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July 10, 1980
HIGH COURT
GHANA
CORAM
JUDGMENT OF OSEI-HWERE J.
This ruling incorporates the answer to two applications made by the plaintiff. The first seeks leave to amend his reply to the defendants' amended defence which the plaintiff filed out of time and the second attempts to introduce fresh evidence after the formal evidence taken at the trial has closed and what now remains is to hear the addresses of counsel. The former application does not attempt to rectify any inconsistencies in the pleadings occasioned by the oral evidence but rather to bring the plaintiff's pleadings to conform with the oral evidence which he was permitted to lead without any objection. In Marfo v. Adusei [1963] 1 G.L.R. 225, S.C., the following comments on practice are set down in the headnotes:
"(2) The penalty for failing to plead a material fact is the exclusion, upon objection being taken, of evidence to establish it. But where evidence which could have been ruled out as inadmissible because it is adduced to prove a material fact which was not pleaded, has nevertheless been adduced without objection, a judge is bound to consider it. Abowaba v. Adeshina (1946) 12 W.A.C.A. 18 and Yartey v. Construction and Furniture (West Africa) Ltd. [1962] 1 G.L.R. 86, S.C.
(3) Counsel should take every care to exclude evidence of averments which are not pleaded for where he does not raise objection at the trial, he is precluded from doing so on appeal."
It was thus that an amendment was allowed to bring the pleadings in line with the evidence already led in Edward Nasser & Co., Ltd. v. Abu-Jawdi [1965] G.L.R. 523, S.C.
The fresh evidence in the instant case, concerns certain judgments, five of them in all, which the plaintiff's counsel seeks to tender through an employee of the National Archives who has been called, [p.587] by leave of court, for a limited purpose only. The defendants are not privy to any of these judgments and, indeed, it is only in respect of two of them where the plaintiff is privy. If the defendants' counsel had consented to their being admitted in evidence, the court would have granted without question its fiat. The defendants' counsel has raised his objection and, in my view, the objection is, quite apart from what has been urged by counsel for the defendant, sustainable on three grounds:
First, it will be prejudicial to the defendant who, because it is not tendered through the plaintiff, will have no opportunity to cross-examine on the judgments. Secondly, as they seek to supplement ce
AI Generated Summary
Justice Osei-Hwere issued a post-trial ruling resolving two applications by the plaintiff in a civil suit after formal evidence had closed and before counsel’s addresses. The plaintiff sought leave to amend his reply to the defendants’ amended defence, and also attempted to tender five prior judgments as fresh evidence through an employee of the National Archives called for a limited purpose. The court, drawing on practice statements in Marfo v. Adusei, Abowaba v. Adeshina, Yartey v. Construction and Furniture (West Africa) Ltd., and Edward Nasser & Co. v. Abu-Jawdi, allowed the amendment to conform pleadings to oral evidence that had been admitted without objection. However, applying the restrictive standards articulated by Collins L.J. in Young v. Kershaw; Burton v. Kershaw and the caution in Anderson v. Titmas, the court sustained the defendants’ objection to the fresh evidence, finding prejudice, lack of pleading, and impermissible bolstering of contradicted testimony. The judgments and exhibits were rejected.