FRANK REUBEN WOOD v. CYNTHIA WOOD

JUDGMENT

SOWAH J.A.

It is provided by Section 68 of the Evidence Act 1975 NRCD 323 as follows:

(1) The Court may, on its own motion or at the request of a party, call or recall a witness.

In this interlocutory appeal, the appellant is appealing the Ruling of the trial court dated 30th May 2011 which refused his application brought after he had closed his case, to call a witness to rebut evidence of the respondent relating to property at Kwabenya whose ownership is in dispute.

The appellant is seeking that the whole Ruling be set aside and leave granted to call Leticia Ama Adobea, the proposed witness to testify in respect of the property in issue.

Five grounds of appeal were filed, but the appellant only argued the first 4 grounds, namely:

1. The ruling is against the weight of evidence on record.

2. The learned trial judge erred in law when he held that “the evidence that the applicant seeks to introduce by wanting leave to call a witness to do so was both available and foreseeable (sic) necessary before the applicants case was closed and should have been adduced as a proper and necessary part of the applicants case” without giving reasons to support the said holding and in the process occasioned a grave miscarriage of justice.

3. The learned trial judge erred in law when he held that “the applicants assertion that during the period that he opened his case he could not locate the witness after diligent search to testify in court till he closed his case could not be a legitimate ground upon which this court would permit him long after he has closed his case to lead fresh evidence and thereby occasioning a miscarriage of justice.

4. The learned trial judge erred in law when he held that to allow the petitioner’s application was to aid the applicant to fill gaps that he had left and thereby occasioned a miscarriage of justice.

It is no surprise that after reading his convoluted 5th ground, the appellant’s counsel chose to remain silent about this ground of appeal. That ground of appeal, and to a lesser extent even the 2nd and 3rd grounds sin against Rule 8(5) of the Court of Appeal Rules, 1997 C.I. 19 which provides that the grounds of appeal should be set out concisely and under distinct heads without any argument or narrative. I accordingly strike out the 5th ground of appeal.

In respect of the 2nd, 3rd and 4th grounds, I agree with the submission of appellants' counsel that those grounds of appeal can be subsumed under his arguments in gro