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Practice and
procedure - Commencement of oral
testimony - Evidence by
affidavit - Submission of no
case – Whether or not first
defendant should be called upon
to open his defence in the
interest of justice
HEADNOTES
Similarly, it
is an inherently difficult
exercise to ask this Court in
this case to disregard evidence
put in play by the first
defendant’s affidavit and to
rule on his submission of no
case as if the only evidence on
record is that of the
plaintiff. That is why we
consider that the interests of
justice would be best served by
hearing whatever evidence the
first defendant wishes to offer
in his defence. This Court can
then make up its mind in
relation to all the facts at the
end of the trial. We are
particularly of this view since
we did not put the first
defendant to an election before
his submission of no case
HELD
Accordingly,
the first defendant is invited
to open his defence.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Benham v
Kythira Investments
[2003] EWCA Civ 1794
Boyce -v-
Wyatt Engineering
[2001] EWCA Civ 692
Alexander -v-
Rayson [1936] 1 KB
169
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
DR. DATE-BAH
JSC:
COUNSEL
PLAINTIFF
APPEARS IN PERSON
YONI KULENDI
(WITH HIM EGBERT FAIBILLE JNR.
AND JOSEPH BENARD ASHALLEY ) FOR
THE 1ST DEFENDANT
SYLVESTER
WILLIAMS (PRINCIPAL STATE
ATTORNEY) FOR THE 2ND
DEFENDANT.
R U L I N G
___________________________________________________________________________________
DR. DATE-BAH
JSC:
It is the
unanimous view of the Court that
the first defendant should be
called upon to open his defence
in the interest of justice.
This case does not have the
ordinary characteristics of a
trial say at the High Court.
The procedure before this Court
is such that, before the
commencement of oral testimony
in this case, the first
defendant had already put
matters in evidence by
affidavit. In this
circumstance, it is artificial,
and hardly sustainable, to
disregard the evidence already
adduced by the affidavit of the
first defendant and proceed to
an assessment of a no case
submission made on his behalf,
as if the only evidence on
record is that of the plaintiff.
“In
Boyce -v- Wyatt Engineering
[2001] EWCA Civ 692,
a personal injury case brought
against three defendants, the
judge below allowed a submission
of no case to answer made by all
three defendants without putting
any of them to their election.
This court allowed the
claimant's appeal (brought
solely against the second and
third defendants) and in the
result remitted the case for
retrial before a different
judge. Mance LJ gave the leading
judgment in this court:
"4. The
course taken by the judge of
deciding the case following the
hearing of the claimant's
evidence without putting the
defendants to their election is
one which calls, on any view,
for considerable caution. I
mention two particular
considerations. First, where a
defendant is put to his
election, that is the end of the
matter as regards evidence. The
judge will not hear any further
evidence which might give cause
to reconsider findings made on
the basis of the claimant's case
alone. The case either fails or
succeeds, even on appeal. But,
where no such election is called
for, the judge is required to
make up his mind as to facts on
the basis of one side's case,
and then, if he is against the
defendant, to hear further
evidence and to retain and apply
an open mind in relation to all
the facts at the end of the
trial. That is an inherently
difficult exercise. Hence the
difference in normal practice
between criminal cases (where
submissions of no case are
common but are determined by a
different test and by the judge
rather than the jury) and civil
cases (where the practice has
been for the judge to put the
defendant to his election).
5. In this
respect, despite the objectives
of the new Civil Procedure Code
and the broad powers of court
management which it contains,
there remains force, in my view,
in the general observation made
in this Court in Alexander -v-
Rayson [1936] 1 KB 169 at 178
that it is not right that the
judge of fact should be asked to
express any opinion upon the
evidence until the evidence is
completed. There may be some
cases, probably rare, in which
nothing in the defendant's
evidence could affect the view
taken about the claimant's
evidence or case, but this is
not one of them, and care would
be required in identifying
them.”
Similarly, it is an inherently
difficult exercise to ask this
Court in this case to disregard
evidence put in play by the
first defendant’s affidavit and
to rule on his submission of no
case as if the only evidence on
record is that of the
plaintiff. That is why we
consider that the interests of
justice would be best served by
hearing whatever evidence the
first defendant wishes to offer
in his defence. This Court can
then make up its mind in
relation to all the facts at the
end of the trial. We are
particularly of this view since
we did not put the first
defendant to an election before
his submission of no case. In
reaching this decision, we have
taken account of the sound
advice of Simon Brown LJ in the
Benham case cited above where he
says (at para 32) :
“Let me state
my central conclusion as
emphatically as I can. Rarely,
if ever, should a judge trying a
civil action without a jury
entertain a submission of no
case to answer. That clearly was
this court's conclusion in
Alexander -v- Rayson and I see
no reason to take a different
view today, the CPR
notwithstanding. Almost without
exception the dangers and
difficulties involved will
outweigh any supposed
advantages. Just conceivably, as
Mance LJ suggested at the end of
paragraph 12 of his judgment in
Miller (see paragraph 21), "some
flaw of fact or law may … have
emerged for the first time, of
such a nature as to make it
entirely obvious that the
claimant's case must fail, and
it may save significant costs if
a determination is made at that
stage". Plainly, however, that
was not the case here and hardly
ever will it be so. Any
temptation to entertain a
submission should almost
invariably be resisted”.
Accordingly,
the first defendant is invited
to open his defence.
[SGD] DR. S. K.
DATE-BAH
JUSTICE OF THE SUPREME COURT
[SGD] J. ANSAH
JUSTICE OF THE SUPREME COURT
[SGD] S. O. A.
ADINYIRA (MRS.)
JUSTICE OF THE SUPREME COURT
[SGD] R. C. OWUSU
(MS.)
JUSTICE OF THE SUPREME COURT
[SGD] J. V. M.
DOTSE
JUSTICE OF THE SUPREME COURT
[SGD] ANIN YEBOAH
JUSTICE OF THE SUPREME COURT
[SGD] P.
BAFFOE-BONNIE
JUSTICE OF THE SUPREME COURT
[SGD] N. S.
GBADEGBE
JUSTICE OF THE SUPREME COURT
[SGD] V. AKOTO-BAMFO
(MRS)
JUSTICE OF THE SUPREME COURT
COUNSEL:
PLAINTIFF
APPEARS IN PERSON
YONI KULENDI
(WITH HIM EGBERT FAIBILLE JNR.
AND JOSEPH BENARD ASHALLEY ) FOR
THE 1ST DEFENDANT
SYLVESTER
WILLIAMS (PRINCIPAL STATE
ATTORNEY) FOR THE 2ND
DEFENDANT.
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