LUIGI MARTINIS vs. OUMAROU KANAZOE [2017]DLHC3324

Date	2017-01-16
Suit No.	SUIT NO. AC 676/2015
Citation No.	[2017]DLHC3324

ERIC K. BAFFOUR ESQ. JUSTICE OF THE HIGH COURT

[2017]DLHC3324
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													<main id="main" class="content" style="min-height: 60rem" >LUIGI MARTINIS<o:p></o:p>vs.<o:p></o:p>OUMAROU KANAZOE<o:p></o:p>[HIGH COURT
(COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO. AC
676/2015&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; &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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;16TH
JANUARY, 2017<o:p></o:p>

</div>CORAM:<o:p></o:p>ERIC K. BAFFOUR ESQ. JUSTICE OF THE HIGH COURT<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
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solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>On the 2/11/16 the court granted a motion on notice by
the plaintiff to amend its witness statement; notwithstanding same having been
opposed by the learned counsel for the defendant, Ama Opoku Amponsah (Mrs.) At
the commencement of the Case Management Conference and when it came for the
consideration of the amended witness statement of plaintiff, the amended
witness statement filed has been met with a hydra headed objections on numerous
aspects.<o:p></o:p>I proceed to set out each of these objections raised
and follow that with my ruling on each of the objections:<o:p></o:p>First the defendant complains that the amended witness
statement of plaintiff has introduced subtitles and subheadings which were not
part of the proposed supplementary witness statement. Defendant cites
paragraphs 5, 11, 11(j), 11(k), 12, 14, 17, 22, 31, 40, 41, 43, 44 and 54 of
the amended witness statement. Defendant calls for the court to expunge those
subheadings as long as they were not contained in the proposed amended
statement. <o:p></o:p>I have examined the subheadings placed by the
plaintiff and it is my view that in an amended witness statement of sixty two
(62) paragraphs and further divided into sub paragraphs the decision to sub
caption some of the amended witness statement of plaintiff, even though not
originally part of the proposed amendment, if allowed will not occasion any
harm, injury or damage to the case of the defendant. It might have been added
for the purposes of convenience and would dismiss the objection of defendant
regarding its opposition of the subtitles in the amended witness statement of
plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>Two, defendant complains that paragraphs 11(c) and
11(d) is just a repetition of paragraphs 5 and 6 of the original witness
statement of plaintiff. I do not think, granted that paragraphs 11(c) and 11(d)
are repetitions of paragraphs 5 and 6 of the original statement necessarily
calls for it to be expunged. I agree with the learned counsel for plaintiff
that care must be taken not to strictly confuse the rigid rules regulating
pleadings with that of witness statement. As a witness statement is after all
the evidence in chief of the witness. There is no gainsaying in the fact that
it is permissible in some instances for a witness in the box to repeat himself
for the purpose of emphasis. The court in the exercise of its discretion may
allow such evidence. Giving the fact that the plaintiff is not a lawyer and
writing his own witness statement one or two instances of repetition when
allowed by the court in the exercise of its discretion, I think, would be
within the confines of the rules. This second ground of objection is also
dismissed.<o:p></o:p><o:p>&nbsp;</o:p>Third, defendant raises the issue of paragraph 40 of
the original witness statement which has now been broken into six new paragraphs
as 11(f), 11(g), 11(h), 11(i) and&nbsp; 11(k)
and paragraph 40 of the original witness statement completely deleted. I think
the court would be making fetish of this point if it were to order the
restoration of the original paragraph 40 rather than allowing the new paragraph
11 with its subdivision of f, g, h, i and k to stand. I find no merit in this
point and dismiss same.<o:p></o:p><o:p>&nbsp;</o:p>Four, again I do not find it substantial and weightier
enough of the claim that the phrase “each
of them dealt with me” not to have been in the proposed amendment and ought
to be expunged. This when allowed to stand will not, again occasion any
injustice, injury or harm to the case of the defendant. <o:p></o:p><o:p>&nbsp;</o:p>Five, defendant is unhappy that paragraph 2(k) which
formed part of paragraph 40 of the original witness statement is completely
missing in the amended witness statement filed. It is my opinion that unless
defendant can demonstrate that the omission was deliberate and calculated to
overreach him or intended to enable plaintiff change the nature of his entire
intended evidence, the omitted words ought not to be ordered by the court to be
restored. Defendant has not demonstrated that to me save the bare claim that
the sentence “significantly the EU delegation
in Ghana kept referring to the contractor as Oumarou Kanazou despite 1st
defendant’s claim that Oumarou Kanazoe and Enterprise Oumarou Kanazoe refer to
the same entity (se EU letter of 20th of March, 2015, Ex G’)”
has been omitted. This ground is also dismissed as without merit.<o:p></o:p>Six, defendant contend that portions of paragraphs
11(k), 11(i), 11(m), 11(n) and 11(o) of the amended witness statement are not
borne out of the pleadings. This is a serious objection as unpleaded facts if
allowed into evidence, a court is bound to consider same in its judgment and
the claim calls for detail attention to examine whether the above paragraphs
were pleaded. The paragraphs 11 of the amended statement speaks of a contract
of employment entered into between the plaintiff with Oumarou Kanazou for a specific
period with the contract document released to the plaintiff ten months after
the execution. Plaintiff further state that his employer was Kanazoe Freres
even though he knew at the execution state that his contractual relationship
was with Oumarou Kanazoe. The biggest problem of defendant is with 11(n) which
is to the effect that the salaries and allowances of plaintiff delayed upon
engagement forcing his s</main>