ABENA KONADU SUBSTITUTED BY BOBIE ANSAH v. PAA SOLOMON
January 28, 2022
COURT OF APPEAL
GHANA
CORAM
- I. O. TANKO AMADU JSC (PRESIDING)
- ANTHONY OPPONG JA
- RICHARD ADJEI-FRIMPONG JA
Areas of Law
- Evidence Law
- Civil Procedure
January 28, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arises from a land dispute at Afrancho in the Afigya Kwabre District, where the defendant, a private developer acting at the behest of the District Assembly to construct a police station and commercial shops, tendered Exhibit 5—the Afrancho Planning Scheme prepared by the Department of Town and Country Planning. When plaintiff’s counsel attempted to cross-examine the defendant on the technical contents of Exhibit 5, the High Court sustained an objection that the defendant lacked personal knowledge. On appeal, Justice Richard Adjei-Frimpong JA synthesized grounds alleging improper exercise of discretion, an improper "order" to counsel, and misconstruction of Section 60(1) of the Evidence Act. The Court of Appeal emphasized competence and personal knowledge under Section 60, accepted that waiver affects preliminary proof not substance, indicated that Section 68 allows calling or recalling a competent witness, and dismissed the appeal, leaving Exhibit 5 subject to examination through its author.
RICHARD ADJEI-FRIMPONG JA:
The issue in this interlocutory appeal is not of any wide compass. The plaintiff and the defendant, as we shall refer to them in this appeal, are in contest over a piece of building plot situate at Afrancho in the Afigya Kwabere district.
Whereas the plaintiff claims ownership of the land, the defendant, a private developer who is on the land at the behest of the District Assembly to build a police station and other commercial shops, contends that the land was a road reservation and does not form part of the plaintiff’s land.
In the course of the adduction of evidence at the trial High Court, and whilst the defendant was under cross-examination, Counsel for the plaintiff sought to question him on a document that was attached to his witness statement as Exhibit 5. The said Exhibit 5 is a copy of the Afrancho Planning Scheme which on its face, appears to have been prepared by the Department of Town and Country Planning, Afigya Kwabre district.
Counsel for the defendant objected to the line of cross-examination on the basis that the matters about Exhibit 5 were essentially technical which could not be spoken to, by the defendant. The obvious response to be provoked was that, once the witness had tendered the document, he was answerable to it under cross examination.
The learned trial judge sustained the objection in a ruling which is the subject of this appeal. The plaintiff’s appeal is on the following grounds:
1. The learned trial judge did not properly exercise his discretion when he ruled that the defendant cannot be cross-examined on Exhibit 5 which was tendered by him.
2. The learned trial judge erred when he ordered the plaintiff’s Counsel to do the needful if he minded to solicit information on Exhibit 5
3. The learned trial judge misconstrued the import of Section 60(1) of the Evidence Act.
By our appraisal, all three grounds may be synthesized into one key question which we think will dispose of the appeal; did the trial judge properly apply himself to the relevant law in exercising his discretion to uphold the objection?
To begin with, cross-examination is no doubt a useful department of justice dispensation.
As has been said “cross-examination was …deemed indispensable to the proper administration of justice, first, that every witness should …be subject to the ordeal of cross-examination by the party against whom he is called, so that it may appear, if necessary, what were his powers of perception, his oppo