Badu Vrs Owusuwaa (HI/198/05) [2006] GHACA 20 (27 July 2006);
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
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J U D G M E N T
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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~
