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Banking -
Judgment - Default judgment -
Setting aside - Application for
leave to adduce fresh evidence).
– Whether or not an appellate
court could entertain an
application to adduce fresh
evidence on appeal in respect of
a default judgment wherein no
evidence was adduced at the
trial court. - Supreme Court
Rules, C.I.16, - Rule 76(1)(2)
- Article 183 - 1992
Constitution - High Court Rules,
2004, C.I. 47 - Order 10 rule 8
HEADNOTES
The
respondents herein who were the
plaintiffs in the court below
sued the applicant herein and
three others including Onward
Investment Limited, hereafter
called Onward, as defendants
before the High Court. From the
facts available in this
application, the applicant and
the other defendants defaulted
in entering appearance to the
writ so the plaintiffs moved the
court and obtained default
judgment against them. The
applicant herein applied to the
court below to set aside the
default judgment but the
application was denied by the
court. An appeal against the
refusal to set aside the default
judgment was made to the Court
of Appeal which also rejected
it. A further appeal has been
made to this court. And whilst
that appeal is pending before
this court the present
application for leave to adduce
fresh evidence on appeal has
been put in by the applicant
HELD
The applicant
was the 1st defendant
and Onward was the 4th
defendant in the High Court
suit. Hence the applicant was
alleged to have allowed Onward
to operate illegally as a bank
to defraud the plaintiffs. I am
satisfied that if this evidence
had been available to the trial
court it could have had an
important influence on its
decision. It might also have a
significant influence on the
appeal before this court. For
the foregoing reasons I allow
the application and give leave
to the applicant to adduce fresh
evidence on appeal. They are
directed to do so by way of
affidavit within ten days from
today. Since the appeal is
pending before this court the
respondents will have the
opportunity to answer it when
they file their statement of
case. The application is granted
accordingly. There will be no
order as to costs.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Supreme Court
Rules, C.I.16
High Court
Rules, 2004, C.I. 47
Bank of Ghana
Act, 2002, (Act 612)
Banking Act,
2004 (Act 673)
CASES
REFERRED TO IN JUDGMENT
Poku v. Poku
(2007-2008) SCGLR 996
Ladd v.
Marshall (1954) 1 W.L.R. 149 CA
Foli and
Others v. Agya-Atta and Others
(Consolidated) (1976) 1 G.L.R.
194 CA.
Mirehouse v.
Rennel (1833) 8 Bing. 490; 6
E.R. 1015 H.L.
Latimer v.
Cumbria CC (1994) P.I.Q.R. P395,
CA.
Wood v.
Gamlings (1993) P.I.Q.R. P76 CA
BOOKS
REFERRED TO IN JUDGMENT
Halsbury’s
Laws of England, 5th
edn. vol. 12, para. 1676
Phipson on
Evidence 15th
edition, at para. 12-02, page
286
DELIVERING
THE LEADING JUDGMENT
BENIN JSC:-
COUNSEL
SAMUEL CODJOE
ESQ. WITH HIM THEOPHILUS
KPORVIE FOR THE DEFENDANT/
APPELLANT/APPELLANT/ APPLICANT.
HANSEN
K. KODUAH ESQ. FOR THE
PLAINTIFFS/RESPONDENTS/
RESPONDENTS.
ญญญญญญญญญญญญญญญญญญญญญญญญญญ___________________________________________________________________
RULING
___________________________________________________________________
BENIN JSC:-
Ordinarily,
an application for leave to
adduce fresh evidence on appeal,
as in the instant, should pose
no problem to the court to
determine, for the criteria
governing it have clearly been
settled in a long line of cases
decided at the highest level and
by legislation, namely Supreme
Court Rules, C.I.16, rule
76(1)(2). These criteria are:
i.
The
evidence was not available to
the applicant at the trial;
ii.
The
evidence could not have been
obtained by the applicant upon
reasonable diligence for use at
the trial;
iii.
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;
iv.
Such
as is presumably to be believed,
in other words evidence of a
sort which is inherently not
improbable.
The authors
of Halsbury’s Laws of England, 5th
edn. vol. 12, para. 1676 add a
timely reminder that ‘these
criteria need to be applied as
guidelines rather than rules and
subject to the overriding
objective of dealing with cases
justly. In addition the
consequences of admitting the
fresh evidence has to be taken
into account’.
Rule 76(1)
and (2) of C.I. 16 provide as
follows:
(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.
Previous
decisions on this subject all of
which relied on the criteria set
out above include Poku v.
Poku (2007-2008) SCGLR 996;
Ladd v. Marshall (1954) 1 W.L.R.
149 CA which was the leading
case that established the
principle; Foli and Others v.
Agya-Atta and Others
(Consolidated) (1976) 1 G.L.R.
194 CA.
However, all
the cases I have been
priviledged to read have turned
on appeals in cases decided on
merits in which some form of
evidence was adduced at the
trial. The factual situation in
this case is entirely different
in the sense that the case did
not reach the trial stage, no
evidence was adduced; it was a
judgment obtained by default of
appearance which is the subject
of the appeal to this court.
Thus all the cases referred to
by both counsel and others that
I have read cannot be relied on
as clear authority. But the
principles emanating from them
are apt since they provide
guidelines for the determination
of such an application.
The
respondents herein who were the
plaintiffs in the court below
sued the applicant herein and
three others including Onward
Investment Limited, hereafter
called Onward, as defendants
before the High Court. From the
facts available in this
application, the applicant and
the other defendants defaulted
in entering appearance to the
writ so the plaintiffs moved the
court and obtained default
judgment against them. The
applicant herein applied to the
court below to set aside the
default judgment but the
application was denied by the
court. An appeal against the
refusal to set aside the default
judgment was made to the Court
of Appeal which also rejected
it. A further appeal has been
made to this court. And whilst
that appeal is pending before
this court the present
application for leave to adduce
fresh evidence on appeal has
been put in by the applicant. It
raises a novel situation so it
was not surprising that counsel
for the respondents argued that
since the case did not proceed
to trial and no evidence was
thus led, there could be no talk
about any fresh evidence being
adduced as there is no authority
for it. Counsel for the
applicant had argued that if
this piece of evidence had been
available to them it would have
assisted them to persuade the
trial court to set aside the
default judgment in the sense
that the court would have looked
at it and concluded that they
have a reasonable defence to the
claim. Under the common law that
we inherited and continue to
embrace the novelty of a point
for lack of authority is no
reason to dismiss it. In such a
situation what comes to mind as
applicable is the view expressed
by Parke J. in the case of
Mirehouse v. Rennel (1833) 8
Bing. 490; 6 E.R. 1015
H.L. that because a case is
new we have no right to consider
it as one for which the law has
made no provision at all and
because it has not been
previously decided to decide it
according to what we consider to
be just and expedient. He
continued that “the common law
system consists in the applying
to new combinations of
circumstances those rules of law
which we derive from legal
principles and judicial
precedents and for the sake of
attaining uniformity,
consistency and certainty, we
must apply those rules where
they are not unreasonable and
inconvenient to all cases which
arise; and we are not at liberty
to reject them and to abandon
all analogy to them, in those in
which they have not been
judicially applied, because we
think that the rules are not
convenient and reasonable as we
ourselves could have devised.”
The question
that arises is whether an
appellate court could entertain
an application to adduce fresh
evidence on appeal in respect of
a default judgment wherein no
evidence was adduced at the
trial court. Rule 76 of C.I. 16
does not impose any limitations
as to the type of appeals in
which the Court may admit fresh
evidence. In the absence of any
such statutory limitation, not
even indirectly, the Court must
not disable itself from
entertaining and considering an
application to adduce fresh
evidence in an appeal against a
default judgment. Besides, the
court is entitled in a situation
where there is no statutory
provision, to apply common law
principles diligently with the
aim of attaining and prevent
failure of justice. The same
criteria would be applied in
examining the application as in
all other cases where fresh
evidence is sought to be adduced
on appeal. Thus the seeming
objection by Counsel for the
respondents against this
application on account of the
fact that no evidence was
adduced at the trial is
untenable. I will therefore
examine the application in the
light of the facts and
especially the criteria for its
admissibility.
Setting aside
a default judgment is an
exercise in discretion, see
Order 10 rule 8 of the High
Court Rules, 2004, C.I. 47.
Several factors may be
considered by the court in
deciding to exercise its
discretion or not. For our
present purposes one factor that
could sway a court in vacating a
judgment given by default is
whether the applicant has a real
prospect of successfully
defending the claim, otherwise
stated as reasonable defence to
the claim. Thus an application
to set aside a default judgment
must be supported by an
affidavit indicating the
evidence or nature of the
defence, whether factual or law
or mixed fact and law. Hence
where the factual evidence was
not known or available to the
applicant at the time he made
the application to set aside, it
affords him the opportunity to
seek the leave of the appellate
court to adduce it on appeal.
The appellate court would be
considering all available
material in deciding whether the
trial court was justified or not
in the exercise of its
discretionary power. The
question then is whether the
applicant could have relied on
the evidence now sought to be
adduced in the application to
set aside or in their defence as
raising a reasonable defence. If
the answer is positive the
appellate court would not shut
it out if the applicant is able
to clear the first hurdle of
satisfying the court that he did
not know about the existence of
the evidence then or was not
available to him in spite of
diligent search or enquiry.
The applicant
described the circumstances
which led them to chance upon
this piece of evidence which
shows that as at the time they
made the application to the High
Court to set aside the default
judgment they did not even know
it existed. Something whose
existence they did not know
about could not have been
available for there was no
possibility to search for it. I
take note that the respondents
did challenge the applicant on
this claim saying it was in the
public domain. But apart from
this bare assertion no evidence
was produced and I am not
satisfied that it is a document
available to the public because
of the confidentiality required
between financial institutions
and their clients. The authority
of Foli v. Agya-Atta,
supra, decided that the court
would deny such an application
if the evidence was available
and known to the applicant. In
this case even if the evidence
was available as stated by
Counsel for the respondents, it
was not known to the applicant
as they said and I have no
reason to doubt that. And even
if the applicant was aware of
the evidence or could have
become aware with due diligence,
this is one of those cases where
the court should depart from the
rule in the interest of justice,
on the authority of Foli v.
Agya-Atta, supra, and also
the inherent right to allow the
application in the interest of
justice under rule 76(1) of C.I.
16. Phipson on Evidence affirms
this principle in these words in
the 15th edition, at
para. 12-02, page 286: ‘Even if
the relevant issue has been
identified, the party knows of
the existence of the evidence
and it is physically possible to
bring it before the court, it is
still possible for an applicant
to justify his failure to bring
the evidence forward at the time
of the first hearing. The
question is one of
reasonableness in all the
circumstances.’ The court is
also prepared to relax this
criterion in cases of fraud,
deception or other inappropriate
conduct, see Latimer v.
Cumbria CC (1994) P.I.Q.R. P395,
CA.
This case did
not go to trial so it would be
plainly unjust to shut any party
out of any evidence that might
help their case at this stage
when the party is seeking to be
heard on merits. Thus if the
other criteria are satisfied the
application should be allowed
even if evidence was known to
the applicant at the court
below. I hold that the first
step has been cleared by the
applicant in that the evidence
was not even known to them at
the trial.
The next
hurdle to surmount is whether
the evidence sought to be
adduced could have an impact on
the defence case. As said in
Wood v. Gamlings (1993) P.I.Q.R.
P76 CA it suffices if it
is probable that it would have
had an important influence on
the result. Act 673 places the
responsibility for licensing all
banks in the country on the
applicant. Read together,
Article 183 of the 1992
Constitution, Bank of Ghana Act,
2002, (Act 612) and Banking Act,
2004 (Act 673) make the
applicant the lead institution
in the country in the banking
sector to ensure proper
regulation of the banking
industry. In other words banking
supervision or regulation
however described is their
mandate. It follows that any
organization that is performing
non-banking functions is not the
applicant’s business. It is for
this reason that the evidence
that they seek to introduce is
acceptable. If it is true that
Onward was indeed not operating
as a bank but as an investment
firm it would afford some
reasonable defence to some of
the reliefs on the claim,
especially reliefs a and d
indorsed on the writ, wherein
the plaintiffs accuse the
applicant of allowing Onward to
operate as a bank illegally. The
said reliefs a and d read:
(a)
A
declaration that the deliberate
and or intentional act of the 1st
defendant, 2nd
defendant & 3rd
defendant permitting and or
indulging the 4th
defendant to operate
commercially as a bank
concern…….without the requisite
Bank of Ghana banking licence
was not only negligent and or
unconscionable but
unconstitutional, fraudulent and
legally impermissible and as a
result have caused substantial
miscarriage of justice and civil
injuries to the plaintiffs.
(d) The
recovery of liquidated cash sum
of………which the plaintiffs
herein……..deposited with the 4th
defendant as a bank concern on
grounds of the 1st, 2nd
and 3rd defendants’
admission and contribution to
the 4th defendant’s
commission of fraud against the
plaintiffs herein.
The applicant
was the 1st defendant
and Onward was the 4th
defendant in the High Court
suit. Hence the applicant was
alleged to have allowed Onward
to operate illegally as a bank
to defraud the plaintiffs. I am
satisfied that if this evidence
had been available to the trial
court it could have had an
important influence on its
decision. It might also have a
significant influence on the
appeal before this court.
For the
foregoing reasons I allow the
application and give leave to
the applicant to adduce fresh
evidence on appeal. They are
directed to do so by way of
affidavit within ten days from
today. Since the appeal is
pending before this court the
respondents will have the
opportunity to answer it when
they file their statement of
case. The application is granted
accordingly. There will be no
order as to costs.
(SGD)
A. A. BENIN
JUSTICE OF THE SUPREME
COURT
COUNSEL
SAMUEL CODJOE
ESQ. WITH HIM THEOPHILUS
KPORVIE FOR THE DEFENDANT/
APPELLANT/APPELLANT/ APPLICANT.
HANSEN K.
KODUAH ESQ. FOR THE
PLAINTIFFS/RESPONDENTS/
RESPONDENTS.
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