgment for
different reasons or vary it.
In the case of Koglex Ltd
(No. 2) V Field [2000] SCGLR
175, at 185 of the Supreme Court
held that:
“The very fact that the first
appellate court had confirmed
the judgment of the trial court
does not relieve the second
appellate court of its duty to
satisfy itself that the first
appellate court’s judgment is,
like the trial court’s, also
justified by the evidence on
record. For, an appeal, at
whatever stage, is by way of
rehearing; and every appellate
court has a duty to make its own
independent examination of the
record of proceedings”
In the case of Tuakwa v Bosom
[2001-2002] SCGLR 61, this court
held that appeal is by way of
re-hearing and the appellate
court has power to review the
evidence and ascertain whether
the decision of the trial court
is supported by the evidence on
record.
It is also the law that after
scrutinizing pieces of evidence
on record and in arriving at its
judgment, appellate court can
affirm the judgment for
different reasons. In Oblie
& 2 Others v Lancaster
[2014] 73 G.M.J. 140, it was
held that where a trial judge
arrived at the right decision
but gave wrong reasons, an
appellate court can substitute
its own right reasons to support
the decision reached by the
trial judge. The reason is that
appeal is by way of rehearing.
In the Koglex (No. 2)
Case (supra), the Supreme Court
held at page 184 of the report
as follows:
“On the other hand, where the
findings are based on
established facts, then the
appellate court is in the same
position as the trial court and
can draw its inferences from the
established facts.”
In the instant appeal the Court
of Appeal examined the record
and came to the conclusion that
the suit was a matter affecting
chieftaincy. We hold that the
Court of Appeal correctly
applied the principle that
appeal is by way of rehearing in
arriving at its judgment.
On the complaint that the Court
of Appeal failed to hear the
parties on the issue of whether
the suit was a matter affecting
chieftaincy, we can see from the
record that the jurisdictional
point was first raised in the
High Court by the Respondent,
then defendant by way of a
motion and supporting affidavit
and some exhibits. Counsel for
the Appellant also filed an
affidavit in opposition with
relevant documents. At the
instance of the Court, Counsel
for the parties then filed
written submissions in support
of their respective positions on
the Respondent’s contention that
the High Court had no
jurisdiction to entertain the
appellant’s action because it
was a cause or matter affecting
chieftaincy. All these documents
formed part of the record that
was scrutinized by the Court of
Appeal in arriving at the
judgment.
Counsel for the appellant
further submitted, thus:
“If the Court of Appeal was of
the view that what the High
Court decided was wrong, it had
every opportunity, since the
appeal was by way of rehearing,
to raise the point suo motu
at the hearing stage and invite
the parties to re-argue the
point so that the point could be
reconsidered in its judgment to
decide that in law the action is
a cause or matter affecting
chieftaincy”
By these submissions it is
apparent Counsel merely wants a
chance to reargue this same
point that had been thoroughly
argued before the High Court. We
do not think the trial at the
High Court is a dress rehearsal
to be repeated at the Court of
Appeal. We are of the view that
the Appellant is merely showing
his dissatisfaction with the
judgment without raising
anything germane.
In any event, in the case of
Tindana (No. 2) v Chief of
Defence Staff & Attorney-General
(No. 2) [2011]2 SCGLR 732,
which was cited by both the
Court of Appeal and Counsel for
Respondent in his statement of
case, this Court held at page
743 of the report as follows:
“It is trite learning that a
court adjudicating any matter
might raise a point of law on
its own motion. In these
proceedings, the point of law
raised was jurisdictional. In as
much as we agree with learned
counsel that the court ought to
have offered the parties the
opportunity to address it on the
point raised… the point raised
was clearly unanswerable to
admit of any legal argument.
Under the circumstances, it
would therefore have been an
exercise in futility for counsel
on both sides to address the
court on the point raised.”
Also, in Akufo-Addo v
Catheline (1992)1 GLR 377,
this court held at page 392 of
the report as follows:
“Therefore in applying the
proviso to rule 8(6) of L.I 218
care must be taken that we do
not in the process give an
interpretation which will
inhibit or stultify the rule
that an appeal before the Court
of Appeal “shall be by way of
rehearing.” The proviso cannot,
in my view, be said to imply an
absolute prohibition. In
certain special or exceptional
circumstances, the proviso will
not apply. So it can be said
that the Court of Appeal should
not decide in favour of an
appellant on a ground not put
forward by him unless the court
is satisfied beyond doubt,
first, that it has before it all
the facts or materials bearing
upon the contention being taken
by it suo motu;
and secondly, that the point is
such that no satisfactory or
meaningful explanation or legal
contention can be advanced by
the party against whom the point
is being taken even if an
opportunity is given him to
present an explanation or legal
argument; for example, void
matters as in this case.”
Having examined the record of
proceedings we find that the
issue that the suit was a matter
affecting chieftaincy was an
unanswerable jurisdictional
point. The judgment is supported
by the record and we find no
reason to disturb it.
The appeal is without merit and
it is therefore dismissed.
The judgment of the Court of
Appeal is affirmed.
(SGD)
S. O. A. ADINYIRA (MRS)
JUSTICE OF THE
SUPREME COURT
(SGD)
V. J. M. DOTSE
JUSTICE OF THE SUPREME
COURT
(SGD) P. BAFFOE
BONNIE
JUSTICE OF THE SUPREME
COURT
(SGD) N.
S. GBADEGBE
JUSTICE OF THE
SUPREME COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE
SUPREME COURT
COUNSEL
JAMES AHENKORAH ESQ. FOR THE
PLAINTIFFS/ APPELLANTS
/APPELLANTS
REPHAEL ALIJINA ESQ. FOR THE
DEFENDANTS/RESPONDENTS
/RESPONDENTS
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