RESURRECTION POWER INVESTMENT COMPANY LIMITED V. UNION BANK OF NIGERIA PLC (2013)

RESURRECTION POWER INVESTMENT COMPANY LIMITED V. UNION BANK OF NIGERIA PLC

(2013)LCN/6239(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 28th day of May, 2013

CA/E/193/2011

JUSTICE

MOJEED ADEKUNLE OWOADE justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU justice of The Court of Appeal of Nigeria

EMMANUEL AKOMAYE AGIM justice of The Court of Appeal of Nigeria

Between

RESURRECTION POWER INVESTMENT COMPANY LIMITEDAppellant(s)

AND

UNION BANK OF NIGERIA PLCRespondent(s)

RATIO

THE POWER OF THE COURT OF APPEAL TO RECEIVE FURTHER OR FRESH EVIDENCE ON QUESTIONS OF FACT IN APPEALS

The power of this court to receive further or fresh evidence on questions of fact in appeals before it is clearly provided in the above provisions of the Court of Appeal Rules 2011. It is noteworthy that the provisions do not state expressly the purpose for which and the circumstances when this power can be exercised by this court. It only indicates that it can be exercised in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits on special grounds. It is Rule 4 Order 4 of the said Rules that expressly state that the purpose for which the power shall be exercised is to ensure the determination of the merits of the real question in controversy between the parties. It states that:
“The power of the court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the court below, or by any particular party to the proceedings in that court or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court may make any order on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”
It is clear from the above provisions of Order 4 Rules 2 and 4 that the power of this court to allow further or fresh evidence on appeal should be exercised sparingly and only in furtherance of justice. The Supreme Court in OKPANUM V. S.C.E (NIG) LTD (1998) 7 NWLR (Pt. 599) 537 at 554 – 554 held that “The exercise of the discretion to adduce fresh evidence should be strictly guarded. This is because, even though a court is always anxious to arrive at the truth, there are rules governing trials of actions. These, rules lead to the conclusion that once the trial takes place, prima facie further evidence should not be allowed to be called unless a strong case had been made out for so doing.” The Court in exercising that power must bear in mind the fundamental principle that it is in the public interest that there should be an end to litigation which is often expressed in the popular latin maxim, republicae ut sit finis litium. This is to ensure that access to justice is not frustrated and administration of justice is not brought to disrepute. In EHINLANWO V. OKE (2008) 16 NWLR (Pt. 113) 357 at 384-385, the Supreme Court held
“When judgment has been given in a case, parties with the advantage of what the court said in the judgment get a new awareness of what they might have done better or not done at all. If the court were left open for everyone who has fought and lost a case at the court of Trial to bring new evidence on appeal, there would be no end to litigation and all the parties would be worse for the situation. Human experience shows that one often gets wiser after an event.” PER AGIM, J.C.A.

IMPLICATION OF A LETTER OR CORRESPONDENCE MARKED “WITHOUT PREJUDICE”

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Lead Ruling): On the 30th June, 2011 the Federal High court sitting at Enugu, per D.V. Agishi J. rendered judgment in suit No. FHC/EN/CP.1/2010 ordering that the appellant herein be wound up. Dissatisfied with this judgment, the appellant commenced this appeal No. CA/E/193/2011 by filing a notice of appeal dated 4-7-2011 and filed on 8th August 2011. Both sides have filed and exchanged briefs of argument. The appeal thereby became ripe for hearing. Before it could be argued and briefs adopted, the appellant on the 27th March 2012 filed a motion on notice dated 23rd March 2012 praying for “AN ORDER of this Honourable court granting to the Applicant/Appellant leave to adduce fresh evidence on appeal, to wit processes, counter-affidavit, Statement of Defence, Witness Statement on Oath and other processes/Documents filed and used by the respondent ostensibly on behalf of the appellant in suit No: LD/1313/08, SHANGAI TRISUM INTERNATIONAL COMPANY LIMITED V. UNION BANK involving the issue relating to this proceedings.”
It is supported by a 13 paragraphs affidavit and a photo copy of the certified true copy of a bundle of documents referred to as exhibits A, B, C, and D in paragraphs 6(d), 6(g)(v), 6(g)(vi) and 6(g) (vii) of the said affidavit in support of the motion, but not marked as such. The said bundle of documents is what is sought to be adduced as fresh evidence in this appeal.
On the 2nd May 2012, the respondent, filed a 40 paragraphs counter-affidavit in opposition to the above mentioned motion. Attached to the counter-affidavit are exhibits A, B, C and D, documents already forming part of the record of this appeal.
The court ordered the parties to file written addresses or arguments in respect of this application. The Learned Senior Advocate for the appellant/applicant filed his written argument in support of the application on the 9th of July 2012. The Learned Senior Advocate for the respondent filed his written address in opposition to the said application to adduce fresh evidence on appeal on the 16th July 2012. The Learned Senior Advocate for the appellant on the 23rd July 2012 filed a reply on points of law and on the 30th July filed an amended Appellant’s reply on point of law. The appellant/applicant in its written argument raised one issue for determination as follows – “Whether on the facts of this case, it is just and convenient to admit the processes, i.e. the deposition of the respondent in Suit No. LD/1313/08 SHANGHAI TRISUN INTERNATIONAL COMPANY LTD. VS. UNION BANK PLC as further evidence on appeal.”
The respondent in its address also raised one issue for determination as follows – “Whether the Appellant has satisfied the requirements of law to enable the Honourable court of Appeal exercise its discretion in granting the Appellant’s Motion for leave to adduce fresh evidence on Appeal.”
It is clear that the issues raised for determination by both sides are in substance the same. The question raised by both sides is whether it is in the interest of justice to allow the appellant/applicant adduce further evidence in this appeal.
Both sides agree that this court has the discretionary power to grant applications of this nature. The appellant/applicant’s motion on notice indicates that it is brought pursuant to Order 4 Rule 2 Court of Appeal Rules 2011 which provides that:
“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 of an appeal from a judgment after or hearing of any cause or matter on the merits, no 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 power of this court to receive further or fresh evidence on questions of fact in appeals before it is clearly provided in the above provisions of the Court of Appeal Rules 2011. It is noteworthy that the provisions do not state expressly the purpose for which and the circumstances when this power can be exercised by this court. It only indicates that it can be exercised in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits on special grounds. It is Rule 4 Order 4 of the said Rules that expressly state that the purpose for which the power shall be exercised is to ensure the determination of the merits of the real question in controversy between the parties. It states that:
“The power of the court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the court below, or by any particular party to the proceedings in that court or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court may make any order on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”
It is clear from the above provisions of Order 4 Rules 2 and 4 that the power of this court to allow further or fresh evidence on appeal should be exercised sparingly and only in furtherance of justice. The Supreme Court in OKPANUM V. S.C.E (NIG) LTD (1998) 7 NWLR (Pt. 599) 537 at 554 – 554 held that “The exercise of the discretion to adduce fresh evidence should be strictly guarded. This is because, even though a court is always anxious to arrive at the truth, there are rules governing trials of actions. These, rules lead to the conclusion that once the trial takes place, prima facie further evidence should not be allowed to be called unless a strong case had been made out for so doing.”

The Court in exercising that power must bear in mind the fundamental principle that it is in the public interest that there should be an end to litigation which is often expressed in the popular latin maxim, republicae ut sit finis litium. This is to ensure that access to justice is not frustrated and administration of justice is not brought to disrepute. In EHINLANWO V. OKE (2008) 16 NWLR (Pt. 113) 357 at 384-385, the Supreme Court held
“When judgment has been given in a case, parties with the advantage of what the court said in the judgment get a new awareness of what they might have done better or not done at all. If the court were left open for everyone who has fought and lost a case at the court of Trial to bring new evidence on appeal, there would be no end to litigation and all the parties would be worse for the situation. Human experience shows that one often gets wiser after an event.”
Through the cases, the courts have developed some guiding principles that have become recognized even across jurisdictions as of general application in all cases of this nature. The Learned Senior Advocates for both sides in their respective briefs restated these guiding principles as follows –
1. The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial.
2. The evidence must be such that it is apparently credible in the sense that it is capable of being believed and it needs not be incontrovertible.
3. The evidence must be such that if admitted would have an important not necessarily crucial effect on the whole case.
These principles have been restated and applied by the Supreme Court in many cases including ASABORO V. ARUWAJI (1974) 4 SC 82 at 90-91, EHINLANWO V. OKE (2008) 16 NWLR (Pt 1113) 357 at 383-384, UZODINMA V. IZUNASO (No 2) (2011) 17 NWLR (Pt 1275) 30 at 54-55, OWATA V. ANYIGOR (1993) 2 NWLR (Pt.276) 380 and ODIASE V. OMELE (1985) 3 NWLR (Pt 11) 82.
The Learned Senior Advocate for the respondent relying on the Supreme Court decision in OKPANUM V. S.G.E (NIG) LTD (1998) NWLR (Pt 599) 537 at 554 – 555 argued that the additional evidence has to be in respect of an event that happened after the judgment of the High Court and it is only under special circumstances that such additional evidence should be admitted. In that case the Supreme Court held that pursuant to Order 1 Rule 20(3) of the Court of Appeal Rules 1981 (as amended) the additional evidence has to be in respect of an event that happened after the judgment of the High Court. With due respects, the Learned Senior Advocate has not correctly represented the decision of the Supreme Court in that case. This submission by the Learned Senior Advocate give the impression that the Supreme Court has now gone against all her earlier decisions and decided that evidence that was available during trial but could not with due care and diligence be obtained by the applicant cannot be adduced as further evidence on appeal. But the Supreme Court even after her decision in Okpanum’s case has continued to restate this position that evidence available during trial if the justice of the case permits can be adduced on appeal as further evidence. The Supreme Court even restated so in the same Okpanuam’s case and did not overrule itself expressly or implicitly. The decision is consistent with all other decisions of the Supreme Court on the guiding principles or the requirements for the grant of an application to adduce further evidence on appeal. What the Supreme Court did in Okpanum’s case was that it expressly stated and thereby clarified that the fact to be adduced as further evidence on appeal may have existed during trial or came into existence after judgment. The exact wordings of the judgment of the Supreme Court on the point are that “The principles which an appellate court must take into consideration in the judicious exercise of its power to grant leave to adduce new evidence are:-
(a) The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial, or are matters which have occurred after judgment in the trial court.
(b) In respect of other evidence other than in (a) above, as for in instance in respect of an appeal from a judgment after a hearing on the merits, the court will admit such fresh evidence only on special grounds as provided for in Order 1, rule 20(3) of the Court of Appeal Rules (ibid).
(c) The evidence to be adduced should be such as if admitted, it would have an important, not necessarily crucial effect on the whole case; and
(d) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.”
It is noteworthy that Order 1, Rule 20(3) of the Court of Appeal Rules applied by the Supreme Court in the above case is exactly the same with Order 4 Rule 2 of the current Court of Appeal Rules 2011 relied on by the applicant in this application. I think that this clarification by the Supreme Court in Okpanum’s case was necessary to avoid the erroneous impression that only further evidence of facts available during trial and not those occurring after judgment can be adduced on appeal. This erroneous impression can be encouraged by the fact that the courts are more frequently confronted with situations of new evidence of a fact in existence before judgment. So that most judicial authorities on the reception of further evidence on appeal deal with evidence existing before judgment. The frequency of the application of judicially established criteria for doing justice in such situations can create the impression that the provisions of Order 4 Rule 2 or similar provisions apply only to evidence existing before judgment.
There is nothing in the wordings of Order 4 Rule 2 2011 Court of Appeal Rules suggesting that the phrase “further evidence” as used therein excludes evidence that was existing and available at the time of trial. There is nothing in the said rule limiting or restricting the exercise of the power thereunder to allowing only evidence of facts that occurred or came into existence after judgment. However, it is obvious that the said rule differentiates between evidence existing before judgment and evidence that came into existence after judgment. While it does not restrict the exercise of the power of this court to receive on appeal evidence that came into existence after judgment, it limits the exercise of that power to receive on appeal evidence that was in existence during trial to only situations where there are special grounds. In other words this court cannot receive further evidence of matters which occurred before or during the trial except on special grounds. For the above reasons, I hold that the submission of the Learned Senior Advocate that “the additional evidence has to be in respect of an event that happened after the judgment of the High Court” is not correct
I will now proceed to find out if this application to adduce further evidence should be granted Order 4 Rule 2 commands that 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. It is clear from the affidavit in support of the application that the evidence sought to be adduced in this appeal was existing and available before and during the trial in proceedings in the lower Court. It is also clear from the record of this appeal that this is an appeal from a judgment of the trial High Court after trial and hearing of the case on the merits. Therefore the evidence sought to be adduced in this appeal is such that should not be admitted except on special grounds.
When can it be said that special grounds exist for the admission of such evidence on appeal? What should be regarded as constituting special grounds? The Order 4 Rule 2 that used the phrase did not define or explain it. The absence of such definition or explanation in the rules leaves the determination of what constitutes “special grounds” to the discretion of the courts. Such a determination must always be in furtherance of the justice of the case and nothing else. Through the cases the courts have developed generally recognized guiding principles for determining what constitutes special grounds for the grant of such applications. These have now become the requirements for the grant of such applications.
I will start with the requirement that where the evidence sought to be adduced was existing and available before or during trial, the applicant must show that he could not with due care and diligence have obtained it for use at the trial.
The evidence sought to be adduced in this appeal are as follows –
1. A letter dated 9th February 2012 from Edwin Anikwem & Co, appellant’s Solicitors to the Registrar, Lagos State High Court requesting for the certified true copy of the processes in suit No. LD/1313/08 (SHANGHAI TRISUN INTERNATIONAL V. UNION BANK LTD.)
2. A counter-affidavit to Motion on notice dated 8th October 2008 in suit No. LD/1313/08. It is sworn to by Mrs. Chinwe Uzakau on 26-1-2009 on behalf of the respondent herein.
3. The ruling of the Lagos State High Court delivered by Mrs. J.O. Pedro J on 27-3-2009 in suit No. LD/1313/08.
4. The enrolled Order of the said Lagos State High Court per Mrs. J.O. Pedro J. issued on 6-4-2009 in suit No. LD/1313/08.
These documents are attached to the motion on notice applying for the leave of this court to allow the appellant herein adduce them as fresh evidence in this appeal.
The counter-affidavit, ruling and enrolled order referred to above were obviously in existence and available before the petition in suit No. FHC/EN/CP/1/2000 was commenced on 23rd February 2010 at the trial court. So throughout the trial of the petition in the trial court, these processes in suit No. LD/1313/08 were existing and available. It is not expressly stated in any paragraph of the affidavit and support of the motion on notice that the appellant/applicant did not know or was not aware of the existence of the above processes or the existence of the record of suit No. LD/1313/08 by Shanghai Trisun International Trading Company Ltd against the respondent herein for the realization of the bank performance bond it issued in favour of Shanghai Trisun to guarantee the payment by the appellant/applicant herein of the purchase price for the supply to it of industrial or quarry machines by Shangai Trisun. The said suit No. LD/1313/08 was withdrawn and struck out on 6-4-2009 before the petition giving rise to this appeal was commenced on 23-2-2010.
Without stating whether the appellant/applicant was aware of the existence of the records of suit No. LD/1313/08 and the above processes sought to be adduced as fresh evidence in this appeal, paragraph 6 of the affidavit in support of the appellant/applicant’s motion on notice explained how the appellant/applicant’s counsel obtained the documents. It states so in sub-paragraphs (a) to (f). In paragraph 6(g), the affidavit state that the respondent successfully defended suit No. LD/1313/08 without the knowledge of the appellant who was not a party thereto, Paragraph 8 of the said affidavit states that the appellant was not a party to suit No. LD/1313/08. Paragraph 9 of the same affidavit states that the deponent, a legal practitioner in the firm of G.C Amuzie & Co, one of the Counsel to the appellant herein, verily believes “that the appellant could not have with reasonable diligence obtained the documents for use at the trial of the case leading to this appeal.”
The respondent filed a counter-affidavit deposed to by Abang Mkpandiok, one of the Counsel to the respondent herein. The counter affidavit states in paragraphs 8, 14, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29,30 therein that
(i). the existence and issues in suit No. LD/1313/08 were placed before the trial court.
(ii). During the proceedings in LD/1313/08 the respondent wrote several letters to the appellant informing the appellant of the pendence of the said suit.
(iii). The appellant replied to these correspondences joining issues on matters concerning the said pending suit.
(iv) The respondent even wrote to the appellant’s solicitors advising that appellant should apply to be joined as an interested party in the said pending suit.
(v) The respondent paid Shanghai Trisun the amount guaranteed by the performance bond and suit No. LD/1313/08 was withdrawn from Court. The respondent wrote informing the appellant of the fact of this payment.
(vi) The appellant replied requesting for further assistance from the respondent to procure some machines.
(vii) The appellant wrote also to China Export & Credit Insurance Corporation acknowledging that the respondent had paid the amount covered by the bond to Shanghai Trisun.
I have carefully read through the affidavits of both sides and all the documents attached to them. The Respondent is relying on exhibits 1, 2, 3, 4 and 5 attached to its counter-affidavit to show that the appellant was aware of the pendence of suit No. LD/1313/08 and was in a position to have applied to be joined therein as a party interested. The above submissions of the Learned Senior Advocate for the appellant can only be valid and tenable if the said exhibits were sought to be relied on for the purpose of determining the merit of the appeal against the judgment of the trial court or the inability of the parties under the contractual transactions in issue. The said exhibits are being relied on here for a purpose different from that for which they were tendered and rejected and or marked “without prejudice”. This application though made in the appeal, is clearly separate from the appeal itself in the sense that it is not involving a determination of its merit. It is a process preliminary to the hearing of the merit of the appeal. Exhibits 3 and 5 are not part of the evidence sought to be adduced on appeal. They are introduced here for the purpose of helping the court find out if the appellant was aware of the existence of the proceedings in suit No LD/1313/08 before or during the trial to enable the court decide to allow or not allow evidence to be adduced in this appeal. They are not being used against the appellant in respect of their obligation under the contractual transaction in issue. It is beyond argument that they cannot be used against the appellant in that way since they are marked “without prejudice.” But there is no law precluding their admissibility for any other purpose other than against the interest of the parties in the subject matter of the dispute. In ADEJUMO & ANOR V. GOVERNOR OF LAGOS STATE (1970) All NLR 187 the Supreme Court held that evidence not admissible against a person in a case for a particular purpose can be admitted for other purposes.

There is no doubt that it is settled law that a letter or correspondence marked “without prejudice” signifies that (1) whatever is said therein concerning the subject matter of the dispute or negotiation between the parties, is a bona fide offer of compromise or settlement of the dispute or bargain and should not be treated as an admission against the interest of the writer or the party making the statement; and (2) that whatever the addressee says in response to the said subject matter shall equally not be treated as an admission against him. To encourage good faith in negotiations and dispute resolutions, amicable settlement of such disputes and avoid unfair practices, the courts have over; time remained unanimous that such offer, or statements or discussions of same cannot be admitted in evidence against either of the parties to the dispute or negotiation. See for example FAWEHINMI V. NBA & ORS (1989) 4 SC (Pt 1) 63, ASHIBOGWU V. ATTORNEY GENERAL BENDEL STATE (1988) NSCC (Pt 1) 439 at 662, NWADIKE & ORS V. IBEKWE & ORS (1987) 112 SC 14 and OBEYA V. F.B.N PLC (2010) LPELR 4666. But where such letter or other communication or correspondence is not being tendered as evidence of such offer or compromise but for a purpose not connected with the proof of such offer or compromise or any discussion connected therewith and the purpose for which it is tendered is not against the interest of either party to the dispute but to help the due process of administration of justice in the case by avoiding abuse of the court process, I am inclined to hold that it can be admitted in evidence.
The “without prejudice” protection or privilege is one of good faith. So a party cannot exploit it mala fide for inordinate purposes. A party to a case, cannot exploit that protection to prevent the court from finding out if a step the party has taken or seeks to take in proceedings before it will help the due process of adjudication or amount to an abuse of the process of court.

It is equally settled law that a decision not appealed against is valid, binding and final. Generally, until the decision rejecting the admissibility of any evidence is set aside, it cannot be used to determine the merit of the case both during trial and on appeal. But the bar not to use it is not absolute in the sense that if its admissibility for a particular purpose was rejected, it can be admitted for another purpose. For the above reasons, I overrule the objection of the Learned Senior Advocate for the appellant.
Exhibit 1 is a letter written by the respondent to the appellant. It is dated 12-2-2009. Amongst other things it states that “The foregoing is necessary so as to put an end to the Court case which came up on 9th February, 2009 wherein claimant/applicant (shanghai) moved for summary judgment which the judge adjourned to 13th February 2009 for the banks reply.”
Exhibit 2 is a letter dated 9-3-2009 by Louis Onyia Esq appellant’s solicitor written to the respondent. It is captioned. “TRANSACTION BETWEEN SHANGHAI TRISUN INTERNATIONAL TRADING AND RESURRECTION POWER INVESTMENT LTD. RE; SUIT NO: LD/1313/08 SHANGAI TRISUN INTERNATIONAL TRADING COY LTD. V. UNION BANK OF NIGERIA PLC BRANCH 2ND OKPARA AVENUE, ENUGU.
Amongst other things it states that “Consequently, we demand that the details of the said suit No. LD/1313/08: SHANGHAI TRISUN INTERNATIONAL TRADING AND RESURRECTION POWER INVESTMENT LTD. VS. UNION BANK OF NIGERIA PLC BRANCH: 2ND OKPARA AVENUE, ENUGU be made available to us through this office immediately and we be joined as defendants in the suit.” Exhibit 3, a letter dated 5-3-2009 written by the respondent to Louis Onyia & Co Solicitors to the appellant is captioned “TRANSACTION BETWEEN SHANGHAI TRISUN INTERNATIONAL TRADING AND RESURRECTION POWER INVESTMENT LTD RE: SUIT NO. LD/1313/08 SHANGHAI TRISUN INTERNATIONAL TRADING COY LTD VS. UNION BANK OF NIGERIA PLC, BRANCH: 2ND OKPARA AVENUE, ENUGU.”
It states inter alia that “When your Client’s principals breached some of the Terms of the Agreement and your Client refused to pay, the principal sent the Bank a Demand Notice to make good the Bank’s irrevocable Guarantee. When the Bank refused to pay, they instituted Legal action against the Bank as can be gleaned from the heading of this letter.”
Exhibit 4, a letter dated 9-3-2009 by Louis Onyia Esq appellant’s solicitor written to China Export & Credit Insurance Corporation (SINOSURE). It states inter alia that “Your company did not help matters when it black mailed Union Bank of Nigeria Plc and arm twisted her into paying the guarantee sum of US$2,653,614 to you as a ransom for further business in your country. For the avoidance of doubt, we make bold to say that the (seller) Shanghai Trisun International Trading Co. Ltd showed absolute bad faith in the entire transaction. The suit it instituted against Union Bank of Nigeria Plc is an abuse of both the sales agreement and judicial process. TAKE FIRM NOTE that, we shall no longer delay in presenting this matter to the President of the Federal Republic of Nigeria and yours if we do not receive cogent and factual reasons for your continue hold on the said Guarantee sum.”
Exhibit 5 a letter dated 8-5-2009 is written by the respondent to Louis Onyia & Co, appellant’s solicitors. It is captioned as in exhibit 2 above. It states that:
“‘We re-iterate the contents of our letter of 5/3/2009 and advise that you discountenance the content of our 2nd Okpara Avenue, Enugu letter dated 17/3/2009 only to the extent of their use of the word “redeemed”. This is because the guaranteed sum is still held in escrow by the Chinese Insurance Depositor pending the resolution of the impasse with your client’s principal. We further advise that your client may wish to apply to be joined as an interested party in the suit pending at the Lagos High Court (Re: Suit No. LD/1313/08, between Shanghai International Trading Company Ltd Vs. Union Bank of Nigeria Plc). This is view of the fact that any decision reached in this matter by the court would necessarily affect your client. Being an interested party, a motion for joinder would help your client explain their principal’s breach of its contractual obligations to the court.”
It is clear from the record of this appeal that there was evidence during the trial showing the existence of suit No LD/1313/08. Exhibit 1 attached to the counter-affidavit in this application is contained at page 32 of the record of this appeal. It was attached as exhibit K to the affidavit in support of the petition therein. It was referred to in paragraph 25 therein. The appellant in paragraph 48 of its counter-affidavit in opposition to the petition accepted receiving the said correspondence.
It is clear from these documents that the appellant was dodgy when it tried to create the impression that it had no knowledge of the existence or pendence of suit No. LD/1313/08. It is also clear from these documents that the deposition in paragraph 6(g) of the counter-affidavit of Emmanuel Away that “the respondent successfully defended the action without the knowledge of the appellant” is not true. It is also very obvious from these documents that the depositions in paragraph 6(a), (b), (c), (d), (e) and (f) are made to create the false impression that the appellant’s leading Counsel stumbled on the information about the existence of suit No LD/1313/08 by chance for the first time on 6th February 2012 while surfing the net.
What is clear from the state of the evidence in all the affidavits herein is that the appellant was aware of the pendence and outcome of suit No. LD/1313/08 before it commenced the petition giving rise to this appeal.
The appellant has not explained why it did not obtain and use the said processes at the trial of the petition. Therefore it has failed to show that it could not have obtained them with due care and diligence at the time of trial.
Where evidence was available before and during trial and the applicant for the same to be adduced on appeal fails to explain why he did not obtain and use it at the trial, it becomes difficult if not impossible to grant the application. If the applicant, knowing of the existence of such evidence that it considers material and relevant to its case, took no steps to bring such evidence before the court in the trial of the case, neither law nor equity can help him. It had reasonable opportunity to present its side of the case. There was nothing disabling it from doing so. It cannot be justice to allow it reopen the trial on appeal for the sole purpose of enabling it recover an opportunity it chose not to utilize. In law as in nature there is time for everything. There is time for taking of evidence and judgment. That time has passed. This time is for a review of the judgment of the trial court on the basis of the materials put before it and which it ought to consider and considered. The law is against the reopening of the taking of such evidence on appeal except on special grounds. In my view the most important special ground is the explanation of the applicant that he was disabled from obtaining and using such evidence at the time of trial, inspite of all his reasonably diligent attempts to do so, by circumstances beyond his control. Without this explanation other considerations such as the credibility of the evidence and the effect of such evidence on the case become unhelpful. For however credible and useful the evidence may appear or be, it can no longer be used if the applicant refused to use it when it had reasonable opportunity to do so.

It is in the public interest that dispute resolutions should not be endless and unregulated and therefore must be regulated by established, certain and known criteria of due of process. For this reason parties are not allowed to engage in dispute resolution according to their own whims, caprices and fancies. Adherence to the due process of law is the only means by which law can yield justice.
An unregulated and endless process of dispute resolution portends danger for society as it defeats the very essence of administration of law. The courts across jurisdictions have remained unanimous against anything that may encourage or result in endless dispute resolution. This accounts for the provision of Order 4 Rule 2 and similar provisions and the unanimity of judicial opinion that this application should not be granted, except very sparingly on special grounds or exceptional circumstances. In UBA PLC V. BTL IND. LTD (2005) 10 NWLR (933) 356 at 370-371, Oguntade JSC stated that:
“The jurisdiction and discretion to grant a party the liberty to call new evidence on appeal is one sparingly exercised. This is because its indiscriminate use portends great danger for the administration of justice. In a case as this which was commenced at the High court, parties exercise their right to file pleadings and later call evidence at the trial in support of their different stand points. Witnesses are cross-examined by their adversaries. It is the normal expectation that parties would diligently bring before the court all the evidence needed in support of their case including all documents. Human experience shows that we often get wiser after an event. When judgment has been given in a case, parties with the advantage of what the court said in the judgment get a new awareness of what they might have done better or not done at all. If the door were left open for everyone who has fought and lost a case at the court of trial to bring new evidence on appeal there would be no litigation and all the parties would be the worse for that situation. There is no doubt that there is a jurisdiction and power in the court to allow fresh evidence on appeal but it is a power which has been used only in exceptional circumstances.”
In OKPANUM V. S.G.E NIG. LTD (1998) 7 NWLR (Pt. 599) 537 at 554 – 555 the Supreme Court held that “the exercise of the discretion to adduce fresh evidence should be strictly guarded.”
In EHINLANWO V. OKE (2008) 16 NWLR (Pt 1113) 357 at 384-385 the Supreme Court restated that:- “When judgment has been given in a case, parties with the advantage of what the court said in the judgment get a new awareness of what they might have done better or not done at all. If the court were left open for everyone who has fought and lost a case at the court of Trial to bring new evidence on appeal, there would be no end to litigation and all the parties would be worse for the situation. Human experience shows that one often gets wiser after an event.”
As Oputa JSC said in OBASI & ANOR V. ONWUKA & ORS the conditions for admitting fresh evidence on appeal are so stringent that there are very few cases if any in our courts where such evidence was admitted.
In keeping with this general and fundamental principle and provisions exactly similar to Order 4 Rule 2 2011 Court of Appeal Rules, Courts have refused to allow evidence on appeal where the evidence was existing and available before or during trial and a party who did not utilize the opportunity given him by law to obtain and use it at the trial, now seeks to adduce such evidence on appeal without showing why he did not obtain and use it at the trial or if his explanation failed to show that he could not obtain it inspite of his reasonably diligent efforts to do so. See EHINLANWO V. OKE (supra) UBA PLC V. BTL IND. LTD (supra), OKPANWUM V. S.G.E. NIG. LTD (supra) ADELEKE V. ASERIFA (supra), A.G. FEDERATION V. ALKALI (1972) 12 SC. In any case, the evidence sought to be adduced in this appeal though credible will not have any important or crucial effect on the case. This is because it is established beyond argument that the respondent for the reason of the Suit No. LD/1313/08 and the blackmail it was suffering in its international business reputation paid Shanghai Trisun in keeping with its obligation under the performance bond on account of the appellants failure to meet its payment obligation to Shanghai Trisun for the Industrial machines it purchased from Shanghai Trisun. Appellant acknowledged the fact of this payment in its solicitors letter to the respondent and to SINOSURE. These letters are exhibits 2 and 4 attached to the counter-affidavit on behalf of the respondent. In exhibit 2, Louis Onyia Esq, writing on behalf of the appellant to the respondent stated that:
“It is quite inexplicable that the Bank should pay the Guarantee sum of US$2,653,614 (N400,695.714) to SINOSURE without asking for our comments or inputs to the Query from the said SINOSURE, inspite of the fact that all the parties including the Shanghai Trisun International Trading Company Ltd (Principal) agree that the latter was in default of the agreement.”
The same solicitor writing on behalf of the appellant to SINOSURE stated that: “Your company did not help matters when it black mailed Union Bank of Nigeria Plc and arm twisted her into paying the guarantee sum of US$2,653,614 to you as a ransom for further business in your country. TAKE FIRM NOTE that, we shall no longer delay in presenting this matter to the President of the Federal Republic of Nigeria and yours if we do not receive cogent and factual reasons for our continue hold on the said Guarantee sum.”
In the light of the foregoing, I hold that no special grounds have been shown by the appellant to justify the grant of this application. Accordingly the application praying for an order of this court granting leave to the appellant to adduce fresh evidence in this appeal is refused. The application is hereby dismissed. The applicant shall pay cost of N50,000 to the respondent.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading before now the judgment of my learned brother, EMMANUEL AKOMAYE AGIM JCA just delivered. I agree with the reasoning therein and the conclusion that the application of the appellant is lacking in merit. I dismiss the application and abide by the award of costs against the appellant.
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Appearances

Chief Charles Uwensuyi – Edo Sonwan, SAN with Chief G.C. Amuzie and Edwin Anikwem EsqFor Appellant

AND

Chief Ajibola Anbisala, SAN with Abang MkpaudiokFor Respondent