On 8th June 2022, Counsel for the Defendant made an oral application to recall the 1st Plaintiff Witness for further cross examination after the said Witness had been discharged by the Court (upon announcement of completion of cross examination by the learned Counsel for the Defendant and upon Counsel for the Plaintiffs also announcing that there would be no re-examination of the Witness). Counsel for the Plaintiff therefore vehemently opposed the oral application to recall the Witness for further cross examination when the said oral application was made - thereby necessitating the delivery of this Ruling.
In seeking leave to recall the 1st Plaintiff Witness for further cross examination, Counsel for the Defendant submitted that his oral application was made pursuant to Section 79 of the Evidence Act, 1975 (NRCD 323) which provides:
“79. Recall of witness
After a witness has been excused from giving further testimony in the action, the witness cannot be recalled without the leave of the Court.”
Counsel for the Defendant contended that –
“It is necessary to recall the Witness for a very brief further cross examination on the back of the Supplementary Witness Statement recently adopted by the Court. The said Supplementary Witness Statement of Defendant’s Witness Edward Osei Badu has attached to it Exhibit 5 a judgment dated 22nd April, 2015 in suit no. FAL/465/12 by Plaintiff’s Family against parties including Defendant’s Witness herein and this was a discovery necessary to assist the Court in this trial particularly on the facts of recovery of one of the properties in dispute.”
Counsel for the Plaintiffs/Respondents, in opposing the application, submitted that no relevant grounds had been established for the recall of the Witness. Counsel cited ANKRAH v ANKRAH [1966] GLR 60 and relied on S. KWAMI TETTEH’s book on CIVIL PROCEDURE at page 841, to contend that, for this Court to exercise its discretion in favour of the Applicant, the Applicant must demonstrate –
i. The nature of the evidence to be introduced
ii. Its bearing on the case and
iii. Provide an explanation for the delay in introducing the evidence.
The right of a party to recall witnesses is a dictate of natural justice (See: ALHASSAN v DAKORA [1989-90] 1 GLR 197) and the Court may grant an application in any of the following circumstances:
· where the party had omitted inadvertently to ask the witness an essential question or tender a vital document through the witness;
· where the
