KAMBULAM v. DUBA (2022)

KAMBULAM v. DUBA

(2022)LCN/16981CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/G/440/2019(R)

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

LAKWAGAM KAMBULAM APPELANT(S)

And

ENGLISH DUBA RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPLICANT CAN ADDUCE FRESH AND ADDITIONAL EVIDENCE ON APPEAL

The law has not made it impossible for an applicant to adduce fresh and additional evidence on appeal but rather the law has laid down the conditions that must be satisfied before a Court can grant such an application. In this respect, I find the case of Sharing Cross Educational Services Ltd vs Umaru Adamu Enterprises Ltd (2020) LPELR-49567 (SC) very instructive when the apex Court held thus:
“In ASABORO v ARUWAJI (1974) 1 All NLR (pt 1) 140, this Court stated conditions/principles that must co-exist before fresh evidence can be adduced on appeal. They are:
a) The evidence sought to be adduced must be such as would not have been, with reasonable diligence, obtained for use at the trial;
b) The evidence shall be such as if admitted it would have an important not necessarily crucial effect on the whole case;
c) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible;
d) The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the trial Court in favour of the applicant had it been available at the trial Court;
e) The evidence should be weighty and material as where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.
Interestingly, the above principles/special conditions were also codified under Order 2 Rule 12 of the Supreme Court Rules (as amended in 2009). The said rule sets out the necessary steps to be taken by a party who wishes the Court to receive additional or further evidence of witnesses, whether they were or were not called at the trial Court or how to order the production of any document, exhibit or thing connected with the proceedings.
From the above cases, the following are the conditions that must be satisfied:
1. The evidence sought to be tendered could not have been obtained with reasonable diligence for use at the trial.
2. The evidence must be such that, if given, it would probably have an important influence on the outcome of the case.

3. The evidence must be such that is presumably believable, that is to say it is credible. PER TOBI, J.C.A.

WHETHER OR NOT A LITIGANT CAN USE THE MISTAKE OF HIS COUNSEL AS A GROUND TO ESCAPE LIABILITY ON THE DECISION OF A COUNSEL HE CHOSE TO REPRESENT HIM IN A MATTER

It is therefore unfair and unacceptable for a litigant to use the mistake of Counsel as a ground to escape liability on the decision of a counsel he chose to represent him in a matter. The authority of counsel to represent a client include the authority to compromise the case of his client. See Festus vs A.A.C. (2020) 4 NWLR (pt 1713) 105; P.D.P. vs Ezeonwuka (2018) 3 NWLR (pt 1606) 187.
If a litigant is not satisfied with the performance of his Counsel, he has a right to change his Counsel as this right translates to the constitutional right of a party to have a Counsel of his choice. See Akuma vs Ezikpe (2001) 8 NWLR (pt 716) 547; Martains vs FRN (2018) 13 NWLR (pt 1637) 523. However, for as long as the litigant has not changed Counsel, the decision taken by Counsel on behalf of his client litigant is binding on the litigant. See Ojo vs Adesida (2020) 10 NWLR (pt 1723) 347; G.T.B. vs Est Master Const. LTD (2018) 8 NWLR (pt 1622) 483; Abah vs Monday (2015) 14 NWLR (pt 1480) 569. PER TOBI, J.C.A.

WHETHER OR NOT THE COURT CAN VISIT THE MISTAKE OF A LEGAL COUNSEL ON THE APPELLANT

The Appellant’s Counsel, Benjamin Sati Esq. has implicitly submitted in establishing the trite legal principle of Court not visiting mistake of Counsel on litigant in that the mistake is that of Counsel and therefore it should not be visited on the Appellant. The above legal principle has received a lot of judicial recognition. See Haruna vs Modibbo (2004) 16 NWLR (pt 900) 487; Daniel vs FRN (2014) 8 NWLR (pt 1410) 570; N.N.P.C. vs Samfadeksons Ltd (2018) 7 NWLR (pt 1617) 1.
The point must however be made that this principle is not a blanket cheque given to the Appellant as an escape route when the Appellant has a bad case. That is not the purport of that principle. Like almost everything in life, there is a limit to the application of this principle. There are many lawyers in Gombe and if the Appellant decided to brief a lawyer who messed up his case, he cannot deny the lawyer whom he briefed and escape the consequences of the well thought out decision of his Counsel in the process of conducting the case on his behalf. When a litigant briefs a Counsel, he is bound by the decision taken by his Counsel with regards to his case. The kind of error anticipated by the principle does not include deliberate decisions taken by Counsel on behalf of his client. The principle only covers errors on procedural irregularity and not errors in relation to how Counsel conducts the case of his client, the litigant. See Trans Nab Ltd vs Joseph (1997) 5 NWLR (pt 504) 176. In fact, it does not cover a situation where the error is based on Counsel incompetence as in the case before this Court. See Emmanuel vs Gomez (2009) 7 NWLR (pt 1139) 1. PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgement): The Appellant in this appeal filed a motion on 26/1/22 for leave and for an order to adduce fresh/additional evidence of the incomplete record of the proceedings of the Kaltungo Area Court in suit no CV/312/1999; Upper Area Court Billiri & Kaltungo in Appeal No JUD/BUAC/BR/CVA/94 and KUAC/KT/CVFI/6/2018. The proceeding sought to be adduced as fresh and additional evidence are annexed as Exhibits LK1- LK6. The application is supported by a 17 paragraphs affidavit and further affidavit of 20 paragraphs. The Respondent in opposition filed a 4 paragraph counter affidavit. The Learned Counsel for the Appellant/Applicant Benjamin Sati Esq in moving the application relied on the following cases in urging this Court to grant the application while adopting his written address of 11/2/22. See Unity Bank Plc vs BCC Nig Limited (2020) 16 NWLR (pt 1749) 132; CPC & Anor vs Ombugadu & Anor (2013) LPELR-21007(SC); Imale & Ors vs Agiri & Ors (1997) LPELR-5781(CA) and Hon. Muyiwa Inakoju & 17 Ors vs Adeleke & Rashidi Ladoja & Ors (2007) 29 NSCQR vol II p. 958. Looking at the affidavit and the submission of Counsel, the reason why the evidence sought to be adduced now was not presented at the lower Court was blamed on the illiteracy of the Appellant and the error or mistake of his Counsel from the office of C. D. Kadala Esq by name H. I. Yerima Esq. This is the averment in paragraphs 11 & 12 of the supporting affidavit. The question is whether these are reasons that can justify the granting of this application? The Learned Counsel to the Appellant answered the question in the affirmative. Naturally, the Learned Counsel for the Respondent, M. A. Galaya Esq answered the question in the negative.

I will now take a brief summary of the submission of Respondent’s Counsel, M. A. Galaya Esq. It is the submission of Learned Counsel that the Appellant in the affidavit has not disclosed enough evidence to warrant the granting of this application.

I must start in this ruling by agreeing absolutely with the submission of Benjamin Sati Esq that it is within the powers of this Court to allow an application of this sort. This is within the discretionary powers of the Court. This is in line with Order 4 Rule 2 of the Court of Appeal Rules.

I reproduce the order thus:
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 decisions of the Apex Court are apt on this point. See Chief Amadi-Dike-Ogu & Ors vs Owhonda Frank Amadi & Ors (2019) LPELR-47847; Williams vs Adold Stamm International (Nig) Ltd (2017) 6 NWLR (pt 1560) 1; Nwaogu vs Atuma (2013) 10 NWLR (pt 1363) 591. In the light of the equitable doctrine of equity that equity does not aid the indolent, it seems an uphill task to succeed in an application of this sort. This is because the application presupposes that the Appellant was not up and doing in ensuring that, all the processes that will affect the outcome of the case were presented at the lower Court. To succeed in an application of this nature is an uphill task but I hasten to add that it is not an impossible task. The law has made provision to the effect that in special and exceptional circumstances, this application can be granted.

3. The evidence must be such that is presumably believable, that is to say it is credible.

I had earlier mentioned the two reasons for this application. One was the illiteracy of the Appellant. With due respect, I do not think the illiteracy status of the Appellant is of any relevance in this application. This is a reason that will not fly. This is because from the affidavit evidence before the Court, it is clear that the Appellant was represented by Counsel all the way. This is not in doubt at all as it is an established fact. The implication of a litigant being represented by Counsel is that the litigant had farmed out his rights in the matter to his lawyer and therefore he is bound by the action of his Counsel. The Counsel briefed by a client has the right to take decision of his own, especially on the issue of law. When such decision is made, the litigant will sink and drown by the decision of his Counsel or swim to shore for safety. It is therefore unfair and unacceptable for a litigant to use the mistake of Counsel as a ground to escape liability on the decision of a counsel he chose to represent him in a matter. The authority of counsel to represent a client include the authority to compromise the case of his client. See Festus vs A.A.C. (2020) 4 NWLR (pt 1713) 105; P.D.P. vs Ezeonwuka (2018) 3 NWLR (pt 1606) 187.
If a litigant is not satisfied with the performance of his Counsel, he has a right to change his Counsel as this right translates to the constitutional right of a party to have a Counsel of his choice. See Akuma vs Ezikpe (2001) 8 NWLR (pt 716) 547; Martains vs FRN (2018) 13 NWLR (pt 1637) 523. However, for as long as the litigant has not changed Counsel, the decision taken by Counsel on behalf of his client litigant is binding on the litigant. See Ojo vs Adesida (2020) 10 NWLR (pt 1723) 347; G.T.B. vs Est Master Const. LTD (2018) 8 NWLR (pt 1622) 483; Abah vs Monday (2015) 14 NWLR (pt 1480) 569.
Sounding more specific, since the Appellant was represented by Counsel, the illiteracy status of the Appellant is of no relevance. The Counsel briefed by the Appellant should take responsibility for his action and similarly, the Appellant must be bound by the decision taken on his behalf by his Counsel.

One lifeline of the Appellant is gone. Let us now turn to the remaining lifeline to see whether that will be the saving grace for the Appellant/Applicant and indeed this application. Appellant’s Counsel has submitted that the mistake or error in not objecting to Exhibits A and B is that of Counsel and therefore should not be visited on the litigant. The Counsel was careless and not diligent when he allowed the forged Exhibits A and B which are proceedings in Suit No: CV/312/1999 to be tendered in the lower Court without objection. The Learned Counsel representing the Appellant when confronted with Exhibits A and B, went through it and said, he was not opposed to the admissibility of the documents. It is this document that the Appellant by this application is now challenging. Can he do that now? I really do not think so.

The Appellant’s Counsel, Benjamin Sati Esq. has implicitly submitted in establishing the trite legal principle of Court not visiting mistake of Counsel on litigant in that the mistake is that of Counsel and therefore it should not be visited on the Appellant. The above legal principle has received a lot of judicial recognition. See Haruna vs Modibbo (2004) 16 NWLR (pt 900) 487; Daniel vs FRN (2014) 8 NWLR (pt 1410) 570; N.N.P.C. vs Samfadeksons Ltd (2018) 7 NWLR (pt 1617) 1.
The point must however be made that this principle is not a blanket cheque given to the Appellant as an escape route when the Appellant has a bad case. That is not the purport of that principle. Like almost everything in life, there is a limit to the application of this principle. There are many lawyers in Gombe and if the Appellant decided to brief a lawyer who messed up his case, he cannot deny the lawyer whom he briefed and escape the consequences of the well thought out decision of his Counsel in the process of conducting the case on his behalf. When a litigant briefs a Counsel, he is bound by the decision taken by his Counsel with regards to his case. The kind of error anticipated by the principle does not include deliberate decisions taken by Counsel on behalf of his client. The principle only covers errors on procedural irregularity and not errors in relation to how Counsel conducts the case of his client, the litigant. See Trans Nab Ltd vs Joseph (1997) 5 NWLR (pt 504) 176. In fact, it does not cover a situation where the error is based on Counsel incompetence as in the case before this Court. See Emmanuel vs Gomez (2009) 7 NWLR (pt 1139) 1.The Appellant is bound by the decision of his Counsel H. I. Yerima Esq who took a decision not to oppose a document which his new Counsel is now claiming was forged.
A mistake or error does not involve steps taken based on informed decision. In this case, it is averred even by the Appellant/Applicant that his Counsel saw the document, examined same and took a decision based on his knowledge of the law. That step and decision taken by Counsel cannot come within the purview of mistake of counsel. In Agumadu vs Agumadu (2022) 2 NWLR (pt 1813) 127, the apex Court held as follows:
“Court for justice sake, cannot visit the error or inadvertence of counsel on the litigant. In the instant case, the counsel to the appellants presented seemingly cogent reasons for the failure to file the appellants’ brief of argument within the time stipulated by the Court of Appeal Rules, which were tilted towards the mistake of counsel, and thus should not be visited on the appellants to warrant the order of striking out the appeal for want of diligent prosecution. The Court of Appeal, however, considered the reasons for the appellants’ default and judicially and judiciously struck out the appeal for want of diligent prosecution. Furthermore, there are mistakes of counsel that the litigant must inescapably bear the brunt of. The present case unfortunately falls within the sphere of such mistakes.
There are exceptions to the rule that inadvertence or error of counsel should not be visited on the litigant. Failure or inadvertence of counsel to file notice of appeal within time is fatal. Where there has been a failure of strategy or tactic on the part of counsel, the litigant cannot escape such blunders committed by his counsel because if the strategy had worked, both the counsel and his client would have taken full credit. Accordingly, they must also take full responsibility for the failure of the strategy. Mischief, ineptitude or strategic blunders are not envisaged by the rule that inadvertence of counsel should not be visited on the litigant. The rule cannot be applied to foist injustice on another party. [Asore v. Lemomu (1994) 7 NWLR (Pt. 356) 284; Okwelume v. Anoliefo (1996) 1 NWLR (Pt. 425) 468; N.N.P.C. v. Samfadek & Sons Ltd. (2018) 7 NWLR (Pt. 1617) 1 referred to.] (P. 157, paras. D-G)
Although the mistakes of a counsel ought not to be visited on the litigants, the appellants herein showed a total lack of interest, seriousness and commitment towards the prosecution of the appeal. After they changed their counsel in 2009, they did not find out the status of their appeal until it was struck out in 2011. Therefore, their argument about not visiting the mistakes of counsel on the litigant did not avail them.”

Since the error of Counsel is not on procedural irregularity but based on the deliberate decision of Counsel in the conduct of the case of the litigant, the Appellant in my opinion has lost his second lifeline. In this circumstance, I cannot agree with the Appellant’s Counsel in this regard.

At this point, it will not be out of place to look at the affidavit in support and the further affidavit of the Appellant. To grant this application, this Court must be satisfied that the evidence sought to be adduced at this stage was either not available at the time of the trial or could not have been obtained with reasonable diligence. The Appellant should also show in the affidavit that the evidence is credible and has an important effect on the result or outcome of the appeal. The duty to disclose those in the affidavit is on the Appellant/Applicant. It is not just enough to make averment in that respect but the averment must be backed up with material fact in the affidavit to enable the Court arrive at a decision in favour of the Appellant/Applicant. In a case or application fought on affidavit, the evidence is on the affidavit. When the affidavit is therefore bereft of any material facts, the application will be dismissed. See Muhammadu Buhari & Ors vs Chief Olusegun Aremu Obasanjo & Ors (2003) 11 SC 74; Jolabon Inv. (Nig) Ltd vs Oyus International Company (Nig) Ltd (2015) 18 NWLR (pt 1490) 30. I have looked at the affidavit evidence, there is only general averment that the fresh and additional evidence sought to be adduced is important in the result of the appeal. Paragraph 16 only state a general averment without answering the question in the affidavit how Exhibits Lk1- Lk6 is important for the outcome of the case. The Appellant/Applicant has failed in this respect. For ease of reference, I reproduce paragraph 16 of the supporting affidavit.
That this Court will find from Exhibit LK 5&6 attached to our main motion that Exhibit A tendered before the lower High Court was actually doctored as the said Kaltungo Upper Area Court found after recalling the record book of the area Court that the trial was not concluded to judgment.
Before I draw the curtain on this application, to enable this Court determine whether the evidence is credible or it is important to affect the result of the case, the document sought to be tendered must be such that a Court can look at. I have looked at the exhibits that is LK1-LK6, I make bold to say in the eyes of the law they cannot be given any recognition because the documents being public document will have to be certified in line with Sections 104 and 105 of the Evidence Act. The documents were not properly certified and therefore cannot be looked at to determine their credibility and how they are important to the result or outcome of the case.

On the other hand, the documents of the Respondent attached to the Counter affidavit as Exhibits A, B, C, D1, D2, E1, E2, F1, F2, and G are properly certified. They are better in the eyes of the law than the documents of the Appellant/Applicant.
On the whole, this application fails and is dismissed.
I award N70,000 cost in favour of the Respondent.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the lead Ruling of my learned brother, Ebiowei Tobi, J.C.A. I agree with his reasoning and conclusion. I will add a few words.

I have given consideration to the application brought by the Applicant herein seeking to adduce fresh evidence on appeal. This application is clearly governed by Order 4 Rule 2 of the Court of Appeal Rules, 2021. Therein, it is unmistakable that only fresh evidence of matters that occurred after the date of trial or hearing shall be admitted on appeal, except on special grounds. Such special grounds are as enunciated in several decided cases, such as Sharing Cross Educational Services Ltd V Umaru Adamu Enterprises Ltd (2020) LPELR-49567(SC).
Therefore, the three conditions to be met by an applicant in an application of this nature, are:
1. That the fresh evidence sought to be adduced on appeal did not exist at the time the case was filed, or that even if it did, the applicant could not have discovered or obtained the document by reasonable diligence;
2. That the Applicant establishes to the Court that the fresh evidence, when examined, will have an important influence on the outcome of the appeal; and
3. That the fresh evidence sought to be produced is credible.

Upon scrutinizing the affidavit evidence of the Applicant, in particular paragraphs 11, 12 and 16 thereof, I am of the considered view that the reasons advanced in an attempt to fulfill the conditions precedent to the grant of the application, fall short of meeting the conditions for the grant of the application. Firstly, the contention that the Applicant is an illiterate does not hold water because the Appellant was ably represented by Counsel all through the proceedings of the Court below as well as the lower Court, before the appeal arrived at this Court. Yet, no such application was brought before the lower Court.

Counsel for the Applicant more specifically contends that the reason for the application is because the former Counsel failed to object to the admissibility of Exhibits A and B (proceedings in Suit No. CV/312/1999) on the basis that they were forged documents. That this mistake or error wherein Counsel allowed Exhibits A and B to be admitted in evidence, which is attributed to carelessness and lack of diligence of Counsel, should not be visited on the litigant. On this contention, I agree with the lead Judgment that the Applicant, having farmed out his case to Counsel of his own choosing, as is his constitutional right to so do, he will sink or swim with the professional decisions taken by Counsel in representing him in Court. It cannot be the intention of the law that a litigant be given a second bite at the cherry where Counsel takes steps during the conduct of his client’s case which he should not have taken.
The law is settled that once Counsel is briefed or engaged to handle a case, he has complete control over the case to decide in his own understanding as to how best to conduct his client’s case. In respect of the extent and/or limit of the authority of Counsel, Nweze, JSC authoritatively expounded the law in his usual meticulous fashion in the case of Nyako V Adamawa State House of Assembly (2016) LPELR-41822(SC) 95-97, D-E, thus: “My Lords, the authority of counsel, duly instructed to conduct a case, to assume the plenitude of control over it, has never been doubted… Being the dominus litus in regard to the control and conduct of his client’s case in Court, albeit to the best of his ability, FRN V Adewunmi (2007) 10 NWLR (Pt. 1042) 399, his power to compromise the case, subject only to the qualification that he is not in fraud of his client, has neither been impugned nor his competence to submit to judgment impeached, Mosheshe General Merchants Ltd V Nigeria Steel Products Ltd (1987) 2 NWLR (Pt. 55) 110; Akanbi V Alao (1989) NWLR (Pt. 108) 118. Hence, while in control thereof, his client is bound by all action orbit within the sphere of his actual authority without any express or implied limitation…
As this Court intoned, most magisterially, in AG of the Federation V A.I.C. Ltd and Ors (1995) 2 NWLR (Pt. 378) 388:
“Counsel retained to conduct a case has general authority to consent to the withdrawal of the case and a compromise is within his apparent authority and binding on the client notwithstanding that the client may have dissented unless the dissent was brought to the notice of the opposite party at the time. The apparent authority with which counsel is clothed when he appears to conduct a case is to do everything which in the exercise of his discretion he may think in the best interest of his client in the conduct of the case if within the limits of this apparent authority he enters into an agreement should be held binding on his client.”
On the above premises, I endorse the compelling submissions of counsel for the respondents… As this Court held in Mosheshe General Merchants Ltd V Nigeria Steel Products Ltd (supra):
“Counsel who has been briefed and has accepted the brief… can compromise the case. He can submit to judgment. Sometimes he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the Court. The only thing open to the client is to withdraw instructions or if the counsel was negligent sue in tort for professional negligence. Such are the powers but such are also the risks.”

It is therefore difficult in these circumstances for the Applicant to attempt to detach himself from the professional decisions made by his Counsel in representing him at the trial Court when Exhibits A and B were being tendered.

To place a final seal on the application, the Applicant has also failed to meet the second and third conditions for the grant of this application, which are that the fresh evidence sought to be produced on appeal will have an important influence on the appeal and that it is credible. This is because the said document, Exhibits LK1-LK6 being a public document, has not been certified as required by Sections 104 and 105 of the Evidence Act, 2011. Thus, legally, the documents cannot be countenanced by the Court to make a determination one way or another.

Thus, the Applicant having failed to satisfy any of the conditions for the grant of this application, the application is refused and accordingly dismissed. I abide by the Order on cost.

IBRAHIM SHATA BDLIYA, J.C.A.: My learned brother, EBIOWEI TOBI, JCA, obliged me with a draft copy of the ruling. I am in agreement with the reasoning and conclusion of my learned brother that this application lacks merit. I have nothing useful to add. I adopt his reasoning and conclusion as mine and also dismiss the application for lacking in merit. I abide by the order on costs.