EMMANUEL O. ADEDEJI V. JOHNSON AKINOLA ADEOBA & ORS
(2010)LCN/4081(CA)
In The Court of Appeal of Nigeria
On Monday, the 6th day of December, 2010
CA/B/EPT/312/2008
RATIO
FURTHER EVIDENCE/ ADDITIONAL EVIDENCE: WHAT FURTHER EVIDENCE OR ADDITIONAL EVIDENCE IN THE CONTEXT OF APPEAL ENTAILS; MEANING OF THE WORD “ADDITIONAL”
Further evidence or additional evidence in the context of appeal is evidence not used in the Court below. See Re Chennell 47 L.J Ch 583: I Ch D. 492. The word “additional” “involves the idea of joining or uniting one thing to another so as thereby to form one aggregate.” See Ashok Service Centre v. State of Orissa AIR, 1983 SC 394, 401, 402. PER NWALI SYLVESTER NGWUTA, J.C.A.
ADMISSION OF ADDITIONAL EVIDENCE: CIRCUMSTANCES WHEN AN ADDITIONAL DOCUMENT CAN BE ADMISSIBLE ON APPEAL
The evidence sought to be adduced consists of a document and can therefore be called additional document and “only such additional documents may be admissible at the appeal stage as tend to clarify the stand already taken or strengthen the defence and are contemporaneous in nature” See Collector v. Bhupindra Steel (1989) (44) EL.T 260 See also Advanced Law Lexicon Reprint 2009 page 118 wherein it was also stated that the legitimate occasion for the admission of additional evidence (documentary or otherwise) in an appeal is where, on looking into the evidence as it stands, some inherent lacuna or defect becomes evident. PER NWALI SYLVESTER NGWUTA, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF ORDER 4 RULE 2 OF THE COURT OF APPEAL RULES, 2007 AS IT RELATES TO THE SCOPE OF THE POWER OF THE COURT OF APPEAL TO RECEIVE FURTHER EVIDENCE
Order 4 Rule 2 of the Court of Appeal Rules 2007 on further evidence. ‘The Court shall have power to receive further evidence in questions of fact… 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” No special circumstance has been established for the reception of additional evidence on appeal. The power to receive further evidence by the court of appeal is exercised cautiously, sparingly reluctantly and with circumspection. See Adeleke v. Aserifa (1990) 3 NWLR (pt. 136) 94 SC. PER NWALI SYLVESTER NGWUTA, J.C.A.
APPEAL: WHAT AN “APPEAL” ENTAILS
An appeal is a resort to a superior Court to review the decision of an inferior Court and find out whether on the facts placed before it, and applying the relevant and applicable law the inferior Court came to a right or wrong decision. See AG Oyo state v. Fairlakes Hotels Ltd (1988) 5 NWLR (pt. 92) 1 at 56. Oredoyin & 2 ors v. Arowolo & 2 ors (1987) 3 NWLR (pt.114) 172 at 187. PER NWALI SYLVESTER NGWUTA, J.C.A.
JUSTICES:
NWALI S. NGWUTA Justice of The Court of Appeal of Nigeria
CHINWE E. IYIZOBA Justice of The Court of Appeal of Nigeria
M. A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
EMMANUEL O. ADEDEJI – Appellant(s)
AND
1. JOHNSON AKINOLA ADEOBA
2. INDEPENDENT NATIONAL ELECTORAL COMMISSON
3. RESIDENT ELECTORAL COMMISSION ONDO STATE
4. THE CHIEF RETURNING OFFICER, OKE-IGBO/ODIGBO FEDERAL CONSTITUENCY
5. THE COMMISSIONER OF POLICE, ONDO STATE
6. THE NIGERIAN ARMY – Respondent(s)
NWALI SYLVESTER NGWUTA, J.C.A. (Delivering the Lead Ruling): This is a ruling on a Motion on Notice dated and filed on 23rd September 2009 in Appeal No. CA/B/EPT/312/2008. The applicant who is the 1st Respondent in the appeal prayed the Court for the following reliefs:
“1. An order granting leave to the 1st Respondent/Applicant to adduce fresh evidence on appeal to wit: INEC FORM EC8C (ii) being summary of results from Registration Areas, Election to the House of Representatives, Collation at Local Government Area Level for Odigbo Local Government Area used at the 21st April, 2007 National Assembly Election which was tendered as EXHIBIT PPP in the lower Tribunal.
2. An order granting leave to the 1st Respondent/Applicant to amend his brief of Argument filed in this appeal in terms of the 1st Respondent’s Amended Brief of Argument already filed in this appeal.
3. An order deeming the 1st Respondent’s Amended Brief of Argument as properly filed and served necessary filing fees having been paid.”
The motion brought pursuant to Order 4 Rule 2 and Order 7 Rule 1 of the Court of Appeal Rules 2007 is predicated on the following grounds:
(i) The lower Court did not consider the issue of jurisdiction in terms of the date of declaration of results; neither did it adjudicate in same, as none of the parties raised any issue thereupon at the hearing of the petition.
(ii) The determination of the issue of date of declaration of results in an Election petition can only be proved by INEC final Declaration of result of election in form EC8E (ii) and no INEC Form EC8E (ii) was tendered in evidence at the lower Tribunal.
(iii) The actual date of Declaration of Result of Election Form EC8E (i) in this case is 22nd April, 2007.
(iv) The INEC Form EC8C (ii) being the Local Government Collation Result Sheet for Odigbo Local Government Area in the Constituency was admitted in the evidence by the lower Tribunal as EXHIBIT PPP on 11th April 2008 vide ruling of the lower tribunal at pages 441 – 443 vol. 1 of the Record of Appeal.
(v) EXHIBIT PPP shows that the collated result of Odigbo Local Government Area of the Constituency was declared on 22nd April 2007, while INEC Form EC8D(ii) being the collated result for the entire Ile-Oluji/Oke-Igbo/Odigbo Federal Constituency which was admitted as Exhibit aaa purportedly shows that the result for the entire constituency was declared on 21st April 2007.
(vi) The contents of Exhibit PPP, the INEC Form EC8C(ii) showing that the result of the said Election in Odigbo Local Government Area was declared on 22nd April, 2007 has since been defaced and obliterated at an indeterminate time after it had been tendered and admitted in evidence by the lower Tribunal in a legible form.
(vii) A cleaner and more legible copy of the Exhibit PPP has now been obtained and it is necessary to seek the leave of this Honourable Court to adduce such evidence as was originally tendered in the lower Tribunal.
Applicant indicated his intention to tender the original copies of Exhibit JAA2, JAA3 series and JAA4 at the hearing of the application.
In support of the application is a 6 paragraph affidavit deposed to by the applicant.
Challenging the application the 1st Respondent who is the Appellant in the Appeal filed a 20 paragraph counter-affidavit dated 20/10/2009 on 22/10/09.
A further counter-affidavit of 3 paragraphs was dated and deposed to, on 27/10/09. The applicant filed a reply to the 1st Respondent’s counter affidavit on 26/11/09.
None of the 2nd to 6th Respondents filed a counter-affidavit in opposition to the motion.
The Court ordered written addresses and pursuant to the said Order learned counsel for the applicant filed his written address on 4/11/09 which he adopted at the hearing and in reliance on same and his affidavit evidence he urged the Court to allow the application.
1st Respondent’s written address was dated, and filed no, 15/12/09. Learned counsel for the 1st Respondent adopted and relied on his said address and affidavits and urged the Court to deny the application.
Learned counsel for the 2nd and 4th Respondents filed neither a counter-affidavit nor a written address. He would not support or oppose the application. Learned counsel for the 5th Respondent did not file a counter-affidavit but adopted and relied on his written address dated 13/11/09 and filed on 16/11/09. He urged the court to dismiss the application, adding that briefs have been filed and exchanged for the appeal to be heard.
Though served, the 6th Respondent both filed a counter-affidavit nor a written address and had no representation at the hearing of the motion.
In his written address learned counsel for the applicant identified the lone issue for determination as:
“Whether this Honourable Court will allow the prayers in the motion on Notice dated and filed on the 23rd September 2009 in the totality of the circumstances before it.”
Learned counsel for the 1st Respondent formulated the following issue:
“Whether in the circumstance of this application, the prayers of the applicant is grantable.”
In the same vein learned counsel for the 5th Respondent raised the issue:
“Whether this application has merit in law to warrant the grant of the relief sought before this Honourable Court.”
I have studied the elucidating and illuminating addresses of learned counsel for the parties as well as some of the plethora of authorities relied on in the application. The issues formulated and argued in the addresses are substantially the same. The issues raised can be summarised thus – can the Court grant leave to adduce additional evidence in this appeal. Though in my view the prayer is a misnomer I will consider it in its terms. The other reliefs in the motion are predicated upon the 1st relief and they sink or swim with it. In other words reliefs 2 and 3 will be considered only if relief one succeeds.
Further evidence or additional evidence in the context of appeal is evidence not used in the Court below.
See Re Chennell 47 L.J Ch 583: I Ch D. 492. The word “additional” “involves the idea of joining or uniting one thing to another so as thereby to form one aggregate.”
See Ashok Service Centre v. State of Orissa AIR, 1983 SC 394, 401, 402.
The evidence sought to be adduced consists of a document and can therefore be called additional document and
“only such additional documents may be admissible at the appeal stage as tend to clarify the stand already taken or strengthen the defence and are contemporaneous in nature”
See Collector v. Bhupindra Steel (1989) (44) EL.T 260
See also Advanced Law Lexicon Reprint 2009 page 118 wherein it was also stated that the legitimate occasion for the admission of additional evidence (documentary or otherwise) in an appeal is where, on looking into the evidence as it stands, some inherent lacuna or defect becomes evident. This motion was prompted by the applicant’s perceived alteration of the date of declaration of election result from 22/4/2007 to 21/4/2007 in exhibits PPP and QQQ. The applicant claimed he became aware of the alteration or obliteration on exhibit ppp late in June 2009 long after the Tribunal delivered its judgment on 17th July, 2008. The further documents sought to be received in evidence consists of documents marked exhibits JAA4 and JAA5 to show that the election result was declared on 22/4/2007, contrary to exhibits ppp and qqq which show that the result was declared on 21/4/2007.
From the definition of, and limitation on, further additional evidence it can hardly be said that exhibits JAA4 and JAA5 are meant to join or unite with exhibits ppp and qqq. The two sets of documents are in irreconcilable conflict, so one set cannot join to strengthen the other set. In the Tribunal below the applicant in his pleading made a knowing and understanding concession that the election result was declared on 21/4/07. Not only are parties and Court bound by pleadings the further evidence proposed will neither clarify nor strengthen the stand taken by the applicant.
Even if the evidence sought to be adduced on appeal can be said to be further evidence properly so called its reception in evidence will not only depart, but will introduce an issue different, from the issue decided by the lower Tribunal.
Alhaji Dahiru & Anr. v. Alhaji Kamale (2001) FWLR (pt. 62) 1855 at 1862 CA.
The conditions for admission of further evidence enumerated in the above case are conjunctive not disjunctive.
The documentary evidence relating to the date of declaration of the election result was admitted without objection. None of the parties can be allowed to make a U turn to question the documents so admitted.
See Yesufu v. ACB (2001) FWLR (pt. 39) 1574 SC (1978) 2 SC 93.
The applicant has not demonstrated the existence of any lacuna or defect in the proceeding of the lower Tribunal to justify the admission of further evidence.
Order 4 Rule 2 of the Court of Appeal Rules 2007 on further evidence.
“The Court shall have power to receive further evidence in questions of fact … 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.”
No special circumstance has been established for the reception of additional evidence on appeal. The power to receive further evidence by the court of appeal is exercised cautiously, sparingly reluctantly and with circumspection.
See Adeleke v. Aserifa (1990) 3 NWLR (pt. 136) 94 SC.
I alluded earlier in this ruling to the applicant’s relief as misnomer. In my humble view relief number one in the motion is not an order to adduce further evidence, rather it is for the order to substitute a piece of evidence admitted by the lower Tribunal with another piece of evidence the Tribunal did not see and did not pronounce upon and ipso facto does not form part of its records.
An appeal is a resort to a superior Court to review the decision of an inferior Court and find out whether on the facts placed before it, and applying the relevant and applicable law the inferior Court came to a right or wrong decision.
See AG Oyo state v. Fairlakes Hotels Ltd (1988) 5 NWLR (pt. 92) 1 at 56.
Oredoyin & 2 ors v. Arowolo & 2 ors (1987) 3 NWLR (pt.114) 172 at 187.
In view of the above a reception of the so called further evidence in whatever guise in the appeal will foist on the Court of Appeal evidence upon which the lower Tribunal could not have pronounced upon as it was not brought before it. The result would be a grave miscarriage of justice. It would place the court in the unhealthy position of having to determine the appeal on evidence not before the Tribunal in place of evidence received by the Tribunal on which it relied.
A close look at the affidavit evidence shows that documents tendered by the 1st Respondent as copies of documents tendered by the applicant in the tribunal include:
(1)Copy of Exhibit ppp tendered as exhibit E1
(2)Copy of Exhibit qqq tendered as Exhibit E2
(3)Form ECBE(ii) – declaration of result.
On each of the documents is the date 21/4/07 legibly and clearly written.
I see no evidence of defacement, erasure and/or mutilation on the face of the exhibits. On the other hand applicant’s copy of exhibit ppp is so defaced that the date on it, if any, is not legible, and a copy of form ECBE(ii) is dated 22/4/07, as against 21/4/07 in the copy tendered by the 1st Respondent.
As indicated earlier in this ruling the proceeding recorded by the Tribunal is presumed correct. In any case the applicant does not challenge the record of the tribunal.
Applicant claimed in his paragraph 3 (iii) of his affidavit in support of his application that he discovered the erasure on exhibit ppp on 25/6/09. Note that the 5th Respondent had raised the competence of the petition based on the date on exhibit ppp and qqq in his preliminary objection dated 21/1/09 and filed on 30/1/09. Applicant did not report his discovery of what is a criminal offence if substantiated to the police for investigation as a reasonable person of his status ought to have done. On the contrary the 1st Respondent on becoming aware of it, through the applicant’s motion, reported the apparent manipulation of the date of the declaration of the result of the election to the police in writing. In response to the petition written by the 1st Respondent to the police the police wrote to the INEC in Ondo State. The Administrative Secretary of INEC, Ondo state replied inter alia that
“I am to add that the date the result was declared was as stated in the said Form EC8E(ii).”
The date on form EC8E (ii) is 21/4/07. In another letter to the Inspector General of police (Respondent’s exhibit E5) Mr. P. T Olagbende, INEC Administrative Secretary stated that the form ECBE (ii)
“was issued to Honourable Emmanuel Omotayo Adedeji or his agent on 21st April, 2007 and NOT 22nd April, 2007…..”
In any case the applicant who alleged that exhibit ppp and qqq were defaced ought to provide evidence in proof of what he asserted. And under the best evidence rule the applicant ought to have exhibited the original exhibits ppp and qqq and not copies therefrom, even if certified. The exhibits are evidence which exist and could have been produced by the applicant and the presumption in S. 149 (d) of the Evidence Act operates against him and in favour of the Respondents. In view of the above even if the facts indicate a proper motion for leave to adduce further evidence the affidavit evidence does not support that relief.
The facts of this matter constitute a sad commentary on the integrity of some, mercifully not all, Nigerians. There is a popular saying that politics is a dirty game. It need not be so. Dirt is not inherent in politics. It is the players who infect the system with the filth they accumulated in their quest for power and fame. This is a new trend and it should be uprooted before it does more harm to our electoral and judicial processes.
In the final analysis I find that the 1st arm of the application is not for leave to adduce further evidence but is a request for leave to substitute one piece of evidence for another.
This, as the learned counsel for the 1st Respondent argued, is not grantable and even if the application is what it purports to be -a request for leave to adduce further evidence on appeal – it is devoid of merit. It is accordingly dismissed.
As earlier indicated in this ruling the 2nd and 3rd reliefs are predicated, and dependent, on the first leg of the motion with which they share the same fate.
Consequently the 2nd and 3rd arms of the motion are also dismissed.
Applicant is to pay costs fixed at N20, 000.00 to the first Respondent.
Motion is dismissed.
CHINWE E. IYIZOBA, J.C.A.: I read in advance the ruling just delivered by my learned brother Nwali Sylvester Ngwuta JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
The applicant herein was the Labour party candidate for the House of Representatives election held on 21/4/07 in the Ile-Oluji/Oke-Igbo/Odigbo Federal Constituency. The 1st respondent in this application who was the PDP candidate was declared the winner of the election. The applicant’s petition to the election Tribunal was successful and a bye election was ordered. The 1st respondent appealed against the judgment and the parties filed their respective briefs. The issue of the jurisdiction of the election tribunal to entertain the applicant’s petition was raised in the appeal on the ground that the result of the election was declared on 21/4/07 and the applicant’s petition was filed on 21/5/07, 31 days after the declaration of the result, thereby rendering the petition statute barred. Despite the fact that at the tribunal, the parties were ad idem in their pleadings and evidence led that the results of the election were declared on 21/4/07, the applicant now filed this motion on notice alleging that the INEC form EC 8C (ii), the Odigbo Local Government collation result sheet Exhibit PPP which had the date 22/4/07 showing that the result was declared on that 22/4/07 was defaced and obliterated sometime after judgment was delivered by the Tribunal. He now sought the order of this court to adduce fresh evidence in the nature of INEC form EC8C (ii) for Odigbo bearing the date 22/4/07 to support his contention that the date on the allegedly defaced Exhibit PPP was 22/4/07.
In addition to all the salient points adumbrated by my learned brother Ngwuta JCA for refusing this totally misguided application, I agree with learned counsel for the 5th respondent, J.C.A. Idachaba Esq. that the application is not only unmeritorious but a flagrant abuse of this court’s process. Even in his brief of argument already filed in respect of the appeal, the applicant conceded that the election was held on 21/4/07 and the result declared the same day. Learned counsel put it quite nicely when he said that the relief the applicant prayed for is at war with itself. While in one breath he is pretending to be asking for an order for leave to adduce purported fresh evidence on appeal, to wit INEC form EC8C(ii), in another breath he exposed himself by revealing that what he is referring to as fresh evidence is an old evidence already tendered by him at the tribunal, Exhibit PPP. Clearly what the applicant wanted as stated in the leading ruling was an order to substitute a piece of evidence admitted by the lower tribunal with another piece of evidence the tribunal did not see and did not pronounce on. That can not of course be allowed in an appellate court. It is very amusing that it is only the applicant’s copy of Exhibit PPP that is mutilated to hide the date. All other copies of the exhibit in the affidavits deposed to by all the other parties show the date on Exhibit PPP clearly as 21/4/07.
For these reasons and the more detailed reasons in the lead ruling of my learned brother, Ngwuta JCA, this application is dismissed. I abide by the consequential order as to cost made therein.
Appearances
B. O. Adesina Esq. For Appellant
AND
O. Ebese Esq. for the 1st Respondent
A. Igbochi for 2nd to 4th Respondents
J. C. A. Iduchaba for 5th Respondent For Respondent
