Afongo and Another v Nana Owusu Pinkra II and Another (A5/4/2022) [2025] GHADC 241 (8 July 2025)

IN THE DISTRICT COURT KINTAMPO HELD ON TUESDAY 8TH JULY 2025 BEFOREHIS WORSHIP KWAMEADJEIMANU ESQ, DISTRICT MAGISTRATE. SUITNO: A5/4/2022 1. JUSTICEAFONGO PLAINTIFFS/APPLICANTS 2. EVANSPOKU VRS 1. NANA OWUSU PINKRA II DEFENDANTS/RESPONDENTS 2. ADARS FM RULINGON MOTIONFOR LEAVETOISSUE WITNESS SUMMONS FILED ON26TH MARCH 2025 1. INTRODUCTION 1.1. Plaintiffs’ motion is grounded on the fact alleged by them that the defamatory statements they hope to prove against Defendants in this suit were contained in a document authored by 1st Defendant and read by a worker of 2nd Defendant on 2nd Defendant’s platform. According to 1st Plaintiff who deposed to the affidavit in support of the motion, efforts to obtain the audio containing the announcement from 2nd Defendant have proven futile for which reason they have been unable to put same into evidence, hence their prayer for the court to grant leave for 2nd Defendant tobe compelled to produce this criticalpiece ofevidence. 1.2. 1st Defendant opposed the application on the basis that the existence or availability of the audio hoped to be produced has not been established or even pleaded by Plaintiffs. 1st Defendant’s case is that Plaintiffs bear the responsibility of proving their own case and are not entitled to recruit the Page1of4 help of 2nd Defendant in doing so, that the grant of the application would amount toaninjustice. 2. MERITS 2.1. This Court has the power on its own motion or on the prayer of parties to compel the attendance of a witness for the purpose of giving evidence in a matter before in under the Courts Act 1993 (Act 459). This power like all judicial power must be exercised judiciously, cogent reasons being necessary for it. That being said, there is also the power of the court to order persons to produce articles, documents, things and generally evidence in their custody for the purpose of receiving same in evidence to discharge the responsibility of doing justice under section 58 of Act 459. This Sectionprovides as follows: “Section58—Summoning Witnesses. In any proceedings, and at any stage of the proceedings, a court either on its own motion or on the application of any party, may summon any person to attend to give evidence, or to produce any document in his possession or excerpts from it subject to any enactment or rule of law.” 2.2. The primary question in this application however, is whether it is proper for the Court to compel a person who is not only an unwilling participant in a dispute, and who has been absent from the conduct of proceedings from the inception of the suit to appear and give evidence in support of a party’s case, on the assumption or presumption that such evidence is in existence. This iswhat this courtis invited inthis applicationtodo. Page2of4 2.3. Proceeding to deal with this application as if it were in admission that the audio is in existence is in my view not the least bit proper. The existence of the audio or contents of any such audio if I were to presume the existence of it are questions for the court to determine in the substantive suit. In this application, I have not received or been pointed to any evidence beyond the bare depositions, of the existence of any such audio or 2nd Defendant’s possession of it. I shall refrain from conjecture since in my opinion this was a matter capable of establishment by cogent evidence if any existed to support a positive conclusion on it, and I have not received any such sufficient evidence. in the Republic v. Court of Appeal Ex Parte: James GyakyeQuayson (2022)JELR109695(SC): “when a party files an application, the rules enjoin him or her to, in appropriate cases, add a supporting affidavit duly sworn to on oath. He or she may attach all relevant documents on which he relies to the affidavit. The practice has evolved where Applicants indicate in their affidavit in support that they shall seek leave to refer to relevant documents already before the Court. This serves as sufficient notice to the opposing party or his counsel as well as the Court that the scope of the application may involve some other processes which counsel may seek leave to refer to while on his or her feet. Where an indication is given, that certain processes may be referred to, such processes do not become part of the proceedings of the day unless leave is actually sought, and the processes referred to in the course of moving the application. Every application is determined on the strength of the motion paper, supporting affidavit and documents annexed thereto. A court of law cannot act in aid of a party in our adversarial system of justice, by fishing for documents or introducing documents to support Page3of4 a party’s case against his adversary. That would be tantamount to an “unbiasedumpire”descendingintothe arenaof conflict.” 2.4. In deciding this motion, I have been particularly mindful of 2nd Defendant’s conduct since the commencement of this suit, in that it has shown absolutely no interest in pursuing it, not being the least perturbed by the threat of unfavourable judgment being entered against. I do not see how such a party will be of any voluntary assistance, particularly regarding a matter that is not a given. There is a real potential of stultificationofthe Court’sordersand it must be avoided. CONCLUSION Granting this motion would be an invitation to a potential stultification of the Court, as the order would be premised on the existence of an audio which has neither been formally admitted as being in existence, nor been established factually as being in existence. Sameis accordinglyrefused. SGD. KWAMEADJEI MANU ESQ. (DISTRICT MAGISTRATE) Parties present Bright Tabiri Esq. for Plaintiffs. Hamidatu Banawabali Sediu Esq. holding brief of FrancisAsiedu Esq. for 1stDefendant. Page4of4