DUMBIRI EPHRAIM UWEH V. PEOPLES DEMOCRATIC PARTY (PDP) & ORS
(2010)LCN/3937(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of July, 2010
CA/A/125/M/2007
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISIONS OF ORDER 4 RULE 2 OF THE COURT OF APPEAL RULES 2007 AS TO THE POWERS OF THE COURT OF THE APPEAL TO RECEIVE FURTHER EVIDENCE ON QUESTIONS OF FACT
Order 4 rule 2 of the Court of Appeal Rules 2007 provides: “The Court shall have the 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.” PER ABDU ABOKI, J.C.A.
ADDUCING EVIDENCE ON APPEAL: WHAT CONSTITUTES SPECIAL GROUNDS THAT WILL PERMIT AN APPELLATE COURT TO RECEIVE FURTHER ADDUCE EVIDENCE ON QUESTION OF FACT
The Supreme Court gave an insight into what constitutes special grounds that will permit an appellate Court to further adduce evidence on question of fact, in the case of Ukariwo Obase & Ors. v. Eke Onwuka & Ors. (1987) 3 NWLR Pt. 61 page 364 at 370 Per Oputa JSC:- “In civil cases the Court may permit fresh evidence in furtherance of justice under the following circumstances:- (i) where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial. (ii) where the fresh evidence is such that if admitted would hove an important, but not necessarily crucial effect on the whole case. (iii) where the evidence sought to be tendered on appeal is apparently credible in the sense that it is capable of being believed. It need not necessarily be un-controvertible.” PER ABDU ABOKI, J.C.A.
PROCUREMENT OF EVIDENCE: WHETHER AN APPLICANT CAN BE ALLOWED TO USE HIS INADVERTENCE OR FAILURE TO EXERCISE DUE DILIGENCE IN THE PROCUREMENT OF EVIDENCE AT THE TRIAL COURT AS AN EXCUSE IN BRINGING AND LEADING EVIDENCE ON APPEAL
It is trite 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. In the instant case, in order to ascertain the propriety of the Appellant/Applicant’s application, the facts in support of his application will be mirrored against the conditions laid down for the grant of such application by an appellate Court. PER ABDU ABOKI, J.C.A.
ADMISSION OF FURTHER EVIDENCE ON APPEAL: WHETHER AFTER THE HEARING OF ANY CAUSE OR MATTER ON THE MERIT THE COURT OF APPEAL WILL NOT ALLOW FURTHER EVIDENCE TO BE ADMITTED ON APPEAL FROM THE JUDGMENT
After hearing of any cause or matter on the merit the Court of Appeal will not allow further evidence to be admitted on Appeal from the Judgment. It is the duty of a party to adduce the evidence he wishes at trial and an appellate Court will not remit a case back to the lower Court for the purpose of taking more evidence. See Enekebe v. Enekebe (supra). PER ABDU ABOKI, J.C.A.
FRESH EVIDENCE: WHETHER AN APPLICANT MUST SHOW SPECIAL GROUNDS TO JUSTIFY THE RECEPTION OF FRESH EVIDENCE AFTER A TRIAL ON THE MERIT
In order to justify the reception of fresh evidence after a trial on the merit, the Applicant must show that there are special grounds for doing so. Some of such grounds are as laid down in Ladd v. Marshal (1954) 3 All ER745 which decision has been followed by several decided cases in this Country. Some of the grounds are as follows: (a) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial.See: Asaboro v. Aruwaji (1974) 4 SC 49; Arudu v. Adepoju (1961) 1 All NLR 722; Peterside v. IMB (Nig.) Ltd. (1993) 2 NWLR Pt. 278 page 22. PER ABDU ABOKI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
DUMBIRI EPHRAIM UWEH – Appellant(s)
AND
1. PEOPLES DEMOCRATIC PARTY (PDP)
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
3. HON. PRINCE SAM OBI – Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Lead Ruling): The Applicant filed two applications before this Court on 13/1/10 and 19/1/10 respectively. Both applications being contentious, the court on 16/2/10 ordered parties to file written addresses in respect of each of the applications.
The first application is seeking for leave of this court to adduce further evidence in this Appeal by tendering a letter of substitution dated 12/1/07 and Form CF.001; whilst the second application seeks leave of this court to amend the Notice of Appeal and to deem the amended Notice of Appeal filed as being properly filed and served.
When both applications came up for hearing the Applicant adopted the written Addresses filed on 3/3/10 and, 16/4/10 respectively and urged this court to grant both applications.
The 1st Respondent the Peoples Democratic Party (PDP) was absent and unrepresented. The Records of the Court showed that their Counsel was in Court on 19/4/10 when the date for the hearing of both applications was fixed and agreed to by all the parties. No argument was canvassed on behalf of the 1st Respondents in respect of both applications.
Learned Counsel for the 2nd Respondent Glory Zakka (Mrs.) informed the Court that they were not objecting to the grant of both applications by the Court.
O.D. Emole learned Counsel for the 3rd Respondent informed the Court that they were opposing both applications and had filed a Counter-affidavit dated 19/1/10 and a written address on 31/3/10 against the application seeking to adduce further evidence on the matter on Appeal. He also informed the Court they have also filed a counter-affidavit on 19/1/10 and a written address dated 31/3/10 against the application for leave to amend the Notice of Appeal
O.D. Emole adopted the written addresses in respect of both applications and urged the Court to refuse both Applications.
The two applications will be treated separately.
The first application dated 8th January 2010 and filed 13/1/2010 is praying for the following orders:
“An order allowing the Appellant/Applicant to adduce further evidence in this appeal by tendering Accord letter of substitution dated 12th January 2007 and Form CF.001.
AND for such further orders as this Honourable Court may deem fit to make in the circumstances.”
The Applicant gave the grounds of the application as follows:
“(i) The Appellant/Interested Party was granted leave to appeal as an interested party after the appeal has been entered.
(ii) The further evidence will bring all the issues to the fore for a just and equitable determination.”
In support of the application is a six paragraph affidavit. Paragraphs 4 and 5 of the affidavit are pertinent and are hereby reproduced as follows:
“4. That the Appellant/Applicant informed me on 27th day of August 2009 at our chambers by 3 p.m. of the following facts which I verily believe to be true and correct:-
(a) That the Appellant/Interested party has filed his notice of Appeal in line with the Court’s order granting him leave to do so.
(b) That the Appellant/Interested Party was not a party at the Court of first instance and in the instant Court until he was joined and granted leave to appeal.
(c) That the Appellant/Interested party, the purported PDP candidate for Ika North East Constituency, Honourable Sam Obi was the candidate of Accord party for the April 2007 State House of Assembly Elections, whose name was used to substitute the name of one Samuel Aghaulor.
(d) The Appellant/Applicant got to know of the above state of affairs as it pertains the Appellant/Interested party at the Delta Election Petition Tribunal sitting at Asaba, shortly after the conclusion of the pre-election case at the Federal High Court on the 1st of June 2007.
(e) That immediately he became aware of the existence of the aforesaid facts, the Appellant wrote a letter dated 4th of June 2007 to the legal Adviser of the 2nd Respondent (INEC) requesting for the certified true copies of the following documents:
1. Letter of Accord Party substituting candidates of three State House of Assembly seats in Delta State.
2. Form CF001 of Samuel Aghaulor.
3. State Assembly notice of withdrawal/substitution of candidate and submission of name of substituted party form.
4. Validity of substitution of candidate member of House of Assembly Form CF006 (iii). The said letter dated 4th of June 2007 is hereby exhibited and marked as Exhibit A.
(f) That the 2nd Respondent wrote a letter dated 7th June 2007 to the Appellant referring him to the Resident Electoral Commissioner in the Commission’s office in Asaba. The said letter is hereby exhibited and marked as Exhibit B.
(g) That the Appellant wrote a letter dated 8th June 2007 to the Resident Electoral Commissioner in the Commission’s office in Asaba requesting for the aforesaid documents. The letter is hereby exhibited and marked as Exhibit C.
(h) That the Appellant made several physical visits to the 2nd Respondent’s offices both in Abuja and Asaba respectively and was never obliged with the certified true copies of the documents requested till date.
(i) That the Appellant subsequently collected certified true copies of some of the said documents from a law firm Ajunwa and Co. who were handling an Election petition for Accord Party.
(j) That a copy of the Accord letter of substitution dated 12th January 2007 and Form CF001 is hereby exhibited and marked Exhibit D.
(k) That the Appellant/Interested Party was not a party at the Court of first instance at the Federal High Court.
(l) That the further evidence sought to be adduced could not be obtained by the Appellant/Applicant at the trial because he was not aware of the aforesaid facts at the material time.
(m) That the further evidence sought to be adduced will have an important influence on the result of the case.
(n) That the further evidence sought to be adduced is credible and capable of being believed.
(o) That it is imperative to adduce further evidence because of the leave granted to the Appellant/Interested party to appeal as an interested party.
(p) That adducing further evidence will bring all the issues to the fore for a just and equitable determination by the Court.
5. That it will be in the interest of justice to allow this Application.”
Learned counsel for the Applicant submitted that the application is brought pursuant to order 4 rule 2 of the court of Appeal Rules 2007, which empowers the court to receive further evidence on questions of fact as to matters which have occurred after the date of the trial as hearing upon special grounds.
A sole issue was submitted by the Applicant for the determination of the application, thus:-
“Whether the Appellant/Applicant can adduce further evidence in this Appeal?”
Learned Counsel for the Applicant submitted that a long line of cases have distilled the requisite conditions upon which an appellate court will permit the use of fresh evidence, thus:-
a. the evidence sought to be adduced must have come about after the hearing in the trial Court, or
b. it is such as could not have been with reasonable diligence obtained for use at the trial, or
c. the evidence is such that if admitted, it could have an important not necessarily crucial effect on the whole case, or
d. the evidence must be credible in the sense that it is capable of being believed and it need not be incontrovertible, or
e. special circumstances exist for admitting such evidence.
He referred the Court to the cases of:
Akinwale v. Amodu (1991) 7 NWLR Pt. 206 page 710 at 717;
Obasi v. Onwuka (1987) 3 NWLR Pt. 61 page 364:
Adeleke V. Aserifa (1986) 3 NWLR Pt. 30 page 575;
Amaechi v. INEC (2008) 5 NWLR Pt. 1080 page 227 at 377;
Ilorin South L.G.A. v. Afolabi (2003) 16 NWLR Pt. 846 page 274 at 277;
Okoro v. Egbuoh (2002) 15 NWLR Pt. 1001 page 1 at 5;
FBN Plc. v. Jibo (2006) 9 NWLR Pt. 985 page 258.
He submitted that the Appellant/Applicant has satisfied the conditions in tandem with the principle that all the conditions must be satisfied together and at the same time. He referred the Court to the case of Owata v. Anyibor (1993) 2 NWLR Pt. 276 page 380.
Learned counsel referred the court to paragraphs 4a-4p which he insisted showed that the evidence now sought to be adduced came to the knowledge of the Applicant after the conclusion of this case at the lower Court on the 1st day of June 2007 and that the evidence could not be obtained with reasonable diligence at the trial Court.
Learned counsel argued that the Appellant/Interested party was not a party at the court below. He maintained that the Appellant/Applicant only got to know of fact that the Appellant/Interested party the purported PDP candidate for Ika North East constituency was the candidate of Accord party for the 2007 State House of Assembly elections whose name was used to substitute the name of one Samuel Aghaulor at the Delta Election petition Tribunal sitting at Asaba, after the conclusion of the pre-election case at the Federal High Court.
A.K. Allotey contended that the Appellant took immediate steps upon becoming aware of the existence of the said facts; that the Appellant wrote a letter dated 4th June 2007 to the Legal Adviser of the 2nd Respondent (INEC) requesting for certified true copies of the letter of Accord party substituting candidates of three State House of Assembly seat in Delta State Form CF001 of Samuel Aghaulor and that the 2nd Respondent’s Legal Adviser wrote a letter dated 7th June 2007 to the Appellant referring him to the Resident Electoral commissioner Asaba.
Learned counsel maintained that the Appellant wrote a letter to the Resident Electoral commissioner and also made several physical visits to the 2nd Respondent’s offices at Abuja and Asaba respectively and was never obliged with the certified true copies of the documents till date.
He argued that from the affidavit evidence before this court, the Appellant was not aware of the existence of the said facts prior to or during the pendency of the case in the lower Court and that the Appellant only became aware of the said facts after the Judgment of the Federal High Court.
A.K. Allotey argued that the further evidence, if admitted, would have an important influence on the case. He contended that it would change the character and complexion of the whole case and would go to the root of the Appellant/Interested Party’s Appeal; that it would also show that the Appellant/Interested Party was not the bona fide candidate of the Peoples Democratic Party for the Ika North East Constituency and that his name was used to substitute the name of one Samuel Aghaulor of Accord Party. He further contended that it will clearly show he has no locus in the matter.
Learned Counsel for the Applicant maintained that the evidence is credible and cogent as the 1st Respondent, INEC, the custodian of electoral documents has not denied the said documents which are within their custody. He argued that INEC, through a letter dated 7th June, 2007 addressed to the Appellant, referred the Appellant to their office in Asaba which had custody of the said documents. He further argued that this can be gleaned from Exhibit B of the Appellant’s affidavit in support of the application to adduce further evidence. Learned Counsel contended that the 2nd Respondent has not filed a counter-affidavit denying the above facts. He submitted that it is trite law, that depositions of facts in an Affidavit that are not countered are deemed as admitted and referred the Court to the case of P.M.B. Ltd. v. U.T.C. Ltd. (2007) 3 NWLR Pt. 1021 at page 345.
A.K. Allotey submitted that the circumstances of this case are such that Section 149(d) of the Evidence Act should be construed against the 2nd Respondent. He argued that the said section provides that evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it.
Learned Counsel further submitted that the evidence sought to be adduced is cogent and credible. He contended that contrary to paragraphs 10 and 12 of the Counter-affidavit, the letter from the Accord Party on substitution is not a public document within the meaning of Section 109 of the Evidence Act. He insisted that the letter not being a Public document, the need for certification does not arise as it does not fall within any of the subsections of Section 109 of the Evidence Act.
A.K. Allotey argued that in respect of the INEC document, Form CF001, it was certified by an official of INEC as required by law, being a public document required to be kept by a public officer.
Learned counsel for the Applicant finally submitted that it is in the interest of justice to grant this application since the paramount consideration for the exercise of the power of the court of Appeal to receive further evidence is to ensure a determination on the merit of the real questions in controversy between the parties. He referred the Court to the case of F.B.N. plc. v. Jibo (supra).
Learned counsel maintained that the Appellant/Applicant has fulfilled all the conditions for leave to adduce further evidence and he urged the court to so hold and grant the leave sought.
In opposition to the application, Learned Senior Counsel for the 3rd Respondent/Interested Party/Appellant referred the court to their fifteen-paragraph Counter-affidavit dated and filed 19/1/10.
Paragraphs 4-14 of the said counter-affidavit are pertinent to this application and are hereby adumbrated as follows:
“4. That the set of documents now referred to as further evidence by the Appellant/Respondent/Applicant in this Motion are the same set of documents they earlier filed on the 6th day of October 2009 as “additional record” which the Appellant/Interested Party has responded with a Counter-affidavit dated the 3rd November 2009.
5. That this present application is a ploy by the Appellant/Respondent/Applicant to circumvent the apparent flaw in their earlier application which was seriously contested by Appellant/Interested party in the Counter-affidavit which is still pending before this Honourable Court.
6. That the Appellant/Applicant’s motion to introduce the Accord letter of substitution dated 12th January 2007 in Form CF001 as an “additional record of proceedings” is still pending before this Honourable Court.
7. That this later Application is a duplication of motion dated 5th October 2009 and filed on 6th October 2009.
8. That the Appellant/Respondent/Applicant has not shown the Court why they want to adduce further evidence at this Appeal stage.
9. That the Appellant/Respondent/Applicant cannot adduce further evidence at this stage.
10. That based on the Applicant’s averments in paragraph 4(i) the purported document of the Independent National Electoral Commission (INEC) did not emanate from proper custody as same were obtained from the Law Firm of Ajunwa and Co. a private legal practitioner.
11. That the admitted delay or inability of the Appellant/ Respondent/Applicant to obtain records from proper custody and have them certified by the appropriate authority does not rectify the abnormality in procedure.
12. That the documents sought to be introduced now are irrelevant to this case.
13. That the documents were not certified by the appropriate agencies.
14. That this Application will overreach the Appellant/Interested Party who has filed and served his brief of argument.”
In the written address filed on behalf of the Appellant/Interested Party/Respondent in opposition to this application a lone issue is presented for the determination of this application as follows:-
“Whether inadvertence or lack of awareness constitutes special circumstance to necessitate leave to adduce further evidence.”
It was submitted by Learned Senior Counsel for the Appellant/Interested Party/Respondent that the Appellant/Applicant is not entitled to leave of this Court to adduce further evidence in this Appeal when no special grounds or circumstances was disclosed in the Affidavit in support of the Motion to warrant the grant of the application. The Court was referred to the provisions of Order 4 Rule 2 of the Court of Appeal Rules 2007 and the case of Okoro v. Eebuoh (2006) 15 NWLR Pt. 1001 page 1.
Learned Senior Counsel O.I. Olurundare argued that in the instant Application, the further evidence sought to be adduced does not fall into any of the recognized grounds for its admissibility. He submitted that the import of Order 4 Rule 2 is that further evidence will be admitted at the Court of Appeal on two broad grounds i.e.
(1) where the evidence is as to matters which have occurred after the date of the trial or hearing, or
(2) where special grounds is stated in the affidavit in support of the application.
On the first ground learned Senior Counsel maintained that it is crystal clear that the evidence sought to be adduced were not matters that occurred after the trial or hearing and the Applicant has not said so.
He argued that the special grounds the Court will take into consideration on the other hand, when called upon to exercise their powers to grant further evidence are that:
a. The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial.
b. The evidence should be such as, if admitted 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 un-controvertible.
d. It is in the interest of justice in the case, and not to only one of the parties that the evidence be admitted.
The above-enumerated principle learned senior counsel maintained must co-exist in a case before the court can grant leave to admit further evidence at Appeal stage. He cited the cases of:
U.B.A. Plc. v. BT Lind Ltd. (2005) 10 NWLR Pt. 933 page 356 at 37; Okoro v. Esbuoh (supra).
O.I. Olorundare SAN invited the court to look at the Applicant’s affidavit in paragraph 4(L) where the Applicant conceded that he was not aware of the existence of the further evidence at the trial. He argued that the reason given for not bringing the evidence before the lower court as averred in the Applicant’s affidavit is untenable in the circumstances of the case. The Appellant/ Applicant he said also claimed that the further evidence had become necessary because this Court granted leave to the Appellant/Interested party to appeal.
Learned Senior Counsel argued that this is a frivolous reason because he deliberately failed, refused or neglected to join the Appellant/Interested party when he instituted the action at the trial Court. He referred the Court to the case of Okoro v. Egbuoh (supra) at 22.
Learned Senior Counsel maintained therefore that the reasons given by the Appellant/Applicant for the failure to adduce the evidence at the trial Court are not party of the special grounds contemplated by the law; hence, his purported lack of awareness of the existence of the further evidence is neither here nor there.
Learned Senior Counsel contended that the Applicant cannot use his inadvertence or mistake or failure to exercise due diligence in the procurement of evidence at the trial court as excuse to bring them at the court of Appeal and lead further evidence on Appeal.
O.I. Olorundare SAN submitted that the Appellant/Applicant is only trying to improve on his evidence by bringing in fresh evidence which though was available to him but he failed to tender them at the trial court for lack of due diligence or what they called lack of awareness.
Learned senior counsel maintained that the Applicant has not shown either that the non-tendering of the document resulted to any injustice at the lower court or that its continuous exclusion will perpetrate injustice here. He referred the Court to the case of Akanbi v. Atao (1989) 3 NWLR Pt. 108 page 118 at 159.
Learned Senior Counsel contended that this application is brought not to further the ends of justice as claimed by the Appellant/Applicant but merely to overreach the Appellant/Interested party and thus defeat the end of justice. He argued that it is a devise to ensnare that the Appellant/Interested Party/Respondent who has already filed his Brief of Argument and waiting for the adoption of same as the interest of justice is not for only one of the parties but to all the parties.
Learned Senior Counsel submitted that the Accord letter is inadmissible in its present form. The Accord letter of substitution sought to be adduced as further evidence was addressed to INEC and it is therefore within the custody of INEC, which is a public institution. He argued that this category of document falls within the confines of Section 109(b) of the Evidence Act 1990 which included in the definition of Public Documents as “Public records kept in Nigeria of private documents.” He argued that only certified true copies of this document is admissible and he cited the Supreme court case of Onochie v. Odoewu (2006) 6 NWLR Pt. 975 page 65. He contended that the purported certification ex-facie was not done by INEC, the supposed custodian of the document.
O.I. Olorundare SAN urged the Court to dismiss the application as unmeritorious having failed to show any special grounds for the grant of the application as required by law.
It is a judicial policy not to grant an application to adduce further evidence on Appeal if the evidence sought to be so adduced was available to the Applicant during trial of the action. See chairman of Board of Inland Revenue v. Joseph Rezeallah & Sons Ltd. (1962) 1 All NLR 1 at 2.
Order 4 rule 2 of the Court of Appeal Rules 2007 provides:
“The Court shall have the 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 Supreme Court gave an insight into what constitutes special grounds that will permit an appellate Court to further adduce evidence on question of fact, in the case of Ukariwo Obase & Ors. v. Eke Onwuka & Ors. (1987) 3 NWLR Pt. 61 page 364 at 370 Per Oputa JSC:-
“In civil cases the Court may permit fresh evidence in furtherance of justice under the following circumstances:-
(i) where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial.
(ii) where the fresh evidence is such that if admitted would hove an important, but not necessarily crucial effect on the whole case.
(iii) where the evidence sought to be tendered on appeal is apparently credible in the sense that it is capable of being believed. It need not necessarily be un-controvertible.”
Obaseki JSC at page 374 said:-
“It is not the law that when a Court of Appeal admits or hears further evidence oral or documentary, it has to allow the appeal automatically and remit the case to the lower Court for rehearing or re-assessment of the whole evidence.”
In Ilorin South LGA v. Afolabi (2003) 16 NWLR Pt. 846 page 274 at 277 it was held that:-
“If the additional evidence is as to matters which have occurred after the date of trial or hearing of a suit in the Court below, then leave will ordinarily be granted. However where the evidence is of fact or facts or document known by the applicant or in existence at the time of the trial and the applicant could or ought to have them called in evidence then the applicant has to establish or show special circumstances warranting the grant of the application.”
It is trite 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.
In the instant case, in order to ascertain the propriety of the Appellant/Applicant’s application, the facts in support of his application will be mirrored against the conditions laid down for the grant of such application by an appellate Court.
Although the powers of the Court of Appeal are large and wide, it is still the practice of the Court to refuse an application to adduce more evidence which the Applicant could have adduced at the trial. See Enekebe v. Enekebe (1964) NMLR 42.
The first condition for the grant the type of application prayed by the Appellant/Applicant is that the evidence sought to be adduced must have come about after the hearing in the trial Court.
After hearing of any cause or matter on the merit the Court of Appeal will not allow further evidence to be admitted in Appeal from the Judgment. It is the duty of a party to adduce the evidence he wishes at trial and an appellate Court will not remit a case back to the lower Court for the purpose of taking more evidence. See Enekebe v. Enekebe (supra).
In order to justify the reception of fresh evidence after a trial on the merit, the Applicant must show that there are special grounds for doing so. Some of such grounds are as laid down in Ladd v. Marshal (1954) 3 All ER745 which decision has been followed by several decided cases in this Country. Some of the grounds are as follows:
(a) It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial. See:
Asaboro v. Aruwaji (1974) 4 SC 49;
Arudu v. Adepoju (1961) 1 All NLR 722;
Peterside v. IMB (Nig.) Ltd. (1993) 2 NWLR Pt. 278 page 22.
In the instant case the Appellant/Applicant has deposed in paragraph
4(c) & 4(d) of the Affidavit in support of the application thus:-
“4(c) That the Appellant/Interested party the purported PDP candidate for Ika North East Constituency, Honourable Sam Obi was the candidate of Accord Party for the April 2007 State House of Assembly Elections whose name was used to substitute the name of one Samuel Aghaulor.
(d) That the Appellant/Applicant got to know of the above state of affairs as it pertains the Appellant/Interested Party at the Delta Election Petition Tribunal sitting at Asaba shortly after the conclusion of the Pre-election case at the Federal High court on 1st of June 2007.
(l) That the Appellant subsequently collected certified true copies of some of the said documents from a law firm Ajunwa and Co. who were handling an Election Petition for Accord Party.”
In the instant case the additional evidence sought to be introduced by the Appellant/Applicant are Accord Party letter of substitution dated 12th January 2007 and Form CF.001. The said documents were in existence during the trial and the Appellant/Applicant could have acquired them if he was diligent. He did not state that he encountered any difficulty in getting them from the law firm of Ajunwa & Co. The ease with which he got the documents from the law firm of Ajunwa & Co. tend to indicate that if the Appellant/Applicant has exercised reasonable diligence he could have obtained the documents for his use at the trial. That he was unaware of the existence of the documents while the matter was pending at the trial Court is an unimpressive and unconvincing reason.
I am of the opinion that the Applicant was indolent in procuring the said documentary evidence which were in existence during trial.
In Okoro v. Egbuoh (2006) 15 NWLR Pt. 1001 page 1 at 22 Niki Tobi J.S.C. said:-
“The procedure for admitting further evidence on appeal is not at the disposal of an indolent or not diligent litigant. The procedure cannot be used for the repair of a case at the end of the trial. It is not designed to overreach the other party or spring surprises at the other party when appeal is heard.”
In the instant case I am also of the opinion that the Appellant/Applicant cannot use his inadvertence or mistake or failure to adduce the evidence at the lower Court as an excuse to bring them before this Court. Lack of awareness of existence of evidence is not part of the special grounds contemplated by law to bring this type of application.
The Appellant/Applicant by his application seems to seek to improve on his evidence which was available to him but which he failed to tender at the trial Court due to lack of diligence or what he called lack of awareness.
It will therefore be improper to allow the Appellant/Applicant improve on his evidence by bringing in fresh evidence before this Court.
(b) The evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive. See Ladd v. Marshal (supra): Kraus v. Bright-Ordani (1963) SCNLR 45.
In the instant case the documentary evidence sought to be tendered as further evidence are the Accord Party letter of substitution dated 12th January 2007 and Form CF. 001. Both documents have been referred to in paragraph 4(J) of the affidavit in support of the application as Exhibit D.
I have carefully perused the said Exhibit D; they are public documents requiring certification before they could be admitted.
The Accord Party letter of substitution was addressed to the National Chairman, Independent National Electoral Commission (INEC), Zambezi Street, Abuja and signed by Chief Longers Anyanwu – National Secretary, while Form CF.001 is an Independent National Electoral Commission document for the 2007 Election. Both documents which were supposed to be in the custody of INEC, a public institution can only be admitted in evidence if produced from a proper custody and duly certified.
The Appellant/Applicant deposed in paragraph 4(i) of the Affidavit in support of his application that he procured the documents from the law firm of Ajunwa & Co. They were certified by one V.N. Osasah Registrar Court of Appeal Benin City.
I am of the opinion that these documents which the Appellant/Applicant intends to tender as further evidence before this Court are inadmissible in evidence and are therefore worthless. It is trite that worthless documents cannot have any important influence on the result of a case. See:
Kraus Bright-Ordani (supra):
Onochie v. Odoswu (supra) at page 65.
The third condition is that the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible although it need not be un-controvertible. See:
Obasi v. Onwuka (1987) 3 NWLR Pt. 61 page 364;
Esangbedo v. State (1989) 7 SCNJ 16:
Gazu v. Nyam (1998) 2 NWLR Pt. 538 page 477:
Anatoeu v. Iweka (1995) 8 NWLR Pt. 415 page 547;
Okpanum v. S.G.E. Nigeria Ltd. (1998) 7 NWLR Pt.559 page 537.
Other conditions that may be considered in the grant of an application of this nature include:
(c) If the evidence sought to be adduced could have influenced the judgment of the lower Court in favour of the Applicant if it had been available at the trial Court. See:
Fawehinmi v. State (1990) 5 NWLR Pt. 148 page 421
Enekese v. Enekese (1964) 1 All NLR 42.
(d) The evidence should be material and weighty even if not conclusive, where such evidence is irrelevant and immaterial it will be rejected. See: Nwakoro v. Nwosu (1990) 6 NWLR Pt. 129 paee 679; Rinco Construction Co. v. Veepee Industries Ltd. (1990) 6 NWLR Pt. 158 page 630;
Adeleke v. Aserifa (1990) 3 NWLR Pt. 136 page 94.
In the instant case having said that the documentary evidence sought to be tendered as further evidence before this Court are worthless, they are therefore incapable of being believed.
Furthermore the Appellant/Applicant has not presented anything compelling or useful to this Court to indicate that the non-tendering of the said Accord Party letter of substitution and Form CF.001 resulted in any injustice to him at the trial Court or that their continuous exclusion will perpetuate injustice to him before this Court.
The Supreme Court has stressed that the jurisdiction of the Appellate Court to receive further evidence on appeal should only be exercised in furtherance of justice in the case of Akanbi v. Alao (1989) 3 NWLR Pt. 108 page 118 at 159 Per Oputa JSC:
“Furtherance of justice in proceedings before our Court will also presuppose obedience to decisions of our various Courts. It is an invaluable rule of all courts and one founded on reason, common sense, fair play and equal treatment of the contestants and thus on justice, that if the evidence which either was in possession of parties at the time of trial or which by proper diligence might have been obtained is either not produced or has been procured and the case is decided adversely to the side to which the evidence was or could have been available, that side will not so easily be given the extra indulgence of being allowed, on appeal to adduce or produce such evidence, as new or fresh evidence. Such fresh evidence on appeal, ought normally to be confined to matters arising ex-improviso which no human ingenuity could have foreseen.”
In the instant case the interest of justice is in favour of refusing this application for an Order allowing the Appellant/Applicant to adduce further evidence in this Appeal by tendering the Accord Party letter of substitution dated 12th January 2007 and Form CF.001.
This Application is hereby refused and same is dismissed accordingly.
There will be no order as to costs.
The Applicant’s second application dated 18/1/10 and filed 19/1/10 is praying for the following Orders:-
“1. An order of this Court granting leave to the Appellant/Applicant to amend his Notice of Appeal.
2. An order of this Court deeming the amended Notice of Appeal as properly filed and served.
3. And for such order or further orders as this Honourable Court will deem fit to make in the circumstances.”
The grounds of the application are:-
“(i) The Appellant/Interested Party was granted leave to appeal as an interested parry after the appeal has been entered.
(ii) That the Appellant’s previous notices of Appeal and other originating processes did not include the name of the Appellant/Interested Party as a party to the suit.
(iii) That there is need for the Appellant to claim or seek reliefs against the Appellant/Interested Party as a consequence of the joinder.
(iv)The amendment of the Notice of Appeal will bring all the issues to the fore for a just and equitable determination.”
The application is supported by eleven-paragraph Affidavit. Paragraphs 4 – 10 of the Affidavit are pertinent and are reproduced as follows:-
“4. That the Appellant/Interested Party was joined as an interested party by an order of this Honourable Court.
5. That in the Appellant’s previous Notices of Appeal and other originating processes did not include the name of the Appellant/Interested Party as a Party.
6. That as a result of the aforementioned fact there is no claim or relief sought against the Appellant/Interested Party by the Appellant.
7. That it is imperative to amend the Appellant’s Notice of Appeal to reflect the joinder of the Appellant/Interested Party.
8. That the said amended Notice of Appeal is now ready.
9. That this Application will not prejudice the Appellant/Interested Party or the Respondents.
10. That it will be in the interest of justice to allow this Application.”
Learned Counsel for the 2nd Respondent Glory Zakka (Mrs.) did not oppose this application and did not also file any papers on behalf of the 2nd Respondent.
O.D. Emole Learned Counsel for the 3rd Respondent/Appellant/Interested Party opposed the Application and has filed a Counter-affidavit often paragraphs dated and filed 5/2/10. Paragraphs 4-9 of the said Counter-affidavit are relevant to this Application and are reproduced as follows:-
“4. That contrary to the averments contained therein, this Honourable Court had previously on the 29th September 2009 granted leave to the Appellant/Applicant to amend this Notice of Appeal.
5. That the order of this Court granting the Appellant/Applicant’s leave to amend his Notice of Appeal on 29th September 2009 was made pursuant to the Appellant/Interested Party/Respondent’s joinder in the appeal on the 9th July 2009.
6. That the Appellant/Applicant’s reason for seeking leave to amend his Notice of Appeal is frivolous and not true.
7. That the proposed amended Notice of Appeal does not contain any relief to show it was occasioned by the joinder of the Appellant/Interested Party/Respondent as claimed.
8. That the Appellant/Interested Party/Respondent will be prejudiced if this application is granted as all briefs of argument have been filed and exchanged.
9. That there is no apparent necessity for this amendment by the Appellant/Applicant who by his endless applications has been delaying this case but has been busy writing petitions and publishing same in Newspaper accusing this Court and interested Party/Respondent of frustrating his case being a Pre-election matter.”
Pursuant to the Order of this Court of 16/2/10 parties filed written addresses in respect of this application and adopted same on the 17/5/10. The Appellant/Applicant’s written address dated 2/3/10 was deemed filed on 19/4/10. The Appellant/Applicant submitted a sole issue for determination which reads:-
“Whether the Appellant/Applicant can amend his Notice of Appeal?”
The Appellant/Applicant also filed an address in reply to Appellant/Interested Party’s address opposing this application.
The Appellant/ Interested party’s written address dated 31/3/10 was filed the same date. The Appellant/ Interested Party raised a lone issue for the determination of this application and it reads:-
“Whether leave to amend Notice of Appeal is granted as a matter of course?”
I prefer the issue distilled by the Appellant/Applicant for the determination of this application and I adopt same accordingly.
In his argument in support of the application, victor Azubike learned counsel for the Appellant/Applicant submitted that order 6 rule 15 of the court of Appeal Rules 2007 provides that a Notice of Appeal may be amended by or with leave of court at any time. He argued that it is in consonance with the said provisions of the court of Appeal Rules, under which the Appellant brought this application. Learned Counsel argued that the need for the amendment of the Notice of Appeal became necessary because of the joinder of the Appellant/Interested Party who was not a party to the Suit initially and that there is the need to reflect the claim or relief sought against the Appellant/Interested Party.
Victor Azubike contended that Paragraphs 4 and 5 of the Appellant/Interested Party’s Counter-affidavit dated and filed on the 5th day of February 2010 are misleading. He argued that the Order made by this Court on 29th September 2009 allowing the Appellant to amend his Notice of Appeal was never premised on the joinder of the Appellant/Interested party on the 9th day of July 2009. He further argued that Paragraph 7 of the Appellant/Interested party’s counter-affidavit to this Application is erroneous, as there is a relief sought against the Appellant/Interested Party by the Appellant, as evidenced on the face of the Notice of Appeal.
Learned Counsel referred the Court to the cases of:
F.B.N. v. May Medical Clinics (2001) 9 NWLR Pt. 717 page 31;
Pharmatek Industrial Projects v. Ojo (1996) 1 NWLR pt. 359.
He urged the Court to grant the leave sought to amend the Appellant/Applicant Notice of Appeal so as to ensure that the complaints of the Appellant/Applicant against the Appellant/Interested party and other parties in the appeal are ventilated before the Court.
In his response on behalf of the Appellant/Interested party O.I. Olorundare SAN submitted that leave to amend Notice of Appeal is not granted as a matter of course. He submitted that order 6 rule 15 of the court of Appeal Rules 2007 did not provide that leave to amend Notice of Appeal would be granted just for the asking.
The Applicant, he insisted, must place before the Court cogent reasons why the application is sought as a Court’s discretion must at all times be exercised judicially and judiciously. He referred the Court to the case of Buhari v. Obasanjo (2003) 19 NWLR Pt. 850 page 587.
Learned Senior Counsel contended that the Appellant/Applicant had the opportunity to amend his Notice of Appeal to reflect whatever reliefs he wanted against the Appellant/Interested Party on 29th September, 2009 when this Court granted a similar application to him. He maintained that the Appellant/Applicant had waited until the Briefs of Argument were filed and exchanged before bringing another application for amendment to the annoyance and irritation of the Appellant/Interested Party.
O.I. Olorundare SAN submitted that while it is the law that a party should not be inhibited to present his case in Court, there is the other side of the coin, and it is that a party owes the administration of justice and the judicial process a duty to present his case in whole or in one block and not in piece meal or instalmentally.
He referred the Court to the cases of:
Akininwo v. Nsirim (2008) 9 NWLR Pt. 1093 page 439 at 437;
Obla v. Otogoyi (2007) 5 NWLR Pt. 1027 page 304.
Learned Senior Counsel argued that contrary to the position of the Appellant/Applicant, the Court does not have “unfettered powers” to grant him leave to amend his Notice of Appeal as the powers of the Court must be exercised judicially and judiciously. He referred the Court to the case of Buhari v. Obasanjo (supra) at pages 659-660.
He urged the Court to dismiss this Application as it is an abuse of process targeted at delaying the hearing of this Appeal and to annoy or irritate the Appellant/Interested Party and this Honourable Court.
I have earlier said in this Ruling that the Appellant/Applicant filed an address in Reply to Appellant/Interested Party submission in opposition to the Application. The reply is titled –
“Appellant/Applicant’s Address in reply to Appellant/Interested Party’s Address opposing Applicant’s Motion to amend Notice of Appeal.”
I have carefully read the reply address over and over again, I find no argument or submission in it relating to the motion to amend the Notice of Appeal rather the arguments canvassed in it are related to the earlier application praying for an order allowing the Appellant/Applicant to adduce further evidence in this Appeal. Since the said reply address does not concern the present application it will therefore be discountenanced.
The Rules of this court allow the amendment of a Notice of Appeal to be made with leave of this Court at any time. See Opala v. Ibeme (1989) 20 NSCC Pt. 1 page 567.
The Court will allow such an amendment of a Notice of Appeal from the time the Appeal is filed and until at such time that it may even be ready for hearing.
It has been held in F.B.N. v. May Medical Clinics (2001)9 NWLR Pt. 717 page 31 that:-
“The powers of the Court of Appeal to order amendments and generally make orders as are necessary to produce a just result extend to the amendment of the Notice of Appeal and brief of argument, leave to amend Notice of Appeal is provided in the Court of Appeal Rules and special circumstances are not needed to justify the amendment. The discretion of the Court to grant it is unhampered provided it is exercised judicially and judiciously…Once there is a valid appeal, it can be amended. The purpose of such amendment must be to ensure that the complaints of the Appellant against the proceedings in question are ventilated before the Court. The fact that briefs of argument have been filed and exchanged and an appeal is virtually ready for hearing will not prevent the Court from exercising its undoubted discretion to allow amendment both to the Notice and grounds of Appeal and to the brief of argument so long as the amendment will serve the ends of justice and fairness and the other party can be compensated by costs.”
The power of this Court to permit an amendment to the Notice of Appeal must be exercised judicially and judiciously. It is said to be so exercised judiciously and judicially if the amendment is to ensure that the Appellant’s complaints against the judgment are competently brought before the court. See Parmatek Industrial Projects Ltd. v. Bayo Ojo (1996) 1 NWLR Pt. 424 page 330 at 338.
In the instant application, the Applicant is seeking for leave to amend his Notice of Appeal and to deem the amended Notice of Appeal as properly filed and served.
The Notice of Appeal is the foundation and substratum of every Appeal. Any defect therein will render the whole Appeal incompetent, and the appellate Court will lack the required jurisdiction to entertain it or any interlocutory application based on the said Appeal. See Uwazurike v. A.G. Federation (2007) 8 NWLR Pt. 1038 page 1.
Once a Notice of Appeal is defective and therefore incompetent, there would be nothing left for the Court to consider in the Appeal other than striking out the Appeal in its entirety. See: Uwazurike v. A.G. Federation (supra);
A.G. Federation v. Guardian newspapers Ltd. (1999) 9 NWLR Pt. 618 page 187. In paragraphs 4-10 of the Affidavit in support of this application reproduced earlier in this Ruling, the Appellant/Applicant has given cogent and convincing reasons why the amendment to the Notice of Appeal has become very necessary. The Rules of this Court 2007 under Order 6 rule 15 stipulates that a Notice of Appeal may be amended at any time by or with leave of Court.
I am satisfied that it is only by this amendment that the Appellant/Applicant’s complaint against the Appellant/Interested Party/Respondent and other Respondents can be competently brought before this Court and ventilated. I see nothing indicating that by this application the Appellant/Applicant intended to delay the hearing of this Appeal or that the Appellant/Applicant was presenting his Appeal in piece-meal or instalmentally as argued by learned Senior Counsel for the Appellant/Interested Party. There is merit in this application, it ought to be granted and it is hereby granted as prayed.
The Appellant/Applicant is granted leave of this Court to amend his Notice of Appeal. The amended Notice of Appeal dated 15/1/09 and filed 19/1/10 is deemed properly filed and served today.
UWANI MUSA ABBA AJI, J.C.A: I have read before now the ruling of my learned brother, Hon. Justice Abdu Aboki, JCA, just delivered and I agree with the reasoning and conclusions of my learned brother that the first application seeking leave of this Court to adduce further evidence in this appeal by tendering a letter of substitution dated 12/1/2007 and from CF.001 cannot be granted and I also dismiss the application.
The second application that seeks leave of this Court to amend the Notice of Appeal is meritorious and is also granted by me.
I endorsed any consequential order made including any order as to costs.
MARY U. PETER-ODILI, J.C.A: I had the privilege of reading in draft the Ruling of my learned brother on the two applications before. I agree completely with the decisions made and abide by the orders my brother made. Nothing more needs be added.
Appearances
A. K. Allotey with Victor AzubikeFor Appellant
AND
Glory Zakka (Mrs.)
O. D. Emole with E. E. Ekong and E.E. EdiboFor Respondent
