IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2017
JULIANA ANTWI AGYEI (MRS.) - (Plaintiff/Respondent)
MADAM ADWOA MANU AND OTHERS - (Defendant/Appellant)
DATE: 24TH OCTOBER, 2017
CIVIL APPEAL NO: H/18/2017
JUDGES: K E. K. AYEBI (PRESIDING) JA, GERTRUDE TORKORNOO (MRS.) JA, ANGELINA M. DOMAKYAAREH (MRS.) JA
NO LEGAL REPRESENTATION FOR APPELLANTS
TONY MMIEH FOR RESPONDENT IN ALL THREE SUITS
This appeal which was launched on 11th July 2008 is against the judgment of Yaw Appau
JA (as he then was) sitting as an additional High Court Judge, delivered on 6th June 2008 in three suits which were consolidated.
The subject of dispute amongst the parties now centred on a plot with a dwelling house thereon numbered Plot 14C, Block D, Breman Kumasi-Ashanti. The disputants are a daughter-in-law on the one side against her mother-in-law and brother-in-law on the other. In view of the fact that the appellants are not challenging the judgment on the merits but on the grounds of an error in procedure, it will suffice to state the claims of the parties and their pleadings briefly in each suit and then the trial judge’s overall conclusion on the claim in respect of the house as consolidated.
The facts of the case in all three suits is that one Samuel Antwi Agyei, deceased was the husband of Mrs. Juliana Antwi Agyei. The first defendant in the first suit LS. 68/95 and plaintiff in the second suit LS 1/98 was the mother of Samuel Antwi Agyei and for that matter mother-in-law of Juliana, respondent in this appeal. The 2nd defendant in suit number LS 68/95 and defendant in suit number CS 212/99 are brothers of Samuel Antwi Agyei. The third defendant in suit LS 68/95 since deceased, was the head of the Antwi Agyei family. The defendant in the second suit, LS 1/98 is a classmate and bosom friend of Samuel Antwi Agyei.
Up to 1993, Samuel Antwi Agyei and his family (wife and children) sorjourned in the United Kingdom. While living in the United Kingdom, Samuel Antwi Agyei commissioned his classmate and bosom friend to put up a house for him and his nuclear family. Through regular remittances to his friend, the disputed house was put up on a plot of land defendant in second suit acquired solely in the name of Samuel Antwi Agyei.
In 1993, Samuel Antwi Agyei visited home. But on 25th November 1993, he died in a motor traffic accident in Kumasi. After the funeral rites of Samuel Antwi Agyei, Juliana as the widow invited the family to join her apply for letters of administration but they refused. She therefore applied alone. The court subpoenaed the head of family, third defendant in suit number LS 68/95, and the plaintiff in the third suit, number CS 212/99. They appeared before the court with their counsel the late Richard Asamoah.
After assessing their suitability and on the intimation of counsel that the family of the deceased had agreed to join the widow to apply for the letters of administration, the court joined the head of family Opanin Kwasi Darkoh to the application and granted the letters of administration to them. A vesting assent was executed vesting the disputed house in the widow (respondent herein) and her children in accordance with the provisions of the Intestate Succession Law, 1985 (PNDC Law 111).
The respondent took possession of the house by putting in tenants. But the husband’s family led by her mother-in-law drove out the tenants and took possession and control of the house. In short, this is the basis of the respondent’s suit against her in-laws in suit number LS 68/95 in which she claimed:
1. Declaration of title to and recovery of possession of a building plot with a dwelling house thereon numbered Plot 14C, Block “D”, Breman, Kumasi-Ashanti; two (2) corn-mills and personal effects belonging to the late Samuel Antwi Agyei.
2. Damages for trespass; and
3. An order of perpetual injunction.
Madam Adwoa Manu, plaintiff/respondent’s mother-in-law has since died and was substituted by her daughter Akua Manu. The third defendant also passed away but was not substituted. In their amended statement of defence, and counter-claim, they denied that the house belonged to the deceased Samuel Antwi Agyei. According to them, the house belonged to the 1st defendant because she gave money to defendant in the second suit LS 1/98 to purchase the plot. She subsequently financed the construction of the house personally from the proceeds of her cocoa farm. It is their case that the late Samuel Antwi Agyei only assisted the mother to complete the house. They blame defendant in the second suit, LS 1/98 for wrongly preparing the receipt for the purchase of the plot and the allocation paper in the name of his friend instead of the 1st defendant.
Despite this claim of ownership of 1st defendant, the defendants pleaded in paragraph 14 of the statement of defence that:
“14. The defendants say on the 40th day of the deceased, the plaintiff informed Opanin Kwasi Berko (sic), the head and members of the deceased’s family that the deceased had one (1) house and two (2) cars in London. The members of the family agreed with the plaintiff that the plaintiff and her children should have all the deceased’s estate in London plus five (5) rooms in H/No. Plot 14C, Block “D”
Breman/Kumasi and the 1st defendant should have the remaining three (3) rooms”.
Based on the above plea, the defendants (now appellants) counter/claimed against the plaintiff/respondent for:
“(a) A declaration that the three (3) rooms the defendants are presently occupying in House No. Plot 14C, Block “D”, Breman-Kumasi are the properties of the 1st defendant as agreed upon by the plaintiff and the defendants and the plaintiff is bound by the said agreement arrived at during the 40th day celebration of Samuel Kwabena Antwi Agyei deceased at Kwadaso.
(b) Perpetual injunction restraining the plaintiff, her agents, servants and her workmen or relatives from in anyway interfering with the defendants enjoyment of the said house”.
While this suit was pending, the 1st defendant Adwoa Manu sued Dr. Mathew Kofi Kyei in suit No. LS 1/98. The relief she claimed flowed out of her claim that her son Samuel directed the defendant herein to acquire the plot for her. She said he collected ¢500,000.00 from her to pay for the plot and later monies totaling ¢600,000.00 to construct the house. However, instead of using her name to prepare the receipt and the allocation paper, he unlawfully and illegally prepared them in the name of her late son.
The plaintiff Madam Adwoa Manu therefore claimed against the defendant:
“1. An order compelling the defendant to cause the allocation paper and site plan of House No. Plot 14C, Block “D”, Breman-Kumasi to be changed from the name of Samuel Kwabena Antwi Agyei into the name of plaintiff at his expense.
2. General damages for breach of contract”.
The defendant also counter-claimed for damages for injurious falsehood, negligent misstatement and fraudulent misrepresentation of facts against the plaintiff Madam Adwoa Manu.
The third suit, CS 212/99 was launched against Mrs. Juliana Antwi Agyei, the respondent herein by Kwabena Owusu Ansah. He is the elder brother of the deceased. His case is that although he is the customary successor of the deceased, a fact known to the respondent, she applied for and obtained letters of administration without recourse to him as a family member of the deceased.
His claim therefore was for:
“An order revoking and cancelling the letters of administration granted to the defendant Mrs. Juliana Antwi Agyei and Opanin Kwasi Berko (sic) on 8th March 1994 as not having been properly and legally obtained, the same having been obtained by fraud, forgery, lies and deceit.
He gave the particulars of forgery as “Falsely affixing a strange thumb-print on the Administration Bond to make it look like that of Opanin Kwasi Berko (sic) when indeed it is not”.
The claim was moribond at birth because the head of family Opanin Kwasi Darko was joined to the application and jointly granted the letters of administration with the respondent in the presence of this plaintiff and their lawyer. And before then, the family itself removed him as customary successor for intermeddling in the estate of the deceased.
At the trial which lasted for three years, the respondent’s attorney Michael Kwabena Agyemang gave evidence in proof of her claim in LS 68/95 and in her defence in CS 212/99. Dr. Mathew Kofi Kyei, defendant in suit number LS 1/98 corroborated the respondent’s claim and defended himself as well. Madam Adwoa Manu was represented by her son plaintiff in the suit number CS 212/99 as her lawful attorney. He gave evidence in defence of respondent’s claim in LS 68/95 but said nothing about his mother’s counter-claim. He also purported to prove his mother’s claim in suit number LS 1/98 and his own claim in suit number SC 212/99.
In a composite judgment, the trial judge considered the claim and counter-claim in the three suits separately. While he found the claim of the respondent herein proved, he found no evidence which proved the defendant’s counter-claim and claim in suits numbers LS 68/95 and LS 1/98. Similarly, he found the claim of the plaintiff in suit number CS 212/99 not proved and very vexatious. He dismissed them accordingly.
In giving judgment to the plaintiff/respondent, the trial judge concluded at page 163 of the record of appeal as follows:
“From the totality of the evidence before the court, there is no doubt that the dwelling house in dispute including the whole of Plot No. 14C, Block “D” Breman-Kumasi was the self-acquired property the late Samuel Kwabena Antwi Agyei and as such upon his death, the whole house devolved unto his surviving spouse and their children in consonance with the provisions of PNDC Law 111”.
Against the whole judgment and cost awarded in favour of defendant in suit number LS 1/98, the defendant in suit number LS 68/95 and plaintiffs in suit numbers LS 1/98 and CS 212/99 appealed and prayed this court to set it aside. Initially, only the omnibus ground of appeal that the judgment is against the weight of evidence was filed.
From the record of appeal, Justice Kpentey took evidence in the matter from 23rd March 2004 to 22nd July 2005 (see pages 16 – 94). Thereafter, from 30th November 2005 to the date of judgment, Yaw Appau J and later JA (as he then was) heard the matter. There is no evidence on the record of appeal that before continuing with the hearing, Yaw Appau J (as he then was) formally adopted the previous proceedings which took place before Justice Kpentey. In an amended notice of appeal which is not on the record, the appellants made the non-adoption of the earlier or inherited proceedings by Yaw Appau the only ground of appeal and abandoned the omnibus ground of appeal filed originally.
In support of the ground of appeal, counsel for the appellants submitted that the omission or failure by Yaw Appau JA (as he then was) to make a formal order adopting the previous proceedings before he took further evidence and gave judgment rendered the judgment null and void. Counsel in the first place relied on the case of Awudome (Tsito) Stool vrs Peki Stool  SCGLR 681.
That case had a chequered history. But what is relevant for our purpose in this appeal is that a dispute was pending before the Stool Lands Boundaries Settlement Commission under the Stool Lands Boundary Settlement Decree 1973 (NRCD 172). With the coming into force of the Stool Lands Settlement (Repeal) Act, 2000 (Act 589), all the cases pending before the Stool Lands Boundaries Settlement Commission were transferred to the High Court, Accra unless completed before the Commission within eight months. This particular case could not be completed before the eight months elapsed.
The parties then appeared before the High Court, Accra. While the Peki Stool preferred the adoption of the proceedings before the Commission, the Awudome Stool insisted the trial should be started de novo. The trial judge agreed with the Peki Stool that the previous proceedings be adopted. He accordingly adopted the proceedings and ordered the trial to proceed. The Awudome Stool promptly appealed. The Court of Appeal affirmed the order of the High Court, but on further appeal to the Supreme Court, it unanimously allowed the appeal because:
“the established rule was that when a case has been transferred from one High Court to another, the parties had the option to adopt the proceedings or to have the trial started de novo. That was the common law rule which had been adopted and practised for many years in the courts of Ghana – Boama vrs Okyere  GLR 548 and Coleshill vrs Manchester Corporation  1 KB 776 cited”.
Further in answer to the argument that because the transfer of the suit has been effected by an Act of Parliament, the normal rules of the High Court on such transfers should not apply, the court held:
“… the common law rule, granting parties the right to adopt the proceedings or have the trial started de novo, was a well-established vested right, and if it had to be taken away, it has to be done in clear terms”.
Apart from the Awudome (Tsito) Stool vr Peki Stool case (supra), counsel for appellant also refered to the case of Adomako Anane vrs Nana Owusu Agyeman (Substituted by Nana Banahene) & 7 Ors. [2013-2014] SCGLR 241. The facts in the Adomako Anane case (supra) show that Roger Korsah J heard the entire evidence in the trial, listened to and recorded the closing oral addresses of the parties. Before he could deliver the judgment, he was transferred. S. S. Okunnor J who took over the case, without first adopting the proceedings before Roger Korsah J, gave judgment in the matter.
The Court of Appeal set aside the judgment for the sole reason that the proceedings before Roger Korsah J were not adopted by S. S. Okunnor J. The Court of Appeal then remitted the case back to the High Court for trial de novo. The parties faced with the problem of the death of all the witnesses who testified before Roger Korsah J, agreed to make written submission on points of law which they believed could dispose of the case.
The trial judge Debrah J agreed with them. Incidentally, he also failed to adopt the proceedings before he gave judgment in favour of the defendants/respondents based on the written submissions. At the hearing of the appeal in this court, it was submitted that since the parties agreed not to go through a trial de novo but to rely on legal arguments, the trial judge was right in law when he relied on the pleadings and not the proceedings which were not adopted.
But the learned justices of this Court, as I gleaned from excerpts in the Adomako Anane case (supra), in their judgment, considered the non-adoption of the proceedings by the trial judge as a procedural technicality which technicality should not prevent them from determining the appeal on its true merit. On that score, they held the view that since an appeal is by way of rehearing they were enjoined to take into consideration the entire record of appeal as settled in the court below and which was before them.
In spite of the position the learned justices took on the record of appeal, they also omitted to formally adopt the proceedings. But they determined the appeal on its merits by invoking rule 32(1) of the Court of Appeal Rules, 1997 (C.I. 19). The rule states:
“The Court may, in respect of an appeal before it, give a judgment and make an order that ought to have been made and to make a further or any other order as the case may require including an order as to cost”.
On further appeal to the Supreme court, the apex court commended the learned justices of the Court of Appeal for using the Rules of Court to define the legal rights of the parties which enabled them to determine the appeal on the merits. Yet still, the Supreme Court maintained that the previous proceeding should have been adopted before it was employed in the rehearing of the appeal. At page 7 of the judgment, the court stated:
“By evidence is meant evidence which properly speaking forms part of the relevant record. And yet we know that the evidence received by Korsah J had not yet been adopted as part of the record, while at the same time rule 31(1) of C.I. 19 does not make provision for adopting evidence received by a previous judge”.
The Adomako Anane case was a forty year old case. The court, finding that the record of appeal was reliable and the fact that the availability and or memory of the only parties and witnesses who may happen to be alive cannot be guaranteed, consequently adopted the proceedings and then proceeded to determine the appeal on its merits.
In this appeal, counsel for the appellants in his submission relied heavily on the fact of adoption of the proceedings by the apex court in the Adomako Anane case to urge on us to declare the judgment of the High Court null and void for the failure of Yaw Appau JA (as he then was) to adopt the previous proceedings before he continued the case to completion. Significantly however, although the High Court and Court of Appeal omitted to adopt the proceedings, the Supreme Court did not declare any of the consequent judgments null and void as urged on us.
Quite clearly, the position urged on us in this appeal by counsel for the appellants is the common law practice or rule which he acknowledged the apex court has departed from in what he called a revolutionary judgment in the Adomako Anane case (supra). According to the practice, a case started by one judge cannot be completed by another judge. The case had to be heard de novo unless the parties agree to adopt the previous proceedings.
In Stone’s Justices’ Manual (93rd Edition) at page 275, it is stated:
“The judicial discretion which a magistrate has to exercise in cases brought before him must be based upon the evidence taken before him, and it is not competent for him to act upon evidence taken before another magistrate”.
According to Stone, the practice is irregular and contrary to natural justice.
Having been baptized in the common law tradition, our courts have followed the practice consistently over the years. Thus in Boama vrs Okyere  GLR 548, where even the parties prayed the court to adopt the proceedings, the High Court observed that:
“Although the usual practice was to hear evidence afresh, the court did have power on the particular facts of the case so permitted, on grounds of convenience and expense to order that the evidence in the first trial be adopted in the second trial by consent of the parties”.
In his book, Practice and Procedure In The Trial Courts and Tribunals of Ghana (Volume his Lordship Justice Brobbey, JA (as he then was) at page 494, paragraphs 1175 and 1176, discussed various reasons why the present state of the law is quite unreasonable and advocated a change of the law either by legislation or judge made law (decided case). This court in Ebusuapanyin Kwesi Appiah (substituted by Opanyin Kofi Essibu) vrs Ebusuapanyin Kwesi Ackon unreported Civil Appeal No. 111/208/2005, echoed the same sentiments in the words of Anin Yeboah, JA (as he then was) that:
“Even though the non-adoption of evidence may cause hardship and injustice to one party, until the law is changed by statute or a decided case, the parties have to exercise their discretion to consent to the proceedings being adopted before trial can proceed from where it was stopped”.
The Awudome Stool vrs Peki Stool case (supra) was also thus decided based on the common law rule which has been practiced in our courts for many years. And as the court noted, notwithstanding the policy in the High Court (Civil Procedure) Rules, 2004 (C.I. 47) that trials should be expedited, a well-established procedure of the court should not be side-stepped.
As appeared from the report on the judgment the adherence to the practice of party-driven consent to adoption of previous proceedings before a new judge or else, a trial de novo led to a lengthy comment by the learned Editor of the Supreme Court Law Report. The comments highlighted why a party may not agree to the adoption of the previous proceedings before a new judge. On the other hand, he drew attention to situations why trial de novo is not feasible practically in most of such cases coupled with the delay in delivery of justice. In conclusion, he advocated an amendment to the High Court (Civil Procedure) Rules, 2004 (C.I. 47) to allow the judge in the exercise of his discretion to adopt the previous proceeding, especially where the previous proceedings is agreed to be reliable or authentic.
As appeared in the Adomako Anane case (supra), the comments of the Editor went down well with the Supreme Court. The court seized the opportunity by invoking the power conferred on it by Article 129(3) of the Constitution to depart from its previous decision where it appeared to be right to do so. In the Adomako Anane case (supra), the court in the interest of justice departed from its previous decisions which held that the adoption of a previous proceeding before a new judge is subject to the consent of the parties. At page 10 of the judgment, the Honourable Lady Chief Justice stated:
“We would, therefore state the law as follows:
In civil proceedings, the ultimate question of whether or not evidence already adduced before a previous judge be adopted should not rest on the parties’ consent. It should exclusively be at the discretion of the new judge who takes over the partly heard case”.
Her Lady Chief Justice held that in exercising his discretion to adopt the previous proceedings, the broad and primary concern of the new judge must be to ensure that the adoption does not result in any miscarriage of justice. She went on to enumerate factors which should underpin the new judge’s exercise of discretion to adopt a previous proceedings.
The only ground of the appellant’s dissatisfaction with the judgment in this appeal is that the previous proceedings before Justice Kpentey had not been adopted in accordance with the established common law practice. It is however the case of the respondent that the Supreme Court is now disposed towards judgments that go to the merits or roots of a case instead of technicalities. According to the respondent, her understanding is therefore that the courts in Ghana today will not punish a litigant for failure to comply with a procedure. For that reason, the omission or failure to adopt proceedings is no longer fatal but a mere technicality as demonstrated in the Adomako Anane case (supra).
Relying on rule 32(1) of the C.I. 19, the respondent submitted that this court can formally adopt the High Court proceedings as was done in the Anane case and proceed to rehear the matter based on the evidence captured in the proceedings for the reason that the said omission or failure is a mere irregularity. For that proposition, the submission relied on Friesland Frico Domo vrs Dachel Co. Ltd.  1 SCGLR 41 at 43.
In this appeal, it is important to stress that the merits of the judgment has not been attacked on any ground. Again, contrary to the submission of respondent’s counsel, the Supreme Court did not invoke rule 32(1) of C.I. 19 to adopt the High Court proceedings in the Adomako Anane case (supra). It exercised its powers under Article 129(3) of the Constitution to change completely the procedure for adopting previous proceedings from a party consent procedure to a court driven discretion.
Historically, the common law out of which the adoption procedure evolved is that part of English law which is unenacted but welded together by practice as contained in the decisions of the then royal courts as opposed to acts of parliament and subordinate legislation such as constitutional instruments. All three form basis of judgments when applicable. Thus in Harlley vrs Ejura Farms (Ghana) Ltd.  2 GLR 179 at 214, Taylor J (as he then was) said:
“In these courts we dispense justice in accordance with three and only three yardsticks: statute law, case law and the well-known practice of the courts”
Clearly, the failure or omission of Yaw Appau, JA (as he then was) to adopt the proceedings before Kpentey J was not a violation of any statute or subsidiary legislation. It was a non-compliance with a conventional practice which has been crystalised into an unbending rule by decisions of the courts. Similarly, by departing from the established common law practice in the Adomako Anane case (supra) by the Supreme Court, even without invoking Article 129(3) of the Constitution, no statute or subsidiary legislation would have been undermined.
Therefore the failure or omission to adopt the previous proceedings heard by Kpentey J, is nothing more than an omission to comply with an established rule of practice. On that score we are in agreement with the submission of the respondent that the failure or omission to adopt the previous proceedings is an irregularity which should not automatically invalidate or render null and void the judgment thereon.
This is because since the coming into force of the current High Court (Civil Procedure) Rules, 2004 (C.I. 47) decisions on the line of Azinogo vrs W. E. August and Co. Ltd. [1989/90] 2 GLR 278, CA are no more good law. For in rule 1(1) of Order 81 of C.I. 47, it is provided that:
“Where in beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these Rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall not (sic) be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceeding, or any document, judgment or order in it”.
The clearest exposition of the import of the rule is in Republic vrs High Court, Accra; Ex parte Allgate Ltd. (Amalgamated Bank Ltd. Interested Party) [2007/08] SCGLR 1041. In his summing up on what the rule means, Dr. Date-Bah JSC said at page 1054 that:
“… where there has been non-compliance with any of the rules contained in the High Court (Civil Procedure) Rules, 2004 (C.I. 47), such non-compliance is to be regarded as an irregularity that does not result in nullity, unless the non-compliance is also a breach of the Constitution or of a Statute other than the rules of court or the rules of natural justice or otherwise goes to jurisdiction”.
(In this instance, we equate the non-adoption of the previous proceedings as a non-compliance with a rule of court which directed a particular procedure).
Indeed, in none of the cases in which the appellate court declared a judgment by the new judge based on previous proceedings which was not adopted, a nullity. The clearest example is in the Adomako Anane case (supra). In that the case, the Court of Appeal only set aside the judgment and remitted the case to the trial court for trial de novo. If the Court of Appeal had not considered the omission to adopt an irregularity, its conclusion and orders would have been very different. And by the decision of the Supreme Court in the Adomako Anane case (supra), it is now put beyond doubt that the failure or omission to adopt a previous proceeding is an irregularity which will not render the completed proceeding automatically invalid. The fate of such a proceeding/judgment lies in the new trial judge in the exercise of his discretion.
We there hold the view that the submission by the appellants that the omission or failure to adopt the proceedings of Kpentey J by Yaw Appau, JA (as he then was) is not tenable as it is not now the position of the law. In our view, based on the decided cases, what appellants’ counsel should have urged on us is to set aside the judgment on the ground of non-adoption of the previous proceedings and remit the case back to the High Court for trial de novo or otherwise as happened in the Adomako Anane case (supra)
Although that is not prayer of the appellants, it is worth considering in the interest of justice. In determining whether such a prayer is available to the appellants, their conduct in the matter from the very first day the case came before Yaw Appau, JA (as he then was) to the date of judgment is a relevant factor. Also very relevant is the time the appellants have raised their complaint of non-adoption of previous proceedings, which is the first time on appeal.
With the coming into force of Order 81 of C.I. 47 and its exposition in the Ex parte Allgate Co. Ltd case (supra), the distinction between a mere irregularity and a nullity in procedure known under the repealed Order 70 of LN 140 A appeared to have vanished. But that does not mean a party cannot pray a court to set aside proceedings initiated or continued in violation of the rules. Unless a party is estopped by conduct or waiver, he can apply for relief in such a circumstance. And the court is obliged to set aside the proceedings as a matter of settled practice. But then the court’s attention must be drawn to the defect timeously and in good faith.
In the instant case, Yaw Appau, J (as he then was) for the first time sat on it on 30th September, 2005. On that day this is what counsel for the appellants herein told the court at page 96 of the record of proceedings:
“We have agreed to proceed the case was almost completed, the last day learned friend’s clerk died and so he was not in the best shape to continue and all that we are praying for is may be 1 or 2 days”.
At the next sitting, all the parties were present when the defendant in suit No. LS 1/98 gave evidence and was cross-examined by counsel for appellants. The appellants and their counsel thereafter participated fully in the proceedings until judgment was delivered against them.
Clearly, the court continued to take further evidence at the invitation of the appellant. The law is said to be in the bosom of the judge and the trial judge is presumed to know the proper procedure to adopt in such circumstances. The statement by counsel for the appellants that they have “agreed to proceed” goaded the trial judge to proceed in the usual way. That statement coupled with the appellants’ full participation in the trial is a strong indication that the appellants consented to the new judge continuing with the proceedings as if he had already adopted the previous evidence recorded by Kpentey J.
From reading of rule 2(a) and (b) of Order 81 of C.I. 47, an objection to a defect or irregularity in proceeding as in the instant case must be raised promptly. The promptitude in raising the objection would enable the court to intervene and issue directions for the efficient continuation of the case – see Obeng vrs Boateng  GLR 689. The court will not therefore intervene with the sole purpose of declaring the proceedings a nullity unless the defect or irregularity complained is an abuse of the process of the court.
By participating in the proceedings before the new judge without the slightest objection to any irregularity showed that the non-formal adoption of the previous evidence formally is an irregularity which could be waived and was indeed waived throughout the rest of the proceedings before the new judge – see Seyire vrs Anemema  2 GLR 32 at 47. Again by participating in the proceedings to completion, appellants have treated it as valid. It is therefore an abuse of the process of the court to cavil at its validity lately on appeal after waste of time and expense. Equitable principles of waiver or estoppel will not countenance such vacillation – see Clerk vrs Clerk  1 GLR 123, CA.
In practice therefore the following situations may preclude objections to non-compliance – taking part in the proceeding with knowledge of the irregularity and seeking an adjournment to call a witness as in Fah vrs Bediatuo  GLR 468 and taking part in the proceeding without raising the irregularity as in Inspector – Plastico Moulds Ltd. vrs Atico Ltd.  GLR 593 and Clerk vrs Clerk (supra). In this case, the appellants were represented by the same counsel at the trial court from the very beginning to the end. The objection now to the non-formal adoption of the previous proceedings before Kpentey J in this appeal is therefore belated, without good faith and will not be countenanced.
The objection will not be countenanced because it appeared to be what a lay person will term as excessive indulgence in technicality. This is so because in the submission of the appellants, they failed to show that they were prejudiced by the non-adoption of the evidence before Kpentey J as a result of which they have suffered a miscarriage of justice. And as a function of re-hearing the suit on appeal, I have perused the whole record of appeal. I did not find any prejudice to the appellants as a consequence of the lack of formal adoption of the previous evidence recorded by Kpentey J – see Armar vrs Armar, 21 April, 1969, CA  CC.73.
The courts assume jurisdiction over feuding parties to do justice between them. It is well known that in the adjudicatory process, statute law and rules of court are applied to the evidence to arrive at a judgment based on the merits. Although rules of court must be respected and complied with in the adjudicatory process, the courts are vigilant and guard against basing judgments on non-compliance of rules of procedure at the expense of justice. Several of such decisions abound in our law reports.
In Amankwa vrs Akwawuah & Ors.  1 GLR 324, the defendant objected to the jurisdiction of the local court in a land suit. His objection was overruled but he won the suit on the merits. The plaintiff appealed against the judgment on the very ground that the value of the land exceeded the jurisdiction of the local court. The learned High Court judge held:
“The contention of the plaintiff/appellant as to jurisdiction is impeccable, and as a matter of law wholly unanswerable. But it will be unjust to allow the appeal on this ground because (a) the plaintiff knew or must be deemed to have known all along that the local court had no jurisdiction yet he acquiesced in the court making an order which vested it with jurisdiction; (b) the defendants had been obliged to incur much trouble and expense in defending the case after they had been forced to submit to the court’s jurisdiction”.
By analogy, this is the case of the respondent in answer to the contention of the appellants on the issue of non-adoption of the previous proceedings. The appeal must therefore be dismissed
On the place of technicalities in the adjudicatory process, Kpegah J (as he then was), said in Kuma vrs Bart-Plange [1989/90] 1 GLR 119 at 128 that:
“I am aware that it is the duty of every court to ensure that in a given situation justice is done. Technicalities must not be permitted to frustrate this primary and all important function of the court if only the matter or decision lies within the discretion of the judge. To do otherwise, the judge may unwillingly be opting against justice and be seen to be in favour of technicality”.
On his part, Sowah JSC (as he then was) in his dissenting judgment in Darke IX vrs Darke IV [1984/86] 1 GLR 481 at 508, SC bemoaned what he called technical reliance on the rule of court by the majority when he said:
“It is sad that on important litigation involving the chiefs and people of two distinct communities be finally resolved by reliance on technicalities …”.
Then in the Republic vrs High Court, Accra; Ex parte Darke XII  2 GLR 688, Kpegah JA (as he then was) at page 801 cited the case of Pontin vrs Wood  1 QB 594 at 609, CA where Bowen LJ is quoted as having stated that:
“It may be asserted without fear of contradiction that it is not possible in the year 1887 for an honest litigant in Her Majesty’s Supreme Court to be defeated by any mere technicality, any slip, any mistaken step, in his litigation”.
Similarly, as held by the Supreme Court in Halle & Sons SA vrs Bank of Ghana & Warm Weather Enterprise Ltd.  1 SCGLR 378, in view of rule 79 of the Supreme Court Rules, 1996 (C.I. 16); rule 63 of the Court of Appeal Rules, 1997 (C.I. 19) and Order 81 of the High Court (Civil Procedure) Rules, 2004 (C.I. 47), it is not possible for an honest litigant in the courts in Ghana to be defeated by any mere technicality, any slip and any mistaken step in litigation.
In this appeal, apart from our finding that the sole ground of appeal that the judgment is null and void because of non-adoption of the previous proceedings before Kpentey J is belated, not brought in good faith and that the appellants on that ground suffered no miscarriage of justice, this court has the discretion to uphold or not to uphold the ground.
This is in view of the provision in rule 63 of C.I. 19 on “Waiver of non-compliance rules”.
The rule states:
“When a party to the proceedings before the court fails to comply with the Rules or with the terms of an order or the directions given or with a rule of practice or procedure directed or determined by the court, the failure to comply is a bar to the further prosecution of proceedings, unless the court considers that the non-compliance should be waived”.
As a function of our rehearing the suit on appeal, we deem the failure of the appellants to raise the non-adoption of the proceedings at the trial court as a waiver of an objection to the non-compliance to the age old practice of adoption of a previous proceeding before a new judge. And in view of the decision in Adomako Anane case (supra), the non-adoption of the previous proceedings is a mere irregularity which did not render the trial and judgment thereon a nullity. Accordingly, we adopt the proceedings on the record of appeal as continued from page 95 as valid and dismiss the appeal.