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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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