MAXWELL KOFI GYASI vs. THE REPUBLIC [2013]DLSC2698

Date	2013-04-08
Suit No.	CIVIL APPEAL NO. J8A/7/2013
Citation No.	[2013]DLSC2698

ANIN YEBOAH J.S.C.

AUGUSTINE OBOUR (WITH BOTAH) FOR THE APPLICANT.

NO APPEARANCE FOR AND ON BEHALF OF THE REPUBLIC.

[2013]DLSC2698
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													<main id="main" class="content" style="min-height: 60rem" >MAXWELL KOFI
GYASI<o:p></o:p>vs.<o:p></o:p>THE REPUBLIC<o:p></o:p>&nbsp;[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL NO. J8A/7/2013&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 8TH APRIL, 2013<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>AUGUSTINE
OBOUR (WITH BOTAH) FOR THE APPLICANT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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ANIN
YEBOAH &nbsp;J.S.C. SITTING AS A SINGLE
JUSTICE OF THE SUPREME COURT<o:p></o:p>

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

</div><o:p>&nbsp;</o:p>ANIN YEBOAH JSC:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>The
applicant prays this court for leave to adduce fresh evidence on appeal.&nbsp; The applicant was convicted for robbery by
the High Court, Kumasi and sentenced to twenty-one (21) years.&nbsp; <o:p></o:p>His
appeal was before the Court of Appeal Accra, and has now appealed to this Court.&nbsp; The applicant in the supporting affidavit has
deposed to the fact that at the time he was arrested and arraigned for trail he
was below eighteen years and for that matter could not have been tried and
sentenced in the manner which completely meant for adult offenders.&nbsp; The applicant’s counsel in an effort to
convince this court that the application has legal basis annexed to the
affidavit in support of the application has birth Certificate and Admission
Register of his school, Kumasi Modern International School and others. <o:p></o:p>It
must be pointed out that even though this application was served on the
Attorney-General’s Office, Accra, no effort was made by the office to put in any
representation in a serious matter of this nature, that is robbery.&nbsp; This court in the course of hearing the
motion was thus left unassisted by lack of representation by the
Attorney-General’s Office.<o:p></o:p>In
arguing the motion for adduction of fresh evidence, counsel for the applicant
was of the view that the evidence which was unearthed disclosed that the
applicant was indeed below eighteen years and the court which tried him lacked
jurisdiction and the sentence imposed there under was also without
jurisdiction.&nbsp; It was however pointed out
to counsel that the authorities have laid down the strict rules regulating the
procedure and basis for adduction of fresh evidence on appeal and drew the
attention of counsel to the current authorities on the law.&nbsp; It was first laid down in the oft-quoted case
of DOMBO &amp; ORS.&nbsp; V. NARH [1970] CC 68 CA in which the Court of
Appeal held that the principles should be strictly observed&nbsp; before the court must exercise its discretion
in granting the application.<o:p></o:p>The
Court of Appeal laid down the Basic principles as follows:-<o:p></o:p>(i).&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The evidence must be evidence which was
not available at the trial.<o:p></o:p>(ii).&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; It must be evidence relevant to the issue.<o:p></o:p>(iii).&nbsp;&nbsp;&nbsp;&nbsp; It must be credible evidence, ie. well
capable of belief.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>(iv).&nbsp;&nbsp;&nbsp;&nbsp; If the evidence is admitted, the court
will, after considering it, go on to consider whether there might have been a reasonable
doubt as to the guilt of the appellant if that evidence have been given
together with other evidence at the trial.<o:p></o:p>It
must be pointed out that the onus is squarely on any applicant for adduction of
fresh evidence to satisfy the court on all the above laid down principles.<o:p></o:p>The
recent case of POKU V. POKU [2007-2008]
SCGLR 996 reaffirmed the above laid down principles after the Supreme Court reviewed
virtually all the known&nbsp; authorities on
the issue.<o:p></o:p>It
is clear in this application that all the exhibits which learned counsel for
the applicant relied on to persuade this court were indeed available at the
trial.&nbsp; A Birth Certificate and School
records obviously were all available at the time the applicant was arraigned at
the trial Court.&nbsp; The Court of Appeal in
their ruling also formed the view that the basic requirements for adduction of
fresh evidence had not been satisfied and proceeded to dismiss the application.<o:p></o:p>I
have also considered these exhibits and I have come to the same conclusion that
these exhibits were available at the time of the trial.&nbsp; Indeed, learned counsel for th</main>