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JUDGMENT
BROBBEY, J.A.
The applicants herein have
instituted an action against the
respondent company claiming
certain reliefs relating to
their end of service benefits.
The case was tried in the High
Court and judgment given in
favour of the applicants. The
respondents appealed to this
court. The appeal was heard to
conclusion and is awaiting
judgment.
The applicants then filed the
instant application for leave to
adduce fresh evidence. The
evidence which is sought to be
adduced is to the effect that
junior and senior staff members
were employed on different
conditions of service. The
application was brought under
CI.20, rules 26 and 31. The
first rule provides that;
“26. (1) It is not open as of
right to any party to an appeal
to adduce new evidence in
support of his original case
but, in the interest of justice,
the court may allow or require
new evidence to be adduced; such
evidence shall be in the form of
oral examination in court, an
affidavit or a deposition taken
before an examiner or
commissioner as the court may
direct.
(2) A party may, by leave of the
court, allege any facts
essential to the issue that has
come to his knowledge after the
decision of the court below and
adduced evidence in support of
the allegation.”
This is the rule as contained in
the Court of Appeal Rules, 1997
(CI 19) (not CI 20 as stated in
the motion paper). It is a
re-enactment of the original
rule in the Court of Appeal
Rules, LI 218 and in fact the
wordings of the two are the
same. The only difference is
that the original rule has now
been split into two i.e. 26(1)
and 26(2).
The rules have been the subject
matter of various decisions, one
of which counsel for the
applicants has relied upon and
supplied us with photocopy. That
was Sasu vrs. Amua-Sekyi
[1987-88] 1 GLR.294, SC.
There is no doubt that this
court has the power to allow
fresh evidence to be adduced in
appropriate cases. The facts
leading to this application
however present a peculiar
problem. Thoughout the trial
court and in this court, the
applicants took the position
that both senior and junior
staff members were on the same
conditions of service. That was
confirmed by the PW1 in his
testimony at the trial court.
When the PW2 testified, he too
was emphatic that junior and
senior staff members were on the
same conditions of service. As
stated already, the evidence now
being sought to be adduced is to
the effect that junior and
senior staff members were on
different conditions of service.
The question which arises here
is whether or not, in the
appellate court, fresh evidence
may be led to contradict the
evidence already given and also
to set up an entirely different
case from that already adduced
at the trial court. The case of
Sasu vrs. Amua-Sekyi supra
provides an appropriate answer.
At page 295 of the report, it is
stated that:
“After all a person who appeals
from a decision of a trial court
is impliedly saying that the
decision of that court is wrong
having regard to the evidence
put before that court. The duty
of the appellate court is
therefore to look at that
evidence to determine whether
the appellant’s complaint is
justified or not. If the
appellate court bases its
decision on evidence that was
not before the trial court, then
it is not sitting as an appeal
court, if only because it is not
reconsidering the “appealed”
evidence; it is rather looking
at new, fresh evidence and
therefore sitting as a court of
first instance; it is sitting as
a trial court. In those
circumstances, the decision
“appeal allowed” ceases to have
any meaning, for the appellate
judges cannot say that the trial
court was wrong, when they know
the evidence they used to arrive
at that pronouncement was not
available to the trial judge,
and therefore he was not in a
position to make a right or
wrong decision thereon.”
It is clear from this authority
that the applicants cannot
seriously contend while the case
is on appeal here that their
case should now be considered on
the basis that senior and junior
staff members no longer had the
same conditions of service when
they contested the trial at the
trial court on the basis that
they all had the same conditions
of service.
Counsel for the applicant
intimated to the court that the
applicants would amend their
case. In the first place, the
amendment has not yet been
effected and so it cannot be
taken into account. To do that
would amount to indulging in
speculation. In the second
place, what makes counsel to
believe that his amendment would
be granted or refused? He cannot
be sure of the amendment.
In the third place, in the event
of the amendment being refused,
what would happen would be that
there would be two conflicting
and contradictory evidence
standing on the record in
support of the case of the
applicants: one would support
the standpoint that senior and
junior staff members were on the
same conditions of service; the
other would support the
standpoint that the senior and
junior staff members were on
different conditions of service.
What really would be the case
which the applicants would want
the court to consider?
A significant point which
undermines the application of
the applicants is the fact that
the real bone of contention in
the appeal is whether or not on
a true interpretation of NLCD
157, ss.34 and 35 and NLCD 342,
the severance benefits of the
applicants should be calculated
from the day when each started
working with the respondent
company or from the period prior
to 1st January, 1991. The issue
pending before this court is one
of interpretation. Adducing
fresh evidence relating to
differences between the service
conditions of senior and junior
staff members will not in any
way assist in the interpretation
of these provisions. That
evidence may perhaps help the
applicants to earn more
severance pay. But that will be
leading fresh evidence to
increase the quantum of their
severance award in a manner not
canvassed before the trial judge
for him to have decided one way
or the other on that issue. The
motion paper also referred to
rule 31 as one of the rules on
which the motion was brought.
That rule covers the general
powers of this court. It cannot
provide a basis for bringing the
motion where the evidence sought
to be adduced is contradictory
to the evidence which was laid
before the trial court.
For these reasons, the
application fails and should be
dismissed.
S. A. BROBBEY
JUSTICE OF APPEAL
WOOD, J.A.
The main rule under which the
application is brought is
self-explanatory. Fresh evidence
can be adduced only in support
of an original case. It follows
where the fresh evidence is
intended to lead to a departure
from the original case. The
application ought to fail. Also,
if the fresh evidence would be
inconsistent with or at variance
with the original action. It is
for this reason that like my
brother, I also agree that
application be dismissed as to
allow this would alter the
nature and direction of the case
they presented in the Court
below.
MRS. G.T. WOOD
JUSTICE OF APPEAL
TWUMASI, J.A.
I agree.
P.K. TWUMASI
JUSTICE OF APPEAL
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