Cocker v Cocker [2002] TOLawRp 1; [2002] Tonga LR 249 (17 January 2002)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 8/01

Cocker

v

Cocker anor

Ward CJ
17 January 2002; 17 January 2002

Practice and procedure — application to call fresh evidence - dismissed

The appellant lodged an appeal against a decision of the Land Court that dismissed his claim. The evidence that the appellant sought to call related to an allegation that a signature on a document exhibited at the trial in the court below was not genuine and that the plaintiff's father had been subjected to undue influence over the allotment. Neither matter was pleaded and neither was raised at the trial. Counsel for the appellant, who did not appear in the court below, said that these matters were always part of the instructions in the case and could give no explanation why they were not included in the claim. The claim was dismissed on the grounds that it was statute barred as being outside the limitation period set by section 170 of the Land Act. The appellant applied for leave to call fresh evidence at the appeal.

Held:

1. There were three conditions that must be fulfilled before fresh evidence could be admitted. The first was that it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be apparently credible, though it need not be incontrovertible. The first two of these conditions were not satisfied.

2. There was a more fundamental problem if the evidence was to be admitted. As it was not pleaded, it was more than a case of producing fresh evidence of a matter the court had already considered. It would mean that the defendants had, at the appeal, to face a totally new line of attack from the plaintiff.

3. The application to call fresh evidence was dismissed with costs to the respondents.

Cases considered:

Brown v Dean [1910] AC 273

Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489

The Tasmania [1890] 15 App Case 223

Statute considered:

Land Act (Cap 132)

Rules considered:

Court of Appeal Rules

Counsel for applicant/appellant: Ms Helu
Counsel for respondent: Mrs Vaihu

Ruling

The appellant has lodged an appeal against a decision of the Land Court dismissing his claim. He now applies to the single judge for leave to call fresh evidence at the appeal.

The claim was dismissed on the grounds that it was statute barred as being outside the limitation period set by section 170 of the Land Act.

The evidence that the appellant seeks to call relates to an allegation that a signature on a document exhibited at the trial in the court below was not genuine and that the plaintiff's father had been subjected to undue influence over the allotment. Neither matter was pleaded and neither was raised at the trial.

Counsel for the appellant, who did not appear in the court below, says that these matters were always part of the instructions in the case and can give no explanation why they were not included in the claim.

I do not consider this court can take notice of such information. I note that the document upon which the disputed signature appears was produced by the plaintiff at the trial so he was clearly aware of the signature. There is no suggestion in the documents before the court that the undue influence was not known to the appellant at the time of the trial.

The basic principle to be applied by the courts when considering an application to call fresh evidence on appeal or in any other way to pursue a different case from that presented in the court of first instance was explained by Lord Loreburn LC in Brown v Dean [1910] AC 273:

"When a litigant has obtained a judgment in a Court of justice, whether it be a county court or one of the High Courts, he is by law not to be deprived of that judgment without very solid grounds; and where...the ground is the alleged discovery of new evidence, it must at least be such as is presumably to be believed...".

Brown v Dean was one of the cases considered in Ladd v Marshall [1954] EWCA Civ 1; [1954] 1 WLR 1489 when Denning LJ set out three principles which the court will apply when considering an application to call fresh evidence. At p 1491 he said:

"To justify the reception of fresh evidence ..., three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible."

In this case, it is clear that the evidence which the applicant seeks to adduce on the appeal was known at the time of the trial. As such, it fails the first of these conditions and, in view of the basis upon which the case was decided, the second.

However, I consider there is a more fundamental problem that would arise if such evidence was to be admitted. As this was not pleaded, it is more than a case of producing fresh evidence of a matter the court has already considered. It will mean that the defendants have, at the appeal, to face a totally new line of attack from the plaintiff.

In The Tasmania [1890] 15 App Case 223 it was stated that a point:

"not taken at the trial, and presented for the first time in the Court of Appeal ought to be most jealously scrutinised. The conduct of a cause at the trial is governed by, and the questions asked of the witnesses are directed to, the points then suggested. And it is obvious that no care is exercised in the elucidation of facts not material to them.

It appears to me that under these circumstances a Court of Appeal ought only to decide in favour of an appellant on a ground there put forward for the first time, if it be satisfied beyond doubt, first, that it had before it all the facts bearing on the new contention, as completely as would have been the case if the controversy had arisen at the trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them in the witness box."

That test has been strictly applied for good reason.

I do not consider the application in this case has any merit and it certainly fails any of the tests that should be applied.

The application to call fresh evidence is dismissed with costs to the respondents.

I would add that the judgment to be appealed was my own. I dealt with the case as the only appeal judge available and considered it better to allow the applicant a hearing inter partes. Order 7, rule 3 of the Court of Appeal Rules only allows the application to be renewed with the leave of the appeal court where it has been decided by the single judge without a hearing. As I was involved in the original case, despite the hearing I gave the parties, I would suggest that, if the appellant wishes to renew the application to the Court, he should be permitted to do so.