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Land
- Civil procedure - Granted in
good faith - Declaration of
title – Lease- Unlawful
possession - Recovery of
possession - Damages for
trespass – Fair hearing - Leave
of court to adduce fresh
evidence – Whether or not land
in dispute is not state-vested
land - Whether or not
compensation was paid for the
acquisition to the predecessor
of the Applicant - Whether or
not the signatures as appears on
the receipts presented as those
of Nana Obranu Gura II were
authentic - Rule 76 of the
Supreme Court Rules, 1996 (C.I
16) (As amended by C.I 24, 1999)
-
Rule 26 (1) and (2) of the Court
of Appeal Rules, 1997, C.I 19
HEADNOTES
The brief facts of this case are
that the 1st
Respondent is the grantee of the
2nd Respondent. The
Applicant issued a writ of
summons against the Respondents
for, among other reliefs, a
declaration of title to
land, an order for
recovery
of possession and special
damages
for trespass and
unlawful
possession. The 2nd
Respondent in its Defence
admitted that it had
granted a
lease to the 1st
Respondent
in good
faith in the belief that the
land, the subject matter of the
dispute, formed a part of the
larger area vested in the
Government of Ghana by reason of
Stool Lands (Efutu and Gomoa
Ajumako Instrument, 1961 (E.1
206). The 2nd
Respondent further stated that
upon critical examination of
available records, it had come
to the realization that the land
in dispute is not state-vested
land as same falls outside the
subject-matter of the area
covered by E.1 206.
Consequently, the Applicant
obtained a judgment against the
1st and 2nd
Respondents on these admissions
of the 2nd
Respondent. The 1st
Respondent being dissatisfied
with the judgment of the High
Court appealed to the Court of
Appeal. The Appeal was dismissed
on the 11th of June,
2019. The 1st
Respondent, still dissatisfied
with the affirmation of the
judgment of the High Court by
the Court of Appeal and the
dismissal of his Appeal filed a
further Appeal to this Court.
The 1st Respondent
sought and obtained the leave of
this Court on the 30th
July, 2020 to
adduce
fresh evidence in the Appeal
to demonstrate that the land,
the subject matter of dispute,
was acquired by the Government
of Ghana by Executive Instrument
86 of 7th June, 1969
under the State Lands Act, 1962,
(Act 125) and further, that
Government, as far back as 6th
October 1969 paid compensation
for the acquisition to the
predecessor of the Applicant,
one Nana Obranu Gura II.
Following the grant of leave to
the 1st Respondent by
this Court and the indication of
the documentary evidence that
the 1st Respondent
proposes to adduce to prove the
payment of compensation to the
Applicant’s predecessor, the
Applicant, in reaction, took out
the present application seeking
leave of this Court to, in turn,
lead fresh evidence to
contradict the proposed fresh
evidence of the 1st
Respondent by demonstrating
whether the signatures as
appears on the receipts
presented as those of Nana
Obranu Gura II were authentic
HELD
MAJORITY OPINION
In
recent practice, parties may put
in discovery, such material or
documentary evidence that they
intend or propose to put in
evidence at the trial. In the
peculiar circumstances of this
case, the Applicant will be
confronted with the fresh or new
documentary evidence in proof of
the allegation that his
predecessor has negotiated and
received compensation for the
acquisition of the land in
dispute. How would the
Applicant, in turn, be able to
put in, his proposed documentary
evidence to impugn the
authenticity of the 1st
Respondent’s new documentary
evidence to avoid a reversal of
the factual findings in his
favour in the judgment appealed,
if leave to adduce his version
of the new evidence has already
been refused by this Court.
In the circumstances,
having examined the Application
together with the affidavits and
all processes filed thereto, as
well as the submissions by
counsel, we are of the
considered opinion that this is
a proper instance where we ought
to exercise our discretion in
favour of the Applicant in the
interest of justice. For the
reasons aforesaid, the
application for leave to adduce
fresh evidence is granted as
prayed
DISSENTING OPINION
Justice demands parity of
treatment and the Respondent in
this appeal certainly will have
the opportunity to challenge any
evidence which may not be
authentic. It would, however,
be tantamount to reopening of
the whole case on a second
appeal to allow a party who on
the strength of the evidence
adduced at the trial court and
affirmed at the Court of Appeal
to call fresh evidence as if he
was unable to prove his case. An
appeal is an application to an
appellate court to ascertain
whether the judgment of the
lower court was in error. This
explains why the Court of Appeal
hear appeals by way or
re-hearing and subject the whole
evidence led to review to
ascertain whether justice was
done by the lower court in
appropriate cases. The power
conferred on appellate courts in
adduction of fresh evidence is
limited as appellate courts are
bound by the record of
proceedings from the lower
court. If care is not taken,
appellate courts will be opening
the floodgates for such
applications by Respondents to
appeals pending for
determination.
It is for the above reasons
that I thought it prudent to
dissent in this ruling.
STATUTES REFERRED TO IN JUDGMENT
Supreme Court Rules, 1996 (C.I
16) (As amended by C.I 24,
1999).
Court of Appeal Rules, 1997, C.I
19
Evidence Act, 1975 (NRCD 323),
CASES REFERRED TO IN JUDGMENT
Merchant Bank Ltd. v. Ghana
Prime Wood Ltd. [1989-99] 2 GLR
551
Rev. Rocher De-Graft Sefa & Anor
v. Bank of Ghana & Anor [Civil
Motion No. J8/75/2014]
Samuel Gyamfi v. Bank of Ghana &
Anor [Civil Motion No.
J8/76/2014] [Judgment delivered
on 29th July 2014]
Poku v Poku [2007-2008] SCGLR
996
Boasiako V Panin Ii [J6/1/2012),
(Judgment delivered on 22
January 2013,)
Republic Vs. Thompson And Others
(J8/92/2011) (15 February 2012)
R V Gbadamosi [1940] 6 Waca 83,
Rex V Oton [1946-1949] 12 Waca
212-214,
Nash V Rochford Rural District
Council [1917] 1 KB 384
Ladd v Marshall [1954] 3 All ER
745
Foli & Others Vs. Agya Atta &
Others (Consolidated) [1976]1
GLR 194, CA
Karikari Vs. Wiafe [1982-83] GLR
864 CA
Parker Vs. Parker [1954]1 AII
E.R 22
R. Vs. Medical Appeal Tribunal
(North Midland Region) Ex-parte
Hubble [1959]3 AII E.B 40-47
Azametsi v The Republic [1974]
IGLR 228 CA
Sasu v Amua-Sackyi [1987-88]
IGLR 294 SC
Morkor v Kuma [1999-2000] IGLR
69 SC
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
KULENDI, JSC:-
DISSENTING OPINION
YEBOAH, CJ:-
COUNSEL
AKOTO AMPAW FOR THE
APPLICANT/RESPONDENT/RESPONDENT/APPLICANT
ACE ANKOMAH FOR THE 1ST
RESPONDENT/APPELLANTAPPELLANT/RESPONDENT.
_____________________________________________________________________________________
DECISION OF THE COURT BY
MAJOTITY
KULENDI, JSC:-
This Court on 30th
July, 2020, by a unanimous
decision, granted the 1st
Respondent leave to adduce fresh
evidence on Appeal.
The brief facts of this case are
that the 1st
Respondent is the grantee of the
2nd Respondent. The
Applicant issued a writ of
summons against the Respondents
for, among other reliefs, a
declaration of title to land, an
order for recovery of possession
and special damages for trespass
and unlawful possession. The 2nd
Respondent in its Defence
admitted that it had granted a
lease to the 1st
Respondent in good faith in the
belief that the land, the
subject matter of the dispute,
formed a part of the larger area
vested in the Government of
Ghana by reason of Stool Lands (Efutu
and Gomoa Ajumako Instrument,
1961 (E.1 206). The 2nd
Respondent further stated that
upon critical examination of
available records, it had come
to the realization that the land
in dispute is not state-vested
land as same falls outside the
subject-matter of the area
covered by E.1 206.
Consequently, the Applicant
obtained a judgment against the
1st and 2nd
Respondents on these admissions
of the 2nd
Respondent. The 1st
Respondent being dissatisfied
with the judgment of the High
Court appealed to the Court of
Appeal. The Appeal was dismissed
on the 11th of June,
2019. The 1st
Respondent, still dissatisfied
with the affirmation of the
judgment of the High Court by
the Court of Appeal and the
dismissal of his Appeal filed a
further Appeal to this Court.
The 1st Respondent
sought and obtained the leave of
this Court on the 30th
July, 2020 to adduce fresh
evidence in the Appeal to
demonstrate that the land, the
subject matter of dispute, was
acquired by the Government of
Ghana by Executive Instrument 86
of 7th June, 1969
under the State Lands Act, 1962,
(Act 125) and further, that
Government, as far back as 6th
October 1969 paid compensation
for the acquisition to the
predecessor of the Applicant,
one Nana Obranu Gura II.
Following the grant of leave to
the 1st Respondent by
this Court and the indication of
the documentary evidence that
the 1st Respondent
proposes to adduce to prove the
payment of compensation to the
Applicant’s predecessor, the
Applicant, in reaction, took out
the present application seeking
leave of this Court to, in turn,
lead fresh evidence to
contradict the proposed fresh
evidence of the 1st
Respondent by demonstrating
whether the signatures as
appears on the receipts
presented as those of Nana
Obranu Gura II were authentic.
This is a novel application
because, in our rich line of
judicial decisions on the
abduction of fresh evidence on
appeal, it is difficult to find
precedents where a successful
party to a judgment on appeal
seeks leave to adduce fresh
evidence to support the judgment
in his favour. There is
therefore a paucity of judicial
precedent or none at all wherein
a successful party to a judgment
on appeal, applies to adduce
fresh evidence. This however
does not preclude this Court
from considering such an
application on its merits. In
the case of
MERCHANT BANK LTD. Vrs. GHANA
PRIME WOOD LTD. [1989-99] 2 GLR
551 at page 568
Adade JSC cautioned our Courts
on over reliance on judicial
precedents as follows:
“precedents are merely to help
us think about cases before us.
We are in danger of substituting
our thinking to be done for us
and this is because the
impression is being created that
every case must have a precedent
by which it should be decided.
So rather than do some original
thinking about the case, we
first try to look for a deciding
precedent and then proceed to
push our case into the straight
jacket of the precedent.”
It is obvious from the
circumstances of this case the
Applicant herein, who is the
successful party to the judgment
on appeal, is apprehensive that
unless he is given an
opportunity to proffer further
evidence to rebut the fresh
evidence proposed to be
introduced by his opponent, the
sufficient, cogent and credible
evidence on which his favourable
judgement stands may be
dislodged, the judgment impaired
and reversed to his loss. It is
this prejudice which will be
occasioned the Applicant by the
fresh evidence the 1st
Respondent has been given leave
to adduce that has provoked the
present application.
The application is made pursuant
to Rule
76 of the Supreme Court Rules,
1996 (C.I 16) (As amended by C.I
24, 1999).
The said Rule 76 of C.I 16
provides as follows:-
Rule 76—New Evidence.
(1) A party to an appeal before
the Court shall not be entitled
to adduce new evidence in
support of his original action
unless the Court, in the
interest of justice, allows or
requires new evidence relevant
to the issue before the Court to
be adduced.
(2) No such evidence shall be
allowed unless the Court is
satisfied that with due
diligence or enquiry the
evidence could not have been and
was not available to the party
at the hearing of the original
action to which it relates.
(3) Any such evidence may be by
oral examination in Court, by an
affidavit or by deposition taken
before an examiner as the Court
may direct.”
From the language of Sub-Rule
(1) of Rule 76 as set out above,
the person clothed with the
capacity to invoke our
jurisdiction for abduction of
fresh evidence on appeal is
“a party” to the appeal. The
logical inference from the plain
and ordinary language of the
rule and meaning of the words
“a party” is that in the
contemplation of the Rules of
Court Committee, any party,
whether an Appellant or
Respondent in an appeal, is
eligible and/or clothed with the
capacity to mount an application
for leave to adduce fresh
evidence on appeal. The only
caveat being that such an
application may succeed only if
it is in “the interest of
justice”. This means that
applications for the abduction
of fresh evidence on appeal are
not the sole preserve of an
Appellant in the appeal.
Consequently, in appropriate
circumstances, a Respondent may
have a justifiable need to apply
and be granted leave to adduce
fresh evidence on appeal.
However, to our minds, an
Applicant who is Respondent in
the substantive appeal should
not ordinarily be allowed to
adduce fresh evidence unless the
application discloses that it is
in the interest of justice that
such a Respondent be given an
opportunity to adduce fresh
evidence in rebuttal of new
evidence that has been proffered
and/or is about to be proffered
by the Appellant. Therefore, the
fresh evidence that a Respondent
may seek leave to adduce must
have been made necessary,
relevant and compelling by the
fresh evidence that the
Appellant who is seeking to
overturn the Respondent’s
favourable judgment has and/or
is about to adduce.
My learned and esteemed brother
Bennin JSC in the consolidated
case of:
Rev. Rocher De-Graft Sefa &
Anor v. Bank of Ghana & Anor
[Civil Motion No. J8/75/2014];
Samuel Gyamfi v. Bank of Ghana &
Anor [Civil Motion No.
J8/76/2014] [Judgment delivered
on 29th July 2014]
gave consideration to the scope
of Rule 76 of C.I 16 and
enunciated the following
criteria in order to succeed on
an application to adduce fresh
evidence before this Court:
1.
The evidence was not available
to the applicant at the trial;
2.
The evidence could not have been
obtained by the applicant upon
reasonable diligence for use at
the trial;
3.
Had the evidence been adduced at
the trial it would have had an
important influence on the
result of the case, although it
need not be decisive;
4.
Such as is presumably to be
believed, in other words
evidence of a sort which is
inherently not improbable.
This Court in the case of
Poku v Poku [2007-2008] SCGLR
996
at page 998,
where it considered the
requirements that an applicant
must meet in order to be granted
leave to adduce fresh evidence
under
Rule 26 (1) and (2) of the Court
of Appeal Rules, 1997, C.I 19,
reasoned as follows:
“in
an application to lead fresh or
new evidence before the Court of
Appeal, the first criterion,
which an applicant ought to
establish, was whether the
evidence sought to be adduced,
was neither in the possession of
the applicant nor obtainable by
the exercise of reasonable
diligence or human ingenuity
before the impugned decision was
given by the lower court. It
was only when that first hurdle
had been surmounted, that the
court should proceed to
determine the other pertinent
question of whether or not the
intended evidence would have a
positive effect on the outcome.
If the first criterion was not
met, no useful purpose would be
served by examining the other
factors”
Significantly, the essential
requirements in the criteria set
out by this Court in the Rev.
DeGraff Sefa and Poku v. Poku
cases (supra) are essentially
the same.
We are however of the view that
in addition to the said
criteria, if the Applicant, in
an application to adduce fresh
evidence on Appeal is the
Respondent to the Appeal as in
the instant case, then such an
Applicant must demonstrate, as a
pre-condition, that the
Respondent to the application,
has been granted leave to adduce
fresh evidence and that unless
the Applicant is also given an
opportunity to adduce fresh
evidence in rebuttal, the new
evidence of the Respondent is
likely to occasion new findings
by this Court which may result
in an overturning of a the
judgement appealed.
Generally, in applications of
this kind, the Applicant,
whether an Appellant or a
Respondent must sufficiently
state or demonstrate the nature
of the fresh or new evidence
sought to be adduced at the
hearing of the appeal. Also the
Applicant must give reasons why
the evidence was not produced at
the trial, namely that it was
not necessary, relevant or
compelling and that it was
not obtainable despite best
efforts and/or reasonable
diligence. See:
Boasiako V Panin Ii [J6/1/2012),
(Judgment delivered on 22
January 2013,), His Lordship,
Date-Baah Jsc;
Republic Vs. Thompson And Others
(J8/92/2011) (15 February 2012)
Dotse JSC,
R V Gbadamosi [1940] 6 Waca 83,
Rex V Oton [1946-1949] 12 Waca
212-214,
Nash V Rochford Rural District
Council [1917] 1 Kb 384 At
393
Accordingly, we are of the view
that in order to motivate the
exercise of our discretion in
favour of an Applicant who is
the Respondent to the
substantive appeal, such an
Applicant must satisfy the
following conditions:
1.
That the Appellant in the
substantive appeal has been
permitted to adduce fresh
evidence;
2.
That the fresh evidence the
Appellant has adduced or
proposes to adduce, unless
rebutted, is likely to occasion
a reversal of the findings of
the Trial Court.
3.
That the reversal of the
findings of the Trial Court that
will be occasioned by the fresh
evidence abducted or about to be
introduced by Applicant’s
adversary is likely to result in
a reversal of the judgement of
the Trial Court in favour of
Applicant’s opponent;
4.
That the new evidence the
Applicant proposes to adduce has
been made necessary, relevant
and compellable by the fresh
evidence that the Respondent has
adduced or is about to adduce.
5.
That prior to the grant of leave
to the Respondent to adduce
fresh evidence, the Applicant
could not reasonably have
foreseen the necessity and
relevance of the fresh evidence
sought to be adduced;
6.
That it is in the interest of
justice for such new evidence to
be allowed.
In contrast, if the party who
applies for leave to adduce
fresh evidence under Rule 76 of
C.I 16, is the Appellant in the
substantive appeal, the
applicable criteria would be as
set out in the Rev. Rocher
De-Graft Sefa and Poku vrs. Poku
cases (supra). These criteria
which are less onerous follows
that which were enunciated by
Denning LJ in
Ladd v
Marshall [1954] 3 All ER 745
at page 748 as
follows:
“In order to justify the
reception of fresh evidence or a
new trial, three conditions must
be fulfilled: First, it must be
shown that the evidence could
not have been obtained with
reasonable diligence for use at
the trial: Second, the evidence
must be such that, if given, it
would probably have an important
influence on the result of the
case, although it needs not be
decisive: Third, the evidence
must be such as is presumably to
be believed, or in other words,
it must be apparently credible,
though it need not be
incontrovertible.”
It must therefore be noted that
the criteria that an Applicant
who is the Respondent to an
appeal must satisfy in order to
succeed on an application for
the leave of this Court to
adduce fresh evidence is of a
higher threshold than that
imposed on an Applicant who is
simply the Appellant in the
substantive appeal.
There is the need to ensure that
Applicants who seek leave to
adduce fresh evidence on appeal
comply with the above principles
of judicial guidance laid by the
rules of court and case law so
that litigation is not unduly
prolonged, with needless
attempts to lead fresh evidence
on appeal.
Application
The ultimate question that
arises from the substantive
appeal is whether or not the
land, the subject matter of
dispute between the parties, was
compulsorily acquired by the
State and compensation paid. As
has been stated earlier, this
Court has already granted leave
to the 1st Respondent
to lead fresh evidence to prove
that the Land in dispute is
State Land, same having been
acquired by the Government of
Ghana in 1969 and compensation
duly paid to the predecessor of
the Applicant. These two legs of
evidence which the 1st
Respondent herein has been
granted leave to introduce will
become a material part of the
evidence on record that this
Court will consider in
determining the pending appeal.
The Applicant, in this
application, contends that he
has contrasting evidence which
shows that his predecessor never
received any compensation and
that the signatures on the
receipts which 1st
Respondent has been granted
leave to tender as fresh
evidence are not authentic
signatures of his predecessor.
The evidence which the Applicant
seeks leave to adduce is to
demonstrate to this Court that
his predecessor, received no
compensation for the acquisition
of the land and is not the
signatory to those receipts
which the 1st
Respondent has been given leave
to introduce. In the affidavit
in support, the Applicant
deposed in paragraphs 8, 11 and
12 as follows:
“8.That the burden of the new
evidence that the Respondent
seeks to lead is to demonstrate
that the Government of Ghana by
Executive Instrument 86 of 7th
June, 1969, acquired the
property in dispute under the
State Lands Act, 1962 (Act 125)
and further that the Government,
as far back as 6th
October, 1969, had paid my
predecessor, Nana Obranu Gura
II, the sum of Eight Hundred and
Fifty New Cedis (NC 850.00)
being compensation for the
acquired land and yet, further
that my predecessor in title
had, through several receipts
and letters that he had appended
his signature to, negotiated the
compensation to be paid him and
acknowledged being paid the
Compensation for the acquisition
of the disputed property for a
microwave transmission station
at Gomoa Afransi.
11. That I was taken by surprise
by the new evidence that
Respondent has been given leave
to adduce, as this evidence was
available and could have been
procured by Respondent, had it
exercised due diligence,
especially given that it failed
to Appeal against the decision
of the trial court refusing its
application to subpoena the
lands commission to produce
relevant records.
12. that my lawyer advised that
it was necessary to determine
whether indeed government had
paid any money to Nana Obranu
Gura II, my predecessor and
whether the signatures
represented as those of Nana
Obranu Gura II in Exhibit OOAK 2
series were authentic.
18. That until Respondent was
given leave to adduce new
evidence, there was no need for
me to lead such evidence on the
matter.”
The depositions above, sets out
the grounds on which the
Applicant urges that it is in
the interest of justice that he
be given leave to adduce new
evidence in rebuttal of the
fresh evidence that the 1st
Respondent has been given leave
to adduce. This inference is
borne by paragraphs 20 and 21 of
the Affidavit in support wherein
the Applicant stated as follows:
“2o. That I am adviced by
Counsel and verily believe same
to be true that the new evidence
I seek to adduce is material
and, if accepted, is highly
likely to affect the outcome of
the instant case and that, in
the interest of doing
substantial justice, it is just,
and proper for this Honourable
Court to grant leave for me to
adduce fresh evidence as set our
above especially after this
Honourable Court has granted
Respondent leave to adduce fresh
evidence.
21. That I am further advised
and verily believe same to be
true that a refusal of the
instant application will
constitute a violation of my
right to a fair hearing, this
Honouable Court having already
granted the Respondent leave to
adduce the very evidence which I
seek to challenge by the instant
application.”
Our duty is to hold the balance
evenly between the parties. It
will therefore be unfair and
likely to occasion the Applicant
a miscarriage of justice if
after granting the 1st
Respondent leave to adduce fresh
evidence, we turn around to deny
the Applicant an equal
opportunity to introduce new
evidence in direct rebuttal of
the fresh evidence the 1st
Respondent will introduce. The
ends of justice and our duty to
be fair will be better served by
affording both parties an equal
opportunity to adduce fresh
evidence to ensure a fair
hearing of the appeal.
As the Applicant has stated in
his affidavit in support of this
application, the evidence he
seeks to adduce is a direct
reaction to the fresh evidence
that the 1st
Respondent has been granted
leave to adduce. Consequently,
we are satisfied that the new
evidence the Applicant proposes
to introduce is made necessary,
relevant and compelling by the
fresh evidence that we have
already given the 1st
Respondent leave to adduce. In
our view the Applicant has
satisfied all the conditions set
out above to warrant a grant of
this application.
Until this Court granted the 1st
Respondent leave to adduce the
receipts of payment of
compensation to the predecessor
of the Applicant as fresh
evidence, the forensic evidence
on signatures of the Applicant’s
predecessor did not became
necessary and relevant, let
alone compelling. Therefore, the
question of whether or not the
Applicant could not have
produced evidence of these
signatures if he had exercised
reasonable diligence does not
arise in these circumstances and
that is why this test is not
applicable to an Applicant who
is the Respondent to the
substantive appeal. This is
because, in the face of
admissions by the 2nd
Respondent of their supposed
error in leasing the land to the
1st Respondent,
Applicant was not enjoined to
lead evidence on admitted facts.
Therefore, no matter the level
of diligence by the Applicant,
the nature of the evidence that
the Applicant now seeks to
adduce in rebuttal of the
evidence of the 1st
Respondent on payment, receipts
and signatures, even if they
were available to the Applicant
at the time of the trial in the
High Court, would most likely
have been deemed irrelevant and
for that matter, inadmissible.
It is commendable that, even
though the 1st
Respondent has formally filed an
affidavit in opposition to this
application, its Counsel has
indicated in open court that he
will not oppose the application.
He conceded that given that the
1st Respondent has
benefitted from a similar
application, it was only fair
that the Applicant should also
be allowed to introduce his
proposed new evidence in
rebuttal.
After all, under our
Civil
procedure Rules, the
Evidence
Act, 1975 (NRCD 323), and
the settled practice of our
Courts, the Applicant will be
entitled under section 62 of Act
323 to cross-examine the 1st
Respondent on the fresh evidence
that it proposes to lead at the
hearing of the Appeal. During
such cross-examination, the
Applicant will, among others be
entitled to suggest and/or put
oral and documentary evidence to
the 1st Respondent
and/or its witnesses. Therefore,
the implication of a denial of
leave to the Applicant to
equally adduce fresh evidence,
which meets the test or
threshold we have set out above,
will mean that this Court would
have precluded, foreclosed
and/or practically restricted
the Applicant’s rights during
cross-examination. This is
because a refusal of leave to
the Applicant to adduce fresh
evidence will disentitle the
Applicant to suggest and/or put
any such fresh or new evidence
to the 1st Respondent
and/or its witnesses even under
cross-examination. In
consequence, the Applicant’s
right to cross-examine the 1st
Respondent and/or it’s witnesses
on the new evidence will be
effectively limited. Needless to
say, a refusal to grant the
instant application,
notwithstanding the
circumstances of this case, will
undermine a
fair
hearing of the appeal.
Further,
in recent practice, parties may
put in discovery, such material
or documentary evidence that
they intend or propose to put in
evidence at the trial. In the
peculiar circumstances of this
case, the Applicant will be
confronted with the fresh or new
documentary evidence in proof of
the allegation that his
predecessor has negotiated and
received compensation for the
acquisition of the land in
dispute. How would the
Applicant, in turn, be able to
put in, his proposed documentary
evidence to impugn the
authenticity of the 1st
Respondent’s new documentary
evidence to avoid a reversal of
the factual findings in his
favour in the judgment appealed,
if leave to adduce his version
of the new evidence has already
been refused by this Court.
In the circumstances, having
examined the Application
together with the affidavits and
all processes filed thereto, as
well as the submissions by
counsel, we are of the
considered opinion that this is
a proper instance where we ought
to exercise our discretion in
favour of the Applicant in the
interest of justice. For the
reasons aforesaid, the
application for leave to adduce
fresh evidence is granted as
prayed.
E. YONNY KULENDI
(JUSTICE OF THE SUPREME COURT)
M. OWUSU (MS.)
(JUSTICE OF THE SUPREME COURT)
C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)
CONCURRING OPINION
AMADU, JSC:-
(1)
I have had the opportunity of
reading the opinion delivered by
my esteemed learned brother and
I agree entirely with the
reasoning and conclusion
reached. I however wish to make
a contribution to the lead
opinion by way of concurrence
with a view to espousing on the
jurisprudence relative to the
issue arising out of the
application whether or not the
Respondent in the substantive
appeal is entitled to a
favourable exercise of our
judicial discretion for leave to
adduce fresh evidence on appeal.
(2)
My Lords, the instant
application as my brother has
rightly pointed out, though
conceivable, is quite novel in
our procedural jurisprudence. It
presents an extraordinary
situation different from all
available decided authorities.
The peculiar circumstances of
the instant application are
strikingly different from the
ordinary situation as borne out
by the contents of the
Applicant’s affidavit in
support.
(3)
The plethora of case law under
rule 76 of C.I 16 on adduction
of new evidence tend to relate
to Appellants and not
Respondents to the appeal. The
major requirement is that the
new evidence sought to be
adduced should not have been
available upon due diligence to
produce same at the trial of the
original action. The main policy
behind the rule is to ensure
that as a matter of public
policy, litigation ought to be
brought to an end.
(4)
In
Foli & Others Vs. Agya Atta &
Others (Consolidated)
[1976]1 GLR 194, CA
it was held that: “the
court would not admit fresh
evidence in a case where the
evidence was available and known
to the party seeking to adduce
it to be so, at the time of the
trial. However, the court was
unable to say that no
circumstances would ever occur
which would persuade it to think
that a departure from the rule
in a particular case should be
permitted in the oversiding
interest of justice”.
Then in
Karikari Vs. Wiafe [1982-83]
GLR 864 CA, the court
set out the conditions for grant
of leave to adduce new or fresh
evidence having regard to the
general rule that each party in
an action before the court must
produce all the relevant and
material evidence in support of
his cause of action. Thus, the
court would ordinarily not
permit a party to produce his
evidence piecemeal in a series
of actions.
(5)
However there are exceptions to
the general rule one of which is
where material evidence that
might have altered the conduct
of the trial was discovered
after the trial and could not
have been made available upon
due diligence to procure same by
the party seeking to introduce
the new evidence. In any such
case, the court may grant leave
to adduce fresh evidence
provided there was satisfactory
proof that there was no such
lack of diligence.
(6)
In the case of Poku Vs. Poku
[2007-2008] SCGLR 996, this
court upon a through review of
both local and foreign case law
and in determining whether or
not the Court of Appeal was
right in granting leave for
fresh evidence to be adduced
held inter alia that, the
critical issue for resolution
was whether the evidence being
sought to be adduced was in the
possession of the party seeking
leave during the original trial,
or before judgment, or it is
such as could have been procured
by reasonable diligence. In
answering the question, this
court held that: “in
applications of this kind, as
indeed, is the position in all
applications requiring the
exercise of a court’s
discretionary jurisdiction,
proof of an applicant’s
bonafides, or conversely, mala
fides, is crucial to the success
or failure of the application”.
Upon an exhaustive
evaluation of the peculiar
facts, this court set aside the
judgment of the Court of Appeal
which allowed the adduction of
fresh evidence only because
fraud had been alleged in the
appellate proceedings.
(7)
In the instant application
before us, as aforesaid, the
Applicant’s step was provoked by
an earlier order for leave
granted to the 1st
Respondent to adduce fresh
evidence in this court on a
particular issue in prosecuting
their appeal.
(8)
As has been earlier observed,
the rules of this Court do not
prohibit any such step by a
Respondent in an appeal except
that for the discretion to be
exercised, it must be in the
overriding interest of justice.
Infact, there being no
precedence for a Respondent to
invoke the jurisdiction for such
leave does not preclude us from
charting the course. As the
highest court of the land, the
proper question to ask is what
would be our attitude to novel
situations such as what the
instant application appears to
have provoked in the absence of
judicial precedent? What
should this court do in a
situation where the application
before it, is such that has
never been dealt with
previously? Definitely in my
view, in any situation which
calls for a judicial
determination without the
advantage of a previous
precedent, the court ought to be
guided by the overriding
interest of justice in the
matter and should not fold its
hands merely because what is
before it has never been done
before. Indeed more than six
decades ago, the celebrated
common law jurist Lord Denning
said in the case of
Parker
Vs. Parker [1954]1 AII E.R 22.
“What is the argument of the
other side? Only that no case
has been found in which it has
been done before. That argument
does not appeal to me in the
least. If we never do anything
which has not been done before,
we shall never get anywhere.
The law will stand sill whilst
the rest of the world goes on
and this will be bad for both”.
(9)
In R.
Vs. Medical Appeal Tribunal
(North Midland Region) Ex-parte
Hubble [1959]3 AII E.B 40-47,
Morris C.J provided a definition
of the expression fresh evidence
as: “it seems to me, must
have the quality of newness, or
the feature of having become
newly available and obtainable”.
The fresh or new
evidence therefore must be that
which was not available
previously which is designed to
be a reply to the evidence given
by the other side on points
material to the determination of
the issues or any of them. It
should not therefore be evidence
which ought to have been led to
establish the facts pleaded and
meet the issues raised in the
pleadings at the trial of the
original action.
(10)
From the peculiar facts of the
instant application therefore,
given that the need to adduce
fresh evidence by the Applicant
was provoked by the earlier
leave granted the Respondent to
introduce fresh evidence in the
prosecution of its appeal, we
think the interest of justice
demands that the Applicant be
given the opportunity to
introduce such new evidence that
in his view will efficiently
rebut the new matters and issues
he is confronted with by reason
of the leave granted to the
Respondent. The absence of any
precedent is no reason why the
application ought to be refused.
As the highest and final court
of the land, it is not every
legal issue that we can resolve
on the basis of judicial
precedent. Judicial decisions
are made to resolve particular
disputes. A decision derives
it’s quality of justice,
soundness and profoundness from
the peculiar surrounding
circumstance of the dispute it
is presumed to adjudicate within
the context of the relevant
applicable law. In my
considered view, the rules and
accepted principles of law
established by this court cannot
be considered in the abstract
without proper attention to and
consideration given to the facts
of each case. The facts as in
the instant application are
peculiarly material and
fundamental and must assume a
crucial role in the process of
our decision.
(11)
That is why this application
ought to succeed and I too will
grant same.
I. O. TANKO AMADU
(JUSTICE
OF THE SUPREME COURT)
DISSENTING OPINION
YEBOAH, CJ:-
This court differently
constituted granted leave to
allow the
Defendant/Appellant/Appellant/Respondent
(herein after called the
Respondent) to adduce fresh
evidence on appeal before this
court as a prelude to the
hearing of a substantive appeal
from the Court of Appeal, Cape
Coast.
I have considered carefully and
given serious thought to the
majority opinion of my sister
and brothers on this panel after
receiving a draft ruling, but I
cannot, with all due respect to
them, agree with the decision to
allow fresh evidence from the
Plaintiff/Respondent/Respondent/Applicant
(who shall hereinafter be
referred to as the Applicant) in
this ruling.
It is a fact that the Applicant
herein was the one who initiated
the suit culminating in this
appeal at the High court, Swedru.
The claim was for compensation;
and my brother has adequately
addressed same in the majority
opinion. The Applicant was
adjudged to recover compensation
from the Respondent to a
substantial amount of money.
The Respondent lodged an appeal
at the Court of Appeal, Cape
Coast, but the judgment at the
Swedru High Court was affirmed
in its’ entirety. Undaunted, the
Respondent lodged a second
appeal to this court; claiming
that it had discovered that the
Government of Ghana had acquired
the land in dispute and paid
compensation for same. The
Appellant in this appeal, who is
the Respondent in this
application had applied to this
court to be allowed to adduce
fresh evidence, which
application was granted.
The instant application before
us is by the Plaintiff (the
applicant) herein who had in his
favour a judgment of the High
Court, Swedru and the Court of
Appeal at Cape Coast, affirming
the High Court judgment in its
entirety.
The application adduction of
fresh evidence on appeal is
statutorily backed by rule 76 of
CI 16, Supreme Court Rules,
1996, which states thus:
“76(1) A Party to an
appeal before the Court shall
not be entitled to adduce new
evidence in support of his
original action unless the
court, in the interest of
justice, allows or requires new
evidence relevant to the issue
before the court to be adduced.
(2) No
evidence shall be allowed unless
the court is satisfied that
with due diligence or enquiry
the evidence could not have been
and was available to the party
at the hearing of the
original action to which it
relates.
(3) Any
such evidence may be by oral
examination in court, by an
affidavit or by deposition taken
before an examiner as the High
Court may direct.”
The above rule is similar to
Rule 26 of the Court of Appeal
Rules, 1997 (CI 19) and decided
cases like Poku v
Poku [2007-08]
SCGLR996,
Azametsi v
The Republic [1974] IGLR
228 CA and Sasu v
Amua-Sackyi
[1987-88] IGLR 294 SC have
discussed same in detail. With
the coming into force of the CI
16 in 1996, this court has on
rare occasions been invited, to
discuss rule 76. My industry
could only unearth the case of
Morkor v Kuma
[1999-2000] IGLR 69 SC. At
page 72, Akuffo, JSC (as she
then was) said:
“Thus, it is
quite clear that the
presentation of new evidence on
appeal is not as of right but by
the leave of the court and at
the court’s discretion. Since
the court’s discretion in such
matters is a creature of
statute, its exercise is
governed by the conditions and
parameters set by the statute
and it is, therefore, a fettered
one. Consequently, a person
seeking to invoke the exercise
of this discretion must
necessarily surmount the hurdles
imposed by rule 76 of CI 16 and,
failing that, this court does
not have the power to grant the
leave prayed for. The first
hurdle is that it must be shown
that the reception of the new
evidence will be in the interest
of justice and such evidence is
related to the issue before the
court. However, rule 76(2) of
CI 16 also makes it patently
clear that, even where the
interest of justice may be
served by the reception of such
new evidence, yet, it may not be
received “unless the court is
satisfied that with due
diligence or enquiry the
evidence could not have been and
was not available to the party
at the hearing of the original
action to which it relates.”
As we see it, rule 76 of CI 16
is intended to function as a
mechanism of ensuring that due
justice is done to a diligent
party to an appeal who comes
across evidence which was not
and could not have been known or
available to her at the trial
and which, had it been known or
available to her during the
trial, would have had a material
effect on her case. However,
the rule is also intended to
ensure that the litigation comes
to an end at some point in time,
by preventing parties from
dishing out piecemeal evidence
as after thoughts, as and when
they deem it advantageous. We
believe that it is for these
reasons that the
restriction in 76(2) of CI 16
was created.”
The Supreme Court, as the last
appellate court, sparingly
grants leave for adduction of
fresh evidence on second
appeal. I think we must do so
when the evidence raises serious
issues of facts which the
appellant has discovered. In
the opinion of the majority, my
respected brother has referred
to the leading cases on this
subject and it would be sheer
pedantry for me to repeat same.
I agree with his analysis of the
law which is not in doubt at
all. My concern is that this
court in allowing the Respondent
in this appeal, who has
repeatedly been adjudged
victorious based on the evidence
he provided is seeking to adduce
fresh evidence on second
appeal. I think the rule under
which the application was
brought is intended purposely to
assist an appellant who was
unable to unearth very crucial
evidence which could have been
worthy of believe and probably
decisive of the matter.
To allow a Respondent to a
second appeal to adduce fresh
evidence on the basis that the
prospective exhibits to be
relied on by the Appellant
seeking to adduce fresh evidence
are not authentic should not be
a ground for the application.
Adduction of fresh evidence
entails evidence-in-chief and
cross-examination of the party
by the other counsel in the
appeal. Counsel for the other
side will certainly be allowed
to also rebut the evidence as
the normal trial court does.
Justice
demands parity of treatment and
the Respondent in this appeal
certainly will have the
opportunity to challenge any
evidence which may not be
authentic. It would, however,
be tantamount to reopening of
the whole case on a second
appeal to allow a party who on
the strength of the evidence
adduced at the trial court and
affirmed at the Court of Appeal
to call fresh evidence as if he
was unable to prove his case.
An appeal is an application to
an appellate court to ascertain
whether the judgment of the
lower court was in error. This
explains why the Court of Appeal
hear appeals by way or
re-hearing and subject the whole
evidence led to review to
ascertain whether justice was
done by the lower court in
appropriate cases. The power
conferred on appellate courts in
adduction of fresh evidence is
limited as appellate courts are
bound by the record of
proceedings from the lower
court. If care is not taken,
appellate courts will be opening
the floodgates for such
applications by Respondents to
appeals pending for
determination.
It is for the above reasons that
I thought it prudent to dissent
in this ruling.
ANIN
YEBOAH
(CHIEF JUSTICE)
COUNSEL
AKOTO AMPAW FOR THE
APPLICANT/RESPONDENT/RESPONDENT/
APPLICANT
ACE ANKOMAH FOR THE 1ST
RESPONDENT/APPELLANTAPPELLANT/
RESPONDENT. |
