Frank Honey Twum Vrs Cynthia Ofori Appiah [2022] GHACC 110 (11 November 2022)

IN THE CIRCUIT COURT “A”, TEMA, HELD ON FRIDAY THE 11TH DAY OF NOVEMBER, 2022, BEFORE HER HONOUR AGNES OPOKU- BARNIEH, CIRCUIT COURT JUDGE FRANK HONEY TWUM ----- PETITIONER SUIT NO. C5/50/19 VRS. CYNTHIA OFORI APPIAH ----- RESPONDENT PETITIONER/RESPONDENT PRESENT RESPONDENT/APPLICANT PRESENT EDWARD METTLE NUNOO FOR THE PETITIONER PRESENT GORDON AKPADIE, ESQ. FOR THE RESPONDENT PRESENT RULING ON RECALL OF A WITNESS FACTS: This is a ruling on a motion on notice to recall the petitioner for further cross- examination filed by Counsel for the Respondent/Applicant (hereinafter called “the Applicant”) praying the court for an order to recall the Petitioner/respondent (hereinafter called the respondent) for further cross- examination. In the affidavit in support of the motion, counsel for the applicant deposed that the respondent has appointed him as counsel in the matter and upon conference and review of the proceedings; it has become necessary to apply for the recall of the Petitioner for further cross-examination. Counsel for the applicant further deposed that the Petitioner tendered a huge pile of exhibits but the proceedings does not reflect that the old counsel for the applicant cross-examined the respondent on it. In his view, as new Counsel, he has a duty to correct the omissions by his colleague and maintains that the sins of counsel may not be visited on the Applicant. According to Counsel for the Applicant, the recall would not delay the hearing nor embarrass the respondent. Counsel for the respondent vehemently opposed the application to recall on grounds that it will cause undue delay and unfair inconvenience. Counsel for the respondent maintains that the petitioner/respondent was thoroughly and rigorously cross-examined on his evidence in-chief over the course of four sittings by the then Counsel for the Applicant. Thus, having ended cross- examination on the 30th of April, 2021, the petitioner/respondent was discharged. Counsel for the respondent maintains that the fact that the Applicant exercised her right to change counsel after the conclusion of cross- examination should not adversely affect the proceedings and not a basis in law for the court to recall the Petitioner for any further cross-examination. Counsel further contends that granting the application will open the floodgates for parties to actions to keep pending actions running in perpetuity by the mere change of solicitor. RULING Under section 68 of the Evidence Act, 1975(NRCD 323), the court on its own motion or on an application by a party may call or recall a witness. Section 79 of NRCD 323 further states that after a witness has been excused from giving further testimony in an action the witness may be recalled with the leave of the court. The discretion of the court to call and recall witnesses, like all discretionary powers, must be exercised judiciously and not capriciously. The Supreme Court in the case of Kpekata v. COP, (1963) 1 GLR 398 the supreme court held that: “it is important that when an application is made for the recall of a witness the courts should enquire from counsel or the applicant the nature of the evidence the witness was being called to give and if it appears that the evidence intended to be given is not an explanation of something he has already said, the application should be refused unless in very exceptional cases, it will not be in the interest of justice to do so”. It is clear from the authorities cited above that though the court has power to recall a witness to testify, the scope of his testimony is limited. The essence, of recalling of a witness, must only be to explain certain statements made by the witness in the course of his testimony before the court. The court will not allow a witness to be recalled if the sole essence of his recall is to allege new facts or to contradict his previous testimony given under oath. Also, on the authorities, the court in exceptional circumstances, can recall a witness in the interest of justice. In the instant case, the ground for leave to recall the respondent for further cross-examination as maintained by Counsel for the Applicant is that certain exhibits were tendered which the previous lawyer failed to cross-examine on and that the sins of counsel should not be visited on the applicant. In my considered opinion, the Applicant was ably represented and Counsel for the Applicant at the time conducted rigorous cross-examination on 20th November, 2020, 19th March, 2021, 16th April, 2021 and 30th April 2021. As rightly pointed out by Counsel for the petitioner in his affidavit in Opposition, a change in legal representation per se is not a basis for the recall of witnesses unless the interests of justice demand. In the instant case, most of the delay in the case has been at the instance of the applicant and her counsel. The case having proceeded normally and counsel having extensively cross- examined on four occasions, it will not be fair to recall the petitioner/respondent for further cross-examination because the applicant has a new lawyer who would have done things differently. Based on the forgoing, the application to recall the petitioner will not serve the interest of justice but unduly delay the trial and inconvenience the petitioner/respondent. Accordingly, the application to recall the petitioner for further cross-examination is dismissed. (SGD) H/H AGNES OPOKU-BARNIEH (CIRCUIT COURT JUDGE) 4