YAA BADU vs. EFIA OWUSUWAA [2006]DLCA6780

Date	2006-07-27
Suit No.	CIVIL APPEAL NO. HI/198/05
Citation No.	[2006]DLCA6780

AKOTO-BAMFO J.A.

OSEI J.A.

APALOO J.A.

MR. G.K. BARIMAH FOR T HE PLAINTIFF/APPELLANT.

MR. FRIMPONG BOADU FOR THE DEFENDANT/RESPONDENT.

[2006]DLCA6780
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													<main id="main" class="content" style="min-height: 60rem" >YAA BADU<o:p></o:p>(PLAINTIFF/APPELLANT)<o:p></o:p>vs.<o:p></o:p>EFIA
OWUSUWAA<o:p></o:p>(DEFENDANT/RESPONDENT)<o:p></o:p><o:p>&nbsp;</o:p>[COURT
OF APPEAL]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO. HI/198/05&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: 27TH JULY, 2006<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">MR. FRIMPONG BOADU FOR THE
DEFENDANT/RESPONDENT. <o:p></o:p>

AKOTO-BAMFO J.A., OSEI J.A., APALOO
J.A.<o:p></o:p>

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</div>APALOO,
J.A. <o:p></o:p>This
is an appeal from the decision of the Circuit Court Kumasi, dated 14th June
2004. The Plaintiff/Appellant mounted this action claiming general damages
against the Defendant/Respondent for defamation. <o:p></o:p>Defendant/Respondent
after delivery of her defence counterclaimed also for defamation. <o:p></o:p>After
a full trial, the Judge dismissed Plaintiff’s action and found for the
Defendant on her counterclaim. the Judge was of the view that: <o:p></o:p>“I
do not…….find both Plaintiff and her witness truthful witnesses….and would
therefore not credit their evidence with any truth. Indeed I find the evidence
of the Defendant and her witness more impressive than that of the Plaintiff and
her witness.” <o:p></o:p>“In
the result, the Plaintiff’s claim cannot succeed and is dismissed accordingly.
Defendant rather succeeds in her counter-claim and I enter judgment for her
accordingly……. <o:p></o:p>In
sum therefore upon due consideration of the totality of evidence adduced by
both parties and having carefully weighed the evidence against that of the
Defendant, I have no doubt whatsoever in my mind, that the balance tilts in
favour of the Defendant both in her defence and counter-claim.” <o:p></o:p>The
above were findings of fact, conclusions as to the credibility of the parties
and their witnesses as well as the proof required under the law in civil
matters. <o:p></o:p>The
ground of appeal is basically against the weight of evidence adduced at the
trial and the conclusion reached by the trial Judge. In assessing the decision
of the trial court reference must be made to proof as required by law. The
trial Judge preferred the evidence of the Defendant and her witness to that of
the Plaintiff and in my view that discretion is left entirely within the powers
of the trial Judge. <o:p></o:p>The
case of Zanyo Vrs. Fofie
{1992-93} GBR 1353 delivered by the Supreme Court is explicit about the
function and role of the Appellate Court. The view of the Supreme Court is
that: <o:p></o:p>“Where
a trial Judge arrives at a conclusion based on the advantage of seeing and
hearing witnesses at first hand, the Appellate Court should be very slow to
form a contrary view….……{The Appellate Court} when reviewing the exercise of
discretion by a lower Court should not interfere unless the Court below had
applied wrong principles in arriving at the result or taken into account matters
which were irrelevant in law or had excluded matters which were crucially
necessary for consideration or had come to conclusion which no Court properly
instructing itself on the law could have reached.” <o:p></o:p>The
record does not disclose any violation of the principles stated above and I am
of the view that the advantage of seeing and hearing the witnesses at first
hand no doubt properly informed the trial Judge to arrive at his conclusion
which preferred the evidence of the Defendant/Respondent to that of the
Plaintiff/Appellant. <o:p></o:p>I
have no doubt in my mind that where an appellant contended that a judgment is
against the weight of evidence, he assumed the burden of showing that it was in
fact so. The Supreme Court in Bonney
Vrs. Bonney {1992-93} GBR 779 reiterated that position and that Court went
further to state that: <o:p></o:p>