IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
HO - A.D 2018
SYNDICATED CAPITAL LIMITED ACCRA NORTH - (Plaintiff)
UNITY RURAL BANK LIMITED AND SERAPHEM SENYO HINIDZAH - (Defendants)
DATE: 3 RD MAY, 2018
SUIT NO: E2 /74/ 2015
JUDGES: ERIC BAAH JUSTICE OF THE HIGH COURT
The new lawyers for the 2nd defendant absent without excuse or justification. The plaintiff has closed its case. The plaintiff was allowed to testify when the defendants and their counsel failed to appear and there was no excuse or justification. By Gblorkpor for the 1st defendant - The witness statement of the plaintiff's witness was not verified. It is essential that the witness statement was verified. So the plaintiff was not properly before the court. I rely on the 1995 edition of the White Book, pages 640-650.
The court should not have admitted a defective wit–ess statement.
By plaintiff’s counsel – We concede that the witness statement of the plaintiff was not verified. It does not have a statement of truth attached. We however rely on Order 81 and the decision in Ex parte Allgate, and submit that the non-compliance is curable by order 81 as it does not go to jurisdiction or the rules of natural justice.
There was a case management conference where the 1st defendant’s counsel should have raised the matter. He did not raise it and for over a year, he has been partaking in proceedings in this court. We pray that the irregularity should not be one that should affect the proceedings. We submit accordingly.
The 1st defendant’s counsel alleges that the witness statement of the plaintiff’s witness which he relied on as his evidence – in – chief on 20/2/18 was not verified. He contends that the said defect rendered the witness statement unusuable. He relied on the 1995 edition of the White Book, pages 640 – 650. Counsel for the plaintiff however submit that, even though there is indeed no verification of the said witness statement, same is not void and can be saved under Order 81 of C.I. 47. He relied on the Supreme Court’s decision in Ex parte Allgate Co. Ltd [2007 – 8) SCGLR 104 to buttress his submission that since the irregularity does not go to jurisdiction or breach the rules of natural justice, it is not sufficient to vitiate the proceedings. He called in aid, the conduct of the 1st defendant’s counsel in not raising any complaint at the case management conference or thereafter for over a period of one year.
I have also examined the witness statement of the plaintiff's witness and realised that it was not verified.
The defect complaint about relates to C.I. 47 (as amended) The Supreme Court in the Ex parte Allgate Co. Ltd [2007 – 8] 2 SCGLR 104 held that, all defects within C.I. 47 are remediable except those that amounts to;
a) breach of the constitution or another statute goes to jurisdiction
b) breach the rules of natural justice
Since the failure to verify the witness statement is within C.I. 47 and does not further amount to any of the breaches listed by the Supreme, same is remediable under Order 81, C.I. 47.
I accordingly hold that the breach cannot vitiate the proceedings. This is more so where case management conference has been conducted and there has not been any doubt about the authenticity of the said document. The evidence shall stay subject to cost of GH¢500.00 to the 1st defendant for the inconvenience caused. The 15 defendant's counsel is also granted leave to cross-examine the plaintiff's witness. Suit is adjourned to 21/5/18 for 1st defendant's counsel to cross - examine the plaintiff's witness.