EBUSUAPANYIN KWESI APPIAH & ANOR vs. EBUSUAPANYIN KWESI ACKOM [2007]DLCA7453

Date	2007-02-16
Suit No.	CIVIL APPEAL NO. HI/208/2005
Citation No.	[2007]DLCA7453

OWUSU JA [PRESIDING]

TWENEBOA KODUA JA

ANIN YEBOAH J

MR. CAB-ADDAE FOR THE PLAINTIFFS/APPELLANTS.

[2007]DLCA7453
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													<main id="main" class="content" style="min-height: 60rem" >EBUSUAPANYIN KWESI APPIAH &amp;
ANOR<o:p></o:p>vs.<o:p></o:p>EBUSUAPANYIN KWESI ACKOM<o:p></o:p><o:p>&nbsp;</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;
padding:0cm 0cm 1.0pt 0cm">

CIVIL APPEAL NO. HI/208/2005&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: 16TH
FEBRUARY,2007<o:p></o:p>

</div>COUNSEL:<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

MR. CAB-ADDAE FOR THE
PLAINTIFFS/APPELLANTS.<o:p></o:p>

</div>CORAM:&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

OWUSU JA [PRESIDING],
TWENEBOA KODUA JA, ANIN YEBOAH J<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>ANIN
YEBOAH, JA <o:p></o:p>The Plaintiffs/Appellants [simply
referred to in this judgment as the Appellant] commenced an action against the
Defendants/Respondents [hereinafter referred to as the Respondent] before he
Circuit Court, Cape Coast on 3/12/93. The writ of summons was indorsed with a
claim for a declaration of title to parcels of several lands at Nanuba,
Freetown [in Cape Coast], Amosimo and Kokomaba. The usual ancillary reliefs of
trespass, recovery of possession and injunction were also claimed.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;The suit was placed before Judge Tom Bentil at
the Cape Coast Circuit Court, who on 22/05/1997 commenced hearing by taking the
evidence of the first Appellant who proceeded to call other witnesses J to
testify. The record of proceedings does not show that the Appellants formally closed
their case on 9/2/2000 when their last witness gave evidence. However, on
22/5/2000, the Respondents opened their defence before the same judge and
called their sixth witness on 17/1/2003. It does appear that no further
proceedings came before Judge Tom Bentil thereafter. On 2/09/2003 the suit
which was a part-heard was placed before His Honour Judge Mustapha Habib Logo.
The said judge proceeded to take the evidence on DW.7 up to DW.10 and delivered
his judgment on 24/09/2004 which is on appeal before us.<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;In this court, several grounds of appeal were
filed and argued extensively by counsel for the Appellants. However, he has
raised a very fundamental objection in his further ground of appeal dated
16/2/06 which is couched as follows: <o:p></o:p><o:p>&nbsp;</o:p>"[iii]
The learned judge had no jurisdiction to continue the matter as a part heard
without the express consent of both parties". <o:p></o:p><o:p>&nbsp;</o:p>The history of the case recited above
shows that His Honour Judge Logo indeed inherited this case as a part-heard
one. The record also indicates that there was no formal adoption of the
proceedings of the several witnesses, indeed nine of them who had given
evidence before his predecessor Judge Tom Bentil. The crucial issue here is
whether it was right for Judge Logo to continue with the case in the manner
which appears on record. Learned counsel for the Appellant and his clients
participated throughout the trial, subjected the witnesses to far-ranging
cross-examination and indeed submitted his closing address for it to be
considered in the final judgment which is on appeal before us. But the question
raised here is fundamental and one of jurisdiction. Both counsel did not
attempt to refer to decided cases on this point of law. In the case of COLESHILL vrs. LORD MAYOR, ALDERMEN AND
CITIZENS OF THE CITY OF MANCHESTER [1928] 1 KB.776 CA Lord Justice
Scrutton was confronted with this problem. To appreciate the facts of the case,
I quote ad longum a passage from his judgment: <o:p></o:p><o:p>&nbsp;</o:p>"This
case was heard under melancholy circumstances. Mr. Justice Fraser, who began
the case on Thursday, July 7 and had heard three of the plaintiff's witnesses,
was taken ill during the night and died on the Friday. Mr. Justice Acton was
sent down from London on the Saturday and having read Thursday's shorthand
notes at the urgent request of the parties continued the case with the same
jury on Monday, the 11th, the Thursday's witness not being recalled. I can
understand that in the unprecedented and painful circumstances it is
unnecessary to take any objection to what happened, but I think it is a precedent which should not be followed in
future. I doubt whether a judge has any jurisdiction to continue the hearing of
a case in which witnesses have been called in Court in the course of a trial
before the jury and another judge, is not being a case of evidence
being taken on commission or before an examiner."<o:p></o:p><o:p>&nbsp;</o:p>&nbsp;Lord Scrutton did not answer the question in
the judgment but was strongly a</main>