Defendant’s Motion to File Supplementary Witness Statement

i. The Applicant’s Case:

[1] This Court’s ruling of July 9, 2018 is what has undoubtedly triggered the instant application by the 1st Defendant. This is an application by Counsel for and on behalf of the 1st Defendant herein praying for leave to file supplementary witness statement.

[2] The main thrust of the application is that during the cross-examination of the Plaintiff/Respondent’s witness in May 2018, the Respondent sought leave to file a Supplementary Witness Statement to introduce documentary evidence related to the “proof of the alleged purchase of a Hyundai Elantra and documents purporting to be evidence of vehicle rental”. According to the Applicant herein though it opposed the application on the grounds that it was seeking to fill in the gaps in the evidence, the Court granted the application. It is deposed that “the alleged documents contrary to the Respondent’s assertion was not in Respondent’s possession the reason for the failure to put them in evidence earlier”.

[3] It is deposed that “given the late entry of these documents/evidence, Applicant could not reasonably bring any documentary evidence to challenge these pieces of evidence at the time as it was almost at the close of its cross-examination session”. In the light of that Applicant says it has “since been able to procure documentary evidence to challenge the documentary evidence introduced by Respondent”. The Applicant is therefore by this instant application praying the Court that “in the interest of justice and to assist this Honourable Court make a determination on the documentary evidence tendered by the Respondent”, the Applicant should also be permitted to attach certain documents marked as Exhibits KAB and for same to be relied upon at trial. The Applicant also prays to tender in evidence samples of a speed sensor with its cable as well as a Turbo Charger. The Applicant further seeks leave to replace “photocopies of pages of already tendered Job cards which were not legible”.

[4] Arguing in support of the motion, learned Counsel for the 1st Defendant/Applicant referred to the depositions in the affidavit in support and submitted that the Applicant’s prayer is in threefold. First, the Applicant seeks leave to adduce further evidence by way of documents marked as Exhibit 24 and 25 Series attached to the proposed Supplementary Witness Statement. Second, the Applicant seeks leave to tender certain parts, to wit, a turbo charger and speed sensor with its cable. According to Counsel, the 1st Defendant initially tendered a photograph but now they wish to tender “the real thing” because they believe that if the Court sees the real equipment it shall help the Court to appreciate the defence the 1st Defendant wishes to put up in this case. The third leg of the application according to Counsel is for the Court to give the 1st Defendant the opportunity to replace illegible copies of job cards tendered as exhibits with legible copies.

[5] Learned Counsel rehashed the facts as contained in the affidavit in support and submitted that “the need to be given leave arose as a result of the Respondent given leave to adduce evidence at the tail end of her evidence”. According to Counsel by this application the Applicant intends to produce documents to contradict the Plaintiff and after the admission of the documents “at the address stage we can evaluate the documents”. According to Learned Counsel because the Plaintiff is claiming special damages, it is the only way the 1st Defendant can challenge the documents tendered by the Plaintiff.

[6] Further, Counsel in responding to the affidavit in opposition filed submitted that the basis of the documents at this stage is “relevance” and since the overriding principle is that if the documents are relevant the Court should admit them because they are admissible. According to Learned Counsel the documents are relevant and they are addressed to one Isaac Arku Korsah an Officer of the Applicant Company who has been in Court to represent the 1st Defendant previously. Also, Counsel submitted that “the documents are of comparative rates which when admitted would enable the Court to compare same to those of the Plaintiff. Counsel submitted that the documents do not come under any of the exceptions under Section 52 of the Evidence Act, NRCD 323. Based on all of the Counsel prayed the Court to allow the application and to admit the documents because they are relevant.

ii. Respondents’ Case

[7] Counsel for the 2nd Defendant confirmed to the Court that though he is served with the application he takes no position on it. The Plaintiff on the other hand filed an affidavit in opposition to the application. Opposing the application, Mr. Sean Poku first submitted that he was initially opposed to the prayer for the admission of the turbo charger and speed sensor because no samples were attached to the application. Having seen the samples in open Court, Counsel submitted that he was not particularly opposed. His main opposition is in respect of the documents tagged as Exhibits 24 to 26.

[8] According to Mr. Poku the person the Applicant prays to tender the documents through is one Ahmed Farouk. This individual, according to Learned Counsel is not the proper party to tender same by virtue of Section 60 of the Evidence Act. According to Mr. Poku the documents Counsel intend to tender falls under the exception under Section 52(b) of the Evidence Act because it will create unfair prejudice to the Plaintiff.

[9] First and foremost, Counsel referred to the proposed Exhibit 24 series being invoices from a Company called Just Link Rent a Car to one IAK Marketing. Counsel submitted that both Just Link and IAK Marketing are not parties to the present suit. Further, Counsel submitted that Ahmed Farouk who is to tender the exhibits from the face of the exhibits does not have personal knowledge of the said documents. Further, Mr. Poku submitted that the documents are addressed to Mr. Arku Korsah as an Officer of IAK Marketing but not to Mr. Arku Korsah as an Officer of the 1st Defendant Company. Counsel further ground of objection is that if for anything at all it is Isaac Arku Korsah who can be subjected to cross-examination on the said documents and not Ahmed Farouk.

[10] Further, learned Counsel for the Plaintiff submitted that Exhibit 24 series cannot at all be relevant to this matter because they are from July 2018 and October 2018 and so they do not answer the time period of Exhibit Q Series which are from 2012, 2013 and 2014. To Mr. Poku the last of the series which is from 2014 were issued four years ago from what the 1st Defendant prays to tender. To that extent, Counsel submitted that it is not within the time period the Court is to make determination from and therefore not relevant.

[11] Counsel also referred to Exhibit 26 and submitted that it is also a receipt from Just Link to IAK Marketing and dated 25 October, 2018. To that extent Counsel submitted that it cannot be the basis to challenge documents from 2012 to 2014, According to Learned Counsel it would be prejudicial because it will create the impression that charges in 2018 are the same as 2012, 2013 and 2014.

[13] Learned Counsel turned his attention to Exhibit 25 series and submitted that it is an invoice from PACI Travels to a client called Jas Hammond and one to Edee Kay Car Rentals. Again, Counsel submitted that Mr. Hammond and an institution called Edee Car Rentals are not parties to this suit and so documents to them are not relevant to the present case. Mr. Poku submitted that Exhibit Q Series are from Just Link Car –a- Rentals and not from Edee Kay or PACI Travels and therefore they are not relevant.

[14] Mr. Poku further referred to the case of SELORMEY v REPUBLIC [2001-2002] SCGLR 848 and submitted that the Supreme Court addressed Sections 59 to 60 of the Evidence Act. Relying on the statement of the law by Bamford Addo JSC (as she then was) at page 852 that “…a competent witness must, under section 60(1) of NRCD 323, have personal knowledge of matters about which he intends to testify before he can be allowed to do so”, Counsel submitted that Ahmed Farouk may have knowledge of a turbo charger and speed sensor, but he cannot have knowledge about invoices which were never addressed to him nor the 1st Defendant. Based on of the above Counsel prayed the Court to dismiss the application in respect of the tendering of Exhibits 24, 25 and 26. Counsel had no issue with the replacement of legible copies of exhibits filed for the ineligible ones.

iii. The Court’s Opinion

[15] I have read the application and also read the affidavits filed by both parties. Consideration has been given to both the oral submissions made by Counsel for the parties. Regard has also been given to the legal authority cited by Counsel. I have further given thoughtful consideration to the Rules of Evidence, in particular Sections 52 and 60 of the Evidence Act, NRCD 323.

[16] I start my analysis by stating that having reviewed the application together with all the materials filed, in my respectful opinion the premise for the instant application is flawed in so far as the impression is that because the Plaintiff/Respondent was allowed to file a supplementary witness statement, the 1st Defendant should also be allowed to counter same. In my respectful opinion, this Court spoke in clear terms as to the basis for allowing that application. To leave no one in doubt I hereby reiterate what I said at paragraphs 17 and 18 of the ruling of July 9, 2018. It was stated:

“In the instant case, I need to emphasize that both Defendants concede that the Plaintiff pleaded and indeed indicated in the witness statement filed by the witness Madam Margaret Poku on 19th August 2016 at paragraphs 19.0 and 35.0 that the said exhibits have been attached and actually provided an exhibit number. The witness has not completed her evidence and she is not discharged and therefore the Defendants shall have the opportunity to react to the documents to be tendered if the application is allowed. Can it therefore be said that the Defendants shall be overreached and a serious injustice shall be caused to their case which shall be prejudicial to them for which they cannot be compensated for by costs?

To my mind the Defendants objection to the instant application requires the court to balance the truth-finding function that is at the heart of all litigation, with fundamental concept of trial fairness. In this case I am persuaded by the consistency of the evidence to be tendered with the facts pleaded by the Plaintiff and stated in the witness statement filed. The documents the Plaintiff intend to tender, so far as can be seen from the trial exhibits attached clearly supports the “inadvertence” submission made by Mr. Poku. It can be inferred from the earlier witness statement filed that the Plaintiff intended to rely on same”. [Emphasis Mine].

[17] With respect to Counsel the Court did not allow the application out of the blue. The Court’s reasoning was to the effect that because the Plaintiff pleaded those facts and indeed indicated in the witness statement that the said documents existed and went ahead to provide exhibits numbers for them was the basis for the grant and not because of any other reason. It also bears emphasis to note that the Court took into consideration the effects of having had a Case Management Conference and the impact thereon. It is therefore wrong for the impression to be created that if the Court allowed the Plaintiff to file a supplementary witness statement, this should also be extended to the 1st Defendant.

[18] Now, as I understand it the Applicant contends that because the documents were tendered at the last stage of the cross-examination of the witness it could not produce documents to counteract the documents tendered. In other words the 1st Defendant did not have time to gather documents and prepare for the witness. Again, in the Court’s opinion the contention is not anchored on the pleadings at all. The Court notes that the Plaintiff pleaded at paragraph 16 of the statement of claim to the writ filed on July 13, 2015 as follows:

“Plaintiff avers that as a result of the discomfort owed to the defective vehicle and ever increasing cost of renting a vehicle, Plaintiff mitigated its losses by acquiring an alternate vehicle not budgeted for”.

[19] In the Amended Statement of Defence and Counterclaim filed on March 24, 2016 by the 1st Defendant, it was pleaded at paragraph 20 in answer as follows:

“The 1st Defendant denies paragraphs (16) and (17) of the Statement of Claim and shall put the Plaintiff to strict proof of the averments. In further response to paragraph (17), 1st Defendant says it has never approached the Plaintiff with the view of settling the matter”

[20] In the opinion of the Court it is clear that the 1st Defendant joined issue on the allegation of car rental and purchase of a vehicle and therefore the Plaintiff has the burden to discharge on the issue. As indicated it did so by stating in the witness statement and providing exhibit numbers for same. Based on all of that it is startling for the 1st Defendant to say that admission of the documents by and large took it by surprise when it was always known that the Plaintiff has the burden to discharge.

[21] With that out of the way, the main issue before me at this stage of the suit is whether I will permit the admission of the Applicant’s proposed Exhibits 24, 25, and 26. Whilst Mrs. Opoku Amponsah contends that the documents are relevant, Mr. Poku for the Plaintiff holds a different view.

[22] Undoubtedly, relevance consists of two components: materiality and probative value. The term materiality is concerned with the relationship between the proffered evidence and the issues in the case. Relevant evidence is evidence that has a tendency to make the existence or non-existence of any fact that is material to the determination of a material fact or issue more probable or less probable that it would be without the evidence.

[23] Put differently, the issue whether the rental documents and receipts intended to be tendered in evidence have some tendency, as a matter of logic and human experience, to make the proposition for which the 1st Defendant intends to advance, namely to impeach the Plaintiff’s Exhibit Q Series as not credible, more likely than that proposition would appear to be in the absence of that evidence. See –

David Paciocco and Lee Stuesser, The Law of Evidence in Canada, Irwin Law 4^th ed. @ para. 3.1

[24] Also, the Evidence Act, Act 323 Section 51 titled ‘Relevant Evidence Admissible’ provides:

(1) For the purpose of this Decree, "relevant evidence" means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, which makes the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

(2) All relevant evidence is admissible except as otherwise provided by any enactment.

(3) No evidence is admissible except relevant evidence.

[25] Section 60 of the Evidence Act titled — Personal Knowledge Required – also provides:

(1) A witness may not testify to a matter unless sufficient evidence is introduced to support a finding that he has personal knowledge of the matter.

(2) Evidence to prove personal knowledge may, but need not, consist of the testimony of the witness himself.

(3) A witness may testify to a matter without proof of personal knowledge if no objection is raised by any party.

(4) This section is subject to section 112 relating to opinion testimony by expert witnesses.

[26] In my respectful view, it is important to state that it is not enough to state that because the documents intended to be tendered are car rental receipts then they are relevant. A proper foundation ought to be laid for their admission. First and foremost I agree with Mr. Poku that the documents have no link to the proposed witness, Ahmed Farouk. He may be an officer of the 1st Defendant and so may be a certain Mr. Arku Korsah but the proposed Exhibit 24 are Just Link Rent – A- Car and addressed to Mr. Arku Korsah of IAK Marketing a company not known to this suit. There is no evidence that the said Isaac Arku Korsah of IAK Marketing is the same Mr. Arku Korsah of the Defendant Company. He did not depose to the supporting affidavit in support of this motion for instance to say he is the same person.

[27] Also, there is no evidence to show the link between the 1st Defendant Company and the said IAK Marketing. To my mind it is indeed a stretch for Counsel to say that because a certain Arku Korsah was in Court previously to represent the Defendant in this trial the 1st Defendant ought to have the carte blanche to use a document in that name to make its case. To that extent I do not see the relevance of the said Exhibit 24 series and Exhibit 26.

[28] Again, to the extent that PACI Travels and one Jas Hammond together with Edee Kay Car Rentals as the parties the documents are addressed to are not parties to this suit, with respect I disagree with learned Counsel that same should be admitted into evidence. I wonder how Mr. Ahmed Farouk can properly in legal terms answer questions on that document to assist the Court to make a determination on the issue of the vehicles rented by the Plaintiff’s Officer.

[29] In ending my analysis, the Court’s response to the submission of Mrs. Opoku Amponsah that the documents are intended to contradict the documents submitted by the Plaintiff’s witness is that respectfully a witness’ credibility is not impeached by the production of more documents from a person who is not the alleged author of the documents already submitted. In my respectful opinion, the Applicant rather intends to provide the Court with further documents which at best will leave the Court to speculate as to which ones of the documents tendered it prefers but will not help the Court to access the veracity, the authenticity and the credibility of the Plaintiff’s documents in so far as Mr. Ahmed Farouk is not the author, the recipient and/or officer of the Just Link Rent-a-Car Company,

[30] Based on all of the above, I am of the respectful view that the Exhibits 24, 25 and 26 that the 1st Defendant intends to tender as exhibits in this trial are not relevant and their admission shall not assist this Court to resolve the issue for which they are intended to be used for. I also reject the contention that the non-admission deprives the 1st Defendant from rebutting the Plaintiff’s evidence as per Exhibit Q Series because the Plaintiff has always been transparent in regards to those documents. The Court believed and accepted as a fact that they were not initially attached to the witness statement due to inadvertence.

[31] Finally, I wish to state that while the Court has a duty to direct parties in the conduct of their case, it is not the duty of the Court to do a party’s case for him or her. In this case in my respectful opinion I believe that the right course of action open to the 1st Defendant based on the facts and the contention that the documents submitted by the Plaintiff are not authentic and genuine to the extent that the prices are inflated, is to subpoena an officer of the company the Plaintiff rented the car from. After all it is that company that is believed to be the author of the said documents and not IAK Marketing, Arku Korsah and or Ahmed Farouk whose name does not appear at all in any of the documents.

[32] The other grounds canvassed by the Applicant in the application are granted. But the admission of the proposed Exhibits 24, 25 and 26 are DISMISSED.

I shall grant each Plaintiff Cost of - Gh₵750.00 as Cost.