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An Accra High Court presided over by Her Ladyship Sedina Agbemeva has granted an application by DUBAWA to tender a video recording in which a key suspect is heard admitting to buying expired products from Fareast Mercantile and selling them to consumers.
Despite vehement opposition to the tendering of the evidence by Fareast Mercantile, the plaintiff in the case, the judge insisted that the evidence in question was “relevant” and “central” to the case, even though the defendants were negligent in failing to attach the video to their list of exhibits.
She, however, awarded a cost of ₵8,000.00 against the defendants, in what will be her first ruling in a case that has entered its fourth year with three different justices presiding at different points.
She will adopt the records as the new judge on the next adjourned date.
Background
One of Ghana’s biggest wholesale traders, Fareast Mercantile, filed a defamation suit in early 2022 against fact-checking and verification organisation DUBAWA over the serial publication of an investigative piece titled “Consuming Trash: Unravelling the multi-million dollar business in Ghana’s expired products.”
The fact-checking organisation had published six of its investigations, including pictures, videos, and email conversations from top management members of Fareast approving the sale of expired products, including McVitie’s biscuits.
The published stories also contained pictures and videos of Sarpong, the suspect who was arrested by a contingent of police officers at the Criminal Investigative Department and by officials of the Food and Drugs Authority, along with a truckload of expired Glade Mini bought from the plaintiff’s company, Fareast Mercantile.
DUBAWA had tracked the operations of Sarpong, Fareast Mercantile, and other dealers in expired products for months, leading to Sarpong’s arrest on March 31, 2022.
The Food and Drugs Authority, after reviewing the evidence provided by DUBAWA and participating in the investigation, found that Fareast Mercantile had breached 10 laws and guidelines under Ghana’s Public Health and Food and Drugs Authority’s guidelines, and fined them ₵50,000.00 for each of the 10 breaches.
Just when DUBAWA was about to air its publicised documentary about the consuming trash investigation, Fareast Mercentile proceeded to court to stop DUBAWA from airing the documentary and asked the court to issue an injunction against its publication until the substantive defamation case is settled.
The court granted Fareast Mercantile’s application, and the matter has since been in court, with the plaintiff closing its case and the defendant’s witness still under cross-examination.
Sarpong’s video
During cross-examination, the First Defendant, Nathan Gadugah, who is Editor for DUBAWA Ghana, had repeatedly cited the presence of the video in which Sarpong, the arrested suspect in the Consuming Thrash investigation, had confessed to selling expired products from the plaintiff’s company for the past eight years.
He therefore applied to tender the video evidence, which he thought was part of the maze of exhibits he had already submitted to the court.
Counsel for the plaintiff objected to the tendering of the evidence, accusing the defendant of attempting to introduce a new element in the trial.
He told the court the application was too late, given that the plaintiff’s witness had already closed its case, adding that any attempt to amend the defendant’s case would mean the entire case would have to start over.
Counsel for the Defendant, Samson Lardy Anyenini, argued that the application was neither an amendment nor the introduction of a new element. He argued that the narrative about the video’s content was part of the witness statement from the very outset.
He argued further that as long as the witness was still under cross-examination, he was entitled to make that application.
After hearing the strength of the arguments from both lawyers, Her Ladyship granted the application, insisting that it was not an amendment to the witness statement. She added that the application will not occasion a re-litigation of the matter, insisting the plaintiff still has the opportunity to cross-examine the defendant witness on the matter of the video’s content.
The case has been adjourned to March 3, 2026.
