GTB PLC v. BENDU PETER SERVICES (NIG) LTD & ANOR (2022)

GTB PLC v. BENDU PETER SERVICES (NIG) LTD & ANOR

(2022)LCN/16761(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 18, 2022

CA/ABJ/CV/620/2020(R)

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

GUARANTY TRUST BANK PLC APPELANT(S)

And

1. BENDU PETER SERVICES NIGERIA LIMITED 2. PRINCE CHARLES CHUDI CHUKWUANI RESPONDENT(S)

RATIO

THE GUIDING PRINCIPLE ON EXERCISING THE JURISDICTION OF THE COURTS

There are no hard and fast rules as to the manner of exercise of discretion; the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 87) 184 at 199 and LAGOS STATE GOVT. vs. BENEFICIAL ENDOWMENT LTD (2018) LPELR (45779) 1 at 9-11. PER OGAKWU, J.C.A.

THE POSITION OF LAW WHERE THE APPELLATE COURT IS CALLED UP TO ALLOW FRESH EVIDENCE ON APPEAL

It seems to me that when an appellate Court is called upon to allow fresh evidence on appeal, it must recognise the necessity to adhere strictly to the three conditions reproduced above and in order for discretion to be exercised in favour of granting leave to adduce further evidence on appeal, the said three conditions must co-exist: GAZU vs. NYAM (1998) 2 NWLR (PT 538) 477 at 493 and UBA PLC vs. BTL IND LTD (2005) LPELR (8065) 1 at 14-15.”
See also SHARING CROSS EDUCATIONAL SERVICES LTD vs. UMARU ADAMU ENTERPRISES LTD (2020) LPELR (49567) 1 at 8-10 and ADELAKUN vs. EFCC (2021) LPELR (53406) 1 at 16-19.
The power vested in the Court to receive fresh evidence or further evidence is generally exercised reluctantly, sparingly and with great circumspection. This is on account of the risk 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 will however exercise the power where the appellant has satisfied the applicable conditions, and if on the facts of the case it will be in the interest of justice to receive the fresh evidence: OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 15-17. In GTB PLC vs. INNOSON (NIG) LTD (2017) 16 NWLR (PT 1591) 181 at 201, Eko, JSC stated:
“Three prominent considerations tending to work against adducing fresh evidence at the appellant Court, when this Court exercises its power under Order 2, Rule 12 of the rules of this Court in that regard, are-
i. Where issues are joined on pleadings at the trial Court, no party shall be taken by surprise. Thus, the appeal Court cannot consider the reception of new evidence without amendment of the pleadings. See Onibudo v. Akibu (1982) 7 SC. 60; Adeleke vs. Aserifa (1990) 3 NWLR (Pt. 136) 94 at 111; (1990) 21 NSCC 145 at 154.
ii. It is in the interest of public policy, particularly for the purpose of efficient and effective administration of justice, to obviate prolongation of litigation that the practice of adducing evidence, which ought to have been adduced at the trial Court, should not be postponed to after judgment: See Adeleke v. Aserifa (supra).
iii. Appellate Courts generally exercise their jurisdiction to correct errors of law or fact made by the Courts below, after the latter’s consideration of the totality of evidential materials before them. Accordingly, the correctness of the decision of a trial Court or Judge should not be assessed or judged on the new evidence that the trial Court or Judge never had an opportunity to consider: See Adeleke v. Aserifa (supra). In other words the correctness or otherwise of the judgment of the trial Judge or Court should not be assessed on evidential materials he or it never had opportunity to consider.” PER OGAKWU, J.C.A.

THE POSITION OF LAW ON FRESH EVIDENCE

THE POSITION OF LAW ON THE AUTHENTICATION OF COMPUTERS AND ELECTRONIC DEVICES

Now, Section 84 of the Evidence Act deals with authentication of computers and electronic devices used in producing documents. It provides the protocol for the admissibility of computer generated evidence. What it prescribes is that the computer or device used in producing the document must be certified as trustworthy and that it did not malfunction at the time of producing the document. As held by the Supreme Court in DICKSON vs. SYLVA (2017) 8 NWLR (PT 1567) 167 at 219, Section 84 of the Evidence Act is all about ascertaining the authenticity of the device from which the exhibit was produced. Accordingly, the stipulations of Section 84 of the Evidence Act only go to perception of evidence, id est, reception of all available admissible evidence. It is only after perception of evidence that the Court ascertains the credibility of the evidence by weighing the same in the context of the surrounding circumstances of the case. See OLUFOSOYE vs. OLORUNFEMI (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPERS LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ANYAKA vs. ANYAKA (2014) LPELR (24501) 1 at 23-24. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): By an application filed on 4th December 2020, the Appellant/Applicant prays the Court for the following orders:
“1. AN ORDER granting leave to the Applicant to adduce fresh evidence on appeal attached as Exhibits GTB 3 to GTB 7, which evidence borders on fraud perpetrated by the Respondents to obtain a favourable judgment from the trial Court.
2. AN ORDER of this Honourable Court granting leave to the Applicant to raise a fresh issue on appeal regarding the issue of fraud perpetrated by the Respondents.
3. AN ORDER of this Honourable Court granting leave to the Applicant to amend the Notice of Appeal dated 4th May 2020 in the manner set out in Exhibit GTB 8.
4. AN ORDER of this Honourable Court deeming the already separately filed and served Amended Notice of Appeal as properly filed and served.”

The grounds upon which the application is predicated are as follows:
“1. On 4th May 2020, the Applicant filed a Notice of Appeal against the decision of the High Court of the Federal Capital Territory (the trial Court) which was delivered on 23rd March 2020 in Suit No. FCT/HC/CV/1205/2015: Bendu Peter Services Nigeria Limited & Anor v. Guaranty Trust Bank Plc.
2. The Applicant filed the Notice of Appeal without the benefit of studying a copy of the judgment of the trial Court as same was not obtained until 3rd July 2020.
3. On receipt of the certified copies of the judgment of the trial Court, the Applicant noticed some accidental slips in the judgment and applied to the trial Court for same to be corrected.
4. On 16th July 2020, the trial Court granted Applicant’s application and corrected the accidental slips in its judgment.
5. The Applicant has also recently uncovered some fresh and credible evidence which show that the circumstances leading to the suit were precipitated by forgery and that the judgment of the trial Court was obtained by fraud.
6. The fresh evidence uncovered by the Applicant are weighty and material and will have had a huge impact on the judgment of the trial Court if revealed during the trial.
7. The Applicant was not aware of the facts and circumstances which led to the fraud as same was not an issue during the trial at the Trial Court.
8. Upon a review of the Notice of Appeal, the Applicant has also realised the need to amend the grounds and particulars of appeal to properly reflect its grievance with the judgment of the trial Court and ensure that the grounds of appeal are clear and exhaustive.

The application is supported by an affidavit of 27 paragraphs and four further affidavits deposed to on 22nd June 2021, 22nd July 2021, 14th October 2021 and 20th January 2022 respectively. The documents relied upon were attached to the various affidavits filed by the Appellant/Applicant.

The Respondents opposed the application and in turn, they filed a barrage of counter affidavits in opposition. There is the counter affidavit of 22 paragraphs deposed to on 19th January 2021 and three further counter affidavits deposed to on 30th July 2021, 13th September 2021 and 4th October 2021. The documents relied upon were equally attached to the affidavits.

In view of the vehement opposition to the application, the Court, on 18th October 2021, directed the parties to file written addresses in respect of the application. This was duly done with the Appellant/Applicant filing its written address on 1st November 2021, while the Respondents filed their written address on 8th November 2021. The Appellant/Applicant further filed a Reply on Points of Law to the Respondents’ written address on 12th November 2021. At the hearing of the application, the learned counsel for the parties adopted and relied on their processes in urging the Court to uphold their respective submissions in the determination of the application.

The Appellant/Applicant distilled a sole issue for determination in its written address, namely:
“Whether it will serve the interest of justice for this Honourable Court to grant the reliefs sought in the application of 4 December 2020”

The Respondent equally formulated a sole issue for determination on the application, as follows:
“Whether the Appellant/Applicant have [sic] satisfied the laid down conditions as provided by law for this Honourable Court to exercise its discretion in its favour”.

The respective sole issue formulated by the parties, though differently worded, are the same in its true essence and purport. The issue strikes at the pith of the bounden duty on the Court to exercise discretion judicially and judiciously based on the materials presented in the interest of justice. Accordingly, I will review the submissions of learned counsel as presented under the issue as crafted by them and then determine the application.

SUBMISSIONS OF LEARNED COUNSEL
The Appellant/Applicant submits that the Respondent’s counter affidavits are unreliable as there are contradictions, inconsistencies and apparent falsehoods in them, making them to lack credibility and probative value. The said deficiencies were highlighted and the Court was urged to discountenance the Respondent’s counter-affidavits. It was submitted that Order 4 Rule 2 of the Rules of this Court imbues the Court with the power to accept fresh evidence on appeal on special grounds. Relying on the conditions to be fulfilled before fresh evidence can be taken on appeal as laid down in DIKE-OGU vs. AMADI (2020) 1 NWLR (PT 1704) 45 at 60-61, it was asserted that the Appellant/Applicant had fulfilled all the conditions for the grant of the application. It was opined that the evidence sought to be adduced could not have been obtained with reasonable care and diligence for use at the trial. The case of LEEDO PRESIDENTIAL MOTEL LTD vs. BANK OF THE NORTH LTD (1998) LPELR-1775 (SC) at 40 was referred to on the meaning of the phrase ‘reasonable diligence’.

The Appellant/Applicant states that the indication that the documents submitted by the Respondents were either forged/fabricated did not come to its knowledge until after judgment had been delivered by the lower Court and that the evidence which it now seeks to present was not obtained until after it had filed its Notice of Appeal. It was posited that the said evidence sought to be adduced was apparently credible and capable of being believed, even if it may not be incontrovertible. It was maintained that if the evidence sought to be adduced had been available at the trial, it could have influenced the judgment of the lower Court in favour of the Appellant/Applicant; as the said evidence was material, weighty and conclusive in showing that the Respondents misled the lower Court and obtained judgment by fraud, which makes the judgment liable to be set aside vide IKYAAWAN vs. AJIVAH (1997) 4 NWLR (PT 499) 365 at 385.

The Appellant/Applicant conclusively submitted that it is in the interest of justice to grant the application and grant leave to amend the Notice of Appeal to properly reflect its grievance with the judgment of the lower Court as the amendment is for the purpose of determining the real questions in controversy. The case of OJAH vs. OGBONI (1976) 1 NMLR 95 was relied upon.

In replication, the Respondents submit that the Appellant/Applicant has not met any of the laid down conditions to warrant the exercise of discretion by a grant of the application. The cases of C. P. C. vs. OMBUGADU (2013) 18 NWLR (PT 1385) 66 at 161 and AMAECHI vs. INEC (2008) 5 NWLR (PT 1080) 227 at 301-302 and 444-445 were cited in support. It was stated that the evidence sought to be adduced is a public record which was available during the trial at the lower Court and could have been obtained with reasonable care and diligence, which the Appellant/Applicant did not bring to bear. It was stated that the trial at the lower Court lasted for five years, during which period the Appellant/Applicant did nothing to adduce the evidence which was not hidden, but was available in public Court records as well as on the internet. Equity it was contended, aids the vigilant and not the indolent. The cases of IDIAGBON vs. APC (2019) 18 NWLR (PT 1703) 102 at 108, IN RE: YAR’ADUA (2011) 17 NWLR (PT 1277) 567 and DIKE-OGU vs. AMADI (supra) at 67 were called in aid. It was asserted that the Appellant/Applicant was trying to use the procedure of adducing fresh evidence on appeal to spring a surprise on the Respondents, repair its case and overreach the Respondents.

It is the further submission of the Respondents that if the fresh evidence had been admitted at the trial, it would not have had an important or crucial effect on the whole case. The said fresh evidence was said not to be apparently credible in the sense of being believed by a Court, as they were public documents which were not certified and therefore do not satisfy the dictates of the law of evidence vide ADEYEFA vs. BAMGBOYE (2013) 10 NWLR (PT 1863) [sic] 532 at 543 and 554.

Replicando in lex, the Appellant/Applicant submits that the overriding and paramount consideration for a grant of the application is whether a special ground exists and that a special ground exists as the fresh evidence shows that the judgment of the lower Court was fraudulently obtained. It was maintained that the Appellant/Applicant had demonstrated reasonable care and diligence as required of it under the Anti-Money Laundering and Combating the Financing of Terrorism in Banks and Other Financial Institutions Regulations, 2013, and that it cannot be subjected to a higher standard of diligence beyond the requirements of law as the maxim is that equity follows the law and that no length of time bars a relief in a case of fraud. The cases of YOUNG SHALL GROW MOTORS LTD vs. ONALADA (2020) LPELR-51706 (SC) at 10 and AROWOLO vs. IFABIYI (2002) LPELR-562 (SC) at 18-19 were referred to.

The Appellant/Applicant contends that the documents sought to be tendered as fresh evidence are admissible as electronic evidence and that a Certificate of Compliance as required by Section 84 of the Evidence Act had been filed by the Appellant/Applicant. It was posited, without conceding, that even if the Court records were originally public records, the other documents were not public records having been obtained from the online domain and portal of private foreign news organisation and legal resource and were therefore not public documents which require certification.

RESOLUTION
Let me start by saying that it is the Appellant/Applicant that seeks a discretionary relief from the Court. It therefore behoves upon it to furnish sufficient materials for discretion to be exercised in its favour by a grant of the application. This makes it immaterial whether, as contended by the Appellant/Applicant, the Respondents’ counter affidavit is unreliable or not. The Appellant/Applicant is to succeed on the strength of the materials it furnished and not on any weakness in the case of the Respondents or indeed, absence of any opposition by the Respondents.

There are no hard and fast rules as to the manner of exercise of discretion; the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 87) 184 at 199 and LAGOS STATE GOVT. vs. BENEFICIAL ENDOWMENT LTD (2018) LPELR (45779) 1 at 9-11.

Order 4 Rule 2 of the Court of Appeal Rules, 2021 stipulates as follows:
“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.”
The Appellant/Applicant seeks leave to adduce further evidence after the trial at the lower Court. By Order 4 Rule 2 reproduced above, 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 further evidence which the Appellant/Applicant seeks to adduce is not in respect of matters which occurred after the trial, therefore in order for discretion to be exercised in favour of the Appellant/Applicant, the materials it furnished ought to establish special grounds. The parties in their submissions have referred to the conditions which if established would constitute the special grounds envisaged for the grant of the application. See DIKE-OGU vs. AMADI (supra), AMAECHI vs. INEC (supra) at 301-302 and ASABORO vs. ARUWAJI (1974) 4 SC 119. In ODUTOLA vs. SANNI (2019) LPELR (49823) 1 at 6-7, I was opportune to state the legal position as follows:
“The parties have referred to the case of ASABORO vs. ARUWAJI (supra) on the principle governing the reception of further evidence. In the said case the apex Court laid down the governing principle as follows:
‘In civil cases, the Court will permit fresh evidence in furtherance of justice under the following circumstances-
(i) where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial.
(ii) where the fresh evidence is such that if admitted would have an important, but not necessarily crucial, effect on the whole case.
(iii) where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed. It need not necessarily be incontrovertible.’
See also OBASI vs. ONWUKA (1987) 3 NWLR (PT 61) 364, ADELEKE vs. ASERIFA (1990) LPELR (116) 1 at 24-25 and WILLIAMS vs. ADOLD/STAMM INT’L NIG LTD (2017 LPELR (41559) 1 47-48.
It seems to me that when an appellate Court is called upon to allow fresh evidence on appeal, it must recognise the necessity to adhere strictly to the three conditions reproduced above and in order for discretion to be exercised in favour of granting leave to adduce further evidence on appeal, the said three conditions must co-exist: GAZU vs. NYAM (1998) 2 NWLR (PT 538) 477 at 493 and UBA PLC vs. BTL IND LTD (2005) LPELR (8065) 1 at 14-15.”
See also SHARING CROSS EDUCATIONAL SERVICES LTD vs. UMARU ADAMU ENTERPRISES LTD (2020) LPELR (49567) 1 at 8-10 and ADELAKUN vs. EFCC (2021) LPELR (53406) 1 at 16-19.
The power vested in the Court to receive fresh evidence or further evidence is generally exercised reluctantly, sparingly and with great circumspection. This is on account of the risk 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 will however exercise the power where the appellant has satisfied the applicable conditions, and if on the facts of the case it will be in the interest of justice to receive the fresh evidence: OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 15-17. In GTB PLC vs. INNOSON (NIG) LTD (2017) 16 NWLR (PT 1591) 181 at 201, Eko, JSC stated:
“Three prominent considerations tending to work against adducing fresh evidence at the appellant Court, when this Court exercises its power under Order 2, Rule 12 of the rules of this Court in that regard, are-
i. Where issues are joined on pleadings at the trial Court, no party shall be taken by surprise. Thus, the appeal Court cannot consider the reception of new evidence without amendment of the pleadings. See Onibudo v. Akibu (1982) 7 SC. 60; Adeleke vs. Aserifa (1990) 3 NWLR (Pt. 136) 94 at 111; (1990) 21 NSCC 145 at 154.
ii. It is in the interest of public policy, particularly for the purpose of efficient and effective administration of justice, to obviate prolongation of litigation that the practice of adducing evidence, which ought to have been adduced at the trial Court, should not be postponed to after judgment: See Adeleke v. Aserifa (supra).
iii. Appellate Courts generally exercise their jurisdiction to correct errors of law or fact made by the Courts below, after the latter’s consideration of the totality of evidential materials before them. Accordingly, the correctness of the decision of a trial Court or Judge should not be assessed or judged on the new evidence that the trial Court or Judge never had an opportunity to consider: See Adeleke v. Aserifa (supra). In other words the correctness or otherwise of the judgment of the trial Judge or Court should not be assessed on evidential materials he or it never had opportunity to consider.”

The Appellant/Applicant seeks leave to adduce fresh evidence.

What is fresh evidence? In WILLOUGHBY vs. IMB (NIG) LTD (1987) LPELR (3495) 1 at 25, Obaseki, JSC opined:
“What is fresh Evidence? I think this is evidence that was not available previously which is designed to be a reply to the evidence given by the other side, or points material to the determination of the issues or any of them.”
Furthermore, in ANATOGU vs. IWEKA II (1995) LPELR (484) 1 at 57, Ogundare, JSC stated:
“Now, what is ‘fresh evidence’ and in what circumstances can it be given? A definition of the expression is given… thus: A ‘fresh evidence’ it seems to me, must have the quality of newness, or the feature of having become newly available and obtainable”.

It is in the light of the meaning of fresh evidence that we would consider the coalescent conditions, already reproduced, on the fulfillment and satisfaction of which discretion is to be exercised in favour of granting leave for fresh evidence to be adduced. Understandably, while the Appellant/Applicant contends that it has satisfied and fulfilled the conditions, the Respondent has contended the contrary. Now, the fresh evidence sought to be tendered are documents showing the details of the alleged trial, conviction and incarceration in the United States of America of the sole signatory to the account of the 1st Respondent’s Company with the Appellant/Applicant, and who was said to have signed resolutions of the 1st Respondent’s Company on 22nd November 2014, as at which date she was already incarcerated and in prison in the United States of America. The pertinent question is whether the details of the said conviction, sentence and imprisonment which was in 2011, four years before the action was initiated at the lower Court, could have been obtained with reasonable care and diligence for use at the trial at the lower Court, which trial process lasted all of five years. Let me iterate that the Court is reluctant to admit fresh or additional evidence on appeal except in situations where the matter arose in circumstances in which no human ingenuity could have foreseen and it is in the interest of justice that evidence of that fact be led. See MABOGUNJE vs. ODUTOLA (2008) ALL FWLR (PT 412) 1182.
In paragraph 16 of the supporting affidavit, the Appellant/Applicant deposed as follows:
“16. I know that fresh evidence has now been discovered by the Applicant which shows that the said Ms. Bendu Rosetta Browne who allegedly signed the board resolution and request for reactivation was not in Nigeria between 20th November 2014 to 22nd November 2014 having been convicted of the crime of ‘theft by deception’, and sentenced on 16th December 2011 by the United States District Court for New Jersey, United States of America for a period of three (3) years.”
In support of having exercised reasonable care and diligence, the Appellant/Applicant submitted as follows in paragraph 6 of the Reply on Points of Law filed on 12th November 2021:
“6. The preponderance of evidence before this Honourable Court shows that the Applicant demonstrated reasonable care and diligence as required by it under the AML/CFT Regulations in that as a condition to granting access to the account, it (a) requested for the updated corporate documents of the 1st Respondent; (b) called Ms. Browne on the number provided for her at account opening but was unable to reach her; (c) visited the physical address provided but did not meet her (please see paragraphs 13 of the Applicant’s Affidavit filed on 4th December 2020); and (d) requested for a valid means of identification of the said Ms. Browne from the Respondents. Instead of simply providing the means of identification, the Respondents instituted the action at the trial Court. Thus, the reason the Respondents instituted the action was actually on account of the Applicant’s exercise of reasonable care and due diligence.”
The documents which the Appellant/Applicant wants to adduce as fresh evidence are documents from the internet. So it means that the information was readily available on the internet. It seems to me that if after the Appellant/Applicant had made the efforts it claimed to have made, it was within human ingenuity to realise that a search of the name of the signatory to the account on the internet could have revealed the whereabouts of the signatory to the account in order to reach her, if possible, and ascertain if she signed the board resolutions. Therefore, the fresh evidence sought to be adduced could have been obtained with reasonable care and diligence and used at the trial. Unfortunately, in the peculiar circumstances of this matter, the Appellant/Applicant did not exercise reasonable, fair, proper and due degree of care and diligence as would have been done by a person of ordinary prudence and activity, given that the information was readily available and easily accessible on the internet: LEEDO PRESIDENTIAL MOTEL LTD vs. BANK OF THE NORTH LTD (supra) and AFRICAN INTERNATIONAL BANK LTD vs. EDUCATION TAX FUND (2010) LPELR (3640) 1 at 12.
The other conditions which the Appellant/Applicant has to establish are whether the fresh evidence is important and such that would have an effect on the whole case, as well as whether the evidence is credible and capable of being believed. It seems to me that it is when evidence is credible and capable of being believed that it would have an important effect on the case. Evidence which is not credible and to which no probative value can be ascribed in the sense that it is capable of being believed, will not have any effect on a case since it establishes nothing.

Now, the fresh evidence which the Appellant/Applicant seeks leave to adduce is in respect of the information in the documents which it downloaded from the internet. The Respondents have challenged the authenticity of the documents on the grounds, inter alia, that they are public documents which are not certified. The Appellant/Applicant tacitly concedes the point, but it however argues that it is only one of the documents that can rightly be termed a public document; but that the other documents are private documents which were downloaded from the websites of private organisations and that a Certificate of Compliance as required by Section 84 of the Evidence Act had been filed.
Now, Section 84 of the Evidence Act deals with authentication of computers and electronic devices used in producing documents. It provides the protocol for the admissibility of computer generated evidence. What it prescribes is that the computer or device used in producing the document must be certified as trustworthy and that it did not malfunction at the time of producing the document. As held by the Supreme Court in DICKSON vs. SYLVA (2017) 8 NWLR (PT 1567) 167 at 219, Section 84 of the Evidence Act is all about ascertaining the authenticity of the device from which the exhibit was produced. Accordingly, the stipulations of Section 84 of the Evidence Act only go to perception of evidence, id est, reception of all available admissible evidence. It is only after perception of evidence that the Court ascertains the credibility of the evidence by weighing the same in the context of the surrounding circumstances of the case. See OLUFOSOYE vs. OLORUNFEMI (1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPERS LTD vs. AJEH (2011) 10 NWLR (PT 1255) 574 at 592, WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 50-51 and ANYAKA vs. ANYAKA (2014) LPELR (24501) 1 at 23-24. The implication is that the fact that the Appellant/Applicant satisfied the requirements of Section 84 of the Evidence Act by filing the Certificate of Compliance, does not eo ipso make the documents credible. Compliance with Section 84 of the Evidence Act only serves to make the documents admissible.
Therefore, the perduring question remains whether the documents which the Appellant/Applicant wants to adduce as fresh evidence on appeal and which it downloaded from the website of private organisations are credible and capable of being believed? In DICKSON vs. SYLVA (supra) at 209, the apex Court held that although a document produced from a computer may cross the admissibility threshold in Section 84 of the Evidence Act, it may still not be accorded the requisite weight if the accuracy conditions in Section 34 (1) of the Evidence Act are not complied with. In consequence, in order for the documents, which the Appellant/Applicant seeks to adduce as fresh evidence on appeal, to be said to be credible and capable of being believed; it has to be shown that it satisfied the stipulations of Section 34 (1) (b) of the Evidence Act which provides as follows:
“34.(1) In estimating the weight, if any to be attached to a statement rendered admissible as evidence by this Act, regard shall be had to all the circumstances from which inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular –
(b) in the case of a statement contained in a document produced by a computer –
(i) the question whether or not the information which the statement contained, reproduces or is derived from, was supplied to it contemporaneously with the occurrence or existence of the facts dealt with in that information, and
(ii) the question whether or not any person concerned with the supply of information to the computer or with the operation of that computer or any equipment by means of which the document containing the statement was produced by it, had any incentive to conceal or misrepresent facts.”
At the risk of prolixity, let me restate that the Appellant/Applicant downloaded the documents from the websites of some private organizations on the internet, namely: mugshot.com, justia.com and inmate.aid.com. In ABUBAKAR vs. INEC (2020) 12 NWLR (PT 1737) 37 at 120, the Supreme Court defined a website as a computer connected to the internet that maintains a series of web pages on the world wide web. There is nothing in the processes filed by the Appellant/Applicant on which the stipulations of Section 34 (1) (b) of the Evidence Act have been met, in order for the documents sought to be adduced as fresh evidence to be accorded probative value and considered as credible and capable of being believed.

I had previously alluded to the tacit concession by the Appellant/Applicant that one of the documents, EXHIBIT GTB 3 is a public document. The said Exhibit GTB 3 are Court records from the New Jersey District Court.

Section 102 of the Evidence Act stipulates:
“The following documents are public documents –
(a) Documents forming the official acts or records of the official acts of –
(i) the sovereign authority;
(ii) official bodies and tribunals; or
(iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) public records kept in Nigeria of private documents.”

It is beyond confutation that the said EXHIBIT GTB 3 are public documents within the meaning of Section 102 of the Evidence Act. EXHIBIT GTB 3 is not a certified copy of the public document as required by Section 112 of the Evidence Act. It therefore commands no weight on which it can be accorded credibility and treated as capable of being believed. The essence of the certification requirement of public documents is to vouchsafe their authenticity, vis-à-vis, the original. See GOODWILL & TRUST INVESTMENT LTD vs. WITT & BUSH LTD (2011) LPELR (1333) 1 at 42, UDOM vs. UMANA (2016) LPELR (40037) 1 at 51 and KASSIM vs. THE STATE (2017) LPELR (42586) 1 at 16-17.

In the light of the fact that the documents which the Appellant/Applicant seeks to adduce as further evidence on appeal have not been shown to be credible and capable of being believed, they cannot be important as to have any effect on the whole case.

An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. See THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 158 at 168.

In the light of the settled principle of law which requires that the evidence sought to be tendered on appeal is not such that could have been obtained by reasonable care and diligence during the trial and furthermore that the evidence had to be apparently credible in the sense that it is capable of being believed, so as to have an effect on the case, which the documents sought to be adduced as further evidence do not meet; it is inexorable that the discretion of the Court cannot be exercised in favour of granting the application. In splice, the materials furnished by the Appellant/Applicant are not such for discretion to be exercised in its favour by the grant of the relief for leave to adduce fresh evidence on appeal.

The Appellant/Applicant also seeks an order for leave to amend its Notice of Appeal in the manner set out in the proposed Amended Notice of Appeal which is attached as Exhibit GTB 8 to the application. On the grounds in support of the application, the Appellant/Applicant states that it realized the need to amend the grounds and particulars of appeal to properly reflect its grievance with the judgment of the trial Court. Then in paragraph 23 of the supporting affidavit, it is deposed that the Appellant/Applicant realized the need to amend the grounds and particulars of appeal to include an additional ground of appeal as well as to properly reflect its grievance with the judgment of the lower Court. Without a doubt, by Order 7 Rule 8 of the Court of Appeal Rules, 2021, a Notice of Appeal can be amended with leave of Court at any time.

However, the grant of leave to amend the Notice of Appeal is discretionary and subject to conditions, which include that the amendment is in order to ensure that the complaints against the decision appealed against are laid bare and ventilated before the Court; and that the amendment is not intended to overreach the respondent and also that the facts justify the grant of the relief to amend. See FAJEBE vs. OPANUGA (2019) LPELR (46348) 1 at 21, SOUTH ATLANTIC PETROLEUM LTD vs. MINISTER OF PETROLEUM RESOURCES (2013) LPELR (21892) 1 at 17 and PHARMATEK INDUSTRIAL PROJECTS LTD vs. OJO (1996) 1 NWLR (PT 424) 332.

The Appellant/Applicant deposed that the need to amend is to include an additional ground of appeal, which would seem to be on the issues arising from the abduction of fresh evidence on appeal; and to properly reflect its grievance with the judgment of the trial Court. The relief for leave to adduce fresh evidence on appeal and raise fresh issue, from what I have said thus far cannot be granted. The Appellant/Applicant’s proposed Amended Notice of Appeal, EXHIBIT GTB 8, did not specify which of the grounds is the additional ground of appeal or the manner in which the grievance is being properly reflected in the grounds therein. In the circumstance, it poses a difficulty for the Court to ascertain the amendment sought and whether it would overreach the Respondent, or indeed if the particulars of the appeal stem from issues that would have emanated if fresh evidence was allowed, which relief, I iterate cannot be granted. Since the Courts are not given to speculation, there is a lack of clarity as to the specifics of the proposed amendment. Accordingly, the prayer for leave to amend the Notice of Appeal is hereby struck out for being nebulous and amorphous.

In the course of this ruling. I have considered the Appellant/Applicant’s prayers for leave to adduce fresh evidence on appeal and to raise fresh issue arising from the fraud purportedly disclosed by the fresh evidence. Having held that the Appellant/Applicant did not satisfy the conditions for the grant of leave to adduce fresh evidence on appeal, prayers 1 and 2 fail and are hereby dismissed. As already stated, for the lack of specificity in the proposed Amended Notice of Appeal and its imprecise nature, the prayer for leave to amend the Notice of Appeal is hereby struck out. The prayer for an order deeming the Amended Notice of Appeal as properly filed is equally struck out since the prayer to amend the Notice of Appeal which carries it like a kyphosis has been struck out. There shall be no order as to costs.

HARUNA SIMON TSAMMANI, J.C.A.: I read in draft form, the ruling just delivered by my learned brother, Ugochukwu Anthony Ogakwu, JCA.

My learned brother has brilliantly and comprehensively considered and resolved the issue(s) required in an application of this nature. There is no denying the fact that this Court has the discretion to allow or admit fresh evidence on appeal. However, the grant of such relief is subject to the fulfillment of certain conditions. In other words, the exercise of such discretion must be done sparingly being the exercise of judicial power. See Order 4 Rule 2 of the Court of Appeal Rules, 2021. To grant such an exceptional relief therefore:
(a) the fresh evidence must be such that could not have been obtained even if reasonable care had been taken;
(b) the fresh evidence must be such that is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible;
(d) the fresh evidence could have influenced the judgment of the trial Court had it been made available or tendered at the trial; and
(e) the fresh evidence sought to be introduced must be material and weights, though not conclusive.
Those are crucial factors that the Court must consider being an application of this nature can be granted. In the instant case, the fresh evidence sought to be admitted does not satisfy any of the above conditions; though admissible in law.

See Williams v. Adold, Stamm Futil (Nig.) Ltd. (2017) 6 NWLR (Pt. 1560); Okoro v. Egbuoh (2006) 15 NWLR (Pt. 1001) and Angale v. Abdullahi & Ors. (2017) LPELR- 43129 (CA).

On that note, I agree with my learned brother that this Application has no merit. It is refused and accordingly dismissed. I abide by the order on costs.

HAMMA AKAWU BARKA, J.C.A.: The thrust of the instant application rightly identified in the lead judgment is whether the Applicant satisfied the laid down legal conditions necessary for the Court exercising its discretion granting the reliefs sought.

Having carefully examined the issues agitated upon, and the submission of learned counsel, I am satisfied that same had been admirably and efficiently dealt with conclusively.

In the event, I join my brother U.A. Ogakwu JCA in refusing the application and abide by orders made including that on costs.