The implication of these rules is that a plaintiff, after specifying part of the judgment or order complained of, must state what he alleged to have been found by the trial judge, or what error he had made in a point of law. I do not think it meets the requirements of these rules to simply allege misdirection on the part of the Trial Judge. The requirement is that the grounds stated in the notice of appeal must clearly and concisely indicate in what manner the Trial Judge misdirected himself either on the law or on the facts. To state in a notice of appeal that: ‘The Trial Judge misdirected himself and gave an erroneous decision’ without specifying how he misdirected himself is against the rules and renders such a ground of appeal inadmissible.
This court has a duty to ensure that an appeal is not determined on any ground which is contrary to its own ground rules of procedure, especially if the rules are in mandatory terms. We do, therefore, roundly agree with submissions of learned Counsel for the 1st defendant that plaintiffs’ grounds (b) and (c) were not properly fashioned in accordance with the mandatory rules of this court and must be struck out.
In grounds C of the grounds of appeal, the appellants state that the learned justices of the Court of Appeal erred in their decision that respondent’s action is not statute-barred. The same goes for ground D of the appeal wherein the appellant states that the learned justices of the Court of Appeal erred in their finding that the land is Saasabi Stool Land. In both cases, no particulars of the error alleged were set out and the nature of the error committed by the learned justices of the Court of Appeal were not specified making the 2 grounds of appeal inadmissible. Accordingly grounds (c) and (d) of the notice of appeal are hereby struck out as being non-compliant with Rule 6(2) (f) of C. I. 16.
It has been settled by a plethora of cases determined by this Court, that an appeal being a creature of statute, a party who seeks to invoke the jurisdiction of this Court, must comply with conditions set out in the enabling statute. The filing of grounds of appeal which are non - compliant with the rules governing the appeal, may be fatal to an appeal, as the said offending grounds of appeal may be struck out. SEE: SANDEMA – NAB VS. ASANGALISA & ORS [1996- 1997] SCGLR 302; DAHABIEH V. S.A TURQUI & BROTHERS [2001- 2002] SCGLR 498 and INTERNATIONAL ROM LIMITED V. VODAFONE GHANA LIMITED; CIVIL APPEAL NO. J4/2/2016; DATED 6TH JUNE 2016. [11] Rule 6 (4) of the Supreme Court Rules,1996 (C.I6), requires that “the grounds of appeal shall set out concisely and under distinct heads the grounds upon which the appellant intends to rely at the hearing of the appeal, without any argument or narrative and shall be numbered seriatim; and where the ground of appeal is one of law the appellant shall indicate the stage of the proceedings at which it was first raised.” We have examined grounds (b) – (h) of this appeal. The said grounds which are neither concise, nor under distinct heads are also a narrative. Due to the narrative nature of these grounds of appeal, the nature and particulars of the error of law complained of are not easily discernable. These grounds of appeal are clearly not in compliance with Rule 6 (4) of CI16.
Having considered the grounds of appeal, We are satisfied that this appeal can be wholly determined on ground (a) of the appeal and the Plaintiffs will suffer no injustice by a striking out of grounds (b) – (h). We, therefore, exercise our discretion in striking out the said grounds of appeal and same are accordingly struck out.
As a matter of fact, the plaintiff did not provide the details, elements, specifics, or nature of the errors allegedly committed by the Court of Appeal and particulars for the plaintiff’s contention that the Court of Appeal erred when it held that the appellant failed to discharge the burden of persuasion and the evidential burden. We also find as a fact that the plaintiff’s use of the word “when” rendered the same ground 2 argumentative. Accordingly, we find ground 2 as having sinned and in violation of Rules 6 (4) and (5) of CI 16 and we accordingly strike it out for non-compliance with the rules of court.
It is imperative under the rules regulating procedure that, grounds of appeal are not argumentative nor narrative in formulation, but precise and concise. Indeed, while the rules require that, where an error or misdirection is alleged, the necessary particulars must be set out. In setting out the particulars, this must simply be an isolation of the specifics of the error. The rule does not warrant formulations in the nature of new grounds. Neither should the grounds be vague or left in general terms requiring further particularizations.
We are in agreement with the submissions of Counsel for the Respondent that the combined effect of Rules 82 and 67 of C.I.19 is that the Court of Appeal has jurisdiction to hear appeals from the General Legal Council; just like the National House of Chiefs. That, the General Legal Council is a quasi-court/tribunal as per Section 11 of the Courts Act, 1993 (Act 459) is not in dispute. Thus, the Applicant ought to have filed his Notices of Appeal at the Registry of the General Legal Council.
Ground of appeal that does not arise from the decision appealed against
The principle well understood is that a ground of appeal is a complaint against a specific finding of the lower court in the decision complained of. It must therefore relate to, arise or flow from the decision complained of. Consequently, a ground of appeal that is not related to, or does not arise or flow from the decision appealed against is incompetent by reason of it disclosing no reasonable ground of appeal. Such grounds are liable to be struck down.
Inferences drawn by the appellate court from facts found
A judge, sitting without a jury, has two functions to perform: firstly, the perceptive function, which is the establishment of particular facts; and secondly, the function of evaluating the facts which have been found. As Viscount Simonds emphasized in Benmax v. Austin Motor Co., Ltd. [1955] 2 W.L.R. 418 at p. 420, H.L.: “some confusion may have arisen from failure to distinguish between the finding of a specific fact and a finding of fact which is really an inference from facts specifically found, or, as it has sometimes been said, between the perception and evaluation of facts.”
The task of the appellant at the second appellate court is made even more onerous where an appellant is seeking to challenge concurrent findings of two lower courts. The position of the law has been reiterated in several authorities of the Supreme Court that an appellate court should be slow to disturb the concurrent findings of facts by two courts unless the findings are so perverse and unsupported by the evidence on record.
There is, however, a further and more exacting constraint where the findings under attack are concurrent findings of the trial court and the first appellate court. In that situation, this court does not interfere merely because, on a fresh look, it might itself have found differently. It interferes only where it is shown, with clearness, that, the courts below committed some blunder or error that has occasioned a miscarriage of justice: ACHORO VS. AKANFELA [1996-97] SCGLR 209; KOGLEX LTD. (NO.2) VS. FIELD [2000] SCGLR 175. The recognised instances were collected in those cases and the authorities that follow them, and they repay restatement. This court will disturb concurrent findings where: (a) the findings are not supported by the evidence on record; (b) the reasons given in support of them are unsatisfactory; (c) there has been an improper application of a principle of evidence; (d) the court below failed to draw an irresistible inference from proved facts; (e) the findings rest on a wrong proposition of law, which, once corrected, causes the findings to disappear; or (f) the findings are inconsistent with crucial documentary evidence on the record.
In the circumstance, the authorities enjoin this Court to be slow in so interfering unless it is clearly demonstrated by the Appellant that the concurrent findings are perverse or have resulted in some blunder which this Honourable Court, as a second appellate Court, has been called upon to undo.
We have formulated an almost entrenched position that, where concurrent findings and conclusions have been reached by both the High Court and the Court of Appeal, the Supreme Court must be very slow to disturb them unless in exceptional circumstances such as an erroneous application of the law to the evidence or a wrong evaluation of the evidence.
where findings of fact (such as in the instant case) have been made by a trial court and concurred in by the first appellate court, in this case the Court of Appeal, then the second appellate court (such as this Supreme Court) must be slow in coming to different conclusions unless it is satisfied that there are strong pieces of evidence on the record of appeal which make it manifestly clear that the findings of the trial court and the first appellate court are perverse
In an appeal against findings of facts to a second appellate court like the Supreme Court, where the lower appellate court had concurred in the findings of the trial court especially in a dispute, the subject-matter of which was peculiarly within the bosom of the two lower courts or tribunals, this court would not interfere with the concurrent findings of the two lower courts, unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice, apparent in the way in which the lower tribunals had dealt with the facts. It must be established, eg. that the lower courts had clearly erred in the face of crucial documentary evidence, or that a principle of evidence had not been properly applied; that the finding was so based on erroneous proposition of the law that if that proposition be corrected, the finding would disappear. It must be demonstrated that the judgments of the courts below were clearly wrong
We cannot overemphasise the requirement that an Appellant who is challenging the concurrent findings of two lower courts must demonstrate with compelling clarity that the two lower courts, in coming to the objectionable findings and conclusions, committed blunders or errors resulting in a miscarriage of justice. Such errors may be errors of law and/or fact. Where for example it is demonstrated that the two lower courts erred in the face of crucial evidence which error when corrected would result in contrary findings, we will be inclined to set aside such concurrent findings.
The above authorities concur that the nature of lapses on which an appellant seeks to ground his bid to overturn the concurrent judgments of lower Courts must be apparent, clear and obvious errors which result in grave injustice or miscarriage of justice on the Appellant. In such circumstances, the ends of justice warrant an interference by an appellate court to avert an unjust outcome.
Interference with findings based on the credibility of witnesses
It should be pointed out that the learned judge did not find anything wrong with the opinion which the local magistrate formed of the credibility of the appellant and his principal witness on the one hand and of the respondent and her principal witness on the other. That being the case there are no bases for his interfering with findings which were based materially upon the credibility of the witnesses. In the circumstances there is no justification for his reversing the judgment of the trial court, which findings are fully supported by the evidence on the record.
A second appellate court as this Honourable Court in the exercise of its appellate jurisdiction over a first appellate court, ought to be slow to interfere with the exercise of discretion by the first appellate court, save in exceptional circumstances as expressed by the courts. In BALLMOOS v MENSAH [1984-86] 1 GLR 724 at 725, the Court of Appeal stated the position of the law as follows: “An appeal against the exercise of the court’s discretion might succeed on the ground that the discretion was exercised on wrong or inadequate materials if it could be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account; but the appeal was not from the discretion of the court to the discretion of the appellate tribunal.” In SAPPOR v WIGATAP [2007] SCGLR 676, the Supreme Court held that: “An appellate court would only interfere with the exercise of a court’s discretion where the court below applied wrong principles or the conclusions reached would work manifest injustice or that the discretion was exercised on wrong inadequate material. Arbitrary, capricious and uninformed conclusions stand in danger of being reversed on appeal.” See also CRENTSIL v CRENTSIL [1962] 2 GLR 171.
Therefore as we are here dealing with the exercise of discretion by the lower courts, we, as second appellate Court ought not to interfere with the exercise of the discretion unless we are satisfied either that the courts below misdirected themselves on some matter and as the result arrived at a wrong decision or that it is manifest on examining the whole case that the courts below were clearly wrong in the exercise of the discretion which has resulted in an unjust result.
In the event, we hold that the lower Courts exercised the discretion not in accord with law and the decisions have occasioned injustice. We therefore decide to interfere with the exercise of the discretion and set aside the judgment on admission entered by the trial Court on 21st October 2019. We allow the appeal on this ground alone. We do not consider it necessary to touch on the omnibus ground of appeal assuming arguendo that same were legitimate. We remit the case to the trial Court to be determined on the merits.
This Court has been consistent in cautioning appellate courts to be slow in interfering with the exercise of a trial court’s discretionary power. See Adu v GRA (2013–2014) 2 SCGLR 1176, holding 3; Fofie v Zanyo (1992) 2 GLR 475; and Atuguba & Associates v Scipion Capital (UK) Ltd (supra), where the Supreme Court stated that this Court, sitting as an appellate court, will only interfere with the exercise of discretion where it is shown that the discretion was exercised on wrong or insufficient material placed before the court, or where it is demonstrated that the court failed to take into account relevant considerations or took into account irrelevant considerations in reaching its conclusion. The Court may also intervene where the decision of the lower court is founded on a misapprehension of the law, or on findings of fact that certain circumstances existed or did not exist, when the evidence on record clearly shows otherwise.
A Court vested with a discretionary power must exercise same judiciously. The position of the law is that generally an appellate Court must be slow to interfere in the exercise of the discretion of a lower Court, unless it can be established that the Judge exercised the discretion wrongly, by among others misdirecting himself or herself, by relying on wrong and inadequate materials, and in taking into account irrelevant matters or ignoring relevant matters. Where an appellate Court finds that this discretion was wrongly exercised, it has a duty to interfere with same.
Firstly, in our view whether the power of attorney was stamped or not is a factual issue which ought to have been raised and brought up in the trial High Court in order that the Applicant could have reacted to same. We note that, this issue was not raised at the trial High Court and the trite law is that one cannot introduce matters of fact on appeal which if raised in the trial High Court would have afforded opportunity for the opponent to adduce evidence on.
This Court has long settled the principle that an appeal can only be prosecuted within the strict confines of the Record of Appeal, and neither the party nor indeed the Court may, on appeal, seek to introduce a novel and inconsistent claim to the case before the appellate Court. Quite clearly, the conduct of the Plaintiff constitutes an attempt to set up at this second appellate stage, a new case which is wholly inconsistent with his original case which was premised on an assertion of exclusive ownership of the disputed land.
Though this point is new, it is a question of law that does not require additional evidence to be determined so we shall deal with it in fra, especially that the respondent has also made submissions addressing it.
In this case, however, the substantial questions of law raised in grounds (1), (2) and (3) are so involved with other issues of fact, and mixed law and fact that if the points on which leave to appeal may be granted are limited, I apprehend that the Supreme Court would not be able to do full justice to this case. I would therefore grant the application on the grounds of appeal as filed, and I do so order.
The language of rule 17 of the Supreme Court Rules, 1996, CI.16, when examined critically, reveals that a Preliminary Objection is not available to an Appellant. Indeed, by rule 17(1) of CI.16, it is only a Respondent to an appeal who can file a Notice of Preliminary Objection. A preliminary objection is intended to point out and argue a point of law which goes to the root of the Notice of Appeal which has been filed by the Appellant. Such point of law must be of a kind that when sustained renders the whole appeal invalid and, indeed, makes the hearing of the appeal no longer necessary. A preliminary legal objection, when properly raised, must be capable of depriving the Court of jurisdiction to hear the appeal.
In our considered opinion however, the allegation and/or evidence that the Respondent's Counsel did not have a valid licence to practise at the time of the issuance of the Writ of Summons was not properly before the Court of Appeal. Similarly, this evidence and allegation is not properly before this Court and consequently does not form part of the evidence to be considered in the determination of this appeal. This is because, the evidence introduced to support this ground did not form part of the record of proceedings of the trial High Court. In fact, the contention was never raised before the trial Court. Rather, the search results and the copy of the practice certificate were belatedly and without leave of Court, introduced into the appellate proceedings by a mere attachment of same to the Reply filed to the Respondent's Statement of Case. This, obviously constitutes an attempt by the Appellant to introduce fresh evidence on appeal in a manner not permitted by the rules and practice.
The Law is therefore unequivocal and the practise settled on how fresh or new evidence may be introduced for the first time on appeal. It ought to be done by an application that allows the Appellate court to interrogate the circumstances that occasioned the inability of the proponent of such fresh or new evidence to adduce the evidence at the original trial in order to motivate the discretion of the Court as to whether or not the requirements under the relevant rules of Court and the imperatives of the ends of justice have been duly satisfied to justify the introduction of such new or fresh evidence on appeal. Consequently, any approach that has the effect of denying the Court the opportunity of exercising its discretion in relation to any such new or fresh evidence is procedurally fatal and renders such evidence inadmissible for the purposes of consideration as part of the record of the proceedings properly so called.
Non-compliance with the rules for prosecuting an appeal
In as much as the Defendant failed to abide by the rules of court requiring him to prosecute his appeal in the Court of Appeal in the manner prescribed by law (for which the Plaintiff has taken him on here praying this court dismisses the appeal because the Defendant has offended the provisions of Rule 20(6) of C.I. 19, the Court of Appeal), we are of the view that the Court of Appeal was right in not dismissing the appeal and proceeding to hear the Defendant on the merits of its appeal. This is because the non-compliance did not cause any undue surprise or miscarriage of justice on the Plaintiff and should therefore not be used to deliver a technical knockout.
Notice of variation by a respondent in place of a cross-appeal
The rule vests in the Court of Appeal, jurisdiction to vary only the impugned part of the judgment complained of. Rule 15(1) of C.I 19 does not require the respondent to also file a separate notice of appeal like the appellant. Put differently, the respondent finding himself in that situation shall not file a cross-appeal but shall give a written notice of variation of part of the judgment complained of.
My Lords, in Asamoah v Marfo [2011] 2 SCGLR 832, this Court held that an omnibus ground of appeal, namely, that a judgment is against the weight of evidence, is wholly misconceived where no defence has been filed and no evidence has been led, rendering such a ground unmeritorious and liable to dismissal. This position was reaffirmed in subsequent authorities, including Zipkuitor v Attorney-General (supra) and Atuguba & Associates v Scipion Capital (UK) Ltd (supra), wherein the Court clarified that the omnibus ground is generally inapplicable to interlocutory decisions, particularly those determined without viva voce evidence, such as applications for injunctions, stay of execution, or joinder.
It is to be noted, however, that in Sino Africa Development Company Limited v Royal Bell Investments Limited & Kwame Blay (Civil Appeal No. J4/02/2023, delivered on 14 June 2023), this Court, per Pwamang, JSC, nuanced the principle by recognising that such a ground may be permissible where affidavit evidence is materially disputed, having regard to the appellate court’s duty to rehear the matter and to arrive at the decision which the lower court ought to have made.
In light of these authorities, it is my considered opinion that the law may now be regarded as settled: the omnibus ground is improper where affidavit evidence is uncontroverted, but may be invoked where such evidence is in dispute. Applying this principle to the present case, I am of the view that the affidavit evidence on record is clear and uncontroverted with respect to the Petitioner’s grounds, as well as the positions of both the Respondent and the Appellant. I am therefore of the opinion that the objection raised by Counsel for the Petitioner is sustainable. Accordingly, the omnibus ground of appeal filed in this case is inapplicable.
Omnibus ground that the judgment is against the weight of evidence
Based on the exceptions given by this court in the Owusu Domena v. Amoah case supra, the current position of the law may be stated that where the only ground of appeal filed is that the judgment is against the weight of evidence, parties would not be permitted to argue legal issues if the factual issues do not admit of any. However, if the weight of evidence is substantially influenced by points of law, such as the rules of evidence and practice or the discharge of the burden of persuasion or of producing evidence, then points of law may be advanced to help facilitate a determination of the factual matters.
Clearly, an appellant who has set out the sole ground of appeal under the omnibus ground of appeal that the judgment is against the weight of evidence may argue legal issues under the omnibus ground if only the legal arguments would help advance or facilitate a determination of the factual matters or the factual aspects of the case during an appeal. The legal arguments must help in determining whether the facts as narrated and interpreted in the trial court were assessed correctly, and whether the appropriate legal standard of proof was applied. However, where in the notice of appeal an appellant has set out the omnibus ground of appeal that the judgment was against the weight of evidence and states other grounds alleging error of law then such an appellant ought not be permitted to argue some other points of law not stated in the notice of appeal under the omnibus ground of appeal.
The omnibus ground of appeal throws up the case for a fresh consideration of all the facts and the law applicable to the case. In that respect, the appellate court just like the trial court, has the duty to evaluate and assess the evidence led at the trial in order to determine in whole, in whose favour the balance of probabilities tilts.
Traditionally, where a party complains that a judgment cannot be supported having regard to the evidence led at the trial, it was incumbent on the party to so demonstrate it. Thus, to say that a judgment is against the weight of evidence, implies that there are on the face of the judgment, some errors of law or on the facts or both that the lower court committed. In either case, the presumption is that the trial court applied wrong principles of law to the case under consideration. It could also be implied that the findings of the court could not be supported having regard to the evidence led on record. It must be noted, however, that making primary findings of fact is the prerogative of the trial court and where on the evidence the findings are supportable the findings shall not be disturbed on appeal. The converse is equally true where the findings cannot be supported.
