HIGH COURT, KUMASI
DATE: 25 JULY 1967
BEFORE: ANNAN J.
CASES REFERRED TO
(1) Beaumont Peerage (1840) 6 C1. & F. 868; 7 E.R. 924, H.L.
(2) The Forest Lake [1968] P. 270; [1967] 2 W.L.R. 11; sub nom. Janet Quinn (Owners) v. Forest Lake
(Owners); The Forest Lake, 110 S.J. 811; [1966] 3 All E.R. 833; [1966] 2 Lloyds, Rep, 421.
(3) Re British Reinforced Concrete Engineering Co., Ltd.’s Application (1929) 45 T.L.R. 186.
(4) Coleshill v. Manchester Corporation [1928] 1 K.B. 776; 97 L.J.K.B. 229; 138 L.T. 537; 92 J.P. 37; 44 T.L.R. 258; 26 L.G.R. 124, C.A.
NATURE OF PROCEEDINGS
APPLICATION by consent of both parties that evidence heard in a case by a judge prior to his retirement be adopted in a subsequent trial de novo. The facts are sufficiently set out in the ruling.
COUNSEL
S. A. Gyimah for the plaintiff.
K. Asumadu-Sakyi for the first defendant.
E. K. Wiredu for the second defendant.
JUDGMENT OF ANNAN J.
This is an application made by the solicitors for both parties for and on behalf of the parties praying this court “to adopt former proceedings before Mr. Justice Boison.”The action was originally tried by Boison J. and he heard evidence from both parties. He, however, ceased to be a judge before he could
[p.549] of [1967] GLR 548
deliver judgment with the result that the action is now before me for hearing. Clearly the case has to be tried de novo before me. The question however is whether evidence should be heard de novo or whether by consent of all parties, I can adopt the evidence in the former suit as evidence before me at the re-trial without hearing the witnesses afresh. Undoubtedly it would be the most convenient course to accede to the application and there is no doubt that the parties themselves wish me to authorise this course. I have however to be satisfied that this course is open to me.
The usual practice in circumstances of this sort is to hear evidence afresh and I am not personally aware of any local action which had been heard to the same extent as the proceedings before Boison J. in which evidence in the former trial had been adopted in the trial de novo. I have myself tried cases de novo in accordance with the usual practice time and again. The question however is whether practice apart, therenis power in this court to grant an application of this nature.
The action itself is a consolidated action and the claims are for a declaration of title, damages for trespass and perpetual injunction in respect of what appears to be the same area of land. All the parties to both actions appear, on the face of the pleadings, to have obtained grants from the Nkawie stool in or around the same locality and the main issue for determination is the issue whether or not the grant made by the Nkawie stool to each defendant covers the area claimed by the plaintiff, that is, the issue is to determine the extent of the grant made in each case and if any grant is found to overlap another, then the issue of who has a better title to that portion. The general proposition of law relevant to this application is stated in Phipson on Evidence (11th ed.), at p. 699, para. 1604 as follows: “In new trials, the case must be re-proved de novo, and the evidence and verdict given, and the judge’s finding at the first trial, are inadmissible.” There are however judicial decisions which show that there are exceptions to this general principle. Thus in peerage cases it has been held that evidence given before previous committees may be taken as read and reprinted together with the fresh evidence and proceedings before an existing committee: see the Beaumont Peerage (1840) 6 C1. & F. 868. Again in The Forest Lake [1966] 3 All E.R. 833, Karminski J. in the Probate, Divorce and Admiralty Division of the English High Court considered the question and was of the opinion at p. 836 that, “the right course to take here is to do what both counsel have asked me to do and to accept as evidence the evidence given on oath before Hewson J., in this case.” He was also of the opinion
[p.550] of [1967] GLR 548
at p. 834 that, “The matter, so far as I am concerned, would have been quite without difficulty as a matter of principle, but for the observations of Scrutton, L.J., in Coleshill v. Manchester Corpn. ([1928] 1 K.B. 776).” He then proceeded to distinguish that case which was a jury case and went on to rely on the case of Re British Reinforced Concrete Engineering Co., Ltd.’s Application (1929) 45 T.L.R. 186 where MacKinnon J. had this to say at p. 187: “The commissioners thought the course suggested by the parties should be adopted. The dictum of Scrutton, L.J., was directed to a case heard before a jury, where there was a conflict of evidence. They could see no objection in this case to the procedure proposed by the parties.” Other cases were referred to by Karminski J. (see p. 835) and he then allowed that application.In The Forest Lake (supra) the action had been commenced before one judge and while it was part-heard, the judge retired before the adjourned hearing was resumed and another judge was appointed to try the case de novo. On application on a summons for directions that in the new trial the evidence already given at the part-heard proceedings should be used on the ground not only of the saving of expense but also on the ground of inconvenience to the witnesses already called and the companies who employed them the application was granted. The dictum of Scrutton L.J. which was considered in The Forest Lake at p. 834 was as follows: “I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in court in the course of a trial before a jury and another judge, it not being a case of evidence being taken on commission before an examiner.”
In the opinion of Karminski J. this dictum was obiter and not necessary for the decision of the appeal and in any case not applicable as a general proposition. Upon consideration of the judicial decisions I am inclined to share the view of the matter taken by Karminski J. in The Forest Lake (supra) and I adopt the view. There is, however, a point of difference between that case and this one. In The Forest Lake only some of the witnesses had been heard whereas in this one the total evidence was heard and the case adjourned for judgment. Should this distinction make any difference in principle? I think not. I think there is no ground in principle to make such a distinction and I would apply the principle to this case as well.
[p.551] of [1967] GLR 548
Having regard to the nature of the issues of fact for determination, particularly the fact pleaded by all parties that the Nkawie stool is their common grantor, I think it would be just and convenient to allow the application on the grounds of saving of expense and convenience. I allow the application and make the order sought that the evidence adduced in the former part-heard proceedings before Boison J. be used at this trial as evidence. The proceedings in the former trial should be typed and made available to counsel and the court. The new trial is adjourned to 25 July 1967 for hearing.
DECISION
Application granted.
Order accordingly.
J. D.
