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BENIN JSC:-
Ordinarily, an application for leave to adduce fresh evidence on appeal, as in the instant, should pose no problem to the court to determine, for the criteria governing it have clearly been settled in a long line of cases decided at the highest level and by legislation, namely Supreme Court Rules, C.I.16, rule 76(1)(2). These criteria are:
i. The evidence was not available to the applicant at the trial;
ii. The evidence could not have been obtained by the applicant upon reasonable diligence for use at the trial;
iii. Had the evidence been adduced at the trial it would have had an important influence on the result of the case, although it need not be decisive;
iv. Such as is presumably to be believed, in other words evidence of a sort which is inherently not improbable.
The authors of Halsbury’s Laws of England, 5th edn. vol. 12, para. 1676 add a timely reminder that ‘these criteria need to be applied as guidelines rather than rules and subject to the overriding objective of dealing with cases justly. In addition the consequences of admitting the fresh evidence has to be taken into account’.
Rule 76(1) and (2) of C.I. 16 provide as follows:
(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 relevant 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.
Previous decisions on this subject all of which relied on the criteria set out above include Poku v. Poku (2007-2008) SCGLR 996; Ladd v. Marshall (1954) 1 W.L.R. 149 CA which was the leading case that established the principle; Foli and Others v. Agya-Atta and Others (Consolidated) (1976) 1 G.L.R. 194 CA.
However, all the cases I have been priviledged to read have turned on appeals in cases decided on merits in which some form of evidence was adduced at the trial. The factual situation in this case is entirely different in the sense that the case did not reach the trial stage, no evidence was adduced; it was a judgment obtained by default of appearance which is the subject of the appeal to this court. Thus all the cases referred to by both counsel and others that I have read cannot be relied on as clear authority. But the pr