AMOO vs. ELECTORAL COMMISSION AND ANOTHER [1997-1998] 2 GLR 858

CASES REFERRED TO

(1) Anyimah III v Kodia IV [1962] 2 GLR 1.

(2) R v Golder; R v Jones; R v Porrit [1960] 1 WLR 1169; [1960] 3 All ER 457 ;124 JP 505, CCA.

(3) R v Birch [1924] 93 LJKB 385, CCA.

(4) R v White (1922) 17 Cr App R 60, CCA.

(5) Abono v Sunkwa [1962]1 GLR 154, SC.

(6) Ahiabley v Dogah [1984-86] 1 GLR 537, CA.

(7) Asia v Ayeduvor [1987-88] 1 GLR 175, CA.

(8) R v Harris (1927) 20 Cr App R 144, CCA.

(9) Commonwealth v Starkweather (1852) 10 Cush 60.

(10) Atadi v Ladzekpo [1981] GLR 218, CA.

(11) Boohene v Ofei [1960] GLR 101.

(12) Dominion Trust Co v New York Life Insurance Co [1919] AC 254, 88 LJPC 30,; 119 LT 748, PC.

[p.861] of [1997-1998] 2 GLR 858

(13) Mersey Docks and Harbour Board v Procter [1923] AC 253.

(14) Glannibanta, The (1876) 1 PD 283; 24 WR 1033.

(15) Bigsby v Dickinson (1876) 4 Ch D 24;46 ULJ Ch 280; 35 LT 679, CA.

APPEAL against the decision of the High Court, Accra dismissing an election petition filed by the appellant on the ground that it was a nullity. The facts are sufficiently set out in the judgment of Essilfie-Bondzie JA.

PA Adjetey for the appellant.

Cudjoe for the second respondent.

Essilfie-Bondzie JA. Delivered the first judgment of the court at the invitation of Sapong JA. The appeal is from the ruling of Gbadegbe J, dated 2 May 1997, in which he dismissed an election petition filed by the appellant on the ground that it is a nullity. The facts are as follows: George Isaac Amoo was the New Patriotic Party parliamentary candidate in the 1996 Parliamentary Election in the Ayawaso West-Wuogon Constituency. The election was conducted by first respondent who declared the second respondent as the winner and the representative of the people in Parliament. The results were declared and published in the gazette on 19 December 1996. Dissatisfied with the results, the appellant on 23 December 1996 caused a writ of summons together with a stateniment of claim to be issued against the respondents herein in suit No Misc 2055/96 for, inter alia:

“(a) A declaration that he is the winner and member of Parliament-elect of Ayawaso West-Wuogon Consti- tuency in the Parliamentary election held on 7 December 1996.

(b) An order that the votes at the Mempehoasem and the Mensah Wood Polling Stations in the Constituency be recounted.

(c) A perpetual injunction restraining the first defendant, his agents or representatives from pronouncing any other person as winner/member owning up, presenting herself offenring as the winner of the said election”

[p.862] of [1997-1998] 2 GLR 858

The second respondent entered an appearance by solicitor on 23 January 1997, while the first respondent entered a conditional appearance by solicitor on 30 January 1997. On the 12 February 1997 the first respondent filed a motion to set aside the said election petition and service thereof.

Arguments on the motion to set aside the petition and service thereof proceeded on 3 March 1997 and the matter was adjourned to 20 March 1997. The record shows that in the course of considering the preliminary objection raised on behalf of the first respondent regarding the competency of the petition brought under section 16 of the Representation of the People Law, 1992 (PNDCL 284), the learned trial judge raised for the consideration of learned counsel for the parties whether, having regard to the official receipt evidencing the security deposit paid under section 18 (2) of the said Law, the action was properly before the court. In other words, the learned trial judge raised the question of the payment by the appellant of the statutory deposit on 24 January 1997 in the light of section 18 (2) of PNDCL 284. Section 18 (1) and (2) of PNDCL 284 provide:

“18. (1) An election petition shall be presented within twenty-one days after the date of the publication in the Gazette of the result of the election to which it relates, except that a petition questioning an election on an allegation of corrupt practice and specifically alleging a payment of money or other award to have been made by the person whose election is questioned or have been made on his behalf to his knowledge, may be presented within twenty-one days after the date of the alleged payment.

(2) The presentation of an election petition under subsection (1) shall not be valid unless within the time specified in subsection (1), the petitioner gives ¢20,000 as security for costs.”

(The emphasis is mine.) The court in my view proceeded to deter mine the question of the payment of the deposit because the 21 days mentioned expired on 9 January 1997, the result having been officially declared and published in the Gazette No 56 of 19 December 1996; but as the record indicates, the result of the official search conducted disclosed that the official receipit evidencing the payment and numbered as AZ ¢0639632 bore 24

[p.863] of [1997-1998] 2 GLR 858

January 1997, a date clearly outside the 21 days period prescribed by statute.

While the petitioner contended that although the payment bears a date outside the statutory period the payment was in fact made on 9 January 1997, the first respondent who had taken the preliminary legal point earlier on contended that the payment was made on 24 January 1997. After the learned trial judge had considered evidence and affidavits tendered by both sides, he dismissed the election petition filed by the appellant on the ground that it was a nullity, as he held that the non-payment of the requisite security deposit within the 21 days period laid down by law was fatal to the petition.

It is from the said decision of the trial court that the appeal has been lodged in this court on the following grounds:

“(1) The ruling is against the weight of the evidence.

(2) The learned judge of the High Court erred in holding that the deposit of ¢20,000 paid by the appellant for his election petition filed on 9 January 1997 was not paid on the said 9 January 1997 but must have been paid on the 24 January 1997 when the official receipt for the payment was issued.

(3) The learned trial judge erred in disbelieving the evidence of Miss Juliana Dadzie on the grounds of alleged conflicts and inconsistencies between the evidence in the witness box and the statements made by her in her affidavit.”

On 9 February 1998, an additional ground of appeal, which was numbered ground (4), was filed on behalf of the appellant. It reads:

“In raising the issue of the non-payment of a deposit by way of security for costs within the statutory period by the appellant suo motu the learned trial judge descended into the arena of conflict and consequently disabled himself from giving an impartial consideration to the case before him.”

I will start my examination of the matters raised in this appeal by dealing first with the additional ground of appeal which has been numbered ground (4). The record reveals that the motion to set aside the petition and service thereof proceeded on 13 March 1997 and the matter was adjourned to 20 March 1997. At this time

[p.864] of [1997-1998] 2 GLR 858 the judge raised the question of the payment by the appellant of the statutory deposit on 24 January 1997 in the light of section 18 (2) of PNDCL 284. The question here is: was the learned trial judge justified at that stage of the proceedings to raise the issue of non-payment of a deposit by way of security for cost within the statutory period limited for payment? The answer I think must be in the affirmative. A look at section 18 (2) of PNDCL 284 shows clearly that the presentation of an election petition and payment of a deposit of ¢20,000 as security for cost within 21 days are mandatory. The courts have no discretion to extend the period. Section 18 (3) of the Law states that “the time limit provided by this section shall not be extended.” Now, since it is the duty of any trial judge to uphold the law, he was right when he proceeded to determine the question of the payment of the deposit. This is because the question of the payment of the deposit was very crucial and fundamental in that if the judge were to go on with the case and it later came out that the deposit had not been paid, the whole action would be incompetent. It is my view that the raising of the matter suo motu without reference to the parties did not prejudice the case for the appellant in any way. In Anyinam III v Kodia IV [1962] 2 GLR 1 at 10, Adumua-Bossman J (as he then was), in dealing with the irntherent jurisdiction of the court to do justice in all matters, said: “The question raised, which is one in limine could have been raised by counsel for the defendant under Order 25, rules 1 and 2, but was not raised. Nevertheless, it cannot be doubted that it is competent for the court to raise such a point as goes to the very root of the action.”

It is significant to note that there is no dispute here that when payments are made in court they are covered by official receipts provided for that purpose. It is also not disputed that the security deposit in this case bears an official receipt dated 24 January 1997. There is also on record that on 26 March 1997 an official search conducted by the first respondent discklosed, as appearing in the report, exhibit A, the following information:

“(a) That the deposit of ¢20,000 was paid on 24 January 1997, that the number of the receipt which was issued on 24 January 1997 is AZ No ¢0639632.

(b) The payment of the deposit ‘.as entered in the deposit register on 24 January 1997.

[p.865] of [1997-1998] 2 GLR 858

(c) That the receipt No ¢0639632 was signed by Mr Senyo Amedahe.

(d) That there was no correspondence between solicitor for the petitioner and the registry of the court with regard to the deposit for costs.”

The official receipt mentioned above and the search report, are all official acts which according to section 37 (1) of the Evidence Decree, 1975 (NRCD 323) raise the presumption that they have been regularly performed. A close examination of the record of proceedings reveals that what was disputed was whether the payment of the deposit though bearing the date of 24 January 1997 was made on 9 January 1997 which was the last date on whickh it could validly have been paid to constitute the petition herein into a competent action.

I must remark that since the petitioner and the respondents are making conflicting claims, the credibility of the witness called in the matter is crucial for the arriyval of a decision one way or the other. To prove the payment of the deposit, the petitioner tendered an affidavit sworn to by Ben Annan, Esq, the solicitor who prepared the petition; William Brown, court clerk of Ben Annan who actually filed the petition in court and the affidavit and evidence of Miss Juliana Dadzie, the counter clerk, who is said to have received the deposit. In h{is affidavit, the deponent, Ben Annan, stated that William Brown did not bring him a receipt because the counter clerk, Juliana Dadzie, claimed that she did not know the heading under which to put the deposit paid. He added that he thereafter asked Mr Brown to pursue the issue of receipt till he finally brought a receipt for a different date. In his affidavit, William Brown claimed that when he was not given a receipt he continued to pursue the receipt till Juliana Dadzie finally gave him a receipt. The affidavits of Ben Annan and William Brown are suggesting that they consistently pursued Juliana Dadzie until she gave them an official receipt. In her affidavit however, Juliana Dadzie never stated that William Brown persistently came to the registry to demand a receipt from her. She rather averred that William Brown came to her on 24 January 1997 and demanded a receipt for the deposit paid. Her reason for not giving a receipt on 9 January 1997 was because the receipt book had been used up.

On 26 March 1997, Juliana Dadzie, the first plaintiff witness, filed an affidavit with her reasons for not issuing the petitioner

[p.866] of [1997-1998] 2 GLR 858 with an official receipt for the security deposit which according to her was paid on 9 January 1997. In paragraphs (2)–H(8) of the said affidavit she said:

“(2) On 9 January 1997, a gentleman from the chambers of Kimberly Chambers and Consultancy whom I later got to know as Mr Brown came to file a petition on behalf of Mr George Isaac Amoo.

(3) That at the time of the filing of this petition, the official receipt book had been used up and there was none immediately available.

(4) That I received the petition stamped and signed the court’s copy of the petition indicating that the deposit of ¢20,000 had been paid.

(5) That as required by me, I entered the suit number and the pay,m1ent of the ¢20,000 deposit in the numbering receipt record book of the registry, the relevant page (page 1) of which I have annexed hereto as exhibit A.

(6) That upon demand I later issued the said Mr Brown with a temporary receipt which I signed and asked him to come back later for an official receipt.

(7) That later, the said Mr Brown came for an official receipt which was issued on 24 January 1997 and dated the same day.

(8) That the official receipt was not dated 9 January 1997 because the previous leaves of that receipt book were issued out and it would create accounting problems as well as suspicion if it was backdated that particular receipt 9 January 1997.”

(The emphasis is mine.) It is patently clear from the above deposition of Juliana Dadzie that the only reason for which the payment did not have an official receipt issued was that: “The official receipt book had been used up and that there was none immediately available.” This averment obviously conflicts with the affidavit sworn to by Ben Annan who said that William Brown, his court clerk, did not bring him a receipt because the counter clerk, Juliana Dadzie, claimed that she did not know the heading under which to put the deposit paid. When asked questions, Juliana Dadaie gave the following evidence on oath:

“Q Did you issue a receipt for the ¢20,000?

[p.867] of [1997-1998] 2 GLR 858

A No.

Q Can you explain?

A As a matter of fact it was the first time I had received security deposit in my cage concerning National Electoral Commission (NEC) and others so I did not know where or what receipt book it should be entered in. Because we have only one deposit receipt book in the three cages for deposit, i.e. the three cages have only one deposit receipt book. At that time the officer in charge of that book was not available and that is why I made the indication in the numbering book and on the petition that is if some day I am not available and it is sought to find out what happened the one could just take the book and verify.”

It is patent that in conflict with what she said in her affidavit, Juliana Dadzie in her evidence gave as her reason for not issuing an official receipt the fact that the official in charge of the receipt book was not available and also she was new to the receipt for security payments, it being her very first time and as such she did not know where and in what book to make the entry.

These conflicts in the evidence of Juliana and her affidavit, convinces me that she was not truthful to the court. Regarding her credibility, the learned trial judge had this to say: “In my view the conflict between the affidavit evidence and her oral evidence on this point destroys any credit which one might wish to place on her testimony.” In R v Golder [1960] 1 WLR 1169, CA, it was said that a witness who is shown to have made a previous statement inconsistent with his evidence at the trial should disregarded as unreliable. In R v Birch [1924] 93 LJKB 385, CCA, Avory J thought the witness in a such a case was a liar. In R v White (1922) 17 Cr App R 160, CCA, Hewart LCJ considered that such a witness cannot be trusted.

As already said, Juliana Dadzie, witness for the appellant, changed her story from the fact that she did not know of the existence of a deposit receipt book to the fact that the person who kept the receipt book, one Douglas Aziakonu, was not present that day and as a result of his absence she could not issue a receipt covering the ¢20,000 deposit. She also gave the following evidence:

“Q Did you see him before this money was paid to you or afterwards?

[p.868] of [1997-1998] 2 GLR 858 looking A I saw him but when the money was paid and I was looking for him, he was not present.

Q Who is this officer?

A Douglas.”

The first defence witness, Mr Douglas Aziakonu, the officer in charge of the deposit book mentioned by the first plaintiff witness, was called as witness. He also swore to an affidavit on 15 April 1997. Paragraphs (3)–(9) of the said affidavit read:

“(3) That I was the circuit court registrar in charge of the counter at the High Court, Accra.

(4) That was in charge of the deposits receipt book and deposits register in which all deposits were entered.

(5) That the deposits receipt book bearing the following numbers: AZ ¢063960–AZ ¢0639700 from 9

January to 28 February 1997 was in my charge and that of my assistant, Senyo Amedaho.

(6) That the following receipts were issued by me on 9 January 1997:

(i) Receipt No AZ 0639601, dated 9 January 1997, for ¢50,000 in the case of Mache Agency Ltd v GPC.

(ii) Receipt No AZ ¢063902, dated 9 January 1997, for ¢50,000 to Amarteiflio & Co.

(7) That I was in the office in the cage all day on 9 of January 1997 and that I did not go anywhere that day and that even if should go out the receipt book would be available with my assistant, Senyo Amedaho.

(8) That the deposits receipt book is used for all deposits including deposits made with election petitions.

(9) That indeed and in fact no deposits were paid to me in respect of Isaac Amoo on 9 January 1997. That the deposits receipt book was available on 9 January 1997.”

Mr Douglas Aziakonu swore a further supplementary affidavit on the 23 April 1997, paragraph (10) of the said affidavit states:

“(10) That I attach photocopies of receipts issued on 24 January 1997 and marked as exhibits E, E1l, E2 as follows:

[p.869] of [1997-1998] 2 GLR 858

(i) Receipt No AZ ¢0639630 dated 24 January for ¢20,000 issued to Ben Annan Esq, in respect of Cecilia Eguakum marked as exhibit E.

(ii) Receipt No AZ ¢0639631 dated 24 January 1997 to Ben Annan for ¢20,000 in respect of Nkrumah as exhibit EI.

(iii) Receipt No AZ 0¢639632 dated 24 January 1997 to Ben Amoo marked as exhibit E2.”

In the above depositions Mr Douglas Aziakonu is denying the allegation that he left his cage on 9 January 1997. He stated that on 9 January 1997, he had the deposit receipt book and he issued the receipts for deposits paid by some parties in court. He added that even if he left, his assistant Senyo Amedaho was always around with the deposits receipt book. It is also evident from his supplementary affidavit that he issued the receipt to Ben Annan who filed the petition on behalf of the petitioner herein which shows clearly that the receipt was issued on 24 January 1997. The sum total of his evidence was that Juliana Dadzie told the court a lie when she stated that as a result of the absence of Douglas Aziakonu the officer in charge she could not issue a receipt for the petition filed in the suit.

As already indicated, Douglas Aziakonu also gave oral eviden ce and was cross-examined. It is discernible from the record of proceedings that the learned trial judge found his evidence credible and preferred it to that of Juliana Dadzie. It is my view that the learned trial judge was right in disbelieving the evidence of Juliana Dadzie as a result of the obvious contradictions in her evidence. In one breath, Juliana Dadzie claimed that the reason why she did not issue a receipt was because she did not know under what heading to place the deposit. In another breath she claimed that she could have issued a receipt but the deposit receipt book had been used up. In yet another breath she claimed that she knew the heading to place the deposit but could not issue a receipt because the officer who was in charge of the deposit receipt book was not around. As already shown, this was subsequently denied by the officer, Douglas Aziakonu, in his affidavits as well as in his oral evidence.

In his ruling, the learned trial judge made the following finding:

“In my view, the first plaintiff witness Juliana Dadzie did not testify in a frank manner; and her testimony aside, I am

[p.870] of [1997-1998] 2 GLR 858 unimpressed by her version and in the circumstances, I have no hesitation in rejecting her evidence of what transpired on 9 January 1997.”

He went on:

“In coming to this view of the facts, I have not disregarded the evidence of the first defence witness, Douglas Azikonu who though he was cross-examined extensively was unshaken. I accept the evidence by first defence witness, that the deposit receipt book was exhausted on 8 January 1997 and not 9 January 1997.”

After evaluating the oral evidence adduced and the affidavits tendered by the parties, the learned trial judge finally declared:

“The result is that the petition which issued on 9 January 1997 seeking to question the result declared in the Ayawaso West- Wuogon Constituency is a nullity, the non-payment of the requisite security deposit within the period laid down, i.e. 21 days being fatal to the action.”

Now the law is settled that an appellate court should not reverse the findings of facts made by a trial court unless those findings are not supported by the evidence and that it is not for the appellate court to substitute its opinion on facts for the opinion of the trial court. Again where the evaluation of witnesses depends on the credibility of witnesses, it is normally the trial court which saw and heard the witnesses who should decide which witness should and which should not be believed: see Abono v Sunkwa [1962] GLR 154, SC.

In this case, it is my judgment that the findings made by the learned trial judge are supported by the evidence on record and this court should not disturb them since it was the trial judge who had advantage of seeing, hearing and observing the witnesses and therefore was in a far better position to weigh the evidence than this court. I accept his conclusion that the deposit was not paid within the statutory period. The appeal is dismissed.

Sapong JA. I agree.

Benin JA. The facts of this case have been sufficiently and ably set out in the judgment of my brother Essilfie-Bondzie JA so I need not recount them. I also agree that this appeal be dismiss-

[p.871] of [1997-1998] 2 GLR 858 ed but I only wish to express a few words to elucidate my decision.

The main point in this whole matter is whether the deposit of ¢20,000 which is required to be made in order to validate an election petition before the court was made within the twenty-one days allowed by the relevant enactment, namely section 18 (2) of the Representation of the People Law, 1992, (PNDCL 284). It was largely a question of fact for the trial court. From the record, the point was raised by the trial judge himself suo motu. It is not in doubt that the petition was filed on 9 January 1997, being the last day legally allowed for the filing of any election petition in respect of the 1996 general elections. And by law too the deposit was required to be made on or before 9 January 1997. But the receipt for the deposit bears a date later in time to the date of filing of the petition, namely 24 January 1997. To my mind, a receipt provides conclusive presumption as to the date of issue, but it only provides prima facie evidence or, if I may put it this way, rebuttable presumption as to the date of payment. Evidence may therefore be taken to determine the actual date of payment to be different from that which the receipt bears on its face. The trial judge was thus right in calling evidence in order to determine this question.

But before then, a very important point was raised by the appellant by way of an additional ground of appeal questioning the legality or otherwise of the very exercise embarked upon by the trial judge suo motu. This ground of appeal reads:

“In raising the issue of the non-payment of a deposit by way of security for costs within the statutory period by thce appellant by the learned trial judge suo motu the learned tnria]l judge descended into the arena of conflict and consequentlyi) disabled himself from giving an impartial consideration to the case before him.”

In the ensuing arguments, whilst counsel for the respondents was stressing the court’s ability to call a witness suo motu undeir section 68 of the Evidence Decree, 1975 (NRCD 323), counsel foir the appellant believed that by that act the judge had become a party to the suit.

Section 68 (1) of NRCD 323 provides that the court may, on its own motion or at the request of a party, call or recall witnesses. Iit goes on to say in section 68 (2) of NRCD 323 that all parties may crossexamine witnesses called by the court. These provisions

[p.872] of [1997-1998] 2 GLR 858 ensure that all the necessary points on which the court needed to be satisfied have come in, especially where the court is not so clear about a point, where some doubt is raised, where due to fear or duress or other form of undue pressure a witness is unable to appear on his own. These are by no means exhaustive reasons entitling a court to call or recall a witness suo motu. Indeed the Commentary on the Evidence Decree at p 48 decries the practice whereby judges do not take advantage of this rule to call witnesses. It states at page 48 that: “Failure to get the full facts impedes fair administration of justice.” This is not to suggest that the judge can always look for evidence even where the party cannot provide one in support of his own case. Hence the caveat of page 49 that “in both calling and questioning witnesses the court must be careful to avoid becoming so involved in the dispute as to destroy its appearance of impartiality.”

Thus, in my view, where the court finds it necessary to clear a doubt or confirm a matter following the presentation by the parties, or where the court’s own jurisdiction may only be invoked by the performance of certain conditions, or where there is a common and material witness to both parties, but is apprehensive for some reason to testify and the court is in a position to get that witness, in all these instances and others not set out here, the court is entitled by section 68 of the Evidence Decree to call a witness or witnesses, or in short to call evidence.

It is to be noted that the High Court’s jurisdiction is not acquired by acquiescence, it must be specifically or impliedly (where necessary) conferred by legislation. Thus even if the respondent did not raise this question of the ¢20,000 deposit, being a factor which enables the court to assume jurisdiction in an election petition, the court on its own must find out whether this condition precedent to the validity of the petition itself and thereby enabling the court power to hear same has been satisfied. For it would be an exercise in futility if at the end of the day, even in the Supreme Court, it was found that this condition precedent to jurisdiction was not fulfilled. The trial court was thus perfectly justified in finding out on its own motion whether or not this deposit was paid within the time allowed by law in the light of the receipt which bore evidence, albeit prima facie, that it was paid out of time. Accordingly I dismiss the additional ground of appeal.

I will proceed to ground 3 which provides that:

[p.873] of [1997-1998] 2 GLR 858

“(3) The learned trial judge erred in disbelieving the evidence of Miss Juliana Dadzie on the grounds of alleged con- flicts and inconsistencies between her evidence in the witness box and the statements made by her in her affidavit.”

The said Juliana Dadzie is an officer of the Judicial Service. She it was who received the petition on 9 January 1997. She said the deposit was also given to her that day. It is the issuance of the receipt and the entry of the deposit in the deposit book both on 24 January 1997 instead of 9 January 1997 which has given rise to these proceedings. The trial court considered the totality of her evidence which consisted of an affidavit and oral testimony and cross-examination and came to the conclusion that she was not a witness of credit. Among the reasons given were inconsistencies between the prior affidavit evidence and the oral testimony. Where there is a prior statement of a witness which conflicts with his oral evidence on oath on a material point which is not satisfactorily explained the court is duty bound to take this into account in assessing the witness’s credibility: see Ahiabley v Dogah [1984-86] 2 GLR 537, CA. In the case of Asia v Ayeduvor [1987-88] 1 GLR 175, CA, this court presided over by Abban, Osei-Hwere and Wuaku, JJA (as they then were) held that a prior inconsistent statement, if not satisfactorily explained as to the circumstance under which it was made, e.g. under duress or a mistake, would go to impeach credit in the particular fact. In R v Harris (1927) 20 Cr App R 144 at 147, CCA, Lord Hewart LCJ made the point that if a person:

“has formerly said or written contrary of that which he has now sworn (unless the reason of his having done so is satisfactorily accounted for), his evidence should not have much weight . . . and if he has formerly sworn the contrary, the fact . . . is almost conclusive against his credibility . . .”

His lordships’ decision in the Asia v Avedunor case (supra) was based largely on the American case of Commonwealth v Stark weather (1852)10 Cush 60 where Shaw CJ said that the principle of prior self-contradiction is “founded on the obvious considera tion that both accounts cannot be true, and tends to prove a wanit of moral honesty and regard to truth; and so, the witness is less worthy of belief.”

[p.874] of [1997-1998] 2 GLR 858

In the instant case one expected Miss Juliana Dadzie to present a very consistent account as to why she did not give a receipt for the deposit on 9 January 1997 which is the normal practice in the court system, and also why she did not enter the deposit in the appropriate book. The fact that she gave different accounts in a sworn affidavit and later on oath entitled the court to consider them in assessing her credit. As decided by this court in Atadi v Ladzekpo [1981] 1 GLR 218, CA (holding 2), there is no well-defined guideline on the issue of credibility of witnesses. The whole matter was to be left to the judicial discretion of the trial judge who had the advantage of seeing the witnesses and hearing them. And section 80 of NRCD 323 provides important factors to consider in determining the credibility of a witness. And if after taking relevant factors into account the trial court concludes the witness is not worthy of credit, an appellate court cannot disturb that conclusion unless, as held by Ollennu J (as he then was) in Boohene v Ofei [1960] GLR 101 at 104, there are very good reasons which must appear in the judgment for them “to say they believe a witness whom the trial court disbelieved, and disbelieve a witness whom the trial court believed.”

I think I have made the point quite clear that if facts existed and were weighed by the trial court before deciding on the credibility of the witness, an appellate court would hardly be in a position to reverse this conclusion. But if the trial court’s conclusion was based on inferences drawn from the accepted facts then an appellate court is also in a good position to reach a different conclusion based on its own perception and evaluation of the facts. Thus it was held in Dominion Trust Co v New York Life Insurance Co [1919] AC 254 that in considering what weight to be attached by an appellate court to a finding of fact, a distinction should be drawn between cases in which the issue depends upon the veracity of the witnesses, and those in which it depends upon the proper inferences to be drawn from truthful evidence. In the latter class of cases the original tribunal is in no better position than the judges of the appellate court.

The position then is that whereas the appellate court is entitled to draw its own conclusion from the accepted facts, yet it ought to give due weight and consideration to the trial court’s opinion on the facts especially in matters of the witnesses’ credibility: see the dicta of Lord Cave C in Mersey Docks and Harbour Board v Procter [1923]1 A C 253. The English Court of Appeal made this [p.875] of [1997-1998] 2 GLR 858 point very clear in the case of The Glannibanta (1876) 1 PD 283 at 287, per Baggallay JA where he said that:

“. . . great weight that is due to the decision of a judge of first instance whenever, in a conflict of testimony, the demeanour and manner of the witnesses who have been seen and heard by him are . . . material elements in the consideration of the truthfulness of their statements. But the parties to the cause are nevertheless entitled, as well on questions of fact as on questions of law, to demand the decision of the Court. of Appeal, and the Court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses, and should make due allowance in this respect.”

See also Bigsby v Dickinson [1876]1 14 Ch D 24, per James ULJ on this same point which I believe is an accurate representation of the law. As I have said earlier, one expected Miss Juliana Dadzie to be forthcoming with a very consistent story as to whether she did receive the deposit on 9 January 1997; if she did, why she did not issue a receipt that day but as late as 24 January 1997; why no entry thereof was made in the deposit book one of which, there is evidence, was available that day, and other related matters. To me she had portrayed herself as a doubtful witness and the court was thus entitled to reject her story that she received the deposit on 9 January 1997. In this respect the fact that another judge would have accepted her story as reasonable with all the inconsistencies therein is not a good factor for an appellate court to reject the trial court’s conclusion. I will therefore dismiss ground 3.

Grounds (1) and (2) both flow directly from the conclusion reached by the trial judge. Where a witness has been found to be unworthy of credit it means what he has told the court cannot be relied upon. There was the need for some other evidence. In effect the court is saying that since the entry was made in the deposit book and the receipt was issued both on 24 January 1997 and the key witness was not worthy of credit, her story that she made a notation in exhibit A and gave a temporary receipt on a piece of paper both on 9 January 1997 could not be believed. It is not a question of ignoring any evidence or not placing much weight on the evidence. The best evidence, namely an official receipt or a record of the deposit in the deposit book were both against the

[p.876] of [1997-1998] 2 GLR 858 appellant, especially in view of the fact that his testimony that the officer in charge of the deposit book was unavailable that day has been found to be totally false. The judgment cannot thus be faulted, so I uphold it.

Appeal dismissed

SA