Hearing commenced at 9:30 AM and after parties and Counsel were announced, Counsel for Petitioner moved his motion for leave to re-open his case to enable Chair of First (1st) Respondent to testify.
He submitted that Petitioner was coming under the inherent jurisdiction of the Court to reopen his case based on the peculiar circumstances of the present matter. Counsel submitted that at the time he was closing his case, he expected the Chair of the First (1st) Respondent to enter the witness box because she had a witness statement pending before the Court.
The subsequent decision does not enter the box, therefore, has given rise to peculiar circumstances for which leave should be granted for him to reopen his case. He submitted that the application was not about issuing a subpoena since they needed to reopen the case first. Counsel also argued that by the previous depositions in the affidavit of the First (1st) Respondent to the extent that Petitioner may have his day in cross-examination, chair of First (1st) Respondent was estopped from now saying she wouldn’t testify. Counsel cited Sefa (No2) v Asiedu (No.2).
Counsel again pointed to parts of the record that were evidence which according to him were introduced by the First (1st) Respondent through cross-examination hence the petitioner was entitled to cross-examine the First (1st) Respondent. Counsel for the First (1st) Respondent opposed the motion vehemently. He relied on Annobil v Obosu and another and contended that the petitioner had not demonstrated any basis warranting the reopening of the case. He stated that he had researched as far back as 1876 and never has it happened that a petitioner has applied to a court for his case to be reopened so he can summon his adversary to testify for him. Counsel pointed out the obvious difficulties that the grant of this application would create for the adversarial system as pertains in Ghana. Counsel concluded that no important matters had been canvased hence the application should be dismissed.
Counsel for Second (2nd) Respondent noted that even though Second (2nd( Respondent was not the direct subject of the application, he was a party and a decision would affect him too hence he wanted to submit which the Court allowed. Counsel commenced by observing that the Ghanaian legal system is adversarial and that a party who came to court bore the duty of proving his case. He cited Laryea v Foriwaa and informed the Court that where a party who informed the Court he was closing his case, the Court had no option but to accede to the request. However, once the case is closed, a party cannot adduce fresh evidence without the leave of the court and the true object of the application is to adduce fresh evidence hence the same test for adducing fresh evidence must apply. He continued that the first condition to be satisfied is that the evidence must not have been available.
This he pointed out the Petitioner cannot say he is unaware since respondents served a preliminary objection to the petition and it is only by the intervention of the court that they proceeded to defend the action. They therefore knew or ought to have known, that the decision not to adduce evidence was a possibility. Counsel also submitted that the process of cross-examination amounted to adducing evidence and since respondents had elected not to adduce evidence which the court has affirmed, the application was a backdoor approach to getting the court to relook at its decision.
Additionally, Counsel submitted that the Petitioner voluntarily closed his case and he is deemed to have led all the evidence he wanted to hence cannot seek to call on Respondents to make their case. On this note, Counsel referred to the case of Poku v Poku where Wood CJ advised that granting leave to adduce fresh evidence was not meant to aid the indolent, reckless, or negligent litigant who fails to Marshall all the essential facts I support of his case and comes back to seek another opportunity to build the case.
Counsel concluded with the words of Ollenu JSC in Barima Gyamfi v Adu that “it would be madness for a plaintiff to rely on his opponent to prove his case”.After a brief response from Counsel for Petitioner, the Court adjourned to Tuesday, 16th February 2021 for the ruling.