ILORIN SOUTH LOCAL GOVERNMENT AREA V. MICHEAL SUNDAY AFOLABI
In The Court of Appeal of Nigeria
On Monday, the 9th day of December, 2002
MURITALA AREMU OKUNOLA Justice of The Court of Appeal of Nigeria
WALTER SAMUEL NKANU ONNOGHEN Justice of The Court of Appeal of Nigeria
JAAFARU MIKAILU Justice of The Court of Appeal of Nigeria
ILORIN SOUTH LOCAL GOVERNMENT AREA Appellant(s)
MICHEAL SUNDAY AFOLABI Respondent(s)
JA’ AFARU MIKA’ILU, J.C.A. (Delivering the Lead Ruling): In this application the applicant prays this court for the following reliefs:
(1) AN ORDER of the Honourable Court extending time for the respondent/applicant to file brief of argument in this case.
(2) AN ORDER of the Honourable Court deeming the respondent’s brief of argument already filed at the court’s registry, the correct filing fees having been paid, as properly filed and served.
(3) AN ORDER admitting exhibits ‘A’ – ‘C’ herein attached to the affidavit, as additional evidence for the
determination of the appeal.
(4) AND for, such further order or order(s) as this Honourable Court may deem fit to make in the circumstances.
In this motion, the learned counsel for the respondent, T. O. S. Gbadeyan, Esq., is not objecting to the grant of prayers (1) and (2).
He is objecting to the grant of prayer (3).
The background of this matter is that a suit No. KWS/113/2000, Michael Sunday Afolabi v. Ilorin East Local Government and 1 Or. was tried under the undefended list procedure by the High Court of Justice of Kwara State, holden at Ilorin, presided over by Hon. Justice F. A. Ojo, Judge.
In that case the plaintiff Michael Sunday Afolabi, now the applicant in this motion, instituted the case against Ilorin East Local Government, Oke-Oyi and Ilorin South Local Government Fufu, claiming a sum of N370,410 (Three Hundred and Seventy Thousand, Four Hundred and Ten Naira only) being outstanding sum of money payable to him by the defendants which they have refused to pay despite various demands and entreaties on them for the said sum.
When the matter came up for hearing, only the 2nd defendant Ilorin South Local Government Area, Fufu, filed its notice of intension to defend with its supporting affidavit. The matter was heard under the undefended list and the judgment was entered in favour of Michael S. Afolabi, the plaintiff, the applicant in this motion. The respondent who was defendant dissatisfied with the decision of the trial court filed an appeal before this court.
The main purpose of prayer (3) is for an order of this court admitting exhibits ‘A’ – ‘C’ attached to the affidavit in support of the motion. The said exhibits are as follows:
A. A local purchase order with which the servicing of tractor and repairs of Steyr 8075 model vehicle tractor registration No.6 KWLG 32 for the sum of N226,4 10.00 on 24/5/94.
B. The store receipt voucher with which the Ilorin East Local Government collected four (4) tyres totaling N194,000.00 on 20/1/96 and
C. The payment voucher made by Ilorin East Local Government on 27/1/96 for the sum of N194,000.00
but the payment was not effected.
The above exhibits have been enlisted under paragraphs 8 to 9 of the affidavit in support of the application.
The learned counsel for the applicant has formulated the issue for determination in this application as follows:
Whether this Honourable Court can, and should admit the attached exhibits A-C to the application as additional evidence for the determination of the appeal?.
The issue formulated by the learned counsel for the respondent, Wahab Egbewole, Esq. is the same as the one above formulated by the learned counsel for the applicant, T. O. S. Gbadeyan, Esq.
The learned counsel for the applicant has indicated that the ground for the application is that the Court of Appeal, instead of sending a case down to the trial court with a direction that it should take further evidence, may itself take such evidence when:
(a) the admission of such additional evidence will have important effect on the whole case.
(b) such evidence is credible and could influence the judgment in favour of the applicant.
The learned counsel relies upon:
Owata v. Anyigor (1993) 2 NWLR (Pt. 276) 380; Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364; Gani Fawehinmi v. The State (1990) 5 NWLR (Pt. 148) 42.
The learned counsel for the applicant submits that this court can make, or grant, the 3rd prayer sought for under its inherent power as ably preserved and protected under Section 6(6)(a) of the 1979 Constitution and Section 16 of the Court of Appeal Act, 1990.
He has however, added that the only remaining issue in contention is whether or not this court shall be inclined to make, or grant, the prayer as requested.
The learned counsel for the applicant on ground (a), i.e. whether the admission of such additional evidence will have important effect on the whole case, has submitted that the admission of the documents tends to have the effect of clarifying alleged doubts, (if any), in the case of the respondent at the lower court. He has referred this court to paragraphs in the brief of argument of the appellant to show the doubts the appellant is trying to create. They read as follows:
“On page 3 paragraphs 4.0. (ii)
(ii) that the service agreement post dates the repairs said to be carried out by two years; it may well be an arranged document. A careful perusal of exhibit ‘A’ cannot justify a contract of service earlier than the point when the alleged service was carried out. The wording of exhibit ‘A’ envisages a future act.
Submit that the said exhibit breached fundamental basic principle of offer, acceptance and consideration of law of contract. Submit further with respect that having there been no prior offer or acceptance or anything to so indicate the existence of such, no claim can be based on same. Equally, paragraph 2 of the said exhibits ‘A’ indicates that the agreement is futuristic and cannot be used for a contract allegedly performed 2 years earlier.
(iii) that the respondent did not actually repair the steyr as indicated in exhibit 2 on page 20 of the record.
(iv) that the appellant herein is not in anyway indebted to the respondent.
(v) the respondent claimed to have supplied tyres whereas, there is nothing by way.
(vi) evidence that these tyres were ever supplied nor collected by the appellant.”
Also under paragraph 2.0 on page 2:
“The plaintiff who is the respondent herein claimed he repaired a steyr tractor for Ilorin East Local Government sometimes in 1994 vide a plant service contract agreement dated 5th January, 1996.”
With the above the learned counsel for the applicant has further submitted that the search for justice under the Nigerian Legal System is not predicated on something akin to ‘hide and seek’ game where the intention of the participants is to undercut and outsmart each other; but rather, premised on rules; and the watchword is transparency. The rules, the learned counsel has added, prescribe that all cards must not only be on the table, but must be faced up so as to rule out element of surprise. This is what the applicant intends to do by the 3rd prayer in his application.
He has finally submitted that such evidence in exhibits ‘A’ to ‘C’ is credible and could further influence the judgment of this court in favour of the applicant. This being because exhibits’ A’- ‘C’ shows clearly why the 1st defendant at the lower court did not defend the case. Also, the exhibits further clarify what ordinarily seems as a ‘wilderness’ to the appellant as far as this matter on appeal is concerned.
He prays the court to grant this application for the following reasons:
(1) The documents sought to be used as additional are credible.
(2) The admission of such additional evidence will have important effect on the whole case.
(3) Such evidence could further influence the judgment of this court in favour of the applicant.
The learned counsel for the respondent has drawn the attention of this court to the fact that this case was decided under the provisions of Order 23 of the High Court (Civil Procedure) Rules i.e. undefended list provisions. He has added that the emergence of exhibits ‘A’ – ‘C’ supports the contention of the appellant that this matter will be better decided if parties are allowed to go the whole hog of trial under the general cause list.
But let that be, the learned counsel has submitted that the applicant has woefully failed to inform this court the circumstances of his inability to produce before the trial court documents purportedly made in 1994 and 1996 at the time the matter was filed in 2000 until judgment was delivered in May, 2001. He has added that this omission is fatal because for this court to act on this additional evidence, it must be shown that special circumstances exist that would warrant such intervention. He has further averred that Order 1 rule 20(3) of the Court of Appeal Rules limits taking such further or additional evidence which occurred after the date of trial or hearing. That this is not the situation in this case. The learned counsel opines that the failure of the applicant/respondent to advance reason(s) for this fundamental omission is fatal especially that before this case commenced, the documents marked exhibits ‘A’-‘C’ had been in existence. He relies upon the following cases:
(a) Comptoir Commercial & Ind. S.P.R. Ltd. v. Ogun State Water Corporation (2002) 9 NWLR (Pt.773) 629, (2002) 4 SCNJ 342, 353
(b) Iweka v. SCOA (2002) 7 NWLR (Pt.664) 325, (2003) SCNJ 71, 83.
The learned counsel for the respondent has added that the applicant has not fulfilled the conditions laid down in Iweka v. SCOA (supra) and he must therefore fail.
Furthermore, he has submitted that the contention that the evidence being sought to be adduced is credible fails flat in the face of the documents as it affects the totality of this case. His reasons for this can be summarized as follows:
1. Exhibit ‘A’ was made in favour of SOMALAC TRACTOR COMPANY, a person unknown to this case.
2. The document was made in respect of steyr with registration No.6 KWLG 32 while the applicant dared to have supplied to a tractor with registration No.6 KWLG 12.
3. Exhibit ‘B’ is purportedly issued by EAST LOCAL GOVERNMENT while there is no Local Government with such name it was issued on a public holiday, Saturday.
4. Exhibit ‘c’ is also prepared on Saturday 27th January, 1996 and signed by the HOD on Sunday 28th January, 1996.
Finally, the learned counsel prays this court not to admit the documents marked exhibits ‘A’ – ‘C’ as additional evidence for the following reasons:
(i) the reason for the failure of the applicant to bring them before the trial court were not stated.
(ii) the documents have been in existence about 6 years before the case was instituted.
(iii) the documents lack apparent credibility that they need be believed.
(iv) and that the documents are ordinarily discoverable during the trial.
The averments which have been advanced by the learned counsel for the respondent are so weighty that they cannot in any way be ignored on issue of taking additional or further evidence in determining the appeal. The learned counsel for the applicant who has spared his time to preach that the search for justice under our legal system is not predicated on something akin to ‘hide and seek’ game where the intention of participants is to undercut and outsmart each other, that it is premised on rules and the watchword is ‘transparency.’
That all cards must not only be placed on the table but must be placed face up to rule out element of surprise. He has done all these in this matter. He has not only refused to place cards face up but he has also refused to place all cards down. On necessary conditions to be satisfied by an applicant in an application for additional or further evidence for determination of appeal he has brought only two cards instead of three. In the case of Anyigor & Ors. v. Owata & Ors. (1993) 2 NWLR (Pt. 276) 380, (1993) 10 LRCN at page 17, Kutigi, JSC, enlisted the necessary conditions as follows:
(i) It must be shown that the evidence sought to be adduced could not have been obtained with reasonable deligence for use at the trial.
(ii) The fresh evidence to be adduced must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive.
(iii) And the evidence must be such as is presumably to be believed or in other words must be apparently credible although it need not be incontrovertible.
His Lordship therein has clearly stated that the above three conditions must all be satisfied together and at the same time. By Order 1, rule 20(3) of the Court of Appeal Rules cited by the learned counsel for respondent, the Court of Appeal is empowered to take additional or further evidence in determining appeal but not without conditions. If the additional evidence is as to matters which have occurred after the date of trial or hearing of a suit in the court below, then, leave will ordinarily be granted. However, where the evidence is of fact or facts, or documents known by the applicant, or in existence, at the time of trial and the applicant could, or ought, to have them called in evidence, then applicant has to establish or show special circumstances warranting the grant of the application. He has to advance cogent reason(s) justifying his inability to introduce such evidence at the time of the trial.
In our case, the applicant is seeking to tender documents which were in existence in 1994 and 1996 when the decision on appeal was determined in 8th May, 2001.
On the affidavit in support of his application, he has only enlisted them without advancing any reason for his failure to tender them at the trial. Section 6(6)(a) of the 1999 Constitution and Section 16 of the Court of Appeal Act relied upon by the learned counsel for the applicant do not permit an applicant to come without a cogent reason to get the discretion of court exercised in his favour. The applicant has not shown that the evidence to be adduced could not have been obtained with reasonable deligence for use at the trial. I am in agreement with the learned counsel in his submission as follows:
(i) The reasons for the failure of the applicant to bring exhibits ‘A’ – ‘C’ before the trial court have not been stated by the applicant while the documents were in existence long before the case was instituted and they were ordinarily discoverable during the trial.
(ii) And the documents on their face lack apparent credibility.
Finally, the applicant woefully failed to satisfy the conditions necessary to warrant the court to grant his application on prayer (3) of the motion. His application therein prayer (3) is hereby dismissed.
However, for prayers (1) and (2) the grant of which have not been objected to by the learned counsel for the respondent are hereby granted. The following reliefs have therefore been granted:
(1) AN ORDER of this court extending time for the respondent/applicant to file respondent’s brief of argument in this case, and
(2) AN ORDER of this court deeming the respondent’s brief of argument already filed at the courts registry as properly filed and served.
Application in respect of prayers (1) and (2) granted. Prayer (3) is refused. No costs have been ordered.
MURITALA AREMU OKUNOLA, J.C.A.: I read before now a copy of the lead ruling just delivered by my learned brother Mikailu, J.C.A. I agree with the reasoning and conclusion reached therein. I would also grant prayers 1-2 of the application not being opposed by the respondent.
I also agree with the conclusion of my learned brother in the lead ruling that the 3rd prayer lacks merit and that same should be dismissed. I too dismiss the 3rd prayer in the application.
I abide by the consequential orders made in the lead ruling.
WALTER SAMUEL NKANU ONNOGHEN, J.C.A.: I have had the advantage of reading in draft the lead ruling of my learned brother Mikailu, J.C.A., just delivered. I agree with his reasoning and conclusion that prayers Nos. 1 and 2 not being opposed be and are hereby granted while the third prayer for leave to call additional evidence on appeal be and is hereby refused.
Order 1 rule 20(3) of Court of Appeal Rules applicable in year 2001 when the appeal was brought but now Order 1 rule 19(2) of the Court of Appeal Rules 2002, provides thus:
“(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.”
It is trite law that a judgment entered under the undefended list procedure, as in the present case is a judgment on the merits and therefore falls within the provisions of Order 1 rules 19(2) supra.
From the facts revealed in the documents sought to be admitted as further or additional evidence on appeal, it is clear that they had been in existence since 1994 and 1996 whereas the writ of summons in the matter was issued on 9/11/2000 – see page 1 of the record.
That apart, going through the affidavit in support of the application particularly the prayer in issue there are no facts which can be said to constitute special grounds upon which this court can be urged to exercise its discretion in favour of the applicant. It must not be forgotten that the applicant is calling on this court to exercise its discretion in his favour and it is trite law that the discretion of the court must not only be exercised judicially but judiciously.
In conclusion, I too grant the application in part in terms stated earlier in this ruling.
Application granted in part.
Wahab Egbewole Esq.For Appellant
- O. S. Gbadeyan, Esq.For Respondent