Ghana Protein Ltd. v. Raanan Fish Feed West Africa

K. A. ACQUAYE, J. A. This is the judgment in respect of an interlocutory appeal filed against the ruling of a High Court in Accra which dismissed an application by the defendant/appellant to expunge part of the evidence led by the plaintiff/respondent from the record.

The plaintiff/respondent issued a writ of summons claiming against the defendant/appellant special and general damages and compensation in the sum of US$187, 500 or its equivalent in Ghana Cedis for direct loss and damage suffered by the plaintiff as a result of contaminated fish oil sold it by the defendant.

The plaintiff/respondent’s case was that she purchased fish oil from the defendant/appellant which she used to coat fish meal for sale to fish farmers but the fish oil was contaminated with anizidine more than six times its normal level as a result of which the fishes fed with the meal died.

This led to the plaintiff/respondent withdrawing the rest of the fish feed from the market and compensating the fish farmers for their loss hence his claims. The defendant/appellant’s defence was that the plaintiff/respondent knew that the oil was a waste product which had not been tested and ought to have tested it to establish its suitability for her purpose and that the longer the oil stayed the more it deteriorated.

The defendant/appellant also led evidence seeking to establish that the fish died not from anizidine but from aflatoxin poisoning.

After the plaintiff/respondent had closed her case and the defendant/appellant had given evidence and called two witnesses, the plaintiff/respondent filed a motion for leave to recall the plaintiff to testify, according to Counsel for the plaintiff/respondent, in answer to DW2’s evidence.

The motion was heard two days after it had been served on Counsel for the defendant and in his absence that same day the plaintiff/respondent was recalled to testify where upon he tendered two Exhibits J and J1. The suit was adjourned for cross-examination and Counsel for the defendant/appellant used two days in cross-examining the recalled plaintiff/respondent.

Thereafter the defendant/appellant applied by motion to the trial Court to expunge the evidence and the exhibits tendered by the plaintiff/respondent when he was recalled on the grounds that he was short served with the motion for recall, he was unavoidably absent from court and would have objected to the tendering of the Exhibit J and J1 because they do not relate to the plaintiff/respondent.

The trial ju