DR. OLISE IMEGWU v. UGO RUDOLF ASIBELUA & ORS.
(2011)LCN/4282(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of February, 2011
CA/A/309/2010
RATIO
INCOMPETENT COURT PROCESS: WHETHER IT IS ENOUGH FOR OF A COUNSEL TO MERELY STATE THAT A COURT PROCESS IS INCOMPETENT WITHOUT MAKING ANY SUBMISSION IN SUPPORT OF SUCH ASSERTION; DUTY OF THE COURT WHERE A COURT PROCESS IS PRIMA FACIE INCOMPETENT
It is not enough to merely state that a Court process is incompetent without more and expect the Court to embark on fishing out the reasons in support of such assertion. A counsel who assert the existence of any situation, must make submission in support of the position he has taken, otherwise the Court will ignore such bare assertion. However where it is apparent on the face of such process that it is manifestly incompetent, the Court will not shy away from its responsibility in declaring such document incompetent even though no reason is advanced by any party that the said document is incompetent. PER HON. JUSTICE PAUL ADAMU GALINJE, J.C.A.
ADDITIONAL OR FURTHER EVIDENCE IN APPEALS : CIRCUMSTANCE WHERE THE COURT OF APPEAL WILL RECEIVE ADDITIONAL OR FURTHER EVIDENCE IN DETERMINING AN APPEAL; POSITION OF THE LAW ON THE DUTY OF APPLICANT WHO SEEKS TO TENDER ADDITIONAL OR FURTHER EVIDENCE THAT BECAME AVAILABLE BEFORE THE CONCLUSION OF TRIAL AT THE LOWER COURT
Now, by Order 4 Rule 2 of the Court of Appeal Rules 2007, the court of Appeal is empowered to receive additional or further evidence in determining appeals if such evidence is relevant to the effectual determination of the appeal. Such relevant evidence can only be admitted if it became available only after the matter on appeal had been determined by the lower court. However where additional or further evidence was available before the conclusion of trial at the lower court, and such availability of the evidence was known by the Applicant, then the Applicant has to establish or show special circumstances warranting the grant of application seeking to receive them in evidence. He has to advance cogent reasons justifying his inability to introduce such evidence at the time of trial. See ILORIN SOUTH L.G.A. VS AFOLABI (2003) 16 NWLR (Pt.846) 274. PER HON. JUSTICE PAUL ADAMU GALINJE, 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
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
DR. OLISE IMEGWU Appellant(s)
AND
1. UGO RUDOLF ASIBELUA
2. PEOPLES DEMOCRATIC PARTY (PDP)
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
HON. JUSTICE PAUL ADAMU GALINJE, J.C.A. (Delivering the Lead Ruling): By a motion on notice dated 15th day of November, 2010 and filed on the 22nd November, 2010, the Applicant herein who is the Cross-Respondent/Appellant sought for an order admitting the underlisted documents in evidence for consideration of the cross appeal-
(a) Certified True Copy of the originating summons in FHC/ASB/CS/02/2009; ASIBELUA VS IMEGWU & 5 ORS;
(b) Certified True Copy of the Cross-Appellants pay slip for October, 2008 in the Delta State House of Assembly.
The grounds upon which the application is predicated, as set out in the motion paper are as follows:-
“1. The second issue raised in the cross appeal was not presented before neither was it considered by the lower court,
2. The documents subject to this application are relevant for a fair consideration of the justiciability or otherwise of the new claims made for the first time on appeal on the basis of facts and materials also sought to be raised for the first time before this Court.”
This motion is supported by a ten paragraphs affidavit deposed to by Paul Kasim, one of the solicitors retained by the Applicant. Annexed to the affidavit are a copy of an originating summons dated 15th April, 2009 and filed on the 28th of April, 2009, and a copy of Government of Delta state Pay slip for the month of October, 2008. These documents are marked exhibits KEM1 and KEM2 respectively.
The 1st Respondent/Cross Appellant filed an eight paragraphs counter affidavit on the 9th December, 2010.
When this motion came up for hearing on the 18th of January, 2011, Mozia Esq, of counsel for the Applicant, who argued the Applicant’s motion relied on all the paragraphs of the supporting affidavit particularly paragraphs 4, 5, 6 and 7 and submitted that the Applicant has met all the conditions necessary for admission of additional evidence on appear. Finally learned counsel urged the court to grant the application since the counter affidavit has not countered the fact that there was originating summons.
Mr. Azubike, learned counsel for the 1st Respondent/Cross Appellant in reply referred to the 1st Respondent’s/Appellant’s counter affidavit filed on the 9th of December, 2010 and submitted that the motion on notice is incompetent. In a further argument, learned counsel submitted that the Applicant has failed woefully to establish the necessary conditions for admission of additional or fresh evidence on appeal. For this reason learned counsel urged this Court to dismiss the application,
As a starting point, I wish to state here that Mr. Azubike did not advance any argument in support of his assertion that the application is incompetent. It is not enough to merely state that a Court process is incompetent without more and expect the Court to embark on fishing out the reasons in support of such assertion. A counsel who assert the existence of any situation, must make submission in support of the position he has taken, otherwise the Court will ignore such bare assertion. However where it is apparent on the face of such process that it is manifestly incompetent, the Court will not shy away from its responsibility in declaring such document incompetent even though no reason is advanced by any party that the said document is incompetent. In the instant case, I have not found anything on the face of the motion that has rendered it incompetent. It is therefore my firm view that the motion on notice is competent, and so I hold.
Now, by Order 4 Rule 2 of the Court of Appeal Rules 2007, the court of Appeal is empowered to receive additional or further evidence in determining appeals if such evidence is relevant to the effectual determination of the appeal. Such relevant evidence can only be admitted if it became available only after the matter on appeal had been determined by the lower court. However where additional or further evidence was available before the conclusion of trial at the lower court, and such availability of the evidence was known by the Applicant, then the Applicant has to establish or show special circumstances warranting the grant of application seeking to receive them in evidence. He has to advance cogent reasons justifying his inability to introduce such evidence at the time of trial. See ILORIN SOUTH L.G.A. VS AFOLABI (2003) 16 NWLR (Pt.846) 274. In the instant application the documents sought to be received in evidence are Exhibits KEM1 and KEM2. Exhibit KEM1 is an originating summons which is dated 15th April, 2009 and filed on the 28th April 2009, while Exhibit KEM2 is a pay slip for the month of October, 2008, which was issued on the 02/10/2009. Clearly these two Exhibits were issued after the judgment against which the appeal and the cross appeal lie, the judgment having been delivered on the 30th of April, 2007. For the avoidance of doubt, Order 4 Rule 2 provides 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 merit, 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.”
Having scaled the first hurdle that the documents became available after the judgment against which the appeal lies, the Applicant must show that the documents sought to be received in evidence are relevant to the appeal and the cross appeal herein. In order to find out if the Applicant has shown the relevancy of the documents to the appeal, recourse must be had to the supporting affidavit. The relevant paragraphs read as follows:-
“2. I am aware that the Cross-Appellant/Respondent is claiming alleged salaries, allowances etc from Delta State House of Assembly from 4/06/07 before this Honourable Court.
3. I am also aware that the Cross Appellant is also claiming the sum of N500 million from the Applicant herein as damages from the same date i.e.4/6/07
4. I know as a fact that no such claim was made before the lower court and no evidence in that respect was tendered therein such that no finding was made by the Court of trial on the points mentioned in paragraphs 2 and 3 above.
5. The documents subject of this application are intended to show that the Cross Appellant was collecting emoluments from the Delta State Government through the Delta state House of Assembly within the period subject of his new claim in this Court.
6. The second document is to show that the Cross Appellant has a pending suit before the Federal High Court, Asaba where he is making the same or substantially the same claims.
7. The above facts were not disclosed by the Cross Appellant in any of the processes filed by him in this Court,
8, The necessity to seek the leave of this Court to present these documents to facilitate a fair and just consideration of the issues raised in the purported cross appeal only became apparent after the notice of cross appeal and the brief in support thereof were filed.”
Paragraph 6 (a)-(d) of the counter affidavit is equally relevant and it is hereunder reproduced thus:-
“6. That on the 6h day of December 2010 in our office at about 10.am the 1st Respondent informed me of the following facts which I verily believe to be true and correct;
a) That the 1st Respondent never collected emoluments from the Delta State Government through the Delta House of Assembly
b) That he is not a sitting member of the Delta state House of Assembly and as such is not entitled to emoluments
c) That the pay slip exhibited is contrived to mislead this Honourable Court,
d) That the application by the Appellant is a ploy stall this matter.”
The claims of the Respondent/Cross Appellant at the Federal High Court Abuja are at pages 2-4 of the record of this appeal. These claims were effectually determined in the judgment that was delivered on the 30th day of April 2007. If the Cross Appellant has filed the same claim at the Federal High Court Asaba it is for the Applicant herein to contradict that claim by making available to the Federal High Court Asaba the fact that the matter pending before it has been determined by a Court of coordinate jurisdiction. The fact that the same claim with the claim that gave rise to the judgment against which the appeal here lies is pending at a Court other than the Court that decided this matter is not a matter for appeal.
The Applicant failed and/or neglected to react to the weighty issues raised in the counter affidavit by swearing to a further affidavit. The counter affidavit says that the first Respondent never collected emoluments from the Delta State Government through the Delta state House of Assembly and that he is not a sitting member of the Delta State House of Assembly as such he is not entitled to emolument. In reaction to this, the Applicant would have produced the 1st Respondents letter of employment if he was employed by the Delta State House of Assembly or a certificate of return from INEC if he was an honourable member of the Delta State House of Assembly. Pay slips are not the best way to prove that an individual is in the employment of the organization that issued the pay slip. For anybody to be paid salary, such a person must be employed. Where there is no evidence of employment, pay slip cannot be and it has never been a proof that a person in whose name it is issued is the receiver of such money. The pay slip that is sought to be tendered therefore is not relevant to this appeal.
On the whole and for the reasons I have set out above, the two documents sought to be received in evidence, though issued after the judgment against which this appeal lies, are not relevant in the determination of the appeal. This being so, this application shall be and it is hereby dismissed.
I make no order as to cost.
MOHAMMED LAWAL GARBA, J.C.A.: I have read the lead ruling written by my learned brother GALINJE, JCA and am in complete agreement with the reasoning and conclusion that the documents sought to be admitted as evidence in the appeal are not relevant in the determination of the appeal. The application, for lacking in merit, is dismissed by me for the reasons set out in the lead ruling which I adopt.
JIMI OLUKAYODE BADA, J.C.A.: I read before now the Lead Ruling of My Learned brother PAUL ADAMU GALINJE, JCA just delivered and I agree with the reasons given therein and the conclusion reached.
The application lacks merit and it is dismissed by me.
There shall be no order as to costs.
Appearances
Mr. K. E. Mozia with S. Emelioze, Esq., Miss J. Omo-Osogie and Miss A. IkongbeFor Appellant
AND
Mr. Victor AzubikeFor Respondent
