THE REPUBLIC VRS OPUNI (J3/01/2024) [2024] GHASC 37 (19 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D. 2024 CORAM: SACKEY TORKORNOO (MRS.) CJ (PRESIDING) OWUSU (MS.) JSC PROF. MENSA-BONSU (MRS.) JSC GAEWU JSC DARKO ASARE JSC CRIMINAL APPEAL NO. J3/01/2024 19TH JUNE, 2024 THE REPUBLIC ………. APPELLANT /RESPONDENT VRS 1. STEPHEN KWABENA OPUNI RESPONDENTS/APPELLANTS 2. SEIDU AGONGO 3. AGRICULT GHANA LTD JUDGMENT DARKO ASARE JSC: 1. My Lords, the fundamental question argued upon the hearing of this appeal is one of some considerable importance. It touches closely the question whether de novo proceedings are obligatory in criminal cases upon judicial reassignment, 1 | Pag e and whether it constitutes a longstanding judicial practice that has been entrenched by precedent and can only be overturned by statute. 2. The appeal before us stems from a judgment of the Court of Appeal wherein the learned Justices of Appeal reversed the trial court’s decision to commence the instant case de novo, following reassignment to the current trial Judge after the previous trial Judge’s retirement. 3. The facts germane to this appeal have been adequately set out in the judgment of the Court of Appeal, and we would only highlight the salient points necessary for the determination of the issues raised in this appeal. 4. At the criminal trial pending in the High Court, Accra, the Appellant a former Chief Executive Officer of Cocobod has been charged together with two others on various counts including abetment of crime, defrauding by false pretences and willfully causing financial loss to the state of Ghana. The trial of the Accused persons commenced in 2018, and at the close of the Prosecution’s case, the trial court ruled that the Prosecution had established a prima facie case against the Appellant and the other accused persons in respect of most of the charges preferred against them, whereupon they were ordered by the trial court to open their defence. After a series of unsuccessful applications both before the trial court and the Supreme Court, the Appellant finally opened his defence. 5. During the course of the trial, the then presiding trial Judge proceeded on retirement and the case was reassigned to a different trial Judge. At that stage, the Respondent applied for the proceedings to be adopted and for the suit to take its normal course. This application was however vigorously resisted by the Appellant who urged the trial court to start the trial de novo. After hearing submissions by learned Counsel for the Parties, the learned trial Judge expressed himself as having found favour with the position taken by the Appellant. He directed that the case be started de novo. Obviously aggrieved and dissatisfied with the decision of the trial court the Respondent successfully lodged an appeal to the Court of Appeal. 6. The Court of Appeal upheld the Respondent's appeal, set aside the ruling of the trial High Court, ordered the trial court to adopt the proceedings so far 2 | Pag e conducted, and continue with the hearing of the case. It is against the decision of the Court of Appeal that the Appellant has filed this instant appeal, inviting us to say that the decision was erroneous. He formulates the following grounds of appeal:- a) The learned Judges committed an error of law when they held that the trial judge exercised his discretion wrongly when he ordered the case to be started de novo Particulars of error of law i) The settled practice in criminal law is that when a pending criminal case is assigned to a new judge, the judge is obliged to start the case de novo ii) Settled practices of the courts can only be changed by statute b) The learned Judges erred when they held that in view of the fact that the case has been on the cause list since 2018, the exercise of the trial court’s discretion to start the trial de novo was not proper but arbitrary, capricious uninformed and contrary to the policy rationale of Article 296 of the 1992 Constitution. c) The learned judges erred when they substituted the discretion if the trial judge to start the trial de novo with their discretion d) The learned judges committed an error of law when they refused to follow the binding decision of the full bench of the Court of Appeal sitting as the Supreme Court in the case of Harlley v Ejura Farms [1977] 2 GLR 179 to the effect that settled practices of the courts can only be changed by statute Particulars of error of law i) Article 129(3) of the 1992 Constitution states that the Court of Appeal and all lower courts are bound by the decision of the Supreme Court on questions of law e) The learned judges erred when they ordered the trial court to adopt proceedings on the grounds that the accused persons have a right to a speedy trial under the 1992 Constitution f) The learned judges erred when they disregarded the effect of the observation of the demeanour of witnesses in a criminal trial g) The entire ruling cannot be supported having regards to the evidence 7. Even though there was an indication to file additional grounds of appeal upon receipt of the trial court’s Ruling none was filed. 3 | Pag e 8. The relief sought by the Appellant was for a reversal of the judgment of the Court of Appeal and for the Ruling of the trial court to start the case de novo restored. Consideration of Issues 9. As we proceed with this re-hearing, we recognize that the ground of appeal alleging that the Court of Appeal’s decision cannot be supported having regard to the evidence on record, requires us to undertake a comprehensive review of the entire record, in order to determine whether the judgment under appeal is justified by the evidence and the applicable law, before forming our own conclusions. See the succinct views of Francois JSC in the case of Appiah v. The Republic [1987–88] 2 GLR 377 at page 381. See also Republic v Osei Kwadjo II [2007-2008] SCGLR 1148 at page 1160, and Dexter Johnson v The Republic [2011] SCGLR 1. The view has long been held that to succeed, Appellant assumes the duty to properly demonstrate to this Court the lapses in the judgment under appeal, and to establish that there were certain pieces of evidence or materials on the record which, if applied could have changed the verdict in his favour, or that there are certain pieces of evidence or applicable principles of law, that had been wrongly applied against him, thereby occasioning a grave and substantial miscarriage of justice. See the views of Dordzie JSC in John Cobbina v The Republic [2019-2020] 2 SCLRG 506 at 517. Arguments by Learned Counsel for the Appellant 10. Learned Counsel for the Appellant contests the judgment of the Court of Appeal first on the ground that the decision was erroneous because it failed to endorse a blanket mandatory practice of de novo trials upon judicial reassignment, regardless of circumstances or judicial discretion. According to learned Counsel the Court of Appeal fell into grave error when it relied on the principles applicable only to civil trials in the case of Agyemang (Substituted) by Banahene & Ors v Anane [2013-14] 1 SCGLR 241, when it ought rather to have allowed itself to be bound by cases like The Republic v High Court (Criminal Division) Accra; Ex Parte Stephen Kwabena Opuni – Civil 4 | Pag e Motion No. J5/87/2022 dated the 24th January 2024, which decided that de novo trials in criminal cases had evolved into a binding settled common law practice, sanctioned by Article 11 of the 1992 Constitution. Citing cases like Harlley v Ejura Farms [1977] 2 GLR 179, the argument was further advanced that being a settled judicial practice, de novo trials in criminal cases can only be overturned by statute. 11. Learned Counsel next contended that by reversing the trial court’s order for a de novo trial, the Court of Appeal had wrongfully interfered with the learned trial Judge’s exercise of discretion, since sufficient material existed on the record to justify the discretionary conclusions reached by the trial court. It was further argued by learned Counsel that the Court of Appeal erred by failing to accord proper significance to witness demeanour, a crucial factor in determining whether or not to order a de novo trial, as mandated by section 80 of the Evidence Act 1975, NRCD 323, and thereby committed a grave error. Finally, learned Counsel for the Appellant strenuously contended that the Court of Appeal neglected to peruse the entire record of appeal before handing down its judgment, and this constituted a grave error which rendered the judgment faulty. Arguments by Learned Counsel for the Respondent 12. In response, learned Counsel for the Respondent generally argued in favour of the Court of Appeal’s judgment and said that the Appellant’s rigid characterization of de novo trials in criminal cases was grossly misconceived. According to learned Counsel for the Respondent the statements relied on by learned Counsel for the Appellant in Ex Parte Stephen Kwabena Opuni (supra) and Harlley v Ejura Farms (supra) in support of the rigid characterization of de novo trials, were all obiter and lacked binding effect. Learned Counsel next disputed the Appellant’s contention that the interference with the trial court’s discretion was wrongful. According to learned Counsel for the Respondent the learned trial judge had fallen into egregious error by exercising his discretion on matters which were extraneous and irrelevant whilst failing to give due or sufficient weight to more cogent matters on the record. Learned Counsel for the Respondent next disagreed with the premium placed on witness demeanour as a device for assessing credibility and argued that it was only one of many factors stipulated under section 80 of the Evidence Act 1975 (NRCD 323) for assessing credibility, In any event so argued learned 5 | Pag e Counsel, decisions such as Agyemang (Substituted) by Banahene & Ors v Anane (supra), now put it beyond doubt that witness demeanour is no longer a pivotal consideration for assessing witness credibility. Learned Counsel for the Respondent finally dismissed as completely misconceived, the argument that the learned Justices of Appeal had failed to peruse the record of appeal in its entirety, which therefore vitiated their judgment. CONSIDERATION OF ISSUES 13. Learned Counsel for the Appellant elected to argue grounds (a) and (d) together and we would likewise dispose of those grounds in the same manner. GROUNDS (a) and (d) 14. Preliminary to considering the substantive merits of this limb of the appeal, we think it is necessary to dispose of a threshold issue, touching on the foundation upon which ground (a) has been anchored. 15. A close study of the particulars of errors of law accompanying ground (a) of the appeal suggests that the Appellant’s major cavil against the judgment of the Court of Appeal was founded on the allegation that it had reversed a decision by the trial court to the effect that de novo trials are obligatory in all criminal cases of judicial reassignment, without exception or consideration for context or judicial discretion. But was that the position taken by the trial court which resulted in the appeal before the Court of Appeal? 16. This is what the trial court said with regards to de novo trials in criminal cases in its judgment dated the 4th of April 2023:- “After having reviewed the above cases on the subject and bearing in mind the decision of the Supreme Court in Agyemang (Substituted) by Banahene & Ors v Anane (supra), which dealt with the civil case position, I see no problem why the reasoning of the Supreme Court in Agyemang (Substituted) by Banahene & Ors v Anane (supra), should not be applied mutatis mutandis to part heard criminal cases where the decision to adopt proceedings should be left at the discretion of the 6 | Pag e judge and not tied to the agreement of the parties. I will therefore proceed on that tangent going forward” (emphasis) 17. It seems too plain for argument or dispute that the learned trial Judge was here saying that de novo trials upon judicial reassignment rested with the sole discretion of the trial judge. That was why the appeal lodged against the judgment of the trial court to the Court of Appeal, only assailed the manner in which the learned trial judge had exercised his discretion in the court below. The appeal was certainly not directed at any pronouncement by the trial court to the effect that de novo trials are obligatory in all criminal cases after judicial reassignment. In effect the appeal before the Court of Appeal turned strictly on a question of improper exercise of discretion by the trial court. 18. On that score, it seems plain to us that the Court of Appeal properly appreciated the nature of the core issue raised in the appeal before it, when it commenced its judgment by the quite perceptive statement thus:- “My Lords, this appeal is in a very narrow compass, bordering on interference with the exercise of judicial discretion” 19. In the course of its judgment the Court of Appeal revisited the same position in the following words:- “Although the lower court correctly stated the principles that it has the discretion to either adopt or not to adopt the proceedings, it went off course and erred in the final analysis violating the duty to be fair and candid” 20. In the end the Court of Appeal reversed the Ruling of the trial court not because of any pronouncement by the trial court to the effect that de novo trials are obligatory in all criminal cases after judicial reassignment, but because the exercise of the trial court’s discretion to start the case de novo was “arbitrary”, “capricious” and “uninformed”. 21. Based on the above analysis, and inasmuch as both the trial Court and Court of Appeal concurred that de novo trials in criminal cases rest solely within the trial court's discretion, we are constrained to hold that the Appellant's ground (a) is predicated on a faulty legal premise, erroneously assuming that the Court of Appeal had reversed the trial court's endorsement of a blanket mandate for de 7 | Pag e novo trials without regard to context or discretion. As ground (a) proceeds from a flawed legal basis, it is substantially deficient and without merit. 22. While our prior analysis could have supported a summary dismissal of ground (a) of the appeal, learned Counsel for the Appellant argued this point with such force and earnestness that we feel compelled to engage with the substance of this argument in recognition of his exceptional advocacy. 23. Now, intrinsic in learned Counsel for the Appellant’s arguments in support of grounds (a) and (d) of the appeal, are two main propositions of the law. The first is that de novo proceedings in all pending criminal cases upon judicial re- assignment, is reflective of an inflexible common law practice which was endorsed by this Court in the case of The Republic v High Court (Criminal Division) Accra; Ex Parte Stephen Kwabena Opuni (supra) and therefore became binding on the Court of Appeal. The second proposition is that being a settled common law practice, de novo trials of criminal cases can only be reversed by statute, as held in the case of Harlley v Ejura Farms Ltd (supra). These two propositions must be examined in turn. Argument that de novo trials have now evolved into an Inflexible settled practice in criminal cases 24. Lying at the heart of this instant appeal is learned Counsel’s sweeping proposition that in a criminal trial, a partly heard case which for any reason cannot be continued by a trial judge hearing the matter has to be commenced de novo by a new trial Judge as established by binding precedents like the case of The Republic v High Court (Criminal Division) Accra; Ex Parte Stephen Kwabena Opuni (supra). 25. Learned Counsel summed up his arguments in his Statement of Case as follows:- “We state that in criminal matters the established practice is for a new Judge to start de novo in cases where the trial Judge for any reason is unable to continue with the hearing of the case. This practice of the court has been followed by all courts and this is the existing position, which is also the common law position” 8 | Pag e 26. Now, since the gravamen of learned Counsel’s arguments in favour of a de novo trial appears to rest substantially on the binding effect of the Ex Parte Stephen Kwabena Opuni (supra), we think it is important to first address the issue, whether that decision constitutes a truly binding and precedential authority, crystallizing a long-held common law practice of de novo trials into settled law. 27. In the Ex Parte Stephen Kwabena Opuni case (supra) Dotse JSC referring to the earlier decision of this Court in the case of Awudome (Tsito) Stool v Peki Stool [2009] SCGLR 681, proceeded as follows:- “The Supreme Court did not mention its application to the criminal cases. There is also no specific legal provision on whether part heard trials must start de novo or be adopted by the new Judge. The practice for now is that, in criminal trials, the practice is to start trials de novo.” 28. Pertinently, learned Counsel’s argument that the above statement by Dotse JSC constituted binding precedent was emphatically rejected by the learned Justices of Appeal, who took the firm position that Dotse JSC’s views were purely obiter, devoid of any binding effect. We agree with them 29. The core issue in the Ex Parte Stephen Kwabena Opuni case revolved around a certiorari application wherein the Appellant (then Applicant) unsuccessfully sought to impeach the proceedings of the trial court on grounds of, inter alia, absence of jurisdiction and grievous error of law. The issues raised for determination in the Ex Parte Stephen Kwabena Opuni case therefore had no nexus, even remotely with whether or not de novo trials in criminal cases was an obligatory requirement. 30. It follows therefore that in so far as Dotse JSC’s comments related to de novo trials in criminal cases, it was not necessary for that decision and was obiter; it did not form part of the ratio decidendi of the case. Of course any observation falling from so eminent a jurist as Dotse JSC, is entitled to very great respect and consideration; but being obiter in nature, it certainly lacked any binding effect. Had the pronouncements in the Ex Parte Stephen Kwabena Opuni case not been obiter, the Court of Appeal would have had no alternative but to 9 | Pag e follow it under the principle of stare decisis, as well as the provisions of Article 129)3) of the 1992 Constitution. 31. It is indeed striking that the conclusion reached by the Court of Appeal on the precedential weight attachable to Dotse JSC’s statement in the Ex Parte Stephen Kwabena Opuni case, was not substantially different from that reached by the learned trial Judge. In his Ruling dated the 4th day of April 2023, this is what the learned trial Judge said concerning the statement by Dotse JSC in the Ex Parte Stephen Kwabena Opuni case:- “Therefore any pronouncement he (Dotse JSC) might have made with respect to a trial de novo which was not the main issue before the Court were purely obiter which are respectfully not binding authority but only of persuasive effect before this court” 32. Having regard then to the unanimous rejection of the Ex Parte Stephen Kwabena Opuni case as a binding authority by both the trial court and the intermediate appellate Court, it seems to us that learned Counsel for the Appellant should have been alerted to the futility of relying on the same impugned proposition in his Statement of Case before this Court. It is a matter of some regret that rather than reconsidering his stance, learned Counsel for the Appellant tenaciously clung to what clearly was a discredited position. 33. From our analysis afore-said, it follows that learned Counsel’s characterization of the practice of de novo trials in criminal cases, which disregards the element of judicial discretion and the flexibility inherent in judicial practices, lacks any foundation in established legal precedent or authority. 34. Ultimately, it is our judgment that learned Counsel’s submissions in support of a rigid unyielding common law practice of de novo trials in criminal cases, suffer from a twofold flaw: first, a distorted understanding of the practice’s scope and second, a mistaken belief in its absolute and inflexible nature. We are unable to acquiesce in it. 35. But then learned Counsel for the Appellant’s rigid characterization of the de novo practice, betrays an even more substantial and underlying weakness. 10 | Pag e 36. His submissions disregard the time honoured proposition that any settled judicial practice, no matter how long standing, must always yield to sound legal principles and robust policy considerations. In other words, a settled practice, regardless of its longevity, cannot constitute binding precedent, unless based on sound legal principles. The doctrine of necessity alone requires that whenever any settled practice no longer aligns with contemporary conceptions of justice, it loses its legitimacy, and must give way. 37. It follows therefore that even if true, as urged by the Appellant, that the de novo practice has now settled into a rigid common law rule of law, there is no justifiable reason why it must not give way if found to be inconsistent with contemporary norms of justice and fairness. 38. Wrottesley LJ had the same principle in mind when he stated in the case of R v St Edmundsbury and Ipswich Diocese (Chancellor) and Another: Ex parte White and Another [1947] 2 All ER 170 at page 178 thus:- “In the interests of all concerned, and, particularly, of litigants, a long settled practice of a court of record, extending in this case over hundreds of years, is not to be disturbed except by establishing that a departure from it is necessary to do justice to an applicant who can get justice in no other way, and to whom the court has always had jurisdiction to grant the relief prayed for.” 39. Again in the case of Gill and Another v Lewis and Another [1956] 1 All ER 844, at 850, Jenkins LJ. cited with approval a passage by Rigby LJ expressing the same sentiments in the old case of Newbolt v Bingham (1895) (72 LT 852) where in reference to a settled judicial practice, he made the following salutary pronouncement:- “…….Of course, the court was not absolutely bound by its practice where it would not do justice ….” 40. An identity of reasoning informed the decision in the case of The Trustees Synagogue Church of All Nations v Agyeman [2010] SCGLR 717 at page 722, where this apex Court speaking through Atuguba JSC highlighted the 11 | Pag e proposition that the settled practices of a court of record will continue to be followed, unless they are shown to be unjust, outdated, or superseded by statute. Atuguba JSC cited with approval the speech by Lord Devlin, in Connelly v Director of Public Prosecutions (1964) A.C 1254 at 1360-1361 thus: "… a rule of practice is … different. When declared by a court of competent jurisdiction the rule must be followed until that court or a higher court declares it to be obsolete or bad or until it is altered by statute." 41. The case of Agyemang (Substituted) by Banahene & Ors v Anane (supra), offers perhaps a classic example of a situation where a previous settled practice, had to yield to considerations of legitimacy and sound legal principles. In that case the Supreme Court was confronted with the question of whether to perpetuate a rigid application of the practice of de novo trials in a civil matter that had been pending in court for more than forty years. 42. Wood CJ, (as She then was) with whom Ansah, Yeboah, Bonnie, and Akamba, JJSC concurred was emphatic that the inflexible application of the de novo practice, without consideration of the unique aspects of each case, had become “…..rather archaic, retrogressive and producing unjust results.” 43. Following an incisive and authoritative exposition of the factors weighing against the continued viability of de novo trials, the Supreme Court then expressed itself as follows:- “The argument against de novo hearing is so cogent and compelling that sound case management policy reasoning alone constitute a sufficient basis for charting a new legal path in our jurisprudence. 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.” (emphasis) 12 | Pag e 44. In conclusion the Supreme Court laid down the factors that must guide a court in the exercise of its discretion to order a de novo trial. This includes a broad and primary concern to ensure that the adoption of the proceedings would not result in any miscarriage of justice, and the consideration of such other factors as length of time that the case has been on the court’s calendar, the stage at which a trial has reached, the number of witnesses already called, the disputed issues, the nature of the evidence-mostly narrative or documentary, weighty objections by either party, if any, to its reliability, the availability of the witnesses who has already testified, the quality and reliability of the record or transcript. 45. Without doubt, the broad reach and fundamental fairness of the principles articulated by the Supreme Court in the Agyemang (Substituted) by Banahene & Ors v Anane (supra), simply transcends procedural boundaries. As rightly observed by Wood CJ (as She then was) at page 256 of the Report, it was a decision which was intended to chart“….a new legal path in our jurisprudence” 46. In our view, the decision in the Agyemang (Substituted) by Banahene & Ors v Anane (supra), serves to highlight the fact that the rigid application of the de novo practice, whether applied in a civil or criminal case, now appears so obsolete and incongruent that it has become ill-suited to the evolving trends of modern litigation 47. Learned Counsel for the Appellant argued with some force in his Statement of Case that the principles enunciated in the Agyemang (Substituted) by Banahene & Ors v Anane case (supra), regarding de novo trials ought to be restricted only to civil proceedings. 48. Our own view however is that whether or not this Court intended to restrict the case of Agyemang (Substituted) by Banahene & Ors v Anane (supra), to civil trials, the principles adumbrated in that case, are of such universal relevance that we find no real justification to exclude their extension to criminal trials as well. 49. Our conclusions above only reinforces similar harmonious views expressed both by the trial court as well as the Court of Appeal in this instant case. On its part the trial court wondered why the reasoning of the Supreme Court in Agyemang 13 | Pag e (Substituted) by Banahene & Ors v Anane (supra), should not be “….applied mutatis mutandis….” to part heard criminal cases, whilst the Court of Appeal also stated that the answer to the question whether or not to adopt proceedings both in civil and criminal cases has found expression in the locus classicus Agyemang (Substituted) by Banahene & Ors v Anane (supra). 50. In our judgment therefore, sufficient material existed on the record, to justify the Court of Appeal’s reliance on the universal principles established in the Agyemang (Substituted) by Banahene & Ors v Anane case (supra), and thus refuse to perpetuate a settled de novo practice, that had become “…..rather archaic, retrogressive and producing unjust results.” 51. It follows then that even if, as fervently contended by learned Counsel for the Appellant, the Court of Appeal fell into error in specifically holding that the ratio decidendi in the Agyemang (Substituted) by Banahene & Ors v Anane case (supra), applied both to civil as well as criminal trials, that alone cannot vitiate their judgment. 52. For, the law is quite settled that an appellate court can affirm the judgment of a lower court which is correct but is founded on wrong reasons. 53. In the case of Mensah Larkai Vs. Ayiteh Tetteh [2009] SCGLR 621, 634, Atuguba JSC cited with approval the speech by Mills-Odi JSC in the case of Abakah & Others v. Ambradu [1963] 1 GLR 456 at 464 as follows:- “But a court of appeal is entitled to uphold a judgment, if proper grounds exist on the record to justify the judgment, even though it cannot be supported for the reasons given by the court which gave it.” 54. See also Muriel Vangan-Williams Vs. B. K. Oppong [2015] 84 GMJ 171, 177 where the Supreme Court speaking through Adinyira JSC, had this to say:- “We are of the view that this case can be decided on other grounds as indeed in this court, no judgment is upset on the ground that its ratio is erroneous if there is another sound basis on which it 14 | Pag e can be supported.” Seraphim v Amua-Sekyi [1971] 2 GLR 132 at 134 cited. 55. In the Ex Parte Stephen Kwabena Opuni case (supra), Dotse JSC brought the drawbacks of de novo trials in criminal cases to the fore, when he lamented as follows:- “……..it bears emphasis that, if this Court and the Administrators of the Criminal Justice system are not to become laughing stock, then swift reforms in the criminal justice system must be put in place to ensure that, proceedings taken before a Judge who has retired or not available to continue the trial in the case are adopted and put before another Court and judge to be continued. There should be no need to start such cases de novo in criminal cases…..” 56. If there existed any doubt with regards to the circumstances under which the de novo practice applies in criminal trials in Ghana, this has now been removed by Practice Direction referred to as Practice Directions on Time Management, Adjournments and Adoption of Proceedings in Part Heard Trials in Courts 2024, issued on the instructions of Her Ladyship the Chief Justice. 57. The importance of this Practice Direction, lies in the fact that it settles once and for all, the argument that the rigid adherence to the de novo practice in criminal cases constitutes a quaint anachronism, at odds with contemporary legal thinking. 58. Paragraph L of the Practice Directions on Time Management, Adjournments and Adoption of Proceedings in Part Heard Trials in Courts 2024 bears relevance to the procedure for adoption of proceedings in a part heard civil or criminal case. For purposes of emphasis it is relevant to reproduce the entire Paragraph L, which provides thus:- L. Duties Of The Judge in the Adoption of Record in Part Heard Matters 1. Unless there exists any matter that would result in a miscarriage of justice, the court shall adopt the proceedings for continuation. 15 | Pag e 2. That appeal against the decision of the court on the adoption of the proceedings shall not serve as a stay of proceedings. 3. That in determining whether the adoption of proceedings would result in a miscarriage of justice, the court shall consider the following; i. The length of time that the case has been on the court calendar; ii. The stages which the trial has reached; 14 iii. The number of witnesses already called; iv. The disputed issues/ number of counts an accused person stands charged; v. The nature of the evidence adduced, both oral and documentary; vi. The availability of witnesses who have already testified; vii. Possible loss of memory by the witnesses; viii. The availability of all documentary evidence of adduced at the trial; ix. The quality and reliability of the record or transcript; x. Whether any defect in the record is capable of being cured in the interest of substantial justice 59. It is expected that this Practice Direction will henceforth provide the standard for effective case management in cases where a new Judge is assigned to a pending criminal trial. 60. With the above clarification, it is further expected that learned Counsel for the Appellant’s restrictive characterization of the practice, mandating a blanket de novo proceedings in all criminal cases upon judicial reassignment, will forever be consigned to the annals of legal history. 61. In the end, and after a careful perusal of the record of appeal, we are bound to say that the Appellant proceeds from a faulty legal premise in the manner he formulates his ground (a), of the appeal, based as it were, on a rigid application of the de novo practice to all criminal cases, regardless of their distinctive peculiarities. Even if such a rigid practice existed at common law, its continued relevance has now become untenable as a result of its incompatibility with modern trends of litigation. It cannot be perpetuated. 62. With the above exposition of the law, there is no doubt that the resolution of the issue as to whether the learned Justices of Appeal fell into error when they 16 | Pag e refused to perpetuate a rigid application of the de novo practice to the facts of this instant case, must be resolved against the Appellant. Argument that settled judicial practices can only be overturned by statute as affirmed by the binding authority of the case of Harlley v Ejura Farms 63. The conclusion we have reached above also furnishes a fitting answer to the ground (d) of the appeal, under which the Appellant chastises the learned Justices of the Appeal for failing to allow themselves to be bound by the statement of Taylor J (as he then was) in the case of Harlley v Ejura Farms (supra) to the effect that settled practices can only be overturned by statute. This is how learned Counsel framed his argument in his Statement of Case:- “We add further that the Court of Appeal erred in not following the decision in Harlley v Ejura Farms (supra) which decision was given by the full bench of the Court of Appeal. This full bench of the Court of Appeal is the equivalent of the present Supreme Court. This decision is to the effect that settled practices which have been followed by the courts are binding and can only be departed from by way of statute”. 64. We have carefully examined the issues raised in the Harlley v Ejura Farms case (supra) and we do not consider the ratio in that case as laying down any such wide general proposition of the law. That case fell for determination on a quite different point. 65. The decision in the Harlley v Ejura Farms case (supra) centered primarily on the finding that the full bench of the Court of Appeal was properly seised with a review application, since the matters raised for its determination were questions of law and not of fact. In the course of his judgment, Taylor J (as he then was) made the observation that the practice of filing an omnibus ground of appeal with a proviso that additional ground of appeal would be filed later, though not based on any statute, has now been accepted as settled practice for so long that it would require a statute to abolish it. 66. This statement attributed to Taylor J (as he then was) was only obiter, and has no binding effect as far as every judicial practice is concerned. The Harlley v 17 | Pag e Ejura Farms case (supra) cannot be applied to support any general principle of the law that settled practices can only be overturned by statute. 67. More significantly the statement attributed to Taylor J (as he then was) in the Harlley v Ejura Farms case (supra) must be understood within the context of the principle examined above, to wit, that no settled practice can be perpetuated as a binding judicial precedent unless it yields to sound legal principles and aligns with contemporary norms of justice and fairness. 68. We have already referred to the case of The Trustees Synagogue Church of All Nations v Agyeman (supra) where the point was made by this Court that it is not only by legislative intervention that a settled practice will cease to apply; it will also cease to apply where it is proven to be contrary to principles of justice, or has become obsolete. 69. To the extent then that learned Counsel for the Appellant sought to say that a settled practice of the court can only be overturned by statute, it is our view that the principles exemplified in such cases as The Trustees Synagogue Church of All Nations v Agyeman (supra) and Connelly v Director of Public Prosecutions. (supra) furnish a complete answer. 70. It is indeed a matter for regret that, in urging on this Court the binding force of the Harlley v Ejura Farms case (supra) to the facts of this instant case, learned Counsel for the Appellant appears to have engaged in the unfortunate practice of indiscriminately applying legal principles from a disparate case, without adequately addressing the factual and legal distinctions that render those principles inapplicable. 71. Such an approach has however been sternly denounced by this Court in a plethora of cases. Thus, for instance in the case of The Republic v High Court (Criminal Division) Accra; Ex Parte Stephen Kwabena Opuni – Civil Motion No. J5/87/2022 dated the 24th January 2024, Dotse JSC’s condemnation of this practice was unsparing and uncompromising when he cautioned as follows:- 18 | Pag e “…we deem it prudent to sound a note of caution to all practitioners of the law that it is necessary and obligatory for them to thoroughly read reported cases before seeking to rely on them as their authorities……..Quite too often, we find learned counsel making references and relying on the doctrine of stare decisis in cases without any corresponding resemblance and application to the case in point”. 72. Again, in the case of Martin Amidu v A-G – Civil Review No. J7/10/2013 dated 29/7/2014, the Supreme Court speaking through Wood JSC (as then was) cautioned as follows:- “It must be made clear from the outset that, the indiscriminate and blanket application of legal principles enunciated on the particular legal and factual circumstances of a given case, is not in accord with law or sound judicial policy”. 73. Fortified by the authoritative pronouncements above mentioned, we hold the respectful view that learned Counsel for the Appellant’s submissions that the Harlley v Ejura Farms case mandates the binding effect of all settled judicial practices unless statutorily overturned, is erroneous and misconceived. 74. All said, it is our conclusion that grounds (a) and (d) of the notice of appeal lack merit and must fail. They are hereby dismissed. GROUNDS (B), (C) and (E) Wrongful Interference with Trial Court’s Exercise of Discretion 75. We will next dispose of grounds (b) (c) and (e) cumulatively as they commonly relate to the same issue of law and primarily concern the circumstances under which an appellate court may rightfully interfere in the exercise of a trial court’s discretion. 76. Under these grounds of appeal, learned Counsel’s complaint against the judgment of the Court of Appeal finds expression in the forceful and impressively 19 | Pag e crafted argument that it sinned against the cardinal rule of law which frowns upon an appellate court wrongfully substituting its own discretion for that of the trial court. 77. The law as to the reversal by an appellate court of an order made by the judge below in the exercise of his discretion is well-established, and any difficulty which arises may quite well be due only to the application of well-settled principles to an individual case. See the views of Viscount Simon LC, in the case of Charles Osenton & Co v Johnston ([1941] 2 All ER 245 at p 250 78. Those principles governing the circumstances under which an appellate court may interfere with the exercise of discretion by a lower court are now so well entrenched as not to require any detailed re-statement. In brief those principles may be summed up thus: 79. It is an established proposition of the law that an appellate court is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the trial judge. Put differently, an appellate court ought not to reverse the trial court’s order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. 80. On the other hand however, the appellate court would be entitled to interfere where it reaches the clear conclusion that there has been a wrongful exercise of discretion, in that no weight, or no sufficient weight, has been given to relevant considerations, or that the court below applied wrong principles or the conclusions reached would work manifest injustice. See cases like Ballmoos v Mensah [1984-86] 1 GLR 725, Sappor v. Wigtap [2007-2008] SCGLR 676, and Ward v James ([1965] 1 All ER 563 at p 570. 81. The issue arising under this limb of the appeal requires the consideration, first, of the circumstances in which the order for re-trial was made and secondly, of the question whether this case is one which gives rise to any exceptional circumstances to warrant an interference with the exercise of the trial court’s discretion. 20 | Pag e 82. From an examination of the materials placed on the record in this appeal, it cannot be disputed that the main factors which influenced the exercise of the trial Judge’s decision in making the order for the trial de novo, centered primarily around grievances expressed by the Appellant (then Accused) against a number of decisions handed down by the previous Judge as well as charges of impropriety levelled against him by the Appellant and also the need to observe witness demeanour 83. This is how the learned trial Judge expressed himself on the allegations of unfairness levelled against the proceedings:- “……it is my candid opinion that it will be in the interests of justice and the interest of all the parties for this court to start on a clean slate free from all the shackles of allegations of unfairness and counter allegations of intentional delays that has bedeviled this case over its duration and that has resulted in the filing of numerous applications before this court differently constituted and also before the Supreme Court” 84. The Court of Appeal’s answer to the manner in which the learned trial Judge exercised his discretion above was that it was arbitrary, capricious, uninformed, and “…tantamount to working manifest injustice…” having allowed himself to be led astray by factors that were at once irrelevant and extraneous. 85. We have on our part thoroughly reviewed the reasoning and conclusions reached by the learned Justices of Appeal, and we are fully convinced that the decision harmonizes seamlessly with established legal principles on review of discretionary powers. We think the course the learned Justices of Appeal took was unexceptionable and we are most impressed with the reasons they gave for their conclusions. 86. We agree with the learned Justice of Appeal that the learned trial Judge completely lost sight of the important factors which otherwise should have weighed on his mind in reaching the decision whether or not to order a trial de novo. 87. Thus for instance, we agree that it was palpably wrong for the current trial Judge to assume that adopting the proceedings of the court will saddle him with 21 | Pag e “…..the same suspicions and allegations of unfairness levelled against the previous presiding judge….”, more so as those allegations of unfairness and suspicions against the previous judge remained unproven. 88. It seems to us that despite having cautioned himself to the contrary, what the learned trial Judge actually ended up doing was to re-examine the decisions of the previous Judge through a process akin to judicial oversight, and then determine that they were questionable. From that premise, he proceeded to exercise his discretion to initiate a de novo trial to serve what he deemed to be in the interests of justice. 89. This we find to be rather curious, for the learned trial Judge would seem to say that there are no principles governing the exercise of discretion to adopt proceedings or commence a criminal trial de novo, the matter resting on an undefined pursuit of the interests of justice and fairness. 90. Yet, and as already noted above, this Court in the case of Agyemang (Substituted) by Banahene & Ors v Anane case (supra), carefully set out a number of principles (though not exhaustive) which govern the exercise of discretion in the adoption of proceedings or commencing a trial de novo. 91. These principles have already been referred to above but for purposes of emphasis it is necessary to reiterate them. They include such factors as the length of time that the case has been on the court’s calendar, the stage at which a trial has reached, the number of witnesses already called, the disputed issues, the nature of the evidence-mostly narrative or documentary, weighty objections by either party, if any, to its reliability, the availability of the witnesses who has already testified, the quality and reliability of the record or transcript 92. These principles though not intended to fetter a court’s exercise of discretion in this area of the law, are nevertheless consistent with notions of justice, commonsense, and equity, and the learned trial Judge ought to have allowed himself to be guided by them rather than be swayed by considerations of unproven allegations and an unstructured pursuit of the interests of justice. 22 | Pag e 93. We also observe that in making the need to observe witness demeanour one of the touchstones of his decision to commence the trial of this case de novo, the learned trial Judge poignantly failed to advert his mind to the caution sounded by this Court in the Agyemang (Substituted) by Banahene & Ors v Anane case (supra), on over reliance on witness demeanour in these matters. 94. In that case, Wood CJ (as then was), after making the cryptic observation that, the demeanour qua demeanour of witnesses hardly plays any significant role when evaluating the credibility of witnesses, then proceeded at page 255 to quote the comments by the Editor of the Report thus:- “The argument based on observation of the demeanour of parties and witnesses is not always tenable, especially where that trial lasts for many weeks; months or years as is common in the courts. The effluxion of time may cause memories to fade, wane or totally forgotten and, in that event, there can be no legitimate reliance on demeanour which cannot be recollected. ... If the specific observation is not apparent on the face of the record, it may be attacked as being speculative. If the observation is properly recorded and is apparent in the proceedings, the second trial judge can make use of them as the basis for commenting on or evaluating the credibility of parties and witnesses. In that event, the reason for insisting on trial de novo will not be applicable.” 95. We think that had the learned trial Judge properly addressed his mind to the above important legal principles pertaining to witness demeanour and their bearing on the peculiar facts of this case, he would have paused significantly before arriving at the decision to start the trial de novo. 96. In the end, and upon a critical analysis of the record of appeal in its entirety, we give the same answer as did the learned Justices of Appeal, and it is this: the discretion exercised by the learned trial judge was wrongful and his failure to properly consider the factors identified by settled authorities as critical for adoption of proceedings or ordering a trial de novo constituted a reversible error. 23 | Pag e 97. Our conclusions above sufficiently dispose of grounds (b) (c) and (e), the result of which is that the said grounds of appeal fail and are hereby dismissed. GROUND (F) 98. Under this ground of appeal the Appellant charges that the learned Judges erred when in allowing the appeal, they disregarded the effect of the observation of the demeanour of witnesses in a criminal trial. Learned Counsel sums up his submissions with the following conclusion:- “We state that this court should grant our appeal under this Ground ‘f’ as a standalone since the demeanour of a witness, though not the sole factor, is an important determinant in assessing the credibility of a witness. We add that it is more important in the present case where we have attacked the credibility of the witness and also filed an application for perjury against PW3, Adu Ampomah (Dr) who is not only the complainant, but the star witness of the Prosecution” 99. Learned Counsel for the Appellant’s arguments on this issue was directed to the point that it is the trial Judge who saw the witness in a case testify before him and respond to cross-examination who alone is in a better position to evaluate, ascribe probative value and attach weight to the evidence. Consequently since the Appellant stands the risk of losing his liberty at the end of the trial, the only way his right to a fair trial can be guaranteed is for the trial Judge to have a first-hand experience or observation of the demeanour of witnesses, at a de novo trial of the case. 100. We have given thoughtful consideration to the submissions on witness demeanour pressed on this Court by learned Counsel for the Appellant in his Statement of Case. Our own view of the matter is that witness demeanour though relevant, is not dispositive in this case, and learned Counsel’s emphasis on it is misplaced. 101. As a matter of fact, the pitfalls of relying too heavily on witness demeanour has been dealt with supra, but for purposes of emphasis, we refer again to the decision in the case of Agyemang (Substituted) by Banahene & Ors v Anane case (supra), where the Supreme Court conclusively determined that 24 | Pag e witness demeanour hardly plays any significant role when evaluating the credibility of witnesses. 102. What needs to be emphasized is that in modern trends of litigation, courts are more inclined to employ more robust methods to assess credibility, such as evidence-based evaluation and expert testimony, leading to a shift towards more comprehensive and objective evaluation methods. 103. It can also not be disputed that focusing on demeanour alone may prioritize appearance over substance, potentially overlooking credible testimony from witnesses who appear nervous or uncomfortable. 104. Learned Counsel for the Appellant argues in his Statement of Case that under section 80 of the Evidence Act 1975, NRCD 323, witness demeanour was statutorily required to be considered by the court in assessing credibility. Consequently, since the trial de novo was the only alternative by which this statutory requirement could be complied with, the learned trial Judge had no other option but to start the trial de novo. What we understand learned Counsel to be saying is that witness demeanour is a mandatory statutory consideration under section 80 of the Evidence Act, and any failure to give due regard to it would result in a failure to discharge judicial duties properly. 105. Learned Counsel’s submissions however suffer from a twofold flaw: first, as determined by the Court of Appeal, several factors other than witness demeanour are required to be taken into account in assessing credibility under section 80 of the Evidence Act, and witness demeanour is only a part of the assessment process factors outlined from sub-paragraphs 80(2) (a) to (h) of NRCD 323. Second learned Counsel’s submissions ignore the discretionary nature of section 80 of NRCD 323 which employs the term “may” to confer upon the Judge the discretion to choose whether or not to consider witness demeanour in assessing credibility. 106. And indeed, it must be borne in mind that in the context of civil cases, by the directions of Rule 8 (1) of the Court of Appeal Rules 1997 CI 19, and Order 51 Rule 1 (1) of the High Court (Civil Procedure) Rules 2004, CI 47, every appeal is by way of rehearing. Intrinsic in this direction is the appreciation that a court, 25 | Pag e in this context, appellate courts, is able to re-hear a case and do substantial justice without the additional benefit of observing the demeanor of witnesses as part of the factors relied on to determine the weight of evidence. 107. In our judgment, the learned Justices of Appeal rightly rejected learned Counsel’s submissions to elevate witness demeanour to a mandatory statutory consideration under section 80 of NRCD 323. We are unable to interfere with their conclusions. 108. The result of our analysis afore-mentioned is that Ground (f) of the appeal fails and is hereby dismissed. GROUND (G) 109. This omnibus ground of appeal alleges that the judgment of the Court of Appeal cannot be supported having regard to the evidence on record. In the main, learned Counsel contends that the learned Justices of Appeal failed to peruse the entire record of appeal before handing down its verdict. 110. In the words of learned Counsel for the Appellant:- “The Court of Appeal disabled itself by not considering the entire record of appeal but only considered the ruling of Justice Gyimah when it held in its ruling of the 14th day of June 2023 in dismissing an application for the records to be returned to the High Court for corrections to be made” 111. Learned Counsel therefore argues that had the entire record of appeal been fully analysed by the Court of Appeal, certain pertinent pieces of evidence on the record would have weighed against the decision to interfere with the trial court’s judgment 112. We do not agree with these submissions. As already indicated above, the rule is that a complaint under an omnibus ground of appeal imposes a duty on the Appellant to point out the specific pieces of evidence or materials which if properly applied, would turn the verdict in his favour. This duty has been 26 | Pag e highlighted in such cases as John Cobbina v The Republic (supra), and Dexter Johnson v The Republic (supra) 113. We have closely analysed learned Counsel’s Statement of Case and we are not convinced that he adequately discharged that responsibility. Nowhere in his Statement of Case did learned Counsel for the Appellant allude to any specific piece of evidence or material on the record on the record that was overlooked by the Court Of Appeal and which if properly applied would turn the verdict in his favour, nor did he demonstrate to our satisfaction, any resulting miscarriage of justice as a result of any lapses in the judgment under appeal. 114. A bald naked allegation of inadequate record review, without concrete evidence of any resulting prejudice, is too vague and lacking in substance to warrant any serious consideration by this Court. 115. As we are persuaded that the learned Justices of Appeal did not fall into any error when they interfered with the wrongful exercise of the trial court’s discretion, this ground (g) of the appeal fails and is dismissed. CONCLUSION 116. In conclusion, we have not been provided with sufficient grounds that would persuade us to disturb the judgment of the Court of Appeal, which is hereby affirmed. In the result the appeal fails in its entirety and is accordingly dismissed. (SGD) Y. DARKO ASARE (JUSTICE OF THE SUPREME COURT) 27 | Pag e (SGD) G. SACKEY TORKORNOO (MRS.) (CHIEF JUSTICE) (SGD) M. OWUSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD) PROF. H.J.A.N. MENSA-BONSU (MRS.) (JUSTICE OF THE SUPREME COURT) (SGD) E. Y. GAEWU (JUSTICE OF THE SUPREME COURT) COUNSEL SAMUEL CODJOE ESQ. FOR THE 1ST ACCUSSED WITH ANITA DABI ESQ. JOEL AMARTEIFIO ESQ. FOR THE 2ND ACCUSSED AND 3RD ACCUSSED EVELYN KEELSON (CHIEF STATE ATTORNEY) FOR THE RESPONDENT WITH STELLA OHENE APPIAH (PRINCIPAL STATE ATTORNEY) AND ENAM LLOH- MENSAH (STATE ATTORNEY) 28 | Pag e 29 | Pag e