MORKOR v KUMA [1999]DLSC497

Date	1999-02-10
Suit No.	-
Citation No.	[1999]DLSC497

EDWARD WIREDU JSC

KPEGAH JSC

ADJABENG JSC

ACQUAH JSC

AKUFFO JSC

AWERE AWUKU FOR THE APPLICANT

SETH MATANAWUI FOR THE RESPONDENT

[1999]DLSC497
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">MORKOR<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">v<o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">KUMA<o:p></o:p>[SUPREME COURT, ACCRA]<o:p></o:p>[1999-2000] 1 GLR 69<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">DATE: 10 FEBRUARY 1999<o:p></o:p>

</div>COUNSEL: <o:p></o:p>AWERE AWUKU FOR THE APPLICANT<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 31.0pt 1.0pt 31.0pt">

SETH MATANAWUI
FOR THE RESPONDENT<o:p></o:p>

EDWARD WIREDU,
KPEGAH, ADJABENG, ACQUAH AND AKUFFO JJSC<o:p></o:p>

</div>JUDGMENT OF AKUFFO JSC.<o:p></o:p>A brief summary of the background of this application will suffice
to place the matter in its proper perspective. Furthermore, in this ruling, we
intend to rely upon the record of appeal in civil appeal No 5/98 to enable us
deal effectively with the issues arising herein.<o:p></o:p>On June 24 1991 the respondent obtained summary judgment in suit
number 2075/90 against East Coast Fisheries Ltd and the applicant (the managing
director of the company) for the recovery of a trade debt arising from the
supply of fish to the company. Subsequent to the summary judgment, the company
and the applicant, by a motion filed on 19 July 1991, applied to the High Court
for orders staying execution of and setting aside the summary judgment, which
application was dismissed on 15 July 1992. In that application, the applicant
herein and the first defendant challenged the amount adjudged as owing.
Furthermore, the applicant herein, for the first time in the suit, raised the
issue of whether or not she was a proper party to the suit. The applicant (not
the company) appealed to the Court of Appeal for the summary judgment and the
said subsequent ruling to be set aside on the main ground that the appellant
was not a proper party to the suit. The Court of Appeal by a majority decision
dated 30 May 1996 dismissed the appeal. The applicant, therefore, appealed to
this court in civil appeal No 5/98. Before this court could deliver judgment on
the appeal, however, the applicant filed the present application. By this
motion, the applicant seeks leave of the court to call further evidence in her
appeal before the delivery of the court’s judgment. The notice of motion
indicates that the same was being brought under rules 5, 16, 23(1) (3) and 53
of the Supreme Court Rules, 1996 (CI 16), and the applicant is praying this
court to exercise its inherent jurisdiction.<o:p></o:p>Without doubt, the rules of procedure cited by counsel for the
applicant, as the bases for the application, are wholly inappropriate for the
purpose sought to be achieved. Rule 5 of CI 16 relates to the power of the
Supreme Court to prescribe practice and procedures in those instances where CI
16 makes no express provisions therefor. Rule 16 of CI 16 relates to the
control of proceedings, during the pendency of an appeal, after the
transmission of the record of appeal to this court. Rule 23 of CI 16 governs
the general powers of the court in the management of appeals before it and rule
53 of CI 16 falls under the original jurisdiction of the court and deals with
the applicable procedure in matters wherein such jurisdiction is invoked.
However, it is quite clear that what the applicant seeks to achieve by this
application is to be permitted to adduce evidence which does not form part of
the record of appeal before the court. This is therefore, an application for
leave to adduce fresh evidence. Far from falling within the inherent
jurisdiction of the court, such an application is fully and specifically
catered for by rule 76 of CI 16, subrules (1) and (2) of which read as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“76. (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 relative to
the issue before the Court to be adduced. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(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.”<o:p></o:p>Thus, it is quite clear that the presentation of new evidence on
appeal is not as of right but by the leave of the court and at the court’s
discretion. Since the court’s discretion in such matters is a creature of
statute, its exercise is governed by the conditions and parameters set by the
statute and it is, therefore, a fettered one. Consequently, a person seeking to
invoke the exercise of this discretion must necessarily surmount the hurdles
imposed by rule 76 of CI 16 and, failing that, this court does not have the
power to grant the leave prayed for. The first hurdle is that it must be shown
that the reception of the new evidence will be in the interest of justice and
such evidence is related to the issue before the court. However, rule 76 (2) of
CI 16 also makes it patently clear that, even where the interest of justice may
be served by the reception of such new evidence, yet, it may not be received
“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.”<o:p></o:p>As we see it, rule 76 of CI 16 is intended to function as a
mechanism for ensuring that due justice is done to a diligent party to an
appeal who comes across evidence which was not and could not have been known or
available to her at the trial and which, had </main>