EYITAYO v. KAZEEM & ANOR (2022)

EYITAYO v. KAZEEM & ANOR

(2022)LCN/16505(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Thursday, April 28, 2022

CA/IL/108/2021(R)

Before Our Lordships:

UzoIfeyinwaNdukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

BRIG. GEN. ABDULWAHAB EYITAYO APPELANT(S)

And

1. MR. ALIYU OLAYIWOLA KAZEEM 2. MRS. ADEJOKE EYITAYO RESPONDENT(S)

RATIO:

AN INCOMPETENT NOTICE OF APPEAL CANNOT BE AMENDED TO GIVE BIRTH TO A COMPETENT ONE

The law has since been firmly settled that an incompetent Notice of Appeal cannot be amended to give birth to a competent amended Notice of Appeal. The principle of law enunciated in UAC v. Mcfoy (1961) 3 ALL ER 1169 – is very apt here. As the Notice of Appeal is the foundation and the substratum of every appeal, there cannot be a valid appeal without a valid Notice of Appeal. An incompetent notice of appeal which is a dead process is incapable of being amended. It cannot give birth to a life process. Therefore, an incompetent Notice of Appeal can only give birth to an incompetent amended Notice of appeal. KENNETH IKECHUKWU AMADI, J.C.A.

EVIDENCE SOUGHT TO BE ADDUCED AS FRESH EVIDENCE MUST BE APPARENTLY CREDIBLE

Also in Mrs. Salome Ede v Mrs. Maria Chita (2016) LPELR – 41031 on page 19 paragraph C, this Court gave its own interpretation of fresh evidence on appeal via the pronouncement of Oredola, JCA, thus: –
“It is trite law that the evidence sought to be adduced as fresh evidence must be apparently credible in the sense that it is capable of being believed and need not be incontrovertible.”
Thus from the definitions of fresh evidence above fresh evidence have the quality of newness or have been newly available or obtained. However, it must be credible, capable of being believed and need not be incontrovertible.
Order 4 Rule 2 of the Court of Appeal Rules, 2021 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 merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.” KENNETH IKECHUKWU AMADI, J.C.A

A PARTY WILL NOT BE ALLOWED TO RAISE ON APPEAL A QUESTION WHICH WAS NOT RAISED

It is trite law that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court, but where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision on them, the Court will allow the question to be raised and the points taken and prevent an obvious miscarriage of justice. See Akpene v Barclays Bank (1977) 1 SC 47, Shonekan v Smith(1964) 1 ALL NLR 168. KENNETH IKECHUKWU AMADI, J.C.A

THE GUIDING PRINCIPLES FOR THE GRANT OF AN APPLICATION TO ADDUCE FURTHER EVIDENCE ON APPEAL

The guiding principles for the grant of an application to adduce further evidence on appeal were spelt out in ASABORO V. ARUWAJI (1974) 4 SC 119 and they are:-
“(i). The evidence sought to be adduced should be such as could not have been with reasonable diligence obtained for use at the trial.
(ii). The evidence should be such as if admitted, it would have an important not necessarily crucial, effect on the whole case; and
(iii). The evidence must be such as apparently credible in thesense that it is capable of being believed and it need not be incontrovertible. The conditions stated above must co-exist and be met by the applicant before the appellate Court can exercise its discretion in granting the appellant leave to call further evidence on appeal. See OWATA V. ANYIGOR (1993) 2 NWLR (PT. 276) 380 AT 393, OKPANUM V. SGE (NIG.) LTD (1998) 7 NWLR (PT. 559) 537 AT 546 – 547.”
Per AKA’AHS, JSC (Pp. 26-27, paras. B-C). UZO IFEYINWA NDUKWE-ANYANWU, J.C.A

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgement): By a Motion on Notice filed on 7/2/2022, the applicant applied to this Court for the following orders:-
1. AN ORDER OF THIS HONOURABLE COURT granting leave to the Appellant/Applicant to amend the Notice of Appeal dated and filed on 9th November, 2021 by adding additional grounds of appeal (i.e Ground Six (6) and Seven (7) in line with Schedule of amendment accompanying proposed amended Notice of Appeal) attached herewith.
2. AN ORDER OF THIS HONOURABLE COURT granting leave to the Appellant/Applicant to tender the original copies of the under listed documents as fresh evidence and Exhibits in this appeal:-
(a) Deed of Agreement between Mrs. Grace Ndiomu and Mr. Aliyu Olayiwola Kazeem dated 25th May, 2005.
(b) Power of Attorney in favour of Barrister Timothy O. Sunday Gbadeyan by Mr. Aliyu Olayiwola Kazeem dated 2nd February, 2010.
(c) Deed of Assignment between Barr. Timothy Sunday Gbadeyan and Mallam Abdul Wahab Adelokun Eyitayo.
3. AN ORDER OF THIS HONOURABLE COURT granting leave to the Appellant/Applicant to raise and formulate fresh(sic) (not raised before the trial High Court) for the first time before this Honorable Court as contained in Ground Six (6) and Seven (7) of the Amended Notice of appeal.
4. AND FOR SUCH FURTHER ORDERS(S) as this Honorable Court may deem fit to make in the circumstance of this case.
The application was brought on the following grounds:
a. The Appellant/Applicant was not a party to the suit leading to this appeal at the trial Court in which judgment was delivered on 11th March, 2019 in Suit No. KWS/150/2016.
b. THIS Honorable Court granted leave to appeal against the aforementioned judgment on 28th October, 2021 and our original Notice of Appeal dated 6th February, 2019 and filed 7th February, 2019.
c. That there is need to file additional grounds of appeal in order to properly cover the issues raise in this appeal, thereby making it necessary to amend the original Notice of Appeal.
d. That the leave of this Honourable Court is required to amend the original notice of appeal and argue fresh issue thereon.
e. That the above listed documents (a)-(d) in prayer two (20 on this motion paper are the original title documents over No.10 Catchment Road, GRA, Ilorin, Kwara State which was the subject matter of the judgment of the trial Court and this appeal.
f. That these documents are material to establish that there was transaction between the appellant and the agent of the 1st respondent.
g. That one of the documents sought to be tendered before this Honorable Court is original copy of deed of agreement between Mrs. Grace Ndiomu and Mr. Aliyu Olayiwola Kazeem (i.e 1st respondent) dated 2th May, 2005 which photocopy was admitted by the trial Court as Exhibit 1.
h. That the original copy of the Power of Attorney in favour of Barrister Timothy O. Sunday Gbadeyan by Mr. Aliyu Olayinka Kazeem (i.e 1st Respondent) dated 2nd February, 2010 sought to be tendered which photocopy was admitted by the trial Court as Exhibit 2.
i. That the original copies of documents sought to be tendered could not be tendered by the appellant/applicant because he is not a party before the trial Court.
j. That the aforementioned documents sought to be tendered are essential for the determination of this appeal and the leave of this Honorable Court is required before the appellant/applicant can tender fresh evidence on appeal.
k. That it is in the interest of justice to grant this application.”

The Application is supported by a 6-paragraph Affidavit filed on 7th February, 2022, with six Annexures marked as Exhibits A-F, a written address dated 4th February, 2022 and filed on 7th February, 2022, and a reply on Point of Law filed on 28th February, 2022.

In opposition to the application, the 1st Respondent filed a 4-paragraph Counter-Affidavit on 25th February, 2022 as well as a written address dated 24th February, 2022 and filed on 25th of February, 2022. The 2nd Respondent did not file any process in respect to the application of the Appellant/Applicant.

The Appellant/Applicant in his written address formulated a sole issue for determination thus:
“Whether the applicant has placed sufficient materials before the Court to warrant this Honorable Court in exercising its judicial discretion in the applicant’s favour by granting this application?”

The 1st Respondents also formulated a sole issue thus:
“Whether considering the facts depose to in the Affidavit of the 1st Respondent and the circumstances of this appeal, this Honorable Court will refuse the application of the applicant?”

Arguing the sole issue, the Applicant’s counsel submitted that the applicant has placed sufficient materials before the Court to warrant this Court in exercising its judicial discretion in the applicant’s favour by granting this application. He referred the Court to the case of Eneh v NDIC 2018 16 NWLR (Pt.1645) 355.

He maintained that a careful perusal of the motion paper, particularly the grounds of this application, the affidavit in support and the Exhibits attached clearly revealed the importance of the documents sought to be tendered to the just determination of the appeal.

It is submitted further that, the applicant has stated the fact that he could not tender these documents before the trial Court because he was not made a party to the trial and he was not aware that there was any litigation over the property which he legally acquired having parted with a valid consideration.

Learned counsel contended that the applicant has provided all the necessary materials needed to be considered by this Court in the grant of this application. He referred the Court also the case of Rinco Const. Co. v VEEPEE Inds (1990) 6 NWLR (Pt. 158) 630 and submitted that the documents sought to be tendered have met all the conditions stated in that case.

He insisted that the documents sought to be tendered by the applicant are credible and verifiable by the parties to this appeal. Therefore, the applicant has met and passed the test and conditions guiding the admissibility of fresh evidence on appeal. He referred the Court to the case of Gazu v Nyam (1998) 2 NWLR (PT. 538) 477.

He insisted that the fact that the applicant did not have opportunity to defend the suit leading to this appeal, being not a party before the trial Court, constitute a special circumstance under which this Court can grant the applicant leave to tender fresh evidence before it. He referred the Court to the case Dike-Ogu v Amadi (2020) 1 NWLR (Pt. 1704) 45.

He urged the Court to find this application meritorious and grant all the reliefs sought by the applicant.

The 1st Respondent counsel in opposing the application submitted that the applicant herein is not clothed with the latitude and/or freedom to amend the notice of appeal or raise fresh issues not raised before the trial Court, because he was not a party at the trial Court and the additional grounds of appeal sought to be filed did not arise from the judgment of the trial Court. Hence, it ought to be treated by this Court as incompetent.
He maintained that the grounds 6 and 7 sought to be filed does not attack the ratio decidendi of the judgment of the trial Court. He urged the Court to so hold. He referred the Court to the cases of:
Gwede v INEC (2014) NWLR (Pt. 1438) 56 AT 57.
FRN v Mohammed (2014) 9 NWLR (Pt. 1414) 551.
Ajayi v Ajayi (2014) 15 NWLR (Pt. 1431)588.

He contended that from the strength of the above authorities, the conditions precedents in respect of the application before this Court were not met by the applicant. He referred the Court to the case of; UBA Plc v BTL Ind. Ltd 2005 LPELR – 8065 SC.

Learned counsel argued further that the documents sought to be tendered are not pleaded, hence not admissible. The documents are also registrable instruments and having not been registered as required by law, they are not admissible. Also, the bank statement is not admissible, as the certificate required by Section 84 of the Evidence Act, 2011 was not attached to it.

The appellant/applicant’s counsel in reply address to the 1st respondent’s counter-affidavit and address in opposition to the motion filed on 7th February, 2022 contended that, paragraph 3 ((a) to (i)) of the 1st respondent’s counter-affidavit mainly contained legal arguments, submissions, prayers and objections; thus, amount to extraneous matters contrary to Section 115 (2) of the Evidence Act. He referred the Court to the case of Maduka v UBA 2015 11 NWLR (Pt. 1470)201.

On the 1st respondent’s argument at paragraphs 3.03 to 3.07 of his written address, the applicant’s counsel submitted that the 1st respondent’s argument is totally misconceived as this Court has the powers to grant this application on the following reasons:
“a. The applicant is not a party to this suit before the trial Court but graciously granted leave by this Court to appeal the judgment of the trial Court as interested party.
b. The crux of the applicant’s complaint against the judgment of the trial Court was that he ought to be made a party at the trial Court and that the failure to do so amount to denial of his right to fair hearing.
c. That the fresh evidence sought to be tendered are documents relating to the transaction leading to the purchase of the property in dispute and if considered might have changed the decision of the trial Court.

He added that where grounds of appeal raises the issues of denial of fair hearing and proper service of originating processes, they are akin to jurisdictional issue, which is an exception to the general rule that a ground of appeal should relate or challenge the decision of the trial Court. He referred the Court also the cases of;
Akapan v Bob & 4 ORS (2010) 4-7 SC (PT. II) 57 AT 94-95.
Nnazie & Ors v Morah & Ors 2012 LPELR 1948 CA.
A.G Imo & Anor v Worthington SPA 2021 LPELR-55896.

On the 1st respondent’s counsel’s contention that the documents sought to be tendered before this Court are not pleaded, learned counsel for the applicant urged the Court to discountenance the argument of the 1st respondent’s counsel, as the applicant who is not a party before the trial Court cannot plead a document before it.

On the issue of registration of documents sought to be tendered, learned counsel to the applicant submitted that these documents were to be tendered to establish that there was transaction leading to the sale of the property in dispute and not as proof to establish title. Therefore, the documents are admissible in law. He urged the Court to so hold and referred the Court to the case of Abdullahi v Adetutu (2020) 3 NWLR (Pt.1711)338.

On the issue of bank statement raised by the 1st respondent’s counsel, learned counsel for the applicant submitted that the documents sought to be tendered neither contained nor related to any bank statement or computer generated evidence. He urged the Court to grant the applicant’s application.

RESOLUTION
The application before us is seeking for leave to amend the Notice of Appeal dated and filed on 9th November, 2021 (by adding additional grounds of Appeal), tender original copies of documents as fresh evidence/exhibits and to raise and formulate fresh issues for the first time before this Court.

AMENDMENT OF NOTICE OF APPEAL
On the issue of amendment of Notice of Appeal filed on 9/11/2021.
The position of the law is that the grant of such an application is at the discretion of the Court and like with any exercise of discretion, the discretion must be exercised judicially and judiciously.
In the exercise of its discretion, the Court must consider relevant Rules of Court or the law or statutes that vest in it a discretion to exercise and then consider the depositions in the supporting affidavit vis a vis the depositions in a counter-affidavit, if any, in opposition to the application. The applicant’s depositions which are germane to this application are contained at paragraph 4 (a) – (e) of the affidavit in support of the application.
The 1st Respondent’s opposition to the application as expressed in the sworn counter-affidavit are contained most importantly, at paragraph 3 (b) – (c).
From the said depositions and argument of both counsels, the important question is, whether the applicant is entitled to the judicious and judicial exercise of the Court’s discretion in his favour.
By Order 7 Rule 8 of the Court of Appeal Rules 2021, a Notice of Appeal may be amended by or with the leave of the Court at any time.
The said provision allows this Court to grant leave for any amendment to be made to a Notice of Appeal at any time before the hearing of the appeal; the only caveat being that the Notice of Appeal to be amended must be a valid and competent Notice of Appeal.

The contention of the learned Respondent’s counsel relying on the depositions in paragraph 3 (b) – (c) of the counter-affidavit is that the proposed amended notice of appeal sought to be filed by the applicant did not arise from the decision in the judgment of the lower Court; that the appellate Court will only allow grounds of a notice of appeal born out of the decision of the lower Court.

In this application, what the applicants seek to amend is the initiating Notice of Appeal which was filed on 9/11/2021 pursuant to an order of this Court, the competence of which has not been challenged by any deposition in the counter-affidavit. In other words, the counter-affidavit does not attack the competence of the original Notice of Appeal filed on 9/11/2021.

In the instant case, there is a subsisting valid Notice of Appeal filed on the 9/11/2021 which can, by leave of Court, be amended without the necessity to show the existence of any special circumstance to justify the amendment. All that the applicant needs to show is that the application is predicated upon a subsisting valid Notice of Appeal and the amendment if effected, will not be prejudicial to the Respondent but will serve the ends of justice and fairness. This, the applicant has shown in this application.

Since the purpose of an amendment is to ensure that the applicant’s complaints against the decision in question are laid and ventilated before the Court, the Court can and indeed should not hesitate to exercise its discretion to grant the application.

The opposition to this application I must say stems from the embrace or romance the learned Respondent’s counsel has with the old fashioned adherence to undue technicalities which is fast fading away from our jurisprudence and is giving way to substantial justice to the parties. The Courts are more than ever before enjoined to embrace the path of justice to all parties as the sole purpose of the Court is to do substantial justice between the parties that come before it for adjudication of their disputes. Where adherence to technicalities would becloud the justice of the matter, the Courts are to keep away and maintain a wide distance from that path and trade the path of justice. The ultimate goal of every Court, whenever it is possible, is to determine a case on its merits rather than clinging to mere legal technicalities to refuse a party from being heard on merit. It is by so doing that justice and fairness will not only be dispensed but will be seen to have been dispensed.

In conclusion therefore, there being a subsisting valid Notice of Appeal and the amendment being sought is only to add additional grounds of appeal, I find the authorities cited by the Respondent’s learned counsel inapplicable to this application. Furthermore, in the light of the reasons afore stated in this ruling, I find merit in the application and have no hesitation in granting the prayers sought on the motion paper and accordingly grant same.

LEAVE TO TENDER ORIGINAL DOCUMENTS AS FRESH EVIDENCE AND EXHIBITS.
The fresh evidence/Exhibits herein are;
(a) Deed of Agreement between Mrs. Grace Ndiomu and Mr. Aliyu Olayiwola Kazeem dated 25th May, 2005,
(b) Power of Attorney in favour of Barrister Timothy O. Sunday Gbadeyan by Mr. Aliyu Olayiwola Kazeem dated 2nd February, 2010,
(c) Deed of Assignment between Barr. Timothy Sunday Gbadeyan and Mallam Abdul Wahab Adelokun Eyitayo.

The Supreme Court in Chief Philip O. Anatogu & Ors v H.R.H. IgweIweka II &Ors. (1995) LPELR – 484 per Ogundare, JSC, defined Fresh evidence as follows: –
“Now what is “Fresh evidence” and in what circumstances can it be given? A definition of the expression is given by Morris, LJ, in R V. Medical Appeal Tribunal (North Midland Region), Ex-parte Hybble (1959) 3 All E. R. 4047 thus: “Fresh evidence it seems to me, must have the quality of newness, or the feature of having become newly available and obtainable.”
Also in Mrs. Salome Ede v Mrs. Maria Chita (2016) LPELR – 41031 on page 19 paragraph C, this Court gave its own interpretation of fresh evidence on appeal via the pronouncement of Oredola, JCA, thus: –
“It is trite law that the evidence sought to be adduced as fresh evidence must be apparently credible in the sense that it is capable of being believed and need not be incontrovertible.”
Thus from the definitions of fresh evidence above fresh evidence have the quality of newness or have been newly available or obtained. However, it must be credible, capable of being believed and need not be incontrovertible.
Order 4 Rule 2 of the Court of Appeal Rules, 2021 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 merits, no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”

The applicant deposed to in his affidavit in support of the application that the original copies of documents sought to be tendered by the applicant could not be tendered because the applicant was not made a party at the lower Court and he was not aware that there was any litigation over the property. The Applicant now at the appeal stage seeks to adduce and rely on the above listed fresh evidence. This deposition was not controverted by the respondents. Depositions in affidavits which are not specifically traversed are deemed as accepted and unchallenged facts and the Court can act on them.

The standard for adducing fresh evidence has been set in a number of cases and the criteria is as set in Okpanum v S.G.E Nig. Ltd [1998] 7 NWLR (Pt 559) 537 where ONU, JSC held that:
“For a clearer appraisal of my treatment of 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) of the 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 such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.”
At the appeal stage, fresh issue is a condition that must be established in order to succeed in bringing fresh evidence on appeal. In Abana v Obi (2004) LPELR – 7428 (CA), this Court held thus:
“To succeed in bringing in fresh evidence on appeal, the first hurdle to be crossed is that the applicant must show that the evidence sought to be adduced was not available at the trial Court or could not be obtained even with reasonable care and diligence. See Awoke Owata v. Anyigor cited in the lead ruling at page 393.”
These parameters listed in the cases above must co-exist to be invoked.
In Bartholomew Onwubuariri & Ors v Isaac Igboasoiyi & Ors (2011) LPELR-754 per Onnoghen, JSC, on pages 19 – 20 paragraphs C – A, the Court held as follows: –
“The special grounds/circumstances under which the Court of Appeal or appellate Court can exercise its power to receive further/additional/fresh evidence on appeal include the following: (a) 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; (b) If the fresh evidence is admitted, it will have an impact but not necessarily crucial effect on the whole case; (c) If the evidence sought to be adduced is such that it is apparently credible in the sense that, it is capable of being believed even if it may not be incontrovertible; (d) If the evidence sought to be adduced could have influenced the judgment at the lower Court in favour of the applicant if it had been available at the trial Court; (e) The evidence must be material and weighty even if not conclusive, See Owata v. Anyigor (1993) 2 NWLR (Pt. 276) 380.”
In applying the above principles particularly with regard to the first of the above listed conditions which is more relevant to the present application the appellate Courts insist that it is not enough for the applicant to merely aver in the affidavit or in the counsel’s submission that he exercised reasonable diligence and yet the evidence to be adduced could not be obtained or that it is in the interest of justice to admit the fresh evidence, he must go further to show the practical steps he took to procure the evidence at the trial without success. It is pertinent here to note and restate the submission of both counsel in this case regarding the first condition.
The applicant in his affidavit in support of the application stated that he could not tender the documents sought to be tendered before this Court at the lower Court because he was neither sued by the 1st respondent nor was he aware of the suit from the commencement till judgment. That he now intends to tender the original copies of these documents as evidence to establish the fact that he is in possession of the original copies of the title documents of the property in dispute as a prove of valid transaction between him and the authorized agent of the 1st defendant. That the documents sought to be tendered are essential for the hearing and just determination of this appeal and the leave of this Court is required for the applicant to tender them as fresh evidence on appeal. I have earlier said that these averments were not denied or controverted by the respondents. Therefore, are deemed admitted by the respondent. See A.G Ondo State v. A.G Ekiti State(2001) 17 NWLR (Pt. 743) 706.
An appellate Court can received further evidence on question of fact but such further evidence is only received on special grounds.
In the circumstance of this case, the grant of the reliefs sought by the applicant would only permit him to adduced further evidence/exhibits which are attached to this application. This would have an important influence on the result of the case.
I think the interest of justice requires that the application be granted as per the reliefs sought by the applicant. A party to litigation cannot be shut out and the Court preceded on technical grounds from receiving further evidence that will assist the parties and the Court or the society at large. There is no doubt that the evidence/exhibits sought to be adduced if admitted, would not only have acritical but decisive effect on the whole case. In the instance case, it is necessary to receive such evidence/exhibits for the just disposal of the case.
It is obvious that the documents sought to be introduced in this appeal by the applicant met the requirement of special circumstances under which this Court can exercise its discretion in favour of receiving them in evidence in this appeal as provided by Order 4 Rule 2 of the Court of Appeal Rules, 2021.
It is my view that in the circumstances of this case, the documents/exhibits sought to be adduced were not available at the trial Court and could not be obtained even with reasonable care and diligence. Also if the fresh evidence is admitted, it will have an impact on the whole case.

It is therefore the decision of this Court that this application for leave to tender fresh evidence/exhibits in this appeal has merit and is granted as prayed.

LEAVE TO RAISE AND FORMULATE FRESH ISSUE ON APPEAL
It is trite law that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court, but where the question involves substantial point of law, substantive or procedural and it is plain that no further evidence could have been adduced which would affect the decision on them, the Court will allow the question to be raised and the points taken and prevent an obvious miscarriage of justice. See Akpene v Barclays Bank (1977) 1 SC 47, Shonekan v Smith(1964) 1 ALL NLR 168.
Such a point cannot be decided in favour of an appellant unless this Court is satisfied beyond doubt – thus:
(a) that it has before it all the facts bearing on the new contention as completely as if it had been raised in the lower Court (i.e. Court of first instance), and (b) that no satisfactory explanation could have been given in the Court below if it had been so raised. See Fadiora v Gbadebo (1978) 3 SC 219.
Also Corporate Ideal Insurance Ltd v Ajaokuta Steel Coy. Ltd &Ors. (2014) LPELR-22255 (SC) AT 23 (D-F) where the Court held that:
“The Court would readily grant leave to raise new grounds or issues not canvassed at the Court below where the new grounds involves substantial points of law substantive or procedural which need to be allowed to prevent an obvious miscarriage of justice.”

From the plethora of authorities on the principles guiding the exercise of the Court’s discretion to grant leave to raise and argue fresh issue not canvassed at the trial Court, the applicant seeking leave to argue and raise fresh issue(s) on appeal must establish the following;
(1) That the new issue involves substantial issue of law.
(2) That no further or additional evidence is required for the consideration of the new issue.
(3) That all the facts necessary for the determinations of the new issue are on the record.
(4) That with all due diligence, it was impossible to raise the new issue and have it determined by the trial Court.
(5) That the new issue will not prejudice or overreach the other party.
(6) That the new issue will prevent an obvious miscarriage of justice.
(7) That the new issue is not attempting to set up an entirely different or new case in the appeal, or;
(8) That the new issue ex-facie discloses lack of jurisdiction of the Court to adjudicate on the matter.

In the instance case, it is not in dispute that the appellant/applicant was not joined as a party at the lower Court.

The appellant/Applicant contended that where grounds of appeal raises the issues of denial of fair hearing and proper service of originating processes, they are akin to jurisdictional issue, which is an exception to the general rule that a ground of appeal should relate or challenge the decision of the trial Court. It is settled that leave of Court is not necessary in order to raise a fresh issue bordering on jurisdiction on appeal.

In practice, an appellate Court can only grant leave to argue fresh issue on appeal if applicant satisfies the following two conditions as follows;
1. There must be substantial point of law in the new issue to be raised.
2. The substantial point of law must not be one that need additional evidence.
See Salisu& Anor v Mobolaji & Anor (2013) LPELR-22019 (SC) AT 19-20 (B-A).

In the instant case, I am of the firm view that the appellant/Applicant has satisfied conditions stated above and the Court can exercise its discretion in favour of the applicant.

For the above reasons, the application to raise a fresh issue on appeal as stated above is hereby granted.

Finally, in view of my consideration ofall the aspects of this application (i.e., all the prayers) I found that it has merit and should be allowed. Consequently, the application is hereby granted.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form the ruling just delivered by my learned brother, KENNETH IKECHUKWU AMADI Ph.D, JCA. I agree with his reasoning and final conclusions. An Applicant who wishes to raise fresh issues for the Court to determine on appeal must satisfy the rules laid down in a plethora of cases. See STATOIL (NIG) LTD (2018) LPELR 44387 where the Supreme Court explained the principles to the grant of leave to adduce fresh evidence on appeal.

In this appeal, the Applicant was not a party in the lower Court and as such was not in a position to tender those documents relating to the subject matter of the case in the lower Court. To allow or not to allow this application is where the discretionary powers of the Court will come into play. This power must be exercised judicially and judiciously by the Court. For the justice of this case and to minimize the number of Court cases that will be initiated to settle this matter, the Court will exercise this discretion to the benefit of the Applicant.

To this end, I am minded to grant this application to finally settle this matter and to meet the justice of this case.

I also grant this application in linewith the orders in the lead judgment.

ISAIAH OLUFEMI AKEJU, J.C.A.: I have read the ruling of my learned brother, KENNETH IKECHUKWU AMADI, JCA. I agree that there is merit in the application and I hereby grant it.

Appearances:

B. A. GEGELE, with him, DR. I. M. ADUA For Appellant(s)

ARAGA for 1st Respondent.

M. A. Bello, with him, A. I. Akinpelu for 2nd Respondent. For Respondent(s)