ADEYEMO & ORS v. ABEFE & ORS
(2022)LCN/16057(CA)
In The Court Of Appeal
(ILORIN JUDICIAL DIVISION)
On Thursday, April 28, 2022
CA/IL/43/2021(R)
Before Our Lordships:
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
Isaiah Olufemi Akeju Justice of the Court of Appeal
Kenneth Ikechukwu Amadi Justice of the Court of Appeal
Between
1. HRH OBA YINUSA ADEBAYO ADEYEMO (OYEDEPO III) (For Himself And On Behalf Of The Onidun Royal Family Of Igboidun) 2. ALHAJI PRINCE KADIR ADEYEMO 3. CHIEF RAJI ARAOYE (ESA OF IGBOIDUN) 4. CHIEF ALHAJI IDRIS BADMUS (AJIROBA Of Igboidun) 5. CHIEF JIMOH BABARINSOLE AMEEN (OJOMU Of Igboidun) 6. CHIEF AJIBADE ADESHINA (Asoju Oba Of Igboidun) (For Themselves And On Behalf Of IGBOIDUN Community Kingmakers And The Entire Igboidun Community) APPELANT(S)
And
1. ALHAJI ABDULAZEEZ OLASUNKANMI ABEFE 2. OFFA TRADITIONAL COUNCIL OFFA 3. CHAIRMAN OFFA LOCAL GOVERNMENT 4. OFFA LOCAL GOVERNMENT COUNCIL RESPONDENT(S)
RATIO
WHETHER OR NOT LEAVE OF COURT MUST BE SOUGHT WHERE A PARTY SEEKS TO FILE AND ARGUE FRESH ISSUES IN THE APPELLATE COURT
It is trite that where a party for one reason or the other wants to bring to the notice of the Court certain existing documents it has to come by leave. This leave may or may not be granted. The Court will definitely look at the merit and demerit of this application.
Where a party seeks to file and argue any fresh issue in the appellate Court, he must first seek and obtain leave of Court before filing such an issue. The Applicants in this appeal cannot be allowed to tender these documents which ought to have been tendered at the trial Court. Leave must be sought and obtained beforehand. See CUSTOMARY COURT OF APPEAL, BENUE STATE VS. ABUIBA TSEGBA (2010) 4009, OBIAKOR VS THE STATE (2002) LPELR 2168. PER NDUKWE-ANYANWU, J.C.A.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgement): This is a motion on notice brought pursuant to Order 6 Rule 1 and Order 4 Rule 2-4 of the Court of Appeal Rule 2016 and under the inherent jurisdiction of this Honourable Court. The Applicants are praying the Court for the following orders:
1. AN ORDER OF THIS HONOURABLE COURT granting leave to the appellants/applicants to tender further/additional evidence that were raised and argued but not tendered before the trial Court in this appeal to wit:
i. Ruling delivered by Hon. Justice S. M. Akanbi of the Kwara State High Court, Ilorin Division, Kwara State in Suit No. KWS/145/2015 on the 19th day of March, 2019.
ii. The judgment of the Court of Appeal in Appeal No. CA/IL/143/2017 delivered by the Ilorin Judicial division on the 5th day of July 2018.
2. LEAVE AND ORDER of this Honourable Court to compile and transmit as supplementary Record the ruling of Hon. Justice S. M. Akanbi of the Kwara State High Court delivered on the 19th day of March, 2019 and judgment of Appeal Ilorin division in Appeal No. CA/IL/143/2017 between HRH OBA YINUSA ADEBAYO ADEYEMO & ORS AND ALHAJI ABDULAZEEZ OLASUNKANMI ABEFE & ORS.
3. AN ORDER OF THIS HONOURABLE COURT deeming the already transmitted supplementary records as duly compiled and transmitted.
4. And for further order(s) this Honourable may deemed/think fit to make in the circumstance of this case.
The motion has 9 grounds and it’s supported by a 19 paragraphs affidavit. A written address of 9th of November 2021 was also filed in support of the motion. Counsel relies on all the paragraphs of the affidavit. Counsel also adopts his written address in urging the Court to grant his prayers.
In opposition, the Respondents’ Counsel filed a counter affidavit of 10 paragraphs on 25th October 2021. Also filed is a written address in support. Counsel adopts his address in urging the Court to refuse the prayers of the Applicants.
The learned Counsel for the Applicants in his argument referred the Court to the case of STATOIL (NIGERIA) LIMITED VS. INDUCON NIGERIA LIMITED (2019) ALL FWLR PT. 999 PG. 491 where the principles on ways to adduce additional evidence on appeal by the Supreme Court.
(1). That the evidence sought to be tendered could not be obtained after due effort.
(2). That the evidence will be of importance.
(3). That the evidence could have influenced the judgment at the lower Court.
(4). That the evidence is material and weighty.
Counsel submitted that the Applicants have fulfilled and met all the conditions. Counsel argued that the ruling and the judgment are important to the just conclusion of this appeal. Counsel therefore, urged the Court to exercise its discretion in favour of the Applicants.
In opposition, Counsel argued that Order 4 Rule 4 of Court of Appeal Rules only empowers this Court to receive further evidence by way of oral examination, affidavit depositions but not documentary evidence. Counsel also argued that these documents sought to be tendered have been in existence for over 2 years. Counsel argued also that the case of STATOIL NIGERIA LIMITED VS. INDUCON NIGERIA LIMITED (Supra) was quoted out of contest. This authority enjoins the Court to exercise its discretion with utmost caution.
The Applicants are enjoined to fulfil this condition, thus:-
“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.”
Counsel stated that the Applicants were not diligent in obtaining the documents sought to be brought in now. Counsel also argued that the Applicants cannot transmit records that was not part of the proceedings in the trial Court. Counsel thereafter, urged the Court to refuse this application.
RESOLUTION
Applications such as this come under the discretionary powers of the Court. However, in exercising these powers the Court would have to caution itself. These discretionary powers are to be exercised judiciously and judiciously.
I have gone through the affidavits of both parties and their written addresses. The Applicants at this stage want to tender a ruling of the High Court and a judgment of this Court. These are Court processes that cannot be denied.
It is trite that where a party for one reason or the other wants to bring to the notice of the Court certain existing documents it has to come by leave. This leave may or may not be granted. The Court will definitely look at the merit and demerit of this application.
Where a party seeks to file and argue any fresh issue in the appellate Court, he must first seek and obtain leave of Court before filing such an issue. The Applicants in this appeal cannot be allowed to tender these documents which ought to have been tendered at the trial Court. Leave must be sought and obtained beforehand. See CUSTOMARY COURT OF APPEAL, BENUE STATE VS. ABUIBA TSEGBA (2010) 4009, OBIAKOR VS THE STATE (2002) LPELR 2168.
This case, the root of this appeal has suffered a lot of hops, steps and jumps. The Applicants believe that the documents they seek to bring to the notice of this Court may finally put to rest any thorny issues in this appeal.
In tendering documents in a case, admissibility is an issue followed by relevance then value to be placed on them.
The Applicants have by this application sought leave to bring to the attention of the Court the two decisions which will put to rest the issues in this appeal. See ACN VS LAMIDO (2012) LPELR 7825, MOTANYA VS ELINWA (1994) LPELR 1919. This leave being sought is a discretionary power bestowed on the Court to do justice to parties. I am minded to grant this leave for the Applicants to tender decisions of this Court and the trial Court. It must be noted at once that the legal admissibility of a piece of evidence is one thing, while the weight the Court would attach to such evidence after it has been admitted is quite another thing. Similarly, the competence of a particular person to give evidence in a particular proceeding is a different thing from what weight the Court will attach to the evidence of such a witness. The Respondent had argued that only proceedings in the lower Court can be brought in as additional or supplementary Record of Appeal. Whether these Court decisions are brought in by way of additional/supplementary Record of Appeal is inconsequential. The Applicant in his presentation of his motion can refer the Court to these decisions that it seeks to tender. The Court will thereafter, request him to make available those decisions of the Court. I don’t think the mode of bringing these Court’s decisions to the attention of the Court is important. From the foregoing, I am minded to grant the Applicants leave to tender these two decisions of this Court and the Court below. In order to dispense justice finally to the parties in this appeal.
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ISAIAH OLUFEMI AKEJU, J.C.A.: I read the ruling of my learned brother, UZO I. NDUKWE-ANYANWU, JCA, and I agree that the application is meritorious and it is granted by me.
KENNETH IKECHUKWU AMADI, J.C.A.: I had the opportunity of reading in advance, the well considered ruling delivered by my learned brother, UZO I. NDUKWE-ANYANWU, JCA just delivered. I agree with the reasoning and conclusion contained therein.
Appearances:
M. O. BALOGUN For Appellant(s)
M. D. ZULQURNANI, IJAYA For Respondent(s)