EJOVWO & ANOR v. AKPOKINIOVO
(2022)LCN/16452(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Friday, February 11, 2022
CA/AS/95/2020(R)
Before Our Lordships:
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
1. IBI EJOVWO 2. BILLY AGBINONE APPELANT(S)
And
ESE AKPOKINIOVO (For Himself And On Behalf Of Members Of The Family Of Late Chief Daniel Murhurhu Akpokiniovo) RESPONDENT(S)
RATIO:
WHETHER THE COURT OF APPEAL CAN ADDUCE NEW OR FURTHER EVIDENCE ON QUESTIONS OF FACT
By the provisions of Order 4 Rule 2 of the Court of Appeal Rules 2021 this Court has the power to grant leave to adduce new or further evidence on questions of fact, if the Court thinks it fit and this can be done either orally in Court, by affidavit or by deposition taken before an examiner or commissioner. See the cases of F.B. N. v. Jibo (2006) 9 NWLR (Pt.985) 255 CA, Amaechi v. INEC (2007) 18 NWLR (Pt.1065) 170 CA. MUSLIM SULE HASSAN, J.C.A.
WHETHER APPELLANT CAN IMPROVE OR RESHAPE HIS CASE AT THE COURT OF APPEAL
This Court will not allow an Appellant to improve or reshape his case by bringing forth further evidence which he could have reasonably produced at the trail Court except on special grounds. See the case of Odeleye v. Orelusi (1991) 7 NWLR (Pt.202) 247 at 256 CA. MUSLIM SULE HASSAN, J.C.A.
PRINCIPLE TO CONSIDER WHEN FURTHER EVIDENCE ON APPEAL IS SOUGHT.
The principles were enumerated in the case of ASABURO V. ARUWAJI (1974) 1 All NLR (Pt.1) 40 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 UBA PLC V. BTL Ind. Ltd (2005) 10 NWLR (Pt.933) 356 at 370. See: Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) SC 357. MUSLIM SULE HASSAN, J.C.A.
POSITION OF LAW WHEN A PARTY CALLS FOR FURTHER EVIDENCE AT THE APPELLATE 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) LPELR-2491 (SC) I am also well guided by the statement of Oguntade JSC in UBA Plc v. BTL Ind. Ltd (2005) 10 NWLR (Pt.933) SC 356. MUSLIM SULE HASSAN, J.C.A.
PRINCIPLES THAT GUIDE THE ADMITTING OF FRESH OR FURTHER EVIDENCE ON APPEAL
For emphasis I would like to reiterate that there are certain principles that guide the admitting of fresh or further evidence on appeal. In CONGRESS FOR PROGRESSIVE CHANGE & ANOR v HON. EMMANUEL DAVID OMBUGADU & ANOR (2013) LPELR – 21007 (SC) the Apex Court per PETER – ODILI, JSC held
“….the lower Court is duly empowered to admit fresh evidence in respect of matters which occurred after the proceedings and judgment of the trial Court so long as the guidelines for such admission are met. I would in that regard cite the case of Okpanum v. S.G.E. (Nig) Ltd. (1998) 7 NWLR (Pt. 559) 537 at 546 per Onu JSC: “For a clearer appraisal of the treatment or the lone issue, it is pertinent firstly to consider what additional evidence is all about and when it is receivable by an appellate Court. Undoubtedly, the Court of Appeal has 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. See Order 1, Rule 20(3) Court of Appeal Rules, 1981 (as amended) and the Court of Appeal decision in Michael Odiase v. Vincent Omele (1985) 3 NWLR (Pt.11) 82 at 85. See also Enekebe v. Enekebe (1964)NMLR 42. However, the conditions for admitting such fresh evidence on appeal are so stringent that there are very few cases if any, in our Courts where such evidence was admitted. But see the English cases of Ladd v. Marshall (1954) 1 WLR 1489 at 1491; Skone v. Skone (1971) 1 WLR 812; (1971) 2 All ER 582. The principles which an appellate Court must take into consideration in the judicious exercise of its power to grant leave to adduce new evidence are: (a) The evidence sought to be adduced must be such as could not have been with reasonable diligence, obtained for use at the trial, or are matters which have occurred after judgment in the trial Court, (b) in respect of other evidence other than in (a) above, as for instance in respect of an appeal from a judgment after a hearing on the merits, the Court will admit such fresh evidence only on special grounds as provided for in Order 1, Rule 20(3) of the Court of Appeal Rules (ibid). (c) The evidence to be adduced should be such as if admitted, it would have an important not necessarily crucial effect on the whole case; and (d) The evidence must be as such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.” ABIMBOLA OSARUGUE OBASEKI.
MUSLIM SULE HASSAN, J.C.A. (Delivering the Leading Judgement): By a Motion on Notice filed on the 26th day of February, 2021 and brought pursuant to Order 4 Rules 2, 3, 4 & 6 and Order 21 Rule 2 of the Court of Appeal Rules, 2016 and in pursuance of the inherent Jurisdiction of this Honourable Court the Appellant prayed the Honourable Court for the following reliefs, to wit:
1. Leave to adduce in this Appeal, further or additional evidence which was not available during the trial in the High Court, namely:
i. The Letter of petition dated 24th September, 2020 from Eruotor Eferobome & Co., to the Police Area Command, Warri against the Respondent when the Respondent on 19th September, 2020 brought Bulldozer into the parcel of land in dispute.
ii. The Letter dated 27th January, 2021, from Police Area Command, Warri to Eruotor Eferobome & Co., accompanied with the certified true copies of the Eleven photographs of the relics of the Buildings which the Respondent dug up with Bulldozer from the ground of the land in dispute on 19th September, 2020.
iii. The Letter dated 4th February, 2021, from Police Area Command, Warri, to Eruotor Eferobome & Co., accompanied with the certified true copy of Police Investigation Report on our petition dated 24th September, 2020 against Respondent.
2. An Order admitting as further or additional evidence in these proceedings. the documents described in paragraphs 1(i), 1(ii) and 1 (iii) above and marked as Exhibits ‘EE1’, ‘EE2’ and ‘EE3′, respectively, in the Affidavit in support of this Application.
3. Order for Leave to raise and include the following fresh issues which arise from the additional evidence sought to be adduced:
i. The proceedings were vitiated by fraudulent misrepresentation;
ii. The Judgment of the Lower Court was obtained by deceit.
4. Leave to amend the Appellants’ Brief of Argument to include the new issues obtained from the further or additional evidence being adduced, in the manner indicated in red ink in the proposed Amended Appellants’ Brief of Argument hereto attached and marked as Exhibit ‘EE4′.
5. Order to deem the Amended Appellants’ Brief of Argument already filed and served, as having been properly filed and served, the appropriate filing fees having been paid.
6. And for such further Order or other Orders as this Honourable Court may deem fit make in the circumstances.
The Motion is supported by an Affidavit of 36 paragraphs deposed to by Ibi Ejovwo, the 1st Appellant/Applicant. The Motion is also supported by a ‘Further Affidavit of 25 paragraphs, deposed to on 7th October, 2021 by Ibi Ejovwo the 1st Appellant/Applicant.
Annexed to the Motion are Exhibits marked and attached as Exhibit “EE1” (the Petition dated 24/9/2021), Exhibit “EE2” (CTC of photographs of Relics), Exhibit “EE3” (which is the Police Investigation Report, without its page 2) and Exhibit “EE4” (the Proposed Amended Appellants’ Brief of Argument), which Exhibits are all attached to the Supporting Affidavit.
Also annexed in support of the Motion are Exhibit “EE3(a)” (which is the Police Investigation Report, with its page 2), Exhibit “EES” (the 1st Appellant/Applicants’ Affidavit in respect of Motions for visits to the locus in quo in the Trial Court) and Exhibit “EE6” (the Police Letter to confirm Respondent’s participation in the Police Investigation Report) respectively.
Further, the grounds upon which the Application is predicated are as follows:
a) Leave to adduce further or additional evidence, raise fresh issues of Law, amend the Appellants’ Brief of Argument and to deem the processes filed as properly filed and served as required by the Appellants/Applicants.
b) Exhibit ‘EE2’ made up one photograph showing the physical features of the parcel of land before the Respondent carried the Bulldozer to the parcel of land and the Eleven (11) photographs of the relics dug up and destroyed by Respondent with Bulldozers on 19th September, 2020 (and on 15th October, 2020), as received, investigated and certified by police, the relics of the two one-storey Buildings and two bungalow Buildings which were built in the parcel of land in dispute in 1974 by Dr. Peter Oghi lbi, the father of the 1st Appellant/Applicant.
c) Exhibit ‘EE3’ is the ‘Police Investigation Report’ on our petition, the said relics and the Respondent’s unlawful act of using Bulldozers to dig up and remove the said relics from the land.
d) The further or additional evidence became available to the Appellants/Applicants after the trial; and after this appeal had been entered.
e) The proceedings at the Lower Court was vitiated by fraud.
f) The Lower Court’s Judgment was obtained by deceit.
Learned Appellants’ Counsel in his submissions in support of his issues for determination stated that the necessity of adducing fresh or additional evidence as sought in this application is predicated on fundamental issues, that is, i.) The proceedings at the Trial Court were vitiated by fraudulent misrepresentation; and, ii) the Judgment of the Lower Court was obtained by deceit (by the Respondent/Respondent).
It is Counsel’s submission that Exhibits “EE1”, “EE2” and “EE3(a)” (previously Exhibit ‘EE3′) sought to be admitted as fresh, further or additional evidence in this Appeal came into the hands of the Appellants/Applicants after the trial and Judgment of the Lower Court and after the Notice of Appeal and the Appellants’ Brief of Argument in this Appeal have been filed and duly served on the Respondent/Respondent.
He submitted therefore, that this Honourable Court has the competence to receive and admit these further or additional evidence in this Appeal.
Counsel referred to Section 16 of the Court of Appeal Act and Order 4 Rule 2 of the Court of Appeal Rules, 2016, which according to him, confer jurisdiction on the Court of Appeal to grant the reliefs sought in this Application. The Court was referred to the cases of OKORO V. EGBUOH (2006) 15 NWLR (Pt. 1001) 1 at 18; EHINLANWO V. OKE (2008) 16 NWLR (Pt. 1113) 357.
Learned Counsel submitted that granting Leave to adduce further or additional evidence in this appeal would have an important effect on the outcome of this Appeal, because of the fact that the documents, further or additional evidence, particularly Exhibit EE2, would show conclusively that there were buildings built on the parcel of land in dispute by Dr. Peter Ibi many years ago, that the Judgment of the Trial Court is vitiated by fraudulent misrepresentation and obtained through deceit by the Respondent/Respondent, that as shown in the composite survey plan of the 1st Defendant/Appellant/Applicant’s Surveyor, Chief Dave Nnamani at the trial, the parcel of land in dispute is different from the parcel of land shown in the Claimant/Respondent’s title documents, that the Claimant/Respondent’s claim at the Trial Court was statute-barred and that the Lower Court had no jurisdiction to entertain the Claim. Reliance was placed on Section 21(1) of the Evidence Act, 2011; ADEIGBE V. KUSIMO (1965) I ALL NRL 248 and Duchess of Kingston’s case (1775-1802) ALL E.R. Rep. 623 at 629 to 630.
It is Counsel’s contention that at the Trial Court the Claimant/Respondent pleaded and led evidence that it was “a temporary wooden structure” that was on the parcel of land in dispute; and that there were no permanent or standard Buildings on the said land, neither was there the relics of such standard Buildings on the land in dispute as pleaded by the 1st Defendant/Appellant/Applicant, thus, by taking the said Bulldozer on 19/9/2020 (and on 15/10/2020) to dig-up, destroy, remove and eliminate the said relics, as shown in Exhibit EE2 herein, which he argued at the Trial Court that such relics are not in the parcel of land in dispute, thereby misleading the Trial Court, through fraudulent misrepresentation and procured the Judgment of the Trial Court through deceit.
Counsel submitted that the judgment is liable to be set aside. He referred again to the Duchess of Kingston Case (supra).
It is Counsel’s position that the purpose of the Application is to show that there was a miscarriage of justice in the Judgment of the Lower Court. He referred the Court to Section 16 of the Court of Appeal Act and OHIKHUARE V. MALAMI & ORS (2013) LPELR 22348 (CA).
Counsel submitted that the 1st Defendant/Appellant pleaded and led evidence at the Trial Court that there were four buildings made up of two one-storey buildings and two Bungalow buildings built on the parcel of land by his father, Dr. Peter Oghilbi in 1974, which buildings were demolished by the 2nd Defendant/Appellant in 2014 upon purchase of the said parcel of land from him; but that the relics of these four buildings such as “iron pillars,” concrete floors”, “broken blocks”, “walls of buildings”, “concrete slabs”, “stones” and other building materials with which these four buildings were built are still present in the parcel of land. Learned Counsel stated that these relics are exactly the content of Exhibit EE2 herein.
It is his contention that the Trial Court however refused to entertain any of the two Motions on Notice filed by the 1st Defendant/Appellant/Applicant praying for a visit to the locus in quo. It is Counsel’s submission that the contents of Exhibit EE2, as certified by police in Exhibit EE3(a) which replaced Exhibit EE3 and confirmed by police in Exhibit EE6, these certified photographs of the said relics which the Respondent/Respondent dug up, destroyed and removed from the parcel of land on 19/9/2020 and 15/10/2020 were pleaded and given in evidence by the Defendants/Appellants/Applicants at the Lower Court, although they were not tendered, can be admitted by this Appellate Court. Counsel relied on the case of LATINWO V. AJAO (1973) 2 SC 99.
According to Counsel, the Respondent/Respondent’s removal of the said relics from the parcel of land the subject-matter of this appeal vis-à-vis his denial of same at the Trial Court amounts to fraudulent misrepresentation and deceit in his procuring of the Judgment of the lower Court; hence the need for Appellants/Applicants to be granted leave to adduce further or additional evidence as prayed in this application. There are similar situations in which Leave was granted to parties to raise fresh issues or additional evidence on appeal. The Court was referred to the cases of ADEGBITE & ANOR. V. AMOSU (2016) LPELR- 40655(SC) and AGBITI V. NIGERIAN NAVY (2011) 4 NWLR (Pt. 1236).
Counsel submitted that the said fresh or additional evidence if admitted, would have an important effect on the whole case as they are weighty, relevant, credible and material to the justice in this case and is capable of being believed. He stated that the additional evidence would have made the Judgment of the Lower Court to be in favour of the Appellants/Applicants. He relied on ASABORO V. ARUWAJI (1974) All NLR (Pt.1) P. 140.
He further submitted that the use of these documents or exhibits will not require the calling of witnesses to testify as they are already in the Records of Appeal.
Learned Counsel submitted further that the fraudulent misrepresentation and deceit of the Respondent/Respondent is again on display in his Counter Affidavit in this Application, that the Respondent/Respondent’s contention that the Police Investigation Report, that is Exhibit EE3(a), previously Exhibit EE3, was a fabrication and that he was not part of the police investigations thereof showed the extent the Respondent/Respondent can go in his attempt to mislead a Court 10 of Law, as the police at the Police Area Command, Warri, confirmed in Exhibit EE6 herein that the Respondent/Respondent was part of the said police investigations, as he fully participated in the police investigations leading to the Police Investigation Report in Exhibit EE3(a), previously Exhibit EE3.
Counsel therefore urged the Court to discountenance the Respondent/Respondent’s Counter Affidavit.
In the circumstance, he urged this Honourable Court to grant leave to amend the Appellants’ Brief of Argument to incorporate the fresh or additional evidence as contained in the proposed Amended Appellants’ Brief of Argument attached to the motion as Exhibit EE4. And that the Court also grants an Order to deem the Amended Appellants’ Brief of Argument as properly filed and served as the appropriate filing fees have been paid.
In conclusion, the Court was urged to exercise discretion in favour of the Appellants/Applicants in the interest of justice. The Court was referred to the case of NWANEZIE V. IDRIS (1993)3 NWLR (Pt. 279) 1 at 17.
Respondent/Respondent filed an Eight(8) Paragraph Counter Affidavit dated 30th/6/2021, challenging this Application.
Also brought forward is a Written Address in opposition to Application for leave to adduce further evidence. The Written Address was filed on the 15/11/2021.
Counsel to the Respondent/Respondent distilled a lone issue for determination, to wit:
“Whether the application has merit and shouldn’t it be refused?”
On arguing the lone issue for determination, Learned Counsel for the Respondent/Respondent submitted that the Appellants/Applicants’ extant Application and the ancillary reliefs 2, 3, 4 and 5 lacks merit and should not be granted but rather same should be dismissed.
He submitted that the Application is one that the Appellate Courts hardly grant except in very exceptional cases as it has the potential of drawing the Appellate Court into an area of adjudication traditionally and conventionally reserved for Trial Courts which is receiving and evaluation of evidence, even though the Appellate Court has the jurisdiction and/or the power to allow it.
Counsel stated that similarly, an Application of this nature also has the potential of causing endless litigation against public policy, and as a result, the Appellate Courts sparingly utilizes her power to allow “fresh”, “further” or “additional” evidence as sought in this case.
Learned Counsel relied on the case of OBASI V. ONWUKA (1987) 3 NWLR PT 61 ?AT 364, 372, Per Oputa, JSC.
Reliance was also placed on UBA PLC V. BTL INDUSTRIES LIMITED (2005) ALL FWLR PT 263 AT 611 particularly AT 623-624 paras D-A.
Counsel submitted that there is no doubt that there is jurisdiction and power in the Appellate Court to allow fresh evidence on appeal, but it is a power which is hardly exercised by the Court. He relied on ASABORO V. ARUWAII & ANOR (1974) 4 SC 87 AT 90-91.
Counsel stated that it is the position of the law that the three (3) conditions listed in the above cited case must co-exist for such an Application to be successful.
Counsel submitted that Appellants/Applicants’ case in this regard is that at the trial, he pleaded and testified that his father had a standard storey building on the land, subject matter of the Appeal as against the temporary/makeshift buildings the Claimants pleaded and testified was on the land and that 1st Appellant/Applicant attempted to move the Trial Court to visit the locus in quo twice but the Trial Court declined. He further alleged that the Respondent/Respondent after the trial and with a mindset to destroy evidence, moved in bulldozer to dig up the relics of the alleged building that was on the land. Thus, he argued that these pieces of evidence would have swayed the Trial Court otherwise if these pieces of evidence had been available at the trial.
Counsel stated further that at the trial, the 1st Appellant/Applicant tendered several Exhibits, which included photograph of the Appellants/Applicants’ father’s building adjourning the land admitted as Exhibit D7, Notices to Quit issued to tenants in the building allegedly on the land admitted as Exhibits E1-E20 and BEDC receipt allegedly issued on the building allegedly on the land in dispute admitted as Exhibit E20A. Counsel stated that the point they have labored here to make is that Appellants took and tendered as Exhibits photographs of the alleged building on the land, therefore, the Appellants/Applicants could as well have taken and tendered these set of photographs now marked as Exhibit EE2, even if the Trial Court had refused to visit the locus in quo, which is not true.
He submitted therefore that the alleged relics of the alleged building on the land existed even before the trial, that it was the case of the 1st Appellant/Applicant at the Trial Court that the 2nd Appellant pulled down the building that was allegedly on the land before commencement of this suit. Counsel stated that the Appellants/Applicants knew of the existence of the alleged relics during the trial. Thus, the relics, which photographs is now sought to be tendered to establish its existence, could have been obtained with reasonable diligence and ease at the Trial Court, but the Appellants/Applicants did not bring it forth. On this, Counsel therefore submitted that this Application did not satisfy the first condition in ASABORO V. ARUWAJI.
Counsel submitted that these pieces of evidence now sought to be tendered as fresh evidence, even if admitted, will not have any important effect on the whole case.
It is Counsel’s contention that in this case, both the Respondent/Respondent and the 1st Appellant/Applicant claimed and counter claimed for trespass and damages. Both parties laid claim to being in possession. That in an attempt to prove his alleged possession, the 1st Appellant/Applicant raised several issues among which is the alleged building on the land, but however, the Trial Court, in resolving this issue, determined who had better title between these two parties who alleged to be in possession.
Counsel submitted that from the Judgment, even if the evidence sought to be tendered is accepted, the mere fact that you have a building on a land which is already adjudged to be another person’s land, does not make that land your own.
He submitted further that the Respondent/Respondent showed better title at trial and possession is deemed to reside in him, no matter what the 1st Appellant/Applicant claimed to have had on the land. He went ahead to submit that on this argument, this application has not satisfied the second condition in ASABORO V. ARUWAJI.
Finally, he submitted that this application does not satisfy the third condition in ASABORO V. ARUWAJI because the alleged evidence sought to be introduced is not credible neither is it capable of being believed.
Counsel submitted that the Respondent/Respondent averred in paragraphs 5 b, c, d, e and 6 b of the Counter Affidavit that the Appellants/Applicants procured the said report and photographs and that he was not part of the process that led to it, but the Appellants/Applicants have not put anything forth before Court to controvert these averments, neither have they been able to show anything that establishes that the Respondent/Respondent was part of the process that led to the alleged report and the taking of the photographs.
He stated that the easiest way to show his participation is to attach his alleged statement to the police on the matter and the report of the visit by the IPO and the parties to the scene of crime.
Counsel finally submitted that the fresh/new/additional/further evidence sought to be adduced in this application does not satisfy any of the conditions for granting leave to adduce fresh/further/additional evidence, that not even one met the three conditions set out there in ASABORO V. ARUWAJI.
In conclusion, the Court was urged to dismiss this application for lacking merit and for not meeting the requirement set down for its grant.
RESOLUTION:
The issue for determination is ‘’whether this Honourable Court is empowered to grant the extant application’’
By the provisions of Order 4 Rule 2 of the Court of Appeal Rules 2021 this Court has the power to grant leave to adduce new or further evidence on questions of fact, if the Court thinks it fit and this can be done either orally in Court, by affidavit or by deposition taken before an examiner or commissioner. See the cases of F.B. N. v. Jibo (2006) 9 NWLR (Pt.985) 255 CA, Amaechi v. INEC (2007) 18 NWLR (Pt.1065) 170 CA.
This Court will not allow an Appellant to improve or reshape his case by bringing forth further evidence which he could have reasonably produced at the trail Court except on special grounds. See the case of Odeleye v. Orelusi (1991) 7 NWLR (Pt.202) 247 at 256 CA. However, in the case of appeal after trial or hearing on merit, no further evidence except evidence as to the matter which occurred after the date of trial or hearing shall be admitted except on special grounds. See the case of Okpanum v. S.G.E.(Nig.) Ltd (1998) 7 NWLR (Pt.559) 537 at 552-553 SC.
This principle is predicated on the fact that the Court of Appeal is not a trial Court and as such once a case has been tried and concluded, the case should not be re-opened on appeal to enable a party to improve on his case at the trial Court, by allowing him to adduce further evidence.
In NWANEZIE V. IDRIS (1993) 3 NWLR (Pt. 279) SC 1 Per KARIBI-WHYTE JSC at page 13 paragraph D-F Held:
“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 (1987) 3. NWLR (Pt.61) 364; Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118; Severino v. Witt & Busch (1911) 2 NLR 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 exercise 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 enumerated in the case of ASABURO V. ARUWAJI (1974) 1 All NLR (Pt.1) 40 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 UBA PLC V. BTL Ind. Ltd (2005) 10 NWLR (Pt.933) 356 at 370. 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.
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) LPELR-2491 (SC) I am also well guided by the statement of Oguntade JSC in UBA 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 instant case the three preconditions stated by the Supreme Court in ASABORO V. ARUWAJI (1974) 1 All NLR (Pt.1) 40 SC Per Coker, JSC have not been satisfied. To allow the instant application will amount to erecting evidence that was not tested at the hearing and relying on it to assess a Judgment that was only given based on the facts and evidence inclusive of Documentary evidence that were properly before that Court.
This repair kit advocacy cannot be allowed to be used to impugn a Judgment for the non-reference to such document that was not in evidence before her. This Applicant want a second bit at the cherry, this Court will not allow him to do so. This application is without merit and is hereby dismissed.
Cost of Fifty Thousand Naira (N50,000) is awarded against the Appellant in favour of the Respondent.
JOSEPH EYO EKANEM, J.C.A.: I read in advance a copy of the ruling which has just been delivered by my learned Brother, M. S. HASSAN. JCA. I agree the reasoning and conclusion therein which I adopt as mine in dismissing the application.
ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.: I have been afforded the privilege of reading a draft copy of the lead ruling just delivered by my learned brother MUSLIM SULE HASSAN, JCA.
The issues raised for determination have been exhaustively addressed and I agree with the reasoning and conclusion contained therein. For emphasis I would like to reiterate that there are certain principles that guide the admitting of fresh or further evidence on appeal. In CONGRESS FOR PROGRESSIVE CHANGE & ANOR v HON. EMMANUEL DAVID OMBUGADU & ANOR (2013) LPELR – 21007 (SC) the Apex Court per PETER – ODILI, JSC held
“….the lower Court is duly empowered to admit fresh evidence in respect of matters which occurred after the proceedings and judgment of the trial Court so long as the guidelines for such admission are met. I would in that regard cite the case of Okpanum v. S.G.E. (Nig) Ltd. (1998) 7 NWLR (Pt. 559) 537 at 546 per Onu JSC: “For a clearer appraisal of the treatment or the lone issue, it is pertinent firstly to consider what additional evidence is all about and when it is receivable by an appellate Court. Undoubtedly, the Court of Appeal has 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. See Order 1, Rule 20(3) Court of Appeal Rules, 1981 (as amended) and the Court of Appeal decision in Michael Odiase v. Vincent Omele (1985) 3 NWLR (Pt.11) 82 at 85. See also Enekebe v. Enekebe (1964)NMLR 42. However, the conditions for admitting such fresh evidence on appeal are so stringent that there are very few cases if any, in our Courts where such evidence was admitted. But see the English cases of Ladd v. Marshall (1954) 1 WLR 1489 at 1491; Skone v. Skone (1971) 1 WLR 812; (1971) 2 All ER 582. The principles which an appellate Court must take into consideration in the judicious exercise of its power to grant leave to adduce new evidence are: (a) The evidence sought to be adduced must be such as could not have been with reasonable diligence, obtained for use at the trial, or are matters which have occurred after judgment in the trial Court, (b) in respect of other evidence other than in (a) above, as for instance in respect of an appeal from a judgment after a hearing on the merits, the Court will admit such fresh evidence only on special grounds as provided for in Order 1, Rule 20(3) of the Court of Appeal Rules (ibid). (c) The evidence to be adduced should be such as if admitted, it would have an important not necessarily crucial effect on the whole case; and (d) The evidence must be as such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.” (UNDERLINING MINE)
The necessary pre conditions to allow the application in this instant case were not met by the Appellants.
Flowing from this and the more detailed reasoning in the lead judgment, I too hold that the application is without merits and is accordingly dismissed.
I abide by all consequential orders in the lead judgment.
Appearances:
I.O ERUOFOR-ETEROBORNE For Appellant(s)
CHIEF OGHENERO OTORO For Respondent(s)
