At exactly 9:30 am yesterday, hearing commenced after the announcement of parties and Counsel, the Court called upon Counsel for the 1st Respondent to address it on its earlier application not to adduce evidence in respect of its case.
Counsel for the firs respondent submitted that, having heard the evidence of the Petitioner, they were convinced that the matters in issue cold be sufficiently determined.
Counsel cited the Case of Armah v Hydrafoam which held that the Court has no duty to call on a party to testify and by so doing, the Court would be descending into the arena of conflict.
Counsel submitted that in any case, the risk of not testifying was one the 1st Respondent bore and the Petitioner ought to be happy since the their testimony remains the only one on record.
Counsel for the 2nd Respondent associated himself with the submission of Counsel for the 1st Respondent and added that, the 2nd Respondent was not making a submission of no case hence all cases from that would be cited in that regard are inapplicable.
Counsel proceeded to set out 2nd Respondent’s case and quoted the case Joseph Akonu-Baffoe v Lawrence Buaku to drive home the point that a defendant had no burden to establish in a case and the failure of the Defendant to adduce evidence only means the evidence of the Plaintiff would be the only one to be assessed by the Court.
The Petitioner therefore, ought to even be happy at the case of the Respondents.
Counsel added further that in any case, the Petitioner had closed his case and C.I. 87 allowed the 2nd Respondent to take the course they were taking.
Counsel for the Petitioner submitted that the Respondents, particularly, the 1st Respondent had served a witness statement and by that had committed to testifying.
He further submitted that the witness statement had a statement of truth.
The Bench through Justice Marful-Sau and Mariama Owusu queried Counsel several times, on whether the filing of a witness statement amounted to evidence or it becomes evidence when a person is sworn since a witness statement is not sworn evidence.
The Court further asked that since petitioner indicated he would call five witnesses but called two, can he be compelled to call the rest.
Counsel insisted on his position as before and submitted that in the 1st Respondent’s affidavit in opposition to the motion for interrogatories, she had sought to demonstrate she would answer the questions in the interrogatories during cross examination hence she had elected to adduce evidence.
Counsel also submitted that in the interest of justice, the 1st Respondent should be made to testify and that subsidiary legislation cannot set aside the sacred public duty and need to account.
Counsel finally submitted that if the Respondents were not relying on their witness statements, that there are other options opened to them which they would look to explore.
Counsel cited the case of Somalia Biel Biel v Dramani but the court drew Counsel’s attention to the fact that that case was tried on affidavit evidence.
Counsel for 2nd Respondent in his final reply pointed out that the submissions of Counsel for the Petitioner was circular and that by a careful reading of the rules in C.I. 87, a distinction is made between service of witness statement and relying on it hence the argument of Counsel that by serving witness statement, the Respondents had elected to testify could not hold.
Counsel concluded by citing the case of The Society of Lloyds’s v Sir William Otho Jaffray BT to the effect that where a party files a witness statement and does not rely on it, the court had no power to compel the party to testify.
The Court adjourned to Thursday, 11th February, 2021 for its ruling.