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Supreme Court -
Inherent jurisdiction -
Practice and Procedure – Civil
Procedure – Witness statement -
Substantial evidence -
Re-opening of case -
Non-performance of
constitutional duty – Adverse of
hostile witness - Whether or not
none of the twelve (12)
Presidential candidates who
contested the 7th
December, 2020 Presidential
elections did obtain more than
50% of the valid votes cast in
the said elections - Whether or
not the Petitioner did not
discharge the burden imposed on
him by law to produce sufficient
evidence to buttress his case
HEADNOTES
When the Petitioner in this case
closed his case with the
testimony of his third and last
witness, the Court, as our
procedure rules on trials
provide, called on the 1st
Respondent to open its defence
by the calling of its witness,
whose witness statement had
already been filed on the orders
of the Court. The 1st
Respondent told the Court that
he had weighed or scrutinized
the case of the Petitioner as
presented by his three witnesses
and in his view, the Petitioner
had not provided any substantial
evidence in proof of his case,
for which the 1st
Respondent had to mount the
witness box to testify in answer
and therefore prayed the Court
to determine the petition on the
oral testimonies and data
presented by the Petitioner
through his witnesses and decide
the main issue at stake, The 2nd
Respondent associated himself
with the 1st
Respondent on its prayer and
told the Court he also did not
desire to give any testimony
through his attorney as
contemplated.
HELD
.As we have already indicated in
this ruling supra, the
Petitioner, in this application,
has not given us an inkling of
the new or fresh evidence he
wants to bring to the fore
through the Chairperson of the 1st
Respondent and how that evidence
would assist this Court to do
justice in the matters under
consideration in this petition.
Neither has he disclosed how
that evidence would advance the
cause of his petition. For the
above stated reasons, we find no
merit whatsoever in Petitioner’s
application to re-open his case
for the sole purpose of
compelling his adversary’s
intended witness to testify
through a subpoena, without
indicating the sort of evidence
he intends to solicit from the
said witness and how that
evidence is going to help the
Court in resolving the dispute
before it. We accordingly refuse
the application and proceed,
without any hesitation, to
dismiss same. The Court adjourns
the petition to Thursday the 18th
of February, 2021
STATUTES REFERRED TO IN JUDGMENT
High Court Civil Procedure
Rules, (C.I. 47) as amended by
(C.I. 87)
Evidence Act, 1975 (NRCD 323)
CASES REFERRED TO IN JUDGMENT
Oakley v Royal Bank of Canada,
2013 ONSC 145 [2013] NJ No. 109
(SC),
Kombat v Lambim [1989-90] I GLR
324
671122 Ontario Ltd. v Sagaz
Industries Canada Inc., 2001 SCC
59, 2 SCR 983 (SCC)
Scott v Cook [1970] OJ No. 1487,
2 OR 769 (HCJ)
POKU v POKU [2007-2008] SCGLR
996
Annobil v Obosu [1982-83] 1 GLR
585
Young v Kenshaw; Burton v
Kenshaw [1989] 81 L.T. (N.S.)
531
BOOKS REFERRED TO IN JUDGMENT
Black’s Law Dictionary, Ninth
Edition, edited by Bryan A.
Garner,
DELIVERING THE LEADING JUDGMENT
YEBOAH,
CJ
COUNSEL
TSATSU
TSIKATA
WITH
HIM
TONY
LITHUR
FOR
THE
PETITIONER.
JUSTIN
AMENUVOR
FOR
1sT
RESPONDENT
WITH
HIM
A.
A.
SOMUAH
ASAMOAH. AKOTO
AMPAW
FOR
2ND
RESPONDENT
WITH
HIM
FRANK
DAVIES,
KWAKU
ASIRIFI
AND
YAW
OPPONG
BY COURT
When the Petitioner in this case
closed his case with the
testimony of his third and last
witness Mr. Robert Joseph
Mettle-Nunoo on the 8th
of February 2021, the Court, as
our procedure rules on trials
provide, called on the 1st
Respondent to open its defence
by the calling of its witness,
whose witness statement had
already been filed on the orders
of the Court. This witness
happened to be the Chairperson
of the 1st Respondent
Mrs. Jean Adukwei Mensa. Counsel
for the 1st
Respondent told the Court that
he had weighed or scrutinized
the case of the Petitioner as
presented by his three witnesses
and in his view, the Petitioner
had not provided any substantial
evidence in proof of his case,
for which the 1st
Respondent had to mount the
witness box to testify in
answer.
The 1st Respondent
therefore
prayed the Court to determine
the petition on the oral
testimonies and data presented
by the Petitioner through his
witnesses and decide the main
issue at stake, which is;
whether
or not none of the twelve (12)
Presidential candidates who
contested the 7th
December, 2020 Presidential
elections did obtain more than
50% of the valid votes cast in
the said elections. The 2nd
Respondent, who was declared as
winner of the elections by the 1st
Respondent, which declaration
ignited the filing of the
instant petition,
associated himself with the 1st
Respondent on its prayer and
told the Court he also did not
desire to give any testimony
through his attorney as
contemplated. According to
him, the
Petitioner did not discharge the
burden imposed on him by law to
produce sufficient evidence to
buttress his case, so there
was no need for him to say
anything in explanation. He
supported 1st
Respondent’s prayer that the
Court should resolve the
petition on Petitioner’s
evidence only, since the burden
was on him to prove the reliefs
he is seeking.
This position of the Respondents
to close their case without
adducing any evidence at all,
which the law permits them to
do, did not go down well with
the Petitioner. Counsel for the
Petitioner resisted this
position of the respondents and
prayed the Court to compel the 1st
Respondent’s Chairperson
specifically, to testify as 1st
Respondent’s witness, since she
had filed a witness statement to
that effect and therefore had
elected to testify. As for the 2nd
Respondent, Petitioner said he
was not bothered about his
refusal to testify. The Court
adjourned for the parties to
submit legal arguments for its
determination on the matter,
which they did. On the 11th
of February, 2021, the Court
dismissed the Petitioner’s
objection to the Respondent’s
decision not to testify and gave
reasons in a written ruling
delivered for that purpose. One
of the reasons given by the
Court in dismissing the
objection of the Petitioner was
that this Court could not compel
the 1st Respondent to
call its Chairperson as its
witness as Rule 3E (5) of Order
38 of the
High Court Civil Procedure
Rules, (C.I. 47) as amended by
(C.I. 87) permits them to do
so.
Immediately after the Court’s
ruling on the issue, the
Petitioner filed the instant
application. It was filed on the
same 11th February,
2021 and almost around the same
time that this Court delivered
its ruling dismissing
Petitioner’s objection to the
closure of respondent’s case.
There is no doubt that the
instant motion was triggered by
the ruling of this Court in
which the Court endorsed the
Respondents’ prayer not to
volunteer any evidence
whatsoever. The Petitioner did
not hide this feeling and
expressed it lucidly under
paragraphs 15, 16 and 17 of his
affidavit in support of the
application as follows:
“15. As a result of the ruling
of the Court of Thursday, 11th
February 2021, it has become
necessary, I am advised and
verily believe, that my counsel
use the subpoena powers of the
Court under Order 38 rule 10 of
C.I. 47 to compel the attendance
of the Chairperson of 1st
Respondent to appear and testify
in court.
16. At the time my counsel
closed my case, the
representation that had been
made by each Respondent to the
Court, and specifically to me,
was that witnesses who had filed
witness statements were going to
testify. It therefore came as a
surprise that both Counsel for
Respondents announced on Monday,
8th February 2021
that this was no longer the
case.
17. My Counsel is seeking leave
of the Court to re-open my case
to enable the subpoena referred
to above to be served on Mrs.
Jean Adukwei Mensa, so she can
appear before the Court to
testify.”
The application is headed; “MOTION
ON NOTICE FOR LEAVE TO RE-OPEN
CASE OF PETITIONER TO ENABLE
CHAIRPERSON OF ELECTORAL
COMMISSION TO TESTIFY”. From
all indications, the target of
the Petitioner in this
application is not the 2nd
Respondent who has also filed a
witness statement through an
attorney, but the Chairperson of
the 1st Respondent.
The application, which is not
known under our rules of
procedure, has been brought
under our inherent jurisdiction,
as contended by counsel for the
Petitioner. According to
Petitioner, he is praying this
Court to
re-open his case, which this
Court has declared closed on his
own instructions, to enable him
subpoena the Chairperson of the
1st Respondent to
testify as a hostile or adverse
witness. The Petitioner advanced
almost the same arguments he
made before the Court during his
objection to the closure of
Respondents’ case. The
Respondents have strongly
opposed the application and have
cited both local and foreign
judicial decisions to support
their arguments.
Learned Counsel for the
Petitioner urged on the Court
that he wanted the Chairperson
of the 1st Respondent
to testify as an adverse witness
of the Petitioner. Counsel also
made references to paragraphs
31, 32 and 33 of the affidavit
in support of the application as
to why he wanted the Chairperson
of the 1st Respondent
to testify. The other point
Petitioner’s lawyer kept urging
on the Court was that the
Chairperson performs an
important constitutional duty
and must be made to account to
the people for her stewardship
and to vindicate herself. The
question is; how can the
Chairperson of the 1st
Respondent vindicate herself
when she is not on trial before
us? She has neither been
personally sued nor arraigned
before this Court on any
complaint or accusation (civil
or criminal) for which she has
to explain or account to anybody
for anything she has done or not
done. It is the Institution, the
Electoral Commission, which she
heads, that has been accused by
Petitioner of not having
performed its constitutional
duty according to law. Does the
Petitioner need the personal
testimony of the Chairperson of
the Institution sued before he
could prove or establish the
alleged
non-performance of this
constitutional duty by the 1st
Respondent? We do not think so.
What indeed, baffles this Court
is the intimation by Counsel for
the Petitioner that he intends
to call the Chairperson of the 1st
Respondent as an
adverse
witness.
Black’s
Law Dictionary, Ninth Edition,
edited by Bryan A. Garner,
defined a ‘hostile witness’ as;
‘A witness who is biased
against the examining party,
who is unwilling to testify
or who is identified with an
adverse party….also termed,
‘adverse witness’. A
hostile
or adverse witness, as the
definition shows and as we
understand the term in practice,
is therefore a witness who has
been called by a party to
testify in support of his or her
case and who, whilst in the
witness box under examination
in-chief, becomes hostile and
gives evidence contrary to the
party who called him and in
support of the opponent’s case.
The party, in such
circumstances, can apply to the
Court to treat such a witness
who is already in the witness
box, as a hostile or adverse
witness. This would enable the
party calling him to
cross-examine him as if he is a
witness of his opponent to
solicit the truth in respect of
the issue at stake. A witness
who has not yet entered the
witness box to testify cannot
therefore be called an adverse
or hostile witness under any
circumstances.
This Court exercises its
inherent jurisdiction, inter
alia, to correct errors in
procedure and to ensure that no
miscarriage of justice is
occasioned during a trial.
Inherent
jurisdiction, which is also
referred to as the ‘inherent
powers doctrine’, is the
principle that allows courts to
deal with diverse matters over
which they have intrinsic
authority. The Petitioner has
not demonstrated to us, in any
way that, the decision of the
Respondents not to testify,
which was upheld by this Court
in its ruling of 11th
February, 2021, has occasioned
him any miscarriage of justice.
That decision is backed by law,
particularly our rules of
procedure, case law and settled
practice. We demonstrated this
in our ruling of 11th
February 2021 when we rejected
Petitioner’s objection to the
Respondents’ decision not to
testify.
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 whole of their case before
the Court at the time of the
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-case in order to adduce
fresh or further evidence is
thus, an extraordinary step,
which the importance of finality
of litigation frowns upon, save
the presence of exceptional
circumstances. In the Canadian
case of
OAKLEY v ROYAL BANK OF
CANADA, 2013 ONSC 145 [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…
On the other hand, a trial judge
has the discretion to permit a
plaintiff to re-open its case.
This discretion however, must be
exercised judicially. It must
involve a scrupulous balancing
of the accountability of counsel
for decisions regarding the
prosecution of its case and the
interests of justice”
Though this Canadian case is not
binding on us, it has a
persuasive effect as it espouses
the principles governing
re-opening of closed cases for
the purposes of adducing fresh
or further evidence. Back at
home, our own Benin, JSC (then
Benin, J) gave a similar holding
in the case of
KOMBAT
v LAMBIM [1989-90] I GLR
324 at p. 326 as
follows: “The general rule
of evidence was that after a
prisoner’s case was closed, a
judge should only call a fresh
witness when a new matter had
arisen ex improviso 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 witnesses, it was
subject to the general rule”.
Though the above decision made
reference to the calling or
re-call of a witness by the
trial court, the same principle
applies where it is any of the
parties who applies for such a
call or re-call after the close
of their cases. One of the
leading cases on applications to
re-open cases is the Canadian
case of
671122 ONTARIO LTD. v SAGAZ
INDUSTRIES CANADA INC., 2001 SCC
59, 2 SCR 983 (SCC),
which was referred to us by
counsel for the 2nd
Respondent. In that case,
the court approved of a
two-stage test, which was first
articulated in
SCOTT
v COOK [1970] OJ No. 1487, 2 OR
769 (HCJ). That
test, which is intended to
assist the trial judge in
exercising his or her discretion
to re-open a trial, requires the
applicant to:
1.
Show that the evidence he or she
seeks to adduce is such that, if
it had been presented at trial,
it would probably have changed
the result, and
2.
Prove that such evidence could
not have been obtained by
reasonable diligence before the
trial.”
This same test is what a party,
who intends to lead fresh or
further evidence in a trial or
on appeal, must satisfy before a
court could grant such a
request. In the case of
POKU v
POKU [2007-2008] SCGLR 996
at p. 998, which was
cited by counsel for the 2nd
Respondent, this Court, per
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 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.”
This same point was made in the
case of
ANNOBIL v OBOSU [1982-83] 1
GLR 585 at p. 587,
per Osei-Hwere, J, which was
referred to us by learned
counsel for the 1st
Respondent. The court, relying
on the English case of
YOUNG
v KENSHAW; BURTON v KENSHAW
[1989] 81 L.T. (N.S.) 531 at p.
532 – CA, held that the
rationale behind the denial or
grant of permission to order a
new trial upon the discovery of
further evidence must be the
same as that which denies or
grants permission to lead
further evidence after the close
of the case for the parties. In
all the examples cited, the
defendants did testify and the
plaintiffs found the need to
call for fresh or further
evidence to buttress their case,
though the courts, in almost all
the instances, refused the
applications. In the instant
case however, the respondents
decided not to testify at all so
no situation arises for there to
be the need for the petitioner
to call further or fresh
evidence to clarify anything, be
it a doubt or a point raised in
the testimony of the
Respondents, since there was
none.
The Petitioner, in his
submissions, made reference to
Section 26 of the Evidence Act,
1975 [NRCD 323], which he says
operates as estoppel against the
1st Respondent for
failing or refusing to call a
witness as contemplated by the
filing of a witness statement.
The section provides:
“Except as otherwise provided by
law, including a rule of equity,
when a party has, by that
party’s own statement, act or
omission, intentionally and
deliberately caused or permitted
another person to believe a
thing to be true and to act upon
that belief, the truth of the
thing shall be conclusively
presumed against that party or
the successors in interest of
that party in proceedings
between (a) that party or the
successors in interest of that
party, and (b) the relying
person or successors in interest
of that person”.
We wish to state emphatically
that section 26 of the Evidence
Act, which is on Conclusive
Presumptions, is not applicable
in this case in view of Order 38
Rule 3E (5). The rules permit a
party to call or not to call a
witness, who has filed a witness
statement to testify, as the
mere filing of a witness
statement does not constitute an
election to testify as we
rightly held in our ruling on
the 11th of February,
2021. Again, the Petitioner did
not decide to close his case
after the testimony of his third
witness just because the
Chairperson of the 1st
Respondent had filed a witness
statement. This is because, in
law, a plaintiff or petitioner
does not require evidence from
his or her adversary, in an
adversarial system as ours, to
prove his or her case. The
authorities are legion that a
plaintiff or petitioner,
succeeds on the strength of his
or her own case but not on the
weakness of his or her
adversary’s case.
Conclusion
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 re-open proceedings before a
judgment is rendered. That
discretion is, however, one
which should be exercised
sparingly and with restraint, as
motions to re-open 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?
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 re-opening is
allowed or a miscarriage of
justice perpetrated if it is
not.
As we have already indicated in
this ruling supra, the
Petitioner, in this application,
has not given us an inkling of
the new or fresh evidence he
wants to bring to the fore
through the Chairperson of the 1st
Respondent and how that evidence
would assist this Court to do
justice in the matters under
consideration in this petition.
Neither has he disclosed how
that evidence would advance the
cause of his petition. For the
above stated reasons, we find no
merit whatsoever in Petitioner’s
application to re-open his case
for the sole purpose of
compelling his adversary’s
intended witness to testify
through a subpoena, without
indicating the sort of evidence
he intends to solicit from the
said witness and how that
evidence is going to help the
Court in resolving the dispute
before it. We accordingly refuse
the application and proceed,
without any hesitation, to
dismiss same.
The Court adjourns the petition
to Thursday the 18th
of February, 2021.
(SGD) ANIN
YEBOAH
(CHIEF JUSTICE)
(SGD) Y.
APPAU
(JUSTICE OF THE SUPREME COURT)
(SGD) S. K.
MARFUL-SAU
(JUSTICE OF THE SUPREME COURT)
(SGD) N. A.
AMEGATCHER
(JUSTICE OF THE SUPREME COURT)
(SGD) PROF. N.
A. KOTEY
(JUSTICE OF THE SUPREME COURT)
(SGD)
M. OWUSU (MS.)
(JUSTICE
OF THE SUPREME COURT)
(SGD) G. TORKORNOO
(MRS.)
(JUSTICE OF THE SUPREME COURT) |
