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June 29, 2023
COURT OF APPEAL
GHANA
ANTHONY OPPONG, JA:
Plaintiff/Respondent (hereinafter to be referred to as Respondent) sued for declaration of title to a piece of 0.32 acre land situate at Aplaku, Accra. In addition, Respondent sought the usual ancillary . reliefs of recovery of possession, general damages for trespass and perpetual injunction.
Defendant/ Appellant (hereinafter to be also referred to as Appellant) also laid claim to title to the same land size of 0.32 acre situate at Aplaku, Accra.
The parties having joined issues by their pleadings for the determination as to who has better title to the disputed land, the court below directed the mode of trial at the application for direction. Subsequently, case management conference was conducted whereby both parties expressed their solidarity with the respective witness statements and the relevant documents they had filed and would rely on for the purposes of the trial of the case. It must be remembered that under the current civil litigation procedure, specifically under Order 34 Rule 2(2) of the High Court (Civil Procedure) (Amendment) Rules, 2014, (C.I.87), the parties as soon as: practicable must file their respective pre-trial check list before case management conference or pre-trial review will be conducted before the stage is set for the commencement of the hearing of the case. One remarkable tool that seeks to bury for good ambush trial is the pre-trial check list which makes room for discoveries even at that stage.
Apparently, in line with the filing of witness statements, the linguist to the Aplaku Stool, one Nii Otsiame Kwaku Ahene filed a witness statement on 18 th March 2021 in support of the Respondent's case. In the witness statement of Nii Otsiame Kwaku · Ahene, he claimed that he had been a Stool linguist of Aplaku Stool from 1997 to date (that is 2021 when the process was filed); a period of 24 years.
In paragraphs 18 and 19 of the witness statement of Nii Otsiame Kwaku Ahene, he mentioned two documents. For clarity of understanding I would like to quote the said paragraphs:
"18. Nii Kojo Armah who is alleged to have sold the land to Defendant (Appellant) in 2004 was a member of the Asafo group of the Aplaku Stool, and had no right to represent the Aplaku stool nor sell Aplaku Stool lands. Please find attached and marked as Exhibit 6 evidence to this effect.
19. Equally, Nii Otiboh Aplaku as well has no right or authority to sell Aplaku Stool lands. Please find attached and marked as Exhibit 7 documentary · e
AI Generated Summary
Justice Anthony Oppong JA delivered the Court of Appeal’s interlocutory decision arising from a land dispute over a 0.32-acre parcel at Aplaku, Accra. At trial, the Aplaku Stool linguist, Nii Otsiame Kwaku Ahene, attached documents to his witness statement to show that Nii Kojo Armah and Nii Otiboh Aplaku lacked authority to alienate stool lands. The Defendant/Appellant objected that the documents were hearsay under sections 116–117 of the Evidence Act (NRCD 323) and had not been pleaded. The High Court admitted the documents as Exhibits D, E and F. On appeal, the Court held that evidence need not be pleaded under Order 11 Rule 7(1) of CI 47; that the exhibits were relevant to issues framed; and that exceptions to hearsay include party agreement, which can be implied from conduct in the case management regime under CI 87 when no timely objection or discovery is pursued. The Court further noted that relevant documentary evidence may be admitted without the maker and that PW1, as a long-serving stool linguist, had peculiar knowledge. The appeal was dismissed with costs to the Respondent.