BRITISH AIRWAYS PLC v. MICHEAL CHUKWUEMEKA AMADI (2011)

BRITISH AIRWAYS PLC v. MICHEAL CHUKWUEMEKA AMADI

(2011)LCN/4399(CA)

In The Court of Appeal of Nigeria

On Thursday, the 24th day of March, 2011

CA/A/209/07 (R)

RATIO

ISSUE OF JURISDICTION: WHEN CAN THE ISSUE OF JURISDICTION BE RAISED

It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal. The question of jurisdiction is a crucial issue of competence. This is because if a court has no jurisdiction to hear and determine a case. The entire proceedings however well conducted amounts to a nullity. See: Abinitio Nnonye v. Anyichie (2005) NWLR (Pt.910) 623 SC; Messrs N.V Scheep v. The M.V “S Araz” (2000) 12 SC (Pt.1) 164; Jerric Nig. Ltd. v. UBA Plc (2000) 12 SC (Pt.11) 133. PER REGINA OBIAGBLI NWODO, J.C.A.

LEAVE OF COURT: WHETHER THE LEAVE OF THE APPELLATE COURT MUST BE OBTAINED BEFORE A PARTY CAN RAISE THE ISSUE OF JURISDICTION

This court in a catalogue of cases have held that a party can raise the issue of jurisdiction without first obtaining the leave of the appellate court. See SPDC Nigeria Ltd v. Adamkue (2003) 11 NWLR (pt.832) CA 533; Lhiloein v. Adenican (2007) 6 NWLR (Pt.1031) 498 CA. In some other cases the court has ruled that a party must seek leave before he can raise the issue of jurisdiction at the Court of Appeal for the first time. See: International Offshore Construction Ltd. v. Shoreline Lifeboats Nigeria Limited (2003) 16 NWLR (Pt.845) CA 157. It is the practice that when the judgment of the appellate Court is in conflict on an issue of procedure a party can chose the latter decision. There is no specific provision in the rules of this court stipulating that leave must be sought and obtained before raising issue of jurisdiction for the first time on appeal. The appellate courts attitude generally is to allow issue of jurisdiction once raised bone fide for the first time to subsist without leave of court. What is fundamental is that the question of jurisdiction raised on appeal is on notice to the respondent. It is an issue that touches the nerve centre of adjudication that is the pipeline of a case. See Daplanlong v. Dariye (2007) 8 NWLR (Pt.1036) 332 SC. Therefore whether leave is sought or not a party should be allowed to raise the issue of jurisdiction for first time on appeal. Though it is prudent to raise the issue of jurisdiction timeously and not wait till after judgment, thereby stalling the successful party from enjoying the fruit of his judgment. Nevertheless, the settled law is that issue of jurisdiction can be raised at any time even on appeal. It is therefore not a rigid rule that leave of this court be obtained first before raising the issue in the Notice of Appeal. PER REGINA OBIAGBLI NWODO, J.C.A.

ADDITIONAL EVIDENCE: PRINCIPLES THAT WILL BE TAKEN INTO CONSIDERATION IN DECIDING WHETHER TO GRANT LEAVE TO CALL FURTHER EVIDENCE OR NOT

INADVERTENCE OF COUNSEL: WHETHER THE DECISION OF A COUNSEL NOT TO CALL A PARTICULAR EVIDENCE IS A MISTAKE

It is true that the courts will not punish a litigant for the mistake or inadvertence of his counsel in procedural matters but when a counsel that has been briefed to conduct a case and he decides on which evidence he considers as important to call, that decision is not an inadvertence or a mistake, it is an exercise of a legal right. He has full control of the case and to conduct it properly. The authority is no longer limited by litigant once instructions have been given. A counsels’ first reaction when briefed in a matter in court is to read the facts and at that stage the competence of the court must play a predominate role in his mind as regards the brief. This is the attribute of a diligent counsel. Craig JSC in Akanbi v. Alao (Supra) had this to say on the authority of a counsel. “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 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 reipublicae ut sit finis litum.” The explanation that counsel handling the matter did not avert his mind cannot be a ground described as special or exceptional to allow further evidence. The counsel’s inadvertence is not related to procedural law but on legal strategy and this will not sway the court. The inadvertence of counsel in the circumstance is not a special ground. See Akanbi v. Alao (1989) 3 NWLR (Pt.108) Pg 118 S.C. PER REGINA OBIAGBLI NWODO, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

BRITISH AIRWAYS PLC Appellant(s)

AND

MICHEAL CHUKWUEMEKA AMADI Respondent(s)

REGINA OBIAGBLI NWODO, J.C.A.(Delivering the Lead Ruling): The Appellant Applicant by motion on Notice filed on 15/05/09 prayed for the following reliefs:
1. AN ORDER granting leave to the Appellant/Applicant to raise and canvass the issue of jurisdiction for the first time before this Honourable Court.
2. AN ORDER deeming Ground 1 of the Appellant/Applicant’s Notice of Appeal dated July 16, 2007 as having properly raised the issue of jurisdiction before this Honorable Court for the first time.
3. AN ORDER granting leave to the appellant/applicant to amend its Notice of Appeal dated July 16, 2007 by deleting Ground 5 thereof and by amending Grounds I and 6 in the manner contained in the proposed Amended Notice of Appeal annexed to the affidavit in support of this motion on notice as exhibit EU2
4. AN ORDER granting leave to the appellant/applicant to adduce fresh evidence by oral examination or affidavit for the purpose of tendering documentary evidence in respect of its ground of appeal challenging the international territorial jurisdiction of the Federal High Court of Nigeria to have heard the suit that has led to this appeal
5. AN ORDER granting leave to appellant/applicant leave to amend its Statement of Defence by inserting the emboldened and underlined portions contained in the Proposed Amended Statement of Defence annexed to the affidavit in support of this motion and marked exhibit EU3 for the purpose of pleading documentary evidence mention in prayer 4.
6. AN ORDER deeming the Proposed Amended statement of Defence annexed herewith as exhibit EU3 as duly filed and served, filing fees having been paid
7. SUCH FURTHER orders as this Honourable Court may deem fit to grant in the circumstances.
In support of the application is an affidavit of twenty five (25) paragraphs deposed to by Elizabeth Ukoh a legal practitioner. Exhibited to the affidavit are Exhibit EU1, the Notice of Appeal Exhibit EU2, the proposed Amended Notice of Appeal and the proposed amended statement of defence. There is also an affidavit titled further and better affidavit exhibiting Exhibit JOI and the Memorandum and Article of Association. On the directive of this Court on the 23rd of March 2010 to file written arguments in respect of the application, the learned counsel filed and exchanged written addresses. At the hearing of the motion on Notice on 08/02/2011, learned counsel to the appellant/applicant Mr. J.M.M Majiyagbe adopted the applicant’s written address filed on the 31/03/2010 and reply on points of law filed on 06/07/10. The learned counsel to the respondents adopted the respondent’s written address filed on 14/04/2010.
The learned counsel for the appellant/applicant Mr. Majiyagbe in his written address argued that based on the decision in SPDC v. Adamkue (2003) 11 NWLR (pt.832) CA 533 where the Court of Appeal held that leave need not be sought to raise the issue of jurisdiction at the court of appeal for the first time, the applicant can arguably proceed to argue the point of jurisdiction without leave. It is his contention that since there is a decision of the same court of Appeal in International Offshore Construction Limited v. Shoreline Lifeboats Nigeria Limited (2003) 16 NWLR (Pt.845) CA 157 which held an applicant is required to seek leave before raising the issue of jurisdiction they have sought leave for the avoidance of doubt.
It is his submission that the appellant’s prayer ought to be granted because they deal with the fundamental issue of jurisdiction. He cited:
Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) Pg 463 SC. it is his further contention that assuming without conceding that it was wrong for the appellant to raise the issue without seeking leave as it has done, the fundamental nature of the issue provides a strong argument for the deeming prayer to be granted. In respect of prayer 4 which is seeking leave to adduce fresh evidence, learned counsel referred to order 4 rule 2 of the Court of Appeal Rules 2007. He contends that the Supreme Court has held that a party should be allowed to adduce fresh evidence if it will in fact support a jurisdictional challenge. He however did not cite that Supreme Court decision. Learned counsel referred to Gazu v. Nyam (1998) 2 NWLR (Pt.538 CA 477 where the court listed 3 conditions which must be satisfied before the Court of Appeal will allow fresh evidence at the stage of appeal. It is his submission that the applicants’ failure to tender the company document at the court below need not affect the application if two condition sets out in the case of Gazu v. Nyam (Supra) are satisfied. He cited: Nwanizie v. Idris (1993) 3 NWLR (Pt. 279) SC 1. Learned counsel relying on the decisions in Nwanezie v. Idris (Supra) and Gazu v. Nyam (Supra) submitted that seeking to adduce fresh evidence at the Court of Appeal despite the fact that the same evidence is available at trial can be granted in circumstances where jurisdiction is being challenged and the fresh evidence decisive.
It is his contention that the fresh evidence it seeks to adduce will assist the court in its eventual deliberation, in view of the criteria set out under Article 28 of the Warsaw convention on international jurisdiction.
Learned counsel submits that the company document they seek to adduce will prove that it’s headquarter and the place it does real business is in the United Kingdom. He argued that the appellant also wishes to adduce evidence to show that its directors are resident in and conduct their meetings in the United Kingdom not Nigeria. He contends that all the fresh evidence will raise prima facia case on the propriety of the court below assuming jurisdiction over the matter.
It is his further contention that where leave is granted to adduce fresh evidence at the Court of Appeal, such evidence will not be admitted unless the applicant has amended his pleadings in support of the same. He cited: Yusuf v. Union Bank of Nigeria limited (1996) 6 NWLR (Pt.457 SC 632 Adeleke v. Asesifa (1990) 3 NWLR (pt. 136) SC 94.
It is learned counsel’s further submission that if court grants the prayer for fresh evidence to be adduced, the prayer for amendment of statement of Defence ought to be granted. He referred to order 4(1) of the Court of Appeal Rules 2007 . Learned counsel further contended that the appellant seeks to amend the Notice of Appeal not by adducing fresh ground of Appeal but by adding further particulars and certain phrases that will clarify the grounds of Appeal already before the court. He cited: First Bank of Nigeria Plc. v. Medicals Clinics (2001) 9 NWLR (Pt.717) SC 28 at Pg.44.
Learned counsel for the respondent Akin Akintan in his written address opposed prayers 4 to 6 on the motion on Notice. He stated that they elected not to file a counter affidavit. He formulated a sole issue for determination, which is whether the appellant/applicant has furnished adequate extenuating circumstances to warrant a grant of prayers 4 to 6 of the application.
Learned counsel submits that it is firmly settled that a court of law will not ordinarily allow a party on appeal to raise a question which was not raised in the trial court or readily grant leave to a party to argue new grounds not canvassed in the lower court, he cited: Fadiora y. Gbadebo (1978) 3 SC 219. Oredoyin v. Arowolo (1989) 4 NWLR (Pt. 114) 172 at 211; I.M.N v. Peeofor Ind. Ltd (2005) 15 NWLR (Pt. 947) 1 at 19; Babalola v. Sunday (2009) 3NWLR (Pt.1128) 414 at 449.
He referred to the provision under order 4 Rule 2 of the Court of Appeal Rules 2007. He contends that a careful look at the affidavit in support of the application and Exh EU3 reveals that the amendment and further evidence on appeal being sought is to tender evidence to show that the contract was entered outside Nigeria and that appellant does not have its principle place of business in this country. He contends that these are facts which occurred prior to the commencement of the suit and not after the date of trial and the application ought to be dismissed. He cited: Okoro v. Eebuoh (2006) 15 NWLR (Pt.1001) 1 at 22 – 23.
Learned counsel referred to paragraph 18 of the affidavit where Appellant/applicant averred that the reason for bringing the application belatedly is because counsel that handled the case at the trial court did not avert his mind to the issue at the lower court. It is his submission that a decision or omission by counsel not to call a particular piece of evidence is a distinct exercise of legal right and never a mistake. He cited: Mobil Prod (Nig) United v. Monokpo (2003) 18 NWLR (Pt.852) 346 at 406; Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118. Peterside v. I.M.B (Nig) Ltd. (1993) 2 NWLR (pt. 278) 712; The Vessel M. V. Lupex (1993) 2 NWLR (Pt. 284) 670 at 685 and UBA Plc v. B.T.L Ltd. (2005) 10 NWLR (Pt. 933) 356 at 371.
On the reasonableness of refusing an application such as the one at hand. He distinguished the case of Nwanezie v. Idris (Supra) and Gazu Nyam (Supra) cited by the appellant/applicants counsel.
The applicant seeks leave of court to raise and canvass issue of jurisdiction for the first time before this court. It is trite law that the issue of jurisdiction can be raised at any time by a party even on appeal. The question of jurisdiction is a crucial issue of competence. This is because if a court has no jurisdiction to hear and determine a case. The entire proceedings however well conducted amounts to a nullity.
See: Abinitio Nnonye v. Anyichie (2005) NWLR (Pt.910) 623 SC; Messrs N.V Scheep v. The M.V “S Araz” (2000) 12 SC (Pt.1) 164; Jerric Nig. Ltd. v. UBA Plc (2000) 12 SC (Pt.11) 133
This court in a catalogue of cases have held that a party can raise the issue of jurisdiction without first obtaining the leave of the appellate court. See SPDC Nigeria Ltd v. Adamkue (2003) 11 NWLR (pt.832) CA 533; Lhiloein v. Adenican (2007) 6 NWLR (Pt.1031) 498 CA.
In some other cases the court has ruled that a party must seek leave before he can raise the issue of jurisdiction at the Court of Appeal for the first time. See: International Offshore Construction Ltd. v. Shoreline Lifeboats Nigeria Limited (2003) 16 NWLR (Pt.845) CA 157.
It is the practice that when the judgment of the appellate Court is in conflict on an issue of procedure a party can chose the latter decision. There is no specific provision in the rules of this court stipulating that leave must be sought and obtained before raising issue of jurisdiction for the first time on appeal. The appellate courts attitude generally is to allow issue of jurisdiction once raised bone fide for the first time to subsist without leave of court. What is fundamental is that the question of jurisdiction raised on appeal is on notice to the respondent. It is an issue that touches the nerve centre of adjudication that is the pipeline of a case. See Daplanlong v. Dariye (2007) 8 NWLR (Pt.1036) 332 SC.
Therefore whether leave is sought or not a party should be allowed to raise the issue of jurisdiction for first time on appeal. Though it is prudent to raise the issue of jurisdiction timeously and not wait till after judgment, thereby stalling the successful party from enjoying the fruit of his judgment. Nevertheless, the settled law is that issue of jurisdiction can be raised at any time even on appeal. It is therefore not a rigid rule that leave of this court be obtained first before raising the issue in the Notice of Appeal. Consequently, I do find the application surplusage, but then the respondent had no objection to the prayer for leave to raise issue of jurisdiction nor to deem ground 1 as having properly raised the issue of jurisdiction. These two prayers are harmless and should be allowed.
Under prayer 3, the appellant/applicant seeks leave of court to amend its Notice of Appeal by deleting ground 5 and amending ground 1 and 6. The amendment sought from its nature will not prejudice nor overreach the respondents and the respondents have not raised objection to the grant of same. The area of dispute is whether this court should allow the appellant adduce fresh evidence by oral examination or by affidavit for the purpose of tendering documentary evidence in respect of ground one challenging jurisdiction. The Court of Appeal has the powers to receive further evidence under order 4 rule 2 of the Court of Appeal rules 2007. I reproduce the aforesaid provision for purpose of emphasis.
“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 farther 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.” This provision is clear and unequivocal and in construction should be ascribed its ordinary and grammatical meaning. Under the aforesaid provision as set out above and relied upon by the applicant, for an application for leave to call further evidence on appeal to succeed the applicant will have to satisfy this Court.
i. That the further evidence sought to be admitted occurred after the date of trial or hearing.
ii. That special grounds exist on which court will exercise its jurisdiction.
The purport of order 4 rule 2 of the rules of this court is that where there has been trial on the merit and judgment delivered, no fresh evidence shall be received. The exception to the general rule is where evidence as to the matters occurred after the date of trial or judgment or where special ground exists. The application to lead further evidence at stage of appeal is generally out of the normal stream in the judicial process. This is because under the adjectival law, parties should present their cases at the stage of trial and canvass same for determination by the trial judge which jurisdiction is to hear oral evidence of the parties who ventilate their disputes in the pleadings.

In Nwanezie v. Idris (1993) 3 NWLR (Pt.279 SC 1 Karibi – Whyte JSC at Pg 13 Paragraph D-F said:
“A party is expected to adduce all the evidence he relies upon for case at the trial. Our Courts have always been reluctant to grant leave to adduce new evidence or further or additional evidence on appeal. See Obasi v. Onwuka (1957) 3 N.W.L.R. (Pt61) 364; Akanbi v. Alao (1989) 3 N. W.L.R. (Pt.108) 118, Severino v. Witt & Busch (1911) 2 N.L.R. 77, G. Gottschalck & Co. v. Elder Dempster & Co. Ltd. (1917)3 NLR. 16. There are sound juridical reasons underlying this reluctance. The basic principle is that a person in whose favour a matter is decided is entitled to the benefit of the judgment and is entitled not to be deprived of the benefit without solid and incontrovertible grounds. Again, the proper caution of the decision appealed against should be based on the facts on which the case was decided. The introduction of new or further or additional evidence is likely to alter the basis for the decision; and seeks to reopen the decision appealed against on the new or further evidence sought to be adduced. See Edie Maud Leeder v. Nancy Ellis (1953) A.C. 52.”
The general practice is that the appellate court regiments himself to the record of Appeal as the trial court is assigned with the responsibility to watch the demeanour of the witnesses in the witness box and not the appellate Court. It is because of this general role of the trial court to hear evidence that the appellate courts are reluctant to grant applications to hear further evidence on appeal except in very compelling circumstances.
Thus the central theme under order 4 is that once a case has been tried on the merits in the court of first instance, further evidence will not likely be received except on special grounds. I must say that the exception is rooted in the quest for furtherance of justice. See Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118 at 159 Oputa JSC.
The power conferred on this court under order 4 calls for the exercise of the courts discretion which must be exercised judiciously. Being a discretionary power each case is determined in line with the facts peculiar to the case. The courts in an effort to exercise their discretion judicially and judiciously have set down certain principles to guide the appellate court in deciding whether to grant leave to call further evidence or not. The principles were enunciated in the case of Asaboro v. Aruwaji (1974) 1 All NCR 140 SC per Coker JSC where his lordship set out the principles to consider when further evidence on appeal is sought. They are as follows:
i. The evidence sought to be adduced must be such that could not have been with reasonable diligence obtained for use at the trial.
ii. The evidence should be such that if admitted would have an important, not necessary crucial effect on the whole case, and,
iii. The evidence must be such that is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible – see U.B.A. – Plc v. BTL Ind. Ltd. (2005) 10 NWLR (Pt.933) 356 at 370 – 371.
See: Ehinlanwo v. Oke (2008) 16 NWLR (Pt.1113) SC 357.
These guiding principles have turned out to be mandatory in nature as the 3 conditions which the courts have always taken into consideration in the judicious exercise of powers to grant leave to adduce new evidence must coexist before a court will consider granting the application to call fresh evidence. The court must adhere strictly to these conditions. The question is whether the appellant/applicant in the instant application has satisfied the conditions to earn the discretion of this court in his favour. I have carefully scrutinized the affidavit in support of the application and the further affidavit. I refer and reproduce some of the relevant paragraphs in the affidavit in support for emphasis, thus:
10. That the Appellant/Applicant is contesting the jurisdiction of the Federal High Court to have entertained the suit being appealed against herein.
11. That jurisdiction to entertain the carriage by air suit that led to this appeal could only be derived from the Warsaw Convention, 1929.
12. That the Federal High Court was wrong to assume international territorial jurisdiction over the suit.
13. That the parties did not enter the contract of carriage by air in Nigeria and the Respondent’s destination was London, United Kingdom.
14. That the Appellant is neither ordinarily resident in Nigeria nor does it have its principal place of business here.
15. That the evidence in support of the content of paragraph 13 is on record already.
16. That the Appellant needs to lead further evidence to prove that the Appellant is not ordinarily resident in Nigeria and it does not have its principal place of business here-
17. That the Appellant’s Certificate of Incorporation and its Memorandum an Articles of Association will show that in law, it is neither ordinarily resident in Nigeria nor does it have its principal place of business here.
18. That the lawyer from our office that handled the matter at the lower court did not avert his mind to the issue of international territorial jurisdiction and so failed to raise same at the lower Court.
19. That the issue of jurisdiction must be investigated thoroughly.
20. That the jurisdiction issue can only be investigated and properly considered if the Appellant is allowed to lead further evidence about its residence an principal place of business as aforesaid.
21. That our intention is to call one or two witnesses to tender the Memorandum and Articles of Association of the Appellant and its certificate of Incorporation.
It is from the above deposition that one can ascertain if applicant has satisfied the condition. The evidence sought to be adduced as averred in paragraph 4 is the certified true copies of the applicant’s Memorandum and Articles of Association and Certificate of Incorporation. From the affidavit evidence the appellant/applicant did not aver to any fact that this evidence could not have been obtained with care and diligence for use at the trial nor that the documents were not available at trial.
See: Asaboro v. Aruwaji (1974) 4 SC 119.
The Applicant did not in the affidavit state the unavailability of the further evidence. The Certificate of Incorporation and Memorandum of Association, serves as a passport to a limited liability company and should be readily available to show the status of the company. The Respondent in his statement of claim at paragraph 2 (See Pg 6 of the Record) described the Appellant as an International Airline. Thus the respondent in his pleading put the appellant/applicant on notice as regards business address in Abuja. Therefore since applicant has not told the court that the document was not available at the time of trial he has failed to satisfied this first principle. The deponent averred in paragraph 18 of the affidavit that the learned counsel did not avert his mind to the issue of international jurisdiction. The question is whether this reason is good to qualify as a special ground to allow further evidence on appeal.
It is true that the courts will not punish a litigant for the mistake or inadvertence of his counsel in procedural matters but when a counsel that has been briefed to conduct a case and he decides on which evidence he considers as important to call, that decision is not an inadvertence or a mistake, it is an exercise of a legal right. He has full control of the case and to conduct it properly. The authority is no longer limited by litigant once instructions have been given. A counsels’ first reaction when briefed in a matter in court is to read the facts and at that stage the competence of the court must play a predominate role in his mind as regards the brief. This is the attribute of a diligent counsel.
Craig JSC in Akanbi v. Alao (Supra) had this to say on the authority of a counsel.
“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 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 reipublicae ut sit finis litum.”
The explanation that counsel handling the matter did not avert his mind cannot be a ground described as special or exceptional to allow further evidence. The counsel’s inadvertence is not related to procedural law but on legal strategy and this will not sway the court. The inadvertence of counsel in the circumstance is not a special ground. See Akanbi v. Alao (1989) 3 NWLR (Pt.108) Pg 118 S.C.
That Appellant could easily have tendered its Certificate of Incorporation at the lower court this was not done. He contends that failure to tender the company document cannot defeat the application provided two conditions do exist
The Supreme Court in UBA Plc v. BTL Ind. Ltd. (2005) 10 NWLR S.C 356 held that the three conditions must coexist, that is satisfied conjunctively not disjunctively. It is learned counsels’ submission that the Supreme Court decision in Nwanezie v. Idris (1993) 3 NWLR (Pt.279) SC supports his submission that the satisfaction of only two conditions will suffice. It is my view that the facts in that case are distinguishable from the present situation. I will later in this judgment espouse on this point.
In Gazu v. Nyam (1998) (Supra) the Court of Appeal per Oguntade JCA (as he then was) held that the three conditions stipulated by Coker J.S.C in Asaboro v. Aruwaji must coexist before the court can grant leave to an applicant to call further evidence. In Gazu v. Nyam (Supra) application for further evidence was allowed based on the special circumstances presented in that case. The counsel raised a preliminary objection on the jurisdiction of the trial central Area Court II to hear the matter since the land was in urban area. The objection was dismissed because the counsel did not produce evidence to prove that the area where the land situates fell within the designated urban area. The trial judge did not stay proceedings but proceeded with trial until the new evidence is adduced. As at the time the judgment was delivered, there was no evidence presented on where the land situates. At the stage of appeal the party then sought to adduce further evidence. The scenario in the present situation is different. The appellant applicant did not raise the issue of jurisdiction in the court below, the evidence that he seeks to adduce, he has not shown in the affidavit in support of his application that it was not available during trial and that it could not be obtained with reasonable diligence. Applicant has not established the special ground prescribed in the rules to earn discretion of the court. It is indisputable that issue of jurisdiction is fundamental but it is not in all circumstance that once question of jurisdiction is raised it automatically becomes a special ground for adducing further evidence. Where facts in the pleading are sufficient to establish the question of jurisdiction. There will be no special circumstance to necessitate allowing evidence further and thus open the floodlight of more litigation of appeal on what would have transpired at the court below. In Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) SC 423. The Supreme Court Per Tobi JSC said:
“In some cases, the court may need to take some evidence before determining the issue of jurisdiction. But this will not he necessary where alt the materials necessary to determine whether or not the court has jurisdiction are already before the court, as in this case.”
See The Attorney-General of Anambra State v. The Attorney-General of the Federation (1993) 6 NWLR (Pt.302) 692. In the instance case which was initiated by writ of summons and statement of claim, the jurisdiction of the court is to be determined by the plaintiff’s statement of claim.
See: Adatayo v. Ademola (2010) All FWLR (Pt.533) SC 1806. Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.177) 517.
In Adatayo v. Ademola (2010) All FWLR (P.533) SC 1806 at 1823 G Mohammed JSC Said
“although it is necessary sometimes to hear some sort of evidence first in assistance for the purpose of the determination of or resolution of the issue of jurisdiction of court where pleadings are filed in a suit as in the instant case. The issue of jurisdiction ought to be determined on the plaintiffs statement of claim without any recourse to defendants statement of defence”
See also Attorney General Kwara State v. Olawale 1993 1 NWLR (Pt.272) 645.
Learned counsel also relied on Nwanezie v. Idris (Supra) where further evidence was allowed on appeal. In Nwanezie v. Idris the court allowed further evidence based on the fact that applicant in that case not being a lawyer could not have envisaged such evidence that was sought to be tendered at the High Court and that such evidence could not have been discovered with reasonable diligence by the applicant. In that case certain provisions arose for construction of the provisions under S59 (1) and 2 of the Area Courts Edict under which the High Court in the exercise of its appellate jurisdiction is empowered to hear additional evidence and order 7 rule 24 of the Rules of Supreme Court. The Supreme Court emphasi zed that the peculiar facts in each case will govern the exercise of discretion by the court. In Nwanezie v. Idris (Supra) per Karibi – Whyte JSC said.
“In the instant case the High Court in the exercise of its appellate jurisdiction took into consideration the fact that the purpose of the application was to establish the absence of jurisdiction in the trail court and in such a circumstance it was in the interest of justice which is proper and necessary to grant leave to adduce the additional evidence sought.”
That decision was based on the provision of S59(2) of Area Court Edict. The contents of this provision are not the same as order 4 rule 2 of the rules of the court. The Edict provided for the exercise of discretion by considering what is necessary for the just disposal of the case at the High Court on matters on appeal. Whilst order 4 rule 2 of the Court of Appeal rules specifically stipulated that no further evidence should be admitted. That is the general provision. The same rule set out an exception to the general rule on admitting further evidence on appeal.
Usually exceptions to provision in a law or rules of court are crafted in furtherance of justice. The appellant/applicant in his prayer seeks to amend his statement of defence in order to adduce further evidence. The evidence sought by the applicant to adduce is to show that the court below does not have jurisdiction. Like I earlier stated the determinant of jurisdiction is not the statement of defence but the plaintiffs claim before the court. The reason is obvious. The statement of claim contains the cause of action and the relief sought from court. Although it is sometimes necessary for the court to hear some evidence for the purpose of determining the issue of jurisdiction where pleadings are filed in a suit but the issue of jurisdiction ought to be determined on the plaintiff’s pleading ex facia that is his statement of claim not the defendants’ statement. See Onuorah v. K.R.P.C. (2005) 6 NWLR (pt.921) 293 SC. AG. Kwara State v. Olawale (1993) 1 NWLR (Pt.272) 645 S.C.
It is clear to me that the additional evidence sought to be adduced could have been obtained for use at the trial with reasonable diligence. I also have no doubt that if evidence sought to be adduced had been produced at trial it may have a credible effect. However, the facts presented in the statement of claim are sufficient to raise the issue of jurisdiction. Relying on evidence to establish jurisdiction or lack of same inrespect of a claim where facts are pleaded is rarely adopted. I have perused the statement of claim in the record of appeal. It is obvious the issue of where the Appellant’s office situates is pleaded. Appellant has also been described as an International Airline, clearly I do not see how the amendment of the statement of defence will help in the determination of the jurisdiction of the court below as per the claim before the trial court. It is trite that when a party calls for further evidence it cannot be allowed to change the character of the case from what existed in the trial court.
See: Okoro v. Egbuoh (2006) 15 NWLR (P1.1001 S.C 1. I am also well guided by the statement of Oguntade. J.S.C in U.B.A. Plc v. BTL Ind. Ltd. (2005) 10 NWLR (Pt.933) SC 356. Where he said
“Human experience shows that we often get wiser after an event.
When judgment has been given in a case, parties with the advantages of what the court said in the judgment get a new awareness of what they might have done better or not done at all.
If the door were left open for everyone who has fought and lost a case at the court of trial to bring new evidence on appeal there would be no end to litigation and all the parties would be the worse for that situation.”
In the final analysis, I do not see how the evidence sought to be adduced would have an important effect on the appeal as regards jurisdiction which is determined from the plaintiff claim. The evidence by its nature does not qualify as such evidence which could not have been produced at the trial Court with reasonable diligence.
In conclusion, the appellant/applicant has not shown a special ground why further evidence should be allowed. He has not established the existence of the three conditions stipulated as guideline. It is when the three conditions co exist that an applicant will earn the discretion of the court in his favour. The appellant/applicant cannot earn the discretion of the court in his favour having failed to show the three (3) conditions prescribed in Asaboro v. Aruwuji (Supra) exist thus raising special circumstance. Consequently, prayer four (a) is refused. Prayers 5 and 6 are linked to prayer 4. Prayer 5 seeks amendment of the statement of the defence for the purpose of pleading the documentary evidence whilst prayer 6 seeks an order deeming the proposed amended statement of defence. Having found that the Applicants application under relief 4 lacks merit, the consequential prayers 5 and 6 will collapse.
of the defence for the purpose of pleading the documentary evidence whilst prayer 6 seeks an order deeming the proposed amended statement of defence. Having found that the Applicants application under relief 4 lacks merit, the consequential prayers 5 and 6 will collapse.
In the light of the forgoing I order as follows:
(1.) I grant leave to appellant/applicant to raise and canvass the issue of jurisdiction for the first time.
(2.) I deem ground I of the applicant’s notice of appeal dated 16th July, 2007 as having properly raised issue of jurisdiction before this court.
(3.) I grant leave to appellant to amend its notice of appeal by deleting ground five (5) and amending ground I and 6 in the manner contained in Exh. EU2.
(4) The amended notice shall be filed within fourteen (14) days from today.
(5) Prayer 4 is refused and dismissed.
(6) Prayer 5 and 6 ancillary to prayer 4 dismissed.
I make no order as to cost.

MOHAMMED LAWAL GARBA, J.C.A.: I have read a draft of the lead ruling delivered by my learned brother REGINA OBIAGELI NWODO, JCA in respect of this application.
For all the reasons set out therein which I adopt, the Applicant is granted leave to raise and argue of jurisdiction for the first time in this Court, to amend the notice of appeal accordingly in terms of Exhibit EU2 and the amended notice of appeal shall be filed within 14 days from today. Prayer 4 on the face of the motion as well as prayers 4 and 5 which flow from it are refused and dismissed by me. Parties shall bear their respective costs of prosecuting the application.

PAUL ADAMU GALINJE, J.C.A.: My learned brother has treated all the issues submitted for consideration in this appeal exhaustively in such a way that there is nothing left for me to comment upon. I entirely agree with the reasoning contained in the lead ruling and the conclusion arrived thereat. For the same reasons ably articulated by my learned brother, I too grant prayers 1, 2, and 3. Prayers 4, 5 and 6 are hereby refused and dismissed.
I make no order as to cost.

Appearances

J.M.M Majiyagbe for the Appellant/Applicant. Akin AkintanFor Appellant

AND

Uzoamaka Ogbuagu and Ifeanyi UwaFor Respondent