INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(563, 'MOHAMMED IBRAHIM KAMIL  ---  APPELLANT\r\nVRS\r\nTHE REPUBLIC  ---  RESPONDENT', 'IN THE SUPERIOR COURT OF jUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCORAM: ATUGUBA JSC (PRESIDING)\r\nBROBBEY JSC\r\nDATE-BAH (DR) JSC\r\nANSAH JSC\r\nGBADEGBE JSC\r\nCRIMINAL APPEAL NO. 13/3/ 2009\r\n8TH DECEMBER, 2010\r\nMOHAMMED IBRAHIM KAMIL	APPELLANT\r\nVRS\r\nTHE REPUBLIC	RESPONDENT\r\nCriminal law - Possession of Narcotic Drugs - Narcotic Drugs (Control, Enforcement and Sanctions) Law, PNDCL 236. 1990 £56— Whether PNDCL 236 created strict liability - Whether appellant had requisite mens rea - Whether second appellate court could interfere with concurrentfindings of lower court.\r\nJUDGMENT ANSAH, ISC:\r\nThe appellant and five others were charged jointly with a count each of the following offences before the High Court, Accra:\r\nCount One\r\nStatement of offence.\r\n"Engaging in criminal conspiracy to commit crime relating to Narcotic Drug\r\nContrary to section 56 (c) of the Narcotic Drugs (Control, Enforcement and Sanctions) Law,PNDCL 236,1990"\r\n \r\n2\r\nThe particulars of offence were that: all the accused persons engaged themselves in Spain, the United Kingdom and Tema, Ghana, on a date between September 2003 and 7th January 2004 in criminal conspiracy to commit an offence relating to narcotic drug.\r\nCount Two\r\nStatement of Offence.\r\nImportation of narcotic drug without licence contrary to Section 1 of the Narcotic Drugs Control Enforcement and Sanctions Law,1990, PNDC Law 236. The particulars of the offence were that the accused imported 588.33 kilograms of cocaine a narcotic drug without a licence issued by the Minister of health.\r\nCount Three\r\nStatement of Offence\r\nPossession of Narcotic Drug without lawful authority contrary to section 2 of the Narcotic Drugs ( Control Enforcement and Sanctions Law, 1990 PNDCL 236. The particulars of the offence were that between 30 December 2003 and January 2004 the accused persons possessed cocaine weighing 588.33 kilograms at Tema.\r\nCount Four\r\nStatement of Offence\r\nUse of property for Narcotic Offence contrary to section 10(1) (a) of the Narcotic Drugs (Control, Enforcement and Sanctions Law) 1990, PNDCL236.\r\nThe particulars of the offence were that the accused person, Kevin Dinsdale Gorman, used his property House No. 33/137, Community 10, Tema, with the intention of carrying on a narcotic offence.\r\nIt is not necessary to consider count four in this appeal for the appellant was not charged with it, or convicted and sentenced for that offence either.\r\nEach accused pleaded not guilty to the offence but was found guilty at the trial, convicted and sentenced to a jail term of twenty (20) years imprisonment, and also confiscated all monies found on the accused persons as well as the house in which they were arrested. The Court of Appeal subsequently acquitted and discharged the convicted 1St, 2nd and 3rd accused persons on counts one and two by a 2-1 majority, but dismissed the appeal on count three and sentenced the\r\n \r\n3\r\nappellant to 15 fifteen years IHL; whereupon the 2 nd accused appealed further to this court on the following grounds quoted in extenso, hereunder:\r\n"a. That the Court of Appeal erred in law in upholding the decision of the trial High Court that the Appellant was guilty of possession of Narcotic Drug without lawful authority contrary to section 56 of PNDCL 236, 1990.\r\nb.	The judgment was not supported by the evidence on record.\r\nc.	That the conviction and sentence of the appellant to a term of 15 years IHL is harsh and excessive and has occasioned a miscarriage of justice.\r\nd.	Further grounds would be filed upon the receipt of the records of proceedings."\r\nFacts and evidence of the case.\r\nThe facts and evidence grounding this appeal need recounting in order to appreciate the reasons for our judgment. They were that: following intelligence reports from sister international agencies, the Ghana Narcotics Control Board mounted surveillance on the first accused in the trial, a shareholder and operations manager of Tuna-To-Go a Tema based Shipping Company for some time. Telephone bills intercepted on 31-12-03 between 2.00 and 7.00 a.m. showed that the first, second and sixth accused persons were engaged in conversation with each other. At the same time, one Craig, and four ''black men'' non-accused non-appellants, landed what was supposed to have been fish at the Prampram beach.\r\nIn the meantime, the accused persons began to arrive in Ghana in a sequential order; thus, on 2-1-04, the 1st accused arrived from Venezuella through London, on 30-12-03, with the 3rd accused arriving at the Kotoka International Airport on..., and the 4th accused on 6-1-04. On the 3-1-04, the 5th accused followed suit.\r\nWe can now shift focus to have a shot at what happened at the Prampram beach; the PW2, Tetteh Kofi, who worked there as a watchman at the Captains Lodge, said between December 2003 and New Year''s Day, 1-1-2004, the second accused, (hereafter called the appellant herein), told him they were bringing fish from abroad and three days later, the sixth accused brought the ''fish'' in parcels; he PW2 and PW3, Jonathan Lartey Awuley discharged the ''fish'' from a boat and loaded them into a vehicle brought and driven there by the appellant. The appellant paid him 4200,000.00 (two hundred thousand Cedis) for his services.\r\nThe PW2 was supported by the PW3, Jonathan Lartey on all material particulars for he was also paid the same amount for doing the same piece of work that day. Events that followed showed what was truly or exactly the ''fish'' in question.\r\n \r\n4\r\nWe may shift attention to events taking place in the house now. Kwame Boateng, the houseboy of Gorman the first accused, testified as the PW4 and said Gorman traveled but returned on 30-12-03. The next day he saw the appellant and 6th accused come to the house in a big car like what the appellant drove. He the PW4 received some boxes from the car which the 1st accused asked him to carry upstairs and he did so. The appellant brought some more boxes later which he the PW4 similarly carried upstairs.\r\nThen on 7-1-03, a combined team of personnel from the Narcotic Control Board and the Drug Enforcement Unit of the Ghana Police Service raided the residence of the 1st accused and discovered ''bails'' and parcels of whitish substances suspected to be cocaine concealed in specially recently constructed compartments in a wall covered by a large dressing mirror. The 3, 4th and 5th accused at the trial were in the house at the time of the raid.\r\nWhen confronted with the substance the first accused said it was ''cocaine'' brought to the house by one Yakuba for safekeeping for a fee of $50,000.00. All the accused persons who were in the house were arrested and sent to the Narcotic control board offices and later charged with the offences.\r\nThe case for the prosecution was further strengthened by the evidence of the PW1, Husseima Iddrisu, a house-help of the first accused who traveled to London but returned with money which she counted. After that ''Krail'' and the appellant came for the money. She saw the 5th accused a mason, partition a room in the house into two and plaster them; he removed a cupboard upstairs and replaced it with a big mirror previously in the room of the first accused; then the 1st and 5th accused rebuilt the compartment. During the raid on the house on 7-1-04, the police found the boxes in the compartment behind the mirror.\r\nThe PW5 David Tei Ahulu saw Hodgson, the 5th accused, working on the wall on 7-1-04 and corroborated the evidence on how he also heard PW11 Ben Ndego ask the 1st Accused what the parcels contained whereupon the latter said it was cocaine given him by a friend called Yakuba for safekeeping for a fee of\r\n$50,000.00\r\nBen Ndego said upon the receipt of intelligence from sister international bodies the National Narcotic Control Board mounted surveillance on the accused persons. They identified the accused and their associates as involved in the illicit activities. When his outfit conducted a raid on the house of the 1st accused, 22 boxes of substance suspected to be cocaine were found hidden in a concealed compartment behind a big sized mirror in the house of the 1st accused upstairs. A field test conducted on the samples tested positive for cocaine. A further search in the house led to the discovery of a book entitled ''Cocaine''\r\n \r\n5\r\nOn his part the PW10 said he took photographs of the scene and tendered them in evidence as Exhibits D, Dl to Dig. Forensic evidence by PW6 and 8 the analysts, confirmed that the substances were indeed cocaine in exhibit 8, weighing 588.33 kilos.\r\nAt the close of the case of the prosecution the learned trial judge ruled that the prosecution established a prima facie case against each accused and called upon him to enter his defence.\r\nEach accused flatly denied the offence charged against him and led evidence in his defence. At the end of the trial, the court held the prosecution succeeded in proving its case against each accused beyond reasonable doubts, found each guilty of the offence and convicted him accordingly. It then imposed a jail term of 20 years Il-IL imprisonment on each accused. It also confiscated all monies found on them during the raid as well as the house in which the contraband drugs were found.\r\nThe convicted accused persons were dissatisfied with the conviction and sentence and appealed to the Court of Appeal, which dismissed the appeal on count 3 by a 2-1 majority decision. The 3rd and 4th accused appealed further to this court on numerous original and additional grounds and on 7 February 2007, and in its unanimous judgment upheld the appeal; see Logan & Laverick v the Republic [2007-2008] SCGLR 75. Allan William Hodgson, the 5th accused at the trial, had his appeal to this court against the judgment of the Court of Appeal dismissed in Hodgson v The Republic [2009] SCGLR 642.\r\nAs it is only the second accused at the trial who is appealing against the judgment of the Court of Appeal, this time, I shall therefore recap the evidence he led in his defence. He said he went to Kevin Gorman, his brother in law, in his house on 31-12-03 in the morning to see him and one Aisha; he denied going there to offload boxes. He denied the offences leveled against him, and the evidence by the Prosecution witnesses, particularly that he hired and paid some of them to offload the boxes in which the cocaine was found.\r\nIn his statement of case, counsel for the appellant stated that there was nothing in PNDC Law 236 which required, or, created a strict liability offence on an accused person so that a person who did not know the nature and quality of the substance he possessed cannot be said to have been engaged in dealing in Narcotic Drug but is a mere ''luckless victim''.\r\nThis being a criminal trial, the prosecution bore the onus of proof that the appellant possessed the narcotic drug as charged against him, which they must discharge on proof beyond reasonable doubts.\r\n \r\n6\r\nTo secure the conviction of an accused person on such a charge, Atuguba JSC after considering the authorities in an exhaustive manner, stated the ingredients\r\nof the offence in Bonsu alias Benjillo v The Republic [2000] SCGLR 112 at 138 to be as follows:\r\n''I hold that on a charge of possessing a narcotic drug under PNDCL 236 the prosecution must prove: (i) custody or control of the drug by the accused; (ii) knowledge of the presence of the drug: see Warner v\r\nMetropolitan Commissioner [1969] AC 256 HL; R v Soyeson [1982] 2 A/I ER 161 and Akosah v The Republic [1979] GLR 250; and (Hi) knowledge of the nature of the drug possessed."\r\nThe trial court found that the appellant had possession of the drugs and the first appellate court concurred with the trial judgment.\r\nIf the evidence on record was studied carefully, it would show that even though the drugs were not found in the actual possession of the appellant, whether or not the appellant possessed it constructively, or by imputation, could be inferred from the circumstances that they were under his control. There was evidence it was the appellant who drove the vehicle, (a van), containing the boxes, hired the services of some of the prosecution witnesses to offload boxes supposed to contain fish upstairs; he himself carried some of those boxes upstairs. Of course, once the appellant denied the evidence by the prosecution, it became a question of which version of the rival facts as between the prosecution and the appellant the court ought to believe. The trial court cast its preference in favor of the case of the prosecution and was affirmed on appeal. Thus on the vital issue of whether or not the appellant had anything substantially to do with the boxes and their contents, the concurrent findings of fact by the lower courts was that he did carry the boxes found to contain the drugs physically and also hired and paid carriers to send them upstairs for hiding in the specially constructed compartments.\r\nIt was now well settled in our jurisprudence that it is not easily permissible for a second appellate court like this one to interfere with concurrent findings of fact by lower courts unless such findings were not supported by evidence so as to make the findings unreasonable. We have not spared ourselves the burden of reading the evidence several times over and come to the conclusion the findings by the lower courts were supported by the evidence on record thus rendering them amply supported by the evidence and thus were by no means perverse. On this reference is hereby made to Achoro v Akanfella [1996-97] SCGLR 209 cited in Obrasiwa v Otu [1996-97] SCGLR 618.\r\n \r\n7\r\nThe conditions under which this court will interfere with concurrent findings of facts by lower appellate courts have been stated several times in this court. In the Achoro case, this court said:\r\n"in an appeal against findings of facts to a second appellate court like court where the lower appellate court had concurred in the findings of the trial court, especially in a dispute.....this court will not interfere with the concurrent findings of the lower courts unless it is established with absolute clearness that some blunder or error resulting in a miscarriage of justice, is apparent in the way in which the lower tribunals dealt with the facts."\r\nSee pages 214-215 where some of the errors which must be established, such as the lower courts had clearly erred in the face of a crucial documentary evidence, or that a principle of evidence had not been properly applied: see Thakur Harihar Buksh v Thakur Umon Parshad (1886) LR 141 Al; or, as pointed out Robins v National Trust Co. [1927] AC 515, that the finding is so based on erroneous proposition of the law that if that proposition be corrected, the finding disappears. In short it must be demonstrated that the judgments of the courts below are clearly wrong. The examples are by no means exhaustive.\r\nIt is equally well settled that physical possession alone would not be sufficient to prove a case of possessing narcotic drugs against the appellant. The issue was, was there evidence establishing that the appellant had the requisite mens rea or guilty knowledge, or evidence from which it was reasonable to presume the appellant proved to be in possession well knew, or ought to have known that the article he possessed was prohibited drugs, in this case cocaine? In Ghanaian criminal jurisprudence, this ingredient in the offence was stated by 011ennu JSC in Armartey v The State [1964] GLR 256 at 261, that:\r\n"What is the possession proof of which without more, makes a person guilty of an offence under section47 (1), unless he proved that his possession is lawful. Upon a proper construction of the section, the possession must be possession with knowledge of the nature and quality of the article; awareness that what is possessed is ''opium or Indian Hemp'' or residue from the smoking of Indian Hemp''. Physical possession without knowledge of the nature and quality of what is possessed physically is no offence. Without that knowledge there is no legal possession which can support the charge. Therefore to succeed on such a charge, the prosecution must prove legal knowledge; that is, in addition to proving physical or constructive possession, they must go further to lead evidence which establishes that the defendant had the requisite knowledge, or evidence from which it will be reasonable to presume that the defendant proved to be in possession well knew or ought to have known, that the article he possessed was ''opium or Indian Hemp'' i.e.'' cocaine'' in this context.\r\n \r\n\r\n8\r\nIn Warner v Metropolitan Police Commander [1969] AC 132, [1969] 2 All ER.\r\n356, a majority of the House of Lords held that a person could not be in possession of dangerous drugs unless he was at least aware of the nature of that which was under his control although it was unnecessary for the prosecution to show that he knew of its quality. The current statutory English law is contained in the Misuse of Drugs Act, 1971, which provided that an accused might be acquitted and discharged if he proves he neither believed nor suspected nor had reason to suspect that the substance he possessed was a controlled drug. We would say English law was different from the Ghanaian on the requirement of knowledge sufficient to fix an accused with liability for the possession of what was found in his possession. We must observe that whether or not our law on the subject created a strict liability offence was adequately considered in Bonsu alias Benfflo v The Republic [supra] where Atuguba JSC held it did not.\r\nWe fully endorse his view for our criminal law is on all fours with the common law principle that a crime such as we have in question requires a mental element, or a mens rea.\r\nThe Amartey case (supra) made it clear that possession is physical or constructive control coupled with knowledge of the nature and quality of that which was possessed. Therefore the settled law in Ghana is that to sustain a charge under section 2 of PNDCL 236, 1990, the prosecution must prove that the appellant had not only physical control or custody of the drugs but also was aware of its nature and quality. Whether or not the appellant had legal possession of the substance in question was a matter of evidence.\r\nTo be fair to the appellant the cocaine was not found on him physically, but hidden in a specially constructed chamber in the wall of the house of first accused. Was there proof of any connection or nexus by the appellant to these things?\r\nThere was evidence he carried or hired and paid carriers to carry boxes containing the substances from the beach in a van to the house and into the recently constructed chamber in the wall. It is not usual to carry boxes of fish into such chambers for anything.\r\nBut by far the most important fact consideration was that whether or not the appellant carried the boxes from the beach into the house or hired and paid prosecution witnesses for the job were issues of fact to be determined by the trial judge, and when he who had the advantage of seeing and hearing the witnesses as they gave evidence had come out with a finding of fact on those vital matters, and concurred in by a first appellate court, then a second appellate court like this court must be very slow indeed to interfere with the findings of fact so made; unless it can be demonstrated that the findings if facts were perverse as lacking any credible evidential support.\r\n \r\n-	9\r\nIn a brazen effort to avoid detection, was the fact that the chamber was covered with a mirror, so that behind the façade of a mirror, was the chamber in which were hidden boxes containing the noxious substances. There was evidence the appellant drove the van containing the boxes from the beach, carried some of them himself, hired others to do it for him and paid them for their labor. He who does anything through others does it himself. Whichever way one looks at it, either actually or constructively, the appellant was found to have possessed the boxes and known their contents at one stage or the other.\r\nIt was settled it was not sufficient for the prosecution to prove only physical handling of the substance but equally important was this coupled with knowledge of the nature and quality of what was possessed. Knowledge, in this context, was akin to what was requisite for stolen goods under section 147 of the Criminal Code, 1960, Act 29. To constitute an offence under the section was proof of the knowledge that the property in question was obtained or appropriated by an offence and the issue was how that was proved.\r\nIn Republic v Bayford [1973] 2 GLR 421, the court said guilty knowledge was largely a matter of inference from the circumstance and on the merits of a particular case; the nature of the property was important. It is not derogatory of evidence to say it was circumstantial; it is often the best. In cases of this nature such as we are considering in this appeal, seldom does an accused admit or confess this all important knowledge. It is often inferred from the circumstances, albeit not in a rash manner. Care ought to be and is often taken that the evidence must support the inference. The parameters are well circumscribed and adumbrated in the local locus classicus on the subject, namely, State v Anani Fiadzo [1961] GLR 416where the Supreme Court held at page 418 that:\r\n"Presumptive or circumstantial evidence is quite usual as it is rare to prove an offence by evidence of eye-witnesses and inference from the facts may prove the guilt of appellant. A presumption from circumstantial evidence should be drawn against the appellant only when that presumption follows irresistibly from the circumstances proved in evidence; and in order to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt. A conviction must not be based on probabilities or mere suspicion."\r\nIn the celebrated case of R v Onufrejcyk [1955] 1 QB 388, it was said in further explanation of circumstantial evidence that\r\n \r\n10\r\nthe accuracy of mathematics. It is no derogation of evidence to say it is circumstantial."\r\nThus, a judge is permitted to infer from the proven facts, other facts necessary to complete the elements of guilt or to establish innocence. It is not permissible to castigate a judgment simply because it was founded on circumstantial evidence as was done by the counsel for the appellant.\r\nA close study of the evidence revealed that there was more than sufficient evidence to support the findings of fact by the trial court so that the first appellate court was perfectly right in affirming them.\r\nThe evidence showed the role played by the appellant in the saga which may easily win laurels in any annual best film award contest as recounted above (by which he first drove the vehicle that transported the boxes from the beach with he himself carrying some of the boxes, hiring and paying others to assist him in so carrying the boxes upstairs for hiding and hiding them in that compartment in the wall), were acts suggestive of one fact, namely that he knew he was handling an obnoxious substance, and as it turned out to be, cocaine. The appellant before us played a pivotal role in the affair.\r\nWe do not entertain the least doubt the trial court was right in its findings of fact concerning him. The first appellate court was equally right in affirming the trial court in finding the appellant guilty, convicting him and sentencing him according to law. The ground of appeal that the judgment was against the weight of evidence finds no merit and is therefore dismissed.\r\nThe ground of appeal against sentence can be disposed of in only a few words: it did not carry merit for it was adequate under the circumstances. The trial court considered a lot of factors before passing sentence on the appellant. He said even though he was not obliged to give reasons for his sentence:\r\n"But taking into consideration the method or design of the mode of importation of the offending drug — cocaine into the country and by the very huge quantity of the drugs brought in and the modus operandi of all the accused persons in this case, they appear to be leaders or grand masters for the distribution of this condemned drug in Ghana and elsewhere."\r\nWhere the trial judge got that information or evidence from about the distribution of the condemned drug in Ghana so as to make that damning sweeping statement about the accused persons was not indicated and certainly was not disclosed in the entire evidence. Excluding that statement from that part of the judgment for this reason, it could be said the trial judge was right in taking these factors into consideration in sentencing the appellant. In fact, sentencing either after conviction in a trial of first instance\r\n \r\n11\r\nor, on appeal, is a matter entirely within the discretion of the judge or the court. The factors a court would consider in determining the length of\r\nsentence are stated in Kwash/e v The Republic [1971] 1 GLR 488 at 493, LA\r\nto be:\r\n"(1) the intrinsic seriousness of the offence; (2) the degree of revulsion felt by law-abiding citizens of the society for the particular crime; (3) the premeditation with which the criminal plan was executed; (4) the prevalence of the crime within the particular locality where the offence took place, or in the country generally;(5) the sudden increase in the incidence of the particular crime: and (6) mitigating or aggravating circumstances such as extreme youth, good character and the violent manner in which the offence was committed. Thus a judge in passing sentence may consider the offence and the offender as well as the interest of society".\r\nWhere an appellant complains about the harshness of a sentence he ought to appreciate that every sentence is supposed to serve a five-fold purpose, namely, to be punitive, calculated to deter others, to reform the offender, to appease the society and to be a safeguard to this country see; also what this court said in a\r\nsimilar situation in Hodgson v The Republic (supra).\r\nHowever one looks at it, counsel for the appellant did not make any submissions on the ground of appeal against sentence and it is deemed he abandoned that ground sub silentio; other than that, that ground is without any merit and is therefore dismissed.\r\nConsidering all this, we find no good reason to disturb the sentence on the appellant by the Court of Appeal, and think it was even on the low side and should have been increased.\r\nIn conclusion, we hold that the judgments of the lower courts were impeccable, for the evidence amply supported the finding of guilt and conviction for possession of the drug by the appellant. The sentence ought to be and is hereby affirmed; we also affirm their decision and dismiss the appeal as it failed entirely.\r\n3. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\nW. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n\r\n12\r\nS. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\nDR. S. K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\nN. S. GBADEGBE JUSTICE OF THE SUPREME COURT\r\nCOUNSEL: \r\nK. ADJEI-LARTEY FOR THE APPELLANT.\r\nASIAMAH SAMPONG P. S. A. FOR THE RESPONDENT.\r\n\r\n\r\n', '../links/cases/Document (213).pdf', 'Yes', 'BROBBEY JSC, DATE-BAH (DR),J.S.C,ANSAH JSC, GBADEGBE,J.S.C', '2010', 'supreme', '<i><b><font face="Times New Roman" size="3">Criminal law - Possession of Narcotic Drugs - Narcotic Drugs (Control,Enforcement and Sanctions) Law,PNDCL 236,1990 s.56 - Whether PNDCL 236 created strict liability - Whether appellant had requisite mens rea - Whether second appellate court could interfere with concurrent findings of lower court.</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Criminal', '', 'J3/3/2009', '', '', 'supreme', '2010-12-08', ''),
(564, '1. REBECCA GYAMFI\r\n2. ERIC MANU BOAFO  ---  PLAINTIFFS/RESPONDENTS\r\nVRS\r\nADU ESQ.\r\nANAJI  ---  DEFENDANT/APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE COURT OF APPEAL\r\nACCRA, A.D. 2011\r\nCORAM: S. MARFUL-SAtJ, J.A (PRESIDING)\r\nSENYO DZAMEFE, J.A\r\nDENNIS D. ADJEI, J.A\r\nSUIT NO. 111/155/10 27TH OCTOBER, 2011\r\n\r\n	\r\n\r\nCivil Practice and Procedure - Application to set aside default judgment - Whether defendant''s affidavit in support and supplementary affidavit disclose triable defence - No automatic right to set aside judgment but must demonstrate to court credible defence against claim.\r\nJUDGMENT DENNIS D.ADIEI (IA)\r\nOn 911, June2009 the High Court,Sekondi gave final judgment in default of defence in favour of the Plaintiffs/Respondents to recover the sum of GI-Je 15,500.00 with interest at the current bank rate from July 2003 to the date of final payment. On 2711, July 2009, the Defendant/Appellant applied to the High Court to set aside the default judgment entered in favour of the Plaintiffs and a further order adopting the statement of defence filed out of time. The Defendant''s\r\n \r\napplication to set aside the judgment in default of defence was dismissed by the trial High Court for failing to disclose any triable\r\nissue.\r\nOn 29th October, 2009, the Defendant/Appellant being dissatisfied with the ruling of the trial High Court which refused to set aside the default judgment, appealed against it to this Court.\r\nThe brief facts of this appeal are that the Plaintiffs/Respondents instituted this action against the Defendant at the I Ugh Court, Setwitch\r\nfor the following reliefs:\r\n"1. Recovery of the sum of GIR15,500.00 being monies advance to the Defendant by the 1st Plaintiff for the purchase of a house which\r\nthe Defendant sold to another person and has refused to refund\r\nthe money despite repeated demands for same.\r\n2. Interest at the prevailing hank rate from June 2007 to the date\r\nof final judgment".\r\nThe writ of summons was accompanied by seven (7) paragraph\r\nstatement of claim.\r\nThe efforts by the Plaintiffs to serve the Writ of Summons and the Statement of Claim on the Defendant personally failed as the Defendant could not be located. On 21st April, 2009, the Court granted\r\nan application Ex-parte for substituted service of the Writ of Summons and the Statement of Claim on the Defendant. The notices were posted\r\n \r\nas ordered by the trial Court. On 5tII May, 2009, (he Defendant entered appearance but failed to file his Statement of Defence. On 2811, May, 2009, the Plaintiffs flied notice for judguieiit in default of defence and was duly served on the tlieii lawyers for the 1)ekmdant on that vety date. The Defendant fiuled to file his Statement of Defence and fhiled to appear in Court on the return (late. The trial I 11gb Court therefore entered judgment for the Plaint 11Th for the reliefs endorsed on [heir writ of summons. On 1 GIII June, 2009, the entry ofjiulgment was served on the Defendant personally. The Defendant''s house was subsequently attached by the Sheriff of the trial I ugh Court upon (he writ of lien faeias filed by the Plaintiffs. The Defendant in his el fbrt to abate the execution process, filed the motion to set aside the judgment ill (lefault of defence and for a Ilirther order adopting the statement of defence flied by him on 271'' July, 2009.\r\nThe three (3) grounds of appeal filed by (lie Defendant are as follows: - "a) That the ruling is against the weight of the affidavit evidence.\r\nH That the affidavit of the Defendant raised triable issues and the trial Court erred in not granting the Defendant leave to defend the action.\r\ne) That it was the Defendant''s ease that time was the essence of the contract and that by failing to complete within the stipulated time, the Plaintiff''s caused loss and damages to the De!bndant a ground which the trial Court fniec1 to appreciate-,\r\nThe Defendant indicated Ins intention to file additional grounds of- appeal but did not file any.\r\n \r\nThe import of Defendant''s grounds 1, 2 and 3 of the appeal is that the ruling is against the weight of the affidavit evidence as there are triable issues. By this the defendant is saying that the affidavit in support of his application filed on 1401 August, 2009 and the Supplement my Affidavit filed on 25th August, 2009 disclose triable issues and the judgment should be set aside on such terms as the Court thinks just. Order 13 Rule 8 of the High Court (Civil Procedure) Rules C.I. /17 provides for the circumstances under which judgment obtained in default of defence tinder Order 13 of C.I. 47 could be set aside or varied.\r\nOrder 13(8) of C.I. 47 provides as follows: -The Court may, on\r\napplication by a party affected and on such terms as it thinks just set\r\naside or vary any judgment entered in pursuance of this order."\r\nThe it-latter for consideration is whether or not the Defendant''s Affidavit\r\nin Support and the Supplementary Affidavit disclose a triable defence. If they do not, then, it will not be just to set it aside but if there are triable issues(s), it would be just to set it aside subject to the award of costs to compensate the Plaintiff. The application to set aside default judgment should be refused except in cases where there are no triable issues. Due to the high rate of illiteracy in the country particularly as to knowledge in law, it would not be fair to refuse to set aside default judgment on the ground that he failed to take advantage of the rules and equity will not avail the indolent. In the case of Conea Engineering (Ghana) Ltd. vs. Moses [1984 - 86] 2GLR 31 ) at 328, this Court\r\n \r\nspeaking through Apaloo CJ (as lie then was) had this to say when a Judge is confroiited with an application to set aside a (lel2IlIlt judgment.\r\n"I think the modern approach to judgnient, by default which the New Brunswick and Kok l-h)ong eases typify is a more suitable weapon of achieving the ends of justice and should be lollowed in this country. If a judgment by clelatult does not necessarily preclude (lie parties ill a highly literate and sophiscated society 111cc England because the defendant may have been ignorant. or negligent or iridi ffernt in the former action it must be a !ortiori in this coimntiy where the level of literacy and sopiiiscation is much less than in England."\r\nLord Atkin ill	I louse of Lords case of Evans vs. l3artlam [ 1937J AC\r\n473 ill down the principle upon winch default judgment could be set aside held thus: "The Courts, however, have laid down for themselves rules to guide them in the nornial exercise of their discretion. One is that where the judgment was o])Uunedl regularly, there must he an affidavit of merits, meaning that the applicant must produce to (lie Court evidence that he has a pi-iiiia facie defence." This Conrt in the case of Quarnryne vs. Afeyesi and Others [1981 - 861 2 GLR 430 quoted the above case with approval.\r\nI have carefully examined the deposition contained in paragraphs l- 17 of the deFendant''s Affidavit ill support of his application as well as the supplementary Affidavit filed on 25th August, 2009 and I arn satisfied that they do not raise triable issue to make it just for the Court to set aside the judgment.\r\n \r\nI am not satisfied that the defendant has been able to prove by his affidavit that the GI-K=10,000.00 was a deposit anti there was """"a condition in the agreement that if there is a breach on the part of the Plaintiffs they could forfeit it. Furthermore, he could not satisfy me that time was of essence and it was the defendant who breached the contract. The defendant by his paragraph 16 of his affidavit in support deposed that if he had forfeited the deposit for breach of contract. To rue, the Defendant has taken the law into his hand. The Contract Act, Act 25 does not say that security money or inoncy placed with a person as earnest money or security for the performances of a contract is forfeited by the depositor. Counsel for the defendant relied on the English case (House of Lords) of Mayson vs. Clouset and Another [1924] JC 980 and urged the Court to hold that the GIRI0,000.00 paid to him by the plaintiffs was a deposit and should be forfeited as it was the plaintiffs who breached the contract. If Counsel for the defendant had adverted his mind to the decision of Cotton L.J. and f3ornen L.J. at page 986, he would not have impressed upon this Court to accept his position. Whether or not the deposit or the part payment would be forfeited if there is a breach on the part of the contract must be a condition in the agreement or the contract. Their Lordships held thus: "the question as to the right of the purchaser to the return of the deposit money must, in each case, be a question of the conditions of the contract".\r\nThe defendant did not say that it was a condition in the oral agreement\r\nthat if there was a breach of the contract emanating from the plaintiff,\r\nhe was going to forfeit the sum of GH010,000.00. The defendant''s case is\r\n \r\nthat the plaintiffs have breached the contract and that he has forfeited the part payment or the deposit. It is not the position of the law and if the judgment is set aside and he is coining to rely oil this wrong proposition of the law, it would be unjust to the plaintiffs.\r\nA default jiidgrnenti should always he set aside where the defendant demonstrates that he has a good defence through his Affidavit. Where the defendant is relying or wrong proposition of the law to set aside a judgment as in the instance ease, it will not sei-v(, any tisehil purpose to set it aside. In the instant appeal, the defendant has fiuled to demonstrate loth and/on either the facts or law that he has a defence and the appeal should be dismissed.\r\nI am not oblivious of the ratio in the ease of Evans vs. l3arlanx (Sripra) which is to the effect that unless and until the Court has proiioiincecl a judgment. upon the merits by content, the Courts 5110111(1 not use rules of procedure to shut the door of justice. Iii this case, the appeal is being dismissed not by technical or procedure errors committed by (lie defendant before the trial Court but simply he has not got any defence to the plairitifi''s action.\r\nIt would not serve any useful purpose to set aside tI ic jil(lglnent as the defendant has huled to disclose that lie has any triable issue for the Court to consider.\r\nThe appeal is dismissed as unmeritorious and (lie judgment of the 1-ugh Court dated 22-1 October, 2009 is affirmed.\r\n \r\n- -\r\n„ 0\r\nDENNIS D. ADJEI JUSTICE OF APPEAL\r\nMARFUL-SAU, JA: This is an interlocutory appeal from the ruling of the High Court Selcondi, dated the 22ml October, 2009. In that. ruling the trial I ugh Court refused to set aside a judgment in default of defence entered for the plaintiffs/respondents to recover an amount of GIIC 15,500.00, from the defendant/appellant. The respondents on the 20,1, of March2009 issued a writ against the appellant for the recovery of the above sum and interest thereon from June 2007 to date of final\r\npayment. According to the respondents the money was advanced by the first respondent to the appellant Epr the purchase of a house, which the appellant sold to another person. The appellant refused to refund the amount paid hence this action.\r\nFrom the record of appeal the writ was served on the appellant through substitution, to which an appearance was entered on 5th May, 2009. The respondents then filed a motion for judgment after the appellant failed to file a defence within the time prescribed by the rules. This motion was served on counsel for the appellant, but at the hearing there was no affidavit in opposition and appellant and his counsel were absent. The court thus rightly entered judgment in default of defence against the appellant for the reliefs endorsed on respondents'' writ of summons.\r\nOn the 27th ,July 2009, the appellant filed a motion on notice to set\r\naside the judgment entered against him. The motion was opposed by\r\nthe respondents and same was dismissed by the trial court on the 22"\r\n \r\nOctober, 2009. Through this appeal the appellant is urging this court to reverse the ruling of the trial court, the reason being that he has a defence to the respondents.claim. Appellant bled three main grounds of appeal and argued all the grounds together in his statement of case. The law is trite that a party, against whom default judgment has been entered, has no automatic right to set aside the judgment, even though such applications have no time limit. Such a party has to demonstrate to the court that hc- has a credible defence in law against the claim. See Quarmyne v. Afeyesi (1984-86) 2GLR 430,CA.\r\nThe courts at common law have always reserved the discretion to revoke default judgments upon the showing, that a reasonable defence do exist against the plaintiff''s claim In EVANS v. 13ARTLAM (1937) AC 473, HL, Lord Atkin delivered at 480 thus:-\r\n"The principle obviously is that unless and until the Court has pronounced a judgment upon the merits or by consent, it is to have the power to revoke the expression of its coercive power where that has only been obtained by a failure to follow any of the rules of procedure."\r\nIt was therefore the duty of the appellant to demonstrate at the hearing of the motion that indeed he had a reasonable defence in law to the respondents claim. This the appellant could have done in the affidavit that supported his application. I have read the affidavit filed by the appellant in support of his motion and what the appellant seemed to rely on as a defence is an allegation that the respondents delayed with the payment of the agreed purchase price and for that matter breached\r\n \r\n\r\n \r\nthe contract of sale. The question is can this be a credible defence to\r\nthe respondent''s action to recover the amount paid which the appellant never denied? Clearly, I think the appellant could not hide under the\r\nalleged breach of contract of sale as a ground to forfeit the amount paid to him. Indeed, if the respondent failed to pay the purchase price within the alleged agreed period the cause of action opened to the appellant was not to forfeit the respondents'' money; but to sue for damages for breach of contract.\r\nParagraph 16 of the appellant''s affidavit in support of the motion to set aside the default judgment gave the appellant away. It reads as\r\nfollows:-\r\n"16. That I pointed out that they had seriously injured me in my business and that I was going to forfeit the deposit for breach of contract because if they had paid as promised I\r\nwould be free of debt."\r\nFrom the above averment appellant''s refusal to refund the amount paid him by the respondents was not that it was agreed that the payment of GEC 10,000.00 was to be a deposit guarantying the performance of the contract, as argued by his counsel, and thus not refundable. Rather it was an arbitrary decision which must be deprecated since such unilateral acts leads to anarchy and lawlessness; and no court mindful of doing justice would countenance such acts of self help. The English case of MAYSON v. CLOUET and Another (1924) AC 980 cited by counsel for appellant is distinguishable from the instant case in the sense that in that case the parties expressly agreed that deposits were to be forfeited.\r\n \r\nI have carefully read the affidavit in support of the motion to set aside the judgment and I do not see any credible defence in law raised therein in contest to respondents'' clairn to recover the amount paid for the house, which was sold to another person by the appellant. 11 the claim that the payments were delayed is even found to be credible appellant''s remedy will be in damages for breach of contract but not the arbitrary act to forfeit the amount paid.\r\nFor the reasons expressed above I also agree that this appeal should fail, to hold otherwise will amount to unjust enrichment by the appellant.\r\nMARII.JL-SAU -\r\nJUSTICE OF APPEAL\r\nSENYO DZAMEFE, J.A	I agree	SEN''PO DAMEFE JUSTICE OF APPEAL\r\n \r\nCOUNSEL\r\nMR. !SIIMAI3L C. CARSON FOR THE DEFENDANT/APPELLANT MR. EMMANUEL AVI''H UR FOR TI-JE PLAlNTIFFS/RESlQNDF9NT\r\n', '../links/cases/Document (214).pdf', 'Yes', 'SENYO DZAMEFE,J.A, DENNIS D.ADJEI,J.A', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Civil Practice and Procedure - Application to set aside default judgment - Whether defendant''s affidavit in support and supplementary affidavit disclose triable defence - No automatic right to set aside judgment but must demonstrate to court credible defence against claim.</font></b></i><br>', 'S. MARFUL-SAU,J.A', 'Civil', '', 'HI/155/10', '', '', 'appeal', '2011-10-27', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(565, 'F.K.A. LIMITED  ...  PLAINTIFF/RESPONDENT\r\nVRS\r\nADJEI BOADI  ...  DEFENDANT/APPELLANT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE COURT OF APPEAL;\r\nACCRA - AD 2010\r\nCORAM: ABBAN (MRS) J.A (PRESIDING)\r\nDUOSE, J.A\r\nOFOE, J.A\r\nH1117012010 17TH NOVEMBER, 2011\r\nF.K.A LIMITED -----¬ PLAINTIFF/RESPONDENT VRS\r\nADJEI BOADI	-------DEFENDANT/ APPELLANT\r\nLand Law - Compulsory Acquisition - Whether government commitment to release land to Weija Stool gives capacity to alienate lands - No revocation instrument - Whether court is entitled tofindfraud even if not pleaded - Whether defendant can challenge ownership to land belonging to someone else.\r\nJUDGMENT\r\nABBAN (MRS), l.A.: This appeal emanates from a judgment of the Land Division of the High Court, Accra, dated the 2911, October, 2009. The judgment went against the defendant (herein referred to as the Appellant) and being aggrieved, he has appealed to this court.\r\nThis case has no complexity as to the facts put before the trial High Court Judge. It is a case of two entities - one an individual and the other a company purchasing land from the same stool under different circumstances. The plaintiff''s Managing Director claims he acquired the land from the Weija Stool. He got the\r\n \r\nland by way of customary grant in year 1980. Subsequently, he\r\nrequested that all documentation in respect of the lands he\r\npurchased should be prepared in the name of the plaintiff\r\ncompany, PICA Ltd. This was done in May 1998 and the\r\ncompany was given an indenture which it claims it got registered. Because of defendant''s trespass on the land, it sued him claiming -\r\na	Declaration of title to all that piece or parcel of land situate lying and being at New Weija, Accra containing an\r\napproximatd area of 95.104 acres more orilcss bounded on the North-West by proposed road measuring 28991.7ft more or less on the North-East by a proposed road measuring 2656.39ft. more or le on the South-East by the source land measuring 1889.3911. more or less On the South-West by thc source land .measuring 2068.55ft. more or less.\r\nCieneral damages for trespass\r\nSpecial damages of (1:300,000.00\r\nPerpetual Injunction restraining the defendant, Ids agents, assigns and workman froin further dealing with pltintiff''s land.\r\nl''he defendant on the °tiler liand (2hums that mitt illy In bought the land frorn the stool of Amnnfrom in 1999. Aftel- purchase and planting corner pillars, 11c travelled out of tile counti-y only to come back to realize on his /-eturn that the land did not 1)clong\r\n2\r\n \r\nto the Amanfrom stool but to the Weija Stool. lie was advised by tlic Amanfroin Stool to see the Weija Stool since their ownership of the land had been confirmed. After consulting the Weija Stool, they agreed and made a grant to him of the kind, lie claims to have partly developed the land given him by building thereon. Whilst accusing the plaintiff of forgery for causing to be prepared a site plan which wrongly covers his land, he also now believes that the land, iftei ill, did not and does not belong to the Weija ''tool but to the Government of Ghana. He got this information when he subsequently made a search at the Lands Commission With this seat eh result he has a eotmteielairn asking for the court to declare the 16th May Indenture plaintiff got Li orn the Weij m Stool null and void and order the cancellation of this indentui e I must mention that at the trial court, the defendant queslioned the capacity  of the plaintiff to issue the writ on the grounds that the land, by the plaintiff''s own pleadings shows that the plaintiff does not own the land. Capacity to sue should rather be in the plaintiff''s managing\r\ndirector personally and not time plaintiff company The trial judge upheld the capacity of the plaintiff company to sue and granted it ill its reliefs except that for the special damages. It granted the p1 tintiff Ght 5000 general damages\r\nThe defendant questions this judgment of the trial judge and has inounled appeal against the judgment on six (6) grounds which I\r\nquote hereunder:\r\n"U		The learned ti tat judge erred in law in holding that tn\r\nspite of the (onLpulsonJ acquisition of the disputed\r\n \r\n3\r\n \r\nland by the government of Ghana and (sic) Weija Stool\r\nmade a valid grant to the plaintiff\r\nThe learned trial judge erred in holding that the\r\ngovernment of Ghana had given the disputed land\r\nback to the Weija Stool.\r\nThe learned trial judge erred in failing to hold that  the plaintiffs acquisition of the disputed land is fraught with fraud.\r\nrl''he learned trial judge erred in holding that thc plaintiff has capacity to maintain its action. \r\nThe learned judge erred in 	dismissing the cow derel ail n.\r\nThe judgment is against the weight of the evidence."\r\nOn the first ground of appeal which relates to the government acquisition and ownership of the land in dispute, the evidence cannot be doubted that the land is government kind acquired under E.I.60 but then government had taken a firm decision to return some of these compulsorily acquired lands to the original owners. Several administrative meetings have been held at high government levels which resulted in a press release by the then Minister for Lands on the 811) of October 2008. As a follow up, the Survey Department has been directed to conduct a c.idastral survey, the cost to be borne by the affected traditional owners, including the grantor of the pLirties i.e. the Weija Stool. Indeed\r\n4\r\n\r\n \r\nthe evidence is that they have paid for the preparation of the cadastral survey. On the basis of this evidence, the trial judge concluded that even though technically the executive instrument covering the compulsorily acquired lands had not been revoked iii reality, the government had released the land to the original owners and therefore the Weija Stool had the competence to grant the lands to the parties and that sine the disputed land had been granted earlier by the Stool to the plaintiff, on the principle of neino dot good non Iwbet, the Stool was completely divested of this disputed land and it had no capacity to grant the saint land to the defendant Counsel for the appellant dis igi ees with this reasoning He submits forcefully th it in so ftir as the executive instrument has not been revoked, the WcJja Stool can have 110 title to pass to anybody, not even his own client, the defend mt From the reasoning of counsel it appears cli it to mu that lit is not enthused with thedistinction the Urn] judge sought to draw between the land i dc iseci "in reality" to the original owners and "teetirucal" non revocation of the executive instrument. To him the hinds are still government lands and nobody c in give valid title than the govei nmcnt lie relics on the cast oh Memuna Moudy vrs Antwi (2003-2004) S C G L R\r\n967\r\nCounsel for the respondent contends otherwise. lit is strongly of the view that the corresponcicnce. correspondence. by the govul nnient, including the press release, clearly indicating the coinmitmunt of government to release the lands is suffh tent giouncls to support any sales made of these lands by the traditional owners, in this case the Weija Stool I have i e id Exhibits E, 1, G and there is a reason son disagi ceing with i the plaintiff''s position that there is the\r\n	\r\n \r\ncommitment to release some of these compulsorily acquired\r\nlands to the traditional owners. These exhibits are deliberations, a report and the press release. But the important question is\r\nwhether such commitment should he sufficient to vest the title of\r\nthese lands in the Wcija Stool to give it capacity to alienate these lands? In other words is an administrative decision suffiCient to re-vest these government lands to the original owners?. Mernuna Moudy vrs. Antwi (supra) does not appear to support an affirmative tinswer to this question. The underlying reasoning in that case that it relates to government acquired lands is that it is\r\nonly the government who has the capacity to -deal with such compulsorily acquired lands.	The press :reletise Exhibit\r\nprovides at its first page, last paragraph that:	.	.\r\n''1 he ministry met with the chiefs and. elders of La, Ac/cola,\r\nOgbojo Mpelmasem, NUUTILO Nirl.Ultic- family. Government\r\nhas agreed with the land owners thatthe portions to be released would be in lieu of compensation for the pot lion be retained by government.J (empfrasis mine).\r\nFrom this ptirag,raph it is clear that the portions to be released to the traditiontil owners had not yet been finalized for the stools to know what it -ea of land has been released to them. And this is where the importanee of the revocation instrument becomes important. For it is in such instrument that the lands ICICLISCC1 will be explicitly stated. It may be difficult for the government to resile from this position it had taken to release some of these kinds to its original owners, especially when it had got the respective Stools to -pay for cadtish-al survey as earlier indictited. The respective stools may have strong legal right to inhibit tiny\r\n6\r\n\r\n \r\nback-tracking by the government. But such right not firmly established yet, it is my view that government commitment we have here in this case should not be sufficient title on which to base any grants yet. It is true that equily considers as done what ought to he done and that there is some sense in concluding that the Wcija Stool by the decision of the government should he highly expectant having sonic of their lands back, but ill circumstances of this case what lands exactly would be returned to them is yet to be known It would be rushing equity too early to the rescue when the circumstances ard not ripe for it. Any purchaser of any of these lands which recordings are in the name of the government does so knowing what risk he is unch i Viking Where the govenunent''s intention to rcicasc these lands come to fruition and there had been purchasers like the parties hclorc this court the stool could he compelled by the principle of feeding the estoppel to perfect he title of tli sc grantees. Until then, the stool has no capacity to grant the disputed lands to any of the parties.\r\nFor the above icasons grounds (a) and (b) of the grounds of appeal would he upheld\r\nThe defend mt''s next complaint Is in respect of the trial judge''s failure to find that the plaintiff w is Ii muduk nt in its cicqUiSiti011 of the land Defendant admits that they did not plead fraud as demanded d by the rules, neither did they give any particulars of the fraud to enable the ipp I lant respond properly during the\r\ntrial He would want to rely oil	case of Aniuzu vrs Oklika\r\n(1998-99) S C G L R 141	Counsel submits that on the\r\nauthot ity of this case whei e the ft aud is clear on the record, the\r\n7\r\n \r\ncourt is entitled to find fraud even if not pleaded. There is no quarrel about the existence of this principle but when should this principle be invoiced should depend upon the circumstances. In the Oklika case the circumstances were such\r\nthat even the devil would cry the loudest fraud, insincerity, unconscionability and in fact thievery. I do not think the same can be said of this ease before us. Let us even look at the fraud the defendant is complaining about. What is the nature of the fraud the defendant is alleging? He is	.\r\n\r\nThat the land was bought in the name of a company that did not exist at the time of purchase. What is fraudulent itbout this? Who was defrauded? Was it the stool that was defrauded or the defendant? Answers to these questions clearly show the weakness in this allegation of fraud.\r\n2		That the respondent changed the site plain in the\r\nindenture executed for ibby the Weija Stool. I will ask the\r\nsame questions again. What is  :Ole fraud find who was\r\n.	.\r\ndefrauded? The evidence on record is that there was indeed a new site plan in the indenture.\r\n		--.	-\r\nAs a consequence, the date of .execution of the indenture and that on the site plans±confliet. But the explanation the respondent gave was that the site plan Ofigimdly in the indenture got tornThecause he had to use this site ph in at the several court attendances that had been his lot sMee purchtttsing\r\n:\r\nlands from the	owners. He therefore had to cause a\r\n.	.\r\nsurveyor to prcpait him another site plan. And that is how come he.: canie.by the new site plan with a new date. With this\r\n \r\nexplanation, I do not think we can talk of palpable fraud on the face of the record to invoke the Olclika principle on finding fraud siio itiotu even if not pleaded. More importantly, there is unchallenged evidence that the new site plan in the indenture is not different in content froiii the earlier one. It is the same in every material particular. I must confess I do not find the fraud like cancer that the appellant is alleging for me to act swiftly as advocated in the ease of West African Dyeing Industry Ltd. vrs. Tanoh (1984-86) 2 G.L.R. 561 at 605 relied oil counsel. We will dismiss this ground of ''appeal Counsel in his written submission ili -indoned his next ground of appeal which qii stioneci tin c II) i( ity of the plaintiff to sue We tiierefon lay tli a ground of appe il to rest.\r\nExamination of the oniniln is ground of appeal, the judgment is against the weight of evidence should dispose of the other last ground of appeal also i.e. the trial judge erred in dismissing their counterclaim.\r\nPlaintiff''s claim is for declaration of title B J da Rocha and Christian Lodoh ill hook, "Ghana Land Law and Conveyancing" have this to ''ay in respect of title\r\n"Title to land is the means by which a person establishes his right to land A person''s title indicates by what means TIE claims to be the owner of land. Title may take the form of possession or it may take the form of document or series of docuiiients..."\r\n \r\n9\r\n \r\nFrom the pleadings of the parties and the evidence led in court each party believes he is in possession and that should protect him against the other. It is each party''s case that he is in possession before the other trespassed on the disputed land. By\r\nthe plaintiff''s pleadings and evidence he is in possession and had made roads and erected electric poles and transformer on the land. It is part of this land the defendant has trespassed on Defendant on the other hand claims that after buying from the Amanfrom Stool he erected corner pillars but subsequently he has put up a building on part of his land. From  the court -atipoitited surVeyör''s repor-ind evidence bcfoitc time c011/ t the conclusion cannot be avoided that the defendant is churning land not captured by his site plan. While the plitintiff''s site ph in agreed with the land on the ground, the defenthint''s site plan puts his land at a place which is different from where he is disputing with the plaintiff. Part of defendant''s cross examination was as follows:\r\n"Q. ''lime two parcels of land are located far apart from each other.\r\nA.	Yes.\r\nQ.	So you will agt-ee	inc that your land does not fall within plaintiff''s land C1CCO7Wing to the exhibit.\r\nA.	Yes."\r\nSo where the defendant is contesting with the i)Itiintiff cannot be what was granted him going by his site plan. But more\r\n10\r\n \r\nimportantly who is and was in possession of this disputed land? Plaintiff''s evidence is that when the defendant trespassed on the land he warned him, but he refused to heed (he warning. He continued to build. The defendant himself said in answer to his cross examination that he came back from abroad and noticed that the plaintiff had walled part of the land. He went to the land but was arrested together with his workers anridst warning shots by aimed policemen to Odorkor Police Station, If he came back front abroad and noticed the plaintiff had w illed part of tlu land, then at what Period did he start putting up his building? This floffFUibè.ddëhbe, shouldH5d il1tdf -1 -1 taken possession of the land. And it is more likely than not that it was because he ignored the plaintiff''s w''-n ning to vat ate the land that the police came to effect his arrust together with his workers. Ihcic is sufficient evidence that it was th plaintiff who was and is still in possession of the disputed land The hackneyed legal principle is that possession by itself gives good title against the whole world except someone having better legal right. Where as\r\nin this case both parties bought front Weija Stool, who T have found has no title to make a grant to any of ftem, the one in possession i.e.  the plaintiff has bc ttei title to the land awaiting anybody who claims to have better title to dislodge him Tile defendant cannot rely on his own strength in the circumstances of this case to challenge thu plaintiff''s possession over the land iii dispute. There is no Principle that will support the defendant, also a squatter, challenging the claim to ownership of the land by the plaintiff on the ground that the land does not belong to the p1 nntiff but to somebody else, in this case the government,\r\nsince hc is not claiming to derive title front	government. Ile\r\nH	I!\r\n \r\nhas no business therefore questioning the documentation of the\r\nplaintiff no matter how erroneous.\r\nFrom the foregoing, we will dismiss this ground of appeal, i.e.\r\nthat the judgment is against the weight of evidence and the cornplaint I ht--tt the trial judge erred in dismissing the defendant''s counterclaim.\r\n''Hie appeal succeeds in part only The reliefs the defendtmt is seeking in this court cannot be granted. The judgment of the trial court cannot be set aside neither can judgment be granted on his counterclaim as he prays from this court.-\r\n\r\n413i3A.-N\r\n( •-)	(trui\r\n•)\r\nJ.A. -1 agi-ee\r\n(41STI __OF_APPI:EAL)\r\nOFOE, J.A. - I also lp-,t-er	V. D 0 &#61550;\r\nPUS TIC D V 144 PEAL)\r\nCOUNSEL\r\n•	MR YAW AWE! AF''fi''RAM FOR DEFENI)ANT/APPEIAANT\r\n•	MR HENRY omccA-TErrEH FO1: PLAINTIFF/RESPONDI NT\r\n12\r\n', '../links/cases/Document (215).pdf', 'Yes', 'DUOSE, JA, OFOE, JA.', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Land Law - Compulsory Acquisition - Whether government commitment to release land to Weija Stool gives capacity to alienate lands - No revocation instrument - Whether court is entitled to find fraud even if not pleaded - Whether defendant can challenge ownership to land belonging to someone else</font></b></i><br>', 'ABBAN (MRS), J.A.', 'Civil', '', 'HI/170/2010', '', '', 'appeal', '2011-11-17', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(566, 'ISAAC KWESI YEBOAH  ...  PLAINTIFF/RESPONDENT\r\nVRS\r\n1. GODWIN AHELE a.k.a. MR.AGO  ...  DEFENDANT/APPELLANT\r\n2. AGNES NARTEY  ...  1ST CO-DEFENDANT/APPELLANT\r\n3. CLIFFORD ARMAH  ...  2ND CO-DEFENDANT/APPELLANT  ', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE COURT OF APPEAL\r\nVsttM 1A\r\nCORAM: MARIAMA OWUSU l.A (PRESIDING) ISAAC DUOSE, J.A\r\nC.J. HONYENUGA, J.A\r\nISAAC KWESI YEBOAH	---- PLAINTIFF/RESPONDENT\r\n \r\nVRS\r\n1.	GODWIN AHELE a.k.a MR. AGO\r\n2.	AGNES NARTEY	-\r\n3.	CLIFFORD ARMAH	-\r\n- DEFENDANT/APPELLANT\r\n1ST CO-DEFENDANT/APPELLANT 2ND CO-DEFENDANT/APPELLANT\r\n \r\nCIVIL APPEAL\r\nSUIT NO: 1-11119212008\r\n DECEMBER 15, 2011\r\nLand Law - Title to land —ss. 166 & 168 Evidence Act, 1975 (NRCD 323) - Photocopy of document good as original - Onus on appellants to properly demonstrate lapses in judgment - Whether trial court relied on forged documents - s.24(1) Land Registry Act, 1962 (Act 122) - Non registration of document and consequences.\r\nJUDGMENT\r\nMARIAMA OWUSU, l.A.\r\nOn 20-9-2005, the Circuit court, Accra gave judgment for the Plaintiff. The court held amongst other things as follows:\r\n"I declare that Plaintiff has title to the land in dispute.\r\nI order the Plaintiff to recover possession of the land in Dispute as described in paragraph 4 of the statement of Claim and containing an approximate area of 0.46 acres.\r\nThe land is inclusive of the land now occupied by the 1st Co-Defendant. I order the Plaintiff to recover possession of the land in Dispute and adjudged to belong to him.\r\n \r\nI order that the Defendant, the 1st Co-Defendant and\r\n•	2nd Co-Defendant, their agents, servants and assigns be and are hereby restrained perpetually from interfering\r\nor intermeddling in any way with the Plaintiff quiet\r\nenjoyment of the land.\r\nCost of 05m (5 million) against Defendant. 05m\r\n(five million) each against each of the Co-Defendants".\r\nDissatisfied with the decision of the court, the Defendants appealed to\r\nthis court.\r\nThe Grounds of Appeal for Defendant are:\r\na. The decision is against the weight of evidence on record.\r\nb.	That the trial judge failed to direct itself in applying an interlocutory ruling as a judgment.\r\nc.	That the trial court relied on forged documents of the Plaintiff which is also not registered to deliver judgment in favour of Plaintiff.\r\n\r\nd.	The trial Judge failed to consider the defence of the Defendant and to recognize his prior possession.\r\ne.	That the trial Judge failed to address issue as to whether land was at Sowutuom or Kwashieman.\r\n'' f. That additional grounds will be filed upon receipt of the record of proceedings.\r\nRelief Sought: \r\nTo reverse the decision of the trial Judge and enter judgment for Defendant.\r\nFor the Co-Defendants the following Grounds of Appeal were filed on their behalf:\r\n1. The judgment is wrong in law.\r\n2\r\n \r\n2. The judgment is against the weight of evidence.\r\n•	3. Further grounds of appeal to be filed when the record of proceedings is ready.\r\nBefore dealing with the arguments canvassed in support or against the\r\nappeal, I would like to give a brief background of the case.\r\nThe Plaintiff at the court below issued a writ of summons against the\r\nDefendant claiming the following reliefs:\r\n1.	Declaration of title to all that piece or parcel of land described in the Statement of Claim and delineated on the plan annexed.\r\n2.	Damages for trespass to the land.\r\n, 3. Recovery of possession.\r\n4. Perpetual Injunction restraining the Defendant whether by himself or agents, or assigns, or servants, etc.\r\nThe Plaintiff''s writ of summons was accompanied by a 15 paragraph Statement of Claim in which he avers that, sometime in 1989, he =acquired a portion of Kwashieman land from the chief of Kwashieman\r\nand the Head of Ahiaku family with the consent and concurrence of the\r\nprincipal members of the said family. Plaintiff avers further that his\r\ngrantor executed a document in his favour which has been stamped at\r\nthe Land Valuation Board as LVB 130/6/2000 and it is the course of ''registration.\r\nThe Plaintiff gave the description of the land as "lying at North\r\nKwashiman-Accra and bounded on the North-East by the lessor''s property ''measuring 277 feet more or less, on the South-West by proposed\r\ntoad measuring "295" feet more or less, on the North-West by Extension Kwashieman Road measuring 80 and 20 feet respectively and on the\r\nSouth-East by lessor''s property measuring 70 feet more or less and\r\ncontaining an approximate area of 0.46 acre more or less".\r\nThe Plaintiff continues that he went into possession after the grant by\r\nplacing corner pillars on the land and entrusted same to a caretaker\r\n3\r\n\r\n \r\nwhen he was travelling abroad. That this caretaker has been farming on the land and clearing same.\r\nIt is the Plaintiff''s case that he returned to the jurisdiction somewhere in 1992 and the land was intact as the caretaker was still farming on the land.\r\nPlaintiff avers further that, sometime in 2000, he put sand and stone on the land in preparation to developing it, and the Defendant went and destroyed them. He therefore reported the matter to the police and also his grantor. In consequence of his complaint, the Sempe Mankralo who is the Overlord of Kwashieman, invited the parties to his palace in an attempt to settle the matter but to no avail. The Plaintiff concluded that, unless restrained the Defendant if allowed to develop the land, it will cause him irreparable loss, as he cannot get a replacement hence this action. See paragraphs 1 - 15 of the Statement of Defence filed on the 3-5-2001.\r\nOn receipt of Plaintiff''s writ of summons and Statement of Claim, the Defendant reacted and filed a Statement of Defence and Counterclaim denying Plaintiff''s claim.\r\nIn particular, the Defendant avers that, the land in dispute is at Sowutuorn and not part of Kwashieman. He avers further that he acquired the disputed land in 1988 from the Sempe Stool and went into immediate possession by fixing corner pillar''s and depositing sand and stone and erecting a wooden structure on the land. The Defendant continues that he had been in undisturbed possession of the land until 1995 when the Abola Piam Family confronted him and after a series of meetings he decided to pay monies demanded from him and obtained documents as the Sempe Stool was dragging its feet in granting him documents. That the Plaintiff used land-guard to demolish his two- ,room building which he intended to use as a block factory.\r\n\r\n \r\nThe Defendant maintains the Plaintiff is not entitled to his claim and\r\n''counterclaim as follows:\r\n1.	Declaration of title to all that piece or parcel of land situate at Sowutuom Accra, and bounded on the North by lessor''s land measuring 114 feet more or less, on the South by Proposed Road measuring 114 feet more or less, on the West by Proposed Road measuring 80 feet more or less, on the East by lessor''s land measuring 80 feet more or less and containing approximate area of 0.21 acre more or less.\r\n2.	Damages for the demolition of Defendant''s building.\r\n3.	Perpetual Injunction restraining the Plaintiff, his agents, assigns, from further dealing with Defendant''s land\r\nAt the close of pleadings, the following issues were set down for the trial\r\nof the suit:\r\na.	Whether or not Plaintiff is entitled to his claim.\r\nb.	Whether or not Defendant is entitled to his counterclaim.\r\nc.	Whether or not Plaintiff or Defendant is in possession of the land.\r\nd.	Whether or not the land the subject matter of dispute, is part of Kwashieman lands or is situate at Sowutuom.\r\ne.	Any other issues arising out of the pleadings.\r\n,At the trial, the Plaintiff testified and called 3 witnesses.\r\nAfter PW2 had testified and been crossed examined, lst Co-Defendant applied and was joined to the suit. She then filed her Statement of\r\nDefence and averred that she acquired the land in dispute from Akotia\r\nOworsika Stool which is also known as Asere Stool in 1986. Co \r\n/\r\nDefendant further avers that the disputed land is situate at Sowutuom at a place popularly called Polo Junction and measures 200 feet x 70 feet. Co-Defendant continues that he gave one of the plots measuring 100 feet x 70 feet to a friend who had since developed it as far back as\r\n4989.\r\nShe continues that she has since developed the remaining plot of land\r\nmeasuring 70 feet by 100 feet as far back as 1999 with people living in\r\n5\r\n \r\nthe said building without any hindrance from Plaintiff or his agents.\r\n•	The Co-Defendant therefore concluded that, the Plaintiff''s action is\r\nstatute barred. See paragraphs I - 9 of the Co-Defendant Statement of Claim filed on the 10-12-03.\r\nThe case then proceeded.\r\nOne Clifford Clottey Armah also applied and was joined to the suit as 2nd Co-Defendant at the close of Plaintiff''s case. He also filed his Statement of Defence denying Plaintiff''s claim. In particular, the 2'' Co-Defendant avers that, he acquired the disputed land from the Akotia Oworsika Stool also known as Asere Stool and that the land in dispute is at Sowutuom at a place popularly called Polo Junction.\r\nHe also described his land as follows:\r\n"bounded on the North-East proposed road measuring 100-0 more or less, on the South-East by Agnes Nartey''s property measuring 200-0 more or less.\r\nOn the South-West by Proposed Road measuringi 00-0 more or less. On the North-West by Kwashieman/ Ofankor road measuring 200-0 more or less\r\nwhich is covering an approximate area of 0.46 acre".\r\nThe Defendant also testified and called 2 witnesses:\r\nPt Co-Defendant testified but did not call any witness. 2nd Co-Defendant testified and called one witness.\r\nAs stated supra, at the end of the trial, judgment was entered in favour of the PlAintiff against the Defendant and Co-Defendants. Defendant''s counterclaim was dismissed hence this appeal.\r\nIn this appeal, the Plaintiff/ Respondent would be referred to as Respondçnt and Defendant as 1st Appellant whilst the 1st Co-Defendant would be referred to as 2nd Appellant. 2'''' Co-Defendant did not file any process in this appeal.\r\n6\r\n \r\n\r\nAt this stage, let me put it on record that the two Appellants did not file 41	additional grounds of appeal as indicated in their Notice of Appeal.\r\nIn arguing the appeal, Counsel for the 1st Appellant on the ground that the judgment is against the weight of evidence on record, submitted that Exhibit A tendered by the Respondent is not the original copy but a\r\nphotocopy.\r\nThis photocopy has the signature of the Chief of Kwashieman superimposed on same. On Exhibits B and C, Counsel submitted that\r\nthey did not show the Respondent''s land. He argued that since the 1st Appellant challenged the Respondent via its Statement of Defence and\r\ncross examination that the land the subject matter of this suit is at\r\nSowutuom, it was wrong for the trial Judge to adjudge that the land is at North Kwashieman without more evidence to support same.\r\nHe submitted further that, Respondent mentioned the root of his title as\r\nthe judgment in Johnny Hansen V. Nii Lartey K. Ahiaku. But the\r\nRespondent never tendered the said judgment in evidence or the judgment plans to show whether the disputed land fell within any judgment plan. He continued that, PW1 admitted the suit is still pending. It was therefore strange for the trial court to rely on the interlocutory decisions to decide the case.\r\n''He referred to Exhibit 1, the document granted the 1st Appellant in 1995 by Abola Piam family and said this tally with the Abola Piam\r\nregistered document Exhibit 2 after superimposition. Counsel then submitted that Exhibit 2 is a registered document with land registration No. AC. 2887A/69. Again thc document being 30 years old, under NRCD 323 (1975) section 130 (2), the trial court erred in failing to give weight it deserved. Additionally, by the evidence of DW3, the area is\r\nknown as Sowutuom in the records of survey department.\r\n7\r\n \r\nCounsel further submitted that the finding by the trial Judge that the\r\nC land is at North Kwashieman without the benefit of any survey plan and superimposition of any document was made in error. Consequently this finding be reversed as the land is at Sowutuom per Exhibit 2.\r\nOn the Ground b:\r\nThat the trial Judge failed to direct itself in applying an interlocutory ruling as a judgment of the court.\r\nOn this ground, Counsel for the 1st Appellant submitted that, the trial Judge errcd when it held that the disputed land is part of Kwashieman lands. Counsel argued that in coming to this conclusion, the trial Judge relied on a customary arbitration ruling in suit No. L14/1982\r\ntitled Peter D. Quartey V. Nii Lartey Kwashie Ahiaku and Johnny Hansen IV. NU Kwashie Lartey Ahiaku which suit is still pending at the time of the judgment.\r\nCounsel for the 1st Appellant submitted that, these cases were only ''mentioned in court, but nonetheless, the trial Judge relied on these decisions in his judgment and came to the conclusion that, the area being claimed by the parties is the same. He submitted this is wrong since the trial Judge is not a surveyor. He should have ordered a superimposition of the respective site plans of the parties to ascertain whether the parties are claiming the same area. Consequently this finding by the trial Judge that the area being claimed by the parties is the same should be reversed.\r\nOn Ground C of the Grounds of Appeal filed, that is;\r\n"The trial Judge relied on forged documents of the Plaintiff which is also not registered to deliver judgment in favour of the Plaintiff''.\r\n8\r\n \r\nOn this ground, Counsel for the 1st Appellant submitted that, the\r\n•	Respondent entered the disputed land for the first time in 2000. He\r\nreferred to the cross-examination of PW2 and submitted that, when the trial commenced, the 1st Appellant was not in court and Respondent tendered photocopy of his document Exhibit A which had the signature of the Chief of Kwashieman superimposed on it. Counsel therefore submitted Exhibit A was prepared in 2000. He invited this court to hold that, Exhibit A is a forged document.\r\nOn Ground d:\r\n"The trial Judge failed to consider the Defence of the\r\nDefendant and to recognize his prior possession"\r\nCounsel for the Appellant referred to the evidence of the 1st Appellant and submitted that there is evidence to show that when 1st Appellant entered the land in dispute, it was bare and he built two-room structure on the land and fenced it in 1998.\r\nCounsel submitted that, if the trial Judge had considered the defence and counterclaim of the 1st Appellant, it will have realised that, the latter waS claiming not through the Sempe nor Asere Stool but through the Abola Piam Twuma ''We'' family. He further referred to Exhibits 1 and 2 and submitted that, these two documents are registered and they form the root of title of 1st Appellant. Consequently, the customary arbitration and the interlocutory decision involving Sempe and Asere Stool should not override the prior possession of the 1st Appellant which ,constitutes 90% of ownership.\r\nThe last Ground, Ground (e) states as follows:\r\n"The trial court failed to address issue as to whether the\r\nland was at Sowutuom or Kwashieman".\r\n\r\n \r\nOn this ground, Counsel for the 1st Appellant submitted that, the trial\r\n• Judge erred when it determined that the land in dispute is situate at North Kwashieman. He argued that, North Kwashieman is not Kwashicman. Therefore any decision about Kwashieman should not be equated with North Kwashieman since the designations of North, South and West are usually used when land is close to a place.\r\ntFurtherrnore the trial Judge not being a surveyor, his visit to the locus without any evidence on record, his statement in the judgment that the place is bustling with economic activities is a none starter since Sowutuom even if it used to be a village in 1960 is also bustling with development and economic activities now. Consequently, the use of economic activity as benchmark to determine where Sowutuom or North Kwashieman is, is rather unscientific and an error in law.\r\n\r\nHe referred to the case of Akoto H & Others V. Kavege & Other (1984/86) 2 GLR 365 and concluded that, in an action for declaration of title the Plaintiff must prove his title or his claim should fail. He continued that since an appeal is a reThearing, he invited this court to look at the entire evidence and reverse the judgment of the trial court based on the decision in Mamudu Wangara V. Gyato Wangara (1982/83) GLR 639.\r\nOn his part, Counsel for the 2nd Appellant after giving a brief fact of the case, stated that 2nd Appellant joined the suit after the Respondent and some of his witnesses had testified in court that the 2-1 Appellant''s case is that she acquired the disputed land from the Oworsika Stool in 1986 also known as Mere Stool and that the land is situate at Sowutuom in Accra at a place popularly known as Polo Junction. That she had since developed her plot by putting a three bedrooms house on the plot and no one challenged her and that she had been living in the said house since 1999.\r\n10\r\n\r\n \r\nCounsel then submitted that the judgment is wrong in law for the\r\nfollowing reasons:\r\n1.	Failing to order a plan to be drawn to identify the proper owner of the land in dispute.\r\n2.	Failing to correctly apply the provisions of Section 24(1) of the Land Registration Act of 1962 (Act 122).\r\n3.	Failing to apply in favour of the 2nd Appellant section 10 of the Limitation Decree 1972 (NRCD 54).\r\n4.	Failing to apply the provisions of the Land Development (Protection Purchases Act) 1960 Act 2 in favour of the 2111 Appellant.\r\nCounsel then referred to a portion of the judgment in contention which mentiond Exhibits 5, 6, 7 and 8 which are judgments of the Supreme\r\nCourt and submitted that, there is nothing in these judgments and or Exhibits to show that the area in dispute forms part of Asere Stool land.\r\n''Counsel then submitted that, the parties tendered their documents of title with judgments to support them. It was up to the court to evaluate the judgMents vis-a-vis the land in dispute before describing them as wild claims. The issue whether the land falls within the Kwashieman lands or Sowutuom could have been resolved by a composite plan. This *issue Counsel submitted, the trial Judge failed in resolving same and\r\nthis failure led to a substantial miscarriage of justice. He referred to\r\nthe Supreme Court unreported case of Civil Appeal No. 5/2001 titled Nana Akwasi Darko V. Nii Allotei Quarshie dated 14-5-2002 and submitted that the trial Judge failed to identify the exact location of the land in dispute either it is on Kwashieman family lands or Asere Stool Sowutuom lands.\r\nOn the failure to apply Act 122 of 1960 section 24(1) thereof, Counsel for the '' 2nd Appellant submitted that the Respondent tendered unregistered document which under the Act referred to supra, should\r\nbe of no effect until it is registered but the trial Judge relied on Exhibit\r\n11\r\n \r\nA to hold that the Respondent is the owner of the land in dispute. •	Counsel cited the case of Amefinu V. Odametey (1977)2 GLR 135.\r\nCounsel also had issue with the trial Judge in relying on the case of Amuzu V. Oklikah (1996-97) SCGLR 141 and submitted that, that decision was clearly dealing with the issue of priority in terms of Section 24 of Act 122 for competing two registered documents.\r\nIn the instant case, the court was dealing with an unregistered document simpliciter and not issue of priority. Consequently, the trial Judge reliance on Exhibit A to grant title to the Respondent is wrong in ''law. He therefore invited this court to allow the appeal on this Ground.\r\nOn the 2nd Ground of Appeal by the 2nd Appellant:\r\n"The judgment is against the weight of Evidence"\r\nOn this ground, Counsel for the 2nd Appellant referred to the writ of summons and submitted that, the Respondent sued only the 1st Appellant and this is an admission of the fact that the 2nd Appellant was not a trespasser on the Respondent''s land. It was after the visit of the court to the locus that the trial Judge asked the 2nd Appellant to join the suit. Counsel continued that, since the 2nd Appellant was not made a party right from the inception of the case, her evidence that she ''only became aware of the suit when the court visited the locus should be accepted as the truth.\r\nAdditionlIy, Counsel argued, the evidence points to one fact and that is, the Respondent does not know the extent of his land, else he would have sued 2nd Appellant. Consequently, the evidence of the 2nd Appellant and the Respondent should have been treated by the court as\r\n \r\nsufficient proof that the 2nd Appellant''s land is at Sowutuom and did not form part of the Respondent''s land at Kwashieman.\r\nHe referred to the case of Dompreh V. Pong & Ors (1965) GLR 126 SC\r\nand submitted that the onus on the Respondent to satisfy the court that title to the land is vested in him was not discharged by merely relying on the weakness of the Defendant''s case. He continued that since the 2nd Appellant has been living in her house between 1986 and 2003, Dc Facto actual possession which she had was in itself proof of prima facie title to the land. Counsel cited Oppong Kofi & Ano. V. Fofie (1964) GLR 174 SC in support of this assertion.\r\nOn section 10 of the Limitation Decree, counsel for the 2n1 Appellant submitte& that there is evidence on record that his client has been in undisturbed possession of the land in dispute since 1986 to 2003 a period of 17 years. That being the case, the 2n1 Appellant acquired a prescriptive title to the land and the Respondent is estopped from bringing the present action to recover the land in dispute from the 2nd Appellant. All these pieces of evidence, Counsel submitted, in the absence of a composite plan go to show that the land in dispute does not form part of Kwashieman lands.\r\nThe last point canvassed in support of the 2nd Appellant''s ease on this ground is that, the 2nd Appellant acquired her land in good faith and put up her building in good faith. The trial Judge should therefore have\r\n,invoked the provisions of the Land Development (protection of purchase'' r) Act 1960 Act 2.\r\nHe referred to the cases of:\r\n1.	Dove Vs. Wuta Ofei (1988) GLR 299, 300\r\n2.	Vanderpuic V. Golightly & Ors (1965) GLR 454 SC\r\nBased on these two decisions, Counsel for the 2111 Appellant submitted that the judgment is against the weight of evidence. He invited us to\r\n13\r\n \r\n''allow the appeal on this Ground and dismiss the Respondent''s claim\r\n•	and judgment entered for the 2nd Appellant.\r\nBased on the foregoing, Counsel invited us to allow the appeal and set\r\naside the decision of the trial court together with the cost awarded\r\nagainst the 2nd Appellant.\r\nIn response to the submissions by Counsel for the 1st Appellant, Counsel for the Respondent submitted that the evidence adduced at the trial supports the findings of fact made by the trial Judge and this court should not interfere with them. Counsel referred to the case of Ababio V. Bekoe 11 (1996-97) SCGLR 392.\r\nCounsel after referring to the respective claim of the parties, referred to\r\nthe 1st Ground of Appeal, i.e.\r\n"The judgment is against the weight of evidence".\r\nOn Exhibit A, Counsel for the Respondent submitted that Exhibit A is a photocopy of the original indenture. The Respondent informed the court that the original copies were at the Lands Commission for the\r\n2\r\nprocessing of his application for registration of his title. At the trial he was not requested to produce the original. Secondly, Exhibit A was tendered;without objection. It is too late in the day for the Appellant to now seelç to request for the original. If the 15t Appellant had issue with Exht A, he should have requested for the production of Exhibit A. Besides, by NRCD 323, a photocopy is as good as the original.\r\nOn the '' issue whether the disputed land is at Kwashieman or Sowutuom, Counsel for the Respondent submitted that, the trial Judge reached a conclusion based on the evidence adduced at the trial, the parties and their witnesses and the Exhibits tendered. On the Respondent root of title, Counsel for the Respondent submitted that, the Respondent never mentioned that his root of his title is the\r\n \r\n14\r\n \r\njudgment of Johnny Hansen V. Nii Lartey Kwashie Ahiaku. He only said he is aware of the said judgment in respect of Kwashieman lands.\r\nCounsel for the Respondent referred to the evidence of Pt Appellant and submitted that, he is not a truthful witness. In that, he cannot obtain a grant of the same piece of land from two different people. He has no valid title as rightly determined by the trial Judge. The reference to two dates of acquisition i.e. 1986 and 1995, according to Counsel is a confusion aimed at getting priority in time over the acquisition of the Respondent.\r\nIn additiàn, Exhibit 2 is not the site plan of the It Appellant. Again, it was not tendered to show that it covered the entire land in dispute. Moreover, the judgment whose plan is Exhibit 2 did not cover Kwashieman and thus was not conclusive on the matter.\r\nOn the point that the trial Judge should have ordered the superimpositions of a plan on the plans by the parties, Counsel submitted that survey plans and superimpositions are supposed to assist a trial Judge to come to a decision. They are not compelling on the Judge. Counsel argued that, the court analyzed the probative value of Exhibit 2 and stated that it could not rely on it in determining the matter.\r\nOn the 2nd Ground of Appeal:\r\n"The trial Judge failed to direct itself in applying Aninterlocutory ruling as aJudgment of a court"\r\nCounsel submitted that, the trial Judge took cognizance of the rulings and judgment in respect of Kwashieman lands and the various descriptions given by the parties to the area where their land is situate and concluded that he accepted the Respondent''s version.	He\r\n15\r\n.:	.:	•.••.••.••••...•.	..\r\n \r\n\r\nsubmitted that, that position of the trial Judge was taken out of\r\n•	context.\r\nOn the 3rd Ground of Appeal\r\n"The trial Judge relied on forged documents of the\r\nRespondent which is also not registered to deliver\r\njudgment in favour of the Respondent".\r\nCounsel for the Respondent submitted that, it is settled law that, proof of forgery or allegation of a criminal act in a civil law is proof beyond reasonable doubt. He referred to Section 13 (1) of the Evidence Decree 1975 (NRCD 323) and the case of Fenuku V. John Teye (2001-2002) SCGLR 985, 1003 and argued that there is no evidence that, the signature is a forgery. Additionally the Ahiaku family denied ''their Head''s signature was forged.'' On the contrary, the successor identified the signature and said he was there when same was put on the document. The effective date is the date the transferor and transferee executed the document. These are the signatures that created the agreement. The Oath of Proof of the signature of the Registrar do not take away the efficacy of the document. Besides, the date of oath of proof and the swearing before the Registrar is always later in time to the date of execution. In any case, Counsel argued the 1st Appellant''s document was also sworn to by the witness of the transferor after the date of alleged execution by the Abola Piam family.\r\nOn the 4th Ground;\r\n"The trial Judge failed to consider the defence of the Defendant and to recognise his prior possession".\r\nCounsel for the Respondent submitted that it is not true, the trial\r\nJudge did not consider the defence of 1st Appellant. He continued that, the defence was hollow, bereft of truth and substance and exposed the 1st Appellant as a trespasser.\r\n16\r\n\r\n \r\n\r\n. On the contrary, the trial Judge evaluated the cases of the 1st and 21x1 Appellants and concluded why he found their case unbelievable. Counsel continued that, 1st Appellant counterclaim is a separate action. The Appellant must prove her counterclaim. He referred to the cases of\r\nHappee V. Happee & Aito. (1971) 1 GLR 104 and Kamara V. Traore (1968) GLR 1009.\r\nCounsel further submitted that, the Appellant pleaded he acquired his land in 1988. When he testified he said he acquired the land in 1995. Counsel then submitted that the 1st Appellant never entered the land in 1988. The pleading was skewed to reflect 1988 to have apparent priority of time over that of the Respondent. The inconsistency in the pleading of the 1st Appellant and his testimony in court only shows that the latter, is not a truthful witness.\r\nFurtherthore, in his pleadings, the 1st Appellant stated he acquired the land from the Sempe Stool. However, in his evidence, he said he bought the land from a citizen of Serape called Nii Samoa. This according to Counsel for the Respondent shows that the I st Appellant is not a truthful witness and his evidence must not be believed.\r\nOn the other hand, the Respondent was able to produce a representative of his grantor to confirm that, it is the Kwashieman people who sold the land to the Respondent, whilst the 1'' Appellant could not produce this Nii Samoa or his representative. Additionally, Exhibit 1'', the indenture tendered by the 1st Appellant as coming from his grantors the Abola Piam family, showed that it is a recently made ,document. To make matters worse, the 211 Co-Defendant said he granted a licence to the Appellant to be on the land.\r\nThe 1st Appellant admitted paying t250,000 to the 2t1 Co-Defendant but said it was a gift whilst the latter insisted it was consideration for the license so granted to the 1st Appellant. Counsel for the Respondent\r\n17\r\n\r\n \r\nfurther highlighted the contradiction in the 1st Appellants case. For 41,	instance, whilst the latter in his evidence said the alleged land given to\r\nhim has a road passing through it, his witness DW2 insisted no road\r\npasses through the land allegedly granted to the 1st Appellant.\r\nAgain, whilst the 1st Appellant said there was no sand and stone when he first went onto the land, DW1 admitted in cross-examination there were trips of sand and stone on the land when it was allegedly demarcated to the 1st Appellant.\r\nOn Ground 5;\r\n"The trial court failed to address the issue as to whether the land was at Sowutuom or Kwashieman".\r\nOn this ground, Counsel for the Respondent submitted that, Counsel for the 1st Appellant has criticized the trial Judge''s finding that the disputed land is at North Kwashieman without the benefit of any survey plan and superimposition of any plan was made in error. He argued that, the fact that the trial Judge made a determination on this issue shows that he addressed the issue. North Kwashieman suggests that it is part of Kwashieman.\r\nHe continued that, no argument or evidence was led by the l st Appellant to show that North Kwashieman is Sowutuom. Counsel concluded that, the trial Judge reviewed all these pieces of evidence and put the necessary weight on ''them. He invited this court not to interfere with the findings of the trial Judge. He cited the cases of Ababio V.\r\n,Bekoe II (1996-97) SCGLR 618 and invited this court to dismiss the appeal of the 1st Appellant as bereft of any merits.\r\nOn the appeal of the 2tA Appellant, after stating the case of the 2nd Appellant, which is that, she acquired the land from the Akotia Stool, otherwise known as the Asere Stool. That she acquired two plots and\r\n \r\n18\r\n \r\nthe land is situate at Sowutuom. That she acquired the land in 1986 •	and had developed one plot as far back as 1999. On the 211d Appellant''s Ground of Appeal which is;\r\n"The judgment is wrong in law"\r\nOn the point that the judgment is wrong in law because the trial Judge failed to order a plan to be drawn to identify the proper owner of the land, Counsel for the Respondent submitted that, the making of the order is discretionary and it is done when the court finds it just to do so. Besides, the evidence of any expert is only to assist the Judge and not to bid him.\r\nAdditionally, none of the party applied to the court to order the drawing of a composite plan. Besides, the 2nd Appellant did not have any document covering her land. She would have lost right from that point if the order had been made.\r\nOn the issue of registration and the application of Section 24 (1) of Act 122, Counsel for the Respondent submitted that, the Respondent led evidence to show that his documents have been sent for registration. Counsel argued that this piece of evidence was not challenged and no contrary evidence was led before the court.\r\nFurthermore, all the documents of title that featured in the case had not been registered and the issue of priority did not arise. The 2nd Appellant and 2nd Co-Defendant themselves did not tender a registered document and it lie ill in their mouth to seek to build a case on registration of title.\r\nOn the issue of Section 10 of the Limitation Decree, 1972 (IVRCD\r\n54), Counsel for Respondent submitted that, same does not inure to the benefit of the 2nd Appellant for the simple reason that, the issue of ,limitation was never raised as a defence. No evidence was led to enable\r\n19\r\n\r\n \r\nthe trial Judge apply the law. The trial Judge therefore was not wrong\r\n•	in relying on same.\r\nOn the Land Development (Protection of Purchase Act) 1960 Act 2,\r\nCounsel for the Respondent submitted same is not applicable to her. He continued that, a person invoking the provisions of the Act must be a person who acted in good faith. Counsel submitted, the 2nd Appellant ''cannot by any definition be a person acting in good faith for the following reason:\r\n1. At the time of the institution of the action, there was no building on the land.\r\n: 2. It was after the injunction that 2nd Appellant started building.\r\n3.	When the 2nd Appellant started work on the land and was confronted, she identified her interest as that of the 1st Appellant.\r\n4.	She hid behind the 1st Appellant when the latter had leave of the court to carry out block making business on the land.\r\n5.	She only joined when she realised that a total restraining order was about to be slapped on her.\r\nBased on the foregoing, Counsel for the Respondent submitted that, the 2nd Appellant acted in bad faith by building the two-room building on the land. That kind of situation is not protected by Act 2. Moreover, the Act is founded on the ground that the person sought to be protected has a defective title. Besides, the Act does not compel the trial Judge but gives it the discretion. Based on the foregoing, Counsel submitted the 2n1 Appellant is not entitled to the benefit of the provisions of Act 2.\r\nOn the Second Ground of 2" Appellant''s appeal;\r\n"The judgment is against the weight of evidence"\r\nCounsel for the Respondent submitted this ground of appeal which was not proved by the 2nd Appellant. He argued that, the Respondent led\r\ncogent evidence to prove how he became the owner of the land and the g\r\novert acts of ownership he displayed. On the other hand, the 2nd\r\n20\r\n\r\n \r\nAppellant and 2nd Co-Defendant were not consistent in their claim and acts of possession of the land. Besides, the 2nd Appellant who was found on the land after the injunction insisted her fortunes are fixed to that of the 1st Appellant.\r\nIn those circumstances, the Respondent was not obliged to sue everybody. Additionally, 2nd Appellant had no document to prove her ownership of the land. The 1st Appellant was not sure who he bought the land from, i.e. whether from the Sempe Stool or Abola Piam family. On the other had the Respondent was consistent in his claim to the ownership of the land. He gave both oral and documentary evidence to support his claim.\r\nBased on the foregoing, Counsel for the Respondent invited this court to dismiss the appeal of the 211t Appellant as well as same is without merit.\r\nOn 26-1-2010, Counsel for the Respondent filed Notice of Intention to Raise Preliminary Objection. The object was to the effect that, the 1st Co -Defend ant/Appellant attached an Exhibit ''SCI'' to his written submissions filed on the 27-62007 which is not permitted by the rules and same ought to be expunged from the record. Exhibit ''SC1'' ''attached to the Appellant''s written submission is a judgment of a court. This is not evidence i.e. new evidence contemplated in Rule 26 of the Court of 24ppeal rules, 1997, Cl 19. This objection is not well founded and same is hereby over ruled.\r\n''From the Record of Appeal, when the Respondent issued his writ of summons on 3-5-2001, he followed it up with an application for an order of Interim Injunction.\r\nIn the affidavit in opposition, the Appellant averred that he constructed a fence wall around the land and also undertook the construction of a two-room structure on the land to use for block\r\n21\r\n \r\nmaking factory but the Respondent caused same to be demolished on\r\n•	two occasions. He attached Exhibits B and C. See paragraph 7 of the\r\naffidavit of Godwin Ahele filed on 24-5-01 at page 23 of the Record of\r\nAppeal.\r\nThe trial court after listening to the arguments of both Counsel and the\r\naffidavits of the Respondent and 1st Appellant, restrained both parties their agents, servants, workmen, assigns from entering upon or\r\nintermeddling with and or developing the land the subject matter in dispute pending the final hearing and determination of the suit. This order is dated 20-9-2001 and can be found at page 41 of the Record of\r\nAppeal.\r\nIn June 2002, the 151 Appellant filed an application for the variation of\r\nthe Order supra. In the supporting affidavit, the 1st Appellant avers\r\nthat:\r\n"That my lease on the land where I operate has expired and I have to pack all my block making equipments from\r\nthe land since the owner of the land wants to use same".\r\nThis application was granted and the trial court varied the order of\r\n!injunction dated 20-9-2002. 1st Appellant was allowed to go back onto\r\nthe land to carry on his block business.\r\nIn his Statement of Defence, 1st Appellant avers that he acquired the disputed land from the Sempe Stool in 1988 and went into immediate possession by fixing corner pillars and depositing sand and stone and erecting a wooden structure on the land. in his evidence under oath,\r\nhe said he acquired a piece of land at Sowutuom in 1995 and deposited sand and stone on it. 1st Appellant continued that sometime in year 2000, the Respondent demolished the two-room structure he had\r\nerected on the land.\r\n22\r\n\r\n \r\nFrom the pieces of evidence of the 1st Appellant and his averments, when the Respondent applied for injunction on the land and the former applied for the variation of the order of injunction restraining the parties, there was no structure on the land.\r\nSecondly, the 1st Appellant from his own showing in June 2002, his lease on the land has expired. The question is from where did the 1st Appellant obtained Exhibit 1? Exhibit 1 is dated 24-2-1995 and the lease granted to the 1st Appellant was for 99 years. See paragraph  of Exhibit 1. In this case, the Appellant counterclaimed for a declaration of title. The position of the law is that in an action for declaration of title, the burden of proof is always put on the Plaintiff to satisfy the court on a balance of probabilities but where the Defendant files a counterclaim, then the same burden of proof would be used in evaluating and assessing the case of the Defendant just as was used to evaluate or assess the case of the Plaintiff against the Defendant. See\r\nthe case of Jass Co. Ltd. & Ano. V. Appau & Ano. (2009) SCGLR\r\n269.\r\nThe 1st Appellant''s first ground of appeal is that:\r\n"The judgment is against the weight of evidence".\r\nThe reasons being that, first Exhibit A tendered by the Respondent is not the original copy but a photocopy and this photocopy has the Chief of Kwashieman''s signature superimposed on it.\r\nMy simple answer on this submission is that, Exhibit A was tendered without objection. Secondly, by sections 166 and 168 of the Evidence Act, 1975 (NRCD 323), a photocopy of a document is as good as the original. Thirdly, the Respondent called a member of the Ahiaku family, who incidentally happened to be the successor of his grantor. This witness testified and said the signature on Exhibit A is genuine. He again identified the signature on Exhibit A as that of the late Kwashie Ahiaku and said he was present when the former signed\r\n23\r\n\r\n \r\nand or executed Exhibit A. It is too late in the day for the 1s1 Appellant to raise these concerns.\r\nOn the point that the trial Judge relied on an interlocutory decision to decide the case, it is not correct that the trial Judge relied on interlocutory decisions to give judgment for the Respondent. In his Judgement, the trial Judge said the description of North Kwashieman given by the Respondent''s grantor is more acceptable. This is what he said:\r\n"I believe the description of North Kwashieman given to it by the grantor of the Plaintiff is more acceptable. If the Headman of Kwashieman is appointed by the Sempe Mantse, then the issue as to who controls Kwashieman lands becomes a non issue.\r\nOn Wednesday 21-9-1966, a customary arbitration was held to determine the dispute between the Asere Mantse and Sempe Mantse as to who has the right to install the Headman of Kwashieman. The arbitration panel\r\nheal ded by the late Nii Amugi II, Ga Mantse, decided that, the right to install a chief for Kwashieman falls on the Sempe Mantse.\r\nIt is no wonder that, in suit No. L1411982, Peter D. Quartey Vs. Nii Lartey Kwashie Ahiaku, and Johnny Hansen Vs. Nii Ewashie Ahiaku, His Lordship P. V. Oséi Hwere J.A. sitting as additional High Court Judge refused to grant an interim injunction to restrain Kwashieman Stool then represented by Nii Kwzshie Lartey Ahiaku V. from alienating Kwashieman lands. The same position was taken by his Lordship Armah J. in suit No. L14/82 and L25182 titled Johnny Hansen & Ors. Vs.\r\n24\r\n \r\n\r\nKwashie Lartey Ahiaku & Ors." (The emphasis is mine)\r\nFrom the quotation supra, the trial Judge did not rely on the rulings in the two cases to give judgment. He only mentioned them in passing vis-k-vis the arbitration dated 21-9-1966.\r\nBesides, the description of the land by 2n11 Co-Defendant in his Statement of Defence filed on the 12-3-2004, paragraph 7 thereof supports this finding that the land is at North Kwashieman as the description mentioned one side of the road as being bounded by the Kwashiman/Ofankor road. The paragraph reads:\r\n"The land is bounded on the North East proposed road measuring\r\n100-0" more or less, on the South-East by Agnes Nartey''s\r\nproperty, measuring 200-0" more or less, on the South-West\r\nby proposed road measuring 100-0" more or less, on the North-West\r\nby Kwashieman/Ofankor road measuring 200-0" more or less, which piece of land is couering a approximate area of 0.46 Acre."\r\nAgain 2nd Co-Defendant says he granted 1st Appellant his land even though the latter has denied this. According to DW2, Alphonse Aryeetey, the 1st Appellant asked him to survey his land for him which he did. He said the 1st Appellant did not bring his site plan but he showed him Exhibit 2. This witness admitted under cross-examination that wheb Exhibit 2 was brought to him, the 151 Appellant''s land was not indi&tted on it. He also admitted he did not know the boundaries of the land given to the 1st Appellant. He also admitted there is no road that pass es through the 1st Appellant''s land.\r\nThis is what he said under cross-examination by Counsel for the Respondent:\r\nQ. Before he gave you Exhibit 2, was his alleged piece of land shown\r\non the document? A.	No''\r\n25\r\n\r\n \r\nç. You agree with me that, the alleged land of the Defendant has been clearly delineated on it.\r\nA. Yes\r\nSo the question is, how did DW2 plot 1st Appellant''s land on Exhibit 2,\r\nif he did not know the boundaries of the 1st Appellant''s land?\r\nAgain, Exhibit 2 covers land about 726 acres or 10.467 sq. miles and on it, Sowutuom is indicated as a village in ruins. In addition, the lst\r\nAppellant''s land is indicated by a dot on Exhibit 2 and it is far from\r\nSowutuom, the village in ruins.\r\nIf all these pieces of evidence are put together against Exhibit 1, the ist Appellant''s document granted to him in 1995 which did not include a site plan as his site plan is dated 2001, but even that, he did not give this site plan to DW2 to plot his land on Exhibit 2, then the big question is how did DW2 arrive at the conclusion that, 15t Appellant''s land is at Sowutuom?\r\nAdditionally, the argument that Exhibit 2 is a registered document and\r\nshould have been given weight by the trial Judge is flawed for the simple reason that, if the 1st Appellant did not give the description of his land to DW2, how did the latter come to plot 1st Appellant''s land on\r\nExhibit 2.\r\nThe trial Judge adverted his mind to all these pieces of evidence and ''came to the conclusion he did. In this appeal, the 1st Appellant has not\r\ndemonstrated the pieces of evidence on record that was wrongly applied against him or the pieces of evidence if applied in his favour would have\r\nturned the decision in his favour. See the case of Abbey & Ors. Vs. Antwi V (2010) SCGLR 17, 20-21, holding (4) where their Lordships held amongst other things as follows:\r\n"It was well settled that where an Appellant has alleged\r\nthat the judgment of the trial court was against the weight\r\n26\r\n \r\nof evidence, the appellate court would be under an obligation\r\n•	to go through the entire record of appeal to satisfy itself that\r\na party''s case was more probable than not. Further, the Appellant has to properly demonstrate what lapses he was complaining about (the emphasis is mine)\r\n\r\nFrom the foregoing, grounds a, b and d of the Grounds of Appeal filed are hereby dismissed.\r\nOn Ground C:\r\n"That the trial court relied on forged documents of the Plaintiff which is also not registered to deliver judgment in\r\nfavour of Plaintiff''\r\nI have already held that there was nothing fraudulent about Exhibit A\r\nas the Respondent''s witness identified the signature of the late Ahiaku V. on the document. On the point that Exhibit A was not registered\r\nand therefore same should not have been relied on to give judgment to\r\nthe Respondent. The Supreme Court in the case of Amuzu Vs. Oklikahl (1998-99) SCGLR on registration held that:\r\n"The Land Registry Act, 1962 (Act 122) did not abolish the equitable doctrines of notice and fraud; neither did It confer on a registered instrument a state guaranteed title. Consequently, a later instrument could only obtain priority over an earlier one by registration under\r\nsection 24(1) of (Act 122) if it was obtained without notice\r\nand fraud of the earlier unregistered document".\r\nRelating this case to the case under consideration, Exhibits A and 1 are dated 12-2-1989 and 24-2-1995 respectively. Both Exhibits A and 1 =are not registered even though stamped by Land Valuation Board.\r\nClearly in terms of priority the Respondent''s Exhibit A should prevail\r\nover 1st Appellant''s Exhibit 1. Secondly, the 1st Appellant denied seeing\r\nany trips of sand and stone on the land but his witness DW1 who\r\n27\r\n\r\n \r\nclaimed he was among the persons who demarcated the land for the 1,1\r\nAppellant''s said he did not know how many trips of sand or stone were\r\non the land.\r\nThis implies that there were some trips of sand and stone on the land and this constitutes notice. This ground of appeal too has not been\r\nmade out and same is hereby dismissed.\r\nThis brings me to the last Ground of Appeal;\r\n"This trial court failed to address the issue as to\r\nwhether the land is at Sowutuom or Kwashieman"\r\nI have already held that Exhibit 2 which the 1st Appellant is relying on to say that the disputed land is at Sowutuom does not support his\r\ncontention. The reason being that, on the face of Exhibit 2, Sowutuom is indicated as a village in ruins. Secondly, the village in ruins is far\r\nfrom the dot that is said to be the 1st Appellant''s land. This dot has no dimensions. Thirdly, DW2, the surveyor who plotted the 1st Appellant''s land on Exhibit 2 said he did that without a site plan and also he was not shown the boundaries of the 1st Appellant''s land.\r\nBesides, whilst the Respondent''s 1989 indenture was accompanied by a site plan,t the 1st Appellant''s indenture of 1995 did not have a site plan. Then there is the evidence by 2nd Co-Defendant that he granted the\r\nland in dispute to the 1st Appellant for the latter to operate his block making factory and that the latter paid him 4250,000 for the licence so granted to 1st Appellant. 1st Appellant admits paying t250,000 to the 2nd Co-Defendant, but says it was a gift. Not only this, 1st Appellant\r\nsaid he first acquired the land from the Sempe Stool which Stool is the\r\nOverlord of Kwashieman.\r\nThe Sempe Stool had denied granting the land to the 1st Appellant and\r\nwhen he trespassed on to the land he was warned that the land is for\r\n \r\nAgain, Exhibit 3, the indenture of the 211 CO-\r\n28\r\n \r\nDefendant, the site plan attached to same, one can see that it is the same land being claimed by the Respondent and one of the boundaries given by the 2''"'' Co-Defendant is Kwashieman/Ofankor road i.e. on the North-West. The 2nd Co-Defendant''s indenture is dated 1992. The trial Judge looked at all these pieces of evidence and concluded that, the land is situate at Kwashieman. The trial Judge therefore addressed the issue of whether the disputed land is at Sowutuom or Kwashieman. Counsel for the 1st Appellant also complained that the trial Judge erred by failing to order a superimposition of the respective site plans of the parties.\r\nMy simple answer to this submission is that, none of the lawyers or the parties applied to the court for such an order. The trial Judge therefore did not err in not doing so. Besides, 2nd Appellant did not tender a site plan, so what would have been her fate? But more importantly, expert evidence is only a guide for the trial Judge. He is not bound by it and can make his own inferences from the available evidence. See the ease of Fenub!u Vs. John Teye (2001-2002) SCGLR, 985, 990 holding (6) where thir Lordships held as follows:\r\n\r\n"The principle of law regarding expert evidence was that the trial Judge need not accept any of the evidence offered. The Judge was only to be assisted by such expert evidence to arrive at a conclusion of his own aftr examining the whole of the evidence before him. The expert evidence was only a guide to arrive at the conclusions..."\r\nFrom the foregoing, there is no merit in the appeal of the lst Appellant and same is hereby dismissed.\r\nThis brings me to the appeal filed by the Co-Defendants;\r\n"The judgment is wrong in law"\r\n29\r\n\r\n \r\nOn this ground, Counsel for the 2nd Appellant gave four reasons why the judgment is wrong in law.\r\n1. Failing to order a plan to be drawn to identify the proper owner of the land in dispute.\r\nI have already held that, none of the lawyers or the parties in this case applied to the court for such an order to be made. Secondly, such a plan is only a guide. Thirdly, the 2n1 Appellant both in her defence and her evidence did not give a description of her land just that her land measures 200 feet by 70 feet and was granted to her by Asere Stool in 1986. The boundaries were not given. The trial Judge did not err in\r\nnot ordering a plan to be drawn.\r\n•The second reason for saying the judgement is wrong in law is that the trial Judge failed to correctly apply section 24 (1) of the Land\r\nRegistration Act of 1962 (Act 122). I have already held that non\r\nregistratiOn of the Respondent''s Exhibit A per se does not mean the document is invalid. See the case of Amuzu Vs. Oklika cited supra.\r\nThe third reason for saying the judgment is wrong is that the trial Judge failed to apply section 10 of the Limitation Decree 1972 (NRCD\r\n54).\r\nFrom the 2nd Appellant''s own showing, he developed her land in 1999. ''The friend who she claimed to have given a portion of her land to was not called. From 1999 to 2001 when the suit was filed would not be 12 years. There is no merit in this submission.\r\nThe last point is that the trial Judge failed to apply the Land\r\n''Development (Protection Purchasers Act) 1960, Act 2 in favour of the 2nd Appellant.\r\nFrom the series of application of Interim Injunctions filed by the Respondent, the latter tried to protect his land. In his affidavit in\r\n30\r\n\r\n \r\n\r\nopposition to the application for joinder of the 21d Appellant, the\r\nS Respondent deposed that when the former was served with the application she said, her case is like that of 1st Appellant and they stand or fall together.\r\nThis averment was not denied by the 211d Appellant and it was too late in the day for her to say that he was not aware of the suit until a later date. Besides, the 211d Appellant has not even shown any document as to title. She merely said she acquired the land from Asere Stool. She also did not call any person to substantiate her claim, neither did she tender a document to show her defective title. The 211,1 Appellant is not a person contemplated by Act 2. See the case of Klu Vs. Konadu Apraku (2009) SCGLR 741, 743 holding (2) where their Lordships held;\r\n"The trial Judge had held, rightly on the evidence and the findings, that the Co-Defendant''s claim of having acquired title to the disputed land had been\r\na complete simulation emanating from testes diabolices qul magisfama quam fame moventur. All that was a grand design to over-reach the Plaintiff.\r\nSuch conducts and acts of the Defendants would not attract protection under the provisions of the Land Development (Protection of Purchases) Act, 1960 (Act 2), which was an Act to protect purchasers of land and their successors-in-title whose titles were found to be defective after a building had been erected on the land".\r\nIn the instant case, what title are we being called to protect when the 21d Appellant even failed to tell the court the nature of her acquisition. Was it a purchase, gift, transfer, etc.? From the foregoing, the 1st ground of the 2nd Appellant''s appeal fails and same is hereby dismissed.\r\n \r\n\r\nThis brings me to the second and last ground of appeal of the 2nd\r\n•	Appellant and that is;\r\n"The judgment is against the weight of evidence".\r\nThe Supreme Court had held in a number of cases that, where an Appellant complains that a judgment is against the weight of evidence, he is implying that, there are certain pieces of evidence on record which if applied in his favour, could have changed the decision in his favour or certain pieces of evidence were wrongly applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the appellate; court the lapses in the judgment being appealed against. See the following cases:\r\n, 1. WIN Vs. Musa Baako (2007-2008) SCGLR 686\r\n2.	Tualcwa Vs. Bosom (2001-2002) SCGLR 61\r\n3.	Abbey & Others Vs. Antwi (2010) SCGLR 17,20\r\n4.	Aryeh & Akapo Vs. Ayaa Iddrisu (2010) SCGLR 891, 894,\r\nholding 1\r\nIn the instant case, what are the pieces of evidence that was wrongly\r\napplied against the 2nd Appellant or which when applied could have turned the decision in her favour. She did not even give the boundaries\r\nof her land. She did not even tender a receipt or any evidence of epurchase or acquisition neither did she call her grantor to substantiate\r\nher claim, not even a building plan.\r\nAll she said was, she had built three bedrooms and her daughter is living in it since 1999. This daughter was not called. Her evidence was hollow as compared to that of the Respondent. It is true the 2" Appellant did not counter-claim and therefore no burden is put on her but she says she has been in possession of her land since 1999 and wants the protection of the law. Her bare assertion without more that she has been in possession is not enough.\r\n \r\n32\r\n \r\nMariana Owusu (Ms.) (Justice of Appeal)\r\n \r\n\r\n \r\n''C. Atta Akyea for the Plaintiff/Respondent\r\n• Nathaniel Myers for Defendant/Appellant\r\n\r\n\r\n\r\n\r\n', '../links/cases/Document (215).pdf', 'Yes', 'ISAAC DUOSE,J.A., C.J. HONYENUGA,J.A.', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Land Law - Title to land - ss. 166 &amp; 168 Evidence Act, 1975 (NRCD 323) - Photocopy of document good as original - Onus on appellants to properly demonstrate lapses in judgment - Whether trial court relied on forged documents - s. 24(1) Land Registry Act, 1962 (Act 122) - Non registration of document and consequences.</font></b></i><br>', 'MARIAMA OWUSU,J.A.', 'Civil', '', 'H1/192/2008', '', '', 'appeal', '2011-12-15', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(567, 'JOSEPH KOJO DAWSON  ---  APPELLANT\r\nVRS\r\nTHE REPUBLIC  ---  RESPONDENT', 'IN THE SUPERIOR COURT OF jUDICATURE\r\nIN THE COURT OF APPEAL\r\nACCRA\r\nCORAM: APALOO J.A (PRESIDING)\r\nACQUAYE J.A\r\nADUAMA OSEI J.A\r\nCRIMINAL APPEAL SUIT NO. 112/17/20 10\r\n16Th1 IUNE 2011\r\n\r\n	\r\n\r\nTHE REPUBLIC	---- RESPONDENT\r\nCriminal/ow - Use of property for Narcotic Offences - s. 10 (1) (b) Narcotic Drug (Control, Enforcement and Sanctions) Law 1990, PNDCL 236 - Submission of no case - ss. 173 & 174 Criminal Procedure Code, Act 30 - Whether prosecution had established prima facie case - s. 10 (1) (b) PNDCL 236 - s. 11 Evidence Act, !VRCD 323 - Trialudge''s duty to call upon appellant to open defence —Whether trial judge denied appellant presumption of innocence.\r\nJUDGMENT\r\nAPALOO, JA: The appellant was charged together with five others for various narcotic offences before the High Court, Fast Track Division Accra. The appellant in particular was charged with the offence of use of Property for Narcotic Offences contrary to section 10(1)(b) of the Narcotjc Drug (Control, Enforcement and Sanctions) Law 1990, PNDC Law 236.\r\nThe prosecution alleged that Joseph Kojo Dawson who was Managing Director of Dashment Company Ltd owners of a fishing vessel named MV Benjamin was contacted by certain "drug barons" to charter MV Benjamin, and according to the prosecution for the purpose of using it to convey some narcotic substances from the high seas into Ghana. The Drug barons were named as Sheriff Asem\r\nDarke, Ande, Lee, Ande Yul Sing and Jil Bae. Sheriff Asem Darke entered into a rental agreement with the appellant to charter his fishing vessel MV Benjamin\r\n \r\non a barehoat charter basis in February 2006. Upon procuring the vessel, the "barons" engaged one Pak I3ok Sil to do some repair works on it and having completed the works, Pak I3ok Sil paid off some of the workers on the vessel hut retained Isaac Arhin, Philip Bruce Arbin, Cui Xian Li and Luo Yin Xing. The vessel which was docked at the Takoradi !labour under the care of Philip Arhin set sail to the high seas on 9", March, 2006. According to the prosecution Ande Yul Sing was Captain and Arnie was Chief Engineer. The (-Few was made up of Isaac Arhin, Philip Bruce Arhin and James Kingsley Inkoom. In the course of the\r\nMV 13enjamin it is alleged got to the breakwaters of Tema Harbour with the 77 parcels of cocaine on 26/1, of April 2006 and on the same day at about 2.00 am, two canoes drew alongside the MV I3enjamin and collected 76 out of the 77 parcels of cocaine and left one parcel onboard the vessel. A canoe came for the Captain Ande Yul Sing and the Chief -Bngineer Ande and they were never seen again.\r\nMeanwhile the Narcotic Control Board (NACOB) had received intelligence about the cocaine which was delivered to MV Benjamin. A team was organized including the Air Force and the Navy to track down MV Benjamin. The fact that the name of the Vessel Was changed contributed to the escape of the vessel to Tema.\r\nOn 27th April 2006, Naval Officers who had been trying to track down MV Henjamin noticed that an identical vessel with different name MV Made II was anchored at the break waters of the harbor, the security personnel including officers froinNAC013 went into the vessel and after searching it, they found one pm -:eel which contained 30 slabs of substances which were later confirmed by the Ghana Standard Hoard to be cocaine.\r\n2\r\n \r\nArising from these activities that the six persons were charged before the Fast Track Division of the high Court with ofiences under PNI)C Law 236. The six persons were Joseph Kojo Dawson 1St accused and appellant herein, Pak l3ok Si! 21111 accused, Isaac Arhin 31d accused, Philp 131-1.1ce Arhin 4"'' Gui Xian IA 50, accused and lato Yin Xing 61i accused.\r\nThe charge against the appellant as endorsed in the charge sheet isa:follows;\r\n\r\n	\r\n\r\nUSE OF PROPERTY FOR NARCOTIC OFFENCES; CONTRARY TO SECTION\r\n10 (1) (b) OF THE NARCOTIC DRUGS (CONTROL, ENFORCEMENT ANt)\r\nSANCTIONS) LAW, 1990 (PNDCL 236).\r\nPARTICULARS OF OFFENCE\r\nJOSEPI I KOJO I)AWSON, Husinessinan; On or about the 611, of February 2006 at ''I''enia ill Greater Accra Region indirectly without la''ful authority and with the intention of facilitating an activity for the purpose of promoting an enterprise relating to Narcotic Drugs, did allow one ASEM DARK'' @ SIINRIFF to use your vessel MV I3ENJAM IN/ADNIW Ii to import 77 parcels each containing about 30 kilograms of cocaine into Ghana without a license issued by the Minister of lleahh."\r\nThe appellant pleaded not guilty to the count and trial commenced up to the end of the case for the prosecution when a submission of no case was made on behalf of all the accused persons. ''l''hie trial Court overruled the submissions except the one made for the 211(l accused. The trial subsequently continued and by its judgment dated 2511, July 2008 the remaining accused persons were Found guilty convicted and sentenced to a term of 25 years Iii prison ill esp U of the various charges preferred against them.\r\nThe appellant by his petition of appeal is appealing on the following grounds;\r\n1. ''1 hat the U ial judge urred in law in failing at the cnd of the case for tIn prosecution and upon a submission of no case to examine the case that\r\n3\r\n\r\n \r\n''\r\n1.	"That the trial judge erred in law in failing at the end of the case for the\r\nprosecution and upon a submission of no case to examine the case that\r\nthe prosecution had brought in respect of the first accused before determining that the accused had a case to answer.\r\n2.	That the trial judge erred in law in failing to apply the same criteria that he applied in relation to the second accused upon a submission of no case, which criteria would have even more definitely have necessitated\r\nthe acquittal of the first accused.\r\nThat the trial judge erred in law in failing to appreciate that on the totality of the evidence presented by the prosecution, there was no case\r\nfor the accused to answer.\r\n4.	The trial judge erred in law in effectively denying theist accused the presumption of innocence which is a fundamental principle of criminal law that is guaranteed in Article 19 of the 1992 Constitution.\r\n5.	The conviction was wrongful bearing in mind the totality of the\r\nevidence led.\r\nThese grounds appeared as additional grounds of appeal; the original ground and these were all argued by Counsel for the appellant in her submissions filed in this Court. In her opening submissions Counsel argued additional grounds 2 uul 3 together. It is the submission of Counsel by grounds 2 and 3 together that the trial judge failed to satisfy himself, based on the evidence that there is a case for the appellant toi.answer. According to Counsel the trial judge simply dismissed the appellant submission of no case without considering the case the prosecution had put forward Lind without filly reason. Counsel was of the view that the failure of the trial judge to give reasons Pal ticularly when Counsel on both sides had presented at and referred to passages of evidence itself amounted to a failure to uphold the Id quired standards of judicial conduct and is sufficient basis for this appeal to\r\nbe allowed:Counsel cited Afotey yrs the Republic [1984-86] 1 G1,12 475 where Sowah\r\n\r\n4\r\n \r\n\r\n \r\nI\r\n \r\n"Iii the circumstances of this case the learned Judqe ought to have çjivcii (11110/i? careful C/tIC! judicious (IppraiSC!/ of (lie evidence than she appeared to have (/0/16 ........when cases are heavily contested she must he seen to have exercised her powers citici discretion judiciously\r\nAgain Ili Mainoo vt-s The Republic L1984-8612GLR 727 Francois JSC quoted a pronouncement of Lord Dunning before the law Society of England to the effict that;\r\n"Give reasons Jar your decLcions;fln if you give no reasons, it will he cons! rued as a ju4jiilen t without reasons (/11(1(111 unreasonable otiL''."\r\n(:miiìsei for the appellant went further to refer to the Fiiglisli case of Flannery vrs Ilalilax Estate Agencies Ltd. [2000] 1 WLR 378 where Henry 14 delivering the judgment went to great lengths to discuss the duty and oN igation to give reasons.\r\nIndeed the ruling of the trial Judge ;ifier the submission of no case was this;\r\n"In respect of tile fit-st accused person, I have carefully considered the charge against him in this case and the evidence led so for and! aill of the opinion that there is a prima facie case against him to warrant h/ui to open his defence. / accordingly, in tile exercise oft/ic jurisdiction coiiJcrted on inc under Section 174 of Act 30, (1960) cull upon the Jst accused pci somi to open his defence\r\nThere is 110 doubt at all that the trial judge was exercising the power (. onfei icd on him mi(ler both sections 173 and 174 of the Criminal  Pt ocedui e Code, Act\r\n30.\r\n''SI 73 11 at the close oJtheevidence in support of the charge, it appears to III("(out C that ci case is not math out against (hr accused siifju ient/y to require  hun to mate a c/efeiu c, the (ourt shall as to that pat 11(111(11 Lila!-Ye. acquit him."\r\n It Is our considered view that by the strict intci 1)1 etation of''S173 a trial jtidge is not requireti to give reasons for acquitting an accused person if a case is not made out agminst him at the close of the prosecutions case.\r\nS\r\n\r\n \r\nAgain by the strict interpretation of section 174 of Act 30 there is no requirement for the trial judge to give reasons for calling on the accused to make his defence. We reproduce section 174 of Act 30.\r\n"Section 174 At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused sufficielitly to require the accused to make a defence, the Court shall call on the accused to make the defence and shall remind the accused of the charge and inform the accused o f the right of the accused to give evidence personally on oath or\r\nto make a statement."\r\n\r\nFrom the foregoing we are reluctant to accept the view that failure on the part of a trial judge to give reasons for overruling a submission of no case should constitute sufficient ground to set aside a conviction. We are however agreed that it would he desirable to state reasons for the exercise of the discretion one way or the other. In Tsatsu Isikata yrs The Republic [2003-2004] SC61/2 1068 when this same issue came up, i.e. failure of the trial Judge to assign reasons for her decision, the Supreme Court stated that, it encouraged the sound policy of articulating reasons for judicial decisions but added that it knew that lack of articulated reasons do not always lead to a miscarriage of justice. The Supreme Court went further to declare that;\r\n"In the case before us, the ruling on the submission of no case though made without articulated reaso175 Was not without basis in law."\r\nUpon reading the three cases relied upon by Counsel for the appellant for the failure of the trial judge to give reasons in the ruling, upon the submission of no case, we noted that the cases relied on i.e. Afotey Vrs The Republic (supra) Mainoo yrS. The Republic (supra) Flannery yrs Halifax Estate Agencies Ltd (supra) all deal with the failure of trial Judges to give reasons in final decisions to convict in the face of well argued addresses after a full hearing and not t the close of the prosecution''s case. What happens after addresses leading to Alie linal judgment in the criminal trial has been catered for by section 177 of the Criminal Procedure Code. In the circumstances of this.appeal and upon considering these two grounds, we are unable to do\r\n6\r\n \r\nmore than borrow the words of the Supreme Court articulated in ''I''satsu Tsikata vus The Republic (supra) that;\r\n"We livid that in this case, 1/ic failure ojthie trial judge to articulate lieu reasons for rejecting the submission o1 no case, rcgrettable as it is from the statidpoiiit of best judicial practice has occasioned no III isca IT/age ofJustice. We therefore cl/sm iss Lii is groun (I ojappeaL"\r\nIndeed on the strength of this pronouncement we proceed to dismiss this ground of appeal. In arguing the other leg of the two pronged grounds of appeal, it is the contention üí Counsel for the appellant that the judge called upon the appellant to open his defence when the prosecution had not established a prima facie case against him. The charge against the appellant hy section 10 (1) h of the Narcotics Drugs (Control, hnforcejneiit and Sanctions) Act 1990,  PNI)Cl. 236 reads as reproduced herein;\r\n10(1) "A person commits an offence if that person directly or indirectly, leaLc, in relation to or uses ci property within or outside the Republic\r\n(2) With the intention of facilitating or assisting in the promotion, inanaqenien 1, establishment or carrying on an activity Which is an oJfence under any oJtlie sections  to 7."\r\nIn assessing the quality of the evidence led, we must first of all appreciate the ingredients  in the charge pi off ci ccl against the appellant. In our view the following will he suflic ient to establish the ingredients in the offt nce charged.\r\n1 That the accused person directly or indirectly dealt in or allowed his Property to be used in or outside Ghana\r\n2 That the propei ty was used with the intention to facilitate, or assist in the promotion, niaiiagcniunt or cstihlislniient of an activity relating to drugs\r\n3. That.  the property was used to promote a narcotic enterprise.\r\n\r\n7\r\n\r\n \r\nThe he practice is and has always been that the prosecution has the duty to establish the ingredients of the crime charged one after the other in the course of the trial before the close of its case, and ultimately at the close of the prosecution''s case. Thereafter the role of the trial judge continues as follows:\r\n"Section 17:1 is concerned with summary thal where the judge decided both law and fact. It is for the judge in a summaty trial to weigh the evidence and then decide whether frau; the facts proved the guilt of the accused can be inferred. Evidence is said to be sufficient. when it is of such probative farce as to convince and if uncontradicted will justify a conviction."\r\n•\r\nSee The State yrs All Eassena [196211G1,14145.\r\nOur jurisprudence contains volumes of what the duties of the trial judge are in assessing whether or not the prosecution has made out a case for which the accused ought to be called to open his defence. A practice direction in this area, where a SUIMUSSiOn of no case to answer at the close of the prosecution''s cise was delivered by Lord Parker CJ in 1962- which ow- Courts adopted in The State yrs Ali Kassena [supra). This is what Lord.Parker said\r\n"Without attempting to lay down any principle of law, we think that as a matter of practice justices should be guided by the following consideratiOnS.\r\nA submission that there is no case to answer may properly be made awl upheld.	•.•\r\n(a)	When there has been no evidence to prove an essential element in the alleged offence.\r\n(b)	When the evidence adduced by the prosecution had been so discredited as a result of cross examination and is so manifestly unreliable that no reasonable tribunal could safely con viii on it.\r\nApart from Mese two situations a tribunal should not in general be called Oil to1each a decision as to conviction or acquittal until the Whole of the evidence which either side wishes to tender has been\r\n8\r\n \r\nplaced before it. If however a submission is made that there is no case to answer, the decision should depend not so niuch on whether the adjudication tribunal (iJcvmpelled to do so) would at that stage Convict or at quit but vii whet/icr 1/id? evidence is such that a reasonable tribunal might convict VII the evidence so far laid before it, there is a case to (uiswer.\r\n1110111 what Parker (1 stated, the answer to a submission of no case to answer should (lepen(l not so miiuch on whether the court would at that stage convict or acquit but whether on the evidence so far laid before it, there is a case to atm sw er.\r\nBy the record what was the evidence against the appellant? According to Counsel for the appellant, the nature of the evidence Presented by the prosecution against the appellant should he viewed against the statute under which the appellant was charged. Counsel submitted that from the particulars of offence, the prosecution set out to prove that the appellant, at the time of entering into the contract with Attico Fisheries knew that the vessel was to he used by Aseni Darke @ Sheriff to transport cocaine into the country so as to promote an enterprise relating to narcotic drug. She referred to the lirosecution''s opening statement of the facts of the case where it was alleged that ''some drug barons" contacted appellant etc. According to Counsel the prosecution implied that appellant knew the persons who contacted him to he drug barons and agreed and gave out his vessel knowing that the purpose for which the vessel was to he used was to Undertake  an activity to facilitate an enterprise relating to narcotic di ugs ( ounsi I was emphatic that when it came to evidence however, not one of the prosecution witnesses provided any testimony which, by any stretch of imagination, COUld amount to 1)1 ''001 that appellant knew the persons who contacted hint to he drug barons and agreed and gave out his vessel knowing the purpose [or which the vessel was to he used.\r\nThere  is no doubt about the soundness of ( ounsel''s i easoning however, thc oliset vations made by ( ouns I have tin ii i oots in the thai gc. sheet. Tile huge slice  should contain two elements namely a statement of thic olkrite\r\n9\r\n\r\n\r\n \r\nalleged to have been committed together with particulars of the offence. See section 112 of Act 30. The statement must refer to the offence creating section of the statute that created it. In respect of the particulars of the offence, the section requires such particulars of the offence as may he necessary for giving reasonable information as to the nature of the charge. Justice A N E Amissah in his Criminal Procedure in Ghana at page 77 has this\r\n \r\n\r\n \r\n"Drafting the part iculars of the offence charged involves following with precision the worditig aJ tlw section defining the crime and alleging that the accused did the act having the ingredients of the ()Thrice."\r\nSee lianson Mensah and Anor vs. COP 119631 2G1.11 536.\r\nAccordingly, it is our view that the particulars of offence in the charge sheet should contain all the ingredients of the offence and in particular what ingredients the prosecution intends to establish and prove in any criminal trial. Some Jurists have described the ingredients of an offence to be the frame or the skeletal part of the body -and evidenCe as the flesh covering it. Upon close study and scrutiny of the charge •sheet we are satisfied that it was laid in accordance with law and practice of criminal law. We are not in any doubt that the law has made provision for challenging or attacking the charge sheet but in the case before us no •thallenge whatsoever has been levelled against the charge sheet. It is also notorious in criminal trials that the opening stiaement made by the proseetition in respect of the facts is not evidence but a statement made to introduce the trier of facts to the case before him. It may even flit ii out to be irrelevant:to the trial after reception of the evidence.\r\nIn order to assess whether on the totality of the evidence presented by the prosecution the accused indeed had a case to answer, in other words, was the prosecution . able to lead enough evidence to show that the appellant committed the Offence air which he was charged in terms of the ingredients. We shall proceed at this juncture to examine the evidence led by the prosecutton in the:Court below.\r\n10\r\n \r\nThere was evidence that Detective Inspector Charles Adaba PW1 3 took over from Inspector James Oppong ill 2006. He tendered Ml the handwritten statement of the appellant dated 5th May 2006. lie went oil board the MV Benjamin at ''l''eina liahour and discovered that the paint around\r\nthe vessel''s name was fresh as compared to the paint oil parts of the vessel, lie proceeded to Takoradi Ghana Ports and I labours Authority where he found that MV Benjamin was formerly owned by a Korean hut was registered uniter the name Daslunent company Ltd with an official number 316915''1 and marked Al: 582 from 2011 April 2000. lie found out that the appellant was the Managing Director of Dashment Co Ltd and that lie was the one who signed Exhibit Cl a Charter Agreement with Sheriff Asein Dark''. This agreement gave Sherill the use of the vessel which brought the 77 parcels of cocaine into Ghana.\r\nThe Detective Inspector found also that it was Dasliment Company Ltd which applied for the vessel to enter the Takoradi Ilarhour. The same company paid all expenses incurred on the vessel for the period it docked at the llalmur. He stated that when the vessel was leaving port on 911, March 2006 the 3, 411,. 5111 and 611, accused persons were oil board. lie testified that conti ai y to appellant''s assertion that lie had paid off all crew members he found that the Port Authority had no records that 3'', 4" and 511, accused persons had been paid oil, lie found out too that the Port Authority required that crew members he registered with them and then their names taken off their register when they were laid oFf The Port Authority had the names of the 3ri, 411, and 511, accused persons as crew members of the MV Benjamin. This was an indication that they had not been disengaged by Dashitnent Company.\r\nHe informed the Court that MV Benjamin received 77 parcels of cocaine oil high seas and oil	of April, 76 out of 77 parcels were taken away by\r\nfishermen in canoes under.thie supervision of the Captain and First Fngineer.\r\nlie said one parcel was left behind ill	hatch of the vessel. A combined team\r\nof NACON official and Naval Officers who were searching for the MV Henjaiiun\r\nfound her at the breakwaters and entered the vessel and oil it found one parcel of cocaine in the hatch. The parcel contained 30 slabs of cocaine each weigh i rig 1 kg.\r\n\r\n11\r\n-''	Ajh;,ciAL SERVU:\r\n \r\nAccording to Inspector Adaba his investigations established that one Sheriff Asem Darke was one of the people behind the importation of the 77 parcels of cocaine into the country. Ile said on 21st December, 2005 Sheriff Asem Darke took a loan of 250 million cedis from Unique Trust Financial Services Ltd to buy marine fuel for the voyage to bring the 77 parcels of cocaine. Sheriff Asem Darke signed as General Manager of Atiko Fisheries Ltd on both the Charter\r\nAgreement Exhibit C and the Loan Agreement Exhibit I.\r\n•\r\nThe witness tendered also the charge statement of the appellant as Exhibit Al A. Ile tendered also the 25kg out of the parcel of cocaine found in the hatch of MV Benjamin.\r\nEarlier Detective Cpl. Edward Yaw Asante had given evidence as PW I. Ile testified that he was a Police Officer attached to the Narcotic Control Board (NAC013). His evidence was that NAC013 received intelligence that the MV Benjamin was carrying cocaine from the high seas to Ghana. Ile and other officers entered the vessel at the breakwaters at Tema and found 130kg of cocaine, a narcotic drug in the hatch of the vessel. PW1 stated that the appellant was the Managing Director of Dashment Company Ltd and owners of MV13enjamin.\r\nIn all the prosecution called 13 witnesses and tendered about 80 exhibits to establish its case. For purposes of assessing the prosecution''s evidence pursuant to the three ingredients in the charge sheet, we have produced in SU mmary form the evidence of PW I and PW13.\r\nWe must admit that Counsel for the appellant in her submissions to this Court took pains to challenge the testimony and attacked the credibility of the two witnesses. Her challenges were very detailed but the facts the two witnesses proferred by the nature of the evidence they gave remained intact. It is necessary to state that the (Vidence of the two witnesses and others as to the facts in issue were never discredited and we shall use these facts in issue as the basis for Mir assessment of the quality of the evidence. We are however guided by the dictum in Tsatsu Tsikata yrs The Republic (supra) as to the proper pOsition 1-0 be taken in an appeal where a submission of no case has been overruled. The Supreme Court held that the appellate court on an appeal\r\n12\r\n \r\nthat considers a submission of no case was to look at all the evidence and make a decision based on it. The Court added that;\r\n"All appellate court Was not C! trier of/acts H! the (((Sc of all appeal an a submission aJno case. However, the appellate court fbi its awn Imuteci purpose, would have to consider the evidence at the trial court to the extent that it was nccessaiy to determine whether the requisite level of p11)0/ was presetit ill respect ojahl the essential ingredients IH the offence c/ice tqecl.\r\nThe emphasis Ili this clictum is the essential ingredients in the offence charged. The evidence under consideration at this juncture. no doubt points to the direction that the appellant directly or indirectly dealt Ili or allowed his l)m0Pe1tY to be used iii or outside Ghana.\r\nAs Counsel for the Republic put it, the critical issue to determine Ili this particular case is whether the appellant allowed his vessel to he used with the knowledge and/or intent that it would he used to deal in narcotics. The argument of the appellant is that the fact of signing tlit various documents is not enough indication that appellant knew the vessel would he used to carry cocaine. [''lieme is this other argument that A3 who signed the documents was at the time not engaged by Daslmnient Company Ltd.\r\nIt has been stated over and over again in criminal law that it is impossible to i cad tlic intention of a person Ii orn his Lice or features hut that the intention of a man call inferred from his actions Accordingly one could pi ovc the mm''t. nimon of a person from events .he voluntarily initiates\r\nThere is evidence on,,, record that at all mnatem tal time the appellant still retained ownership of the vessel as borne out by the various payments he inadc in respect of the vessel It is the case of the prosecution that the idea of the Charter came up after the event to give the appearance that the vessel had hec ii hired to Sheriff and that appellant did not know anything about it The evidence of FWG was clear that appellant registered the vessel oil April 2000 and registered  A 3, A4 and AS as cm ew members. There  was evidence that MV Benjamin hcrthed at Takoradi Ilahotir oil 911, November, 2005 under\r\n \r\nthe agency of Dashment Company Ltd and set sail on 9th March 2006 to the high seas with Dashment Company Ltd still as its agents. Exhibits J, K, l„ M, 0, P and Q were receipts which showed payments for water, power, pilotage and other services rendered to the MV Benjamin by the Port Authorities. From the\r\nabove it will be reasonable to infer that as far as the Takoradi I labour Authority was concerned, Dashment Company Ltd was and remained the registered agents of the MV Benjamin. The evidence of PW6 . was very instructive on this point and we quote from the record to stress the point.\r\n"Q	I am putting it. to you that Dashment was not the agent of the vessel.\r\nA	My Lord, the port does not deal with owners of vessels. It deals with agents of vessels and as a matter of fact, if anybody wants to know the owner ola vessel, either he being the manager, operator or beneficial OWner, the person had to refer to the Maritime Authority. What the Port (1065 15 that the vessel is\r\nrepresented by all agent and it is the agent that the Port knows and we deal for commercial putposes with the\r\nagents of vessels. The owner can Get as agent but at that\r\ntime we look (It the person as the agent and not the owner."\r\nIt is the case of the prosecution further that .there was no evidence to suggest that Dashment Company was acting for Atico Fisheries Company. The Repubic is of the view that as at the close of the prosecution''s case the available evidence was that Dashment Company Ltd was the registered agent for MV Benjamin. Counsel for the Republic had invited us to draw the proper and necessai y inference that the appellant who was the Managing Director of the Comp.my that owned the vessel and made all payments on the vessel right up to the time the vessel sailed to the high seas and brought back the parcels ol cocaine into thft. country, allowed the use of his property and use of the name of his company for the activity. According to Counsel the use of the vessel by the Company lends credence to the fact that the appellant as\r\n14\r\n\r\n \r\n? Managing Director of the Company had some knowledge about the purpose for which the vessel set sail.\r\nAgain Cmtnsel for the Republic has invited us to examine Exhibit C, the Charter Agreement. She is of the view that the document appears to be a cover ill). The evidence shows that Dawson Sm-. the father of the appellant Signed it for his son as boat owner.\r\nThere is evidence acu)rd]iig to Counsel that the vessel was chartered to Sheriff Aseiii l)ake, the charterer ill C  signed under the name Evans (:hiii-tvetey, who was a brother of Sheriff Asein flake. 1-Ic testified as.PWIO. lie denied knowledge of Exhibit (:1 which bore his name. The appellant clid not know the charterer as Evans Charwetey per the document, so how could he have permitted him to sign as such, and this document was supposedly executed in the presence of Lawyers. Such flaws and questionable conduct associated with the document made it more difficult to explain. Counsel for the Republic was of the view that the total evidence adduced was enough and it established that appellant must have known that his vessel would he used to\r\ndeal ill	In Nyarko & On vrs The State 119631 2GLR the Supreme\r\nCourt per MillsOdoi JSC said;\r\n"Where tile 1OSCC1I Hon Jut/s ((1 eStuh/LVil i/ic esseii (jul eleirien ts oft/ic crime cliuiijed, a suh!nLsxu)ii OJ lid) case must succeed. It can then he said with a deqi cc oJ certainty that the prosecution has failed to mate out (1 p111110 Judd'' C C15C\r\nCounsel for the appellant in her submission stated that the only basis upon which the trial judge in this cast may have Concluded that the appellant had a case to answer was cii''cunistaiitial and Counsel proceeded to say that the trial Judge should have paid attention on to the law on circumstantial evidence. Counsel referred to Logan vi''s The Republic (2007-2008] SCGLR 79 where the Supreme Cow t stated\r\n"1 hese are inferences ct/Ic qedly drawn from uic uinctonHul evidence on / cc arc! And the question (lien is sp atinq as an appellate cowl\r\n15\r\n\r\n \r\nwhether in fact such inferences were drawn from facts that really existed in the evidence and whether these findings based on such inferences are supported by evidence on record	\r\nFor circumstantial evidence to support a conviction, it Must be inconsistent with the innocence of the accused. It must lead to irresistible conclusion not only that the crime charged has been:	• conmütted, but it was in fact committed by the persons charged in-. order to arrive at a definite conclusion."\r\n \r\nSee also the State vrs Anani Fiadjoe [1961] G1,12 Court asserted that;\r\n \r\n"Presumptive or circumstantial evidence is quite Usual as it israre to prove an offence by evidence of eye-witness and inference from the facts may prove the guilt of the accused person.: A presumption from circumstantial evidence should be drawn against the appellants only when that presumption follows irresistiblY from the circumstances prywed in evidence; and in ot-der to justify the inference of guilt the inculpatory facts must be incompatible with the innocence of the appellant, and incapable of explanation upon any other reasonable hypothesis other than guilt.- A conviction must not be based on\r\n•\r\nprobabilities or mere suspicion."\r\nThe celebrated case of R yrs OnnfrejtV13 (1955) 1Q13 388 cannot be omitted when discussing circumstantial evidence. That case stated that\r\n"It is often the best evidence. It is evidence of surrounding\r\n„\r\ncircumstances which bY:Uhdesigned coincidence is capable of\r\nproving a proposition with the accuracy of mathematics. It is no derogation of evidence to say it is circumstantial."\r\nIn our view,circuinStantial evidence was part of the evidence the prosecution presented in the trial. We have assessed the circumstantial evidence with the\r\n16\r\n,\r\n \r\n-\r\nstandards and yardstick dictated by the cases and we have come to the conclusion that the justice of the matter demanded that the necessary inferences he made because in our view the conduct of the appellant iii the course of the various transactions was incompatible with his innocence.\r\nWe have also considered the provisions of the Evidence Act, NRCD 323 and the evidence led in in Court. We are in no doubt that the prosecution kept within the bounds of Section ii of the Act. For the avoidance of doubt we reproduce the section herein;\r\n"ii (2) in a criminal action, the burden of producinq evidence, when it is or; the prosecution as to a fact which is essential to quilt, requires the prosecution to produce suffIcient evidence so that oil	totality oft!; e evidence a reasonable mind could find the existence of the fact beyond reasonable doubt."\r\nIt is clear that the trial judge was right from the whole of evidence led by the prosecution and at the close of its case to call upon the appellant to open his defence. The inferences the prosecution invited us to make and draw in our view are legitimate inferences arising directly from the testimony of the prosecution witnesses. Having read the record together with submissions of 1)0th Counsel we are left in no doubt that the multiple overt events or acts associated with the vessel MV Benjamin before she set sail to the high seas and other events which occurred thereafter are very strong indications that Daslitnent Company Ltd as registered agents of MV Benjamin per its Managing Director allowed the use of its property and use of the name of the Company with the intention to assist man activity relating to a narcotic enterprise. We accordingly dismiss this ground of appeal as well.\r\nA ground of appeal that "the trial judqe failed to apply the same criteria that he applied in relation to the 2 accused upon a submission of no case, which criteria would have even more definitely, have necessitated acquittal of the first\r\naccused'' presumes a lot in criminal trials. Even in situations where the accused persons are jointly charged with the same offences the reaction of the\r\n17\r\n \r\naccused persons per their caution and charge statements may be different and be poles apart. The evidence against each accused person may be given by the same witness but with different emphasis. In this particular case the charge against 2" accused was laid as Count Two which count referred to Prohibited\r\nbusiness relating to narcotics. The particulars of offence gave ingredients associated with repairs of the MV Benjamin. Indeed the charge against the 2" ilCCUSed has no bearing, whatsoever with the charge against the appellant winch is under consideration in this appeal. We shall be bold enough to say that the ingredients to be proved by the prosecution against the second accused are not the same and cannot be the same hence Counsel was completely out of order when she filed this ground. We consider this ground to be without merit and dismiss it.\r\nThe ground Iii it the trial judge effectively .denied the -appellant the presumption of innocence, a fundamental principle Of criminal law is not borne out by the evidence on record. In ow- View the trial Judge can out Ins judicial functions effectively without any bias Nowhere in the record did we see or find that the Judge short-change the -appellant by denying him his\r\nright to the presumption of innocence.	.\r\nThe original ground of appeal was the following;\r\n"That the conviction and sentence of the 1" accused person to a total of Twenty-rout years- imprisonment was wrong in law. The learned trial judge''s finding-that the .1" accused appellant knew, at the time of entering into the.charter Agreement for the vessel to be used to tow a diStTessed Vessel, that the real intent of the Charter was to employ the ;Same for transporting of narcotic drugs, cocaine, is•wrong in law. The learned trial Judge further finding that the one parcel of cocaine found on board the vessel was to be used to pay the 1" accused for the charter of the vessel is not supported by the evidence."\r\n18\r\n \r\nCounsel for the appellant was of the strong view that the matters which the trial judge used as basis for finding the accused guilty were speculative and based merely oil\r\nIn his judgment the trial Judge was of the view that;\r\n"The facts proved are that as against the accused the vessel MV Benjamin was chartered to Sheriff Asein Darke which went to the high seas to 1)11119 (lie cocaine. Further Sheriff did not Pto'' /r the charter or the lure purchase but was allowed to rise the vessel which went and returned with the cocaine. Furthermore\r\nin the vessel, out of the undisputed fact that seventy seven cartons were found in it, seventy-six were taken away at Tema leaving only one raises questions,"\r\nWe are of the firm view that the trial Judge''s findings of fact at that stage were correctly made based oil evidence on record which were placed before him. It is also true that having taken away 76 cartons of cocaine and leaving only one carton raised many questions. A trial judge at this stage is allowed to make necessary and relevant inferences from the evidence before him. One piece of evidence before the Court was the fact that 110 pesewa or cent was paid for the charter even though the subject matter of the charter was in use. It was legitimate therefore for the trial judge to infer that possibly, the reason for leaving the carton on the vessel was for payment in kind for hiring it. In our view this inference by the trial Judge is not borne out by the evidence and riot supported by the evidence in the least. Indeed we find that conclusion to he speculative. Speculative asthe conclusion was, it (lid not alter the primary findings of fact made by the trial Judge in respect of the ingredients of the offence.\r\nCounsel for the appellant drew our attention to the fact that Dashment Company Ltd was not oil but the person Joseph Kojo Dawson was. We do not hesitate to conclude that in line with the decision in Salomon vrs Salonwn (R8971 AC 22 the trial Judge was familiar with the principle of\r\n19\r\n \r\n\r\n\r\n \r\nseparate legal personality of a Company. A Company however operates and acts through its Directors and/or agents. The Managing Director who is under trial, no doubt has authority to act on behalf of the Company and indeed is the foremost and principal agent of the Company. Accordingly, any deed of the Company carried out by the Company cannot be said to have been done without the knowledge and consent of the Managing Director. The onus indeed is shifted onto the Managing Director of a Company to. rebut the presumption that acts of the Company were not his. Throughout the trial witnesses, i.e. PW1, PW2, PW3, PW13 were all agreed and gave testimony that, the appellant was the Managing Director of Dashment Company Ltd, owners of the MV Benjamin which brought the cocaine into the country.\r\nThere was further evidence by PW5 of the Ghana Maritime Authority who was the Shipping Superintendent and Registrar of Ships that the appellant was the one who registered MV Benjamin in April 2000. That, the crew were engaged by Dashment Company Ltd. The evidence of PW6, the Takoradi Ilabour Master in charge of the Ports and Harbours Authority was clear as to who had responsibility for the vessel. He tendered the Vessel : Movement Card of MV Benjamin as Exhibit II, which indicated that Dashment Company Ltd was the agent of MV Benjamin. The card was stamped by Dashment Company which paid all the debts raised by and on behalf of the vessel. Fresh water supplied to the vessel was paid by the Company as well as the final debt raised before it set sail to the high seas. Surely these payments and other payments cannot be said to have been done by the Company Without the knowledge, consent and approval of the Company''s Managing Director, the appellant herein. Indeed\r\nnowhere in the record Was there evidence that the Company, Dashment was\r\n„\r\nunder trial. The charge sheet was explicit that no person other than the\r\nappellant was the person under trial.\r\nIt is obvious in criminal:trials that at the end of the case for the prosecution, the Court may feet that the case is amply proved unless the defence then produces evidence setting up reasonable doubt, the prosecution will succeed. We have read the ''thilence of the appellant on record in which he denied\r\n20\r\n''\r\n-:	•\r\n \r\nknowledge of the crime. The trial Judge considered his defence in its entirety and this is what he said;\r\n"The explanation of the accused person that he knew nothing about the voyage to me is not the answer to the charges and I do not accept the same given inferences I have drawn from the facts of this case and having taken all the circumstances into consideration. The explanation of the accused person also does not appear to he reasonably probable to raise doubts fOr his acquittal."\r\nBefore we consider the trial judge''s conclusions as to the explanation offered by the appellant in the Court below we shall he guided by the Supreme Court in a statement that;\r\n"Where the submission was rejected cirici the case went to trial it was then that the judge or jury as appropriate being the Trier of flicts would be called upon to determine whether or not the guilt of the accused had been proved beyond reasonable doubt.\r\nSee Tsatsu Tsikata vrs The Republic (supra).\r\nA relevant holding of the Supreme Court is that whether or not the prosecution has proved its case heyond reasonable doubt is a question which must he left until the end of the whole case In State vrs Sowali and Essel [1961] GIR (Part 2) 743 the Court held that;\r\nin a criminal case except in the instance of sanity and matters expressly thrown on the accused by statute, there is in general no presumption against an acnised person and an accused person is not bound to jive evidence. It is wrong therefore to presume the guilt of an accused mainly], om the fiicts proved by the prosecution. The case for the prosecution only provides prima fdcie evidence from which the quilt of the accused may he presumed and which therefore callsfor explanation by the accused. The proper direction is that if the defence answers the case for the prosecution then the jury should find the prisoner not guilty or if the defrnce raises\r\n21\r\n \r\na reasonable doubt in the mind of the jury of the case pr the prosecution, the prisoner is entitled to acquittal because there is doubt. The jury must he told they can return a verdict of guilty only when they are satisfied on consideration Of the case as a whole."\r\nFrom the record we are convinced and are left in no doubt that the trial hike considered the defence raised by the appellant in every material detail .and came to the irrefutable conclusion that the defence was a sham. We Ithve closely and diligently studied the record and do not see any:reason to faultthe assessment of the evidence by the trial Judge. We are of the fur‘ther view that in the court below the prosecution proved its c;_ise beyond te;_.isomible doubt within the purview of Miller vs. Minister of Pensions 119471 1 Al It 372 at 373 where the House of Lords settled the definition Or proof beyond reasonable doubt and we find accordingly that the conviction and sentencing Of the appellant was	appropriate. For these reasonS we dismiss the anima and afrirm the decision of the lower Court.\r\n-.1\r\n•\r\n \r\n\r\n \r\nUSE! (JUSTICE OF APPEAL-)\r\nCOUNSEL \r\n•	NANA OYE LITHuR (MRS) FOR THE APPELLANT\r\n9 YVONNE ATAKORA 013110BISA (MRS) PSA FOR ATTORNEY-GENERAL\r\n22\r\n', '../links/cases/Document (216).pdf', 'Yes', 'ACQUAYE,J.A, ADUAMA OSEI,J.A', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Criminal law - Use of property for Narcotic Offences - s.10(1)(b) Narcotic Drug (Control,Enforcement and Sanctions) Law 1990, PNDCL 236 - Submission of no case - ss. 173 &amp; 174 Criminal Procedure Code, Act 30 - Whether prosecution had established prima facie case - s.10 (1)(b) PNDCL 236 - s.11 Evidence Act, NRCD 323 - Trial judge''s duty to call upon appellant to open defence - Whether trial judge denied appellant presumption of innocence. </font></b></i><br>', 'APALOO,J.A', 'Criminal', '', 'H2/17/2010', '', '', 'appeal', '2011-06-16', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(568, 'NATIONAL LABOUR COMMISSION  ...  APPLICANT/APPELLANT/APPELLANT\r\nVRS\r\nGHANA COMMUNICATION LTD  ...  RESPONDENT/RESPONDENT/RESPONDENT', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCCRA\r\nCORAM: WOOD (MRS) C.J (PRESIDING) BROBBEY, JSC\r\nOWUSU (MS), JSC\r\nYEBOAH, JSC\r\nBONNIE, JSC\r\nCIVIL APPEAL\r\n14/53/2010\r\n13TH January, 2012\r\nNATIONAL LABOUR COMMISSION APPLICANT/APPELLANT/APPELLANT VRS\r\nGHANA COMMUNICATION LTD	RESPONDENT/RESPONDENT/ RESPONDENT\r\nLabour Law	Wrongful dismissal - Order made by the Notional Labour\r\nCommission not followed— Application to High Court for enforcement of order\r\n- Whether the order must be evaluated before its enforcement Whether court exceeded its jurisdiction in re-examining Commission''s proceedings - LabourAct, 2003, s.172\r\nJUDGMENT\r\n \r\nOWUSU (MS.) J.S.C: \r\nThis is an appeal against the decision of the Court of Appeal which affirmed the decision of the High Court refusing to enforce an order of the National Labour Commission under section 172 of the Labour Act of 2003, (Act 651.)\r\nThe commission as Applicant had gone to the High Court to seek enforcement of its order against Ghana Telecommunications Ltd, the Respondent herein after hearing a petition settling a dispute between the Respondent one Williams Hayford Appiah an Ex-employee of the Respondent.\r\nAppiah was employed by the Respondent in January 2002 as Senior General Manager with the audit department of the company and later promoted to the rank of a chief officer.\r\nWhiles in the employment of the Respondent, Appiah was asked to furnish management with his curriculum vitae which was to include but not limited to an outline indicated in the request.\r\nIn the outline is schools attended set out as follows:\r\n"Name of Secondary/Technical/Commercial/Training College etc attended Year of Entry\r\nYear of completion\r\nSixth form?\r\nName of school\r\nYear of entry\r\nYear of completion"\r\nFollowing this request, Appiah submitted a curriculum vitae indicating that between 1974 and 1981, he attended Benkum Secondary School, Larteh where he obtained his GCE "0" and "A" levels Certificates.\r\nA follow up investigation revealed that Appiah did not attend Benkum Secondary School and indeed over the period stated by him, the school did not have a sixth form and has not offered a sixth form programme since its inception.\r\nRather, further investigations revealed that Appiah sat for and obtained the "0" and "A" level passes as a private student having attended private classes organized\r\n2\r\n \r\nby some teachers of Benkum Secondary School. The passes were obtained one at a time between 1973-8 1.\r\nFor his conduct, he was charged in accordance with regulation 144 (iv) of the Staff Rules and Regulation of the company and a Board of Inquiry set up to investigate the matter found him guilty of the charge of fraud or other acts of dishonesty.\r\nFollowing this, he was dismissed from the employment of the company by a letter dated 26th September 2007.\r\nBy a letter dated 51h February 2008, Appiah presented a complaint to the commission against his dismissal and prayed for the following orders -\r\n"a. A declaration that the dismissal of the complainant from respondent''s employment is unfair.\r\nb. An order compelling respondent to reinstate complainant with all his entitlements from 22/09/07 when complaint was dismissed or in the alternative;\r\nor in the alternative;\r\ni.	Order respondent to re-employ complainant either in the work for which complainant was employed before complainant''s employment was terminated.\r\nor in the alternative;\r\nii.	Order respondent to re-employ complainant in other reasonably\r\nsuitable work on the same terms and conditions enjoyed by\r\nrespondent prior to termination of his employment or in the\r\nalternative;\r\niii.	Order respondent to pay complainant compensation for unfairly terminating complaint''s employment."\r\nThe commission went into the complaint and decided that the petitioner''s conduct amounted to a breach of regulation 206 (b) of the Staff Rules and regulations the punishment for which is termination and not dismissal. It therefore decided that the purported dismissal be converted to termination in conformity with the company''s own staff Rules and Regulations.\r\nAccordingly the commission ordered the Respondent company Ghana Telecom to terminate the petitioner''s appointment with effect from the date that he was dismissed with all accrued benefits.\r\n\r\n \r\nGhana Telecom, was to comply with the decision within fourteen days of 21-08- 2008, the date of the order.\r\nThe company failed to comply with the order of the commission and therefore the commission took the necessary step to have the order enforced. Consequently, the commission applied to the High Court for an Order to enforce the order.\r\nUnder section 172 of the Labour Act of 2003, (Act 651) -\r\n"where a person fails or refuses to comply with a direction or an order issued by the commission under this Act, the commission shall make an application to the High Court for an order to compel that person to comply with the direction or order."\r\nIn the affidavit in support of the application, one Edward Briku-Boadu, executive secretary of the commission recounted the facts which led to the presentation of the complaint at the commission by the complainant and the fact that the company has failed to comply with its orders and that it has no intention to comply with the said orders unless the court steps in.\r\nThe Respondent opposed the application. In the affidavit in opposition, one Fitnat Adjetey the company''s solicitor averred among other things that for the application which is seeking to enforce the recommendations/orders of the commission to be heard, it is imperative that all documents relating to the case and that forms the basis of the recommendations/or orders be placed before the court.\r\nIn paragraph 8 of the affidavit the deponent averred that Ex "10" and "11" which were written after the recommendations of the commission cannot form part of the record or documents on which the honourable court should evaluate the recommendation. Paragraph 13 of the affidavit states -\r\n"that in answer to paragraphs 16 and 17 the Respondent says that the National Labour Commission in its investigative role makes orders in the nature of only recommendations, and like all other recommendations, it is susceptible to judicial scrutiny if not honoured by the Respondent."\r\nIn paragraph 21, the Deponent averred that -\r\n"by section 144 of the staff Rules and Regulations, ''fraud and other acts of dishonesty constitute major offences for which the punishment includes dismissal."\r\nParagraphs 23 and 24 state -\r\n4\r\n \r\n"that the National Labour Commission does not have the power to substitute its own charges for those against which the petitioner was charged and or its own discretion which acted in accordance with their laid down rules."\r\n24 "that even though the petitioner was charged under section 144 the National Labour Commission sought to regard his prosecution with (sic) section 206 of the staff Rules and Regulation 5 which the affidavit in opposition sought to justify the dismissal.\r\nThe High Court in its ruling delivered on 18-06-09 dismissed the Application for the following reasons:\r\n"a. applicant has no power to substitute the charge for another,\r\nb. the applicant has not made a finding of fact on unfairness or otherwise of the dismissal of the petitioner under regulation 144 (iv) of the Staff Rules and Regulations and;\r\nc. The decision of the applicant is incomplete."\r\nThis is so because when the commission recommended that the petitioner must be paid all his accrued benefits, it did not specify what constitutes these benefits and how much was to be paid to the petitioner.\r\nDissatisfied with the ruling, the commission appealed to the Court of Appeal on the grounds that -\r\n(i)	The Court below erred when it questioned the correctness or otherwise of applicant/ appellant''s decision instead of just enforcing the decision submitted to the court for enforcement.\r\n(ii)	The court below erred when it held that applicant/ appellant''s decision was incomplete and cannot be enforced.\r\n(iii)	The court below erred when it held that applicant/ appellant has substituted its own case for that of the petitioner.\r\n(iv)	Further grounds of appeal will be filed upon receipt of the record of proceedings.\r\nThe Appellant therefore sought a reversal of the ruling of the court below and an order enforcing the order of the Applicant/ Appellant.\r\n \r\n5\r\n \r\nOn 20-05-10, the Court of Appeal unanimously dismissed the Appellant''s appeal and held that the order which the Appellant sought to enforce was not justified in law or on facts and that same was manifestly wrong in that the petitioner was charged with acts of dishonesty and fraud under regulation 144(iv) of the staff Rules and Regulations yet the Appellant decided the matter under regulation 206 (b) of the staff Rules and Regulations.\r\nThe petitioner''s complaint was against unfair termination of employment as set out under section 63 of the Act and not against unfair labour practice as set out under sections 127 -131 of the Act.\r\nThe Court of Appeal found that the petitioner''s conduct amounted to fraud and therefore the charge preferred against him under regulation 144 (iv) was appropriate in the circumstances.\r\nIt therefore held that the High Court fell into no error when it refused to enforce the order of the Appellant.\r\nStill dissatisfied, the Appellant mounted this appeal seeking - a reversal of the judgment of the Court of Appeal.\r\n(ii) An order affirming the orders of the Appellant to the effect that the petitioner''s appointment ought to have been terminated by the respondent/respondent/respondent/\r\nThe Grounds of Appeal are that:\r\n"(i) The court of Appeal erred when it held that the High Court was right when it re-opened the matter and questioned the correctness or otherwise of applicant/appellant/appellant/ s decision instead of just enforcing the decision submitted to it (the High Court) for enforcement.\r\n(ii)	The Court of Appeal erred when it held that the applicant/appellant/appellant never made any order regarding the actual entitlements due to the petitioner before it (appellant).\r\n(iii)	The Court of Appeal erred when it held that applicant/appellant/ appellant had substituted its own case for that of the petitioner.\r\n(v) The Court of Appeal erred in law when it upheld the judgment of the High Court overturning the appellant''s decision in favour of the petitioner when respondent/respondent/respondent had failed to exercise its statutory right of appeal in respect of the decision sought to be enforced.\r\n \r\n6\r\n \r\nArguing the first ground of Appeal, counsel contended that the application before the High Court was simply for purposes of enforcing the decision of the Appellant. That it had nothing to do with the merits of the case before the commission. He submitted therefore that it did not lie in the Respondent''s mouth to attack the decision before the High Court when the Appellant sought to have it enforced. It is his case that every decision of the commission is appealable to the Court of Appeal. Hence any person aggrieved by the decision of the commission has a right to attack same only by way of an appeal to the Court of Appeal. If therefore a person refused to appeal against the decision/order of the commission, he must be deemed to have accepted the decision/order and cannot challenge the correctness or otherwise when the commission seeks to enforce it against him.\r\nBefore the Court of Appeal, counsel for the Appellant submitted that in an application before the High Court, the High Court has no appellate Jurisdiction over the commission and therefore the High Court cannot be called upon to examine the correctness or otherwise of the decision.\r\nAlternatively, the Respondent could have invoked the supervisory Jurisdiction of the High Court against the decision if respondent was aggrieved by same.\r\nCounsel thus submitted that the Court of Appeal erred when it held as follows:\r\n"In the present case, the respondent/ respondent did raise issues that called for the re-opening of the investigations or production of the investigation proceedings\r\nthe trial High Court was entitled to look at all the depositions filed in the proceedings before reaching its decision, and it did so. (Kindly refer to page 500 of the record).\r\nAppellant''s main complaint is with respect to that part of the High Court''s ruling which seeks to question the basis of Applicant''s decision rather than proceed to enforce it.\r\nIn reply, counsel for the Respondent argued grounds (i) and (iv) together. In support of these grounds, the Appellant has argued that the Appellant has power to enquire into and determine complaints of unfair labour practices brought before it. He (Appellant) relied on section 134 of the Labour Act to submit that the Respondent had 14 days within which to appeal against the commission''s decision failing which the Respondent was deemed to have accepted same and therefore would be bound by it.\r\nAppellant has also argued that in seeking the orders of the High Court to enforce its decision, the investigation proceedings cannot be laid before the High Court.\r\nCounsel submitted that these grounds must fail if it can be established that the above two premises are wrong.\r\n7\r\n \r\nHe contended that the Appellant''s argument that the only remedy available to the Respondent to question the correctness or otherwise of the decision of the Appellant is to appeal against the decision as provided for under section 134 of the Labour Act is misconceived and misplaced.\r\nIn quoting the section, the Appellant disingenuously omitted the crucial phrase "under section 133." Section 133 of the Act relates to unfair labour practices. Unfair Labour practice has been defined under section 127- 131\r\nHe submitted that the complaint of the petitioner in the instant case was not one of unfair Labour practice. It was rather one of unfair termination of employment.\r\nConsequently, section 134 of the Act is not applicable.\r\nHe referred to the dicta of His Lordship Brobbey JSC and Her Ladyship Wood JSC (as she then was) in the case of GHANA COMMERCIAL BANK LIMITED VRS COMMISSION FOR HUMAN RIGHTS AND ADMINISTRATIVE JUSTICE [2003 - 20041 SCGLR 91.\r\nHe therefore submitted that the High Court exercised its powers correctly when it assessed the decision embodying the recommendation to see whether it was\r\nsupported by the proceedings.\r\nIt is also his case that since the enforcement proceedings were founded on affidavit evidence, the High Court was bound to look at all the depositions filed in the proceedings before reaching its decision whether to grant or dismiss the application. From the affidavits, if it can be established that the decision of the commission which is sought to be enforced is "unjustified in law or in fact, the High Court, cannot ignore it.\r\nCounsel submitted that the decision or order which the Appellant sought to enforce was not justified in law or fact and that it was manifestly wrong and perverse in that, even though the petitioner was charged with fraud or other acts of dishonesty under regulation 144 of the staff Rules and Regulations, the commission decided to substitute a case of its own under regulation 206 (b) and therefore based the decision on 206 (b) instead of 144 (iv).\r\nThis gave cause for the commission to decide that the punishment for that offence warranted termination of appointment but not dismissal which is warranted\r\nunder 144 (iv)\r\nHe argued further that the function of the Appellant, like all other investigative bodies are purely investigative and the decision is in the nature of recommendations. The commission has no enforcement power of its own and it is for this reason that the commission resort to the High Court for enforcement of its orders. Counsel submitted that the High Court is not a rubber-stamp which\r\n8\r\n \r\nmerely stamps these recommendations and orders regardless of whether such recommendation or orders can be supported by the evidence placed before the commission.\r\nThe petitioner''s complaint before the commission was unfair dismissal. What constitutes unfair dismissal? The position of the Law stated by Bamford-Addo JSC (as she then was) in the case of VIVIAN BANNERMAN VRS. STATE TRANSPORT CORPORATION, CIVIL APPEAL NO. 15/2001 and dated 2nd April 2002 is as follows:\r\n"The employer must first show that the principal reason for dismissal was one of four potentially fair reasons (capability, conduct, redundancy, statutory requirement) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held."\r\nCounsel concluded that the Respondent had shown that the principal reason for the dismissal was based on conduct.\r\nThe petitioner''s termination was in accordance with fair procedure having been charged, he was heard, and offered opportunity to be represented by counsel to put across his case.\r\nAPPEALS\r\nSection 134 of the Labour Act states that:\r\n"A person aggrieved by an order direction, or decision made or given by the commission under section 133 may within fourteen days of the making or giving of the order, direction or decision, appeal to the Court of Appeal."\r\nIt is clear from the provisions of section 134 that it is only in respect of orders made under 133 that a person aggrieved by the order is given the right of Appeal.\r\nSection 132 gives the commission power to inquire into and determine complaints of unfair labour practices brought before it in accordance with its rules of procedure.\r\nSections 127-131 provide for what constitutes unfair labour practice. Following thereafter is the power given to the commission to make orders. Section 133. Commission to make orders:\r\n"(1) Where the commission finds that a person has engaged in an unfair labour practice it may, make an order forbidding that person to engage or continue to engage in the activities specified in the order.\r\n9\r\n \r\n(2) Where the Commission finds that a person has engaged in an unfair labour practice under section 127 which involves the termination of\r\nemployment of a worker, the alteration of the employment or of the conditions of the employment, the Commission may, make an order requiring the worker''s employer\r\n(a)	to take the steps specified in the order to restore the position of the worker, and\r\n(b)	to pay to the worker a sum specified in the order as compensation for the loss of earnings attributed to the contravention.\r\n(1)	Where the Commission finds that a person has engaged in an unfair labour practice under section 128 by making a contribution to a trade union, the Commission may, order that the trade union refund the contribution.\r\n(2)	For the purposes of enforcing an order of the Commission under this section, the order shall have effect as if it were made by the High Court."\r\nThe petitioner''s case before the commission was not one of unfair Labour practice and thus the order made by the commission was not made under section 133.\r\nCounsel for the Appellant had relied on section 134 and argued that the Respondent should have appealed against the order it sought to enforce and if he failed to appeal, it should for ever hold its peace.\r\nUnder regulation 144 (iv) no room has been provided for Appeal. Regulation 144 deal with major offences under the staff Rules and Regulations.\r\nAmong such offences is the offence of fraud or other acts of dishonesty.\r\nRegulation 144 states that:\r\n"The following shall constitute major offences for which the punishment shall be dismissal, removal, reduction in rank or suspension without pay or not less than 14 days, except that embezzlement shall always attract dismissal.\r\n144 (iv) is the offence of\r\n"fraud or other acts of dishonesty"\r\nSuch a conduct constitutes major offence which warrants dismissal and the complainant''s dismissal was based on this Regulation.\r\nUnder Regulation 146 of the Staff Rules and Regulations -\r\n10\r\n \r\n"(a) Disciplinary authority for all offences shall be the Board or the Managing Director exercising the Board''s authority.\r\n(b) Subject to (a) above, disciplinary authority may be exercised for purposes of administrative convenience in accordance with relevant Administrative Instructions issued from time to time by the Managing Director.\r\nNaturally under the Regulation it is an employee who has a right of Appeal against any disciplinary action that may be instituted against him and this is to the Board of Appeal.\r\nUnder the Labour Act therefore, the Respondent Company has no conferred right to Appeal and I am inclined to agree with counsel for the Respondent that the Respondent could register his dissatisfaction by his failure to comply with an order and register his disapproval by opposing an application for its enforcement when the commission seeks to do so.\r\nThe next issue raised is whether the High Court has power to question the correctness or otherwise of the decision when the commission seeks to enforce same.\r\nOn this point, both counsel heavily relied on the case of GHANA COMMERCIAL BANK VRS CHRAJ, already referred to.\r\nIn that case, the commission had gone to the High Court for the enforcement of its decision and recommendations by the High Court. The High Court had granted the application and issued an order to enforce the decision and recommendation of the commission. The Court of Appeal upheld the decision of the High Court and this culminated in the appeal to the Supreme Court.\r\nThe facts related to termination of appointment of an employee of the Bank who was a manager. The reason for the termination was that he had contravened the regulation of the Bank by granting a loan facility to a customer of the bank without prior approval from its head office.\r\nDissatisfied with the termination of his appointment, he petitioned the Respondent commission for redress. After investigation, the commission decided in favour of the petitioner and made recommendations to the Bank which failed to comply with them.\r\nThe commission therefore applied to the High Court for enforcement. The High Court granted the application and issued an enforcement order which the Court of Appeal affirmed.\r\nOn appeal to the Supreme Court, the issue for determination, was whether the investigation proceedings before the Commission on Human Rights and\r\n11\r\n \r\nAdministrative Justice may have to be laid before the trial court. One of the grounds of appeal being that:\r\n"the trial court not having seen and examined the evidence adduced before the commission, erred in seeking to enforce a ruling based on the evidence."\r\nThe Labour Commission does not have power to enforce its decision, hence the application to the High Court. It is not for nothing that the decision must be sent to the court for its enforcement. The intendment of the Law maker to me is to ensure that due process was followed and that the decision is justified on the facts and the law.\r\nA court of law which seeks to do justice cannot make an order for the enforcement of the commission''s order without satisfying itself that the order sought to be enforced is justified in law especially where there is an affidavit in opposition as to why the order cannot be enforced. The affidavit in opposition did not only raise issues of facts but law as well and in my view the trial court fell into no error as the Court of Appeal held when it examined the depositions filed in the proceedings before reaching its decision.\r\nSince the application was to be determined on the affidavit evidence, the trial Judge had no option but to look at them. If satisfied with that kind of evidence, Judgment may be given by him on the basis of that evidence. To ensure that substantial justice is done to the parties, the trial Judge, depending on the facts of each case, may even on his own order the investigation proceedings of the commission to be laid before the court.\r\nWhere one party, usually the defendant, raises issues that can only be resolved by re-examination of the evidence before the investigation body or by production of the record of proceedings before the investigation body, i.e. the commission, then the investigation proceedings before the commission may have to be laid before the court.\r\nSee holding 3 of the court in the GHANA COMMERCIAL BANK case referred to above.\r\nI find no merit in this ground of Appeal.\r\nAs counsel for the Appellant argued grounds 1 and 4 together, my resolution covers both grounds I and 4.\r\nOn ground (ii), the commission did not make any recommendation or order as to what specifically the petitioner was entitled to by way of accrued benefits.\r\nThe trial Judge had asked in his ruling -\r\n12\r\n \r\n"So what decision am I to decide on? If the decision of the applicant is upheld, how can I then say that the parties should go and sit down to agree on what to pay?"\r\nIt is for this reason that the trial court concluded that the decision of the Applicant is incomplete and cannot therefore be enforced.\r\nEx "NLC 10" did not form part of the proceedings before the commission. The decision which the Appellant sought to enforce is as follows:\r\n"It is the view of the commission that a punishment of such a breach is termination and not dismissal, therefore the purported dismissal should be converted to termination to conform with your company''s own staff rules and regulations.\r\nAccordingly the commission orders the respondent company Ghana Telecom to terminate his appointment with effect from the date that he was dismissed with all accrued benefits."\r\nThe High Court''s jurisdiction was to enforce this order as made.\r\nIt is the case of the Appellant that the fact that the Appellant did not go to the trouble of calculating the specific sum due the interested party did not render its decision incomplete and for that matter unenforceable by the High Court.\r\nIn support of his case, counsel relied on the situation where after Judgment for a liquidated sum, the High Court makes a further order that the sum so awarded is to attract interest from a particular date to the date of final payment. What constitutes the interest is not specified by the court. The Judgment creditor calculates the interest and invokes the coercive powers of the High Court to ensure enforcement by the court.\r\nThe judgment of the High Court is not deemed incomplete and unenforceable because the High Court did not specify the exact sum due the Judgment creditor by way of interest.\r\nIn reply, counsel for the Respondent argued that the decision was not complete because without taking evidence on the entitlements, the petitioner sought an order to compel the Respondent to pay what is contained in Ex "NLC" prepared unilaterally by the petitioner after the orders of the commission.\r\nRegarding the Appellant''s argument inviting the court to use the analogy of the award of interest in recovery of the award of interest in recovery cases, counsel submitted that same is misconceived. He contended that the award of interest on recovery eases which is sanctioned by the court (Award of interest and post judgment interest) Rules, 2005 (C. I. 52) and case law is different from\r\n13\r\n \r\nentitlements due an employee which is based on conditions of service. The petitioner''s entitlements are indeed based on his conditions of service which needed to be proved. The award of interest is based on a fixed interest rate. The Appellant''s argument that what is contained in Ex "NLC 10" was not challenged and therefore is deemed to have been accepted by the Respondent is not borne out from the record.\r\nIn paragraph 13 of the affidavit in support of the motion, it is averred that the respondent company through its solicitors requested for a two week period to revert to the petitioner.\r\nAt least from Ex "NLC 11", the Respondent''s counsel had advised an out of court settlement in respect of the petitioner''s entitlement but not acceptance to pay what is contained in Ex "NLC 10" as the petitioner''s entitlement.\r\nIn the affidavit in opposition, the Respondent in paragraph 11 averred —\r\n"That in answer to Ex "NLC 10", the Respondent says that even if the recommendations were right, which is denied, the need for the proof of entitlement would have required evidence to be taken	\r\nIn paragraph 10, the Respondent averred that Ex "NLC 10" is self serving and therefore of no evidential value, the calculation of the petitioner''s entitlement is false. The Respondent before the High Court therefore disputed the entitlements as contained in Ex "NLC 10".\r\nThe case of IBRAHIM VRS ABUBAKARI [2001 -2] 1 GLR cited by counsel in support of his point with due deference to counsel is inapplicable in the instant case.\r\nAgain, the analogy drawn by counsel for the Appellant is misconceived and cannot sustain his case as argued and demonstrated by Respondent''s counsel.\r\nThis ground of Appeal also fails and same is dismissed.\r\nGround (iii) which should have been argued first would have disposed of the appeal. This ground of appeal attacks the court of Appeal decision affirming that of the High Court that the Appellant did substitute its own case for that of the petitioner.\r\nThe petitioner having been charged under Regulation 144 (iv) with an offence of fraud and other acts of dishonesty, the commission in investigating the petition, proceeded under Regulation 206 (b) of staff Rules and Regulations. Regulation 206 (b) is headed concealment of facts and reads as follows:\r\n \r\n14\r\n \r\n"Concealment of facts or any intentional false statement will be considered a sufficient ground for non-employment or for subsequent termination of employment."\r\nThe commission came to a conclusion that what the petitioner did amounted to a breach of the above Regulation hence its decision that his dismissal should be converted to termination under the Regulation.\r\nCounsel for the appellant contends that in determining a dispute, submitted to it, the commission is not bound to adopt any earlier proceedings involving the parties. That the commission was to hear the matter in the exercise of its statutory Jurisdiction under section 138 of the Labour Act. Among the functions of the commission is the settlement of Industrial disputes.\r\nCounsel submitted that it was erroneous for the Court of Appeal to hold that because the appellant disagreed with the respondent''s board of enquiry''s conclusions and decided the matter before it in its own way, on the authority of DAM VRS J.K. ADDO and Brothers [1962] 2 GLR 200, the Appellant substituted its own case for that of the petitioner.\r\nCounsel submitted that in hearing the matter submitted to it therefore the commission was entitled to look at the matter de novo and reach its own conclusions. It is the case of the commission that as earlier submitted, if the commission acted in error at all, the Respondent''s remedy was to appeal and not to raise it as a defence in an enforcement proceedings.\r\nIn reply, counsel for the Respondent stated the principle of law as laid down in DAM VRS ADDO already referred to.\r\nCounsel submitted that the Appellant fell into a grave error when it substituted the charge for which the Respondent proceeded against the petitioner by basing their decision on regulation 206 of the Staff Rules and Regulations instead of regulation 144 under which the petitioner was charged and investigated.\r\nRegulation 206 was not relied on by any of the parties.\r\nIn the case of DAM VRS ADDO the Supreme Court as at the time held that:\r\n"A court must not substitute a case proprio motu, nor accept a case contrary to, or inconsistent with that which the party himself puts forward, whether be the plaintiff or the defendant."\r\nThe Appellant had sued the Respondent in the High Court for accounts and for money due and owing to him. The trial Judge after the consideration of the respective cases of the parties, resolved the issues as set out in the summons for directions and thereby rejected the respondent''s case. He did not however give\r\n15\r\n \r\njudgment for the appellant but gave judgment for the Respondents basing himself on details on which no evidence had been adduced since they did not form part of the Respondent''s case as disclosed by the pleadings.\r\nIn the proceedings before the commission, no reference was made to regulation 206 (b) of the Staff Rules and Regulations. The petitioner''s petition was against unfair dismissal based upon fraud or other acts of dishonesty. Fraud because he has misrepresented to the Respondent that he obtained his "0" and "A" Level certificates from Benkum Secondary School, a representation he well knew to be false.\r\nThe issue which the commission was called upon to determine is whether or not the petitioner''s dismissal was unfair.\r\nThe commission from its report, found as a fact that the petitioner gave a false information with regard to a secondary school he claimed he attended and obtained his "A" and "0" Level Certificates. What it should have decided upon was whether the dismissal was unfair or not.\r\nThe commission had no Jurisdiction to prefer its own charge against the petitioner and proceed against him for an offence for which he was not charged.\r\nThe Appellant''s contention that under its statutory Jurisdiction, the Appellant is not bound to adopt any earlier proceedings involving the parties and that it was entitled to look at the matter de novo is fallacious and untenable.\r\nThe commission could not substitute a case of its won for the petitioner and adjudicate on it when the dispute between the petitioner and the Respondent was not based on concealment of facts as laid down under regulation 206 (b).\r\nTo condemn the Respondent under regulation 206 (b) and order it to terminate the petitioner''s appointment instead in conformity with the said regulation will be acting without jurisdiction and a denial of justice for not giving the Respondent on opportunity to be heard on that charge.\r\n"To condemn a person on a ground of which no fair notice has been given may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded." Dictum of Lord Normand in ESSO PETROLEUM CO. LTD VRS SOUTH PORT CORPORATION [1956] A. C. 218 relied on and applied in DAM''s case.\r\nThis ground of Appeal does also not find favour with the court. Consequently, the appeal fails in its entirety and same is accordingly dismissed.\r\nIt is for these reasons that the court unanimously dismissed the appeal on 13-01 \r\n12.\r\n16\r\n \r\n(SGD) R. C. OWUSU (MS.) JUSTICE OF THE SUPREME COURT\r\n(SGD) G. T. WOOD (MRS)\r\nCHIEF JUSTICE\r\n(SGD) S. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) P. BAFFOE BONNIE JUSTICE OF THE SUPREME COURT\r\nCOUNSEL: \r\nTHADDEUS SORY FOR THE DEFENDANTS/ APPELLANTS.\r\nKWAKU GYAWU-BAFFOUR FOR THE PLAINTIFFS/RESPONDENTS.\r\n_ „„„,	•••••,,,;.,,\r\nc''t	\\ \\ __,-- r:,.1, II,. & '' -\r\n\\\\---"--\r\n\\\r\n,\r\n', '../links/cases/Document (217).pdf', 'Yes', 'BROBBEY, JSC, OWUSU (MS), JSC, YEBOAH, JSC, BONNIE, JSC.', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Labour Law - Wrongful dismissal - Order made by the National Labour Commission not followed - Application to High Court for enforcement of order - Whether the order must be evaluated before its enforcement - Whether court exceeded its jurisdiction in re-examining Commission''s proceedings - Labour Act, 2003, s.172</font></b></i><br>', ' WOOD (MRS), C.J.', 'Civil', '', 'J4/53/2010', '', '', 'supreme', '2012-01-13', ''),
(569, 'ANNA VICTORIA BART PLANGE  ---  PLAINTIFF/APPELLANT/APPELLANT\r\nVRS\r\nNANA EGYEI FOAH  ---  DEFENDANT/RESPONDENT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT OF JUSTICE\r\nACCRA 2011\r\nCORAM: ATUGUBA, JSC (PRESIDING)\r\nAKIJFFO (MS), JSC\r\nANIN-YEBOAH, JSC\r\nGBADEGBE, JSC\r\nAKOTO-BAMFO (MRS), JSC\r\nCIVIL APPEAL\r\nSUIT NO. 14/40110\r\nDATE: 23111) FEBRUARY, 2011\r\nANNA VICTORIA BART PLAN GE PLAINTIFF/APPELLANT/APPELLANT VRS\r\nNANA EGYEI FOAH	DEFENDANT/RESPONDENT/RESPONDENT\r\nLand Law	Proof of ownership of land	Whether land was acquired\r\nfraudently by the defendant - Possession of deed of conveyance by the\r\ndefendant for more than 20 years - Evidence Whether hearsay evidence adduced by plaintiff admissible in the face of the deed of conveyance Evidence Act, 1975,s. 130(2).\r\nIUDGMENT GBADEGBE ISC:\r\nThis is an appeal from the decision of the Court of Appeal that affirmed the decision of the High Court, Cape Coast in an action that turned on the ownership of a piece or parcel of land situate at Momofra Akyenim in the Central Region. It appears from\r\n \r\nthe judgment of the Court of Appeal that the leaned judges accepted the determination of the trial High court. Delivering the judgment of the court, Piesare JA (as he then was) said by way of a comment on the appeal before them as follows:\r\n"At the end of the day, the trial judge gave a straightforward and comprehensive judgment dismissing the plaintiff-appellant''s daim, and entered judgment in favour of the defendant on his counterclaim. We have carefully examined the judgment, and we have no good reason to disturb that judgment."\r\nIn our view the facts that led to the issue of the writ of summons herein in the trial court were as said by the learned judge of the Court of Appeal whose pronouncement has just been quoted relatively simple and turned on the question as to who owned the disputed land that on the admitted evidence was first acquired\r\nby the plaintiff''s family by purchase. The defendant while admitting the prior ownership of the plaintiff''s family pleaded a grant from the family to his predecessors in title on September 22, 1944. The said transaction of sale on which the defendant relied was covered by a deed that was registered as No 273A/1945. The relevant pleadings of the defendant on how they came to be possessed of the disputed land was averred to in paragraphs 7-10 of the statement of defence, which in our view provided the plaintiff with what we consider to be a full and frank disclosure of the reason why their claim of title to the land was being resisted. Reference is made shortly afterward in this delivery to the relevant pleadings for a better appreciation of the very narrow compass within which the action ought to have been contested in the trial court having regard to the case put forward by the parties. Since the defendant admitted the prior ownership of the plairil-iff but relied\r\n \r\non a purchase by his ancestors from the plaintiff''s predecessors in title, we think that the right to begin at the trial rested on the defendant and accordingly in considering the pleadings filed on their behalf in the trial Court, we commence with that of the defendant. The relevant pleadings of the defendant that answer the plaintiff''s averment as to title that is asserted in paragraph 4 of the statement of claim is contained in the following paragraphs.\r\n"7. In answer to paragraph 4 of the statement of claim, Defendant says that his great grand fathers; Atekye Panyiri, Nana Amba Kainbah and John Braham all Atekyem Quarters and members of the Anona family of Elmina acquired the land in dispute from Jacobus Vanderpuye Neizer and Elizabeth Ackon ekes Essi Kuhr! of Elmina.\r\n8.	Defendant further says that the said Jacobus Vanderpuye Neizer and\r\nElizabeth Ackon alias Essi Kuhr/ acted for and on behalf of the late Kwamina Amissah, Anona family of Elmina.\r\n9.	Defendant further says that his (Defendant) great grandfathers aforementioned in consideration of the land in dispute paid (twenty six pounds), a receipt for which was issued by the vendors and a deed of conveyance was then executed on September 22, 1944 to the purchasers and registered as No 273A /1945.\r\n10.	Defendant says that the land in dispute after its acquisition by the purchaser in 1944 became the property of the Nana Egyei Foah Anona family of Elmina and the family has since exercised uninterrupted right and control over same."\r\nParagraph 4 of the statement of claim to which the above pleadings refer was expressed as follows:\r\n \r\n"The said land was acquired in the late 15rn century by plaintiff''s ancestor George Emissang aka Kwamina Amissah who was a lawyer by profession."\r\nIn our thinking at the close of the pleadings the crucial issues for determination were correctly set out by the learned trial judge in the course of his judgment at page 164-165 of the record of appeal. We make reference in this regard to page 164 where the learned judge observed of the issues that turned on the pleadings for his determination as follows:\r\n"Basically, there are three issues, which issues are whether or not Jacobus Vanderpuye Neizer and Elizabeth Ackon Essi Kubil, members of the plaintiff, had alienated portions of the land, which land, ie the subject matter of the present suit If so whether or not they had the capacity to allenate the land Whether or not the land was given to the Defendant''s ancestor to cultivate coconut thereon. There is the issue whether or not the defendant had perpetrated fraud."\r\nThe learned trial judge then mentioned other issues for determination that included that of estoppel by the judgment in the case of Mary Conduah v Adzaye that was placed before him as part of the plaintiff''s case. Clearly the learned trial judge appreciated the nature of the task before him and we find no fault with the manner in which he set out to determine the issues for trial. After what we consider to be a careful evaluation of the evidence the learned trial judge accepted the defendant''s version of the matter in preference to that of the plaintiff. The evaluation to which we refer is found at pages 164 to 167 of the record of appeal. In partirular, at page 167 he observed by way of his concluding remarks of the respective cases of the parties as follows:\r\n \r\n"In this case the plaintiff did not adequately prove the boundaries of the land he is claiming, neither has he been able to show that his ancestors gave the land to Kweku Mensah to plant coconut It is not enough for a plaintiff to make certain depositions of fact in his statement of claim and mount the witness box to repeat those assertions without evidence of any corroborative evidenc3 in proof of his assertions. Consequently, I will dismiss the plaintiff''s claim in its entirety and therefore make a declaration in favour of the defendant to that entire piece or parcel of land situate lying between Mboframa and Akwandah, the boundaries of which are in exhibit 2. The defendants are already in possession of the land so there is no need to make an order of recovery of possession."\r\nWe think that the learned judges of the Court of Appeal came to the right conclusion on the evidence by dismissing the appeal. Having alleged by way of answer to the defendant''s claim to have acquired the land fraudulently, in the face of the due execution of the deed of conveyance and its proof before the Registrar of the Divisional Court, Cape Coast on 27 September 1944, we think that his failure to introduce any evidence to sustain the said crucial averment fractured his denial of the purchase on which the defendant relied and rendered his adversary''s case more probable than that which he asserted before the trial court. It appears that on the evidence and the recent acts of possession that were exercised on the land by the defendant, which acts were traceable to the purchase that they relied on the entire evidence pointed hugely in the direction of a verdict in favour of the defendant. It is observed that the document on which the defendant relied having been in existence for more than twenty years and acted upon by the possession of the\r\n \r\ndefendant rendered it a document that comes within the designation of an ancient document under section 130(2) of the Evidence Act, NRCD 323 which provides thus:\r\n"Evidence of a hearsay statement that is not made inadmissible by section 117 if the statement is contained in a writing more than 20 years old and the statement has since been acted upon as true by persons having an interest in the matter."\r\nWe are of the opinion from the admitted evidence that the defendant''s family have been on the land for several years consequent upon the grant to them by the predecessors in title of the plaintiff and this must explain why the plaintiff was unable to call any evidence to support his allegation that their family had granted the land to a member of the family of the defendant to cultivate coconut thereon as a tenant. It is surprising from the evidence that the plaintiff was unable to call any other evidence to support his claim that the coconut plantation was made on their land and that there was at the date he testified in the matter arrears 01 ground rent owing to their family in respect of the farm.\r\nThen there is the issue relating to the fact that the decision on appeal to us is one in which the Court of Appeal had affirmed the trial Court on findings of fact that turned on the pleadings. In line with settled judicial pronouncements, to succeed before us the plaintiff is required to satisfy us that the decision of the Court of Appeal that confirmed that of the trial court on issues of fact was one that contained an error or blunder resulting in a miscarriage of justice. We refer in this regard to the case of Achoro v Akanfela [1996-1997] SCGLR 209 per Acquah JSC (as he then was) at page 212 as well as Jass Co Ltdv Appau [2009] SCGLR 208.We have carefully read the statement of case submitted to us by the plaintiff on the grounds contained in the notice of appeal that originated these proceedings and\r\n \r\na\r\nhave come to the opinion after considering the record of appeal that there is no error or blunder that has the slightest effect of a miscarriage of justice. On the whole, we are satisfied with the decision of the Court of Appeal in the matter herein.\r\nWe say in regard to the purely legal ground of appeal that is numbered as one in the notice of appeal, which seeks to call in question the court''s reliance on exhibits 1 and 2, the receipt for the purchase of the land and the deed of conveyance that the substance of the complaint that touches and concerns the non-compliance with provisions of the Stamp Act as well as the Public Records and Archives Administration Act, (Act 535) of 1997 that the issues raised by the said points were correctly expounded by the Court of Appeal and accordingly we shall spend no further time in considering them. We add that the document having been in existence before the coming into being of the two statutes, the presumption against statutory retroactivity applies to them.\r\nOn the appeal generally, we have observed that the grounds of appeal to this court that is contained at page 240 Of the re cord of appeal is a repetition of those that were previously filed in the Court of Appeal at page 168 of the record of appeal before the Court of Appeal save that where there was in the previous notice a reference to the trial court in the new one the words "Court of Appeal" have been substituted. Having come to the view that the decision on appeal to us was right, we think this is sufficient to dispose of the instant appeal for the reasons above.\r\n \r\nThe result is that the appeal herein is dismissed and we proceed to affirm the\r\ndecision of the Court of Appeal.\r\n[SGD]	S. GBADEGBE J.S.0\r\nJUSTICE OF THE SUPREME COURT\r\nANIN YEBOAH JSC: \r\nI am unable to sit with my colleagues in this case as I have to travel to Kumasi to\r\nAttend to other "judicial" matters. I, however, agree with the opinion of my learned\r\nbrother Justice Gbadegbe that the appeal be dismissed.\r\n[SGD]	ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	W. A. ATUGUBA\r\nJUSTICE OF THE SUPREME COURT\r\n[SGD]	S. A. B. AKUFFO (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n[SGD] V. AKOTO-BAMFO\r\nJUSTICE OF THE SUPREME COURT\r\n \r\nCOUNSEL:\r\nMAXWELL HALM REPRESENTS THE APPELLANT.\r\nHANkY WILLIAM KOBINA RESPONDENT PRESENT.\r\nJOHN MERCER (WITH COSMOS ANDOH) FOR THE APPELLANT. MICHAEL ARTHUR-DADZIE FOR RESPONDENT.\r\n', '../links/cases/Document (218).pdf', 'Yes', 'AKUFFO (MS), JSC, ANIN-YEBOAH, JSC, GBADEGBE, JSC, AKOTO-BAMFO (MRS), JSC.', '2011', 'supreme', '<i><b><font face="Times New Roman" size="3">Land Law - Proof of ownership of land - Whether land was acquired fraudently by the defendant - Possession of deed of conveyance by the defendant for more than 20 years - Evidence - Whether hearsay evidence adduced by plaintiff admissible in the face of the deed of conveyance - Evidence Act, 1975, s. 130(2).</font></b></i><br>', 'ATUGUBA ,J.S.C', 'Civil', '', 'J4/40/10', '', '', 'supreme', '2011-02-23', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(570, '1. DUODU AMOO\r\n2. MADAM NAADU  ---  PLAINTIFFS/RESPONDENTS/RESPONDENTS\r\nVRS\r\n1. BERNARD NIMAKO AKOWUAH\r\n2. SAMUEL NII OTU ANKRAH  ---  DEFENDANTS/APPELLANTS/APPELLANTS', 'IN THE SUPERIOR COURT OF JUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA\r\nCO RAM: WOOD (MRS) C.J, (PRESIDING)\r\nBROIIBEY, JSC\r\nOWUSU (MS.), JSC\r\nYEBOAH, JSC\r\nBONNIE, JSC\r\nCIVIL APPEAL\r\nNO 14/3612011\r\n13111 January, 2012\r\n\r\n	\r\n\r\nPractice and procedure— Execution of bail bond by illiterate— Whether due process was followed in the execution—Proof— Onus on party who seeks to bind the illiterate to document— Irregularities in document—Whether illiterate was a surety.\r\nExecution of Judgment Debt— Process that must be followed for due execution of debt— Error found in the initial entry ofjudgment— Duty of court to correct the error— Supreme [High] Court Civil Procedure Rules LN 14011, 1954, Order 28, Rules 11&12.\r\nJUDGMENT ANIN YEBOAH, ISC:\r\nThe facts of this appeal appear not to be in serious controversy. One Samuel Nii Otoo Ankrah commenced an action against one Joshua Kpakpo Allotey at the High Court, Accra. Before the case could be disposed of the plaintiff Samuel Nil Otoo Ankrah applied for absconding warrant against the said Joshua Kpakpo Allotey as he had information\r\n \r\nthat he was preparing to leave the jurisdiction. It was granted by Her\r\nLadyship Justice Emelia Aryee.\r\nThe claim was for refund of an amount of US$8, 850. The defendant in\r\nthat case was arrested with the warrant and was granted bail in the sum\r\nof 01,500,000.00 with two sureties.\r\nTwo persons namely: Eugene Darko Amoako and Benjamin Akwei\r\nAllotey executed bail bonds as sureties for Joshua Kpakpo Allotey. The\r\ntwo bail bonds were tendered in evidence at the trial court in this case.\r\nThe two sureties were named in exhibits Fl and F2. Exhibit F was the\r\nbail bond while exhibits Fl and F2 were the justification of sureties''\r\nforms. Exhibit F2 which was executed on the 3/12/1987 the same day\r\nexhibits F and Fl were executed, was amended by the cancellation of\r\nthe name and residential address of Benjamin Akwei Allotey and the\r\ninsertion thereof of the name of ADJIN OKWABI with his residential\r\naddress. There were other serious irregularities bordering on the\r\nthumbprint affixed to exhibit F2 and signature of Benjamin Akwei Allotey\r\nwhich was made before the purported amendment.\r\nIt was apparent that even though the name Benjamin Akwei Allotey was\r\ncancelled, his signature as one of the two sureties stood. Be that as it\r\nmay, the case against the said Joshua Kpakpo Allotey ended with a\r\n \r\nsummary judgment by which the defendant in that suit Joshua Kpakpo\r\nAllotey was adjudged to pay an amount of 02,508,903.28 inclusive of\r\ninterest and cost.\r\nIn the process of levying execution of the judgment against Joshua Kpakpo Allotey, H/N2 B182/12 Odorkor, Accra owned by Adjin Okwabi at\r\nthe time was sold at a public auction and purchased by one\r\nB.N.AKOWUAH who is the appellant in this appeal. The respondent\r\nherein who described herself as the beneficiary of the property sold at\r\nthe auction brought an action at the High Court, Accra to set aside the\r\nwrit of possession which culminated in the sale, declaration of title and\r\nrecovery of possession of the auctioned house and other ancillary\r\nreliefs.\r\nThe statement of claim and the evidence led appeared to be very brief.\r\nIn the statement of claim the respondent herein pleaded that in suit\r\nnumber 3626/87, one Samuel Nil Otu Ankrah as plaintiff was adjudged\r\nto recover a certain amount of money as judgment debt from Joshua\r\nKpakpo Allotey as defendant in a suit at the High Court, Accra. It was\r\nfurther pleaded that the entire judgment debt was paid to the said\r\nSamuel Nii Otu Ankrah (defendant/judgment-creditor), nevertheless he\r\nproceeded to levy execution against the property of Adjin Okwabi\r\nostensibly to satisfy the judgment debt.\r\n \r\n\r\nThe auction of the house numbered as B. 182/12 Odorkor, Accra took place and same was bought by one Bernard Nimako Ankowuah The evidence of the respondent sought to establish the relationship between her later father Adjin Okwabi and Joshua Kpakpo Allotey as uncle and a nephew. It does appear that the respondent herein is the cousin of Joshua Kpakpo Allotey. It was contended in her evidence that the entire judgment debt was paid before the auction sale was conducted out of which the appellant herein bought the house in dispute.\r\nThe defendant/judgment-debtor in the earlier suit one Joshua Kpakpo Allotey also gave evidence for the respondent herein and sated that he had to complete exhibits F, Fl and F2 in connection with the bail and was advised not to leave the jurisdiction until the said suit had been determined.\r\nIt was to secure his presence that his uncle Adjin Okwabi used his own house as security. According to him he had as at 31/1/1989 paid the entire judgment debt by sending money on regular basis from the United States of America for the defraying of the judgment debt as it appeared on the face of the entry of judgment filed on behalf of the judgment- creditor in that suit. Joshua Kpakpo Allotey (PW1) tendered exhibit M which is a statement of accounts of the payments made to the judgment/creditor in the earlier suit and claimed that he did not receive\r\n \r\n\r\nany reaction from the judgment/creditor.	His evidence on the\r\nsatisfaction of the judgment debt was corroborated by PW1 who\r\ntendered exhibit N and the Entry of Judgment [exhibit E] and an\r\namended Entry of Judgment subsequently filed as exhibit P which amended the judgment debt to 04, 413, 913.75 instead of the 02, 508,\r\n903. 28.\r\nOn the part of the appellant herein his case was very simple. In his\r\npleadings and the evidence led at the trial, he contended that H/1\\12\r\nB182/12 Odorkor, Accra was purchased by him at a public auction\r\nauthorized by a curt of law and had no notice of any interest in the property. He further contended that the judgment debt for which\r\nexecution was levied had not been paid and called a witness to give\r\nevidence of several unsuccessful attempts to set aside the sale.\r\nGiven the nature of the pleadings, few issues emerged for\r\ndetermination.	The learned trial judge in her judgment entered\r\njudgment in favour of the respondent herein declaring the sale unlawful\r\nand further, there was no liability incurred by the respondent as regards\r\nthe bail bond, as to her, the said Joshua Kpakpo Allotey attended court up to the finality of the case. Another point on which the respondent''s\r\nclaim was upheld was that there were serious irregularities apparent in\r\nexhibit F2 (Justification of Sureties) which according to the learned trial\r\n \r\n\r\njudge was not executed by Adjin Okwabi as it did not bear his thumbprint as an illiterate as required by law. She also found that the cancellation of the name of Benjamin Akwei and substitution thereof of Adjin Okwabi amounted to "definite irregularities in the whole execution" to hold Adjin Okwabi liable. The learned trial judge was of the view that the liabilities of the sureties was to the tune of 01,500,000.00 which they offered to pay upon default on the part of Joshua Kpakpo Allotey as spelt out in the bail bond executed by the sureties. Lastly, the Amended Entry of Judgment out of which the execution was levied was declared void by the trial judge.\r\nThe appellant herein lodged an appeal at the Court of Appeal on several grounds. The Court of Appeal on 29/07/2010, in a judgment which virtually sought to endorse all the fact findings and the law applied by the trial judge unanimously dismissed the appeal. This appeal before this court is the second appeal. Learned counsel for the appellant has filed three grounds of appeal to seek the reversal of the judgment of the Court of Appeal which affirmed the judgment of the High Court.\r\nIn arguing the first ground of appeal, learned counsel for the appellant disputed the concurrent finding by the two lower courts that the judgment debt was not fully paid. He attacks the Court of Appeal and the High Court''s judgments on the grounds that the two lower courts did not\r\n \r\n\r\naddress their minds to the fact that contrary to their finding that the whole judgment debt had been paid, paragraph 3 of the statement of claim in this case stated expressly that the judgment debt was paid during the pendency of this case at a time when the appellant had already bought the house. In as much as I agree with counsel that a party is bound by his pleadings the evidence led which in this case was basically documentary, established conclusively by reference to the payment made as per exhibits "G", "H", "J", "K", "L" and "M" that as at 31/1/89 the amount of 02,508,91 0.00 had been paid.\r\nIf indeed the whole amount of the judgment debt had not been paid before the execution was levied the sale would on that ground be regular and the appellant would have obviously raised this in the statement of defence. It was an issue set down in the summons for directions after close of pleading which was resolved in favour of the respondents based on the uncontroverted documentary evidence on record. As the trial judge found as a fact based on the evidence, which was concurred by the Court of Appeal, this court can only reverse the concurrent findings if the appellant demonstrates convincingly that the findings were not supported by the evidence. See ACHORO V AKANFELA [1996 - 7] SCGLR 209 and OBRASIWA II & ORS V OTU & ORS [1996-7] SCGLR\r\n618.\r\n\r\nAs this court concurs in the two lower courts finding that the judgment debt had been fully paid before the execution, the learned trial judge was right to declare the sale to the appellant void. In KARIMU V GHASSOUB [1970] CC 104 CA, a judgment debt of £1,816.00 in a previous suit was left unpaid and the judgment-creditor sought to levy\r\nexecution by fi.fa for the unpaid amount. The house was sold at a public auction. Unknown to the purchaser, the entire judgment debt had been paid two days before the auction sale, the money having been paid in two installments to the judgment-creditor''s solicitor. The High Court set aside the sale. On appeal, the defence of the appellant was that he was a bona fide purchaser for value without notice and that the sale was not void ab initio. In dismissing the appeal, the Court of Appeal held that the purpose of issuing a writ of fi.fa is not necessarily to sell the property of the judgment-debtor but to compel the judgment-debtor to pay the judgment debt and as the judgment debt had been paid in full before the sale, the execution was not void ab initio but was void ex post facto and passed no title to the purchaser. The Court of Appeal proceeded to lay down the law that the legal right to seize the property by way of writ of fi.fa ceased to exist after payment of the judgment debt in full. On this ground the court below was right in holding that the sale was void. In this case the judgment debt had been paid in full as at 31/1/89 and the "Notice of filing of Accounts pursuant to Order" of the court was filed on 2/3/89 before the sale took place on 12/06/1989, more than three\r\npg. 8\r\n \r\n\r\nmonths after the payment of the entire judgment debt. It stands on the authority of the above-cited case that the sale was obviously void and passed no title to the appellant who claims to be purchaser for valuable consideration. See KWABENAVANINKORA & OR [1964] GLR 299 SC\r\nAnother ground which was argued touches on exhibits "F", "Fl" and "F2" out of which the learned judge at the High Court found as a fact that the said Adjin Okwabi was not a surety in the case in which his nephew Joshua Kpakpo Allotey was arrested. The Court of Appeal also concurred on this and stated that exhibit "F2" stood contradicted and it was void as it did not in any case create any legal obligations on the said Adjin Okwabi. The two lower courts both advanced convincing reasons to support this finding. This was what the Court of Appeal said:\r\n"Now on the question of the sureties, from the evidence and exhibits F,F1 it is clear the plaintiff''s deceased father was not one of the sureties. However, on exhibit F2 one of the names on the Justification of Sureties was cancelled and the name of Adjin Okwabi written at the top and the address again at the top of the cancelled one. Here the crucial point is at the bottom of the form, and in place of the signature of Benjamin Akwei Allotey one of the original sureties, there is the writing "thumbprint" but indeed there was no thumbprint, (Adjin Okwabi being illiterate) which in effect\r\n \r\n\r\nmeant he had not executed it an it also still had the signature of\r\nthe surety who had earlier executed it. There were definite \r\nirregularities in the whole execution process which proved to be\r\nfatal"\r\nIt is settled on authorities like ZABRAMA V SEGBEDZI [1991] 2 GLR\r\n221, CA, BOAKYEM V ANSAH [1963] 2 GLR 223 and WAYA V\r\nBYROUTHY [1958] 3 WALR 413 that to bind an illiterate to a document\r\nevidence must be led to prove that same was read and interpreted to the\r\nilliterate in the language he understands before he made his mark or\r\nthumbprint. The onus is always on the party who wants to bind the\r\nilliterate to the document.\r\nIn this case, both courts from the evidence found as a fact that the cancellation of a court process and the serious irregularities associated\r\nwith document like non-execution of the bond by Adjin Okwabi makes the document bad in law as Adjin Okwabi never was not a surety as he\r\nnever executed the bail bond or the justification of sureties. These\r\nfindings are supported by the evidence and I think no convincing\r\nreasons have been urged on this court for us to set aside those findings.\r\nAn official court process or document like bail bond or Justification of\r\nSureties should be free from irregularities to leave no one in doubt that\r\n \r\n\r\nthe surety executed the bond. Cancellations and lack of signature or thumbprint or mark apparent on the face of the document as happened in this case would create serious doubts as to its authenticity in the minds of jurists as it occurred in this case.\r\nThe last ground of appeal which was argued was the finding by Court of Appeal that the appellant was not entitled to the sum stated on the Amended Entry of Judgment. In practice, judgment —creditors seeking to levy execution file Entry of Judgment and serve same on the judgment-debtor as a prelude to execution. It is a formal notification to the judgment-debtor of the reliefs granted by the court which the judgment-creditor may seek to enforce. Under the rules of court as it then stood after the judgment was delivered the judgment-creditor was enjoined by Order 41 rr 1,3 and 5 to officially notify the judgment-debtor the terms of the judgment and what was due to be paid. See NORA STORES V UNION INDUSTRIES (GHANA) LIMITED [1969] CC 123 and OTU & ORS V SOKODE [1969] CC 66 CA. In this case the judgment-debtor paid what he was requested to pay as per the Entry of Judgment served on him and subsequent to the payment in full filed a Statement of Account Pursuant to the order of the court on 21/3/1989 and same was tendered as exhibit "M" at the High Court. The Entry of Judgment filed later by the judgment-creditor in that suit was an Amended Entry of Judgment (exhibit "10") which computed interest on\r\n \r\n. 		•\r\n \r\nthe judgment debt which according to the learned High Court judge was\r\nalmost double the original amount on the first Entry of Judgment. The\r\nlearned trial judge did not find out when it was served. It is not clear on\r\nrecord whether it was indeed served on the said judgment-debtor\r\nJoshua Kpakpo Allotey to make him officially aware of the new amount\r\nhe was supposed to pay, even if he was to pay same.\r\nIt is not on record whether the judgment-creditor sought leave of the\r\ncourt to amend such a vital process in execution. Under the then\r\nexisting rules, the Supreme [High] Court Civil Procedure Rules LN 140\r\nA, 1954, Order 28 rules 11 and 12 required accidental slips and\r\nomissions to be amended by motion or summons. Indeed learned\r\ncounsel for the appellant in his written submissions in this appeal stated\r\nas follows:\r\n"There is no doubt that the ruling of Miss Aryee J found at RA/221-\r\n223 contained an error affecting the quantum of the judgment-\r\ndebt"\r\nAssuming without admitting, that here was an error in the initial Entry of\r\nJudgment, such error should be corrected by the judicial process. In my respectful view, a judgment-creditor who discovers his error in filing such\r\na vital process should not be permitted to amend the process on his own\r\n \r\nmotion without resort to the judicial process by invoking the court''s jurisdiction to correct the slip or omission through amendment with notice to the judgment-debtor who is the affected party. Unilateral step to amend the entry of judgment as it happened in the case should be frowned upon. Another vital point raised by the trial court was that there was no evidence of service. Indeed learned counsel for the appellant has not been able to point out when the said Joshua Kpakpo Allotey was served with the Amended Entry of Judgment.\r\nI find to miscarriage of justice in any manner or form in this appeal to warrant the reversal of the judgment of the Court of Appeal which affirmed the judgment of the High Court. I therefore proceed to dismiss the appeal.\r\n(SGD) ANIN YEBOAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) G. T. WOOD (MRS.) CHIEF JUSTICE\r\n(SGD) S. A. BROBBEY\r\nJUSTICE OF THE SUPREME COURT\r\n \r\n(SGD) R. C. OWUSU (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SO) P. BAFFOE-BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL\r\nKWAMENA BAIDEN FOR THE 1.51- APPELLANT.\r\nALBERT ADAARE FOR THE 2ND RESPONDENT.\r\n, , 410t	kfh /41:-‘1\r\n\\	-\r\nI "‘	c''C	r“.\r\n—\r\n', '../links/cases/Document (219).pdf', 'Yes', 'BROBBEY, JSC, OWUSU (MS), JSC, YEBOAH, JSC, BONNIE, JSC.', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Practice and procedure - Execution of bail bond by illiterate - Whether due process was followed in the execution - Proof - Onus on party who seeks to bind the illiterate to document - Irregularities in document - Whether illiterate was a surety.<br>Execution of Judgment Debt - Process that must be followed for due execution of debt - Error found in the initial entry of judgment - Duty of court to correct the error - Supreme [High] Court Civil Procedure Rules LN 140A, 1954, Order 28, Rules 11&amp;12.</font></b></i><br>', 'WOOD (MRS) C.J', 'Civil', '', 'J4/36/2011', '', '', 'supreme', '2012-01-13', ''),
(571, 'GABRIEL JOANNE  ...  APPELLANT\r\nVRS\r\nTHE REPUBLIC  ...  RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE COURT OF APPEAL\r\n(CRIMINAL DIVISION)\r\nACCRA\r\nCORAM: R.K. APALUO, J.A (PRESIDING)\r\nK.A. ACQUAYE, J.A	19TH MAY 2011\r\nADUAMA OSE!, J.A	H2/8/2011\r\nGABRIEL JOANNE	APPELLANT VRS\r\nTHE REPUBLIC	RESPONDENT\r\nCriminal law and procedure	Narcotic Offence	Appellant charged with\r\npossession of narcotic drugs	Narcotic Drugs (Control, Enjbrcement &\r\nSanctions) Law, ss. 56(a), 1(i) - Trial Mistake in charge sheet Non- amendment of mistake - Whether it occasioned substantial miscarriage of justice Criminal Procedure Code, s.112 (2).\r\nPlea	Change in appellant''s plea Accepting plea in the absence of attorney\r\nwhether Court committed procedural error— Criminal Procedure Code, s. 199.\r\nJUDGMENT K.A. ACQUAYE I.A.\r\nThis is an appeal against the conviction and sentence of ten years imprisonment with hard labour imposed on the appellant by the Fast Track High Court, Accra on 411, May 2010. The appellant was charged with attempting to commit an offence of exporting narcotic drugs without licence contrary to sections 56(a) and 1(i) and possession of narcotic drug without licence contrary to Section 2(i) both of Narcotic Drugs (Control, Enforcement and Sanctions) Law PNDCL 236 of 1990.\r\n \r\n\r\n \r\nThe facts of the case were that on 9th September 2009 the appellant and two others all said to be Americans arrived at the Kotaka International Airport to board a Delta Airline to the United States of America. While going through pre-departure formalities for the flight officials of Narcotic Control Board suspected them of carrying narcotic drugs and conducted a search on them. The search revealed a powdery substance suspected to be narcotic drugs hidden in their pants, the soles of their shoes, and the 2'' and 3rd female accused persons in their vagina. On interrogation they admitted the offence and mentioned one Alhaji in Accra as their source of supply. The suspected drugs were sent to the Ghana Standards Board in Accra for analysis and the tests proved positive for narcotics hence the three were charged with the offences.\r\nOn their arraingment before the Fast Track High Court in Accra the 1st and 2nd accused persons pleaded not guilty but the 3rd accused who is the appellant herein refused to plead in the absence of her lawyer so they were all remanded in custody. On their second appearance before the court, the 3rd accused person then represented by a lawyer pleaded not guilty when the charges were again read to her and they were remanded in custody. The record of proceedings indicate that on 28th January 2010 when the accused persons were brought to the court their counsel pleaded for a short time to reconsider their pleas and the case was adjourned to 3rd February 2010. On the next adjourned date the 1st and 2nd Accused persons who appeared by their old Lawyer pleaded to change their pleas and on the charges being re¬read and explained to them, the 1st and 2nd persons changed their pleas and pleaded guilty to the two charges. They were accordingly convicted on their own pleas and sentenced to 10 years imprisonment on each count.\r\n \r\n\r\n \r\nThe 3rd accused now the appellant who was represented by a new lawyer had her case adjourned to 23'' February 2010. On that day the prosecution called their first witness who was cross-examined by the appellant''s lawyer and the case adjourned to 10th March 2010 for continuation. There is no record in the record of proceedings as to what transpired in March and June 2010 but on 4th May 2010 the appellant appeared in court without any lawyer and informed the court that she wanted to change her plea. The charges were re-read to her\r\nto which she changed her two pleas to guilty and was accordingly convicted on her own pleas and sentenced to 10 years imprisonment with hard labour to\r\ntake effect from the day of her arrest. The court also ordered that she should\r\nbe deported from the country after serving her sentence.\r\nIt is against this background that the appellant has filed five grounds of appeal\r\nwhich are:-\r\na)	The facts of the case do not support the charge levelled against the\r\naccused person.\r\n\r\nb)	The charge sheet was incurably bad and could not be the basis of the\r\nappellant''s conviction and subsequent sentence.\r\nc)	The learned judge erred when he accepted the plea of the appellant in\r\nthe absence of her counsel after she had refused to plead to the\r\ncharges.\r\nd)	The appellant never intended to plead guilty to any charge as she had\r\nwritten in her statement to the police and for that matter to the\r\nprosecution that she knew nothing about the drugs.\r\n \r\ne) The appellant did not understand the proceedings at the court below in that she is only 21 years, a U.S.A national as well as a student and she was without any relative in court or in Ghana.\r\nArguing the first ground of appeal that the facts do not support the charges Counsel stated that the kind of drugs was not stated in the particulars of offence and the facts. Counsel also stated that the facts suggest that each suspect''s drug was independent of the other yet the particulars stated all the three suspects held 491.8932 grams together as they walked. Counsel submitted that since two of the three suspects had pleaded guilty to carrying the 491.8932 grams of drugs, the facts are different from what the appellant was charged with and it is wrong in law for the appellant to plead guilty to a charge not supported by the facts. In his answer the Principal State Attorney admitted the error in not mentioning the kind of drug the suspects were carrying in the charge sheet but submitted the error was cured by the evidence of PW! and that it did not occasion a miscarriage of justice.\r\nIn page 76 of A.N.E. Amissah''s Criminal Procedure in Ghana the author Paraphrased Section 112(2) of the Criminal procedure Code Act 30/60 as "the statement [of offence] must describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and if the offence is one created by enactment must contain a reference to the enactment". Under "particulars of offence" the learned author wrote at page 77 "it is necessary to state under this head such particulars of the offence as may be necessary for\r\n \r\ngiving reasonable information as to the nature of the charge". The statement\r\nof offence of count one on the charge sheet of the appellant stated\r\n"Attempt to commit an offence of exportation of narcotic drugs without a licence issued by the Minister of Health contrary to sections 56(a) and 10) of the Narcotic Drugs (Control Enforcement and Sanctions) Law 1990 (PNDCL 236)".\r\nThe particulars of offence of count one also stated\r\n"1)	Shadrak Bamfo Ntiamoah: Fire Officer.\r\n2)	Abena Serwaa: Student.\r\n3)	Gabriel Joanne: Student.\r\nOn the 9th September 2009 at the Kotaka International Airport in the Greater Accra region and within the jurisdiction of this court attempted\r\nto export to the United States of America 491.8932 grams of cocaine a\r\nnarcotic drug without licence issued by the Minister of Health".\r\nThe statement and particulars of offence of Count Two were couched in similar fashion. An examination of the two counts show that they describe the offences and give particulars of the offences as to give reasonable information on the nature of the charges faced by the three accused persons. The particulars mentioned the type of drug carried by the accused person as cocaine. Before the Criminal Procedure Code Amendment Act 361 of 1965 there were authorities to the effect that if an essential particular was omitted from the particulars of offence on the charge as laid, the conviction had to be\r\nquashed on appeal as the accused would have been convicted on a non-existent charge. In the case of Andoh and Another vrs The Republic (1970) CC 42 the Court of Appeal considered what was meant by a "defect" in the particulars and held that the word should be given its ordinary dictionary meaning, namely "lack of something essential to completeness". In the words of A.N.E. Amissah if the omission does not cause any embarrassment or prejudice to the accused person''s case and the defect is cured by the evidence adduced at the trial the courts are bound to dismiss an appeal on this ground because no substantial miscarriage of justice would have been occasioned thereby". As already stated the particulars of offences stated the drug carried as cocaine but PW1 stated in his evidence that the drug carried was heroin. Even though this should have necessitated an amendment to the particulars it should be noted that the prosecution did not close its case before the appellant changed her plea to that of guilty. It should also be noted that the offence creating sections of the Narcotic Drugs (Control Enforcement and Sanctions) Law P.N.D.C.L 236/1990 does not speak of cocaine or heroin but Drugs. Since heroin and cocaine are all drugs the non amendment does not cause any embarrassment or prejudice the case of the accused and no substantial miscarriage of justice was occasioned thereby. Also in the case of Appiah vrs The Republic (1996-97) SCGLR 610 at 614 it was held that " a defective charge sheet has never been known to subvert the jurisdiction of a trial court. It was further held that Section 3(2) of the Court''s Act 453 of 1993 clearly provides for the dismissal of an appeal based on grounds of defective or error in the charge sheet provided there is available evidence to support the offence alleged in the statement of offence or in any other offence...". Counsel for the appellant also questioned under this ground whether the quantity of the drugs mentioned in both counts were for the appellant alone as she\r\n \r\npleaded guilty to the whole. The charge sheet shows that three persons were charged with possession of the whole 491.89 grams with each person holding a certain quantity of the whole. Even though it would have been better to charge each accused person with the exact quantity of drugs found on him or her the lumping together of the three accused and total quantity of drugs found on him does not make the charges defective. It is not the quantity of drugs carried which constitutes the offence but the carrying of any amount. It should be noted that where a charge states that the accused stole a certain sum and it is proved that he actually stole less, there is no need to amend, nor is there anything improper in the charge. See\r\nObeng alias Donkor and others vrs The State (1966) GLR 259.\r\nWe have examined the arguments canvassed on this ground of appeal and find no merit in them. We dismiss the first ground of appeal.\r\nThe second ground argued in this appeal is that the charge sheet was incurably bad and could not be the basis of the appellant''s conviction and subsequent sentence. Counsel for the appellant submitted that by Section 109(i) of Act 30 for every distinct offence of which any person is accused of there shall be subject to subsection (2) a seperate charge or count. Relying on the case of Donkoh vrs The State (1964) GLR 598 at page 601 Counsel submitted that the appellant was charged with carrying cocaine yet the evidence disclosed that she was carrying heroine hence the charge sheet was incurably bad. Counsel also argued that the nature, quality and quantity of the drug mentioned in the particulars of offence are not known. With respect to the accused being tried jointly Section 109(1) is stated to be subject to subsection (2). Subsection (2) of Section 109 states that "charges or counts for any offences may be joined in\r\n \r\n\r\n \r\nthe same complaint, charge sheet or indictment and tried at the same time if such charges or counts are founded on the same facts, or form or are a part of a series of offences of the same or a similar character". Section 110(1) also provides that "The following persons may be charged and tried together\r\nnamely:\r\na) Person accused of the same offence committed in course of the same transaction"\r\nSince the accused persons were said to have arrived in the country together on the same date and were leaving together on the same date with each carrying the same narcotic drug in almost the same manner we find nothing wrong with their being charged jointly for the same offences. We have already dealt with the issue of cocaine instead of heroin and the issue of quantity and quality of the drug found. Suffice it to repeat that by changing her plea from not guilty to guilty the appellant obviated the prosecution from leading evidence to establish all the ingredients of the offence. This ground of appeal also fails and we dismiss it.\r\nCounsel for the appellant next argued the third ground of appeal that the learned judge erred when he accepted the plea of the appellant in the absence of her counsel after she had refused to plead to the charges. Counsel submitted that Section 199 of the Criminal Procedure Code Act 30 of 1960 imposes a duty on the trial court in the absence of counsel to explain to an accused person who pleads guilty the nature of the charge and the procedure which follows such a plea before accepting such a plea. Relying on Yeboah vrs The State (1964) GLR 715\r\n \r\n\r\n \r\nat page 717 and Ross on Criminal Appeals (19th Edition at page 110) Counsel for the appellant submitted that the pleas of guilty was inconsistent with her earlier plea of not guilty and that the appellant''s mind and intention was not to plead guilty. To these submissions the Principal State Attorney for the Republic replied that on 15th September 2009 the appellant refused to plead because her counsel was absent and the trial judge adjourned the case to 23"'' September 2009 when she pleaded not guilty in the presence of her lawyer. It was after PW1 had testified that upon a sober reflection of the evidence the appellant decided to change her plea to guilty. Counsel for the Republic also pointed out that Section 199 of Act 30 comes under Part IV of the code which deals with trials on indictment and not summary trial under which the appellant was tried. We totally agree with Counsel for the Republic that there is no duty on a trial judge in a summary trial to explain the nature of the charges and procedures to an accused who pleads guilty as Section 199 of the code applies to trials on indictment. The appellant was in court and saw and heard what happened to her do-accused persons when they changed their pleas of not guilty to guilty. When she informed the trial court that she wanted to change her plea the charges were re-read to her and she, an American student aged over 21 years cannot be heard to say she did not understand the charges read nor the consequences of her plea of guilty, the absence of any relative in court notwithstanding. This ground of appeal also fails and it is dismissed.\r\nCounsel for the appellant lastly argued grounds (d) and (e) together. These are that the appellant never intended to plead guilty and did not understand the proceedings in the court below. As these grounds have\r\n \r\n\r\n \r\nalready been dealt with above and dismissed there is no point in re-stating them.\r\nOn the whole we have considered the grounds argued in this appeal and find them unmeritorious. The appeal is thus dismissed and we hereby confirm the decision of the trial court.\r\n••	.,v (JUSTICE OF APPEAL)\r\n \r\n\r\n \r\nR. K. APALOO, J.A\r\n \r\nI agree\r\n \r\n(JUSTICE OF APPEAL)\r\n \r\n\r\n\r\n \r\nADUAMA 05E4 J.A\r\n \r\nI also agree\r\n \r\nmuLJAMA OSEI (JUSTICE OF APPEAL\r\n \r\n,\r\n, -\r\ni 5 Z14 " I\r\n; ti\r\n/ti\r\n5 . 1;1\r\nn71\r\n,.\r\nIt	ti /\r\ni1 t. \r\nNg (7.) r r.,\r\n,I	.	!i.4,\r\n) k\r\n.7\r\n', '../links/cases/Document (220).pdf', 'Yes', 'K.A. ACQUAYE, J.A, ADUAMA OSEI, J.A', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Criminal law and procedure - Narcotic Offence - Appellant charged with possession of narcotic drugs - Narcotic Drugs (Control,Enforcement &amp; Sanctions) Law, ss. 56(a), 1(i) - Trial - Mistake in charge sheet - Non-amendment of mistake - Whether it occasioned substantial miscarriage of justice - Criminal Procedure Code,s.112 (2).<br>Plea - Change in appellant''s plea - Accepting plea in the absence of attorney - Whether Court committed procedural error - Criminal Procedure Code, s.199.</font></b></i><br>', 'R.K. APALOO, J.A', 'Criminal', '', 'H2/8/2011', '', '', 'appeal', '2011-05-19', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(572, 'KOFI ASIEDU  ---  APPELLANT\r\nVRS\r\nTHE REPUBLIC  ---  RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE COURT OF APPEAL\r\nCRIMINAL DIVISION\r\nACCRA, A.D. 2011\r\nCORAM: S.E. KANYOKE, J.A (PRESIDING)\r\nK.N. ADIJAMA OSEI, J.A	CRIMINAL APPEAL N0.1-12/16/2010\r\nDENNIS D. ADJEI, J.A	DATE: 28TH JULY 2011\r\nKOFI ASIEDU	APPELLANT\r\nVRS\r\nTHE REPUBLIC	RESPONDENT\r\nCriminal Law— Robbery— Appellant convicted for robbery— Proof of ingredients of robbery— Whether explanation offered by appellant sufficient to negate robbery charge— Whether failure to prove ingredients of robbery constitute serious miscarriage ofjustice— Criminal Offences Act, ss. 149& 150\r\nJurisdiction— Appellate Court— Power to set aside a higher offence and substitute with a lesser one— Criminal and Other Offences (Procedure) Act, £\r\n154— Courts Act, 1993,s. 11(9)\r\nJUDGMENT DENNIS D. ADJEI (IA)\r\nOn 280 February 2011, this Court granted an extension of time to the Appellant herein to file an appeal against both conviction and sentence imposed on him by the High Court, Koforidua on 1111, March 2011. The Appellant filed a petition of appeal against both conviction and sentence. The Appellant filed five (5) grounds of appeal namely:-\r\n1) The trial Court erred in entering a plea of guilty on both counts against the Appellant.\r\n \r\n2)	The trial Court erred in its assessment of the explanation given\r\nby the Appellant as nothing but a plea in mitigation of\r\nsentence.\r\n3)	The trial Court erred in not entering a plea of not guilty on both counts in the case of the Appellant upon the explanation\r\noffered by him.\r\n4)	The conviction of the Appellant was wrong in law on account of the explanation he gave in relation to the offences charged.\r\n5)	The sentence passed against the Appellant based on the wrong conviction was consequently wrong in law.\r\nThe brief facts of this appeal are that the Appellant and three (3) other persons were charged with the offences of:\r\n1)	Conspiracy to Commit Crime to wit robbery contrary to Section 23 and 149(1) of the Criminal Offences Act 29/60 and\r\n2)	Robbery contrary to Section 149 of the Criminal Offences Act, Act 29/60.\r\nThe Appellant was the 3r1 Accused person in the Court below. The 4th Accused person was also at large. The pleas of the lst, 2nd and 3rd Accused persons were taken and all of them pleaded guilty with explanation. The trial Court came to the conclusion that the explanations offered by the three accused persons amounted to plea of guilty and therefore convicted and sentenced them. The 1st accused person was sentenced to twenty-five (25) years I.H.L. on each count and were to run concurrently.\r\n \r\n2\r\n \r\nThe 1s1 and 2" accused persons did not appeal against the decision of the trial High Court. In the course of this judgment, the legal effect of this appeal on the is" and 2" accused persons would be discussed.\r\nThe facts of the case as given by the prosecution at the trial Court were that the complainant is a businessman living at Koforidua. The 1st accused person was his personal driver. The 2" accused person is a driver and at the time of the incident, he was the driver in charge of a taxi cab which was used by the 2", 31d and the accused persons to rob the complainant. The 3"1 accused person, the Appellant herein is a Carpenter. All the four accused persons live at Okrase, a suburb of Koforidua. On 8111 July 2009„ the 1st accused person who was the personal driver of the complainant and was on business trip conspired with the other accused persons to meet them at Berekusu where he would slow down for robbeiy operations to be carried out against the complainant. On reaching Berekusu, the 1s1 accused slowed down the Hyundai Mighty KIA Truck with Registration No. GT 523 F which the complainant was on board and they were Crossed by a taxi cab, which was being driven by the 2" accused person. They used cutlasses to attack the complainant and made away with GitS6,000.00, a mobile phone worth GH0300.00 and sonic personal effects of the complainant.\r\nA report was Made to the Police and the 1st, 2" and 3fd accused\r\npersons were arrested and an amount of G1-14,700.00 was retrieved\r\nfrom them.	The 411, accused person could not be arrested.\r\n3\r\n \r\nAccording to the prosecution, the 1st, 21 and 316 accused persons admitted the offences of conspiracy to commit robbery and robbery in their caution statement.\r\nWe will discuss grounds 1, 2 and 3 of the appeal together as they raise a common question of law. The effect of [lie three grounds of the appeal is that the explanation offered by the Appellant negates the charge of robbery and the trial Judge should have entered a plea of not guilty and failing to do that has occasioned serious miscarriage of justice to the Appellant. Robbery which is a first degree felony is defined in Section 150 of the Criminal Offences Act, 1960, Act 29 as follows: -\r\n"A person who steals a thing commits robbery.\r\na) If in, and for the purpose of stealing the thing, that person uses force or causes harm to any other person, or\r\nl) If that person uses a threat or criminal assault or harm to any other person, with intent to prevent or overcome the resistance of other person to the stealing of the thing."\r\nFrom the above definitions, a charge of robbery could he proved where one uses force or causes harm to any other person in his effort to steal something or the person who is stealing must have used threat or criminal assault or harm to any person with intent to prevent or overcome the resistance of the other person to the stealing. Where a person steals and none of the ingredients of robbery as listed above is proved, the charge of robbery will Ihil but a charge of stealing would be sustained.\r\nrd\r\n \r\nFrom the facts given by the prosecution, the appellant and the other accused persons used cutlass in their operations. The use of cutlasses by the accused persons will constitute a threat and the conduct of the accused persons will come under the definition of robbery - See Section 150(b) of Act 29/60.\r\nThe appellant''s explanation to the offence of conspiracy lo commit robbery and robbery were as follows:\r\n"EXPLANATION OF 3R), ACCUSED PERSON - We did not use any cutlass in the operation. It was the 1st accused who was driving the\r\ncomplainant. He had no harmful implement. We plead for leniency.\r\nThis is our first time of doing such a thing."\r\nThe first accused person also offered his explanation as follows:\r\n"I did not see any cutlass being used in the operation. The total sum has been recovered as our family members have since made put the difference."\r\nThe 2nd accused person explained why he was not guilty as follows:\r\n"We did not carry along any cutlass for the operation as the\r\ncomplainant is an elderly man."\r\nApart from the allegation of use of cutlasses by the accused person, which would have grounded the charge of robbery, the accused persons were not said to have either used force or caused harm nor committed criminal assault or harm to any other person, with intent\r\n\r\n \r\nto prevent or overcome the resistance of the other person to the stealing of the thing. The trial Judge was therefore mandated by law to satisfy himself that the explanation given by the accused persons if proved at the trial would constitute a defence and the charge of robbery will fail. The issue of belief or disbelief of the explanations will not arise because it is not an evidence which the Court may have the discretion to believe or disbelieve. Instead of critically examining the explanations by the accused persons, the trial Judge erroneously concluded that their explanations constitute an admission of their guilt and convicted and sentenced them accordingly. Had the trial High Court Judge properly analysed the explanation by the appellant he would have been confronted with two legal positions being:\r\n(1)	To enter a plea of not guilty for the appellant and proceed to try the case for conspiracy to commit robbery and robbery and\r\n(2)	To convict him for conspiracy to steal and stealing.\r\nThe trial Judge''s neglect to consider the explanation offered by the appellant has occasioned serious miscarriage of justice and the conviction for robbery should be set aside. Grounds (a), (b) and (c) of the appeal succeeds. Grounds (d) and (e) of the appeal also succeeds.\r\nCounsel for the Appellant discussed extensively the cases of Gundaa vs. Republic [1989 -901 GLR 55 - 57 and Ofei vs The State t19651\r\n6\r\n \r\nGLR 680 -687 and concluded that if the explanation was not. consistent with guilt, a plea of not guilty must he entered by the trial Court for normal trial to take place. I do agree with Counsel for the appellant and the ratio in the authorities quoted by him and I would like to add that where the accused person could be convicted on a lesser offence based on his explanation, the Court may either, change his plea from guilty to not guilty and proceed to try him or convict him for the lesser offence. It is a discretion given to the Court and should be exercised judiciously.\r\nWe are further fortified by Section 154 of the Criminal and other ollenees (Procedure) Act, 1960 which clothes the Court with jurisdiction to convict an accused person for a lesser offence although not charged with it where it becomes clear that the facts di not support conviction for the higher offence preferred against him but rather supports the lesser offence. Section 154(2) of Act 30 provides thus:\r\n"Where a person is charged with an offence and facts and proved which reduce it to a lesser offence, that person may he convicted of the lesser offence although not charged with it."\r\nIs it trite learning that the facts in a case include the facts by the prosecution the pica of the accused persons and other explanations that would he offered by them and we are satisfied that the facts have proved the offence of stealing against the appellant. The explanation offered discloses that the appellant was guilty of conspiracy to steal and stealing.\r\n7\r\n \r\nAppeal is by way of rehearing and this Court has the Powers of the trial High Court and we will therefore proceed to rehear the matter. We are fortified by Section 11(9) of the Court Act, 1993 Act 459, which provides thus:\r\n"For the purposes of hearing and determining an appeal within its jurisdiction and the amendment, execution or enforcement of a judgment or an order made on an appeal, and for the purpose of any other authority expressly or by necessary implication given to the Court of Appeal by the constitution,\r\nthis Act or any other law, the Court of Appeal has the powers, authority and jurisdiction vested in the Court from which the\r\nappeal is brought."\r\nBy the powers vested in this Court by Section 11 (9) of the Court Act, 1993, We will set aside the conviction for robbery and substitute stealing. This Court could have ordered for retrial but it is our considered opinion that once the appellant''s explanation constitutes guilty of stealing we will opt for that one and retrial having taken into consideration the number of years spent by him in custody as a prisoner.\r\nThe 1st and 2nd accused persons even though did not appeal would suffer injustice if their erroneous conviction for robbery which has conic to the notice of this Court is not addressed. The explanation offered by the two of them is also the same as that of the appellant herein and that negates the offence of conspiracy to commit robbery and robbery.\r\n8\r\n \r\nSection 31 (1) of the Courts Act 1993, Act 459 permits an Appellate Court to allow air in a criminal matter if it considers that the verdict or conviction or acquittal ought to be set aside inter alia, on the ground that there was a wrong decision of any question of law and has occasioned miscarriage of justice. The variation of the judgment is to the benefit of the two accused persons and even though they were not joined to the appeal audi alteriin partem rule will not be breached.\r\nSection 31 (1) of the Court Act, Act 459 provides thus "subject to Sub Section (2) of this section, an Appellate Court on hearing any appeal before it in a criminal case shall allow the appeal if it considers that the verdict or conviction or acquittal ought to he set aside on the ground that it is unreasonable having regard to the evidence of that the judgment in question, ought to he set aside on the ground of a wrong decision of any question of law or fact or that on any grounds there was a miscarriage of justice and in any other case shall dismiss the appeal."\r\nThe Court erred by convicting the accused persons on the offences of conspiracy to commit robbery and robbery and it is a wrong decision and that should inure to the benefit of all the accused persons including those who appealed against the decision and those who did not appeal. Justice demands that the wrong decision which is being set aside must cover all those who are affected by that wrong decision.\r\n \r\n9\r\n \r\nWe will set aside the conviction for conspiracy to commit robbery and robbery and substitute conspiracy to commit stealing and stealing. The appeal succeeds. in part. The Appellant together with the lst and 2nd accused persons are convicted for conspiracy to steal which is contrary to Sections 23 and 124 of Act 29/60 and stealing contrary to Section 124 of Act 29/60.\r\nThe sentences imposed on the accused persons by the trial High Court are hereby set aside and in its place, we will substitute ten (10) years .	. for each count and are to run cipneurrently.\r\nI\r\nv\r\nII\r\nDENNIS D ADJEI\r\nI la [\r\ncs1+4LHISTICR OF APPFAT\r\natt\r\nS E KANYOKE	I agree	If-A- NV 0 K1,	\r\n[JUSTICE OF APPEAL]\r\n \r\nK N ADUAMA OSEI\r\nCOUNSEL\r\n \r\nI also agree	• UAMA OSEI [JUSTICE OF APPEAL]\r\n \r\nMR. SOMUAH ASAMOAH FOR THE APPELLANT\r\nMRS VALARIE EDUSEI POKU (CSA) FOR TIIE RESPONDENT\r\n', '../links/cases/Document (221).pdf', 'Yes', 'K.N. ADUAMA OSEI (JA), DENNIS D. ADJEI (JA)', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Criminal Law - Robbery - Appellant convicted for robbery - Proof of ingredients of robbery - Whether explanation offered by appellant sufficient to negate robbery - Whether failure to prove ingredients of robbery constitute serious miscarriage of justice - Criminal Offences Act, ss. 149&amp;150<br>Jurisdiction - Appellate Court - Power to set aside a higher offence and substitute with a lesser one - Criminal and Other Offences (Procedure) Act, s.154 - Courts Act, 1993,s. 11(9)</font></b></i><br>', 'S.E. KANYOKE,J.A', 'Criminal', '', 'H2/16/2010', '', '', 'appeal', '2011-07-28', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(573, 'GABRIEL H.O. THOMPSON\r\nSSNIT TRANSPORT UNIT\r\nACCRA  ...  PLAINTIFF/APPELLANT\r\nVRS\r\n1. COMMANDER BAFFOE-MENSAH\r\n2. MR.ANKRAH\r\n3. CHARLES BANAFO\r\n4. MR.ALHASSAN  ...  DEFENDANT/RESPONDENT, CO-DEFTS/RESPONDENTS', 'IN THE SUPERIOR COURT OF jUDICATURE\r\nIN THE COURT OF APPEAL\r\n\r\nCORAM: APALOO JA (PRESIDING)\r\nACQUAYE JA\r\nDZAMEFE JA\r\nCIVIL APPEAL\r\nSUIT NO. 1-111209/2010\r\nDATE: 22/1212011\r\n\r\n	\r\n\r\nLand Law— Ownership of land— Whether the defendants perpetuated fraud on the allodial owners— Indenture thumb printed by allodial owners produced by defendant as evidence - Absence ofjurat clause as required by law— Whether absence ofjurat clause renders the instrument invalid— Onus on both parties to adduce sufficient evidence to prove the validity or otherwise of the instrument.\r\nJUDGMENT\r\nAPALOO,JA: On 611 September 2002 the Plaintiff/Appellant (to be referred to as Plaintiff) took out a writ of summons at the Circuit Court Agona Swedru against the Defendant/Respondent (also to be referred to as Defendant) claiming inter alia the following reliefs;\r\n"1. An order directed against the Defendant for refund of an amount of\r\n \r\n•	$4,773,000 new C11$477.30 being the value of &linage caused to his property plus interest at the prevailing bank rate.\r\n2.	General damages for trespass.\r\n3.	Perpetual injunction restraining the Defendant, his agents, servant etc\r\nto desist from directly or indirectly interfering with Plaintiffs\r\ndevelopment, possession (117(1 occupation of the land, and not to enter\r\nthe land for any reason whatsoever and further not to threaten Plaintiff\r\nuntil final determination of the suit."\r\nAfter a kill trial, judgment was entered against the Plaintiff and being dissatisfied a notice of appeal was filed with 9 grounds of appeal and 4 additional grounds by leave of Court. The following are the grounds of appeal;\r\n"1. The Honourable Court erred in law when it held that Nai Awitshie\r\nTetteh and his Stool Elders are bound by the document (Exhibit 2) they themselves executed even though no jurat was entered despite the fact that all the Elders (witnesses) are illiterates.\r\n2.	The Honourable Court erred in law by substituting its finding that the .Defendants grant by the 3rd Co-defendant Alhassan in the circumstance cannot be revoked whereas Defendant himself led evidence (20170-cry to\r\nthe Court''s holding.\r\n3.	The Learned Judge erred in law by not re-examine (sic) on the evidence\r\ngathered to resolve or "arriving at the truth in face of conflicting\r\nallegation" but incorporated its finding in the judgment.\r\n4.	The Learned Judge erred in law for concluding from the observations at\r\nthe locus that it was 1st Co-Defendant who gave out lands to residents\r\nwithout any documentary evidence as required to establish proof in law.\r\n\r\n\r\n \r\nregularly obtained ((11(1 not dejective in anyway. Whereas the 1(111(1 involved is a Stool /and.\r\n6.	The learned Judge concluded that "the exhibit ''A'' executed by the\r\nPlaintiff and Na! Awushie Tetteh cannot take away the eJjLct of the\r\ngrant and if indeed there was a mistake and in the instant case ifind\r\nnone, that mistake cannot affect the grantees registered title."\r\n7.	The learned Judge misapplied or gave erroneous interpretation to Section 11(4) and 12 oft/ic Evidence Decree in determining this case, thus resulting in a miscarriage of justice suffered by the\r\nPlaintiff/Appellant.\r\n8.	The costs awarded against the Plaintiff is uncalled fbr and some should he set aside.\r\nAs additional grounds of appeal the plaintiff filed the following:\r\n1.	"''/1w Learned Judge erred in law by entering judgment in favour of the Deft''ndan t and to further declare lie (Defendant) is the IM( al owner of the plots in dispute even though no counterclaim was filed by the Defendant.\r\n2.	The Learned Judy  erred in law by holding that" if indeed there was a mistake .......that mistake cannot afflict the grantees registered title."\r\n3.	11 e Defendant having acquired a purported and defective power of Attorney after committing the act of trespass complained about which in part formed the grounds for the present action lacked capacity to defend the action for his principal.\r\n4.	Having made a finding that "In the opinion of the Court the events leading to the execution of the conveyance Exhibits 2 and ? in favour of the Defrndant''s principal amounts to nothing short of Jaiid on the part of the defendants, the Honourable Court erred in law (111(1\r\n\r\n \r\n•	misdirected itself by not entering judgment in favour of the plaintiff which said misdirection has resulted in a grievous miscarriage of\r\njustice against the appellant."\r\n13riefly, the land in dispute are two plots of land which formed part of a large tract of land which was surveyed and demarcated by theist Co-defendant (Mr. Ankrah). The 1st Co-Defendant, did the work together with other persons including the 21d and 3rd Co-defendants. The stool gave them portions of land they demarcated as payment for the work. From the record the 3'' Co-defendant Mr. Alhassan was given two plots of land also as payment for work done in the demarcation. 3rd Co-defendant in turn sold the MO plots to the uncle of the Defendant by name Emmanuel Osel-Akoto. Mr. Emmanuel Osei Akoto acquired the two plots in 1994 and the Ofankor Stool as allodial owners gave an indenture Exhibit 2, to him since the land was not conveyed to the 3rd Co-defendant by the Stool after the grant was made.\r\nThe plaintiff had the following narration in his statement of claim.\r\n"(3) The plaintiff says on 9/6/97 he took lease of two plots of land described in the schedule hereunder from Nil Odupong Awushie Tetteh Head of family and Chief of Odupon Ofonkor in the Central Region for 99 years with the option of renewing same for the further term of 45 years."\r\nAccording to the Plaintiff he paid an amount of (1.6 million (now G11(160.00) to the family which acknowledged receipt on 10/9/ 96. Plaintiff stated that Defendant was a trespasser, he went on to the land and destroyed the concrete foundation. Upon valuing the extent of damage on the land, the surveyor assessed the totality of the damage to be (4,773,000.00 (now G11(477.00). The Plaintiff later applied and joined lst, 2" and 3"d Co-defendants. The Plaintiff pleaded fraud on the part of 15t, 2111 and 3N'' Co-defendants and per paragraphs 5, 6, 7 and 8 of his amended reply he narrated that;\r\n"(5) Plaintiff further denies Defendant''s false claim to the lands and says that the said Emmanuel Osei-Akoto dealt with one Charles Banafo, Alhassan and with the connivance of the Surveyor (Mr. Ankrah) who was\r\n4\r\n \r\nengaged by the Stool and having been paid for his service by the stool secretly carved out plaintiff''s plots of land and purported to have oJJered same to Charles l?anafo and Alhassaii for "sale" to the said l:''niriianuel Osei-Akoto.\r\n(6) Plaintiff Jurther reply says that the persons named in paragraph 5 above prepared and mixed it together with other documents placed same before Nai Odupong Awash/c who signed the same by in/slake.\r\n(7)	Plaintiff says it was the same surveyor who demarcated Plaintiff''s plots for him (111(1 he turned round later to have offered same for "sale" to Eininan ad Osei-A Ico to.\r\n(8)	Plaintiff says the Chief of OJànkor later realized the Mistake (117(1 the fraudulent conduct of the persons named in paragraph 5 above mud instructed his secretaty who wrote to the Lands Commission .............\r\nPARTICULARS OF FRAUD\r\n1.	"11w surveyor Mr. Ankrah could not give out the plot of land which Plaintiff had already purchased and which he the surveyor had no title, for sale.\r\n2.	Messrs Charles lianafO and /llhassan equally had no claim or title to the Plots and knew that they could not effect or promote a valid sale of the plots to Emmanuel Osei-Akoto.\r\n3.	Messrs Ankrah, Charles llanafo and Al/nissan Presented Mr. Osei-/lkoto''s indenture as ci genuine document which they knew was not, to the Chief fOr sqning and as a result succeeded in misleading the Chief\r\n4.	The Chief was misled in signing the in den (tire for the DefOndant.\r\nDuring the trial the Plaintiff tendered his receipt for the purchase of the 2 plots Exhibit. ''A''. Exhibit 13 was his indenture. Nxhibit C was a search at the Lands Commission and Exhibit 1) was the Registration of the land''s document.\r\n5\r\n \r\ni..	•\r\n \r\n• The Defendant on the other hand tendered the power of Attorney of Emmanuel Osei-Akoto as Exhibit 1. The indenture as Exhibit 2 and the Registration of the land''s document as Exhibit 3.\r\nSUMMONS FOR DIRECTIONS \r\n1, "Whether or not given the circumstances of this suit the alleged registration of Defendant''s Principal Indenture hearing land Registry No. 1587/2002 confer title on him (Defendant Principal).\r\n2.	Whether or not the purported acquisition and registration of the Defendant''s Principal''s Indenture is fraught with fraud and should be nullified and set aside.\r\n3.	Whether or not the Chief of Ofankor Nai Odupong Awushie fetich II was tricked into signing or lie signed by mistake the Indenture bearing lands Registry No. 1587/2002.\r\n4.	Whether or not Defendant''s Pricipal Emmanuel Osei-Akoto purchased the land from the Modica Title holders of the land in dispute i.e. the head of family and Chief of Odupon Ofanlmr.\r\n5.	Whether or not Plaintiff purchased the land in dispute from the Chief of Ofankor.\r\n6.	Whether or not the Plaintiff''s Indenture executed on 9/6/97 was regularly obtained from the Allodial Title Holders of the land in dispute.\r\n7.	Whether or not Plaintiffs possession and development of the land which Defendant demolished or damaged constituted actual notice to Defendant and/or his Principal before attempting to register the indenture bearing Land Registry No.. 1587/2002.\r\n8.	Whether or not Plaintiff is entitled to recovety of ¢4,773.00 licitly the assessed value of damage caused by Defendant\r\n9.	Whether or not Defendant trespassed onto Plaintiffs land.\r\n \r\n6\r\n \r\n10.	Whether or not Defendant should he per/Jet tinily !i''Strail7ed\r\n11.	Whether or not co-defendants were given plots 011011(1 by the Al/odinl Title holders for (heir services.\r\n12.	Whether or not 2'''' and 3I Co-defendants sold itiy plots of /011(1 to Defendant''s principal.\r\n13.	Whether or not 1• Co-defendant acting Jor the Al/ad/al Title holders is\r\nthe some person who carved out Plaintiff''s plot of land, prepared his\r\nsite plan, Indenture etc fi)r which Plaintiff paid and receipt issued to\r\nhim."\r\nAfter critically examining the 13 issues set (town for determination, I am left in no doubt that most of the issues are repetitive and unnecessarily prolix in form and content. In my view the following 4 important issues should he the ones for determination.\r\n;i) Whether or not Plaintiff validly acquired the land in dispute Irc)ln the al lodial owners.\r\nhJ Whether or not the Co-defendants were given land by the ahlodial owners.\r\nc] Whether or not Defendant''s principal and Co-defendants perpetrated any fraud on the allodial title holders.\r\ndJ Whether or not defendant principal''s Emmanuel ()sei-Akoto validly\r\nacquired the land in dispute.	.1\r\nAt the close of the trial, the trial judge found in favour of the Defendant and Co-defendants. The decision of the trial Judge led to the attack on the judgment by the 12 grounds of appeal already numerated.\r\nCAPACITY\r\nCounsel for the Plaintiff in his statement of case preferred to attack the capacity of the Defendant first in his submissions to this Court. fie referred to the evidence of the Defendant which disclosed that he held a Power of\r\n7\r\n \r\nAttorney in respect of the two plots of land belonging to Emmanuel Osei¬Akoto who was resident in Germany. The land was situate at Ofankor. The Power of Attorney was received in evidence without objection and marked as Exhibit 1. A certified translation from German into English of Exhibit 1 is on page 189 of the record. Counsel submitted that the Power of Attorney is defective, in that, contrary to section 1(2) of the Power of Attorney Act, 1998 the instrument was not witnessed, to attest to the execution of the power. Counsel referred to section 1 (2) of the Power of Attorney Act 1998, Act 549 which states as follows;\r\n"Where the instrument is signed by the donor of the power one witness shall be present and attest the instrument."\r\nCounsel referred us to Asante-Appiah vrs Amponsah [2009j SCGLR 90 where the Supreme Court explained that\r\n"(1) The parties were agreed that the Plaintiff was at all material times during the litigation, resident in England but sued through another person using a power of attorney which was tendered in evidence. That power of Attorney was fatally flawed because of non compliance with the mandatory provision in section 1 (2) of the Power of Attorney Act 1998 (Act 459j"\r\nAgain in Juxon-Smith vrs KLM Dutch Airlines (2005-2006) SCGI,R 438 at 440 the Supreme Court was of the view that\r\n"a party who had at the trial allowed a document to be admitted into evidence without objection would not be estopped "on appeal" front raising for the first time legal objection to its admissibility. The well known exception to those general rules was that, where the point being urged for the first time was of substantial importance and could be conveniently argued without further evidence being taken by the appellate court; the party would not be barred from raising these legal points."\r\n8\r\n \r\nTo further buttress the point to dismiss Defendant''s evidence from consideration by the Court of Appeal, the Plaintiff cited this Court''s decision in Yokwaa vrs I)uah (1992-73) GBR 278 at 279 to the effect that:\r\n"Where a person''s capacity to initiate proceedings was in issue, it was no answer to give that person a hearing on its merits even if he had a cast- iron case. Even though the paint of respondents'' capacity was not raised at the trial, it involved a serious point of law that the trial judge ought to have considered."\r\nCounsel br the Plaintiff having relied on the above authorities which are binding oil Court, urged us to reverse the decision and make the Defendant liable for the reliefs endorsed in the writ of summons or in the alternative the Plaintiff should succeed and judgment entered in his favour.\r\nI:rorn the record the Plaintiff instituted his action against the Defendant on 6/9/2002. Later the same year on 15/10/02 the power of Attorney was created. In other words the Defendant was brought to Court before the creation of the power. The Defendant did not come to Court because he had been given the Power of Attorney. He was dragged to Court by the force of the writ of summons. The Defendant was sued in person and by his personal name. Indeed being the Defendant, it was the Plaintiff who clothed him with capacity to defend the action. The Defendant at the onset of the litigation did not need a power of attorney to defend the action which was brought against him personally. By Order 9 rl(1) of the High Court Civil Procedure Rules, Cl\r\n47\r\n"a Defendant to an action may whether or not the De/éndant is sued in a personal capacity or as a trustee or as a personal representative or in any other representative capacity file an appearance in the action and defend it in person or by a lawyer."\r\nIn his defence to the Plaintiff''s claim the Defendant stated that he was caretaker of the land in dispute and that his uncle, Emmanuel Osei-Akoto was the actual owner of the land in dispute. As a defendant therefore, sued in his personal capacity, there was no requirement for a power of attorney to defend\r\n \r\n9\r\n \r\nsuch action. It appears however that in all the cases cited by Plaintiff''s\r\n• Counsel to support the consequences of the defective power of attorney, the\r\nparty in possession of the defective power was the Plaintiff and not Defendant\r\nand this point is of primary importance. It appears ridiculous however that\r\nafter commencing an action against a person personally, who proceeded to\r\ndefend the action albeit with a defective power of attorney, the Plaintiff turns\r\nround to prevent the Defendant from defending the action. The case of Asante-Appiah vrs Amponsah (supra) makes it clear that;\r\n"where the capacity of a person to sue is challenged, he has to establish it before his case can be considered on its merits. In the instant case, the defendant challenged the capacity of the Plaintiff right from the inception of the trial. The challenge was explicit in the first paragraph of the statement of defence and in cross-examination of person who gave evidence on his behalf as a holder of a power of attorney which had been declared invalid and inadmissible.\r\nWe find the ground of appeal challenging the capacity of the Defendant to be a misconception of the law and it is wholly dismissed as without merit.\r\nIn the Plaintiff''s additional ground 1, Plaintiff made reference to the amended statement of defence filed by the Defendant and the Co-defendant. Counsel stressed that the statement did not contain any counterclaim or a claim for declaration of title, nevertheless the trial judge concluded as follows;\r\n"Accordingly, the Plaintiff''s claim is dismissed and I enter judgment in favour of the defendant and declare that he is the legal owner of the plots in dispute."\r\nPlaintiff''s Counsel was of the view that the conclusion reached by the trial Judge sins against the principles of law contained in the Supreme Court''s decision in Nyamaah vrs Amponsah [2009] SCGLR 361	362 where the\r\nCourt held;\r\n"It is the duty of a trial Court to make pronouncement on the reliefs that a party seeks.... Thus a Judge who makes an order for a relief that was not\r\n \r\n10\r\n \r\n1p	sought by a party to the action can he held to have exercised a jurisdictional irregularity."\r\nAgain in Gihoc Refrigeration & household Products Ltd vrs Manna Assi 12005-20061 SCGLR 458 @479 Dr. Date-Bah JSC emphasized that;\r\n"The Courts are not in the business of conferring unsolicited remedies on those who have not in yoked the court''s jurisdiction."\r\nCounsel prays that the declaration of the defendant as legal owner by the trial Court should be set aside.\r\nUpon reading the record fully and applying the law on pleadings we are satisfied that the trial judge fell in an error when he declared the defendant to he legal owner of the land in dispute, especially in consideration of the fact that the Defendant never counterclaimed or made a claim for declaration of title. The Plaintiff having come to Court but unable by evidence to prove his claim, in the view of the trial judge, the trial judge had no alternative other than dismissing Plaintiff''s action simpliciter.\r\nThe position of the law has been amply explained in Jass Co Ltd vrs Appan 120091 SCGLR 265, the Supreme Court held inter alia that;\r\n"The burden of proof is always put on the Plaintiff to satisfy the Court on a balance of probabilities in an action far a declaration of title to land. Where the defendant has not counterclaimed, and the Plaintiff has not been able to make out a sufficient case against the defendant; then the Plain tiff''s claims would be dismissed. Whenever a defendant also files a counterclaim, then the same standard or burden of proof would be used in evaluating and assessing the case of the defendant, just as it was used to evaluate and assess the case of the Plaintiff against the defendant."\r\nIn the Plaintiff''s grounds 1, 5, 6 and additional ground 2 which were argued together, Counsel referred to Exhibit 2 the indenture between Nai Odupong Awushie Tetteh II and Emmanuel Osei-Akoto. The document was executed on\r\n2611 August, 2000 and registered as 1587/2002 at the Regional Lands Commission Cape Coast. According to Counsel the entire 4 witnesses thumb\r\n \r\n11\r\n \r\n• printed, an indication that they were illiterates. These were the Principal members of the Stool whose concurrence and authority are required to\r\nvalidate any alienation of Stool land. Counsel referred to Waya yrs Byrouthy (1958) 1 WALR 413 which held that\r\n"if an illiterate execute a document, any other party on it must prove that in it was read over and if necessary interpreted to the illiterate. In this case the illiterate was held not hound by a high purchase agreement"\r\nAgain in Dadzie Boateng vrs Kokofil 119611 GLR 90 SC it was held. that in the absence of evidence that a document of sale which was executed by an illiterate person had been interpreted to him, no claim based on it could be S ustained.\r\nWhat is the effect then of the absence of the jurat in a document executed by an illiterate. For an answer we shall refer to Boakyem vrs Ansah [1963]2 GLR 223 where Althfo-Addo JSC (as he then was) explained the position. Ile\r\nsaid on page 225 that;\r\n"It would be observed that in Kwatnin vrs Kuffour and in the more recent case of Waya vrs Byrouthy in which the principle in Kwamin vrs Kuffour was applied, the illiterate person affected actually a party to the contract written in English.\r\nilliterate persons concerned .... were not parties to the deed; they were attesting witnesses only. The evidential requirements necessary therefore to affect them with an intelligent knowledge of the precise and relevant contents of the deed are far greater than those enunciated in Kwamin vrs Kulfour."\r\nThe Learned justice continued\r\n"As I have already indicated the illiterate persons concerned in this appeal were attesting witnesses only and there is no presumption that an attesting witness has any knowledge of the contents of a document the execution of which he attests; indeed the presumption is the other way round, and a much heavier onus therefore rests upon the Plaintiff in this appeal to prove that the first defendant and his head ()gamily attested the\r\n12\r\n \r\n• document by appending their marks thereto wit/i an intelligent knowledge of the fact that the land granted thereby was their stool land and that wit/i that know/edge they consented to its execution in the manner alleged."\r\nFrom the above pronouncement the following ingredients were to be considered where a jurat was lacking in a document attested to by an illiterate person. They are;\r\n"a) The illiterate persons concerned were attesting witnesses only.\r\nh) That the attesting witnesses attested the document by appending their marks thereto.\r\nc) That in doing so they had intelligent knowledge of the fact that the land granted thereby was their stool land\r\n(1) That with that knowledge they consented to its execution in the manner alleçjecL"\r\nObviously from the dictum of AkufoAddo JSC [as lie then was] the absence of a jurat in an indenture conveying land and attested to by illiterates does not render the conveyance invalid. There is a duty on the beneficiary to prove the validity of the document in line with the ingredients spelt out above. From the record PW2 Nai Supi Kwao Ashong, a caretaker of the stool land gave evidence on behalf of the Plaintiff. Ile did not say he was illiterate. He did not say he executed Exhibit 2 under any mistake. PW2 confirmed tinder cross- examination that lie is a signatory to all documents emanating from the stool. This is what his cross-examination disclosed.\r\n	Q.	For how long have you been the caretaker of Ofankor Stool kinds?\r\n	A.	About 42 years\r\n	Q.	Between you and Ofankor Chiefwhio has control over the land?\r\n	A.	The two of us are signatories to all documents.\r\n \r\n13\r\n \r\n• It is noted also that PW3 the Stool Secretary testified for the Plaintiff. Ile stated that he became stool secretary in 1993 and that before the year 2003 he only signed on documents to identify the thumb prints of the elders. In 2003 he was advised by the Lands Commission to also sign the documents. Exhibit 2 was in fact signed by PW3 to identify the signatures of the elders according to PW3 himself in his testimony.\r\n(2.	When did you become the alleged secretary of the stool?\r\nA.	1993\r\nQ.	What are your duties?\r\nA.	I am responsible for all correspondence and to oversee the preparation of all land documents.\r\nAgain from the record there is no doubt that Exhibit 2 was properly identified by PW2 and PW3 both associated with the Ofankor. Stool. There is no doubt too that in preparing the documents for execution the witnesses who had thumb printed knew what they were doing i.e. the alienation of stool land. Having satisfied what the law laid down in the absence of a jurat for attesting\r\nwitnesses, we shall proceed to dismiss this ground of appeal a Well.\r\nAdditional Ground 2 \r\nAppellant submitted that the "Hon judge at some point in the judgment referred to 2"a Co-defendant as (Mr. Ankrah) and determined the case on that premise or belief but the irony is that Mr. Ankrah is the first Co-defendant whereas Mr 13anafb the 2nd Co-defendant and in the midst of this uncertainty and inconsistency the Hon. Judge failed to appreciate the evidence led by the\r\nparties and gave wrong assessment and judgment of the case."\r\nCounsel was of the view that the judge therefore came to a conclusion not borne out by the record so he misdirected himself which has resulted in a miscarriage of justice. Indeed where a trial has been lengthy with so many witnesses in attendance, not to mention the number of persons as parties there is the tendency for some confusion to arise in identifying the parties properly. The argument that the trial Judge misdescribed the parties in his\r\n14\r\n \r\n• judgment and this led to wrong assessment of the evidence (toes not appear to be tenable. The trial Judge was of the view that\r\n"If indeed there Was a mistake and in the instant case I find none, mistake cannot affect the yran tees registered title."\r\nIt appears the trial Judge''s conclusion that no mistake or fraud has been proved against the defendants has support in the record. PW2 a signatory to Exhibit 2 in his testimony did not say lie thumb printed the Exhihit under a mistake or fraud. PW 3 the Stool Secretary signed Exhibit 2 as he said to identify the signatures of the elders. He did not say Exhibit 2 was executed under a mistake or fraud. The Plaintiff pleaded and relied heavily on the allegation that the chief Nai Odupong Awushie Tetteh II signed Exhibit 2 under mistake or fraud, but strangely plaintiff failed to call Nai Odupong Awushie Tetteh II to confirm that assertion though this allegation was denied by the Defendants.\r\nIn assessing the evidence on record I do not think the trial Judge allowed his misdescription of the parties to cloud his mind. The error lie committed if any, was to misdescnhe the parties. I find this ground of appeal to be unworthy of a serious appeal. Dotse JSC in )ass Co Lid vrs Appau [2009] SCGLR 265 at 276 condemned this type of ground in appeal in these words\r\n"We there] öre find the observations made by LampteyJ/l (as he then was) about the reference to the appellants by the learned trial Judge as Plaintiff instead of referring to them as the Plaintiff and Co-Plain tiff as too petty and devoid of any merit deserving attention from this Court."\r\nWe accordingly find this ground of appeal as Petty and lacking in merit and dismiss it.\r\nGround 2\r\nCounsel for the Plaintiff argued that the trial Judge substituted the case contrary to what the defendant himself pleaded. Counsel gave instances from the amended statement of defence and the evidence led in court by the defendant.\r\n15\r\n \r\nIt appears that at the end of it all, the trial judge believed the evidence of the\r\n1111 Co-defendants, that the land in dispute was given to the 3nI Co-defendant for services Co-defendant rendered to the Ofankor Stool. This discretion of the trial court to weigh the several statements on each issue and to decide which to believe and which to reject has good basis in law. In Bisi vrs Tabiri [1984- 198612 BUZ 828 @ 287 Adade JA stated the position thus;\r\n"As u Judge of fact, it is his peculiar province, listening to the evidence and having the witnesses before him, to weigh the several statements on each issue and to decide which to believe and which to reject. And so long as his conclusions can find support from statements on record it is not open to an appellate tribunal except .for just and compelling reasons to disturb them."\r\nFrom the record it appears there were other persons who took part in the demarcation and were also given plots of land. The 2nd Co-defendant sold his to a person who had come from Italy. Ile built on the land and he is in occupation. DWI Emmanuel Mensah, confirmed he took part in the demarcation and was given two plots which he in turn sold to a Mr. Dan who has since built on it. This is what DWI said.\r\n"We demarcated a parcel of land belonging to Nai Odupong of Ofankor. We were eight in number. Mr. Alhassan, Mr. Charles, Olu, and other persons whose names I cannot remember That is in the year 1994 or thereabout. We were authorized by Nana to do the work Ile was aware that we demarcated the land. We were not paid for the work but given 2 plots of land each. Alhassan was also given two plots next to my plots. 1 sold my land and used the proceeds to put up a building. I sold my land to one Mr. Dan who also built on the land."\r\nThis piece of evidence was not challenged, but Counsel suggested that the witness had stolen the land which he in turn denied.\r\nThe case of the Defendant was that he was a caretaker for Emmanuel Osei-Akoto who had a document duly executed in his favour by the Ofankor Stool.\r\n16\r\n \r\nFrom the record it was not denied that the document Exhibit 2 originated from the stool.\r\nThere is however evidence that the 3 Co-defendant acknowledged that lie sold the plots in dispute to Mr. Emmanuel Osei-Alcoto for 1.2 million now GHO 20.00 and the stool found it necessary and prudent to convey the land to Emmanuel Osei-Akoto.\r\nIn lily view the only reason why the stool will give a conveyance to Emmanuel Osei-Akoto when the money iii respect of the land had been paid to the 3rd Co¬defendant is that the land had already been allocated to the 3rd Co-defendant by the stool. What the stool (lid was in accordance with the decision of the Court of Appeal in Bediako ''irs Arthur [1992-1993] GBR 1594 when in a similar situation, the second purchaser procured a conveyance direct from the Stool which made the original grant. It is my further view that based on the facts and evidence the grant to Emmanuel Osei-Akoto was legitimate and evidence on record supported the conclusions of the trial judge. This ground of appeal stands dismissed.\r\nGrounds 3 and 4\r\nCounsel was of the view that after the visit to the locus in quo the court did not resume for the evidence gathered at the locus to be tested under cross- examination. Ile submitted that there was no record on the visit. Counsel said the visit was unnecessary and that it is only when the identity of the land or any physical feature of it is in dispute that a decision by a Court to view the land can be a proper judicial exercise of its jurisdiction See Asare ''irs Donkor [1962] 2GLR 176 SC\r\nI have no doubt that failure on part of the trial Judge to reconvene the Court to adduce evidence on the purpose of the visit to the locus in quo constituted a grave error of judgment on his part. The judicial reasons for a visit to the locus have been settled in the cases including Asare vrs Donkor (supra) Darfour ''irs Boateng [1976] 2 GLR 191, see also Kofi ''irs Kamansah [1984-86] 1 GLR 116 CA. Notwithstanding this error on the part of the trial judge, it will be reasonable in the circumstances to find out what the trial\r\n17\r\n \r\njudge did with his observations and findings in order to assess the impact of 46 the visit on the judgment as a whole. On page 152 the trial judge stated as follows:\r\n"A visit to the locus or an inspection of the land is the surest way of arriving at the truth in the face of conflicting allegations; the disputed land was therefore visited. When the Court moved to the locus, we saw, that quite a number of buildings have been put up on adjourning lands given out by the ist Co-defendant and his alleged Co-workers of the demarcation team."\r\nFrom the foregoing, there is no doubt that the findings made by the judge in respect of his visit to the locus concerned the buildings the 2" Co-defendant and DWI have already testified to in their evidence. No new or fresh evidence was discovered at the locus which impacted on the evidence as a whole. On account of this procedural error on the part of the trial judge, a decision to expunge these findings of fact from the record will nevertheless leave sufficient evidence on the record to support the judge''s conclusions. I hold therefore that the error on the part of the trial judge notwithstanding, no miscarriage of justice had occurred.\r\nGround 7\r\nUnder this ground it is the contention of Counsel that the Plaintiff adduced sufficient evidence to prove his claim and the onus therefore shifted to the Defendant who was unable to establish his vendors. According to Counsel the Defendant had a duty to satisfy the Court as to how he was able to get his document signed by the Chief of Ofankor.\r\nThe interpretation of sections 11(4) and 12 of the Evidence Act by the Supreme Court in Fosua, & Mu Poku vrs Adu Poku Mensah (2009) SCGLR 310 @ 326 leaves one in no doubt that in civil litigation the duty "on a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non existence "works in both ways. The onus having shifted on the Defendant. 1 am of the firm view that the Defendant discharged that burden.\r\n18\r\n \r\nThere was evidence that Exhibit 2 was not objected to and the same was duly executed by the Olankor Stool, allodial owners of the land in dispute in favour of the Defendant''s uncle, Emmanuel Osei-Akoto. The witnesses for the Plaintiff testified that the Stool executed Exhibit 2. The Stool did not deny that Exhibit 2 emanated from it. The allegation of fraud or mistake was not proved. Co-defendants and DWI confirmed that the land in dispute was given to 311 Co-defendant for services rendered to the Ofantcor Stool. The 3rd Go- defendant in turn sold the land to Emmanuel Osei-Akoto.\r\nIn my view the Defendant was able to establish his vendors satisfactorily in line with the Evidence Act.\r\nGround 8\r\nCounsel for the Plaintiff, to use his words stated that the "costs awarded was uncalled for." This is a complete departure from dignified Court room language. To describe costs awarded as unnecessary is in my view undesirable. Costs no doubt follow the event. Having lost a battle in a long war, the victorious party deserves costs. From the record it appears the case travelled beyond 7 years. The Defendant and Co-defendants were put to great expense to defend the action. In my view no good reason has been advanced by counsel to set aside the costs awarded by the lower Court.\r\nAdditional Ground 4\r\nIn this ground of appeal Counsel quoted part of the judgment and submitted that arising from the quotation the Court erred in law and misdirected itself by not entering judgment for the Plaintiff. The quotation is oil 154 of the record. This is what the trial Judge said;\r\n"The case of the Plaintiff was conducted placing much reliance on the al/eyed fraud by the defendants or ci mistake by the occupant of the Ofankor Stool; although the Plain tiff had pleaded fra uci, the Plaintiff and his witness Jailed to satisJàctorily explain to the Court how the defendant perpetrated the fraud. inspite of the alleged fraud all the parties including PW1 himself executed the document. Now it is difficult to understand how Nai Awushie Tetteh 1/ and all his Stool Elders; the Stool\r\n19\r\n \r\n•	Secretary and witnesses to the transaction could approve the Defendant''s grant without noticing the fraud or mistake."\r\nFurther down on Page 154 the trial judge continued that;\r\n"There is no evidence that the parties particularly the elders of the Olankor Stool labored under any mistaken belief at the time of the execution of the conveyance."\r\nCertainly in my view the above cannot be read to be a finding in respect of fraud. Counsel''s point that although the judge found fraud he nevertheless failed to enter judgment for the plaintiff is by the record absolutely incorrect. This ground of appeal cannot also he sustained as well. In the event the whole appeal is dismissed and we confirm the decision of the lower Court.\r\n(	4\r\n(JUSTICE 0	i:AL)\r\n\r\n \r\n\r\n \r\nS. IJAAMCIFE\r\n(JUSTICE OF APPEAL)\r\nCOUNSEL: \r\n•	RAY APPIAHAMPONSAH ESQ FOR THE PLAINTIFF/APPELLANT\r\n•	WILFRED BABA AVIO ESQ FOR THE DEFENDANT & CO-DEFENDANTS /RESPONDENTS\r\n70\r\n', '../links/cases/Document (222).pdf', 'Yes', 'ACQUAYE JA, DZAMEFE JA', '2011', 'appeal', '<i><b><font face="Times New Roman" size="3">Land Law - Ownership of land - Whether the defendants perpetuated fraud on the allodial owners - Indenture thumb printed by allodial owners produced by defendant as evidence - Absence of jurat clause as required by law - Whether absence of jurat clause renders the instrument invalid - Onus on both parties to adduce sufficient evidence to prove the validity or otherwise of the instrument.</font></b></i><br>', 'APALOO, J.A.', 'Civil', '', 'H1/209/2010', '', '', 'appeal', '2011-12-22', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(574, 'THE REPUBLIC\r\nVRS\r\nNII ADAMAH THOMPSON & ORS, EX-PARTE NII TETTEH AHINAKWAH II\r\nSUBSTITUTED BY FRANCIS NII AYIKAI BY ORDER OF THE COURT OF APPEAL\r\nDATED 25/3/2009', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA, A.D. 2012\r\nCORAM:	AKIJFFO [MS] JSC [PRESIDING] ANSAH JSC\r\nADINYIRA (MRS) JSC\r\nDOTSE JSC\r\nBONNIE JSC\r\nCIVIL MOTION\r\nNO.1819212011\r\n15TIIFEBRUARY, 2012\r\nTHE REPUBLIC\r\nVRS\r\n1.	Nil ADAMAH THOMPSON\r\n2.	HUMPHREY Nil TEIKO ARYEE\r\n3.	ASAFOATSE CHRISTOPHER NETTEY\r\n4.	Nil TETTEH ANKAMAH II\r\n5.	OFFEL DODOO\r\n6.	Nil ANUM TETTEH\r\n7.	OTSIAME ALIMO\r\n8.	ATAA P. OKOE ARYEE\r\n9.	NAA AYIKAILE NADOBEN I\r\n10.	JOHN ARYEETEY ARYEE\r\n11.	PERCY OKOE ADDAY\r\nEX-PARTE Nil TETTEH AHINAKWAH II SUBSTITUTED BY FRANCIS Nil AYIKAI BY ORDER OF THE COURT OF APPEAL DATED 25/3/2009\r\nCourts - Supreme Court - Leave to amend statement of case - Whether court has power to a//ow party to amend statement of case - Leave to adduce fresh evidence - Applicable Rules— Appellate Court may permit fresh evidence in the interest of justice - Lower Courts —Jurisdiction - Lack ofjurisdiction to adjudicate an issue Aggrieved party raising for the first time issue of lack of jurisdiction on appeal - Whether appellate court should entertain plea not raised in court below.\r\nRULING\r\n \r\nRULING\r\nDOTSE,J.S.C. \r\nIn their application, filed on the 2nd day of September 2011 the applicants herein seek the following reliefs:\r\ni.	Leave to file additional grounds of appeal,\r\nii.	Leave for extension of time to file amended statement of case and\r\niii.	Leave to adduce fresh evidence\r\nBACKGROUND FACTS\r\nThe application herein has its genesis in an action which commenced in the Judicial Committee of the Greater Accra Regional House of Chiefs. In that action judgment was delivered on the 17th day of February 2003, in favour of the respondent herein which inter alia, ordered the Applicants herein to handover stool regalia of the Gbese Stool to the Respondents.\r\nFollowing the failure and or refusal of the applicants herein to comply with the orders of the Judicial Committee of the Greater Accra Regional House of Chiefs to deliver the stool regalia, the respondent herein, took steps to have them committed for contempt of court.\r\nThe High Court, Accra presided over by Dzakpasu J accordingly convicted the Applicants herein of contempt. An appeal lodged by the Applicants against their conviction for contempt to the Court of Appeal was by a unanimous decision of the court dismissed on the 19th November 2009.\r\nAggrieved by the decision of the Court of Appeal, the Applicants on the 1st of December 2009 filed an appeal against the said decision.\r\n2\r\n \r\nThe instant application should therefore be understood as one seeking to add the additional grounds of appeal to those already filed, seek leave for extension of time to amend the statement of case to reflect the additional grounds of appeal and leave to adduce fresh evidence.\r\nWe will now deal separately with each of the reliefs being applied for:\r\n1. LEAVE TO FILE ADDITIONAL GROUNDS OF APPEAL\r\nIn arguing this application, learned Counsel for the Applicants, Nii Akwei Bruce Thompson stated that there is a jurisdictional issue which is germane to the substance of the suit being commenced before the Judicial Committee of the Greater Accra Regional House of Chiefs and not before the Judicial Committee of the Ga Traditional Council.\r\nThe two additional grounds of appeal that Applicants seek leave to add to the original grounds have been stated as follows:\r\n(16)	The whole judgment of the Judicial Committee of the Greater Accra Regional House of Chiefs sought to be enforced by contempt proceedings were a nullity and so absolutely unenforceable,\r\n(17)	The Greater Accra Regional House of Chiefs had no jurisdiction to hear the matter in exercise of its original jurisdiction.\r\nResponding to the arguments for the filing of additional grounds of appeal, learned counsel for the Respondents, Mr. William Adumua-Bossman argued that being a jurisdictional issue, there is no need for it to be raised specifically for it to be considered by the court.\r\n3\r\n \r\nLearned Counsel for the Respondents'', after some brief exchanges with the court agreed that no harm would be caused if the grounds of appeal on jurisdiction are specifically added.\r\nWe are accordingly of the view that since the issue of jurisdiction is basic to the commencement of any suit before any adjudicating court or tribunal, it has to be considered at anytime of the trial or appellate process. This means that, this issue of jurisdiction can be raised by the parties or counsel at anytime of the trial or on appeal even for the first time. The authorities are quite certain on this issue. See case of Republic v Adansi Traditional Council ex-pafle Nana Akyie II & Anr [1974] 2 GLR 126 holden 2 where the C.A held as follows:\r\n"A plea as to the jurisdiction of an inferior court or tribunal could be taken and heard at any time even if the point was not raised in the court below if it appeared to an appellate court that an order against which an appeal had been brought had been made without jurisdiction and it would never be too late to admit and give effect to the plea that the order was a nullity. Chief Kwame Asante v Chief Tawia [1949] W.N. 40, P.0 applied."\r\nSee also Attorney-General v Faroe Atlantic Co. Ltd. [2005-2006] SCGLR 271.\r\nIt is therefore the view of this court that, this issue of jurisdiction, even though could have been raised as a legal point, or raised suo motu by the court, once the Applicants, who are the appellants to this court have raised the issue it ought to be considered and dealt with once and for all.\r\nBesides, it has to be noted that this is the final court of the land and has appellate jurisdiction as well in chieftaincy matters. This court accordingly grants leave to the Applicants to file the two\r\n4\r\n \r\nadditional grounds of appeal stated supra to their original grounds\r\nof appeal.\r\nii. LEAVE TO AMEND STATEMENT OF CASE\r\nBy parity of reasoning, once leave had been granted the Applicants\r\nto add two (2) new additional grounds, it follows that new\r\narguments must be made to incorporate these additional grounds\r\nin the statement of case.\r\nBesides, the new additional grounds raise entirely new issues, i.e.\r\non jurisdiction. It is therefore clear that the applicants will need to\r\namend their statement of case to reflect the new grounds of appeal\r\nfor which leave has been granted them to file. Reference is made to\r\nrule 15 (11) of the Supreme Court Rules 1996 C.I. 16 which states\r\nas follows:\r\n"Despite anything to the contrary contained in these Rules, a party to a civil appeal may at any time before judgment apply to the Court to amend a part of the statement of case or in answer of that party and the Court may, having regard to the interests of justice and to a proper determination of the issue between the parties allow the amendment on the appropriate terms."\r\nIt is therefore clear from the above rule that, this court has the\r\npower and the discretion to allow a party to amend the statement of\r\ncase when the justice of the case demands or requires it.\r\nWe are therefore of the considered view that, whenever an appellate\r\ncourt, grants leave to an appellant or cross-appellant to file\r\nadditional grounds and those grounds demand that fresh\r\narguments be made to support and incorporate the said grounds to\r\nenable the court deal with the appeal holistically, the court should\r\ngrant leave to enable the statement of case if already filed to be\r\namended to reflect the new status of the appeal in order to do\r\n5\r\n \r\njustice in the case as is captured in rule 15 (11) of the Supreme Court Rules (C.I. 16).\r\nWe will accordingly grant this relief as well. Leave is hereby granted the applicants to file an amended statement of case to reflect only the two new grounds of appeal.\r\nM. LEAVE TO ADDUCE FRESH EVIDENCE\r\nIt is provided by rule 76 (1) & (2) of the Supreme Court Rules, 1996, C.I. 16 as follows:-\r\n76 (1) "A party to an appeal before the court shall not be entitled to adduce new evidence in support of his original action unless the court, in the interest of justice, allows or requires new evidence relevant to the issue before the court to be adduced.\r\n(2) No such evidence shall be allowed unless the court is satisfied that with due diligence or enquiry the evidence could not have been and was not available to the party at the hearing of the original action to which it relates.\r\nThe above constitute the rules which regulate the circumstances under which this court may permit the adduction of fresh evidence in a matter before it.\r\nBefore we proceed any further, it is important to put in proper perspective what this new evidence is or ought to be.\r\nOur understanding of new evidence is that, it is such fresh evidence that is an addition to what is already on record. Being an appeal, the evidence on record must have commenced before any of the lower courts in this case, the High Court. This court is therefore bound by the records presented before it from the lower courts inclusive of the statements of case i.e. the arguments of the parties and or their counsel based on the record as they have it certified\r\n6\r\n \r\nbefore the lower courts. The parties or their Counsel therefore must\r\nbase their arguments on this record.\r\nIt has been time tested practice that, in an appeal, the parties and\r\nthe court are bound by the record and no one is permitted to\r\nmanufacture evidence or refer to any evidence that cannot be\r\nsupported by reference to evidence on record.\r\nTaking the provisions of rule 76 (1) and (2) of C.I. 16 as a guide, it\r\nmeans therefore that, this court can only allow a party to adduce\r\nfresh evidence under any of the following circumstances.\r\na. The Court must be satisfied that the said evidence could not\r\nhave been available to the party applying at the first instance\r\nafter:\r\ni.	due diligence or\r\nii.	enquiry was made\r\nb.	It must be in the interest of justice.\r\nc.	It must be relevant to the issue before the court.\r\nIn our mind, even before the court considers whether it is in the\r\ninterest of justice and or relevant for the new evidence to be\r\nadduced, the more fundamental and critical issue to consider is\r\nwhether the evidence could not have been available to the party\r\napplying after due diligence or enquiry of same had been made.\r\nThis principle was well addressed by Scrutton L.J. in Nash v Rochford Rural District Council [1917] I KB 384 at 393 where\r\nhe stated thus:\r\n"The principle which I have to apply is, I think, the principle stated by Lord Chelmsford in the case of Shedden v Patrick (1869) LR I HL SC 470 at 545 in these words: "It is an\r\n7\r\n \r\ninvariable rule in all the courts, and one founded upon the clearest principles of reason and justice, that if evidence which either was in the possession of parties at the time of a trial, or by proper diligence might have been obtained, is either not produced, or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by the granting (of) a new trial. That is the principle which was acted upon by this court in the first application in the case of HMS Hawke [28 Times LR 319] I take the reason of it to be that in the Interests of the state, litigation should come to an end at some time or other and if you are to allow parties who have been beaten In a case to come to court and say "Now let us have another try; we have found some more evidence, you will never finish litigation, and you will give great scope to the concoction of evidence".\r\nWe also take note of the reference by learned Counsel for the Respondent, Mr. William Adumua-Bossman to the well established rules in circumstances such as the instant one laid down by Denning LJ in the case of Nash v Marshall [1954] I WRL 1489 at 1491 CA or 1954 3 A.E.R 745 at 748 CA as follows:\r\n"First it must be shown that the evidence could not have been obtained with reasonable diligence for us at the trial."\r\nSecondly, the evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive.\r\nThirdly, the evidence must be such as is presumably to be believed or in other words it must be apparently credible, though it need not be incontrovertible."\r\nThe Supreme Court was called upon to make such a determination in the case of Poku v Poku [2007-2008] SCGLR 996 when it\r\n8\r\n \r\nconsidered rule 26 (1) 86 (2) of the Court of Appeal Rules, 1997 (C.I.\r\n19) which are in pan i materia to rule 76 of (C. I. 16) already referred\r\nto supra.\r\nThe Supreme Court held on the core issues raised in the appeal by\r\na majority decision of 4-1 as follows:\r\n"On construction, the adduction of fresh or new evidence in the interest of justice" as provided in rule 26 (1) of the Court of Appeal Rules, 1997 (C.I. 19) was clearly delimited by the factors delineated in rule 26 (2). Consequently, in an application to lead fresh or new evidence before the Court of Appeal, the first criterion, which an applicant ought to establish, was whether the evidence sought to be adduced, was neither in the possession of the applicant nor obtainable by the exercise of reasonable diligence or human ingenuity before the impugned decision was given by the lower court. It was only when that first hurdle had been surmounted, that the court should proceed to determine the other pertinent question of whether or not the intended evidence would have a positive effect on the outcome. If the first criterion was not met, no useful purpose would be served by examining the other factors".\r\nWhat is deducible from this Poku v Poku case referred to supra, is\r\nthat, the rule on adduction of new evidence exists to assist an\r\napplicant who has exhibited signs that he has made really\r\nstrenuous and genuine efforts at getting this evidence but has met\r\nobstacles or that the evidence was not available to the party at the\r\nmaterial time.\r\nThe rule on adduction of new evidence is therefore not one which is\r\nof general application to a party who desires same. The court is\r\nmandated under the rules, to be satisfied that the criteria set out\r\nabove are met before it can be considered.\r\n \r\n9\r\n \r\nNow, what is the evidence that the Applicants want to adduce in this case as new evidence?\r\nThe evidence which the Applicants are seeking to introduce as new evidence is made up of the following.\r\n1. EXHIBIT B\r\nHearts News, a sports paper of one of the leading football teams in Ghana and based in Accra of Tuesday 1st May, 2007 with the picture of one Nii Ayi Bonte II, under the caption "Hail the new Ubese Mantse, Nil Ayi Bonte II - Tommy, New Gbese Mantse"\r\nH. EXHIBIT C\r\nThe second is the Daily Graphic of Friday 8th June 2007 - which also contains a picture of one Nii Tetteh Ahinakwa II, described as Regent of Obese, beating divine drums to signify the lifting of the ban on noise making.\r\niii.	Exhibits D and E, are photographs of events that took place and reputed to be those of Nii Ayi Bonte II and his elders beating the drums to signify the lifting of the ban on noise making on 12/6/2008 at the forecourt of the Obese Palace, and of some youth reputed to be Obese Youth, conveying drums to an event.\r\niv.	By far, exhibit F is the most authentic record of the fact that on the 27th day of April 2007, those reputed to be kingmakers of Obese, installed a new Chief of Obese and accordingly informed the Minister of Chieftaincy Affairs and other stakeholders.\r\nThe explanation given by the Applicants for their inability to include all these facts or evidence in their original evidence or depositions before the High Court was that, they filed their affidavit in opposition as well as statement of case on 22nd January 2007 and\r\nin]\r\n \r\n14th February 2007 long before these publications and or events took place.\r\nOne hurdle that the Applicants must clear in their bid to adduce those fresh pieces of evidence is that, those pieces of evidence could not have been obtained with reasonable diligence at the trial.\r\nIf indeed, it is the contention of the Applicants that the Obese stool paraphernalia which they have been ordered to handover is already in the possession of the Respondents and that they made use of it in the installation of Nii Ayi Bonte II and on other occasions as depicted in Exhibits B, C, D and E, then it behoves on them to satisfy this court that despite the publication in these widely circulating newspapers they were unable after diligent and reasonable effort, to know about the said publications and state of facts.\r\nBesides, we have seen a copy of proceedings dated 4th July, 2007 held before the High Court, Accra, presided over by Dzakpasu J, wherein an application for bail for the Applicants herein, therein Respondents was moved by their Counsel, Nii Akwei Bruce Thompson after their conviction for contempt.\r\nThis proceeding is attached and marked as Exhibit A, to an affidavit sworn to by Nii Akwei Bruce Thompson on 4/11/2011.\r\nIn those proceedings, coming after the publications referred to as the source material for the new evidence had been published, the Applicants herein never informed the High Court which convicted them for refusing to release the stool paraphernalia that the stool regalia was rather with the Respondents and that they had used them on this and that occasion. Indeed that was a convenient occasion for the Applicants to have raised these issues of the new evidence if they had been diligent. Again in exhibit FNA7, the Applicants herein, therein Respondents at the Court of Appeal, on the 22nd day of December 2009, through their Counsel gave an\r\n11\r\n \r\n\r\nundertaking to the Court to comply with the orders of the Judicial Committee of the Greater Accra Regional Tribunal of 171h February 2003. This was the order directing the Applicants to surrender or release the stool of Obese and other paraphernalia to the Respondent and his elders.\r\nThe publications contained in exhibits B & C and the pictures in exhibit D and E really does not absolve the Applicants from compliance with the orders complained of In any case, it is too late in the day, for the Applicants to contend that the stool regalia they have been ordered to release to the Respondent is rather with them and which they had used on the occasions referred to.\r\nWe have also taken into consideration the effect the proposed new evidence will have on the case. To what influence then, would such an evidence as has been depicted in exhibits B, C, D, E and F have on this case where the Applicants have been convicted for contempt for refusing to comply with the orders of the Judicial Committee of the Greater Accra Regional House of Chiefs made on 17th February 2003? All the events took place after their conviction and could not have influenced the Committee in their decision.\r\nThe fact that a new Obese Mantse has been installed by the Respondent and the fact of performance of rituals using cloth and drums which perhaps form part of the stool regalia of the Obese Stool cannot on their own absolve the Respondents from the allegations which led to their conviction. Those events, if at all they are true, (which have been denied) occurred long after the orders being complained of had been made.\r\nIn essence, we are of the view that, the new evidence being sought to be adducted is not in the interest of justice and will also becloud the Issues before the court. That is to say, the new evidence apart from not advancing the course of justice in this case is also not relevant to the determination of the issues before this court.\r\n12\r\n \r\nTo this end, this court is of the considered view that the Applicants have not satisfied the established criteria based upon the rules of court and decided case law to enable them be granted leave to adduce fresh evidence in this case.\r\nCONCLUSION\r\nWhilst this court grants leave to the Applicants to add two additional grounds of appeal in terms set out supra and also grants them leave to file an amended statement of case to embody or incorporate the said two new grounds of appeal only, the application to adduce new evidence is refused as not having met the established standard required in law.\r\n(56Th J. V. M. DOTSE\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) S. A. B. AKUFFO (MS.)\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) J. ANSAH\r\nJUSTICE OF THE SUPREME COURT\r\n(SGD) S. 0. A. ADINYIRA (MRS).\r\nJUSTICE OF THE SUPREME COURT\r\n13\r\n \r\n(SCD) P. BAFF0E-BONNIE\r\nJUSTICE OF THE SUPREME COURT\r\nCOUNSEL: \r\nNil AQUAYE BRUCE-THOMPSON FOR THE APPLICANTS. ADUMUA BOSSMAN FOR THE RESPONDENT\r\nI	,,i, It...Fr ., '',:•\\4.: ''	4. -‘,	.,..•....\r\n.,	\\\r\n.	,\r\n, 0 ,,!,...,	_\r\n\\	\\	t..0.,,,,\r\n \r\n14\r\n', '../links/cases/Document (223).pdf', 'Yes', 'ANSAH,J.S.C., ADINYIRA (MRS.),J.S.C., DOTSE,J.S.C., BONNIE J.S.C', '2012', 'supreme', '<i><b><font face="Times New Roman" size="3">Courts - Supreme Court - Leave to amend statement of case - Whether court has power to allow party to amend statement of case - Leave to adduce fresh evidence - Applicable Rules - Appellate Court may permit fresh eviden in the interest of justice - Lower Courts - Jurisdiction - Lack of jurisdiction to adjudicate an issue - Aggrieved party raising for the first time issue of lack of jurisdiction on appeal - Whether appellate court should entertain plea not raised in court below.</font></b></i><br>', 'AKUFFO (MS), J.S.C', 'Civil', '', 'J8/92/2011', '', '', 'supreme', '2012-02-15', '');
INSERT INTO `courtrulings` (`id`, `title`, `content`, `link`, `isshow`, `author`, `date`, `courttype`, `summary`, `presiding`, `casetype`, `subjectmatter`, `caseno`, `counsel1`, `counsel2`, `courtname`, `caseDate`, `subjectmattertitle`) VALUES
(575, 'THE REPUBLIC\r\nVRS\r\nNATIONAL HOUSE OF CHIEFS  ...  RESPONDENT/RESPONDENT/RESPONDENT\r\nEX-PARTE: ODENEHO AKROFA KRUKOKO II  ...  APPLICANT/RESPONDENT/APPELLANT\r\nOSAGYEFO KWAMENA ENIMIL VI  ...  INTERESTED PARTY/APPELLANT/RESPONDENT', 'IN THE SUPERIOR COURT OF IUDICATURE\r\nIN THE SUPREME COURT\r\nACCRA -GHANA\r\n\r\n	\r\n\r\nCIVI APPEAL\r\n14/18/2009\r\n2N1) DECEMBER, 2009\r\n\r\n	\r\n\r\nOSAGYEFO KWAMENA ENIMIL VI ... INTERESTED PARTY/APPELLANT/RESPONDENT\r\nChieftaincy—Chief--National Register of Chiefs—Applicant applied for mandamus to Re-instate name - State Proceedings—Mandamus—Application for—Time frame for application—High Court (Civil Procedure) rules, 1954 (iN 140A) - Whether order 59 Rule 13 does not apply to mandamus—Time should run after demand to perform duty has been met with refusal —Stare Decisis - 1992 Constitution, art 136(5)—Decision of Higher courts binding on lower courts for certainty of law— Interlocutory judgments—Final and other interlocutory judgments - Distinction\r\nIUDGMENT DR. DATE-BAH ISC: \r\nWhat is before this Court is an appeal from proceedings that were initiated by an ex parte motion for leave to apply for an order of mandamus which was heard at the High Court, Kumasi. The motion was flied on 611, September 2004 and it\r\n \r\nsought liberty to apply for an order of mandamus requiring the respondent, namely the National House of Chiefs:\r\n"(1) to delete from the National Register of Chiefs the name and particulars of Osagyefo Kwamena Enimil VI as Omanhene of the Wassa Fiase Traditional Area, And\r\n(2) to re-instate in the said Register the name and particulars of the Applicant as the Paramount Chief of the Wassa Fiase Traditional Area,\r\nAnd for such further or other order as to this Hon. Court may appear just or proper."\r\nThe applicant claims to be the Omanhene of the Wassa Fiase Traditional Area in the Western Region. He deposed to an affidavit in support of his motion in which he affirmed that he was enstooled the Omanhene of that traditional area in June 1994 in accordance with custom and usage. His name and particulars were then duly recorded in the National Register of Chiefs by the National House of Chiefs. In November 1994, two cousins of the applicant brought a petition in the Western Region House of Chiefs challenging his nomination as Omanhene. The applicant''s affidavit evidence declared that this petition together with an interim injunction restraining him from holding himself out as Omanhene and President of the Wassa Fiase Traditional Council were never served on him. Nevertheless, in May 1995, the applicant together with his mother, the Queenmother, and all his kingmakers were convicted of contempt by the High Court, Sekondi, for infringing the said interim injunction. This conviction was subsequently quashed by the Supreme Court in December 1995. In November 1998, the applicant was again convicted of contempt of the Regional House of Chiefs by the High Court, Sekondi, in respect of an incident involving his receiving an oath of allegiance from a Divisional Chief. This conviction was also set aside by the Court of Appeal in April 1999. Finally, the applicant was convicted by the High Court, Sekondi, in April 2002 for continuing to hold himself out as Omanhene in spite of the interim injunction of 1994. The applicant was sentenced to 14 days imprisonment, without the option of a fine, and he served 14 days in the Central Prison, Sekondi. Whilst the applicant was in prison, he was informed that the Reverend William Chika Morgan had been nominated, elected and installed as the new Omanhene of Wassa Fiase by persons who, according to the applicant, had no right to do so. This new Omanhene is Osagyefo Kwamena Enimil VI, the interested party in this suit.\r\nOn his release from prison, the applicant learnt further that the name of the new Omanhene had been recorded in the National Register of Chiefs and the applicant''s name deleted from it, without the necessary consultation with the\r\n \r\nResearch Committee of the Western Region House of Chiefs and the Research Committee of the National House of Chiefs. In July 2003, the applicant''s conviction for contempt was also set aside by the Court of Appeal.\r\nIn November 2003, the interested party brought suit in the High Court, Sekondi, against the applicant and the Interim Registrar of the Wassa Fiase Traditional Council for an interim injunction and prohibition. These remedies were sought by the interested party to restrain the applicant from holding himself out as the Omanhene of Wassa Fiase, pending the determination of a declaratory suit that he had brought against the applicant in the High Court, Sekondi. The High Court granted him the reliefs but these were quashed by the Supreme Court in January 2004. Subsequently, the interested party withdrew his declaratory action from the High Court. Meanwhile in May 2002, the petitioners before the Western Region House of Chiefs discontinued their chieftaincy case against the applicant.\r\nIn the light of these developments, the applicant has been engaged, from about October 2002, in a process to persuade the National House of Chiefs to delete the name and particulars of the interested party from the National Register of Chiefs and to reinstate his name and particulars on that Register as the Omanhene of the Wassa Fiase Traditional Area. The applicant''s leading counsel wrote a letter dated 6th February 2004 to the Registrar of the National House of Chiefs, setting out a sequence of requests by various lawyers on behalf of the applicant that his name be restored to the Register. The letter of 6th February was expressed to be a final request. If the applicant''s name was not restored to the Register within 14 days, the applicant''s counsel indicated that legal action would be launched against the respondent.\r\nOn 6th September 2004, Ansu-Gyeabour J, sitting at the Nigh Court, Kumasi, granted the applicant leave to file an application on notice for mandamus. That application on notice was duly filed and, on 21st September 2004, the applicant was granted an order for substituted service of it on the interested party. The answer of the respondent and the interested party to that step was to file a motion on notice to dismiss the applicant''s suit as incompetent and misconceived. The respondent and interested party argued that on 28th November 2003 the applicant had applied to Abraham J. at the High Court, Kumasi, for extension of time to file mandamus. This application had been dismissed in a ruling of 15th December 2003 by Abraham 3. Secondly, the events in respect of which the applicant was seeking mandamus had occurred two years before the application for leave to apply for mandamus was filed. They contended that since the application for leave, which initiated the present proceedings, had been filed without first praying for an extension of time within which to file it, the application was incompetent and the whole action was void.\r\n \r\nHis Lordship Ansu-Gyeabour J. made two major rulings in this case. The first was on 20th May 2005 when he overruled the objections of the interested party and the respondent based on their argument that the mandamus application was in substance a cause or matter affecting chieftaincy and secondly that the case was estopped per rem judicatam on account of the earlier ruling by Abraham\r\non a motion for enlarging time within which to seek leave to apply for mandamus. This first tranche of litigation travelled through the Court of Appeal to the Supreme Court, which held that the application was not a cause or matter affecting chieftaincy, reversing the Court of Appeal''s decision to the contrary. The Court of Appeal had also held earlier that the suit was not estopped per rem judicatam. The Supreme Court confirmed this and remitted the case to the High Court to consider the application for mandamus on its merits.\r\nIt was when the High Court heard the remitted application for mandamus that the second major ruling by Ansu-Gyeabour J. was made on 18th February 2008. He again dismissed an application from the respondent that the applicant''s initial motion for leave to apply for mandamus was incompetent. The reason adduced this time by the respondent for its challenge was that the leave upheld in the first ruling of Ansu-Gyeabour J. did not cure the mischief in the application, namely that the applicant had not sought nor had he been granted an extension of time within which to apply for leave under the old 1954 civil procedure rules. The respondent appealed to the Court of Appeal, which upheld his appeal. It is from this second judgment of the Court of Appeal in this case that the applicant has appealed to this Court. The applicant''s grounds of appeal are as follows:\r\nI.	"The Court of Appeal erred by failing to make the primary findings that the remedy of mandamus is based on demand and refusal, and that the conventional 6 months time limit for commencing mandamus proceedings is reckoned from the date of refusal but not from the date of demand.\r\nII.	The Court of Appeal further erred by failing to find that since the Appellant''s earlier purported mandamus application before Mr. Justice Abrahams was not based on the Appellant''s failure to apply within 6 months of refusal by the National House of Chiefs of the demand for his name to be restored to the National Register of Chiefs, no issue estoppel arose from the said Justice''s Ruling of dismissing the Appellant''s said application for mandamus (not based on demand and refusal) so as to operate in bar of the instant application for mandamus based, as it was, on demand and refusal.\r\nIII.	The Appeal Court again erred by failing to appreciate that Order 59 r.3 of the former High Court Civil Procedure Rules (LN 140A), properly construed, applies only to certiorari and not to a mandamus application.\r\n \r\nIV.	The Court of Appeal misdirected itself by failing to appreciate that its earlier decision in Rep. v National House of Chiefs & Ors: Ex Parte Faibil III & Ors [1984-861 2 GLR 731, CA, was given per incuriam of weighty decided authorities holding that mandamus is based on demand and refusal.\r\nV.	The Court of Appeal misdirected itself by refusing to accept that in exercising its discretion to elect between its old decision on mandamus based on demand alone on the one hand and on the other hand its conflicting recent decision in mandamus based on demand and refusal, it ought to have properly chosen the modern judicial approach recognizing that mandamus is based on demand and refusal.\r\nVI.	The judgment was against the weight of the affidavit evidence."\r\nOn these grounds of appeal, a few general principles of law arise for consideration and elucidation before they are applied to the determination of this appeal. These include the scope of the doctrine of estoppel per rem lud/catam and whether it applies to interlocutory rulings and judgments. Also needing to be clarified is the scope of the doctrine of judicial precedent in Ghana and the extent to which the Court of Appeal is bound by its own previous decisions. Thirdly, there is need to examine the preconditions for the invocation of the remedy of mandamus.\r\nThe plea of resjudicata is a well-established part of our law and it is usually expressed to be based on a final judgment. Thus Acquah JSC, as he then was, delivering the judgment of the Supreme Court, said in In re Sekyedumase Stool: Nyame vKese alias Konto[1998-99] SCGLR 476 at p.478:\r\n"My lords, the plea of resjudicata is never a technical plea. It is part of our received law by which a final judgment rendered by a judicial tribunal of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action."\r\nHe goes on next to express a view on whether interlocutory judgments can found resjudicata in the following terms (also on p. 478):\r\n"As to how far interlocutory judgments can give rise to a successful plea of resfudicata, one has to distinguish between judgments by defaults (of appearance or defence) and summary judgment under order 14 of the High Court (Civil Procedure) Rules, 1954 (LN 140A), (assuming this is regarded as interlocutory) which, if successful, would require a determination of the merits of the case. In Conca Engineering Ltd. v\r\n \r\nMoses [1984-86] 2 GLR 319, our Court of Appeal held, relying on New Brunswich Railway Co. v British & French Trust Co. Ltd. [1939] AC 1,HL that a default judgment is binding only as to defences which it has necessarily and precisely decided: see also Laryea v Oforiwah [1984-86] 2GLR 410, CA."\r\nThis statement of the law would at first sight appear to be in conflict with the following statement made in Republic v High Court, Accra (Commercial Division); Ex parte Hesse [2007-2008] SCGLR 1230 at p. 1247, where Wood 0, delivering the judgment of the Supreme Court, said:\r\n"And this court''s decision in Dahabieh v SA Turqui & Bros [2001-2002] SCGLR 498 at p. 507, undoubtedly earlier in time, reinforces these legal principles. It was stated (at page 507 of the Report) that:\r\n"it is well-settled under the rule of estoppel that if a court of competent jurisdiction has tried and disposed of a case, the parties themselves and their privies cannot, thereafter, bring an action on the same claim or issue. The rule covers matters actually dealt with in the previous litigation as well as those matters which properly belonged to that litigation and could have been brought up for determination but were not raised."\r\nThese legal principles are applicable not only to substantive actions, but interlocutory matters as well."\r\nThe wide statement of law embodied in the last sentence of this passage, however, needs to be narrowed down in the light of the actual facts of the case in relation to which it was formulated. The Ex parte Hesse case concerned litigation arising from a default judgment. The plaintiff in the case had obtained a judgment in default of defence in the High Court against the first defendant company for the reliefs claimed. The first defendant then applied to the High Court to set the default judgment aside. The High Court, in April 2007, dismissed the application. To simplify a more complicated story, my summary of the facts would indicate that the first defendant filed another motion to set aside the default judgment in February 2008 and for leave to file a defence. This was granted by the High Court in April 2008. It was on these facts that the Supreme Court had to determine whether the second application for the default judgment to be set aside was estopped per rem judicatam. Although the applicant argued that its reason for seeking the setting aside was different for the two applications, the Court was of the view that this was no reason to avoid the effect of estoppel. Wood 0 explained that (at p. 1245):\r\n \r\n"This argument suggests that parties are entitled to break up their defences into parts or segments only to present them as and when they wish. Our jurisdiction must frown on such practices. Parties must be held accountable to presenting all of their known and conceivable claims or defences at a go, not piecemeal; for an effectual resolution of all matters in controversy between them, for there must be an end to litigation. There is an urgent need to discourage piecemeal litigation; it ought not to be granted a foothold in our judicial arena, as it offends all the known principles of law and best practices."\r\nWhilst the learned Chief Justice is right to emphasise this policy objective, in relation to default judgments, the distinction that Acquah JSC makes in In re Sekyedumase Stool: Nyame v Kese alias Konto (supra) between default judgments and other interlocutory judgments is an important one and legally significant. Indeed, some default judgments are final judgments. The recent decision of this Court in Mensah & Anor v Intercontinental Bank (Cl,) Ltd, unreported judgment of the Supreme Court delivered on 26th November 2009, suit no. CA 34/13/2009, illustrates a final default judgment which was held to create an estoppel per rem judicatam. Her Ladyship Sophia Adinyira JSC, delivering the judgment of the Court, observed as follows:\r\n"It is settled law that a party is not estopped by default judgment except as to the matter directly decided. The rule therefore applies even to interlocutory matters. See dictum of the learned Chief Justice Georgina Wood in the case of Republic v. High Court, Accra (Commercial Division); Ex pafle Hesse (In vestcom Consortium Holdings SA & Scancom Limited, Interested parties) [2007-2008] SCG''LR 1230. We are however of the view that for estoppel to apply in such interlocutory matters, the issue or question involved ought to have been conclusively determined in one way or the other between the parties in the first action. The above principles have been followed by this court in cases such as Oforiwah v. Laryea [1984-86] 2GLR 410, In re Sekyeredumase Stool; Nyamev. Kesse alias Konto [1998-99] SCGLR 476, Dahabieh v. S.A. Turqui & Bros [2001-2002]SCGLR 498, In re Kwabeng Stool; Karikari v. Ababio II [2001-2002] SCGLR 15."\r\nIt is doubtful whether other interlocutory judgments create estoppel per rem judicatam. Indeed, Phipson on Evidence (15th Edition, Sweet & Maxwell, 2000) states (at p. 990) that:\r\n"The rule that a judgment is open to challenge unless final is of importance principally in other proceedings on different substantive questions between the same parties. It also has the important practical\r\n \r\neffect that the failure of an interlocutory application is no bar to its renewal."\r\nBy way of illustration, Phipson cites Buttes Gas & Oil Co. v Hammer [1982] AC 888, HL, where the House of Lords in 1975 refused leave to appeal against a decision of the Court of Appeal, but in 1980 granted leave to appeal out of time from the same decision. Thus the assertion in the Ex parte Hesse case that the legal principles on estoppel per rem judicatam are applicable not only to substantive actions, but also to interlocutory matters was probably phrased too broadly and is not part of the ratio decidendi of the case. A distinction needs to be drawn between interlocutory judgments that are final and other interlocutory judgments. Interlocutory decisions which determine an issue or question in the course of proceedings which are ongoing can be final and conclusive for res judicata purposes. It depends upon the particular facts of the case. A criterion for determining finality has been articulated by Lord Diplock. In D.S. V Silo-und Verwa/tungsgessellschaft mbh v Sennar (Owners), The Sennar (No. 2) [1985] 1 WLR 490, Lord Diplock there said that a decision is final if it "is one that cannot be varied, reopened or set aside by the court that delivered it or any other court of co-ordinate jurisdiction although it may be subject to appeal to a court of higher jurisdiction."\r\nIn the case of Pocklington Foods Inc. v. Alberta (Provincial Treasurer), (1995) 123 D.L.R. (4th) 141, the Alberta Court of Appeal determined that res judicata and issue estoppel did not apply to procedural interlocutory motions. I agree with this view of the law and I am not aware of any Ghanaian precedent to the contrary which is binding on this Court. I consider therefore that this Court should follow the persuasive authority of that decision. This view is also in accord with the opinion of the leading textwriter on the Ghanaian law of evidence, the late Justice Ofori Boateng, who in his The Ghana Law of Evidence (at p.18) spells out certain preconditions which have to be established first before estoppel per rem judicatam can apply. Among these he spells out the following:\r\n"(i) that the judgment was final, in that it determined the disputed rights of the parties in the case, and was not just an interlocutory judgment, for example, a preliminary matter such as interim injunction, or committal order in a criminal trial, or a coroner''s finding relating to cause of death.\r\n(iv) that the judgment was on the merits of the case. A judgment will not be on the merits of the case if, for example, the case was dismissed for want of prosecution, or in default of appearance or any procedural step. Nolle prosequi granted will not constitute a decision on merits. In a civil action a case discontinued before\r\n \r\n•\r\njudgment will also not be a judgment on the merits of the case. But a party to a suit who suffers an adverse judgment through default will be estopped from raising a defence in a subsequent judgment;..."\r\nHowever, even for those interlocutory decisions that are not final, the fact that res judicata does not apply to them does not imply that a party can endlessly apply for the same reliefs from the courts in those circumstances. The courts'' power to restrain abuse of process can be used to halt unmeritorious repetitive interlocutory applications.\r\nThe next legal issue that needs to be examined is the effect of a binding decision of the Court of Appeal on subsequent cases before the Court of Appeal itself and the High Court. This issue is poignantly raised and resolved by the judgment of the Court of Appeal (per Apaloo JA) in this case, as follows (at p. 156 of the Record):\r\n"It is of great concern also that when Ansu Gyeabour J. departed from the decision in Ex Parte Faibils case he chose to pose for consideration of his court three irrelevant questions concerning the interpretation of Order 59 Rule 3 which in our view, would be unnecessary if he had come to the conclusion that the Court of Appeal was superior to his Court and therefore that Court''s decision was binding on him. He rather chose to dissect the decision as if he was exercising concurrent jurisdiction with the Court of Appeal. The beauty in stare decisis is that we respect the views of our Senior Judges as well as ensuring that decisions handed down to us are followed for certainty in the law."\r\nThe view expressed in this passage represents orthodoxy and is reflected in Article 136(5) of the 1992 Constitution which provides that:\r\n"Subject to clause (3) of article 129 of this Constitution, the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decisions of the Court of Appeal on questions of law."\r\nThe clause 3 of Article 129 referred to in this provision deals with the Supreme Court''s right, while treating the Court''s own previous decisions as normally binding, to depart from its own previous decisions when it appears to it right to do so. Does the explicit recognition of an exception for the Supreme Court, which is allowed a more liberal doctrine of judicial precedent, imply that the Court of Appeal, and the High Courts when following that court, are bound by a\r\n \r\nstricter doctrine of judicial precedent? This would appear to be a logical and rational inference.\r\nThe applicant/appellant has sought to soften the rigidity of the stark strict doctrine of stare dec/s/s provided for in Article 136(5) by pointing to the effect of case law as follows:\r\n"The	Respondent/Appellant''s	complains	(sic)	of	the\r\nApplicant/Respondent''s breach or violation of the principle of stare decisis\r\nby reference to section 10(5) of the Courts Act, 1993. But it is immediately submitted that the Respondent/Appellant could not be more wrong. The application of the classic case of Young v Bristol Aeroplane Co. Ltd. [1944] KB 718, CA or [1944] 2 All ER 293, to decisions of the Court of Appeal in England has been accepted with approval and applied in Ghana: Kobina Osmanu v Kofi Amadu & 2 Ors. (1949) 12 WACA 437; Tanor v Dapomah [1960] GLR 241 (High Court); Reindorf & Ankrah v Amadu, Braimah & Nikoi Olai [[1962] 1 GLR 508, SC; Loga v Davordzi [[1966] GLR 530, SC; Asare & Ors v The Republic [1968] GLR 37 at 48¬49, CA, (Full Bench). So also the Supreme Court in Sarkodee I v Boatenci II [1982-83] GLR 715. The Bristol Aeroplane case (supra) decided (inter alia) that (in accordance with the principle of stare decisis):\r\nI.	The Court of Appeal is on principle bound to follow its own previous decisions.\r\nII.	Exceptionally, however, it is not bound to follow its previous decisions which were given per incuriam or in oversight of some relevant statutory provision or decided authority.\r\nIII.	In the event that there are two conflicting decisions of its own, the Court is entitled to choose which of the decisions it will follow: see [1944] KB 718 at 726 per Lord Greene, MR."\r\nWith respect, the reference to Sarkodee I v Boateng II (supra) is a little disingenuous, since the judgment in it which refers to the Bristol Aeroplane case is the dissenting judgment of Taylor ]SC, which is not necessarily a precedent to be followed. This is what the learned judge had to say (at pp. 763-764):\r\n"Azu Crabbe C.J. delivering the majority judgment in Sarkodee I v. Boateng II conceded at p. 348 that if it is shown that that his statement of the customary law is "contrary to a decision of the Court of Appeal or the highest court of the land for the time being" (the emphasis is mine) then it ought not to be considered a correct statement. Here is the decision of the highest court in the land delivered by the full bench on 7 September 1892, by Hutchison C.J. then the Chief Justice in Ghambrah v.\r\n \r\nKwamina Ewea (1892) Sar. F.L.R. 64 and Hayes Redwar Ag. J. so well known to the students of our legal system.\r\nAnd the decision contradicts Azu Crabbe C.J.''s majority decision and the majority decision in this case. My Lord the Chief Justice who has given the majority view in his judgment framed the Azu Crabbe C.J.''s proviso differently. He would only reject the statement of the customary law by the National House of Chiefs if "it is in conflict with a binding judicial decision." Well, here is a binding judicial decision, and if it is not binding the reason why it is not binding should be [p.764] shown. I think with respect, the decision of my Lord the Chief Justice acquiesced in by my brother Adade J.S.C. was given per incuriam for failure to consider the effect of Order No. 4 of 1904 on the Akwapim destoolment case and the 1892 Ghambrah case and this is so on the authority of Young v. Bristol Aeroplane Co., Ltd. [1944] 1 K.B. 718, C.A. With respect, I am not and would not consider myself as bound by the majority decision in this case: see article 116 (3) of the Constitution, 1979."\r\nAlthough the judgment of Taylor JSC was a dissenting one and therefore not necessarily an authoritative source of law, his reliance on the Bristol Aeroplane case and his view that the judgment of the Full Bench of September 1892 was binding on the Supreme Court of 1983 merits discussion. To rephrase the issue, the question for consideration is this: is the Court of Appeal under the 1992 Constitution bound by its previous decisions without exception or are the exceptions formulated by the Bristol Aeroplane case applicable to its decisions? Secondly, is the Court bound by its decisions given since the coming into force of the Constitution in January 1993 only or is it bound by all appellate courts that have exercised jurisdiction in relation to the territory of Ghana? When I refer to "bound", I mean a binding precedent, as opposed to a persuasive precedent. It is reasonable to contend that the only binding precedents are those handed down subsequent to 1993 and that the previous decisions are merely persuasive, although they carry a high degree of persuasiveness. Such a view of the operation of the doctrine of precedent in our jurisdiction would make for greater flexibility in adapting the law to social change and make the need to resort to the principles of the Bristol Aeroplane case less frequent, assuming that they have any applicability to the existing courts of Ghana.\r\nAddressing the second issue first, I think that the doctrine of precedent established by article 136(5) applies only to the Court of Appeal and the lower courts established by the 1992 Constitution. I consider that the pre-1993 cases are persuasively binding, but they do not fall into the strict doctrine of precedent underlying article 136(5).\r\n \r\nBut what of the cases decided by the Court of Appeal since the coming into force of the 1992 Constitution? Is the Court of Appeal absolutely bound by them or are the exceptions identified in the Bristol Aeroplane case applicable to them and, if so, on what basis?\r\nIf all the pre-1993 precedents are of merely persuasive authority, then a strict interpretation of article 136(5) as excluding the Bristol Aeroplane exceptions would be reasonable. (However, the exception relating to the right to choose between conflicting previous decisions is reasonable and adoption of a similar rule is probably almost inevitable.) Such an interpretation would vest the task of departing from previous binding decisions exclusively in the Supreme Court, in accordance with article 129(3). It would buttress certainty and predictability in the case law, alongside the flexibility coming from the clarification that pre-1993 cases are only of persuasive authority. It would also be in accord with some earlier judicial expressions of opinion in favour of deference for binding precedent. For instance, Francois 3 (as he then was) said in Sogbaka v Tamakloe [1973] 1 GLR 25 at p. 27\r\n"It seems therefore to some extent material to ascertain whether the suit is to be determined under customary law or the common law. Following Attiase v. Abobbtey (supra), I am of the view that a party need not elect which law he is proceeding with. If it appears on the consideration of the whole facts that the law applicable is customary law it should prevail. I have considered the criticism of Attiase v. Abobbtey on this method of resolving the applicable law, contained in Nkrumah v. Manu [1971] 1 G.L.R. 176. I do not think in principle such a criticism is well founded. Secondly, I feel that whereas I am bound by Attiase v. Abobbtey no such restrictions affect me with regard to the Nkrumah v. Manu case.\r\nIf I may borrow from judicial practice elsewhere, I would cite with approval the statement of Davies L.J. in Lane v. Willis [1972] 1 All E.R. 430 at p. 435, C.A. that it is undesirable for a lower court to criticise as wrong a binding authority of a higher court. In that case Lawson J.''s criticism of a judgment of Lord Denning M.R. in Edmeades v. Thames Board Mills, Ltd. [1969] 2 All E.R. 127, C.A. was condemned. And this is as it should be. I have always found it difficult to appreciate the reasoning which acclaims a decision as binding and authoritative and yet subjects it to criticism. The principle of stare decisis as I understand it, prohibits such public ventilation of dissent sometimes dragged to lengths of decrial. On this aspect, I would like to quote an observation of van Lare Ag.C.J. in the case of Kwami v. Quaynor [1959] G.L.R. 269, C.A. where the learned acting Chief Justice decried attacks on previous judgments of superior courts..van Lare Ag.C.J. said at p. 277, "I would not wish to be understood as agreeing with the obiter dicta in which the learned Judge\r\n \r\nunfortunately indulged when criticising the judgments which came under review by him." If this rule is not strictly enforced the authority of a precedent may be whittled away by gradual and piece-meal judicial nibbling. The judge''s duty to allay doubts with positive decisions would then have turned to the creation and multiplication of doubts.\r\nFrancois J, as he then was, of course, was right in asserting that a High Court judge must accept the authority of the Court of Appeal and follow its binding decisions, whether he or she agrees with it or not.\r\nOfori-Boateng JA, as he then was, also delivered himself of a dictum in Essiem v The Republic [1993-94] 1 GLR 457 at p. 462 that affirms a doctrine of precedent in consonance with what I have propounded above. This is what he said:\r\n"Article 136(5) of the Constitution 1992 provides:\r\n"(5) Subject to clause (3) of article 129 of this Constitution, the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decisions of the Court of Appeal on questions of law."\r\nArticle 129(3) of the Constitution, 1992 also provides:\r\n"(3) The Supreme Court may, while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so; and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law."\r\nThe combined effect of these two articles of the Constitution, 1992 is that the Court of Appeal is compelled to follow its previous decisions, if those decisions are not in conflict with a Supreme Court decision on the same point of law."\r\nThus, Ofori-Boateng JA, as he then was, poignantly does not refer to any exceptions along the lines of the Bristol Aeroplane case. This is a reasonable doctrine of precedent reflective of the letter and spirit of the constitutional provisions on which he bases his view.\r\nHowever, in the light of the interpretation of the judicial precedent doctrine set out above, his Lordship Ansu-Gyeabour J. was not absolutely bound to follow the pre-1993 case of Republic v National House of Chiefs and Others; Ex parte Faibil III and Others [1984-86] 2 GLR 731. The case was, of course, of very high persuasive authority, but the stern reprimand by Apaloo JA (supra) of the\r\n \r\nlearned trial High Court judge was not justified. A current High Court judge may depart from a Court of Appeal decision, given prior to January 1993, if there are good grounds for doing so. Such decisions are of high persuasive authority and may not be departed from lightly, but if there are cogent reasons for doing so, a High Court may decide not to follow them.\r\nTo say that the existing courts of today may depart from pre-January 1993 cases is not to deny their status as precedents. They continue to be precedents, though only of persuasive value, and not binding. It is important to make this point in the light of an argument that was refuted by Abban 0 in P/an/rn (No. 3) V Ekwarn and Anor. [1996-97] SCGLR 431. Counsel had argued in that case that all the conditions and principles that had been laid down by the Supreme Court in cases decided before the coming into force of the 1992 Constitution should not be used as a yardstick when dealing with review applications brought after the 1992 Constitution. This argument was decisively rejected by the learned Chief Justice on the ground that the previous authorities remained law as part of the common law. He percipiently noted that (at p. 436 of the Report):\r\n"The term common law is used in contradistinction to statute law and denotes unwritten law, whether legal or equitable in its origin, which does not derive its authority from any express declaration of the legislature. It depends for its authority upon recognition given by the courts as recorded in the Law Reports which embody the decisions of the judges together with the reasons which they assign to them. And since the Constitution makes judicial decisions or case law part of the laws of Ghana, it will be absurd to refuse to make use of those authorities as precedents when the need arises."\r\nFor the avoidance of doubt, I must declare that I completely agree with the learned Chief Justice. Cases decided before 1993 in the Superior Courts remain precedents that should be followed. The only distinction that I have sought to draw above is between binding and persuasive precedents. In practice, most of the time our courts follow judicial precedents, not because they are absolutely binding on them, but because they are persuasive and a good source of the law. It is only in a few cases that the doctrine of binding precedents comes into play. This is the situation when a court, if it were free to do so, would decide otherwise than prescribed in a previous binding decision. Even in such situations, it will often be possible to distinguish the later case from the earlier case or interpret the ratio decidendi of the earlier case in such a way that it is not an impediment to deciding the later case in the way that the court wants to decide the issue concerned in the later case. The interpretation of the doctrine of judicial precedent which I have set out above will tend to keep the pool of absolutely binding precedents small and therefore there will be fewer occasions on which a superior court will declare that it thinks a previous decision is wrong,\r\n \r\nbut it is bound to follow it. I do not think that this outcome is achieved at too great a cost in certainty and predictability of the law, since the bulk of the judicial precedents will continue to be followed, as has always been the practice.\r\nIt is possible to argue that a successor court should be absolutely bound by the decided cases of the court to which it succeeded. However, I do not find that the provisions of the 1992 Constitution require me to reach this result and, for the policy reason already set out above, I consider that a more desirable purposive interpretation of the relevant provisions of the Constitution is to hold that the courts established under the 1992 Constitution are only absolutely bound by decisions of other courts established under the same Constitution. Article 126 of the 1992 Constitution establishes the Superior Courts of Judicature. I consider these to be new courts, although section 3(1) of the Transitional Provisions of the Constitution (the First Schedule) provides that:\r\n"The Supreme Court, the Court of Appeal and the High Court in existence immediately before the coming into force of this Constitution shall be deemed to have been established under this Constitution and shall perform the functions of the Supreme Court, the Court of Appeal and the High Court specified respectively in Chapter 11 of this Constitution."\r\nThis deeming provision does not alter the character of the courts established by Article 126 as new courts. Although the Supreme Court, Court of Appeal and High Court succeeded to previous courts bearing the same names, there is no logical necessity for the new courts to be absolutely bound by the cases decided by these previous courts. The cases of C.F.A.O. v Zacca [1972] 1GLR 366 and West African Bakery v Miezah [1972] 1 GLR 78 contain some tangential discussion relevant to this issue, they did not decide the issue. In the Miezah case, Azu Crabbe JSC, as he then was, held that by virtue of the 1969 Constitution, the Court of Appeal under that Constitution was a successor to the Court of Appeal set up under the Courts Decree, 1966 (NLCD 84), which in turn was a successor to the Supreme Court established under the 1960 Constitution. He held that the rule of stare decisis applicable to the former Supreme Court, to the effect that it was bound to follow its own decisions "in principle" was applicable to its successor courts and thus to the Court of Appeal under the 1969 Constitution. I do not consider that this authority stands in the way of the interpretation of the doctrine of judicial precedent applied above. Neither does the Zacca case. In article 125 of the 1969 Constitution the High Court and the Court of Appeal were each described as "successor" courts to their eponymous previous courts. In relation to the Court of Appeal, there was express language regarding the binding precedents of the previous court, which is missing from the equivalent provision in the 1992 Constitution. Article 125(2) provided that:\r\n \r\n"The Court of Appeal established under the provisions of clause (4) of article 102 of this Constitution, shall be the successor to the Court of Appeal of the Supreme Court of Judicature in being immediately before the coming into force of this Constitution; and accordingly the Court of Appeal as established by this Constitution shall be bound to follow the decisions on questions of law binding on the Court of Appeal as it existed immediately before the coming into force of this Constitution."\r\nSowah JA, as he then was, alluding to this Article 125, delivered himself of this relevant dictum (at p. 391 of the Report):\r\n"Successor" is the key word; though not a term of art, it is pre-eminently the language used in conveyancing; in the context of this article, it connotes the take-over by the present courts of the jurisdiction, rights and privileges of the displaced courts, subject of course, to such correlative restrictions upon jurisdiction as there existed before the take-over. This is in addition to any extension of jurisdiction that the Constitution might have given. In effect, the Constitution did not entirely abolish the courts but merged the old into the new and created a new hierarchy of courts."\r\nArticle 125 of the 1969 Constitution is to be contrasted with Article 136(5) of the 1992 Constitution (supra) which makes no express reference to the Court of Appeal being "bound to follow the decisions on questions of law binding on the Court of Appeal as it existed immediately before the coming into force of this Constitution". There is thus sufficient difference in the language of the two provisions to justify my view that the current Court of Appeal is not absolutely bound to follow the previous decisions of Courts of Appeal under different constituent instruments.\r\nThere were indeed good grounds for questioning the Ex Parte Faibil III case. Its holding that Order 59 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) had set down a six-month time limit within which an application for mandamus should be brought could not be supported in the light of the actual language used in the Order. Edward Wiredu JA, delivering the lead judgment in the Court of Appeal in 1986, said:\r\n"Our law has set down a six-month time limit within which an application for mandamus may be brought: see Order 59 of LN 140A. Where an applicant is out of time provision is made for him to apply for an extension. In the instant case the matter complained about occurred in 1975 and it was not until a lapse of seven years that the respondents presented their application without applying for an extension of time.\r\n \r\nI\r\nThey were statutorily out of court and their application should not have\r\nbeen entertained."\r\nThe provision on which Wiredu JA based this holding was Order 59 rule 3 states that:\r\n"Leave shall not be granted to apply for an order of certiorari to remove any judgment, order, conviction or other proceeding for the purpose of its being quashed, unless the application for leave is made not later than six months after the date of the proceeding or such shorter period as may be prescribed by any enactment; and where the proceeding is subject to appeal and a time is limited by law for the bringing of an appeal, the Court or Judge may adjourn the application for leave until the appeal is determined or the time for appealing has expired."\r\nClearly, there is no mention of mandamus in this rule. The learned judge''s reliance on Order 59 to prescribe a time limit for the invocation of mandamus does not seem justified.\r\nThe second Court of Appeal judgment in this case, given on 5th February 2009, refused to countenance the criticism by his Lordship Ansu-Gyeabour of the decision in Faith''s case. This refusal to countenance criticism was based on a strict doctrine of precedent propounded in the following terms by Apaloo JA (at p. 151 of the Record), after quoting section 10(5) of the Courts Act, 1993 (Act 459) which is in part materia with Article 136(5) of the Constitution 1992 (supra):\r\n"This substantive law requires the Court of Appeal to follow its own previous decisions which are binding on the Court itself. The High Court is equally bound by decisions of the Court of Appeal and cannot depart from such decisions (of the Court of Appeal) until and unless the decision is reversed by the Supreme Court. Obviously, all courts below are similarly bound to follow decisions of the Court of Appeal on questions of law. There is no doubt that certainty in the law is guaranteed by Section 10 of the Courts Ad."\r\nHe did not consider that the Court of Appeal should be able to depart from its previous decision, even if it was given per incur/am. He went on to express the Court''s conclusion as follows:\r\n"We have followed with keen interest the principles and arguments propounded by counsel that Order 59 Rule 3 of LN 140A applied only to the prerogative writ of certiorari and not at all to mandamus and that the application of a six months time limit to mandamus proceedings was clearly not by LN 140 of 1954, but entirely by operation of English\r\n \r\nCommon Law which has traditionally imposed a six month time limit for prerogative applications. Even though the arguments and the submissions are attractive, we believe this is not the Court or forum to canvass those submissions. Counsel himself for years has been using Order 59 R3 in legal practice. As High Court Judges of first instance, we have delivered many decisions mounted within the purview of that Order. The Court of Appeal had delivered several decisions based on Order 59 R3 of LN 140A without any litigant or a lawyer going to the Supreme Court to challenge the appropriateness of that particular order governing mandamus applications. LN140A the High Court Rules 1954 have been replaced by CI 47 and fortunately under Order 55 R3 adequate provisions have been made for mandamus. We do not feel inclined to depart from the principles enunciated in the Faibil''s case and arising therefrom cause judicial heresy in the sense of a departure from an opinion or belief held within the legal system. We accordingly state unequivocally that the trial High Court Kumasi presided over by Ansu-Gyeabour 3. was duty bound to follow the decision of the Court of Appeal in the case entitled Republic v National House of Chiefs and Anor; Ex Parte Faibil III [1984-86] 2 GLR 731. Failure on the part of the lower Court to be bound on questions of law was fatal to the decision reached by that Court."\r\nI am unable to agree with this conclusion since, as I have explained above, I do not consider that pre-1993 decided cases in the Ghanaian superior courts can be absolutely binding in the way that Apaloo JA portrays. They are of only persuasive authority and therefore where they seem patently wrong, as the Ex Parte faibil case appears to be, a court established under the 1992 Constitution can refuse to follow them.\r\nIn any case, even if the Fa/bil case were decided after 1993, this Court would have the authority to overrule it and we hereby do so. Order 59 Rule 3 of LN 140A should not have been interpreted to apply to applications for mandamus. Moreover, without necessarily here determining this point on time limits for mandamus applications under the 1954 Rules conclusively, even if there were a rule of practice or of the common law laying down a time limit, that time limit should run from the date of refusal to comply with a demand, as I will explain next in this judgment.\r\nThe final principle of law that this Court needs to examine relates to the contention by the applicant/appellant in his Statement of Case that the prerogative writ of mandamus depends on demand and refusal: that is, a demand by an aggrieved applicant on an official to perform a public duty owed to that applicant and a distinct refusal or reluctance to comply with the applicant''s demand. If this Court confirms that a demand and refusal are generally preconditions to the invocation of mandamus, this would have an\r\n \r\nimpact on the time limit within which an application for mandamus may be made. Time would begin to run not from the date of occurrence of the act or omission complained of, but rather from the date of refusal to comply with the demand made by the aggrieved applicant in relation to that act or omission.\r\nThe facts of the leading case of Republic v National House of Chiefs and Others; Ex parte Faith/ III and Others [1984-86] 2 GLR 731 illustrate what is at stake. In this case, two Divisional Chiefs from the Wasa Fiase Traditional Area in the Western Region applied to the High Court, Accra, for mandamus to remove the name of their Omanhene from the National Register of Chiefs. Their application was brought in 1982, but their complaint related to acts that took place in 1975. Their Omanhene had been enstooled in 1975. The Western Region House of Chiefs had transmitted a report of his enstoolment to the National House of Chiefs, together with a warning letter that a petition had been filed against his enstoolment and installation by the Queenmother of the Traditional Area. The Omanhene''s enstoolment, in spite of the warning letter, was published in the Local Government Bulletin of June 1975. The applicants in the case had supported the enstoolment of the Omanhene, in their capacity as\r\nkingmakers and divisional chiefs of the traditional area. Their application for mandamus in 1982 was based on the fact the Omanhene''s enstoolment was disputed and therefore should not have been Gazetted. There was no evidence that the applicants made any demand for the removal of the Omanhene from the Register and that this demand had been refused. Although, the trial court judge granted the applicants the mandamus they sought, the Court of Appeal allowed an appeal against his decision. The Court did not however advert to the issue of demand and refusal, when it decided to dismiss their application.\r\nIn contrast, in Republic v Chieftaincy Secretariat & Anor; Ex Parte Adansi Traditional Council [1968] GLR 736, Annan J. , as he then was, stated the law as follows (at p. 742):\r\n"Having regard to the clear language of section 1 (2) (a) and in the light of exhibit 4, I am compelled to say that there has been no positive refusal or conduct amounting to a refusal, on the part of the second respondent to perform the duty cast on him by section 1 (2) (a) to take a decision one way or the other. It is clear law that the court will not order mandamus to go where there has been no demand and refusal to perform the public duty enjoined by statute."\r\nTo Annan 3, therefore, a demand and refusal were preconditions to the grant of mandamus. Similarly, Asare Korang JA in the first judgment of the Court of Appeal in this case of The Republic v National House of Chiefs; Ex Parte Odeneho A. Krukoko II (Osagyefo Kwamena Enimil VI, Interested Party), a\r\n \r\ndecision of the Court of Appeal dated 11th November, 2005 (at p. 131 of the Record) explained his understanding of the law on mandamus as follows:\r\n"In this appeal, I would summarise the purport and scope of the reliefs sought by the Respondent and the Interested Party in this manner:\r\n"Is Mandamus a remedy available to the Applicant in all the circumstances of this case?"\r\nWhat then are circumstances? Before answering this question, I would first grant that since Mandamus requires as a precondition a demand for the performance of a duty and an unequivocal refusal of one party to not comply, the ruling of Abrahams J. cannot be regarded as Res Judicata since he did not embark on an enquiry as to whether there was a demand and a refusal, that is to say, an enquiry on the merits."\r\nThis statement of the law I consider sound. However, in the second judgment of the Court of Appeal in this case, given on 5th February, 2009, the Court found it unnecessary to dwell on this aspect of the law, preferring instead to base their decision on the doctrines of stare dec/s/sand estoppel per rem jud/catam.\r\nIt was a pity that the Court of Appeal did not take the opportunity of this case to clarify the law on the preconditions for the invocation of mandamus. That error should not be repeated in this court. I would like to adopt the statement on demand and refusal as a precondition to the grant of mandamus which is made in Halsbury''s Laws of England 4th Ed., para. 156 at p. 259 as follows:\r\n"156. Demand for performance must precede application. As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal. The requirement, however, that before the court will issue a mandamus there must be a demand to perform the act sought to be enforced and a refusal to perform it cannot be applicable in all possible cases, and does not apply where a person has by inadvertence omitted to do some act which he was under a duty to do, and where the time within which he can do it has passed."\r\nI have already demonstrated above that Ansu-Gyeabour 3. was not absolutely bound to follow the Fa/bil case (supra). Accordingly the Court of Appeal was in error when it held that he had to. Ordinarily, time within which to apply for mandamus should begin to run only after a demand to perform a duty has been\r\n \r\nmet with a refusal. Secondly, from the discussion above of whether non-final interlocutory decisions can estop per rem judicatam, it is obvious that the judgment of Abraham J in 2003 was no bar to Ansu-Gyeabour J.''s ruling in this case. Since stare decisis and estoppel per rem judicatam were the two legs on which the judgment of Court of Appeal read by Apaloo JA rested, we think that this appeal against it must succeed. Accordingly, the appeal is allowed and the order made by the learned trial High Court judge for leave to apply for mandamus is hereby restored. The case is remitted to the High Court, Kumasi, for the application for mandamus to be heard on its merits.\r\nDR. S.K. DATE-BAH\r\nJUSTICE OF THE SUPREME COURT\r\nOWUSU (MS), J.S.C:-\r\nI have read the lead Judgment of my respected brother and I agree with the conclusion arrived at by him that the appeal be allowed.\r\nHe has sufficiently set down the facts and ably dealt with the issues raised in the appeal and in this wise I have nothing useful to add except that like my able brother Dotse whose Judgment I have had the opportunity to read, I also find myself unable to agree with the distinction drawn by my senior brother between the binding nature of the decisions of the pre — 1993 courts i.e. the courts in existence before the coming into force of the 1992 constitution and those which were established by the 1992 constitution.\r\nIn the lead Judgment, this is what my respected brother said:\r\n"Addressing the second issue first, I think that the doctrine of precedent established by article 136(5) applies only to the Court of Appeal and the lower courts established by the 1992 constitution. I consider that the pre-1993 cases are persuasively binding, but they do not fall into the strict doctrine of precedent under lying article 136 (5)."\r\nThe said Article reads as follows:\r\n"Subject to clause (3) of article 129 of this constitution the Court of Appeal shall be bound by its own previous decisions; and all courts lower than the Court of Appeal shall follow the decision of the Court of Appeal on questions of law."\r\nIt is for this reason that Apaloo JA said in his ruling that:\r\n"It is of great concern also that when Ansu Gyeabour J. departed from the decision in Ex parte Faibil case he chose to pose for consideration of his court three irrelevant questions concerning the interpretation of\r\n \r\nOrder 59 rule 3 which in our view, would be unnecessary if he had come to the conclusion that the Court of Appeal was super/or to his court and therefore that court''s decision was binding on him. (emphasis supplied)"\r\nUnder article 129(3) of the 1992 constitution,\r\nThe Supreme Court may while treating its own decisions as normally binding, depart from a previous decision when it appears to it right to do so, and all other courts shall be bound to follow the decisions of the Supreme Court on questions of law."\r\nThe Court of Appeal is therefore bound to follow the decisions of the Supreme Court on questions of law and so is the High Court bound to follow decisions of the Court of Appeal on questions of law unless the lower court distinguishes the previous Judgment from the one before it both on the facts and law that it can get itself out of the strict Jacket to be able to extricate itself from the binding effect.\r\nThe provisions of P. N. D. C [Establishment proclamation, 1981 saved and continued in existence all the courts established under article 114 (5) of the 1979 Constitution which the P. N. D. C proclamation suspended.\r\nWhat this means is that once the Court of Appeal as established under the constitution of 1979 was continued under the same constitutional regime, it was saved with all that it stood for - its functions, composition, Jurisdiction etc remained intact despite the fact that the constitution was suspended thus destroying the legal order by the Military intervention of 31st December, 1981.\r\nThus if the hierarchy of the superior courts were saved and continued in existence, then with the coming into force of the 1992 constitution, these courts and the decisions handed down by them have the same binding effect as those established under the 1992 constitution.\r\nMy respected brother has in his Judgment referred to the case of PIANIM (No. 3) VRS EKWAM and Another [1996-7] SCGLR 431. In that case counsel''s argument that all the conditions and principles that had been laid down by the Supreme Court in cases decided before the coming into force of the 1992 constitution should not be used as a yardstick when dealing with review applications brought after the 1992 constitution was rejected. This argument did not find favour with the court per Abban C.J who decisively rejected same on the ground that the previous authorities remained law as part of the common law.\r\nThe eminent C.J. now of blessed memory delivered himself thus:\r\nIt depends for its authority upon recognition given by the courts as recorded in the Law Reports which embody the decisions of the Judges together with the reasons which they assign to them. And since the constitution makes judicial decisions or case law part of the laws of Ghana, it will be absurd to refuse to make use of those authorities as precedents when the need arises."\r\nIndeed my respected brother completely agrees with the learned chief justice that cases decided before 1993 in the superior courts remain precedents that\r\n \r\nshould be followed. He all the same sticks to the distinction that he sought to draw between binding and persuasive precedents.\r\nThis is where I part way with him as in my considered opinion, the pre and post 1993 cases have the same authoritative binding effect on all courts below them. Again, under Art 3 (1) of the Transitional provisions of the constitution (first schedule)\r\n"The Supreme Court, the court of Appeal and the High Court in existence immediately before the coming into force of this constitution shall be deemed to have been established under this constitution and shall perform the function of the Supreme Court, the Court of Appeal and the High Court specified respectively in chapter 11 of this constitution."\r\nTherefore if the Supreme Court, the Court of Appeal and the High Court in existence before the coming into force of the Constitution, shall be deemed to have been established under the constitution, where then do we draw the distinction between them vis-à-vis their binding effects on lower courts?\r\nIt is for these reasons that I add my voice to that of my brother. Dotse 3.S.0 in his opinion on the position of the binding effect of the pre and post 1993 cases on courts down the ladder.\r\nR. C. OWUSU (MS)\r\nJUSTICE OF THE SUPREME COURT\r\nDOTSE, J.S.C.:-\r\nCONCURRING OPINION\r\nI have had the privilege of having read before hand, the well thought out judgment of my distinguished brother, Dr. Date-Bah ]SC in the lead judgment just delivered. Even though I agree with part of the reasoning and the conclusions reached therein, there is however an aspect of the reasoning which I disagree with and also wish for purposes of emphasis and elucidation to comment upon the principle of demand and refusal as a criteria for the grant of Mandamus.\r\n \r\nIn his lead judgment, Dr. Date-Bah JSC has set out the facts of this appeal so graphically that it will be needless on my part to re-state them. I therefore adopt the statement of the facts as stated by my learned brother.\r\nBefore deciding the substance of the appeal, Date-Bah JSC, set out three general principles of law which he dealt with. These are\r\n1.	The scope of the doctrine of estoppel per rem judicatam and whether it applies to interlocutory rulings and judgments. I cannot but agree entirely with the discussions of this principle of law and how he dealt with It.\r\n2.	The second is the scope of Judicial precedent in Ghana and the extent to which the Court of Appeal is bound by its own previous decisions. Whilst I agree with the general statement of the principles and law applicable on the doctrine of judicial precedent or stare decisis as it is described in legal terminology, I disagree with the conclusions reached.\r\n3.	The third is the examination of the preconditions for the invocation of the remedy of mandamus.\r\nThis principle was classically and intellectually handled by my brother Date-Bah JSC but I feel the strong urge to make some humble contributions to that aspect of the law.\r\nWHAT IS JUDICIAL PRECEDENT OR STARE DECISIS\r\nThe Constitution 1992 is the document that has enshrined this principle of Judicial precedent in Ghana.\r\nArticle 129(1) of the constitution 1992 established the Supreme Court as the final Court of Appeal with appellate and other jurisdiction as may be conferred on it by the Constitution or any other law.\r\nArticle 129 (2) however states that the Supreme Court is not bound to follow the decisions of any other Court.\r\nThis therefore means that, the Supreme Court is at the apex of the Court Structure in Ghana and it is not subordinate to any other Court in Ghana.\r\n \r\nIn order to appreciate the binding nature of decisions of the Supreme Court on all other Courts in the country, it is necessary to quote in extenso, article 129 (3) of the Constitution 1992, which states:-\r\n"The Supreme Court may while treating its own previous decisions as normally binding, depart from a previous decision when it appears to it right to do so, and all other Courts shall be bound to follow the decisions of the Supreme Court on questions of Law"\r\nIn effect, the application of this principle admits of no discretion whatsoever on the part of the Courts lower to the Supreme Court. Whilst the Supreme Court itself is not bound to follow its previous decisions (although in practice it does to a large extent) all other Courts must interpret the law to be what the Supreme Court states it to be, this is a mandatory requirement on all the Courts lower down the hierarchy of Courts to the Supreme Court. This will mean that, the Court of Appeal, High Court, Regional Tribunal, Circuit Court, District Courts and all lower adjudicating tribunals to wit Family Tribunal, Juvenile Court, Judicial Committee''s of the National and Regional Houses of Chiefs and also of the Divisional and Traditional Councils established under the Chieftaincy Act 2008, Act 759 are bound to follow it.\r\nThe principle is based first of all on the relevant likeness of the previous decisions or the relevance of the principle of law decided in the previous case and the instant one. If however, there is no likeness between the two, then there is no need to consider whether the previous one should be followed or not. It is the art of following the decision in the previous case or being able to distinguish the principle of law decided in the previous case from the one before the Court, that will determine its applicability.\r\nFor the purposes of the Court of Appeal which is what I am concerned with in this case, the relevant article in the constitution 1992 is 136 (5) which prävides as follows"\r\n \r\n"Subject to clause (3) of article 129 of this constitution the Court of Appeal shall be bound by its own previous decision; and all Courts lower than the Court of Appeal shall follow the decision of the Court of Appeal on questions of law"\r\nI have already dealt with aft/c/c 129 (3) of the Constitution. By parity of reasoning therefore, it means that, all Courts below the Court of Appeal are bound to follow the decision of the Court of Appeal. In essence, the Court of Appeal would itself have followed any Supreme Court decision on the subject matter, to avoid any conflict situation arising.\r\nWhat should be noted is that, whilst the Supreme Court has power to depart from its previous decisions, the Court of Appeal has no such privileges and rights, and is bound by any previous decision of that Court.\r\nIn the instant case, my brother Dr. Date-Bah (JSC) is of the view that the doctrine of judicial precedent established under aft/c/c 136(5) of the Constitution 12 applies only to the Court of Appeal and the lower Courts established under the Constitution 1992. He concludes thus:\r\n7 consider that the pre-1993 cases are persuasively binding, but they do not fall into the strict doctrine of precedent underlying article 136(5)"\r\nThis is the area where I disagree with my brother.\r\nConsidering the provisions of Sect/on 3 (1) of the transitional provisions of the Constitution 1992, the impression is that all the Superior Courts in existence before the coming into force of the Constitution 1992 are deemed to be in existence under the Constitution 1992.\r\nThis is how it is stated:\r\n3 (1) "The Supreme Court, the Court of Ap', '../links/cases/Document (224).pdf', 'Yes', 'OWUSU (MS), JSC, DOTSE,JSC, ANIN YEBOAH, J.S.C, BAFFOE-BONNIE. JSC, ', '2009', 'supreme', '<i><b><font face="Times New Roman" size="3">Chieftaincy - Chief - National Register of Chiefs - Applicant applied for mandamus to Re-instate name - State Proceedings - Mandamus - Application for - Time frame for application - High Court (Civil Procedure) rules, 1954 (LN 140A) - Whether order 59 Rule 13 does not apply to mandamus - Time should run after demand to perform duty has been met with refusal - Stare Decisis - 1992 Constitution, art 136(5) - Decision of Higher courts binding on lower courts for certainty of law - Interlocutory judgments - Final and other interlocutory judgments - Distinction</font></b></i><br>', 'DR. DATE-BAH, JSC', 'Civil', '', 'J4/18/2009', '', '', 'supreme', '2009-12-02', '');
