IRONBAR v. OKON & ANOR (2020)

IRONBAR v. OKON & ANOR

(2020)LCN/14441(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/274/2014(R)

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

BARRISTER OROK INANG IRONBAR APPELANT(S)

And

NDABO ASUQUO OKON 2. MS. ELIZABETH FELIX IKANN (For Themselves And On Behalf Of Princess Duke Ephraim Family) RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT OF APPEAL CAN GRANT AN APPLICATION TO ADDUCE ADDITIONAL OR FRESH EVIDENCE

There is no contending the fact that this Court is imbued with the power to grant such an application under the right considerations. In effect Order 4 Rule 2 of the Court of Appeal Rules 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 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 as to matters which have occurred after the date of the trial or hearing shall be admitted except on special grounds.
The only issue which this Court must apply itself to is, whether the application is one that deserves the Courts discretion after an examination of the entirety of the circumstances that calls for consideration, enumerated in a host of cases includingObasi vs. Onwuka (1987) NWLR (pt. 61) 364, Mohammed vs. Dajan & Ors. (2010) LPELR-4498 (CA) amongst many others. Let me refer to one of them.
“It is the attitude of the appellate Courts not to admit fresh evidence, fresh issues or additional evidence on appeal except where the circumstances are such that it was not foreseen and it is in the best interest of justice that the fact be led”. Per Rhodes-Vivour JCA, as he then was. PER BARKA, J.C.A.

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): By this application filed on the 8th of June, 2018, applicant prayed the Court for the following reliefs:
1. Leave of Court to provide further and, or fresh evidence with regards to statement of rent/accounts in respect of the subject matter on appeal, a case for possession, and General damages, Cost of litigation and Cost.
2. An ORDER deeming the statement of rents from the subject matter and attached to the additional records and numbered as page 186-187 as the authentic list for use at this appeal, in the absence of any other.
3. AN ORDER directing Appellant/Respondent to submit to this Honourable Court all rents collected from the subject matter from the date of the judgment of the trial Court on 7th February, 2014 to date, and stop further collection of rent on the property pending the determination of this appeal.
4. AND ORDER directing all tenants/occupiers in the subject matter to pay their rent henceforth to the Registrar of this Court for onward payment into a joint signatory, designated interest yielding account.
OR
5. Leave of this Honourable Court to rely on

the evidence in the records of Appeal, and to argue the appeal touching on the professional misconduct and ethical blunders committed by the Appellant, and to urge the Court on the consequential orders that should follow.
6. AND FOR SUCH FURTHER or other orders as this Honourable Court shall deem fit to make in the circumstances.

The grounds upon which appellant sought to rely on are, that:
1. The Respondents/Applicants inadvertently omitted to furnish full particulars on the issues of the statement of rent, accounts, possession, general damages and costs which were, though canvassed at the trial, but the details were not supplied.
2. The fresh issues or further facts for which this leave is being sought are limited to specifics, and are not at large to wit: rent statements/accounts, possession and upward review or variation of the N10,000.00 (Ten Thousand Naira) only, awarded damages for trespass, cost of litigation and exemplary cost. (See CHIEF AYOOLA ADEOSUN v. THE GOVERNOR OF EKITI STATE (2012) 1 M.JS pt.1) 1 @ 9.
3. With the leave of this Court to amend the notice of appeal already filed and granted; a leave of the Court must be

sought and obtained to enable the party seeking the leave to canvass argument in support of issues raised therefrom in his brief of argument (OHAJUNWA v. OBELLE (2008) 3 N.W.L.R (pt. 1073) 52 @ 61. Also reported in (2012) 7 Q.R.R. 80 H.19).
4. Unless the rents collected from the property regarding the subject matter of this action right from the trial Court judgment of 7th February, 2014 to date, and, or during the pendency of the appeal, are paid into a designated interest yielding bank account, as this Court may direct, the appellant will continually exploit that undue advantage to use the Respondent’s money to fight them.

In support of the application is an affidavit of 28 paragraphs deposed to by Ndabo Asuquo Okon Asuquo, the 1st applicant in the application. There is also a written address in support of the application filed on the same 8th of June, 2018. Hinged on the motion papers are exhibits A1, and A2.

Opposing the application, is a counter affidavit of 16 paragraphs, deposed to by Mr. Orok Inang Ironbar, the appellant/respondent. Also attached to the motion papers are two exhibits exhibited as exhibit A and B.

On the 3rd of June, 2020, when the application was to be heard, and learned counsel all maintaining their respective positions, this Court ordered for written addresses pursuant to Order 6 Rule 8 (2) of the rules of this Court.

The applicant in obedience to the order of Court filed a written address on the 11th of June, 2020. The respondent also on the 15th of June, 2020, filed a written address in support of the counter affidavit in opposing the tendering of the additional evidence sought for by the respondents/cross appellants.

When the application further arose for hearing on the 17th of June, 2020, the learned counsel on both sides identified their respective written addresses and adopted the same in urging the Court to grant their respective positions. While the applicant prayed that the application in his motion papers be granted, the respondent prays that the application be refused and thereby dismissed.

Moving his application, C. I. Anyanwu for the applicant referred to the two reliefs sought in his motion papers to wit;
i. Wherein the applicants sought for the leave of Court to provide further or fresh evidence with regards to statement of

rent/accounts in respect of the subject matter on appeal, being a case for possession, general damages and cost of litigation, and
ii. An order deeming the statement of rents from the subject matter and attached to the additional records and numbered as pages 186-187 as the authentic list for use at this appeal in the absence of any other among other reliefs sought.

Learned counsel identified a single issue in determining the application: Whether this Honourable Court can grant the reliefs sought in the motion of 8/6/2018 in furtherance of justice in view of the surrounding circumstances of this matter.

Learned counsel urged the Court to resolve the issue in the affirmative, stating that leave of Court is required to file and argue any fresh point not canvassed at the trial Court, but that the Court of appeal has a discretion to grant or refuse such leave. He cited and relied on the case ofKate Enterprises Ltd vs. Daewoo Nig. Ltd (1985) 2 NWLR (pt. 5) 116. Learned counsel also re-stated the principle of law to the effect that a fresh issue not raised nor considered by the trial Court in arriving at its decision, and thereby does not form part

of the Court’s record cannot be raised on appeal except with the leave of the Court.Aruna vs. RSH (2010) 7 NWLR (pt. 1194) 605 @ 615.

The power of this Court to grant leave to adduce further evidence on appeal according to the learned counsel, has been emphasized in the cases of British Airways Plc vs. Michael Chukwuemeka Amadi (2012) 2 NWLR (pt. 1283) 28-29, Edie Maud Leeder vs. Nancy Ellis (1953) AC 53, Akanbi vs. Alao (1989) 3 NWLR (pt. 108) 118 @ 159, upon the principles enumerated in Asaboro vs. Aruwaji (1974) 1 ALL NLR (pt. 1) 140 per Coker JSC.

Learned counsel now submits that the application before the Court met all the above criteria, and urged the Court not to visit the sins of counsel on the litigant and to grant the reliefs sought in the interest of justice.

Further to that, counsel is of the contention that having made the evidence part of the record of proceedings in the matter on the 9th of April 2018 by order of Court and arguments proffered on it already by virtue of the respondents/cross appellants/applicants brief of argument filed on the 4/5/2018 and granted on the 7/5/2018 and the appellant’s reply brief filed on the

2/7/18 and deemed on the 3/6/2020 issues have been joined by the parties on the new/fresh evidence raised by the applicants thereby helping in the furtherance of justice. The case of British Airways Plc vs. Michael Chukwuemeka Amadi (supra) was referred to.

In response to the address of the learned counsel for the applicant, Mr. Ironbar referred to his counter affidavit of 16 paragraphs filed on the 20/6/2018, particularly at paragraph 4 thereof to the effect that a similar application was struck out by the Court on the 16/5/2015. Learned counsel wonders how exhibits A1 and A2 attached to the motion can help the Court arrive at the judgment. He also argued that the respondent by their paragraph 5 had alleged that there was a claim for rents received since the construction of the building, forgetting that the evidence before the Court showed the construction to be by the appellant’s father and the Court did not dwell on it. Further that applicants raised the issue before the trial Court which failed to pronounce on it, and therefore they cannot come to this Court to provide evidence not available before the trial Court all in an effort to make a

fresh case. He concedes to the legal position that the Court is empowered to receive additional evidence on special grounds, but that the applicants have not directed the Court to any special ground for the Court to exercise the discretion in their favour. On the case of Asaboro vs. Aruwaji (supra) cited by the applicants, learned counsel contended that applicants cannot say that they were unable to obtain the receipts upon minimal effort, and wondered at the importance of the evidence on the entire body of the case. The case of Bello Akanbi & 3 Ors vs. Mamuda Alao & Anor (1989) 3 NWLR (pt. 108) 118 @ 140 per Craig JSC, quoted in Rinco Construction Co. Ltd vs. Veepee Industries Ltd & Anor (1992) 6 NWLR (pt. 158) 638, was cited for support.

He disagreed with the applicants submission that the lapse was a mistake of counsel rather asserting that it was a strategy, contending that the argument of counsel that the evidence was made part of the record by an order of the 9/4/2018 to contend that such is not borne on the record, and even where such is the case, nothing stops the Court from expunging the same, as they cannot adduce additional evidence

without the order of the Court. He urged the Court in conclusion to dismiss the application.

I have in the circumstance given due consideration to the submissions of the learned counsel on the application at hand, which seeks in the main, the leave of this Court to adduce additional/fresh evidence before the Court on appeal. There is no contending the fact that this Court is imbued with the power to grant such an application under the right considerations. In effect Order 4 Rule 2 of the Court of Appeal Rules 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 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 as to matters which have occurred after the date of the trial or hearing shall be admitted except on special grounds.
The only issue which this Court must apply itself to is, whether the application is one that deserves the Courts discretion after an examination of the entirety of the

circumstances that calls for consideration, enumerated in a host of cases includingObasi vs. Onwuka (1987) NWLR (pt. 61) 364, Mohammed vs. Dajan & Ors. (2010) LPELR-4498 (CA) amongst many others. Let me refer to one of them.
“It is the attitude of the appellate Courts not to admit fresh evidence, fresh issues or additional evidence on appeal except where the circumstances are such that it was not foreseen and it is in the best interest of justice that the fact be led”. Per Rhodes-Vivour JCA, as he then was.
This Court on the issue, held the position that where evidence is led and judgment entered on the merit at the trial Court, the only evidence that can be led on appeal are evidence of facts which have occurred after the hearing, and no other evidence can be allowed except on special grounds. See Okpanum vs. SGE (Nig) Ltd (1998) 7 NWLR (pt. 559) 537, Bisola Nigeria Limited & Anor vs. Afribank (Nig) Plc (2010) LPELR-3879 (CA) per Agbo JCA.
I have in the circumstance examined the application by the applicant in line with the position of the law, I have also critically examined the evidence sought to be

admitted at this stage. A referral to the applicant’s affidavit in support of the application depicts that:
That the Claimant’s claim before the Calabar Division of Cross River State High Court among other things was for “an account by the Defendant of rents received on the property aforesaid since its construction…” and further by the averments in support of the application thus;
5. That on 7th February, 2014, judgment was entered in our favour, yet the trial Court did not make findings and orders on the astonishing and accumulated rent, nor order for possession of the subject from the clutches of the Appellant/Respondent, who craftily used the judicial process as a ploy to hold unto the Respondents/Applicants property since 1972. The trial Court did not resolve the issue one way or other, inspite of the findings in favour of the Respondents/Applicants.
6. That even after the judgment of the trial Court in our favour, on 7th February, 2014, the Appellant/Respondent contemptuously refused to yield up possession. He still holds unto the property, and rents collected from tenants since 1972 to date.
7. That the

property for which the Appellant/Respondent is holding unto and collecting rents is No. 3 Victor Akan Street by No. 2 Chamley Street, Calabar.
Also relevant, are grounds 1 and 2 upon which the application is founded to wit:
1. The Respondents/Applicants inadvertently omitted to furnish full particulars on the issues of the statement of rent, accounts, possession, general damages and costs which were, though canvassed at the trial, but the details were not supplied.
2. The fresh issues or further facts for which this leave is being sought are limited to specifics, and are not at large to wit: rent statements/accounts, possession and upward review or variation of the N10,000.00 (Ten thousand naira) only, awarded damages for trespass, cost of litigation and exemplary cost. (See CHIEF AYOOLA ADEOSUN v. THE GOVERNOR OF EKITI STATE (2012) 1 M.JS (pt.1) 1 @ 9.
From the deposition and averments referred to, it is apparent that the evidence sought to be put in as additional evidence cannot be said to be fresh evidence obtained after the completion of the case before the lower Court, nor can it be said that applicant showed his inability to procure

the evidence. I find the case of Bello Akanbi & Anor vs. Mamuda Alao & Anor. (supra), cited by the respondent in this application most alluring. Craig JSC, had in the case under reference, opined that:
“in my experience, a decision not to call evidence has always been regarded as legal strategy. Not a mistake. If the strategy succeeds, then it enhances the case of that party; but if it fails such a litigant cannot ask to adduce further evidence in order to repair his damaged case. It seems to me that if every party who makes a wrong choice of that nature is allowed to repair his case in this way, there will be no end to litigation”.
Obviously the applicant cannot be right in asserting that the inadvertence to put in the evidence sought to be admitted is due to inadvertence of counsel. All things taken together, it is my humble view that the application is undeserving of the sympathy of this Court and it is hereby refused.

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

MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the privilege of reading in draft the ruling delivered by my learned brother Hamma A. Barka, JCA. I agree with the

reasoning and conclusion therein contained in the said ruling. The law is settled that an applicant cannot be allowed to use his inadvertence or mistake or failure to exercise due diligence in the procurement of evidence at the trial Court as an excuse to bring them at the Court of Appeal and lead further evidence on appeal.
I too agree that the application in the instant case is undeserving and it is accordingly refused.

Appearances:

Chief Orok Inang For Appellant(s)

I. Anyanwu Esq. For Respondent(s)