Arguing Points of Law Under The Omnibus Ground Of Appeal: The Decision in Owusu Domena v Amoah Revisited.

Introduction

Grounds of appeal are the complaints in a judgment which touch upon issues of fact, law or procedure in a case, which if upheld will lead to an appeal being allowed. The grounds of appeal are the alleged errors of law or fact constituting the defects in the judgment and which are relied on to set aside the judgment. They are the reasons why the appellant considers the judgment to be wrong. They isolate and accentuate for attack the basis of the reasoning of the decision being challenged. Grounds of appeal must therefore not relate to the obiter, but to the judgment. A notice of appeal without grounds of appeal is incompetent and must be dismissed.[1]

The omnibus ground of appeal is the oft-quoted “the judgment is against the weight of evidence”. The grounds of appeal should contain specific errors identifying where the trial judge erred in the exercise of its discretion. A proper ground of appeal should state what should have been considered which was not and what extraneous matters were considered which should not have been.

When the omnibus ground of appeal is the sole ground of appeal it places so much burden on the appellate court and may lead to delay in the process. This is because the appellate court will have to comb through the records of appeal, review the evidence and identify the specific areas the trial judge erred before coming out with the court’s opinion on the merits or otherwise of the appeal. There are legion of authorities on the obligation placed on an appellant where he alleges that the judgment is against the weight of evidence. I shall consider few cases for the purposes of this article.

In Abbey & Others v Antwi[2] , Dotse JSC said:

“It is now trite learning that where the appellant alleges that the judgment is against the weight of evidence, the appellate court is under an obligation to go through the entire record to satisfy itself that a party’s case was more probable than not.”[3]

Also in Djin v Musah Baako[4], the Supreme Court per Aninakwah JSC (as he then was) opined that:

“it has been held in several decided cases, and the authorities are many, that where an appellant complains that the judgment is against the weight of evidence, then he is implying that there were certain pieces of evidence on the record which if applied in his favour could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.”

It has been a common practice lately that most lawyers are not able to formulate a good grounds of appeal to meet the threshold contained in Rule 8(2) of CI 19 thereby hiding the omnibus ground of appeal.  In the case of Republic v High Court (Human Rights Division) Accra; Ex parte Akita (Mancell-Egala & Attorney-General Interested Party)[5] , the Supreme Court per Brobbey JSC stated the need for counsels to be specific in the preparation of grounds of appeal as follows: “When preparing an appeal, the rules required, as made manifest in rule 8(2) of CI 19 that the appellant should be specific in what he was seeking by way of relief from the appellate court.”

Thus lawyers normally hide under the omnibus ground that “the judgment is against the weight of evidence” with the aim of arguing both facts and points of law instead of being specific in their formulation of a ground of appeal. This practice was admonished by Amegatcher JSC in Atuguba and Associates v Sciopion Capital (UK) Ltd and Another[6]  as follows:

“..The omnibus ground has been a hideout ground. The responsibility in even minor appeals is shifted to the appellate judges to comb through the records of appeal, review the evidence and identify the specific areas the trial judge erred before coming out with the court’s opinion on the merits or otherwise of the appeal. The situation is worrying where no viva voce evidence is proferred and a judge is called upon to exercise judicial discretion, such as application for injunction, stay of execution, amendment, joinder, judicial review, and consolidation, just to mention a few. In our opinion, though the rules allow the omnibus grounds to be formulated as part of the grounds of appeal, it will greatly expedite justice delivery if legal practitioners formulate specific grounds of appeal identifying where the trial judge erred in the exercise of a discretion. A proper ground of appeal should state what should have been considered which was not and what extraneous matters were considered which should not have been. We believe this approach will better serve the ends of justice and lessen the use of the omnibus ground particularly in interlocutory matters and in the exercise of judicial discretion….”

Also in In Re; Suhyen Stool; Wiredu & Obenwaa v Agyei & Others[7], a chieftaincy matter from the Judicial Committee of the National House of Chiefs, the Supreme Court disapproved the unhelpful practice of throwing in an omnibus ground of appeal as a backup; even where there had been little difference in the evidence or the facts as submitted by both parties to the suit

This article is to discuss the effect of the decision in the Owusu-Domena case supra and whether it has eroded the decisions in Tuakwa v Bosom[8] and Brown v Quarshigah[9]. In other words, is it the law that points of law together with facts can always be argued under the omnibus ground of appeal as erroneously interpreted by some practitioners in the Owusu-Domena case infra or it is an exception to the Brown case? However, this article does not condemn the formulation of the omnibus ground of appeal that “the judgment is against the weight of evidence” as unacceptable. According to the author it places so much burden on the appellate court thereby leading to delay in the delivery of judgments.

Analysis

In an earlier decision of the Supreme Court in Brown v Quarshigah, supra the Supreme Court per Dr Twum JSC held as follows:

“The jurisdiction of the appellate court is available but the rule of practice in our courts is that the plaintiff must invoke it by filing appropriate grounds of appeal, distinguishing the so-called omnibus ground from misdirection or errors of law, challenge to jurisdiction or capacity, etc. I have carefully read the authorities cited by learned counsel for the plaintiffs and I am unable to find any support for the stand taken by him in those authorities. In my view, a party who only gives notice that he intends to rely on the so-called omnibus ground should not be permitted to argue points of law.”

In an earlier decision of the Supreme Court in Republic v Central Regional House of Chiefs & Ors; Ex parte Gyan IX (Andoh X Interested Party)[10] the Supreme Court per Akamba JSC restated the position in the Brown case as follows:

“When a party relies on the omnibus ground of appeal that the judgment is against the weight of evidence, it empowers the appellate court to rehear the matter, not in a literal manner, but to take another look at the evidence and to analyse the whole record of appeal before doing so. In so doing, the appellate court takes into account the testimonies and documentary evidence at the trial and arrives at its own decision after satisfying itself on a preponderance of probabilities whether the conclusions of the trial judge are reasonably or amply supported by the evidence. Thus a ground of appeal based on the omnibus ground of appeal does not permit reliance or arguments on points of law. The rules make specific provisions for invoking arguments on points of law which must be adhered to.”

Twum JSC’s proposition of the law was restated by the Supreme Court a decade later in the case of In re Asamoah (Decd); Agyeiwaa & Others v Manu[11]. In that case, a notice of appeal to the Supreme Court by the appellants stated as the ground of appeal the omnibus ground that the judgment was against the weight of evidence. It further stated that the court erred when it held that in the absence of a counterclaim it could not grant appellant’s relief. Then, finally, that further grounds of appeal would be filed upon receipt of the record of proceedings. The appellant in that case did not apply for leave to argue additional grounds of appeal on receipt of the record of appeal in compliance with rule 6 of the Supreme Court Rules, 1996 (CI 16), and none was filed. However, in their arguments contained in their statement of case, the appellant abandoned the grounds filed in their notice of appeal and proceeded to argue grounds fashioned as “issues presented.”

The court speaking through Akamba JSC at 917-918 citing Brown v Quarshigah supra held as follows:

“This court has clarified the position as to what is entitled when an appellant places reliance upon the omnibus ground of appeal, namely; the judgment is against the weight of evidence…In the view of this court, a party who only gives notice that he intends to rely on the so-called omnibus ground should not be permitted to argue points of law. In short, an appeal based on the omnibus ground, allows a party to argue solely issues or points of fact; it does not permit reliance on arguments on points of law. The rules make specific provisions for invoking arguments on points of law which must be adhered to. We would in this context, barring any exceptional reasons, limit discussions on this ground to any dissatisfaction of finding of facts, if any.”

These decisions of the Supreme Court seem to throw more light on the ratio stated the Brown case as the true position of the law. This in my view makes the decision in the Owusu-Domena case an exception to the rule.

Facts in the Owusu-Domena case

The defendant Ben Owusu-Domena, an employer of the plaintiff Eric Kwame Amoah, caused a publication to be made in the National Newspaper The Daily Graphic concerning the plaintiff. The publication was repeated in the 12 November 2009 edition of The Daily Graphic. The plaintiff complained that the said publication had damaged his reputation and also diminished his chances of finding employment on the job market after his dismissal as the manager of the defendant’s Machine shop. The plaintiff therefore sued the defendant in the High Court, Accra. The reliefs endorsed on the writ of summons were, inter alia (I) declaration that the publication caused by the defendant in The Daily Graphic concerning the plaintiff was malicious and reckless; and (ii) punitive and exemplary damages against the defendant for the malicious and reckless publication. The trial High Court dismissed the plaintiff’s claim on the ground that publication was justified in the sense that the defendant had just sought to protect his business interest and that no malice or recklessness could be imputed from the publication. The plaintiff appealed to the Court of Appeal which allowed the appeal and found evidence of malice and recklessness in that the publication was defamatory of the plaintiff. The Court of Appeal thus awarded GHC 50,000 damages against the defendant. The defendant in turn appealed to the Supreme Court from the judgment of the Court of Appeal on the sole ground that the judgment is against the weight of evidence….

Decision of the Supreme Court

The Court per Benin JSC held:

“The sole ground of appeal that the judgment is against the weight of evidence, throws up the case for fresh consideration of all facts and law by the appellate court. We are aware of this court’s decision in Tuakwa v Bosom on what the court is expected to do when the ground of appeal is that the judgment is against the weight of evidence.  The decision in Tuakwa v Bosom, has erroneously been cited as laying down the law that, when an appeal is based on the ground that the judgment is against the weight of evidence, then, only matters of fact may be addressed upon. Sometimes, a decision on facts depends on what the law is on the point or issue. And even the process of finding out whether a party has discharged the burden of persuasion or producing evidence is a matter of law. Thus when the appeal is based on the omnibus ground that the judgment is against the weight of evidence, both factual and legal arguments could be made where legal arguments would help advance or facilitate a determination of the factual matters. The court’s decision in Attorney-General v Faroe Atlantic Co. Ltd[12] cited by counsel for the respondent, is apt on this point.”

In the authors view, the Domena case seem to have eroded the ratio in the Tuakwa case and the Browncases. The decision has departed from the ratio in both cases and therefore ceases to be good law. However, the earlier Supreme Court cases[13] on this subject seem to affirm the ratio in the Brown and Tuakwa cases supra. The question is what is position of the law on this subject and is Owusu-Domena case the true position of the law in a situation when an appellant formulate an appeal on the sole ground that the judgment is against the weight of evidence? Or is it an exception to the rule? This view was addressed in a more recent decision of the Supreme Court in Atuguba & Associates v Holam Fenwick Willian LLP[14] the court per Amegatcher JSC held:

“based on the exception given by this court in the Owusu-Domena case supra, the current position of the law may be stated that where the only ground of appeal filed is that the judgment is against the weight of evidence, parties would not be permitted to argue legal issues if the factual issues do not admit of any. However, if the weight of evidence is substantially influenced by points of law, such as the rules of evidence and practice or the discharge of that burden of persuasion or producing evidence, then points of law may be advanced to help facilitate a determination of the factual matters. The formulation of this exception is not an invitation for parties to smuggle points of law into their factual arguments under the omnibus ground. This court would, in all cases, scrutinize such points so argued within the narrow window provided.”

This decision has clarified the ratio in the Owusu-Domena case. It has affirmed the Brown and Tuakwacases as the true position of the law. However, the Owusu-Domena case provides a useful tool when the factual issue is seriously grounded in law and in that case the Brown and Tuakwa cases cannot be strictly applied.

Another issue worth discussing is that, can the omnibus ground that the judgment is against the weight of evidence be invoked in interlocutory appeals?

Interlocutory appeals are not final decisions because no evidence had been led on it before it was decided. In Asamoah v Marfo[15], the judgment that was delivered was a default judgment in which no evidence was taken. The Supreme Court found it strange for counsel for the appellant to appeal against the judgment for being against the weight of evidence and dismissed that ground as unmeritorious.

Also in Fenu & Others v Attorney-General[16], the Supreme Court per Anin Yeboah JSC (as he then was) held:

“It needs be noted that omnibus ground is usually common in cases in which evidence was led and the trial court was enjoined to evaluate the evidence on record and make its findings of facts in appropriate cases. In cases in which no evidence was led but the order which has been appealed is interlocutory, such ground of appeal is not canvassed at all.[17] Quite obviously, this ground of appeal in this matter is, without doubt, misconceived and same is hereby struck out as there were no disputed factual matters which called for findings by the lower court which merely determined the application for stay of proceedings on affidavit evidence that was not controverted.”

Conclusion

The omnibus ground of appeal that the judgment is against the weight of evidence is settled in the Atuguba and Another v Holam Fenwick Willian LLP case supra. The Owusu-Domena case is an exception to the rule. Therefore lawyers should be circumspect when formulating their ground of appeal in the notice of appeal. The omnibus is not the place where parties try to smuggle points of law into their factual arguments. The ground of appeal should be specific in what the party is seeking by way of relief from the appellate court. Where a party states an error committed by the trial judge, the party need to provide particulars of those errors. Hiding under the omnibus ground that the judgment is against the weight of evidence leads to delay because the court has to comb through the records of appeal, review the evidence and identify the specific areas the trial judge erred before coming out with the court’s opinion on the merits or otherwise of the appeal even though it is allowed under the rules. This was admonished by Amegatcher JSC in Atuguba and Associates v Sciopion Capital (UK) Ltd and Another supra thus: “…it will greatly expedite justice delivery if legal practitioners formulate specific grounds of appeal identifying where the trial judge erred in the exercise of a discretion…”

[1] Adu-Gyamfi, D. Appellate Practice in Ghanaian Courts (Principles and Procedure), P.67

[2] [2011] 26 GMJ 151 SC

[3] This principle was also referenced by her Ladyship, Sophia Akuffo JSC (as she then was) in the case of Tuakwa v Bosom [2001-2002] SCGLR 61

[4] [2007-2008] SCGLR 686

[5] [2010] SCGLR 374

[6] [2019] 139 GMJ 1 SC

[7] [2005-2006] SCGLR 424

[8] [2001-2002] SCGLR 61

[9] [2003-2004] SCGLR 930

[10] [2013-2014] 2 SCGLR 894

[11] [2013-2014] 2 SCGLR 909

[12] [2005-2006] SCGLR 271 at page 306 per Georgina Wood JSC (as she then was)

[13] In re Asamoah (Decd); Agyeiwaa & Others v Manu and Republic v Central Regional House of Chiefs & Ors; Ex parte Gyan IX (Andoh X Interested Party

[14] [2018-2019] 1 GLR 1 SC

[15] [2011] 2 SCGLR 832

[16] [2019] 130 GMJ 179 SC

[17] This has been settled long ago by this court in three notable cases to wit; Republic v Conduah; Ex parte Aaba substituted by Asmah [2013-2014] SCGLR 1032; In Re Suhyen Stool; Wiredu & Obenewaa v Agyei & Ors [2005-2006] SCGLR