Martin Kpebu reveals why court dismissed Afenyo-Markin suit

Private legal practitioner Martin Kpebu believes the Accra High Court could have allowed Minority Leader Alexander Afenyo-Markin to correct the procedural errors that led to the dismissal of his Ghc15 million defamation suit against GoldBod CEO Sammy Gyamfi.

Kpebu explained that Ghana’s courts have, in some cases, allowed lawyers to amend defective documents instead of dismissing their clients’ cases, particularly where the missing details appear in accompanying court documents.

He said Supreme Court decisions have supported the principle that a case should not automatically fail because particulars missing from one document are provided in another.

“There are a plethora of Supreme Court decisions that say that if the writ doesn’t have those sufficient particulars but the accompanying document, which we call the statement of claim, does have those particulars, that should be enough to save the action,” Kpebu said.

According to him, a judge could direct a lawyer to amend the defective document by transferring the relevant information from the statement of claim to the writ.

Kpebu said the approach reflects the principle of substantive justice, under which courts should avoid relying excessively on technicalities to dismiss cases.

“We are now in the era of substantive justice, so we don’t use technical rules to throw out cases by heart,” he said on Joy FM.

However, he noted that allowing an amendment is a matter of judicial discretion. In Afenyo-Markin’s case, the judge decided not to exercise that discretion in the plaintiff’s favour.

Kpebu described the error as one that could potentially have been corrected, adding that similar mistakes had occurred in other defamation cases.

He also cautioned against assuming that the procedural failure was deliberate.

Although he acknowledged that lawyers can sometimes make deliberate errors, Kpebu stressed that there was no evidence to establish that this happened in Afenyo-Markin’s case.

“I’m not saying, and to be very, very clear, we have no evidence and no evidence has been adduced that in this case the error was deliberate,” he said.

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