MR. TOM IMAJI ABALAKA V. NIGERIAN AIRSPACE MANAGEMENT AGENCY & ANOR
(2010)LCN/3628(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of March, 2010
CA/A/216/2006
RATIO
APPEAL: CONDITIONS FOR THE COURT TO GRANT AN ORDER TO GIVE ADDITIONAL EVIDENCE ON APPEAL
In an application of this nature where the Applicant is asking for an order of this Court allowing him to give additional evidence on appeal, certain conditions as spelt out under Order 4 rule 2 of the Court of Appeal rules 2007 must be fulfilled. The said Order 4 rule 2 empowered this Court 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.
It is clear that from the provisions of Order 4 rule 2 of the Court of Appeal Rules 2007, the conditions for receiving additional evidence on appeal are strict, and that notwithstanding this Court, while applying, the rule often holds itself bound to consider the ends of Justice and will act judiciously in determining whether to grant or refuse such an application for leave to adduce further evidence on appeal. Also the special facts and circumstances of each case must be considered, in addition to considering whether or not sufficient diligence has been put into the Applicant’s effort to secure the particular evidence for use during the trial at the trial Court. The strictness of this rule is further emphasized under the rules of this Court wherein it is provided that in case of an appeal from a Judgment after trial or hearing of a case on the merits, no further evidence shall be admitted other than that of matters which occurred after the date of the trial except on special grounds. It means that, if there are special grounds, this Court has the powers to admit further evidence even as to matters which occurred or were in existence before or after the date of trial. PER JIMI OLUKAYODE BADA, J.C.A.
APPEAL: PRINCIPLES GUIDING THE APPEAL COURT IN EXERCISING ITS DISCRETION WHETHER TO ADMIT FURTHER EVIDENCE OR NOT
Furthermore, it is settled law that it is within the discretion of the Court to decide whether or not to admit further/additional evidence on appeal. In an effort at attaining the standard of exercising the discretion judicially and judiciously in granting leave to adduce fresh evidence on appeal, the Courts have set down certain principles as guide and they are:-
(a) The evidence sought to be tendered must be such that could not have been with reasonable diligence obtained for use at the trial;
(b) The evidence should be such that if admitted would have an important not necessarily credible effect on the whole case; and
(c) The evidence must be such that is apparently credible in the sense that it is capable of being believed and it needs not be incontrovertible.
These conditions must co-exist for the Court to exercise its discretion in favour of the Appellant. See the case of:- Ehinlanwo vs. Oke (2008) 16 NWLR Part 1113 at Page 357. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES:
RABIU DANLAMI MUHAMMAD Justice of The Court of Appeal of Nigeria
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
MR. TOM IMAJI ABALAKA – Appellant(s)
AND
1. NIGERIAN AIRSPACE MANAGEMENT AGENCY
2. THE ATTORNEY GENERAL OF THE FEDERATION – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Lead Ruling): This is an application dated the 25th day of March 2008 and filed on the same date in which the Appellant/Applicant prayed for the following orders:-
“(1) An Order granting leave to the Appellant/Applicant to give additional evidence on appeal by tendering the Nigerian Airspace Management Agency, Staff Conditions of Service dated 7th September 2001, copy annexed hereto as Exhibit “TA9”.
(2) An Order receiving the Conditions of Service, Exhibit “TA9″ hereto as additional evidence.
(3) Leave to amend the Applicant’s Brief of Argument accordingly.”
Grounds upon which the Application is brought.
(1) The conditions of service binds both parties.
(2) The Appellant erroneously failed to tender the Conditions of Service before the lower Court.
(3) The Appellant Counsel intended to tender it from the bar since both parties relied on it but simply forgot to do so.
(4) Both parties referred copiously to its provisions in their various final addresses before the lower Court and this constitutes a special ground on which to allow the application.
(5) The Courts do not visit the sins of Counsel on the litigant as they strife in every situation to do substantial and not technical Justice.
The application is supported by an affidavit of 6 paragraphs, pertinent paragraphs of which are 4(a) to 4(e) and 5 set out as follows:-
“4 That I have been informed in Chambers at Suite 1B, Bassan Plaza, Central Business District, Abuja by Isaac Okpanachi of Counsel at 3pm on Wednesday the 19th day of March, 2008 and I verily believe him:-
(a) That the provisions of the Conditions of Service of the Respondent was the principal document the lower Court was called upon to interpret in this suit.
(b) That because of the bulk of the book (99 pages) and because both parties had copiously relied on its provisions, the Appellants Counsel intended to tender it from the bar at the end of his address.
(c) That when he concluded his address before the Court on 29th September, 2005, he plainly forgot to tender the book before the Court.
(d) That this failure was not deliberate as the hook was pivotal to the determination of the dispute the Appellant as Plaintiff brought before the lower Court.
(e) That the Appellant never realized this great mistake until the lower Court dismissed his suit because of the failure of Counsel to tender the book.
5. That it is only in the interest of justice that this application he granted to allow the Court consider the provisions of the Conditions of Service-”
In opposition to the application the learned Counsel for the Respondents filed a Counter Affidavit of 5 paragraphs, pertinent paragraphs of which are 3 and 4 set out as follows:-
“3. That I was informed by G. F. Zi Esq Counsel in the Chambers of the Honourable Attorney General of the Federation and Minister of Justice on the 28th day of May, 2008 in his office at about 1.00 p.m. and I verily believe him as follows:-
(a) That the averments in the Applicant’s Affidavit are not contained in the notice and grounds of Appeal in this matter.
(b) That the parties in this appeal have joined issues and the Appeal has been adjourned to 9th June, 2008 for hearing.
(c) That no conditions of service was tendered before the trial Court.
(d) That the trial Court has already given its judgment in this matter hence this appeal.
(e) That the Applicant is seeking to introduce fresh evidence not tendered at the lower Court.
(f) That no book was pivotal to the determination of the suit at the lower Court.
4. That it is not in the interest of justice to grant the orders sought by the Applicant.”
Written addresses were ordered in this application.
At the hearing, learned Counsel for the Appellant/Applicant referred to the written address filed on 29/10/08 and he adopted it in urging this Court to grant the application.
The learned Counsel for the Respondents also referred to the written address filed on 24/4/09, he adopted it in urging this Court to refuse the application.
The learned Counsel for the Appellant/Applicant brought this application pursuant to Order 4 Rule 2 of the Court of Appeal Rules 2007 and Sections 15 and 26 of the Court of Appeal Act Cap. 75 Laws of the Federation of Nigeria 1990.
He relied on the affidavit in support of the application as well as the grounds relied upon in bringing the application.
The learned Counsel for the Appellant/Applicant stated that his failure to tender the Conditions of Service at the end of trial is purely procedural.
He stated further that the Appellant did not rely on the document only to deliberately keep it away from the Court. He urged this Court to determine the appeal on its merit. He relied on the following cases:-
Ndika vs. Chiejina (2003) 1 NWLR Part 802 Page 451 at 483:
Ahmadu vs. Salawa (1974) NSCC Page 538 at 542:
E.B.N. vs. Jibo (2006) 9 NWLR Part 985 Page 255 at 271 – 272:
Akanbi vs. Alao (1989) 3 NWLR Part 108 Page 118 at 154.
He finally urged this Court to grant the application.
The learned Counsel for the Respondents referred to the Counter Affidavit and he submitted that the reliefs being claimed by the Appellant in his application contained issues not raised in the Appellant’s Notice and Grounds of Appeal.
He emphasized that the Appellant/Applicant did not raise the issue of Conditions of Service in his notice and grounds of appeal. He urged this Court to refuse the Appellant’s prayers. He relied on the following cases:-
-Bhojsons Plc vs. Daniel Kalio (2005) 5 NWLR Part 979 Page 330 at 355.
-I.B.W.A. Ltd vs. Pavex International (Nig) Ltd (2000) 7 NWLR Part 663 Page 105.
He submitted further that before the findings of a trial Court can be contested at a Court exercising appellate jurisdiction, there must be a ground of appeal complaining of the inadequacies in the findings or decisions of the trial Court, without such ground of appeal the findings or decisions of the trial Court stand and no argument to undermine them, no matter even indirectly, will be entertained by the Court of Appeal. He referred to the following cases:-
-Bhojsons Plc vs. Daniel Kalio (Supra) at Page 351 Paragraphs C – D:
Ekpa vs. Utong (1991) 6 NWLR Part 197 Page 258.
Learned Counsel for the Respondents also submitted that even the omnibus ground of appeal cannot be used by the Appellant/Applicant to raise the issue of conditions of service. Appellate Courts are bound by the notice and grounds of appeal just as the trial Court are bound by the pleadings before them.
The learned Counsel for the Respondents finally submitted that the application by the Appellant/Applicant to adduce additional evidence i.e. the Conditions of Service was not supported by reasonable grounds. He stated that at best the application is an afterthought having realized same when the trial Court dismissed the Appellant/Applicant’s Claims. He went further in his argument that the failure of the Appellant/Applicant to plead or depose to the facts in the Originating Summons which would have permitted him to use or tender the said Conditions of Service is fatal to the application.
In an application of this nature where the Applicant is asking for an order of this Court allowing him to give additional evidence on appeal, certain conditions as spelt out under Order 4 rule 2 of the Court of Appeal rules 2007 must be fulfilled. The said Order 4 rule 2 empowered this Court 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.
It is clear that from the provisions of Order 4 rule 2 of the Court of Appeal Rules 2007, the conditions for receiving additional evidence on appeal are strict, and that notwithstanding this Court, while applying, the rule often holds itself bound to consider the ends of Justice and will act judiciously in determining whether to grant or refuse such an application for leave to adduce further evidence on appeal. Also the special facts and circumstances of each case must be considered, in addition to considering whether or not sufficient diligence has been put into the Applicant’s effort to secure the particular evidence for use during the trial at the trial Court. The strictness of this rule is further emphasized under the rules of this Court wherein it is provided that in case of an appeal from a Judgment after trial or hearing of a case on the merits, no further evidence shall be admitted other than that of matters which occurred after the date of the trial except on special grounds. It means that, if there are special grounds, this Court has the powers to admit further evidence even as to matters which occurred or were in existence before or after the date of trial.
The Appellant/Applicant is craving for this Court’s indulgence to give additional evidence by tendering the Nigerian Airspace Management Agency, Staff Conditions of Service annexed to the Applicant’s affidavit in support of his motion. A careful examination of the affidavit in support of the Originating Summons brought before the trial Court showed that the Appellant/Applicant failed to tender and rely on the said Conditions of Service.
In the instant case, the Appellant/Applicant had the opportunity of tendering in evidence the Nigerian Airspace Management Agency, Staff Conditions of Service but it was not tendered because according to Counsel, he forgot.
The mistake was realized after the Judgment was delivered at the lower Court and the Appellant’s Claim dismissed.
Furthermore, it is settled law that it is within the discretion of the Court to decide whether or not to admit further/additional evidence on appeal. In an effort at attaining the standard of exercising the discretion judicially and judiciously in granting leave to adduce fresh evidence on appeal, the Courts have set down certain principles as guide and they are:-
(a) The evidence sought to be tendered must be such that could not have been with reasonable diligence obtained for use at the trial;
(b) The evidence should be such that if admitted would have an important not necessarily credible effect on the whole case; and
(c) The evidence must be such that is apparently credible in the sense that it is capable of being believed and it needs not be incontrovertible.
These conditions must co-exist for the Court to exercise its discretion in favour of the Appellant. See the case of:- Ehinlanwo vs. Oke (2008) 16 NWLR Part 1113 at Page 357.
In the instant case, the said Conditions of Service of the Nigerian Airspace Management Agency was available during trial but it was not tendered in evidence. Apart from that, the said document now being sought to be tendered is not a Certified True Copy of what it purports to be. I agree with the submissions of the learned Counsel for the Respondents that the 1st Respondent being a public institution, it is an institution to which the provisions of Sections 109, 111 and 112 of the Evidence Act 1990 applies to.
In view of the foregoing, the Conditions of Service not been certified true copies cannot be used or relied upon by this Court in the present proceedings.
The learned Counsel for the Appellant also said that he forgot to tender the document i.e. the Conditions of Service of the Nigerian Airspace Management Agency.
The reasonableness of the explanation as to why the Conditions of Service which though available at the time of trial was not tendered has to be examined having at the background the caution sounded by the Supreme Court in the case of:-
Ehinlanwo vs. Oke (Supra) where the Court adopted the observation of Oguntade JSC in – UBA Plc vs. BTL Ind. Ltd (2005) 10 NWLR Part 933 Page 356 at 370 – 371 :
“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 end to litigation and all the parties would be worse for the situation. Human experience shows that one often get wiser after an event…”
In this application under consideration, it is my view that the Appellant/Applicant became wiser after the Judgment of the lower Court, which dismissed his claims for failure to tender the Conditions of Service of the Nigerian Airspace Management Agency.
The said Conditions of Service was available at the time of trial but it was not tendered in evidence. In the circumstance, this Court cannot exercise its discretion in favour of the Appellant/Applicant.
In the final analysis, I find no merit in this application to adduce additional evidence on appeal, therefore the application is dismissed.
There shall be no order as to costs.
RABIU DANLAMI MUHAMMAD, PJ.C.A.: I agree.
UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the Ruling of my learned brother J.O. BADA, JCA, just delivered and I agree with his reasoning and conclusion that the application has no merit.
Order 4 Rule 2 of the Rules of this Court 2007, deals with receipt of further evidence. It 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.”
In the instant case, the Appellant/Applicant is urging the court to give additional evidence by tendering the Nigeria Airspace Management Agency, Staff’s Conditions of Service which the Appellant failed to tender at the trial court. The Appellant had the ample opportunity to tender the condition of service but submitted that he forgot.
The authority or power on whether or not to admit further or additional evidence on appeal is entirely at the discretion of the court to be exercised judicially and judiciously upon fulfilment of certain conditions precedent. In an attempt at attaining the standard of exercising this discretion judicially and judiciously in granting leave to adduce fresh evidence on appeal, the courts have set down certain principles as guide, to wit:-
a) The evidence sought to be adduced must be such that could not have been with reasonable diligence obtained for use at the trial;
b) The evidence should be such that if admitted would have an important, not necessarily credible effect on the whole case;
c) The evidence must be such that is apparently, credible in the sense that it is capable of being believed and it needs not be incontrovertible.
These conditions must co-exist for the court to exercise its discretion in favour of the Applicant. See UBA PLC V. BTL IND. LTD (2006) 19 NWLR (Pt.1013) 61; EHINLANWO V. OKE (2008) 16 NWLR (Pt.1113) 357.
In the instant application, the Appellant/Applicant has not by his affidavit evidence satisfied all the three conditions enumerated above and in any case, the Conditions of Service sought to be adduced by the Appellant/Applicant could have been tendered at the trial court along with all other Exhibits. This application is therefore an afterthought, to correct a wrong or mistake earlier committed with effect of perfecting his case before this Court. This cannot be allowed by this Court.
It is for this reason and the more detailed reasons in the Ruling of my learned brother, that I also dismiss the application.
I abide by any consequential Order including Order as to costs.
Appearances
ISAAC OKPANACHI with him are PAUL OMALE, LUWI NGUBANE For Appellant
AND
G. F. ZI Chief State Counsel, Federal Ministry of Justice Abuja For Respondent
