JOHN NWAGHODO & ORS v. STELLA NWAGHODO (2017)

JOHN NWAGHODO & ORS v. STELLA NWAGHODO

(2017)LCN/10178(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 5th day of July, 2017

CA/B/418/2010(R)

RATIO

EVIDENCE: WHETHER FURTHER EVIDENCE CAN BE ADMITTED ON APPEAL

Order 4 Rule 2 of the Court of Appeal Rules 2016 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 ground.”

It is therefore trite that an appellate Court can permit either party to an appeal to adduce further evidence which was not available during the trial and which got to the knowledge of the party after delivery of Judgment in the lower Court. PER JIMI OLUKAYODE BADA, J.C.A

EVIDENCE ON APPEAL: THE PRINCIPLES GUIDING THE COURT IN IT DISCRETIONARY EXERCISE OF PERMITTING FURTHER EVIDENCE ON APPEAL

In LATEEF ADEGBITE & 1 OR VS. AMINU AMOSU (2016) 15 NWLR Part 1536 Page 405 at 422, the Supreme Court held among others as follows:-

“That there must exist special grounds. In ASABORO VS. ARUWAJI (1974) 1 ALL NLR Page 1 At 140; such special grounds were stated as follows:-

(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 lower Court (trial Court) in favour of the Applicant had it been available at the trial Court.

(e) The evidence should be weighty and material where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.”

See AMAECHI VS. INEC (2008) 5 NWLR Part 1080 Page 227. See also ASABORO VS. ARUWAJI (Supra); – UKARINWO OBASI & ANOR VS. EKE ONWUKA & 5 ORS (1987) 3 NWLR Part 61 Page 364 At 370; – ATTORNEY GENERAL OF THE FEDERATION VS. MALLAM MODU ALKALI (1972) 12 SC Page 29. – OWATA VS. ANYIGOR (1993) 2 SCNJ Page 1 at Page 12 – 13, (1993) 2 NWLR Part 276 Page 380. – UBA VS. B.T.L. IND. LTD. (2005) 4 SC Page 40, (2005) 10 NWLR Part 933 Page 356. PER JIMI OLUKAYODE BADA, J.C.A

EVIDENCE ON APPEAL: THE DUTY OF A PARTY SEEKING TO RAISE FRESH POINT OR ADDUCE FRESH EVIDENCE ON APPEAL

In KWAJAFA & ORS VS. BANK OF THE NORTH LTD (2004) 6 SCM Page 1 at 12 – 13, (2004) LPELR – 1727 (SC), one of the conditions laid down by the Supreme Court is that a party seeking to raise fresh point or adduce fresh evidence on appeal must show that no further evidence is required to resolve the issue for determination. The only way to move forward here is to call for evidence in this application. PER JIMI OLUKAYODE BADA, J.C.A.

JUSTICES

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria

MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria

Between

1. JOHN NWAGHODO
2. OKEBUNOR ANIEMEKE NWAGHODO
3. AUGUSTINE DUNKWU
4. SUNDAY OKWUONE Appellant(s)

AND

STELLA NWAGHODO Respondent(s)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Lead Ruling): This is an application dated 18/10/2016 and filed on 19/10/2016 in which the Appellants/Applicants prayed for the following orders:-
(1) ?An Order granting leave to Appellants/Applicants to adduce further evidence of non-compliance with Section 36(3) of the 1999 Constitution of the Federal Republic of Nigeria and Order 35 Rule 1 of the Delta State High Court (Civil Procedure) Rules 2009 by the trial Judge in delivering her judgment on 12/8/2010 in suit No ? HCI/M/15/2006 in her chambers rather than in open Court.
(2) An Order granting leave to the Appellants/Applicants erstwhile counsel Mr. E.E. Ogwezzy Esq. through the 1st Appellant to adduce further/Fresh evidence he deposed to before the Commissioner of Oaths of this Honourable Court dated 11/11/2013 attached herewith as Exhibit ?B?.
(3) An Order granting leave to the Appellants to use as further evidence in this appeal the affidavits of the Appellants? erstwhile Counsel E.E. Ogwezzy Esq. at the trial Court and affidavit in response thereto by O.W. Osiezagha, Assistant Chief Registrar (ACR)

Ogwashi-Uku Magistrate Court, Ogwashi-Uku Delta State filed separately and attached herewith as Exhibits ?A? and ?B?. ……?
The ground upon which the relief is sought is:
?The further evidence to be adduced occurred on 12/8/2010 in his Lordship?s Chambers, Hon Justice I.E. Okogwu of High Court Issele-Uku, Delta State where she delivered the Judgment now appealed from by the Appellants. The further evidence to be adduced by the Appellants and the affidavit of their erstwhile Counsel E.E. Ogwezzy did not appear in the Record of Appeal transmitted to this Honourable Court by the Trial Court Registry. The Registrar of the Court at the time was evasive hence Appellants resorted to their erstwhile lawyer who deposed to the fact that indeed the Judge delivered her Judgment in camera.?

The application is supported by an affidavit of 15 paragraphs, pertinent paragraphs of which are paragraphs 1 to 15.

It is reproduced as follows:-
1. That I am the 1st Appellant/Applicant in this Appeal and by virtue of my position, I am very conversant with the facts of this Appeal.
2. That I have the consent and authority of the 2nd ? 4th appellants to depose to this further/fresh affidavit on their behalf and for myself.
3. That E.E. Ogwezzy Esq. was our Counsel at the trial Court
4. That Counsel addressed Court on 29/4/2010 and judgment was reserved to 23/6/2010
5. That on 23/6/2010, the trial Court did not sit hence the case was further adjourned to 28/7/2010 for judgment.
6. That on 28/7/2010, the judgment was not delivered. The Court further adjourned our case to 12/8/2010 for judgment.
7. That on 12/8/2010, we (Appellants and Respondent) were all seated in the open Court room (trial Court) apparently waiting for the Judge to sit in open Court to deliver judgment in the case.
8. That surprisingly, for no reasons advanced to either party, His Lordship (Learned Trial Judge) called the Counsel to both parties, E.E. Ogwezzy, Esq. (our Counsel) and J. Egwu Esq. for the Respondent herein to her Chambers and delivered her

judgment there granting all the prayers of the Respondent herein and the Plaintiff in the Court below.
9. That we were neither invited nor were we allowed ingress to His Lordship?s Chambers where the judgment was delivered.
10. That we only came to know that judgment had been delivered when our Counsel returned from His Lordship?s Chambers and called us out from the Court room to tell us that His Lordship had delivered her judgment in Chambers granting all the reliefs sought by the Respondent herein.
11. That a copy of the affidavit dated 27/11/2013 and deposed to by O.W. Oseizagha, who during the pendency of the trial was the Registrar of Issele-Uku High Court, Delta State is attached hereto as Exhibit ?A?.
12. That a copy of the affidavit deposed to by E.E. Ogwezzy, Esq. of E.E. Ogwezzy & Co. our solicitors in the trial Court of No. 29. Umusan Road, Kwale, Delta State, is attached hereto as Exhibit ?B?.
13. That the further evidence we seek to adduce in this appeal are encapsulated in the said Exhibits ?A? and ?B? attached hereto.
14. That the fact that the trial

Judge delivered her judgment in her Chambers and not in open Court as stipulated under the Constitution was unknown to us until the Records of proceedings were transmitted to, and entered in the Court of Appeal. And even so, we could not effectively apply to adduce that evidence at the Court of Appeal until we provided actual evidence that the judgment was indeed delivered in her chambers, which we have now done through Exhibits ?A? and ?B?.
15. That it is in the interest of Justice that this application is granted.
EXHIBIT ?A?
1. That I was the Registrar of Issele-Uku High Court, Delta State, from 2010 to October, 2013 before being transferred to my present station, Ogwashi-Uku Magistrate Court, Ogwashi-Uku, Delta State as Assistant Chief Registrar (ACR).
2. That while I was at Issele-Uku High Court, Delta State, as the Registrar, I compiled and transmitted the Record of Proceedings in Suit No. HCI/M15/2006 which the Appellants now appeal from in Appeal No. CA/B/418/2010 to this Honourable Court in my official capacity as the Registrar, Issele-Uku High Court.
3. That a copy of the

Appellants? motion dated 7th November, 2013 and the affidavit attached thereto and the Further and Better Affidavit and Appellants? Further/Fresh Affidavit Evidence were served on me.
4. That I have read through the said processes served on me.
5. That I am not in a position to confirm the facts contained in paragraphs 6 ? 11 of the Appellants? supporting affidavit and 6 ? 10 of their better and further affidavit.
6. That the facts contained in the aforesaid paragraphs are within the knowledge of the parties and their Counsel.
7. That my office is separate and distinct from the open Court and His Lordship?s Chambers. Hence I do not seat in the open Court neither His Lordship?s Chambers.
8. That the proceedings as to whether parties were present in Court on 12/8/2010 and where the judgment in Suit No. HCI/M15/2006 was delivered was not in the record book/proceeding of Issele-Uku High Court of 12/8/2010 hence is not contained in the record I transmitted to this Honourable Court in respect of this case.
9. That the parties present and where the judgment was delivered was nowhere in

Court?s proceedings of 12/8/2010.
10. That I only compiled and transmitted what is contained in the Record Book of the Issele-Uku High Court in respect of Suit No. HCI/M15/2006 to this Honourable Court.
11. That I was not present whether in the open Court or His Lordship?s Chambers where the judgment in Suit No. HCI/M15/2006 was delivered on 12/8/2010.
EXHIBIT ?B?
1. That I was the Counsel to the Respondents at the trial Court, Issele-Uku High Court, Delta State, now Appellants herein and by virtue of my position, I am very conversant with the facts of this suit.
2. That the facts deposed to herein are within my personal knowledge.
3. That hearing in this suit at the trial Court closed on 29/4/2010 being the day Counsel addressed Court and judgment was reserved to 23/6/2010.
4. That on 23/6/2010, the trial Court did not sit hence the case was adjourned to 28/7/2010 for judgment.
5. That on 28/7/2010 though the Court sat, but judgment was not delivered. Case was further adjourned to 12/8/2010 for judgment.
6. That on the day, 12/08/2010 fixed for judgment, parties and their counsel were all

seated in the open Court room (trial Court) apparently waiting for the Judge to sit to deliver Judgment in our cases.
7. That surprisingly, for no reasons advanced to either party, His Lordship (Learned Trial Judge) called the Counsel to the parties, myself representing the Respondents (Appellants herein) and Barr. J. Egwu representing the Applicant (Respondent herein) to her Chambers and delivered her judgment there granting all the prayers of the Applicant (now Respondent herein).
8. That parties including the Appellants were never invited neither were they allowed ingress into His Lordship?s Chambers where the judgment was delivered.
9. That my humble self, yours sincerely, E.E. Ogwezzy, Esq. (Counsel to Respondents at the trial Court) now Appellants herein and J. Egwu Esq. (Counsel to Applicant at the trial Court) now Respondent herein were the only persons present in His Lordship?s Chambers on 12/8/2010 when the judgment in Suit No. HCI/M/15/2006 which the Appellants now appeal from was delivered.
10. That I only informed the Respondents (Appellants herein) of the judgment when I had retired from His Lordship?s

Chambers where the judgment was delivered.

In her response, the Respondent relied on 6 paragraphs counter affidavit. Pertinent paragraphs of the said counter affidavit are Paragraphs 4 (a) ? (k). It is reproduced as follows:-
4. That my employer JOE EGWU ESQ. informed me and I verily believed him to be true as follows:
a. That paragraphs 1 ? 6 of the affidavit in support of motion on notice are true.
b. That paragraphs 7 ? 16 of the affidavit in support of motion on notice is false and denied.
c. That in specific answer to Paragraphs 7, 8, 9, 10, 11, 12, 13 and 14 of the affidavit in support of motion on notice which is denied, the Respondents states as follows:
i. That on 12/8/2010, when the judgment was delivered, none of the parties were present in Court. Only the counsels (sic) representing the Applicants and the Respondents i.e. JOE EGWU ESQ. and E.E. OGWEZZY respectively, were present in open Court.
ii. That the trial Judge Hon. Justice I.E. Okogwu delivered Judgment in this suit in open Court.
iii. That the Trial Judge never delivered judgment in this matter in chambers.
iv. The

deponent to their affidavit in support of motion, Mr. John Nwaghodo was not present in Court on 12/8/2010.
d. That I am aware that the Appellants/Applicants through their new counsel Chief Oshaeni Uzamere Esq. wrote a petition against the trial Judge Hon. Justice I.E. Okogwu (who was the trial Judge) to the National Judicial Council reporting the alleged act of the trial judge delivering judgment in chambers in this suit.
e. That the National Judicial Council cleared the trial judge Hon. Justice I.E. Okogwu of any wrong doing.
f. That the Applicant seeking to raise a fresh point on appeal has not fulfilled the conditions to be satisfied before raising the fresh point.
g. That the proposed fresh issue or point to be raised does not raise any point on substantive or procedural law.
h. That the Applicant needs further evidence to be adduced to resolve the fresh point.
i. That the Applicants have brought similar application seeking similar reliefs in a motion on notice dated 15/6/2012 before this Honourable Court.
j. That this Honourable Court on the 4/11/2013, refused Applicant?s prayer and advised Applicants to serve the

trial judge or the Registrar of the lower Court with their affidavit since the purport of the application was to challenge the record of the trial Court.
k. That I am aware that the applicants took steps and the registrar of the lower Court has responded by filing his affidavit at the lower Court which is contrary to the assertion of the Applicants.

Written addresses were ordered by this Court in respect of the application.

At the hearing, the learned Counsel for the Appellants/Applicants moved the application in its terms. He referred to Exhibits ?A? and ?B? attached to the application. He also referred to the counter affidavit filed on behalf of the Respondent.

Learned Counsel for the Appellants/Applicants adopted the written address filed since 6/12/2016 and relied on it in urging that this application be granted.

On the other hand, the Learned Counsel for the Respondent referred to the 6 paragraphs counter affidavit filed on 22/12/2016. He relied on all the averment in the counter affidavit.

?He also referred to the Respondent?s written address filed on 19/5/2016 but deemed as properly filed on
23/5/2017.

He adopted and relied on the said written address in urging that this application be refused.

The Learned Counsel for the Appellants/Applicants formulated a sole issue for the determination of this application. The issue is reproduced as follows:-
?Whether or not this Honourable Court has power to allow the applicants to adduce further evidence in this appeal.?

The Learned Counsel for the Respondent adopted the sole issue formulated by the Appellants/Applicants.

ISSUE FOR THE DETERMINATION OF THE APPLICATION
?Whether or not this Honourable Court has power to adduce further evidence in this appeal.?

The Learned Counsel for the Appellants/Applicants submitted that an appellate Court can permit either party to an appeal to adduce further evidence which was not available during the trial and which got to the knowledge of the party after delivery of judgment in the lower Court.

He relied on Order 4 Rule 2 of the Court of Appeal Rules 2011 which is impari materia with Order 4 Rule 2 of the Court of Appeal Rules 2016

?He stated that the evidence which the Appellants/Applicants

sought to tender were not available at the time of trial. He contended that Judgment of the lower Court was delivered in camera.

In support of the facts above, he referred to the affidavit sworn to by Assistant Chief Registrar Ogwashi-Uku Magistrate Court Mr. O.W. Osiezagha and that of lawyer to the Appellants/Applicants E.E. Ogwezzy which were deposed to separately and attached to this application as Exhibits ?A? and ?B? respectively.

He relied on the following cases:-
– ATTORNEY GENERAL OF OYO STATE & ANOR VS FAIRLAKES HOTEL LTD (1988) 5 NWLR Part 92 Page 5;
– JOHN BANKOLE & 3 ORS VS. OGIDI PELU & 3 ORS (1991) 8 NWLR Part 211 at page 528;
– RASAQ OLUWAFEMI AKANO VS. FIRST BANK OF NIGERIA PLC & ANOR (CA) (2004) 8 NWLR Part 875 Page 323;
– IME DAVID IDIOK VS THE STATE (CA) (2004) 12 NWLR Part 888 at Page 515;
– SENATOR (SIR) I.G. ABANA VS. CHIEF BEN OBI & 4 ORS (CA) (2004) 9 NWLR Part 877 Pages 4 ? 5;
– CHIEF LATEEF ADEGBITE VS. AMINU AMOSUN (2016) 5 NWLR Part 536 Page 405, 410 Ratio 3.

?The Learned Counsel for the Appellants

submitted that there is power in this Court to accede to the Appellants?/Applicants? request under the rules of this Court.

He urged this Court to grant the application.

In his response, the Learned Counsel for the Respondent, opposed the application.

He contended that a party who wishes to adduce additional evidence on appeal must satisfy the Court on the following:-
(a) The evidence sought to be adduced must be such that it could not have been with reasonable diligence obtained for use at the trial.
(b) The evidence should be such as if admitted it would have an important, not necessarily crucial effect on the whole case and
(c) The evidence must be as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.

He relied on the following cases:
– UBA PLC VS B.T.L LTD (2005) VOL 128 LRCN Page 1465 at 1477 ? 1478;
– COMFORT ASABORO VS. M.G.D. ARUWAJI & ANOR (1974) 4 S.C. Page 87;
– ONWUBUARIRI VS. IGBOASOYI (2011) VOL 192 LRCN Page 1 at Pages 192JJ & 20A;
– KWAJAFA & ORS VS BANK OF THE NORTH LTD (2004) 6 SCM Page 1 at 12 ? 13.

Page 1 at 12 ? 13.

The Learned Counsel for the Respondent also relied on Section 168(1) of the Evidence Act 2011

He submitted that if Section 168 (1) of Evidence Act is married with Exhibit ?A? i.e. the affidavit of the Assistant Chief Registrar of the lower Court, it would be clear that there is a presumption of regularity as to where the Judgment was delivered.

He urged that the application be refused.

Order 4 Rule 2 of the Court of Appeal Rules 2016 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 ground.?
It is therefore trite that an appellate Court can permit either party to an appeal to adduce further evidence which was not available during the trial and

which got to the knowledge of the party after delivery of Judgment in the lower Court.

The facts relied upon is contained in the affidavit in support of this application set out earlier in this Ruling where it was stated that the Judgment appealed against was delivered in camera. It was stated that the above fact was not available at the time of trial.

But on the other hand, the counter affidavit deposed to on behalf of the Respondent stated that the said Judgment was delivered in the open Court.

It is settled law that it is within the discretion of the Court to decide whether or not to admit further/additional evidence on appeal. In an effort at attaining the standard of exercising the discretion judicially and judiciously in granting leave to adduce fresh evidence on appeal, the Courts have set down certain principles as guide.
In LATEEF ADEGBITE & 1 OR VS. AMINU AMOSU (2016) 15 NWLR Part 1536 Page 405 at 422, the Supreme Court held among others as follows:-
?That there must exist special grounds. In ASABORO VS. ARUWAJI (1974) 1 ALL NLR Page 1 At 140; such special grounds were stated as follows:-
(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 lower Court (trial Court) in favour of the Applicant had it been available at the trial Court.
(e) The evidence should be weighty and material where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.
See AMAECHI VS. INEC (2008) 5 NWLR Part 1080 Page 227. See also ASABORO VS. ARUWAJI (Supra);
– UKARINWO OBASI & ANOR VS. EKE ONWUKA & 5 ORS (1987) 3 NWLR Part 61 Page 364 At 370;
– ATTORNEY GENERAL OF THE FEDERATION VS. MALLAM MODU ALKALI (1972) 12 SC Page 29.
– OWATA VS. ANYIGOR (1993) 2 SCNJ Page 1 at Page 12
? 13, (1993) 2 NWLR Part 276 Page 380.
– UBA VS.

B.T.L. IND. LTD. (2005) 4 SC Page 40, (2005) 10 NWLR Part 933 Page 356.
The three principles or rather, conditions laid down in ASABORO VS. ARUWAJI (Supra), were held by the Court that they must co-exist. In this application under consideration, the Appellants/Applicants alleged that in the affidavit in support of this application, that Judgment at the lower Court was delivered in camera (Chambers) while the Respondent in the counter affidavit asserted that the Judgment in this suit was delivered in the open Court. Exhibit ?A? (i.e. the sworn affidavit of the Assistant Chief Registrar of the lower Court) attached to the affidavit in support of the application tacitly supported the contention of the Respondent that the Judgment was delivered in open Court. Whereas: Exhibit ?B? i.e. the affidavit sworn to by E.E Ogwezzy the erstwhile Counsel for the Appellants/Applicants at the lower Court contended that the Judgment of the lower Court was delivered in camera (Chambers) of the Learned Trial Judge.
As it stands, there is no way the issue raised by the Appellants/Applicants in this application can be resolved without calling

for further evidence. This is because there is a conflict in the affidavit of both the Appellants/Applicants and the Respondent.
Considering the affidavit evidence put forward by both parties, can someone say that the fresh evidence to be adduced by the Appellants/Applicants is credible? I do not think so.
It is my view that in order to break the deadlock, the Registrar or Clerk who called the case in open Court on 12/8/2010 must be called to ascertain whether or not Judgment was delivered in open Court or in the Judge?s Chambers. The Registrar or Clerk must enter into the witness box and be led in evidence, cross examined and be re-examined.
In KWAJAFA & ORS VS. BANK OF THE NORTH LTD (2004) 6 SCM Page 1 at 12 ? 13, (2004) LPELR ? 1727 (SC), one of the conditions laid down by the Supreme Court is that a party seeking to raise fresh point or adduce fresh evidence on appeal must show that no further evidence is required to resolve the issue for determination.
The only way to move forward here is to call for evidence in this application.
Furthermore, in the case of UBA PLC VS. B.T.L. INDUSTRIES LIMITED (2005) 4

S.C. Page 40, (2005) 10 NWLR Part 933 Page 356, the Supreme Court cautioned on a party calling additional or fresh evidence on appeal as follows:-
?Human experience shows that we often get wiser after an event, when Judgment has been given in a case, parties with the advantage of what the Court said in the Judgment get a new awareness of what they might have done or not done at all. If the door were left open for everyone who has fought and lost a case at the Court of trial to bring new evidence on appeal, there would be no end to litigation and all the parties would be worse for that situation. There is no doubt that there is a jurisdiction and power in the Court to allow fresh evidence on appeal but it is a power which has been used only in exceptional circumstances.?

Before I conclude this Ruling, it is necessary to consider the provisions of Section 168 of the Evidence Act 2011 which states as follows:-
?When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.?
I am of the view that if the above

quoted Section of the Evidence Act is read along with Exhibit ?A? which is the sworn affidavit of the Assistant Chief Registrar i.e. O.W. Oseizagha of Issele-Uku High Court, Delta State, then a presumption of regularity as to where the Judgment of 12/8/2010 was delivered could be inferred and that the said Judgment was delivered in open Court and not in the Judge?s Chambers.

Consequent upon the foregoing, the issue is hereby resolved in favour of the Respondent and against the Appellants/Applicants.

In the result, with the resolution of the sole issue for determination in this application against the Appellants/Applicants and in favour of the Respondent, it is my view that the application lacks merit. It is accordingly dismissed.

The Respondent is entitled to costs which is fixed at (N50,000.00) fifty thousand Naira against the Appellants/Applicants jointly and severally.

Application dismissed.

PHILOMENA MBUA EKPE, J.C.A.: I had the opportunity of reading in draft copy of the lead judgment just delivered by my learned brother J. O. Bada (JCA). I agree with the reasoning and conclusion

therein and the resolution of the sole issue for determination in favour of the Respondent. It is also my view that the appeal lacks merit; it fails and is accordingly dismissed. I also peg cost at N50,000 in favour of the Respondent against the Appellant.

Application is dismissed.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the opportunity of reading the draft of the ruling delivered by my learned brother J. O. Bada JCA.

My learned brother has adequately and comprehensively considered this application for ?leave to adduce further evidence? and I have nothing useful to add to the reasoning and conclusions of His Lordship. For the reasons given by my learned brother, I also dismiss the motion on notice as it lacks merit.

I abide by all the orders including the order as to costs.

Appearances

Chief Osaheni Uzamere with him, Mrs. Imuetinyan OyiaweFor Appellant

AND

Mr. D.I. UgbotorFor Respondent