NEIZER vs. WOOD ALIAS AFRIYIE [1988]DLCA788

Date	1988-11-18
Suit No.
Citation No.	[1988]DLCA788

FRANCOIS J.S.C

AMPIAH JA

ESSIEM J.A

[1988]DLCA788
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													<main id="main" class="content" style="min-height: 60rem" >NEIZER <o:p></o:p>vs. <o:p></o:p>WOOD ALIAS AFRIYIE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1987-88] 2 GLR 476<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
18 NOVEMBER 1988<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">

HAYFRON-BENJAMIN (WITH HIM DADSON) FOR THE
APPELLANT. <o:p></o:p>

C. B.K. ZWENNES FOR THE RESPONDENT<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">

FRANCOIS J.S.C AMPIAH AND ESSIEM JJ.A<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.S.C.<o:p></o:p>The
subject matter of this appeal is a house situate on plot No.5, Block N,
Asuakwa, New Amakom Extension, Kumasi. The plaintiff sought a declaration that
the lease in respect of the plot, which bore her deceased husband’s name,
should be cancelled on grounds of fraud. The action was against the defendant
as successor of the plaintiff ‘s husband, who counterclaimed for a declaration
in the family’s favour.<o:p></o:p><o:p>&nbsp;</o:p>The
issues raised for trial required a detailed examination of the facts and a personal
evaluation of credibility by the trial judge. The trial commenced before the
late Koranteng-Addow J. (as he then was) on 8 May 1973, running through to
March 5 1975.<o:p></o:p>The
record does not disclose what transpired on 18 March 1975, a date to which the case
had been adjourned. But judgment appears to have been duly delivered on 6 May
1985 in favour of the plaintiff awarding her ancillary reliefs and dismissing
the defendant’s counterclaim. The interval of ten years between the last
hearing and the delivery of judgment seems the least of the bewildering
circumstances in this case.<o:p></o:p><o:p>&nbsp;</o:p>The
promulgation of the Intestate Succession Law, 1985 (P.N.D.C.L. 111) vesting in
a surviving spouse and her children statutory options of ownership of intestate
property, has compounded the problem. Distribution of the estate in terms of
P.N.D.C.L. 111 would benefit the plaintiff and her children in the qualified
sense only as beneficial inheritors of the deceased’s estate. It would not
settle the issue of original ownership of the property, nor resolve the
allegations of fraud.<o:p></o:p>The
second and more profound issue arises from the fact that the judge who heard
the matter at the High Court, Kumasi had, at the time he delivered his
judgment, retired from the Judicial Service. Indeed judicial notice must be
taken of the fact that the late judge had in the interval between hearing
evidence and delivering his judgment, served as the Attorney-General of Ghana.
It requires no great legal learning to hold that the office of judge of the High
Court and Attorney-General of Ghana are mutually exclusive in the sense that
they cannot be occupied by one person at the same time.<o:p></o:p><o:p>&nbsp;</o:p>But
clouding the issue further is the mandate the learned judge received from the
Chief Justice of the day to conclude his judgments. That letter dated 22 June
1980 reads:<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">“Dear Dr
Koranteng-Addow, Ref. SCR 10 Vol. 1/164 22 June 1980 UNDELIVERED JUDGMENTS I
attach hereto, a list of judgments reserved by you and which you were not able
to read before your retirement from the judiciary. Both parties and counsel
alike have made representations to his lordship to request you to kindly
deliver them. They say they would suffer considerable hardship and expense if
they should be obliged to undergo a fresh trial of these already concluded
cases. In many cases, they say the witnesses are now not available. This matter
was brought to the attention of the Judicial Council at its meeting on Friday 2
May 1980. The council shared the anxiety of the parties and thinks that as you
are fortunately available, you would not mind writing them and that you should
be kindly requested to do so. The Chief Justice also recalled your promising
some time ago to dispose of these matters if you are completely settled. I
trust it is now possible for you to write these judgments. The Chief Justice
would arrange that one of the judges stationed at Kumasi reads them as soon as
they are ready. Perhaps you would be good enough to let me know when these
judgments may be ready for delivery and if you would require me to procure any
records, dockets or other relevant material for you. I shall be glad to have
your reaction to the request contained in this letter as soon as possible.
Yours faithfully, (Sgd.) (J. A. WUTOH) JUDICIAL SECRETARY HON. DR. G.
KORANTENG-ADDOW C/O MRS. JUSTICE C. KORANTENG-ADDOW THE HIGH COURT ACCRA.”<o:p></o:p><o:p>&nbsp;</o:p>