AYAMGA YAKUBU AKOLGO vs. PAPA PRAH @ BLACK EAGLE, EBUSUAPANYIN KWESI BEDIAKO AND BRAM RODENBURG [2022]DLHC11621

AYAMGA YAKUBU AKOLGO vs. PAPA PRAH @ BLACK EAGLE, EBUSUAPANYIN KWESI BEDIAKO AN... [2022]DLHC11621

Date	2022-07-29
Suit No.	SUIT NO: E2/74/18
Citation No.	[2022]DLHC11621

HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE J.

DR. JUSTICE SREM-SAI FOR THE PLAINTIFF /RESPONDENT

CONSTANTINE M. KUDZEDZI ESQ. FOR 3RD DEFENDANT/APPLICANT

[2022]DLHC11621
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													<main id="main" class="content" style="min-height: 60rem" >AYAMGA YAKUBU AKOLGO<o:p></o:p>(PLAINTIFF/RESPT)<o:p></o:p>vs.<o:p></o:p>PAPA PRAH @ BLACK EAGLE, EBUSUAPANYIN
KWESI BEDIAKO AND BRAM RODENBURG<o:p></o:p>(DEFENDANT/APPLICANT)<o:p></o:p>[HIGH COURT, SEKONDI]<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>COUNSEL:<o:p></o:p>DR. JUSTICE
SREM-SAI FOR THE PLAINTIFF /RESPONDENT<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;">

<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-align:
justify;line-height:150%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">CONSTANTINE
M. KUDZEDZI ESQ. FOR 3RD DEFENDANT/APPLICANT <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS
LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE J.<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="margin-bottom:0cm;margin-bottom:.0001pt;
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>&nbsp;On
7th April, 2022 after the attorney for 3rd defendant was
discharged from the witness box and counsel for the 3rd defendant
announced the closure of 3rd defendant’s case, the court ordered
counsel to file their written addresses within 21 days. Counsel for the
Plaintiff has complied with the order of the court to file his written address
but Counsel for the 3rd defendant has not done so. Meanwhile, the case
has been fixed for judgment on 20th October, 2022.<o:p></o:p>Counsel
has rather filed a Motion on Notice on behalf of 3rd Defendant’s
attorney/Applicant for leave to file and recall her (attorney) to tender the
full complement of the Power of Attorney (Exhibit 1) with its annexures. According
to Applicant, the application is grounded under sections 68 and 79 of the
Evidence Act, 1975 (NRCD 323) as well as Orders 36(5) and 19 of the High Court
(Civil Procedure) Rules, 2004 (CI 47). The application is supported by a nine
paragraph affidavit which set out the factual basis for it.<o:p></o:p>Counsel
for the Applicant submitted that after the 3rd Defendant’s attorney
was discharged from the witness box, she noticed that the full complement of
the power of attorney (Exhibit 1) donated by the 3rd defendant was
not attached to the witness statement. That on the face of Exhibit 1 are some
annexures and these annexures were inadvertently not attached to the Power of
Attorney. That Applicant tendered the Power of Attorney without the annexures.
Counsel is therefore praying the court to grant the Applicant leave to reopen
the case by permitting her to tender the annexures.<o:p></o:p>Counsel
argued that the Evidence Act, 1975 (NRCD 323), permitted a court to re-call
witnesses, if it bodes well for the interest of justice and that to the extent
that the document was tendered without the attachments, the court should grant
them leave to do so in the interest of substantial justice. Counsel argued that
the issue of prejudice does not arise as the motion is only designed to correct
an inadvertence.<o:p></o:p>Plaintiff/Respondent
is opposed to the application. In support of Respondent’s case, counsel
submitted that the application was brought in a pompous breach of the Court’s
order to file their addresses and also the rules of procedure, as the matter
was slated for judgment. Counsel for the Respondent also argued that the
application was brought in absolute bad faith in the sense that the witness (Applicant
herein) was crossed examined on the issue of the annexures. That the
application is a desperate attempt to rehabilitate 3rd defendant’s
case at a time when the case is closed and they have addressed the court on the
issue. Counsel also stated that the documents which are sought to be tendered
are all irrelevant to the issue of the authenticity of the power of attorney.<o:p></o:p>Counsel
cited the case of Kpekta v The Commissioner of Police [1963] 1 GLR 398 and
argued that since the deposition shows clearly that the evidence (the reason
for the application) was already available and was in the possession of the Applicant,
the rules do not permit the court to reopen the case by recalling the witness
to tender the documents.<o:p></o:p>At
the heart of this application is whether the Applicant’s case should be re-opened
to enable her return to the witness box and tender the said annexures to the
Power of Attorney.<o:p></o:p>Litigants
are expected to present all the pieces of evidence available to them in support
of their case during the pendency of the trial. Thus, at the closed of a
party’s case it is presumed that he had taken the liberty to place the whole of
his case before the court. The court can however exercise its inherent
jurisdiction to re-open a closed case to enable a party to adduce a fresh or
further evidence. The court can only grant the application under exceptional
circumstances.<o:p></o:p>In
Prosecutor v Zejnil Delalic and others,
Case No. IT-96-21-A (20 February 2001), the Appeals Chamber of the UN Special
Tribunal on Serious Crimes Committed in the Former Yugoslavia espoused the
principles governing re-opening of closed cases for the purposes of adducing fresh
or further evidence as follows:<o:p></o:p>“283. The Appeals Chamber
agrees that the primary consideration in determining an application for
reopening a case to allow for the admission of fresh evidence is the question
of whether, with reasonable diligence, the evidence could have been identified
and presented in the case in chief of the party making the application.&nbsp; If it is shown that the evidence could not
have been found with the exercise of reasonable diligence before the close of
the case, the Trial Chamber should exercise its discretion as to whether to
admit the evidence by reference to the probative value of the evidence and the
fairness to the accused of admitting it late in the proceedings …”<o:p></o:p>