Supreme Court proceeding is still ongoing and lawyers arguing of whether or not Madam Jean will mount the witness box.
Tsatsu: My Lords, council for the first respondent is not seeking to withdraw her witness statement, the council is simply announcing at the end of the case for the petitioner, that first respondent is not going to call the witness who has submitted her witness statement.
Tsikata: My lords, what is been put before you now is not only an affront to justice but it is not by the rules of this court and we respectfully submit that it must not be counting us, by this court.
Tsikata: My lords, counsel sees to rely on Order 36 rule 4(3) and also CI 87 and eventually the evidence Act. I wish to go through those provisions, CI 47 Order 36 which comes as was rightly pointed out, it comes as part of the order which is headed (Order of speeches).
Rule 4 (3) provides quite simply; where the defendant let not to abuse evidence, the defendant may after the close of the plenty case, open the case of the defendant and acted on the evidence on behalf of the defendant must be given.
Tsikata: My Lords, it clear that in the provision, it goes beyond the order of speeches and it is the point I was making yesterday.
Judge: is it that proceedings attract.
Tsikata: yes my lords, we are dealing with order 36 rule 4(3) and am submitting that if you look at the dispositive part, the dispositive part of this rule 4(3) makes it clear that that rule has nothing to do with what is been proposed before you. That rule 4(3) is saying; where the defendant elects not to abuse evidence, then whether or not the defendant has in the course of cross-examination of the witness or the plenty of other things put in a document, the plenty may after the evidence on behalf of the plenty has been given close the plenty case and the defendant may then state the case of the defendant.
Tsikata: my lords, what this is dealing with in the contest of a civil child is obvious. What it is dealing with is that when we announce that we close the case the defendant may state the case.
Tsikata: my lords, this provision can not be the pretest for what counsel for the 1st respondent seeks to do. Mainly preventing cross-examination of the witness who has already submitted her witness statement before the court and that witness statement was submitted on the 22nd of January 2021 base of the orders of this court.
It's our respective submission that by filing it witness statement, the first respondent has crossed the bridge as far as opens the witness up for cross-examination is a concern. That bridge has been crossed, that ship has already sailed.
Judge: Mr Tsikata, I want you to read Order 38 rule 3E sub-rule 5 of CI 47 as amended by CI 87. You can read sub-rule 1 then 5
Tsikata: my lords, I read, if a party has served a witness statement and that party wishes to rely on the trail on the evidence of the witnesses who made the statement, that party shall call the witness to give all evidence unless the court orders otherwise for that party to put a statement in.
Tsikata: My lords, in an affidavit the application to our motion, for a stay of proceedings then she states in paragraph 5 as follows; the petitioner does not suffer any injuries at all to his values if the court dismisses this application, as the petitioner will have the opportunity to seek the answers they seek during cross-examination. These are a statement of the chairperson who is now invading not to be cross-examined.
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