THE REPUBLIC vs. OPANYIN EKRA KWAME & ANOR. EX-PARTE: OPANYIN KWEKU YALLEY [2002]DLCA6762

Date	2002-05-09
Suit No.	CIVIL APPEAL NO. 44/2001
Citation No.	[2002]DLCA6762

TWUMASI J.A. (PRESIDING)

FARKYE J.A.

ANSAH J.A.

[2002]DLCA6762
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													<main id="main" class="content" style="min-height: 60rem" >THE REPUBLIC<o:p></o:p>vs.<o:p></o:p>OPANYIN EKRA
KWAME &amp; ANOR.<o:p></o:p>(RESPONDENTS/APPLICANTS)<o:p></o:p>EX-PARTE:
OPANYIN KWEKU YALLEY<o:p></o:p>(APPELLANT/RESPONDENT)<o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; CIVIL APPEAL NO. 44/2001 &nbsp;&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 9TH MAY, 2002<o:p></o:p>

TWUMASI J.A. (PRESIDING), FARKYE J.A.,
ANSAH J.A.<o:p></o:p>

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</div>TWUMASI,
J.A.: <o:p></o:p>This
appeal raises the vexed question as to the proper approach which a court is
required to adopt in determining an issue in a case where the parties have
stated their respective versions of the issue by way of affidavits. <o:p></o:p>In
the instant case, the appellants were cited for contempt before the High Court,
Sekondi for disobeying an order given by the Western Regional House of Chiefs.
The order stated that the appellants should within a specified time surrender
to the Home of chiefs, the black stool and Bombae drums of Kwesimintim, a town
near Takoradi in the Western region. The appellants were cited for contempt at
the behest of the respondents for the reason given by the latter that the stool
surrendered to the House of Chiefs was not the black stool of Kwesimintim, but
a kitchen stool. Also it was contended by the respondents, that the appellants
had returned only three out of six bombae drums. The issues that fell for
determination by the trial judge were (1) whether the stool surrendered was in
fact the black stool of Kwesimintim (2) whether the bombae drums were only
three or six in number. The material evidence before the trial judge were
affidavits only. The ground of appeal most loudly levelled against the decision
of the learned trial judge was that he failed to take oral evidence to
determine the issues raised and, consequently, he erred in basing his finding
of guilt against the appellants on the basis of the affidavits. To my
understanding, Counsel’s contention was that the proceedings had reached such a
pivotal stage where the only compelling option open to the learned trial judge
was not a capricious evaluation of bare conflicting affidavits but rather
examination in the witness stand of the parties or other persons where the
benefit of cross-examination would be available as true indicator to the
credibility of witnesses and ultimately serve the ends of justice. He relied on
Order 59 rule 26 of the High Court (Civil Procedure) Rules 1951 Rev LN 140 A,
which provides that <o:p></o:p>“59
r 26. On the hearing of any motion or summons to which this Order relates the
Court or judge may direct any issue of fact in dispute to be tried in the same
manner as other issues of fact are tried.” <o:p></o:p>The
reaction of Counsel for the respondents to these submissions by his learned
friend was that there was no need for the learned trial judge to take evidence
on oath because, as he explained in his statement of case, the Registrar of the
Regional house of Chiefs had deposed to an affidavit which was neither
challenged by the appellants by affidavit nor by word of mouth in Court and, he
opined, that this failure to challenge the Registrar’s averments constituted
clear admission which made otiose the taking of evidence on oath inasmuch as
the learned trial judge was entitled to determine the issue on the affidavits.
The affidavit sworn to by the Registrar read as follows: - <o:p></o:p>“Affidavit
of Crosby Kwesi Davis <o:p></o:p>I,
Crosby Kwesi Davis of Sekondi make oath and say as follows:- <o:p></o:p>(1)
That I am the Registrar of the Western Region House of Chiefs and the deponent
herein. <o:p></o:p>(2)
That on the 22nd October, 1998 the respondents herein deposited an ordinary
stool and three drums at the registry of the house. <o:p></o:p>(3)
That from my own knowledge and experience as Registrar of the House of Chiefs
for nearly thirty years I know a black stool, and that which was sent could not
be a black stool. <o:p></o:p>(4)
That on the said date I heard the respondents vow never to surrender that stool
and other regalia, because if he surrenders them to Opanyin Kofi Yalley and
George Emmanuel Acquah there would be chaos in Kwesimintim.” <o:p></o:p>It
was submitted on behalf of the respondents that the thirty years experience
acquired by the said Registrar qualified him as credible witness on the
identity and character of a black stool as distinguished from an ordinary
stool. Furthermore, the fact that his averment that the appellants had vowed
never to return the black stool had not been challenged added weight to his
credibility. In answer to these submissions, I would in fairness quote
paragraphs 34 &amp; 35 of the submissions of Counsel for the appellants before
I make my comment. The said paragraphs are as follows:- <o:p></o:p>