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AKUME v. UDELE (2022)

AKUME v. UDELE

(2022)LCN/16167(CA)

In the Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Thursday, February 03, 2022

CA/MK/131/2011(R)

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Between

JOSEPH ASEMAVE AKUME APPELANT(S)

And

MATHEW UDELE RESPONDENT(S)

 

RATIO

THE GENERAL POWERS OF THE COURT OF APPEAL

First and foremost Section 15 of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria, 2004 which sets out the general powers of this Court where and when an appeal from the High Court as in this case is lodged before us, provides as follows:
“15. General Powers of Court of Appeal
The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part, or may re-list it to the Court below for purposes of such re-hearing, or may give other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of the Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
PER AGUBE, J.C.A.

THE POSITION OF LAW ON THE COURT OF APPEAL EXERCISING ITS POWERS ON ADMITING EVIDENCE ON APPEAL

For instance, in the locus classic of Onwubuariri Vs. Igboasoiyi (2011) All FWLR (Pt. 569) 1059 SC also reported as Batholomew Onwubuariri & Ors Vs. Isaac Igboasoiyi & Ors. (2011) LPEL R-754 (SC) per Onnoghen, JSC (as he then was) at pages 19-20 paras. C-A; after holding at page 19 paras. A-C of the Report that the law is settled that the power conferred on the Court of Appeal to admit evidence on appeal is generally exercised reluctantly, sparingly and with great circumspection since the law is reluctant in allowing a party to re-open an issue after it had been duly determined/decided by a Court of competent jurisdiction, on the excuse that new facts, which could have been discovered and used at the trial are not found, reasoned and enumerated the five conditions precedent/circumstances under which the Court of Appeal or an Appellate Court can exercise its powers to receive fresh/additional evidence thus:
“The special circumstances/grounds under which the Court of Appeal or Appellate Court can exercise its powers to receive further/additional/fresh evidence on appeal include the following:
(a) 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;
(b). If the fresh evidence is admitted, it will have an impact but not necessarily crucial effect on the whole case;
(c). If the evidence sought to be adduced is such that it is apparently credible in the sense that, it is capable of being believed even if it may not be incontrovertible;
(d). 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.
(e). The evidence must be material and weighty even if not conclusive, see Owata Vs. Anyigor (1993) 2 NWLR (Pt.276) 380.”
PER AGUBE, J.C.A.

THE POSITION OF LAW ON RAISING OF FRESH EVIDENCE ON APPEAL

In considering the application, my Lord has exhaustively dealt with the issue of fresh evidence on appeal as held in OBASI & ANOR V. ONWUKA & ORS (1987) LPELR-2152(SC) and AMAECHI V. INEC & ORS (2008) LPELR-446(SC). The Supreme Court in OBASI & ANOR V. ONWUKA & ORS (SUPRA) had this to say:
“…Appellate Courts are very reluctant to admit “fresh evidence”, “new evidence” or “additional evidence” on appeal except in circumstances when the matter arose ex improviso which no humam ingenuity could foresee and it is in the interest of Justice that evidence of that fact be led:- R v. Dora Harris (1927) 28 cox 432. In civil cases, the Court will permit fresh evidence in furtherance of justice under the following circumstances:- (i) Where the evidence sought to be adduced is such as could not have been obtained with reasonable care and 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.” Per OPUTA, JSC.

Also, it is long settled that all the conditions precedent for the grant of such leave to adduce further evidence, must exist concurrently before an Appellate Court can exercise its discretion to grant an application for fresh evidence to be adduced. See the case of AROH V. P.D.P. (2014) ALL FWLR (PT.729) 1028 and OWATA V. ANYIGOR (1993) 2 NWLR (PT.276) 380 (SC). PER NIMPAR, J.C.A.

IGNATIUS IGWE AGUBE, J.C.A. (Delivering the Leading Judgement): This Motion on Notice was brought by the Appellant on the 9th day of December, 2014 following the filing of his Appeal against the Judgment of the High Court of Justice, Benue State sitting at Court number 7 Makurdi and delivered on the 12th day of April, 2011 per Hon. Justice T.A. Igoche. From the Record of Appeal transmitted to this Court, the Appeal was entered in this Honourable Court on the 20th day of September, 2011. Briefs of Argument had been exchanged by the respective Learned Counsel to the Parties. For the avoidance of doubt, the Appellant’s Brief of Argument settled by K.C. Oghuvwun, Esq. dated 12th November, 2012 and filed on the 18th of November, 2012 was deemed properly filed and served on the 13th of February, 2013 while the Respondent’s Brief of Argument dated 24th of March, 2013 and filed on the 26th of March, 2013 was settled by S.B. Luga, Esq. of Justin A. Gbagir & Co. Firm of Solicitors. Upon receipt of the Appellant’s Brief of Argument, the Appellant’s Reply Brief of Argument was filed on the 22nd day of July, 2013.

​The motion prays for the following Orders to wit:
a) Leave to adduce as additional evidence the Benue State Right of Occupancy No. BNE.3942 dated 23rd June, 2010 issued to the Appellant/Applicant after the Judgment appealed against.
b) Leave to adduce as further evidence the following documents to wit:
i. The Writ of Summons/Statement of Claim and other Originating processes in Suit No: MHC/273/2014 between ATIM MUA & ORS. Vs. ANDRE TER SUGH & ORS.
ii. Benue State Urban Development Board Letter dated 9th July, 2014 Ref. No. UDB/CASE No: 53029/I/33.
iii. Benue State Government Certificate of Occupancy No: BN8606 dated 12th July, 2004 and
iv. Motion No. MHC/1403M/2014 dated 21st August, 2014 (filed 22nd August, 2014) to support the Appellant’s assertion/contention that the Respondent has no piece of land within the environs and in particular the land claimed and given to the Respondent per the Counter-Claim of 21st November, 2008.
AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances of this Appeal and in the interest of justice.”

​The grounds upon which the Application is predicated are listed as follows:
a) That Appeal No: CA/MK/131/2011 was filed against the decision of the Benue State High Court sitting at Makurdi in Suit No: MHC/83/2008;
b) That the further evidence to wit:
(i) A Benue State Right of Occupancy No. BNE.3942 dated 23rd June, 2010.
(ii) Writ of Summons/Statement of Claim in Suit No: MHC/273/2014 between ATIM MUA & 4 ORS. Vs. ANDRE TER SUGH & 3 ORS.
(iii) Benue State Government Certificate of Occupancy No: BN8606;
(iv) A Benue State Urban Development Board Letter dated 9th July, 2014 Ref. No. UDB/CASE No: 53029/I/33.
(v) Motion Papers in Motion No. MHC/1403M/14 21st August, 2014 (filed 2nd August 2014) to which a document dated 9 July, 2014, were received and came into existence on a date prior to the Judgment of the Learned Trial Court.
c) That the pieces of evidence aforestated are credible, relevant and admissible.
d) That these documents aforestated will have an influence on the decision of the Trial Court.
e) That were these documents presented at the Trial, the decision appealed against would have been affected.
f) That the instant Appeal has not been heard by the Honourable Court.”

In support of the Motion is an Affidavit of twenty Paragraphs deposed to by the Appellant (Joseph A. Akume) to which documents marked Exhibits KC01, KC02, KC03, KC04, KCO5 were annexed.

Upon being served with the Motion Paper and accompanying Exhibits, the Respondent (Mathew Udele) filed and served on the Appellant/Applicant a Counter-Affidavit deposed to by him on the 6th day of October, 2015 and upon receipt of the Respondents Thirteen (13) paragraph Counter-Affidavit, the Appellant/Applicant further filed a Further And Better Affidavit in Support of the Motion on the 5th of May, 2017. In view of the contentious nature of the Application, we were minded to order that Written Addresses be filed and served by the respective Learned Counsel to the parties to articulate their disparate positions whether or not the application should be granted.

Pursuant to the order of Court, the Learned Counsel to the Appellant/Applicant filed the Applicant’s Written Address accompanying the Application on the 11th February, 2021. On the 8th day of November, 2021 when the Motion was to be heard, the Respondent did not file his address but relied on his Counter-Affidavit and we ordered the Applicant to proceed to move his Motion which his Learned Counsel did by adopting the Written Address filed in Support, to urge the Court to grant the Application.

Now in the said Written Address, the Appellant gave the background of the case thus: That the Appellant/Applicant lodged Appeal No. CA/MK/131/2011 against part of the decision of the Benue State High Court sitting at Court 7, Makurdi in Suit No. MHC/83/2008 which Judgment was in favour of the Respondent (then Counter-Claimant). According to him, prior to the commencement of the Suit and the Judgment complained of, the Appellant/Applicant had applied for a Right of Occupancy from the Benue State Government over the entire piece of land litigated between the Appellant/Applicant and the Defendant/Counter-Claimant/Respondent including the part counter-claimed by the Respondent. It is the case of the Applicant that the application for the Right of Occupancy as well as the issues concerning same were all pleaded in Paragraphs 3-7 of the Applicant (then Plaintiff’s) Statement of Claim and captured at pages 1-7 of the Records of the Lower Court.

It is his further case that as a result of the delay in the procurement of the said Right Of Occupancy, same could not be tendered in evidence by the Appellant/Applicant during the trial at the Lower Court. However, he further stated, the Right of Occupancy was eventually issued to the Applicant after the Judgment complained about was delivered and the Notice of Appeal lodged and entered in this Honourable Court. The Right of Occupancy had been annexed to this Motion as Exhibits KC01.

The Learned Counsel also recalls that while this instant Appeal was subsisting one Atim Mua & 4 Ors. in Suit No. MHC/273/2014, dragged one Andre Ter Sugh & 3 Ors. Before the Lower Court and in some of the Court processes in that case pleaded and averred on Oath that the entire piece of Land (including the disputed piece of land in this instant Appeal), does not belong to Mr. Andre Ter Sugh but was allegedly sold to the 2nd–5th Co-Plaintiffs therein (including one Mrs. Mariam Ula (a.k.a. Mrs. Miriam Akya) by him (the erstwhile owner), he maintains that Exhibits KC02-KC05 are annexures evidencing these new facts while the piece of land allegedly sold to the said Mrs. Mariam Ula (a.k.a. Mrs. Miriam Akya) immediately abuts that involved in the instant Appeal, which said piece of land the Respondent herein at the Lower Court pleaded and averred on Oath that he sold to Mrs. Mariam Ula (a.k.a. Mrs. Miriam Akya).

Pages 28, 33 and 34 of the Record of Appeal particularly paragraphs 2, 4, 5, 6, 7, 8, 9 and 19 of the Statement of Defence and Counter-Claim and Paragraphs 3, 5, 6, 7, 8, 9, 10, 11, 12 and 20 of the Respondent’s Statement on Oath dated 24th November, 2008 as well as pages 36, 37 and 38 of the Records of the Lower Court were referred to, in support of the above Statement of facts.

It is the Applicant’s further case that the said Mrs. Miriam Akya (a.k.a. Mrs. Miriam Ula), has only one piece of land abutting that of the Applicant situate behind Commissioner’s Quarters, Makurdi and its environs.

Finally, the Learned Counsel asserts that owing to the importance of these new pieces of evidence and their non-existence at the time of the proceedings leading to this instant Appeal, there is a compelling need to make this Application to enable this Honourable Court determine the Appeal on its merits, more so as these new facts would have had a positive bearing on the Learned Trial Judge if the pieces of evidence were in existence and placed before him while the matter was pending at the Lower Court.

Turning to the substantive arguments in the Written Address in support of the Motion, the Learned Counsel to the Appellant/Applicant distilled a single issue for determination couched thus:
“ISSUES FOR DETERMINATION:
The Applicant hereby proposes the following issue for the determination of the Application to wit:
WHETHER OR NOT THIS APPLICATION IS JUSTIFIED IN THE FACE OF THESE NEW PIECES OF EVIDENCE WHICH WERE NOT AVAILABLE AT THE TIME OF THE DETERMINATION OF THE SUIT NO: MHC/83/2008 AT THE LOWER COURT?”

Arguing the Sole Issue, the Learned Counsel to the Applicant submitted that the Application is worthy of consideration in view of the emergence of these new facts/evidence which at the time of the trial in the Lower Court could not have been available for the determination of the case between the Parties now on Appeal. Pointing out that the Application is brought pursuant to Section 15 of the Court of Appeal Act (2010 Amendments) and Order 4 Rules 1-5 of the Court of Appeal Rules, 2011 and as stated earlier supported by an Affidavit of 20 (twenty) Paragraphs deposed to by the Applicant in person and to which Exhibits KC01-Kc05 are annexed. He placed reliance on all the depositions in the Supporting Affidavit particularly Paragraphs 2-20 as well as the annexed Exhibits.

Quoting from the decision in Odionye Vs. Ayansi & Bruntion Ltd & Ors (1963) 2 All NLR 44 at 48 and placing further reliance on the authorities of Ladd Vs. Marshall (1953) 3 All ER 745 at 748; Odiase Vs. Omele (1985) 3 NWLR (PT.11) 82; Okpanum Vs. S.E.G. (Nig.) Ltd. (1998) 7 NWLR (Pt. 559) 542 at 549 and Ebba Vs. Ogodo (2000) FWLR (Pt.27) 2094 at 2116 paras. B-C, on the conditions to be fulfilled before an Appellant can be allowed by an Appellate Court to adduce additional fresh or further evidence, the Learned Counsel submitted that in the instant appeal, the Right of Occupancy and the Court Processes in Suit No: MHC/273/2014 were not capable of being obtained by the Appellant for use at the Lower Court while the matter was pending thereat.

He contended that if these materials were placed before the trial Court, they would have greatly influenced it in the resultant verdict pertaining to the Claim for Declaration of Title to the entire piece of land claimed in Paragraphs 3, 4, 5, 6, 7, 8, 9, 10 and 12 of the Appellant’s Statement of Claim (inclusive of the piece counter-claimed by the Respondent in the lower Court), more so, when the learned trial Judge had held that the larger part of the land claimed was proved by the Appellant to whom it was awarded.

The learned Counsel to the Applicant maintained that in the same vein, were the facts contained in Exhibits KC02-KC05 available at the time Suit No. MHC/83/2008 was pending in the lower Court, the latter would have been able to appreciate the Appellant’s contention at that Court that the Respondent herein as Defendant/Counter-Claimant, was economical with the truth concerning the true ownership of the land awarded to him (Respondent) in his counter-claim. According to the learned Counsel, the learned trial Judge would have been able to find as a fact that the Respondent was never the owner of the land erroneously awarded to the Respondent in the judgment complained of.

He again contended that the averments in Paragraphs 1, 5, 7, 9, 10 and 16 of the Statement of Claim in Suit No. MHC/273/2014, Paragraphs 1, 3, 7, 8 and 10 of the Sworn Deposition of Atim Mua dated 22/8/2014, Paragraphs 3, 4, 5 and 8 of the Sworn Deposition of Mr. Unum Atongo dated 22/8/2014 would have been in substantial disagreement with the Defence and counter-claim of the Defendant/Respondent in Suit No. MHC/83/2008, particularly his Paragraphs 2, 4, 5, 6, 7, 8, 9, 10 and 19 of the Statement of Defence and Paragraphs 3, 5, 6, 7, 8, 9, 10, 11, 12 and 20 of the Respondent’s Sworn Statement on Oath dated 20/11/2008 as can be found at Pages 28, 33, 34 as well as 36-38 of the records. In his view, the bottom line of the aforesaid explanations, is that the Respondent was not one of those having land in the environs where the disputed pieces of land are situated and so could not have been the one who sold to Mrs. Miriam Ula or Mrs. Miriam Akya, the piece of land the latter is presently occupying with the balance piece of land being that he (the Respondent) counter-claimed and was awarded to him by the learned trial Judge culminating in the instant appeal.

Reacting to the Counter-Affidavit filed by the Respondent in this Application, he posited that same does not challenge or contradict the Applicant’s supporting Affidavit on the material averments/Depositions in the latter Affidavit. In respect of the salient Paragraphs of the Counter-Affidavit, the learned Counsel to the Applicant contended that there are clear indications that if this Application is granted, the judgment complained of in the instant appeal in respect of the awards granted the Respondent at page 140 of the records, would appear perverse. Accordingly, he submitted in the light of the foregoing, that the grant of the Application would enable this Honourable Court to satisfactorily determine the Appeal on the merits and he thus urged us to grant the Application.

In concluding his arguments, he maintained that the new evidence (Exhibit KC01 – the Right of Occupancy No. BNE.3942 dated 23rd June, 2010) with Beacons Nos. MKD9717, MKA2836; MKA2839 and MKA 7716; tally with the piece of land pleaded in Paragraphs 3, 4, 5, 6 and 12 of the Appellant’s Statement of Claim as well as Paragraphs 2-7 of the Appellant’s Sworn Statement On Oath dated 30th October, 2008 as can be found at Pages 4-6 and 8-10 of the Record of Appeal which show the entire disputed land in Suit No. MHC/83/2008, part of which was awarded to the Respondent by the lower Court as per his (Respondent’s) counter-claim.

Finally, the learned Counsel to the Applicant maintained that the other new pieces of evidence in Exhibits KC02-KC05, contain materials showing that the Respondent lied to the Lower Court to secure the tiny piece of land which is the subject of this instant appeal and that were this new evidence availed the Lower Court, the eventual verdict would have been against the Respondent in respect of his counter-claim over the same. On the whole, the learned Counsel to the Appellant/Applicant reiterated his prayer that the Application be granted more so as Mr. Atim Mua has agreed to testify on this new evidence per Paragraph 8 of the Respondent’s Counter-Affidavit.

RESOLUTION OF THE SOLE ISSUE DISTILLED FOR DETERMINATION BY THE LEARNED COUNSEL TO THE APPELLANT/APPLICANT:
“WHETHER OR NOT THIS APPLICATION IS JUSTIFIED IN THE FACE OF THESE NEW PIECES OF EVIDENCE WHICH WERE NOT AVAILABLE AT THE TIME OF THE DETERMINATION OF THE SUIT NO: MHC/83/2008 AT THE LOWER COURT?”

In order to be able to answer this above question as posed by the Learned Counsel to the Appellant/Applicant, it is only proper to first reproduce the Act and Rules of this Court upon which the learned Counsel predicated this Application. First and foremost Section 15 of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria, 2004 which sets out the general powers of this Court where and when an appeal from the High Court as in this case is lodged before us, provides as follows:
“15. General Powers of Court of Appeal
The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part, or may re-list it to the Court below for purposes of such re-hearing, or may give other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of the Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
As for Order 4 Rules 1-4 which the Appellant/Applicant also relies upon in his Application, it stipulates as follows:
“1. In relation to an appeal, the Court shall have all the powers and duties as to amendment and otherwise of the Court below, including without prejudice to the generality of the foregoing words, in civil matters the powers of the High Court in civil matters to refer any question or issue of fact arising on the appeal for the trial before or inquiry and report by an official or special referee. In relation to a reference made to an official or special referee, anything, which can be required or authorized to be done by, to or before the Court below, shall be done by, to or before The Court.
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.
3. The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other orders as the case may require including any order as to costs.
4. The powers of the Court under the foregoing provisions of this rule may be exercised notwithstanding that 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 of 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.”
From the above provisions of the Court of Appeal Act and the rules above reproduced, there is no doubt that this Court has been imbued with enormous powers to exercise in the course of the hearing and determination of Appeals before her and these include the stepping into the shoes of the trial Court which had the opportunity of hearing and watching the demeanour of the Parties and their witnesses while adducing oral evidence. Indeed, by the provisions of Section 15 of the Court of Appeal Act, the general powers conferred on this Court includes the assumption of full jurisdiction over the whole proceedings of the lower Court as if the proceedings have been instituted in this Court as a Court of first instance such that the Court of Appeal has the discretion to re-hear the case or give such other direction(s) as to the manner in which the trial Court may deal with the case in accordance with the powers of that Court.

These enormous powers notwithstanding, Rule 2 of Order 4 of The Court of Appeal Rules 2011 which has been replicated in the 2016 and the recent/current 2021 Court of Appeal Rules, has imposed conditions under which further evidence can be received in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits. According to the Rule, “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.” From the above excerpt of part of Rule 2 of the Court of Appeal Rules, it is clear that the power of this Court to admit further evidence or to allow a party the leave to adduce further evidence in the course of appeal in a final judgment on a Suit heard on the merits, particularly where the evidence relates to matters that arose in the course of the pending proceedings of the lower Court, cannot be exercised except under special circumstances. Judicial text Writers/Legal Pundits as well decisions of the Apex Court and indeed this Court are all ad idem that five conditions precedent must be fulfilled before leave can be granted an applicant as in this present appeal to adduce further or additional evidence.
For instance, in the locus classic of Onwubuariri Vs. Igboasoiyi (2011) All FWLR (Pt. 569) 1059 SC also reported as Batholomew Onwubuariri & Ors Vs. Isaac Igboasoiyi & Ors. (2011) LPEL R-754 (SC) per Onnoghen, JSC (as he then was) at pages 19-20 paras. C-A; after holding at page 19 paras. A-C of the Report that the law is settled that the power conferred on the Court of Appeal to admit evidence on appeal is generally exercised reluctantly, sparingly and with great circumspection since the law is reluctant in allowing a party to re-open an issue after it had been duly determined/decided by a Court of competent jurisdiction, on the excuse that new facts, which could have been discovered and used at the trial are not found, reasoned and enumerated the five conditions precedent/circumstances under which the Court of Appeal or an Appellate Court can exercise its powers to receive fresh/additional evidence thus:
“The special circumstances/grounds under which the Court of Appeal or Appellate Court can exercise its powers to receive further/additional/fresh evidence on appeal include the following:
(a) 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;
(b). If the fresh evidence is admitted, it will have an impact but not necessarily crucial effect on the whole case;
(c). If the evidence sought to be adduced is such that it is apparently credible in the sense that, it is capable of being believed even if it may not be incontrovertible;
(d). 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.
(e). The evidence must be material and weighty even if not conclusive, see Owata Vs. Anyigor (1993) 2 NWLR (Pt.276) 380.”
See also Akad Industries Ltd. Vs. Olubode (2001) FWLR (Pt.57) 1004 where this Court held that the first and most crucial condition precedent for the receipt of the fresh evidence on appeal as stated above is that the Applicant must prove that the fresh evidence sought to be adduced could not have been procured with reasonable and due diligence for use at the trial Court, the rationale being that once a case had been determined on the merit, it is inappropriate to reopen and retry the case at the appellate level as trial of cases is within the purview of the trial Court. Accordingly, parties ought to make the whole of their cases at the trial Court by calling all their witnesses and tender relevant documents rather than be allowed to improve on their cases in the Appellate Court. For the above reasons, the parties should not be allowed to adduce further evidence unless such evidence could not have been obtained with reasonable diligence for use at the trial.
In Gambari Vs. Ibrahim (2011) All FWLR (Pt.595) 261 at 279-280 (see also (2010) LPELR-10900 (CA) Pages 24-26, Paras D-B, the erudite C.C. Nweze, JCA (now JSC) delivering the lead judgment of the Ilorin Division of this Court with whom Dalhatu Adamu, PJCA (now of blessed memory) and my humble self concurred, while refusing a similar Application as is now before us where the Applicant’s reason for not tendering the fresh/additional evidence she sought to tender on appeal was that it was not shown to her and that the PW2 did not see the document, reasoned at Page 280 that:
“In effect, the applicant did not prove the first constitutive ground (evidence which could not have been obtained with reasonable diligence for the use at the trial) to warrant the exercise of the Court’s discretion in favour of her adducing fresh evidence, UBA Ltd Vs. BTL Industries Ltd. (supra). It would appear that the applicant lost sight of the fact that the power to receive further evidence (the sort of evidence now under consideration) on appeal is only exercisable by this Court on special grounds: grounds which have been enumerated above. Put in very simple terms, it comes to this: this Court sparingly exercises its discretion to grant leave to adduce further evidence on appeal and would only do so if, and only if, the applicant furnishes sufficient materials which would squarely fit into the above special grounds otherwise regarded as special circumstances, Chime Vs. Ezea (2009) 34 WRN 39, 73. With regard to the first ground, the applicant must show that the evidence could not have been obtained with reasonable diligence for use at the trial. Undoubtedly, what constitutes “reasonable diligence” is a matter of fact. Hence, the affidavit must depose to and donate facts which substantiate that fact of the exercise of reasonable diligence in the search for the exhibit. It cannot be otherwise for the word “diligence” means inter alia “conscientiousness in paying proper attention to a task; giving the degree of care required in a given situation. Its synonyms include: painstaking, scrupulous, meticulous, foresighted, circumspect etc. See B. Kirk Patrick, Roger’s THESAURUS OF English Words and Phrases (New Edition) (London; Penguin Books, 1987) 457.”
It is also pertinent to note that in my contribution to the above judgment, I had posited, following the decisions in Onibudo Vs. Akibu (1982) 7 S.C. 60, Akanbi Vs. Alao (1989) 3 NWLR 118 at 130, Attorney-General of the Federation Vs. Alkali (1992) All NLR (Pt.2) 458, Okpamum Vs. S.G.E. Nigeria Ltd. (1998) 7 NWLR (Pt.559) 537 S.C. and the dictum of the legendary Oputa, JSC in Obasi Vs. Onwuka & Ors. (1987) 2 NSCC 981 at 984-989 on the rationale behind the reluctance of Appellate Courts to grant leave to Appellants to adduce further or fresh evidence, that it has to be noted that in the first place where such evidence sought to be adduced, arose ex-improviso, the Court can always exercise its undoubted discretion in favour of admitting it. However, I further reasoned, and so repeat herein that where the evidence was available at the trial and before judgment was delivered after hearing all parties in the case, but the Applicant failed or neglected to adduce same and rather seeks in the Appellate Court to so do (as in the Gambari Vs. Ibrahim’s case above cited), then the onus squarely lies on him to depose to an affidavit which must condescend on salient, cogent and compelling facts warranting the Appellate Court to admit further evidence.
I also held that the law was long settled that all the (five) conditions – precedent for the grant of such leave to adduce further evidence, must exist concurrently before an Appellate Court can exercise its discretion to grant an Application for fresh evidence to be adduced.

This position of the law was re-echoed by the Supreme Court in Aroh Vs. P.D.P. (2014) All FWLR (Pt.729) 1028 at 1038 while adopting the decision in Owata Vs. Anyigor (1993) 2 NWLR (Pt.276) 380 at 393 (SC) that even though the Court of Appeal possesses the discretion by virtue of the Court of Appeal Rules to admit additional evidence in an appeal before it, the five conditions enumerated earlier, must be fulfilled by an Applicant seeking to adduce fresh evidence.
Again, this Court (Calabar Division) per J.T. Tur J.C.A. (of blessed memory), had in Duke Vs. Ambo (2014) All FWLR (Pt.761) 1419 (CA) at 1434-1437 while relying on Abana Vs. Obi (2005) All FWLR (Pt.269) 1889 (CA) and Dawodu Vs. Danmole (1962) 2 SCNLR 215, (1962) 2 All NLR 695 expounded additional principles governing the admissibility of additional/fresh evidence on Appeal thus:
1. That the foundation for the admissibility of evidence both in the Court of trial and further evidence on appeal is the pleadings of the parties as both the trial Court and appellate Court are bound by the pleadings of the parties.
2. That where the evidence adduced by both sides at the trial was scanty, or even where it was not pleaded in the Statement of Claim but was raised in the Notice of Appeal as the main issue in dispute between the parties, leave to adduce further evidence would be granted; and
3. That where the Applicant seeking to adduce further evidence fails to show that such evidence will have any important effect on the whole case, in that it can materially affect the determination of the case as reflected in the judgment appealed against, or where it is not related to any part of the case, the Application should be refused.
See LAW OF EVIDENCE IN NIGERIA (Based on the Nigerian Evidence Act, 2011, Third Edition by SEBASTINE TAR. HON, SAN) at pages 1344-1351; Williams & Ors. Vs. A/S. I. N. L. (2017) All FWLR (Pt.879), (2017) 6 NWLR (Pt.1560) (S.C.); Iweka Vs. S.C.O.A. (Nig.) Ltd. (2000) FWLR (Pt.15) 2524; Turnbull Vs. Doral (1902) AC429, A.I.C. Ltd. Vs. N.N.P.C. (2005) All FWLR (Pt.270) 1945 (S.C.); Musa Vs. Kadiri (2006) All FWLR (Pt.295) CA; all cited by the learned Author still on the principles or conditions precedent to be fulfilled before an Application of this nature can be granted.

Guided by the above authorities, it is apt at this juncture to have a careful assessment of the Affidavit of the Appellant, his pleadings as well as the documents sought to be tendered as fresh or further evidence in order to determine whether his Application is worth the exercise of this Court’s discretion in his favour or whether he has fulfilled all the conditions necessary to allow him adduce further evidence on appeal.

For the avoidance of doubt, the Appellant/Applicant had deposed to the following facts in his supporting Affidavit:
“1. That I am the Appellant/Applicant, herein after called the Applicant in this matter and by virtue of which I am conversant with facts of these solemn declarations.
2. That I know as a fact that through Suit No. MHC/84/2008, I commenced an action before the Benue State High Court, Makurdi against the Respondent in this instant Appeal claiming among other reliefs, an order of declaration of title of the entire piece of land including the disputed one
3. That the trial Court aforesaid on the 12/4/2011 gave judgment to me in part and awarded to the Respondent a piece of land in a triangular form per the latter’s counter-claim dated 21st Nov., 2008.

4. That dissatisfied, I appealed against the trial Court’s decision aforesaid per my Notice of Appeal dated 7th July, 2011.

5. That while the proceedings in this instant Appeal was on going, I received from the Benue State Government, a Right of Occupancy No. BNE.3942 dated 23rd June, 2010 ( a copy of which is herein exhibited as Exhibit KC01).
6. That at the time of the receipt of the Right of Occupancy (Exhibit KC01), the judgment of the trial Court in Suit No. MHC/83/2008 had already been delivered by the learned Judge of the trial Court.
7. That as at the time of my commencing Suit No. MHC/83/2008, against the Respondent at the trial Court, I had in place an application for a Right of Occupancy over the piece of land awarded to me in part by the trial Court and that awarded to the Respondent per his counter-claim aforesaid by the trial Court at the Benue State Ministry of Land & Survey, Makurdi.
8. That the depositions in Paragraph 7 aforesaid were contained in Paragraphs 3, 4, 5, 6 and 7 of my Statement of Claims contained at pages 1-7 of the printed records of this instant appeal.
9. That Exhibit KC01 which was being processed prior to Suit No. MHC/83/2008 was eventually issued to me after the judgment of the lower trial Court hereby appealed against.
10. That while the processes of the instant appeal were going on, one Atim Mua & 4 Ors Per Suit No. MHC/273/2014 (herein exhibited as Exhibit KC02) instituted an action against one Mr. Andre Ter Sugh & 3 Ors. That the entire piece of land inclusive of the disputed piece of land does not belong to one Mr. Andre Ter Sugh but was sold to the 2nd – 5th Plaintiffs in that suit by one Atim Mua, including Mrs. Miriam Ula (aka Mrs. Miriam Akya). Herein exhibited as Exhibits KC02-KC05 are the Writ of Summons in Suit No. MHC/273/2014, Benue State Urban Development Board Letter dated 9th July, 2014 Ref. No. UDB/CASE No. 53029/1/33; Benue State Government Certificate Of Occupancy No. BN8606 dated 12th July, 2004 and Motion No. MHC/1403/M/2014 dated 21st August, 2014 (filed 22nd Aug., 2014).
11. That I know as a fact that Exhibits KC02-KC05 pertain to and include the land immediately abutting the disputed land in this appeal.
12. That in Suit No. MHC/273/2014 one Atim Mua, sold all the pieces of land in that area to the Co-Plaintiffs in Exhibits KC02 (inclusive of one Miriam Akya, aka Mrs. Miriam Ula).
13. That in the proceedings of this instant appeal, the Respondent averred and deposed to the fact that the said piece of land where Mrs. Miriam Akya (aka Mrs. Miriam Ula) built her house was sold to the latter by the Respondent.
14. That I know as a fact that the said Atim Mus and the Respondent are not related by blood or by marriage.
15. That Exhibit KC01 was received subsequent to the Judgment appeal against as well as that Exhibits KC01-KC05 were unknown to me as at the time I appealed against the lower trial Court’s decision.
16. That I know as a fact that the Respondent and his Witnesses testified in the case at the trial Court leading to this appeal that it was the Respondent who sold the land abutting the piece of disputed land to Mrs. Miriam Akya (aka Miriam Ula).
17. That I know as a fact that Mrs. Miriam Akya has no other piece of land except the one having immediate boundary with the triangular piece of land now in dispute.
18. That due to the depositions in Paragraphs 10-17 of this affidavit, it was not possible for me to utilize these pieces of evidence at the trials of the case at the rial Court.
19. That my Counsel, K.C. Oghuvwum Esq. informed me in Chambers – K.C. Oghuvwum & Co; 2 Railway By-Pass, High Level, Makurdi on 1st of December, 2014 at about, 4 pm and I verily believe him thus:-
(a) That these new evidences (Exhibits KC01-KC05) would have an impact or influence on the decision of the trial lower Court as these documents were credible, relevant and admissible in the case and the Respondent will not be prejudiced by the grant of the Application.”

In opposition to the grant of the Application, the Respondent as earlier stated deposed to a Counter-Affidavit of 13 (Thirteen Paragraphs) without any Exhibit. Paragraphs 3-12 aver as follows:
“3. That Paragraphs 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20 of the said affidavit are false and untenable.
4. That even if the Appellant/Applicant had any pending application for Certificate of Occupancy over any piece of land, the said application does not cover the land awarded to me by the trial Court.
5. That the land in issue, if any, in Exhibit KC02 is not the same piece of land awarded to me by the trial Court.
6. That I am not a party to Exhibit KC02 and there is no judicial decision in the matter affecting me or the piece of land awarded to me by the trial Court.
7. That the Applicant and I are before the Chief Magistrate’s Court 4, Makurdi in a case of assault he brought against me and one of my Witnesses is Atim Mua.
8. That on the 24/6/2015, Atim Mua informed me at the Chief Magistrate’s Court at about 8:30am and I believe him as follows:
a. That there is no claim before the High Court Makurdi over the piece of land awarded to me by the trial Court.
b. That he is not aware of any Certificate of Occupancy granted over the piece of land to the Appellant/Applicant or any other person.
c. That the land he claims is different from the one awarded to me by the trial Court.
d. That he is also to testify in person to the foregoing facts.
9. That there has never been any time I was notified of any site inspection to warrant the issuance of a Certificate of Occupancy to the Applicant over the piece of land in issue.
10. That I know one Miriam Mlumun Ula and the purported “Miriam Akya” who is not the same as Miriam Mlumun Ula is not known to me.
11. That the Application is only an attempt to frustrate the hearing of this appeal.
12. That it is in the interest of Justice to refuse the Application.”

Reacting to the above depositions of the Respondent, the Appellant in his Further And Better Affidavit deposed to the following facts in Paragraphs 2-14 thereof:
“2. That I know as a fact that I filed an Application on the 9th of December, 2014 seeking leave of this Honourable Court to adduce additional evidence in the matter.
3. That when the aforesaid Application was served on the Respondent, the latter filed Counter-Affidavit on the 6th October, 2015, which said Counter-Affidavit was only handed over to my Counsel, K.C. Oghavwun, Esq. on the 8th of March, 2017.
4. That upon reading the depositions in the Counter-Affidavit aforesaid, I have decided to react to same as hereunder stated.
5. That I know as a fact that the dispositions in Paragraphs 4, 5, 7, 8, 10 and 11 of the Counter-Affidavit are false.
6. That I know as a fact that the land in dispute (i.e. the land which is the subject of the instant appeal) is part of and parcel of the land covered by my application for title at the Benue State Ministry of Lands And Survey, Makurdi and upon which the Right of Occupancy No. BNE.3942 dated 23rd June, 2010 was granted.
7. That the existence and pendency of my application for Title No. BNE.3942 was pleaded by me in the course of the trial of the substantive case at the lower trial Court.
8. That I know as a fact that the Respondent is not related to the said Atim Mua either by blood or by marriage.
9. That I know as a fact that the Respondent at the lower Court filed a Statement of Defence dated 21st Nov., 2008 as well as a sworn Statement on 24th Nov., 2008 in the course of the proceedings in the substantive case (both Court processes are herein exhibited and marked Exhibits KC06 and KC07 respectively).
10. That I know as a fact that the said Miriam Mlumun Ula stated in Exhibits KC06 and KC07 is the same as the person known and called Miriam Akya in the processes in Suit No. MHC/273/2014.
11. That I know as a fact that the said Miriam Mlumun Ula (aka Miriam Akya) has only one (1) landed property situate, lying and being at behind Commissioners’ Quarters, Makurdi and same is abutting the disputed land (the subject of the instant appeal).
12. That I know as a fact that the said Miriam Mlumun Ula (aka Miriam Akya) is known to the Respondent.
13. That I know as a fact that the subject matter of instant appeal (i.e. the disputed land) is part and parcel of all that piece of land covered by Title No. BNE.3942 dated 23rd June, 2010.
14. That I know as a fact that my application for leave to adduce further evidence is not a ploy to delay or frustrate the haring of the instant appeal.

Having carefully set out the depositions of the Applicant in his Affidavit and Further and Better Affidavit in support of his Application on the first condition precedent which is that the evidence sought to be adduced is such that could not have been obtained with reasonable care, and diligence, there is no doubt that as deposed to in Paragraphs 2-9 of the said Affidavit in Support, the Appellant/Applicant (then Plaintiff) took out a Writ of Summons on the 30th of August, 2008 against the Respondent (then Defendant) whereof in both the Application for Writ of Summons and Statement of Claim, he (Plaintiff (now Appellant/Applicant), sought for the following reliefs against the Defendant(now Respondent):
“(a). An order of declaration of title of the entire land including the piece the Defendant is laying adverse claim, to the Plaintiff.
(b). A perpetual injunction restraining the Defendant, his servants, agents, privies, successors-in-title and assigns or whomsoever from ever unlawfully and irregularly tampering with the Plaintiff’s land aforesaid in the manner inconsistent with the laws of the land.
(c). A total of N1,500,000 only being damages for the wrongful acts aforesaid.”

Upon being served with the Writ of Summons and Statement of Claim of the Plaintiff/Appellant/Applicant and the accompanying lists of Witnesses and Documents sought to be called and tendered by the Plaintiff (now Appellant/Applicant); the Defendant (now Respondent) gave Notice of Counter-Claim dated 21st of November, 2008 but filed along with his Statement of Defence and Counter-Claim on the 24th of November, 2008 whereof he claimed against the Plaintiff (now Appellant/Applicant) as well as GLOBACOM NIGERIA PLC jointly and severally as follows:
“(a). An order of declaration of title over the said piece of land measuring 18.6m2 and 24.4m lying and situate behind Commissioners’ Quarters Makurdi.
(b). An order of perpetual injunction restraining the Defendants, their agents, privies, successors-in-title and assigns or whomsoever claims from them from further acts of trespass on the said land.
(c). N630,000 special damages as follows:
(i) Ten stands of mango trees at N30,000 each = N300,000.
(ii) Five stands of oranges at N50,000 each = N250,000.
(iii) Two stands of cashew trees at N25,000 each = 50,000.
(iv) One stand of palm tree at 10,000. = 10,000.
TOTAL N630,000 (sic) N610,000.
(d). General damages of N2 Million.”

The Plaintiff upon receipt of the Statement of Defence and Counter-Claim of the Defendant/Counter-Claimant (now Respondent) further filed the Plaintiff’s Defence to Counter-Claim and upon issues being joined, the case proceeded to trial during which the Plaintiff testified in person as PW1, tendered Exhibits 1 to 6 which were agreement between Mr. Tyoaule Achinga and Mr. Joseph Asemave Akume (the Plaintiff); An agreement between Mrs. Rose Agba and the said Plaintiff (now Appellant/Applicant); Site Plan accompanying Application for Certificate of Occupancy dated 12/7/04, a letter addressed to Globacom dated 8/9/2008, a letter addressed to the Defendant’s Counsel dated 11/9/2008 and a letter addressed to the Plaintiff’s Counsel dated 12/9/2008.

The Plaintiff further called Mrs. Nguemo Akume as PW2, Joseph Tyoaule Achinga as PW3 and PW4 (Chief Terver Achaku) through whom the learned Counsel to Plaintiff tendered another document dated 16/10/2008 titled “Collection of Royalty” which was a letter the witness directed to be written by Peter Adinya and same was admitted and marked Exhibit ‘7’. At the end of the evidence of the PW4, the Defendant/Counter-Claimant (now Respondent) also testified as DW1 and called Joseph Udele as DW2; Chief Titus Ikyomke as DW3 through whom Minutes of Meetings of 30/10/2008 and 4/11/2008 were tendered and respectively admitted and marked Exhibits ‘8’ and ‘9’ . He finally called Atime Ikyenge as DW4 on the 23rd day of June, 2010 and following the Application by the Learned Counsel to the Plaintiff which the Court granted, there was a visit to the Locus Inquo at Off Daniel Agogo Street, Makurdi, on the 25th October, 2010 after which the case was adjourned to the 7th day of December, 2010 for adoption of Written Addresses.

On that 7th of December, 2010, the case was further adjourned to 19/1/2011 when the addresses were subsequently adopted and Judgment reserved for 22nd March, 2011 but it was not until the 12th day of April, 2011, that Learned Honourable T.A. Igoche, J; delivered the Judgment against which the Appellant had appealed on 5 (Five) Grounds as can be found at Pages 142 to 147 of the Record of Appeal.

It would be recalled that as averred in Paragraphs 6 and 7 of the Appellant/Applicant’s affidavit, having appealed against the judgment of the Court below by his Notice of Appeal filed on the 7th day of July, 2011 and while the proceedings of the appeal were pending in this Court, he claimed to have received from the Benue State Government, a Right of Occupancy No. BNE.3942 dated 23rd June, 2010 (a copy of which he had annexed to the affidavit in Support and marked Exhibit KC01) and which he seeks to be admitted in this Court as fresh evidence because as at the time of receipt of the said exhibit, the judgment in the suit now on appeal had already been delivered by the learned trial Judge.

Most importantly, the Appellant had also deposed to the fact that as at the time of commencing the Suit No. MHC/83/2008 in the lower Court against the Respondent, he had in place an Application for a Right of Occupancy over the piece of land awarded to him as well as the triangular portion which the Court also awarded to the Respondent as Counter-Claimed.

Ordinarily, Exhibit KCO1 ought to be admitted inspite of the averments in the Respondent’s Counter-Affidavit, since the Appellant/Applicant had at the earliest opportunity in Paragraph 7 of his Statement of Claim pleaded and averred in Paragraph 6 of his Statement on Oath at Pages 5 and 16 of the Records that:
“7. The Plaintiff further avers that the Plaintiff in 1998 went to the Bureau of Lands and Survey for the Survey of the said Land as well as application for the State Certificate of Occupancy and was issued with the Site Plan which shows the beacons as follows:- MKD2836; MKD2839; MKD9716 and MKD9717 respectively. The said Plan is hereby pleaded.”

It is pertinent to note also that the Appellant/Applicant in Page 16 of the Records had mentioned the Site Plan accompanying his Application for State Certificate of Occupancy dated 12th, July, 2004. However, on a careful perusal and comparison with his averments in the pleadings, Exhibit KC01 is of doubtful integrity. In the first place, the grant of Right of Occupancy No. BNE.3942 Offer of Terms and Conditions of Grant is undated and whereas the co-ordinates of the land as pleaded in Paragraph 7 of the Appellant’s Statement of Claim as above reproduced are different from those in Exhibit KC01 which are MKD9717, MKA2836, MKA2839 and MKA7716 as can be gleaned from the said Exhibit. Apart from the above disparities, the name of the Governor under whose hand the document was issued is not indicated in the said document and Exhibit KC01 which is a photocopy of a public document is not certified.

Accordingly, the document marked Exhibit KC01 as annexed to the Affidavit in support of the Application cannot be admitted as fresh or additional evidence even though it would have had an impacting and crucial effect on the whole case at the trial.

By virtue of the above findings, the evidence exhibited as (KC01) sought to be tendered is not credible in the sense that it is capable of being believed. In the same vein and as earlier held, the evidence ordinarily would have influenced the judgment of the Lower Court in favour of the Plaintiff/Applicant if it were adduced thereat. Finally, even though the evidence ordinarily would have been material and weighty, irrespective of the fact that it needed not be conclusive, since Exhibit KC01 is at variance with the facts pleaded by the Appellant in his Statement of Claim as reproduced above, and same is not duly certified, the said Exhibit is inadmissible and I hereby refuse to admit same.

As for Exhibit KC02 which are the Writ of Summons, Application for the Issuance of the Writ of Summons, Statement of Claim to which the list of documents listed as Exhibits A and B which are the Sworn Statements On Oath of the 1st Plaintiff (Atim Mua) and Plaintiffs’ Witness (Unom Atungo) are annexed, in Suit No. MHC/723/2014 between Atim Mua & 4 Ors Vs. Andre Ter Sugh & 3 Ors, the basis for its admissibility as sought by the Appellant is that Atim Mua and his co-Plaintiffs in the above mentioned suit instituted the action against Mr. Andre Ter Sugh and Co-Defendants claiming that the entire piece of land inclusive of the disputed piece of land adjudged to the Respondent in the appeal, does not belong to Mr. Andre Ter Sugh but was sold to the 2nd-5th Plaintiffs in that Suit by the 1st Plaintiff (Atim Mua) including Mrs. Miriam Ula (aka Mrs. Miriam Akya).

It is also the deposition of the Appellant/Applicant that in the proceedings of the suit leading to this appeal, the Respondent had averred that the piece of land where Mrs. Miriam Akya (aka Mrs. Miriam Ula) built her house was sold to the said Mrs. Miriam Akya (aka Mrs. Miriam Ula) by him (the Respondent) herein whereas he (Applicant) knows that Atim Mua and the Respondent are not related by blood or by marriage. Appellant/Applicant has also deposed to the facts that as at the time Exhibits KC02-KC05 were made he had already filed his Appeal against the Judgment of the Lower Court in Suit No. MHC/83/2008 and that the said Exhibits were hitherto unknown to him at the time he appealed against the lower trial Court’s decision.

The Appellant has also deposed to the fact that Exhibits KC02-KC05 which are the Writ of Summons in Suit No. MHC/273/2014, Benue State Urban Development Board Letter dated 9th July, 2014 with Reference No. 53029/1/33; Benue State Government Certificate of Occupancy No: BN.8606 dated 12th July, 2004 and Motion No. MHC/1403M/2014 dated August, 2014 (filed 22nd August, 2014), pertain to and include the land immediately abutting the land in dispute in this Appeal. He also deposed further to the facts that the Respondent and his Witnesses testified in the case now on appeal that it was the Respondent herein who sold the land abutting the piece of land now in dispute to Mrs. Miriam Akya (aka Mrs. Miriam Ula), and that he knows that Mrs. Miriam Akya has no other land except the one having immediate boundary with the triangular piece of land now in dispute and that owing to the depositions in Paragraphs 10-17 of his affidavit in support it was not possible for him to utilize these pieces of evidence at the trial of the case now on appeal.

Also as submitted in his Written Address in support of his application by the learned Counsel to the Applicant, the Applicant has deposed in Paragraph 19(a) of the Affidavit in Support, that these pieces of evidence which could not have been procured with due diligence during trial because the suit and the attached processes sought to be admitted as Exhibits KC02-KC05 were filed and came to his knowledge in 2014 after the Judgment now on Appeal, the documents are credible, relevant and admissible in the case at hand and the Respondent will not be prejudiced if the Application is granted.

In respect of the Exhibit KC02, the Plaintiff had pleaded in Paragraph 10 of the Statement of Claim that:
“in exercise of his ownership of the land, he sometime in 2000 excised a portion and sold to 3rd Plaintiff and 2002 to the Co-Plaintiffs and these persons immediately took possession and constructed their various structures, occupied them since 2000 and 2002 have been living herein without molestation from anybody including the Defendants.”

One of the Co-Plaintiffs to whom the 1st Plaintiff in Exhibit KC02 allegedly sold part of land to as pleaded and deposed to in his Statement of Claim and Witness’ Statement on Oath, is Miriam Mrumun Ula whose land shares boundary immediately with the triangular piece of land which the trial Court awarded to Respondent in this Application and which is the subject of the Appeal by the Applicant herein. There is no doubt from the facts surrounding this case that Exhibits KC02, KC03, KC04, KC05 are evidence which arose in 2014 after the Judgment now on Appeal and the Appellant/Applicant could not have procured them with due diligence in the course of proceedings in the lower Court and that if they were available and tendered before the Court below, they could have a positive and crucial impact on the whole case.

Moreover, the said Exhibits KC02-KC05 are Court processes to which credible public documents are annexed and the documents are material and weighty even though they may not be conclusive to establish the Applicant’s case in the lower Court. As for Exhibits KC06 and 7 which are the Statement of Defence and Counter-Claim and Statement on Oath of the Defendant/Counter-Claimant/Respondent in this appeal and Application, these processes are already before the Court and cannot be categorized as fresh evidence. Accordingly, they are rejected.

On the whole, Exhibits KC02-KC05 are hereby admitted as additional evidence for whatever they are worth and the Appellant’s motion is granted in part and shall now form part of the Record of Appeal in the interest of justice.
In conclusion, the Appellant/Applicant’s Application is granted in part.

CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the privilege of reading in draft the ruling delivered by my learned brother HON. JUSTICE IGNATIUS IGWE AGUBE, JCA, I agree entirely with the reasoning and conclusion arrived therein that Exhibit K002- K005 be admitted as evidence. I also grant the motion in part for the interest of justice.

YARGATA BYENCHIT NIMPAR, J.C.A.: My learned brother, IGNATIUS IGWE AGUBE, JCA, obliged me in advance with the lead judgment he has just delivered. I am in total agreement that the application has merit and be granted in part. My learned brother has meticulously and quite efficiently dealt with all the salient issues nominated for determination in the application.

In considering the application, my Lord has exhaustively dealt with the issue of fresh evidence on appeal as held in OBASI & ANOR V. ONWUKA & ORS (1987) LPELR-2152(SC) and AMAECHI V. INEC & ORS (2008) LPELR-446(SC). The Supreme Court in OBASI & ANOR V. ONWUKA & ORS (SUPRA) had this to say:
“…Appellate Courts are very reluctant to admit “fresh evidence”, “new evidence” or “additional evidence” on appeal except in circumstances when the matter arose ex improviso which no human ingenuity could foresee and it is in the interest of Justice that evidence of that fact be led:- R v. Dora Harris (1927) 28 cox 432. In civil cases, the Court will permit fresh evidence in furtherance of justice under the following circumstances:- (i) Where the evidence sought to be adduced is such as could not have been obtained with reasonable care and 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.” Per OPUTA, JSC.

Also, it is long settled that all the conditions precedent for the grant of such leave to adduce further evidence, must exist concurrently before an Appellate Court can exercise its discretion to grant an application for fresh evidence to be adduced. See the case of AROH V. P.D.P. (2014) ALL FWLR (PT.729) 1028 and OWATA V. ANYIGOR (1993) 2 NWLR (PT.276) 380 (SC).

In the instant case, the Appellant relied on several authorities to establish the fact that the Appellant has fulfilled all the conditions stipulated for adducing fresh evidence on appeal and also relied on Section 15 of the Court of Appeal Act (2010 Amendments) and Order 4 Rules 1-5 of the Court of Appeal Rules, 2011 to show that the Court is imbued with enormous powers to admit additional evidence. Consequently, Exhibits KC02-KC05 are hereby admitted as additional evidence and shall now be part of the Record of Appeal.

In view of the above, I am in full agreement with the lead ruling of learned brother IGNATIUS IGWE AGUBE, JCA. I also hold that the application succeeds in part.

Appearances:

K. C. OGHUVWUN ESQ., For Appellant(s)

K. S TORLUAM ESQ., with him L.A. ASSOH, ESQ. For Respondent(s)