Tandah v People's Health Services and Another (GJ/0548/2021) [2024] GHAHC 519 (24 June 2024)

IN THE HIGH COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE GENERAL JURISDICTION DIVISION “2” HELD IN ACCRA ON MONDAY THE 24TH DAY OF JUNE, 2024 BEFORE HER LORDSHIP JUSTICE FORSON AGYAPONG BAAH, JUSTICE OF THE HIGH COURT. SUIT NO. GJ/ 0548/2021 CHARLES TANDAH : PLAINTIFF VERSUS 1. PEOPIE’S HEALTH SERVICES : DEFENDANTS 2. DR. JOEL AKWETEY : ========================================================================== PARTIES: PLAINTIFF PRESENT. DEFENDANTS ABSENT. COUNSEL: EMMANUEL BAFFOUR YEBOAH WITH ABIGAIL KWANTISIWAH EWIKU AND MAXWELL KYEI FREMPONG FOR PLAINTIFF PRESENT. NII LANTEI BLANKSON-MILLS WITH THOMPOSON ADJIABER FOR JAINIE AGOVE JAINIE FOR DEFENDANTS PRESENT. =========================================================================== R U L I N G: On 03/04/2024 counsel for Plaintiff filed a motion on notice for leave to file supplementary witness statement. In the affidavit in support the Plaintiff deposed, among others that on 21/02/2024, when this matter came up for hearing the court drew counsel for plaintiff’s attention to intimation made by previous counsel for Plaintiff (Yaa Gyakobo Esq.) of her intention to file some other processes. Applicant further deposed at paragraph 5 that “That I am advised by counsel and I verily believe same to be true that before any further process can be filed, leave of the Honorable court has to be sought and obtained first”. He deposed at paragraph 6 that he intends filing the supplementary witness statement and prayed for leave to do same. He attached no exhibits. When the motion was served on the Defendants/Respondents on 07/05/2024 one Olivia Sowah deposed to an affidavit in opposition on behalf of the Respondents. At paragraph 7 of the affidavit in support it was stated as follows: “I am advised by counsel and verily belief same to be true that the Applicant closed his case on the 11th day of April 2020. Attached and marked as Exhibit 0S 1, is a copy of the certified true copy of the proceedings of 11/02/2022”. At paragraph 9 of the affidavit in opposition the deponent stated as follows: “I am advised by counsel and verily believe same to be true that by the instant application the Applicant is seeking to re-open his case having closed same about two years ago”. At paragraph 11 of affidavit in opposition deponent stated as follows: “I am advised by counsel and verily believe same to be true that the Applicant has not demonstrated in any way whatsoever that he is entitled to a grant of the instant application and said at paragraph 12 that the application is unmeritorious and incompetent and a belated attempt by Applicant to rehabilitate an already weak case which was further weakened under cross examination.”. She attached Exhibit OS 1, copy of the proceedings of 11/4/2022. Submitted that the Applicant failed to attached any proposed witness statement to give the court an indication of the evidence he wants to adduce to inform the courts decision to grant or not to grant the application. Applicant according to counsel also failed to attached the proceedings of 13/02/2021 to show the court evidence of what Applicant said at paragraph 5 of supplementary affidavit. He prayed the application be dismissed. The Applicants application, there is no doubt, is an application to re-open his case after he had expressly closed his case about two years ago. In the Supreme Court case of JOHN MAHAMA V EC AND ANOR (Supra), the court held as follows: “At the time this application was filed, Petitioner had expressly closed his case, likewise the Respondents. He is therefore seeking our discretion to re-open his case and to lead further evidence, which evidence he never disclosed to the court. He is not entitled to his prayer as of right, it is subject to our discretion and before we can exercise our discretion in his favour, he must satisfy certain basic conditions as laid down by case law. The general expectation imposed on all litigating parties is to place the whose of their case before the court at the time of hearing. The process of invoking the inherent jurisdiction of the court at the close of the cases of the parties to re-open a closed evidence is thus, an extraordinary step, which the importance of finality of litigation frown upon, save the presence of exceptional circumstances” Their Lordships cited the Canadian case of OAKLEY V ROYAL BANK OF CANADA 2013 ONSC (2013) OJ NO. 109 (SC), Andre J held “ The Court requires the parties to litigation to bring forward their whole case ………….. In both Civil and Criminal matters, The Crown or Plaintiff must produce and enter in its own case all clearly relevant evidence it has……………. Their Lordships also in the JOHN MAHAMA case (Supra) cited the case of KOMBAT V LAMBIN (1989-90) GLR 324 @ Page 326, where Benin JSC (then Benin J) stated as follows: “The general rule of evidence was that after a prisoners case was closed, a judge should only call a fresh witness when a new matter had arisen ex improvise which could not have been foreseen. Such witness could in a civil case only be called with the consent of all the parties. And although the Evidence Decree 1975 (NRCD) 323, permitted a court to call or re-call witness. It was subject to the general rule”. The Supreme Court also in the JOHN MAHAMA CASE (Supra) cited the case of SCOTT V COOK (1970) 0J NO. 1487, 2 OR 769 (HCJ) which first laid down the test to assist the trial judge in exercising his or her discretion to re-open a trial, which test requires the applicant to: (1) Show that the evidence he or she seeks to adduce is such that if it had been presented at trail, it would probably have changed the result and (2) Prove that such evidence could not have been obtained by reasonable diligence before the trial”. Also in WARREN AND ANOR V OKUDJETO AND 3 ORS (2015) 80 GMJ II, The Supreme Court (SC) held that “It is necessary to point out that an applicant who seeks to adduce fresh evidence under the rule must first establish whether or not the evidence sought to be adduced was not in his/her possession or was not obtainable by the exercise of reasonable diligence or human ingenuity before the impugned decision was rendered”. See also POKU V POKU (2007-2008) SCGLR 996 AT 998. So the court has a wide discretion to re-open cases but that discretion should be exercised sparingly and with restraint. The Court will assess the relevance, necessity and materiality of the proposed evidence; the effect, if any, the re-opening may have o the expeditious conduct of the trial at large and the importance of the integrity of the trial process and finally, whether the other party will be prejudiced if the re- opening is allowed or a miscarriage of justice perpetrated if it is not. See JOHN MAHAMA case Supra. In the instant application first of all the Applicant failed to attach the proceedings of 13/02/2021 to show the court evidence of what he said at paragraph 5 of his supplementary affidavit, secondly, the Applicant did not attach to his application the new or fresh evidence he wants to adduce ( Proposed witness statement). Applicant neither disclosed how that evidence would advance his case, to enable the court to assess the relevance etc the re-opening may have on the conduct of the trial, the importance of the integrity of the trial process and whether the other party will be prejudiced if the re-opening is allowed or a miscarriage of justice perpetrated if it is not. Applicant also did not disclose whether or not the evidence sought to be adduced was not in his possession or was not obtainable by the exercise of reasonable diligence or human ingenuity, before the trial. For the above reasons this court finds no merit in Applicants application and same is refused and dismissed. Cost of 1,000.00. In favour of Defendant/Respondent against Plaintiff/Applicant. (SGD.) BAAH, FORSON AGYAPONG J. JUSTICE OF THE HIGH COURT.