DUODU AMOO & ANOTHER v. BERNARD NIMAKO AKOWUAH

AYEBI J.A.

I have read the judgment of my learned president and I cannot agree more with the conclusion reached. But I crave the indulgence of my learned brothers to say something about the evidence of the plaintiff/respondent on the suretyship of her late father.

An appeal it is often said is by way of rehearing the suit. That term means that the appellate court is in the same position as if the rehearing were the original hearing. The appellate court in that wise may receive evidence in addition to that before the court below and may review the whole case and not merely the points as to which the appeal is brought but evidence not given before the court below is not generally reviewed – see Nkrumah vrs Ataa [1972] 2 GLR 13 approved by the Court of Appeal in Akufo-Addo vrs Catheline [1992] 1 GLR 377.

A close look at the evidence on record show that the sale of H/No. B182/12 proceeded on the premise that – plaintiff/respondent’s late father Adjin Okwabi:

(a) stood surety for his nephew in Suit No. 3626/87 instituted Samuel Nii Ankrah vrs Joshua Kpakpo Allotey;

(b) the surety guaranteed the payment of the judgment-debt against Joshua Kpakpo Allotey;

(c) snd he offered his house as a justification for the bond executed.

That premise on the evidence is erroneous because:

(i) the order of the court in Exhibit C in Suit No. 3626/87 only demanded of the defendant therein to provide security for his attendance at the trial in the sum of ¢1,500.00 (not ¢1,500,000.00) with two sureties only.

(ii) the order did not require of the sureties to provide any justification.

(iii) the late Adjin Okwabi was not a signatory to the bail bond, Exhibit F.

(iv) in Exhibit F1, Justification of Sureties, the late Adjin Okwabi was not an executor.

(v) Exhibit F2 in which the late Adjin Okwabi’s name was inserted with his house number cannot be a valid document because being an illiterate there was neither a jurat nor his thumbprint or his mark.

Inspite of the evidence in the above-mentioned documents, plaintiff/respondent pleaded and gave evidence that when Joshua Kpakpo Allotey was arrested on an absconding warrant and granted bail, her late father stood surety for him with his house. But the trial court found otherwise. This divergence provided the basis for the ground of appeal that the judgment is against the weight of evidence.

When that viva voce evidence is taken in isolation of the documentary evidence namely Exhibits C, F, F1 and F2, the said ground of ap