Lawyer Tsatsu Tsikata exchanges words with Supreme Court Judges..see what is happening

of ghana is enough of a miscarriage of justice in accordance with the decision republic and tete and if non-compliance with a statute of ghana if that is not a miscarriage of justice respectfully i do not know what is a miscarriage of justice section 72 is very simple in its terms section 72 subject to the discretion of the court in a civil action or in a civil action a party or a person whose relationship to a party makes his interest substantially the same as the party may be called by any adverse party and examined as if on cross-examination at any time during the presentation of evidence by the party calling the witness yet this is what your lordships say in your ruling at page five your lordship say the question is how can the chairpers know the first respondent vindicator so when she is not on child before she has neither been personally sued nor arraigned before this court on any complaint or accusation for which she has to explain or account to anybody it is the institution the electoral commission she has that has been accused by the petition of not having performed israel not my loss i mean respectfully that is not even true we have respectfully brought the attention of this called her failure her singular failure to perform her roles we do not simply come before the school talking about the first respondent as a commissioner we specifically have raised issues the the heart of this case is about hair declaration but these are the questions and then your lordships go on what indeed baffles this court is the intimation by council for the petitioner that he intends to call the chairperson of first respondent as an adverse witness blacks law dictionary defined a hostile witness and so and so there's a whole quotation from black's law dictionary then it it carries on in effect to say that it is only when a witness is in the box that he can be declared a hostile witness my lord that is not the law of ghana the law of ghana is not what black's law dictionary is saying or what their logics based on black local dictionary are saying the law of ghana is what i read from section 72 that says a party may be called a party may be called it's not that when they are in the witness box then they can be turned into a hostile witness that is not what the statue of ghana said and my lord it is fundamental and egregious error when on the basis of black's law dictionary we have the courts of ghana going against the statutes of the land ground b of our application of our grounds ground b says that the ruling was in fundamental error in subjecting security provisions in the evidence act to the provisions of subsidiary legislation my loans there again nothing could be more basic nothing could be more basic than the fact that a statute is superior to subsidiary legislation the rules of court committee are not of a higher standing than the parliament of ghana and so when you have a judicial decision of the highest court of the land effectively subjecting parliament's law to the rules of court committee that is fundamental mrs chikata yes are you suggesting that sea ice do not go to parliament cis go to parliament they go to parliament in a different way from how statues go to parliament that is why the constitution makes a distinction between the exercise of powers by people such as the electoral commission who take the cis to parliament and if there's no objection it goes through that is a different process from a statute which is an act of parliament which overrides subsidiary legislation my lord there can't be any question and if if your lawships have an issue with that i'm afraid that that is just fundamental error there can't be any question that subsidiary legislation such as is contained in a constitutional instrument that brings into effect what the rules of commit the rules of court have done there can't be any question that those are subordinate to the evidence act there can't be any question about that so where that where where in your ruling your lord should say that you are not going to apply the evidence act because there is a rule of course and that rule isn't that the exercise of our discretion which prefaces the section that you read the lord it's that those are not the terms of the ruling the terms of the ruling that your lordships gave the terms of your ruling are very clear and unless the ruling is being rewritten the terms are very clear namely that the evidence section we wish to state that this is our page 10 of the ruling we wish to state emphatically that section 26 of the evidence act which is on conclusive presumption is not applicable in this case in view of order 38 rule 3e5 that is what the ruling says it doesn't say that in the exercise of my discretion this and that it doesn't say that it just said it is not applicable that is what it says nothing more nothing less mr chicata yes do you have a list of everything that the panel took into account before coming to that conclusion it is a ruling of the panel that we are here to question and the ruling in its terms is what is before us obviously i'm not in the minds of the panel and i'm not able to divine whatever went on in their minds except by reference to the terms of the ruling and my laws in any event order 38 rule 3e5 has nothing whatsoever to do with application of the evidence act section 26 order 30 8 3e 5. it reads as follows that is as amended by ci 87 if a party who has served a witness statement does not call the witness to give evidence at the trial or put the witness statement in as hearsay evidence any other party may put the witness statement in as here's the evidence that provision has nothing to do with the section 26 which the court was stating emphatically is not applicable because of this order the terms of this order are themselves very clear they do not have anything to do with what section 26 says what section 26 says is again not controversial what section 26 of of the evidence access is simply establishing a conclusive presumption a conclusive presumption in a circumstance where somebody has put before the court clear indications by way of affidavits that she will be available to be cross-examined that leads to what section 26 describes as a conclusive presumption based on the estoppel by own statement in section 26 except as otherwise provided by law including a rule of equity when a party has by his own statement act or mission intentionally and deliberately caused or permitted another person to believe a thing to be true and to act upon such belief the truth of that thing shall be conclusively presumed against that party or his successes and interest in any proceedings between that party or his successes in interest and such relying person or his successes in interest order 38 3 e 5 has no relevance in terms of that and our submission and our submission is simply that the court cannot sideline the operation of a statute by reference to subsidiary legislation which in any case has no relevance to the issue of section 26. my odds we indicate in ground c and in ground d so we've dealt with a b and c we indicate in ground d we took we take b and c together and i argue in relation to b and c that the fundamental errors consist of sidelining legislation in favor of subsidiary legislation and in relation to grant c sidelining it in favor of subsidiary legislation which is irrelevant to the issue in the statute anyway and so we moved to grand d and in ground d our submission is that here again the court made no reference whatsoever to order 38 rule 10 of ci47 now indeed section 58 of the courts act and section 58 of the court's act is a section which even gives power to your lordships to call a witness and that section has been properly applied so in other words apart from our ability to supine upon reopening of our case apart from that there is also the opportunity for this court itself to call a witness and the circumstances with the court does that those circumstances are exemplified in the case of wardia and bukhari what dianne booker in 1976 two ghana law reports 371 where the court of appeal the then apex court proceeded as follows and this is from the judgment of justice of appeal archer as he then was after judgment had been reserved in this court it was felt that this court should not be placed in the same situation in which the court below found itself it was therefore decided to ascertain the truth in this matter and so on and based on that the court had recourse to the courts act to ascertain the truth of the matter and then of course went on to point out that just that invitation of the witness to come and testify had brought up a very important piece of evidence which if it had been addressed in the code below would have spread that quote that torment of exploring whether or not the certified true copy of the plan from the lines department was a plan attended before jackson j and the court even goes on to say one can understand mr joe rhino's initial reservations but that's but as this additional evidence has enabled this court to ascertain the truth beyond all doubt we think by allowing this additional evidence to be admitted mr randolph conducted himself in the best traditions of the bab indeed those words in respect of the pro the best traditions of the book some nostalgia in the hearts of some of us and my lords we we are respectfully saying that the ruling that your lawsuits gave did not even advert to other 38 rule 10 which we had indicated was the basis on which we were seeking to reopen our case we didn't even advert to that and it was therefore paying curio we say also in ground e which i move on to now that the ruling was fearing curium article 1913 of the constitution and has occasioned a great miscarriage of justice and article 1913 is the provisions on the right to a fair trial in this court and we show in our submissions on that matter how this supreme court adverted its mind to a decision of the supreme court of the netherlands in which the supreme court of the netherlands was highlighting the importance of ascertaining the truth in matters that were before it and that was made to displace in the interest of the right to a fair trial it was made to displace even international relationships as being something that the court would have reference to that decision in the case of chatsuchika and the republic is a decision that we have cited in our submissions and i will not go further into that except to underline the fact that the supreme court of the netherlands whose reasoning was adopted by the supreme court of ghana also considered it appropriate that in the interest of ascertaining the truth it was of value to the court it had to call a witness once again i'm curious about something if it was so important to you to have a particular person testify for you why did you not present that as part of your pre-trial positions my lords we could not for the reason that i've given a few times in this court at the time that first respondents chairperson was the person who had filed a witness statement on behalf of well first of all had filed an affidavit of verification of the case of the first respondent subsequently filed a witness statement on behalf of the first respondent and my lords in essence you were hoping to rely on her coming to testify and found yourself without that and that is why now you are asking that she comes as a witness after everyone has closed your case my is that what you are saying my lord what we are asking is for our case for us to have leave to reopen our case that witness as we've indicated had sworn affidavits response to our application for interrogatories in response to application for stay in relation to that and in those she had given every indication that she would testify we have no reason to believe that she wasn't telling the truth we had no reason to believe that she didn't mean it when she saw those affidavits we had no reason to believe that anybody in the court would have assumed other than that she would testify in fact the day that it was announced that she would not testify on that day the your lordship themselves expressed you know some surprise and that was the reason why you are gentle the next day for arguments to be raised and so on so my lords method when you announced that you had closed your case what did you mean nothing more nothing less we had closed our case and when we announce that we are seeking to reopen our case i mean exactly that nothing more nothing less we are seeking leave to reopen our case in circumstances where a person who has deposed to affidavit saying she would be available for cross-examination and why your ladies should specifically have intimated that the questions that we're seeking to raise in interrogatories could be as offering cross-examination i'm sure your lady she has not forgotten that bridge and in that context your ladyship had said that aren't we crossing a bridge that we have not got to and we indicated that at the state of interrogatories we still found it appropriate to anticipate that but your leadership said the bridge will be that bridge is no longer there when you said that you had closed your case and you meant it nothing more nothing less what did you mean i i don't i really don't understand what more your leadership wants by way of an answer we meant that we have closed our case and we have closed our case and subsequently we sought leave to reopen our case your leadership cannot say that we are not able under the rules under your inherent jurisdiction to ask for your leave to reopen your case i i don't believe that that is a suggestion that your leadership is making i i don't think i have said any success but it just it's very difficult to comprehend i just wanted to understand what you meant when he said i've answered that question i think twice nothing more nothing less and i'm satisfied with the answer my lord we continue finally to the last ground that the ruling was in breach of article 296 and lord very simply put what we are saying is that that ruling is completely unreasonable in terms of in terms of what are often referred to as the wensbridge principles and your leadership your leadership her leadership justice georgina wood as she then was in the case of in the case of tdc and musa against a top bar for 2005-2006 supreme court law reports page one two one your ladyship's your ladyship at page 131 expressed the specific terms of what such unreasonableness amounted to and by saying that he that is a plaintiff in this case succeeded in showing that the case fell within the irrationality or unreasonable rule in that the decision arrived at by the tdc defies logic and common sense or accepted moral standards and that without meaning any disrespect to the tdc no sensible or reasonable person called upon to apply his or her mind to the decision to be taken could have come to that decision in short the decision to throw him out of the house and force a residential plot on him is irrational and unreasonable and we are saying respectfully that your lordships in the exercise of your discretionary powers unfortunately failed to advert your minds to relevant statutes introduced irrelevant considerations which prejudiced a fair exercise of discretion as required by article 296 of the constitution it is our submission that holding the first respondent and particularly chairperson accountable for the exercise of powers conferred by the constitution and statute justifying the circumstances of this case that that chairperson be called upon to testify using the time-tested subpoena procedure that we seek to invoke in this case my lords there is no question that the process of review is among the ways in which corrections are made by your lordships and as as aqua that you got your time is up may i just finish in a minute because i'm in the middle of a sentence is that allowed okay as you may finish as aqua indicated in the koglex case heeding the promptings of conscience as he put it heeding fidelity to the judicial oath he found it appropriate to reverse a decision of the ordinary bench may each of your lordships decide in accordance with your conscience and your judicial oath ultimately and even more profoundly it is for the chairperson of the first respondent to come forward to testify as she indicated on oath she would do i conclude with prophetic words that were spoken centuries ago for they saw the wind and they shall reap the whirlwind these are the words of the prophet jose to be found in hosea chapter 8 verse 7 he that has an ear let you hear order in god please hold on yes we are very mentally opposed to this application for review number three lord we are fired an affiliate in opposition as well as a statement of peace and we rely on it laws under article 33 1 of the constitution this quote may review 133 oh my gosh 1331 of the constitution this court may review any decision made or given by it on that grounds and subject to such conditions as may be prescribed by the rules of god also even the constitution recognizes the role that is played by the rules of court committee and indeed my lord the rules of god committee passed the supreme court rules 1996 ci 16. and lord the specific rule on review is rule 54 now this cut is the final cut of the land we concede that the court is not infallible but below your losses may change your mind in an application for review only when certain conditionalities have been met because those conditionalities have been set out in utter number two versus after number two to 2013 2014 one supreme court of ganga law reports six nine at pages five seven nine two five eighteen last i will not read those conditionalities there but they are there but it's only fine those conditionalities have been met that the review panel should seriously consider the merits of the application lost a submission that the conditionality set in rule 54 of ci 16 and attendata have not been met by the applicant in this application laws with the greatest respect the grounds are basically an academic treaties of alleged erroneous pronouncements made by your losses panel of seven indeed if we want to give some credit to the grounds my laws there are best additional grounds that have been filed without leave of your court in terms of an appeal but they do not form grounds for reserve for which my lords should grant this application my love may i refer your lordships to the ruling that has generated this review at pages 11 with your kind permission your lordships held accordingly in weighing the propriety of reopening proceedings to merit to permit new or additional evidence to be led or tended the court will typically consider the following broad questions one will the evidence if it has been presented during the trial have had any influence on the result two could the evidence have been obtained before or during trial by the excise of due diligence then your lawsuit concluded that in this application the petitioner has not given us an inkling of the new or french evidence he wants to bring to the fall neither has he disclosed how that evidence would advance the course of his petition now i believe that this is the crux this is the ruling that the court made and the absence of any attack or any submissions regarding this this application must fail now i say further i submit further that the grounds are very misconceived and have no bearing at all on your ratio that i've set out above even as submissions were made by the council for the applicant and even as i'm speaking still my laws the court is still not aware it still doesn't have the inkling of the evidence that the applicant wants to pretend to to lead for which the case should be reopened and lord this leads me to the word year case that was cited by council for the applicant because in that case the evidence was known the evidence was what was that there was an issue about exhibit a and by agreement of counsel the court then said that let an expert come and testify as to the authenticity of the documents so in that case the court allowed further evidence just because the evidence that the effort was being called was known this is not the situation in this case loss what has been done is that there has been arguments that bother on the nature of an appeal indeed if my lords look at paragraph three of the affidavit and support with your kind permission if i may read he says that at the hearing of this application i shall through my counsel sick leave of this honorable call to refer to all processes filed in this case up to the date of the hearing of this application clearly indicating to your lordships that he is going to have you an appeal and that is why your lordships yes you see so in emotions yes what you try to do is that instead of seeking leave when you are on your feet yeah to refer to it yes you can capture it in the affiliate so don't ask for this one no no no no melody if my lord could hear me on the point the point i see to make is that as a result of that the submissions that were for example dealt with on the 18th have been brought in for example section 26 of the evidence of what's the health trait that's the point i seek to make by referring to this submission my loss this court have said time without number that the review jurisdiction is not an opportunity given to a party to come and argue the case again as if the review panel is sitting in judgment on appeal over the ordinary panel and this is what millennial friend has sought to do laws may i crave your indulgence to refer to the standard bank offshore trust company limited this is national investment bank without a civil motion number j7 through 15 through 2017 lost dolce jsc delivering the ruling of the court admonished saw losers i paid 17 of the judgement that's from the ratio with your campaign from the ratio of the decided cases of this court on review it is immaterial if the applicant for a review considers the decision of the ordinary court to be wrong in law or has an emotional reaction to it as in this case the magnitude of the amounts involved or the shutting of the door to applicants because of the reflection of time in instituting a fresh action there are these are not factors that a review bench normally takes into consideration a lot because in that case too the court went on and held that the rules of the court forms an integral part of the laws of ghana and consequently they must be given an equal amount of respect in order to produce the sanctity in court proceedings mr maneuver yes are you referring to me as a soul loser i i argued that application for review before this court i was studying where you you were so few years ago yeah and i i lost that application well well i lost the the the review panel from that view of you the review planner from the view of you my lord and indeed of your client my lord milos incidentally my leonard friend was on the other side in dermatology and he got a review yes because the case of mechanical lloyd was limited versus naughty again is there on the point lost arguments have been made in this port regarding fair trials mello's i ask just a couple of questions of the petitioner this petition my loss has been conducted in a piecemeal fashion which is one of the things that ci9 deprecates first orders of the court are disobeyed file witnesses when no you yourself intimate that i am going to call five witnesses you call too and then you come back to the thought oh my lord i forgot one person permit me it is permitted you call that person yes [Music] oh my my loss this is the issue of faith my loss with the greatest repetitive issue of faith has been raised and i'm saying that he has been given fair trial in the way the case has been conducted my lord lord then we go from there to having called the third witness what is your pleasure oh my loss i close my case of your own volition lord it is my submission therefore that the petitioner was given every opportunity he was fairly ahead in this proceedings and what has been filed with view number three is an abuse of the course processes and the application ought to be dismissed eliminated mr maneuver you have not addressed us on the reference to josiah the gospel according to who's here my my love i i i i made that please my lord i my point i wish to make on that if you permit me is that god is a god of conscience and god does not youth use thought processes to elicit conscience no god is a cause of conscience and therefore you do not bring caught god into the courtroom to now claim that because of god application should be granted that's my response 13 minutes we are opposed to this application and my laws we rely upon affidavits in opposition filed on the 21st of february together with our statement of case my lord's our first submission is that this application woefully fails to satisfy the conditions for the grant of a review application as in our view it does not demonstrate any fundamental error committed by the court which has locationed the practitioner and miscarriage of justice and on that ground alone this application ultimate dismissed summarily my lords now on ground eight of petitioners application the petitioner refers to section 72 of the evidence act now my lord section 72 of the evidence act reads thus so it's 72 sub 1 subject to the discretion of the court in a civil action a party or person whose relationship to a party makes his interests substantially the same as a party will be called by any adverse party and examine as if on cross-examination at any time during the presentation of evidence during at any time a lot during the presentation of evidence by the party calling the witness my lord it is very significant that in this statement of case there is a deliberate omission of the controlling word evidence by the party of evidence that is and i i see no reason to believe that this was inadvertent because it is repeated twice and on both occasions this critical word is left out of evidence now what is the significance of adding of evidence reading section 721 including of evidence it means that a party can only exercise that right when he has not closed his case that's what it means and i want to repeat this section 72 which appears to fall ground the backbone of this application relates to a situation where a party has not closed its case now in this instant situation the party had closed his case so the court had no business referring to 1772-1 because it was irrelevant to the circumstances of the case and my lord it is my submission that knowing that they have closed their case they the petitioner disingeniously omitted of evidence and and with all due respect this is highly improper so my lords all the submissions around section 70 two that the court was playing qram of 1672 are totally unmaterious and irrelevant now my lords we proceed to deal with grounds b and c and my lords cancer for petitioner has argued that other 38 3e 5 cannot override section 26 of the evidence act because in his view the evidence act is a substantive legislation subsidiary 38 sorry it's subsidiary my loads that may it may well be the case that other 30 8 rule 3e 5 is a subsidiary legislation but the point here the critical point here is that the very principal act this is the evidence act section 26 by itself delimits the application of the main text by the words subject to subject to a rule of law or equity oh my lord there can be absolutely no doubt that under 38 is part of the loss of ghana so it is because of the specific provisions of 1626 that the court could then look at under 38 rule 3 e5 and rely upon it in making its ruling so my lord respectfully i think it is misconceived to suggest that in doing so the court has committed a fundamental error by allowing a subsidiary legislation to trump a substantive act of parliament now lord we would next address rule 1 b now grant c which relates to at four five nine section fifty eight my lords in our respectful view 1658 of at 459. is completely irrelevant to the matters before the court because the matters before this court which is the subject matter of the review application relate to the course decision not to reopen the case that is the decision of the court now section 58 reads in any proceedings and at any stage of the proceedings have caught either on its own motion or on the application of any party may summon any person to attend to give evidence or to produce any other documents my lord this provision presupposes that the party who is applying to someone another has not closed his case now this is obvious common sense it is very clear that this provision cannot relate to a situation where a party has closed his case and my lord these are the ways in which provisions of the law have been persistently cited out of context perhaps the middle east those who do not know the law so my lord it is a respectful submission that a reference to section 58 of the evidence act sorry of the courts act in this situation is totally misconceived and should never have been made by council a lot we wish also to make the point here for the last time that the chair of the first respondent has never made any undertaking that she would mound the witness box such that the petitioner could claim that he relied on it to his detriment all that the the chair of the first respondent was to re repeat what the law is that is all that he did the law and if your lawsuits go to other 22 rule the 22 it's now all that the the chair of the first respondent did was to repeat the position of the law which is that if you fail to obtain interrogatories in relation to a matter you may doing cross-examination elicit the same information that is all it was never an undertaking and the beggars believe that the petitioner and council are basing this statement of the law as an affidavit an admission or a representation that they relied upon to their detriment i i therefore wish to submit that a reference to that the position of the first respondent's chair on this matter can never constitute an estoppel because she has the right to refuse not to enter the witness box and the court has ruled definitively on this this application for review of the decision to reopen cannot be the back door through which that earlier ruling can be considered the court has ruled on it and that ruling binds all of us including council for the petitioner lords my lord the fair hearing argument my lord there are five minutes more very well my lord i thought i had a lot more minutes unless honestly i worship things i've made out my case so if you are five right out of the thirteen years five minutes more thank you round e relates to the allegation of breach of his right to fair hearing my lord the right to fair hearing is a right that all parties to a suit are entitled to so it the court has ruled that the respondents have the right to elect not to address evidence that is their right under the law therefore to seek to reopen your case so that you can compel the first respondent to his chair to enter the box it's a bridge of the first respondent's right to fair hearing also a lot which are considered view that no evidence or analysis has been made by council for petitioner that sustains their claim that their right to fair hearing has been breached indeed this court has been more than accommodating to the first respect for the petitioner they defied the court order with impunity not to file witness statements at the time they were ordered to they have even again defied the court order to file closing addresses and perhaps the court may once again accommodate their defense of the highest court of this land and then they turn around to talk about fair hearing in our respective view their case should have been struck out when they failed to file their witness statements as ordered by the court or it could have been struck and as we speak now since they have defied once more to file their closing address this case can be settled without their closing address and it will be fair trial and lord i'm saying it will be fair trial for that to happen possibly the court is once again going to accommodate them so they should be the last people to be mounting the high horse and talking about breach of their right etc my lord our our respectful submission is that this allegation of breach of their right to fair trial is an invitation of the to the court to go on a frolic which has absolutely nothing to do with the issues before this honorable court as to whether any person any of the two parties the petitioner or the second respondent obtained more than 50 percent of the valid vote cost in the 2020 elections presidential dimensions again the reference to 296 is in our view quite surprising [Music] yes my laws the court was right in the tdc case to hold that the acts complained of were unreasonable and irrational by my laws in the eastern application before your lawsuits the petitioner has failed once again very badly to demonstrate the facts which ground the allegations of unreasonableness or irrationality because those facts my lord are based on the grounds that he has dealt with elian abcd which we have demonstrated to be hollow and of no merit accordingly my lords we believe that and we submit that the application is divided of merit it is deserving of summary dismissal and given the fact that the arguments are only a rehash of earlier arguments and the introduction of irrelevant provisions for the consideration of this court we pray that in this exceptional situation this application is dismissed as an abuse or process will be dismissed as a abuse process and cause impunity of course your time is up malted make a couple of brief references my friend for the second respondent i heard him a little while ago say that we are acting in breach of the right of the chairperson of the first respondent as far as testifying is concerned as far as our indication that we are seeking to subpoena as it's concerned and below that's a matter of law respectfully it is not for the second respondent to bring up a witnesses claim to immunity whether on the basis of a right to fair hearing or self-incrimination or whatever it is not for the counsel for the second respondent to bring up a witnesses claim to me the witness must themselves that witness must his or herself i should say his or herself put forward whatever claims she seeks to make to immunity and the lord i believe that that was a reason for our reference to the the case uh concerning the ifc's immunity and so on and my lord's counsel for the second respondent also sought to suggest that i had somehow sought to mislead the court in terms of section 72 oh that's a very serious incident it's not actually an incineration it was very expressed very express statement on his spot and my lord i i can only say that counsel is obviously not clear about the nature of the application that is before you because the nature of the application that is before your lordship is to seek to reopen our case for the presentation of evidence that's the nature of the application that is before you so reading section 72 about the presentation of evidence and making it seem as if what we are doing is somehow foreclosed because we are close our case just shows that he hasn't understood why we're in court this morning because my laws were in court asking your lawsuits to reopen our case so that we can go according to certain processes that's what we're in called for so for him to be saying that we are trying to mislead you by not referring to during the presentation of our case and so on that is just a clear failure to appreciate the terms of section 72 and my lord he completely does not address the point that we make that section 72 was not even referred to by your lordships and that your losses ruling is fair in curium of that section are you done yes i'm done yes i have one question for you yes you your arguments you dwell mostly on section 26 section 26 of the evidence act can you show me any conflict between section 26 and order 38. is there any conflict between section 26 and order 28 38 sorry 38 rule 3 e5 is there any conflict my lord i was referring to the fact that the ruling implies that there's a conflict and that the in the ruling it says this section is not applicable because of order 383 and my laws will notice that i in fact went on to argue i argued that rule 38 3e5 in fact has nothing to do with section 26 your logic may recall that i argued that so i was specifically referring to what was in the ruling the terms of the ruling are clear so it was not a matter of the court referring and subsidiary legislation to a substantive that's what the court said i mean i read it the court said we didn't we wish to state emphatically that section 26 of the evidence act which is on conclusive presumption is not applicable in this case in view of order 38 but it doesn't mean that the court was preferring or rising raising 38 against above section 26 that is not what you meant well melody i leave that to your lordship but the language of the ruling is what i'm referring to but i leave it entirely to your lordship i i i the language is that it is not applicable in view of something else so that other thing is being made applicable whereas section 26 is not being made applicable i mean there's no running away from that if you say this is not applicable in view of this then it means that what is you say is applicable no look you're setting aside that is what not it doesn't make it superior to section yes but my laws how can your losses say that section 26 is not applicable in view of that that's our view yes but my lord as i and that was the other point i was going to make respectfully and and i'm glad that it has come up reference has been made to your ruling in respect of another application in which you did seek to consider section 26 and then we argued that no reference had been it was very imperium section 26 not ruling again no reference was made to section 26 at all in your ruling in that case your lawsuit said effectively yes we didn't we didn't um we didn't make reference to that section 26 but we haven't been shown that a miscarriage of justice has arisen because we didn't make reference to it and my respectful submission is that and i did say so that is itself fundamental error and your lawsuit should take the opportunity to correct that error because you didn't make reference to section 26 and you sought to justify that by saying that no miscarriage of justice has been shown to you and my submission was that when you don't apply a statute there is no reason for miscarriage of justice to be a further ground different form i'm sorry when you don't make a reference is different from not applying well if you don't even make a reference you can't apply i mean if you don't even make a reference to it you can't apply it i mean you make a reference to black's law dictionary black's law dictionary you make a reference to that black's law dictionary is not binding on this court is stating common law rules which have been changed by statute in this court but you make reference to black's law dictionary but you don't make reference to the statute that is binding on you but that is very curious that's wrong no no no that is your opinion well that is indeed my opinion and i think it's backed by a plethora of authorities of this court they're called to rise to consider israel all rise oh [Music] [Music] [Music] [Music] so the small size of motorcycles make riders vulnerable your head is the most delicate part of your body your head is not much harder than a watermelon in the event of a crash if your unprotected head hits the street you could suffer head injuries crash helmets are designed

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Length: 72min 18sec (4338 seconds)

Published: Mon Feb 22 2021