NENE KWAKU DARPOH I & 1 OR. vs. AGNES NORTEY & 2 ORS. [2014]DLHC12135

Date	2014-03-05
Suit No.	SUIT NO. EI/4/04, E2/76/06
Citation No.	[2014]DLHC12135

HIS LORDSHIP JUSTICE JOHN AJET-NASAM

CARL ADONGO FOR SORY FOR PLAINTIFF

NYAHE WITH NTOSO FELIX FOR DEFENDANT

[2014]DLHC12135
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													<main id="main" class="content" style="min-height: 60rem" >NENE
KWAKU DARPOH I &amp; 1 OR.<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>AGNES
NORTEY &amp; 2 ORS.<o:p></o:p>(DEFENDANTS)<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

SUIT
NO. EI/4/04, E2/76/06&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 5TH&nbsp;&nbsp;MARCH 2014<o:p></o:p>

</div>COUNSEL&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p><div style="border-top: none; border-right: none; border-left: none; border-image: initial; border-bottom-width: 1.5pt; border-bottom-color: windowtext; padding: 0cm 0cm 1pt;">

</div>CORAM<o:p></o:p>HIS
LORDSHIP JUSTICE JOHN AJET-NASAM<o:p></o:p><div style="border-top-width: 1.5pt; border-top-color: windowtext; border-left: none; border-bottom-width: 1.5pt; border-bottom-color: windowtext; border-right: none; padding: 1pt 0cm;">

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">RULING<o:p></o:p>

</div>On
the 25th day of February, 2014, learned counsel for defendants
intended to call his witness. When the witness entered the box, learned counsel
for plaintiffs raised an objection.<o:p></o:p>&nbsp;The
objection is that, such an intended witness should not be allowed to testify because
he sat in the proceedings. This was vehemently denied by counsel for the
defence. The plaintiffs insisted and stood their grounds. I have adjourned to
this day to enable the lawyers to provide me with any authorities for
reference. However as at the time of considering this opinion none has been
able.<o:p></o:p>&nbsp;In
my research I have not been able to get a case that falls on all fours with
this case. However I had the case of Kpekata
v COP (1963) 1 GLR 398.<o:p></o:p>&nbsp;In
this case, the appellant was convicted by the Circuit Court on two (2) counts,
one of extortion by a public officer and one of defrauding by false pretences.
In the cause of the trial, the prosecution asked leave of the Court to recall a
witness who had already given evidence and who had been in Court whilst all the
remaining witnesses were giving evidence. The defendant objected, but the
application was granted. The recalled witness then gave evidence of a
confession allegedly made by the accused. This confession had not previously
been deposed to by any of the witnesses.<o:p></o:p>&nbsp;The
Supreme Court said at page 401 of the report thus:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; “In our view it is important that when an
application is made for the recall &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; of
a witness the Court should enquire from counsel or the applicant the nature of the evidence the witness was being
recalled to give and if it &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; appears
that the &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; evidence intended to be
given is not an explanation of &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; something
he had already said, the application should be refused. A &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; witness should only be recalled when
it becomes necessary to explain &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; in
very exceptional cases when it &nbsp; would be
in the interest of justice to &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; do so
and not otherwise. In our view, the
appellant’s alleged confession &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; should
not have been admitted by the Court at that stage and in the &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; circumstances in which it was given in
evidence.”<o:p></o:p>&nbsp;The&nbsp;&nbsp; above concerns a recall of a witness who
testified about an alleged confession which was never deposed to in the trial.
He also sat in when other witnesses testified.<o:p></o:p>&nbsp;In
the instant case, there was a total denial by the defendant on the allegation
put forward by the plaintiffs. In matters of this kind, when a person intended
to be called as a witness refuses to go out during trial, such a person will
not be eligible to testify as a witness since he sat in the proceedings.<o:p></o:p>&nbsp;In
the Kpekata case, supra, all parties agreed the recalled witness sat in during
the testimony of other witnesses. In the instant case, there was opposition to
that allegation. This is normal though. But I do not think, mere allegation
that a person sat in Court without prove should be accepted by the Court. When
such is made without prove; as he who alleges must prove, the Court will be
saddled with such allegations. When a party thinks the evidence of a witness
will cause his case, he will raise this objection.<o:p></o:p>&nbsp;Having
reviewed this instant objection, I am of the view that, the allegation had not
been made and the person can testify.<o:p></o:p>&nbsp;

Objection
overruled.&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &n</main>