Unique Furnishing Limited v Holman Brothers Limited (H1/217/2025) [2026] GHACA 4 (24 July 2026)

1 IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA – AD 2026 CORAM: MENSAH-HOMIAH (MRS.) JA - PRESIDING MYERS AHMED (MRS.) JA DR. OSEI-HWERE JA SUIT NO. H1/217/2025 DATE: 24TH JULY, 2026 UNIQUE FURNISHING LIMITED … PLAINTIFF/APPELLANT VRS HOLMAN BROTHERS LIMITED … DEFENDANT/RESPONDENT ========================================================== JUDGMENT ========================================================== DR. OSEI-HWERE JA INTRODUCTION 2 This judgment concerns an appeal against the judgment of the High Court (Lands Division), Accra, dated 29th July, 2022. In that judgment, the plaintiff’s/appellant’s claim against the defendant/respondent herein was dismissed, and judgment was entered in favour of the respondent. After examining the Record of A ppeal, this court has concluded that issues bordering on a conflict of interest in the trial judge's position, and the doctrine of judicial recusal, among other fair trial rules, have taken precedence over the determination of this appeal on its merits. Judicial independence is not a fanciful notion. It is the cornerstone of every justice system. Its threat extends beyond external influences. Internal influences, such as conflicts of interest and the risk of bias, also undermine the right to a fair hearin g. It is settled that court users and society at large must have faith in the court’s ability to resolve disputes fairly and impartially. A fair hearing is essential to dispute resolution and central to natural justice. Natural justice requires that a person receive a fair and unbiased hearing before any decision that will adversely affect him or her is made. This due process principle applies to both judicial and quasi-judicial forums. Thus, the right to be heard by an independent and impartial court is a constitutional right, and its violation can invalidate an entire proceeding. This judgment turns on these fundamental questions. BACKGROUND FACTS The background facts leading to this appeal are that by a writ of summons issued on 5 th April 2006, Plaintiff/Appellant (hereinafter called “Appellant”) commenced this action at the High Court against Defendant/Respondent (hereinafter called “Respondent”) seeking the following reliefs: 3 a. A declaration that Respondent was not entitled and has never been entitled to enter and remain on any part of the portion or portion of an area of land measuring approximately 2,68 acres situate at Alajo, Accra and bounded on the North side by State lands, on the North West by existing road on the South East by a State lands on the South West by State lands which piece and parcel of land is more particularly delineated in an indenture of a lease made between the Lands Commission and Plaintiff for 41 years commencing sometime in 1997, dated the 23rd day of April 2004, stamped and subsequently registered at the Land Title Registry with Certificate No. GA 3000 found in Volume 1 and folio 351; b. An order for ejectment of Respondent from that part of Appellant’s land, which Respondent had forcibly entered and lawfully taken possession of without the permission or consent of the Appellant; c. Damages for trespass; d. An order for perpetual injunction restraining Respondent, its servants, agents, workmen from entering on the said land, living on the said land or any equipment belonging to Respondent company. After a full trial, the court dismissed Appellant’s reliefs and entered judgment in favour of the Respondent. GROUNDS OF APPEAL Aggrieved by the High Court's judgment, the appellant has appealed to this court, and the grounds of appeal, as set out in the Notice of Appeal, are: 1. That the judgment of the learned judge is against the weight of evidence. 2. Further G rounds of Appeal to be filed upon obtaining leave of the Court upon receipt of the Record of Proceedings/Record of Appeal. 4 No further ground of appeal was filed upon receipt of the Record of Appeal; consequently, ground (2) is struck out, leaving ground (1) for determination by this court. TACKLING THE OMNIBUS GROUND OF APPEAL It is trite that an appeal is by way of rehearing, particularly in the present appeal, where the judgment is challenged as not supported by the weight of the evidence. This principle was reaffirmed by the Supreme Court, speaking through Appau JSC, in the case of EVELYN ASIEDU OFFEI V YAW ASAMOAH & ODESHE KWAKU AGYAPONG, CIVIL APPEAL NO. J4/64/2016 (delivered on 25th APRIL, 2018) 1, as follows: “The authorities are legion that an appeal is by way of rehearing, particularly where the appellant alleges in his notice of appeal that the decision of the trial court was against the weight of evidence. In such a case, it is the duty of the appellate cou rt to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence on record. And it is immaterial whether the appeal is a second one from the Court of Appeal to the Supreme Court. See the cases of: 1. AKUFO -ADDO v CATHELINE [1992] 1 GLR 377; 2. TUAKWA v BOSOM [ 2001-2002] SCGLR 61; 3. ARYEH & AKAKPO v AYAA IDDRISU [2010] SCGLR 891 @ 899; 4. ACKAH v PERGAH TRANSPORT LTD & Others [2010] SCGLR 728 and 5. KOGLEX LTD (No. 2) v FIELD [2000] SCGLR 175.” It is equally settled that an appellant should not use the omnibus ground as a device to smuggle points of law into factual arguments by introducing fresh legal issues that were neither raised nor determined by the trial court. See Atuguba & Associates v. Scipion Capital (UK) Ltd & Anor. [2019 -2020] 1 SCGLR 55 . When canvassed, the 5 omnibus ground places the burden on the appellant of showing that the trial court's findings are unreasonable, having regard to the totality of the evidence on record. From decisions of the Supreme Court, such as Brown v. Quarshigah, [2003-2004] 2 SCGLR 930, it is clear that an appellant who merely gives notice of an intention to rely on the so-called omnibus ground should not be permitted to argue pure points of law. In other words, an appeal founded solely on the omnibus ground entitles the appellant to canvass issues of fact; it does not, without more, permit reliance on arguments grounded exclusively in points of law. There appear to be conflicting decisions of the Supreme Court on whether points of law may be argued under the omnibus ground of appeal. This issue was extensively considered and clarified in Nana Asumadu II (Deceased) and Another v. Agya Ameya (unreported), Civil Appeal No. J4/01/2018, dated 15th May 2019 , where the Court, per Yaw Appau JSC, observed as follows: “The previous decision of this Court in the Brown v Quashigah case (supra) to the effect that an appellant who appeals solely on the omnibus ground that ‘the appeal was against the weight of evidence’ would not be permitted to argue points of law, was later reconsidered by this Court in a number of authorities, culminating in the recent unreported decision in ATUGUBA & ASSOCIATES v SCIPION CAPITAL (UK) LIMITED & Another, Civil Appeal No. J4/4/2019 dated 3rd April 2019. In that case, the Court, per Amegatcher JSC, referred to its earlier decision in OWUSU - DOMENA v AMOAH [2015 –2016] SCGLR 790 and restated the principle as follows: ‘Based on the exception articulated by this Court in the Owusu-Domena v Amoah case (supra), the current position of the law may be stated thus: where the only ground of appeal filed is that the judgment is against the weight of evidence, 6 parties will not be permitted to argue legal issues if the factual issues do not admit of any. However, where the weight of the evidence is substantially influenced by points of law, such as the rules of evidence and practice or the discharge of the burden of persuasion or of producing evidence, then points of law may properly be advanced to facilitate a determination of the factual matters…’” In Owusu-Domena v. Amoah [2015 -2016] SCGLR 790 , the Supreme Court, speaking through Benin JSC, held: “The sole ground of appeal that the judgment is against the weight of evidence throws up the case for a fresh consideration of all the facts and the applicable law by the appellate court… 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, only matters of fact may be addressed. Sometimes, a decision on facts depends on what the law is on the point or issue. Even the process of determi ning whether a party has discharged the burden of persuasion or of producing evidence is itself a matter of law.” On the basis of the foregoing authorities, it is concluded that points of law may properly be raised under the omnibus ground, provided they fall within the recognised exceptions articulated in Atuguba & Associates (supra). These exceptions apply where the weight of the evidence on the record is substantially influenced by points of law, including the applicable rules of evidence and practice, or by the discharge of the burden of persuasion or of producing evidence. It must be emphasised that these exceptions are not a licence to introduce fresh legal arguments that were not raised before the trial court. Applying these principles to the present case, the issue of judicial conflict of interest, although a mixed question of law and fact, arises from an evaluation of the evidence on the record. We are therefore entitled to deal with it under the omnibus clause. 7 THE LAW, ANALYSIS AND DECISION OF THE COURT In all civil trials, the right to a fair hearing can be summarised by the twin common law rules of audi alteram partem and nemo judex in causa sua , namely that no person shall be condemned unheard and that no person should be a judge in his own cause. These rules of procedure have been vindicated by Article 19(1) of the 1992 Constitution, which is more pronounced in criminal trials but also applies to civil trials. In Re Effiduase Stool Affairs (No. 2), Republic v Oduro Nimapau, President of the National House of Chiefs; Ex parte Ameyaw II (No. 2) [1998-99] SCGLR 639 , the Supreme Court described the right to a fair trial as a basic principle of any civilised system of justice. Acquah JSC (as he then was), on behalf of the Supreme Court, said: “For one of the basic principles of any civilised system of justice is that a person is entitled to a fair trial free from prejudice. No system of justice can be effective unless a fair trial to both sides is ensured… This common law right to a fair trial is now elevated to a fundamental right in the 1992 Constitution of Ghana.” In view of this, a judge conducting a hearing must be sufficiently removed from it if there is any credible question about their independence. The independence and impartiality of a judge are guaranteed under Article 19(13) of the 1992 Constitution. Confidence in the judicial system rests on the principle that justice should not only be done but also be seen to be done. However, any suspicion of bias must be reasonable. Both pecuniary and personal interests in a case may disqualify a person from presi ding over it. This is not a carte blanche for parties to engage in forum shopping through frivolous recusal applications. The second rule, “no man should be a judge in his own cause”, remains the basis of the doctrine of judicial recusal. 8 In Republic v High Court, Kumasi; ex parte Mobil Oil (Ghana) Ltd Hagan (interested party) [2005-2006] SCGLR 312, the Supreme Court addressed the question of “real likelihood of bias” as follows: “(2) At common law, a judge, magistrate or an independent arbitrator would be disqualified from adjudicating whenever circumstances pointed to a real likelihood of bias, by which was meant “an operative prejudice whether conscious or unconscious in a relation to a party or an issue before him. That would apply in particular where the circumstances pointed to a situation where a decision might be affected by pre-conceived views.” To establish actual bias or the likelihood of bias, the Court’s precedents apply an objective standard. The Court asks not whether a judge harbours an actual, subjective bias, but whether, as an objective matter, “the average judge in his position is ‘like ly’ to be neutral, or whether there is an unconstitutional ‘potential for bias’”. See Caperton, 556 U. S., at 881. The issue of bias was also considered in Nana Yeboa-Kodie Asare II & 1 or. v Nana Kwaku Addai & 7 Ors, unreported, Rev. Motion J7/20/2014, Supreme Court, dated 12/02/2015, where the Supreme Court cited In re Medicaments and related classes of Goods (No. 2) (2001) TLR 84 , in which the English Court of Appeal set out a test for determining ‘bias’ at page 85 of the report, where Lord Philips MR said: “The court had first to ascertain all the circumstances which had a bearing on the suggestion that the judge was biased. It then had to ask whether those circumstances would lead a fair -minded and informed observer to conclude that there was a real possibi lity, or a real danger, the two being the same, that the tribunal was biased… Thus for bias to succeed or prevail, there must be proof of actual bias, in the form of pecuniary benefit to the judicial officer. It could also be 9 proved by interest of a proprietary nature which may lead or amount to a real likelihood of bias. And it must also arise from the circumstances of the situation which a fair-minded and objective may conclude that there was a real danger or real possibility of bias”. In the present case, Appellant’s case hinged on the leasehold agreement between it and the Lands Commission. The Lands Commission was not a party to the proceedings. The record shows that the learned trial judge referred to Exhibits C (the lease) and D (Land Title Certificate GA 30098, dated 29 March 2005), both executed in favour of the Appellant, and concluded that each was procured by fraud. Consequently, the judge gave the following orders at page 55 of the judgment: “I hereby declare that the Lease dated 23 rd April 2004, Exhibit C from the Lands Commission is not a valid lease and same is declared null and void. Plaintiff is ordered to produce the original of Exhibit C in this court to be cancelled and same is hereby cancelled. Lands Commission is to amend Exhibit C to exclude Defendant’s land. the Lands Commission is ordered to expunge from the records of the Lands Commission all information on Exhibit C t hat conflicts with respect to Defendant’s land.” The learned trial judge further stated at page 56 of the judgment: “It is hereby ordered that Plaintiff’s land Certificate, No. GA 30098 Exhibit C be and is hereby cancelled and amended to exclude any portion that conflicts with the Defendant’s property per site plan Merchant Plot No. 1 in Exhibit 12.” Meanwhile, the Land Certificate labelled Exhibit D was signed by the trial judge in the judge’s previous professional capacity as the Chief Registrar of Lands, and therein lies the conflict-of-interest conundrum. 10 The US Supreme Court case of Williams v. Pennsylvania, 579 U.S. 1 (2016) , appears to be on all fours with the instant case and is therefore persuasive. The primary holding of the Williams case is that a judge must recuse himself from a criminal case, based on an impermissible risk of actual bias, when he was personally involve d in making a critical decision as a prosecutor earlier in the defendant's case. For brevity and to place the discussion in the proper context, the facts of the Williams case are set out below: Williams was convicted of a 1984 murder and sentenced to death. Philadelphia District Attorney Castille approved a request to seek the death penalty. Williams’s conviction and sentence were upheld on direct appeal, in state post -conviction review, and in federal habeas review. In 2012, Williams filed a successive petition under Pennsylvania’s Post -Conviction Relief Act (PCRA), arguing that the prosecutor had obtained false testimony from his codefendant and suppressed exculpatory evidence. The court found that the prosecutor had committed Brady violations and stayed Williams’s execution. The Commonwealth asked the Pen nsylvania Supreme Court, whose Chief Justice was former District Attorney Castille, to vacate the stay. Without explanation, Castille denied Williams’s motion for recusal and request for referral to the full court; Castille joined an opinion vacating PCRA relief and reinstating Williams’s deat h sentence. Two weeks later, Castille retired. The U.S. Supreme Court vacated, holding that Castille’s participation violated the Due Process Clause. There is an impermissible risk of actual bias when a judge previously had significant, personal involvemen t as a prosecutor in a critical decision regarding the defendant’s case. No attorney is more integral to the accusatory process than a prosecutor who participates in a major adversary decision; the decision to pursue the death penalty is a critical choice. Neither the involvement of multiple actors nor the passage of time relieves the former prosecutor of the duty to withdraw. An unconstitutional failure to recuse constitutes structural error, 11 “not amenable” to harmless -error review, regardless of whether the judge’s vote was dispositive. The Court noted that many jurisdictions, including Pennsylvania, have statutes and professional codes that already require recusal under these circumstances. As in the Williams’ case, a real likelihood of bias was so apparent on the face of the record in the instant case that the trial judge ought to have recused herself of her own accord. This was because the trial judge was involved in making a significant de cision that conferred title to the disputed land on the Appellant. The act of signing the Land Certificate is significant, and no amount of judicial ingenuity can eliminate the risk of actual or perceived bias. This risk so endangered the appearance of neutrality that the trial judge’s adjudication of the matter ought to have been avoided if the guarantee of judicial independence and due process were to be adequately implemented. No wonder counsel for the Appellant made legitimate capital out of the situation and, in his written submission, charged that the trial judge’s professional role in the land transaction in issue was weaponised against the Appellant. Learned counsel for the Appellant also stated at page 97 of his written submission as follows: “All aspects of the Judgment in which the Trial Judge states that the Plaintiff committed a fraud by misleading her, the Judge during the period when she was working in the Lands Commission and issued the certificate without the right of the Plaintiff to examine the Judge offends against all known rules of Judges’ right to be neutral in any case, avoid any case in which the Judge may have a conflict of interest and being a case in which the Judge ought to have recused herself as soon as she sought to give any such evidence contrary to her sitting as a judge and giving evidence for an entity which is not a party to a suit before the court and which has not contested the validity of its lease given to the Plaintiff.” 12 Black’s Law Dictionary, 11th Edn. (2019), p. 1529, defines recusal as the removal of oneself as a judge or policymaker in a particular matter, especially because of a conflict of interest. A judge’s personal knowledge of the facts of the case before him calls for recusal. In Fisher v. University of Texas, 570 U.S. 297 (2013), Justice Elena Kagan recused herself from the U.S. Supreme Court's 2013 consideration of the case because she had previously worked on it as the U.S. Solicitor General. In the present case, there is no evidence of any personal connection between the judge and a party. It also cannot be said that the judge had a financial interest in the outcome of the case – there was no appearance of impropriety. Unfortunately, and with the utmost respect, the trial judge failed to exercise proper judgment when she sat on the case, despite knowing she had personal knowledge of it. The trial judge’s foreknowledge of the facts made it impossible for her to act as a neutral arbiter. It is trite learning that when a judge fails to recuse himself from a case involving a conflict of interest, the primary consequence is reversal of the judgment on appeal or in judicial review. In the Williams’ case, supra, the U.S. Supreme Court vacated t he Pennsylvania Supreme Court's ruling and remanded the case. This order was made despite the fact that Chief Justice Castille had only one vote on the Pennsylvania Supreme Court panel. However, his participation affected the panel's decision. Similarly, in Republic v Court of Appeal (Civil Division), Accra, Ex -parte: Klenam Construction Limited (Falcon Crest Investment Limited and 2 Ors, Interested Parties), Civil Motion No: J5/10/2026 (17th February, 2026), our Supreme Court quashed a Court of Appeal decision because one of the panel members (the author of the lead judgment) had previously dealt with an aspect of the case as a High Court Judge. The court held, at page 15 of the judgment, as follows: 13 “By reason of the fact that the learned judge had previously adjudged the Rainsford Addoquaye matter in favor of the Interested Parties, we find that his participation in the subsequent appeal gave rise to a reasonable apprehension that his mind was alread y made on the legal ownership of the disputed land. In the circumstances, his continued involvement created a real likelihood of bias, or at the very least, the appearance thereof.” For the foregoing reasons, we are minded to set aside the judgment of the High Court dated 29th July, 2022. We hereby order that the case be retried before a High Court differently constituted. SGD DR. RICHMOND OSEI-HWERE (JUSTICE OF APPEAL) SGD MENSAH-HOMIAH, JA, I AGREE ANGELINA MENSAH-HOMIAH, (MRS.) (JUSTICE OF APPEAL) SGD MYERS AHMED, JA I ALSO AGREE JENNIFER MYERS AHMED, (MRS.) (JUSTICE OF APPEAL) 14 COUNSEL ❖ RAYMOND CUDJOE WITH SUHIYINI MUMINI FOR PLAINTIFF/APPELLANT EDEM LITHUR FOR DEFENDANT/RESPONDENT