VYASRAJ MADHAN KAMALAPUR vs. DHILLON FARMS INT. LTD AND AMANDEED SINGH [2009]DLCA6768

Date	2009-04-23
Suit No.	CIVIL APPEAL SUIT NO. HI/134/07
Citation No.	[2009]DLCA6768

APALOO JA (PRESIDING)

GYAESAYOR JA

DANQUAH JA

J. A. ARYITEY ESQ FOR DEFENDANTS/APPELLANTS/RESPONDENTS

ANDREW TETTEH ESQ FOR PLAINTIFF/RESPONDENT/CROSS-APPELLANT

[2009]DLCA6768
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													<main id="main" class="content" style="min-height: 60rem" >VYASRAJ
MADHAN KAMALAPUR<o:p></o:p>(PLAINTIFF/RESPONDENT/CROSS
APPELLANT)<o:p></o:p>vs.<o:p></o:p>DHILLON
FARMS INT. LTD AND AMANDEED SINGH<o:p></o:p>(DEFENDANTS/APPELLANTS/RESPONDENTS)<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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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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APPEAL SUIT NO. HI/134/07&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: 23RD APRIL, 2009<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">ANDREW TETTEH ESQ FOR
PLAINTIFF/RESPONDENT/CROSS-APPELLANT <o:p></o:p>

APALOO JA (PRESIDING), GYAESAYOR JA, DANQUAH
JA<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>APALOO
JA <o:p></o:p>This
is an appeal from the decision of the Fast Track Division of the High Court
dated 13/11/06. The Defendants/Respondents/Appellants who will hereinafter be
referred to as Defendants filed 9 grounds of appeal, too numerous to be
reproduced here. However his ground 1 was that the decision was against the
weight of the evidence. Indeed the Defendants’ numerous grounds of appeal were
an attack on the whole judgment inclusive of findings of fact made by the trial
judge as well as in their view the trial judge’s failure to appreciate some
aspect of the evidence led in the trial. The two additional grounds filed by
the Defendants equally faulted the trial judge’s findings. <o:p></o:p>The
Plaintiff/Respondent hereinafter to be referred to as Plaintiff swiftly filed
11 grounds in a cross-appeal. The cross-appeal likewise attacked the same
judgment in its entirety both on the facts and evidence. The Plaintiff
similarly faulted the trial Judge in his assessment of the evidence led before
him. From the total number of 22 grounds of appeal filed in this action it will
not be outrageous to suggest that both parties are completely dissatisfied with
the decision and have reverted to the aggrieved positions they took before
litigation commenced. <o:p></o:p>In
respect of the cross-appeal it will be appropriate to refer to Rule 15(1) of CI
19, the Court of Appeal Rules 1997 which provides that: <o:p></o:p>“15(1) It shall not be necessary for
the respondent to give notice by way of cross–appeal; but if a respondent
intends upon the hearing of the appeal to contend that the decision of the
court below be varied, he shall within one month after service upon him of the
notice of appeal cause written notice in Form 7 in Part 1 of the Schedule of
his intention, to be given to every party who may be affected by the
contention” <o:p></o:p>By
Rule 15(1) therefore the necessity for a cross-appeal was accordingly
extinguished and in its stead came “Notice by Respondent of intention to
contend that decision of Court below be varied.” <o:p></o:p>We
have closely looked at Civil Form 7 pursuant to Rule 15(1) of the Court of
Appeal Rules and we are equally satisfied that the “Cross-appellant” herein
duly conformed with all the requirements contained in Form 7 to enable this
Court assume jurisdiction to vary the decision of the Court below if found
necessary. <o:p></o:p>There
is no doubt that an appeal is in the nature of a rehearing. The rehearing has
its own limitations and should be appreciated that the rehearing is not an open
field where the appellant is allowed and/or permitted to question every and all
findings made by the trial judge. The celebrated case of Cudjoe Vrs Kwatchey
[1930-33] 2 WACA 37 clearly stated the duty imposed on the appellate Court in
the hearing of an appeal. On Page 374 of the report, the West African Court of
Appeal delivered itself in this manner. <o:p></o:p>“An appeal Court will not interfere
with the decision of the Court on the facts unless such decision is shown to be
perverse or not the result of a proper exercise of discretion…… The Appeal
Court is not debarred however from coming to its own conclusion on the facts
and where a judgment has been appealed from on the ground of weight of evidence
the appeal Court can make up its own mind on the evidence; not disregarding the
judgment appealed from but carefully weighing and considering it and not
shrinking from over ruling it, if on full consideration it comes to the
conclusion that the judgment is wrong, but if the Appeal Court is in doubt the
appeal must be dismissed since the burden of proof is on the appellant.” <o:p></o:p>Closely
connected with the duties of the appellate Court is the ground of appeal where
an appellant contended that a judgment is against the weight of evidence. There
is no doubt that the appellant assumed the burden of showing that it was in
fact so. I</main>