IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2018
ELIZABETH ABBEW JACKSON - (Plaintiff/Respondent)
ESTHER ANDERSON - (Defendant/Appellant)
DATE: 27TH JUNE, 2018
CIVIL APPEAL NO: H1/227/07
JUDGES: JUSTICE IRENE C. LARBI (MRS) J.A. (PRESIDING), JUSTICE L. L. MENSAH J.A., JUSTICE ANGELINA M. DOMAKYAAREH (MRS) J.A.
JONATHAN KOFI MENSAH ASEMPA FOR DEFENDANT/APPELLANT
MICHAEL ARTHUR-DADZIE FOR PLAINTIFF/RESPONDENT
L. L. MENSAH, J.A.
This is an appeal against the judgment of the High Court, Sekondi dated the 17th day of March 2006 in favour of the Plaintiff/Respondent who will in this judgment be referred to as the Plaintiff against the Defendant/Appellant who will be referred to as the Defendant.
The facts of this case are that Elizabeth Abbew Jackson left the shores of Ghana for the United Kingdom in 1975. She got employed at the British Railways in Liverpool as a ticket examiner. Out of her earnings she sent goods in commercial quantities among which were shoes, clothes, fridges etc. to her brother James Abbew Jackson (deceased) who died in February 1988. The brother was instructed by Plaintiff to use the proceeds of the goods to acquire a number of houses, three of which are in Takoradi and one at Bubiashie, Accra. The houses however seemed not to have documents on them to bear Plaintiff’s name. The Plaintiff however tendered a number of documents as correspondence between her and her late brother as proof of her claim that the four houses in dispute were acquired by her brother upon her instructions.
Upon the death of Plaintiff’s brother, her two widows the Defendant herein, Mary Howard and the deceased and Plaintiff’s brother by name John Abbew Jackson were granted letters of administration to administer the estate of the deceased.
Alleging that the Defendant has coveted all the four houses built by her deceased brother for her, the Plaintiff instituted action in the registry of the High Court, Sekondi claiming the following reliefs from the Defendant:
1. A declaration of title to Plots Number 7D Airport Ridge, 300A, West Tanokrom and Plot 8 West Tanokrom and the houses thereon.
2. GH¢10,000.00 damages against Defendant for trespass
(a) Accounts of rents from the three houses collected by the Defendant.
(b) Perpetual Injunction restraining the Defendant from interfering with the Plaintiff’s ownership of the said properties.
The Defendant resisted the claim of the Plaintiff. She averred that all the three houses in Takoradi do not belong to the Plaintiff but to her husband. Specifically Defendant said the house on Plot No. 8 West Tanokrom Takoradi was assigned to the late James Abbew Jackson by one Kwame Kesse in 1978. By the time Plaintiff came to Ghana the house on Plot No. 8 was completed and the deceased and the children were staying there. As regards Plot No. D7 Airport Ridge Takoradi or Plot 300D West Tanokrom, the document covering D7 Airport Ridge Takoradi, is a Deed of Assignment from Kwame Appiah to Miss Lydia Abbew Jackson.
Concerning the Bubiashe House No. 1136/7, Bubiashie, Accra Defendant said her late husband bought same for Plaintiff. However the Plaintiff rejected same because according to her the location was not favourable to her. As a result her husband had to get a land for Plaintiff at Zoti. The husband had gifted the Bubiashie property to her.
After going through a full length trial, the trial judge gave judgment in favour of the Plaintiff. Dissatisfied with the said judgment, the Defendant appealed to this court with the following grounds of appeal found at page 173 of the record of appeal.
1. The judgment is unreasonable and cannot be supported having regard to the evidence adduced at the trial.
2. The learned trial judge failed to be guided by his own standard set for himself for the appreciation of the evidence.
3. Additional grounds of appeal would be filed on receipt of the record of proceedings.
No additional grounds were however filed.
To start with it is difficult to appreciate the Defendant’s second ground of appeal which, as aforementioned, is that
The learned trial judge failed to be guided by his own standard set for himself for the appreciation of the evidence.
This ground of the appeal if it is really a ground at all is too weird to be allowed. It offends against rule 8(6) of the Court of Appeal Rules 1997 C.I. 19 which provides as follows:-
No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall be permitted, except the general ground that the judgment is against the weight of the evidence; and any ground of appeal or any part of the appeal which is not permitted under this rule may be struck out by the court of its own motion or on application by the Respondent.
Lawyers for Appellants must know that an appeal is a serious matter and same must be prosecuted with miximum care and a touch of professional finesse. Couching a ground of appeal in general, eerie or vague terms is an abuse of the appeal process which is expensive both for the parties and the appellate court. A ground of appeal is the sub-structure on which the appeal rests and it is supposed to raise arguments in order to attack the judgment it considers to be improperly decided against him. It is for this reason that a poorly formulated ground of appeal may raise the suspicion that Appellant did not master the record of appeal or that he wants to trivialize the appeal.
That the courts consider a bad formulation of a ground of appeal offensive and need to suffer being struck out, shows in the case of Republic v. Conduah; Ex parte Aaba (Substituted by) Asmah (2013-2014) 2 SCGLR 1032. In this case Wood C.J. (as she then was) decried a formulated ground in a civil appeal which was reserved for a criminal appeal as follows in holding 1:
The omnibus ground of appeal that “the judgment cannot be supported having regard to the evidence or record”, was a ground commonly used in criminal appeals. It was not used in civil appeals where the proper formulation was that “the judgment is against the weight of evidence”. Consequently the Appellant’s ground of appeal alleging that “the judgment cannot be supported having regard to the evidence on record”, would be struck out.
In his written submission on this ground of the appeal, the learned counsel for Plaintiff submitted that the Defendant failed to point out the purported standard set out by the trial judge which, to her, was used by the learned trial judge in evaluating the evidence, and by that the Defendant had abandoned the second ground of appeal.
We entirely agree with Plaintiff’s counsel that the second ground of appeal that “the learned trial judge failed to be guided by his own standard set for himself for the application of the evidence”, is not known to any rules of procedure. It is not only cynical, sarcastic and vain, but an abuse of the appeal process. Same is hereby struck out. See the case of Kwa Kakraba vs. Kwesi Bo Bo (2012) 2 SCGLR 834 holdings 1 and 2.
Before we come to the substantive appeal, two preliminary issues were raised by Defendant in regard to procedure. The first of this has to do with the submission of the Defendant’s counsel that the Plaintiff’s case was struck out and same has not been relisted.
Counsel made a huge discourse by tracing the history of this case with its chequered history as same was handled at one time or other by several judges. For instance O. K. Sampson J took the summons for directions in May 1999 as reflected in pages 10, 13 and 14 of the record of appeal. However, the case was struck out by Asiamah J on 1-11-2000 for want of prosecution. Though an application was filed to relist same, there was no evidence on the record of appeal that same was granted or not. Counsel contended that in as much as the record does not show that the case which was struck out by Asiamah J was relisted, “This is a serious omission in our view and the consequences are daring. We submit therefore that if the suit was not re-listed then everything done thereafter is nullity… All the processes taken up to judgment are a nullity, void and of no effect”.
We have considered this particular issue raised by the Defendant. The question is when did the fact that the case was not relisted became known to Defendant’s counsel? During the time of hearing the appeal, did Defendant’s counsel raise same to be determined by the court? And during the hearing at the court below did not the Defendant’s counsel notice that the motion for relistment slated for 31-10-2002 was not heard? The fact that there is a serious doubt of Defendant’s counsel himself when he said: “we are at a loss as to whether it was granted and or refused”, shows that there is a doubt in the mind of the counsel for that matter this court, which doubt must inure to the benefit of the Plaintiff. We say so because as rightly submitted by counsel this is case with a chequered history. It passed through the hands of four High Court Judges. Where a case passes through the hands of several judges, this is bound to happen and the Appellant’s counsel must take the record of appeal as he finds it. Indeed a case which was filed in 1992 had its final decision given fourteen years later in 2006. One reason for this is perhaps the absence of the Plaintiff who resided in the United Kingdom. As aforementioned, since the alleged omission of relistment is not visible on the record, the case must be presumed to be regularly put back on the cause list.
See the case of Skyway Travels Ltd. vs. Ghana Commercial Bank (2005-2006) SCGLR 724 and Martey & Others v. Apeadu (2003-2004) SCGLR 1191.
Another preliminary issue raised by Defendant’s counsel is that after Kanyoke J heard the case up to a point, he was later elevated to the Court of Appeal as reflected in the record of appeal at page 68. Then in January and February 2004 Batu J took over from Kanyoke JA. Thereafter, Duose J handled the hearing from May 2004 at page 71 of the record of Appeal to date of judgment on 17th March 2006 at page 166 of the record of appeal. The gravamen of Defendant’s counsel’s argument is that “there is no evidence on the face of the record that the part-heard was adopted and or declared to be a trial de novo?? Counsel argued that “this is a serious legal issue … and goes to the root of the case and ideally the whole trial is a nullity and everything done ought to be set aside?” The above arguments of counsel should not have been heard by this court in the first place because this purported “serious legal issue”, was not made a ground in the appeal for Defendant to raise same. This is because the only ground filed by the Defendant is the omnibus ground of appeal that the judgment is against the weight of evidence. See Asamoah (Decd); In re; Agyeiwa v. Manu (2013-2014) 2 SCGLR 909 and Dahabieh v. SA Turqui & Bros. (2001-2002) SCGLR 498.
Further the position taken by Defendant’s counsel in this instant appeal that the partly-heard case taken over by Douse J was not adopted and or declared to be tried de novo is no longer good law. Same has been consigned between the pages of Agyeman (Substituted by) Banahene & Others vs. Anane (2013-2014) 1 SCGLR 241. The decision per Wood CJ (as she then was) goes as follows per holding 4:
The Supreme Court would therefore re-state the law relating to adoption of evidence in previous civil proceedings as follows: In civil proceedings, the ultimate question of whether or not evidence already adduced before a previous judge should be adopted should not rest on the parties’ consent. It should exclusively be at the discretion of the new judge who has taken over the partly-heard case.
The Supreme Court by its decision overturned the case of Awudome (Tsito) Stool v. Peki Stool (2009) SCGLR 681. It does not matter that the judgment of Douse J was earlier in time to the Agyeman v. Anane case (supra) as contended by Defendant’s counsel.
Having touched on the preliminary issues of this appeal, we now come to the substantive issues raised in the appeal. As aforementioned, the sole ground of the appeal is that the judgment is unreasonable and cannot be supported having regard to the evidence adduced at the trial.
In his submission, the learned Defendant’s counsel argued that the Plaintiff failed to establish that by sending goods to the late James Abbew Jackson, she intended the deceased to use the proceeds therefrom to procure the said properties on her behalf. And further that the deceased did in fact use only the proceeds from the sales to acquire all the said properties. A further argument of the Defendant’s counsel is that the Plaintiff never specifically stated the number of years for which she sent the goods, not the value or quantity of the goods she sent.
Counsel contended that since the claim of Plaintiff is a claim for title to land and houses, the evidence must be convincing. This is because Plaintiff ought to produce receipts, bills of sales, bills of lading and invoices to show the quantity of goods brought, the frequency etc.
It is the further contention of the Defendant that when confronted to produce the goods she claimed she sent to her brother, Plaintiff was only able to show Exhibits H to H1 long after the plots were procured. Some of the goods are household items such a two used deep freezers, two used table top fridges and Exhibit 5, a 20 foot container of household and personal effects. She did not also demand the title deeds from her brother, simply because Plaintiff did not finance the acquisition of those properties.
In reaction to the above submissions of the Defendant, the learned Plaintiff’s counsel submitted that the judgment of the learned trial judge was unimpeachable because he properly evaluated the evidence and came to the right conclusion.
We will start looking at this appeal by considering each of the properties in dispute starting with the Bubiashie House Number 1136/7, Bubiashie, Accra. In this leg of the appeal, the learned counsel for the Defendant submitted that the Bubiashie house was the personal property of the Deceased James Abbew Jackson. That though he acquired same initially for Plaintiff, she rejected same which made the deceased to look for an alternate plot for Plaintiff which was at Zoti in Accra. Counsel said when the Defendant averred that her husband found alternate plot at Zoti for the Plaintiff, the Plaintiff simply denied it and that Plaintiff was expected “to have said more about the Zoti property as to whether that property in fact exists or not”.
This argument of the Defendant’s counsel is misplaced. Since the Defendant is a counterclaiming Defendant, and she mentioned that her husband replaced the Bubiashie house with an uncompleted plot at Zoti and built a house on the plot for Plaintfif, this fact is within the peculiar knowledge of Defendant. The onus rests on her to prove with cogent and compelling evidence with either a site plan, purchase receipt or indeed an indenture or any other corroborating evidence to confirm that there is indeed an existing plot with a house thereon at Zoti and same procured for the Plaintiff by her late husband. In any case even if the Zoti plot exists as the Plaintiff admitted under cross-examination at page 81 of the record of appeal, this does not by itself lessen the legal burden on Defendant because she is the one asserting.
In her further evidence-in-chief found at page 100 of the record of appeal the Defendant testified that after the Plaintiff rejected the Bubiashie plot (not house) her late husband gave the plot to her personally. After several hitches with registration formalities on the said plot, she eventually registered the plot as her personal property. That “the said plot was even purchased in the name of Defendant as stated above”. The Defendant however failed to tender any document evidencing her title, possession and ownership of House Number 1136/7 Bubiashie.
The question is which plot did Defendant say her husband gave to her which she registered? We ask this question because as far as the evidence goes, there is only one plot at the lorry park Bubiashie which was the place the deceased lived in. That plot had a house thereon and christened House No. 1136/7 Bubiashie, Accra. This is the house the learned trial judge with admirable clarity said about at page 168 of the record of appeal that the house in dispute at Bubiashie belonged to the Plaintiff. The trial judge found as a fact that on 20-11-1986, the late James Abbew Jackson wrote the letter Exhibit F found at page 188 of the record of appeal to her Plaintiff sister in Liverpool, U. K. which speaks:
Now I have been able to get a land at Bubiashie Lorry Station and built a house for you. Write to Faith for confirmation.
The learned trial judge went on to say that in support of Exhibit F which was admission against interest was Exhibit 7. Exhibit 7 is a fully registered indenture AR1011/90, 32000/130/90 executed in favour of the Plaintiff. The Defendant as a counterclaiming Defendant led no evidence to match the iron clad evidence of the Plaintiff in support of her claim to title of the disputed Bubiashie house. The appeal on Defendant’s purported ownership of this Bubiashie house therefore fails and same is hereby dismissed.
The next leg of the appeal has to do with the three houses at Takoradi which are House D7 Airport Ridge, No. 300 D West Tanokrom and No. 8 West Tanokrom.
In his submission on House No. 300D, West Tanokrom, the Defendant’s counsel argued that the learned trial judge failed to evaluate the entire evidence of the DW2, Mary Howard the co-widow of Defendant and widow of the late James Abbew Jackson. In her very short testimony (which Defendant’s counsel indicted the trial judge for failing to evaluate), the DW2 said she was married to her late husband in 1977 and they had three children. That when living together with her husband, she never saw her late husband bringing large quantities of goods to the house. And that she lived with the deceased for 6 years from 1977 to 1983 and finally that Plaintiff paid a visit to them in 1983. The DW2 confirmed the above in cross-examination. One material evidence of DW2 is that she rented the disputed House No. D300 West Tanokrom to get money to look after the children. She completely denied all suggestions to her that the house in question was the property of the Plaintiff which she DW2 was holding in trust for the Plaintiff.
In his further submission to conclude on the true ownership of House No. 300A West Tanokrom, the counsel said since the Plaintiff failed to join the other two co-administrators with Defendant, the judgment ought to be set aside. This is because the DW2 Mary Howard was not claiming the house as her own. There is truth in the Defendant’s submission that it was wrong for the Plaintiff to sue only the Defendant because all the three houses were said to be built by the deceased for the Plaintiff and he held all three, including the Bubiashie house in trust for her. As the Defendant’s counsel rightly submitted, Order 4 rule 5(1) and 4(2) (b) of the High Court (Civil Procedure) Rules 2004 C. I. 47, provides that a misjoinder or non-joinder shall not defeat any proceedings. The trial judge should have ordered the two co-administrators to be joined to the action. This however does not change the equation. We do not see how the failure to join Mary Howard the DW2 and John Abbew Jackson the DW1 the other administrator of the deceased’s estate caused any embarrassment to the Defendant’s case. In fact the DW1 and DW2 in their evidence from the record of appeal found at pages 120-133 came to give false testimony in blind support of the Defendant.
Upon examining the several exhibits of the Plaintiff and those of Defendants, it is clear that the exhibits enriched the case of the Plaintiff rather than that of Defendant as far as the ownership of the three disputed houses are concerned .
This is because contrary to with respect, the false specious argument of the Defendant’s counsel it was only household goods which were sent, the Plaintiff sent several goods in commercial quantities such as fridges, deep freezers large quantities of household goods in 20 foot containers, shoes, bags, wax prints, engine vehicles etc. sent to James Abbew Jackson who at one time operated a transport business between Takoradi and Elubo. For example in Exhibit “C” a letter to the Deceased, the Plaintiff urged her deceased younger brother “to please finish the building before our trip to Ghana. In otherwise Sammy Akinyeme would believe (sic) me for the rest of his life”.
Apart from this, there are other exhibits which confirmed that the Plaintiff was regularly sending goods in commercial quantities to her late brother to acquire the disputed properties for her. This include Exhibit E a letter dated 22-4-1983 where the deceased wrote to the Plaintiff that he had received inter alia the 18 parcels, five bags of rice, 10 pieces fridges through the bosom (boatswain) of a ship which docked at the Takoradi Harbour. There were also wax prints through one Sofo Ato etc. It is admitted that some of the goods were distributed among Plaintiff’s relatives as gifts. The Plaintiff could not however send several fridges and thousands of bags and shoes to her relatives.
In the judgment, the learned trial judge found as a fact that the economic condition in Ghana at the time of the events between Plaintiff and her late brother in mid 1970s and 1980s was tough and the late brother could not have built the three houses, coupled with the moderate salary of the late James Abbew Jackson. In Exhibit E the letter aforementioned, the late custom officer lamented that living in Ghana was “so pressed that man is struggling to survive. We spend about ¢200 daily …” The question is where would the late James Abbew Jackson get the wherewithal to build the three houses in Takoradi one after the other within the space of a few years? Besides, from the Bill of Lading Exhibits H4 to H8 series, the Plaintiff sent goods such as personal carrier bags 157, 80 pieces, slickers G/shoes 1,899 pieces etc. etc. The truth of the matter is that Exhibits H and J series really confirmed, at the risk of being repetitive, that the Plaintiff was regularly sending various goods to her brother to sell and get the houses for her as aforementioned.
As against the exhibits of Plaintiff, the Defendant also tendered a number of exhibits including Exhibit 1 a search report which concerned House No. D7 Airport Ridge extension. The Defendant’s counsel argued that if indeed it was the Plaintiff’s father Daniel Abbew Jackson that Plaintiff had intended the house to belong to then it was the father who was the proper person to sue and not the Plaintiff, or for Plaintiff’s father to give her a power of attorney which Plaintiff never tendered in evidence. Counsel contended that if the Plaintiff’s father was dead, then it was either his successor or administrator or a beneficiary under his will who should sue and not the Plaintiff.
A further argument of Defendant’s counsel is that under the Contract Act, 1960 Act 25, the Plaintiff’s father could sue Kwame Appiah, the assignor of the house intended for Plaintiff’s father, but which was assigned to Lydia Abbew Jackson. Lydia Abbew Jackson was then a minor who was picked from Fijai Secondary School, Sekondi by DW1 John Abbew Jackson allegedly at the behest of her father to go to one Amanor an official of the Town and Country Planning to execute the deed as an assignee of Kwame Appiah. A further argument of the Defendant’s counsel is that the Plaintiff has no capacity to sue for House No. D7 Airport Ridge Extension which was assigned by Kwame Apiah to the 16 year old Lydia Abbew Jackson, aforesaid.
In reaction to the above argument the learned Plaintiff’s counsel submitted that if really the disputed house No. D7 Airport Ridge were for Lydia Abbew Jackson, her mother Defendant and her rival DW2 Mary Howard would not have rented it out as administrators of the Estate of the Deceased James Abbew Jackson as confirmed by Exhibit 6. Besides, there was no claim of ownership by the said Lydia Abbew Jackson when the Plaintiff sued seeking declaration of title among other reliefs.
We do not agree with the arguments of the Defendant’s counsel that the Plaintiff’s father could sue under the Contract Act, or that the Plaintiff’s father should have given a power of attorney to Plaintiff to sue for him, and finally that the Plaintiff has no capacity to sue for House No. D7 Airport Ridge Extension. The argument of counsel, with all due deference, betrays a lack of appreciation of the peculiar nature, facts and circumstances of this case. This is because there is enough evidence as demonstrated above that the money used in acquiring the disputed house was sent by the Plaintiff through goods sent in commercial quantities to her late brother to sell for her. If the Plaintiff intended that her father lived in that property in appreciation of his rearing her up, it means the property which had not formally been transferred to the father remains hers, and not that of her father. It is clear from the evidence that the Defendant, the DW1 and DW3 had refused to tell the truth about the fact that the Plaintiff was indeed sending goods to her brother to sell for her to acquire the properties. Asking the Plaintiff to produce receipts, invoices or title deeds are misplaced because the Plaintiff was then in Liverpool U.K. and James Abbew Jackson died suddenly. There was no way the absentee Plaintiff would have foreseen the sudden death of her brother and demand the receipts and title deed of the houses.
Like the learned trial judge who cautioned himself that a claim against a deceased person must be scrutinized with care, and same repeated by the Defendant’s counsel, we also accept the fact that since James Abbew Jackson is deceased, the evidence against his estate must be scrutinized with due care and utmost suspicion because he was not alive to answer to any charge against him. See Kusi v. Kusi (2010) SCGLR 60 @ 62.
The argument of Defendant’s counsel that the fact that the Plaintiff’s name is on the site plan House No. 300 A West Tanokrom does not mean that she led legal evidence in proof of the ownership. We agree with the counsel that a site plan per se is not evidence of the ownership of a landed property. But the question to ask is why is it that the Plaintiff’s name is on Exhibit 3 found at page 222 of the record of appeal for House No. 300 A West Tanokrom dated 25-3-1985? The appearance of Plaintiff’s name on that document is consistent with her evidence that it was the goods she sent to her late brother to sell and acquire the properties for her which made her brother to start the purchase of the property from Wotorshie the vendor of the said property. However the transaction was not concluded before the dramatic death of James Abbew Jackson.
We have also examined the cross-examination of the Defendant’s counsel at page 72-82 of the record of appeal and we have seen that the cross examination has not in anyway made any inroad into the integrity of the Plaintiff’s evidence.
The standard of proof incidental to the proof of a claim to land generally cannot be strictly applied to this case because of the peculiar nature of the case as we have taken pains to isolate the evidence above. The evidence and circumstances of this case is unique and the evidence points to no other conclusion. Indeed the name of the deceased on Exhibit 2 as the assignee of Kwame Kessie another vendor of the deceased goes with the same fact of the late James Abbew Jackson passing off his name wrongfully as the assignee when it was actually Plaintiff who advanced the money. See Assibey v. Gbomittah & Commander Osei (2012) 2 SCGLR 800.
And as aforementioned, the Defendant is a counterclaiming Defendant who is enjoined to lead the requisite evidence as if she were a Plaintiff in her own right.
As the authorities make it clear, the burden of proof is always placed on a Plaintiff to satisfy the court on the proof by a balance of the probabilities in an action for declaration of title to land. Where the Defendant has not counterclaimed, the onus is on the Plaintiff to lead sufficient evidence against Defendant, failing which the Defendant’s case would be dismissed. If on the other hand the Defendant also files a counterclaim as the Defendant in this instant case, then the same standard or burden of proof would be used in evaluating and assessing the case of the Defendant, just as same was used to assess the case of Plaintiff against Defendant. See the case of Jass Co. Ltd. & Another v. Appau & Another (2009) SCGLR 265.
In this instant case the mass of evidence led by the Defendant as a counterclaiming Defendant is no match for that of the Plaintiff. As a Defendant whose sole ground of the appeal is that the judgment is against the weight of evidence, the Defendant is under obligation to prove from the judgment that there are pieces of evidence in the record of appeal which were overlooked by the trial judge and if same were applied rightly, she would have been entitled to judgment. And as an appellate court since an appeal is by way of rehearing, we are under obligation to sift the entire evidence on record and examine both oral and documentary evidence to satisfy ourselves that the judgment is supported by the evidence. This is the very thing we did in this instant appeal. See the case of Ackah v. Pergah Transport (2010) SCGLR 728; Tuakwa v. Bosom (2001-2002) SCGLR 61 and hosts of other cases.
In the instant case, although the Defendant had assembled an amarda of witnesses to prop up her faltering case none of those witnesses have upgraded the evidence of the Defendant.
As this judgment is cruising to the end, we are obliged to comment on the unnecessary, and with the greatest respect, vitriolic attack of the learned Defendant’s counsel of the respected trial judge. The learned counsel has reserved over two pages of the written submission to lambast and mercilessly criticise him. Unfortunately the key findings of the trial judge has been confirmed by this Court. What particularly incurred the wrath of Defendant’s counsel is the use by the trial judge that the Defendant was “greedy and aggressive”. We concede that those words were too harsh for Defendant. We also concede that there was no need for the judge to compare his personal annual salary some years ago to the notional salary of the deceased. This is an importation of foreign material into the evidence, an extra-judicial evidence.
Secondly the learned counsel also attacked the trial judge for using the phrase “I have read between the lines ….. reading between the lines …” This is an idiomatic expression. At page 1219 of the Oxford Advanced Learners’ Dictionary, International Students Edition, 8th Edition, 2011, “read between the lines” means
to look for or discover a meaning in something that is not openly stated.
And in the Cambridge International Dictionary of English, Cambridge University Press 1996 at page 1178, “read between the lines” means
to find the hidden meaning or intentions in what has been said or written.
Coming to this case, the phrase used by the learned trial judge simply means looking at the case of the parties critically or meticulously. It does not mean the trial Judge has sidelined or with jaundiced eyes compromise the integrity of the Defendant’s case as the learned Defendant’s counsel insinuated. It appears the attack on the judge was out of proportion to his judicial sins, if we may so put it.
Counsels are respectfully entreated to tone down their attack on Judges in what they perceive to be attack on their clients. Such attacks do not add value to the arguments of counsel.
Looking at the totality of the evidence, we think the learned trial judge could not be faulted in his findings. This being the case the appeal is hereby dismissed in its entirety and the judgment of the trial judge is hereby affirmed.