BARIBEERA KOOTE & ANOR v. MADAM NWINDEE SUNDAY NAMON
(2019)LCN/12518(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of January, 2019
CA/PH/449/2012(R)
RATIO
EVIDENCE: WHERE FRESH EVIDENCE IS SOUGHT
“This Court gave its own interpretation of fresh evidence on appeal via the pronouncement of OREDOLA J.C.A. in MRS. SALOME EDE V. MRS. MARIA CHITA (2016) LPELR 41031 on page 19 paragraph C thus: –
It is trite law that the evidence sought to be adduced as fresh evidence must be apparently credible in the sense that it is capable of being believed and need not be incontrovertible. Thus from the definitions of fresh evidence by the apex Court and this Court above fresh evidence have the quality of newness or have been newly available or obtained. However, it must be credible, capable of being believed and need not be incontrovertible.”PER BITRUS GYARAZAMA SANGA, J.C.A.
JUSTICE
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
Text
1. BARIBEERA KOOTE
2. BARIBOR KOOTE
(For themselves and as representing Kootee Piinem Family of Kegbara Dere)Appellant(s)
AND
MADAM NWINDEE SUNDAY NAMON
(For herself and as representing the Giogo Domgbara Family of Kegbara Dere)Respondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Lead Ruling):
J. T. KPAKOL, Esq. of counsel to the Respondent/Applicant filed a Motion on Notice dated and filed on 9th June, 2016 seeking for the following reliefs: –
(a) Leave of this Hon. Court to adduce fresh evidence in this appeal.
(b) For such further order this Court may deem fit to make.
The grounds for seeking the reliefs are: –
1: In Suit No. CCK/127A/1990 Nwindee Namon Vs Baribeera Koote and another, the Respondent filed an action against the Appellants in the Customary Court, Kpor, in the Gokana Local Government Area of Rivers State.
2: The Respondents discontinued this suit on 5/5/2006.
3: The Respondent filed Suit No. BHC/29/2006 which led to this appeal on 17/5/2006.
4: As at the time the Respondent filed Suit No. BHC/29/2006, Suit No. CCK/127A/90 was no longer pending in the Customary Court.
5: The Appellants were aware that Suit No. CCK/127A/90 was discontinued by the Respondent before the Respondent filed this Suit.
6: The Respondent after discontinuing Suit No. CCK/127A/90 in the Customary Court Kpor, Gokana, Rivers State kept the Notice of Discontinuance and did not give same to her counsel.
7: The Respondent only discovered that she ought to have given the Notice of Discontinuance in Suit No. CCK/127A/90 in February, 2016, after the Appellants have filed their Brief of Arguments.
8: The fresh evidence, the Notice of Discontinuance will show that Suit No. BHC/29/2006 Nwindee Sunday Namon Vs Baribeera Koote & Anor was not filed during the pending Suit No. CCK/127A/90.
9: The fresh evidence, the Notice of Discontinuance will show that Suit No. BHC/29/2006 Nwindee Sunday Namon Vs Baribeera Koote & Anor which led to this appeal was not an abuse of the Courts process.
10: The Notice of Discontinuance in Suit No. CCK/127A/90 will answer the issue raised by the Appellants that Suit No. BHC/29/2006 Nwindee Sunday Namon Vs Baribeera Koote & Anor is an abuse of the Courts process.
11: The Appellants will not in any way be prejudiced if this application is granted as they are aware that Suit No. CCK/127A/90 was discontinued before Suit No. BHC/29/2006 was filed.
12: Justice will be done if this application is granted.
Attached to the application is a 12 paragraph affidavit in support deposed to by the applicant. The Notice of Discontinuance dated 5th May, 2006 signed by applicant issued by the Customary Court Gokana is attached to the affidavit in support and marked as Exhibit A.
On being served with the motion paper GOBARI DEEBOM Esq. of counsel to the Appellants/Respondents filed a 10 paragraph counter affidavit deposed to by the 1st appellant/respondent on 17th June, 2016. The Applicant then deposed to a Further and Better Affidavit on 16th March, 2017. In view of the conflict in the affidavit this Court ordered parties to file Written Addresses.
Learned counsel to the applicant formulated one issue for determination of this Court in their address as follows: –
Whether the Respondent has placed sufficient materials before this Court to enable it grant this application.
Learned counsel started by urging this Court to discountenance paragraphs 5(b), (c), 6, 7 and 8 of the counter affidavit of the appellants for being contrary to the provisions of Section 115(2) of the Evidence Act as they constitute legal arguments and/or conclusions. Cited the holding of UWAIS C.J.N in A. G. ADAMAWA STATE V. A. G. FEDERATION & ORS (2005) 18 NWLR {Pt. 958} 581 at 625 paragraphs F G. That if paragraphs 5(b), (c), 6, 7 and 8 of the Counter Affidavit are struck out the remaining paragraphs do not constitute a challenge to the depositions of the applicant in the affidavit in support of the motion. Learned counsel then paraphrased paragraphs 2 11 of the affidavit in support and paragraphs 2 4 of the further affidavit as follows: –
1: The Applicant filed Suit No. CCK/127A/90- Nwindee Namon -Vs- Baribeera Kootee & Anor at the Customary Court Kpor, Gokana Local Government Area of Rivers State.
2: The Applicant discontinued Suit No. CCK/127A/ 90 in the Customary Court Kpor. The Notice of Discontinuance is attached as Exhibit A to the applicants motion paper.
3: On 17th May, 2006 the applicant filed Suit No. BHC/29/2006 which led to this appeal.
4: After filing Exhibit A the Applicant kept it and only gave her counsel in 2016 on the mistaken belief that it is not important.
That if this application is allowed and the applicant uses Exhibit A, it will show clearly that contrary to the contention of the appellants, Suit No. BHC/29/2006 which led to this appeal is not an abuse of Court process. That Exhibit A is Material and Weighty to show that the applicant discontinued Suit No. CCK/127A/90 at the Customary Court Kpor, Gokana Local Government Area of Rivers State before filing Suit No. BHC/29/2006. That Exhibit A is a credible document as it is a certified true copy of the process of Customary Court Kpor.
That the special circumstances or ground upon which this Court can exercise its power to receive further additional or fresh evidence on appeal include:
a) If the fresh evidence is admitted, it will have an impact but not necessarily a crucial effect on the whole case.
b) If the evidence sought to be adduced is such that it is apparently credible, in the sense that it is capable of being believed even if it may not be incontrovertible.
c) The evidence must be material and weighty even if not conclusive.
Cited: ONWUBUARIRI V. IGBO ASOIYI (2011) 3 NWLR {Pt. 1234} 357 at 381 paragraphs A D; per ONNOGHEN JSC (now CJN); OWATA V. ANYIGOR (1993) 2 NWLR {Pt. 276} 380.
Learned counsel submitted further that the appellant/ respondent did not effectively counter paragraph 4 of the applicants deposition which deposed that they are aware that the said applicant discontinued Suit No. CCK/127A/90 before the Customary Court Kpor before filing Suit No. BHC/29/2006 at Bori High Court. That the facts deposed to in paragraph 6 of the affidavit in support of the motion remained unchallenged and uncontroverted thus deemed admitted by the appellants. Urged this Court to so hold and cited in support the authority of OLA V. UNILORIN (2014) 15 NWLR {Pt. 1431} 453 at 470.
That paragraphs 7 11 of the applicants affidavit in support showed that she detected an error in the proceedings in the lower Court which if corrected by this Court will show that she so discontinued Suit No. CCK/127A/90 before she filed
Suit No. BHC/29/2006. That this application is to correct that error and this Court should not deny the applicant the opportunity to correct her error. Cited: ODU V. FAWEHINMI (2005) 15 NWLR {Pt. 949} 578 at 602; NALSA & TEAM ASSOCIATES V. NNPC (1991) 8 NWLR {Pt. 212} 652.
On the deposition by the appellants in paragraph 4(b) of their counter affidavit, learned counsel to the applicant submitted that the only way the appellants can establish that when Suit No. BHC/29/2006 was filed, trial had commenced before the Customary Court in Suit No. CCK/127A/90 is to exhibit the record of proceedings in Suit No. CCK/127A/90 to their counter affidavit. Learned counsel urged the Court to grant the application as the applicant has placed sufficient materials before this Court to enable it grant same.
In their written address the appellants counsel formulated one issue as follows: –
Whether the Applicant has satisfied the requirement of the law for this Honourable Court to grant this application.
In his submission, learned counsel argued that the applicant initiated this suit before the Customary Court Kpor in Suit No. CCK/127A/90 against the appellants.
That the matter was at hearing stage and the Customary Court Kpor visited the locus in quo and adjourned for further evidence. That the applicant was apprehensive of the outcome of the suit so she abandoned it and quickly filed the present suit before the Bori High Court in Suit No. BHC/29/2006, against the same appellant over the same res with same relief without knowing that she ought to discontinue the one pending before the Customary Court. That the applicant did not informed the Customary Court of her intention to discontinue the suit before it. Learned counsel referred the Court to paragraphs 4(a), (b), (c), (d), (e) and (f) of their counter affidavit.
That assuming, without conceding the applicant had discontinued her suit before the Customary Court the proper process she should have filed is the record of proceedings of the said Customary Court showing that she have discontinued the suit. That the proper order the Customary Court would have issued is of dismissal since evidence was adduced by the parties before it. Cited IZIEME V. NDOKWU (1976) 1 NMLR 280. That learned counsel to the applicant in their written address merely denied paragraphs 4(b), (d), 6, 7 and 8 of the appellants counter affidavit.
That by implication it means the applicant admitted paragraphs 4(a), (c), (e) and 5(a) of the appellants counter affidavit. That facts admitted need no further proof. Cited: Section 123 of the Evidence Act and: CARDOSO V. DANIEL (1986) 2 NWLR {Pt. 20}1 at 43; MADUABU CHUKWU V. UMUNAKWE (1990) 2 NWLR {Pt. 134} 607; OLUBODE V. OYESINA (1977) 5 S.C. 79; DIN V. AFRICAN NEWSPAPER OF NIGERIA LIMITED (1990) 3 NWLR {Pt. 139} 392 at 395 396; IGWE v. A. C. B. PLC (1996) 6 NWLR {Pt. 605} 1 at 11.
That even if paragraphs 5(b), (c), 6, 7 and 8 of the appellants counter affidavit is to be discountenanced for being contrary to Section 115(2) of the Evidence Act as argued by the applicant; paragraphs 4(a), (c), (e), (f) and 5(a) of the said counter affidavit are weighty, and material, and sufficient for the Court to relied (sic) on same to refuse this application. That the applicant is a literate person who understand everything that transpired in her case from the Customary Court Kpor to the Bori High Court. That Exhibit A never existed. That being literate and having given her counsel all the necessary documents to enable him file this suit the applicant ought to have given her counsel exhibit A also as part of the documents to be front loaded before the lower Court. That the applicant ought to have amended her process to bring in the said document after her cross examination if the document existed.
That the document was not pleaded before the trial Court, neither did it reflect in the evidence of the applicant. Learned counsel cited and quoted Order 32 Rule 1 Sub-Rules (1), (2), (3) and (4) of the High Court of Rivers State (Civil Procedure) Rules, 2010. That this application did not comply with the Rules of this Court contained in Order 4 Rules 2 of the Court of Appeal Rules, 2016 which learned counsel also quoted verbatim. Learned counsel submitted that Exhibit A has been in existence even before the Suit No. BHC/29/2006 was initiated by the applicant. That Order 4 Rule 2 of the Rules of this Court refer to evidence as to matters which have occurred after the date of the trial or hearing (except on special grounds)” which is not so in this application.
That the purported document is concocted for the purpose of this appeal and is not admissible by this Hon. Court having failed in law to satisfy the requirements for the admissibility of fresh evidence on appeal. That it is trite law that where evidence is available and could, with reasonable care and diligence be made available to the applicant at the time of trial, this Court will refuse to exercise its discretion in favour of receiving such evidence. However, if the applicant had referred to the document in her pleading but did not tender it (which is not the case in application) then this Court can admit it. Cited: ADEGBITE & ANOR V. AMOSU (2016) 15 NWLR {Pt. 1536} 405 at 427 428; ADELEKE V. ASERIFA (1990) 3 NWLR {Pt. 136} 94. That in ADEGBITE & ANOR V. AMOSU (Supra) the Court listed what constitutes special grounds that can warrant an appellate Court to admit additional evidence of facts on appeal. That the evidence sought to be admitted by the applicant does not qualify as such evidence that could not have been produced at the trial Court with reasonable diligence as in the instant application. Cited: BRITISH AIRWAYS PLC V. AMADI (2012) 2 NWLR {Pt. 1283} 21 at 47 48; OKORO V. EGBUOH (2006) 15 NWLR {Pt. 1001} 1; U.B.A. PLC V. BTL LTD (2005) 10 NWLR {Pt. 933} 356. Learned counsel urged the Court to refuse this application. I have gone through the applicants Reply on Points of Law and will refer to it in this ruling of the need arise.
FINDINGS:
I will adopt the issue canvassed by learned counsel to the Appellants in arriving at my decision on this application. The issue reads thus: –
Whether the Respondent/Applicant has satisfied the requirement of the law for this Hon. Court to grant this application.
What is the law and what is the requirement of the law that can convince this Court to grant this application? The law is found in Order 4 Rule 2 of the Court of Appeal Rules, 2016 which provides as follows: –
The Court shall have power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit, or by deposition taken before an Examiner or Commissioner as the Court may direct, but, in the case of an appeal, from a judgment after trial, or hearing of any cause or matter on the merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.
The application before us is seeking to adduce fresh evidence on appeal. Fresh evidence was define by the Supreme Court in CHIEF PHILIP O. ANATOGU & ORS V. H. R. H. IGWE IWEKA II & ORS (1995) LPELR 484 per OGUNDARE, JSC as follows: –
Now what is fresh evidence and in what circumstances can it be given? A definition of the expression is given by Morris L.J. in R -V- Medical Appeal Tribunal (North Midland Region), Ex parte Hybble (1959) 3 All E. R. 4047 thus: Fresh evidence it seems to me, must have the quality of newness, or the feature of having become newly available and obtainable.
This Court gave its own interpretation of fresh evidence on appeal via the pronouncement of OREDOLA J.C.A. in MRS. SALOME EDE V. MRS. MARIA CHITA (2016) LPELR 41031 on page 19 paragraph C thus: –
It is trite law that the evidence sought to be adduced as fresh evidence must be apparently credible in the sense that it is capable of being believed and need not be incontrovertible.
Thus from the definitions of fresh evidence by the apex Court and this Court above fresh evidence have the quality of newness or have been newly available or obtained. However, it must be credible, capable of being believed and need not be incontrovertible.
It is obvious that the fresh evidence sought to be introduced in this appeal by the Applicant is new and was available and became obtainable after judgment was delivered by the lower Court. The question is: Is it credible and capable of being believed? The answer is in the document itself marked as Exhibit A to the applicants accompanying affidavit in support. It is a certified true copy of a Notice of Discontinuance in the Suit No. CCK/127A/90. Between: NWINDEE NAMON PLAINTIFF V. BARIBEERA KOOTE 2; BARIBOR KOOTE DEFENDANTS before the Customary Court Holden at KPOR. It states plainly that: –
The Plaintiff, NWINDEE NAMON wishes to discontinue this case against the defendants.
It is dated 5th Day of May, 2006, and signed by the plaintiff.
In her affidavit in support of this application the deponent deposed, inter alia, in paragraphs 2 to 11 that she filed Suit No. CCK/127A/90 against the appellants before the Customary Court Kpor. On 5/5/06 she went to the said Customary Court and discontinued the suit. After that she filed Suit No. BHC/29/2006 before the Bori High Court on 17/05/2006 against the same parties which was heard and judgment entered in her favour. The Defendants were aggrieved with the judgment and filed this appeal. That she forgot to give her counsel the Notice of Discontinuance of Suit No. CCK/127A/90 because it never occurred to her that she ought to have given him a copy. That on 7th February, 2016 at her counsels office he told her that Appellants counsel filed their Brief of Argument in respect to this appeal. That: –
10: That while I was with my counsel, and upon inquiring from him I told him that I had discontinued Suit No. CCK/127A/90 on 5/5/2006.
11: That after telling my counsel that I had discontinued Suit No. CCK/127A/90, he directed me to go and get a Certified True Copy of the Notice of Discontinuance which I subsequently did on 23/2/2016 and I later gave my counsel Exhibit A.
The deposition of the applicant showed the circumstances which necessitates the introduction of Exhibit A at this appellate stage. It is obvious that this document is new and was newly obtained by the applicant. It is also, credible and capable of being believed despite the aspersions cast on its genuineness by the appellants in their counter affidavit. I am not unaware of the provision of Order 4 Rule 2 of the Rules of this Court, 2016 (which I quoted above) which specifically said: ..in the case or matter on the merits, no such further evidence .shall be admitted except on special grounds.
The question that needs an answer is: can this application be considered as having met the requirement of special ground or special circumstances that met the requirement of Order 4 Rule 2 of the Rules of this Court 2016? This question was clarified by the Supreme Court in BARTHOLOMEW ONWUBUARIRI & ORS V. ISAAC IGBOASOIYI & ORS (2011) LPELR 754 per ONNOGHEN JSC (now CJN) on pages 19 20 paragraphs C A as follows: –
The special grounds/circumstances under which the Court of Appeal or appellate Court can exercise its power to receive further/additional/fresh evidence on appeal include the following:
(a) The evidence sought to be adduced should be such that it could not have been obtained with reasonable care and diligence for use at the trial;
(b) If the fresh evidence is admitted, it will have an impact but not necessarily crucial effect on the whole case;
(c) If the evidence sought to be adduced is such that it is apparently credible in the sense that, it is capable of being believed even if it may not be incontrovertible;
(d) If the evidence sought to be adduced could have influenced the judgment at the lower Court in favour of the applicant if it had been available at the trial Court;
(e) The evidence must be material and weighty even if not conclusive, see Owata v. Anyigor (1993) 2 NWLR {Pt. 276} 380.
It is obvious that the document sought to be tendered in this application met the requirements of special grounds/ circumstances under which this Court can exercise its discretion in favour of receiving it in evidence in this appeal as provided by Order 4 Rule 2 of the Court of Appeal Rules 2016 and the apex Courts decision in ONWUBUARIRI & ORS V. IGBOASOIYI (Supra).
It is therefore the decision of this Court that this application for leave to adduce fresh evidence in this appeal has merit and is granted as prayed.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Ruling of my learned brother, BITRUS GYARAZAMA SANGA JCA before it was delivered. I agree with the reasoning of my learned brother and the conclusion that the application is meritorious, consequent upon which I grant same as prayed.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I agree.
Appearances:
Gobari Deebom, Esq.For Appellant(s)
E.B. Chile-Moses, Esq.For Respondent(s)
