OPANIN OSEI AKWASI (SUBSTITUTED BY BADU DANKWAH ALIAS JAMES DANQUAH) v. KWADWO DWEMOH & ORS

KULENDI JSC

INTRODUCTION

On Wednesday the 1st of March, 2023, this Court by a unanimous decision upheld the interlocutory appeal of the Defendant/Appellant/Appellant (hereinafter called “the Appellant”) and reserved our reasons which are as follows:

The said interlocutory appeal is against the concurrent decision of the Court of Appeal dated 27th May, 2021 whereby the Court of Appeal affirmed the ruling of the High Court, Kumasi dated 5th March, 2018.

BACKGROUND:

The ruling of the High Court, Kumasi of 5th March, 2018, upheld an objection to the admissibility of the evidence of the Appellant’s witness, DW1, on the ground that the testimony was hearsay and therefore inadmissible. The context of the testimony and objection is that the Plaintiff/Respondent/Respondent (hereinafter called the Respondent) instituted an action against the Appellant for and on behalf of his family seeking: a declaration that the land in dispute is family property which cannot be sold or gifted without the consent and authority of Respondent and his family members; and an order of perpetual injunction against the Appellant.

The Appellant entered appearance to the Writ of Summons and filed a Statement of Defence and a Counterclaim to the Respondent’s claims.

The case proceeded on its normal course resulting in the commencement of a trial on 28th November, 2017. After the Respondent closed his case, the Appellant opened his case on 5th March, 2018 and called his first witness, DW1 out of turn. It is the testimony of DW1 which provoked an objection by the Respondent that resulted in the said ruling, the subject matter of this appeal.

For the purposes of an in-depth analysis, we hereby reproduce the entire testimony of DW1, up to the point of the objection. This can be found at page 135 of the Record of Appeal as follows:

"My full name is Haruna Musa. I live at James Kumah near Mpasaso No. 2. I live in the disputed farm. My father's name is Malam Musah a.k.a. Agya Musah. I know one Agya Osei Kwasi. My father also knows this Agya Osei Kwasi. My father has become very old and cannot do anything on his own. I know how my father got to know Opanin Osei Kwasi. My father used to trade in cola nuts and through this trade he went to stay with Opanin Osei Kwasi at Mpasaso. He was buying cola nuts and exported same to Burkina Faso. All that I am saying, I was informed by my father; so Opanin Osei Kwasi told my father that he had a parcel of virgin land so my father should search for som