BELLO AKANBI & ORS. v. MAMUDU ALAO & ANOR
In The Supreme Court of Nigeria
On Tuesday, the 9th day of May, 1989
SC.117/1987
JUSTICES
KAYODE ESO Justice of The Supreme Court of Nigeria
MUHAMMADU LAWAL UWAIS Justice of The Supreme Court of Nigeria
ADOLPHUS GODWIN KARIBI-WHYTE Justice of The Supreme Court of Nigeria
CHUKWUDIFU AKUNNE OPUTA Justice of The Supreme Court of Nigeria
EBENEZER BABASANYA CRAIG Justice of The Supreme Court of Nigeria
Between
- BELLO AKANBI
2. BUSARI AKANBI
3. AYINLA TAPO
4. ISHOLA OGELE Appellant(s)
AND
- MAMUDU ALAO
2. ALHAJI YAHAYA JAJU Respondent(s)
RATIO
THE IMPORTANCE OF RULES OF LAW
It must be appreciated that these Rules are the lubricants of the machinery of justice and they contain minute details of the various steps which a litigant is expected to take in the process of getting the Court to hear and adjudicate on the different types of cases which come before it. Furthermore, these rules are subject to amendment from time to time; and they vary from one tier of Court to another. It is obvious therefore that the power to make those rules has to be delegated if the Constitution is not to be rendered unduly cumbersome.
In those circumstances, the legal effect is that once it is shown that the Rules are made under powers conferred by the Constitution, they would have the same force of law as the Constitution itself. In this regard, reference may be made to the definition of “Law” in section 18(1) of the Interpretation Act, 1964. In the same Act, “subsidiary instrument” is defined to mean:-
Any order, rules, regulations, rules of Court, or bye-laws made either before or after the commencement of this Act in exercise of powers conferred by an Act.” (Italics mine). PER CRAIG, J.S.C.
WHETHER OR NOT THE COURT CAN PUNISH LITIGANTS BASED ON THE MISTAKES OF THEIR LEGAL COUNSEL
In Ibodo’s case, the Supreme Court held:
“This Court has stated in several decisions that it is not right to visit the parties with punishment arising out of the mistakes or inadvertence or negligence of Counsel and that in such a case the discretion of the Court, although always required to be exercised judicially (see G.B.A. Akinyede v. The Appraiser (1971) 1 ALL N.L.R. 162 at p. 165; Doherty v. Doherty (1964) 1 ALL N.L.R. 299; Tunji Bowaje v. Moses Adediwura (1976) 6 SC.143 at 147), should be exercised with a leaning towards accommodating the parties’ interests without allowing mere procedural irregularities, brought about by Counsel, to preclude the determination of a case on the merits (Ahmadu v. Salawu (1974) 1 All N.L.R. (Pt.11) 318 at 324.”
It is true that the Courts will not punish a litigant for the mistake or inadvertence of his Counsel in procedural matters. But the question which arises in the present appeal is whether a decision by Counsel not to call evidence is a mistake or mere inadvertence In my view, it is neither. Far from being a mistake, it is in actual fact a distinct exercise of a legal right. A party is free to choose whether to adduce evidence in support of his pleading or not and the Court has no power to interfere with the exercise of that right. See the case of Mobil Oil (Nigeria) Ltd. v. Federal Board of Inland Revenue (1977) 3 S.C. 1 at p.15.
Furthermore, it is provided in Order XLI, Rule S of the Supreme Court (Civil Procedure) Rules 1948 that:
“When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence and to sum up and comment thereon,” PER CRAIG, J.S.C.
CRAIG, J.S.C. (Delivering the Leading Judgment): This is an appeal from a Ruling of the Court of Appeal, Kaduna, given on the 16th September, 1986, and the two main issues which arise for determination are:
(a) Whether the lower Court had jurisdiction under the Nigerian Constitution to grant the respondents leave to adduce fresh evidence and if it did,
(b) Whether the power to grant such leave had been exercised judiciously.
When this appeal came up for hearing on the 6th of February, 1989, the Court, after hearing oral arguments from Counsel, allowed the appeal and indicated that it would give reasons fordoing so today 5th May, 1989. I now give my reasons for agreeing that the appeal should be allowed.
The facts leading to the ruling arose from a judgment of the Ilorin High Court where the plaintiffs (appellants herein) had sued the defendants in Suit No.KWS/52/79 for:
“1. N10,000.00 (Ten Thousand Naira) being special and general damages for trespass committed by the defendant on the plaintiffs land situate at Jaju Gbagede, that is, from Budo Nuhu down to Ogbomosho boundary which has earlier been awarded to the plaintiff by the High Court of Justice, Ilorin in Appeal No.KWS/12A/74 and confirmed by the Supreme Court in Suit No.SC.480/1975.
2. An injunction restraining the defendants, their servants or agents from further trespass on the said land.”
In that court, pleadings were ordered and exchanged and in their Statement of Claim the plaintiffs pleaded that they became entitled to the land in dispute by virtue of the judgment of the Supreme Court in Suit No.SC.480/1975 between the same parties. The relevant portion of those pleadings were as follows:
“1. The first, second and fourth plaintiffs are and were at all material times the customary owners of a parcel of land situate at Jaju Gbagede, that is, from Budo Nuhu down to Ogbomosho boundary on Ogbomoso Road, Ilorin, Kwara State of Nigeria.
4. The first defendant is a son to one Ajani Bale Jaju Gbagede, now deceased.
5. The said Ajani Bale Jaju Gbagede was tenant to the first, second and fourth plaintiffs on the land mentioned in paragraph 1 above.
6. The said Ajani Gbagede used to pay tributes and/or royalties to the plaintiffs in return for his tenancy on the land.
7. Suddenly, the said Ajani Bale Jaju stopped paying tributes and/or royalties to the plaintiffs.
8. As a result of the said Ajani Bale Jaju’s refusal to pay tributes to the plaintiffs, the first plaintiff instituted an action against him in the Upper Area Court, Ilorin, in case No.UACI/CVF.20/73, claiming his (plaintiffs) land from him.
9. The first defendant appeared for and represented the said Bale Jaju while the 2nd plaintiff represented the first plaintiff in the suit.
10. On 15th May, 1974, the Upper Area Court gave judgment in favour of the first plaintiff.
11. As a result of the judgment referred to in paragraph 10, the said Ajani Jaju appealed to the High Court, Ilorin.
12. On 14th February, 1975, the appellate session of the Ilorin High Court, presided over by Justices J.M. Adesiyun, S. Kawu and Alhaji A. Aliyu, in suit No.KWS/12A/74 dismissed the appeal and confirmed the judgment of the Upper Area Court in favour of the plaintiffs.
13. Being also dissatisfied with the decision of the High Court, the said Ajani Bale Jaju appealed to the Supreme Court of Nigeria.
14. On 20th June, 1978, the Supreme Court sitting at Kaduna and presided over by the Chief Justice of Nigeria, Sir D.A.R. Alexander, in suit No.SC.480/ 1975 dismissed the appeal and entered judgment for the first plaintiff.
16. On or about the month of August, 1978, the second defendant who claimed to be acting as the caretaker or tenant of the first defendant wrongfully broke and entered the land referred to in paragraph 1 above, particularly the part of the land that lie between Odo-Omo and Odo-Eleran.
17. In the process of the first defendant’s trespass on the land, he plucked several bags of sheanuts and locust beans, thereby depriving the plaintiffs of their means of livelihood.
18. The first defendant, on the instruction of the second defendant still continues with his illegal occupation, and plucking of economic trees’ fruits on the land despite persistent warning jointly and severally from the plaintiffs.”
In their reply the defendants denied the trespass and pleaded further as follows:
“(20) The defendants say that the part of the land entered into by the 2nd defendant is called Odo Eleran, and that Odo Eleran has never been part of the land adjudicated upon in suits No. UACI/CVP.20/73, KWS/12A/74 and SC.480/1975
(21) The defendants further aver that when the 2nd defendant was farming on ado Eleran land the plaintiffs sued the defendant and in appeal No.KWS/21A/1976 decided by the Ilorin High Court of Appeal on 23rd May, 1977 the High Court decided that the Odo Eleran land did not form part of the land adjudicated upon in Appeal No.KWS/12A/74 and decided by the Supreme Court in SC.480/1975.
(22) A retrial was ordered by the High Court in Appeal No.KWS/21A/1976 and the retrial was conducted by the Upper Area Court, Ilorin, which visited the locus in quo and found as a fact that Odo Eleran entered by the 2nd defendant did not form part of the land adjudicated upon in KWS/12A174 decided by the Supreme Court in S.C.480/1975.
(23) When the retrial was in favour of the present defendant the present plaintiffs appealed to the High Court in appeal No.KWS/10A/78 and in this appeal again, the High Court decided that Odo Eleran is not part of the land adjudicated upon in KWS/12A/74 and S.C.480/1975.
(24) It was the decisions in appeal No.KWS/21A/1976 and judgment of the retrial and in appeal No.KWS/1OA/78 that the 2nd defendant relied upon and entered Odo Eleran in August, 1978.
(25) The defendants admit paragraph 17 of the statement of claim to the extent only that the 2nd defendant plucked some sheanuts and some locust beans but say that the 2nd defendant did so only on Odo Eleran land and deny committing trespass on plaintiffs’ land since Odo Eleran is not part of the land of the plaintiffs adjudicated upon and awarded to the plaintiffs in Suit No.KWS/12A/74 and SC.480/1975.
(26) In view of paragraph 25 above the defendants say that the 2nd defendant entered on his landlord’s land and not the land of the plaintiffs, and the defendants further say that by plucking sheanuts, and locust beans on their own land they did not deprive the plaintiffs of their means of livelihood.”
From the above, it will be seen that the straight issue between the parties was as to whether the land allegedly trespassed upon by the defendants was the same as that in respect of which the Supreme Court had given judgment for the plaintiffs or whether it was a different parcel of land. At the trial, the plaintiffs called evidence and tendered the various judgments pleaded by them; in particular, they tendered the Supreme Court judgment in Suit No.SC.480/1975 and this was admitted as an Exhibit.
At the close of the plaintiffs’ case, Counsel for the defendants announced that he was not calling evidence but that he would rest the defendants’ case on that of the plaintiffs. That announcement was made on the 10th February, 1981 and thereafter, the Court adjourned the suit till the 28th April, 1981, for Counsel’s addresses but it eventually heard the addresses on 5th May, 1981, and delivered its judgment on the 19th February, 1982. The trial Court found for the plaintiffs. The defendants were dissatisfied with that judgment and appealed to the Court of Appeal, Kaduna on a number of grounds of appeal. That appeal is still pending and consequently, those grounds of appeal are not relevant to the present appeal.
However, when the appeal came up for hearing in the lower Court, the defendants’ Counsel applied to that Court for leave to adduce fresh evidence before the Court. The application was made under Order 1, rules 20(3) and (4) of the Court of Appeal Rules, 1981. In the accompanying Affidavit, the defendants stated that they would like to tender the various judgments pleaded in their Statement of Defence; they complained that their lawyer in the trial Court had closed their case without allowing them to testify even though they had expressed a desire to do so. The pertinent portions of their affidavit were as follows:-
“27. That sometimes in January, 1981, Alhaji Yahaya Jaju and myself told Lawyer Adeyinka Adeoye in his office at number 18, Edun Street, Ilorin, that the two of us would like to give evidence in the defence suit No.KWS/52/79, tender judgments of Ilorin High Court in Appeal No.KWS/21A/1976, the retrial by the Upper Area Court, Ilorin, and Appeal No.KWS/10A/78 and call four other witnesses.
28. That on the 9th February, 1981, Alhaji Yahaya Jaju and myself went to Lawyer Adeyinka Adeoye in his office at number 18, Edun Street, Ilorin, for the final preparation of our defence in suit No.KWS/52/79.
29. That on the 9th February, 1981, Lawyer Adeyinka Adeoye in his office at No.18 Edun Street, Ilorin, told Alhaji YahayaJaju, and myself and we verily believed him, that we would give evidence in our defence of Suit No.KWS/52/79 in Court on the 10th February, 1981.
30. That Alhaji Yahaya Jaju and myself were at the Ilorin High Court on the 10th day of February, 1981, when case No. KWS/52/79 was called.
31. That on the 10th February, 1981, the respondents closed their case in suit No.KWS/52/79 before Ilorin High Court.
32. That on the 10th February, 1981, Lawyer Adeyinka Adeoye in handling suit No.KWS/52/79 told the Ilorin High Court that he will not call any witness at all, that he will be resting our case on the evidence produced by the plaintiffs in Suit No.KWS/52/79 and finally asked the Court for a date to address the Court.
33. That on the 10th February, 1981, Alhaji Yahaya Jaju and myself protested to Lawyer Adeyinka Adeoye after the Court that we would like to give evidence in the defence of suit No.KWS/52/79 tender judgments already pleaded in our Statement of Defence and called four witnesses.
34 That on the Ilorin High Court presided over by His Lordship Honourable Mr. Justice LA. Salami gave judgment in suit No.KWS/52/79 in favour of the respondents (awarded Odo-Eleran land to the respondents) and awarded the sum of N500.00 general damages against Alhaji Yahaya Jaju and myself for trespass.
In answer to these averments the respondents filed a counter-affidavit which they denied the above paragraphs and deposed as follows:
“5. That I know as a matter of fact that Mamudu Alao, the first applicant in this case speaks and writes English language very well.
6. That I also know as a matter of fact that Mamudu Alao was present throughout the proceedings of this case at the lower court.
7. That I was in court on 10/2/81when Mr. Adeyinka Adeoye intimated the lower court that the defendants/ applicants would neither call any witness nor tender any documents.
8. That before Mr. Adeyinka Adeoye spoke to the Court, he had a discussion with the first applicant/defendant.
9. That after Mr. Adeyinka Adeoye informed the court as per paragraph 7 supra, neither of the defendants/ applicants raised any objection to what he said on their behalf.
10. That the proceedings at the lower court were always translated into Yoruba language by the clerk of Court.
11. That after Mr. Adeyinka Adeoye’s announcement on behalf of the defendants/applicants on 10/2/81, the case was adjourned to 28/4/81 for Counsel’s addresses.
12. That before 28/4/81, the court on its own motion further adjourned the case to 5/5/81 for addresses.
13. That on 5/5/81, it was the defendants and their counsel alone that were present in court and that their counsel addressed the court at length on their behalf. These facts are now contained on pages 37-42of the record of proceedings of the lower court which is now before this court.
14. That throughout the aforementioned dates and periods, I know as a matter of fact that the defendants/ applicants did not complain about the announcement which Mr. Adeyinka Adeoye made on their behalf on 10/2/81.
15. That I know as a matter of fact that Mr. Adeyinka Adeoye cross-examined all the plaintiffs’ witnesses and he did not suggest to them the existence of the exhibits/judgments now sought to be tendered on appeal.”
At the hearing of the Motion, Counsel urged the Court not to punish the applicants for the negligence of their Counsel and cited the cases of Asaboro v. Aruwaji (1974) 1All N.L.R.140 and Ibodo v. Enarofia (1980) 57 S.C.42, as authority for the request.
The respondents opposed the application on the ground that the applicants had failed to show that the documents which they sought to tender were not available at the hearing in the High Court.
In a reserved Ruling, the Court of Appeal, per Ogundere, J.C.A., (Maidama and Akpata, H.C.A., concurring) granted the Motion and purported to do so in “furtherance of the interest of justice.” Earlier in the said Ruling, the lower Court had reviewed the facts of the Asaboro’s case and gone further to state as follows:
“It would appear from the following case that the Supreme Court after all, in cases of this nature, would no longer visit the sins of commission and omission of others including counsel for the parties, on helpless litigants. Thus, in Ukpe Ibodo & Ors. v. Iguasi Enarofia & Ors. (1980) 5-7 S.C.42 at p.52-53, which deal with good and substantial reasons” for appealing out of time, admittedly a matter of procedure, may be prayed in aid of applications like the one in hand. It was held:
“This court has stated in several decisions that it is not right to visit the parties with punishment arising out of the mistakes or inadvertence or negligence of counsel and that in such a case the discretion of the court, although always required to be exercised judicially (see: G.B.A. Akinyede v. The Appraiser (1971) 1 All N.L.R.162 at p.165; Doherty v. Doherty (1964) 1 ALL N.L.R. 299; Tunji Bowaje v. Moses Adediwura (1976) 6 S.C.143 at 147), should be exercised with a leaning towards accommodating the parties interests without allowing mere procedural irregularities, brought about by counsel, to preclude the determination of a case on the merits (Ahmadu v. SaLawu (1974) 1 All N.L.R. (Pt. 11) 318 at 324).”
In this case, the Court of Appeal Order 1, Rule 20(3) requires “special grounds”, which in my view, includes grounds for furtherance of justice. It would tantamount to injustice if a decision of a superior court, in particular, the Supreme Court, which would have helped the lower court to decide the matter one way or the other, once pleaded, were not admitted in the Court of Appeal.”
The plaintiffs/respondents were dissatisfied with that ruling and have appealed to this court on one original ground of appeal and, by leave of this Court, two other grounds were added. These grounds of appeal are as follows:-
The Court of Appeal erred in law in failing to observe that it has no jurisdiction to admit and/or act upon Exhibits CA.1, CA.2 and CA.3 moreso when the said Exhibits were not tendered before or acted upon by the trial court.
PARTICULARS OF ERROR
(a) By virtue of the provisions of section 219 of the Constitution of the Federal Republic of Nigeria, 1979, (hereinafter referred to as “the Constitution”) the Court of Appeal has only appellate jurisdiction over decisions of a State High Court, etc.
(b) In the alternative, the Court of Appeal does not have original jurisdiction to determine matters which were not considered by the High Court.
(c) Exhibits CA.1, CA.2. and CA.3 having not been tendered, admitted or considered by the trial High Court are not subject of appeal from the decision of the High Court.”
2. The Court of Appeal misdirected itself in law when it construed Counsel’s discretion not to call any evidence on behalf of his clients as a special ground warranting the receipt of further evidence on appeal.
PARTICULARS OF ERROR
(i) Counsel retained to conduct a case has general authority on how to conduct a case and the client is bound by his conduct of the case.
(ii) Counsel for the respondents herein (Adeyinka Adeoye) exercised his discretion at the trial court not to tender Exhibits CA.1, CA.2 and CA.3 and the exercise of such a discretion cannot be a ground for the receipt of the said Exhibits on appeal.
(iii) In the alternative to particular (ii) supra the exercise of counsel’s discretion as to whether or not to adduce evidence does not amount to a special ground within the meaning of Order 1 rule 26(3) of the Court of Appeal Rules for the admittance of such evidence on appeal”.
3. The Court of Appeal erred and misdirected itself in law in applying the Supreme Court decision in Asaboro v. Aruwaji & Anor. (1974) 1 All N.L.R.140 or 1974 4 S.C. 119 to grant the respondents application to adduce fresh evidence on appeal when the case or application before it is distinguishable in many respects from the Asaboro’s case.
PARTICULARS OF ERROR/MISDIRECTION
(i) In Asaboro’s case supra, the evidence sought to be tendered was not available at trial whereas in this case, Exhibits CA.1, CA.2, and CA.3 were available at the trial.
(ii) Unlike the Asaboro’s case where reasonably diligent effort to get the information or evidence concerned for the purpose of the trial was made, the evidence i.e. Exhibits CA.1, CA.2 and CA.3 were available in the trial of this case but were not tendered at Counsel’s discretion.
(iii) The additional evidence admitted in Asaboro’s case was apparently credible and believable unlike Exhibit CA.1, CA.2 and CA.3 in this case.”
In his brief of arguments, the plaintiffs have formulated three questions for determination and these are:
“(i) Whether the Court of Appeal has original jurisdiction to consider, adjudicate or pronounce on matters which were not considered at all by (or which were not brought before) the trial High Court.
(ii) Whether the exercise of Counsel’s discretion not to call any evidence at the trial court can amount to a special ground warranting the grant of an application to adduce fresh or further evidence on appeal.
(iii) Whether the Supreme Court decision in Asaboro v. Aruwaji & Anor. (1974) 1 All N.L.R. 140 has opened the flood-gate for the admissibility of fresh or further evidence on appeal or
ALTERNATIVELY
Whether Asaboro’s case (supra) is distinguishable from this case.”
At this stage, I must mention that although the defendants/respondents were served with all the papers of the appeal and were represented by Counsel, they did not file any brief of argument nor formulate any issues for determination. Counsel, appearing for them, Mr. Omodara, appeared before this Court on a number of occasions; in particular, he appeared for the respondents on the 25th of October, 1988, when the appeal was adjourned for hearing. On that date, the Court observed that no briefs had been filed for respondents and advised Counsel to do so before the hearing date.
It is a matter for deep regret that Mr. Omodara did not file that brief and when he appeared before this Court on the 6th February, he was unable to state why he had not done so. I cannot conceive of a more disrespectful attitude of Counsel to this Court; and the unanswered question is whether this is another negligent act of Counsel in respect of which yet another Counsel will be asking us to apply the principles in Ibodo’s case (supra), or whether non-compliance with the Court’s order was due entirely to the inadequacy of the respondents. Whatever it is Counsel should always remember that as an officer of this Honourable Court, he owes it a duty to assist the Court in dispensing justice.
In spite of all these shortcomings, and because of the importance of the issues raised, Mr. Omodara was allowed to address the Court at the hearing of the appeal.
I have already set out the three issues formulated by the appellants and it seems convenient to deal first with Issue No.1 where the question of jurisdiction was raised.
In his brief of arguments, Counsel contends that under Sec. 219 of the Nigerian Constitution, the lower Court only has appellate jurisdiction to hear appeals from the High Court, and that, by admitting the three judgments in evidence, the Court of Appeal has-
“unwittingly turned itself into a trial Court, or in the alternative, it has put itself in a position whereby it is no longer exercising appellate jurisdiction over the decision of the trial High Court.”
Counsel concedes that under Order 1, rule 20(3), of the Court of Appeal Rules 1981, the lower Court is empowered to admit fresh evidence, but Mr. Olanipekun submits that a mere Rule of Court cannot extend the original jurisdiction conferred on the Court by the Constitution. The short answer to the submission made is that the Court of Appeal Rules are not just mere rules. They are Rules of Court made under powers conferred on the Hon. President of the Court of Appeal by section 227 of the Nigerian Constitution. That section reads:
227: Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.”
Similar powers are delegated to the Hon. Chief Justice of Nigeria in Sec. 216 of the Constitution in respect of the making of the Rules of the Supreme Court.
It must be appreciated that these Rules are the lubricants of the machinery of justice and they contain minute details of the various steps which a litigant is expected to take in the process of getting the Court to hear and adjudicate on the different types of cases which come before it. Furthermore, these rules are subject to amendment from time to time; and they vary from one tier of Court to another. It is obvious therefore that the power to make those rules has to be delegated if the Constitution is not to be rendered unduly cumbersome.
In those circumstances, the legal effect is that once it is shown that the Rules are made under powers conferred by the Constitution, they would have the same force of law as the Constitution itself. In this regard, reference may be made to the definition of “Law” in section 18(1) of the Interpretation Act, 1964. In the same Act, “subsidiary instrument” is defined to mean:-
Any order, rules, regulations, rules of Court, or bye-laws made either before or after the commencement of this Act in exercise of powers conferred by an Act.” (Italics mine)
In the result, I hold that the lower Court had jurisdiction to hear and determine the Motion to adduce fresh evidence on appeal.
I now come to the 2nd and 3rd issues and these issues are concerned with the questions:
(a) whether the lower Court has correctly construed the provisions of Order 1 Rule 20(3) of the Court of Appeal Rules 1981; and
(b) whether the case of Asaboro v. Aruwaji (supra) applies to the facts of this case.
In Asaboro’s case, as in the present case, an application was brought at the appellate stage of the proceedings, to admit certain documents’ which the applicant could not tender in the High Court because they were not then available. The Motion was brought under Order 7 rule 24 of the Rules of the Supreme Court 1961which was then applicable. That rule provided that:
“24. It is not open as of right to any party to an appeal to adduce new evidence in support of his original case; but for the furtherance of justice, the Court may, where it thinks fit, allow or require any new evidence to be adduced, such evidence to be either by oral examination in Court, by affidavit or by deposition taken before an examiner or commissioner as the Court may direct. A party may by leave of the Court allege any facts essential to the issue that have come to his knowledge after the decision of the Court below and adduce evidence in support of such allegations.” (Italics mine)
It will be seen that that Rule has placed some emphasis on the “furtherance of justice” and, in his judgment, Coker, J.S.C. took great pains to expatiate on the correct interpretation of the Rule. At page 144 of the Report, His Lordship stated:
“The rule postulates therefore that this Court may grant leave to adduce new evidence for the “furtherance of Justice” if it thinks fit to do so. The decision of this Court in the case of Attorney General of the Federation v. Mallam Modi Alkali, supra, clearly exemplifies this rule and dispensed with the introduction of the relevant English rule, in the same respect. The decision also evidently applied the principles which the courts have always taken into consideration in the judicious exercise of powers to grant leave to adduce new evidence, namely:-
(i) The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial,
(ii) The evidence should be such as if admitted, it would have an important, not necessarily crucial, effect on the whole case; and
(iii) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.”
The Supreme Court then went on to apply the above principles to the facts of the application before it, and came to the conclusion that since the documents sought to be tendered could not “with reasonable diligence” have been obtained for use at the trial, it would he in the interest of justice to admit them on appeal.
The Rule under which the present application was brought is slightly different from the old Rule although the wording is similar. In fact, the New Rule can be described as a neater version of Order 7, Rule 24.
In the new Rule the phrase “for the furtherance of justice” has been deleted and a new one, “on special grounds”, substituted. But in both Rules, the central theme is the same -that after a case has been tried on the merits in the Court of first instance, fresh evidence will not be readily received on appeal except on special grounds.
It would appear that this principle has been followed in previous cases which have been before the Courts. Some of these cases are:
Severino v. Witt & Busch (1912) 2 N.L.R.77
Ariran v. Adepoju (1961) All N.L.R.722 E
Federal Board of Inland Revenue v. J. Rezcallah Ltd. (1962) 1 All N.L.R. 1 at p.5.
Dawodu v. Danmole (1962) 1 All N.L.R.702.
L. Atswaga v. G. Agena (1964) N.N.L.R.122.
Enekebe v. Enekebe (1964) N.M.L.R.42
Attorney-General v. M. Alkali (1972) 12 S.C.29.
In Enekebe’s case (supra), the Supreme Court, per Bairamian, J.S.C., refused leave to call further evidence and held that:
“The powers of this Court are large and wide; but it is the practice, briefly put, to refuse an application to adduce more evidence which the applicant could have adduced at the trial.”
But in Dawodu v. Danmole (supra) the Privy Council held that the Federal Supreme Court was right in admitting fresh evidence on the issue as to the appropriate native law and custom which applied to the distribution of the estate of a deceased who died intestate. In his judgment, Lord Evershed stated:
“Finally, there can in their Lordships’ view be no doubt of the justice of the observation in the judgment of Abbot, F.J. that the evidence before Jibowu, J. on native law and custom was “scanty.” The witness before the trial Judge upon it was the deceased’s sister. She appears to have been some eighty years of age but her qualifications as a witness upon such a subject do not appear, and, as the learned trial Judge observed, she could not say when the old customs, Idi-Igi, was, as she alleged, “swept away.”
In the circumstances their Lordships entertain no doubt that it was competent for the Federal Supreme Court to direct the calling of the evidence which they did and that, by So directing, the Court properly exercised its discretion. Mr. Bernstein suggested that a more proper course would have been to remit the case to the trial Judge: but it does not appear that such a suggestion was ever made to the Federal Supreme Court nor can their Lordships find in the Rule any ground for it.”
Those two cases, I think, show why it is important to advance good and substantial reasons when applying to adduce fresh evidence on appeal.
I now return to a consideration of the instant appeal. The relevant Rule of Court, Order I rule 20(3), under which the application was brought reads as follows:
“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.”
It seems to me that the import of that Rule is that the Court of Appeal may, in its discretion admit fresh evidence in respect of matters which had occurred after judgment in the trial Court; but in other cases, as for instance, in respect of matters which occurred at the trial or before judgment, the lower Court will admit such fresh evidence only on special grounds.
In the instant appeal, the defendants admit that the documents which they sought leave to tender were available at the trial but the excuse which they gave was that their lawyer decided not to call evidence and to rest his case on that of the plaintiffs. In consequence, the applicants did not testify and were unable to tender the documents in evidence.
The lower Court gave due consideration to these reasons and seemed to have been satisfied with the excuse given. It held the view, that it would be wrong to punish “helpless litigants” with the mistakes of their Counsel. The Court relied on the case of U. Ibodo & Ors. v. I. Enarofia & Ors. (1980) 5-7 S.C.42 at 52.
In Ibodo’s case, the Supreme Court held:
“This Court has stated in several decisions that it is not right to visit the parties with punishment arising out of the mistakes or inadvertence or negligence of Counsel and that in such a case the discretion of the Court, although always required to be exercised judicially (see G.B.A. Akinyede v. The Appraiser (1971) 1 ALL N.L.R. 162 at p. 165; Doherty v. Doherty (1964) 1 ALL N.L.R. 299; Tunji Bowaje v. Moses Adediwura (1976) 6 SC.143 at 147), should be exercised with a leaning towards accommodating the parties’ interests without allowing mere procedural irregularities, brought about by Counsel, to preclude the determination of a case on the merits (Ahmadu v. Salawu (1974) 1 All N.L.R. (Pt.11) 318 at 324.”
It is true that the Courts will not punish a litigant for the mistake or inadvertence of his Counsel in procedural matters. But the question which arises in the present appeal is whether a decision by Counsel not to call evidence is a mistake or mere inadvertence In my view, it is neither. Far from being a mistake, it is in actual fact a distinct exercise of a legal right. A party is free to choose whether to adduce evidence in support of his pleading or not and the Court has no power to interfere with the exercise of that right. See the case of Mobil Oil (Nigeria) Ltd. v. Federal Board of Inland Revenue (1977) 3 S.C. 1 at p.15.
Furthermore, it is provided in Order XLI, Rule S of the Supreme Court (Civil Procedure) Rules 1948 that:
“When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence and to sum up and comment thereon,”
In my view, when a party makes a choice which the Law requires him to make, and that choice was acted upon by both parties in the suit and by the Court, the party who made the choice cannot turn round afterwards and claim that he had made a mistake. Such a mistake of Law will not excuse the party.
In my experience, a decision not to call evidence has always been regarded as a legal strategy, not a mistake. If the strategy succeeds, then it enhances the case of that party; but if it fails, such a litigant cannot ask for leave to adduce further evidence in order to repair his damaged case.
It seems to me that if every party who makes a wrong choice of that nature is allowed to repair his case in this way, there will be no end to litigation. The legal maxim is Interest rei publicae ut sit finis litium.
I bear in mind that the defendants’ Counsel also announced that he was resting his case on that of the plaintiffs, and Counsel must be understood to be saying either:
(a) That the plaintiff has not made out any case for the defendants to answer or
(b) That the Defendants have a complete answer in Law to the plaintiffs’ case.
Now I ask, can the lawyer’s announcement to rest his case on that of the plaintiffs be regarded as a mistake also I do not think so.
It has been held that once Counsel makes that announcement, and addresses the Court on it, he must stand by his submission. See Tandoh v. C.F.A.O. of Accra (1944) 10 W.A.C.A.186; S. Atugbue v O. Chime (1963) 1 All N.L.R.208.
In the instant appeal, it is clear to me that all the legal steps taken by Counsel were part of a grand design or strategy to defeat the plaintiffs’ claim with the minimum effort. As it later turned out, those plans went wrong, and Counsel must be content with a decision of the case on evidence which was properly tendered in the trial Court, and not on any fresh evidence.
In this respect, it must be remembered that the principal issue on the pleadings was as to the identity of the land trespassed upon.
The plaintiffs claimed that the said land was that awarded to them by a Supreme Court judgment, whilst the defendants averred that the land they had entered was the parcel of land awarded to them by virtue of three Court judgments which they listed in paragraphs 21-25 of their statement of defence.
At the trial, the plaintiffs called evidence in proof of their pleading, but the Defendants refused to give evidence and failed to tender the relevant judgments which permitted them to enter into the land in dispute.
Consequently, the trial Court gave judgment against the defendants on the uncontradicted evidence of the plaintiffs.
On appeal, the defendants sought leave to present that same defence which they ought to have placed before the trial court and the question is should they be allowed to do so I think not.
In my view, to grant the defendants such indulgence would amount to permitting them to prove their case by instalments – See Udo v. Etok (1934) 11 N.L.R. 136 – and in my opinion, such practice would run contrary to the principles of fair bearing and natural justice.
The lower Court did grant the respondents such indulgence and I hold that this was not a judicious exercise of its discretion under the relevant Rule of the Court.
There is one final point that need be made. The lower Court seemed to have been unduly concerned about the plight of the “helpless litigant” whose Counsel had made an error of judgment in his legal submissions, and consequently lost the case for his clients.
The view of this Court in such circumstances has been clearly stated by Eso, J.S.C., in the case of: Mosheshe General Merchant Ltd. v. Nigeria Steel Products Ltd. His Lordship stated:
“A Counsel who has been briefed and has accepted the brief and also has indicated to the court that he has instructions to conduct a case has full control of the case. He is to conduct the case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to judgment. Sometimes, he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the Court. The only thing open to the client is to withdraw instructions from the counsel or if the counsel was negligent sue in tort for professional negligence. Such are the powers but such are also the risks.”
These views apply to the facts of this appeal and I would respectfully adopt them.
In the net result, this appeal succeeds and it is ordered that the Ruling of the Court of Appeal dated 16th September, 1986 admitting Exhibits CA1 – CA3 shall and is hereby set aside.
For the avoidance of doubt, it is ordered that Exhibit 5 CA1, CA2 and CA3 which relate to Suits Nos.KWS/21A/1976, KWS/10A/78 and KWS/12A/74 respectively shall be expunged from the Record of the proceedings of the lower Court.
We are informed by both Counsel that Exhibit CA4 which relates to the Supreme Court case SC.480/75 had been received in evidence by the trial Court and does not therefore constitute fresh evidence in the Court of Appeal.
It was for the reasons stated above that I allowed the appeal on the 6th February, 1989 and it is ordered that there will be costs in favour of the plaintiffs/appellants assessed at N500.00.
ESO, J.S.C.: I allowed this appeal on 6th February, 1989 summarily, after listening to the arguments of counsel, and indicated that I would give my reasons later for the course I took. I now give the reasons.
The issues involved are so simple. The plaintiffs claimed in trespass and also sought injunction. Their case was simply that the land trespassed upon had been subject of litigation which went as far as the Supreme Court which adjudged the land as the plaintiffs’. That suit was S.C.480/75. If they are right then, of course, there is hardly any answer to their claim. However the defendants averred that the land in dispute was not the one referred to in the suit supra but another.
All the court had to decide was whether or not the land had been subject of a Supreme Court decision as claimed by the plaintiffs and in respect thereof, plaintiffs called evidence, tendered documents in proof of their claim and also tendered the judgment of the Supreme Court earlier referred to. The defendants called no evidence. Simple rules of justice dictate that judgment should go in favour of the plaintiffs once the Court was satisfied of the proof of their claim, especially as it was uncontroverted by the defendants. And that was how judgment went.
The defendants, as would be expected, appealed but put the blame upon their counsel. They said that they advised their counsel they would give evidence, that counsel agreed with them, but counsel closed the case without calling upon them to give evidence.
But so what
I think counsel always has conduct of a case, and it is his responsibility to decide to call evidence. In this case, the affidavit of the defendants show clearly that counsel knew that the evidence existed. He did not call evidence. But was that a mistake that should warrant the court’s discretion to permit leading such evidence on appeal That in truth was the issue before the Court of Appeal.
The Court of Appeal referred to our decision in Ukpe Ibodo v. Enarojia, where we refused to visit the sins of the counsel upon the client for some procedural neglect. We took care in the case to limit our concern to “mere procedural irregularities” made by counsel. Of course, this was not saying anything novel as the concern of this Court has always been in pursuit of real, as opposed to cosmetic justice. This Court is a court of concrete justice and not one interested in “shadow boxing.” The Court of Appeal in the instant appeal granted leave to defendants on appeal to adduce evidence which learned counsel in his wisdom and in his undoubted right (though to the detriment of his client) refused to lead.
Several grounds were brought before this Court on appeal by the plaintiffs who were dissatisfied with the decision of the Court of Appeal. The crux of the matter however is whether or not, shorn of its elegant coverage, parties could, after losing a case on the conduct of the case by their counsel, choose another counsel and adduce evidence which the former counsel in his professional decision did not offer.
I think it would be extending Ibodo v Enarofia case beyond reason if every considered or assumed considered professional decision of a counsel which has gone wrong should qualify as ground of appeal. We did say once, and I am still of the firm view, that the conduct of a case lies wholly with counsel. The rule really should be “caveat client.” If you choose a counsel, you should permit him, once seised of the case, to conduct the case in the manner of his professional ability. Indeed, that is part of the independence of the Bar! If there is lapse in his office, his clerk forgetting to file some papers, he, forgetting the date of hearing or such like procedural errors, of course, the client should not be made to suffer – U. Ibodo v. Enarofia. If however, he takes a deliberate decision and loses thereby, then, it is his privilege to lose and that will not constitute a right for the client for utilization as a ground of appeal. For, if it were not so, the profession would be in jeopardy.
I have had the advantage of a preview of the Reasons for Judgment just Dread by my learned brother, Craig, J.S.C. in this case. I am in full agreement and I associate myself with his censure of Omodara of counsel who did not show credit to this court or his client. I adopt his other reasons and the reasons I have given above for allowing the appeal in this case. I will also adopt his order as to Costs.
UWAIS, J.S.C.: This interlocutory appeal was allowed with N500.00 costs against the respondents on the 6th day of February, 1989. We made an order expunging certain exhibits from the record of the Court of Appeal and reserved our reasons for allowing the appeal till today.
I have had the advantage of reading in draft the reasons for judgment read by my learned brother, Craig, J.S.C. As it was for the same reasons that I agreed on the said date that the appeal should be allowed, I adopt his reasons for judgment as mine.
KARIBI-WHYTE, J.S.C.: On the 6th February, 1989, after hearing arguments from counsel to the parties, I allowed the appeal of the appellants and indicated that I shall give my reasons today. I now give the reasons.
The only point on which appellant came to this Court on appeal against the judgment of the Court of Appeal was whether that Court had the jurisdiction to admit further evidence in that Court after judgment had been given by the trial Court after a hearing on the merits.
I have had the privilege of reading the judgment of my learned brother, Craig, J.S.C., in this appeal the reasons and conclusions with which I entirely agree. I adopt the much fuller statements of facts giving rise to this appeal as stated by my learned brother, Craig, J.S.C. Very shortly stated, the facts are that plaintiffs, now appellants brought an action against defendants who are now the respondents at the Ilorin High court claiming from the defendants/respondents the sum of N10,000.00 damages for trespass to their land at Jaju Gbagede, Injunction restraining the respondents from further trespass on the land. Plaintiffs claimed to have been awarded title to the said land in judgments of the Ilorin High Court, Suit No.KWS/12A/74 and the Supreme Court, S.C.480/1975. At the close of the case for the plaintiffs/appellants, Counsel for the defendants/respondents announced that the defendants/respondents would not offer any evidence and that they were resting their defence on the case of the plaintiffs/appellants. Both Counsel addressed the Court. The trial Judge gave judgment in favour of the plaintiffs/appellants on their claim.
Defendants thereupon appealed to the Court of Appeal. They also applied to the Court for leave to call further evidence. The further evidence they are seeking to tender is evidence disputing the plaintiffs title to the land in dispute. They also rely on judgments of the Ilorin High Court and Supreme Court. The relevant averments in paragraphs 18, 20, 21, 22, 23, 24, 25, 26, 27, 29, 31, 32, 33, 34 of the affidavit in support of the motion to call further evidence are as follows-
“18. That sometimes in March/April, 1980 I told our Lawyer (Mr. Adeyinka Adeoye) in suit No.KWS/52/79 at number 18, Edun Street, Ilorin that when Alhaji Yahaya Jaju was farming on Odo Eleran land the respondents in Suit No.KWS/52/79 sued Alhaji Yahaya Taju and myself before Afon Area Court and that in appeal No. KWS/21A/76 decided by the Ilorin High Court, the High Court decided that Odo-Eleran did not form part of the land adjudicated upon Appeal No.KWS/12A/74 and decided by the Supreme Court in SC.480/1975.
20. That sometimes in March/April, 1980. I told Lawyer Adeyinka Adeoye in his office at number 18Edun Street, Ilorin that in Appeal No.KWS/21A/76 decided on the 23rd May, 1977, the Court ordered a retrial as to whether ado Eleran formed part of the land adjudicated upon in KWS/12A/74 decided by the Supreme Court in SC.480/75.
21. That sometimes in March/April, 1980, I told Lawyer Adeyinka Adeoye in his office at number 18 Edun Street, Ilorin, that the Upper Area Court conducted a re-trial of the case, visited the locus in quo and found as a fact that ado Eleran did not form part of the land adjudicated upon in KWS/12A/74 decided by the Supreme Court in S.C.480/1975.
22. That sometimes in March/April, 1980 1 told Lawyer Adeyinka Adeoye in his office at number 18 Edun Street, Ilorin that again in Appeal No. KWS/10A/78 the Ilorin High Court decided that Odo-Eleran is not part of the land adjudicated upon in KWS/12A and SC 489/1975.
23. That sometimes in March/April, 1980. I told Lawyer Adeyinka Adeoye in his office at number 18 Edun Street, Ilorin that it was the decisions in Appeal No.KWS/21A/1976 and Appeal No.KWS/10A/78 that Alhaji Yahaya Jaju relied upon and entered ado Eleran in August, 1978.
24. That sometimes in March/April, 1980, I gave Lawyer Adeyinka Adeoye certified true copies of the judgments of Appeal in No.Kws/21A/1976; the retrial by the Upper Area Court Ilorin, and Appeal No.KWS/10A/78; in his office at Ilorin to justify the action of Alhaji Yahaya Jaju in entering Odo Eleran piece of land in August, 1978.
(certified true copy of the judgment of Ilorin High Court in Appeal No.KWS/21A/76 is hereby attached and marked “Exhibit MA 3”).
certified true copy of the judgment of Ilorin High Court in Appeal No.KWS/10A/78 is hereby attached and marked “Exhibit MA 4”).
25. That Lawyer Adeyinka Adeoye in his Statement of defence suit No.KWS/52/79 pleaded certified true copies of the judgment of Appeal No.KWS/21A/1976; the retrial by the Upper Area Court Ilorin and judgment of Appeal No.KWS/10A/78.
26. That during the hearing of suit No.KWS/52/79 before Ilorin High Court AYINLA TAPO, BELLO AKANBI (now 3rd and 1st Respondents) gave evidence and called three other witness.
27. That sometimes in January, 1981, Alhaji Yahaji Jaju and myself told Lawyer Adeyinka Adeoye in his office at Number 18 Edun Street, Ilorin that the two of us would like to give evidence in the defence suit number KWS/52/79, tender judgments of Ilorin High Court in Appeal No.KWS/21A/1976, the retrial by the Upper Area Court Ilorin and Appeal No.KWS/10A/78 and call four other witnesses.
29. That on the 29th February, 1981, Lawyer Adeyinka Adeoye in his office at No.18 Edun Street, Ilorin told Alhaji Yahaya Jaju and myself and we verily believed him that we would give evidence in our defence of Suit No.KWS/52/79 in Court on the 10th February, 1981.
31. That on the 10th February, 1981, the Respondents closed their case in suit No.KWS/52/79 before Ilorin High Court.
32. That on the 10th February, 1981, Lawyer Adeyinka Adeoye in handling suit No.KWS/52/79 told the Ilorin High Court that he will not call any witness at all, that he will be resting our case on the evidence produced by the Plaintiffs in Suit No.KWS/52/79 and finally asked the Court for a date to address the Court.
33. That on the 10th February, 1981, Alhaji Yahaya Jaju and myself protested to Lawyer Adeyinka Adeoye after the Court that we would like to give evidence in the defence of suit No.KWS/52/79 tender judgments already pleaded in our Statement of Defence and call four witnesses.
34. That at the Ilorin High Court presided over by His Lordship Honourable Mr. Justice I. A. Salami, gave judgment in suit No.KWS/52/79 in favour of the respondents (awarded Odo-Eleran land to the respondents) and awarded the sum of N500.00 general damages against Alhaji Yahaya Jaju and myself for trespass.
In a counter-affidavit filed by the plaintiff/respondent all the above averments were disputed and described as false. Paragraphs 3, 4, 7, 8, 11, 12, 13, 14 of the counter affidavit which are relevant aver as follows –
“3. That paragraphs1, 3, 5, 6, 9, 10, 11, 26 and 31 of the affidavit in support of the said motion are true.
4. That paragraphs 2, 4, 7, 8, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 27, 28, 29, 30, 31, 32, 33, 34 and 35 of the said affidavit are false.
7. That I was in court on 10/2/81 when Mr. Adeyinka Adeoye intimated the lower court that the defendants/applicants would neither call any witness nor tender any document.
8. That before Mr. Adeyinka Adeoye spoke to the court, he had a discussion with the first applicant/defendant.
11. That after Mr. Adeyinka Adeoye’s announcement on behalf of the defendants/applicants on 10/2/81, the case was adjourned to 28/4/81 for counsel’s addresses.
12. That before 28/4/81, the court on its own motion further adjourned the case to 5/5/81 for addresses.
13. That on 5/5/81, it was the defendants and their counsel alone that were present in court and that their counsel addressed the court at length on their behalf. These facts are now contained on pages 37-42 of the record of proceedings of the lower court which is now before this court.
14. That throughout the aforementioned dates and periods, I know as a matter of fact that the defendants/applicants did not complain about the announcement which Mr. Adeyinka Adeoye made on their behalf on 10/2/81.”
Defendants/Respondents in an effort to controvert the averments in the counter-affidavit swore to an affidavit regarding the unsuccessful attempt they made to persuade their former counsel, Mr. Adeoye, to swear to an affidavit to contradict the counter affidavit.
Paragraphs 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 are the relevant averments.
“10. That on the 19th day of May, 1986, at Number 18 Edun Street, Ilorin Kwara State, Mr. Adeyinka Adeoye told me and I verily believe him that he has carefully read my motion dated 24th day of February, 1986, and filed on the 6th day of March, 1986 together with the 35 paragraphs affidavit supporting it.
11. ‘That on the 19th day of May, 1986 at Number 18 Edun Street, Ilorin, Kwara State, Mr. Adeyinka Adeoye in the presence of Alhaji Salawu Alago and Alhaji Yahaya Alabi told me and I verily believe him that the content in paragraphs 1-35 in support of my Motion filed before this Honourable Court on the 6th day of March, 1986, are correct.
12. That on the 19th day of May, 1986, at Number 16 Edun Street, Ilorin, Kwara State, I gave Mr. Adeyinka Adeoye a photo copy of the Counter Affidavit in Suit No.CNK/94/85 sworn to on the 11th April, 1986 by Ishola Ogele.
13. That on the 19th day of May, 1981, at Number 18 Edun Street, Ilorin, Kwara State, Mr. Adeyinka Adeoye told me and I verily believe him that he has carefully read the counter- Affidavit sworn to by Ishola Ogele on the 11th day of April, 1986.
14. That on the 19th day of May, 1986, at Number 18 Edun Street, Ilorin, Kwara State, Mr. Adeyinka Adeoye told me and I verily believe him that paragraphs 4,5, 8, 9 and 14 of the Counter Affidavit Sworn to by Ishola Ogele on the 11th day of April, 1986 are false.
15. That on the 19th day of May, 1986, at Number 18 Edun Street, Ilorin, Kwara State, I requested Mr. Adeyinka Adeoye to swear to an affidavit in support of paragraphs 6, 7, 8, 9, 10, 11, 12, 13 and 14 of this my further Affidavit.
16. That on the 19th day of May, 1986 at Number 18 Edun Street, Ilorin, Kwara State, Mr. Adeyinka Adeoye, told me and I verily believe him that he was not ready to swear to any Affidavit as requested by me in support of the facts of this Motion.
17. That on the 22nd day of May, 1986, I visited Mr. Adeyinka Adeoye at Number 18Edun Street, Ilorin, Kwara State, in company of (a) Alhaji Salawu Alago (b) Alhaji Yahaya Alabi all of Jaju village, Ilorin, Kwara State.
18. That on the 22nd day of May, 1986, at Number 18 Edun Street, Ilorin, Kwara State, I further begged Mr. Adeyinka Adeoye to swear to an affidavit in support of paragraphs 6-14 of this my further affidavit.
19. That on the 22nd day of May, 1986, at Number 18 Edun Street, Ilorin, Kwara State, Mr. Adeyinka Adeoye in the presence of (a) Alhaji Salawu Alago and (b) Alhaji Yahaya Alabi told me and I verily believe him that he was not ready to swear to any affidavit as requested by me in support of the facts of this Motion.
20. That on the 9th day of June, 1986, I followed Alhaji Abdul Kadir Orire (the Grand Khadi of Kwara State) to Mr. Adeyinka Adeoye at Number 18 Edun Street, Ilorin,, Kwara State.
21. That on the 9th day of June, 1986at Number 18 Edun Street, Mr. Adeyinka Adeoye, told me and Alhaji Abdul Kadir Orire (the Grand Khadi of Kwara State) and I verily believe him that he maintained his stand that he was not ready to swear to any affidavit in support of my facts of this Motion.”
Also exhibited to the application are the statement of claim of the plaintiffs and the statement of defence of the defendants. Paragraphs 12, 14, 15 of the statement of claim and paragraphs 15, 16, 17, 20, 21, 22, 23, 27, 31 issues were joined by the parties. This was the evidence in support of the motion to call further evidence. After arguments on the application, the Court of Appeal granted the application.
The contention of applicants’ counsel was based on the argument that this was a special case, and that the appellant/applicant did not adduce evidence at the trial. Counsel cited Asabara v. Aruwaji & Anor. (1974) 1 All N.L.R.140. It was submitted that the materiality of the document sought to be tendered was a factor to be considered in exercising the discretion to allow further evidence to be called on appeal. Finally, it was submitted relying on Ibodo & Ors. v. Enarofia & Ors. (1980) 5-7 S.C.42; Ogbu v. Urum (1981) 4 S.C. 1 at p.16 that the Court ought not to punish applicant for the negligence of his counsel.
Plaintiff/Respondent in the Court below, now appellant before this Court, opposing the application, submitted that the exercise of discretion by counsel in concluding case is not a special circumstance. The failure to give evidence was the result of the exercise of discretion of counsel to the appellants. It was contended that the appellants/applicants had not shown that the documents were not available at the hearing in the High Court.
In a reserved ruling read by Ogundere, J .C.A. to which Maidama and Akpata, JJ.C.A. concurred, the Court of Appeal granted the application.
The learned Justice of the Court of Appeal appreciated that the application was brought under the provisions of Order 1, rule 20(3), Rules of the Court of Appeal, 1981which is differently worded from Order 7, r.24, Rules of the Supreme Court applicable to the cases cited and relied upon. The decision relied upon was Asaboro v. Aruwaji & Anor. (1974) 1 All N.L.R.140, 146-147. In Asaboro v. Aruwaji (supra), the Supreme Court construing Order 7, rule 24, of its rules, held that the expression “further evidence” involved the production of new evidence. It was further held referring to the contention that a party who had not given evidence of the trial could not take advantage of the rule as a non sequitur. Rather it is a circumstance which the Court ought to take into consideration in deciding whether or not to exercise its discretion in the particular matter. The Supreme Court was of the view that the exercise of the powers being for the “furtherance of justice” enables an overall consideration of all the issues involved in the exercise of the discretion.
Relying on this case, the Court of Appeal stated as follows-
“It would appear from the following case that the Supreme Court after all, in cases of this nature, would no longer visit the sins of commission and omission of others including counsel for the parties on helpless litigants. Thus, in Ukpe Ibodo & Ors. v. Iguasi Enarofia & Ors. (1980) 5-7 S.C. p.42 at 52-53, which deal with “good and substantial reasons” for appealing out of time, admittedly a matter of procedure, may be prayed in aid of applications like the one in hand. It was held:
‘This court has stated in several decisions that it is not right to visit the parties with punishment arising out of the mistakes or inadvertence or negligence of counsel and that in such a case the discretion of the Court, although always required to be exercised judicially (see G.B.A. Akinyede v The Appraiser (1971) 1 All N.L.R. 162 at p.165; Doherty v. Doherty (1964) 1 All N.L.R. 299; Tunji Bowaje v. Moses Adediwura (1976) 6 S.C.143, at 147) should be exercised with a leaning towards accommodating the parties’ interests without allowing mere procedural irregularities, brought about by counsel, to preclude the determination of a case on the merits (Ahmadu v. Salawu (1974) 1 All N.L.R. (Pt. 11) 318 at 324).”
Applying the rationes of these decisions to the application, the Court of Appeal read the “Special grounds” required for the exercise of discretion in Order 1 r.20(3) of Court of Appeal Rules, 1981, to include “furtherance of justice” required in Order 7, r.24, of the Old Rules of the Supreme Court considered in those cases and held that:
“It would tantamount to injustice if a decision of a superior court, in particular, the Supreme Court, which would have helped the lower Court to decide the matter one way or the other, once pleaded, were not admitted in the Court of Appeal.”
The Court of Appeal accordingly admitted in evidence the judgments of the High Court, Ilorin in KWS/21A/1976, KWS/10A/78, KWS/12A/74 and SC.48075 of the Supreme Court as CA1, CA2, CA3 and CA4.
The respondents appealed to this Court relying on three grounds of error. I reproduce the grounds omitting the particulars-
“1. The Court of Appeal erred in law in failing to observe that it has no jurisdiction to admit and/or act upon Exhibits CA1, CA2 and CA3 more so when the said Exhibits were not tendered before or acted upon by the trial Court.”
Particulars – Omitted.
“2. The Court of Appeal misdirected itself in law when it construed counsel’s discretion not to call any evidence on behalf of his clients as a special ground warranting the receipt of further evidence on appeal.”
Particulars – Omitted
“3. The Court of Appeal erred and misdirected itself in law in applying the Supreme Court decision in Asaboro v. Aruwaji (1974) 1 All N.L.R.140 or 1974 4 S.C.119 to grant the respondents application to adduce fresh evidence on appeal when the case or application before it is distinguishable in many respects from the Asaboro’s case.”
Particulars – Omitted.
I think it is pertinent to observe that counsel to the respondent did not file respondent’s brief of argument in this appeal. This is notwithstanding the fact that this defect was pointed out to counsel, who was specifically advised to file his brief of argument before the hearing date on the 6th February, 1989. Counsel still did not file respondent’s brief of argument. However, Mr. Omodara was allowed to argue the appeal without a brief of argument, the Court having been compelled by the nature of the case to waive the requirement.
Mr. Olanipekun for the appellant raised three issues for determination in this Appeal. They are as follows-
(i) Whether the Court of Appeal has original jurisdiction to consider, adjudicate or pronounce on matters which were not considered at all by (or which were not brought before) the trial High Court.
(ii) Whether the exercise of counsel’s discretion not to call any evidence at the trial Court can amount to a special ground warranting the grant of an application to adduce fresh or further evidence on appeal.
(iii) Whether the Supreme Court decision in Asaboro v. Aruwaji & Anor. (1974) 1 All N.L.R.140 has opened the flood gate for the admissibility of fresh or further evidence on appeal, or ALTERNATIVELY
(iv) Whether Asaboro’s case supra, is distinguishable from this case.”
I shall consider these issues in accordance with the sequence of the submissions of Counsel. In arguing thefirst issue on the jurisdiction of the Court of Appeal to admit the three judgments in evidence, Mr. Olanipekun referred to Section 219 of the Constitution and the scope of the appellate jurisdiction of the Court and submitted that the Court would be turning itself into a trial Court by so doing. Counsel conceded that the Court of Appeal can in the exercise of its powers under Order 1 rule 20(3) admit fresh evidence, but contended that such exercise of power cannot extend the jurisdiction vested in the Court by the Constitution.
I think counsel is under a misconception of the true status of the matter before the Court of Appeal. That there is a valid appeal against the judgment of the learned trial Judge cannot be disputed. Thus the Court of Appeal, by virtue of section 219 of the Constitution 1979 has jurisdiction to hear the appeal before it. The issue now is whether in the exercise of its appellate jurisdiction it can exercise any powers to admit further evidence
The Rules of the Court of Appeal, 1981, were made by the President of that Court by virtue of section 227 of the Constitution 1979for regulating the practice and procedure of the Court, and are applicable for the determination of applications of this nature. Hence in so far as the Court of Appeal has jurisdiction to hear an appeal before it, it is entitled to apply the Rules of procedure regulating the determination of such appeals.
It is relevant to reproduce Order 1 rule 20(3) in order to consider whether the criticism that the exercise of the discretion involves adjudication or pronouncement of matters which were not considered in the trial Court is valid:
“‘(3) 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 mailer 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.” (Italics mine for emphasis)
It could be seen from the above that the exercise of discretion is limited to the admission of evidence on questions of fact in the circumstances prescribed under the rules. It does not involve adjudication of issues joined by the parties in their pleadings, which would have been subject-matter for adjudication in the trial Court.
A careful analysis of the relevant rule discloses that there is the general power to receive further evidence on appeal. The exercise of the power to admit further evidence is in respect of matters which had occurred in the trial court. Where the appeal is from a judgment after trial or hearing of any cause or matter on the merits further evidence can only be admitted on special grounds. It seems to me that “special grounds” referred to in the rule relate to evidence which have occurred after the date of trial or hearing.
It seems on examination of the cases decided on the provisions of Order 7, r .24, Rules of the Supreme Court, applied by the Federal Court of Appeal before it was replaced by Order 1, r.20(3), that the Court of Appeal has the discretion and power to receive new/further evidence in appropriate cases. It is however necessary that the issue in respect of which such evidence is being tendered must have been pleaded – See Onibudo v. Akibu (1982) 7 S. C.60. If there was no pleading, the pleading of the party seeking to adduce further evidence must be amended to reflect such evidence. However, even where there is pleading and it will be unfair to the trial Judge or create an undesirable precedent, the application will be refused -A. G. v. Alkali (1972) 12 S.C.29. The Court of Appeal will be reluctant to admit such new or further evidence which was not tendered in the lower Court or tendered but rejected, or any application made to the lower court for leave to tender the evidence on appeal due to the negligence of the party seeking to tender the document – See A-G. v. Alkali (supra). The Federal Supreme Court has held in Inland Revenue v. Rezcallah (1962) 1 All N.L.R.1, that where the further evidence was available at the trial, but not tendered, an appellate court will not grant an application to adduce such evidence. See also Queen v. Ohaka (1962) 1 All N.L.R. 505. In the exercise of the discretion to admit evidence on appeal, the Appellate Court is generally guided by the following considerations –
(1) The evidence sought to be adduced should be such as could not have been with reasonable diligence obtained for use at the trial. These are matters which have occurred after the date of trial or hearing. Exhibits CA1, CA2, CA3, CA4 sought to be tendered in this case were available at the trial and pleaded.
(2) The evidence should be such as if admitted, it would have an important, not necessarily crucial, effect on the whole case.
(3) The evidence is apparently credible in the sense that it is capable of being believed although it need not be incontrovertible. – See Roe v. R. McGregor and Sons Ltd. (1968) 1 W.L.R.925.
These guiding principles were followed by this Court in Asaboro v. Aruwaji (1974) 4 S.C. 119 where it was held that the fact that a party had not given evidence at the trial is a circumstance which the court ought to take into consideration in deciding whether or not to exercise its discretion in the particular matter. But the Court observed as follows:-
“We are not unmindful of the fact that it would be a dangerous precedent to allow a person who did not call evidence in the lower court, or who for one reason or another, had called insufficient evidence at the trial, with comparative ease, to bring forward for the first time before this Court the evidence which would and should have been adduced before the trial Judge.
Such an attitude would be disastrous to the principle of seeing an end to litigation. The stand taken by the Privy Council in the case of Edie Maud Leeder v. Nance Ellis (1953) AC.52, illustrates this point.”
Despite these general principles guiding the exercise of discretion, as all exercise of discretion ought to be the Court pointed out that –
“…….it seems to be generally accepted that the guiding principles have always been applied to the special facts or circumstances of each application before the Court of Appeal and in every case the question whether or not sufficient diligence had been put into the quest for such evidence had been decided as a matter of fact.”
I think the position will be clearer on comparing Order 7, r.24 with Order 1, r.20(3) already reproduced in this judgment. Order 7, r.24, states –
24. It is not open as of right to any party to an appeal to adduce new evidence in support of his original case: but for the furtherance of justice, the Court may, where it thinks fit, allow or require any new evidence to be either by oral examination in Court, by affidavit or by deposition taken before an examiner or commissioner as the Court may direct. A party may by leave of the Court allege any facts essential to the issue that have come to his knowledge after the decision of the Court below and adduce evidence in support of such allegations.”
The difference in the present rules is the absence of the expression “for the furtherance of justice” and in its place the phrase “on special grounds” substituted. There is no doubt that “furtherance of justice” is an indispensable attribute of the administration of justice in every case. The central theme in the rule is that after a case had been tried on the merits in the Court of first instance further evidence will not be lightly received on appeal except on special grounds – See the cases of Severino v. Witt & Busch (1912) 2 N.L.R.77; Ariran v. Adepoju (1961) All N.L.R.722; Dawodu v. Danmole (1962) 1 All N.L.R.702.
It ought to be appreciated that it is the appellant who is the applicant seeking to adduce further evidence on the appeal with a view to reversing the judgment against him. It is well settled that the judgment creditor is entitled to the fruits of his success and cannot be deprived of its enjoyment without good grounds. Furthermore, the maxim: interest reipublicae ut sit finis litium is a cardinal principle of our administration of justice. However, where the Court of Appeal is of opinion that the case has been decided on insufficient grounds it will exercise its discretion to allow further evidence – See Dawodu v. Danmole (supra).
I now turn to the remaining issues for determination. On the issue of the exercise of discretion by Counsel to defendants to rest the case of the defendants on that of the plaintiffs, Mr. Olanipekun submitted that the Court of Appeal was wrong to have regarded that as a special ground enabling them to exercise their discretion to admit evidence available at the trial. Counsel submitted that having not led evidence in support of pleadings the averments were deemed abandoned. It was submitted counsel had general authority to conduct the case of the respondent and was the counsel till judgment was delivered, and defendants were bound by his decisions – The cases of Mosheshe General Merchant Ltd. v. Nigeria Steel Products Ltd. (1987) 2 N.W.L.R. (Pt.55) 110 at p.121; Elike v. Nwankwoala & Ors. (1984) 12S.C.301; Usun v. Anwan 18 N.L.R. 144. The peculiar circumstances of this case is clearly disclosed from the fact that Counsel to the defendants who had the authority of the defendants at all times material to this case made a no case submission on the close of the case of the plaintiffs, relied on the case of the plaintiffs for that of the defendants and offered no evidence. It is well settled that in such a circumstance where the defendant has elected not to call evidence, he must be taken as admitting the facts of the case as stated by the plaintiffs and must stand on his submission and is bound. See Tandoh v. C.F.A.O. of Accra & Anor. (1944) 10 W.A.C.A. 186; Atugbue v. Chime (1963) 1 All N.L.R.208. Hence in this case the defendants shall be taken as having abandoned their defence. As was pointed by this Court in Elike v. Nwankwoala & Ors. (supra)”
Counsel conducting a civil case is, as a matter of law and civil procedure in complete control of his case. He is master in his own house. He knows the witnesses sufficiently for the case he is presenting to Court, the order of presenting and marshalling those witnesses for the proof of vital points in his case for effectiveness in support of his case.”
In their affidavits defendants averred that Counsel did not have their consent to make his submission of no case, and without putting them forward to give evidence or tender the judgments they relied upon for their defence whereas they were available and ready to give evidence. However, counsel was acting under the scope of his general authority as counsel and was entitled to conduct the case of his clients with reasonable professional competence and to the best of his ability.
In Adewunmi v. Plastex Ltd. (1986) 3 N.W.L.R. (Pt.32) 767, Eso, J.S.C. put it as follows, at p.784-
“Once a matter is within the ordinary authority of counsel, he does not need the client’s consent such is the authority of Counsel.”
Again at p.795, I said-
“I am of the master of the argument and of the case in court is one which cannot be limited by the client as long as the instruction to represent the client has not been withdrawn.”
There is no doubt on the evidence before the Court of Appeal that the judgment of the trial Judge was given after hearing on the merits, and the evidence subsequently sought to be adduced was on the averments in the affidavit of the respondents available at the trial. It was not evidence of matters which occurred after the date of the trial or hearing. The complaint was that counsel chose to exercise his discretion not to call any witness or tender any documents which were in his possession and were considered not only relevant but crucial to the case of the defence. The question is whether this is a “special ground” within the meaning of Order 1, r.20, for the exercise of discretion to admit further evidence.
It seems to me that the Court of Appeal after considering the circumstances, held the view that the error was that of counsel in the manner he conducted the case for the respondents and relying on Ibodo & Ors. v. Enarofia & Ors. (supra), held that it would be wrong to punish “helpless litigants” with the mistakes of counsel, and therefore admitted further evidence. This is clearly not a ground for the exercise of discretion within Order 1, r.20(3). The Court of Appeal was in error to have relied on this reason.
Ibodo & Ors. v. Enarofia & Ors. (supra) was a decision on Order 1, r.5, Rules of the Supreme Court, 1977, for non-compliance with Order 7, r.4(2), which was an application for extension of time to appeal. The applications here concerned the question of obtaining leave to appeal in respect of matters of mixed law and facts. Applicant filed many applications which were on each occasion subsequently withdrawn. The application in the instant case which is to adduce further evidence, has different conditions for granting the application which are entirely different.
It was held that “it is not right to visit the parties with punishment arising out of mistakes or inadvertence or negligence of counsel and that in such a case the discretion of the Court although always required to be exercised judicially … should be exercised with a leaning towards accommodating the parties’ interests without allowing procedural irregularities brought about by counsel to preclude the determination of a case on the merits (Alhamdu v. Salawu (1974) 1 All N.L.R. (Pt.11) 318, 324.)”
This dictum is clearly not applicable since the exercise of discretion of counsel in this case is not a procedural error, and the exercise of discretion did not preclude a determination of the case on the merits. The Court of Appeal was in error to have applied the principle in Ibodo v. Enarofia (supra) to the facts of the case.
The third issue relates to the application of the decision in Asaboro v. Aruwaji (supra). It seems to me that the Court did not intend the decision in Asaboro v. Aruwaji (supra), to be generally applicable. It was admitted (at p.144) that it would be a dangerous precedent to admit evidence for the first time on appeal, which could have been called at the trial, or to allow a person call further evidence on appeal because his evidence at the trial was insufficient. Finally, to admit evidence in such circumstance will be disastrous to the principle of ut sitfinis litium interest reipublicae. Thus, the view that failure to call evidence at the trial is not a necessary bar to grant leave to call further evidence is to be limited to the facts of that case. There was no dispute in Asaboro v. Aruwaji but the certified copies of returns obtained from the Registry of Companies sought to be put in evidence would disparage the evidence of 2nd Plaintiff. The only questions in issue were whether the evidence was available and could have been obtained with reasonable diligence at the trial. Again, whether the discretion can be exercised in favour of an applicant who did not call evidence at the trial. The Supreme Court answered both question in the affirmative.
In the instant case the defendant joined issues with the plaintiffs, but abandoned his pleading after his no case submission. He cannot at the same time approbate and reprobate or blow hot and cold.
In the result these were my reasons for allowing this appeal on the 6th March, 1989.
Exhibits CA1, CA2, CA3 which relate to KWS/21A/1976, KWS/10A/78; KWS/12A/74 are hereby expunged from the Records.
OPUTA, J.S.C.: This is an appeal against the Ruling of the Court of Appeal on a Motion brought by the present respondents under Order 1Rule 20(3) and (4) of the Court of Appeal Rules 1981. The prayer of the defendants/applicants in that motion was “for leave of this Honourable Court to call further evidence at the hearing of the appellants’/applicants’ appeal.”
The further evidence contemplated by the above motion turned out to be three judgments clearly pleaded by the defendants in Suit No.KWS/52179 which is now on appeal to the Court of Appeal, Kaduna Division. These judgments were not tendered during the trial in the High Court. As to what happened, I will here prefer to refer to the relevant paragraph of the affidavit filed by the defendants/respondents/applicants in the Court of Appeal in support of their motion for leave to call further evidence at the hearing of the appeal:-
“32. That on 10th February, 1981, Lawyer Adeyinka Adeoye in handling Suit No.KWS/52/79 told the Ilorin High Court that he will not call any witness at all, that he will be resting our case on the evidence produced by the Plaintiffs in Suit No. KWS/52/79 and finally, asked the Court for a date to address the Court.
33. That on the 10th February, 1981, Alhaji Yahaya Jaju and myself protested to Lawyer Adeyinka Adeoye after the Court that we would like to give evidence in the defence of Suit No.KWS/52/79, tender judgments already pleaded in our Statement of Defence and call four witnesses.
34. That the Ilorin High Court presided over by His Lordship Honourable Mr. Justice LA. Salami gave judgment in Suit No.KWS/52/79 in favour of the respondents (awarded Odo-Eleran land to the respondents) and awarded the sum of N500.00 general damages against Alhaji Yahaya Jaju and myself for trespass.” (The Italics mine to emphasise that no protest was made in Court.)
The plaintiffs in the original Suit No. KWS/52/79 and respondents to the Motion for leave to call further evidence filed a Counter-affidavit stating inter alia:
“7. That I was in Court on 10/2/81 when Mr. Adeyinka Adeoye intimated the lower Court that the defendants/applicants would neither call any witness nor tender any documents.
8. That before Mr. Adeyinka Adeoye informed the Court, he had a discussion with the first applicant/defendant.
9. That after Mr. Adeyinka informed the court as per paragraph 7 supra, neither of the defendants/applicants raised any objection to what he said on their behalf.
11. That after Mr. Adeyinka Adeoye’s announcement on behalf of the defendants/applicants on 10/2/81 the case was adjourned to 28/4/81 for counsel’s addresses.
12. That before 28/4/81, the Court on its own motion further adjourned the case to 5/5/81 for addresses.
13. That on 5/5/81 it was the defendant and their counsel alone that were present in Court and that their counsel addressed the court at length on their behalf.
14. That throughout the afore-mentioned dates, and periods I know as a matter of fact that the defendants/applicants did not complain about the announcement which Mr. Adeyinka Adeoye made on their behalf on 10/2/81”
The motion for leave to call fresh evidence on appeal was fully argued and vigorously agitated on 24/6/86. Ruling was reserved till 16/9/86.
On the 16th day of September, 1986, the Court of Appeal Coram Maidama, Akpata and Ogundere granted the application of the defendants to call further evidence and ordered that “the Judgments of the High Court, Ilorin, in KWS/21A/1976, KWS/10A/78, KWS/12A/74 and the Supreme Court Judgment in S.C.480/75 be admitted as new evidence and marked Exhibits CA1, CA2, CA3 and CA4 accordingly.”
The plaintiffs in the original action and respondents in the still pending appeal in the Court of Appeal have now appealed to this court against the above Ruling of the Court of Appeal dated 16th September, 1986. Their appeal on the preliminary issue of the admissibility of Exs. CA 1, CA2 and CA3 (CA4 was properly tendered by the plaintiffs in the trial court) came before us on 6/2/89. The appeal was unanimously allowed and the court ordered that Exs. CA1, CA2, and CA3 be expunged from the record of the Court of Appeal. We then reserved Reasons for Judgment to 5/5/89.
I have had, in the interval, the privilege of a preview in draft of the Lead Reasons for Judgment just delivered by my noble and learned brother, Craig, J.S.C. I am in full agreement with those Reasons. They accord with mine and I hereby adopt them as mine. But the way the Issues for Determination were framed does invite some extra comments in support of the Lead and the main Reasons for Judgment.
The first Question for Determination as formulated in the appellants’ Brief is as follows:-
“1. Whether the Court of Appeal has original jurisdiction to consider, adjudicate or pronounce on matters which were not considered at all by (or which were not brought before) the trial High Court.”
Issue No.1 above is too widely framed. In dealing with the motion for leave to adduce new evidence on appeal the court below was not exercising any original jurisdiction. That court did not “consider, adjudicate or pronounce on matters which were not considered at all by the trial High Court.” The pleadings of the parties including the present respondents’ Statement of defence, (where all the judgments admitted by the Court of Appeal as Exhs. CA1, CA2 and CA3, were mentioned) were before the trial High Court.
The only snag was that by the steps taken and the procedure adopted by Adeyinka Adeoye of counsel for the defendants in the trial Court, these Judgments were not tendered in evidence. It is thus an exaggeration to talk of “adjudicating or pronouncing on matters not considered at all by the trial High Court.”
On the issue of jurisdiction one has to observe that in addition to the appellate jurisdiction conferred on the Court of Appeal by Section 219 of the 1979 Constitution, Section 16 of the Court of Appeal Act No.43 of 1976 conferred on the Court:-
“……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…” Throughout the years, the jurisdiction of an appellate Court to admit fresh evidence on appeal had always been conceded. The difficulties that arise relate to when such jurisdiction ought to be exercised rather than to the existence of that jurisdiction. The jurisdiction (whether one calls it original or appellate is immaterial) certainly exists.
Now the exercise of a jurisdiction conferred on a court by a substantive Law is generally regulated by procedural Rules. In this respect provision has been made in the Court of Appeal Rules S.1 No.10 of 1981. Section 16 of Court of Appeal Act supra gave the Court of Appeal “General Powers.” Order 1 Rule 20 of the Court of Appeal Rules made provision for the exercise of those “General Powers.” Dealing with “Further Evidence on Appeal” Order 1 Rule 20(3), provides:-
“The Court shall have power to receive further evidence on questions of facts but, in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits no further evidence (other than evidence as to matters which have occurred after that date of the trial or hearing) shall be admitted except on special grounds” (the italics mine for special emphasis).
The motion that gave rise to this appeal was clearly and specifically “brought under Order 1, Rule 20(3), (4) Court of Appeal Rules 1981.” The applicants indicated that on their motion paper.
According to their own Rules as set out above and as relied upon by the present respondents in this court, and applicants in the Court of Appeal, for an application for leave to call further evidence on appeal to succeed, the applicant will have to satisfy the Court of Appeal:-
“i. That the judgment appealed against was not “a judgment after trial or hearing on the merits.” Or
ii. That the evidence now sought to be tendered in the Court of Appeal is “evidence as to matters which have occurred after the date of the trial or hearing.” Or
iii. That there are special grounds.
Order 1, Rule 20(3), postulates that where there has been a trial or hearing on the merits no further fresh evidence shall be received on appeal except on special grounds. The only exception to the above general rule is “evidence as to matters which have occurred after the date of the trial or hearing” where there will be no need to show “Special Ground.” In this case now on appeal the plaintiffs’ action claiming N10,000.00 damages for trespass and injunction against further trespass was tried on the merits. The parties filed their pleadings, examined and cross-examined witnesses and finally delivered their filial addresses to the Ilorin High Court at the close of the case. The fact that learned counsel for the defendants in the High Court chose to rest his case on the case of the plaintiffs does not derogate from the status of this trial as trial or hearing on the merits. If that is so (as indeed it is) then the Court below will be acting in accordance with its Rules (Order 1 Rule 20(3) if, and only if, “special grounds” were shown. Also Judgments Exs. CA1, CA2 and CA3 were pleaded by the defendants. They, therefore, did not come into existence “after the date of trial or hearing.”
Now all the eggs of the respondents are in one basket – the basket of “special grounds.” What were the special grounds on which the Court of Appeal relied” In his lead Ruling, Ogundere, J.C.A. noted:-
“In this case, the Court of Appeal, Order 1, Rule 20(3), requires “Special grounds”, which in my view, includes grounds of furtherance of justice. It would tantamount to injustice if a decision of a superior Court, in particular, the Supreme Court, which would have helped the lower Court to decide the matter one way or the other, once pleaded, were not admitted in the Court of Appeal.”
It is obvious from this Ruling, that Ogundere, J.C.A. relied solely on what he called the “furtherance of justice” as the “special ground” for granting the application to adduce fresh evidence on appeal. I agree that the aim of all adjudications in our courts should be the attainment or furtherance of justice. This however should not be an abstract justice, nor should it be subjective justice. Rather it should be fair and even handed justice, justice according to law.
Whenever anything is said to have been done “in furtherance of justice” one gets easily taken in. That however should not be the case, until one is quite clear and quite sure of what exactly that expression comprehends and/or means. For unless and until what is meant is clear such expressions like “furtherance of justice” or “interest of justice” may cover a “multitude of sins.” Expressions like “furtherance of justice” or “interest of justice” may in the end be a covering for injustice. What is it that will amount to the furtherance of justice in this case Is it only the furtherance of the interest of defendants/applicants to the motion for leave to adduce fresh evidence Certainly the “furtherance of justice” will also include protecting the interests of the plaintiffs who won in the trial court. This court made that quite clear in Nigerian Ports Authority v. Construzioni Generali Farsura Gogefar Spa & Anor. (1974) 12 S.C.81. Also a decision given without due regard to all our decided cases in point; given against all known principles can hardly be said to have been given in “furtherance of justice”
I will here repeat what 1 said on the same issue in Willoughby v. international Merchant Bank (Mg.) Ltd. (1987) 1 N.W.L.R. (Pt.48) 10) at 131, para. H:
“…The Courts’ primary function is to do justice between the parties to a dispute. One sided justice will amount to injustice. The law is made to ensure justice. Rules of Court are hand maids of justice. It is only by the Orderly administration of law and obedience to the rules that legal justice can be attained. When a particular decision is against all known rules; against all known principles, then it is certainly, not made in the interest of justice.”
Furtherance of justice in proceedings before our courts will also presuppose obedience to decisions of our various courts. It is an invariable rule of all courts and one founded on reason, common sense, fair play, and equal treatment of the contestants, and thus on justice, that if evidence which either was in possession of parties at the time of trial or which by proper diligence might have been obtained is either not produced or has not been procured and the case is decided adversely to the side to which the evidence was or could have been available; that side will not so easily be given the extra indulgence of being allowed, on appeal, to adduce or produce such evidence, as new or fresh evidence. Such fresh evidence, on appeal, ought normally to be confined to matters arising ex improviso which no human ingenuity could have foreseen. Order 1, Rule 20(3), Court of Appeal Rules, 1981, reflected this when it excepted from the general rules against fresh evidence on appeal “evidence on matters which occurred after the date of the trial or hearing.” The same rules apply to Civil and Criminal Cases on this issue. In R. v. Dora Harris (1927) 28 C.R. App. R 386 at p.436, Avory, J., held that it is better to abide by the general rule which excludes fresh evidence on appeal and added:
“In these circumstances, we are of the opinion that in this particular case (calling of fresh evidence) was irregular and calculated to do injury to the Appellant, Harris.”
In the case on appeal it is my view that allowing the defendants to call fresh evidence on appeal is a step that will definitely do injury not only to the plaintiffs/appellants but violence to our long line of decisions on this branch of the law, viz:-
1. Severino v. Witt & Busch (1912) 2 N.L.R. 77.
2. R. v. Dora Harris (1927) 28 Cox C.C. 432.
3. S.G. Ariran v. R. Adepoju (1961) All N.L.R. 722.
4. Board of Inland Revenue v. Joseph Rezcallah & Sons Ltd. (1962) 1 All N.L.R. (Part 1) 1.
5. Dawodu & Ors. v. Danmole & Ors. (1962) 1 All NLR (P.C.) 702.
6. F. I. Enekebe v C. Enekebe (1964) N.M.L.R. 42.
7. L. Atswaga v. G. Agina (1964) N.N .L.R. 122.
8. R. v. Alexander Campbell Mason (1923) 17 CR. App.R. 160.
9. R. v. Walter Graham Rowland (1947) 32 CR.App.R.29.
10. R. v. M. U. Oton (1947) 12 W.A.C.A. 212
11. A.G. of the Federation v. Mallam Modu Alkali (1972) 12 S.C.29.
12. Comforl Asaboro v. N.G.D. Aruwaji & Anor. (1974) 1 All N.L.R. (Pt.1) 140.
13. Ukariwo Obasi & Anor. v. Eke Onwuka & Ors. (1987) 3 N.W.L.R. (Pt.61) 364.
14. H. A. Willoughby v. I.M.B. Ltd. (1987) 1 N.W.L.R. (Pt.48) 105.
The question now is – Is it really in “furtherance of justice” to fly in the face of all these decisions and thus cause confusion in the law My answer will be Stare decisis et quieta non movere. It will certainly be in furtherance of consistency in our laws (and therefore of justice) to stand by our previous decisions on this aspect of the law. Most of the decisions I set out above are Supreme Court decisions binding on the Court of Appeal. Justices of that court are by the theory of precedent precluded from changing what has been determined. In other words they are expected to, and they should, keep the scales of justice even and steady and not liable to waiver with every Judge’s or Justices’ (of the Court of Appeal) opinion. All those decisions were taken “in furtherance of justice.” And therefore following them will also be in furtherance of justice. A.G. v. Alkali (supra) was on all fours with the facts of the present case. This court in Alkali’s case held that since “the Agreement was pleaded” it did not constitute an exceptional circumstance or special ground to warrant its production as fresh evidence on appeal.
In his own concurring Reasons for Ruling, Akpata, J.C.A., at p.53 of the record remarked:
“The case of Asaboro v. Aruwaji and Anor. (1974) 1 All N.L.R. 140 at p.146 cited by learned counsel for the Appellant is an authority for holding that in special circumstances, in the interest of justice, fresh evidence which was available at the time of the trial or hearing but not adduced at the trial court may be received in the Appeal Court. This is one of such special cases. The application therefore succeeds. It is granted.”
Following on the above, learned counsel for the plaintiffs/appellants formulated his Issues No.3 and No.4, namely:-
(i) Whether the Supreme Court’s decision in Asaboro v. Aruwaji & Anor. (1974) 1 All N.L.R.140 has opened the flood-gate for the admissibility of fresh or further evidence on appeal. Alternatively,
(iv) Whether Asaboro’s case supra is distinguishable from this case.
The use now being made by Justices of the Court of Appeal of the decision of this Court in Asaboro’s case (supra) fortifies the point which this Court has made in several of its recent decisions, namely, that pronouncements of this Court should not be read out of their proper con and without reference to the peculiar facts which framed the issues for decision. In Asaboro’s case, the documents sought to be tendered on appeal existed alright but they were not made available to the applicant for use by the Registrar of Companies. The affidavit of the applicant in that case contained two relevant and significant paragraphs:-
“13. That I personally travelled to Lagos to make personal search at the Companies Registry on several occasions during the period December to June, 1972 but access to the Registry was not allowed to the public ….
14. That with the closure of the Companies Registry to the public, the defendant was not in a position at the hearing of the case in the High Court on 8th March, 1972 to prove with the aid of material particulars the allegation of the 2nd plaintiff’s connection with Thomas Associates Limited.”
Now where a party to a court proceeding has taken all diligent and reasonable steps to secure a document or evidence whose production will have an important effect on the whole case but failed because of the act of a third party (here the Registrar of Companies) over whom he has no control, there justice will demand that he be allowed to produce such document or evidence on appeal. The decision in Asaboro is therefore not in conflict with the principles to be distilled from all the decisions on this subject where leave to adduce fresh evidence was refused namely:
(i) That the new evidence was available during the hearing, or
(ii) That with reasonable diligence it could have been procured.
It is therefore not correct to say that Asaboro supra opened a flood gate.
It did not. The difference between Asaboro and the case in hand is that here, the defendants had the judgments Exs. CA1, CA2 and CA3. They pleaded all these Judgments. Their failure to tender them was due to the fact that their counsel relied on the case of the plaintiffs, called no evidence for the defendants, and addressed the court. Counsel is perfectly in order to adopt this kind of procedure. And that has nothing to do with the “furtherance of justice” being hampered, stunted or stultified. Had the defendants won by the strategy adopted by their counsel, would they now complain Obviously, no. Their counsel gambled. We do not even know, we cannot even tell whether he lost in the gamble, for the case has not gone through the Court of Appeal and the Supreme Court.
This naturally leads on to a consideration of Issue No.2 as formulated in the Appellants’ Brief:-
“(ii) Whether the exercise of counsel’s discretion not to call any evidence at the trial court amounted to a special ground warranting the grant of an application to adduce fresh or further evidence on appeal.
The ethics and practice of the profession demands that counsel is given complete control over how to conduct the case he is instructed to prosecute by his client. If he is not given this control he is entitled to refuse the brief. But when a client observes that his counsel is not carrying out his instruction, he is perfectly free and justified to withdraw his instructions, during the course of the proceedings. At the trial of an action counsel’s general authority will extend to whether or not witnesses ought to be called; whether or not to examine or cross-examine witnesses; whether to agree on a compromise or settlement etc. In any matter within counsel’s general authority his client will not be heard to say that he did not understand what his lawyer was doing. In this case, the Court of Appeal was obviously in sympathy with the defendants/applicants’ affidavits. That may well be. But that sympathy will not supplant nor displace counsel’s authority and general control over the conduct of the trial. That sympathy will no doubt disappear when it is remembered that after resting his case, Mr. Adeyinka Adeoye attended court twice with these very defendants and addressed !he trial Judge fully without any protest from the defendants. I will here repeat what I said in Willoughby H v. I.M.B. Ltd (supra) at p.132:-
“Justice will definitely fare better without the bandage of prejudice or sympathy around her eyes. Decisions based on sympathy alone are but quicksands in the law, and if indulged in, will soon swallow up every principle laid down by, and in, previous Judgments of this Court.”
The responsibility of counsel in the conduct of the case in which he is briefed has of late been very closely examined by this Court. In Nwafor Elike v. Ihemereme Nwankwoala & Ors. (1984) 12 S.C.301, learned Counsel for the defendants after calling the 5th defendant abruptly closed his case and even refused to address the court when called upon for final addresses.
On appeal to the Court of Appeal it was alleged that the defendants were not given a fair hearing. The Court of Appeal was in sympathy with this view and allowed the appeal. On further appeal to this Court by the plaintiffs the Judgment of the trial court was restored. In the lead judgment, Aniagolu, J.S.C. at p.310 commented as follows:-
“Be it noted that when the defence counsel closed his case….the defendants did not appeal to the Judge…. They did not repudiate the action of their counsel. There was no complaint whatsoever from them to the Judge about the conduct of their counsel in closing their case. Ex facie everything appeared to be normal.”
The above picture painted by Aniagolu, J.S.C. is a facsimile copy of what happened in this case. Counsel is responsible for the conduct of his own side of the case for good or evil. In the same case I observed at p.340:-
“In a civil case the defence is perfectly entitled to rely on the case of the plaintiff, offer no evidence, and close its case. There is nothing new or irregular in this.”
Coming to Issue No.4 if there is nothing new or irregular in what learned counsel Mr. Adeyinka Adeoye did in the Ilorin High Court in closing his case and in calling no evidence, it follows that, that conduct cannot constitute “a special ground” warranting the grant of defendants’ application to call fresh evidence, (evidence that was pleaded and was available during the hearing in the High Court) on appeal to the Court of Appeal.
In Mosheshe General Merchant Ltd. v. Nigeria Steel Products Ltd. (1987) 2 N .W.L.R. (Pt.55) 110, this Court held, inter alia, that counsel rewined to conduct a case has general authority to decide, in his discretion, on how to conduct his case subject to this – that the client can repudiate his counsel and withdraw his brief from him if the client does not approve of the way his counsel is conducting the case. What is open to a client who was not satisfied with his lawyer’s handling of his case in the trial court is not an application to an appeal court to adduce the evidence his counsel did not adduce during the trial, but an action against his counsel for professional negligence. Eso, J.S.C. put the matter succinctly thus at p.121:-
“A counsel who has been briefed and has accepted the brief and also has indicated to the Court that he has instructions to conduct a case has full control of the case. He is to conduct the case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to judgment. Sometimes, he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the court. The only thing open to the client is to withdraw instructions from the counsel or if the counsel was negligent to sue in tort for professional negligence. Such are the powers but such are also the risks”
Eso, J.S.C. did not consider that allowing a disgruntled client leave to call on appeal evidence which his counsel had available to him but failed to call will be “in furtherance of justice.” I do not think so either. My answer to Issue No.2 is that the exercise by counsel of his undoubted discretion of how to conduct his case can never be “a special ground” for allowing an application by a disgruntled defendant who lost in the trial court to adduce fresh evidence on appeal.
In the final result, it was for all the reasons given above and also for the fuller reasons in the lead Reasons for Judgment just delivered by my noble and learned brother, Craig, J.S.C., which I now adopt as mine, that I, on the 6/2/89, allowed this appeal with N500.00 costs to the plaintiffs/appellants.
Appeal allowed.
Appearances
Wale Olanipekun, Esq. For Appellant
AND
Omodara For Respondent