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.