BAWA v. JIBBO & ORS
(2020)LCN/14793(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, November 04, 2020
CA/YL/155/2019
RATIO
DISCRETION: PRINCIPLES THE COURT WILL CONSIDER IN THE EXERCISE OF ITS DISCRETION TO GRANT OR REFUSE LEAVE TO ADDUCE ADDITIONAL EVIDENCE
The principles the Court will consider in the exercise of its discretion to grant or refuse leave to adduce or admit additional evidence on appeal include the following:
1. The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial.
2. The evidence sought to be adduced should not be such as if admitted, it would have an important not necessarily crucial effect on the whole case and
3. The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
See Uzodinma V. Izunaso No. 2 (2011) 17 NWLR (Pt. 1275) 30 at 106. At page 55 Rhodes – Vivour JSC had earlier stated as follows:
“The discretion to grant leave to admit new evidence is properly exercised if it is for the furtherance of justice.
Judges must exercise that power sparingly and with caution. This is so because granting the application could amount to allowing the applicant to reopen his case or present a new case. The application should be granted if the applicant is able to satisfy the Court that it was extremely difficult or not possible to obtain the evidence before trial and it is in the interest of justice that the said evidence be led.” PER ABIRIYI, J.C.A.
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
ALHAJI SAIDU BAWA APPELANT(S)
And
- ALHAJI ALIYU ARDO JIBBO 2. SARDAUNA TRADITIONAL COUNCIL 3. DR. SHEHU AUDU BAJU (His Royal Majesty, The Chief Of Mambila) 4. GOVERNOR OF TARABA STATE 5. GOVERNMENT OF TARABA STATE 6. ATTORNEY GENERAL OF TARABA STATE RESPONDENT(S)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This application is brought pursuant to Order 6, Rules 1 and 9, Order 8 Rules 1 and 4 of the Rules of this Court and under the inherent jurisdiction of the Court for an order granting leave to the Appellant/Applicant to adduce additional evidence in Appeal No. CA/YL/155/19 and to amend the original notice of appeal.
The application is brought upon the following grounds:
1. The Applicant dissatisfied with the decision of the Taraba State High Court of Justice delivered on 11th day of March, 2019 by Hon. Justice Y. A. Bashir in Suit No. TRSG/06/2017 filed his Notice of Appeal at the Registry of the trial Court 31st May, 2019.
2. The said notice of appeal was transmitted to this Court along with the Record on 19th September, 2019.
3. The executive Governor of Taraba State created Chiefdom-Mbamnga Chiefdom.
4. The creation of Mbamnga Chiefdom renders the order reinstating the 1st Respondent impossible and academic.
5. Parties were not aware of the creation of the Chiefdom which came as a result of the law creating it, and the Court did not take judicial notice of same.
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- Had the Court taken judicial notice of the creation of the Chiefdom, and had the parties been aware of the said creation, the matter would have been determined differently.
7. The Court as well as the parties did not avert their minds to the said law.
8. The said law renders the reliefs sought by the 1st Respondent/Plaintiff’s as contained in his Writ of Summons and statement of Claim, as well as the Orders of the Trial Court academic.
The application is supported by an affidavit of eighteen (18) paragraphs to which is annexed three exhibits A, B and C.
The 1st Respondent opposed the application. To this end he filed a counter affidavit of six(6) paragraphs.
Moving the motion on notice, learned counsel for the applicant said they were relying on all the paragraphs of the affidavit in support of the motion on notice and urged the Court to grant the application.
Learned counsel for the 1st Respondent said they were relying on the counter affidavit and urged the Court to dismiss the Application.
It was submitted that the evidence sought to be introduced does not capture what happened at the trial. The Court was referred to
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Order 6 Rule 3 of the Rules of this Court. It was submitted that the Court will grant the application if the additional evidence sought to be adduced was pleaded. If all efforts were made to secure the evidence and the efforts yielded no fruit.
It was submitted that there is nothing to show that the gazette existed.
The applicant, it was contended, had the opportunity to bring everything to Court.
The Court was referred to Uzodinma V. Izunaso (2011) 17 NWLR (Pt. 1275) 30 at 54 – 55, 73, 100, 106 and 109.
Learned counsel for the 2nd – 6th Respondents did not oppose the application.
The principles the Court will consider in the exercise of its discretion to grant or refuse leave to adduce or admit additional evidence on appeal include the following:
1. The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial.
2. The evidence sought to be adduced should not be such as if admitted, it would have an important not necessarily crucial effect on the whole case and
3. The evidence must be such as apparently credible in the sense that it is capable
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of being believed and it need not be incontrovertible.
See Uzodinma V. Izunaso No. 2 (2011) 17 NWLR (Pt. 1275) 30 at 106. At page 55 Rhodes – Vivour JSC had earlier stated as follows:
“The discretion to grant leave to admit new evidence is properly exercised if it is for the furtherance of justice.
Judges must exercise that power sparingly and with caution. This is so because granting the application could amount to allowing the applicant to reopen his case or present a new case. The application should be granted if the applicant is able to satisfy the Court that it was extremely difficult or not possible to obtain the evidence before trial and it is in the interest of justice that the said evidence be led.”
Paragraphs 7 – 14 of the affidavit in support of the motion reproduced immediately hereunder are as follows:
7. That the principal relief sought by the 1st Respondent and the order granted by the trial Court is the reinstatement of the 1st Respondent as Wakili Fulani of Mambilla Chiefdom.
8. That I know as a fact while the case was being heard, the Governor of Taraba State passed a law which created
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Mbamnga Chiefdom out of the Mambilla Chiefdom sometime in 2018.
9. That 1st Respondent is now under Mbamnga Chiefdom which is headed by His Royal Highness – Ambassador Emmanuel Njuwa.
10. That with the creation of the said Mbamnga Chiefdom, the 1st Respondent can no longer be appointed the Wakili Fulani of Mambilla Chiefdom and he is no longer eligible to be so appointed.
11. That I know as a fact that his Royal Highness-Ambassador Emmanuel Njuwa has since appointed the younger brother to the 1st Respondent by name Alhaji Aliyu Ardo Jibo, as the new Wakili Fulani of Mbamnga Chiefdom which the 1st Respondent now belongs to.
12. That I know as a fact that the orders made by the trial Court have since become academic by the virtue of the creation of Mbamnga Chiefdom by the Governor of Taraba State sometime in 2018.
13. That I know as a fact that the reinstatement of the 1st Respondent as Wakili Fulani of Mambila Chiefdom is no longer possible.
14. That it is fundamental to bring to the notice of this Honourable Court the facts deposed to above, to enable her properly determine the substantive appeal and to do justice to the
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parties.
Paragraphs 4 iii – viii and 5 of the 1st Respondent’s counter affidavit are reproduced immediately hereunder:
4 iii. Issues were not joined before the trial Court on the creation of Mbamnga Chiefdom.
iv. The evidence sought to be called by the Appellant is not covered by the pleadings before the trial Court.
v. The Appellant seeks to raise a new cause of action in the proposed amended Notice of Appeal.
vi. The amendment sought to be made by the Appellant raises issues that did not arise from the Judgment appealed against.
vii. The Law allegedly passed by the Governor of Taraba State creating Mbamnga Chiefdom has not been produced by the Appellant for the inspection of this Honourable Court.
viii. The Sardauna Traditional Council is 1st Class Grade while the Mbamnga Traditional Council is 2nd Class Grade.
5. That the 1st Respondent will be prejudiced by the grant of this application.
The Appellant/Applicant did not file any further and better affidavit. The depositions in the counter affidavit are therefore deemed admitted. From the affidavit in support of the motion on notice, I am unable to
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make out the additional evidence sought to be adduced on appeal. Therefore it will be a futile exercise to grant leave to adduce some undisclosed additional evidence. As for the Law purportedly enacted in 2018 which has also not been exhibited, I am in agreement with the 1st Respondent that it will introduce a new cause of action in the matter on appeal. It will also raise issues that did not arise at the trial Court. In the circumstances, the 1st Respondent will be prejudiced by the grant of the application.
The application is therefore dismissed.
1st Respondent is awarded N50,000 costs to be paid by the Appellant/Applicant.
CHIDI NWAOMA UWA, J.C.A.: I read in advance in draft the ruling just delivered by my learned brother James Shehu Abiriyi JCA. I am in agreement with my learned brother that there is no material on which the Court can exercise its discretion in favour of the Appellant/Applicant.
The application is dismissed.
I abide by all the other orders in the ruling including the order as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
B. Kizito Esq. For Appellant(s)
I. Danbeki Esq. – for the 1st Respondent.
N. J. Atiku, State Counsel I, Ministry of Justice, Adamawa State for the 2nd – 6th Respondents. For Respondent(s)
