Tetteh Vrs Adamptey and Two Others [2023] GHADC 162 (1 March 2023)

IN THE DISTRICT COURT HELD AT SOMANYA ON WEDNESDAY THE 1ST DAY OF MARCH, 2023 BEFORE HIS WORSHIP MICHAEL DEREK OCLOO AGNES DEDE TETTEH VRS: 1. JULIANA ADAMPTEY 2. JACOB ADAMPTEY 3. KWAME AMOAKU } } SUIT NO: A9/09/2021 PLAINTIFF DEFENDANTS } } PARTIES : PRESENT CECILIA SARFO-MENSAH COUNSEL FOR PLAINTIFF : PRESENT DENNIS YAO TERKPERTEY ESQ. COUNSEL FOR DEFENDNATS : PRESENT RULING ON MOTION FOR OBJECTION AND REJECTION OF EVIDENCE ADDUCED TO WITNESS STATEMENT PURSUANT TO IRREGULARITIES The Plaintiff commenced the instant action against the Defendant for the following reliefs: 1. An order to compel 1st and 2nd Defendants to direct the 3rd Defendant to remove an erected facility that blocks the view of the Plaintiff’s shop which breaks an agreement between the Plaintiff and 1st and 2nd Defendants 2. General damages of GH¢5,000.00 against the Defendants from breaching paragraphs 1.4 and 2.4 of the settlement agreement between the 1st and 2nd Defendants and the Plaintiff. 3. Costs of litigation. Counsel for and on behalf of the Defendants made an oral submission in terms of objection and for rejection of evidence attached to the Plaintiff’s Witness Statements on the following grounds: 1. That the deed of agreement marked as Exhibit ‘D’ was not stamped. 2. That the stamped deed of agreement was filed after the objection had been raised. 3. That the deed of agreement filed on 16/9/2022 is a photocopy and not the original. 4. That the Plaintiff must produce the original for authentication. 5. That the deed of agreement filed on 16/9/2022 was not signed by the 1st and 2nd Defendants and that all the signatures on same were scanned from another document. 6. That the author(s) of the agreement filed on 16/9/2022 are not known. 7. That the parties in the deed of agreement filed on 16/9/2022 are illiterates and there was no jurat as such it fails to comply with the provisions in the illiterate protection Act. 8. That the attached photographs (Exhibit 2) have no indication of the date they were taken and the person who took them for the purpose of cross examination on same. In the written submission of counsel for and on behalf of the Plaintiff/Respondent she stated the following: 1. That if the Judge notices an omission of a stamp on an instrument he/she can order the stamping to be done in accordance with the provisions in section 32 (2) of the Stamp Duty Act, 2005 (Act 689) in which payment of the penalty payable would be made to the appropriate authority to pave way for the instrument or document in issue to be admitted in evidence. This provision was supported with the principles adduced in the case of Mary Tsotsoo Laryea And Others v. Amarkai Laryea in which a lease agreement was admitted in evidence subject to a direction that it shall be stamped within ten (10) days after judgment. 2. That the Plaintiff/Respondent filed the unstamped document (Exhibit P) due to inadvertence. 3. That the Plaintiff/Respondent has had the deed of agreement stamped and same has been filed. 4. That section 166 of the Evidence Act, 1975 (NRCD 323) provides that a duplicate of a writing is admissible to the same extent as an original of that writing. 5. That the deed of agreement (Exhibit P1) is a copy of an official record obtained from the registry of the Somanya District Court by the Plaintiff/Respondent and same has been duly authenticated in accordance with section 175 of the Evidence Act, 1975 (NRCD 323). 6. That section 51 (1) of the Evidence Act 1975 (NRCD 323) provides that relevant Evidence is admissible except as otherwise provided by an enactment. 7. That the deed of agreement was adopted as consent Judgment by the District Court Somanya on 30/3/2015. 8. That the deed of agreement is relevant. 9. That if the Defendants wish to contest the deed of agreement adopted as consent Judgment they have to lead evidence on same rather than objecting to its admission. 10. That section 139 of the Evidence Act 1975 (NRCD 323) provides that one of the ways of authenticating or identifying evidence is by the testimony of a witness with knowledge on same. 11. That the photographs (Exhibit P2) were taken by the Plaintiff herself and she can duly authenticate or identify the evidence by her testimony. In the case of NTIM V. BOATENG [1963] 2 GLR 97 it was held that an instrument which is liable to stamp duty, but unstamped, is inadmissible in Evidence. Also in the case of NARTEY V. MECHANICAL LLOYD ASSEMBLY PLANT LIMITEF [1987-88] 2 GLR 314 it was held that: “ A document that required stamp duty is inadmissible if it is not stamped” In the instant case counsel for the Defendants/Applicants raised an objection to the admissibility of the unstamped deed of agreement (Exhibit P) in Evidence. The objection is in order as same is enshrined in or supported by the provision in the Evidence Act 1975 (NRCD 323) and the Principles adduced in the above cited cases. It must be stated however that the cure for such omission or anomaly is provided in section 32 (2) of the stamp Duty Act, 2005 (Act 689) which provides as follows: If the instrument is one which may legally be stamped after its execution, it may, on payment at the amount of the unpaid duty to the Registrar of the Court or to the arbitrator or referee, and the penalty payable on stamping that instrument, be received in Evidence subject to just exception on other grounds. In the instant case Exhibit ‘P’ which is the Deed of Agreement is an instrument liable to stamp duty but was filed without stamping. The provisions in the above stated statue Law provides the Plaintiff/Respondent with the opportunity to cure the omission by paying the required unpaid amount in terms of duty to the appropriate designated authority for Exhibit ‘P’ to be admitted in evidence. Section 166 (a) of the Evidence Act 1975 (NRCD 323) provides as follows: A duplicate of a writing is admissible to the same extent as an original of that writing orders. a. A genuine question is raised as to the authenticity of the original or the duplicate or Also in the case of NAANA GYAMFUA ASANTE V. MAERSK GHANA LTD 28 GMJ 164 C. A 187 it was held that: “ A photocopy of a document is as good as the original and admissible for evidential purposes with reference to sections 165, 168 and 169 of NRCD 323. Counsel for the Defendant/Applicant contended that the Deed of Agreement field on 16/9/2022 is a photocopy as such it must be rejected since it is inadmissible in evidence. Counsel however failed to raise a genuine question as to the authenticity of the said Deed of Agreement as indicated in section 166 (a) of the Evidence Act, 1975 (NRCD 323). The import of the provisions in section 166 (A) and the cited case Law however provide a cure in terms of the issue of admissibility of a photocopy of an instrument on account of it being as good as the original. It must also be noted that the Deed of Agreement was adopted as a consent Judgment by this court differently constituted on 30/3/2015 as such the Defendants/Applicants can lead evidence to contest same rather than objecting to its admission. It is also appropriate to state that the photographs (Exhibit 2) have no date stated on same. In addition Counsel for Defendants/Applicants stated that the author or the one who took the pictures is not stated. Section 136 (2) of the Evidence Act 1975 (NRCD 323) provides as follows. Permissible means of authentication or identification include but are not limited to, those provided in section 137 to 161. Section 139 provides as follows: Authentication or identification may be by testimony that a matter is what its proponent claims. The Plaintiff in the instant case is the one who took the photographs as such she is the one who can duly authenticate or identify the Evidence (photographs) by means of her testimony. It must also be stated that the issue of jurat is adopted in the oath of proof in Exhibit P where it has been stated that the lessors can read and write. It is also important to make reference to the case of OBENG V. ASSEMBLIES OF GOD CHURCH GHANA [2010] SCGLR 300 where it was held that: “ ……to do substantial justice, there is the need to avoid more forceful technicalities and bring out the real issues in controversy for resolution”. It was further held in OBENG V. ASSEMBLIES OF GOD GHANA (Supra) whiles quoting the principle in Ghana Ports and Harbour Authority V. Issoufou [1993-94] 1 GLR 24 that: “……the Court had a duty to ensure that justice was done in cases before them and should not let the duty be circumvented by mere technicalities”. In the instant case the issues raised by way of objection are based on technicalities which are genuine however in the wisdom of the framers of the Laws (rules) the appropriate remedy or cure have been provided to pave way for the resolution of the real issuers in controversy. In the circumstance, I rely on the statute and case Laws cited to dismiss the objection raised by the counsel to Defendants/Applicants and order as follows: 1. That the Plaintiff/Applicant shall pay the appropriate duty for the instrument (Exhibit P) to be stamped and filed for admission in Evidence. 2. That the counsel for the Defendants/Applicants may Cross-Examine the Plaintiff/Respondent to establish the authenticity at Exhibit 2. (SGD) MICHAEL DEREK OCLOO DISTRICT MAGISTRATE 1/03/2023 F. T. 6