ESSIEN & ORS v. GOV OF AKWA IBOM STATE & ORS (2020)

ESSIEN & ORS v. GOV OF AKWA IBOM STATE & ORS

(2020)LCN/14673(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, October 30, 2020

CA/C/174/2018(R)

RATIO

APPEAL: PRINCIPLES GUIDING THE COURT IN THE GRANT OF APPLICATION FOR LEAVE TO ADDUCE FRESH EVIDENCE

The clear import of the above provision is that the Court in the consideration of an application of this nature must of necessity consider whether the application is deserving of the Court’s discretion after an examination of the entirety of the circumstances that calls for consideration as enumerated in a host of case, notably Obasi vs. Onwuka (supra), religiously followed by this Court in the case of Mohammed vs. Dajan & Ors (2010) LPELR-4498 (CA), per Rhodes-Vivour JCA. In the latter case cited, this Court rightly understood the position of the law on the issue stating that:
“It is the attitude of the appellate Courts not to admit fresh evidence, fresh issues or additional evidence on appeal except where the circumstances are such that it was not foreseen and it is in the best interest of justice that the fact be led”.
The Court went further to hold that where evidence is led and judgment entered on the merit before the trial Court, the only evidence that can be led on appeal are evidence of facts which occurred after the hearing, and no other evidence can be allowed except on special grounds. See the cases of Okpanum vs. SGE (Nig) Ltd (1998) 7 NWLR (pt. 559) 537, Bisola Nigeria Ltd & Anor vs. Mainstreet Bank Ltd & Anor (2010) LPELR – 3879 (CA) per Agbo JCA.
Mr. Ekanem, the learned counsel for the respondent herein is therefore correct asserting and relying on those principles eminently set out by Oputa JSC, in Obasi vs. Onwuka (supra), and polished by Karibi-Whyte JSC in Owata vs. Anyigor (supra) in contending that the principles established therein must co-exist, so as to enable the Court exercise its discretion in favour of the applicant. PER BARKA, J.C.A.

Before Our Lordships

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

ANIEFIOK AKPAN ESSIEN 2. JOHN EDEM EKWERE 3. VICTOR EDEM ANSO (For Themselves And As Representing The Graduated Students Of The Akwa Ibom State College Of Agriculture, Obio Akpa). APPELANT(S)

And

THE GOVERNOR OF AKWA IBOM STATE 2. THE COMMISSIONER FOR AGRICULTURE, AKWA IBOM STATE 3. THE COMMISSIONER FOR EDUCATION, AKWA IBOM STATE 4. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, AKWA IBOM STATE. RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): By this application filed by the Respondents/Applicants brought by Motion on Notice pursuant to Order 4 Rule 2, and Order 6 Rule 1 of the Court of Appeal Rules 2016 as well as Section 15 of the Court of Appeal Act, applicant prayed for the following reliefs:
1. An order allowing the Respondents/Applicants to call further evidence by Affidavit or Oral evidence or by deposition taken before the Commissioner of Oaths on the certification of the results of the Respondents/Applicants and the people they are representing in this Appeal by the Ministry of Agriculture and Women Affairs being the supervisory Agency of the College of Agriculture, Obio Akpa, based on records made available to them by the Akwa Ibom State University, Ikot Akpaden.
2. And for such further or other orders as this Honourable Court may deem fit to make in the circumstance.

The applicant relies on the following grounds in support of his application:
1. Judgment was delivered on 19/12/2017 and the appellants filed their notice and grounds of appeal on 4/1/2018.
2. On 31/08/2018, the Respondents/Applicants filed a

motion to dismiss the appeal in Appeal No. CA/C/174/2018 for want of diligent prosecution.
3. That on 10/10/2018 the appellants filed a motion for extension of time to file their brief of argument.
4. Between 2018 and 2020, the Respondents/Applicants and the persons they are representing in this Appeal have and are still receiving letters attached to this application as Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94 and 95 from the Ministry of Agriculture and Food Sufficiency Akwa Ibom State regarding their National Diploma and Higher National Diploma results at the defunct College of Agriculture, Obio Akpa, Oruk Anam Local Government Area. This Ministry is now the Ministry of the 2nd Appellant.
5. That the letters aforesaid were not available and could not have been obtained and with reasonable diligence used at the Court

of trial.
6. The evidence sought to be admitted are apparently credible and is capable of being believed.
7. That the letters sought to be received in evidence will have an important influence on the result of the case.
8. That receiving the letters in evidence will ensure a determination on the merits on the real issues in controversy between the parties.
9. The documents sought to be tendered are weighty and material.

Also supporting the application is an affidavit of 11 paragraphs deposed to by one Enobong Sunday Akpan, a litigation clerk in the law office of Ada Okonkwo and Company, the law firm representing the applicants to which is annexed 95 exhibits marked as Exhibits 1-95n respectively.

Lastly, appellant filed a written address dated the 5th of March, 2020 and filed on the same date. Learned counsel on the 14th day of September, 2020 adopted the said address in support of the application.

The Appellants/Respondents opposed the application; and in so doing filed a counter-affidavit of 17 paragraphs deposed to by one Mr. Samuel Isang, a litigation officer in the Ministry of Justice Akwa Ibom State. Hinged on the

motion papers is a written address dated and filed on the 11th of September, 2020. Learned counsel representing the respondents likewise on the 14/1/2020 adopted his written address in opposition to the appeal.

Moving his application, learned counsel referred the Court to the facts deposed to in the affidavit and identified the issue for determination as being whether the Court can allow the respondents/applicants to call further evidence on the certification of the results of the respondents/applicants and the people they are representing in this appeal by affidavit or oral evidence or by deposition taken before the commissioner for oath in the circumstance of this case.

Learned counsel then submitted that the Court has the power to admit additional evidence on appeal where shown that the evidence would not have been obtained and with reasonable diligence used at the Court of trial and relied on the cases of Nwaogu vs. Atuma (2013) 10 NWLR (pt. 1363) 391 at 610-613, Esangbedo vs. The State (1989) 4NWLR (pt. 113) 57 at 66-67 and Okulate vs. Awosanga (1990) 5NWLR (pt. 150) 340 at 345.

Learned counsel also submitted that the Court has discretionary

power to receive further evidence on questions of fact either by taking oral evidence, by affidavit, or by deposition before a commissioner of Oath as stated in Okulate vs. Awosanya (supra) at p. 345. He further submitted that the paramount consideration for the exercise of the powers of the Court of Appeal to receive further evidence is to ensure a determination on the merit on questions in controversy relying on Adeleke vs. Aserifa (1990) 3 NWLR (pt. 136) 94 at 110, contending that by Section 15 of the Court of Appeal Act, Order 4 Rule 2and Order 6 Rule 1 gives the Court the power to receive further evidence on questions of fact based on special grounds. The case of Owata vs. Anyigor (1993) 2 NWLR (pt.276)380 at 393 was cited in support of the legal position.

He maintained that the documents sought to be received in evidence were letters the applicants and the people represented in the appeal received from the Ministry of Agriculture and Food Sufficiency, Akwa Ibom State, being the Ministry of the 2nd appellant. He states that the letters were not available and could not have been used with reasonable diligence and used at the trial having been issued

between the years 2018 and 2020. Learned counsel then concluded by urging the Court to consider the special circumstance existing in the appeal, and to grant the application as prayed.

In response to the applicant’s address, Mr. Bassey J. Ekanem, the learned counsel representing the appellant/respondent referred to the deposition in the applicant’s affidavit in support as well as the affidavit of the respondents herein, and crafted a single issue for the determination of the application, to wit;
Considering the circumstance of this case, whether the Court can exercise its discretion to allow the respondents/applicants call further evidence in this case on Appeal.

Learned counsel then proceeded to respond to the submissions of the appellant, and with regards to the submission on the Court’s power under Section 15 of the Court of Appeal Act, Order 4 Rule 2 and Order 6 Rule 1 of the rules of this Court, stating that owing to the circumstances in this case, the Court cannot exercise its discretion in allowing the applicant to call further evidence. He alluded to the provisions of Order 4 Rule 2 of the Court of Appeal Rules 2016,

and contended that the implication of the rule is that the Court is precluded from accepting further evidence on appeal, except where special circumstances are established. Relying on a host of cases notably,Gbenga vs. Joy and ors. (2019) 4SC 119, FBIR vs. Rezcallah & Sons Ltd (1962) 1SCNLR 1, AG Federation vs. Alkali (1972) 12 SC 29 and Obasi vs. Onwuka (1987) 3NWLR (pt. 6) 364, learned counsel argued that before this Court can allow the applicant to call further evidence, it must be established, whether the applicant is entitled to the discretion of the Court allowing for the adducing of additional evidence. Learned counsel made reference to the decision of Oputa JSC inOnwuka vs. Obasi (supra) adopted in the case of Owata vs. Anyigor (1993) 1NWLR (pt. 276) 380 @ 393, which held that:
“Before a Court of Appeal exercises its powers to receive further evidence on appeal, the following conditions must be met:
i. The evidence sought to be adduced should be such that it could not have been obtained with reasonable care and diligence for use at the trial.
ii. If fresh evidence is admitted it would have an important but not necessarily

crucial effect on the whole case.
iii. If the evidence sought to be adduced is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible.
iv. Additional evidence may be admitted if the evidence sought to be adduced could have influenced the judgment of the lower Court in favor of the applicant if it had been available at the trial Court.
v. The evidence must be material and weighty even if not conclusive. Where the evidence sought to be adduced is immaterial and irrelevant it will be rejected.”

He proceeded to argue that where the above enumerated principles are applied to the present application, this Court would come to the conclusion that the applicant’s application ought to be refused. Emphasizing the first principle enunciated in the case of Onwuka vs. Obasi (supra), learned counsel contended that paragraph 4 of the applicant in support of the application was denied by the respondent, maintaining that the Ministry couldn’t have been made to give them the letters, the case having commenced since 2010 to date. With respect to the second principle, also

stated in the case of Onwuka vs. Obasi (supra), learned counsel contended, that even were the application was to be granted, the grant would not have any effect on the case. He contended also that the personality of the college being statutory, the mere supervision by the government does not place any liability on the appellants. Also contending on the third principle, it was argued that the credibility of the exhibits appear doubtful having not emanated from the custody of the appellants. On whether the additional evidence where admitted could have influenced the judgment of the lower Court in favour of the applicant, it was submitted for the respondents that the judgment of the lower Court was in its favour, and further that the exhibits were made in order to enhance the respondents case. He submits that all the above listed preconditions which must co-exist, and further relying on Owata vs. Anyigor (supra) argued that the power vested in the Court of appeal to allow for further evidence on appeal is sparingly exercised and with great circumspection because of the likely prejudice it may occasion on the other party. He maintained that the applicants did not

satisfy the conditions laid down before now, as to call on the Courts discretion exercised on its behalf. In all, while learned counsel admits that the Court has the powers to grant the application, maintained that such power is subject to certain conditions which do not exist in the present case. He then urged the Court to dismiss the application.

I have therefore accorded due consideration to the submission of the learned counsel on the issue, which primarily is for the exercise of the Court’s discretion, in allowing the applicant adduce further evidence by allowing the application either by affidavit evidence, oral evidence or deposition. The fact that the Court is imbued with the requisite power of granting such an application under the right circumstance is not debatable. For instance, Order 4 Rule 2 of the Court of Appeal Rules 2016, makes provision for the exercise of this Court’s power in the following manner:
“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 a trial or hearing of any cause or matter on the merits, no such further evidence as to matters which have occurred after the date of the trial or hearing shall be admitted except on special grounds”.
The clear import of the above provision is that the Court in the consideration of an application of this nature must of necessity consider whether the application is deserving of the Court’s discretion after an examination of the entirety of the circumstances that calls for consideration as enumerated in a host of case, notably Obasi vs. Onwuka (supra), religiously followed by this Court in the case of Mohammed vs. Dajan & Ors (2010) LPELR-4498 (CA), per Rhodes-Vivour JCA. In the latter case cited, this Court rightly understood the position of the law on the issue stating that:
“It is the attitude of the appellate Courts not to admit fresh evidence, fresh issues or additional evidence on appeal except where the circumstances are such that it was not foreseen and it is in the best interest of justice that the fact be led”.
The Court went further to hold that where evidence is led

and judgment entered on the merit before the trial Court, the only evidence that can be led on appeal are evidence of facts which occurred after the hearing, and no other evidence can be allowed except on special grounds. See the cases of Okpanum vs. SGE (Nig) Ltd (1998) 7 NWLR (pt. 559) 537, Bisola Nigeria Ltd & Anor vs. Mainstreet Bank Ltd & Anor (2010) LPELR – 3879 (CA) per Agbo JCA.
Mr. Ekanem, the learned counsel for the respondent herein is therefore correct asserting and relying on those principles eminently set out by Oputa JSC, in Obasi vs. Onwuka (supra), and polished by Karibi-Whyte JSC in Owata vs. Anyigor (supra) in contending that the principles established therein must co-exist, so as to enable the Court exercise its discretion in favour of the applicant.
In examining whether the principles highlighted before now has been established by the applicant, I find paragraphs 4 – 8 of the applicant’s affidavit in support material to the issue and are thus reproduced as follows:
4. That after the judgment aforesaid, and while this appeal is pending, the Government of Akwa Ibom State in the Ministry of Agriculture and

food sufficiency, the supervisory Agency to the college in a series of letters between 2018 and 2020 wrote to the respondents/applicants and the other graduated students of the defunct College of Agriculture, whom they are representing in this appeal certifying their result from the list of graduates of the defunct college of agriculture Obio Akpa, Oruk Anam Local Government Area made available to the Ministry which was the supervisory agency of the College by the Akwa Ibom State University Ikot Akpaden. Copies of some of the letters are attached and marked exhibits 1, 2, 3, 4, 5, up to exhibit 95 respectively.
5. That the principal of our chambers, Mrs. Ada Okonkwo has informed me and I verily believed her that there is need to admit these letters as additional evidence as the letters were written after the hearing of the case at the trial Court.
6. That the Ministry aforesaid is still issuing letters to graduated students. They have refused also to issue to some other students. That this process is on going.
7. That the principal of our chambers has further informed me and I believe her that the letters could not have been obtained with

reasonable care and diligence since it was not in existence during the trial of the case.
8. That the said principal of our chambers has also informed me and I believe her that the evidence if given would have an important influence on the result of the case.
Hitherto, the applicant had deposed to grounds upon which the application is founded.
The respondent on the other hand, seemingly denied all the averments contained in the applicants affidavit. For instance it was averred in response to the applicant’s paragraphs 4 – 8 that:
9. That paragraph 4 of the affidavit is not true and accordingly denied. The Ministry of Agriculture did not write to the graduated students of the defunct college of Agriculture, Obio Akpa, Oruk Anam Local Government Area on their statement of result or any issue. The Permanent Secretary of the said Ministry never wrote or authorized that such letter be written. The letters mentioned in the said paragraph and attached as exhibits are not from the Ministry of Agriculture.
10. That paragraph 5 of the affidavit is denied. There is certainly no need for the Court to admit these letters or the letters

were made just for the purpose of this case. There are certainly no special grounds for the letters to be admitted.
11. That paragraph 6 of the affidavit is not true and accordingly denied. The Ministry of Agriculture did not issue the letter and is not issuing any letter to any student.
12. That paragraph 7 of the affidavit is denied. The case in the lower Court was instituted since 2010. With due diligence there was enough time to have obtained any letter from any place before the end of the case in 2017. The Respondents/applicants are deliberately bringing this application now so as to misdirect this Court by improving upon their case and reshaping same.
13. That paragraph 8 of the affidavit is denied. The evidence if given will not affect the result of the case but will rather constitute a waste of time of this Court.
Interestingly, there is no further or better affidavit filed by the applicants reacting to the counter affidavit filed. The question however which must be resolved is whether applicants established or satisfied those conditions ably set out inObasi vs. Onwuka (supra).
I have in an effort at answering the issue posed,

examined the applicants application including the grounds and the affidavit in support of the application. I have similarly examined the respondents counter affidavit. From the applicant’s affidavit, it is clear that the evidence applicant seeks adduced as additional evidence, relates to a bundle of documents identified by the applicant as exhibits 1 – 95 attached to the motion papers. A critical examination of the exhibits indicates that the documents allegedly emanated from the Government of Akwa Ibom state, specifically from the Ministry of Agriculture and food sufficiency, signed by one Ifiok M. Udo, for Permanent Secretary, and dated variously from the 6th of September, 2018 to the 18th day of February, 2020. The position of the law is that as stated by Rhodes-Vivour JCA as he then was in Mohammed vs. Dajan & Ors (2010) LPELR-4498 (CA) thus:
“It is the attitude of the appellate Courts not to admit fresh evidence, fresh issue or additional evidence on appeal except where the circumstances are such that it was not foreseen, and it is in the best interest of justice that the fact be led”.
Further to that, is the state of law

in that where evidence is led and judgment entered on the merit at the trial Court, the only evidence that can be accommodated on appeal are evidence of facts which have occurred after the hearing, and no other except on special grounds. This principle of the law is accommodated in the cases of Okpanum vs. SGE (Nig) Ltd (1998) 7NWLR (pt. 559) 537, Bisola Nigeria Limited & Anor vs. Mainstreet Bank Ltd & anor (2010) LPELR – 3879 (CA).
It should not be lost sight of that the respondents by their action before the lower Court, instituted the action for themselves and as representing the graduated students of the Akwa Ibom State College of Agriculture Obio Akpa. Thus by paragraph 4 of the grounds in support of the application, earlier reproduced, and paragraph 4 of the affidavit in support of the application equally alluded to the fact that after the judgment being appealed against, and while the appeal is pending, the Government of Akwa Ibom State through its agency the Ministry of Agriculture and Food sufficiency continued to issue out letters to the applicants certifying their results from the list of the graduates of the defunct college of

Agriculture Obio Akpa, Oruk Anam Local Government Area.
Onu JSC, in Okpanum vs. SGE (Nig) Ltd (supra) reiterated the fact that the Court of Appeal has the 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. The learned jurist on the issue opined that:
“The principles which an appellate Court must take into consideration in the judicious exercise of its powers 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 the 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 such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
While clearly supporting the lead judgment, Uwais JSC, agreed with the legal position established that this Court has the power to grant the application, but the additional evidence has to be of an event that happened after the judgment of the High Court, and more importantly, that the application is granted under special circumstances. Ogwuegbu JSC also on the issue, and relying on their earlier decision in Asaboro vs. Aruwaji & Ors (1974) 4SC 119, pointed out that once a trial takes place, prima facie further evidence should not be allowed to be called unless a strong case has been made out for so doing. The learned jurist however went further to hold that where the Court of appeal is of the opinion that the case was decided on insufficient grounds, the Court can exercise its discretion in allowing for the calling of further evidence as was the case in Dawodu vs. Danmole (1962) 1ALL NLR 702.
Coming to the case at hand, it is clear without any iota of doubt that the exhibits sought to be

tendered took place after the determination of the case before the trial Court. It can equally be said that the evidence accrued after the hearing of the case on the merit. What then is the special circumstance in the applicant’s application capable of moving the Court exercising its discretion in its favour. I have carefully perused the affidavit in support of the application, and in particular paragraphs 4 – 10 thereof. I have given due consideration to paragraph 4 bearing the letters identified as exhibit 1 – 95 sought to be tendered in evidence, and I am inclined in accepting the submission of the respondents that all the conditions stipulated in a host of cases notably Owata vs. Anyigor (supra) which conditions must co-exist as held in the case of Adegbite & Anor vs. Amosu (2016) LPELR-40655 were not met. The erudite words of Karibi – Whyte JSC in Owata vs. Anyigor (supra), to the effect that:

“This is because of the risks involved in allowing a person to reopen an issue after it had been decided on the excuse that new facts which could have been discovered and relied upon and used at the trial have now been found.

It is likely to prejudice the position of the other party and result in the miscarriage of justice”
This view is not different from that held by Onu JSC in Okpanum vs. SGE (Nig) Ltd (supra), having stated that 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.
I fail to see any special circumstance worthy of steering this Court’s discretion in granting the application and same is hereby refused.

MOJEED ADEKUNLE OWOADE, J.C.A.: I read in advance the ruling delivered by my learned brother Hamma Akawu Barka. JCA. I agree to the statement of law as ably stated by the lead Ruling that an Appellate Court will not ordinarily admit fresh evidence except circumstances are such that it was not foreseen, and it is in the best interest of justice that the fact be led

I also agree with the lead ruling that the Respondents Applicants have not met the conditions necessary for the Court to admit fresh evidence in this case

I also refuse to grant the application by the Respondents Applicants.

MUHAMMED LAWAL SHUAIBU J.C.A.: I read in draft the judgment just delivered by my learned brother Hamma A. Barka, JCA and I agree entirely with the reasoning and conclusion.

I too refused to grant leave to the applicant to call further evidence. Application is refused.

Appearances:

Ada Okonkwo, Esq.
For Appellant(s)

Bassey I. Ekanem, DCL, Ministry of Justice, Akwa Ibom State
For Respondent(s)