KORKOR AND OTHERS v. DADAH AND ANOTHER [1971] 1 GLR 265

DIVISION: IN THE COURT OF APPEAL

DATE: 22 FEBRUARY 1971

BEFORE: APALOO, LASSEY AND SOWAH JJ.A.

CASES REFERRED TO

(1) Angu v. Attah (1916) P.C. ‘74-’28, 43.

(2) Llanover v. Homfray; Phillips v. Llanover (1881) 19 Ch.D. 224; 30 W.R. 557, C.A.

[p.266] of [1971] 1 GLR 265

NATURE OF PROCEEDINGS

APPEAL from the ruling of the Circuit Court, Sunyani, rejecting the appellant’s application to tender in evidence testimonies of witnesses, since deceased, in earlier proceedings.

COUNSEL

Addai for the appellants.

No appearance by or on behalf of the respondents.

JUDGMENT OF SOWAH J.A.

This is an appeal from the ruling of the Circuit Court, Sunyani, disallowing an application by the plaintiffs seeking to tender the testimonies of two witnesses who gave evidence in the suit at the Tano Local Court, Bechem, and before transfer of the suit to the High Court, Sunyani.

The original writ was issued out of the Tano Local Court; during its pendency, the defendants raised the issue of jurisdiction of the court to entertain it; thereupon, there was caused a transfer of it to the High Court, Sunyani (see paragraph (9) of the statement of claim). Pleadings were ordered in accordance with the rules of court and when the matter came up for hearing, the learned judge of the High Court made the following order:

“Order:

Due to the great number of older cases in the cause list and the number of part-heard cases to be disposed of before the criminal session on 5 June 1968, which session is likely to take the remainder of this legal term which ends on 31 July 1968, it will be more convenient to transfer this case to the circuit court which has jurisdiction now to deal with the case as the value of the land is £G400 (N¢800.00) as pleaded. Case is therefore transferred to Circuit Court, Sunyani, for hearing on 13 June 1968.

(Sgd.) Sampson Baidoo

JUDGE.”

The circuit court became seised of the proceedings thereafter. At the hearing, the applicants applied in proper fashion to tender the evidence of the said witnesses who had given evidence in the said local court and had since died. Learned counsel sought in aid of this application, Order 37, r. 28 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which reads, “All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the cause or matter.” The circuit judge, in dismissing the application, made the following pronouncement:

“This suit was transferred to this court for hearing because the local court which purported to entertain the suit had no jurisdiction to do so. The proceedings before that court were therefore in principle void ab initio. But for the statutory provisions permitting cases in such situations to be transferred by or to the High Court, the suit should have been dismissed. It is therefore not my view that this trial is a continuation of the case as was heard in the local court. This is a trial de novo and any evidence before the local court is not part of the proceedings before this court. In the absence of agreement between [p.267] of [1971] 1 GLR 265 the parties therefore I have to reject the evidence sought to be tendered by the plaintiffs and that piece of evidence is rejected accordingly.”

The learned circuit judge was factually wrong when he held that the transfer of the case was directly from the local court to his court. The transfer was from the High Court, but this mistake is of no particular moment. He, however, purported to rely for his ruling, on two main grounds: first, on the law as stated in the case of Angu v. Attah (1916) P.C. ‘74-’28’ 43 at p. 47:

“[W]hen a witness has sworn to certain matters in one action, the record of what he has so sworn cannot be used in another action as evidence of the facts which he has sworn to. This is so even when the second action is between the same parties as the first and a fortiori where it is not. The use of such evidence in a former action may of course be the subject of agreement between the parties to another action to save expense or the like, . .” and secondly, because,”The proceedings before that court were therefore in principle void ab initio.” If the learned circuit judge had taken more pains in reading the judgment in full and carefully, he would have appreciated the distinction between the case before him and the Angu case (supra) he relied upon. The evidence in that case was rejected at p. 47, because:

“The only evidence before the Full Court besides the oral evidence for the plaintiff which has been referred to was documentary, and consisted of the records of the various actions, to none of which the plaintiff was a party, and the various exhibits put in evidence in these actions.”

Their Lordships proceeded at pp. 47-48:

“So far as appears, the witnesses who gave evidence in the former actions set out in this record are all alive, certainly one is, Cudjoe Attah, the respondent to the present appeal, and it would be the height of absurdity to suppose that his evidence in the former suits could be used as evidence in his favour in this suit, when he might have been but was not called as a witness.”

The essential distinction therefore, was that the evidence sought to be tendered in this action was testimonies of persons who had given evidence in the abortive trial in the Tano Local Court but who were not available by reason of their demise. The cause was the same, and the parties were the same. Indeed, at common law, such evidence is admissible if the following conditions prevail:

“. . . that the proceedings are between the same parties or their privies; . . . that the same issues are involved; . . . that the party against whom, or whose privy, the evidence is tendered had on the former occasion a full opportunity of cross-examination;. . . that the witness is incapable of being called on the said trial.” [p.268] of [1971] 1 GLR 265 see Phipson on Evidence (10th ed.), p. 541, para. 1423; see also Llanover v. Homfray; Phillips v. Llanover (1881) 19 Ch.D. 224 at 229, C.A. The learned circuit judge did not dispute the competency of the transfer but made observations implying that the proceedings before the local court were void ab initio. There is no authority for this proposition. I think the effect of the transfer was to abate the proceedings in the local court for the case to be tried anew by whichever court became properly seised of it and in this case it was the Circuit Court, Sunyani.

As stated earlier, counsel also summoned to his aid, Order 37, r. 28. At first reading of the rule, it would appear that it is wide enough to cover the common law principle. Fortunately, the origin of this rule is traceable. It was copied from the English Rules of the Supreme Court, Order 37, r. 25, which itself had its origin in the Chancery Regulations, 5 February 1861, Rule 15. The rule is discussed in Daniell’s Chancery Practice (8th ed.) in chapter 16 at p. 835 where he deals with “General Course of Proceedings at Chambers—

The evidence made use of in chambers on an inquiry directed at the hearing or trial of any cause or matter is taken as nearly as may be in the same manner as evidence taken at or with a view to a trial; but evidence at chambers, whether before or after trial, is ordinarily given by affidavit. All affidavits which have been previously made and read in Court, upon any proceeding in a cause or matter; may be used in chambers; and all evidence taken at the hearing of any action may be used in any subsequent proceedings in the same action.”

It does appear from the passage that Order 37, r, 28 would relate to evidence adduced in proceedings of a continuing nature, the word proceedings in the context, would be restricted to proceedings within the same action. Thus, the evidence adduced in court, if the matter were subsequently referred to chambers or possibly, to a referee, may be used without further calling upon the witnesses to go over his evidence. In this case, however, on transfer of the suit to the circuit court, the trial had to be held de novo and all evidence taken afresh except in circumstances provided for by law and one of them being where death had ensued since the witness gave evidence in the former trial. The witness gave evidence in the Tano Local Court on oath; they were cross-examined by the respondents, and had since died. Quite clearly, under common law, the evidence given by them in the local court was admissible and ought to have been accepted by the circuit court.

For the reasons earlier given, I would allow the appeal and order that the testimonies of those witnesses be admitted. The weight to be attached to them would, of course, be a matter for the circuit judge.

JUDGMENT OF APALOO J.A.

I am also of opinion that the sworn testimonies of the two witnesses ought to have been admitted, at least on the ground that such evidence is admissible under the common law. In the court below, the appellants’ right to put in the evidence of these two witnesses was asserted on two limbs, first, that it was admissible under the common law rules of

[p.269] of [1971] 1 GLR 265 evidence, and secondly, by the express provision of Order 37, r. 28 of the Supreme [High] Court (Civil Procedure) Rules, 1954, (L.N. 140A).

The learned circuit judge denied the appellants’ right under either of these grounds. On the common law ground, the learned judge founded himself on the decision of the Privy Council in Angu v. Attah (supra). He did not specifically deal with the common law position as expounded in Phipson on Evidence. With regard to Order 37, r. 28 of the Supreme [High] Court (Civil Procedure) Rules, the learned judge said, “It is therefore not my view that this trial is a continuation of the case as was heard in the local court.” He was, therefore, of opinion that the evidence could only be admitted if both parties agreed. And as there was absence of agreement, the evidence was shut out.

Mr. Addai for the appellants, contends that that ruling was wrong and that the evidence was admissible both under the common law and under the express provision of Order 37, r. 28. I agree about the common law position but I am gravely doubtful of its admissibility under Order 37, r. 28. To determine why I am of this view, it is necessary to relate the nature of the evidence whose rejection is the subject-matter of this complaint.

The appellants instituted a land suit against the respondents in the Local Court, Tano. The land in dispute was described as “Akufa” and was said to be situated on Bechem stool land.

Apparently, after some witnesses gave evidence, the respondents objected to the further continuation of the case in that court on the ground that the value of the land exceeded the jurisdiction of the local court. The suit was accordingly transferred to the High Court. The latter remitted it to the circuit court for hearing and determination. In the interim, two of the witnesses who gave evidence for the appellants before the local court had died. When trial eventually opened before the circuit court, the recorded evidence of these two witnesses was sought to be tendered in evidence as part of the appellants’ case. It is to this that the respondents objected successfully.

The conditions which must be fulfilled before the testimony of a witness given in previous proceedings can be admitted in evidence, have been fully set out in Phipson on Evidence (10th ed.), p. 541, para. 1423. These have been read by my brother Sowah and I am only content to find out whether all these conditions have been satisfied in this case. Clearly, the parties are the same. In a sense, this is merely the continuation of a case which was part heard. The same can be said of the issues. Both before the local and circuit court, the question for determination was: Which of the parties was the owner of the “Akufa” land? Although there is no evidence of it, I think we ought to assume that the respondents had full opportunity of cross-examining these witnesses in the local court. This is required by regulation 32 of the Local Courts Procedure Regulations 1962 (L.I. 208), and there is nothing to suggest that there has not been compliance with this regulation.

[p.270] of [1971] 1 GLR 265

These witnesses could not be called at the circuit court because, as was not disputed, they are both dead. If, therefore, the quotation in Phipson accurately reflects the position at common law, the testimonies of the two deceased witnesses were admissible. It is not suggested that Phipson’s exposition of the law in this respect is other than accurate. Although the learned circuit judge was referred to Phipson’s Manual on Evidence, he did not consider it but founded his decision on the Privy Council case of Angu v. Attah (supra). Relevant excerpts from the decision of the court in that case have been reproduced in the judgment of my brother Sowah. At least two striking matters which distinguish that case from this, are that, in the Angu case the parties in the former and subsequent suits were not the same and the witnesses, whose testimony in the earlier proceedings was sought to be tendered, were available and could have been called but were, for unexplained reasons, not called. I think Angu v. Attah is distinguishable from the instant case. I therefore concur with my brother Sowah that the recorded evidence of these witnesses was admissible and that in refusing to admit it, the learned circuit judge was in error.

As I said, the learned circuit judge was also pressed with Order 37, r. 28 of the Supreme [High] Court (Civil Procedure) Rules. He was invited and declined to admit the evidence under that rule. Mr. Addai complained that quite apart from any rule of the common law, the appellants were entitled to have the evidence admitted under that rule. That rule is extremely short and says, “All evidence taken at the hearing or trial of any cause or matter may be used in any subsequent proceedings in the same cause or matter.” (The emphasis is mine.) This rule is a verbatim reproduction of Order 37, r. 25 of the Rules of the English Supreme Court which was itself taken from rule 15 of the Chancery Regulations, 1861. I have tried but failed to locate any decided case in which the true scope of this rule was expounded. The wording of that rule is itself delusively simple. But what is the meaning of the “evidence may be used in any subsequent proceedings” etc.? Is it synonymous with saying that the evidence “may be admitted” etc? If the latter is the true meaning, then evidence taken in earlier proceedings in the same cause or matter may be admitted even if the parties are not the same and even if the witnesses whose testimony is sought to be tendered are available and are capable of being called.

If that were so, this would be a very substantial departure from the common law position. I feel grave doubt if this rule, for which Ghanaian legislators can claim no originality, was meant to make substantial modification of the common law rules on this subject. In England, this rule, existed side by side with the common law rules. Both in India and Nigeria the problem posed by one court receiving evidence taken by another judge was solved by specific provisions. Rule 15 (v) of the Indian Code of Civil Procedure provides:

“Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing [p.271] of [1971] 1 GLR 265 rules as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it.” Section 34 (1) of the Nigerian Evidence Ordinance enacts:

“Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable:

Provided:

(a) that the proceeding was between the same parties or their representatives in interest;

(b) that the adverse party in the first proceeding had the right and opportunity to cross examine; and

(c) that the questions in issue were substantially the same in the first as in the second proceeding.” This is substantially a reiteration of the common law position. If the true meaning of the rule is that for which Mr. Addai contends, then there will be considerable divergence between Nigerian and Ghanaian law on this matter. This is not impossible but this strikes me as unlikely. There has never been an Evidence Code in this country. But such rules of evidence as were regulated by legislation are contained in the Courts Ordinance, Cap. 4 (1951 Rev.), (since repealed). In so far as there was any conscious legislative effect to provide for the admission in evidence of testimony taken in earlier proceedings, the only section which attempts it, as far as I am able to discover, is section 103. It provides: “103. In every case, civil or criminal, tried in a Divisional Court, minutes of the proceedings shall be drawn up and shall be signed by the Registrar. These minutes, with the notes of evidence taken at the hearing or trial, shall be preserved as records of the Court. The said minutes and notes of evidence, or a copy thereof purporting to be signed and certified as a true copy by the Registrar, shall at all times, without further proof, be admitted as evidence of such proceedings and of the statements made by the witnesses.”

This section is obviously of limited scope, and has hardly any probative value.

These matters lead me to think that the words “all evidence … may be used in subsequent proceedings” in Order 37, r. 28, have a restricted meaning and mean “may be referred to.” Accordingly, I cannot hold that [p.272] of [1971] 1 GLR 265 the learned circuit judge was wrong when he declined to admit the evidence in question under Order 37, r.

28. But in view of my finding that it was admissible at common law, I concur in the result which my brother Sowah has reached.

JUDGMENT OF LASSEY J.A.

I also agree.

DECISION

Appeal allowed.

N.A.Y.