HON. M.D. OCHIGBO v. OLAMABORO L.G.A. TRADITIONAL COUNCIL, OKPO & ORS
(2018)LCN/11776(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of June, 2018
CA/A/291/M/2011(R)
RATIO
PRINCIPLES GOVERNING THE RECEPTION OF FRESH EVIDENCE
…fresh evidence should be permitted in furtherance of justice in 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. per MOHAMMED MUSTAPHA, J.C.A
RELUCTANCE TO ADMIT FRESH EVIDENCE
This Court cannot help but be reluctant to admit fresh or additional evidence on appeal, except “…in circumstances where the matter arose in circumstances which no human ingenuity could have foreseen and it is in the interest of justice that evidence of that fact be led” per MOHAMMED MUSTAPHA, J.C.A
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
HON. M.D. OCHIGBO Appellant(s)
AND
- OLAMABORO L.G.A. TRADITIONAL COUNCIL, OKPO
2. ATTAH IGALA AND CHAIRMAN IGALA AREA TRADITIONAL COUNCIL
3. CHIEF MATHEW EKELE Respondent(s)
MOHAMMED MUSTAPHA, J.C.A.(Delivering the Lead Ruling):
By a Motion on Notice dated and filed on the 22nd day of February, 2017, the Appellant/Applicant prayed this Honourable Court for the following orders:-
1. An Order granting Leave to the Appellant/Applicant to adduce fresh evidence or further evidence on appeal by tendering the following documents for use in the appeal namely:-
a. Certified True Copy of the Record of Proceedings of Grade 1 Area Court, Ankpa including Judgment delivered on 27/09/85 in CASE NO: CV204/85: BETWEEN OKPANACHI OKWORI ‘M’ OF OKPO V. IGOMU OKPE ‘M’ OF IGA-OCHEBA together with the Revenue Collector’s Receipt in obtaining same.
b. Certified True Copy of Minutes of Meeting of ATTAH-COUNCIL with members of the six clans of Igah held on 16th September, 2013 in Attah Igala’s Palace, Idah including the Council’s ruling thereof together with Memorandum dated 1st Feb., 2017 exempting payment of fees for certification.
And for such further order or other orders that this Honourable Court may deem fit to make in the circumstances.
The grounds for the application are as follows:-
1. The issue of the actual number of Clans and/or Ruling houses pertaining to the stool of Ojibo Igah, which is the subject matter of the appeal in this case is central.
2. While the Appellant/Applicant has consistently maintained that there are six (6) Clans and/or Ruling houses regarding the stool of Ojibo Igah, the 3rd Respondent has insisted that there are only four (4) Clans and/or Ruling houses.
3. The Certified True Copy of the Record of Proceedings of Grade 1 Area Court, Ankpa in CASE NO: CV204/85: BETWEEN OKPANACHI OKWORI M OF OKPO V IGOMU OKPE `M’ OF IGA-OCHEBA sought to be tendered as fresh evidence in this appeal is replete with the fact that there are six (6) Clans and/or Ruling houses in Igah.
4. Invariably, the Certified True Copy of the Record of Proceedings of Grade 1 Area Court, Ankpa in CASE NO: CV204/85: BETWEEN OKPANACHI OKWORI ‘M’ OF OKPO V. IGOMU OKPE ‘M’ OF IGA-OCHEBA sought to be tendered as fresh evidence in this appeal raises issue estoppel regarding the actual number of clans in Igah.
5. Similarly, the Certified True Copy of Minutes of Meeting of Attah-In-Council with members of the six clans of Igah held on 16th September, 2013 in Attah Igala’s Palace, Idah including the Council’s ruling thereof sought to be tendered as fresh evidence in this appeal equally acknowledges and/or confirms the existence of six (6) clans in Igah.
6. The two (2) documents sought to be introduces as fresh evidence in this appeal are very much relevant and/or germane to the just determination of the appeal.
7. The Certified True Copy of Minutes of Meeting of Attah-In-Council with members of the six clans of Igah held on 16th September, 2013 in Attah !gala’s Palace, ldah including the Council’s ruling thereof particularly related to matters that occurred after the Judgment of the trial Court had been delivered in this case.
The application is supported by a 37 paragraphed affidavit deposed to by the Applicant himself with Exhibits APP1 and APP2 attached; the applicant’s further and better affidavit filed on the 16th day of March, 2017 has 36 paragraphed affidavit deposed in response to the counter affidavits of the 1st and 3rd respondents.
The Appellant/Applicant distilled a sole issue for the determination of this application in his Written Address in Support of the Motion on Notice filed on the 22nd day of February, 2017; thus:-
Whether having regard to the entire circumstances, the Appellant/Applicant has made out a case for adducing fresh evidence or further evidence on appeal so as to warrant a grant of his application.
The 1st and 3rd Respondents filed their respective counter affidavits in opposition with written addresses in support on the 2nd day of May 2018 and 6th day of March, 2017 respectively, wherein the sole issue formulated for the applicant was adopted; the 2nd Respondent did not file any counter affidavit in opposition.
It is submitted for the applicant that Order 4 Rule 2 of the Court of Appeal Rules, 2016 allows for the receipt of fresh evidence; learned senior counsel referred this Court to AROH V PDP (2013) part 1371 page 235, NWAOGU V ATUMA (2013) 10 NWLR part 1363 page 591 and C.P.C V OMBUGADU (2013) 18 NWLR part 1385 page 66.
That the applicant has shown in his affidavit supporting the application that the document sought to be tendered by way of fresh evidence is very important and crucial to the determination of the actual number of clans or ruling houses in Igah.
That also the applicant has stated reasons for his inability to lay hands on the said document, i.e. Exhibit APP1 during the pendency of the case at the lower Court, at paragraphs 24 to 27 of the affidavit in support of the application.
Learned senior counsel further submitted that in the case of Exhibit APP2, it relates to an event that took place after the conclusion of trial at the lower Court; he referred this Court to C.P.C. V OMBUGADU (2013) 18 NWLR part 1385 page 66.
It is submitted for the 1st respondent in response that the conditions for the admissibility of further evidence must be fulfilled before same can be admitted; and that Exhibit APP1 has been in existence since 1985 in Kogi State, yet the appellant made no effort to adduced evidence at the lower Court in this regard, even though the evidence was available.
That the only reason why Exhibit APP1 was not pleaded at the lower Court is because it was not needed by the applicant; learned senior counsel referred this Court to AROH V PDP & ORS (2013) LPELR-20750-SC and OBASI & ANR V ONWUKA & ORS (1987) 2152-SC.
That also the 2nd respondent is an interested party in this appeal, and waited for three years after the judgment of the lower Court in which he was a party before he decided to sit on appeal over the judgment of the lower Court.
Learned counsel further submitted that Exhibit APP1 has no probative value because the parties are different in this appeal and the res is land in the case of the exhibit, while that of this appeal is chieftaincy title.
It is submitted for the 3rd respondent in response that the powers of this Court to grant leave to adduce fresh evidence is not in doubt but the applicant in this case has not made out such a case as to be entitled to the leave of Court; learned counsel referred this Court to OWATA V ANYIGOR (1993) 2 NWLR part 276 page 380.
That the applicant had the document but did not exercise any reasonable care to tender same at trial, thus failing to meet the conditions for the grant of leave by this Court; and that also the Exhibit APP1 is not relevant and needless to admit as fresh evidence.
It is further submitted that the 2nd respondent is the author of Exhibit APP2, as such; he cannot be a judge in his own
Learned senior counsel submitted in response that contrary to the position of the 3rd respondent Exhibit APP1 repeatedly confirmed that there are 6 clans in Igah, and the word clan and ruling houses are used interchangeably; and that the exhibit is relevant for that reason.
That Exhibit APP2 was not made in contemplation of this appeal and but made long after the case was decided on the 14th of December,2010; learned senior counsel referred this Court to AKANBI V ALAO (1989) 3 NWLR part 108 page 118.
RESOLUTION:
After carefully going through the motion, the affidavit in support, the counter affidavits of the 1st and 3rd respondents, the further and better affidavit as well as the exhibits attached to the respective affidavits and addresses of counsel, it is very important for the purpose of determining whether the application satisfies the basic requirements for grant or refusal, as the case may be, to point out that evidence is said to be fresh, and helpful to admit, when, as held by the Supreme Court, in WILLOUGHBY V INTERNATIONAL MERCHANK BANK NIG. LTD (1987) LPELR-3495-SC such evidence “.. was not available previously which is designed to be a reply to the evidence given by the other side, on points material to the determination of the issues or any of them. It could not, in my view, be evidence which ought to have been led to establish the facts pleaded and meet the issues raised on the pleadings. lf it were otherwise, the purpose of pleadings would be defeated.” Per Obaseki JSC.
The general principles governing the reception of fresh evidence was laid down by the Supreme Court in ASABORO V. ARUWAJI (1974)4 S.C. 119; it requires that fresh evidence should be permitted in furtherance of justice in 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.
Be that as it may, where the evidence is available and could with reasonable care and diligence be made available to the applicant at the time of the trial, as in the instant case, the Court of Appeal will refuse to exercise its discretion to receive such evidence: See ATT. GEN. OF THE FEDERATION V. ALKALI (1972) 12 S.C. 20, UCHE V. STATE (1986) 3 N.W.L.R. (PT.30) 528 and INLAND REVENUE V. REZCALLAH (1962) ALL N.L.R. 1.
However, if applicant referred to the document in his pleadings or evidence but did not tender it, for some reasons,the Court could still admit it; see – LATINWO V. AJAO (1973) 2 S.C.99.
The 3rd respondent at paragraph 17 of his counter affidavit deposed that the applicant had copies of Exhibit APP1 while the trial was going on but chose not to plead it, rely on it nor mentioned it in his evidence, and also at paragraph 19 that the exhibit is not relevant to this appeal, because the subject matter at trial and this appeal are different; in response to which the applicant deposed in his further affidavit, at paragraph 17 and 18 that he did not deliberately withhold the document, and was in Makurdi when proceedings in APP1 were commenced and concluded.
This Court cannot help but note that Exhibit APP1 was in existence as far back as 1985, because judgment was delivered on the 27th of September, 1985, and the applicant commenced the suit leading to this appeal on the 16th January 2007, and this begs the question why did the applicant fail to plead or tender it at trial, since the document was indeed available for the asking
It clearly is no excuse that the applicant was in Makurdi when the matter was commenced and concluded, nor is it enough to contend that he was not a party, because none of those reasons prevented him from seeking to have it admitted now! After all, he does not have to be in Ankpa nor be a party to know the existence of the exhibit.
It does appear to this Court, from the surrounding circumstances that if the applicant, or for that matter his counsel exercised reasonable care and diligence, as required, they could have utilized the document, which was clearly there for the asking.
As rightly pointed out, one wonders why a document whose certified true copy was obtained way back when Ankpa was in Benue State could still not be utilized by the applicant, years after, knowing full well that it is an important document to his case; it could have been another thing all together, if the applicant referred to the document in his pleadings or evidence but did not get to tender it, for some reasons; see LATINWO V. AJAO (1973) 2 S.C.99.
The fact of the matter is that the document was there, he had a copy, but chose not to even plead it, much less rely on it; that cannot by any stretch of imagination be considered to be proper exercise of ‘reasonableness or diligence’, see OWATA V ANYIGOR (1993) 2 NWLR part 276 page 380.
Clearly Exhibit APP1 does not qualifies as fresh evidence, because it is evidence that was available to the applicant, as pointed out from the onset; see OLALERE V FED MIN OF EDUCATION & ORS (2014) LPELR-24141-CA and ANATOGU V IWEKA 2 (1995) NWLR part 415 at 547, where the Supreme Court held that fresh evidence must have the quality of newness or the feature of having become newly available and obtainable.
Learned senior counsel to the applicant valiantly argued that the word ‘clan’ and ‘ruling houses’ mean the same thing, because they are used interchangeably, in an effort to prove the existence of six clans in Igah which constitute six ruling houses.
I do not for once share the view of learned senior counsel in this regard, with respect, not least because the two cannot be the same, even in their respective grammatical senses. It is also a matter of common sense and logic that families constitute a clan, and clans could have a ruling house and not the other way round. Besides, the Court did not, even by exhibit APP1 categorically say that there are six clans in Igah.
It is clear that Exhibit APP2 is minutes of a meeting the 2nd respondent in this appeal chaired, it does not matter as contended that the 2nd respondent, a paramount ruler, has the interest of the people at heart, that to all intents and purposes is another matter all together.
The fears expressed by the 3rd respondent cannot be dismissed with a mere waive of the hand, when account is taken of the fact that Exhibit APP2 sought to be brought is literally a brainchild of the 2nd respondent. Our adversarial system frowns at giving an unfair advantage to any party in litigation. The true test of fair hearing is the impression of a reasonable person who was present in Court of the trial, whether from his observations justice was done in the case.
One may want to ask, would a reasonable person in the circumstances have the impression that justice was done, if the very document which the 2nd respondent oversaw the production of is brought in at this stage and in this manner In all likelihood it creates an impression of undue advantage to the applicant; see – IJEOMA VS STATE (1990) 6 NWLR (PART 158) 507 AT 580- 581; BABA VS N.C.A.T.C. (1991) 5 NWLR (PART 192) 388 AT 430, CHUNGOM VS STATE (1992) 4 NWLR (PART 233) 17 AT 37 OKAFOR VS A-G ANAMBRA STATE (1991) 6 NWLR (PART 200) 659 AT 678 and MOHAMMED VS KANO N.A. (1968) L ALL NLR 424.
It is very important for the court to be weary of granting an application for leave to adduce fresh evidence where the objective appears to be to overreach or take undue advantage of the other side; this is more so, where as in this case the applicant had all the opportunity in the world to utilize this piece of evidence at trial but failed or neglected to do so, in part due largely to inelegant prosecution of the case at trial, to put it mildly, coupled with lack of diligence and care on the part of the applicant himself.
This Court cannot help but be reluctant to admit fresh or additional evidence on appeal, except “…in circumstances where the matter arose in circumstances which no human ingenuity could have foreseen and it is in the interest of justice that evidence of that fact be led”, see MABOGUNJE V ODUTOLA (2008) All FWLR part 412 page 1182; and that clearly does not appear to be the case in this case, as the documents lack the essential ingredients of fair hearing and neutrality.
It is for these reasons that the application is refused.
ABDU ABOKI, J.C.A.: I have had the opportunity of reading before now the lead judgment just delivered by my learned brother MOHAMMED MUSTAPHA, JCA.
I agree with the reasoning and conclusion contained therein, that the application is refused.
I also abide by the consequential order(s) as contained in the lead judgment.
TANI YUSUF HASSAN, J.C.A.: I agree with the rullng of my learned brother, Mohammed Mustapha JCA, in refusing the application for admission of fresh or additional evidence on this appeal.
Appearances:
P.A. Akubo SAN, with him, E. Okoro Esq. and F. UsmanFor Appellant(s)
Badana Kadiri Esq., with him, S. Atule Esq., and Barraka E. Yahaya – for 1st Respondent.
I. Ojobo Esq.- for 2nd Respondent.
Dr. S.A. Agada Esq. – for 3rd Respondent.For Respondent(s)
Appearances
P.A. Akubo SAN, with him, E. Okoro Esq. and F. UsmanFor Appellant
AND
Badana Kadiri Esq., with him, S. Atule Esq., and Barraka E. Yahaya – for 1st Respondent.
I. Ojobo Esq.- for 2nd Respondent.
Dr. S.A. Agada Esq. – for 3rd Respondent.For Respondent
