GLADYS FARESS vs. ELDER NKANSAH [2022]DLHC11726

Date	2022-06-01
Suit No.	SUIT NO: GJ/1172/2021
Citation No.	[2022]DLHC11726

HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO

MR. KWAME ADUABENG YANKYERA FOR THE APPELLANT - PRESENT

MR. FRANK KOMLA MENSAH FOR THE RESPONDENT – PRESENT

[2022]DLHC11726
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													<main id="main" class="content" style="min-height: 60rem" >GLADYS FARESS<o:p></o:p>(PLAINTIFF/
RESPONDENT)<o:p></o:p>vs.<o:p></o:p>ELDER NKANSAH<o:p></o:p>(DEFENDANT/
APPELLANT)<o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>COUNSEL&nbsp;&nbsp;&nbsp; <o:p></o:p>MR.
KWAME ADUABENG YANKYERA FOR THE APPELLANT - PRESENT<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

MR. FRANK KOMLA MENSAH FOR THE
RESPONDENT – PRESENT<o:p></o:p>

</div>CORAM<o:p></o:p>HIS
LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;border:none;mso-border-top-alt:solid windowtext 1.5pt;
mso-border-bottom-alt:solid windowtext 1.5pt;padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>&nbsp;i.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Introduction:<o:p></o:p>[1]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; This is an appeal from the decision of the District
Magistrate sitting at the Central District Magistrate Court, Accra on the 12th
day of February, 2019. The Court ordered the Defendant to refund to the
Plaintiff the sum of One Thousand United States Dollars ($1,000.00) and also
pay to her an amount of GH¢14,700.00 the Defendant collected as rent from
Plaintiff’s tenants. According to the Appellant the Court in effect granted the
reliefs of the Plaintiff/Respondent and dismissed the monetary claims made by
him, the Appellant. Being dissatisfied with the verdict of the Court, the Appellant
herein (Elder Nkansah) caused to be filed on his behalf an appeal and requests
that this Court reverse the decision of the District Magistrate and “give
judgment to the Defendant and order the Plaintiff to pay an amount of GH¢961.00
to the Defendant to enable him pay off his creditors in respect of his work
done on the Plaintiff’s property”. <o:p></o:p>[2]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Appellant advanced only a ground of appeal and indicated
that further grounds would be filed upon receipt of the record of appeal in the
Notice of Appeal filed on the 9th day of April, 2019. No further ground was
filed. The grounds of appeal stated in the notice are as follows:<o:p></o:p>1)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The Judgment is against the weight of the evidence before
the court.<o:p></o:p>2)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Further grounds of Appeal may be filed upon the receipts of
the record of appeal.<o:p></o:p>In effect, the grounds of
appeal contains only one ground of appeal, which is the omnibus ground.&nbsp; The import of it is that, the trial
magistrate failed to consider his case and therefore arrived at a wrong
conclusion. <o:p></o:p>&nbsp;[3]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Before dealing with the merits of the instant appeal, it is
important to state that because the trial court was the tribunal of fact, I
have to scrutinize the judgment to determine if the conclusion reached on all
of the evidence was open to the learned trial Magistrate. If on the evidence,
the decision reached by the learned Magistrate was supported by the evidence
then I am not entitled to reverse it even if I would have reached a different
conclusion. This position is anchored in the fact that appellate judges are
required to demonstrate a slowness in interfering with decisions of trial
courts when decisions are supported by the evidence. See IN RE: OKINE (Dec’d)
[2003-2004] 1 SCGLR 582 @ 607 and the observation of Kludze JSC (as he then
was).<o:p></o:p>[4]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Before considering the above grounds set out, it is also
important to state what Rule 1(1) of Order 51 of C.I. 47 says. It is titled –
Notice of Appeal – it states:<o:p></o:p>“An appeal from a decision or order of a
District Court to the High Court shall be by way of rehearing and shall be
brought by notice in this Order referred to as “the notice of appeal”.
[Emphasis Mine].<o:p></o:p>[5]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; In TUAKWA v BOSOM
[2001-2002] SCGLR 61 at page 65, the Supreme Court speaking through Sophia
Akuffo, JSC (as she then was) stated in regards to an appeal being a re-hearing
as follows; <o:p></o:p>“Furthermore, an appeal is
by way of a re-hearing particularly where the appellant … alleges in his notice
of appeal that, the decision of the trial court is against the weight of the
evidence. In such a case, although it is not the function of the appellate
court to evaluate the veracity or otherwise of any witness, it is incumbent
upon an appellate court, in a civil case, to analyse the entire record of
appeal, take into account the testimonies and all documentary evidence adduced
at the trial before it arrives at its decision, so as to satisfy itself that,
on a preponderance of the probabilities, the conclusions of the trial judge are
reasonably or amply supported by the evidence. It is our view that the Court of
Appeal in this case failed to do this.”<o:p></o:p>[6]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Accompanying the Notice of Appeal is Counsel’s Written
Submissions filed on the 4th of February, 2022 setting out his legal arguments
urging on this court to allow the appeal. The Plaintiff/Respondent Counsel also
filed his Written Submissions on January 31, 2022 to oppose the appeal and
implored the court to dismiss the appeal as one without merit. <o:p></o:p>ii.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Factual Background: <o:p></o:p>[7]&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Before going further, it is appropriate to chronicle in
brief, the</main>