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Review –
Jurisdiction - Interlocutory
appeal - Article 134(b) - Rule
76 - Supreme Court Rules, CI 16
– 1992 Constitution – Evidence -
Application for leave to adduce
further evidence – Whether or
not the matter aseeks to
interfer with the order of the
court presided over by a single
Justice - Whether or not
in
reaching his decision, the
learned justice acted in
accordance with settled
principles –
HEADNOTES
the instance
of the Applicant herein that
invites us to reverse or
discharge the decision of a
single Justice of this court
dated 29 July 2014. Although at
the hearing both parties
proceeded with the matter as
though it was brought under our
review
jurisdiction, it appears
that the matter before us
relates to the exercise of the
power conferred on us under
article 134(b) of the
Constitution – Whether or not
the applicant had actual
knowledge of the facts sought to
be introduced into evidence
HELD
We think that there is good
sense in limiting applications
for further evidence to appeals
from full scale trials and even
if the said position were to be
in error, in regard to an appeal
from which no evidence was
taken, we find it difficult to
accept the contention that it
was open to the applicant to
seek leave to adduce further
evidence in the matter. For
these reasons, we allow the
application of the Applicant and
reverse the order of this court
dated 29 July 2014 by which the
Respondent herein was granted
leave to adduce further evidence
in the matter herein. The result
is that the said order made on
29 July 2014 is hereby
discharged together with any
processes founded thereon and in
place thereof we substitute an
order dismissing the application
to adduce further evidence.
STATUTES
REFERRED TO IN JUDGMENT
1992
Constitution
Supreme Court
Rules, CI 16
Evidence Act
NRCD 323
CASES
REFERRED TO IN JUDGMENT
ALABAMA HOTEL
Co v J. L. MOTT IRON WORKS, 98
So. 825, 826 decided by the
Supreme Court of Florida
RE REED
[1979] 2 All ER 2 at 25
LADD v
MARSHALL [1954] 3 All ER 745.
KRAKAUER v
KARTZ [1954] 1 ALL ER 244
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
GBADEGBE
JSC:-
COUNSEL
HANSEN K. KODUAH ESQ. WITH HIM
SUMMERS DARKO FOR THE
PLAINTIFFS/RESPONDENTS/
RESPONDENTS/APPLICANTS.
SAMUEL CODJOE
ESQ. WITH HIM THEOPHILUS
KPORVIE, VIDA ACKAH LINDSAY AND
EDWARD DANKWAH FOR THE
DEFENDANT/ APPELLANT/APPELLANT/
APPLICANT/RESPONDENT.
_________________________________________________________________
GBADEGBE JSC:-
We have before us a notice of
motion at
the instance of the Applicant
herein that invites us to
reverse or discharge the
decision of a single Justice of
this court dated 29 July 2014.
Although at the hearing both
parties proceeded with the
matter as though it was brought
under our review jurisdiction,
it appears that the matter
before us relates to the
exercise of the power conferred
on us under article 134(b) of
the Constitution, which is
expressed in the words that
follow:
“A single Justice of the Supreme
Court may exercise power vested
in the Supreme Court not
involving the decision of a
cause or matter before the
Supreme Court, except that in
civil matters, any order,
direction or decision made or
given under this article may be
varied, discharged or reversed
by the Supreme Court,
constituted by three Justices of
the Supreme Court.”
In our
view the form of the application
which refers to our review
jurisdiction should not prevent
us from dealing with
the
matter as one which
substantively seeks our
interference with the order of
this court presided over by a
single Justice dated 29 July
2014 by which the Respondent
herein obtained an order in her
favour to adduce further
evidence in the appeal herein.
Indeed, subsequent to the said
order of the court, the
Respondent on or about 04 August
2014 filed an affidavit by way
of further evidence in terms of
the order of 29 July. The
circumstances in which the
application for leave to adduce
further evidence had arisen have
been adequately dealt with in
the judgment of our worthy
brother at pages 3 – 4 of the
said delivery that is exhibited
to the application herein as
IGIST-3 and accordingly in our
ruling we would not detain the
precious time of this court by
referring to those matters
except in so far as any such
fact is relevant for the purpose
of our decision.
We think that the application
herein presents us with an
opportunity under article 134(b)
to reconsider the application of
the Respondent that resulted in
the ruling of 29 July which gave
accession to her prayer that she
be enabled to lead further
evidence under rule 76 of the
Supreme Court Rules, CI 16. In
this regard, since the
application is derived from a
constitutional power vested in
us by article 134 (b) of the
Constitution and involves the
exercise of a discretionary
power by the court acting by a
single Justice thereof, what we
have to consider is whether in
reaching his decision, the
learned justice acted in
accordance with settled
principles of the court in the
grant and or refusal of an
application to adduce further
evidence in the interlocutory
appeal herein. We think that
although the conditions that are
prescribed by rule 54 of the
Supreme Court Rules in regard to
our review jurisdiction might
in appropriate cases enable the
court to reach a decision within
the scope and extent of article
134 of the Constitution, the
simple question which calls for
our decision in these
proceedings is whether in making
the order of 29 July 2014 the
learned Justice of this court
acted in accordance with the
settled practice of the court in
applications that seek leave to
adduce further evidence in
appeals. We think that article
134 recognises the common law
position of a court being in
control of interlocutory orders
made in the course of a pending
case and therefore provides us
with the power in appropriate
cases following a
reconsideration of the order
previously made by a single
Justice of the Court to reverse,
discharge or vary orders made by
a single justice. Reference in
this regard is made to the case
of
ALABAMA HOTEL Co v J. L. MOTT
IRON WORKS, 98 So. 825,
826 decided by the Supreme Court
of Florida in 1924, wherein
the court deemed it “well
settled that interlocutory
judgments or decrees made in the
progress of a case are always
under the control of the court
until final disposition of the
suit, and may be modified or
rescinded upon sufficient
grounds, shown any time before
judgment….”. The
availability of this power in
the court is in our opinion, a
useful tool particularly when
one takes note of the fact that
the decisions of the Supreme
Court are not subject to appeal.
As earlier on said in the course
of this delivery, our task in
the application before us is to
determine whether in reaching
the decision dated 29 July, the
learned Justice of the Supreme
Court acted on the wrong
principle or took into account
irrelevant matters or did not
take into account matters which
ought to have been taken into
account or had come to a
conclusion which no court
properly instructing itself on
the law would have reached. See:
RE
REED [1979] 2 All ER 2
at 25 per Goulding J. Having
stated what in our view are the
principles which should guide
us, we commence by saying that
although the decision that we
are reconsidering was made by a
single Justice of the Supreme
Court, it is entitled to be
treated with respect and
interfered with by a discharge,
reversal or variation only when
we reach the conclusion on the
processes before us that the
order in respect of which our
jurisdiction has been invoked
was an injudicious exercise of
discretion. We venture to add
that by the application herein,
we are not authorised to
substitute our discretion for
that of the learned Justice who
determined the application
resulting in the order being
reconsidered by us.
We proceed firstly to examine
the grounds for the making of
the application which resulted
in the order of 29 July 2014 to
determine if it was right. We
have examined the processes
before us in these proceedings
and in particular the
depositions exhibited as IGIT-1
wherein the deponent named
therein at the instance of the
Respondent at paragraphs 4-8
thereof gave the backdrop to the
application to adduce further
evidence and proceeded in
paragraphs 9-11 to make the
following crucial depositions of
fact:
“9 That in April, 2014, we
commenced hearing in another
suit entitled suit number
AC647/2012, Frempah Moses and
179 others v Onwards Investment
Limited and Others. This
action was filed by another
group of investors in Onward in
the High Court, Accra against
9 persons in which we
(Applicant) are the 9th
Defendant. At the hearing,
Plaintiffs in the said case
tendered booklets issued by
Onwards to all its investors,
together with a brochure, which
they stated was given by Onwards
to every investor as proof of
their investment. Attached
hereto as BOG 3 and BOG 4 are
copy of the said booklet and
brochure respectively.
10. That the booklets clearly
show that Plaintiffs were not
candid with the court and that
Onwards was never a bank nor
claimed to be a bank. What is
clear from the booklets is that
Onwards claimed to be an
investment company and paid
profits on investment and never
“interest” on saving. They very
basis of the action by Plaintiff
against us (Applicants) is
therefore misconceived, in that
the body in charge of
Investments is the Securities
and Exchanges Commission
established under the Securities
Act as amended by Act 590.
11. That the information was not
available to us and could not
have been obtained by us in that
we had nothing to do with the
set up and operations of
Onwards. We only had notice of
this information when this was
tendered in evidence in the
Frempah case.”
As the
Respondent made these
depositions subsequent to the
application which it had
previously filed in the High
Court to set aside the default
judgment obtained against her
whose refusal resulted in the
appeal herein in respect of
which leave to adduce further
evidence was filed, it
repays in our thinking to pause
at this stage to consider the
deposition made by the
respondent (then Applicant) in
the application to persuade the
trial High Court to yield to her
invitation to set aside the
judgment obtained in default of
appearance.
In her bid to satisfy the court
that she had a good defence to
the action on the merits,
the Respondent herein deposed in
paragraphs 6 and 7 of the
supporting affidavit sworn to by
one of its counsel therein named
as Edem Penty as follows:
“6. That we have a very
genuine defence to the action
which we state is without any
basis whatsoever and when given
the opportunity we would
establish that our clients are
not liable whatsoever.
7. That we state further that
whilst the writ of summons
discloses no reasonable cause of
action against 1st
Defendant, 2nd and 3rd
Defendants are employees of the
1st Defendant and are
not proper parties to the suit
and at the appropriate time we
would establish same in court.”
It seems to us upon a careful
consideration of the paragraphs
to which reference has been made
above that at the date the
application to set aside the
default judgment was made by the
Respondent the facts which in
its opinion disclosed no cause
of action against her were quite
well available to herand
actually within the knowledge of
her lawyers. That construction
is quite plain from the
affidavit evidence placed before
the court and we hasten to say
that we do not think that the
persons who made those solemn
depositions would have
positively sworn to those facts
if they lacked such knowledge.
As these depositions were made
in a cause pending before a
court of competent jurisdiction,
they must have been intended by
the makers thereof to be acted
upon by the Applicants herein
for the purpose of determining
the applications in respect of
which they were filed. It being
so, the Respondent herein is
bound by the ordinary meaning of
the said paragraphs 6 and 7 of
the supporting affidavit that
they were not under any
disability as to the facts which
rendered in their opinion the
said original action into one
that disclosed no cause of
action against her and indeed
one in respect of which as was
deposed to on her behalf, she
had a very genuine defence. By
the operation of the effect of
the depositions made in the
application before the High
Court, the applicant is caught
by section26 of the
Evidence
Act which is commonly
referred to as estoppel by own
statement or conduct that is
provided for in
NRCD 323
in the words that follow:
“Except as otherwise provided
by law, including a rule of
equity, when a party has by his
own statement, at or omission,
intentionally and deliberately
caused or permitted another
person to believe a thing to be
true and to act upon such a
belief, the truth of that thing
shall be conclusively presumed
against that party or his
successors in interest in any
proceedings between that party
or his successors in interest
and such relying person or his
successors in interest.”
Since the said paragraphs give
rise to a conclusive presumption
within the scope of section 24
of the Evidence Act, NRCD 323,
the court which heard the
application for leave to adduce
further evidence ought to have
come to the conclusion that the
facts in respect of which leave
was sought for evidence thereon
to be led in the appeal had long
been available to the Applicant
since the making of the
application to set aside default
judgment in the matter on 18
July 2012. The said section is
expressed thus:
“Where the basic facts give rise
to a conclusive presumption are
found or otherwise established
in the action, no evidence
contrary to the conclusively
presumed fact may be considered
by the tribunal of fact.”
Further in our view, as the
application to the trial court
was prior in making to that made
to the Supreme Court for the
purpose of obtaining leave to
adduce further evidence in the
appeal herein, the inconsistency
between the two depositions must
adversely affect the credit to
be placed on the subsequent
deposition. We do not speaking
quite frankly think that the
subsequent deposition can have
the effect of superseding the
previous deposition; on the
contrary it speaks to the
inherent improbability of the
facts therein recited. It being
so, the Respondent was unable to
satisfy, one of the conditions
that an applicant who seeks
leave to adduce further evidence
on appeal should satisfy as is
discernible from a collection of
cases on the point which is
legislatively recognised in rule
76 (2) of the Supreme Court
Rules, CI 16. Indeed, in the
decision before us for
reconsideration, the learned
justice referred to that
requirement as one of the
hurdles that the Respondent
(then Applicant) was required to
surmount. Rule 76 (2) requires
the Court not to accede to any
such application in very
mandatory terms as follows:
“ Evidence shall not 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.”
We think that the effect of the
processes proffered by the
Applicant in support of her case
in the High Court are the very
critical matters of fact to be
taken into account by a court
under rule 76 of the Supreme
Court Rules for the purpose of
deciding whether to grant or
refuse the application to adduce
further evidence and it not
having been satisfied, the
application crumbled and the
further evidence sought to be
led should not have been allowed
as the allegation of
unavailability of the facts
relates to that point in time
and not subsequently thereafter.
In the circumstances, we are of
the opinion that the decision of
29 July 2014 suffers from a
wrong conclusion on the effect
of the evidence placed before
the learned Justice by the
applicant in support of the
requirement regarding the
non-availability of the further
evidence. That evidence in our
view had long since 18 July 2012
been in the knowledge of the
Applicant and if she did not
make use of it at the hearing of
the application to set aside the
default judgment in the original
action, it cannot by reason only
of such default acquire the
attribute of facts which were
neither available nor could by
the exercise of due diligence
have been made available. We
think that a fair reading of the
rule requires us when
considering an application under
rule 76 of the Rules not to
inquire
whether the applicant had actual
knowledge of the facts sought to
be introduced into evidence
but whether from a careful
reading of the processes placed
before it, the party seeking to
be granted leave may be presumed
to have been aware of the facts
in respect of which the
application has been made and in
this regard the existence of
constructive knowledge would
operate to defeat such an
application.
As the crucial facts were in the
possession of the Respondent at
the time of making the
application in the original
action before the High Court,
the contrary assertion which
formed the basis of its prayer
in the application before the
Supreme Court that resulted in
the order of 29 July 2014, with
which we are concerned in these
proceedings was with respect to
the Respondent not truthful and
therefore the evidence in
respect of which the leave was
sought was not likely to be
credible. See:
LADD v MARSHALL [1954] 3
All ER 745. We are of the
view that if the learned Justice
had given due consideration to
the conflicting depositions made
by the Applicant in the
application made to set aside
the default judgment in the
original action and that
subsequently filed in the
application under rule 76, he
would have reached the
conclusion that one of the
preliminary requisites to be
satisfied by an applicant at
the hearing of an application
for leave to adduce further
evidence, which he correctly
expounded at the opening of his
judgment as IV namely ”Such
as is presumably to be believed,
in other words evidence
of a sort which is inherently
not improbable“, he would
probably have refused the
application on this ground also.
The above reasons are sufficient
in our view to decide the
application herein. But, before
we end our delivery, we wish to
say that it appears to us from
the nature of the appeal in
respect of which the application
for further evidence in the
matter was granted being
interlocutory; rule 76 of the
Supreme Court Rules is
inapplicable. In coming to this
view of the matter we have been
guided by the pronouncement of
Denning LJ in the English case
of
KRAKAUER v KARTZ [1954]
1 ALL ER 244 in which the
court at the hearing of an
interlocutory appeal upheld
a preliminary objection to the
making of an application to
lead further evidence. In his
ruling on the said objection,
the learned Justice said at page
245:
“A preliminary point has arisen
whether this court can or should
admit further affidavits on
behalf of the defendant. It was
suggested that an appellant on
an interlocutory matter has a
right in this court to adduce
further evidence by affidavit. I
am clearly of opinion that he
has no such right”.
We think that there is good
sense in limiting applications
for further evidence to appeals
from full scale trials and even
if the said position were to be
in error, in regard to an appeal
from which no evidence was
taken, we find it difficult to
accept the contention that it
was open to the applicant to
seek leave to adduce further
evidence in the matter.
For these reasons, we allow the
application of the Applicant and
reverse the order of this court
dated 29 July 2014 by which the
Respondent herein was granted
leave to adduce further evidence
in the matter herein. The result
is that the said order made on
29 July 2014 is hereby
discharged together with any
processes founded thereon and in
place thereof we substitute an
order dismissing the application
to adduce further evidence.
N. S. GBADEGBE
JUSTICE OF THE SUPREME
COURT
ANIN
YEBOAH
JUSTICE OF THE SUPREME
COURT
P. BAFFOE BONNIE
JUSTICE OF THE SUPREME
COURT
COUNSEL.
HANSEN K. KODUAH ESQ. WITH HIM
SUMMERS DARKO
FOR THE PLAINTIFFS/RESPONDENTS/
RESPONDENTS/APPLICANTS.
SAMUEL CODJOE
ESQ. WITH HIM THEOPHILUS
KPORVIE, VIDA ACKAH LINDSAY AND
EDWARD DANKWAH FOR THE
DEFENDANT/ APPELLANT/APPELLANT/
APPLICANT/RESPONDENT.
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