FRN v. ADEYEBA & ORS
(2022)LCN/16688(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/L/267/2015(R)
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
FEDERAL REPUBLIC OF NIGERIA APPELANT(S)
And
1. PRINCE JOHNSON ADEKUNLE ADEYEBA 2. BABAJIDE ROGERS 3. GARETH MERVYN WILCOX 4. IBOM POWER COMPANY 5. LYK ENGINEERING COMPANY 6. UCHE UWECHIA 7. TAURUS SHELTERS LIMITED 8. IGNATIUS UKPAKA 9. JOHN EZUGWU RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT OF APPEAL HAS THE POWER TO RECEIVE FURTHER EVIDENCE ON QUESTIONS OF FACT
Now on this issue, Order 4 Rule 2 of the Court of Appeal Rules, 2016, 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.”
It is evident from the foregoing that the Court’s power to grant an Applicant leave to adduce further evidence is exercisable only on Special Grounds. The Apex Court in several Case Law Authorities has outlined the Special Grounds the Applicant requires to fulfil in order to be entitled to the leave he seeks under Order 4 Rule 2 of the Court of Appeal Rules. See ENILOLOBO VS NPDC & ANOR (2019) LPELR-49512 (SC), ADEGBITE VS AMOSU (2016) 27 WRN 34 at 48 – 49. PER BANJOKO, J.C.A.
GROUNDS UPON WHICH AN APPELLANT CAN ADDUCE ADDITIONAL EVIDENCE BEFORE THE COURT OF APPEAL
In ENILOLOBO VS NPDC & ANOR (SUPRA), HIS LORDSHIP MUSA DATTIJO MUHAMMAD, JSC, while referring to the Case Law Authority of ASABORO VS ARUWAJI (1974) 1 ALL NLR (PART 1) 140 listed the following special grounds that an Applicant must satisfy to adduce additional Evidence:
(I) The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial.
(II) The evidence shall be such as if admitted, it would have an important not necessarily crucial, effect on the whole case.
(III) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
(IV) The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the lower Court in favour of the Applicant had it been available at the trial Court.
(V) The evidence should be weighty and material, where evidence sought to be admitted is irrelevant and immaterial, it will be ejected. See also ONWUBUARIRI & ORS VS IGBOASOYI & ORS (2011) LPELR-754 (SC), OWATA VS ANYIGOR (1993) 2 SCNJ 1 AT PAGES 12-13; (1993) 2 NWLR (PART 276) 380, OBASI VS ONWUKA (1987) 2 NSCC 981, A.G FEDERATION VS ALKALI (1972) 12 SC 29; (1987) 3 NWLR (PART 61) 364.
The Apex Court has reiterated several times that for an Applicant for leave to adduce further evidence to qualify for the grant of that leave, he must satisfy the stated requirements jointly. In other words, the grounds must co-exist. See LUKE OKORO & ORS VS HILARY EGBUOH AND ORS (2006) LPELR -2491 (SC), and STAT OIL (NIG) LTD VS INDUCON (NIG) LTD & ANOR (2018) LPELR – 44387 (SC). PER BANJOKO, J.C.A.
THE POSITION OF LAW ON “APPEAL”
It is settled law that an appeal is in the nature of a rehearing in respect of all the issues raised in respect of the case. It is a continuation of the original Suit rather than a New Action. See ACCESS BANK VS ONWULIRI (2021) LPELR-53078 (SC), SABRU MOTORS NIG LTD VS RAJAB ENTERPRISES NIG LTD (2002) 4 SCNJ 370 AT 382, OBINECHE VS AKUSOBI (2010) 12 NWLR (PART 1208) 383, ALHASSAN & ANOR VS ISHAKU & ORS (2016) 10 NWLR (PART 1520) 230. PER BANJOKO, J.C.A.
THE POSITION OF LAW ON THE JURISDICTION OF THE COURT OF APPEAL THAT ENABLES THE ADMISSION OF ADDITIONAL OR FRESH EVIDENCE ON APPEAL
The jurisdiction of the Court of appeal, which enables the admission of additional or fresh evidence on appeal, is not at large. Order 4 Rule 2 and 3 of the Court of Appeal Rules, 2021 provide:
2. 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.
3. The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other order(s) as the case may require, including any order as to costs.
Considering similar provisions in Order 1 Rule 20(1), (3) of the Court of Appeal Rules, 1981, the Supreme Court, per Karibi-Whyte, JSC in Owata v Anyigor (1993) LPELR-2842(SC) pages 15 – 17, said:
“It appears from the provisions of this rule that the Court is entitled to exercise its discretion where:
(a) the matter on appeal has not been heard on its merits in the trial Court, or
(b) the appeal is from a judgment after trial or hearing on the merits.
In the first case, the Court has the power to receive further evidence on questions of fact in the manner provided. In the second case, further evidence is only received on special grounds. See Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94.
The power vested in the Court by these rules to receive fresh evidence or further evidence is generally exercised reluctantly, sparingly and with great circumspection. This is because of the risks involved in allowing a person to reopen an issue after it has 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. The Court however will exercise the power in all cases where the appellant has brought his case within the conditions prescribed in the rules and on the facts of the case, the interest of justice demands that the evidence be received. PER OTISI, J.C.A.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgement): This is an application brought via a Notice of Motion filed on the 16th of November, 2020 by the 7th & 8th Respondents pursuant to Order 4 Rule 2 and Order 6 Rule 1 & 9 (1) of the Court of Appeal Rules 2016 and under the inherent Jurisdiction of this Honourable Court. By virtue of this Motion, the 7th & 8th Respondents/Applicants are seeking for the following reliefs as contained on the face of the Motion Paper:
1. AN ORDER of this Honourable Court granting leave to the 7th and 8th Respondents/Applicants to adduce additional documentary Evidence in this appeal by way of Exhibit “A” “B” & “C” for use in this appeal to wit:
a. The Certified True Copy of the Order of the Federal High Court in Suit No: FHC/L/479C/2013 – FEDERAL REPUBLIC OF NIGERIA VS PRINCE JOHNSON ADEYEBA & 6 ORS delivered by Hon Justice M.N. Yunusa dated the 23rd day of June, 2014 discharging and acquitting the 7th & 8th Respondents/Applicants from the 2nd Amended Charge. (Exhibit “A”).
b. The Certified True Copy of the Ruling of the Federal High Court in Suit No: FHC/L/479C/2013 – FEDERAL REPUBLIC OF NIGERIA VS PRINCE JOHNSON ADEYEBA & 6 ORS delivered by Hon Justice M.N. Yunusa dated the 23rd day of June, 2014 discharging and acquitting the 7th & 8th Respondents/Applicants from the 2nd Amended Charge (Exhibit “B”).
c. The Certified True Copy of the Order of the Federal High Court in Suit No: FHC/L/479C/2013 – FEDERAL REPUBLIC OF NIGERIA V. PRINCE JOHNSON ADEYEBA & 8 ORS delivered by Hon Justice R. M. Aikawa dated the 2nd day of December, 2019, discharging and acquitting the 7th & 8th Respondents/Applicants from the 3rd Amended Charge. (Exhibit “C”).
2. AN ORDER of this Honourable Court granting leave to transmit “Exhibits “A”, “B” and “C” as a Supplementary Record of Appeal to this Honourable Court and deeming the already transmitted Supplementary Record Exhibit “D” as properly transmitted, filed and served on the Respondent.
3. AND for such further order or other orders as this Honourable Court may deem fit to make in the circumstances.
The brief background to this Application is that the Appellant brought an appeal against the ruling of the Federal High Court, Lagos Division, Coram Yunusa J, delivered on 5th May, 2014, in respect of the 6th Respondent’s Motion on Notice dated and filed on 19th February, 2014 praying the lower Court for:
“AN ORDER striking out Counts 6 and 21 of this Charge and striking out the name of the Applicant as an Accused in this Charge.”
The grounds upon which the Motion was brought at the Lower Court were that:
“a) The Nigerian Police either through the Special Fraud Unit (SFU) or any other Unit, lacks competence to initiate this Charge being in contravention of Section 6 and 7 of the Economic and Financial Crimes (Establishment) Act 2004.
b) Even if (which is not conceded), the Nigerian Police can institute this Charge, the Federal High Court has no Jurisdiction to entertain Counts 6 and 21 of this Charge having regard to the Provisions of the 1999 Constitution and the Federal High Court Act (As Amended).
c) Even if (which is not conceded) this Honourable Court has jurisdiction to entertain Counts 6 & 21 of this Charge, delaying and framing of this Charge particularly Counts 6 & 21 thereof, is in violation of Section 36(6) (a) of the 1999 Constitution (As Amended).”
In opposition to the Motion, the Appellant filed a Counter-Affidavit and Written Address dated 10th March, 2014
After taking arguments on the Motion and having considered the necessary facts, documents and more critically the position of the law on the issues, the trial Court, in its ruling, ordered the Police Special Fraud Unit, the Complainant then, to take necessary steps to transfer the case to the Economic and Financial Crimes Commission (“EFCC”) or to obtain the requisite fiat to prosecute same in line with Sections 6 & 7 of the EFCC Act.
It is against that ruling that the Appellant has appealed to this Honourable Court vide a Notice of Appeal dated 30 May, 2014 (but filed on 06 June 2014) with One (1) Ground of Appeal.
Learned Counsel to the 7th & 8th Respondent in the appeal now brought this instant Application based on the grounds that upon perusal of the Records of Appeal transmitted by the Appellant, he observed that the Certified True Copy of the order and the ruling of the Federal High Court in Suit No: FHC/L/479C/2013 – FEDERAL REPUBLIC OF NIGERIA VS PRINCE JOHNSON ADEYEBA & 6 ORS dated the 23rd day of June, 2014 discharging and acquitting the 7th & 8th Respondents/Applicants and also the Certified True Copy of the Order of the Federal High Court in Suit No: FHC/L/479C/2013 – FEDERAL REPUBLIC OF NIGERIA VS PRINCE JOHNSON ADEYEBA & 8 ORS dated the 2nd day of December, 2019 discharging and acquitting the 7th & 8th Respondents do not form part of the Record of Appeal already compiled and transmitted by the Appellant.
He added that pursuant to this discovery, the Additional Documentary Evidence as Supplementary Records, have been transmitted (See Exhibit D). The document is material and relevant and goes to the root of the Issue before this Court, and further, that its admission would assist this Court in arriving at a just and fair resolution of the appeal. Therefore, granting leave to use Exhibits “A”, “B” and “C” will do substantial justice as no oral evidence is required and the Respondent will not be prejudiced.
The Application was supported with 20 Paragraph Affidavit sworn to by one Nonso Anyasi. Copy of the Certified True Copy of the Order and the Ruling of the Federal High Court in Suit No: FHC/L/479C/2013- FEDERAL REPUBLIC OF NIGERIA VS PRINCE JOHNSON ADEYEBA & 6 ORS dated the 23rd day of June, 2014, and Copy of the Certified True Copy of the Order of the Federal High Court in Suit No: FHC/L/479C/2013 – FEDERAL REPUBLIC OF NIGERIA VS PRINCE JOHNSON ADEYEBA & 8 ORS dated the 2nd day of December, 2019, were attached to the Motion. Learned Counsel filed a Written Address dated the 26th of November 2020.
The Respondents, in response, filed a 24 Paragraph Counter-Affidavit sworn to by one Olamiposi Fatunbi dated the 24th of November, 2020, and a Written Address filed 17th December, 2020. The Applicant filed a Reply Address 11th January, 2021 and filed a Further Affidavit 10th December, 2020, deposed to by Nonso Anyasi.
In the Applicant’s Written Address, the Applicant raised a Lone Issue for determination, which is: –
Whether from the facts and circumstances of this Motion, this Honorable Court can grant the Application of the Respondents/Applicants?
The Appellant/Respondent on the other hand also raised a lone issue for determination, which is: –
Whether the Applicants have made out a case entitling the Court to grant them leave to file and transmit Additional Records? A close look at the issue formulated by each party reveals that the issues are similar. Therefore, I will adopt the issue formulated by the Applicant for determination of the Application, being the initiator of the Application.
THE LONE ISSUE
Whether from the facts and circumstances of this Motion, this Honorable Court can grant the Application of the Respondents/Applicants?
SUBMISSION OF THE COUNSEL
Learned Counsel to the Applicants submitted that the sole reason for this Application, is to adduce Additional Evidence to bring to the Court’s Attention and Record that the 7th & 8th Respondents/Applicants are not parties to the matter by virtue of the ruling and order made by the trial Court on the 23rd of June, 2014 and 2nd of December, 2019, discharging and striking out the name of the 7th & 8th Respondents/Applicants from the charge filed by the Appellant. The ruling has not been appealed against. Therefore, this Court lacks the Jurisdiction to hear and determine this appeal against them because Jurisdiction is the authority that a Court has to adjudicate on a matter. He relied on SARAKI VS FRN (2016) LPELR-40013 (SC), A.G. ANAMBRA STATE VS A.G. FEDERATION (2007) 12 NWLR (PART 1047), ALHAJI (CHIEF) S. D. AKERE & ORS VS THE GOVERNOR OF OYO STATE & ORS (2012) LPELR-7806 (SC), OSAKUE VS FEDERAL COLLEGE OF EDUCATION ASABA & ANOR (2010) 5 SCM 185, 201-202, MADUKOLU VS NKEMDILIM (1962) I ANLR (PART 4) 587.
Learned Counsel submitted further that an Applicant who wants to adduce additional evidence must show the Court that the evidence sought to be relied upon must be fresh/new Evidence which have been newly available or obtainable by the Applicant after Judgement was delivered by the trial Court, and that the evidence must be credible and capable of being believed or incontrovertible. The Applicant has deposed to this in their Affidavit. Therefore, this Honourable Court has the constitutional and inherent power to grant the 7th & 8th Respondents/Applicants’ leave. He relied on KOOTE & ANOR VS NAMON (2019) LPELR-46454 (CA), WHITE DIAMONDS PROPERTY DEVELOPMENT CO LTD VS TRADE WHEELS LTD (2018) LPELR-44572 CA.
Learned Counsel submitted finally that most importantly, this Court has decided in STEAMCO LTD VS MARK & ORS (2018) LPELR-45947 (CA) that any appeal with the wrong parties as in the instant case, is a nullity and incompetent. Also, by virtue of Order 4 Rule 2 and Order 6 Rule 1 & 9 (1) of the Court of Appeal Rules 2016, this Court has the powers to grant the 7th & 8th Respondents/Applicants’ Application to enable the Court to ensure that Substantial Justice is done.
Learned Counsel to the Appellant/Respondents on the other hand, submitted that the first order relied upon by the 7th and 8th Respondent arose after the 5th of May, 2014 decision of the Court which forms the substratum of this appeal. The Additional Records, which the Applicants now seek to file, are all in respect of Proceedings, which arose subsequent to the 5th of May, 2014. The rulings exhibited as their proposed additional record are inter alia dated 23rd of June, 2014 and 2nd December, 2019 respectively. The ruling of 23rd June discharged the Applicants in respect of the 2nd Amended Charge, which had at all material times been overtaken by events. It was during the subsistence of this appeal, that the Applicants herein filed another Preliminary Objection to the 3rd Amended Charge to which the lower Court upheld the Applicants’ Objection and discharged the Applicants in its ruling dated 2nd December, 2019.
Learned Counsel submitted further that the Appellant in line with the law, subsequently filed its 4th Amended Charge dated 12th February, 2020, which is the Current Charge Sheet before the lower Court and to which the 7th & 8th Respondents/Applicants are Defendants. It is trite that the Prosecution has the power to amend a Charge Sheet at any time before Judgment. He relied on ISAAC VS STATE (2018) LPELR -46614 (CA). The Applicants’ argument is a Misrepresentation of Fact, the 2nd and 3rd Amended Charge Sheets are no longer relevant to Proceedings at the lower Court and you cannot put something on nothing and expect it to stand. He relied on UAC LTD VS MACFOY (1961) 3 ALL E.R. 1160, GREEN VS GREEN (1987) NWLR (PART 61) 481, BRUCE VS ERE & ORS (2004) LPELR-7378 (CA).
Learned Counsel also submitted that what would guide this Honourable Court on the Propriety of Parties before it is the Record of the Lower Court as of 5th May, 2014, when the decision being appealed against was given. To contemplate a record that arose after the substratum of the appeal would amount to altering the subject matter of the appeal. He relied on GOWON VS IKE-OKONGWU (2003) 6 NWLR (PART 815) 38, CBN VS UCHENNA DINNEH (2005) LPELR-11349 (CA), ABUBAKAR AUDU VS FRN (2013) LPELR 19897 (SC). The Court has Jurisdiction to hear this appeal. He relied on MADUKOLU VS NKEMDILIM (1962) 2 SCNLR 341.
Learned Counsel submitted further that none of the facts sought to be adduced by the Applicant are relevant to the decision of 5th May, 2014 or helpful to the determination of the controversy under Appeal. Indeed, the Evidence to be adduced is not fresh evidence as envisaged in line with Case Law. He referred to WILLOUGHBY VS INTERNATIONAL MERCHANT BANK (NIG.) LTD (1987) LPELR-3495 (SC), FBN VS ADEWUSI & ORS (2017) LPELR-43557 (CA). Additionally, the ruling of 2nd December, 2019, which constitutes the subject matter of the Applicants application, has not been attached and only the enrolled order was included.
Learned Counsel submitted alternatively in the event the Applicants are allowed to adduce additional records, the Respondent would in the interest of justice be granted leave to also file additional records, to wit: the 4th Amended Charge in order to corroborate or disprove the assertions of the Applicant. The Principle that there must be an end to litigation applies in this case. He relied on NYAMBI VS OSADIM (1997) LPELR-2136 (SC), ADIGUN VS AG OF OYO STATE (NO 2) (1987) 2 NWLR (PART 56) 197 AT 231.
He urged the Court to dismiss the Application.
By way of reply, the Applicant submitted that the said 4th Amended Charge is not competent as same has not been served personally on them as provided by the provisions of the Administration of Criminal Justice (Repeal and Re-enactment) Law of Lagos State, 2011. Also, the Records of this Honourable Court will bear witness that the said 4th Amended Charge has not been brought before this Honourable Court for consideration and/or determination and also the said 4th Amended Charge does not form part of the Records of this Honourable Court. He relied on ADESOYE VS OLAGUNJU (1998) 6 NWLR (PART 552) PAGE 65, EJIOFOR VS OKAFOR (2008) 3 NWLR (PART 1073) PG 85 AT 92, PARAS C-E.
Learned Counsel submitted further that the evidence which the 7th and 8th Respondents seek to adduce are rulings and orders of the lower Court and it is settled practice that a judgment of a Court of law is presumed valid and the parties concerned are not only bound to obey it but the authorities charged with responsibility for enforcement of judgment, are also obliged to enforce it unless it is declared a Nullity or Set Aside by a Competent Court. He relied on SECTION 287 (3) OF THE 1999 CONSTITUTION; NNAJI VS ANEKE (1996) 2 NWLR (PART 430) 269 AT 273, OSAKWE VS INEC & ORS (2005) 13 NWLR (PART 942) 442, ROSSEK VS ACB LTD (1993) 8 NWLR (PART 312) 382, OBOT VS ETIM & ORS (2007) LPELR-8071.
Learned Counsel stated that the Application of the 6th Respondent, which begat the ruling being appealed against, was heard on the 14th March, 2014, along with the application of the 7th and 8th Respondents. The lower Court delivered its ruling on the 6th Respondent’s Application on the 5th of May, 2014, and on the 7th and 8th Respondents Application on the 23rd of June, 2014. The 3rd Amended Charge before this Honourable Court was filed on the 5th of May, 2014, the same day the ruling; the substratum of this appeal was delivered. The 7th and 8th Respondents have been discharged from the 2nd Amended Charge, which is the Substratum of this appeal and from the 3rd Amended Charge, which is also before this Honourable Court.
Learned Counsel submitted finally that the evidence being sought to be adduced as fresh Evidence have not been overtaken by events because the rulings and orders have not been appealed against. It remains valid and subsisting and cannot been interfered with. He relied on ONAFOWOKAN VS WEMA BANK PLC (2011) 12 NWLR (PART 1260) PP 24 AT 53-54 (PARAS H-E), BABATUNDE VS OLATUNJI (2000) 2 NWLR (PART 646) 557. He distinguished the Case Law Authorities of GOWON VS IKE-OKONGWU (2003) 6 NWLR (PART 815) 38 and CBN VS UCHENNA DINNEH (2005) LPELR-11349 (CA) from the instant Application, and urged the Court to grant the Application.
RESOLUTION OF THE LONE ISSUE
Now on this issue, Order 4 Rule 2 of the Court of Appeal Rules, 2016, 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.”
It is evident from the foregoing that the Court’s power to grant an Applicant leave to adduce further evidence is exercisable only on Special Grounds. The Apex Court in several Case Law Authorities has outlined the Special Grounds the Applicant requires to fulfil in order to be entitled to the leave he seeks under Order 4 Rule 2 of the Court of Appeal Rules. See ENILOLOBO VS NPDC & ANOR (2019) LPELR-49512 (SC), ADEGBITE VS AMOSU (2016) 27 WRN 34 at 48 – 49.
In ENILOLOBO VS NPDC & ANOR (SUPRA), HIS LORDSHIP MUSA DATTIJO MUHAMMAD, JSC, while referring to the Case Law Authority of ASABORO VS ARUWAJI (1974) 1 ALL NLR (PART 1) 140 listed the following special grounds that an Applicant must satisfy to adduce additional Evidence:
(I) The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial.
(II) The evidence shall be such as if admitted, it would have an important not necessarily crucial, effect on the whole case.
(III) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
(IV) The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the lower Court in favour of the Applicant had it been available at the trial Court.
(V) The evidence should be weighty and material, where evidence sought to be admitted is irrelevant and immaterial, it will be ejected. See also ONWUBUARIRI & ORS VS IGBOASOYI & ORS (2011) LPELR-754 (SC), OWATA VS ANYIGOR (1993) 2 SCNJ 1 AT PAGES 12-13; (1993) 2 NWLR (PART 276) 380, OBASI VS ONWUKA (1987) 2 NSCC 981, A.G FEDERATION VS ALKALI (1972) 12 SC 29; (1987) 3 NWLR (PART 61) 364.
The Apex Court has reiterated several times that for an Applicant for leave to adduce further evidence to qualify for the grant of that leave, he must satisfy the stated requirements jointly. In other words, the grounds must co-exist. See LUKE OKORO & ORS VS HILARY EGBUOH AND ORS (2006) LPELR -2491 (SC), and STAT OIL (NIG) LTD VS INDUCON (NIG) LTD & ANOR (2018) LPELR – 44387 (SC).
Now, I will carefully consider whether the Applicant in this instant Application met all the grounds required in granting this Application.
The First Ground which any Applicant who wishes to adduce additional evidence must meet, is that the evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial. By the Records before this Court, the Motion, which birthed the ruling being appealed against, was heard 14th March, 2014, while the ruling and the order of the lower Court sought to be added are dated 23rd of June, 2014 and 2nd December, 2019, respectively. Clearly, the evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial. Therefore, the Applicant surely met the first ground.
The second ground which the Applicant must satisfy to be qualified for the Application is that the evidence shall be such as if admitted, it would have an important not necessarily crucial, effect on the whole case.
Now, the Appellant has stated the relief sought from this Court in the Extant Notice of Appeal thus: “AN ORDER allowing this appeal and discharging or setting aside the part of the ruling made on the 5th May, 2014 by Honourable Justice Mohammed N. YUNUSA of the Federal High Court Ikoyi Lagos against which this instant Appeal was filed.”
The Appellant has stated part of the decision of the lower Court complained of as:
“The part where the Honourable Judge held that by virtue of the Economic and Financial Crimes Commission (EFCC) Act, 2005, particularly Sections 6 and 7 of the Act, the Police cannot investigate and/or prosecute economic crimes, even under the Criminal Code Act, without a formal permission or fiat from the EFCC.”
From the above, it shows that the relief or purpose of this appeal is in respect of the power of the police to investigate and prosecute economic crimes. The ruling of 23rd June, 2014, sought to be adduced by the Applicant have to do with discharge and acquittal of the 7th and 8th Respondent as the offence they are being charged of, is not known to law, and the order of 2nd December, 2019, sought to be adduced has to do with refusal to retry the 7th and 8th Respondent for the offence. It can be seen that the evidence sought to adduce by the Applicant will never have any effect in the determination of the issue before the Court. Therefore, I am not convinced that the Applicant has satisfied this second Ground that will qualify him to secure this Application.
Also, the fourth Ground which the Applicant must satisfy is that the additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the lower Court in favour of the Applicant had it been available at the trial Court. The Ground of the Application, which gave birth to the ruling of the lower Court being appealed against, was based on the competence or otherwise of the Nigeria Police to initiate a Charge in respect of the economic crime. See Page 50 of the Record of Appeal. The Application was never in respect of the consideration of the Criminal Liability of the Applicant on the merits. Therefore, even if the evidence sought to be adduced were made available to the trial Court during the Proceeding that gave rise to the ruling, the decision of the trial Court would not have been otherwise.
In addition, the additional evidence sought to be adduced by the Applicant does not have any material relationship with the issue before the lower Court as enumerated in the Previous Paragraph. It is settled law that an appeal is in the nature of a rehearing in respect of all the issues raised in respect of the case. It is a continuation of the original Suit rather than a New Action. See ACCESS BANK VS ONWULIRI (2021) LPELR-53078 (SC), SABRU MOTORS NIG LTD VS RAJAB ENTERPRISES NIG LTD (2002) 4 SCNJ 370 AT 382, OBINECHE VS AKUSOBI (2010) 12 NWLR (PART 1208) 383, ALHASSAN & ANOR VS ISHAKU & ORS (2016) 10 NWLR (PART 1520) 230.
In view of the foregoing, I am constrained to hold that this Application lacks merit and is accordingly dismissed.
ONYEKACHI AJA OTISI, J.C.A.: I read in advance a draft copy of the ruling of my Lord, Adebukunola Adeoti Banjoko, JCA, in which this application was dismissed. I am in agreement with the reasoning and conclusions therein, and adopt the same as mine. I will only make few comments in support.
The jurisdiction of the Court of appeal, which enables the admission of additional or fresh evidence on appeal, is not at large. Order 4 Rule 2 and 3 of the Court of Appeal Rules, 2021 provide:
2. 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.
3. The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other order(s) as the case may require, including any order as to costs.
Considering similar provisions in Order 1 Rule 20(1), (3) of the Court of Appeal Rules, 1981, the Supreme Court, per Karibi-Whyte, JSC in Owata v Anyigor (1993) LPELR-2842(SC) pages 15 – 17, said:
“It appears from the provisions of this rule that the Court is entitled to exercise its discretion where:
(a) the matter on appeal has not been heard on its merits in the trial Court, or
(b) the appeal is from a judgment after trial or hearing on the merits.
In the first case, the Court has the power to receive further evidence on questions of fact in the manner provided. In the second case, further evidence is only received on special grounds. See Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94.
The power vested in the Court by these rules to receive fresh evidence or further evidence is generally exercised reluctantly, sparingly and with great circumspection. This is because of the risks involved in allowing a person to reopen an issue after it has 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. The Court however will exercise the power in all cases where the appellant has brought his case within the conditions prescribed in the rules and on the facts of the case, the interest of justice demands that the evidence be received. The rule has provided that fresh or further evidence will be admitted on special grounds.”
His Lordship further held.
“Analysis of decided cases disclose that the Courts have relied on the following principles, where;
First, the evidence sought to be adduced should be such that could not have been obtained with reasonable care and diligence for use at the trial – see Asaboro v. Aruwaji (1974) 4 SC,119, where the evidence was not within easy reach. The records kept by the Companies Registry was not open most of the time during the period.
Secondly, if the fresh evidence is admitted it would have an important, but not necessarily crucial effect on the whole case. – see Ladd v. Marshall (1954)3 All ER.745.
Thirdly, if the evidence sought to be tendered is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible – see Obasi v. Onwuka (1987) 3 NWLR (Pt.61) 364.
Fourthly, additional evidence may be admitted 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- See Fawehinmi v. State (1990) 5 NWLR (Pt. 148) 42.
Fifthly, the evidence should be material and weighty even if not conclusive. Where evidence sought to be admitted is irrelevant and immaterial it will be Rejected. – See Nwokoro v. Nwosu (1990) 6 NWLR 379. Rinco Construction Co. v. Veepee Industries Ltd (1990) 6 NWLR (Pt. 158) 630, Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94.
These conditions must all co-exist in an application seeking the exercise of this unusual discretion by the appellate Court; Chief Amadi-Dike-Ogu & Ors v. Amadi & Ors (2019) LPELR-47847(SC), Adeyefa & Ors v. Bamgboye (2013) LPELR-19891(SC), Subaya Metalware (Nig) Ltd v. Toyota Motor Corp. & Anor (2021) LPELR-57346(SC). Once these conditions are met, this Court, by Section 15 of the Court of Appeal Act, 2004, may exercise the powers of the lower Court and make an objective finding of fact thereon; Attorney General of Kwara State & Anor v. Lawal & Ors (2017) LPELR-42347(SC), Joseph v. Fajemilehin & Anor (2012) LPELR-9849(CA).
Fundamentally, the fresh evidence should be relevant to the appeal. However, in the instant case, the additional evidence sought to be adduced has not been shown to have any material relationship with the issue before the lower Court. I do not see its relevance herein.
It is for this reason, and for the fuller reasons given in the leading ruling, that I also refuse this application and dismiss the same.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I have read the draft of the ruling just delivered by my learned brother, ADEBUKUNOLA ADEOTI BANJOKO, JCA. I am in agreement with the reasoning and conclusions reached therein that the application is bereft of merit and deserved an order of dismissal. I too dismiss the application for the Applicants’ failure to satisfy the requirements for adducing additional evidence on appeal.
Appearances:
OLAMIPOSI FATUNBI For Appellant(s)
DR. CHARLES D. MEKWUNYE – for 7th & 8th Respondent/Applicant For Respondent(s)