CHIEF PRINCE WOKORO & ORS v. CHIEF MASSOMAOWEI BARABARA & ANOR
(2019)LCN/12519(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of January, 2019
CA/PH/644/2014(R)
RATIO
EVIDENCE: WHERE FRESH EVIDENCE IS INTRODUCED
“It is obvious therefore that the fresh evidence sought to be introduced into this appeal is premised on an existing issue in the case of the parties as contained in their pleadings at the lower Court and does not amount to building of an entirely new case as cautioned by the Supreme Court in AMBASSADOR ALH. SHEHU OTHMAN MALAMI, OFR & ANOR. V IMONKIHUEDE OHIKHUARE & ORS (2017) LPELR 42580 held per EKO, JSC as follows: – ‘… Let it be added also, that this Court will grant leave to raise and argue fresh issues where it considers that the refusal of the leave will occasion a miscarriage of justice. It will be refused where the fresh issue or point introduces an entirely new case line of defence different from the issues fought by the parties at the trial Court, see DAHIRU V KAMALE (2001) 11 NWLR {Pt. 723} 244. Accordingly, in an application for leave to raise fresh issue on appeal the overall consideration is the justice of the matter in the appeal.'” BITRUS GYARAZAMA SANGA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
1. CHIEF PRINCE WOKORO
2. GOODNEWS EGBE
3. OKPOTIMI OGIDI
4. BILLY ORUPOUA
5. EMMANUEL SORU
6. JAMAICA OGIDI
7. JOEBEN ORUPOU
(For themselves and as representing Orubiri Community in Opokuma in Kolokuma/Opokuma Local Government Area of Bayelsa State) – Appellant(s)
AND
1. CHIEF MASSOMAOWEI BARABARA
2. PEREZI SHARP AKOSUBO
(For themselves, on behalf of Okorotomu
Autonomous Community of Kolokuma/Opokuma Local Government Area of Bayelsa State) – Respondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Lead Ruling):
The Appellants filed a motion on notice on 13th November, 2017 seeking for the following reliefs:
1. For leave to introduce fresh evidence in this case at this stage of the appeal on it to wit: a documentary evidence titled: certificate of Registration which is hereof attached and marked as Exhibit ‘OKA1′.
2. For such further or other orders as this Honourable Court may deem necessary to make in the circumstances.
The Grounds for the Application are:
i. There is a document that is very material to the Respondents’ answer to the Appellants which said documents came to the knowledge and possession of the Respondents after the conclusion of trial of the case at lower Court.
ii. This document is therefore a new evidence which was not presented before the trial Court during proceedings in the case due to its non availability as at the time but touches on a very important aspect of the Respondents’ case in this appeal.
iii. That this document being a fresh evidence, the leave of this Honourable Court is required to introduce and mention it in the Respondents’ argument in the appeal.
The motion was filed pursuant to Order 4 Rule 2 of the Court of Appeal Rules, 2016, and under the inherent jurisdiction of this Honourable Court.
In support of the motion is an affidavit deposed to by one Chief Alfred Akosubo (JP), the Traditional Ruler of the Applicants community containing 8 paragraphs. A photocopy of a certified true copy of a certificate of Registration of ‘Okorotomu Community’ by the Community Development Department of the Bayelsa State Ministry of Local Government and Community Development was annexed to the affidavit in support and marked as Exhibit ‘OKA1.’ The Applicants’ counsel M.K. Akparanta Esq., filed a written address in support of the motion on 21st September, 2018.
Upon being served with the motion paper the Appellants/Respondents did not file a counter affidavit in opposition but their counsel U. Saiyou Esq., filed a written address on 2nd October, 2018.
In their written address, learned counsel to the Respondents/Applicants formulated one issue as follows:
Whether the relief sought hereof is grantable having regard to the state of the law and the surrounding facts on the issue.
Learned counsel argued the sole issue based on two points to, wit; (a) The evidence sought to be in traduced into the case at the Court of Appeal is evidence that was not available during the trial of the case at the lower Court, which makes the evidence to satisfy the character of a fresh evidence; (b) It is in the interest of justice to let in the new or fresh evidence at the appellate stage of the case given, the nature of the Appellants argument in their brief of argument.
On the first point, learned counsel submitted that the law is trite that for a particular evidence to qualify to be introduced into a case at the appellate stage as a fresh evidence, such evidence must be new or fresh in the sense that such evidence was not available or accessible or not in existence during the subsistence of the proceedings in the case before the lower Court. Cited in support the authorities of: STATOIL (NIG.) LTD V INDUCOM NIG. LTD. (2018) 9 NWLR (PT. 1625) 586 at 601 -602; ADEGBITE V AMOSU (2016) 15 NWLR (PT. 1536) 405 at 427 – 428; and MALAMI v OHIKHUARE (2018) 4 NWLR (PT. 1610) 43 at 444.
That the evidence or document sought to be introduced at this stage of proceedings before this Court as fresh evidence, attached to the affidavit in support and marked as Exhibit ‘OKA1′ became available to the Applicants after it was issued by the relevant issuing authority on 8th March, 2016 as shown on the face of the said document. Thus from 26th October, 2009 to 12th May, 2014 when the instant suit was initiated and concluded before the lower Court, the evidence sought to be introduced into this appeal as fresh evidence was not available to the Applicants and could not even by the most diligent and reasonable care be accessed by them to be used in the proceedings at the lower Court. That considering the arguments put forward by the Appellants the fresh evidence sought to be introduced is germane to the Applicants case in this appeal. Learned counsel gave an instance in the Appellants pleadings in paragraph 23 of their statement of defence as defendants, before the lower Court and submitted that this fresh evidence is premised on an existing issue in the case of the parties as contained in their pleadings and does not amount to building an entirely new case.
While arguing point 2, learned counsel to the Applicant submitted that it is in the interest of justice to grant this application. This is so because by an Order of this Court granted to the Appellants to raise fresh issue in this appeal, which leave was given after due consideration of the leave sought by the Appellants to that effect, thereafter the appellants argued an issue in their brief which was never raised, canvassed and/or argued at the lower Court. That in their argument contained in their brief of argument, the applicants as respondents made spirited effort to counter the contention of the appellants in their brief to the effect that the suit is not properly instituted at the lower Court and one of the Plank on which the Respondents’ argument is based is this fresh evidence being sought to be used in this appeal. That in the circumstances there is justice in granting this application as doing so will give the applicants a level playing field with the Appellants which will serve the interest of justice.
In their written address, learned counsel to the Appellants/Respondents also raised a sole issue for determination as follows:
Whether this application is grantable or sustainable in law.
Learned counsel submitted that this application falls short of legal requirements in two respects which makes it not grantable or sustainable in law as follows:
1. That for this document to be used as fresh evidence on appeal, one of the requirements to be fulfilled, as laid down by the apex Court is that the document was in existence during proceedings at the trial Court but it was not reasonably possible to have located it at the time as same was not to the knowledge of the party at the time. Cited STATOIL (NIG.) LTD V INDUCOM NIGERIA. LTD. (supra) where I. T. Muhammad JSC held on page 601 paragraphs F – G thus:
‘It must be evidence, which has come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time.’
That in the instant application, the document sought to be used as fresh evidence was not in existence at all but that the applicant applied for it and were issued after the adoption of final written addresses and the case adjourned, for judgment. That it therefore follows that this document sought to be used on appeal did not satisfy the legal requirement for its use on appeal and so should be refused.
2. That before the lower Court pleadings constitute the basis upon which trials are conducted. That the law is trite that pleadings contain only fact in existence at the time of filing same in other words, pleadings cannot be futuristic or anticipatory of facts that will come into existence. That this explains why a party cannot by way of amendment plead facts which were not in existence at the time of filing of pleadings as amendments relates back to the date of the document amended. Cited MOBIL OIL NIGERIA LTD V ABOLADE COKER (1971) NWLR 56 at 58.
Learned counsel concluded his argument by submitting that if the document sought to be used on appeal could not have been pleaded at the Court below as it was not in existence at the time of settling pleadings same cannot also be used at this stage. Learned counsel urged the Court to refuse this application.
FINDINGS
In determining this application, I will adopt the issue raised by the Appellants/Respondents which is:
‘Whether this application is grantable or sustainable in law.
To answer this issue I have to draw the attention of this Court to Order 4 Rule 2 of the Rules of this Court 2016 which provides thus:
‘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.’
I have taken note of the proviso in bracket which states thus: ‘(other than the evidence as to matters which have occurred after the date of the trial or hearing)’. Learned counsel to the Appellants shed light on when the document sought to be admitted as fresh evidence was made by submitting that this suit was filed on 26/10/2009 and judgment delivered on 12/5/2014. The document sought to be introduced as fresh evidence was issued by the relevant authority on 8/3/2016 as reflected on the face of the said document marked as Exhibit ‘OKA1′. Thus the evidence in issue fall under the ambit of the proviso to Order 4 Rule 2 (supra) having been made after the date of the trial or hearing of the suit that gave rise to this appeal. Thus when the instant suit was initiated and concluded before the lower Court the evidence sought to be introduced into this appeal as fresh evidence was not available to the Applicants and could not even by the most diligent and reasonable efforts be accessed by them for using same at the proceedings before the lower Court.
Another aspect of this application I will consider is the brief history of what transpired when this appeal was filed via the Notice of Appeal on 11th August, 2014 (pages 377-382 of the record of appeal). After initiating the appeal the Appellants filed a similar motion to the instant one on 5th January, 2015 seeking for leave of this Court to raise and argue fresh issue in the appeal. This Court granted the application. The fresh issue (which was never raised at the lower Court during trial) was introduced and argued in their brief of argument was not raised by the Appellants in their brief of Argument. The said fresh evidence raised by the Appellants and argued or argued before the lower Court, neither was it pronounced upon in the judgment of the said lower Court. The applicants in reply to this state of affairs then filed this application to also introduce fresh evidence that was not available to them during trial before the lower Court.
I have noted that this fresh evidence sought to be introduced by the applicants is to enable them reply to paragraph 23 of the Appellants’ statement of defence wherein they pleaded that:
23: Okorotomu has never been a Community of its own, as it has been a Compound of Olobiri and tenants of Olobiri people.” (page 50 of records).
It is obvious therefore that the fresh evidence sought to be introduced into this appeal is premised on an existing issue in the case of the parties as contained in their pleadings at the lower Court and does not amount to building of an entirely new case as cautioned by the Supreme Court in AMBASSADOR ALH. SHEHU OTHMAN MALAMI, OFR & ANOR. V IMONKIHUEDE OHIKHUARE & ORS (2017) LPELR 42580 held per EKO, JSC as follows: –
“… Let it be added also, that this Court will grant leave to raise and argue fresh issues where it considers that the refusal of the leave will occasion a miscarriage of justice. It will be refused where the fresh issue or point introduces an entirely new case line of defence different from the issues fought by the parties at the trial Court, see DAHIRU V KAMALE (2001) 11 NWLR {Pt. 723} 244. Accordingly, in an application for leave to raise fresh issue on appeal the overall consideration is the justice of the matter in the appeal.”
It is obvious that the ends of justice will be served by granting this application, since doing so will give the Applicants a level playing field with the Appellants on issue 1 raised by the said Appellants in their Brief of Argument formulated from Ground 1 of their Amended Notice of Appeal. Therefore it is the Ruling of this Court that this application has merit and is hereby granted. Leave is granted the Applicants to introduce fresh evidence in this appeal, to wit:
1A document titled ‘CERTIFICATE OF REGISTRATION’ of Okorotomu Community; a certified true copy of which is attached to the supporting affidavit and marked as Exhibit ‘OKA1’.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Ruling of my learned brother, BITRUS GYARAZAMA SANGA JCA before it was delivered. I agree with the reasoning of my learned brother and the conclusion that the application has merit. I grant the application as prayed.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I was afforded the opportunity of reading the lead judgment just delivered by my learned brother Bitrus Gyarazama Sanga, JCA. I agree entirely with the reasoning and conclusion reached therein. The appeal for having merit is hereby granted.
Appearances:
Ebiyon Duke, Esq.For Appellant(s)
M.K. Akparanta, Esq.For Respondent(s)
