AUGUSTINE BAIDOO vs. YAW NKUAH ALIAS YEHOWA [2017]DLCA4795

Date	2017-05-02
Suit No.	CIVIL APPEAL NO. H1/31/2015
Citation No.	[2017]DLCA4795

HONYENUGA J.A (PRESIDING)

GYAN J.A

SUURBAAREH J.A

MR. PAUL NKUAH GYAPONG FOR THE PLAINTIFF/APPELLANT/APPELLANT

MRS. ELLENOR LARBIE FOR THE DEFENDANTS/RESPONDENTS/RESPONDENT

[2017]DLCA4795
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													<main id="main" class="content" style="min-height: 60rem" >AUGUSTINE BAIDOO <o:p></o:p>(PLAINTIFF/APPELLANT/APPPELLANT)<o:p></o:p>vs.<o:p></o:p>YAW NKUAH ALIAS YEHOWA<o:p></o:p>(DEFENDANTS/RESPONDENTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, CAPE COAST]<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">

CIVIL APPEAL NO. H1/31/2015&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: 2ND MAY, 2017<o:p></o:p>

MRS.
ELLENOR LARBIE FOR THE DEFENDANTS/RESPONDENTS/RESPONDENT<o:p></o:p>

</div>SAEED K. GYAN, JA<o:p></o:p>This
is an appeal from the judgment of the High Court, Sefwi Wiawso, dated 17th
January, 2014. The High Court dismissed an appeal brought before it from the
judgment of the District Court, Juaboso, dated 4th February, 2011. Save for a
little variation, the High Court dismissed the Plaintiff’s appeal and basically
affirmed the decision of the trial District Court.<o:p></o:p>Being
aggrieved by and dissatisfied with the judgment of the High Court, the
Plaintiff has mounted this further appeal to the Court of Appeal seeking an
order setting aside the High Court’s said judgment and entering judgment in
favour of the Plaintiff/Appellant/Appellant on the basis of the grounds of
appeal contained in the notice of appeal filed on 3/2/2014.<o:p></o:p>The
following grounds of appeal were recorded:<o:p></o:p>&nbsp;“ A. The judgment is against the weight of
evidence adduced at the trial<o:p></o:p><o:p>&nbsp;</o:p>B.&nbsp;
The Learned High Court Judge erred in law when he wrongly applied the
principle of nemo dat quod non&nbsp;&nbsp; habet
rule or principle to the facts of the case.<o:p></o:p>C.&nbsp;
The Learned High Court Judge made wrong finding of fact when he held
that Plaintiff’s father did not cultivate any virgin land in the area in
dispute.<o:p></o:p>D. The Learned High Court Judge erred
in upholding the counter-claim of the 1st Defendant when the evidence on record
clearly shows that the Defendants failed to prove their case on the balance of
probabilities.<o:p></o:p>E. The Learned High Court Judge erred
in law in his application of customary law on gift vis-à-vis the evidence
adduced at the trial and thus came to a wrong conclusion.”<o:p></o:p>It
is worth noting that in the appeal to the High Court from where the instant
appeal to the Court of Appeal emanated the only ground of appeal urged was the
omnibus ground, namely, that the judgment was against the weight of evidence. <o:p></o:p>A
critical examination and assessment of the grounds filed in respect of the
instant appeal would suggest that they by and large could be subsumed under the
omnibus ground of appeal to the effect that the judgment was against the weight
of the evidence led at the trial.<o:p></o:p>However,
I am of the view that the second ground of appeal in the manner it was
formulated falls foul of the requirements of Rule 8(4) of the Court of Appeal
Rules, 1997 (C.I. 19) <o:p></o:p>The
said rule provides as follows:<o:p></o:p>“ 8(4) where the grounds of an appeal
allege misdirection or Error in law, particulars of the misdirection or error
shall be clearly stated”<o:p></o:p>The
said ground of appeal seems to me to be also vague and general in its terms and
therefore equally does not conform to Rule 8(6) of C.I.19.<o:p></o:p>Accordingly,
the said ground of appeal is struck out for non-compliance with the relevant
rules.<o:p></o:p>See:
F.K.A. Company Ltd and Anor V Nii Ayikai Akramah II and 4 others [2016] 101 GMJ
186 <o:p></o:p>It
is clear that the learned High Court Judge having examined the judgment of the
trial District Court and having assessed the same in the light of the evidence
led and the record of appeal before him virtually agreed with and affirmed the
basic findings of fact made by the trial Court and hence accepted as reasonable
and satisfactory the conclusions arrived at and the final determination of the
case made by the Learned trial Magistrate, except for the little variation made
to rightly exclude PW1, Mr. P.K. Ofori, and his land from the impact of the
District Court judgment on the ground that PW1 was merely a witness in the case
and not a par</main>