BERNARD OSEI BOATENG vs. NELSON TWUMASI AND OTHERS [2019]DLHC6876

Date	2019-05-10
Suit No.	SUIT NO. RPC 67/2014
Citation No.	[2019]DLHC6876

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE

FREDERICK KANKAM BOADU FOR THE PLAINTIFF/APPLICANT

DR. STEPHEN KOFI SONDEM FOR THE 5THDEFENDANT/RESPONDENT

[2019]DLHC6876
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													<main id="main" class="content" style="min-height: 60rem" >BERNARD OSEI BOATENG<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>NELSON TWUMASI AND
OTHERS<o:p></o:p>(DEFENDANT)<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>COUNSEL:<o:p></o:p>FREDERICK
KANKAM BOADU FOR THE PLAINTIFF/APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DR.
STEPHEN KOFI SONDEM FOR THE 5THDEFENDANT/RESPONDENT<o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE<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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</div>In
this application the plaintiff/applicant (hereinafter called the applicant) is
inviting the court to set aside the witness statement of one Alex Brobbey filed
on behalf of the 5th defendant/respondent (hereinafter called the
respondent) on 6th December, 2018.<o:p></o:p>The
said Alex Brobbey was given a power of attorney to testify on behalf of the 5th
defendant. This was after the applicant had closed its case and the 5th
defendant was expected to open his case. Following the power of attorney, the
attorney herein (Alex Brobbey) filed a witness statement to testify in his
capacity as the attorney of Charles Mensah, the 5th defendant. In
the witness statement the attorney herein attached documents which he intends
to rely on as his exhibits. It must be noted that these documents were not
attached by the 5th defendant in his original witness statement
filed on 30th March, 2017. It is the witness statement of the
attorney herein that has triggered the instant application.<o:p></o:p>The
grounds of the application are contained in the affidavit in support of the
motion and supplementary affidavit filed on 12th February, 2019 and
26th March, 2019 respectively.<o:p></o:p>The
respondent is opposed to the application and has demonstrated its opposition in
an affidavit filed on 28th February, 2019.<o:p></o:p>The
gravamen of the applicant’s case as submitted by the learned counsel is summed
up as follows:<o:p></o:p>1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Counsel submits that the witness statement
of Alex Brobbey was filed to introduce fresh evidence which are inadmissible.
He contends that since no exhibits were attached by the 5th
defendant during the case management conference it will be unfair to introduce
these exhibits at this stage of the trial since the exhibits did not go through
the admissibility test during the case management conference. He submits that
the attorney’s witness statement if admitted in evidence will prejudice
applicant’s case since the exhibits attached were not scrutinized during the
case management conference.<o:p></o:p>2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Counsel also argues that per the power of
attorney, the attorney only act in the stead of his principal. Therefore, the
witness statement filed by the 5th defendant’s attorney is not
required since he is bound by the witness statement of his principal. According
to counsel since the said statement is not a sworn statement but a verified
statement, the attorney is required to rely on it without submitting a fresh
statement.<o:p></o:p>In
his response, counsel for the respondent referred to paragraph 3 of the
affidavit in opposition to the motion and submitted that on 30th
March, 2017 the 5th defendant pursuant to Order 21 rule 2 of CI 47
filed a Notice of Discovery and Inspection of which he intended to rely on at
the trial of the suit and that all the documents which were attached by the
attorney were procured from the discoveries. Thus the question of prejudice
does not arise since there is no element of surprise in respect of the documents.
Counsel also submitted that it was necessary for the attorney to file his own
witness statement since per the power of attorney he is expected to give
evidence in the stead of the 5th defendant.<o:p></o:p>In
Dzanku v Afalenu and Anor [1968] GLR 792 to 794, Kingsley Nyinah J (as he then
was) defined power of attorney as:<o:p></o:p>“It is described as a formal document
whereby one empowers another to stand in his stead or represent him for certain
specific purpose</main>