IDI v. ASAPH (2022)

IDI v. ASAPH

(2022)LCN/16837(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/G/66/2021(R)

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

JONATHAN IDI APPELANT(S)

And

EPHRAIM ASAPH RESPONDENT(S)

 

RATIO

CONDITIONS TO BE PRESENT THAT WILL AMOUNT TO SPECIAL GROUNDS FOR AN APPLICATION TO ADDUCE FRESH EVIDENCE ON APPEAL

These conditions are what in my view will amount to special grounds for the application. These conditions are:
1. The evidence sought to be tendered could not have been obtained with reasonable diligence for use at the trial.
2. The evidence must be such that, if given, it would probably have an important influence on the outcome of the case.
3. The evidence must be such that is presumably believable, that is to say it is credible.
The above conditions in my view are mutually inclusive and not exclusive.
The following cases of the apex Court are very clear on this point. See Chief Amadi-Dike-Ogu & Ors vs Owhonda Frank Amadi & Ors (2019) LPELR-47847; Williams vs Adold Stamm International (Nig) Ltd (2017) 6 NWLR (pt 1560) 1; Nwaogu vs Atuma (2013) 10 NWLR (pt 1363) 591. For completeness, I also refer to the case of Sharing Cross Educational Services Ltd vs Umaru Adamu Enterprises Ltd (2020) LPELR-49567 (SC) where the apex Court held thus:
“In ASABORO v ARUWAJI (1974) 1 All NLR (pt 1) 140, this Court stated conditions/principles that must co-exist before a fresh evidence can be adduced on appeal. They are:
a) The evidence sought to be adduced must be such as would not have been, with reasonable diligence, obtained for use at the trial;
b) The evidence shall be such as if admitted it would have an important not necessarily crucial effect on the whole case;
c) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible;
d) The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the trial Court in favour of the applicant had it been available at the trial Court;
e) The evidence should be weighty and material as where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.
Interestingly, the above principles/special conditions were also codified under Order 2 Rule 12 of the Supreme Court Rules (as amended in 2009). The said rule sets out the necessary steps to be taken by a party who wishes the Court to receive additional or further evidence of witnesses, whether they were or were not called at the trial Court or how to order the production of any document, exhibit or thing connected with the proceedings.”
The law allows fresh and additional evidence on appeal so that justice is done in the matter after all that is what the Court exist to do. 
PER TOBI, J.C.A.

THE FOCUS OF THE COURT WHEN DECIDING ON CASE BEFORE IT

The main focus of every Court while deciding cases before it is to do justice and in doing so will ensure justice is done according to law and not sentiment which by extension involve doing substantial justice and not technical justice. See Nzekwe vs Anaekwenegbu (2019) 8 NWLR (pt 1674) 235; Akpan vs Bob (2010) 17 NWLR (pt 1223) 421; Access Bank Plc vs Onwuliri (2021) 6 NWLR (pt 1773) 391. I cannot resist the temptation to quote from the decision of the apex Court in Comrade Alioke vs Dr Victor Oye (2018) LPELR LPELR-45153(SC) where the Court held:
“Our duty as an Apex Court is to do substantial, justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. See the case of OYEYEMI & ORS VS OWOEYE & ANOR (SUPREME COURT SUIT NO. SC.102/2013). See also MAKERI SMELTING CO. LTD VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 411 at 476-417.
The need to do substantial justice and avoid delving into the error of technicalities is well settled. Even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. See also AJAKAIYE VS IDEHIA (1994) 8 NWLR (Pt.364) 504, ARTRA IND. LTD VS NBC (1997) 1 NWLR (Pt.483) 574, DAKAT VS DASHE (1997) 12 NWLR (Pt.531) 46, BENSON VS NIGERIA AGIP CO. LTD (1982) 5 S.C. 1.”
​In doing justice, a Court should ensure that it is not parochial in looking at justice from the perspective of one of the parties alone, even from the perspective of the parties but also from the wider perspective of the Court and the society. Justice as a concept is therefore, wider than just between the parties as the parties live in a society and so a Court needs to consider how the decision of justice will affect the wider society. See BAKARI vs The State (2021) LPELR-55420 (CA); Afro Arab Investment Ltd vs AMCON (2018) LPELR-50194(CA).
PER TOBI, J.C.A.

There are two conflicting affidavits evidence before this Court. The law on how to deal with conflicting affidavits evidence is settled. No Court has a right to pick and choose which affidavit evidence to believe when there is conflicting evidence in the affidavit. The law commands that oral evidence be called to resolve same. See Arjay Ltd & Ors vs A.M.S. Ltd (2003)2.3.SC 1: Mabamije vs Hans Wolfgang Otto (2016) 1 SC (pt v) 1; Fort Knox Investment Ltd & Ors vs CitiBank (Nig) Plc (2021) LPELR-55761 (CA). However, a Court can dispense with the oral evidence if there is any documentary evidence that can sway the Court to believing one party to the other. The Supreme Court held this much in Eunice Onwubuya & Ors vs Emmanuel O. Ikegbunam (2019) LPELR-49373 (SC):
“…Oral evidence is callable and allowable only where the conflicts in the affidavit evidence are manifestly irreconcilable and incongruent. Where by the Court’s judgment and evaluation, the documentary and affidavit evidence can proffer solution and resolution in the conflict, oral evidence will have no place at all. This was of course the situation in the instant appeal.
What the appellants are seeking in this issue is not supported by the documents on record as there is no conflict to be resolved by oral evidence, since enough documentary evidence have proffered the solution in the disputing positions on either side. The need to call oral evidence arises only where the conflict in the affidavits are significant and material.
The need to call oral evidence is obviated where the conflict is narrow in which case the Court is in a position to overlook same. Calling for oral evidence to resolve conflict in affidavit evidence is not the first and only option out of the stalemate. See Per PETER-ODILI, JSC in UNION BANK OF NIGERIA V. AWMAR PROPERTIES LTD (2018) LPELR- 44376(SC).”
PER TOBI, J.C.A.

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgement): The journey in this Appeal between the parties started in 2010 as suit No: 56/2010 where the Area Court that is, the Ayaba Area Court divided the farmland in dispute in the ratio of 3:2 in favour of the Respondent. The Appellant here appealed to the Upper Area Court registered as Appeal No: CVA/29/2011. The Appellant/Applicant lost the appeal at the Upper Area Court. In legal language, the appeal was dismissed. The Appellant not relenting proceeded to another level of appeal which is the High Court, referred to as the lower Court in this Appeal. The Appeal to the High Court was registered as Appeal No: GM/12/23A/2012. The appeal was also dismissed. The Appellant/Applicant as a rugged fighter further filed this appeal registered as Appeal No: CA/G/66/2021. The record of appeal of this appeal was transmitted to this Court on 27/7/2021. The Appellant consequent upon the transmission of the record, filed his brief on 2/9/21. On the same day, the Appellant/Applicant through his Counsel filed this motion under consideration seeking in the main to adduce fresh/additional evidence to bring in the proceedings in suit No: CV/26/08. The Appellant is the Applicant in this motion. The motion is supported by a 16 paragraph affidavit to which is annexed two exhibits marked as J1 APPEAL 1 and J1 APPEAL 2 which are proceedings of the Billiri Area Court in Suit No: CV/26/08 which the Applicant in this motion believes will assist the Court in determining the appeal before it. The Respondent to the motion filed a 6 paragraph counter affidavit in opposition to the motion.

The Learned Counsel to the Appellant/Applicant is Benjamin Sati Esq while the Respondent is represented by A. Y. Galadima Esq. Both Counsel filed their written addresses on 29/1/22 and 15/2/22 respectively. They adopted their addresses on 15/2/22. Benjamin Sati Esq of Counsel for the Appellant/Applicant moving the application brought pursuant to Order 4, Rule 2 of the Court of Appeal Rules and Section 6 of the 1999 Constitution of the Federal Republic of Nigeria and relying on the cases of Unity Bank Plc vs BCC Nig Limited (2020) 16 NWLR (pt 1749) 132; CPC & Anor vs Ombugadu & Anor (2013) LPELR-21007(SC); Imale & Ors vs Agiri & Ors (1997) LPELR-5781(CA) and Hon. Muyiwa Inakoju & 17 Ors vs Adeleke & Rashidi Ladoja & Ors (2007) 29 NSCQR vol II p. 958 submitted that the Applicant has met the conditions to warrant granting of the application having stated the special circumstances that necessitated the application in the interest of justice. A.Y. Galadima Esq relying on the same cases Benjamin Sati Esq referred to submitted that the Applicant has not satisfied the conditions for the granting of this application and therefore the application should be dismissed.

I must state that both Counsel are ad idem on the principle that will make a Court grant an application of this nature. 

Order 4 Rule 2 of the Rules of this Court clearly states that additional evidence can be adduced in this Court by the leave of this Court. The Rule provides thus:
“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 above provision that has received a lot of judicial interpretation has clearly stated that in a case like this on appeal, when the trial is over, the Applicant needs to show special circumstances or grounds upon which the application is based and should be granted. The task is higher when the trial at the Court from which the appeal started is complicated. In my opinion, it is even much higher for the Applicant in this case since the proceeding sought to be tendered was done in 2008 before the case which is now on appeal was commenced in 2010. At the Court of first instance the Ayaba Area Court in 2010, the evidence sought to be adduced now was not adduced then. The matter went on appeal to the Upper Area Court in 2011 still the evidence was not adduced. The matter went on appeal to the High Court in 2012 once again the evidence was not adduced. At this stage, the same Counsel representing the Appellant in this appeal represented the Appellant at the High Court. The judgment was delivered on 27/1/21. The appeal to this Court was filed on 15/3/21. Record of appeal transmitted on 27/7/21 and Appellant brief filed on 2/9/21 same day the motion was filed. From the Court of first instance to this Court, the Appellant passed two stages of appeal before getting to this Court. The Appellant/Applicant lost the opportunity to adduce fresh/additional evidence all through those stages. A period of at least 11 years had expired between when the evidence became available, to when it is sought to be adduced. The point I am laboring to make here is that the longer it takes, the more difficult it becomes for the Applicant in an application of this sort. I am not saying that it is an impossible task I am only saying it is a difficult task. A task may be difficult but still surmountable. To surmount this difficult task, the affidavit evidence will have to go beyond casual averment. The Applicant must deliberately and intentionally make averment that can sway the Court to favour his application. When the affidavit evidence is bereft of facts, the Court cannot grant the application. See Muhammadu Buhari & Ors vs Chief Olusegun Aremu Obasanjo & Ors (2003) 11 SC 74; Jolabon Inv. (Nig) Ltd vs Oyus International Company (Nig) Ltd (2015) 18 NWLR (pt 1490) 30. I must not lose sight of the fact that, that provision and indeed the law recognizes that fact that fresh evidence can be adduced for the first time on appeal even in the Supreme Court. This is within the discretionary power of a Court. See Braithwaite vs M.S.A. Lines (1999) 13 NWLR (pt 636) 611. Like all discretionary powers of a Court, it cannot be exercised arbitrarily but rather must be exercised judicially and judiciously. See Ukachukwu v PDP and Ors (2014) 1-2 SC (pt 4) 4; General Aviation Services Ltd v Thahal (2004) 10 NWLR (pt 880) 50; Ibe v Ajise (2020) 10 NWLR (pt 1731) 1.
In exercising the discretion judicially and judiciously, this Court before which the application is presented must consider the legal principles or conditions that must be satisfied before an application of this sought can be granted. Order 4 Rule 6 of the Rules of this Court clearly states that the Applicant for an application of this sort must state special circumstances. The apex Court in a cloud of cases as stated in clear terms the condition that must be satisfied before the Applicant can be allowed to adduce fresh or additional evidence.

These conditions are what in my view will amount to special grounds for the application. These conditions are:
1. The evidence sought to be tendered could not have been obtained with reasonable diligence for use at the trial.
2. The evidence must be such that, if given, it would probably have an important influence on the outcome of the case.
3. The evidence must be such that is presumably believable, that is to say it is credible.
The above conditions in my view are mutually inclusive and not exclusive.
The following cases of the apex Court are very clear on this point. See Chief Amadi-Dike-Ogu & Ors vs Owhonda Frank Amadi & Ors (2019) LPELR-47847; Williams vs Adold Stamm International (Nig) Ltd (2017) 6 NWLR (pt 1560) 1; Nwaogu vs Atuma (2013) 10 NWLR (pt 1363) 591. For completeness, I also refer to the case of Sharing Cross Educational Services Ltd vs Umaru Adamu Enterprises Ltd (2020) LPELR-49567 (SC) where the apex Court held thus:
“In ASABORO v ARUWAJI (1974) 1 All NLR (pt 1) 140, this Court stated conditions/principles that must co-exist before a fresh evidence can be adduced on appeal. They are:
a) The evidence sought to be adduced must be such as would not have been, with reasonable diligence, obtained for use at the trial;
b) The evidence shall be such as if admitted it would have an important not necessarily crucial effect on the whole case;
c) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible;
d) The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the trial Court in favour of the applicant had it been available at the trial Court;
e) The evidence should be weighty and material as where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.
Interestingly, the above principles/special conditions were also codified under Order 2 Rule 12 of the Supreme Court Rules (as amended in 2009). The said rule sets out the necessary steps to be taken by a party who wishes the Court to receive additional or further evidence of witnesses, whether they were or were not called at the trial Court or how to order the production of any document, exhibit or thing connected with the proceedings.”
The law allows fresh and additional evidence on appeal so that justice is done in the matter after all that is what the Court exist to do. 

The main focus of every Court while deciding cases before it is to do justice and in doing so will ensure justice is done according to law and not sentiment which by extension involve doing substantial justice and not technical justice. See Nzekwe vs Anaekwenegbu (2019) 8 NWLR (pt 1674) 235; Akpan vs Bob (2010) 17 NWLR (pt 1223) 421; Access Bank Plc vs Onwuliri (2021) 6 NWLR (pt 1773) 391. I cannot resist the temptation to quote from the decision of the apex Court in Comrade Alioke vs Dr Victor Oye (2018) LPELR LPELR-45153(SC) where the Court held:
“Our duty as an Apex Court is to do substantial, justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice, but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context. We are not judicial technicians in the workshop of technical Justice. The jurisprudence or logic of our reasoning is and as humanly possible, would be devoid of technicalities. See the case of OYEYEMI & ORS VS OWOEYE & ANOR (SUPREME COURT SUIT NO. SC.102/2013). See also MAKERI SMELTING CO. LTD VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (Pt.766) 411 at 476-417.
The need to do substantial justice and avoid delving into the error of technicalities is well settled. Even in cases where errors of omission or commission called blunders have been made, it is unjust to hold that because blunders have been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. See also AJAKAIYE VS IDEHIA (1994) 8 NWLR (Pt.364) 504, ARTRA IND. LTD VS NBC (1997) 1 NWLR (Pt.483) 574, DAKAT VS DASHE (1997) 12 NWLR (Pt.531) 46, BENSON VS NIGERIA AGIP CO. LTD (1982) 5 S.C. 1.”
​In doing justice, a Court should ensure that it is not parochial in looking at justice from the perspective of one of the parties alone, even from the perspective of the parties but also from the wider perspective of the Court and the society. Justice as a concept is therefore, wider than just between the parties as the parties live in a society and so a Court needs to consider how the decision of justice will affect the wider society. See BAKARI vs The State (2021) LPELR-55420 (CA); Afro Arab Investment Ltd vs AMCON (2018) LPELR-50194(CA).

Having established the trite legal position, it is now time to look at the affidavit in support in finding out whether the Applicant has satisfied the conditions stated above to enable this Court grant the application. Taking a look at the affidavit evidence of the Applicant particularly paragraphs 10, 11 and 14, it would appear that the special grounds the Appellant/Applicant is referring to are firstly that the Applicant is an illiterate and as a result did not know the importance of the document sought to be adduced as fresh and additional evidence. The second reason is that the Appellant/Applicant never knew of it until the matter came on appeal. I wish to reproduce the said paragraphs:
10. That the litigant appellant was an illiterate and a layman as to know that such documents can be relied upon from the appeal as the Upper Area Court to the lower Court.
11. That after we were briefed we saw the necessity of bringing in evidence the record in that such as it has the capacity of resolving the real issue in controversy which is, whether Asaph was an heir or he was holding in trust and he fought in litigations to protect the res.
14. That admitting the above exhibits will affect the decision of appellate High Court one way or the other and it shall best serve the interest of justice.

The Respondent in the counter affidavit in paragraphs 3 (d)(e), 4 (a)(b) had averred that the Appellant/Applicant was represented by counsel in the Lower Court and that the suit on appeal was filed after the judgment of the proceedings sought to be adduced as fresh and additional evidence was delivered. Learned counsel to the Respondent in the light of that submitted that the argument that the Appellant/Applicant is an illiterate and that he came to hear of it when the matter was on appeal cannot stand. I reproduce the above paragraphs of the counter affidavit for ease of reference.
3(d) That contrary to paragraph 6 of the applicant’s supporting affidavit, judgment in Suit No: CV/26/08 was delivered on 12/06/2010 while the present action was filed before Ayaba Area Court, 8th day of November, 2010, a period of well almost 4 months after the conclusion of the trial in Suit No: CV/26/08.
(e) That the Appellant was represented by Counsel right from the Upper Area Court Boh and at the High Court of Justice Gombe State but did not deem it necessary to adduced fresh evidence in the form of the document now sought to be produced even though the appellant was in possession of the document when the matter was at the High Court level.
4(a) That contrary to paragraphs 10 and 11 of the affidavit in support of the application, the Appellant/Applicant was represented by a Counsel right from the Upper Area Court Boh and at the High Court of Justice Gombe State.
(b) That the Applicant’s appeal at the High Court of Justice Gombe State was handed by the present Applicant’s Counsel.

There are two conflicting affidavits evidence before this Court. The law on how to deal with conflicting affidavits evidence is settled. No Court has a right to pick and choose which affidavit evidence to believe when there is conflicting evidence in the affidavit. The law commands that oral evidence be called to resolve same. See Arjay Ltd & Ors vs A.M.S. Ltd (2003)2.3.SC 1: Mabamije vs Hans Wolfgang Otto (2016) 1 SC (pt v) 1; Fort Knox Investment Ltd & Ors vs CitiBank (Nig) Plc (2021) LPELR-55761 (CA). However, a Court can dispense with the oral evidence if there is any documentary evidence that can sway the Court to believing one party to the other. The Supreme Court held this much in Eunice Onwubuya & Ors vs Emmanuel O. Ikegbunam (2019) LPELR-49373 (SC):
“…Oral evidence is callable and allowable only where the conflicts in the affidavit evidence are manifestly irreconcilable and incongruent. Where by the Court’s judgment and evaluation, the documentary and affidavit evidence can proffer solution and resolution in the conflict, oral evidence will have no place at all. This was of course the situation in the instant appeal.
What the appellants are seeking in this issue is not supported by the documents on record as there is no conflict to be resolved by oral evidence, since enough documentary evidence have proffered the solution in the disputing positions on either side. The need to call oral evidence arises only where the conflict in the affidavits are significant and material.
The need to call oral evidence is obviated where the conflict is narrow in which case the Court is in a position to overlook same. Calling for oral evidence to resolve conflict in affidavit evidence is not the first and only option out of the stalemate. See Per PETER-ODILI, JSC in UNION BANK OF NIGERIA V. AWMAR PROPERTIES LTD (2018) LPELR- 44376(SC).”

There is no greater evidence to believe than the admission of any of the parties. The Appellant/Applicant had admitted that his Counsel in the Lower Court who prosecuted the appeal for him is the same counsel on record prosecuting this appeal, that is Benjamin Sati Esq. This is the clear averment of the Appellant/Applicant in paragraph 4 of the affidavit in support. I reproduce the said paragraph.
“That I know as of fact that our office was briefed to prosecute this appeal from the High Court level sometimes in 2019 and we have done so at the High Court level hence the appeal to this Court.”

In my opinion, I do not think the subject of the illiteracy of the Appellant/Applicant is a special ground. Assuming I am wrong, the fact that he was represented by Counsel makes that submission of his illiteracy of no relevance. The Learned Counsel on record for the Appellant/Applicant became his Counsel in 2012, this appeal was filed in 2021, and Learned Counsel did not see the need since 2012 to adduce that evidence until now. There is no explanation for this delay. The illiteracy life line cannot save the Appellant/Applicant. Similarly, the second lifeline that he came to know of the proceeding of 2008 when the matter came on appeal will also not fly as that case had been decided before the suit leading to this appeal was filed. The point I am making here is that the document sought to be brought as fresh or additional evidence was in existence at the time of the trial which due diligence should have brought out.

From the line of cases on the condition for the adducing of fresh evidence in the Appellate Court, the first condition is that either the evidence does not exist as at when the case was filed or that there was no way by reasonable diligence the Applicant could have discovered or obtained the document. This condition gives an impression of what fresh evidence is. Fresh evidence has been defined as having the quality of newness or has the feature of having become newly available and obtained. See Chief Philip Anatogu & Ors vs H.R.H. Igwe Iweka II & Ors (1995) 8 NWLR (pt 415) 547. 

From the affidavit in support, it is clear that the document for which leave is sought to adduce as fresh evidence is not really fresh within the definition of newness or newly obtained. The document was in existence as at 2010 when the case leading to this appeal was filed. It was in existence when the case went on appeal in 2011 to the Upper Area Court. The Appellant did not know of it because he is an illiterate. Then the matter went to the High Court in 2012. He was represented by Counsel who is definitely not an illiterate but a learned gentle man who knows the implication or the importance of the document. Learned Counsel did nothing about it. There is no evidence that the document just came to the knowledge of the Appellant/Applicant or his Counsel in 2021. The deponent of the affidavit in support from the office of the Appellant’s Counsel in paragraph 11 averred that they saw the necessity of the document after they were briefed. There is evidence in a paragraph of the affidavit in support that they were briefed to handle the appeal in High Court case. The Appellant/Applicant has failed to satisfy the first condition to secure the application for additional evidence.

The second and third conditions require the Court looking at the document to determine whether the document will have an important influence or effect on the outcome of the appeal and whether the evidence is credible. There is no way a Court can make an informed decision on a document without seeing the document. A Court cannot presume the content of a document. The law allows me to presume that the document is regular, but I cannot presume and indeed no Court can presume the content of a document. I have looked at Exhibit J1 APPEAL 1 which is the star document. I have a problem with the document. The Respondent’s Counsel in paragraph 4 (d) of the counter affidavit produced above expressed my concern on Exhibit J1 Appeal 1. The said exhibit from which Exhibit J1 Appeal 2 was translated is not eligible at all. The purpose of presenting a document to Court will be defeated if the document is not legible enough for the Court to read and understand. In fact, as earlier stated, I can only make an informed opinion on whether the evidence sought to be adduced as fresh and additional evidence is credible and would have an important effect on the case after I must have read same. I cannot read Exhibit J1 Appeal 1 from which the legible Exhibit J1 Appeal 2 was translated. It is not that I do not want to read it but I cannot read it as it is not legible. Since Exhibit J1 Appeal 1 is the foundation document, Exhibit J1 Appeal 2 cannot stand without it. The law is that no one can place something on nothing and expect it to stand. See U.A.C vs Macfoy (1961) 3 ALL ER 1169 AT 1172; Olaniyi v Elero (2007) 8 NWLR (pt 1037) 57; Emeshie v Abiosa (1991) 2 NWLR (pt 172) 192; C.C.B. PLC v Ekperi (2007) 3 NWLR (pt 1022) 403; Emeka v Okoroafor (2017) 11 NWLR (pt 1577) 410.

The justice of this application does not warrant the granting of this application. While this Court has the powers to grant the application, the Appellant/Applicant has not satisfied the conditions for granting same. This application therefore fails and it is dismissed. N50,000 cost is awarded in favour of the Respondent.

JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the lead Ruling of my learned brother, Ebiowei Tobi, J.C.A. I agree with his reasoning and conclusion. I will add a few words.

I have given consideration to the application brought by the Applicant herein seeking to adduce fresh evidence on appeal. This application is clearly governed by Order 4 Rule 2 of the Court of Appeal Rules, 2021. Therein, it is unmistakable that only fresh evidence of matters that occurred after the date of trial or hearing shall be admitted on appeal, except on special grounds. Such special grounds are as enunciated in several decided cases, such as Sharing Cross Educational Services Ltd V Umaru Adamu Enterprises Ltd (2020) LPELR-49567(SC).
Therefore, the three conditions to be met by an applicant in an application of this nature, are:
1. That the fresh evidence sought to be adduced on appeal did not exist at the time the case was filed, or that even if it did, the applicant could not have discovered or obtained the document by reasonable diligence;
2. That the Applicant establishes to the Court that the fresh evidence, when examined, will have an important influence on the outcome of the appeal; and
3. That the fresh evidence sought to be produced is credible.

Upon scrutinizing the affidavit evidence of the Applicant, in particular paragraphs 10, 11 and 14 thereof, I am of the considered view that the reasons advanced in an attempt to fulfill the conditions precedent to the grant of the application fall flat on their faces. The contention that the Applicant is an illiterate does not hold water because, after the trial at the Area Court Ayaba, he was ably represented by Counsel in subsequent appeals to the Upper Area Court and then to the High Court, before the appeal arrived at this Court. Indeed, the affidavit discloses that Counsel representing the Appellant in this Court was also Counsel who represented him before the lower Court. Yet, no such application was brought before the lower Court.

​What is more grievous is that the fresh evidence sought to be adduced, being the Record of proceedings of another Area Court, came into existence four (4) months before the proceedings at the Area Court Ayaba which gave rise to the series of appeals culminating now in this Court. Thus, the evidence was always available, and being a matter of public record could, with reasonable diligence, have been unearthed, obtained and presented before the three previous Courts, to wit: the trial Court which heard the case at first instance, and the subsequent appeals before the lower Court and the Court below, before this Court.

Secondly, I align myself with the observations of my learned brother that the fresh evidence sought to be adduced, “Exhibit J1 Appeal 1” attached to the applicant’s affidavit, is not legible. Thus, it is not possible for this Court to say one way or another that it will have an important influence on the appeal or that the fresh evidence is credible. The Applicant has therefore shot himself in the foot by being slothful.

The conclusion is that the Applicant has failed to meet the conditions for the grant of this application. The discretion of this Court cannot therefore be exercised in his favour. In the result, the application is refused and dismissed. I abide by the Order on cost.

IBRAHIM SHATA BDLIYA, J.C.A.: I had read in draft the judgment delivered by my learned brother, EBIOWEI TOBI, JCA. I am on all fours with him that the issue for determination in this appeal be resolved against the appellant for want of sufficient material (conditions) for the granting of the application. I abide by the order made on costs.

Appearances:

Benjamin Sati, Esq., with him, B. A. Jatau, Esq. For Appellant(s)

A. Y. Galadima, Esq. For Respondent(s)