RULING
This is an application to recall witnesses so far called filed by counsel for
Respondent on 11th November, 2022.
Applicant says that on the day on which hearing commenced and Petitioner’s
Attorney was to be cross examined, she was called impromptu into a case at a
higher court and sent a letter the court that she could not be present.
According to Applicant, counsel for Respondent was subsequently involved
in an accident which affected her left arm thereby rendering her unable to
represent her client’s interest in the course of the case. According to her,
during the legal vacation she had covid and was recently exposed to covid
making it impossible for her to file the instant application earlier. She says
that it is not intentional for her to fall sick to cause the matter to delay and
therefore in the interest of justice prays the court to grant the application for
her to cross examine the witnesses so far called.
Counsel for Petitioner filed an affidavit in opposition on 17th November, 2022.
He contends that the reason given by counsel for Respondent for her absence
during the trial are untenable as all lawyers are to maintain a diary and, in her
absence, counsel for Petitioner could have made arrangements for her brief to
be held rather than merely writing a letter without an Exhibit of the hearing
notice before the Higher Court. He says that at all times counsel was absent,
the Respondent was before the court and was afforded the opportunity to
cross examine the witness. He contends that Respondent has not shown any
exceptional circumstances necessitating the recall of the witness discharged
and therefore prays the application is dismissed with punitive costs. In
opposing the application, counsel for Petitioner relied on the case of Kpekata
v. Commissioner of Police [1963] 1 GLR 398.
I am inclined to provide a background to this case before proceeding to
determine the merits of the application. The case was scheduled for hearing
on 4th February, 2022 on the said date, there was a letter dated 3rd February, 2022 from counsel for Respondent praying for an adjournment with the
reason that counsel was ‚unavoidably unavailable‛. On this basis, the matter
was adjourned to 29th April, 2022 at 12:00pm, 13th May, 2022 at 9:00am, 20th
May, 2022 at 9am and 27th May, 2022 at 9:00am in a bid to start and complete
hearing of this matter. A further order was made for hearing notice and court
notes to be served on Respondent an
