CHANCELLOR OPPONG KYEKYEKU KOHL vs. THE ATTORNEY-GENERAL
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2016
CHANCELLOR OPPONG KYEKYEKU KOHL - (Plaintiff/ Respondent)
THE ATTORNEY-GENERAL - (Defendant/Respondent)

DATE:  28TH JANUARY, 2016
CIVIL APPEAL NO:  H1/153/2015
JUDGES:  MARIAMA OWUSU JA (PRESIDING), ADUAMA OSEI JA, TANKO AMADU JA
LAWYERS:  MADAM EVELYN APPIAH FOR DEFENDANT/RESPONDENT (STATE ATTORNEY)
CHANCELLOR OPPONG KYEKYEKU KOHL FOR HIMSELF
JUDGEMENT

 

ADUAMA OSEI

By his writ of summons issued in the High Court, Accra, on the 15th of October, 2010, the Plaintiff/Appellant, hereinafter called “the Plaintiff”, claimed 17 reliefs against 6 defendants, who were all government officials or institutions. The names of 5 of the defendants were subsequently struck out, leaving the Attorney-General as the sole Defendant.

 

The essence of the several reliefs indorsed on the writ of summons was to obtain an order of the trial Court for the payment to the Plaintiff by the Government of Ghana of the sum of £254,000.00, being the total compensation allegedly paid by the British Authorities to the

Ghana High Commission in London on or about the 15th of November, 2003, for onward transmission to him, which the Government of Ghana had allegedly refused or failed to pay to him in spite of persistent demands, and an order for the delivery to him of a University of London LL.B degree certificate, First Class, which the British Authorities of the University of London had allegedly delivered to the Ghana High Commission in London on or about the 15th of November, 2003, for onward transmission to him, which the Government of Ghana had allegedly refused or failed to deliver to him in spite of persistent demands.

 

The Plaintiff’s writ of summons was accompanied by a 52-paragraph statement of claim which, much against the rules of pleadings, was suffused with evidence. The material allegations on the statement of claim were to the effect that the Plaintiff commenced a law course at the London School of Law of the University of London as a full time student and completed in June, 2001. After the final examinations, when the list of candidates was published, his name was not on it. The Plaintiff appealed against the omission of his name from the list of candidates and it emerged from investigations that he had in fact passed the examinations with first class and that his name had not appeared on the list of candidates because, as a result of an oversight, some of his marks in the final year had not been credited to him.

 

Following several intervening events, he won a court order for the payment to him of compensation totalling £254,000.00, and the issuance to him of the LL.B certificate. Subsequently, the Plaintiff was deported to Ghana but he had information that both his LL.B certificate and the compensation sum of £254,000.00 had been handed to the Ghana

 

High Commission in London on 15th November, 2003 for onward transmission to him. Neither the certificate nor the compensation sum has however been handed to him in spite of persistent demands.

 

On behalf of the Attorney-General, it was denied that the Plaintiff is entitled to any of the claims indorsed on his writ of summons or at all. It was alleged on behalf of the Attorney-General that by a letter received from the University of London, the Plaintiff was an external student of the University of London in the summer of 2001, and took and failed the final LL.B examinations. It was further alleged against the Plaintiff that following several threatening telephone calls he had made to the university and several unpleasant incidents at the university involving the Plaintiff, the university had sought and obtained an injunction order from the Central London County Court restraining the Plaintiff from entering the university premises or from contacting members of the university staff by telephone. The Attorney-General denied that any sum of money had been paid to the Ghana High Commission in London for onward transmission to the Plaintiff and also that any certificate or any other items intended for the Plaintiff had been delivered to the Ghana High Commission in London.

 

Twenty-seven issues were set down for determination by the trial Court at the close of pleadings. I think, however, that the issues relevant to the determination of the claims made by the Plaintiff in the suit were: whether or not the Plaintiff passed his examination in the final year but was failed because the university failed to credit him with all his marks; whether or not the Snaresbrook Crown Court delivered judgment in favour of the Plaintiff and ordered the University of London to pay a total compensation of £254,000.00 or any other sum to the Plaintiff; whether or not any sum was paid to the Ghana High Commission by the British Authorities for onward transmission to the Plaintiff; whether of not any LL.B degree certificate or other certificate was handed to the Ghana High Commission in London for onward transmission to the Plaintiff; whether the Plaintiff is entitled to his claims.

 

The trial Court’s determinations on all the issues raised were unfavourable to the position of the Plaintiff and all his claims were accordingly dismissed. Not satisfied with the decision of the trial Court, the Plaintiff has appealed against the same to this Court with a prayer that the judgment of the trial Court be reversed and judgment entered in his favour.

 

The Plaintiff initiated his appeal with the filing of a Notice of Appeal on the 29th of May, 2014, which contained 11 grounds of objection to the judgment of the trial Court.

 

Subsequently, on the 22nd of June, 2015, he filed an Amended Notice of Appeal containing 5 grounds of objection. But by rule 8(7) of the Rules of this Court, CI.19, an appellant

“shall not, without leave of the Court, urge or be heard in support of any ground of objection not mentioned in the notice of appeal, but the Court may allow the appellant to amend the grounds of appeal upon such terms as the Court may think just”. I do not find from the Notice of 22nd June, 2015 or anywhere else, any indication that the Plaintiff obtained leave of this Court before filing the amended grounds of that date. In consequence, in my view, the only grounds of objection the Plaintiff may legitimately urge on this Court, unless as they are reviewed, any of them are found to suffer from any incapacities, are those contained in the Notice of Appeal filed on 29th May, 2014.

 

Among other things, rule 8(5) of CI.19 obliges appellants to set out the grounds they intend to rely upon at the hearing of the appeal “without any argument or narrative”. My view however is that, of the grounds filed on the 29th of May, 2014, it is only ground A that may be considered valid. The remaining grounds are either argumentative or narrative, or a blend of arguments and narrations.

 

Underground A on the Notice filed on 29th May, 2014, the Plaintiff contends that the judgment of the trial Court “is completely against the weight of the evidence on record” and this ground derives its validity from rule 8(6) of CI.19, which permits the filing of a general ground where the appellant contends that the judgment is against the weight of the evidence.

 

Even though, as observed above, the Plaintiff is precluded from urging on this Court grounds B to K contained in the Notice of 29th May, 2014, fortunately for him, those grounds, and even the grounds filed on 22nd June, 2015, are essentially grounds that, like ground A, seek to criticise the trial Court’s evaluation of the evidence. It is possible therefore, if justice demands, to consider, when dealing with ground A, some of the arguments advanced by him in support of the other grounds. This may be done bearing in mind the caution Dr. Twum JSC gave in Brown Vs. Quarshigah [2003-2004] SCGLR 930(942) that a party relying on the general ground is not permitted to argue points of law.

 

In his filed submissions, the Plaintiff stated that the truth in the whole matter was revealed in the testimonies of PW.1, PW.2 and PW.3. He observed that his case is of an “enigmatic” nature and contended that viewing the conduct of the officials of the University of London in this light, there was no doubt that the judgment of the trial Court was completely against the weight of the evidence on record.

 

In further criticism of the judgment of the trial Court, the Plaintiff contended that the trial Court failed to “attack” Exhibits 8, 9, C and C1 in its judgment and this omission resulted in an unfortunate judgment. The Plaintiff lamented that even though it was made clear to the trial Court that all the exhibits tendered by the Defendant’s witness, Sena Siaw Boateng, were meant to deceive the Court, the trial Court ignored the warning and relied on them.

 

The Plaintiff stated that a careful analysis of the evidence on record would reveal not only the erroneous approach and conclusions the trial Court arrived at, but also the unnecessary lengths to which the trial Court went in finding arguments to dismiss the Plaintiff’s case. To the Plaintiff, it is clear from the judgment that the trial Court was in a dilemma as it assessed the evidence before it. In his view, what the trial Court should have done in the circumstance was to take into consideration the conduct of the University of London towards him and deliver judgment in his favour.

 

It is said that appeals are by way of re-hearing and, as provided by rule 31(c) of CI.19, this Court sets out to carry out this mandate by assuming “full jurisdiction over the whole proceedings as if the whole proceedings had been instituted and prosecuted in the Court as a court of first instance”. In Praka Vs. Ketewa [1964] 423(426), Ollennu JSC explained that the re-hearing jurisdiction entitles the appellate court “to make up its own mind on the facts and to draw inferences from them to the same extent as the trial court could”. His Lordship however cautioned that in situations where the decision on the facts depends upon credibility of witnesses, the appellate 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 facts found by the trial court”.

 

The responsibility of showing that the findings of fact made by the trial Court are wrong is that of the appellant. This is in view of the presumption that the facts as found by the trial court are correct. As is suggested in the judgment of Anin JA, as he then was, in Fynhout Productions Limited Vs. Kwayie [1971] 1 GLR 475(480), to dislodge this presumption, the appellant will need to demonstrate from the evidence on record that the balance of probabilities weighs heavily against the findings of fact made by the trial court.

 

As noted above, at the hearing of application for directions in the present case, 27 issues were set down for determination. After reading the pleadings however, I have identified the issues on which the Plaintiff’s case turns as the issue whether or not the Plaintiff passed his examination in the final year but was failed because the university failed to credit him with all his marks; whether or not the Snaresbrook Crown Court delivered judgment in favour of the Plaintiff and ordered the University of London to pay a total compensation of £254,000.00 or any other sum to the Plaintiff; whether or not £254,000.00 or some other sum was, in fact, paid to the Ghana High Commission by the British Authorities for onward transmission to the Plaintiff; whether of not any LL.B certificate or other certificate was handed to the Ghana High Commission in London for onward transmission to the Plaintiff; whether the Plaintiff is entitled to his claims.

 

I have also observed above that in the judgment appealed from, the trial Court determined all the key issues against the Plaintiff and accordingly dismissed his action. On the basis that determinations of fact made by trial courts are presumed to be correct, therefore, the Plaintiff herein carries the burden of demonstrating from the evidence on record that the probabilities weigh heavily against the findings of fact made by the trial court.

 

Apparently, it is to discharge this burden that the Plaintiff has contended in his filed submissions that Exhibits 8, 9, C and C1 ought not have been relied upon by the trial Court, that the exhibits tendered by the Defendant’s witness, Sena Siaw Boateng, were only meant to deceive the trial Court, and that the truth in the whole matter is contained in the testimonies of PW.1, PW.2 and PW.3. In this regard, I see it as my responsibility to consider the judgment of the trial Court in the light of the evidence on record, particularly the testimonies of PW.1, PW.2 and PW.3 and the implications of Exhibits 8, 9, C and C1, and determine whether the findings of fact and the conclusions made by the trial Court have reasonable support from the record.

 

In the judgment appealed from, I notice that the first significant step the trial Court took towards reaching its final decision in the matter was to remind itself of the case the Plaintiff had presented to it. Shorn of its several digressions, the Plaintiff’s case as recalled by the trial Court was that the British Authorities had given an LL.B certificate and a sum of £254,000.00 to the then Ghana High Commissioner in London, Mr. Isaac Osei, to be delivered to him, the Plaintiff; that the High Commissioner and another public officer, Mr. Osafo Marfo, who was then Ghana’s Minister of Finance and Economic Planning, had refused to hand over the Plaintiff’s LL.B certificate and the sum of £254,000.00 to him; that the Court should make orders for the certificate to be delivered to him, and the sum of £254,000.00 paid to him with interest.

 

Having reminded itself of the Plaintiff’s case, the trial Court considered a number of authorities which it felt provided guidance for the determination of the case. From the authorities considered, the trial Court expressed the view that a party who claimed from another carried the burden of leading enough or sufficient evidence which on the whole could lead to a conclusion that the assertion he was making against that other was more probable than not.

 

With a decision taken as to the guiding principle for assessing the Plaintiff’s case, the trial Court proceeded to evaluate the evidence produced by the Plaintiff. It started with the Plaintiff’s own testimony, which the trial Court did not consider satisfactory, having regard to his claim. The testimonies of PW.1, PW.2 and PW.3 were considered one after the other and the trial Court’s holding in respect of each of them was that it was unhelpful, having regard to the allegations made by the Plaintiff and the issues for determination. It had been alleged by the Plaintiff that PW.4 and PW.5 had been sent by Mr. Osafo Marfo to apologise to the Plaintiff on his behalf in respect of matters relating to the Plaintiff’s claims. After considering the evidence of PW.4 and PW.5, however, the trial Court found the allegation to be unfounded. Both PW.4 and PW.5 were found by the trial Court to have denied having been sent by Mr. Osafo Marfo to apologise to the Plaintiff on his behalf.

 

Regarding Exhibits 8, 9, C and C1, the Plaintiff’s main complaint was that the trial Court failed to “attack” them. It is not too clear what the Plaintiff meant by this. I cannot however agree with him if he meant that the trial Court did not give adequate consideration to the exhibits. I notice in the judgment appealed from that the trial Court considered Exhibits C and C1 in relation to Exhibit 5 and found the three to be substantially the same. My own review of the exhibits shows that Exhibits C1 and 5 are copies of the same letter and bear the signature of Dr. I. Budden, the Legal and Constitutional Adviser of the University of London. Exhibit C is unsigned, but there is indication from Exhibits C1 and 5 that it was enclosed as a copy of a letter previously addressed to the Plaintiff.

 

The Plaintiff contended that Dr. Budden did not have authority to sign the letter of which Exhibits C1 and 5 are copies and I find that the trial Court did not ignore that contention. The trial Court gave consideration to it and held, rightly in my view, that it had no evidential basis.

 

Exhibits 8 and 9 were also considered by the trial Court together with several other exhibits which had come from official sources and which had been tendered on behalf of the Defendant. Rightly, in my view, the trial Court found no legal impediment to relying on them. Exhibits C and C1 had been tendered by the Plaintiff himself, and Exhibits 5, 8 and 9 had been tendered on behalf of the Defendant without objection by the Plaintiff. From Exhibits C and 9, it is clear that since 2001, the University of London had made it clear to the Plaintiff that he had failed the final LL.B examination and was therefore not entitled to an LL.B certificate, that he was not entitled to any compensation, and that there was no truth whatsoever in the allegations that the University had sent him any certificate or any other items intended for him to the Ghana High Commission in London.

 

With the Plaintiff unable to produce any evidence to controvert the contents of the exhibits, the trial Court cannot be faulted for holding that the Plaintiff failed to prove any of the allegations relevant to his claims. The record does not support the Plaintiff’s claim that any money was paid to the Ghana High Commission in London on his behalf, and neither does it support the Plaintiff’s allegation that Ghana’s High Commissioner in London at the time had colluded with Ghana’s Minister of Finance at the time to deprive him of his LL.B certificate and a sum of £254,000.00 they had received on his behalf.

 

I agree with the trial Court on the law that guided its assessment of the Plaintiff’s case, and in this appeal, I do not think the Plaintiff has succeeded in demonstrating that the balance of the probabilities weigh heavily against the findings made by the trial Court. Contrary to the Plaintiff’s contention, I am of the view that the evidence on record overwhelmingly supports the findings made by the trial Court and its dismissal of the Plaintiff’s case. This appeal is unmeritorious and the same is dismissed. No order as to costs.