IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
KUMASI - A.D 2018
JESUS IS EVERGREEN, JOHN OWUSU ANSAH AND PORTIA OWUSU ANSAH - (Defendants/Appellant)
FIRST ATLANTIC BANK LTD -(Plaintiff/Respondent)
DATE: 17 TH APRIL, 2018
SUIT NO: H1/04/2018
JUDGES: ADUAMA OSEI J.A. (PRESIDING), DZAMEFE J. A., WELBOURNE (MRS) J. A.
JAMES ADU MENSAH FOR PLAINTIFF/RESPONDENT
NO RERESENTATIVE FOR DEFENDANT/APPELLANT
This appeal is by the Defendant/Appellant against the ruling of the High court dated 20th September 2016.
This action commenced with the Plaintiff filing a suit claiming the following reliefs:
An amount of six hundred and forty eight thousand, five hundred and fifteen Ghana cedis twenty five pesewas (GHC648, 515.25) being the amount outstanding in respect of the facilities granted to the 1stDefendant.
Interest on the said sum upon the terms of the facilities, from 14th March, 2014 till date of final payment.
In addition to or in the alternative,an order for judicial sale of 2ndDefendant’s landed property contained in the Deed of Mortgage and the fleet of trucks.
The Defendantentered appearance and filed a Statement of Defence which was amended. The Plaintiff testified through one James Yaw AduMensah, a Deputy Manager. He ended his evidence in chief on 23rd July, 2015 and was cross-examined and discharged on 18th January, 2016. At that point in time, the Plaintiff closed its case. The Defendantwas granted leave to file an amended Statement of Defence. At that point the Plaintiff applied to recall its representative to testify in response to the amended Statement of Defence and same was granted by the High Court.
Counsel for the Appellantinvites us to note that on 4th March, 2016, when the Plaintiff was to move its application for the recall, counsel for the Plaintiff was absent when the case was called and same was stood down to wait for the counsel for the Plaintiff. This is found at page 112 of the Record of Appeal.
After the Plaintiff continued itsevidence after the recall, the suit was adjourned from 8th June, 2016 to 23rd June, 2016 because the new counsel for the Plaintiff was absent (as found at page 146 of the Record of Appeal).
On the 23rdof June, 2016, counsel for the Plaintiff could not proceed with the cross-examination because of some challenges he was having as he had just taken over the case. The suit was thus adjourned to 11th July, 2016 at the instance of the Plaintiff (found at pages 148-150 of the Record of Appeal).
Thereafter, the 2ndDefendant gave evidence on his own behalf and on behalf of the other Defendants. Counsel further drew our attention to the fact that on the 27th day of July, 2016, the 2ndDefendant commenced his evidence in chief and the matter was adjourned to 8th August, 2016 at 9.00 a.m for continuation of the evidence in chief. It is evident from the record at page 163 that the case was called at 9.20 a.m on that day. Counsel for the Defendant was absent. The court insisted that they would go ahead with taking the evidence of the 2ndDefendant in the absence of his counsel.The 2ndDefendant also indicated to the court that he was not comfortable doing so without his counsel.
The court turned down the prayer of the 2ndDefendant to either have the case stood down to enable him call his counsel or in the alternative adjourn the case. The court then closed the Defendants’ case and adjourned the case for judgment in following terms (found at pages 163-164 of the Record of Appeal) as follows:
“By Court: End of cross examination. The witness is discharged. Suit is adjourned to the 17th of November, 2016 at 9.00am for Judgment. File your written submission by 26th October, 2016”.
Counsel for the Defendants came later and subsequently applied for leave to recall the 2ndDefendant to continue with his evidence but this was refused by the trial judge on 20th September, 2016. I reproduce the ruling found on page 171-172 of the record for perusal.
“By court: This is a short ruling on Motion for leave to recall the 2ndDefendant who testified for himself and the other Defendants.
Though short, I adjourned the ruling to give it enough consideration and that I have done.
The suit was on 27th July, 2016, adjourned to 8th August, 2016 for continuation of 2ndDefendant’s examination in chief; 9.00 clock a.m. was fixed with the consent of all.
At 9.00 a.m on 8th August 2016, Defence Counsel was not in court waited and called the case at 9.20 a.m still counsel for the Defendant was not in 2ndDefendant was reminded of his previous oath and ordered to continue his evidence but he insisted he would only do so if his lawyer was present.
The absence of his lawyer was no justification for his refusal to continue to tell his story in their defence. That has never been good reason for the grant of leave to recall.
In his submission, his lawyer himself stated that he was forty-five minutes late and it was due to a domestic matter, according to him.
The court thinks he was more than 45 minutes late but as much as the court would sympathize with counsel for whatever domestic problem there was, a party who refuses to testify, only because he wants his lawyer to be present and a lawyer who turns up late without notice of his challenges if any to his clients by a phone call or text message would not be granted leave to recall the witness not even on compassionate grounds.
The application to recall is refused “.
It is against this ruling that the Appellant has filed this appeal upon these grounds:
The Honourable court erred in dismissing the application.
The court erred in applying the principles governing the grant of an application in the nature of one before the Honourable court thus occasioning a substantial miscarriage of justice to the Defendants/Appellants.
The Appellant, in arguing the appeal, argued grounds (a) and (b) together. The rules governing the recall of witnesses are provided in Sections 68 and 79 of the Evidence Act, 1975 (NRCD 323) as follows:
“(1) The court may, on its own motion or at the request of a party, call or recall witnesses”.
“After a witness has been excused from giving further testimony in the action, the witness cannot be recalled without the leave of the Court”.
Counsel for the Appellantconcedes that the decision to recall a witness is discretionary. However the exercise of this discretion must not be done in an arbitrarymanner. Counsel cited Article 296 (a) and (b) of the Constitution which lays down some principles. These are stated in the following terms:
“Where in this Constitution or in any other law discretionary power is vested in any person or authority –
a. That discretionary power shall be deemed to imply a duty to be fair and candid.
b. The exercise of the discretionary power shall not be arbitrary capricious or biased whether by resentment, prejudice or personal dislike and shall be in accordance with the due process of law.”
The question essential in the discharge of discretion is what amounts to fairness? That is, what in the circumstances can be said to not be arbitrary, capricious or biased. In the pursuit of this determination, the counsel for the Defendant, in his submission for this appeal made reference to the case of SasuvrsAmua-Sekyi [1987-88] 2 GLR 221.
The facts of the case was that, the case had suffered lots of frustrations ranging from change of judges (by a petition bythe Defendant to the Chief Justice for the change to be effected and the retirement of one judge), to the several adjournments by virtue of absence of parties, to frequent petitions by the Defendantto change the sitting judge.
On the day of the Ruling which culminated into the appeal, the Defendantwas absent. However, his wife was present and she informed the judge that Defendant had travelled to Kwahu for a funeral. She however did not know when he would return. The trial judge did not find the explanation of the Defendant’s wife plausible and therefore refused to adjourned the case
The court, on appeal, held per its 4th Holding:
“It was trite learning that adjournment was always at the discretion of the court and that the discretion must be exercised judicially. In the instant case, the judge had good knowledge of the Defendant’s behaviour, and found that the supposed application by the Defendant through his wife was another ruse of his and therefore did not believe that the application was genuine. Since there was ample evidence on the record and reasons given by the trial judge why he refused to grant the adjournment, the Court of Appeal had no right to challenge the exercise of that discretion upon an impartial examination of the case”.
Another case to which counsel for Defendant drew our attention is Seatec Ltd. vrs Penton Hook Farms Ltd. and another [1984-86] 1 GLR 605. In this case, the court held in its 2nd Holding:
“The granting of an adjournment was within the discretion of the trial court and in the instant case, the trial judge quite properly exercised his discretion when he refused the adjournment. The suit had had a chequered career and further adjournment would have caused undue delay and hardship. And since the notice of the amendment could have been filed at a much earlier stage of the proceedings, the delay of the Plaintiffs until after he and his first witness had given their evidence was unreasonable as well as unpardonable and the trial judge was therefore right in refusing the application for adjournment.
Per Abban J.A.:
“It is interesting to note that even though hearing had not yet been completed, the case had been to the Court of Appeal and the present appeal is the second occasion it has come before this court. The substantive case had been heard before another judge at one time, and it was being reheard by the trial judge. All this time the Plaintiffs had not thought it fit to file notice of their intended amendment and the learned trial judge rightly felt it was unfair to grant an adjournment for that purpose””.
In the case of OmenyovrsDoku  GLR 778, an application for an adjournment because the applicant had been bereaved was refused on the grounds that the applicant was fond of delaying cases by such methods, when there was in fact no evidence of similar delays in other cases before the court.
On appeal, it was held that the refusal was based on a wrong exercise of judicial discretion.
In the case of Heggievrs Communication Haulage Co. Ltd,  1 GLR 276 SC, the Plaintiff applied for an adjournment for the reason among others, that the issues were not settled between the Plaintiff and the Defendants the action was struck out, not for want of prosecution but because the application for an adjournment was made which the court refused to entertain.
On appeal, it was held that the discretion would be removed since the order refusing the adjournment defeated the rights of the applicant altogether and did injustice to the parties.
Importing the rationale for the refusal of the grant of adjournment of the suit of the aforementioned cases, to the instant appeal before us, the question to be asked is: whether or not the trial judge fairly discharged her duty to be fair in the dispensation of discretion? That is, whether or not the refusal was arbitrary or capricious.
It is a primary concern of the administration of justice that delay of a suit be prevented as far as possible.
This is espoused in the High Court (Civil Procedure) Rules, (C.I.47) in Order 1 Rule 2 as:
“These Rules, (C.I.47) shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense, and ensure that as far as possible, all matters in dispute between parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided”.
Order 37 of C.I.47 further provides on matters of adjournments and delays as:
“(1) The Court may, if it considers it necessary in the interest of justice, postpone or adjourn the hearing of any cause or matter for such a time and on such terms as it considers fit.
(2) It is the duty of the parties, their lawyers and the Court to avoid all unnecessary adjournments and other delays and to ensure that causes or matters are disposed of as speedily as the justice of the case permits”.
It is incumbent on the Court, the parties and their lawyers to regulate the speed of proceedings in the administration of justice but supervisory power is reposed to the Courtto ensure this regulation. It is for this reason that discretion has been allotted the Court.
In this regard, it is generally not the place of an appellate court to interfere and /or disrupt the exercise of the discretion of a trial Court in its control and case management of all trials and procedures before it. This is to ensure that a matter is heard speedily and effectively as per the rules as quoted above. On the contrary, the Trial Courts are to be encouraged to prevent parties and their counsels from indulging in practices and behavior that would cause undue delay and drag matters before the Court below.
For this reason, the procedural improprieties of a party or his counsel ought not to be encouraged. The default position of the trial Courts, thereby, is to follow its rules and practices.
It is however incumbent on all stakeholders in the administration of justice that justice be served, and that the rules ought to be complied with. It can be inferred from the provisions under the High Court (Civil Procedure) Rules, (C.I.47) in Order 1 Rule 2, as well as Order 37 Rule 1 (as provided above) that the speed of conducting a case goes hand in hand with the service of justice. Both are of fundamental essence.
It was intimated by the counsel of the Defendant in his written submission that out of 13 court sittings, since he assumed the conduct of the case, he has been present in a total of 12. He further stated that the only time he had been absent was on 9th May 2016 where counsel had indicated that he could not make it to Court for a ruling on a motion which the Defendants had not posed. He described himself as a person who was known not to deliberately delay cases. He thereby drew the attention of the Court to the point that the Plaintiff had been granted a number of adjournments due to the absence or difficulties of counsel for the Plaintiff (similar to what he was facing).
It is in the interest of justice for parties to be given equally fair opportunities. This is not to succumb to the practice that because one party defaulted during the proceedings, the other gains any right to be pardoned when that other party also defaults.
Discretion is to be exercised on principles and factual instances. In that regard, it is relevant to take into consideration all surrounding circumstances. This may take account of the demeanour of the parties and their counsel such as their attendance.
It is worthy of note that these circumstantial matters of facts are best witnessed by the trial judge since it is the trial judge who hasfirsthand knowledge of the trial and who would have had the opportunity ofwitnessing the demeanour of the parties, witnesses and lawyers appearing before him. The appellate court judge would not be privy to these circumstances and would have to fall on the Record of Appeal. These incidences may not be apparent on the face of the Record unless the trial judge comments on them.
For this and other reasons, the appellate judge is slow to interfere in the trial judge’s exercise of discretion.
One cannot but take note of the dictum of Francois JSC in the case of EssilfievrsAnafo  2 GLR 654 at 672 which indicates that the litigant who has put his case in the hands of counsel must not be made to suffer for the ‘sins’ of counsel.
It is also worthy to note that per the Ruling of the trial judge (which is facing the instant appeal) the case was closed for judgment to be read at the next sitting (as found on page 164 of the Record of Appeal where the trial judge stated):
“…Suit is adjourned to the 17th of November, 2016 at 9.00am for judgment.”
On that account, the counsel for the Defendant ought to have applied for a reopening of the case before applying for the recall of the 2ndDefendant. As it were Counsel for the Appellant by his application to recall the 2ndDefendant was putting the cart before the horse.
A caveat is hereby sounded that the rules of court are provided to be obeyed for the efficient and effective administration of justice and the greater good of all. The courts will not encourage procedural malpractices. However, the courts would also not rule a party’s unforeseen misfortunes against that party. The courts would not strictly apply a rule of law where it creates hardship. It is in that regard that, depending on the circumstances, a party may be allowed to remedy the wrongs caused primarily by his counsel. It is clear from the record that the court below did allow the Respondent a number of times to have the case adjourned at his instance. The scale of justice has to be evenly balanced therefore it seems to me that the court was a bit hasty in turning down the request by the Appellant to have the case either stood down to enable his counsel appear or to have it adjourned. The Respondent’s prayer for adjournment having been granted, it was only fair to similarly grant the request by the Appellant for same. However there is no gainsaying the fact that the posture of the Appellant by insisting on testifying only in the presence of his counsel must have irked or irritated the court. That notwithstanding, this court will hereby consider all the circumstances and allow this appeal.
For these reasons, the appeal is upheld and the Ruling of the High Court dated 20th September, 201 herebyset aside.