COMMISSIONER OF POLICE EKITI STATE & ORS v. MRS. SOLA AREGBESOLA & ORS
(2019)LCN/13266(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/EK/40/2017(R)
RATIO
EVIDENCE: FRESH EVIDENCE: FACTORS THAT DETERMINE WHETHER OR NOT THE COURT WILL GRANT LEAVE TO INTRODUCE FRESH EVIDENCE
In the exercise of the Courts discretionary powers to grant this application, there are settled principles which guide the Court in determining whether to grant leave to adduce fresh or further evidence. They are as follows:
(1) 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.
(2) In respect of other evidence other than in (1) above as for instance, in respect of an appeal from a judgment. After a hearing on the merits the Court will admit such fresh evidence only on special grounds.
(3) The evidence should be such as if admitted, it would have an important, not necessarily crucial effect on the whole case.
(4) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be controverted. See Asaboro vs Aruwaji (1974) 4 SC Reprint Pg. 87; Akanbi vs Alao (1989) 3 NWLR Pt.108 Pg 118; Esangbedo vs The State (1989) 4 NWLR Pt. 113 Pg. 57.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
APPEAL: WHETHER A PARTY WHO FAILS TO PLEAD A DOCUMENT AT TRIAL CANNOT INTRODUCE IT ON APPEAL
In Akanbi v. Alao (Supra), the ratio is that a party who fails to plead a document at the trial Court cannot seek leave to introduce such evidence through the back door as further evidence before this Court.PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
JUSTICES:
UZO IFEYINWA NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
1. COMMISSIONER OF POLICE EKITI STATE
2. THE DIVISIONAL POLICE OFFICER ILAWE EKITI
3. VICTOR -A POLICE OFFICER AT ILAWE
4. CATHERINE-A POLICE OFFICER AT ILAWE
5. SGT ABIOLA OMOTUNDE -A POLICE OFFICER AT ILAWE
6. SUNDAY OGUNTOYE- A POLICE OFFICER AT ILAWE – Appellant(s)
AND
1. MRS. SOLA AREGBESOLA
2. MRS. AJOKE ATERIGINA
3. MRS. AGNES AINA STONE
4. YEMISI FABUNMI
5. BUKOLA FABUNMI – Respondent(s)
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Lead Ruling): By a Notice of Motion dated 2nd May, 2018 and filed 25th June, 2018, the 1st Respondent/Applicant seeks the following reliefs:
1. AN ORDER granting leave to the 1st Respondent/Applicant to call further evidence in this appeal by filing a further affidavit to exhibit the medical report of the General Hospital, Ilawe Ekiti, Ekiti State.
2. AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
The grounds upon which the reliefs are sought are:
i. By the Order 4 Rule 2 of the rules of this Honourable Court, that this Court may grant leave to call further evidence if the evidence sought to be tendered was obtained after hearing of this suit at the lower Court.
ii. In Asaboro v Aruwaji (1974) 1 ALL NLR (Pt. 1) 140, the Supreme Court per Coker JSC stated the principles which the Courts have always taken into consideration in the judicial exercise of powers to grant leave to adduce fresh evidence where such evidence is important.
iii. The principles that guide the
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admissibility of fresh evidence are laid down in Ladd v Marshall (1954) 3 ALL ER 745, 748 where Denning L. J observed: The principles to be applied are the same as those always applied when fresh evidence is ought to be introduced.
iv. The evidenced sought to be adduced in this appeal was not available during hearing at the lower Court.
v. The evidence sought to be adduce in this appeal was made available to the 1st Respondent/Applicant after judgment was delivered at the lower Court.
vi. That this application is necessary for the 1st Respondent/Appellants to bring further evidence in order to enable this Honourable Court to properly adjudicate on this matter.
vii. It is in the interest of justice and fair hearing to grant the 1st Respondent/Applicants.
The application which is brought pursuant to Order 4 Rules 2 and Order 6 Rules 1 of the Court of Appeal Rules, 2016 and under the inherent jurisdiction of this Honourable Court is supported by a 9 (nine) paragraph affidavit deposed to by Mrs. Sola Aregbesola, the 1st Respondent/Applicant and the annexures thereto.
The Appellants/Respondents rely
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on a 19 (Nineteen) paragraph counter-affidavit to oppose the application.
Following an Order of this Court, parties have filed and exchanged their written addresses which on the hearing of the application they adopted and relied upon as their arguments for and against the Motion on Notice.
Counsel for the 1st Respondent/Applicant filed his written address in support of the application on the 4th of February, 2019, while counsel for the Appellants/Respondents filed his written address in opposition to the said application to adduce fresh evidence on appeal on the 20th of February, 2019. There is reply on points of law.
The 1st Respondent/Applicant in its written address raised a sole issue for determination as follows:
Whether this Honourable Court ought to grant the Applicants prayer to call further evidence.
Learned counsel for the 1st Respondent/Applicant submitted that by virtue of the combined provisions of Order 4 Rule 2 of the Court of Appeal Rules 2016 and Section 26 of the Court of Appeal Act, 2011 this Court has discretionary powers to grant the Applicants application. He further submitted that in the
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exercised of such discretionary powers, the Appellate Court is guided by the following principles:
1. The evidence sought to be adduced should be such that it could not have been obtained with reasonable care and diligence for use at the trial.
2. If the fresh evidence is admitted, it would have an important but not necessarily crucial effect on the whole case.
3. If the evidence sought to be adduced is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible.
4. Additional evidence may be admitted if the evidence sought to be adduced could have influenced the judgment at the lower Court in favour of the applicant, if it had been available at the trial Court.
5. The evidence must be material and weighty even if not conclusive, where the evidence sought to be adduced is immaterial and irrelevant, it will be rejected.
He relied on the cases of AROH V PEOPLES DEMOCRATIC PARTY (2013) 13 NWLR (Pt. 1371) 235; OWATA V ANYIGOR (1993) 2 NWLR 380.
It is the contention of counsel for the 1st Respondent/Applicant that the Applicant have met all the above five principles in
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her supporting affidavit and thus went further to demonstrate same. Some of which are as follows:
On the first principle, counsel submitted that it is evident from the dates on both Exhibits Aregbe 1 and 2 (medical reports) that they came into existence after the judgment of the lower Court and there was no way it could have been given in evidence at the lower Court even with the greatest diligence on the part of the Applicant.
On the second principle, counsel submitted that if Exhibits Aregbe 1 and 2 are admitted they would have important effect on the whole case as it goes to show evidence of the brutalization meted out on the Applicant by the Appellants/Respondents.
On the third principle, counsel submitted that Exhibits Aregbe 1 and 2 are credible and believable as they were authored by professionals.
He thus submitted that the Applicant having met all the five principles/special grounds for the admission of fresh evidence, this Court ought to grant the Applicants leave to call further evidence.
The Appellants/Respondents on their own part raised 3 (three) issues for determination as follows:
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1. Whether the 1st Respondent/Applicant had disclosed sufficient and reasonable grounds to warrant the grant of the Application.
2. Whether the 1st Respondent/Applicant who had joined issues with the Appellants by filling Respondents Brief can subsequently succeed in her Application to call further evidence
3. Whether a judgment creator under the Fundamental Right Enforcement Rules, who did not file a Respondents Notice, can succeed in an Application to call fresh evidence
On issue 1, counsel for the Appellants/Respondents submitted that though this Court have the power to receive further evidence on questions of fact in an appeal after a trial on the merits pursuant to Order 4 Rule 2 of the Courts Rules, it is the contention of counsel that the said rules of Court will not avail the 1st Respondent/Applicant in this circumstance as the additional/further evidence the Applicant sought to adduce relates to matters which occurred prior to the commencement of trial and not after the date of trial or hearing.
Counsel went further to reiterate the principles which an appellate Court must take into consideration in the judicious exercise of its
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powers to grant leave to adduce new evidence. He submitted that the 1st Respondent/Applicant have not satisfied at least two of the conditions/principles the law requires. He cited the cases of BELLO AKANBI & ORS V MAMUDU ALAO & ORS (1989) ELC (Pt 1175) 1; CPC & OR V OMBUGADU (2013) CPC & Anor v Ombugadu & Anor 55 PAGE 270 SC; (2013) ALL FWLR (Pt 706) 453; NWAOGU V ATUMA (2015) EJSC (V 19) 128 SC.
According to counsel, the 1st Respondent/Applicant did not show reasonable diligence in getting the evidence neither did she establish that the evidence is apparently credible. He mentioned that throughout the trial at the lower Court the 1st Respondent/Applicant never mention the name of hospital she was taken to or exhibit any medical documents which should be in her possession which showed no reasonable diligence to obtain same. He also contended that the fact that the medical report sought to be tendered by the Applicant have no reference number from the hospital and that she never mentioned where she was treated throughout the trial questions the credibility of Exhibits Aragbe 1 and 2 sought to be tendered.
Based on the above he urged this Court to resolve this
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issue in favour of the Appellants/Respondents.
On issue 2, learned counsel for the Appellants/Respondents submitted that it is trite that an applicant bringing an application must act timeously. He referred to the case of UGBOJI V STATE (2017) LPELR (434207). It is the contention of counsel that the 1st Respondent/Applicant having brought this present application to call further evidence four months after she had filed her brief had not acted timeously and thus her application to call for further evidence ought to be dismissed as she is foreclosed from filing another Respondents brief.
He also submitted that Exhibits Aragbe 1 and 2 being documents which were made in the course of litigation are inadmissible. He referred to the case of ARAB CONTRACTORS (O.A.O) NIGERIA LTD V UMANAH (2013) ALL FWLR (Pt 683) 1977.
He thus urged this Court to resolve this issue in favour of the Appellants/Respondents.
On issue 3, learned counsel for the Appellants/Respondents submitted that the 1st Respondent/Applicant who is judgment creditor cannot succeed in an application to call further evidence without filing a Respondents Notice as the fresh
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evidence could raise new issues outside the Appellants/Respondents grounds of appeal. He submitted that the evidence sought to be introduced is already an issue in contention in ground 2 of the Appellants/Respondents Notice of Appeal and if the 1st Respondent/Applicants application is granted, it will raise a new issue outside the grounds of appeal.
He also submitted that the fact that the 1st Respondent/Applicant succeeded at the lower Court presupposes that they had placed all the facts before the Court. He referred to the case of GUZAU V UMEZURIKE (2012) ALL FWLR (PT 655) 291. Hence she cannot be allowed to adduce further evidence on appeal. He thus urged this Court to so hold.
Resolution
The 1st Respondent/Applicant in this appeal as Applicant in the lower Court got judgment for the Appellants infringing on her Fundamental Right. The 1st Respondent/Applicant was awarded N20, 000,000:00 in damages. The learned trial Judge held as follows:
Exhibit SA (21-2g) suffice as enough evidence though this could have been re-inforced by a medical report from a government hospital. I believe the evidence of
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the Appellant and hold that the inhuman and degrading treatment of Applicant by the Police or her arrest is an infringement of Applicants fundamental right. This is even established by the averment of the Applicant that no investigation was carried out and neith
