GARIBA VRS. OSAFO (CR/0996/2016) [2024] GHAHC 260 (10 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, LAW COURT COMPLEX (CRIMINAL DIVISION “2”) HELD IN ACCRA ON MONDAY, 10TH DAY OF JUNE, 2024 BEFORE HER LADYSHIP JUSTICE MARIE- LOUISE SIMMONS (MRS.), JUSTICE OF THE HIGH COURT CASE NO.: CR/0996/2016 IDDRISS GARIBA – PLAINTIFF/APPLICANT (SUING PER HIS LAWFUL ATTORNEY, MORGAN GAMEL H/NO 54/2) ADADRAKA, ACCRA VRS. EBENEZER OSAFO – DEFENDANT/RESPONDENT AMASAMAN, ACCRA ========================================================================== RULING ========================================================================== This is an application mounted by counsel for the Plaintiff/Applicant on behalf of the Plaintiff, hereinafter to be referred to “the Applicant” which application was filed on the 25th April 2024. The application is for Leave to File a Supplementary Witness Statement and to Recall the Plaintiff’s Attorney to Tender the said supplementary witness Page 1 of 12 statement. There is an affidavit of service of same on counsel for the Defendant/Respondent on the 8th May 2024. There is also an affidavit in opposition filed on the 15th May 2024 on behalf of the Defendant/Respondent herein after to be referred to as the Respondent with proof of service on the Plaintiff/Applicant’s counsel on the 28th May 2024. THE AFFIDAVIT IN SUPPORT The counsel for the Applicant deposes per the accompanying affidavit deposed to by himself, that this application has become necessary as a result of the fact that the Applicant who resides in the USA, through his Lawful Attorney gave him, the counsel, a document relevant to this case, being an instrument covering the Applicant’s grantor’s acquisition but “he failed to exhibit it as it got mixed up with other documents given to him”. He further deposes that the Applicant in his amended pleadings had stated that his grantor, Alhaji acquired a piece of land from Alhaji Mahamadu Iddrisu, the then Head of the Zongo Community of Amasaman in Accra. That, the said acquisition and transaction between the Applicant’s grantor and the said Alhaji is recited in the Applicant’s Deed of Assignment attached to the his Attorney’s witness statement as Exhibit B. Counsel asserts that as a result of the tendering of Exhibit B, no surprise or injustice will be caused to the Respondent if this application is granted. It is again asserted that as far as possible, a party must be afforded the opportunity to state his case in full and that substantial justice will be served if this application is granted. THE AFFIDAVIT IN OPPOSITION Page 2 of 12 The Respondent’s affidavit in opposition states that in substance, this application is not just a recall of the Applicant’s Lawful Attorney but an opportunity the Applicant seeks to reopen his case and to adduce fresh evidence. The Respondent further asserts that the right for a party to reopen his case is not as of right but an exercise of the Court’s discretion which must be exercised in accordance with case law and laid down principles. The affidavit further deposes that for a party to seek to reopen his case, the Applicant must demonstrate that the evidence he seeks to further adduce at the trial would probably change the results of the case if it had been part of the case. An Applicant is also to prove that such evidence sought to be introduced could not have been obtained by reasonable diligence before the trial. That per the Applicant’s deposition in his paragraph 5 of his affidavit in support, there is an indication that Applicant’s counsel was in possession of the said document sought to be tendered before the trial but failed to attach same to the Applicant’s Attorney’s witness statement. It’s further deposed that it is evident that the Applicant’s Attorney under cross examination seemed oblivious of the facts deposed in the said paragraph 5 of the accompanying affidavit, that the said document was given to the lawyer who failed to produce same. In further opposition, it has been deposed on behalf of the Respondent that the opportunity for a party to reopen his case is “not meant for the indolent, the negligent or reckless litigant but it is for a party to put forward his entire case.” It has therefore been prevailed upon the Court that an opportunity to allow a party to reopen his case must be granted only in exceptional situations. This Applicant, it has been deposed, has woefully failed to demonstrate any exceptional circumstances to warrant a grant of this application and the Application must therefore be dismissed. Page 3 of 12 On the 27th May 2024, counsel for the Applicant was absent from Court but sent message through the Applicant’s Lawful Attorney of his sole reliance on his application filed and its depositions and annexure. Counsel for the Respondent present sought permission to support the Respondent’s opposition filed with the requisite legal authorities. Counsel made reference to the case of JOHN DRAMANI MAHAMA VS. THE ELECTORAL COMMISSION & NANA ADDO DANKWA AKUFO ADDO and submitted that the Supreme Court in that case confirmed the two (2) considerations (referred to above) that a Court must consider in granting such an application. It was impressed upon the Court that per the principle of stare decisis, this Court is bound to consider the principles laid down by the Apex Court in the above stat case in determining this application. THE LEGAL BASIS FOR THIS APPLICATION Though counsel for the Applicant did not state the enactment under which he brought this application, having stated the application as one for leave to file a supplementary document through the recall of the Applicant’s Lawful Attorney, there is an indication that the Applicant’s prayer is for the Recall of a witness. This Court has noted that an application for a Recall of a witness is permissible under Sections 79 and 68 of the Evidence Act, 1975 (NRCD 323) which states as follows: Section 79 “After a witness has been excused from giving further testimony in the action, the witness cannot be recalled without the leave of the Court.” In addition Section 68 of NRCD 323 also states as follows: “The Court on its own motion or on an application by a party may call or recall a witness.” Page 4 of 12 The combined effect of these two (2) provisions means that a witness who has completed giving evidence can only be recalled with leave of the Court and the leave, if it will be granted, is usually at the discretion of the Court. The discretion cannot however be exercised in a vacuum. In KPEKATA VS. COMMISSIONER OF POLICE (1963) 1 GLR 398, the Supreme Court held in the headnotes as follows: “it is important that when an application is made for the recall of a witness the Court, should enquire from counsel or the Applicant the nature of the evidence the witness was being called to give and if it appears that the evidence intended to be given is not an explanation of something he has already said, the application should be refused unless, in very exceptional cases, it would not be in the interest of justice to do so.” See also NII ASHITEY SAASABI II VS. BASHARU AGORO 2 ORS (2020) JELR 108391 DATED 27TH JULY 2020, HC This Court has noted that under the provisions on recall quoted supra, there are no elaborate procedures on what stage of a trial and under what conditions that such an application for recall of a witness can be entertained. However, case law as quoted above has given further clarity and explained that a recall must be allowed only when a witness is to be called upon to give a further explanation of something already said or testified on. Now would this preset application, qualify properly so called as an application for recall? It is my considered opinion that it would not. This is because this application has been brought forward at a time when the Applicant has closed his case. Having closed his Page 5 of 12 case, any further steps to be taken at providing further evidence to support the case already closed, would be an attempt to reopen his case. This is the reason why in this application, the prayer before the Court could not only be one to recall the Applicant simplicita. The application is first a prayer to be granted leave to “file a supplementary witness statement.” Any grant of a prayer to file such a document after close of case of a party, would certainly amount to a reopen of case to produce further evidence and not an ordinary recall of a witness simplicita. THE ANTECEDENTS OF THIS CASE LEADING TO THE APPLICATION This case was transferred to this Court by the Order of the Chief Justice in October 2018. However, the Writ and Claim were filed on the 12th July 2016 with an amended Writ and Claim also filed on the 29th June 2017. The Defendant filed his defense on the 30th November 2016 and subsequently amended his Statement of Defense twice with the latter application granted on the 25th February 2022 and with the amended defence filed on the 9th March 2022. Application for Directions was taken on the 4th April 2017. The Applicant (Plaintiff) has so far filed witness statement for only the Plaintiff’s Lawful Attorney whilst the Respondent (Defendant) filed for two (2) witnesses but later informs the Court, no witness will be called to support the Defendant's case. Case Management Conference (CMC) was conducted on the 1st April 2021. However with subsequent amendments to the witness statements of both parties and the absence of both parties and their counsel, the case was adjourned sine die in October 2022. It was not until the 19th April 2023 that the case was revived with the Defendant granted further leave to amend his defense filed on the 3rd May 2022. CMC was further conducted after the several amendments made. Page 6 of 12 The Applicant opened his case on the 8th April 2024 with the testimony of his Attorney, Alhaji Abdul Rashid. Cross examination ended on the 12th April 2024 and he was discharged. Meanwhile, whilst under further cross examination on the 12th April 2024, counsel for the Applicant informed the Court of his realization that he had failed to exhibit the assignment he seeks to tender per this application. He therefore sought leave, viva voce to be able to exhibit same. The proceedings of the day will indicate that the Court advised that since the Attorney was still in the box under cross examination this application could only be entertained after the witness has completed cross examination. Cross examination was therefore completed and the Applicant’s Lawful Attorney, the only witness of the Applicant was discharged. THE ANALYSIS BY THE COURT I have considered the application and its annexure as well as the affidavit in opposition. Having established that this present application is in reality an application to reopen the Applicant’s case and to produce fresh evidence by way of the filing of a supplementary witness statement, the Court would now have to access the application as such. The crux of this application is whether the Applicant’s case should be reopened to enable his Lawful Attorney return to the witness box and tender the said Deed of Assignment attached as an annexure to this application. It is the general principle of civil ligation, that Litigants are expected to present all the pieces of evidence available to them in support of their case during the pendency of the trial and not in piecemeal. Thus, at the closed of a party’s case it is presumed that he has gone all length to place the whole of his case before the Court. As it is said always “there are exceptions to every rule”, in this regard, the Court can however exercise its inherent jurisdiction to reopen a closed case to enable a party to adduce fresh or further evidence. The Court can only grant the application under exceptional circumstances. Page 7 of 12 In the case of AYAMGA YAKUBU AKOLGO VS. PAPA PRAH @ BLACK EAGLE & 2 ORS REPORTED ONLINE ON JUDYLAW AS (2022) JELR 109919 (HC), Osei - Hwere J, deciding in a similar application, cited with approval, the international case of PROSECUTOR VS. 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. The case espoused the principles governing reopening of closed cases for the purposes of adducing fresh or further evidence as follows: “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. 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 …” This principle espoused by an International Tribunal is no different from the position of our law is this country. Again in reference to the case of AYAMGA supra, I quote the decision of the Supreme Court in the case of POKU VS. POKU (2007-2008) SCGLR 996 AT PAGE 998, where Wood, C.J. expressed the principle succinctly in the following words: “the rule is intended to assist an Applicant who has made a genuine attempt to look for the evidence and has met with failure. Courts ought therefore to be adept at unmasking attempts by a dissatisfied party coming through the backdoor and under the cloak of having come by new or fresh evidence, seeking to fill in gaps or lapses in his or her case; for the Page 8 of 12 rule is not meant to aid the slothful or the indolent, the careless, negligent or reckless litigant whether acting pro se or through counsel. The application is not granted on compassionate grounds; neither is it meant to give the slovenly, particularly a litigant acting through counsel and who fails at the trial to marshal his facts carefully or fails to conduct his case properly by presenting essential evidence at the trial or through the necessary cross-examination; or also fails to conduct the necessary investigations which would have thrown light on or strengthened his case or give him or her a second chance at rebuilding his or her case.” In the case of the JOHN DRAMANI MAHAMA VS. THE ELECTORAL COMM. & NANA ADDO DANKWA AKUFO-ADDO, WRIT NO J1/5/2021 DATED 16TH FEBRUARY 2021, rightly quoted by counsel for the Defendant/Respondent in his submission, the Supreme Court reiterated the position of the Ghanaian law when it stated: “we wish to reiterate that by settled practice, and in the absence of express rules to that effect, a trial judge, just like this Court in this trial petition, has a wide discretion to reopen proceedings before a judgment is rendered. That discretion is, however, one which should be exercised sparingly and with restraint, as motions to reopen necessarily involve a balancing of the accountability of counsel for decisions regarding the prosecution of its case and the interests of justice. Accordingly, in weighing the propriety of re-opening proceedings to permit new or additional evidence to be led or tendered, the Court will typically consider the following broad questions: i. Would the evidence, if it had been presented during the trial, have had any influence on the result? Page 9 of 12 ii. Could the evidence have been obtained before or during trial by the exercise of reasonable diligence? The Court will also assess: the relevance, necessity, and materiality of the proposed evidence; the effect, if any, the re-opening may have on 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 reopening is allowed or a miscarriage of justice perpetrated if it is not.” From the authorities above, it is apparent that leave to reopen a case is a discretionary power exercised by the Court. Like all discretionary powers, it is to be exercised in accordance with the Constitutional provisions of Article 296 of the 1992 Constitution. An Applicant must demonstrate to the Court that the evidence that he seeks to adduce was not available to him or her and could not have been obtained by reasonable diligence before the trial. It must also be evident to the Court that the evidence is relevant to a material issue in the case. It is equally important in the spirit of fairness for the Court to consider that there will not any potential prejudice to the other party, if reopening of the Applicant’s case is permitted, as well as the effect of permitting reopening on the orderly and expeditious conduct of the trial. In the instant case, Applicant has shown the evidence that he intends to adduce by way of the filing of a supplementary witness statement. It is obvious that this document has been in the possession and custody of the Applicant and or his counsel before and in the course of the trial. Two CMCs have been conducted and several amendments have been made to the witness statements of both parties. The failure of the Applicant to incorporate this important document into his case by tendering same in evidence may be said to be an act of inadvertence as alluded to by his Page 10 of 12 counsel. Counsel for the Applicant has argued that a party must be allowed to produce and support his case in full. There is no doubt about that. There is also no doubt that the document is relevant to the Applicant’s case. I do share in the sentiments of counsel for the Applicant as he admits the fault and failure as his. However, as the Supreme Court further stated in the JOHN DRAMANI MAHAMA case thus: “the application is not granted on compassionate grounds, neither is it meant to give the slovenly, particularly a litigant acting through counsel and who falls to marshal his facts carefully or fails to conduct his case properly by presenting essential evidence at the trial or through the necessary cross examination, or also fails to conduct the necessary investigations which would have thrown more light on or strengthen his case or give him or her a second chance at rebuilding his or her case.” As submitted by counsel for the Respondent, the Applicant’s Attorney has already been cross examined on this document and his answers did not suggest that he had any idea about the existence or whereabouts of this document. His emphasis was rather on the assignment executed between the Applicant (his principal) and his grantor, tendered as Exhibit B and not this other earlier assignment. Having been already cross examined on the document on issues relating to root of title, and with the inclination from the Applicant’s Lawful Attorney that he has no idea about the existence of such a document, I do admit the argument of the Respondent’s counsel that it would be unfair and prejudicial to their case if this application is granted. It is evident in the proceedings that it was after the cross examination of the Attorney on the document in issue on the 8th April 2024 that this application was brought. A party should not be given a second chance in such a situation, because that may be construed as giving Page 11 of 12 him the opportunity to fill in the gaps in his case and this would be unfair and prejudicial to the Respondent’s case. The Applicant had all the opportunity to have introduced this evidence in issue, the history of this case shows several opportunities that were available for the production of such a document, but yet a failure to do so. For the reasons above, I am unable to grant the application as prayed and same is dismissed. Cost of One Thousand Ghana cedis (GHC1,000.00) is awarded in favour of the Defendant/Respondent. (SGD) JUSTICE MARIE-LOUISE SIMMONS (MRS) (JUSTICE OF THE HIGH COURT) COUNSEL: EDWARD ANOKYE FOR THE PLAINTIFF/APPLICANT NII LANTEI BLANKSON-MILLS HOLDING THE BRIEF OF JAINIE AGBOVI JAINIE FOR THE DEFENDANT/RESPONDENT Page 12 of 12