RUFUS ODUONYE & ANOR v. UNION BANK OF NIGERIA PLC
(2018)LCN/12205(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of November, 2018
CA/L/435/2006(R)
RATIO
EVIDENCE: PRINCIPLE WHICH GRANT THE APPELLATE COURT TO ADDUCE FRESH EVIDENCE
“The Principles which guide the Appellate Court in the exercise of its power to grant leave to adduce fresh evidence are; (a) the evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial or are matters which have occurred after judgment in the trial Court. (b) In respect of other evidence other than in (a) above the Court will admit such fresh evidence only on special grounds as provided in Order 4 Rule 2 of the Court of Appeal Rules 2011. (c) the evidence to be adduced should be such if admitted, it would have an important not necessarily crucial effect on the whole case. (d) the evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible. See: CPC & Anor Vs Ombugadu & Anor 2013 LPELR, 21007 SC; Mabogunje Vs Odutola (2008) ALL FWR (Pt.412) 1182 @ 1184; Unilorin Vs Ayodeji (2013) LPELR 21378 CA. The law is settled that application to adduced fresh evidence is not granted as a matter of course. To succeed the Applicant must show that such evidence could not by any reasonable diligence have been adduced at the trial.” PER JAMILU YAMMAMA TUKUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
1.RUFUS ODUONYE
(Trading under the name and style of R. Oduonye & Brothers Stores)
2.R. ODUONYE & BROTHERS STORES LTD Appellant(s)
AND
UNION BANK OF NIGERIA PLC Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Lead Ruling):
By a motion dated and filed on 22nd of November 2011 learned counsel on behalf of the Appellants/Applicants seeks the following reliefs:
1. AN ORDER of the Court granting the Appellants/Applicants leave to make this application.
2. AN ORDER of the Court granting the Appellants/Applicants leave to tender by delivering to the Court very crucial and material documentary exhibits of the Respondent/ Respondent’s 78 (Seventy eight) credit/tellers with which the Appellants/Applicants lodged or paid to the Respondent/Respondent the total sum of N49,297.579.00K (forty nine million, two hundred and ninety seven thousand, five hundred and seventy nine naira) the receipt of which the Respondent/Respondent falsely totally denied during trial leading to the judgment the subject matter of this Appeal, while the said credit payment tellers were missing or misplaced and well before the institution of the suit in the High Court and were not found and not discovered during the trial and the judgment until Wednesday the 21st day of October, 2009 while this appeal is pending in the Court.
3. AN ORDER permitting the Appellants/Applicants to produce and deliver to the Court the 78 (seventy eight) Respondent/Respondent?s bank tellers with the cashier’s stamp marks evidencing the total payment of the facility and additional payments of money to the customer’s account by the Appellants/Applicants to the Respondent/Respondent amounting to the total sum of N49,297,579.00K (Forty-nine million two hundred and ninety seven thousand five hundred and seventy nine naira).
4. AND FOR SUCH FURTHER order or necessary orders as the Court may deem fit and proper to make in the circumstances.
The application is supported by sixteen paragraphs affidavit and two Exhibits are annexed to the supporting affidavit. A Written Address dated 5th of March 2018 was filed on 8th of March 2018 by the Appellants/Applicants. In the Written Address, learned counsel for the Applicants distilled a lone issue thus:-
Whether this Hon. Court has power to exercise its discretion in favour of the Appellants/Applicants by granting the prayers as contained in the motion paper.
Arguing the issue learned counsel relying on the Provisions of Order 4 Rule 2 of the Court of Appeal Rules 2011 which he said is in pari materia with Order 4 Rule 2 of the Court of Appeal Rules 2016 submitted that the Court has power to received further evidence on Appeal.
Learned counsel submitted that the Appellants/Applicants had given evidence at the trial Court that they have been making payments to the Respondents since 1999 which the Respondent denied receiving. The Appellants/Applicants contended that they were unable to produce any Bank Teller evidencing the payments because they misplaced the bank tellers and could not recover them until after trial and judgment entered in favour of the Respondent.
It is further submitted by the Appellants/Applicants that this Court has the discretionary powers to grant the application and allow the Appellants/Applicants adduced the documentary evidence before it in the interest of substantial justice and fair hearing.
Learned counsel cited Leaders and Company Ltd & Anor V Major General Musa Bamaiyi (2010) 18 NWLR (Pt 1225 PG 329; UBN PLC V ASTRA BUILDERS (WA) LTD (2010) 5 NWLR (PT 1186) 1 SC; SALEH V MONGUNO (2003) 1 NWLR (PT 801) 221.
Learned counsel urge us to grant the application. The Respondent in opposing the application filed a five paragraph Counter Affidavit dated 27th February 2013 and filed same day. A Written Address was filed on 6th June 2018 by learned counsel for the Respondent wherein the following lone issue was distilled for determination;
“Whether the Appellants have satisfied the conditions necessary for granting leave to present fresh evidence on Appeal”
Relying on the Provisions of Order 4 Rule 2 of the Court of Appeal Rules 2016 and the Supreme Court decision in ASABORO V AROWAJI 1974 4 SC (REPRINT) 87 at 90-91. Learned counsel submitted that fresh evidence may be received on Appeal upon the satisfaction of the following conditions:-
i. Where the evidence sought to be adduced is such as could not have been obtained with reasonable care diligence for use at the trial;
ii. Where the fresh evidence is such that if admitted would have an important, but not necessarily crucial, effect on the whole case;
iii. Where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed. It need not necessarily be incontrovertible.”
Learned counsel submitted that the fresh evidence sought to be introduced by this application has failed to satisfy the conditions stated above. It was further submitted by learned counsel that even if the tellers sought to be presented are relevant, they are not the only means by which the Applicants could established the fact they are seeking to establish; namely that there was as much as forty Nine Million Naira credit balance in Account No: 401324968 operated by R. Oduonye & Bros Stores.
The learned counsel said they could have done that by the production of the statement of account. Learned counsel for the Respondent further contended that the tellers sought to be received in this Court as fresh evidence are irrelevant and will not have any important effect on the substantive case, as the tellers dated May 1996 to 1st April 1997 were in respect of payments made before the 2nd Appellant started operating Account No: 401324976 in September 1997 which from the pleadings became the subject matter before the lower Court.
Learned counsel further submitted that there is nothing in the pleadings of the Appellants/Applicants to accommodate the reception before this Court of the fresh issue. It is further contended that the Appellants/Applicants are by this application trying to set off a new case different from their case in the lower Court.
Learned counsel for the Respondent urge us to refuse the application, and dismiss same.
RESOLUTION
The fulcrum of the case of the Appellants/Applicants in this application is to be permitted to adduced fresh evidence before us by tendering seventy eight credit/tellers which the Applicants said they lodged or paid to the Respondent the total sum of N49,297,579.00 (Forty Nine Million two Hundred and Ninety Seven Thousand five Hundred and Seventy Nine Naira). The receipt of which the Respondent denied during trial. It was the case of the Appellants/Applicants that the said credit payment tellers got missing a long time ago before the institution of the Suit in the High Court and were not found during the trial and judgment until on the 21st day of October, 2009 while this appeal was pending. There is no doubt that this Court vide the provisions of Order 4 Rule(2) of both the 2011 and 2016 Rules has power to receive further evidence on questions of fact, either by oral examination in Court, by affidavit or by deposition before an examiner or commissioner.
There are however, strict conditions which an Applicant must satisfy before admitting such fresh evidence on appeal.
The Principles which guide the Appellate Court in the exercise of its power to grant leave to adduce fresh evidence are; (a) the evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial or are matters which have occurred after judgment in the trial Court. (b) In respect of other evidence other than in (a) above the Court will admit such fresh evidence only on special grounds as provided in Order 4 Rule 2 of the Court of Appeal Rules 2011. (c) the evidence to be adduced should be such if admitted, it would have an important not necessarily crucial effect on the whole case. (d) the evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible. See: CPC & Anor Vs Ombugadu & Anor 2013 LPELR, 21007 SC; Mabogunje Vs Odutola (2008) ALL FWR (Pt.412) 1182 @ 1184; Unilorin Vs Ayodeji (2013) LPELR 21378 CA.
The law is settled that application to adduced fresh evidence is not granted as a matter of course. To succeed the Applicant must show that such evidence could not by any reasonable diligence have been adduced at the trial.
The first port of call in the determination of this Application is a consideration of the question whether the documents will have any important bearing on the case. Learned counsel for the Respondent argued the contrary and contended that the tellers do not have any nexus with the case of the Applicants in the lower Court as shown in the pleadings of the parties.
I have examined the pleadings of the parties referred to us by the parties and I have also adverted my mind to the affidavits filed by the parties for and against the application and I agree with learned counsel for the Respondent that the fresh evidence sought to be adduced before us have no bearing with the case of the Appellants/Applicants in the lower Court.
The Amended Statement of claim filed on 27th November, 2003 by the Appellants/Applicants captured at pages 3 – 7 of the record of appeal made no reference to the bundle of 78 seventy eight cash payment bank tellers. The photo-copies of bundle of the said (78) Seventy Eight cash payment bank tellers attach with the application mark as Exhibit R.O.2, where upon examination found to be dated in 1996 and between January to April 1997, which in my view further deplete the case of the Appellants/Applicants.
In Exhibit R.O.1 attached to the Application which was exhibited as a certified true copy of the portion of the judgment of the lower Court, the Applicants are categorical that they started making payments subject of the tellers sometimes in 1999.
Now if the tellers evidencing the said payments made from 1999 are not before us, of what benefit will be the ones attached to this application to the Appellants/Applicants when it is shown that they do not have any nexus with the case of the Appellants in the lower Court.
The law is settled that parties to a case in the superior Court of record are bound by their pleadings and evidence which is at variance with the averments in the pleadings will go to no issue.
See: Mamman Vs Salaudeen 2005 LPELR 1833 (SC); Uredi Vs Dada 1988 LPELR 3425 (SC); Kolapo & Anor Vs Alade (1985) LPELR -21290 (CA).
As pointed out earlier in this Ruling, an application to adduce fresh evidence is not granted as a matter of course. The evidence that is sought to be adduced before us could with some degree of diligence be adduced before the trial Court by the production of the statement of accounts which the Respondent in paragraph 15 of its Amended Statement of Defence stated that it had always sent to the Appellants/Applicants (see page 2 of record of appeal).
Looking at the totality of the affidavit evidence before us, I am not satisfied that the Applicants are entitled to the grant of this application.
The application has no merit and same is dismissed.
There shall be costs of (N100, 000.00) One Hundred Thousand Naira in favour of the Respondent against the Appellants/Applicants.
MOHAMMED LAWAL GARBA, J.C.A.: I agree with the lead Ruling of my learned brother Jamilu Yammama Tukur, JCA in this application and join in dismissing it for lacking in merit.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the ruling prepared by my learned brother, Jamilu Yammama Tukur, J.C.A., which I read in draft.
Appearances:
For Appellant(s)
Solomon AdeseunFor Respondent(s)
