
RULING 
This is an application for trial de novo by learned counsel for the defendants which is opposed by learned counsel for the plaintiff. Both learned counsel have filed detailed written submissions in support of their positions.  Learned counsel for the plaintiff stated that this action commenced in 2002. The plaintiff called three witnesses and closed its case on 6th February, 2008. He said the defendants opened their case on 22nd April 2008. He added that the case was started de novo on 18th January, 2012, at the instance of the defendants counsel before Justice Godwin Gabor. The plaintiff called two witnesses and closed its case on 30th April, 2014. Then the defendants witness testified and was being cross-examined when the judge went on retirement. The suit was then transferred to this present judge, Justice Georgina Mensah-Datsa. Learned counsel for the plaintiff submitted that justice will not be seen to be done if the court should refuse to adopt the proceedings but uphold the defendants demand for a trial de novo for a second time. He stated that any decision not to adopt the proceedings will work to the detriment of the plaintiff considering the advanced age and its attendant frailties of plaintiff’s star witness, Seth Kofi Dzeble. He added that it will be unfair and unjust to compel their witness to go through the torture of a trial de novo for the third time.  
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In the Supreme Court unreported case of Adomako Anane v. Nana Owusu Agyemang (Substituted by Nana Banahene) & 7 Ors., Civil Appeal No. J4/42/2013, dated 26th February, 2014, the court held that  “The argument against de novo hearing is so cogent and compelling that sound case management policy reasoning alone constitute a sufficient basis for charting a new legal path in our jurisprudence. We would, therefore, state the law as follows. In civil proceedings, the ultimate question of whether or not evidence already adduced before a previous judge be adopted should not rest on the parties’ consent. It should exclusively be at the discretion of the new judge who takes over the partly heard case. Since this involves the exercise of a discretionary jurisdiction, we will identify some of the factors that must be taken into account to arrive at this decision. The judge’s broad and primary concern must be to ensure that the adoption of the proceedings would not result in miscarriage of justice. Specific factors that would influence the decision would include the length of time that the case has been on the court’s calendar, the stage at which a trial has reached, the number of witnesses already called, the disputed issues, the nature of the evidence – mostly narrative or documentary, weighty objections by either party, if any, to its reliability, the availability of the witnesses who has already testified, the quality and reliability of the record or transcript.” The last date on which this case was heard was 12th May, 2015, before Justice Godwin Gabor proceeded on retirement. This action was started in 2002. From the record of proceedings, the current hearing in the case started in 2012 before Justice Godwin Gabor. The plaintiff has closed his case and the defendants have opened theirs. The defendants’ witness is being cross-examined. I have observed the length of time it took for the hearing to proceed this far. I have also observed the number of adjournments it took to reach the volume of the present record of proceedings. I have carefully studied the record of proceedings and have noted that, although there are a few typographical errors, they can be corrected and they do not go to the substance of the case. I am, therefore, of the opinion that the record of proceeding is reliable. Based on the Supreme Court’s decision stated supra, I hereby refuse the application to hear the case de novo. This is because it is in the interest of case management and justice that the proceedings be adopted for the hearing to continue, considering that this case started in 2002 and the witnesses are elderly people. Adopting the proceedings for hearing to continue will also prevent the perception that one party 
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or both parties will have the chance to improve their case and remedy any weakness that may have been exposed by cross-examination. This is more so when to grant the application to start the case de novo will mean that hearing is to commence for the third time in a case which was instituted in 2002. Looking at the history of this case, and how long it takes to complete the evidence of a witness, when will this case end, if the application to hear it de novo is granted?   The application to hear the case de novo is refused or denied.  There is no order as to costs.  
(SGD.)  GEORGINA MENSAH-DATSA (JUSTICE OF THE HIGH COURT)    
COUNSEL: 1. Dick Anyadi for the Plaintiff. 2. Benson Nutsukpui for the Defendants.   