KWAA ARKU-KORSAH (PLAINTIFF/RESPONDENT) vs. KWEKU MENSAH (SUBSTITUTED BY) KOBENA KORANTSEN & 37 ORS (DEFENDANTS/APPELLANTS) [2019]DLCA7748

KWAA ARKU-KORSAH (PLAINTIFF/RESPONDENT) vs. KWEKU MENSAH (SUBSTITUTED BY) KOBENA... [2019]DLCA7748

Date	2019-05-02
Suit No.	SUIT NO. H1/17/2018
Citation No.	[2019]DLCA7748

ADJEI J.A

SUURBAAREH J.A

AGBEVOR J.A

KORSAH BROWN FOR THE DEFENDANTS/APPELLANTS

ALEXANDER ABBAN FOR THE PLAINTIFF/RESPONDENT

[2019]DLCA7748
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													<main id="main" class="content" style="min-height: 60rem" >KWAA
ARKU-KORSAH<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p><span lang="EN-US" style="font-size:12.0pt;
line-height:115%;font-family:&quot;Book Antiqua&quot;,serif;mso-fareast-font-family:&quot;Book Antiqua&quot;;
mso-bidi-font-family:&quot;Book Antiqua&quot;;color:#00B0F0">vs.<o:p></o:p>KWEKU MENSAH (SUBSTITUTED BY) KOBENA KORANTSEN &amp; 37 ORS<o:p></o:p>(DEFENDANTS/APPELLANTS)<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">

SUIT
NO. H1/17/2018&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: 2ND
MAY, 2019<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KORSAH
BROWN FOR THE DEFENDANTS/APPELLANTS<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">

ALEXANDER
ABBAN FOR THE PLAINTIFF/RESPONDENT<o:p></o:p>

</div>CORAM:<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">

ADJEI
J.A, SUURBAAREH J.A, AGBEVOR J.A<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>ADJEI,
J.A:<o:p></o:p>The High Court, on 13th
November 2015, delivered a ruling and the defendants/appellants, dissatisfied
with the ruling, filed an interlocutory appeal to this court praying for the
reversal of the order made on 3rd December 2015.<o:p></o:p>The facts relevant to this
appeal are that a lawyer was engaged to conduct the case against the
thirty-eight defendants/appellants at the court below. However, three of them
namely the 31st 35th and 37th defendants filed
a process in the court below to dispense with the services of the lawyer. The
process they filed to discharge their lawyer was in the nature of an affidavit.
The other defendants through the same lawyer filed a motion to dismiss the
process filed on grounds of incompetence. The trial High Court judge granted
the application and struck out the process as incompetent and further made
consequential orders disengaging the said lawyer from representing the three
aforesaid defendants because, to him, there were some ethical issues raised in
the affidavit. The defendants dissatisfied with the decision taken by the trial
High Court judge filed an interlocutory appeal to this court. The notice of
appeal contains three main grounds of appeal and they are as follows:<o:p></o:p>“ i. The learned High Court
Judge erred in law by relying on the bare, unsubstantiated and untested
evidence of the 31st, 35th and 37th defendants
to hold that Counsel for the defendants had acted wrongly in representing the
named defendants.<o:p></o:p>ii. That the learned High
Court Judge further erred in law when he based his subsequent Orders on an
incompetent and expunged process of Court, ie ‘submission to due judgment’<o:p></o:p>iii. The learned High Court
Judge displayed bias against defendants’ Counsel when he held that ‘the
affidavits on both sides raised serious ethical issues’ instead of reprimanding
learned Counsel for the plaintiff for his admission ‘for composing the
affidavit’ of submission to due judgment for the three defendants.”<o:p></o:p>The general principle of law
is that an appeal is by way of rehearing. Therefore, this court is duty bound to
rehear the appeal and correct all errors arising therefrom. Rule 8 of the Court
of Appeal Rules, 1997 (CI 19) provides that an appeal to the Court of Appeal
shall be by way of rehearing and shall be commenced by a notice of appeal.
Therefore, any ground of appeal should be directed against either a comment or a
decision rendered by the court. Where an appellant files a ground of appeal and
that ground of appeal cannot be discerned from the record it is not
sustainable.<o:p></o:p>We address ground I of the
appeal which alleged that the trial judge erred in law by relying on the bare
unsubstantiated and untested evidence of the 31st 35th
and 37th defendants and came to the conclusion that counsel for the
defendants had acted wrongly in representing the said defendants. The ruling
being attacked is contained in pages 55-59 of the record of appeal and the
parties and the court are bound by the record.<o:p></o:p>