May 15, 2019
SUPREME COURT
GHANA
CORAM
AI Generated Summary
The Supreme Court of Ghana, per Appau JSC, dismissed an appeal by the current plaintiffs, successors to Nana Asumadu II, seeking to overturn the Court of Appeal’s reversal of a High Court judgment. In 2000, Agya Ameyaw II obtained a High Court judgment (Suit No. LS.45/2000) declaring Diaso village and surrounding lands and rivers to belong to the Asenkye Stool after the then defendant failed to appear; the court later took evidence and granted final judgment on all reliefs. In 2002, the plaintiffs brought a fresh action to set aside that judgment on grounds of fraud and misrepresentation, while re‑asserting title and related reliefs. The trial High Court re‑opened title and set aside the prior judgment without addressing fraud; the Court of Appeal held that fraud was not proven and criticized the re‑litigation. The Supreme Court agreed fraud was not proved, reiterated that only fraud is in issue when impeaching a judgment, clarified the heightened burden under section 13(1) of the Evidence Act, and dismissed the appeal.
JUDGEMENT
YAW APPAU, JSC:-
This appeal hangs on a very thin legal thread. The issue involved is so narrow that it should not have attracted the copious submissions made by both counsel for the appellants and the respondent in their over eighty (80) page statements of case filed on 15/05/2018 and 23/07/2018 respectively. Perhaps, the parties were lured into charting this course because of the manner in which the Court of Appeal dealt with the appeal before it.
It is trite learning that an appeal is by way of re-hearing. The rules of the Court of Appeal, 1997 [C.I. 19] are very clear on this. Rule 8 (1) of the said rules provides as follows: “An appeal to the Court shall be by way of re-hearing and shall be brought by a notice of appeal”. This principle that an appeal is by way of re-hearing applies mutatis mutandis to this Court in the exercise of its appellate function as it does to the Court of Appeal. There are numerous authoritative judicial decisions of this Court on this as expressed in cases like AKUFO ADDO v CAHTHELINE [1992] 1 GLR 377; TUAKWA v BOSOM [2001-2002] SCGLR 61; BROWN v QUASHIGAH [2003-2004] SCGLR 930 ARYEH & AKAKPO v AYAA IDDRISU [2010] SCGLR 891 and DJIN v MUSAH BAAKO [2007-2008] SCGLR 686, to mention just a few. This Court held in the Tuakwa v Bosom case (supra) that; “an appeal is by way of re-hearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court is against the weight of evidence”.
The previous decision of this Court in the Brown v Quashigah case (supra) to the effect that an appellant who appeals solely on the omnibus ground that; ‘the appeal was against the weight of evidence’, would not be permitted to argue points of law, was later re-addressed by this Court in a couple of authorities culminating in the recent unreported civil appeal decision with number J4/4/2019, dated 3rd April 2019 and titled ATUGUBA & ASSOCIATES v SCIPION CAPITAL (UK) LIMITED & Another. In this case, the Court, per Amegatcher, JSC made reference to its previous decision in OWUSU-DOMENA v AMOAH [2015-2016] SCGLR 790 and re-stated the principle as follows:
“Based on the exception given by this Court in the Owusu-Domena v Amoah case (supra), the current position of the law may be stated that where the only ground of appeal filed is that the judgment is against the weight of evidence, parties would not be permitted to argue legal issues if the factual issues do not admit of any. However,