EX-L/CPL MONDAY EDET v. NIGERIAN ARMY & ORS
(2018)LCN/12070(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of January, 2018
CA/K/243/2016(R)
RATIO
COURT AND PROCEDURE: GRANT OF LEAVE TO ADDUCE ADDITIONAL EVIDENCE
“For instance, in Idiok vs. State (2006) 12 NWLR when considering whether to grant leave to adduce additional evidence on appeal or not, Omokiri J.C.A (of blessed memory) had this to say on page 28: ‘Even if this Court is well disposed to admit the said statements as additional evidence on appeal the prosecution witnesses cannot now be cross-examined unless this Court assumes the whole role of the Court of trial. Moreover admissions of further evidence in this Court is not allowed as a matter of course. It is only admissible on settled principles which were clearly stated in Esangbedo vs. State (supra). First it must be shown that the evidence could not have been obtained and with reasonable diligence used at the trial Court. Secondly, the Court must be satisfied that the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. Thirdly, the evidence must be apparently credible, though it need not be incontrovertible.'” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
Before Their Lordships
IBRAHIM SHATA BDLIYAJustice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIOJustice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIEJustice of The Court of Appeal of Nigeria
Between
EX-L/CPL MONDAY EDETAppellant(s)
AND
1. NIGERIAN ARMY
2. THE CHIEF OF ARMY STAFF
3. 1 MECHANISED DIVISIONRespondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Lead Ruling):
The Appellant, Lance Corporal Monday Edet, filed a Motion on 14/6/16, dated 10/6/16, seeking the following reliefs:
1. An order of this Honourable Court granting leave to the Appellant/Applicant to forward to this Honourable Court exhibits that were not forwarded to the Court of Appeal as part of the Records of Proceedings.
2. An order deeming the said documents as part of the Record of Proceedings of the trial Court transmitted to the Court of Appeal for use in the Appellant/Applicant’s appeal.
3. An order granting leave to the Appellant/Applicant to adduce additional documentary evidence by way of exhibits for use in the Appellant’s appeal, to wit:
i) Applicant’s letter dated 28/3/13.
ii) Standing Order signed by Col. K. I. Abdulkarim on 18/3/09
iii) Respondents’ letters dated 17/4/13 and 8/5/13.
4. An order granting the Appellant/Applicant leave to argue fresh point of law not canvassed before the lower Court, to wit: ”That the Armed Forces Act and not the Public Officers Protection Act does not apply to the Appellant’s suit on the grounds that:
a) It was not an action against Brig. Gen. O. Laleye who tried the Appellant.
b) The Appellant’s claim is regulated by the Armed Forces Act which prescribes the disciplinary procedure as well as the limitation period for Appellant’s claim.
5. FOR SUCH FURTHER ORDER or other orders as this Honourable Court may deem fit to make in the circumstance of this matter.
GROUND OF THE RELIEF SOUGHT (sic):
1. That upon the receipt and perusal of the Records of Proceeding it was discovered that the documents exhibited by Applicant at the lower Court were not included in the Records of Proceedings.
2. That efforts to get the trial Court to forward the documents to the Court of Appeal were not successful but the Applicant has copies of the documents
3. That the documents sought to be added as additional evidence were not available to the Applicant at the time of filing the suit at the lower Court.
4. That the fresh issue sought to be argued was inadvertently not canvassed before the lower Court.
5. That leave of the honourable Court is required to utilize the documents in issue for the appeal as well as argue the issue raised.
In support of the Motion is an affidavit deposed to by Esther Adaji, Litigation Secretary in the Law Firm of Sylvester Unoakhe & Associates, Appellant’s Solicitor. Further filed are a ‘Further and Better Affidavit’ and a ‘2nd Further and Better Affidavit’.
The 1st and 2nd prayers were withdrawn at the hearing of 2nd May 2017 and were accordingly struck out. Written Addresses were directed to be filed in respect of the other prayers. While the Appellant complied, the Respondent filed none, in consequence of which the Appellant’s Brief of Argument is the sole Brief in respect of the application.
In the Appellant’s Written Address, the following were the issues for determination distilled:
i) Whether or not the Honourable Court should exercise her discretion in the Applicant’s favour by granting the Appellant/Applicant leave to adduce additional evidence in light of the circumstances of this case.
ii) Whether the Honourable Court should grant the Applicant leave to argue on appeal a fresh point of law which was not canvassed before the trial Court.
The facts, leading to the instant appeal are that the Appellant instituted an action before the National Industrial Court, Kano, against his summary dismissal by the Respondents. The trial Judge, upholding a Preliminary Objection filed by the Respondents dismissed the Appellant’s Suit for being statute barred, pursuant to the Public Officers Protection Act. The Court also held that the allegation of denial of fair hearing by the Respondents was ‘misplaced’ and that from averments in the Appellant’s statement of facts, he was summoned to appear before the officers before he was dismissed. Dissatisfied with this Ruling, the Appellant has appealed to this Court by his Notice of Appeal filed on 17/12/14. He subsequently filed the instant application.
The reasons given by him for seeking the 3rd relief, to adduce additional documentary evidence, as contained in his affidavit in support of the application and in the ‘Further Affidavit’ and ‘2nd Further Affidavit’, in summary, are that the documents are relevant to the appeal but could not be produced among the documents at the lower Court in view of a fire that gutted his residence. The present documents were however able to be salvaged. The documents, he said, are relevant to his appeal before this Court.
This application is predicated on Order 4 Rules 2 and 4 of the Court of Appeal Rules 2016, under the heading ‘Powers of Court’ which provides as follows:
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 be admitted except on special grounds.
4. The powers of the Court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or respondent’s notice has been given in respect of any particular part of the decision of the Court below, or by any particular party to the proceedings in that Court, or that any ground for allowing the appeal or for affirming or varying the decision of that Court is not specified in such a notice; and the Court may make any order; on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.
The position of the law on the conditions for reception of fresh evidence on appeal, were deliberated upon by the Supreme Court, per Onnoghen JSC, (as he then was) in the case of Ehinlanwo v Oke (2008) 16 NWLR Part 1113 Page 357 at 383-384 Para G-C, where it was held as follows:
”It is settled law that it is within the discretion of the Court to decide whether or not to admit further/additional evidence on appeal. It is also settled that for the Court to exercise that discretion one way or the other, it must act not only judicially but judiciously. It is in an effort at attaining the standard of exercising its discretion judicially and judiciously that the Courts have set down certain principles/conditions as guides. The principles are:
i. the evidence sought to be adduced must be such that could not have been with reasonable diligence obtained for use at the trial;
ii. the evidence should be such that if admitted would have an important, not necessarily crucial effect on the whole case, and,
iii. the evidence must be such that is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible ..
The above conditions must co-exist for the Court to exercise its discretion in favour of the applicant.”
Restating these principles, the Court, in Adegbite v Amosu (2016) 15 NWLR Part 1536 Page 405 at 427 Para D-H, per I.T. Muhammad JSC, in addition to these, added the following conditions:
i) The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the Lower Court (trial Court) in favour of the applicant had it been available at the trial Court.
ii) The evidence should be weighty and material, where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.”
See also Owata v Anyigor (1993) 2 NWLR Part 276 Page 280 at 393 Para D-G, where it was added, per Karibi-Whyte JSC, that the evidence should be material and weighty , even if not conclusive.
Now, the first requirement for reception of evidence on appeal, as advocated in the authorities above is that the evidence to be adduced could not have been obtained with reasonable care and diligence for use at the trial. This, I hold, has been satisfied by the Applicant’s deposition above that the house fire that gutted his residence caused a lot of destruction. It was not till later that he discovered the documents among those salvaged.
On the 2nd and 3rd requirements as to whether the fresh evidence, if admitted, would have an important but not necessarily crucial effect on the whole case and whether the fresh evidence is credible, I shall resolve this answer in favour of the Applicant, for, as held by the Supreme Court in the case of Nwaogu v Atuma (2013) 10 NWLR Part 1363 Page 591 at 613 Para C-D per Ngwuta JSC, once the evidence sought to be adduced has weight and is material to the appeal, whether or not it is conclusive cannot be dealt with at this stage but will be determined on the totality of all relevant material at the hearing of the appeal. I do note that the lower Court, in its Ruling did not only rely on the pleadings of the Appellant but also on his statement of facts, thus widening the scope beyond mere pleadings.
In satisfaction of the 3rd requirement, the evidence sought to be admitted is credible, I hold, even if it may not be incontrovertible.
It was adjured by the Court of Appeal in the case of First Bank of Nigeria Plc V Mvendaga Jibo (2006) 9 NWLR Part 985 Page 255 at 270-271 Para H-A, per Nzeako JCA:
”That strictness notwithstanding, the Appeal Courts, while applying the rule, often hold themselves bound to consider the ends of justice and act judiciously in determining whether to grant or refuse such an application for leave to adduce further evidence on appeal.”
Indeed, the Respondents filed no opposition to this application, connoting that they have conceded the same. The same is accordingly granted.
The 2nd leg of the application is for leave to argue a fresh point of law not canvassed before the lower Court. The explanation given is that the fresh issue sought was inadvertently not canvassed in that Court.
It is not against the law to raise fresh issues for the 1st time on appeal. What is against the law is to raise such issue without first seeking and obtaining the leave of the appellate Court. See Sogunro v Yeku (2017) 9 NWLR Part 1570 Page 290 at 311 Para C per Nweze JSC; Gwede v. INEC (2014) 18 NWLR Part 1438 Page 56 at 87 Para D-F per Onnoghen JSC(as he then was).
The reason given, I hold, is tenable. In consequence this application also succeeds.
The following orders are accordingly made:
1. Leave is granted to the Appellant to adduce additional documentary evidence by way of exhibits for use in the Appellant’s appeal, to wit:
i) Applicant’s letter dated 28/3/13.
ii) Standing Order signed by Col. K. I. Abdulkarim on 18/3/09.
iii) Respondents’ letters dated 17/4/13 and 8/5/13.
2. Leave is granted to the Appellant to argue a fresh point of law not canvassed before the lower Court, to wit:
”That the Armed Forces Act and not the Public Officers Protection Act does not apply to the Appellant’s suit on the grounds that:
a) It was not an action against Brig. Gen. O. Laleye who tried the Appellant.
b) The Appellant’s claim is regulated by the Armed Forces Act which prescribes the disciplinary procedure as well as the limitation period for Appellant’s claim.
IBRAHIM SHATA BDLIYA, J.C.A.: The position of the law on the granting of leave to adduce additional evidence on appeal has been settled by a litany of decisions of the Apex Court and this Court. For instance, in Idiok vs. State (2006) 12 NWLR when considering whether to grant leave to adduce additional evidence on appeal or not, Omokiri J.C.A (of blessed memory) had this to say on page 28:
”Even if this Court is well disposed to admit the said statements as additional evidence on appeal the prosecution witnesses cannot now be cross-examined unless this Court assumes the whole role of the Court of trial. Moreover admissions of further evidence in this Court is not allowed as a matter of course. It is only admissible on settled principles which were clearly stated in Esangbedo vs. State (supra). First it must be shown that the evidence could not have been obtained and with reasonable diligence used at the trial Court. Secondly, the Court must be satisfied that the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. Thirdly, the evidence must be apparently credible, though it need not be incontrovertible.”
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have had the privilege of seeing the draft Ruling of my lord OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA. I agree with the reasoning and conclusions reached by my lord and have nothing useful to add.
Appearances:
S.I. Unoakhe with him, M. A. Fasominu and T. V. OkwoliFor Appellant(s)
Respondents absent and unrepresented.For Respondent(s)
