ANNOBIL vs. OBOSU AND ANOTHER [1980]DLHC2098

Date	1980-07-10
Suit No.
Citation No.	[1980]DLHC2098

OSEI-HWERE J.

DE GRAFT AIDOO FOR THE PLAINTIFF.

EWUSI WILSON FOR THE DEFENDANTS.

[1980]DLHC2098
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													<main id="main" class="content" style="min-height: 60rem" >ANNOBIL <o:p></o:p>vs. <o:p></o:p>OBOSU AND ANOTHER <o:p></o:p>[HIGH COURT, CAPE COAST]<o:p></o:p>[1987-88] GLR 214<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
10 JULY 1980<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DE GRAFT AIDOO FOR THE PLAINTIFF. <o:p></o:p>

EWUSI WILSON FOR THE DEFENDANTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>This
ruling incorporates the answer to two applications made by the plaintiff. The
first seeks leave to amend his reply to the defendants’ amended defence which
the plaintiff filed out of time and the second attempts to introduce fresh
evidence after the formal evidence taken at the trial has closed and what now
remains is to hear the addresses of counsel. The former application does not
attempt to rectify any inconsistencies in the pleadings occasioned by the oral
evidence but rather to bring the plaintiff’s pleadings to conform with the oral
evidence which he was permitted to lead without any objection. In Marfo v.
Adusei [1963] 1 G.L.R. 225, S.C., the following comments on practice are set
down in the headnotes:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(2) The
penalty for failing to plead a material fact is the exclusion, upon objection
being taken, of evidence to establish it. But where evidence which could have
been ruled out as inadmissible because it is adduced to prove a material fact
which was not pleaded, has nevertheless been adduced without objection, a judge
is bound to consider it. Abowaba v. Adeshina (1946) 12 W.A.C.A. 18 and Yartey
v. Construction and Furniture (West Africa) Ltd. [1962] 1 G.L.R. 86, S.C. (3)
Counsel should take every care to exclude evidence of averments which are not
pleaded for where he does not raise objection at the trial, he is precluded
from doing so on appeal.”<o:p></o:p><o:p>&nbsp;</o:p>It was
thus that an amendment was allowed to bring the pleadings in line with the
evidence already led in Edward Nasser &amp; Co., Ltd. v. Abu-Jawdi [1965]
G.L.R. 523, S.C.<o:p></o:p><o:p>&nbsp;</o:p>The fresh
evidence in the instant case, concerns certain judgments, five of them in all,
which the plaintiff’s counsel seeks to tender through an employee of the
National Archives who has been called, by leave of court, for a limited purpose
only. The defendants are not privy to any of these judgments and, indeed, it is
only in respect of two of them where the plaintiff is privy. If the defendants’
counsel had consented to their being admitted in evidence, the court would have
granted without question its fiat. The defendants’ counsel has raised his
objection and, in my view, the objection is, quite apart from what has been
urged by counsel for the defendant, sustainable on three grounds:<o:p></o:p><o:p>&nbsp;</o:p>First, it
will be prejudicial to the defendant who, because it is not tendered through
the plaintiff, will have no opportunity to cross-examine on the judgments.
Secondly, as they seek to supplement certain issues raised in the plaintiff’s
evidence they are material facts which ought to have been pleaded. Thirdly, as
the fresh evidence (from what I could make of the submissions of the
plaintiff’s counsel) is aimed to support the evidence of the plaintiff at the
trial which was contradicted by the defendant, that, in my view, cannot be a
legitimate ground for permitting the plaintiff, long after he has closed his
case, to lead fresh evidence.<o:p></o:p><o:p>&nbsp;</o:p>I am of
the opinion that the rationale being the denial or grant of permission to order
a new trial upon the discovery of further evidence must be the same as that which
denies or grants permission to lead further evidence after the close of the
case for the parties. Collins L.J. went over the governing principles which
will guide the court in permitting a new trial for the purpose of adducing
fresh evidence, in the consolidated cases of Young v. Kershaw; Burton v.
Kershaw (1899) 81 L.T. (N.S.) 531 at p. 532, C.A., as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“. . . it
is a matter of the greatest importance, and has always been so treated by the
courts, that all material evidence, which could with reasonable skill and
diligence be produced at the trial, shall be the only evidence which can be
considered, and must be adduced at the trial. It is obviously in the public
interests that parties, who have gone through the ordeal of litigation and have
had their rights settled at the trial, should not afterwa</main>