HOME  JUDGEMENT OF THE COURT OF APPEAL

JUDGMENT

ANINAKWAH J. A:

This is an Appeal against the Judgment of His Lordship Justice A. A. Benin J.A., sitting as an additional High Court Judge-Accra-dated the 31st May 2000.

The judgment dismissed the claim of the plaintiff/Appellant (hereinafter referred to as the Plaintiff) and the Defendant/Respondent hereinafter referred to as Defendants') Counterclaim against Messrs Isei Nsafoah and Sam Amfo Ayeh.

Entering the judgment the trial court allowed the Defendant an amount of ¢2,137,185.86 as owed by the plaintiff to the Defendant.

And as against Messrs Isei Nsafoah and Sam Amfo Ayeh this is what the Court had to say:— "But from whom is the Bank to recover its entitlement? The question becomes necessary in view of the parties to the Counterclaim. The Bank averred that Messrs Ayeh and Nsafoah, Managing Director and Director respectively of Skyways executed a guarantee by which they bound themselves jointly and severally to pay the Bank any sum that may become due and owing to the Bank by Skyways. The answer in the defence to the Counterclaim was that 'there is no merit whatever in the defendant's Counterclaim against the plaintiff in respect of a guarantee which was executed by persons other than the plaintiff. At the hearing it turned out that the guarantee that they executed in favour of the Bank was in respect of a guarantee Skyways needed to enable it remain in effective business; it was for a certain sum of money that the Bank guaranteed skyways.

I think it had nothing to do with the operation of its normal account with the Bank. In my view, the guarantee - Exhibit 2 cannot be relied upon to saddle Messrs Isei Nsafoah and Ayeh with responsibility for any debt owing by skyways outside the terms of the guarantee. I therefore enter judgment for the Bank to recover the sum of ¢2,137,185.86, together with interest at the prevailing Bank rate (GCB rate), from 1/11/93 to date of judgment, from Skyways. The rest of the claim and Counterclaim are rejected." The Defendant Bank has not filed any cross appeal and thereby deemed to have accepted the decision of the trial Court.

The plaintiff's claims as indorsed on the Amended Writ of summons filed in April 1999, long after plaintiff's representative Mr. Sam Amfo Ayeh had given his evidence in court on 16th May 1995 against the Defendant are for:-

"(a) ¢3,079,256.00 being the total sum with which plaintiff's account for 1990 was fraudulently or negligently debited by the defendant.

Interest on the said a ¢3,070,256.00 from the 30th of October, 1990 to the date of final payment at the current commercial rate of interest.

¢17,053,120.00 being the total sum with which the plaintiff's Account for 1991 was fraudulently or negligently debited by the Defendant.

Interest on the said ¢17,053,120.00 from the 10th of December, 1991 to the date of final payment at the current commercial rate of interest.

¢28,138,480.00 being the total sum with which the Plaintiff's Account for 1992 was fraudulently or negligently debited by the Defendant.

Interest on the said ¢28,138,480.00 from the 16th of October, 1992 to the date of final payment at the current commercial rate of interest.

¢75,528,800.00 being the total sum with which the plaintiff's Account for 1993 was fraudulently or negligently debited by the Defendant.

Interest on the said ¢75,528,800.00 from the 4th of October, 1993 to the date of final payment at the current Commercial rate of interest.

General damages for fraudulent breach of contract.

The plaintiff's case is that it operated a Current Account with the Defendant from 1977 to the 15th October, 1993.

In or about October, 1993 the Defendant supplied to the plaintiff its Bank Statements for 1990, 1991 and 1992. Further the Defendant by its letter number ROS/GCB/SKYWAY/brief and dated 12th of July, 1995 supplied the plaintiff with the Bank Statement of the plaintiff for the period the 6th of January, 1993 to October, 1993.

A reconciliation of the Bank Statements made by the Auditors of the plaintiff revealed that the Defendant has in fact fraudulently or negligently debited the plaintiff's Account with a higher amount than the plaintiff’s originally claimed in its Writ and Statement of claim.

The Defendant Bank by its Amended Statement of Defence filed on the 13th May, 1999 denied fraudulently, negligently or wrongfully debiting plaintiff's account with a higher amount than plaintiff originally claimed in its Statement of Claim, and put plaintiff to strict proof of same.

It's the further case of the Defendant that it was rather the plaintiff which defrauded the Defendant. Defendant says from 12/2/90 or thereabout to 30/9/93 the plaintiff acting by its officer Ben Yaw Xedo Olympio (hereafter called "Olympio") procured the assistance of employees of the defendant, including Benjamin N. Holm and Benjamin Tetteh to defraud the defendant in various sums in respect of transactions on plaintiff's account, the subject of the suit.

Defendant gave particulars of the fraud perpetrated by plaintiff acting by its officer Olympio as follows:—

During the period stated above Olympio at various times wrote several cheques in favour of the Plaintiff the value of which were credited to Plaintiff's account by or with the assistance of the above-mentioned employees of the defendant, thereby increasing Plaintiff's credit balance without any corresponding transfer of funds into the account.

The cheques written by Olympio were supposed to be drawn on accounts he operated with the defendant's Republic House and Legon branches in the name of Wugo General Services and Wugo farms respectively.

By banking practice the cheques written by Olympio and credited to plaintiff's account were to be sent through the bank's Clearing system to the branch of Wugo General Services or Wugo farms as the case may be, to enable the amounts on the cheques entered against the accounts or, if the cheques were not honoured, for the same to be returned.

The defendant's employees mentioned above suppressed Olympio’s cheques and never sent them to the clearing House or Olympio's account. They also hid or kept them for periods longer than the bank's rule and practice permitted. The said employees also either failed to make appropriate entries concerning these cheques or sometimes made wrong entries to avoid detection of fraud.

By the methods indicated above the plaintiff's credit balances on its account were increased to the benefit of plaintiff for various lengths of times. Particulars of the dates and amounts of the fraudulent credits were set out in the schedule attached to the statement of Defence.

The plaintiff, knowing that its balances had been increased when it had made no payments into its account to warrant such increases, drew on the account and made use of the moneys. Plaintiff's Managing Director was at all material times the sole signatory to cheques drawn on plaintiff's account.

The amounts complained by plaintiff in its statement of claim represent some of the entries fraudulently or wrongly credited to plaintiff's account. And the debits were made to correct or reverse the said wrong entries. They were, therefore neither negligently, fraudulently or wrongly made.

Defendant further disclosed that during investigation by the defendant into the fraud, Benjamin N. Holm and Ben Yaw Xedo Olympio made statements on 21/10/93 and 16/11/93 respectively admitting the fraud or wrongful entries stated above. Olympio also confessed to having destroyed the cheques by which the fraud was perpetrated. These two gentlemen and Olympio were prosecuted at the Circuit court Accra for fraud in respect of the matters stated herein.

The Defendant therefore counterclaimed against the plaintiff as principal and against the said Sam Amfo Ayeh and Isei Nsafoah as (defendants to the counterclaim) as guarantors, jointly and severally for:—

Recovery of the sum of ¢18,658,226.80 being amount due and owing by the plaintiff to the defendant as principal and interest on sums by which plaintiff's account was overdrawn between 12/4/90 and 31/5/94 and the payment of which was guaranteed by the said Sam Amfo Ayeh and Emmanuel Isei Nsafoah. Interest on the said ¢18,658,226.80 at the prevailing bank rate from 1/6/94 to the date of final payment.

At the trial the plaintiff gave evidence through its Managing Director Sam Amfo Ayeh as plaintiff's representative and Ben Yaw Olympio, - plaintiff's accountant.

Plaintiff's representative gave evidence of cheques which plaintiff claimed to have been wrongfully debited to its account. Plaintiff through its representative tendered all relevant pay-in-slips and other Bank documents such as plaintiff's statement of Accounts supplied to it by the Bank, for the period under review i.e. from 1990-1993. Plaintiff also tendered the Bank's Return Cheque Register and the Debit transfer Vouchers.

It is the contention of the plaintiff that in so far as some of the returned cheques were not entered in any of the above-mentioned Bank's books of records those cheques were fabricated and wrongfully debited to the plaintiff's Account.

Most of the returned cheques which were not entered in any of the said books were drawn on one or the other of the two accounts - Wugo farms and Wugo services operated by plaintiff's Accountant. Olympio at two local branches of the Defendant Bank i.e. Legon and Republic House - Accra.

Whilst Sam Amfo Ayeh plaintiff's representative tried to claim ignorance of payments of Olympio's Cheques drawn on his two personal accounts into plaintiff's Account with Defendant Bank, Olympio confirmed same.

Defendant Bank stated its case mainly through its representative - J. C. Danso an officer of the Bank. It is the Defendant's case that whenever Olympio, plaintiff's Accountant who always made payments into plaintiff's Account with Dependent Bank paid in cheque branch drawn on any one of his personal Accounts i.e. Wugo farms and Wugo services, Olympio got the assistance of some members of Defendant Banks staff to suppress the cheques. What they did was that soon as Olympio paid in the cheques, they credited plaintiff's Account, thus giving value to the cheques and increased the plaintiff's credit balance with the Bank. They would then intentionally fail to include the cheques among those they would send to the clearing House. After about 2-3 days when the cheques did not come back from the Clearing House they would be deemed to have been honoured by the paying banks i.e. Olympio's Banks.

The practice enabled the Defendant to allow Plaintiff to draw on its Account with the Defendant. After Plaintiff has succeeded in drawing on their Accounts, the members of staff in league with Olympio would then prepare debit entries, debit the cheques to the Plaintiff's Account and deliver same to Olympio over the counter.

Meanwhile the plaintiff would have enjoyed unauthorised overdraft. This practice of some members of the Defendant Bank's staff which went on with the active participation of Olympio, Plaintiff's Accountant and therefore, an agent of Plaintiff is a clear demonstration that the Plaintiff acting through its Accountant succeeded in defrauding the defendant Bank.

At the closed of the case for both parties, the learned trial judge accepted the evidence of the Defendant Bank and dismissed the Plaintiff's claim. It is against this decision that the Plaintiff appealed to this Court.

In its notice of appeal, Plaintiff stated only one ground of Appeal thus:—

"(a) That the judgment of the High Court is against the weight of evidence".

Plaintiff later filed additional grounds thus:—

"(a) The trial judge failed to make proper findings with regard to disputed facts and drew erroneous inferences from undisputed facts.

(b) The undisputed evidence was that the Defendant had dishonoured a number of cheques which were not drawn by the Plaintiff but nevertheless debited the Plaintiff's Account in respect of those dishonoured cheques drawn by other people. In the face of such undisputed evidence, the trial judge erred in refusing to give judgment in favour of the Plaintiff for these amounts.

In effect, the trial judge was enabling the Defendant to unjustly enrich itself at the expense of the Plaintiff.

(c) The judge was wrong not to give judgment in favour of the Plaintiff for the amount of ¢18 Million which the Defendant had unequivocally by letter admitted that it had been wrongly debited to the Plaintiff's Account, because by such a wrong debit the Defendant had credited itself with the Plaintiff's money to which it was not entitled and had thereby unjustly enriched itself to that amount.

Although the Defendant alleged that two of its employees acting in collusion with an employee of the Plaintiff either failed to make appropriate entries or made entries to avoid detection in respect of the cheques wrongly debited to Plaintiff's Account, no attempt was made to prove this allegation. The two alleged employees of Defendant were not called to give evidence. The Plaintiff called its employee who is alleged to have colluded with the employees of the Defendant to give evidence. This witness denied the alleged collusion and his evidence was not in anyway shaken in cross-examination.

(d) In these circumstances, it was wrong for the trial judge to accept the Defendant's unproven allegation and base his judgment on it which in effect enabled the Defendant benefit of the wrong debits.

It seems to me some of the additional grounds i.e. grounds a), b), d), and e), cannot be admissible in law to be proper grounds of appeal. Rules 8(4) and (6) of the Court of Appeal Rules, 1997 (C.I. 19) provide the following.

Rule 8 (4) "where grounds of an appeal allege misdirection or error in law, particulars of the misdirection or error shall be clearly stated.

(6) No ground which is vague or general in terms or which discloses no reasonable ground of Appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the court of its own motion or on application by the respondent.

I do not think the grounds I have mentioned above and which I consider improper meet the requirements of the rules.

This, therefore, leaves me with the consideration of the two remaining grounds i.e. original ground that attacks the judgment of being against the weight of evidence; and the additional ground c.

(c) This ground states that the judge was wrong not to give judgment in favour of the Plaintiff for the amount of ¢18 million which the Defendant had unequivocally by letter admitted that it had been wrongly debited to the Plaintiff's Account, because by such a wrong debit the Defendant had credited itself with the Plaintiff's money to which it was not entitled and had thereby unjustly enriched itself to that amount.

I believe these two grounds can be considered together. They both touch and or concern the weight of evidence.

In my view the issue that was before the trial judge was to establish at the end of the trial the plaintiff's true financial position with the Defendant Bank. This is a question of fact which can only be determined by pieces of factual evidence.

In this Appeal the Plaintiff alleges that the trial judge erred in coming to the                                conclusion that he did; in view of the evidence on record, or other words, that the findings of fact made by the trial judge was not supported by the evidence on record.

It is the duty of Plaintiff to prove to this court that the findings complained of, were not based on evidence on record, in order to succeed in its appeal.

It must be noted, however, that an appeal Court cannot reverse findings of fact made by a trial judge who has seen and heard witnesses, unless those findings are not supported by any evidence or wrong deductions have been made from such evidence.

I therefore, have a duty to discover whether the findings of the trial judge were supported by evidence on record.

As I have already stated the task the trial judge set for himself in this case was to determine at the end of the case which party was indebted to the other. The judge could only do so after reconciling the Plaintiff's Account with the Defendant Bank, bringing into play all the debit and credit entries reflecting on the Account.

This by no means was an easy task. As the trial judge himself remarked in the initial stages of his judgment, after identifying the problem before him, that "the entire problem revolves on the true state of the accounts of Skyways Travels Limited with the Ghana Commercial Bank Limited. In the result, a whole lot of evidence was adduced towards establishing whether in fact the closing balance standing in the accounts of Skyways is a true reflection of its financial dealings with the Bank. Naturally this would involve several petty, petty pieces of evidence that truly belong to the realm of accounting than law. Nonetheless, it behaves us to do what is just having regard to the facts presented to the Court,"

Having so remarked, the trial judge took the bull by the horn. He tackled the problem as if he was an Accountant. He so painstakingly and meticulously reconciled Plaintiff's Account, checking every debit entry against the corresponding credit entry. By so doing he managed to find the fate of all dishonoured cheques and came to the conclusion as to whether any plaintiff's Cheques had been rightly or wrongly debited to Plaintiff's Account.

Where the trial judge found as a fact that a dishonoured Cheque had been rightly debited to Plaintiff's Account, he rejected Plaintiff's claim. Where in his evaluation of the evidence the Cheque had been wrongly debited to Plaintiff's Account he allowed the claim.

In the end the trial judge made specific findings of fact in respect of every dishonoured Cheque according to the evidence on record.

On the Plaintiff's ground (c) involving an amount ¢18 Million, notwithstanding the denial of by the Plaintiff's representative - Sam Amfo Ayeh of any knowledge of the two Cheques drawn by Olympio on his personal Accounts, and which said cheques made the said amount, Olympio himself admitted drawing the cheques and paying them into Plaintiff's Account.

In his evidence Olympio admitted that those Cheques were dishonoured after the Plaintiff withdrew the amount from the Bank. The judge, therefore, held as a fact that the Defendant Bank was justified in reversing those credit entries and entering same as debit against Plaintiff's Account, for Plaintiff had unjustly enriched itself.

I find no good reason to disturb the judgment of the trial court as there is sufficient evidence to support it. I dismiss the appeal; and make no order as to costs.

SGD.

R. T. ANINAKWAH

JUSTICE OF APPEAL

ANSAH J.A.:

I have had the benefit of reading beforehand the judgment of my learned brother Aninakwah JA and I am in entire agreement with it. I also agree that the appeal be dismissed. I have decided to add the following few words to it. I do agree with the facts as presented in the judgment just read.

Dissatisfied with the judgment, in that dismissed the plaintiff's claim substantially, the plaintiff (hereinafter called the appellant) has appealed to this court, on the original ground that "the judgment of the High Court was against the weight of the evidence."

The additional grounds were as have been read out in the preceding judgment and I do not intend going or repeating them here.

A careful reading of the additional grounds reveals that they are mere embellishments on the original grounds of appeal. Additional ground b), c) and d) were simply argumentative, while additional ground e) was more of a conclusion than a ground of appeal. We reject the additional grounds of appeal for they offended against Order 8 (5) of the Court of Appeal Rules, 1997, C.I. 19 as being argumentative, prolix and mere repetitions of the original grounds of appeal.

In his written submissions, counsel lumped all the grounds and the additional grounds of appeal together. I must confess that it has not been very easy to read and comprehend the submissions, as they were unusually verbose, long and voluminous. Only the original ground of appeal will be considered in this judgment.

When an appellant appealed to this court on such a ground, he must satisfy this court that on the evidence such as was put before the trial court, judgment ought to have gone in his favour rather than the respondent and that in coming to the verdict as he did, the judge erred in his findings. Counsel for the appellants castigated the judge for placing the burden of producing evidence on the respondent when in the view of counsel it should have been the other way round. The burden of producing evidence is a matter of law, it having been provided for in our rules of evidence. Whether or not the party has discharged the burden is a question of fact for the judge sitting alone.

Section 11(1) of the Evidence Decree, 1975, NRCD 323 defines the burden of producing evidence as follows:

"11. (1) For purposes of this Decree, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling against him on the issue."

As to who bears the onus of producing evidence, the answer is also put in legislative terms in the following manner:

"11. (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable could conclude that the existence of the fact was more probable than it's non-existence."

Section 16 of the Decree requires that the judge sitting alone should direct his mind to which party bears the burden of producing that kind of evidence that would avoid a ruling against him on an issue. Where a fact is essential to a claim, the party who asserts that claim has the burden to persuade the court of the existence of that fact. I have referred to section 11 (1) on the burden of persuasion and wish to add that it is discharged on proof by a preponderance of the probabilities: see section 12 (1). Section 17 (1) goes on to state that the burden of producing any particular fact is on the party against whom a finding on that fact would be required in the absence of further proof.

In his judgment, the trial judge adequately directed his attention and instructed himself on who bore the onus of proof on certain facts and said, "Since Skyway has raised fraud and/negligence, the burden of producing evidence rests on it." In their entire writ of summons and amended statement of claim the appellant's claims were founded on allegations of fraud perpetrated by the respondent on it (appellant) in some of the entries made against them in the course of their financial recordings in their books. The appellant also alleged in the alternative that the entries were made negligently. It is common learning that all issues of fraud and/or negligence are matters of fact. Both are proved by evidence. The law expressed in the classical terms "Ei incumbent probatio qui dicit, non negat" and "ei qui affirmat, non ei qui negat, incubit probatio" is in accord with the law contained in Section 11 (1) and (4) of the Evidence Decree (supra). In my opinion, the appellant who averred the positive that the respondent was fraudulent and negligent in making the entries in his books bore the onus of proof on those allegations. The oft-cited dictum of Ollennu J. (as he then was) in Majolagbe v. Larbi [1959] GLR. must be borne in mind at all times on what amounts to proof in law.

Under section 179 (1) of the Decree, 'proof' is the establishment by evidence of a requisite degree of belief concerning a fact in the mind of tribunal of fact or the court'.

According to Majolagbe, a party on whom the burden of proof lies proves an averment in his pleadings, "which is capable of proof in a positive way", not merely by mounting the witness box and repeating it on oath. He proves it by producing corroborative evidence that must necessarily exist if his averment were true. That is just one way of discharging the onus on the party making the positive averment. Section 11 (4) provides yet another way by which the onus of proof may be discharged, namely, "on all the evidence". The Commentary on the Evidence Decree, 1975, NRCD 323 states at page that

"the party with the burden of producing evidence is entitled to rely on all the evidence in the case and need not rest entirely on the evidence introduced by him. The party with the burden of producing evidence on the issue may point to evidence introduced by another party which meets or helps meet the test of sufficiency."

All that section 11 (1) requires to discharge the onus of producing evidence is to introduce that kind of evidence that will be sufficient to avoid a ruling against the party who is expected by the law to prove what he alleged but has been denied by his adversary. He may lead evidence by himself alone and without calling any witness or witnesses. It is now too well settled that a tribunal of fact can decide an issue on the testimony of a single witness: 'Testes ponderatur non numerantur' (witnesses are weighed not counted) see: Rep. v. Asafu-Adjaye [1968] GLR; J. Saba & Co. Ltd. v. William (1969) C.C.52; C.O.P. v. Kwashie (1953) W.A.C.A. 319; C.O.P. v. Lutterodt S.C., Criminal App. No. 152/62, 8 Nov. 1963, unreported; Kru v. Saud Bros. & Sons [1975] 1G.L.R. 46, CA. The last mentioned case said that judicial decisions depend on intelligence and credit not the multiplicity of witnesses called at the trial. The learned trial judge put the burden of producing evidence of the allegations of fraudulently and negligently debiting the appellant's account on the appellant, the plaintiff at the trial. I have examined the record as a whole and with particular reference to the pleadings and concluded that the judge was perfectly right in doing so and he cannot be faulted on that.

In fairness to counsel for the appellant, where on the pleadings the facts are peculiarly within the sole knowledge of the defendant, the onus of proof shifts on to the defendant. However, "until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defense he is asserting", so said section 14 of the decree. Counsel for the appellant submitted that however one looked at it, the appellant discharged the onus that lay on it by relying on all the evidence led in the case, that was, by either the appellant or the respondent. That evidence consisted of the appellant's own witnesses, those of the respondent and the answers elicited from them under cross-examination. Of course, there was also the mass of documentary evidence to consider. At the close of the trial, the judge had to consider all this to say whether or not the appellant or the counter-claimant was able to prove his claim. When he did that he formed the impression that the appellant failed to prove his case so dismally that he dismissed his claims. He did not find that the respondent fared any better on his counter-claim. In the particular circumstances of this case, there could be no justification for the criticism that one side did not call certain witnesses.

In a well-reasoned judgment, the learned trial judge painstakingly and meticulously dissected the evidence before him. He classified the appellant's case under five heads, namely:

"unexplained deduction/s from closing credit balance; unknown or unexplained debit to the account; cash payments that do not reflect in the account; cheque payments that do not reflect in the account; explained debits considered wrongful."

After that the judge considered each head separately. In the process, he directed his attention to Exhibit CE1, a fresh comprehensive statement of account produced by the bank upon an exercise to reconcile the accounts. Upon perusing Exhibit CE1, he found that the account of the appellant was not wrongfully debited with the sum of ¢2,563,170.00 on 18th March 1993, or any other sum on any of the days he indicated in the judgment under appeal.

The ground of appeal that the judgment was against the weight of the evidence, just like the additional grounds taken together as they should, was an attack on the findings of fact made by the judge. An appeal is by way of a re-hearing, so says Order 8 of C.I. 19. An appeal on these grounds is permitted by the rules of court. The real meaning of this ground was determined in Fofie v. Zanyo [1972] 2 GLR. 475, S.C.; Akufo-Addo v. Cathline [1972]  GLR 377, S.C. In Fofie v. Zanyo, (supra), the principles upon which this appellate court proceeds to disturb findings of fact made by a trial court are stated. The Supreme Court said in that case that:

"The scope and extent to which an appellate tribunal is permitted to interfere with findings of facts made by a trial tribunal are now too well settled to admit of any dispute. This right is subject to the exclusive preserve of a trial tribunal to make primary findings of fact, and where such findings of facts are supported by evidence on record and are based on the credibility of witnesses when the trial tribunal has had the opportunity and advantage of seeing and of observing their demeanor and has become satisfied of the truthfulness of their testimonies touching on any particular matter in issue, and also where such findings cannot be said to be wrong, it is incompetent for an appeal court to interfere: see Oppong Kofi v. Fofie [1964] GLR 174, SC; Praka v. Ketewa [1964] GLR 423, SC; Azagba v. Negov [1964] GLR, 450, SC; Asibey III v. Ayisi [1973] 1 GLR 102";

see also Doku v. Doku [1992-93] 1 GLR 367, CA. Nsiah v. Atuahene [1992-93] GBR, 897, CA. Where an appellate court could conclude that the evidence did not support the findings, or the inferences from the facts were wrong, the judgment was against the weight of the evidence and would disturb it, set aside the findings made and come out with its own.

I remarked in Henry Nimako-Brempong v. Joyce Akadza & or. CA, dated 30 January. 2003, unreported, that an appeal is by way of re-hearing under Order 8 rule (1) of the Court of Appeal Rules, 1997, C.I. 19. I also said that it meant,

"The appeal was not limited to a consideration whether a misdirection or a misperception of evidence or other alleged defect in the trial has taken place in the trial, so that a new trial should be ordered. They indicate that the court is not even limited to consideration of the points raised in the notice of appeal, but will consider the whole of the evidence given in the court below and the whole course of the trial' On this Orders 31 and 32 of C.I. 19 are loud and clear on the general powers of this court."

I have no reason to depart from these comments; I reiterate them. The learned trial judge commenced his judgment with a candid statement that that was "a case that could, and should have been resolved by accountants, more than lawyers. For the entire problem revolves on what the true state of the accounts of Skyways Travels Ltd (hereinafter called Skyways) is." He was quick to observe that in resolving the central issue, some "petty pieces of evidence that truly belong to the realm of accounting than of law" was adduced. That did not disable him from doing what was 'just having regard to the facts presented to the court'.

The trial judge, as observed already, showed a keen appreciation of the issues before him and dissected each alleged wrong entry by the respondent bank and in the main found that the respondent was justified in reversing some of the credit entries and entering same against Skyways' account, for the company had unjustly enriched itself.

I must observe that I wholly agree with the observation by the judge that the case should have been resolved by accountants more than by lawyers for it called for reconciling accounts in the main, and also determining the justification or otherwise for the alleged entries in the appellants books. A perusal of the record reveals that a bank statement of accounts was tendered in evidence as Exhibit A. Due to the several objections against the entries, the accounts were reconciled and the product was Exhibit CE 1. That was the statement of accounts that the trial judge had before him and which he considered for his judgment.

I must once again observe that 'any reconciliation of accounts between the parties was an internal matter' and the courts ought not to assume the posture of auditors when such issues arose in the course of a hearing': see Barclays Bank Ghana Ltd. v Sakari [1996-97] SCGLR 639 at page 659. Reconciling accounts of a bank is not an every day normal occurrence. It requires a specialized knowledge and expertise that come from some special training. Under section 114 of the Evidence Decree, the Court can appoint an expert to inquire into and report upon any matter either on its discretion or at the request of any party. The report of an expert does not bind the court even though it is entitled to great weight. The court still has the responsibility of deciding the ultimate issue in the matter (see section 115 of the Decree). Formerly Order 37A of LN140A governed the issue of experts; now the law is in Section 112-115 of the Evidence Decree.

When the trial judge took the view that the matter could be and should have been resolved by accountants more than by lawyers, he literally conceded, "the testimony was sufficiently beyond common experience". To do justice to the case the opinion of an expert was needed. But then it must be appreciated that a court is not bound to call or appoint an expert to assist it in the trial. It is a matter for his discretion and even though it is desirable to call an expert, it is not an absolute necessity or a sine qua non with the result that non-compliance would invalidate the trial or the judgment. We can only admonish that trial judges took advantage of these provisions of the law so as to have the benefit of the opinion of those learned in those fields of study. It would greatly save the parties costs and expenses in respect of technical questions fully, quickly and cheaply. We cannot chastise the trial judge in this instant case for the essential thing was that he passed the litmus test of deciding the ultimate issues put before him in the action. All said and done there was Exhibit CE1 put in by the consent of both parties and it was this exhibit that the trial judge manifestly considered for his judgment.

I had the benefit of reading beforehand the judgment of my brother Aninakwah JA and agreed with his conclusion that the appeal is dismissed and the judgment of the court below affirmed.

J. ANSAH

JUSTICE OF APPEAL

OMARI-SASU J.A.:

I also agree that the appeal herein be dismissed for being unmeritorious but we have no order as to costs.

K. OMARI-SASU

JUSTICE OF APPEAL

COUNSEL

B.W. TAMAKLOE for the Plaintiffs/Appellants