BOAMAH v. OKYERE

JUDGMENT OF ANNAN J.

This is an application made by the solicitors for both parties for and on behalf of the parties praying this court "to adopt former proceedings before Mr. Justice Boison."

The action was originally tried by Boison J. and he heard evidence from both parties. He, however, ceased to be a judge before he could [p.549] deliver judgment with the result that the action is now before me for hearing.

Clearly the case has to be tried de novo before me. The question however is whether evidence should be heard de novo or whether by consent of all parties, I can adopt the evidence in the former suit as evidence before me at the re-trial without hearing the witnesses afresh. Undoubtedly it would be the most convenient course to accede to the application and there is no doubt that the parties themselves wish me to authorise this course. I have however to be satisfied that this course is open to me.

The usual practice in circumstances of this sort is to hear evidence afresh and I am not personally aware of any local action which had been heard to the same extent as the proceedings before Boison J. in which evidence in the former trial had been adopted in the trial de novo. I have myself tried cases de novo in accordance with the usual practice time and again. The question however is whether practice apart, there is power in this court to grant an application of this nature.

The action itself is a consolidated action and the claims are for a declaration of title, damages for trespass and perpetual injunction in respect of what appears to be the same area of land. All the parties to both actions appear, on the face of the pleadings, to have obtained grants from the Nkawie stool in or around the same locality and the main issue for determination is the issue whether or not the grant made by the Nkawie stool to each defendant covers the area claimed by the plaintiff, that is, the issue is to determine the extent of the grant made in each case and if any grant is found to overlap another, then the issue of who has a better title to that portion.

The general proposition of law relevant to this application is stated in Phipson on Evidence (11th ed.), at p. 699, para. 1604 as follows: “In new trials, the case must be re-proved de novo, and the evidence and verdict given, and the judge's finding at the first trial, are inadmissible."

There are however judicial decisions which show that there are exceptions to this general principle. Thus in peerage ca