Emmanuel Kwame Nyarko v. Nana Yaw Sintim & ors

TORKORNOO, JSC

(Sitting in the Court of Appeal)

Every appeal is a rehearing by operation of Rule 8 (1) of the Court of Appeal Rules 1997 CI 19 which reads:

8. Notice and grounds of appeal

(1) An appeal to the Court shall be by way or rehearing and shall be brought by a notice of appeal.

As rightly pointed out by both counsels, an appeal is a rehearing of the matters in issue, and in cases such as Tuakwa v. Bosom 2001-2002 SCGLR 61;Sarkodie v. FKA Co 2009 SCGLR 65, Fosua & Adu-Poku v. Dufie (Decd) & Adu-Poku Mensah 2009 SCGLR 310, the Supreme Court has clarified that the appellate court is enjoined to review the entire case presented and make its own independent determination on the basis of the record of proceedings.

As a function of rehearing therefore, I will set out the full history of suits between the parties to this appeal because they form the salient backdrop to the contentions on appeal.

FIRST CASE - BFA 4/08

The Appellant commenced Suit No BFA 4/08 as Plaintiff in the high court on11th June 2007.

The Respondent to this appeal was 1st Defendant and the 2ndDefendant was one Nana Gyimah Kessie (now deceased). The suit was endorsed with the following claims:

1. Declaration that the paper writing dated May 2001 is not the act of Comfort Oforiwaah (deceased).

2. A declaration that the said paper writing is null and void.

3. An order of injunction to restrain the Defendants by themselves, their agents or assigns from seeking to act under the said paper writing.

Hearing in this suit commenced and after the transfer of the first trial judge, the record is that counsel for the Appellant applied to the second judge(Wilson J) for a trial de novo.

The application was refused by Wilson J and the record of proceedings was prepared for adoption.

At its’ sitting of 9th June2011, the Judge directed that he would resume hearing of the case on 23rd June 2011.

On 19th July 2011 when the case was called, the parties were recorded as present but counsel for the Plaintiff/Appellant was absent.

On the presentation of counsel for the 2nd Defendant that the suit be struck out, Wilson J struck out the case and awarded costs of GHȼ1,000 in favor of the Defendants/Respondents ‘jointly and severally’. The records show that on 26th June 2012, Wilson J granted probate to the Defendants in Suit No BFA 4/08 for the administration of the estate in contention.

The Probate application was numbered PBD 1372/2012.

In a subsequent application dated 3rd February 20