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MANSAH v. NIMO AND OTHERS


  • New
  • 1961-07-27
  • HIGH COURT
  • GLR 511-512
  • Print

ADUMUA-BOSSMAN, J.


Summary

Procedure?-Failure of court to allow cross-examination?-Local Courts (Procedure) Regulations, 1959, regulation 82. [p.512]

Headnotes

In an appeal from the decision of the New Juaben Local Court, there was no record that after the first defendant and the second co-defendant had spoken in chief the local court invited the first co-defendant to cross-examine them. The court relied on their evidence and gave judgment for the plaintiff. On appeal to the High Court.

Judgement

In this appeal against a judgment of the New Juaben Local Court in favour of the plaintiff-respondent up-holding her claim to (a) declaration of title, and (b) recovery of possession of a plot of land situate at a locality called Betom in Koforidua on which has been erected a permanent block building by the second defendant Afua Brofoyedru and her late mother (according to the local court's own findings), the crucial portion of the judgment of the court was in the following terms:

"This court has considered the evidence of the first defendant and second co-defendant, (and) there was justification that the plaintiff is entitled for possessory right, because it is abundantly clear that there was condition attached to the gift that at anytime that defendant Opanin Kofi Nimo intended to put up a permanent building on the land, he should contact the plaintiff for new arrangement and first defendant failed, which failure he has appreciated in his statement."

On turning to examine the respective evidence of the first defendant and the second co-defendant, we find the same to be evidence contrary to regulation 82 of the Local Court (Procedure) Regulations1 which provide that: "The other party shall then be entitled to cross-examine such witness:?-?" The trial local court did not in the case either of the first defendant or the second co-defendant, after each had given evidence-in-chief, invite the first co-defendant-appellant to cross-examine. Learned counsel for the plaintiff-respondent has conceded that in these circumstances, the decision of the court founded upon those "improper evidences" cannot be sustained. The appeal therefore is hereby allowed, the judgment of the local court set aside and the suit remitted for hearing de novo by a fresh panel.

As to costs, it is hereby ordered that the costs abide the trial de novo, but in the meantime it is assessed at G41 2s. Od. including 30 guineas counsel's fee for the co-defendant -appellant, and G35 9s. 6d. including 30 guineas counsel?'s fee for the plaintiff -respondent.

Decision

<P>Case remitted for re-hearing.</P>

Plaintiff / Appellant

Dr. de Graft-Johnson

Defendant / Respondent

Dr. J. B. Danquah

Referals

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