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  • appeal
  • 1960-05-30
  • GLR 138-139
  • Print



Practice?-Local court?-Immunity of witness from civil action.


In a case tried by the Native Court "B" of Enyan-Na-Breman the claim of the plaintiff in his writ of summons was as follows:"The plaintiff's claim is for the defendant to produce reasonable grounds why defendant in giving evidence in the case Kwa Etuaful v. Kobina Entsie before the Native Court "B" of Enyan-Na-Breman at Nkwantanum, defendant stated that a portion or all of plaintiff's ancestral land commonly known as and called Ohontonkur situate at Enyan Apaa is rather called Okyirmadaa, and that a portion of the said land is part and parcel of Okyirmadaa land which is alleged by defendant to have been sold by one late Okyir of Enyanmain to one late Otabil of Enyan Apaa, plaintiff's predecessor, whereas the said portion and the whole of Ohontonkur land, is publicly known as the ancestral property of the plaintiff's family."The trial court gave judgment for the defendant on the merits. The plaintiff appealed to the High Court. On the question of the competency of this action (with which this report is only concerned):


APPEAL from a decision of the Native Court " B " of Enyan-Na-Breman in favour of the defendant. The claim is set out in the headnote.

(His Lordship referred to the facts and continued).

There is however one matter of some importance which has made it necessary to give this considered written judgment-and that is whether the defendant-respondent was liable to be sued at all for anything said in the course of testifying as a witness in a court of law.

The position in English law has been explained in a number of leading cases, and it will be sufficient to refer to only one, namely, Watson v. M'Ewan and Watson v. Jones ([1905] A.C. at p.486) in which Halsbury L.C. said:

"By complete authority, including the authority of this House, it has been decided that the privilege of a witness, the immunity from responsibility in an action when evidence has been given by him in a Court of justice, is too well established now to be shaken. Practically I may say that in my view it is absolutely unarguable?-it is settled law and cannot be doubted. The remedy against a witness who has given evidence which is false and injurious to another is to indict him for perjury; but for very obvious reasons, the conduct of legal procedure by Courts of justice, with the necessity of compelling witnesses to attend, involves as one of the necessities of the administration of justice the immunity of witness from actions being brought against them in respect of evidence they have given. So far the matter, I think, is too plain for argument."

Our native courts (now local courts) are creatures of statute like the High Court and their procedure, at least so far as formal trial involving the use of witnesses is concerned is identical with the procedure of trial in the High Court and it appears to me that this fundamental principle as to the immunity of witnesses must apply to witnesses who give evidence before them also, i.e., the local courts. It follows that if nothing else happens beyond the mere giving of evidence, no right of action can arise against the witness for anything which he said whilst giving evidence. In my view it is only where possibly a claim to land made whilst giving evidence is repeated or insisted on after the person has ceased to be a witness, that the party disputing the claim can and may have his cause of action. In the case with which we are dealing however, nothing further appears to have happened after the evidence in court and there does not appear to have been a repetition out of court of the words complained of and it seems to me therefore that the plaintiff-appellant had no right of action against the defendant-respondent.

On that ground also, apart from the merits, I think the appeal was doomed to failure, and counsel took the only proper and honourable step in applying to withdraw it. It is accordingly hereby dismissed with costs 5 5s. to counsel for defendant-respondent.


<P>Appeal dismissed.</P>

Plaintiff / Appellant

R. J. Hayfron-Benjamin

Defendant / Respondent



Watson v. M' Ewan and Watson v. Jones [1905] A.C. 480.

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