OFOSU AKYEAMPONG & ANOTHER v. KWAME YEBOAH (DECEASED)
November 15, 2022
COURT OF APPEAL
GHANA
CORAM
- CECILIA SOWAH, JA (PRESIDING)
- ANTHONY OPPONG, JA
- ANGELINA MENSAH HOMIAH, JA
Areas of Law
- Evidence Law
- Civil Procedure
- Property and Real Estate Law
November 15, 2022
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
Anthony Oppong JA, writing for the Court of Appeal, emphasized the duty under section 6(1) of the Evidence Act to object when inadmissible or unpleaded evidence is offered. Plaintiffs, children of the late Atta Kwabena, claimed title to H/No ASK 1D39, Asokore-Koforidua, a multi-unit house their father self-acquired. Although plaintiffs did not plead a gift, the 1st plaintiff’s witness statement recounted a customary gift of the house to the children months before Atta’s death and delivery of the building plan (Exhibit A). The High Court entered judgment for plaintiffs; the defendant appealed on weight of evidence. The Court of Appeal held that failure to object and extensive cross-examination on the gift meant no surprise, and the gift evidence formed part of the record. The court affirmed the property was self-acquired and gifted to plaintiffs, but ruled undeveloped portions devolved to the family and set aside the trial court’s order about rents/demolition. The appeal otherwise failed.
ANTHONY OPPONG, JA:
This case brings to the fore the significance of objecting to pieces of evidence that are adduced on unpleaded material matters. Practitioners of the law must be very conversant and alive to section 6(1) of the Evidence Act, 1975 (NRCD 323).
Section 6(1) of NRCD 323 stipulates that
“in an action, and at every stage of the action, an objection to the admissibility of evidence by a party affected by that evidence shall be made at the time the evidence is offered”.(Emphasis mine)
It is trite that where evidence is being adduced on a material matter or fact that has not been pleaded by one party, the other party who will be adversely affected by that evidence is required to object to that kind of evidence at the very moment such evidence is offered. Generally speaking, any objection to any piece of evidence which is oral or documentary must be raised at the material moment that objectionable evidence is adduced or offered at the trial.
In our practice now where evidence in chief of parties and witnesses are reduced in writing in the form of witness statements as required by Order 38 Rules 3A to 3G of C.I. 87, the objection to evidence on matters that have not been pleaded must be made or raised as soon as the party or the witness on oath informs the court to adopt the witness statement as his/her evidence in chief.
Failure to raise the objection in a manner prescribed by section 6(1) of NRCD 323 can bring about dire consequences to the case of the party who is affected but who does not object such as what happened in this case.
The plaintiffs/respondents, who shall be referred to as plaintiffs for brevity, claimed that their late father Kwabena Attah acquired H/No ASK 1D39, Asokore- Koforidua. This property consisted of “five chambers and halls, two single rooms, three kitchens and three toilets and baths” (See paragraph 5 of the statement of claim at page 3 of the Record of Appeal (ROA).
Thinking rather erroneously that as children they are entitled as beneficiaries of their late father’s estate, the plaintiffs sued defendant/appellant who will be referred to as defendant for short and on whom the property had devolved by custom, for declaration of title and recovery of possession, among other ancillary reliefs.
Having regard to the uncontroverted fact that the father of plaintiffs died in 1984, in which case the father’s property by the then prevailing customary law devolved on the father’s family, the action of the plaintiffs co