IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (COMMERCIAL DIVISION)
KUMASI - A.D 2018
TRANSROYAL LIMITED - (Plaintiff)
KYEI BAFFOUR MAXWEL - (Defendants)
DATE: 13 TH FEBRUARY, 2018
SUIT NO: RPC 248/2014
JUDGES: DR. RICHMOND OSEI-HWERE JUSTICE OF THE HIGH COURT
DENNIS OSEI ANTWI FOR THE PLAINTIFF
BENJAMIN OSEI BOATENG FOR THE DEFENDANT
On 8 February, 2018 during cross examination of the plaintiff’s representative, counsel for the defendant prayed the court for an order directing the witness to provide the salary records of the plaintiff’s District Managers in the year 2010, 2011, 2012 and 2013. Counsel for the plaintiff objects to the application. The basis of the objection is that the era of the application of High Court (Civil Procedure) (Amendment) Rules, 2014 (CI 87) where case management conference is conducted prior to the trial, parties are required to indicate on their pre-trial check lists whether there are outstanding discoveries or interrogatories.
Counsel submits that since CMC has long been conducted and the defendant did not give any indication of his desire to conduct interrogatories or discoveries. Thus, granting the application to order the witness to produce documents during the trial is not only unfair but against the rules, counsel submits. In response to the objection, counsel for the defendant submits that no rule of this court will be breached if the court upholds the prayer. He submits that the witness himself has indicated that he has the records and can provide it to the court.
He prayed the court to overrule the objection, as production of the documents will help the court to administer justice. I have observed that the advent of CI 87 and its application in relation to the High Court (Civil Procedure) Rules, 2004 (CI 47) seems to generate some controversies.
Order 21 rule 10 of CI 47 provides:
“Order for production to Court
10. At any stage of the proceedings in any cause or matter the Court may, subject to rule 12 (1), order any party to produce to the Court any document in the party's possession, custody or power relating to any issue in the cause or matter and the Court may deal with the document when produced in such manner as it thinks fit.”
A cursory look at the provisions of CI 87 shows that it amended Orders 32, 34, 38, 41 and 58 of CI 47. These amendments were made to ensure that Order 1 rule 1 (2) of the rules that set out the objectives of CI 47 is achieved. Order 1 rule 1 (2) provides:
“These Rules shall be interpreted and applied so as to achieve speedy and effective justice, avoid delays and unnecessary expense and ensure that all matters in dispute between the parties may be completely, effectively and finally determined and multiplicity of proceedings concerning any of such matters avoided.”
Clearly, CI 87 did not amend Order 21 rule 10 of CI 47. CI 87 regulates specific issues dealing with case management in general while Order 10 of CI 47 specifically regulates the production of documents in the custody of a party during trial. The enactment of CI 87 has not impliedly amended Order 21 rule 10 of CI 47, as the subject matter of the respective provisions are substantially different. Both laws are not of the same character for the latter (CI 87) to be deemed to have amended the earlier one (Order 21 rule 10 of CI 47).
In the instant case, the defendants answered “YES” to the question as to whether he intends to apply for further orders relating to discovery in the pre-trial check (PTC) list. He also gave an indication in the PTC that he will apply for the order when the need arises. It is my considered opinion that assuming he had answered “NO” to the discovery inquiry, that answer would not have estopped him from applying to the court for the production of documents in the custody of his opponent during the trial. Implication of the alternate view amounts to a shutdown of the door of justice on a litigant who requires a document to back his case for effective justice to be done. That is palpably incompatible with Order 1 rule 1(2) of CI 47.
The document being sought to be produced is related to the issues set down for trial particularly the counter-claim. The defendant’s counter-claim includes:
“(b) Cash the sum of GHC 700.00 a month being defendant’s accumulated salary with the Plaintiff Company from 1st October 2010 to the date of final judgment.
(c) Interest on the GHC 700.00 at the Current Bank rate from November to the date of final payment.”
In the face of CI 87, the potency of Order 21 rule 10 continues to rule unabated. Under the law, the court is given the discretionary power to make an order for the production of documents in the custody of a party if such an order will advance the cause of justice. For the reasons above, I overrule the objection and order the witness to produce the salary records of the District Managers of the Plaintiff Company in the year 2010 to 2013. The documents shall be brought to court on the next adjourned date.