IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
KGMTI - (Plaintiff)
SERVISTAR-MINWAX W. A. LTD - (Defendant)
DATE: 13TH JULY, 2016
SUIT NO: RPC/230/2014
JUDGES: HIS LORDSHIP ERIC KYEI BAFFOUR JUSTICE OF THE HIGH COURT
The Plaintiff/Applicant prays the court for leave to issue subpoena ad testificandum directed at the Commissioner of Customs Division of the Ghana Revenue Authority to appear before the court to testify on the status of certain shipping containers which were consigned by the plaintiff to the defendant for delivery to the port of Tema.
Though the applicant did not indicate during the case management conference and the on pretrial checklist that he intended to call the Commissioner of Customs or its representative to testify. The reason the applicant proffer is that it has become apparent in the course of the trial that the Commissioner appears as a witness in order for the court to be conversant with the full facts of the case and hence the need for the grant of the leave he seeks for the court to be appraised of the fate of the containers which were seized and auctioned by the Customs Division of the Ghana Revenue Authiritt for accumulated demurrage charges.
Defendant has ardently opposed the application on the grounds that the applicant has not disclosed any special or exceptional circumstances that warrant the grant of the application. To defendant, pleadings have closed, they have all filed their respective witness statements and plaintiff is on the verge of closing its case. That again, plaintiff never indicated during the pretrial conference that plaintiff will call the Commissioner of Customs as a witness in the suit. And as it was not indicated by plaintiff, it shows that the witness plaintiff intended to subpoen had not been seen by plaintiff as a material witness.
It is stated under Rule 3D of Order 38 of the High Court (Civil procedure Rules) C.I 47 as amended by the Civil procedure (Amendment) Rules, C.I. 87 that:
“Where a witness statement for use at the trial is not served in respect of an intended witness within the time specified by the Court, the witness shall not give oral evidence unless the Court grants leave”
This rule must be just be juxtaposed against that of section 68 of the Evidence Act, NRCD 323 that:
“The Court may, on its own motion or at the request of a party, call or recall witnesses”
Whiles Yarney, Esq has urged the court that the Commissioner’s presence may be necessary to unravel the fate of some of the containers if the aim of the court is to do justice the defendant claim that to call the witness will overreach the defendant.
It appears to be that whether under the Evidence Act or the C.I 47 which now allows the taking of witness statement, to call a person to testify who has not given a witness statement is at the discretion of the court. To appreciate the factors that a court may have to take into consideration to allow a witness such as the one plaintiff intends to call to testify will depend on a number of factors.
One is whether the issue or matter that the intended witness will be testifying to has suddenly emerged during the course of the trial such that no matter how gifted a lawyer with prescience he would not have discerned that the evidence of that witness will be relevant during the case management conference.
Two the necessity to balance the need to avoid undue delay whiles not sacrificing the need to ensure that justice is not slaughtered on the altar of speed. For it must always be borne in mind that what gave birth to the C.I 87 was, among others, to avoid delay and surprise to an opponent and ensure that lawyers think through the case they are handling so as not to engage in any accident of lottery as to the witnesses it must call during trial.
The applicant knew all long from its pleadings that the Customs Division of the Ghana Revenue Authority had auctioned some of the containers, as he alleges, and the necessity that the Commissioner will be a necessary witness for his case to establish the whereabouts of the containers, could not be said to have suddenly down on counsel. If the court were to needlessly allow such applications, it would defeat the very purpose for the enactment of the amendments to the rules of court and take us back to what used to prevail before C.I 87 came into being.
Again, it does not make for prudent management of the cases of a court if such applications are allowed making it virtually unpredictable as to when a court will finish a case and the number of witnesses that a party will call. The Pretrial Check list was for a purpose. Though I admit, that the rules of court are only handmaidens but not a mistress, but if this application were to be allowed, I think, it will overreach the defendant and making meaningless the whole purpose of the case management conference.
I find no compelling grounds canvassed by the applicant to allow this application and accordingly declined same.
I make no order as to cost.