NDABO EYO NYONG EFFIOM DUKE & ANOR V. HRH MURI OKOKON EDET EDEM AMBO & ORS
(2013)LCN/6746(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of May, 2013
CA/C/265/2012
RATIO
WHETHER LEAVE WILL BE GRANTED TO ADDUCE FURTHER EVIDENCE WHERE THE EVIDENCE ADDUCED AT THE TRIAL COURT IS SCANTY
The settled proposition of law is that where the evidence adduced on the trial Court by both sides is scanty or that it was not raised in the statement of claim but there is no doubt the issue was raised in the Notice of Appeal to the Court of Appeal before whom the application was made and the record of appeal contained argument of Counsel on the issue, and the further evidence is the main issue before the parties on appeal, leave would be granted to adduce further evidence. Per JOSEPH TINE TUR, J.C.A.
CONSIDERATIONS FOR THE EXERCISE OF DISCRETION TO GRANT LEAVE TO ADDUCE FURTHER EVIDENCE TO A PARTY
The principles which the court would take into consideration in the exercise of the discretion to grant leave to adduce further evidence to a party and to receive such evidence in an appeal are:-
i. The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial or matters which occurred after the judgment appealed against,
ii.The evidence must be admissible in law,
iii. The evidence must be apparently credible in the sense that it is capable of being believed but need not be incontrovertible,
iv. The evidence should be such as if admitted, will have an important, though not necessarily a crucial effect, on the whole case. See Obasi v. Onwuka (1987) 3 NWLR (61) 364; Okparum v. S.G.E. Nig. Ltd. (supra); Adeleke v. Aserifa (1990) 3 NWLR (136) 94; Abana v. Obi (2004) 9 NWLR (877) 1; Esangbedo v. State (1989) 7 SCNJ, 16; Owata v. Anyigor (1993) 2 NWLR (276) 380. Per MOHAMMED LAWAL GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
1. NDABO EYO NYONG EFFIOM DUKE
(Defending by order of court dated 7/6/2010 in substitution of His Highness Muri Nyong Efiom Duke)
2. ETINYIN NSA EKENG
(Defending for himself and as representing the Family of the Late HRH Edidem (Professor) Nta Elijah Henshaw by order of court dated 7/6/2010 in substitution of HRH (Professor) Nta Elijah Henshaw) Appellant(s)
AND
1. HRH MURI OKOKON EDET EDEM AMBO
2. NDABO JOSEPH OKON EDEM
3. NDABO GODWIN BASSEY
(For themselves and as representing Efut Abua and Efut Ekondo combined Council) Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling): The High Court of Justice of Cross River State holden at Calabar presided over by Ogar, J., entered judgment in favour of the Claimants/applicants/respondents on 27th day of September, 2012 over a piece of land situate at No.19/20 Abitu Avenue, Calabar and made the following orders:
“In the result I find and hold that the claimants’ claim succeeds. I therefore enter judgment for the claimants and against the defendants in the following terms:
1. A declaration that the claimants are entitled to a statutory right of occupancy over the piece or parcel of land situate and lying at No. 19/20/Abitu Avenue, Calabar, same being Efut Communal land.
2. The conveyance made the 5th day of April, 1974 between Princess Uduak Duke Ephraim as Head of King Duke family, Calabar and others in favour of Mrs. Martha Anita, and registered as No. 30 at page 30 in volume 62 of the Lands Registry in the office at Calabar, in respect of the said land delineated in Survey plan No. RIM/1668 dated 28th February, 1974, is void and is hereby set aside.
3. Having not led evidence as to any physical damage resulting from the defendants’ acts’ of trespass, I think the claimants are entitled to only nominal damages which I assess and fix at N500, 000.00 (Five Hundred Thousand Naira) only.
4. The defendants are restrained either by themselves, their heirs, agents, servants and/or privies from interfering or further interfering with the claimants’ right over the said piece of land.”
The facts are as follows:
Upon exparte leave been granted the claimants on 27th December, 2001 the writ and statement of claim had been filed on the same day. In the course of trial the statement of claim was amended on 4th August, 2010. Being dissatisfied by the judgment the appellants/respondents in this ruling lodged an appeal to the Court of Appeal on 23rd October, 2012. The Notice of Appeal originally contained two grounds of appeal. The appellants obtained leave and filed two additional grounds. The brief of argument was filed on 28th January, 2013 with the following issues for determination:
“1. Whether the claim of the respondents was caught by Section 1 of the Limitation Law of Cross River State Cap.L14, 2004, and consequently statute-barred, thereby, robbing the trial Court of jurisdiction to hear and determine the suit ab initio. (Ground 2 of Original Grounds of Appeal and ground 3 of the Additional Ground of Appeal).
2. Whether the trial High Court was right when it relied on the evidence adduced by one Orok Eneobong in Orok Eneobong) in arriving at his decision to declare as void the conveyance made on the 5th day of April, 1974 between Princess Uduak Duke Ephraim and 2 others and Mrs. Martha Antia (Ground 1 of Original Grounds of Appeal).
3. Whether the fundamental right of the defendants to fair hearing as enshrined in Section 36(1) of the 1999 Constitution (as amended) was not breached when no notice of further hearing of the case was served on them, rather the Court made a foreclosure order against them barring them from cross-examining claimants’ witness (CW1) one (Ground 4 of Additional Grounds of Appeal).”
On 31st January, 2013 the respondents/applicants brought an application supported by affidavit praying for leave of this Court to adduce further evidence. The affidavit in support of the application deposed to by Ndabo Godwin Bassey the 3rd Respondent in the substantive appeal reads as follows:
“1. I am the third applicant on record.
2. By virtue of my position aforesaid, I am conversant with the facts of this application.
3. The judgment in suit herein given on 27th September, 2012 in favour of the applicants. The said judgment is Exhibit “A”.
4. The appellants/respondents did not call any evidence.
5. The applicant called evidence at the trial. The additional evidence the applicant is seeking to adduce was not available at the time of the trial/hearing.
6. The evidence the applicant is seeking to adduce was made by the 1st appellant/respondent when after the judgment, one Barr. Emmanuel Idaka filed a Notice of Appeal and Motion for stay of execution in respect of suit No. HC/560/2001, purporting to do so on the instructions of the 1st and 2nd appellant/respondents.
7. The additional evidence shows that the 1st appellant/respondent cannot lease or sell or mortgage or give out any land within Efut community given to King Duke by the Efut without the consent of the applicants.
8. The fresh evidence sought to be admitted will support the judgment of the trial Court.
9. The fresh evidence sought to be adduced is new in that it came after the date of the trial/hearing. The additional pieces of evidence made at the High Court and the Court of Appeal, after the judgment, are annexed hereto and marked Exhibit “B”.
10. Admission of the fresh evidence will serve the interest of justice.
11. The additional evidence, if they were available at the trial Court, would have strengthened the case of the applicant.
12. I swear to this affidavit in good faith, truthfully and in accordance with the oaths Act, 2004.”
Oliver A. Osang deposed to a counter affidavit on 1st February, 2013 as follows:
“1. That I am a Legal Practitioner in the Law Firm of Emmanuel E. Idaka & Associates, Counsel to the Appellant/Respondent by virtue whereof, I am conversant with the facts of this case.
2. That I have the consent and approval of my Principal as well as the Appellant/Respondent to depose to this affidavit.
3. That paragraphs 1 to 4 of the affidavit in support of the Applicants’ Motion of 30th January, 2013 for leave to call fresh evidence are true.
4. That paragraphs 5 to 12 of the affidavit in support of the Applicants’ Motion of 30th January, 2013 for leave to call fresh evidence are false and are hereby controverted.
5. In answer to the depositions stated in paragraph 4 above, the Applicants’ Counsel was briefed by Etinyin Nsa Ekeng (the Appellant) and David Henshaw (son to the late Obong of Calabar, HRH. Edidem (Professor) Nta Elijah Henshaw) to handle the appeal.
6. That as at the time the Appellants’ Counsel was briefed, there was no disagreement among the defendants in suit No. HC/560/2001. The 1st defendant (1st Appellant) later indicated his intention for whatever reason(s) to abandon the appeal after a Notice of Appeal of 23rd October, 2012 had been filed and served on the applicants herein.
7. That the additional fresh evidence the Applicants are seeking to adduce is no evidence in deed and will not in any way support or strengthen the default judgment already delivered on the 27th September, 2012 after the trial in favour of the Applicants.
8. That the additional fresh evidence the Applicants are seeking to adduce only shows that the 1st defendant (1st Appellant) is no longer interested in the appeal. And that his decision to withdraw from the appeal does not bind the 2nd defendant (Appellant) nor does it affect the competence of the appeal or any other step taken in the matter.
9. That consequent upon the notice dated 1st November, 2012 and filed 23rd November, 2012 given to the trial High Court by the 1st defendant of being satisfied with the judgment in suit No. HC/560/2001, the appellant/2nd defendant’s counsel with the consent of the appellant had indicated to the High Court wherein a motion for stay of execution is pending, that the name of the 1st defendant be struck out while the 2nd defendant/appellant proceeds with the appeal as well as motion for stay of execution at the lower Court.
10. That consequent upon the aforesaid development, the name of the 1st defendant was excluded in subsequent processes in this appeal and it is only the name of the 2nd defendant/appellant (Etinyin Nsa Ekeng) that is reflected on the Appellant’s brief of argument.
11. That the Applicants’ Motion of 30th January, 2013 for leave to call fresh evidence is a calculated attempt by them to distract the court with extraneous pieces of papers and prejudice the interest of the 2nd defendant/appellant’s predecessor-in-title (Mrs. Martha Antia).
12. That the application lacks merit, it is prejudicial intended to over reach the appellant/2nd defendant’s interest and same should be refused and dismissed with cost against them.
13. That I swear to this counter-affidavit conscientiously believing same to be true and correct in accordance with the Oaths Act, 2004.”
This Court ordered written addresses. The learned Counsel to the applicants filed written address on 8th March, 2013, citing as authority Order 4 rule 2 of the Court of Appeal Rules, 2011; Asaboro vs. Aruwaji (1974) 4 SC 119 and Uzodinma v. Izunaso (2011) 5 MJSC (Pt.1) 72-73 in support of the application.
The learned Counsel to the appellants filed what is headed “Respondents’ Reply Brief of Argument in Opposition to Applicants’ Motion for leave to adduce fresh evidence on appeal” on 18th February, 2013. The applicants’ Counsel argued that special circumstances existed for granting the application while the respondents’ Counsel argued that no special circumstances had been shown why leave should be granted the applicants/respondents to adduce fresh evidence on appeal, citing Okpanum v. S.G.E. Ltd. (1998) 5 SCNJ 142 at 144; Board of Inland Revenue vs. Joseph Pezcallah and Sons Ltd. (1962) All NLR 1 at 3; Sambo vs. Aliero (2010) All FWLR (Pt.502) 1135 at 1137-1139; Akanbi vs. Alao (1989) 3 NWLR (Pt.188) 118 at 159; Asaboro v. MGD Aruwaji & Anor (1974) 4 SC 87 at 90-91 as having settled the law as to what an applicant seeking leave to adduce fresh evidence in an appellate court must establish. Counsel urged this Court to dismiss this application.
Order 4 rule 2 of the Court of Appeal Rules, 2011 provides that.
“2. 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 he admitted except on special grounds.”
The suit now subject matter of this appeal was filed with leave of Court on 27th December, 2001. Judgment was delivered on the merit on 27th September, 2012. The appellants did not file any statement of defence nor call evidence in the lower Court. The judgment the applicants seek to adduce as further evidence on appeal was filed on 27th December, 2001 and judgment also delivered on 27th September, 2012. Having elected not to call evidence in lower Court, I do not see the special ground for granting the applicants this application for reasons I shall show.
What Order 4 rule 2 of the Court of Appeal Rules, 2011 stipulates is that the Court of Appeal “shall have power to receive further evidence on questions of facts… as the Court may direct…” which presupposes that evidence was originally adduced by the party applying in the lower Court but for the sake of doing substantial justice and to settle the matters in controversy, there had arisen the need to adduce “further evidence”. “Further” is an English word meaning inter alia “to a greater degree or extent; in addition to what has just been said; to say more about something, or make a more extreme point about it; more; additional, etc”. See Oxford Advanced Learners Dictionary, 7th edition, page 607. Therefore if the appellants did not file any statement of vigor defence nor call evidence in the lower Court, it stands to reason that the Court of Appeal will be acting without jurisdiction to grant leave to the appellants to adduce further evidence. The further evidence would be hanging on what? The simple answer is, on nothing. Argument on appeal should have regard to the pleadings filed and contested in the Court below. This has been made very clear in the case of Idahosa & Anor v. Oronsaye (1959) 4 FSC 166 at pages 166-171 to wit:
“Appellants’ Counsel next dealt with the liability of the second appellant as surety (Ground 1(m)), and his arguments were founded on various bases which might have been held to be substantial had they been pleaded. But none of them was. The two appellants filed a joint defence. They are referred to in the plural only in paragraphs 1 and 2 of the Defence (which admit certain paragraphs of the statement of claim), in paragraph 3 which is a general denial, in paragraph 16 which admits certain payments, and in paragraph 19 which again is general and usual averment to be found in Defences in Nigeria. Nowhere in the Defence is there any attempt to show that the second appellant’s case is any different from that of the first appellant, whereas it is trite to say that the defences open to a surety in a case such as this must in many instances be widely different from those open to his principal. Yet, I repeat, none of the defences sought to he relied upon by Counsel for the second appellant was pleaded and I do not consider that his Counsel’s submissions advancing them can be regarded. Had they been pleaded, the respondent would have had an opportunity to call evidence to controvert them. That chance is now lost and it would, in my view, be unjust to the respondent to allow them to weigh with this Court in its consideration of the second appellant’s liability.”
That was in a situation where the appellants filed a statement of defence without pleading the issue sought to be argued on appeal. The situation here is worse since no statement of defence was filed and no evidence given at the trial. Again in Balogun vs. Obisanya (1956) 1 FSC 22 at 23 the Federal Supreme Court held at page 23 as follows:
“Before dealing with the submissions of Counsel, it should be observed that this ground of appeal is unfair to the learned trial Judge before whom the point under the Money-lenders Ordinance was not taken nor argued. As a matter of fact, it was not even pleaded. The only issue litigated before the learned Judge was one of facts as to whether the appellant received only €100 after he had been induced to sign a Deed of Mortgage for €450, and the issue was decided against him.
It is therefore wrong to say that the learned Judge had erred in law and in fact on an issue which was not raised before him, and on which he had made no pronouncement.”
In Atanda & Ors. V. Ajani & Ors. (1989) 6 SCNJ (Pt.2) 193 the Supreme Court also held, per Craig, JSC at pages 205-206 as follows:
“It is settled law that in civil cases issues are settled on the pleadings – see Idahosa v. Oronsaye (1959) 4 FSC 166 and the Court should not allow evidence to be given in respect of facts not pleaded. If however such evidence is inadvertently received, it is the duty of the judge to discountenance it because it goes to no issue. See National Investment Properties Co. Ltd. vs. Thompson Organization (1969) NMLR 99 at 104 and Ferdinand George v. UBA Ltd. (1972) 8-9 SC 264 at 275.”
See also IBWA vs. Imano Ltd. (2001) 3 SCNJ 160 at 184.
The foundation for the admissibility of evidence in the Court of trial or as further evidence in the Court of Appeal is the pleadings. Both the Court of trial and Appellate Courts are bound by the pleadings. See Africa Continental Seaways Ltd. vs. Nigeria Dredging Road and General Works Ltd. (1977) 5 SC 235 at 250 and Tenco Engineering and Co. Ltd. vs. SBN Ltd. (1995) 5 NWLR (Pt.397) 607. Moreover, the judgment now the subject matter of this appeal was delivered on 27th September, 2012. On the same day the judgment sought to be adduced as further evidence was delivered on 27th September, 2012. It cannot be said that the judgment came into existence after the date of the trial or hearing of the suit within the contemplation of Order 4 rule 2 of the Court of Appeal Rules, 2011 as they were both delivered on the same day.
In Yisa Dawodu & Ors. v. Subebatu Danmole & Ors. (1962) 1 All NLR 702 Lord Evershed delivering the judgment of the Privy Council gave an instance as to when an appellate Court would allow the calling of additional evidence. In that case the Federal Supreme Court ordered further evidence on both sides. This was challenged in the Judicial Committee of the Privy Council. His Lordship held as follows:
“The first submission by Mr. Bernstein on the defendants’ behalf challenged the validity and propriety of the direction on the part of the Federal Supreme Court for the calling of fresh evidence before them upon the question of the proper native law and custom. Rule 30 of the Rules of the Federal Supreme Court, so far as relevant, is as follows:
“30. It is not open as of right to any party to an appeal to adduce new evidence in support of his original case; but for the furtherance of justice, the Court may, where it thinks fit, allow or require new evidence to be adduced; such evidence to be either by oral examination in Court by affidavit or by deposition taken before an examiner or commissioner as the Court may direct. A party may, by leave of the Court allege any facts essential to the issue that have come to his knowledge after the decision of the Court below and adduce evidence in support of such allegations.”
It was first said on the defendants’ side that since it had been no part of the plaintiffs’ case, as set out in their statement of claim, that the division should be into fourths according to native law and custom it was therefore outside the scope of Rule 30 for the Federal Supreme Court to direct or permit the calling of evidence on the plaintiffs’ part upon such question. True it is that the point was not in terms raised by the plaintiffs’ statement of claim but there can, in their Lordships’ judgment, be no doubt from the plaintiffs’ Notice of Appeal to the Federal Supreme Court and the record of the argument of Counsel before the making of the order under Rule 30, that the question, what in truth was the appropriate native law and custom to be applied, was the main issue between the parties upon the appeal. Moreover, their Lordships are not satisfied that there is in truth any such limitation as was suggested on the powers of the Federal Supreme Court according to the language of the Rule and particularly of its second sentence. In any case it is to be observed that Jibowu, J., had found division into fourths to be in accordance with native law and custom, that is, Idi-Igi. Finally, there can in their Lordships’ view be no doubt of the justice of the observation in his judgment of Abbott F.J. that the evidence before Jibowu J., on native law and custom was “scanty”. The witness before the trial Judge upon it was the deceased’s sister. She appears to have been some eight years of age but her qualifications as a witness upon such a subject do not appear, and as the learned trial Judge observed, she could not say when the old customs, Idi-Igi, was as she alleged, “swept away.”
In the circumstances their Lordships entertain no doubt that it was competent for the Federal Supreme Court to direct the calling of the evidence which they did and that, by so directing, the Court properly exercised its discretion. Mr. Bernstein suggested that a more proper course would have been to remit the case to the trial Judge: but it does not appear that such a suggestion was ever made to the Federal Supreme Court nor can their Lordships find in the Rule any ground for it.
If, then, the fresh evidence was properly directed and heard it is no less clear in their Lordships’ opinion that the Judges of the Federal Supreme Court, who saw and heard the witnesses, were entitled to find as they did upon the evidence and that there can be no ground on which the Board could interfere with that finding.”
The settled proposition of law is that where the evidence adduced on the trial Court by both sides is scanty or that it was not raised in the statement of claim but there is no doubt the issue was raised in the Notice of Appeal to the Court of Appeal before whom the application was made and the record of appeal contained argument of Counsel on the issue, and the further evidence is the main issue before the parties on appeal, leave would be granted to adduce further evidence. Nowhere is the issue of Exhibit “A” which is the judgment sought to be adduced by way of further evidence canvassed in any of the grounds of appeal. Neither can it be argued that the evidence canvassed in the lower Court is scanty or that it shall form the main issue in this appeal. The Notice of Appeal filed on 23rd October, 2012 has not referred to the judgment sought to be relied upon as further evidence on appeal. The issue cannot be foisted on any of the grounds of appeal. On the whole no good grounds exist for granting this application which I hereby dismiss with N50, 000.00 cost to the respondents.
MOHAMMED LAWAL GARBA, J.C.A.: By the provisions of Order 4, Rule 2 of the Court of Appeal Rules, 2011, set out in the lead Ruling written by my learned brother Joseph Tine Tur, JCA, a draft of which I read, the court was vested with the discretion to grant leave to adduce new or further evidence in an appeal and to receive such evidence on questions of fact, either by oral examination in court or by affidavit or deposition taken before an examiner or Commissioner, as it may direct. However, in case of an appeal from a judgment after trial or hearing of any cause or matter on the merits, no such evidence (other than evidence as to matters which occurred after the date of trial or hearing) shall be admitted except on special grounds. See FBN Plc v. Jibo (2006) 9 NWLR (985) 255; Amaechi v. INEC (2007) 18 NWLR (1065) 170.
Generally, the court will not allow a party to improve or reshape the case presented before and tried by a lower court by bringing new or further evidence which he could have reasonably produced and used at the trial. This attitude is predicated on the fact that though the court has the powers of a trial court in respect of an appeal which is by way of a rehearing or continuation of the case, it is not a trial court and as such once a case has been tried and concluded, it should not be re-opened to enable a party repair a defect, strengthen, improve or change the shape of the case he presented and was decided by the trial court, by adducing further evidence at the appeal stage. It is only where or when special grounds are shown to exist for the reception of such further evidence would the court incline to exercise the discretion in favour of a party, See Odeleye v. Orelusi (1991) 7 NWLR (202) 247 at 256; Okpanum v. S.G.E. Nig. Ltd. (1998) 7 NWLR (559) 537 at 552-3; Okoro v. Egbuoh (2006) ALL FWLR (332) 1569.
The principles which the court would take into consideration in the exercise of the discretion to grant leave to adduce further evidence to a party and to receive such evidence in an appeal are:-
i. The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial or matters which occurred after the judgment appealed against,
ii. The evidence must be admissible in law,
iii. The evidence must be apparently credible in the sense that it is capable of being believed but need not be incontrovertible,
iv. The evidence should be such as if admitted, will have an important, though not necessarily a crucial effect, on the whole case. See Obasi v. Onwuka (1987) 3 NWLR (61) 364; Okparum v. S.G.E. Nig. Ltd. (supra); Adeleke v. Aserifa (1990) 3 NWLR (136) 94; Abana v. Obi (2004) 9 NWLR (877) 1; Esangbedo v. State (1989) 7 SCNJ, 16; Owata v. Anyigor (1993) 2 NWLR (276) 380.
In the present application, the Respondents are seeking to use processes which have not been shown to have any important effect on the whole case in the sense that they can materially affect the determination of the case as reflected in the judgment appealed against. Since they do not relate to any part of the case presented by the Applicants at the trial, the processes would not be received as further evidence to enable the Respondents improve their case.
In the result, for the above and the reasons set out in the lead ruling, I agree that no ground exists in the application which warrants the receipt of the processes as further evidence in the appeal. The application is lacking in merit and I join in dismissing it in terms of the lead Ruling.
ONYEKACHI A. OTISI, J.C.A.: I have been privileged to read in draft, the Ruling just delivered by my learned Brother, Joseph Tine Tur JCA.
I agree that this application ought to be refused.
An Appellate Court may refuse to exercise the discretion to grant leave to adduce additional evidence where no evidence or insufficient evidence was called in the trial court. It would be, in my view, unfair to the Respondent; and, contrary to the principle that there must be an end to litigation to allow a person who did not call evidence in the lower court or who for one reason or the other, had called insufficient evidence of the trial, to bring forward, for the first time on appeal evidence which could and should have been adduced before the trial Judge. See Nwanezie v. Idris (1993) 3 NWLR (Pt. 279) 1; Asaboro v. Aruwaji (1974) 4 SC 119 at 124 – 125.
Indeed, I see no merit in this application. I adopt the reasoning of my learned Brother as mine, and abide by the Orders made, including the Order as to costs.
Appearances
E.E. IDAKA, ESQ. with O. Osang and Sylvia Odinka, Esq. (Miss)For Appellant
AND
Ita IkpeFor Respondent
