KAZEEM OLALERE v. FEDERAL MINISTRY OF EDUCATION & ORS
(2014)LCN/7628(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of December, 2014
CA/A/101/2008
RATIO
APPEAL: FRESH EVIDENCE; WHETHER FRESH EVIDENCE IS NOT ALLOWED ON APPEAL
Now even though Section 15 of the Court of Appeal Act allows for amending the record of appeal where there is an error, and also allows this court to assume full jurisdiction over the proceedings as if instituted in this court; it is obvious that the duties of this court is fundamentally to review the judgment of the Lower Court and not to hold a separate hearing; and it ought to be borne in mind that generally speaking fresh evidence is not allowed on appeal, except of course 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 or where the fresh evidence is such that if admitted it would have an important but not crucial effect on the whole case or where the evidence sought to be tendered is credible in the sense that it is capable of being believed; AMAECHI V INEC (2008) 5 NWLR part 1080 at 227. per. MOHAMMED MUSTAPHA, J.C.A.
COURT: DUTY OF THE COURT; WHETHER IT IS DUTY OF THE COURT TO INTERFERE WITH THE EXERCISE OF THE RIGHT OF A PARTY TO CHOOSE WHETHER TO ADDUCE EVIDENCE IN SUPPORT OF HIS PLEADINGS OR NOT
A party is free to choose whether to adduce evidence in support of his pleadings or not and the court has no power to interfere with the exercise of that right”, AKANBI V ALAO (1989) NWLR part 108 at 1118. per. MOHAMMED MUSTAPHA, J.C.A.
JUSTICES
MOORE A. A. ADUMEIN 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
KAZEEM OLALERE Appellant(s)
AND
1. FEDERAL MINISTRY OF EDUCATION
2. MINISTER, FEDERAL MINISTRY OF EDUCATION
3. JOINT ADMISSION AND MATRICULATION BOARD
4. REGISTRAR, JOINT ADMISSION AND MATRICULATION BOARD Respondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering The Lead Ruling): This is an application brought pursuant to Sections 15 and 26 of the Court of Appeal Act (2010 Amendments), Order 7 rule 1, Order 8 Rules 7, 8 and 9 of the rules of this court; the application is for:
1. An order enlarging time within which the appellant/applicant may transmit a copy of his letter of termination of appointment, dated 10th July, 2006, a document which ought to have been part of the record of appeal transmitted to this court on the 14th of March, 2008 but which was omitted.
2. An order granting leave to the appellant/applicant to transmit his letter of termination of appointment a document which was omitted.
3. An order deeming the appellant/applicant’s letter of termination dated 10th July, 2006 now annexed as Exhibit A as additional record of appeal properly transmitted.
The application is supported by a five paragraph affidavit deposed to by Abass Mustapha, with Exhibit A, the letter of termination of appointment attached; learned counsel to the applicant filed an address in support of the application and a reply; the respondent filed a 21 paragraph counter affidavit, deposed to by Derek Sirajo Shuaib along with address of learned counsel to the respondent.
Adekola Mustapha Esq., learned counsel to the applicant submitted that the failure or inability to place the said document before the trial court was the error of counsel, and the litigant should not be visited with the sin of the counsel; he referred this court to ELIAS v SOWEMIMO (2012) 4 NWLR part 1289 at 72 and Section 15 of the Court of Appeal Act.
Learned counsel also argued that the said document is not unknown or strange to the respondent, so it cannot be seen as introducing fresh evidence to the trial, especially as the document was pleaded at paragraph 21 of the statement of claim. He urged the court to grant the application.
I. D. Angulu Esq., learned counsel to the respondent formulated as issue, whether the applicant can transmit to this court a letter not earlier brought by him.
He submitted that the said letter was not part of the process at the trial court; it is extraneous to the record of appeal; it therefore cannot be transmitted to the court of appeal by the Lower Court which did not see the document, as it was not part of the records of the Lower Court.
That even though this court has powers under Section 15 of the Court of Appeal Act to do justice as it deems proper, its discretion to do so has to be exercised judicially and judiciously, bearing in mind that its primary duty is to review the judgment of the Lower Court and not to hold a separate hearing by admitting new documents; learned counsel referred this court to UZODINMA V IZUNASO (2) (2011) 17 NWLR part 1275.
Learned counsel submitted that the applicant had his letter of dismissal before commencing the action, but he decided not to bring it before the court, yet he wants to bring it now on appeal; he argued the requirements of tendering fresh evidence on appeal have not been met, as the document sought to be introduced could have been available with due diligence at the trial.
He urged this court to dismiss the application in its entirety.
It is submitted for the applicants in reply that the document was not part of the record of proceedings of the trial court to this court, so it cannot fresh be evidence, in an interlocutory application where neither affidavit nor oral evidence was taken.
He urged this court to grant the application.
This court has carefully gone through the application, along with the affidavit in support of the application and Exhibit A, the counter affidavit and submissions of learned counsel; leading it to arrive at the conclusion that the applicant claims as per paragraphs 4(a), (b), (c), (d) and (e) he only found Exhibit A missing from the record of appeal when it was transmitted to this court on the 11th of March, 2008; but clearly the record was not part of the proceedings at the trial court too.
Now even though Section 15 of the Court of Appeal Act allows for amending the record of appeal where there is an error, and also allows this court to assume full jurisdiction over the proceedings as if instituted in this court; it is obvious that the duties of this court is fundamentally to review the judgment of the Lower Court and not to hold a separate hearing; and it ought to be borne in mind that generally speaking fresh evidence is not allowed on appeal, except of course 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 or where the fresh evidence is such that if admitted it would have an important but not crucial effect on the whole case or where the evidence sought to be tendered is credible in the sense that it is capable of being believed;
AMAECHI V INEC (2008) 5 NWLR part 1080 at 227.
Exhibit A in this case is the letter of dismissal of the applicant, his very cause of action, no document in his arsenal, is more important, so he had it from the very beginning, but failed or refused to make it available to the trial court for whatever reason, and yet he wants to be allowed to bring it in on appeal, on account not only of its importance to him, but his failure to make it available to the trial court.
The document may be credible, it was the applicant’s document, with him, but the reasons advanced in the affidavit accompanying the applicant are not convincing to this court; in fact there was no reason proffered other than that the applicant failed to notice the letter was absent in the record, and that is not reason capable of being an excuse that will satisfy this court to exercise its discretion in favour of the applicant; no solid ground exists for this court to exercise its discretion in favour of the applicant; NWAFOR ELIKE v IHEMERME NWOKWOALA & ORS (1984) ANLR 305.
Indeed this court does not believe that Exhibit A qualifies as a fresh evidence, because it is evidence that was available to the applicant, as pointed out from the onset; this court is fortified in this belief by the authority of 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.
This court is not convinced by the argument of learned counsel to the applicant that the failure to transmit Exhibit A was an omission, it is worse than that; neither does this court share the view that the failure to make the record available was the error of counsel for which the litigant shares no blame, because this court is of the firm view that Exhibit A is the single most important document in the applicant’s case at the trial court; and if it was for some strange reasons not made available to the trial court then the reason for doing so surely goes beyond error of counsel, for which no explanation has been proffered anyway; this error goes beyond pardonable inadvertence of counsel. This court refuses to speculate on whatever caused or led to such failure; the conclusion this court is compelled to arrive at in the circumstances is whether a decision by counsel not made available to the trial court evidence, on which the applicant heavily relies can be called “…a mistake or mere inadvertence? In my view, it is neither. Far from being a mistake, it is in actual fact a distinct exercise of a legal right. A party is free to choose whether to adduce evidence in support of his pleadings or not and the court has no power to interfere with the exercise of that right”, AKANBI V ALAO (1989) NWLR part 108 at 1118. The inescapable conclusion from the circumstances of this case therefore are that the applicant simply exercised his right as a litigant to choose what evidence to adduce in support of his claim, and neither the trial court nor this court can interfere in the exercise of that right; the applicant in view of this conclusion appears to be seeking to eat his cake and have it, it does not work like that; accordingly the application is refused.
Parties to bear there costs.
MOORE A. A. ADUMEIN, J.C.A.: I read in draft form the ruling of my learned brother – MOHAMMED MUSTAPHA, JCA just delivered.
I adopt the reasoning of my learned brother as my own reasons for dismissing this application.
The applicant claimed that the letter of termination of his appointment, sought to be transmitted to this court as “additional record of appeal” was “omitted” from the record already compiled and transmitted to this court. However, an examination of the record of proceedings in the Lower Court shows that the said letter was not tendered by the applicant and it was not admitted in evidence by that court. The applicant’s claim is, therefore, wrong and misleading.
For this reason and the fuller reasons given by my learned brother, I also dismiss this application without an order for costs.
TANI YUSUF HASSAN, J.C.A.: I have heard the privilege of reading in draft the rulings of my learned brother Mohammed Mustapha, JCA just delivered. His lordship has considered and resolved the issue before us. I am in agreement with the reasoning and conclusion, that the circumstances of this case do not warrant a grant of the application. The application is accordingly refused.
Appearances
J. O. Adeniyi.For Appellant
AND
Ibrahim Agulu Esq., Ayola Fedola, for the 2nd, 3rd and 4th Respondents.For Respondent
