What is good for the goose is not always good for the gander. This is what the Supreme Court appears to be saying regarding presenting fresh evidence on appeal.
The law on appeals is that the evidence presented to the appellate court must be the same as the evidence presented to the court whose decision is being appealed. However, it is not unusual for the party appealing to seek to bring fresh evidence before the appellate court. The reason for this may range from inadvertence of the party or the lawyer to present to the evidence when they should, unavailability of the evidence at the time the matter was being heard, realisation that the said evidence is necessary on hindsight, and many others.
The Court of Appeal Rules allow fresh evidence on appeal on two conditions. First is when it is in the interest of justice to do so, and, second, when the evidence only came to the knowledge of the party seeking to rely on it after the decision of the court below was given – Rule 26 of the Court of Appeal Rules, 1997, (C.I. 19).
The Supreme Court Rules expand the threshold above, and require the party seeking to rely on fresh evidence on appeal to satisfy the court that the evidence could not have been (and was not) available at the time of the hearing at the court below, even with due diligence and enquiry – Rule 76 of the Supreme Court Rules, 1996, (C.I. 16).
Flowing from the above, the decision on whether to allow a party to rely on fresh evidence on appeal, is at the discretion of the appellate courts.
The Supreme Court has (through case law) provided guidelines to assist appellate courts in exercising this discretion. In the case of the Court of Appeal, the party seeking to rely on the fresh evidence must first show that they did not or could not have had the evidence at the time the matter was being heard at the court below. If this requirement is met, then the Court of Appeal can proceed to determine whether the fresh evidence will have any bearing on the appeal. The Supreme Court summarised this test in Poku v Poku , as follows:
"in an application to lead fresh or new evidence before the Court of Appeal, the first criterion, which an applicant ought to establish, was whether the evidence sought to be adduced, was neither in the possession of the applicant nor obtainable by the exercise of reasonable diligence or human ingenuity before the impugned decision was given by the lower court. It was only when that first hurdle had been surmounted, that the court should proceed to determine the other pertinent question of whether or not the intended evidence would have a positive effect on the outcome. If the first criterion was not met, no useful purpose would be served by examining the other factors"
The requirements to be satisfied when the appeal is before the Supreme Court are the same as that of the Court of Appeal.
In Rev. Rocher De-Graft Sefa & Anor. v Bank Of Ghana & Anor.; Samuel Gyamfi v. Bank of Ghana & Anor. , the Supreme Court set out the criteria for relying on fresh evidence on appeal under Rule 76 of C.I. 16 as follows:
- The evidence was not available to the applicant at the trial;
- The evidence could not have been obtained by the applicant upon reasonable diligence for use at the trial;
- 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;
- The evidence is such as is presumably to be believed, or of a sort which is inherently not improbable.
In all the above scenarios, the Supreme Court did not distinguish between an application for leave to present fresh evidence on appeal by the party who appealed and the party who did not appeal. Rule 26 of C.I. 19 and Rule 76 of C.I. 16 also do not differentiate between an Appellant and a Respondent. Both rules use the generic term "a party". Thus, one may assume that the criteria for granting leave to adduce fresh evidence on appeal are the same whether the application is by the Appellant or the Respondent.
However, in Ogyeedom Obranum Kwesi Atta VI v Ghana Telecom Co. Ltd & Another, the Supreme Court introduced a new twist to the requirements for adducing fresh evidence on appeal. In this case, the party who did not appeal, was the one who applied for leave to present fresh evidence on appeal. This was after the court had granted leave to the party who appealed to present fresh evidence. In granting the application, the Supreme Court held that a party who did not appeal against a decision would only be allowed to present fresh evidence if the party who appealed had already been allowed to present fresh evidence, and the party who did not appeal needed to also present fresh evidence in rebuttal. This decision of the Supreme Court implies that if a party did not appeal against a decision, that party cannot successfully apply to present fresh evidence if the party who appealed has not been permitted to present fresh evidence. In the words of the Supreme Court:
"Where the applicant in an application to adduce fresh evidence on appeal is the Respondent to the appeal, such an applicant must demonstrate, as a precondition that the Respondent to the application has been granted leave to adduce fresh evidence, and that unless the applicant is also given an opportunity to adduce fresh evidence in rebuttal, the new evidence of the Respondent is likely to occasion new findings by this court which may result in overturning the judgment appealed" (Emphasis added).
From the above, before the appellate courts apply the requirements in the Poku and Rev Rocher line of cases above, the party who did not appeal but wants to adduce fresh evidence must first show that the party who appealed has already been allowed to present fresh evidence.
It appears that in coming to this decision, the Supreme Court assumed that if the party who did not appeal succeeded on the evidence they presented at the court below, there would be no need for additional evidence on appeal, especially when the party who appealed has not been allowed to present fresh evidence. Interestingly, the Supreme Court did not provide any authority to support its position; nor did the Supreme Court rely on case law from other jurisdictions. It seems that the Supreme Court "made" the law because it took the position that there was no local statute or precedent guiding such a scenario.
The Supreme Court also did not advert its mind to a situation where the Appellant may have won at the court below on liability, but unhappy with the quantum of damages awarded. In such a case, the Appellant may not need to present any fresh evidence to the court on why they are entitled to more money. But the party not appealing may need to, to show why the entire decision might be wrong, or why the damages should not be varied.
Imagine another scenario where a document that could determine the case was in the possession of the Appellant, who hid it from the Respondent during the trial because it was detrimental to the Appellant's case. Even if the Respondent now finds the document on appeal, if the Appellant has not asked for leave to present fresh evidence, the Respondent cannot present the document as fresh evidence.
The Supreme Court's decision is therefore concerning. This is because it cuts out any opportunity for the party who did not appeal to present fresh evidence even if they meet the criteria under the Poku and Rev Rocher line of cases, only because the party who appealed does not meet that criteria or does not have any evidence to present.
It can be argued strongly that a fairer approach might be that in determining whether to permit a party to present fresh evidence on appeal, the underlying factor should be whether it would be in the interest of justice, in addition to the grounds contained in Rule 26 of C.I. 19, and Rule 76 of C.I. 16. This position is supported by the fact that the Court of Appeal and Supreme Court rules on adducing fresh evidence do not differentiate between an Appellant and a Respondent. And the position the Supreme Court took also appeared not to be based on any authority (whether binding or persuasive).
In researching for this article, we did not find any other court case where the Ogyeedom case was relied on or applied. We also did not find any authority from another jurisdiction where the position taken by the Supreme Court was applied.
It therefore seems that the additional threshold the Supreme Court introduced in the Ogyeedom case was not a hit, but a miss. The unconscious outcome is that the position is likely to cause an injustice to a Respondent to an appeal who has good reason to want to present fresh evidence on appeal.
*Reviewed by David A. Asiedu, an Executive in Ghana
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
