IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT
KUAMSI - A.D 2019
BERNARD OSEI BOATENG - (Plaintiff)
NELSON TWUMASI AND OTHERS - (Defendants)
DATE: 10TH MAY, 2019
SUIT NO: RPC 67/2014
JUDGES: HIS LORDSHIP JUSTICE DR. RICHMOND OSEI-HWERE
FREDERICK KANKAM BOADU FOR THE PLAINTIFF/APPLICANT
DR. STEPHEN KOFI SONDEM FOR THE 5THDEFENDANT/RESPONDENT
In this application the plaintiff/applicant (hereinafter called the applicant) is inviting the court to set aside the witness statement of one Alex Brobbey filed on behalf of the 5th defendant/respondent (hereinafter called the respondent) on 6th December, 2018.
The said Alex Brobbey was given a power of attorney to testify on behalf of the 5th defendant. This was after the applicant had closed its case and the 5th defendant was expected to open his case. Following the power of attorney, the attorney herein (Alex Brobbey) filed a witness statement to testify in his capacity as the attorney of Charles Mensah, the 5th defendant. In the witness statement the attorney herein attached documents which he intends to rely on as his exhibits. It must be note that these documents were not attached by the 5th defendant in his original witness statement filed on 30th March, 2017. It is the witness statement of the attorney herein that has triggered the instant application.
The grounds of the application are contained in the affidavit in support of the motion and supplementary affidavit filed on 12th February, 2019 and 26th March, 2019 respectively.
The respondent is opposed to the application and has demonstrated its opposition in an affidavit filed on 28th February, 2019.
The gravamen of the applicant’s case as submitted by the learned counsel is summed up as follows:
Counsel submits that the witness statement of Alex Brobbey was filed to introduce fresh evidence which are inadmissible. He contends that since no exhibits were attached by the 5th defendant during the case management conference it will be unfair to introduce these exhibits at this stage of the trial since the exhibits did not go through the admissibility test during the case management conference. He submits that the attorney’s witness statement if admitted in evidence will prejudice applicant’s case since the exhibits attached were not scrutinized during the case management conference.
Counsel also argues that per the power of attorney, the attorney only act in the stead of his principal. Therefore, the witness statement filed by the 5th defendant’s attorney is not required since he is bound by the witness statement of his principal. According to counsel since the said statement is not a sworn statement but a verified statement, the attorney is required to rely on it without submitting a fresh statement.
In his response, counsel for the respondent referred to paragraph 3 of the affidavit in opposition to the motion and submitted that on 30th March, 2017 the 5th defendant pursuant to Order 21 rule 2 of CI 47 filed a Notice of Discovery and Inspection of which he intended to rely on at the trial of the suit and that all the documents which were attached by the attorney were procured from the discoveries. Thus the question of prejudice does not arise since there is no element of surprise in respect of the documents. Counsel also submitted that it was necessary for the attorney to file his own witness statement since per the power of attorney he is expected to give evidence in the stead of the 5th defendant.
In Dzanku v Afalenu and Anor  GLR 792 to 794, Kingsley Nyinah J (as he then was) defined power of attorney as:
“It is described as a formal document whereby one empowers another to stand in his stead or represent him for certain specific purposes. It may either be a special power, or else a general power. In the case of the latter, the general power, the person unto whom the power is given, the donee, becomes invested with full power to do such periodic acts as carrying on a business or collecting debts belonging to the donor of the power. Where the power is special, however, the donor of the power confines the donee to the doing of certain specified acts.”
In the Encyclopedia of Forms and Precedents (supra) at page 495 the book gives an introduction on
Powers of Attorney where it says:
“A power of attorney is a ‘formal arrangement’ by which one-person (the donor) gives another person (the attorney) authority to act on his behalf and in his name. It is a type of agency, and the law relating to powers of attorney forms part of the general law of agency.”
Exhibit A is the Power of Attorney and paragraph 2 spells out the authority donated to the attorney herein as follows:
i. My Attorney is authorized to represent me and act on my behalf as the 5th Defendant in Suit No. RPC167/2014 pending at the Kumasi High Court, Commercial Court 2, entitled:
BERNARD OSEI BOATENT
H/NO. PLOT16 BLOCK ‘G
BREMANG NEW YORK, KUMASI
1. NELSON TWUMASI
2. MUTALA MOHAMMED
3. MR. FRANK TWUMASI
4. MR. KWAME DANSO
5. CHARLES MENSAH
ii. For me and on my behalf to execute all documents in respect of the said suit.
iii. Generally, my attorney may act in relation to the subject-matter of the suit as fully and effectually in all respect as I could act myself.
iv. In particular, to give evidence on my behalf in the said suit.’’
From exhibit A, there is no doubt that the 5th defendant gave the attorney, Alex Brobbey the authority to testify on his behalf in the instant action.
Now the profound questions are:
1. Was it necessary for the attorney to prepare his own witness statement as a basis of his testimony or he must rely on the witness statement of his principal filed on 30th March, 2017?
2. Can the attorney attach the said documents to his witness statement?
The introduction of the High Court (Civil Procedure) (Amendment) Rules, 2014 (CI 87) into our civil procedure jurisprudence has substantially altered the scope of testimonies in court. Under the current dispensation, a party is required to file a witness statement and is required to attach documents he wish to tender in evidence as exhibits. This arrangement is meant to ensure speedy and effective justice devoid of unnecessary objections when testimonies are rendered. These objections tend to cause unnecessary delays and expense. Thus, case management conference was incorporated in CI 87 to assess the admissibility of witness statements and any document a party wish to rely on. Under the rules, every competent witness must file a witness statement prior to his testimony in court unless the court orders otherwise. Whether one testifies as a party to a suit, an attorney of a party or a witness of a party, filing of a witness statement precedes the testimony unless the court orders otherwise. A witness statement is personal to the witness. An attorney cannot, therefore, rely on the witness statement filed by his principal. In this regard, Order 38 rule 3B as amended by CI 87 is very instructive and it provides:
3B (1). A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally at the trial.
2. The court shall at the application for directions order a party to file and serve on the other parties any witness statement of the oral evidence which the party serving the statement intends to rely on in relation to any issue of fact to be decided on at the trial.
Rule 3E as amended by CI 87 also provides:
3E(1).If a party has served a witness statement and that party wishes to rely at the trial on the evidence of the witness who made the statement, that party shall call the witness to give oral evidence unless the Court orders otherwise or that party puts the witness statement in as hearsay evidence.
(2) Where a witness is called to give oral evidence under sub rule (1), the witness statement of that witness shall stand as the evidence in chief of that witness unless the Court otherwise orders.
From the foregoing, it is apparent that in the instant case, the attorney cannot rely on the witness statement of his principal in his testimony. It was therefore necessary for him to file a witness statement to reflect the authority to give evidence on behalf of the 5th defendant.
Unlike the amendment of pleadings which is provided for under Order 16 rule 5 (1) of CI 47, amendment of witness statements is not provided for under the rule. However, these amendments can be exercised under the inherent jurisdiction of the court. The discretionary power to allow amendment of witness statements can be exercised by the court in such a manner and on such terms as may be just and as may be necessary for the purpose of determining the real questions in controversy between the parties and for the purpose of leading cogent evidence to establish ones claim or defence.
The traditional approach to amendments particularly in pleadings is summarised in the English case of Cobbold v Greenwich LBC  EWCA Civ 2074 by Peter Gibson LJ as follows:
“[a]mendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party or parties caused by the amendment can be compensated for in costs, and the public interest in the efficient management of justice is not significantly harmed.”
This principle can also be applied to amendments of witness statements. It is therefore my considered opinion that so long as a party can amend its witness statement or give supplementary or further witness statement to advance his case, an attorney of the said party can also file a modified witness statement in relation to his principal’s statement for the purpose of strengthening the latter’s case. After all, a witness statement remains a hearsay evidence if a party does not mount the witness box to rely on it as his evidence in chief. See section 117 of the Evidence Act, 1975 (NRCD 323) on hearsay evidence. Consequently, it is not out of place for the attorney herein to attach those exhibits to his witness statement. If a principal can amend his witness statement or file a further witness statement, nothing stops the attorney from modifying the principal’s witness statement in his statement provided the said modification conforms with the pleadings. The result is that the attachment of those exhibits to the attorney’s witness statement albeit a modification of the 5th defendant’s witness statement does not offend the rules of court, as it has never changed the colour of the 5th defendant’s defence. Since the exhibits are yet to be admitted in evidence, the applicant is at liberty to raise issues relating to their admissibility. In spite of the fact that the case management conference has elapsed, the court will be minded to hear and determine such objections in line with the notion that that the rules of court are applied to ensure substantial justice.
Based on the reasons above, the application is dismissed. The will be no order as to costs.
DR. RICHMOND OSEI-HWERE
JUSTICE OF THE HIGH COURT