TRANSROYAL LIMITED vs. KYEI BAFFOUR MAXWELL [2018]DLHC4002

Date	2018-02-13
Suit No.	SUIT NO. RPC 248/2014
Citation No.	[2018]DLHC4002

DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT

DENNIS OSEI ANTWI FOR THE PLAINTIFF

BENJAMIN OSEI BOATENG FOR THE DEFENDANT

[2018]DLHC4002
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													<main id="main" class="content" style="min-height: 60rem" >TRANSROYAL LIMITED<o:p></o:p>vs.<o:p></o:p>KYEI BAFFOUR MAXWELL<o:p></o:p>&nbsp;[HIGH COURT
(COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT&nbsp;NO. RPC 248/2014&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; DATE: 13TH FEBRUARY, 2018<o:p></o:p>

</div>COUNSEL
<o:p></o:p>DENNIS OSEI ANTWI FOR THE
PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">RULING<o:p></o:p>

</div>On
8 February, 2018 during cross examination of the plaintiff’s representative, counsel
for the defendant prayed the court for an order directing the witness to
provide the salary records of the plaintiff’s District Managers in the year
2010, 2011, 2012 and 2013.<o:p></o:p>Counsel
for the plaintiff objects to the application. The basis of the objection is
that the era of the application of High Court (Civil Procedure) (Amendment)
Rules, 2014 (CI 87) where case management conference is conducted prior to the
trial, parties are required to indicate on their pre-trial check lists whether
there are outstanding discoveries or interrogatories. Counsel submits that
since CMC has long been conducted and the defendant did not give any indication
of his desire to conduct interrogatories or discoveries. Thus, granting the
application to order the witness to produce documents during the trial is not
only unfair but against the rules, counsel submits. <o:p></o:p>In
response to the objection, counsel for the defendant submits that no rule of
this court will be breached if the court upholds the prayer. He submits that
the witness himself has indicated that he has the records and can provide it to
the court. He prayed the court to overrule the objection, as production of the
documents will help the court to administer justice.<o:p></o:p>I
haveobserved that the advent of CI 87 and its application in relation to the High
Court (Civil Procedure) Rules, 2004 (CI 47) seems to generate some
controversies.<o:p></o:p>Order
21 rule 10 of CI 47 provides:<o:p></o:p>“Order
for production to Court <o:p></o:p>10. At any stage of the proceedings in any cause or
matter the Court may, subject to rule 12 (1), order any party to produce to the
Court any document in the party's possession, custody or power relating to any
issue in the cause or matter and the Court may deal with the document when
produced in such manner as it thinks fit.”<o:p></o:p>A
cursory look at the provisions of CI 87 shows that it amended Orders 32, 34,
38, 41 and 58 of CI 47. These amendments were made to ensure that Order 1 rule
1 (2) of the rules that set out the objectives of CI 47 is achieved. Order 1
rule 1 (2) provides: <o:p></o:p>“These
Rules shall be interpreted and applied so as to achieve speedy and effective
justice, avoid delays and unnecessary expense and ensure that all matters in
dispute between the parties may be completely, effectively and finally
determined and multiplicity of proceedings concerning any of such matters
avoided.”<o:p></o:p>Clearly,
CI 87 did not amend Order 21 rule 10 of CI 47. CI 87 regulates specific issues
dealing with case management in general while Order 10 of CI 47 specifically
regulates the production of documents in the custody of a party during trial.
The enactment of CI 87 has not impliedly amended Order 21 rule 10 of CI 47, as
the subject matter of the respective provisions are substantially different.
Both laws are not of the same character for the latter (CI 87) to be deemed to
have amended the earlier one (Order 21 rule 10 of CI 47). <o:p></o:p>In
the instant case, the defendants answered “YES” to the question as to whether
he intends to apply for further orders relating to discovery in the pre-trial
check (PTC) list. He also gave an indication in the PTC that he will apply for
the order when the need arises. It is my considered opinion that assuming he
had answered “NO” to the discovery inquiry, that answer would not have estopped
him from applying to the court for the production of documents in the custody
of his opponent during the trial. Implication of the alternate view amounts to
a shutdown of the door of justice on a litigant who requires a document to back
his case for effective justice to be done. That is palpably incompatible with
Order 1 rule 1(2) of CI 47.<o:p></o:p>The
document being sought to be produced is related to the issues set down for
trial particularly the counter-claim. The defendant’s counter-claim includes:<o:p></o:p>“(b)
Cash t</main>