RULING
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 affidavi
