BEN KUMA—AGENT FOR FAROE SEA FOOD C/O OYEMAN CHAMBERS, TEMA vs. MESSRS EAST COAST FISHERIES LTD., EMELIA MOKOR, STATE FISHING CORP. [1999]DLSC6384

BEN KUMA—AGENT FOR FAROE SEA FOOD C/O OYEMAN CHAMBERS, TEMA vs. MESSRS EAST COAS... [1999]DLSC6384

Date	1999-02-10
Suit No.	CIVIL MOTION NO.69/98
Citation No.	[1999]DLSC6384

EDWARD WIREDU J.S.C. (PRESIDING)

KPEGAH J.S.C.

ADJABENG J.S.C.

ACQUAH J.S.C.

MS. AKUFFO J.S.C.

MR. AWERE AWUKU FOR THE APPLICANT

MR. SETH MATANAWUI FOR THE RESPONDENT

[1999]DLSC6384
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													<main id="main" class="content" style="min-height: 60rem" >BEN KUMA—AGENT FOR FAROE
SEA FOOD C/O OYEMAN CHAMBERS, TEMA<o:p></o:p>vs.<o:p></o:p>MESSRS EAST COAST
FISHERIES LTD., EMELIA MOKOR, STATE FISHING CORP.<o:p></o:p>[SUPREME
COURT, ACCRA]<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">

CIVIL MOTION NO.69/98&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 10TH
FEBRUARY, 1999.<o:p></o:p>

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

<p class="MsoNormal" align="center" style="text-align:center;line-height:115%;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>SOPHIA A.B. AKUFFO, J.S.C.: <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 24th 1991, the Respondent obtained Summary Judgement in suit number
2075/90, against East Coast Fisheries Limited 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 judgement, the Company
and the Applicant, by a motion filed on July 19th, 1991, applied to the High
Court for orders staying execution of and setting aside the summary judgement,
which application was dismissed on July 15th 1992.&nbsp; In that application, the Applicant herein and
the 1st 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 Judgement 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 May
30th 1996 denied the appeal. The Applicant, therefore, appealed to this Court
in Civil Appeal No. 5/98. Before this Court could deliver judgement on the
appeal, however, the Applicant filed the present application. <o:p></o:p>By
this motion, the Applicant seeks leave of the Court to call further evidence in
her appeal before the delivery of the Court's judgement. The notice of motion
indicates that the same was being brought under Rules 5, 16, 23(1) &amp; (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 relates to the power of the Court to prescribe practice and
procedures in those instances where CI 16 makes no express provisions therefor.&nbsp; Rule 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 governs the general powers of the Court
in the management of appeals before it and Rule 53 fails under the original
jurisdiction of the Court and deals with the applicable procedure in matters
wherein such jurisdiction is invoked. <o:p></o:p>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 failing within the inherent jurisdiction of the Court,
such an application is fully and specifically catered for by Rule 76 of CI 16,
sub-rules (1) and (2) of which read as follows:—<o:p></o:p>"(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>"(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 and, failing that, this Court does not have the power to grant the leave
prayed. 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, sub-rule, (2) 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’. As we see it, Rule 76 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 it been known or available to her during the trial,
would have had a material effect on her case. However, the Rule is also
intended to ensure that the litigation comes to an end at some point in time,
by preventing parties from dishing out piecemeal evidence as after-thoughts, as
and when they deem it advantageous. We believe that it is for these reasons
that the restriction in 76(2) was created. <o:p></o:p>It
is, therefore, necessary to examine the basis for this application to ascertain
whether or not these essential requirements of Rule 76 have been met. The
affidavit in support of the application is quite wordy and consists of 33
paragraphs. However, it seems that the sole ground for t</main>