MORKOR

V.

KUMA

(1999) JELR 68188 (SC)

SUPREME COURT · 10 FEB 1999 · GHANA

OTHER CITATIONS

[1999-2000] 1 GLR 69; [1998-99] SCGLR 620

CORAM

EDWARD WIREDU JSC, KPEGAH JSC, ADJABENG JSC, ACQUAH JSC, AKUFFO JSC

CORE TERMSBETA

high courtrecord of appealfurther evidencebrief summary of the background of this applicationsummary

judgmentcourt of appealcivil appealsupreme court rulessaid exhibit showsnew evidencemr
matanawuiapplicantmanaging director of the companyrules of proceduresupport of his original
actionleave of the courtexhibit cinterest of justicefresh evidencedue diligencerulesfirst timeeast coast
fisheries ltdset asiderecord of appeal showsproper partytransmission of the record of appealcontrol of
proceedingsfirst defendantpower of the supreme courtnew evidence relativeciaffidavitample
opportunityrespondentlong timesuch jurisdictionevidencepart of the record of appealapplicant’s
affidavitmajority decisioncounselsaid writmr seth matanawuihearing of the original actionlegal
counselsamuel nii okai quayenotice of motiondelivery of the courthearing of the summonslegal
representation

AKUFFO JSC.: 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.

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.

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, sub rules (1) and (2) of which read as follows:

“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.
(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.”

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.”

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 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) of CI 16 was created.

It is, therefore, necessary to examine the basis for this application to ascertain whether or not these
essential requirements of rule 76 of CI 16 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 the application is
that the summary judgment in the High Court was obtained by fraud perpetrated upon the applicant by
the respondent and his counsel, Mr Matanawui, which fraud has benefited the respondent. The facts
deposed to support this are that:
(a) East Coast Fisheries Ltd was incorporated in 1989 with four subscribers each holding 25% of the
shares and Mr Seth Matanawui, counsel for the respondent, is one of these founding fathers. He is also
a director as well as the company secretary. Said counsel was also at one time the applicant’s legal
counsel.

(b) Before the hearing of the summons, the respondent and Mr Matanawui approached the applicant
with the intimation that the respondent only needed the judgment to convince his principals that he
was making due efforts to recover the debt. Mr Matanawui also assured her that the judgment, when
obtained, would not be enforced. Therefore, she did not file an affidavit in opposition to the summons
and did not bother to attend court on the hearing date.

(c) The applicant became aware that Mr Matanawui was counsel for the respondent only after the
judgment was obtained and she realised she had been deceived only when the respondent took out a
writ of fifa to execute the judgment. Owing to the shock she received when she realised the gravity of
the position in which she had been placed, she suffered a stroke which left her bedridden, speechless
and amnesiac for a long time during which she was unable to instruct her lawyer or participate fully in
the litigation. Her son, who did not know the full facts, represented her and the company’s interests in
the matter.

(d) during certain contempt proceedings in the case at the High Court, an objection was raised on behalf
of the applicant to Mr Matanawui representing the respondent against the first defendant. Said counsel,
therefore, filed a notice of withdrawal as solicitor, but reappeared to represent the respondent before
the Court of Appeal and this court.

With regard to the first hurdle, the issues raised in the appeal are whether the appeal to the Court of
Appeal was statute-barred; whether the Court of Appeal was right in lifting the veil of incorporation, and
whether the applicant herein was a proper party to the suit. All things being equal, it might conceivably
be possible for us to conclude that, in view of the question of fraud raised by the applicant’s affidavit, it
would be in the interest of justice to allow the evidence to be adduced, since the fraud, if proven, would
make the judgment impeachable. However, it is quite clear that none of the acts deposed to in the
affidavit may be described as new evidence for the purposes of overcoming the second hurdle posed by
rule 76(2) of CI 16. To begin with, it is not entirely correct that there was no affidavit filed in opposition
to the summons for judgment. The record of appeal shows that on 26 March 1991 such an affidavit was
filed, which had been deposed to by one of the directors of the company, Samuel Nii Okai Quaye (who is
apparently the son of the applicant), on behalf of the company and the applicant. It is not part of the
applicant’s case that she had no knowledge of this fact. Additionally, from the record of appeal and from
exhibit C annexed to her affidavit, it also cannot be correct that it was when the respondent took out a
writ of fifa that the applicant realised the deception perpetrated on her. The said exhibit shows that the
said writ was issued on 18 December 1992. By that date, the proceedings to set aside the judgment had
been concluded. In any event, it is not the mark of a diligent litigant not to know who is the legal counsel
for the other party until so late in the day.

Although it appears from the record that, up until the entry of summary judgment, the company and the
applicant had no legal representation, they subsequently appointed a solicitor who, on 5 July 1991 filed
a notice of appointment of solicitor. Thereafter, the motion to set aside was filed to set aside the
summary judgment. That motion was supported by the affidavit of the said Quaye, swearing (once
again) on behalf of the defendant company and the applicant. Indeed, prior to that application, an
application for stay of execution and payment by instalments had been filed by the solicitor, but was
later withdrawn. The record also shows that the applicants ardently pursued the application to set aside
and, even though the same was dismissed, the summary judgment was varied in their favour.

It is clear, therefore, that it was shortly after the delivery of the summary judgment that the applicant
realised that all was not well and in accord with the assurances she had been given. Thus, even if at the
time of the hearing of the summons the applicant was still labouring under a false sense of security
engendered by the assurances given by the respondent and his counsel, it had dissipated by the time
the motion was filed to set aside the summary judgment, otherwise the applicant would not have thus
proceeded. Throughout the latter proceedings, she was already in possession of the facts, which she
now seeks leave to adduce as new evidence. Furthermore, exhibit E, annexed to the affidavit in support
of this application, makes it quite clear that the applicant suffered her stroke on 11 November 1991.
Therefore, no matter how physically and mentally debilitating her stroke was, until the day it occurred,
she had ample opportunity to bring to the attention of the High Court, the evidence of fraud and
double-dealings. Certainly,. that evidence might have constituted a formidable ground for the motion to
set aside the judgment.

In our view the evidence sought to be adduced by the applicant is not admissible under rule 76 of CI 16,
and we, therefore, do not have the power to grant the applicant leave to adduce same. If, indeed, the
summary judgment was obtained by fraud (which has been denied by both the respondent and his
counsel in their respective affidavits in opposition) the addiction of fresh evidence will not be the correct
mode of seeking redress, in the circumstances of this matter.

The application is therefore without merit and must be dismissed.