RULING

KWOFIE JSC.

This is a motion on notice for leave to adduce fresh evidence at the hearing of this appeal, pursuant to rule 76 of the Supreme Court Rules, 1996 (C.I. 16) which provides as follows:

76 New Evidence

(1) A party to an appeal before the Court is not entitled to adduce new evidence in support of the 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) Evidence shall not 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

(3) Evidence may be given by oral examination in court, by an affidavit or by deposition taken before an examiner as directed by the court

From this rule, it is obvious that the major requirement is that the evidence sought to be led should not have been available during the original trial. If it was available, then it should have been led at the trial. The fundamental position arising from this rule is that the adduction of fresh evidence in an appeal is discouraged.

Therefore, for this court to permit the adducing of new evidence, that evidence should be relevant to the issue before this court and in the interest of justice. The court also has to be satisfied that with due diligence or enquiry the evidence sought to be led could not have been made available to the applicant before or during the original trial and indeed that the evidence was not available.

See: Poku vs. Poku (2007-2008) SCGLR, Also in the case of Gyasi vs. The Republic (2013-2014) 1 SCGLR 410 it was held by this court that :

1)The onus is squarely on any applicant for adduction of fresh evidence on an appeal, to satisfy the appellate court on all the laid-down principles namely: i) The evidence must be evidence which was not available at the trial; ii) It must be evidence relevant to the issue; iii) It must be credible evidence, i.e. well capable of belief; and iv) 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 had been given together with other evidence at the trial.

Also see **Dombo vs. Narh Court of Appeal, 23 rd March 1970; digested in [1970] CC 68, CA; Antwi