SIMON ANKUJEH AND 99 OTHERS vs. GTP [2000]DLCA6983

Date	2000-05-04
Suit No.	CIVIL MOTION NO. 59/2000
Citation No.	[2000]DLCA6983

MRS. WOOD J.A. (PRESIDING)

BROBBEY J.A.

TWUMASI J.A

[2000]DLCA6983
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													<main id="main" class="content" style="min-height: 60rem" >SIMON ANKUJEH AND 99 OTHERS<o:p></o:p>vs.<o:p></o:p>GTP<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
MOTION NO. 59/2000&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE:&nbsp; 4TH MAY, 2000<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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MRS.
WOOD J.A. (PRESIDING), BROBBEY J.A., TWUMASI J.A <o:p></o:p>

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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>BROBBEY,
J.A.: <o:p></o:p>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.<o:p></o:p>&nbsp;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;<o:p></o:p>&nbsp;“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.<o:p></o:p>&nbsp;(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.”<o:p></o:p>&nbsp;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). <o:p></o:p>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. <o:p></o:p>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:<o:p></o:p>&nbsp;“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. <o:p></o:p>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.<o:p></o:p>&nbsp;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?<o:p></o:p>&nbsp;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 </main>