KORANTENG II AND OTHER vs. KLU [1994]DLSC757

Date	1994-04-19
Suit No.
Citation No.	[1994]DLSC757

ADADE JSC

ABBAN JSC

AMUA-SEKYI JSC

EDWARD WIREDU JSC

BAMFORD-ADDO JSC

P A ADJETEY FOR THE APPELLANTS.

NARTER-OLAGA (WITH HIM OFOSU-QUARTEY) FOR THE RESPONDENT.

[1994]DLSC757
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KORANTENG II AND OTHER<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KLU<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1993-94] 1 GLR 280<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">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 19 APRIL
1994<o:p></o:p>

</div>COUNSEL:<o:p></o:p>P A ADJETEY FOR THE APPELLANTS.<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">

NARTER-OLAGA (WITH HIM OFOSU-QUARTEY) 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 1.0pt 0in">

ADADE, ABBAN, AMUA-SEKYI, EDWARD WIREDU AND BAMFORD-ADDO JJSC<o:p></o:p>

</div>JUDGMENT OF ADADE JSC.<o:p></o:p>I have been privileged to read in advance the opinions of my
brothers Abban and Amua-Sekyi JJSC soon to be read, and I am in complete
agreement with them that the appeal lacks merit, and ought to be dismissed.<o:p></o:p>There is, however, one aspect of the matter on which I wish to
comment, that is the absence from the record of appeal of the reasoned opinion
or judgment of the trial judge. It is a serious matter which should not be
glossed over lightly.<o:p></o:p>When the then Chief Justice’s attention was drawn to this defect
whilst the case was pending on appeal before the Court of Appeal, he directed,
administratively, that the case be sent back to the High Court to be heard de
novo. Admittedly, the Chief Justice’s intentions were admirable; unfortunately
he tripped on the law, as was pointed out by Lamptey JA in his ruling of 18
December 1987 in Klu v Kwantreng [1989-90] 1 GLR 135.<o:p></o:p>But the impression must on no account be created that because an
appeal is by way of a rehearing, the reasoned judgment of the trial court is
not necessary. In my view, as a rule, that judgment is always necessary; it is
the basis of the appeal, and ought always to be seen and read by the appellate
tribunal. An order, such as that recorded by the judge in the record of appeal
that: “Per court: The plaintiff’s claim [is] dismissed with costs of ¢750
inclusive of ¢500 for counsel” cannot be a substitute for the reasoned judgment
of the court. It is the reasoned judgment which will indicate to the appellate court
where the judge went right, or wrong, both on the facts and on the law; and
whether the judge discharged the judicial function imposed on him, or whether
he failed to do so. That function has been defined as finding the facts and
applying the law to the facts. If this function cannot be said to have been
adequately performed by the trial judge, an appellate court will in all
probability send the case back to be retried, notwithstanding the fact that an
appeal is by way of rehearing: see Craven v Craven (1957) 107 LJ 505, CA and
Quaye v Mariamu [1961] GLR 93 at 95, SC per van Lare JSC. In my view,
therefore, the reasoned judgment of the trial court should always be part of
the record of appeal.<o:p></o:p>Without it, the record is not complete, and the appeal is not
ready to be heard.<o:p></o:p>Of course it has been said that to every rule there is an
exception. I am prepared to look upon the present situation as an exception to
the rule, given the circumstances: (a) the case itself has been over twenty
years in the court; it was commenced in November 1970. The parties and the
litigation deserve to be given a rest; (b) it is possible from the arguments
and detailed briefs of the parties, to get a reasonably good idea of what the
trial judge must have written, even if we are assisted in arriving at this by
conjecture; and finally, (c) the absence of the reasoned judgment does not seem
to me to have occasioned any miscarriage of justice in this case.<o:p></o:p>I wish, however, that, to avoid a repetition of this incident in
future, an inquiry would be instituted by his Lordship the Chief Justice with a
view to ascertaining how the judgment of the learned trial judge came to be
lost in the first place, and how also, after succeeding to secure a copy, the
registry allegedly sent that copy to Botswana without making and keeping any
copies of that retrieved copy. In order to set minds at rest that the so-called
loss was not engineered or contrived, an inquiry is called for. Fortunately,
the learned trial judge is now in the country, running another public outfit;
he can be of enormous help in the inquiry.<o:p></o:p>As stated earlier, I will dismiss the appeal.<o:p></o:p><o:p>&nbsp;</o:p>JUDGMENT OF
ABBAN JSC.<o:p></o:p>The appellants (hereinafter referred to as the plaintiffs)
</main>