SEATEC LTD. v. PENTON HOOK FARMS LTD. AND ANOTHER

JUDGMENT OF ABBAN J.A.

The appeal is from three different rulings of the High Court, Accra given on 18 December 1985. The appellants (hereinafter referred to as the plaintiffs) had sued the respondents (hereinafter referred to as the defendants and co-defendant, respectively) for specific performance of an oral contract and for an injunction. There was an alternative claim for damages.

The hearing of the case commenced on 4 December 1985. On 18 December 1985 when the second plaintiffs witness was giving his evidence-in-chief, this witness attempted to give evidence in respect of matters which were not pleaded by the plaintiffs in any of their pleadings. Objection was promptly taken by learned counsel for the defendants and the co-defendant. The learned trial judge upheld the objection and ruled as follows:

"By court: It is not enough simply to deny an averment. If the intention is to lead affirmative evidence the necessary facts must be pleaded. In this case they were not. The objection is upheld."

After this short ruling, learned counsel for the plaintiffs applied for an adjournment to enable her to amend the plaintiffs' reply to the co-defendant's amended statement of defence. Her reason was that the evidence of that second witness was not available at the time the reply was filed. The application was opposed and the learned trial judge held:

"This case is a rehearing of a suit began by my brother Ansah-Twum J. In my view the necessity for the amendment must have [p.608] been clear to the plaintiffs' legal advisers long ago. The application for adjournment is refused."

There was yet a third short ruling. While learned counsel for the plaintiffs was re-examining the second plaintiffs witness, she tried to ask a question the answer to which would have brought in the very evidence which had earlier on been successfully objected to when this very witness was giving his evidence-in-chief. Consequently, the learned trial judge disallowed the question in the manner as follows:

"By court: I agree with Messrs da Rocha and Bempah that the question does not arise from the cross-examination. The objection is upheld and the question disallowed."

These three short rulings given during the course of the proceedings of 18 December 1985 formed the subject matter of the present appeal.

Learned counsel for the plaintiffs argued the additional grounds of appeal only and they were argued together. Counsel submitted that under Order 28, r. 12 of the High Court (Civ