BENJAMIN YAW OSEI vs. THE CHIEF JUSTICE, JUDICIAL COUNCIL AND THE ATTORNEY GENERAL [2019]DLSC8747

BENJAMIN YAW OSEI vs. THE CHIEF JUSTICE, JUDICIAL COUNCIL AND THE ATTORNEY GENE... [2019]DLSC8747

Date	2019-12-04
Suit No.	CIVIL APPEAL NO J4/ 47/ 2019
Citation No.	[2019]DLSC8747

GBADEGBE JSC (PRESIDING)

BENIN JSC

APPAU JSC

PWAMANG JSC

KOTEY JSC

JOE ABOAGYE DEBRAH FOR THE APPELLANT.

MRS STELLA BADU (CHIEF STATE ATTORNEY) FOR THE DEFENDANTS BEING

LED BY GODFRED YEBOAH-DAME (DEPUTY ATTORNEY GENERAL)

[2019]DLSC8747
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													<main id="main" class="content" style="min-height: 60rem" >BENJAMIN YAW OSEI<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>THE CHIEF JUSTICE, JUDICIAL COUNCIL
AND THE ATTORNEY GENERAL<o:p></o:p>(DEFENDENTS)<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></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:0cm;margin-bottom:.0001pt;
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solid windowtext 1.5pt;padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CIVIL APPEAL NO J4/ 47/ 2019&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: 4TH DECEMBER, 2019<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>JOE ABOAGYE DEBRAH FOR THE APPELLANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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MRS STELLA BADU (CHIEF STATE ATTORNEY) FOR THE
DEFENDANTS BEING LED BY GODFRED YEBOAH-DAME (DEPUTY ATTORNEY GENERAL)<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>GBADEGBE JSC (PRESIDING), BENIN JSC, APPAU JSC,
PWAMANG JSC, KOTEY JSC<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;border:none;
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padding:0cm;mso-padding-alt:1.0pt 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>This is an appeal against the interlocutory ruling
of the Court of Appeal dated 28/02/2019. The appeal is a second one filed by
the plaintiff in the trial High court after his first appeal to the Court of
Appeal did not find favor with the court. <o:p></o:p>The facts are that, at a case management conference
during application for directions, the plaintiff objected to the admissibility
of a document attached to the written statement of defendants’ witness. The
preliminary objection was that the document, which the defendants had filed at
the registry of the court in compliance with Rule 7A of Order 32 together with
the witness statement of defendant’s witness, was not admissible and therefore
should not be adopted by the court as part of the documents to be relied on by
the defendant at the trial. The reason for saying the document was not
admissible was that it contained material that was prejudicial to plaintiff’s
case. <o:p></o:p>The judge overruled the preliminary objection and
held that the document was relevant and therefore admissible without the
portions which plaintiff said would be prejudicial to his case. The trial judge
accordingly ordered for the cancellation of the portions in the document which
had no relevance to the plaintiff and accepted it as a document which could be
tendered at the trial. The plaintiff appealed against the judge’s ruling to the
Court of Appeal and the Court of Appeal dismissed the appeal, affirming the
High Court ruling. The appeal before us is basically against the affirmation of
the High Court ruling by the Court of Appeal notwithstanding the fact that
plaintiff stated as many as fifteen grounds of appeal in both his notice of
appeal filed on 11/03/2019 and additional issues filed on 18/03/2019. <o:p></o:p>We have considered the submissions made by both
parties and we do not find any merit in the appeal. We do not find any error on
the part of the trial judge in accepting the document in question marked
Exhibit 4, as a relevant document that could be tendered by the defendant
during the trial, less the portions ordered to be expunged or cancelled by the
trial court. Whether the text of the document is credible or authentic is a
matter that could be determined by the trial court during the trial.
Plaintiff’s objection to the document at the case management conference was
therefore premature and the trial judge was right in dismissing same. We
accordingly dismiss the appeal and affirm the decision of the Court of Appeal. <o:p></o:p>On the issue as to whether or not the 1st
and 2nd defendants are necessary parties to the suit, both parties
did file their written submissions as directed by this Court. Whilst plaintiff
is of the view that the 1st and 2nd defendants are
necessary parties; the defendants think otherwise. On the strength of the
authorities of this Court expressed in cases like TSATSU TSIKATA v CHIEF JUSTICE &amp; ATTORNEY-GENERAL [2001-2002] SCGLR
437 and AMEGATCHER v
ATTORNEY-GENERAL (No.1) &amp; Others [2012] SCGLR 679, we contend that from
the nature of the reliefs sought by the plaintiff, which are all declaratory
reliefs, the 1st and 2nd defendants are not necessary
parties to the action. The fact is that their position and that of the 3rd
defendant on the issues before the Court do not conflict in any way. The 1st
defendant acted in her administrative capacity as the head of the judiciary in
dismissing plaintiff but not in her personal capacity. Her official act, which
is presumed to have been regularly performed, is that of the State. Her defense
could therefore be taken care of by the 3rd defendant who represents
the State in all civil and criminal actions by virtue of article 88 (5) of the
Constitution, 1992. The 2nd defendant is also in the same boat with
the 1st defendant. It is a Council with a large composition of
eighteen (18) members established under the authority of the Constitution,
1992. It derives its power from article 154 of the Constitution. It has no
authority to sue or be sued so any suit against the 2nd defendant
must be directed against the 3rd defendant. We therefore order that
the names of the 1st and 2nd defendants be struck out
from the suit since they are not necessary parties. <o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>Y. APPAU<o:p></o:p>JUSTICE OF THE SUPREME COURT<o:p></o:p><o:p>&nbsp;</o:p>N.S. GBADEGBE <o:p></o:p>