Court name
Court of Appeal
Case number
198 of 2005

Badu Vrs Owusuwaa (198 of 2005) [2006] GHACA 20 (27 July 2006);

Law report citations
Media neutral citation
[2006] GHACA 20
Coram
Akoto-Bamfo, JA
Osei, JA
Apaloo, JA

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APPEAL

 

CORAM  -  AKOTO-BAMFO, J.A.

                                                              OSEI, J.A.

    APALOO, J.A.

 

CIVIL APPEAL

                                                                                                                 NO. HI/198/05

                                                                                                            27TH JULY,  2006

 

YAA BADU                              …                     PLAINTIFF/APPELLANT

 

V E R S U S

 

EFIA OWUSUWAA                 …                     DEFENDANT/RESPONDENT  

                ----------------------------------------------------------------------

                                          J  U  D  G  M  E  N  T

                ----------------------------------------------------------------------

 

APALOO, J.A.  -    This is an appeal from the decision of the Circuit Court Kumasi, dated 14th June 2004.  The Plaintiff/Appellant mounted this action claiming general damages against the Defendant/Respondent for defamation. 

Defendant/Respondent after delivery of her defence counterclaimed also for defamation.

            After a full trial, the Judge dismissed Plaintiff’s action and found for the Defendant on her counterclaim.  the Judge was of the view that:

                               “I do not…….find both Plaintiff and her witness truthful

                          witnesses….and would therefore not credit their evidence

                          with any truth.  Indeed I find the evidence of the Defendant

                          and her witness more impressive than that of the

                          Plaintiff and her witness.”

                              “In the result, the Plaintiff’s claim cannot succeed and is

                          dismissed accordingly.  Defendant rather succeeds in her

                          counter-claim and I enter judgment for her accordingly…….

                          In sum therefore upon due consideration of the totality of

                          evidence adduced by both parties and having carefully

                          weighed the evidence against that of the Defendant, I have

                          no doubt whatsoever in my mind, that the balance tilts in

                        favour of the Defendant both in her defence and counter-

                        claim.”

            The above were findings of fact, conclusions as to the credibility of the parties and their witnesses as well as the proof required under the law in civil matters.

            The ground of appeal is basically against the weight of evidence adduced at the trial and the conclusion reached by the trial Judge.  In assessing the decision of the trial court reference must be made to proof as required by law.  The trial Judge preferred the evidence of the Defendant and her witness to that of the Plaintiff and in my view that discretion is left entirely within the powers of the trial Judge.

            The case of Zanyo Vrs. Fofie {1992-93} GBR 1353 delivered by the Supreme Court is explicit about the function and role of the Appellate Court.  The view of the Supreme Court is that:

                        “Where a trial Judge arrives at a conclusion based on the

                          advantage of seeing and hearing witnesses at first hand, the

                          Appellate Court should be very slow to form a contrary view….

                          ……{The Appellate Court} when reviewing the exercise of

                         discretion by a lower Court should not interfere unless the

                         Court below had applied wrong principles in arriving at the

                          result or taken into account matters which were irrelevant

                          in law or had excluded matters which were crucially

                          necessary for consideration or had come to conclusion which

                          no Court properly instructing itself on the law could have

                          reached.”

            The record does not disclose any violation of the principles stated above and I am of the view that the advantage of seeing and hearing the witnesses at first hand no doubt properly informed the trial Judge to arrive at his conclusion which preferred the evidence of the Defendant/Respondent to that of the Plaintiff/Appellant.

            I have no doubt in my mind that where an appellant contended that a judgment is against the weight of evidence, he assumed the burden of showing that it was in fact so. The Supreme Court in Bonney Vrs. Bonney {1992-93} GBR 779 reiterated that position and that Court went further to state that:

                        “……..An appeal Court ought not under any circumstances

                          interfere with the findings of fact by the trial judge except

                          where they were clearly shown to be wrong, or the judge did

                           not take all the circumstances and evidence into account

                           or had misapprehended, some evidence or had drawn wrong

                           inferences without any evidence in support or had not taken

                           proper advantage of his having seen or heard the witness.”

            The credibility of the witnesses featured prominently in the lower Court’s decision.  Whereas the trial judge rejected outright the evidence of the Plaintiff and his witness for reasons well articulated in the judgment, he preferred the evidence of the Defendant/Respondent and his witness.  His preference indeed formed the basis of his judgment and in my view the required proof was established by the evidence of the Defendant/Respondent and his witness.  The required proof according to the Supreme Court case of Akrofi Vrs. Oteng {1989-90} GLR 244 was that:

                        “……..Proof was no more than credible evidence of a fact in

                        issue.  It did not matter that the evidence was given by one

                        or several witnesses; the most important thing was the

                        quality of the evidence.”

            In the circumstances this appeal ought to fail and it is accordingly dismissed for the above reasons.

 

 

                                                                                         R.K. APALOO

                                                                               JUSTICE OF APPEAL

 

 

 

 

I agree.                                                                     V. AKOTO-BAMFO

                                                                              JUSTICE OF APPEAL                                                             

 

           

 

 

 

I also agree.                                                                J.A. OSEI

                                                                              JUSTICE OF APPEAL

 

 

MR. G.K. BARIMAH FOR T HE PLAINTIFF/APPELLANT.

MR. FRIMPONG BOADU FOR THE DEFENDANT/RESPONDENT.

 

 

 

 

 

~eb~