IN THE TDC DISTRICT COURT HELD AT TEMA ON FRIDAY THE 7TH DAY

OF JULY 2023 BEFORE HER HONOUR AKOSUA ANOKYEWAA

ADJEPONG (MRS.), CIRCUIT COURT JUDGE, SITTING AS AN
ADDITIONAL MAGISTRATE

SUIT NO.
A9/39/2011

MAHAMA ZANGO ----------

PLAINTIFF/RESPONDENT
KLAGON, TEMA

VRS

1. EFUA AGYEIWAA DEFENDANT

COMMUNITY 8, TEMA
2. RT. REV. ABRAHAM TAGOE ----------
DEFENDANT/APPLICANT

PARTIES: PLAINTIFF ABSENT

DEFENDANTS PRESENT

COUNSEL: K. N. ADOMAKO-ACHEAMPONG, ESQ. FOR

PLAINTIFF/RESPONDENT ABSENT
RICHARD AKPOKAVIE, ESQ. WITH SOLOMON ADDO
AND
RICHARD CLARKE FOR DEFENDANTS/APPLICANT
PRESENT

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 RULING ON MOTION ON NOTICE SEEKING LEAVE TO RE-OPEN 2ND
DEFENDANT’S CASE

The Plaintiff herein originally caused a Writ of Summons to be issued on 9th

December 2010 against the occupants of the property being the subject matter of

the instant suit. The suit got struck out on some occasions which was relisted and

also suffered series of adjournments including sine die adjournments.

In the Amended Writ of Summons filed on 21st March, 2019 pursuant to an order

of this Court, the Plaintiff claims against the Defendants jointly and severally for

the following reliefs:

a. Declaration of title to one (1) house numbered 83, Community 8

situated and being at a place commonly known and called co-

operative, Community 8, Tema.

b. Ejectment and recovery of possession of the said property.

On 2nd April, 2019 the 1st Defendant filed her Amended Statement of Defence

pursuant to an order for joinder and denied the claims of the Plaintiff and further

stated that the Plaintiff is not entitled to his claim. The 2nd Defendant on same

date also filed his Statement of Defence and counterclaimed against the Plaintiff

as follows:

1. A Declaration that House No. 83 Cooperative Community 8 Tema is the

property of the 2nd Defendant.

2. An order setting aside the auction sale of House No. 83 Cooperative

Community 8 Tema.

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The Plaintiff on 8th August 2019 filed a Reply and Defence to the 2nd Defendant’s

counterclaim.

The hearing of the instant action has ended and the Court was about to give its

judgment when the instant application was filed on 8th June 2023.

In his affidavit in support the 2nd Defendant/Applicant deposed that on the 1st

day of March 2023, the Honourable Court ordered him to be joined to the suit as

the 2nd Defendant at a time when he had filed a witness statement to testify on

behalf of the Defendant. That he filed the witness statement on the 2nd of April

2019 referring to exhibits which had been previously attached to his witness

statement of the 22nd of January 2019.

The Applicant further deposed that the said exhibits though indicated in the

paragraphs of his witness statement were inadvertently not attached to his

witness statement of the 2nd of April 2019 to be tendered in evidence. That it was

when his counsel was reviewing the proceedings of the Court whilst preparing

the written address that this omission was noticed. That this was an oversight by

his counsel and as a party this omission should not be visited on him.

The Applicant further states that a review of the evidence on record will show

that he indicated to the Court during cross examination that he knew he had

attached documents to his witness statement. That it will be in the interest of

justice for the application to be granted and the refusal of this application will

cause a grave miscarriage of justice as it will deny him the opportunity to present

his full case before this Honourable Court.

The Applicant continued that the grant of this application will necessitate a short

delay which he and his counsel are prepared to fast track the process to ensure it

is completed quickly in the interest of justice. That the grant of this application

will not prejudice the Plaintiff’s case as the documents he intends to attach to a
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supplementary witness statement have already been filed previously and have

been in the possession of the Plaintiff and his counsel since 2019. That his witness

statement and attached exhibits as properly tendered as his evidence in chief is

material to his claim. He prayed the Court to grant him leave to reopen his case

to tender a supplementary witness statement together with the attached exhibits

and give the Plaintiff the opportunity if he so desires to cross examine him before

delivery of judgment.

In his submission in Court, counsel for the Applicant submitted that they have

been served with an affidavit in opposition and the gravamen of that affidavit is

that there is no provision in C.I. 59 to allow this application. That paragraph 8 of

that affidavit however concedes that the Evidence Act makes provision for recall

of a witness. That the totality of their application is to re-open the case of the 2nd

Defendant and re-call him to tender some exhibits. That unless his case which

has been closed is re-opened he cannot be re-called. That it was an oversight on

their part to have not attached the necessary exhibits therefore they are asking

the Court to allow them to re-open their case and tender those exhibits. That the

grant of the application will not cause undue delay as the Plaintiff is alleging.

In the affidavit in opposition filed on 16th June 2023, counsel for the

Plaintiff/Respondent deposed that they are vehemently opposed to this

application as same is alien to our civil procedure. That the conduct of cases at

the District Court is governed by C.I. 59, which are the District Court Rules.

Counsel for the Plaintiff/Respondent further deposed that nowhere in the District

Court Rules is there a provision to allow a party to remount the box to re-open

his case several months after the case is closed and awaiting judgment since
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address is not mandatory. He continued that the 2nd Defendant led by his lawyer

closed his case about a year ago and was effectively discharged after his counsel

had given indication of the closure of his case, therefore it sins against the rules

of civil procedure to allow the 2nd Defendant to fish for an otherwise non-existent

evidence in an unknown exercise which would be an abuse of the Court process.

Counsel for the Plaintiff/Respondent further stated that the Evidence Act does

not make provision for such an exercise and that it is section 79 of the Evidence

Act which talks of re-call of a witness not a party to re-open his case. That it is

too late in the day over one year after the 2nd Defendant closed his case to be

allowed back to give fresh evidence after evidence fishing expedition. That such

a strange exercise if allowed would occasion great injustice to the Plaintiff. He

prayed that this application be dismissed with cost.

Ruling

I have read the affidavit in support of the instant application as well as the

affidavit in opposition to same. I have also listened to the submission made by

counsel for the 2nd defendant/Applicant.

On 22nd January 2019, one Rt. Rev. Abraham Tagoe filed a witness statement as a

potential witness for the then sole Defendant in the instant action. Subsequently,

he applied to join the suit as a 2nd Defendant and upon that, filed a witness

statement as a party to the suit. The 2nd Defendant in opening his defence relied

on the witness statement he filed on 2nd April 2019. Therefore the 2nd Defendant

did not file two witness statements, one on 22nd January 2019 and another on 2nd

April 2019. As a party to the suit, the only witness statement he filed in this

matter was on 2nd April 2019 and that is what he relied on as his evidence in chief

during the hearing of the instant matter.

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On 18th August 2022, counsel for Defendants announced to the Court that they

have closed their case. Therefore the hearing of the instant case came to an end

on 18th August 2022. Then, the instant application was filed on 8th June 2023. The

judgment in the instant case would have long been delivered by the Court but

for the delay in obtaining the record of proceedings to write the judgment.

The order by the immediate past Chief Justice for me to return to this Court to

deliver the judgment in this case was based on the petition by counsel for

Applicant herein to the Chief Justice for me to be ordered to return to this Court

to deliver the said judgment, which was on 28th February 2023.

Section 79 of the Evidence Decree , 1975 (NRCD 323) provides that after a witness

has been excused from giving further testimony in the action he cannot be

recalled without leave by the Court in its discretion.

To guide the discretion of the Court, the Supreme Court has held per Wood CJ

(as she then was) in the case of Poku v. Poku [2007-2008] 2 SCGLR 996 that in an

application like the instant one, the first criterion which an Applicant ought to

establish is whether or not the evidence sought to be adduced was in the

possession of the Applicant party or was not obtainable by the exercise of

reasonable diligence or human ingenuity before the impugned decision was

rendered. It is only when the first hurdle has been surmounted that the Court

should proceed to determine whether or not the intended evidence would have a

positive effect on the outcome. Stated differently if the first criterion is not met,

no useful purpose would be served by examining the other factors.

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Also in the case of The President of The Methodist Church of Ghana v. Kaye

[1970] GLR 70; it was held per Owusu J that, once a party closes his case he

abandons every right to call further evidence except with the leave of the Court.

Such an application is only considered when at the time of closing the case, no

human ingenuity could foresee the existence of the particular evidence that the

party is seeking to adduce.

Applying the above authorities to the instant application and having further

considered the circumstances of this case and during the hearing, the 2 nd

Defendant/Applicant has not satisfied the Court that no human ingenuity could

foresee the existence of the particular evidence he is seeking to further adduce

since as Counsel for the Applicant in his submission rightly said, the said

evidence/exhibits were right before them when they filed the witness statement

of the 2nd Defendant and even when the 2nd Defendant relied on his witness

statement and it came up during cross examination that no such exhibits were

attached. Nothing was done about it during the hearing until after the Court has

finished writing its judgment and a date was to be given to the parties to appear

for the judgment that the party is now seeking to do something about it by way

of the instant application.

Flowing from the above and applying the authorities above to the circumstances

of the instant action, I do hereby dismiss the instant application.

There will be no order as to costs since neither the Plaintiff nor his lawyer

appeared before the Court for the hearing of the application despite having been

given notice of same.

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 [SGD.]

H/H AKOSUA A. ADJEPONG

(MRS)

(CIRCUIT COURT JUDGE)

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