Frenchson Company Ltd. v. Joana Mensah & ANOTHER

SOWAH, (J. A)

Background Facts Being dissatisfied with the Report of a court appointed surveyor, the defendants/applicants/appellants [hereafter referred to as the appellants] filed a motion for an Order to cross-examine him.

The appellants also filed a supplementary affidavit in support to which they attached a Report by their own surveyor.

The plaintiff/respondent/respondent [hereafter the ‘respondent’]raised a preliminary objection when the motion was heard, contending that by the Rules of court, it was wrong to attach an independent survey report to the supplementary affidavit without leave of the court.

The trial judge upheld the objection in a Ruling dated 7th November 2018 which is the subject of this appeal.

The judge was of the view that the whole application to cross-examine was “premature and otiose”. Unhappy with the Ruling, the appellants filed this interlocutory appeal on 21st November 2018 seeking for this court to set aside the Ruling and grant the application for an Order to cross-examine the court expert.

Grounds of appeal a. That the learned judge erred when he dismissed appellants’application when same had not been moved by the appellant.

b. That the learned judge erred when he held the appellant’s application was premature and otiose c. That the learned judge erred when he held that appellants have not shown that the work done by the court expert, C. C. Nuque was shoddy d. That the learned judge erred when he held that appellant ought to have sought leave of the court before relying on the Report of the deputy Ashanti Regional head, Survey and Mapping Division of the Lands Commission e. That the Ruling is against the weight of evidence.

f. Further grounds to be filed upon receipt of ruling The appellants’ counsel argued ground (b), and then grounds (c)and (d) together and finally ground (e). No submissions were made in respect of ground (a). Nor were any additional grounds filed.

In my considered view, the fundamental issue that underlies this appeal is whether or not the trial judge erred in any way that infringes the appellants’ procedural right to cross-examine the court expert.

I therefore propose to take all the grounds of appeal together under the omnibus ground (e) and deal with both the factual and legal arguments, more so as no particulars of errors of law are given for any of the grounds of appeal where error is alleged.

To resolve this fundamental issue, it is important to observe the following undisputed fact