Omnibus ground that the judgment is against the weight of evidence
The omnibus ground of appeal invites this court to take another look at the facts on record to ascertain whether the conclusions arrived by the Court of Appeal are borne out or not; and to arrive at its own conclusion. In the case of Akuffo-Addo vs. Catheline (1992) 1 GLR 377, SC this Court observed that whenever an appeal is based on the omnibus ground that the judgment is against the weight of evidence, the appellate court has jurisdiction to examine the totality of the evidence before it and came to its own conclusion on the admitted and undisputed facts. Thus, when an appellant complains that the judgment is against the weight of evidence, he is implying that there are pieces of evidence on record which, if applied properly or correctly, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus in such an instance is on the appellants to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against: see also Djin vs. Musa Baako (2007-2008) 1SCGLR 686 at 687 (per holding 1)
It is settled law that an appeal is by way of rehearing and where particularly, the Plaintiffs as Appellants contend that the Judgment is against the weight of evidence, they bear the burden of establishing their assertions with reference to the Record. The duty of this Court in determining the omnibus ground of appeal requires that it resorts to the record for a fresh consideration of the facts and evidence on the Record, to determine whether a party’s case was more probable than not. This Court’s decision in cases such as TUAKWA V. BOSOM [ 2001- 2002] and DJIN V. MUSA BAAKO have settled the law on the use of the omnibus ground of Appeal.
It is trite that an appeal is by way of rehearing and more especially where an appellant in his notice of appeal complains that the judgment is against the weight of evidence. In that case, he is indicating that there were certain pieces of evidence on record which, if applied in his favour, could have changed the decision arrived at by the court in his favour, or that, certain other pieces of evidence have been wrongly applied against him. However, the duty is cast on such an appellant to demonstrate to the appellate court the lapses clearly and properly he has identified in the judgment being appealed against….
In essence, we are urged, as the final appellate court, to place ourselves in the position of the trial court and the first appellate court to determine whether we would have arrived at the same conclusions as the first appellate court. Put differently, an appeal on the ground that a judgment is against the weight of evidence calls upon this Court to reexamine the record to ascertain whether the findings and conclusions reached at trial and the Court of Appeal are duly supported by the evidence adduced, or whether those conclusions are, in fact, perverse.
It is now trite learning that where the appellant alleges that the judgment is against the weight of evidence, the appellate court is under an obligation to go through the entire record to satisfy itself that a party’s case was more probable than not.
It has been held in a considerable line of cases that, an appeal under the ground of appeal that the judgment is against the weight of evidence, is an invitation to the appellate court to review the entire evidence on the record to ascertain any relevant materials or evidence on record which the court below disregarded or misapplied, or irrelevant materials on the record which were relied upon by the court below in reaching its decision. Accordingly, the appellant bears the duty to clearly point out to the appellate court such erroneous considerations or exclusions but for which the decision of the court below would have been made in favour of the appellant. Djin v Musah Baako [2007- 2008] SCGLR 686
The law is settled that, an appeal to this court is by way of re-hearing. This is particularly so, when the Appellant has anchored the appeal on the omnibus ground of appeal that, the judgment being appealed from is against the weight of evidence on record. By this ground, the Appellant implies that, the court below misevaluated the evidence on record, and the same resulted in wrongful conclusion occasioning a miscarriage of justice. As a final appellate court, we are under an obligation in the circumstances, to carefully reevaluate the entire evidence on record, apply the relevant law to the evidence, and correct any errors committed by either the first appellate court, or the second appellate court. For a favourable determination therefore, the Appellant carries the onus to point out the errors either of the evidence, or of misapplication of the law committed by the two lower courts for this court to consider after our own evaluation of the evidence on record.
The respondent has responded to the points of law under this omnibus ground without any objection, and we too have decided not to join issue with them on the procedure since this court has held that there may be circumstances in a case that would make the court to permit points of law to be argued under the omnibus ground.
Sometimes a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus, when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where the legal arguments would help advance or facilitate a determination of the factual matters.
The duty to demonstrate the lapses of the judgment by the appellant springs from the fundamental presumption that the judgment of the trial court is correct. It will therefore take displacement of that presumption by the appellant before he can secure success for the appeal grounded on the argument that the judgment is against the weight of the evidence.
Order for retrial where the trial court made no findings of fact
In suits Nos. 605/62 and 607/62, the trial court made no findings of fact whatsoever and in such a situation, the ordinary bench, with all due respect, should have ordered a re-trial. That has been the practice and it is not necessary to cite decisions to illustrate the practice. Indeed the decided cases on the practice are legion.
Points of law raised as grounds of appeal and not by preliminary objection
Issues of the defectiveness or otherwise of an originating process such as a writ of summons, issues of the capacity of a Plaintiff to sue, issues of the validity of a power of attorney are all matters that properly belong to grounds of appeal. The rules require the Appellant to raise distinct grounds of appeal for each legal point he wishes to argue on appeal.
Raising a point of law for the first time on appeal
In any event the law seems to be now clearly established that a point of law arising on the record can be canvassed in an appeal court although it has not been raised in the court below.
Reliance on a document that was not tendered in evidence at the trial
First, on the evidence, this document was not part of Exhibit “G”, and so had not been tendered in evidence and accepted as such at the trial court. This meant that it had nothing to do with the appeal, and so should not have been on the Record of Appeal in the first place.
Rule 23 of the Court of Appeal Rules, 1997 (C.I. 19), provides: “23. Non-appearance of appellant (1) Where the appellant fails to appear when his appeal is called for hearing and he has not taken action under rule 22, the appeal may be struck out or dismissed with or without costs. (2) When an appeal has been struck out or dismissed owing to the non-appearance of the appellant the Court may, direct the appeal to be re-entered for hearing on such terms as to costs or otherwise as it may think just.” (Emphasis). My lords, subrule (2) of Rule 23 above, vests the Court with discretionary power, after the Court has dismissed an appeal under subrule (1), to order a restoration or relistment of the appeal. Being a discretionary power, therefore, it ought to be exercised by the Court judicially, reasonably and not arbitrarily, and an appellate court such as this Honourable Court, ought to exercise great caution in interfering with the exercise of that discretion.
It is settled law that no party has an inherent right to an appeal. An appeal being a creature of statute, a party who seeks to exercise the rights afforded him by the statute, must comply with the conditions provided for by the enabling statute. A failure to so comply, could result in an unfavourable outcome for an appellant.
Under article 131(1)(a) of the Constitution and section 4(1)(a) of the Courts Act, an appeal from the decision of the Court of Appeal may be filed as of right to this Court only where the case was appealed to the Court of Appeal from a decision given by the High Court in the exercise of its original jurisdiction. In the instant matter, in so far as the decision of the High Court was not given in the exercise of its original jurisdiction, the Appellant/Applicant herein cannot file his appeal to this Court from the decision of the Court of Appeal as of right. See Coker vs. NDK Financial Services Ltd [2017-2020] 1 SCGLR 766.
Under Article 131(1)(b) and section 4(1)(b), the leave of the Court of Appeal is required to enable a dissatisfied party appeal to this Court from a decision of the Court of Appeal where the case was commenced in a court lower than the High Court. In addition to this requirement, an applicant must satisfy the Court of Appeal that the matter “involves a substantial question of law or it is in the public interest to grant leave to appeal”. This provision was necessary in order to prevent frivolous appeals from being filed before this Court, with the ultimate aim of bringing litigation to an end as soon as possible.
The law on appeal is that an appeal is a creature of statute. In the case of Karletse Panin v. Nuro [1979] GLR 194; It was held that an appeal is a creature of statute and a person seeking to benefit from the statute that creates the appeal must come within the terms and conditions provided by the appeal before he can take benefit of same.
It is now trite learning that an appellate court has no inherent jurisdiction to entertain an appeal from an order or decision given by a court below. In all causes or matters an appeal lies only if given by statute: See Amponsah v. Minister of Defence [1960] G.L.R. 140 at p. 146, C.A.
Although the law provided that upon such reference it shall be deemed for all purposes to be a civil suit brought before such Native Court, and shall be tried and determined accordingly, nowhere in the Ordinance was provision made giving a right of appeal from a decision of the Native Court upon such reference. It is commonplace that no appeal lies as of right against the order of any court unless given by statute.
Substantial question of law as a ground for leave to appeal
For my part, I am perfectly satisfied and I do hold the view that this case involves outstanding and substantial questions of law of far reaching implications; and moreover, in so far as there have been divergent opinions expressed on those questions of law by distinguished justices of the Supreme Court and the Court of Appeal, I think that this is eminently a case in which leave to appeal to the Supreme Court ought to be granted.
Subsuming inadmissible grounds under an abandoned omnibus ground
It is worth noting that in this case the respondent’s ground (a), (b), (c), and (d) of the appeal were found to be void and inadmissible. The respondent had also abandoned ground (e) of his ground of appeal which was the omnibus ground of appeal to wit the judgment is against the weight of evidence. We are mindful as stated in the Dora Boateng vs. McKeown Investment case that the discretion granted to this court to grant relief against non-compliance with the rules should be exercised on a case by case basis obviously to avoid the appeal being determined by technicalities. In our view the respondent’s decision not to argue the omnibus ground of appeal clearly deprived him of the opportunity to be embraced by the saving grace provided in the rules. In our view the Court of Appeal was in error in subsuming the erroneous and inadmissible grounds of appeal under an abandoned and non-existent omnibus ground of appeal. In our view, the appeal ought to have failed at the Court of Appeal which erred in allowing the appeal.
In the appeal before the Court of Appeal, the omnibus ground of appeal became the sole issue after grounds (a) – (d) were found to be inadmissible by the Court of Appeal. Since the omnibus ground of appeal was deemed abandoned, for failure of Counsel for the Defendant to make any submissions thereunder, the appeal ought to have been dismissed. The Court of Appeal therefore erred in subsuming the said inadmissible grounds of appeal under the omnibus ground of appeal and proceeding to determine the matter on its merits.
Whether a decision is final or interlocutory for time to appeal
We have considered the submissions of the parties on the issue and are of the view that as the decision of the High Court dismissed the entire suit, that decision was final. See Atta Kwadwo v Badu [1977] 1 GLR 1. CA. In Joseph v Okomfoankye [20132014] 1 SCGLR 267 at p 270, the Supreme Court speaking through Gbadegbe, JSC said as follows; "As an interim relief it cannot, in our thinking, be transformed into a final order of the court by virtue only of an appeal therefrom to a higher court". By parity of reasoning, the final order of the High Court in this case does not turn into an interlocutory order on its way up the ladder of the courts structure by the appeal process. It remains a final order not withstanding the appeals. Consequently, in our opinion, this is a final appeal and the notice of appeal before us is competent.
Who may raise a preliminary objection to an appeal
It follows, therefore, that the whole procedure of the raising of, or, the filing of a preliminary objection is available to only a Respondent to an Appeal and not an Appellant; unless, the Appellant is a Cross- Respondent to a Cross-Appeal filed by a Respondent to an appeal. The Appellant herein, therefore, has no right under the rules to file a Notice of Preliminary Objection. The said Notice of Preliminary Objection filed by the Appellant herein on the 25th March 2024 is, therefore, incompetent.
