The error of the Court of Appeal becomes even more grave, when the said omnibus ground under which it sought to subsume the said inadmissible grounds of appeal, had been deemed abandoned by the Defendant. The unfortunate position in which the Defendant in this case finds himself, is that, though in the Notice of Appeal filed on behalf of the Defendant, Counsel had canvassed the omnibus ground that the Judgment is against the weight of evidence as ground (e) , Counsel made no submissions on this ground, for reasons which are not obvious from the record. The settled position of the law is that where a ground of appeal is canvassed and no submissions or arguments are made in respect of same , the said ground is deemed to have been abandoned.
However, the failure to state legal grounds of appeal in the Notice of Appeal shall not disable an Appellant from amending the Notice of Appeal with the leave of the Court to enable the Appellant to raise these grounds of appeal. The difficulty that the Appellant might face, in the instant matter is that the rules require the Appellant to indicate “the stage of the proceedings at which it was first raised”. The record of appeal shows that the Appellant never raise any of the legal points in the Notice of Preliminary Objection at the trial. On the other hand, as shown by the pleadings, the Appellant admitted, in his statement of defence, the capacity of the Plaintiff to sue and therefore, he cannot turn around and deny, indirectly, and through an incompetent Notice of Preliminary Objection, that which he had previously admitted.
It is trite law that an appeal is a rehearing and the appellate court must review the evidence to ascertain if the assessment was supported by the evidence adduced. In Tuakwa vs Bosom [2001-2002] SCGLR 61 and Agyeiwaa vs P& T Corporation [2007-2008] SCGLR985 the Supreme Court clarified that it is the duty of the appellate court to analyze the entire record of appeal before arriving at its own decision on whether the lower court was right in its decision.
My Lords, there is no dearth of judicial authority that appeals are, as a general rule, by way of rehearing. It follows that an appellate court, such as this Honourable Court, is enjoined to reconsider and re-evaluate the entirety of the evidence, both oral and documentary, placed before the trial court, together with the applicable law, in order to determine whether the conclusions reached by that court are supported by the evidence and are consistent with the law.
An appeal is, of course, by way of rehearing. This court is therefore entitled, and where the omnibus ground is raised is bound, to examine the entire record, to evaluate the oral and documentary evidence, and to satisfy itself that, the conclusions reached below are, on a preponderance of the probabilities, reasonably and amply supported by the evidence: TUAKWA VS. BOSOM [2001-2002] SCGLR 61 applied.
The law is certain that an appeal is by way of re-hearing the case. By law, the appellate court is enjoined to review the whole evidence led on record and to come to its own conclusion and to make a determination as to whether both on the facts and the law, the findings of the lower court were properly made and were supportable. Put differently, the appellate court is under legal obligation to examine the findings of the lower court or the trial court, and to determine on the evidence led on record, whether those findings are supportable in law.
Considering that an appeal is by way of rehearing, and as such throws an invitation to the appellate court as this Honourable Court to review the record of appeal and form an independent opinion on the available facts and evidence, it is my humble view that it is within the power of this Court to examine the record and reach a conclusion on the merits of the case.
Rehearing has been explained to mean a duty by an appellate court to consider and re-evaluate the whole evidence, the totality of the evidence: oral and documentary, adduced before the trial court vis-à-vis the relevant law applicable, and come to its own conclusion that the conclusion arrived at by the trial court is not only supported by the evidence but also by the applicable law.
By virtue of case law and article 137(3) of the Constitution, therefore, the Court of Appeal has all the powers of the trial High Court from which the instant appeal came to the Court of Appeal with the consequence that, the Court of Appeal is entitled to scrutinise all the evidence led before the High Court and weigh them against the relevant and applicable law in order to determine whether the decision of the trial High Court was correct.
The appeal turns on a question of fact, but we have to bear in mind that it is our duty to rehear the case, and must reconsider the materials before the learned trial judge and the arguments before us. We must then make up our own minds and not hesitate from setting the judgment aside if we come to the conclusion that the judgment is wrong even though the learned judge had the further advantage of hearing and seeing the witnesses and much turned on their relative credibility.
An appeal by a way of hearing means that by law, the appellate court is enjoined to scrutinize the evidence led on record and make its own assessment of the case as though it was the trial court. Where the court below comes to the right conclusion based on the evidence and the law, the appellate court does not disturb its judgment. On the other hand, the judgment of the lower court attracts being upset on appeal where the judgment is unsupportable by the facts and or the evidence.
My lords, considering that the appeal from the ruling of the Court of Appeal, refusing the application to restore the appeal which was dismissed by the Court of Appeal is one circumscribed by Article 131 (2) of the Constitution, the Appellant required special leave of the Supreme Court in order to properly file his Notice of Appeal to the Supreme Court. Thus, the Appellant does not have an automatic right of appeal to the Supreme Court in the instant matter for the simple reason that the matter in respect of which the appeal has been filed (that is the ruling of the Court of Appeal refusing to restore the appeal to the cause list of the Court of Appeal) did not emanate from the High Court in the exercise of the original jurisdiction of the High Court as required by Article 131(1)(a) of the Constitution, 1992. See also section 4(2) of the Courts Act, 1993 (Act 459). The Notice of Appeal filed by the Appellant on the 9th January, 2024 has no indication that the special leave of this Court was obtained as required by Article 131(2) of the Constitution and section 4(2) of the Courts Act. The said Notice of Appeal was therefore, filed in breach of the Constitution and the Courts Act, and it is, therefore, a nullity.
It stands to reason, therefore, that the only avenue open to the Appellant/Applicant herein was to apply for the Special leave of this Court under article 131(2) and section 4(2) of the Courts Act in order to file its appeal to the Supreme Court. The Notice of Appeal filed by the Appellant/Applicant herein on the 29 August 2023, bears no evidence to show that the special leave of this Court was obtained as required by article 131(2) of the Constitution and section 4(2) of the Courts Act. The said Notice of Appeal was therefore, filed in breach of the Constitution and the Courts Act, and it is, therefore, a nullity upon which no application can be founded.
Appeal from a decision of a tax or administrative authority through the High Court
The history of the instant matter shows that, the case did not even start from a court lower than the High Court. It did not start from a court at all. “Court” as defined in article 295(1) of the Constitution “includes a court of competent jurisdiction established by or under the authority of this Constitution and a tribunal”. The instant matter started from the administrative action of the Commissioner General of the Ghana Revenue Authority wherein he assessed tax on the Respondent herein. Hence, the Appellant/Applicant could not, lawfully, file its Notice of Appeal before this Court under article 131(1)(a)(b) of the Constitution and section 4(1)(a)(b) of the Courts Act. See General Legal Council & Another vs. Koduah [2017-2020] 1 SCGLR 1065
Be that as it may, even if we were to treat the Land Court’s decision as within its jurisdiction, an appeal could lie to this Court only under section 4 of the Court of Appeal Ordinance, 1957. Upon the authorities, such as Shippi & anor. v. Adjin (12 W.A.C.A. 472); Dompreh v. Marfo (12 W.A.C.A. 349), the words in the section “where an appeal lies therefrom under any Ordinance” are of the utmost significance in deciding whether an appeal lies to this Court from the decision of a Divisional or Land Court given on appeal from the decision of a Native Court in a civil case. It is well established law that the true construction of section 4 is that if an appeal is to lie to this Court from a decision of a Land Court in its appellate jurisdiction, as in this case, it must lie subject to the provisions of the section. As there is no provision in the Forests Ordinance for appeals to this Court from the decisions of the Land Court given in its appellate jurisdiction, by virtue of section 4 of the Court of Appeal Ordinance no appeal lies in this matter to this Court.
Appeal from an order assessing damages after judgment on liability
The subsequent judgment or order by which he assessed damages, granted reliefs, and awarded costs, is an interlocutory judgment appealable by special leave which however, the defendants erroneously failed to obtain. (See Ababio v. Turkson.35). The court, however, in exercise of its powers under rule 30 of the Supreme Court Rules, 1962,36 whereby it is provided that, “No interlocutory judgment or order from which there has been no appeal shall operate so as to bar or prejudice the Court from giving such decision upon the appeal as may seem just” has had to deal also with the learned judge’s conclusions in that interlocutory judgment.
Special Leave applications provided for under article 131(2) of the 1992 Constitution are, by their nature and description, special. They are neither fettered by rules of practice nor even legislation. This Court in the case of DOLPHYNE (NO.2) v. SPEEDLINE STEVEDDORING CO. LTD [1996-97] SCGLR page 173 @ 174 made that point clear. The Court held that; in exercising its unfettered discretion under article 131(2) of the Constitution, the Supreme Court is not bound by any rules of practice or procedure or any legislation. This Court therefore has the power in appropriate cases, to ignore the provisions of article 131(1) and grant special leave to appeal in respect of appeals from any judgment or decision of the Court of Appeal.
The Court, however, does not exercise this power without any limitation. The Court is guided by laid down principles which govern its decision-making on whether to grant or to refuse such an application. These have been catalogued in the Dolphyne case (supra) and subsequently applied by this Court in several cases including KOTEY v. KOLETEY [2000]; ANSAH v. ATSEM [2001-2002] SCGLR 906 and OSEI v. ANOKYE [2007-2008] SCGLR 463. These are: 1. Where the Court finds that there is a prima facie error on the face of the record; or 2. Where a general principle of law has arisen for the first time; or 3. Where a decision by the Supreme Court on the point sought to be appealed against would be advantageous to the public.
The authorities have made it clear that the discretion of the Court in entertaining such applications under article 131(2) of the Constitution, 1992 and rule 7(4) of C.I. 16 is a perfectly free one, unlimited by any rules of procedure. The only question that confronts the Court for an answer when considering such applications is; whether upon the facts of the particular case or the case in question, the discretion should be exercised in applicant’s favour
This leave is under section 4(5) of the Courts Act, 1993 [Act 459], not subject to any condition of appeal under the rules of court, i.e. [C.I. 16]. It is a special favour which is given to litigants who have good and valid appeals
An application under rule 28 is therefore a fresh application, and the Court of Appeal, in deciding whether or not to grant it, exercises its own discretion in the matter, after assessing the facts and circumstances independently. The court does not sit primarily to review the exercise of a discretion by the court below.
Arguing a ground not mentioned in the notice of appeal
Indeed, the approach of the Respondent in seeking to even argue against those findings of privity of the Appellant to the contract is procedurally misplaced not having filed any variation nor appeal against those findings in accordance with Rule 6(6) of the Supreme Court Rules, 1996 (C.I. 16) which provides that: “The Appellant shall not, without the leave of the Court, argue or be heard in support of any ground of appeal that is not mentioned in the notice of appeal.” In the instant case, the Respondent did not even cross-appeal to be deemed an “Appellant” within the meaning of Rule 6(6). I do acknowledge that, in appropriate circumstances, the court may exercise its discretion under Rule 6(7) to consider grounds not set out in the notice of appeal. However, I do not think that, such a situation presents itself to warrant the exercise of such discretion.
My lords, a combined reading of Rules 11 and 14 of C.I 19 suggests that the Registrar of the trial Court is duty bound, unless agreed upon by the parties, to compile and include in the Record of Appeal all relevant materials that went before the trial Court, and transmit the record to the Registry of the Court of Appeal with all the exhibits, documents, papers and other things that were received by the trial Court.
A study of the rules regulating civil appeals in general shows that they can be broken down into two sets: the first, leading to the filing of the appeal, and the second, regulating the bringing of the appeal thus filed to a hearing. The first set includes rules on time within which to file an appeal, the obtaining of leave, if any, and the forum where the notice of appeal ought to be filed. When, in compliance with the first set of rules, a notice of appeal is filed (such as required by rule 8 (30) of C. I. 16), the appeal is deemed to have been lodged at the appellate court to which the appeal is directed ….. The procedural rules, after the filing of the notice of appeal, come under the second set. And they include the settlement of the records, the fulfillment of the conditions of appeal imposed by the registrar, the filing of the parties’ statement of case, etc ….. Defaults in connection with the rules in the first set are fundamental and go to the root of the appeal and therefore leave the court with no discretion but to dismiss the appeal in limine. They affect the notice of appeal itself, invalidate it and render the appeal void. However, defaults in connection with the second set of rules are not fundamental, since a valid appeal had already been lodged. They affect the prosecution of the appeal and, in this wise, are conveniently described as procedural. Such defaults therefore render the appeal only voidable”
Departure by the appellate court from findings of fact of the trial court
In the circumstances, where further corroborative evidence was required in the light of the denial by Abeebange’s brother,(PW1) and the court was not provided with any good reason for failing to calling such,(it was stated by the Tindana that the representatives of the various Timdonmolgo clans were present) then the burden of proof had not been discharged and it was not proper for the court of appeal to set aside the findings of the trial court which had the opportunity to see the witnesses and evaluate their evidence and substitute it with its own that “We hold the view that by providing the items for the purification, Abeebange represented to the Tindana that he had accepted that the land belongs to the family of the first defendant and that constitutes conclusive evidence of admission by Abeebange within the meaning of section 26 of the Evidence Act 1975….” without strong and cogent reasons.
This court has not been given good reason in law, such as a finding which is inconsistent with important documentary evidence or the wrong application of a legal principle, to warrant an interference with the findings of the trial court.
The Court of Appeal's conclusion stands in clear contradiction to the trial judge's findings. In my view, it was incumbent upon the Court of Appeal, if it intended to depart from those findings, to justify its position on the evidence. In the absence of such justification, its finding of fact is erroneous and must accordingly be reversed.
It is thus well settled that specific findings of fact might properly be said to be wrong because the Tribunal had taken into account matters which were irrelevant in law, or had excluded matters which were relevant in law; or had excluded matters which were crucially necessary for consideration; or had come to a conclusion which no court, instructing itself on the law, would have reached and where the findings were not inferences from specific facts, such findings might properly be set aside
In the process of adjudication, a tribunal of facts or the appellate court could draw mistaken conclusions from indisputable primary facts and may wrongly apprehend the facts on which the foundations of the case will rest. In that situation, as has occurred in the instant case, it will be invidious to suggest that, this final appellate court should not intervene and do what the justice of the dispute requires.
It is true that an appeal is by way of rehearing, and therefore the appellate court is entitled to make up its own mind on the facts and to draw inferences from them to the same extent as the trial court could; but where the decision on the facts depends upon credibility of witnesses, the appeal court ought not to interfere with findings of fact except where they are clearly shown to be wrong, or where those facts are wrong inferences drawn from admitted facts or from the facts found by the trial court. Therefore if in the exercise of its powers, an appeal court feels itself obliged to reverse findings of fact made by the trial court, it is incumbent upon it to show clearly in its judgment where it thinks the trial court went wrong. It goes without saying that if an appeal court sets aside the findings of a trial court without good ground, or upon grounds which do not warrant such interference with the findings made by the trial court, a higher court will set that judgment aside.
It is my view that on the evidence she fell short of her duty to ascertain the primary facts and make specific findings and inferences deducible therefrom on the crucial issue of fact whether there was a gift of the properties in dispute or not. In this regard, this court has the power, repeated ad nauseam, to review the evidence of the primary facts and the inferences and conclusions arising therefrom and draw its own conclusions. In the process, if the lower court’s conclusions are not based on legitimate deductions on the evidence, this court should not shrink from reconsidering the evidence, and though approaching the trial courts conclusions with respect and circumspection must not shirk its duty of rejecting any unwarrantable findings.
The duty of choosing which witness to believe, and which not to believe, is that of a trial-Court, not of an Appeal Court. Where there is evidence which, if believed, supports the finding of fact of a trial-Court, a Court of Appeal is generally reluctant to interfere with that finding, because to do so would mean that the Court of Appeal was substituting itself for the trial-Court. In the present suit we are satisfied that the evidence proving the plaintiff s title and possession of the land is so overwhelming that our conclusions on the facts are not different from those reached by the trial-Judge.
Duty of the appellant to identify the evidence overlooked
The Appellant who complains that a judgment is against the weight of the evidence assumes a corresponding burden: he must identify, with precision, the pieces of evidence that were wrongly applied or wrongly ignored and demonstrate that, properly weighed, they would have yielded a different result: DJIN VS. MUSAH BAAKO [2007-2008] SCGLR 686; OWUSU-DOMENA VS. AMOAH [2015-2016] 1 SCGLR 790.
Under the omnibus ground of appeal that the judgment is against the weight of evidence, an appellant’s duty is to establish that there is some piece of evidence on record which, the court below fails to consider or that the evidence was not properly evaluated and determined in accordance with the law.
An Appellant therefore has an obligation to unambiguously demonstrate by resort to the evidence on record, and to set out the lapses complained about in the findings made by the trial court. These lapses could be wrongful inferences drawn from evidence on record; erroneous applications of principles of law to the facts and evidence on record; findings of the lower court inconsistent with evidence adduced at trial.
it is incumbent upon the Appellant to clearly and succinctly identify before this Court the specific pieces of evidence on record that were either ignored or overlooked by the Court of Appeal, and which, if properly considered, would have led the justices of that court to enter judgment in the Appellant's favour.
When an Appellant complains that a judgment is against the weight of the evidence, he is implying that there were certain pieces of evidence on the record which if applied in his favour, or certain pieces of evidence has been wrongfully applied against him. The onus is on such an Appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.
Duty of the appellate court to re-evaluate the evidence
It is a matter of fact as opposed to law, and it falls squarely within the appellate jurisdiction of the Court of Appeal. It is part of the core duties of an appellate court. Hence, whether that fact was set out as a ground of appeal or not and whether it was specifically argued or not, it was the duty of the Court of Appeal to evaluate the evidence adduced in that regard in order to determine whether or not on the law, the trial judge reached the correct conclusion. The duty of the Court of Appeal to take a second look at the evidence adduced before the trial Court does not arise from the grounds of appeal per se but arises from the duty imposed upon the Court of Appeal by virtue of the fact that that Court is an Appellate Court. It arises from the very constitution of the Court as an appellate court.
an appeal is by way of a rehearing, 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.
Effect of a finding that a ground of appeal is inadmissible
It is my view that where a ground of appeal has been determined to be inadmissible as done by the Court of Appeal, then that ground of appeal becomes incompetent and cannot be revisited for a determination of any sort. The definition of “inadmissible” by Black’s Law Dictionary (8th Ed), as “not allowable or worthy of being admitted”, supports this view. More importantly, had the Court of Appeal been right in seeking to subsume the said defective grounds of appeal under the omnibus ground, it ought to have critically examined each of the said grounds of appeal, to determine, whether all of the heads of errors of law, upon which the Defendant sought to impugn the Judgment of the High Court, are grounds which are legally permissible for determination under the omnibus ground.
