NYAMEKYE vs. TAWIAH AND ANOTHER [1978]DLCA1159

Date	1978-06-22
Suit No.
Citation No.	[1978]DLCA1159

APALOO C.J.

SOWAH JA

ARCHER JA

ANIN JA

FRANCOIS J. A.

PARTIES IN PERSON.

[1978]DLCA1159
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													<main id="main" class="content" style="min-height: 60rem" >NYAMEKYE <o:p></o:p>vs. <o:p></o:p>TAWIAH AND ANOTHER<o:p></o:p>[COURT OF APPEAL (FULL BENCH)]<o:p></o:p>&nbsp;[1979] GLR 265<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
22 JUNE 1978<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

PARTIES IN PERSON.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

APALOO C.J., SOWAH, ARCHER, ANIN AND
FRANCOIS J. J. A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO C.J.<o:p></o:p>Apaloo
C.J. delivered the judgment of the court. [His lordship reviewed the evidence
and continued:] As respondent’s evidence about the persons who successively
occupied the stool and the royal house from which they hailed tallied with the
appellant’s and therefore lent support to the rotatory principle urged by the
appellant, it was submitted to the appellate National House of Chiefs that
whatever defects there might be in the trial tribunal’s judgment, its holding
in favour of rotation must be right and should accordingly be left undisturbed.
The appellate house rejected that submission and delivered itself as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“A
plaintiff succeeds on the strength of his own case and not on the weakness of
the defendant’s case. The onus of proof always lies on him who alleges a
certain fact, and unless this proof is made, the plaintiff cannot succeed. It
is therefore wrong to submit that the plaintiff must succeed because certain
aspects of his evidence were corroborated by the defendant.”<o:p></o:p><o:p>&nbsp;</o:p>If this
proposition of law means that a party cannot prove his case by admissions from
the mouth of his opponent or his adversary’s witness, it is wrong and offends
both principle and authority. In Tsrifo V v. Dua VIII [1959] G.L.R. 63 at pp.
64-65 Ollennu J. said:<o:p></o:p>“Where
the evidence of one party on an issue in a suit is corroborated by witnesses of
his opponent, whilst that of his opponent on the same issue stands
uncorroborated even by his own witnesses, a Court ought not to accept the
uncorroborated version in preference to the corroborated one, unless for some
good reason (which must appear on the face of the judgment) the Court finds the
corroborated version incredible or impossible.”<o:p></o:p><o:p>&nbsp;</o:p>This
enunciation of principle was approved by the Supreme Court in Yaw v. Domfeh
[1965] G.L.R. 418 at p. 423. See also Asante v. Bogyabi [1966] G.L.R. 232, S.C.
and Banahene v. Adinkra [1976] 1 G.L.R. 346, C.A.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>How does
the principle stand in relation to the facts of this case? The only matter on
which the parties were in disagreement was that the three “royal houses” agreed
in 1970 to nominate a candidate to the paramount stool by turns and that that
agreement was acted upon until it was breached to give rise to the present
dispute. The appellant and his witnesses produced both viva voce and
documentary evidence in proof of this. The respondent and his sole witness
although professedly controverting this issue made admissions which support the
appellant’s case. On what sound principle of justice can the tribunal reject
this story which, in the event, is practically one way? There is no suggestion
and there can be no warrant for suggesting that the appellant’s story,
corroborated as it was, by the respondent is “incredible or impossible.” In our
judgment, the trite learning on the “burden of proof” ought not to be permitted
to obfuscate the facts of this case.<o:p></o:p><o:p>&nbsp;</o:p>The last
reason advanced by the National House of Chiefs for reversing the trial
tribunal’s conclusion of fact seems to be based on acquiescence. Although the
house did not use that word it expressed itself in a manner which amounts to
it. It said, “The petitioner’s [meaning the appellant] own conduct and evidence
go to confirm the defence denial of the existence of any strict rotation
system.” On this issue, the appellant’s testimony which the trial tribunal did
not reject was as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“After
the death of Kwaw Bom I</main>