REV. DR. SETH MENSAH ABLORH v. MRS. THEODORA ALBERTA QUARTEY
2021
COURT OF APPEAL
GHANA
CORAM
- SOWAH, J.A. (PRESIDING)
- OPPONG, J.A.
- MENSAH-HOMIAH, J.A
Areas of Law
- Civil Procedure
- Evidence Law
- Property and Real Estate Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This interlocutory appeal arose from the trial judge’s refusal to permit the defendant/appellant to call an additional expert surveyor after a court-appointed expert had reported and been cross-examined by both parties in a land ownership dispute. The appellate court noted that the grounds challenging the refusal were vague and failed to specify a precise legal error. It explained that while Order 26 allows a party to call one expert in response to a court expert, such leave is discretionary and guided by considerations of delay, prejudice, and potential confusion. The court found no violation of audi alteram partem because the application was heard and decided on the merits. On the omnibus ground that the ruling was against the weight of evidence, the appellant did not identify the supposed overlooked evidence; the court discussed the compass and road-location issues and found them either unsupported by firsthand knowledge or addressed by the court expert. The appeal was dismissed, the ruling affirmed, the suit remitted, and costs of GH¢8,000 awarded to the plaintiff/respondent.
SOWAH, (J.A):
This is an interlocutory appeal in respect of a Ruling by the trial judge refusing the defendant/appellants application to call an expert witness. The Ruling was delivered on 30th July 2015 and is at page 110 of the Record of Appeal.
Background Facts
The writ in the suit was issued on 29th October 2009 and concerns a dispute about the ownership of a parcel of land. Each of the parties testified and called four witnesses. On 24th June 2015, the defendant/appellant closed her case. The court then appointed an expert on the same day with the consent of the parties. Both parties duly filed Survey instructions. The court-appointed surveyor filed his report on 27th July 2015, gave evidence and was cross-examined by counsel for both parties. After cross-examination by the appellant on 30th July 2015, counsel for defendant immediately moved the Court under Section 112 of the Evidence Act and its inherent jurisdiction seeking leave to call an expert witness of her own to address pertinent issues not addressed by the court expert. The learned trial judge was however of the view that there was no merit in the application and refused same.
The Notice of Appeal which was filed on 12th August 2015 has the following GROUNDS OF APPEAL:
a. The learned trial Judge erred in law when he held that defendant/appellant’s application to call expert witness is refused
b. The failure to grant defendant’s request is highly prejudicial to defendant’s case and unjust.
c. The ruling is against the weight of evidence.
Particulars Of The Error Of Law:
i. The learned trial Judge failed to appreciate that any judgment in the present suit might be affected unjustly by the lack of evidence from defendant/appellant’s expert witness to address issues raised by the Honourable Court’s surveyor.
ii. The refusal was against the rules of natural justice.
d. Additional grounds of appeal shall be filed upon receipt of the record of proceedings.
No additional grounds were filed.
In arguing the appeal, the appellants counsel argued grounds (a) and (b) together and then the omnibus ground (c)
Grounds (a) and (b)
Since an omnibus ground of appeal that a ruling is against the weight of evidence is essentially a ground of fact, I think I will be right in presuming that the stated particulars of error of law relate to grounds (a) and (b) of the appeal.
Indeed it has not been easy trying to decipher what errors of law the appellant is complaining about even in the stated particu