FESTUS MRAKPOR & ANOR v. THE POLICE SERVICE COMMISSION (2010)

FESTUS MRAKPOR & ANOR v. THE POLICE SERVICE COMMISSION

(2010)LCN/3641(CA)

In The Court of Appeal of Nigeria

On Monday, the 22nd day of March, 2010

CA/L/854/07

RATIO

EVIDENCE: EFFECT OF UNCONTROVERTED FACTS IN AN AFFIDAVIT

it is trite law that facts in an affidavit that are not controverted nor contradicted by the Respondent must be deemed as admitted by the Respondent and be accepted by the trial court as unchallenged evidence. See Okoebor v. Police Council (2003) 12 N.W.L.R. (pt.834) 444. PER REGINA OBIAGELI NWODO, J.C.A.

COURT: RULES GUIDING THE EXERCISE OF THE DISCRETION OF COURT

The Appellate courts in order to exercise its discretion judicially and judiciously have set down certain principles as guideline. In Ehinlanwo v. Oke (2008) 16 N.W.L.R (pt.1113) SC 357, the Supreme Court set down the following principles:

‘Once an Appellate court comes to the conclusion that a party was entitled to be heard before a decision was reached but not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside. This is because such an order is against the rules of fair hearing, one of the twin pillars of natural justice expressed by the maxim audi alteram partem’. PER REGINA OBIAGELI NWODO, J.C.A.

APPEAL: WHETHER AN AMENDMENT OF A NOTICE IS GRANTTTTED AS A MATTER OF COURSE

Generally an amendment is not granted as a matter of course it calls for the exercise of the discretion of the court Judicially and Judiciously. What is paramount is to ascertain whether the amendment sought will present the real issues in dispute between the parties before the court for just determination and that same will not entail injustice to the Respondent or that the application is not brought in bad faith. See N.N.B. Plc v. Denclag Ltd. (2005) 4 N.W.L.R. (pt.916) 459. PER REGINA OBIAGELI NWODO, J.C.A.

JUSTICES

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

1. FESTUS MRAKPOR
2. GOVERN ICHEKOR Appellant(s)

AND

THE POLICE SERVICE COMMISSION Respondent(s)

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Lead Ruling): The Applicants are Respondents in the main appeal CA/L/854/07 and Cross Appellant in the Cross Appeal. By Motion on Notice dated 15th of May, 2009 filed on 20/5/09 the Applicants pray for the following reliefs:
‘1. AN ORDER granting leave to the Cross-Appellants to amend their Notice and Grounds of Cross-appeal dated 20th December, 2006, and filed on 4th January, 2007, against the judgment of Lufadeju J. of the Lagos High Court delivered on 6th of October, 2006, by the amendment of Relief (1) under clause 4, and the addition of a new ground 3 as indicated in the Proposed Amended Notice of Cross-appeal (Exhibit ‘C’).
2. AN ORDER granting leave to the Cross-Appellants to produce/furnish before this honourable court further/additional evidence of their entitlements as shown in Exhibit ‘B’ of the Affidavit in Support of this Motion.
3. AN ORDER deeming such further/additional evidence as part of the Record of Appeal in this appeal.
4. AN ORDER EXTENDING time within which the Cross-s may file and serve their BRIEF OF ARGUMENT the time allowed by the Rules of this court having expired.
5. AND FOR SUCH ORDER(S) as this honourable court may deem fit to make in the circumstances.
In support of the application is a 15 paragraph affidavit deposed to by Chidi Anene, a legal practitioner exhibiting exhibits ‘A to E’. The Appellant/Cross Respondent did not file a counter-affidavit. Pursuant to an order of court made on 27 June, 2009, the learned counsels were asked to file and exchange written addresses in respect of the application. The learned counsel for the Cross-Appellants/Applicants at the hearing of the Motion on Notice adopted and relied on their written submission dated 6th July, 2009 and filed 8th July, 2009. The Appellant/Cross Respondent did not file a written submission and was not in court at the hearing notwithstanding he was served as per the Affidavit of service on 14/12/2009.
The Cross Appellants/Applicants was the claimant in the court below. After hearing the claim the court below delivered Judgment granting him the reliefs he sought for except the relief for reinstatement Thereafter, the Federal Government through the National salaries, incomes and wages commission on 15th January, 2007 released a circular incorporating ‘consolidated police salary structure’ (CONPOSS), a hitherto new document that promises a better deal for the officers and men of the Nigerian Police. It is this document the Applicants as Cross- Appellants/Respondent seek leave to furnish as additional evidence in the Appeal. The said circular was issued after the Judgment.
Learned counsel for the Cross-Appellants/Applicants Chidi C. Anene in his written address distilled three Issues for determination. The 3 Issues reads as follows:
1. Do the circumstances of this case not justify a grant of leave to the Cross Appellants/Applicants to furnish before this honourable court additional evidence of their entitlement which arose after the conclusion of the proceedings at the lower court?
2. Whether, if the answer to (1) above is in the affirmative, the Cross Appellants/Applicants are not entitled to an Order of this honourable court to amend their Notice and Grounds of Cross-appeal in the interest of justice?
3. Whether the justice of this case does not call for an enlargement of time to enable the Cross Appellants/Applicants file and serve their Brief of Argument?
I will now consider the merits of the forgoing issues in Issue 1 not withstanding there is no Respondent’s Brief. Whether the circumstances of this case do not justify the grant of leave to the Cross-Appellants/Applicants to furnish before this honourable court additional evidence of their entitlements which arose after the conclusion of the proceeding at the lower court?
The learned counsel for the Applicant referred the court to Order 4 rule 2 of the Court of appeal Rules 2007 which provision gives the court the discretion to admit additional evidence. it is his submission that even with the most reasonable diligence there is no way the Applicants could have obtained the evidence for use at the trial court because it did not exist. Learned counsel’s further submission is that the evidence they seek to tender will definitely have an important effect on the outcome of the case of the Cross-Appellants/Applicants. It is his contention that the lower court ordered that the Cross Appellants/Applicants are entitled to all salaries/allowances/benefits hitherto enjoyed by them and flowing from their employment with the Respondent but that the court erroneously limited these entitlements to the date of Judgment instead of calculating same to run until the date of retirement of the Cross Appellants/Applicants which they have appealed against. It is his further contention that it is proper and just that additional evidence Exh. ‘B’ should be integrated into the case so that the Cross Appellants/Applicants will fully enjoy the fruits of any favourable decision made by this court especially as regards Ground 1. He referred to the decision of this court in Ilorin South Local Government Area v. Afolabi (2003) F.W.L.R. (pt.174) 215 at 223-224, wherein the provision of Order 4 Rule 2 of the Rules of the Court was interpreted. He also relied on the principles set out by the Supreme Court in U.B.A. Plc. v. BTL. Industries limited (2005) All F.W.L.R. (pt.263) 611 at 623.
I have carefully considered the averments in the affidavit in support of the application and the written argument of the learned counsel for the Cross Appellants/Applicants. The averments in the affidavit in support of the application is uncontradicted by any counter affidavit, it is trite law that facts in an affidavit that are not controverted nor contradicted by the Respondent must be deemed as admitted by the Respondent and be accepted by the trial court as unchallenged evidence. See Okoebor v. Police Council (2003) 12 N.W.L.R. (pt.834) 444.

Issue One raises the question of whether the circumstances presented by the Applicant falls within the category of instances when the court will grant leave to Applicant to furnish additional evidence of their entitlement which arose after Judgment was delivered. Order 4 Rule 2 of the Court of Appeal Rules 2007 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.
By this provision this court has the powers to allow or admit further/additional evidence on appeal under special grounds. The general provision under Order 4 envisages that once an appeal is from a Judgment after trial or a cause determined on the merits, no further evidence shall be admitted other than evidence as to matters which occurred after trial, if special grounds are established. Therefore the exception to the general provision is the crux of the present application.
The rules did not define what is special ground. The Appellate courts in order to exercise its discretion judicially and judiciously have set down certain principles as guideline. In Ehinlanwo v. Oke (2008) 16 N.W.L.R (pt.1113) SC 357, the Supreme Court set down the following principles:
‘Once an Appellate court comes to the conclusion that a party was entitled to be heard before a decision was reached but not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside. This is because such an order is against the rules of fair hearing, one of the twin pillars of natural justice expressed by the maxim audi alteram partem’.
These conditions are conjunctive not disjunctive, in other words the conditions must coexist for the court to exercise its discretion in favour of the applicant.
The question then is whether the above conditions do exist in the instant case. Under the first condition the evidence must be such that could not have been obtained with reasonable diligence for use at the trial. The deponent in the affidavit in support of the application averred as follows:
‘Para 4. That upon a more critical review of the case file; and more especially after the Cross Appellants brought to our chambers the new salaries’ structure for the Police, I saw the imperative of amending the grounds of appeal because the original grounds did not, in my honest and humble opinion, meet the justice of the case. The new salary structure dated 13th January, 2007, is herewith attached and marked Exhibit ‘B’
11. That as at the time the Judgment was delivered on the 6th of October, 2006, the salaries and emoluments of the Police had not been reviewed. Attached herewith and marked as Exhibit ‘E’ is the photocopy of the Certified True Copy of the said Judgment
12. That was informed by the Cross Appellants/Applicants on the 3rd of April, 2009, and I verily believe them that their recent investigations revealed that most of their course mates are now occupying various high ranking positions in the Police Force, the least of such rank being Commissioner of Police.
13. That I verily believe that without the additional evidence, the Cross Appellants would be denied their full entitlements in the employment of the Appellant, and would suffer irreversible damage thereby’.
From the forgoing paragraphs the deponent averred to uncontradicted facts as reasons for not presenting the document now sought to be additional evidence Exh. ‘B’ during the trial. The contention of Cross Appellants/Applicants’ is that at the time the Judgment was delivered the document containing the new salaries of the police was not in existence. Exh. ‘B’ the circular on the consolidated police salary structure from the endorsed date was issued in January, 2007. The Judgment of the court of below the basis of this appeal was delivered on the 6th of October, 2006 clearly at the time Judgment was delivered this document Exh. ‘B’ had not been issued. Therefore Exh. ‘B’ that was not in existence could not have been obtained for use at the trial.
Under the second condition the question arising is whether the additional evidence if admitted would have an important effect on the whole appeal. The Cross Appellants/Applicants filed a Notice of Cross Appeal see page (415-416) of the Record of Appeal wherein one of the alternative reliefs sought from the court by the Cross Appellants/Applicants is an Order to pay Cross Appellants/Applicants full terminal benefits (pension and gratuities). The document Exh. ‘B’ is a circular on Police salary structure It is indisputable the document if admitted would have an important effect on the whole appeal.
The third condition requires that Exh. ‘B’ must be apparently credible In effect the additional evidence Exh. ‘B’ sought to be used at this stage on appeal must be capable of being delivered and read, but not be incontrovertible See U.B.A. (PIc) v. BTL Ind. Ltd. (2005) 10 N.W.L.R. (pt.933) 356 at 370-371. The Cross Appellants/Applicants in the application exhibited a certified copy of the circular from the presidency on the consolidated police salary structure. This document is presumed to be what it contains in the absence of any contradiction or challenge and capable of being delivered as a circular from the Federal Government on Police salary scale.
The Cross Appellants/Applicants has established from the affidavit evidence the three conditions that are prerequisites to the grant of leave to furnish further evidence.
Under Issue Two, learned counsel for the Cross Appellants/Applicants relying on Order 6 Rule 15 of the Rules urged the court to grant the amendment of the Notice of Cross-Appeal dated 6th December 2006 if the first issue is answered in the affirmative.
Order 4 Rule 1 of the Court of Appeal Rules 2007 stipulates as follows:
‘In relation to an appeal, the court shall have all the powers and duties as to amendment and otherwise of the High Court, including without prejudice to the generality of the foregoing words, in civil matters, the powers of the High Court in civil matters to refer any question or issue of fact arising on the appeal for trial before, or inquiry and report by, an official or special referee. In relation to a reference made to an official or special referee, anything, which can be required or authorized to be done by, to, or before the High Court, shall be done by, to, or before the Court’.
From the above provision this court has the powers in relation to an appeal to order amendment of a Notice of Appeal if it is just to so order and the Rules allows such amendment.

The applicant seeks an amendment of the Notice of Cross Appeal by Relief 1 and adding a new ground 3. Having granted the application for further evidence, the amendment sought is inevitable and there is no counter affidavit by the Respondent that they will suffer prejudice if the amendment is granted. Equally the reasons in support of the amendment in the affidavit have not been challenged.
The Cross Appellants/Applicants is seeking extension of time to file Appellants Brief of Argument. In paragraph 8 of the Affidavit, Cross Appellants/Applicants gave the reason for filing late on the basis of Exh. ‘B’. The reason is substantial in the circumstance. On the totality of the facts before me, it is my firm view that there is merit in this application, I therefore order as follows:
1. The Cross Appellants/Applicants is granted leave to produce/furnish further/additional evidence as shown in Exhibit ‘B’ by compiling same and filing as supplementary Record of Appeal within 7 days from today
2. Relief 3 is refused.
3. The Cross Appellants/Applicants are granted leave to amend their Notice and Grounds of Cross-appeal filed on 4 January, 2007 as per Exh. ‘C’, the proposed Amended Notice of Appeal.
4. Extension of time is granted to the Cross Appellants/Applicants to file his brief of argument within 14 days from today.
No order as to cost.

PAUL ADAMU GALINJE, J.C.A.: I have read in advance the ruling just delivered by my learned brother, Nwodo, J.C.A., and I am in total agreement with the reasoning contained therein and the conclusion arrived thereat. I have nothing useful to add. For the reasons stated in the lead ruling which I adopt as mine, this application is granted as prayed. I endorse all the consequential orders made therein.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother, Nwodo, J.C.A. had graciously obliged me with a copy of the lead ruling just delivered. I concur with the reasoning and conclusion reached therein, to the effect that the instant application is meritorious.
Consequently, having adopted the reasoning and conclusion as mine, hereby grant the application as prayed. I abide by the consequential orders therein.
No order as to costs.

Appearances

Chidi C AneneFor Appellant

AND

For Respondent