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June 12, 2025
SUPREME COURT
GHANA
CORAM
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 :
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, 23rd March 1970; digested in [1970] CC 68, CA; Antwi-Boasiako vs. Panin II 2013-2014 SGGLR page 264.
What is the applic
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KWOFIE JSC of the Supreme Court of Ghana determined a motion by a criminal appellant seeking leave to adduce fresh evidence at the hearing of his appeal under rule 76 of the Supreme Court Rules, 1996 (C.I. 16). The applicant, convicted of murder and sentenced to life imprisonment by the High Court, Accra, and unsuccessful on appeal to the Court of Appeal, argued that trespassers entered his home, a struggle for his gun led to an inadvertent discharge, and that his defence of property was not raised at trial. He sought to call Jemimia Henewaa Ahenkorah and invoked constitutional rights. Reiterating that fresh evidence on appeal is discouraged, the Court applied the rule 76 due-diligence requirement and the Gyasi framework, concluding the evidence and witness were available at trial and counsel’s failure reflected lack of diligence. Allowing the evidence would fill gaps and rebuild a collapsed case. The application was refused.