Masai developers and Another Vrs Multimedia broadcasting and Another--- ( H1/266/05 ) [2006] GHACA 1 (16 January 2006);
IN THE SUPERIOR COURT OF JUDICATURE
THE COURT OF APPEAL
ACCRA
Coram - MRS. ADINYIRA, J.A (Presiding)
MR. DOTSE, J.A
MRS. HEWARD-MILLS, J.
CIVIL APPEAL
No H1/266/05
16TH JANUARY, 2006
MASAI DEVELOPERS & ORS PLAINTIFS/RESPONDENT
VERSUS
MULTIMEDIA BROADCASTING & ORS DEFENDANT/APPELANT
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HEWARD-MILLS J.
This is an appeal by the Defendant/Appellants (hereinafter called the defendants) against 6 rulings made by the trial judge during the cross examination of the second plaintiff who together with others has instituted and action for defamation against the defendant/appellants
The defamatory words were set out in schedule A, schedule B and in paragraph 19 of the statement of claim. The statements were said to have been made during broadcast on various dates and also published on a website belonging to the first defendant. The statements were produced in court on tapes together with transcripts provided by the plaintiffs.
This appeal, being interlocutory, it is obligatory on the court to deal with the substantive issues yet at the same time avoid any pronouncements that might unnecessarily prejudice the remaining trial, to this end this judgment will merely seek to highlight only the areas of the proceedings which are essential to the final verdict herein.
Preceding the first ruling, defence council had sought to establish the status of an individual who the witness had admitted giving a car to. To this, counsel for the plaintiff raised an objection because according to him he did not know where the question was going to, if the cross examination was towards establishing that the second plaintiff had “some reputation” then the cross examination had to be stopped. After heated arguments in the courtroom. There were further objections because it was alleged that defence counsel was seeking to cross examine on a meaning attributed to a statement made which meaning had been denied in the statement of defence.
To these objections the court ruled, that the defence had denied a meaning attributed to the defamatory statement in schedule B by the plaintiffs and yet was seeking to cross examine on that meaning. The judge considered this as contradictory and warned that “any attempt to use this line of cross examination will not be allowed”
The second objection arose after the following question was put to the witness, “Now the case of my client I should say is that these two vehicles were given as gifts by your company upon your instruction to these two ladies for the purposes of promoting your business”
The essence of the objection was that that piece of evidence was already in to test the credibility of the witness, “it should therefore not be smuggled in as a basis for making an analogy”
The court ruled that the cross examination had been in relation to one lady, it is not proper to add the issue of receipt of another car by another person being either the former president or the first lady. Counsel for the defendant was therefore ordered and I quote “to conclude that line of cross examination”
The question posed leading to the 3rd objection and ruling was
“What will you say to the suggestion of the Defendants that the ….waste project was helped along by gifts that you gave to certain persons?”
Counsel for plaintiff objected, insisting that nowhere either in schedule B or in defendants response to schedule B was the showering of gifts stated as the modus operandi of the 2nd defendant, and nothing had been pleaded about gifts, he also objected because there was an imputation of crime which had not been pleaded.
When the nature of the objections became numerous and varied, the judge then proceeded to give her interpretation of what she considered to be exactly what she thought the objection was. She restated the objection as meaning, that whereas defence counsel implies that the witness uses gifts in order to get favours, what is stated in the schedule is that he uses his business connections as opposed to gifts, for his business. It was suggested that if defence wanted to continue with that line of questioning then they should amend their pleadings.
The court further ruled that using friends is what had been alleged in the defence. Cross examination relating to the giving of gifts to procure favours according to the judge was so serious that it was not to be allowed without an amendment of defence pleadings.
When the question was reput that cars had been given as gifts by the Plaintiff for the purpose of getting his friends in high places to promote his project again there was an objection that the allegation was so serious because it was imputing that the gifts had been used to obtain favours from public officers therefore it had to be pleaded. The judge upheld the objection and the reasoning of plaintiff’s counsel. Again she refused to allow the question unless there was an amendment.
Even when the witness responded “yes” to a suggestion by defence counsel that one of the vehicles had been imported by his company and given as a gift, the inferential question that it was done to further plaintiffs project was objected to and upheld by the judge because according to the judge the giving of gifts to procure favours was different from the using of political friends. Once again the order was that the former averment had to be pleaded or deleted.
The fourth ruling upheld plaintiff’s counsel objection that defence counsel should during cross examination point to particular parts of the statement of claim and direct and limit questions specifically to those particular parts.
When a question was put to the witness in which defence counsel summarised what he considered to be the general complaint of the plaintiff, counsel for the witness jumped in even before the witness could answer, restating that only the actual words contained in the statement of claim, could be used by way of cross examination. When the judge intervened it was to order defence counsel to rephrase his question in order to and I quote “satisfy” plaintiff’s counsel. The ruling also directed that the phrase used in the statement of claim containing the word “only” should be put to the witness as a question.
This was the straw that finally broke the back of defence counsel leading to this appeal.
The above summarises what must have been a very frustrating period of cross examination. The defence was denied the opportunity to carry out the essential purpose of cross examination namely:
- establishing facts which are directly in issue or relevant to issues raised during the evidence-in –chief
- asking questions to weaken the opponents case by exposing the lack of credibility of evidence given by one’s opponents
The law is that in respect of the second objective questions directed at the witness need not be on direct issues arising out of evidence-in-chief or relevant to those issues. The essence of the questions posed is whether it will assist the court in assessing whether the witness is a credible witness and whether his testimony in court has any probative value.
To this end the witness may be questioned about any subject which is connected to the main issues but can also be extended to include any matter which is relevant to establish the case of the questioner.
See the case of MAYOR & CORPORATION OF BERWICK ON TWEED V MURRAY 19 L.J. CH 281 .286
Where as in this jurisdiction the role of judge and jury, is combined, the maintenance of a proper balance of power between the parties becomes very important. The judge must be careful not to restrict the fundamental right of the examiner to venture into areas permitted under the rules yet at the same time control must be exerted on the extent of cross examination so as not to render the proceedings farcical and unnecessarily prolonged.
The intervention of plaintiff’s counsel was long and often uncontrolled. This resulted in the substance of the objection being lost and or containing so much variations that the ruling on the objection eventually when rendered, bore no relationship to the original objection. The inability of the judge to control the length and the frequency also inured to the advantage of the plaintiff as it prevented crucial evidence which may assist the defence from being established.
The objections of counsel for plaintiff to portions of the cross examination because they imputed criminality, were based on pure hypothesis and mere conjecture. This led to various rulings which seriously restricted the defence in establishing facts relevant and directly in issue. The insistence by plaintiff’s counsel supported by the judge that evidence relating to these matters should be pleaded amounted to a fundamental error of law which forbids the pleading of evidence.
Much more serious were the frequent attempts by the judge to rephrase objections and questions posed by both solicitors. The dangers of a judge jumping into the arena of controversy are too well established to be re-echoed here.
There is overwhelming evidence that the defence was seriously hampered during the cross examination of the 2nd plaintiff. The appeal should be allowed and the case be remitted to the lower court.
I. HEWARD-MILLS [MRS.]
JUSTICE OF THE HIGH COURT
I agree. S.O.A. ADINYIRA [MRS.]
JUSTICE OF APPEAL
I also agree. J. DOTSE
JUSTICE OF APPEAL
