IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2019
BENJAMIN YAW OSEI - (Plaintiff/Appellant)
THE CHIEF JUSTICE, JUDICIAL COUNCIL AND THE ATTORNEY GENERAL - (Defendant/Respondent)
DATE: 28TH FEBRUARY, 2019
SUIT NO: H1/221/2018
JUDGES: P. K. GYAESAYOR J.A (PRESIDING), AVRIL LOVELACE-JOHNSON J.A, TANKO AMADU J.A
LAWYERS: JOE ABOAGYE DEBRAH FOR THE PLAINTIFF/APPELLANT
AVRIL LOVELACE JOHNSON (J.A);
This is an appeal against the ruling of the High Court delivered on 26th April 2018. By the said ruling, the Court overruled the objection of counsel for the Appellant’s objection to the admission into evidence of the Exhibit 4 of the Respondents and admitted it into evidence.
Eleven grounds of appeal were filed with the eleventh one (k) being that the ruling in question is against the weight of evidence. These grounds are
The learned High Court judge erred at the case management level when he declared as admissible evidence the purported official report (marked as exhibit 4) attached to witness statement of Samuel Boakye Yiadom, witness for the Defendants dated December 11, 2017 despite the written preliminary objections of the Plaintiff/Appellant filed on February 5, 2018 against the admissibility of the evidence.
The learned High Court judge erred when he failed to consider the Plaintiff/Appellant’s written preliminary objection filed on 5/2/18 against the admissibility of a purported official report marked as exhibit 4 attached to the witness statement of Samuel Boakye Yiadom, witness for the Defendants/Respondents dated December 11, 2017.
The learned High Court Judge erred when he admitted in evidence exhibit 4 as a report of the Disciplinary Committee of the Judicial Council on the enquiry of the Plaintiff/Appellant which said exhibit 4 is full of prejudice information of other people posing substantial danger of unfair prejudice to the Plaintiff/Appellant’s case.
The learned High Court Judge erred in his ruling at the case management level when he ruled that exhibit 4 contains information of other people but he has admitted it in evidence as a report on the Plaintiff/Appellant with the view to suo moto deleting the prejudicial materials therein by way of redaction.
The learned High Court Judge erred in law when he admitted in evidence exhibit 4 as an official report without recourse to section 148 and 162 of the Evidence Act NRCD 323/75 which mandate that there must be identification, authentication, filing, certification etc. before exhibit 4 could pass the admissibility test.
The learned High Court Judge erred when he ruled that one of the issues set for trial is whether or not there was a report based on which the Plaintiff/Appellant was removed from office as judge and so exhibit 4 is automatically relevant and admissible in evidence regardless of the admissibility test prescribed by sections 148 and 162 of the evidence Act NRCD 323/75.
Exhibit 4 is not dated or on a letter head and it is not signed by the writer and the writer is not known or disclosed, it is not authenticated and so it was erroneous for the learned High Court Judge to admit it in evidence as official report.
Personation of the signature of Alex B. Opoku Acheampong Esq. (Judicial Secretary) is apparent in the face of exhibit 4 and so it was erroneous for the learned High Court Judge to rule that exhibit 4 is certified by the Judicial Secretary.
The learned High Court Judge erred in his ruling when he stated that pages 2 to 8 of exhibit 4 deals with various objections and issues that needed to be resolved in the course of the proceedings of the enquiry because at the enquiry, the lawyers for the Plaintiff/appellant never raised any such objection and the Record of Proceedings (Exhibit 3) does not show that any such objections were raised by the Plaintiff/Appellant and as it was wrong for the Honourable Judge to admit Exhibit 4 in evidence.
The Learned High Court Judge erred at the case management conference when by his erroneous admission of the inadmissible evidence (exhibit 4) he failed to grant the Plaintiff/Appellant judgment under Order 33 Rule 5 of the High Court Civil Procedure Rules (C.I. 47) thus resulting in substantial miscarriage of justice.
The ruling/decision of High Court Judge is against the weight evidence on records (sic).
In spite of the long winded manner in which the first ten grounds of appeal were couched, it is my considered opinion that a determination of whether the trial judge erred when he admitted exhibit 4 into evidence lies at the root of these grounds and the omnibus ground ie the eleventh ground. I will consider that issue and thereby deal with all the grounds filed. Perhaps that is the reason why counsel for the Appellant did not argue his grounds one by one but made one long submission in respect of them.
The brief background of this case is that the Appellant was removed from office as a circuit judge upon the recommendation of a Disciplinary Committee which had been set up to investigate an allegation of bribery against him by a body named Tigereyepi.
Being dissatisfied with his removal, the Appellant filed a suit at the high court against the said removal. At the case management stage he objected to the filing of certain documents. It is the ruling of the court on the said objection that has culminated in the present appeal.
The summary of the arguments of counsel for the Appellant are as follows.
He contends that but for the erroneous admission of exhibit 4, Appellant would have obtained judgment under Order 33 rule 5 of the High Court Civil Procedure Rules (C.I.47) because the Respondents by their statement of defence and their exhibit 2 admit that he was able to prove before the Disciplinary Committee that the allegations levelled against him were false.
In relation to the said exhibit, it is contended that since it did not meet the conditions set down in section 148 of the Evidence Act 1975 (to be referred to as the Act hereon) regarding authentication of official documents and records, it should not have been admitted.
It is also submitted that the exhibit does not meet the conditions for admissibility laid down in section 162 of the Act.
Finally, the Appellant cited the case of Okudzeto Ablakwa and Others vs The Attorney General in support of his case.
In response, the Respondents argue firstly, that exhibit 4 should be admitted because it is relevant evidence. Secondly, having been certified by the Judicial Secretary and coming from his custody, it is authentic and satisfies section 136 of the Evidence Act. Thirdly that because the original report was being used before about twenty judges in trials, the duplicate copy tendered was admissible under section 166 of the Act. Further, they contend that even if exhibit 4 is rejected, the circumstances of the case would not warrant the Appellant being given judgment under Order 33 (5) of the High Court Civil Procedure Rules (C I 47) as contended by him. Finally, they submit that the Appellant has failed to show that the ruling is not supported by the evidence on record.
Exhibit 4 from the record is an extract of the work and findings of a Disciplinary Committee. Most of page 64 relate to another person but the last portion relates to the Appellant and continues to page 69 where the proceedings relating to the Appellant end and those relating to another Judge start. It is this overlapping of the record of proceedings relating to other persons into those of the Appellant which has led to the present objection by him.
Section 51 of the Act makes relevancy the basis of admissibility. The first question to be answered then is if exhibit 4 is relevant to the suit brought by the Appellant against the Defendants in the High Court? Clearly it is. Counsel for the Appellant himself describes it as “crucial documentary evidence” at page six of his written submissions. One of the reliefs sought from the court is in part for
“A declaration that the removal of the Plaintiff based upon the Disciplinary Committee’s report of the 2nd Defendant is wrongful as no such report existed at the time of the removal of the Plaintiff….”
The exhibit 4 in whatever form it is purports to be the record of the proceedings of the Disciplinary Committee relating to the plaintiff. I am satisfied on this basis that the said exhibit 4 being relevant was admissible in accordance with the provisions of the Act.
The Appellant also states that because exhibit 4 is full of prejudicial information about other people it poses “substantial danger of unfair prejudice” to his case.
Section 52(b) of the Act makes this a ground for excluding relevant evidence. The said section states as follows
“The court in its discretion may exclude relevant evidence if the probative value of the evidence is substantially outweighed by
(b) The risk that admission of the evidence will create substantial danger of unfair prejudice or substantial danger of confusing the issues
While at this stage of the trial, the issue of substantial miscarriage of justice caused by the allegedly erroneous admission of exhibit 4 does not arise, I find the Appellant’s fear of “substantial danger of unfair prejudice” to his case unfounded because it is clear from the exhibit which portions of it refer to him. It is most unlikely that the accounts relating to others therein will cause any prejudice to him. Contrary to the submission by counsel for the Appellant that the trial judge made a finding of fact that exhibit 4 is prejudicial, what the learned judge said at page 279 of the Record of Appeal was that
“As the exhibit stands, it is plausible to argue that it can conduce to prejudice because of the unnecessary materials on other persons….”
This statement cannot amount to a finding of fact. The presence of information about others is obviously because exhibit 4 is an extraction from a larger report relating to some others who also appeared before the committee. In any case the trial judge ordered the cancellation of the irrelevant or the portions not applicable to Appellant and admitted the exhibit minus the cancelled portions.
The exhibit tendered was not the original report. The Appellant complains about this and raises issues of authentication and proper custody.
The Act makes provision for the admission of copies of documents into evidence under section 166 in certain circumstances. The section provides as follows
“A duplicate of a writing is admissible to the same extent as an original of that writing, unless
(a) A genuine question is raised as to the authenticity of the original or the duplicate; or
(b) In the circumstances it would be unfair to admit the duplicate in lieu of the original
The Appellant does not question the authenticity of exhibit 4 per se. His complaint by his reference to sections 148 and 162 of the Act is that requirements of authentication and certification had not been met.
Section 136 of the Act provides that where relevancy of a document depends on its authenticity, such authenticity is proved by the provision of some evidence or other permissible means that it is indeed authentic. The Act puts it this way
“Where the relevancy of evidence depends upon its authentication or identity, so that authentication or identification is required as a condition precedent to admission, that requirement is satisfied by evidence or other showing sufficient to support a finding that the matter in question is what its proponent claims”
I am satisfied that the affidavit in verification sworn to by the Deputy Judicial Secretary by which she swore to the authenticity of exhibit 4 and the statement of the Deputy Judicial Secretary certifying same together with the stamp of the Judicial Secretary on the said exhibit are sufficient evidence in support of the Respondent’s claim that it is the proceedings of the Disciplinary Committee which went into the allegation of bribery leveled against the Appellant by Tigereyepi.
On the basis of the above, I find that the said exhibit 4 is authentic and comes from proper custody.
Cross examination during the trial can be used to help the court determine the weight to be put on it.
It is my considered opinion that the trial judge did not err in admitting exhibit 4 into evidence.
In conclusion, I find all the grounds of appeal as having failed for lack of merit and the appeal itself is dismissed in its entirety. The case is to be transmitted to the High Court for continuation of hearing.