KARIKARI vs. WIAFE [1981]DLCA2146

Date	1981-12-01
Suit No.
Citation No.	[1981]DLCA2146

JIAGGE JA

FRANCOIS JA

MENSA BOISON J.A.

FREMPONG BOADU FOR THE APPLICANT.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1981]DLCA2146
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													<main id="main" class="content" style="min-height: 60rem" >KARIKARI<o:p></o:p>&nbsp;vs. <o:p></o:p>WIAFE <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1982-83] GLR 864<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
1 DECEMBER
1981<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

FREMPONG BOADU FOR THE APPLICANT. <o:p></o:p>

NO APPEARANCE BY OR FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

JIAGGE, FRANCOIS AND MENSA BOISON JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF JIAGGE J.A.<o:p></o:p>This application
is for leave to adduce fresh evidence at the hearing of an appeal now pending
before this court by tendering pages 20-22 and 27-29 of the record of
proceedings in suit No.167/72 heard by the District Court, Bechem, in 1972 and
entitled:<o:p></o:p>Adu Asare
Waye — Plaintiff v.<o:p></o:p>Adwoa
Addae — Defendants<o:p></o:p>Amma
Nyarko and Kwabena Pie — Co defendant.<o:p></o:p><o:p>&nbsp;</o:p>The
applicant in his affidavit in support of his motion, averred that during the
hearing of the suit (LC8/78) - Opanin Kwasi Wiafe v. J. K. Karikari at the High
Court, Sunyani, the appeal from which is now pending before this court, Kwabena
Pie gave evidence for the plaintiff-respondent (hereafter referred to as the
respondent) and revealed that he had at one time been sued in connection with
the Aboabogye farm, one of the farms in the present dispute, at the District
Court, Bechem.<o:p></o:p><o:p>&nbsp;</o:p>Following
Kwabena Pie’s evidence, the applicant applied for copies of the proceedings
before the District Court, Bechem, to examine the nature of the evidence given
on the ownership of the Aboabogye farm in question. By the time the applicant
received the record of proceedings, judgment had already been given against
him, and he had appealed against that judgment. On examining the record of
proceedings the applicant discovered that the evidence given by Kwabena Pie at
the District Court, Bechem, on the ownership of the farm was quite contrary to
the evidence he gave on the same issue before the High Court, Sunyani. The
applicant argued that if Kwabena Pie’s evidence at the District Court, Bechem,
had been available, the trial at the High Court, Sunyani, would have taken a
different turn, and he urged this court to grant leave to adduce fresh
evidence.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent was absent during the hearing of the motion but he filed an
affidavit in opposition. However, there is nothing in his affidavit to show
that the applicant has prior knowledge of the trial at Bechem before the
evidence of Kwabena Pie in the High Court, Sunyani. There is nothing to show
that the failure to make the evidence in question available at the High Court,
Sunyani, was due to lack of diligent search on the part of the applicant.<o:p></o:p><o:p>&nbsp;</o:p>The
general rule is that each party in an action before the court must produce all
the relevant and material evidence in support of his cause of action. The court
will not permit a party to produce his evidence piecemeal in a series of
actions. Litigation must have an end.<o:p></o:p><o:p>&nbsp;</o:p>However,
there are a few exceptions to the general rule and one such rule is where a
material evidence that might have altered the conduct of the trial was
discovered only after the trial. The court may in such case grant leave to
adduce fresh evidence at the hearing of the appeal provided that there is
satisfactory proof that the failure to produce the said material evidence at the
trial was not due to lack of diligent search on the part of the applicant.<o:p></o:p>