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LAM-ANKO (NIG) LTD v. ZAKARIA OKANGA PROPERTIES (NIG) LTD & ORS (2022)

LAM-ANKO (NIG) LTD v. ZAKARIA OKANGA PROPERTIES (NIG) LTD & ORS

(2022)LCN/17014(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, December 20, 2022

CA/ABJ/CV/567/2020(R)

Before Our Lordships:

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

LAM-ANKO (NIG) LTD – APPLICANT/RESPONDENT APPELANT(S)

And

1.ZAKARIA OKANGA PROPERTIES NIG LTD (Suing Through Her Lawful Attorney DR. HENRY ACHUGBU) 2. PERSON UNKNOWN 3. HON. MINISTER FEDERAL CAPITAL TERRITORY 4. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 5. ABUJA METROPOLITAN MANAGEMENT COUNCIL (Development Control, Land Department And AGIS) RESPONDENT(S)

 

RATIO

THE GUIDING PRINCIPLE IN EXERCISING THE DISCRETION OF THE COURTS

​Now, the 5th Respondent/Applicant has rightly submitted that it seeks a discretionary relief from the Court and that it is not granted as a matter of right. It therefore behoves upon it to furnish sufficient materials for discretion to be exercised in its favour by a grant of the application. There are no hard and fast rules as to the manner of exercise of discretion; the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 87) 184 at 199 and LAGOS STATE GOVT. vs. BENEFICIAL ENDOWMENT LTD (2018) LPELR (45779) 1 at 9-11.  PER OGAKWU, J.C.A.

THE LEGAL POSITION FOR THE CONSIDERATION OF AN APPLICATION FOR THE ADDUCATION OF FURTHER  EVIDENCE ON APPEAL

 Therefore, in order for discretion to be exercised in its favour, the materials it furnished ought to establish special grounds. The 5th Respondent/Applicant has referred to the conditions which if established would constitute the special grounds envisaged for the grant of the application. See OBOH vs. NIGERIA FOOTBAL LEAGUE LTD (supra), ADEGBITE vs. AMOSU (supra), ASABORO vs. ARUWAJI (1974) ALL NLR (Reprint) 127 at 130-131, GAZU vs. NYAM (1998) 2 NWLR (PT 538) 437, DIKE-OGU vs. AMADI (2020) 1 NWLR (PT 1704) 45 and AMAECHI vs. INEC (2008) 5 NWLR (PT 1080) 227 at 301-302.
​The legal position in considering an application for adduction of further evidence on appeal is that in civil cases, the Court will permit further, additional or fresh evidence in furtherance of justice under 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.
See ASABORO vs. ARUWAJI (supra), OBOH vs. NIGERIA FOOTBAL LEAGUE LTD (supra), ADEGBITE vs. AMOSU (supra), OBASI vs. ONWUKA (1987) 3 NWLR (PT 61) 364, ADELEKE vs. ASERIFA (1990) LPELR (116) 1 at 24-25, WILLIAMS vs. ADOLD/STAMM INT’L NIG LTD (2017) LPELR (41559) 1 at 47-48 and ODUTOLA vs. SANNI (2019) LPELR (49823) 1 at 6-7. It seems to me that when an appellate Court is called upon to allow further, additional or fresh evidence on appeal, it must recognise the necessity to adhere strictly to the three conditions reproduced above and in order for discretion to be exercised in favour of granting leave to adduce further, additional or fresh evidence on appeal, the said three conditions must co-exist: GAZU vs. NYAM (supra) at 493, UBA PLC vs. BTL IND LTD (2005) LPELR (8065) 1 at 14-15, SHARING CROSS EDUCATIONAL SERVICES LTD vs. UMARU ADAMU ENTERPRISES LTD (2020) LPELR (49567) 1 at 8-10, ADELAKUN vs. EFCC (2021) LPELR (53406) 1 at 16-19, MBAKWE vs. OBAKUNLE (2017) LPELR (50200) 1 at 14, GTB PLC vs. BENDU PETER SERVICES NIGERIA LTD (2022) LPELR (57064) 1 at 10-15 and ZENITH BANK PLC vs. NELKEN (2022) LPELR (58944) 1 at 11-16.  PER OGAKWU, J.C.A.

DEFINITION OF FRESH EVIDENCE

What is fresh evidence? In WILLOUGHBY vs. IMB (NIG) LTD (1987) LPELR (3495) 1 at 25, Obaseki, JSC opined:
“What is fresh Evidence? I think this is evidence that was not available previously which is designed to be a reply to the evidence given by the other side, or points material to the determination of the issues or any of them.”
Furthermore, in ANATOGU vs. IWEKA II (1995) LPELR (484) 1 at 57, Ogundare, JSC stated:
“Now, what is ‘fresh evidence’ and in what circumstances can it be given? A definition of the expression is given… thus: A ‘fresh evidence’ it seems to me, must have the quality of newness, or the feature of having become newly available and obtainable”.
PER OGAKWU, J.C.A.

An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. See THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 158 at 168. In the light of the settled principle of law which requires that the evidence sought to be tendered on appeal is not such that could have been obtained by reasonable care and diligence during the trial, which the document sought to be adduced as further, additional or fresh evidence does not meet; it is indubitable that the discretion of the Court cannot be exercised in favour of granting the application. In a coda, the materials furnished by the 5th Respondent/Applicant are not such for discretion to be exercised in its favour by the grant of the relief for leave to adduce further, additional or fresh evidence on appeal. PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgement): This ruling is in respect of the 5th Respondent/Applicant’s application for leave to adduce further or additional evidence on appeal. By the application filed on 11th February 2021, the 5th Respondent/Applicant prayed for the following orders:
“1. AN ORDER of this Honourable Court granting leave to the 5th Respondent/Applicant to adduce further or additional evidence before this Honourable Court, to wit:
a. Certified true copy of the certificate of incorporation LAM-ANKO NIG LTD. RC NO: 386761
b. The receipt of payment to the Corporate Affairs Commission, for the certified true copy of the certificate of incorporation of LAM-ANKO NIG LTD. RC NO: 386761
2. AN ORDER of this Honourable Court granting leave to the Applicant to compile and transmit additional records, to include the Certified True Copy of the Certificate of Incorporation of LAM-ANKO NIG LTD, RC NO: 386761, in the list of exhibits.”

The application is predicated on the following grounds:
“a) At the trial Court, the Appellant alleged that the 5th Respondent/Applicant is not duly registered with the Corporate Affairs Commission and lacks the capacity to be a party to the suit.
b) The 5th Respondent/Applicant could not obtain and tender the certified true copy of its certificate of incorporation during trial, due to circumstances beyond its immediate control.
c) The trial Court found merit in the allegation of the Appellant and struck out the name of the Applicant and all processes filed in its defence and Counter Claim.
d) Having had its name struck out from the suit at the trial Court, the 5th Respondent/Applicant resolved to initiate fresh proceedings before the High Court of the Federal Capital Territory, seeking the same reliefs as prayed in its Counter Claim.
e) While the 5th Respondent/Applicant was taking steps to initiate the said fresh proceedings, it was served the Appellant’s NOTICE OF APPEAL filed on the 15th of June 2020 showing same as 5th Respondent to the instant appeal.
f) Making the 5th Respondent/Applicant a party to this appeal, has frustrated its plans to file a fresh suit at the High Court of the Federal Capital Territory to seek the same reliefs as prayed in its Counter Claim.
g) The 5th Respondent/Appellant does not wish to abuse the process of this Honourable Court by being a party in this appeal and filing a fresh suit at the High Court of the Federal Capital Territory.
h) That the Applicant has obtained a Certified True Copy of its Certificate of Registration from the Corporate Affairs Commission, the only agency by law empowered to register companies in Nigeria.
i) Being a party in this appeal, the 5th Respondent/Appellant wishes to show before this Honourable Court that it is duly a Juristic person capable of participating in this appeal.”

The application is supported by an affidavit of seven (7) paragraphs, with paragraph 4 thereof having fourteen (14) sub-paragraphs and a Further Affidavit of six paragraphs which was deposed to on 18th November 2021. Again, paragraph 3 of the Further Affidavit has eighteen (18) sub-paragraphs. The documents relied upon were attached as exhibits to the affidavits.

​The 2nd-4th Respondents did not oppose the application so they did not file any processes in respect of the application. The Appellant/Respondent opposed the application. It filed a twenty-nine (29) paragraph Counter Affidavit on 17th February 2021; paragraph 13 of which has twelve (12) sub-paragraphs. The Appellant/Respondent also filed a Further and Better Counter Affidavit of six (6) paragraphs on 20th December 2021. Again Paragraph 5 of the Further and Better Counter Affidavit has eight (8) sub-paragraphs.

At the hearing of the application, the parties relied on their respective processes and written addresses and urged the Court to uphold their respective submissions in determination of the application. The 5th Respondent/Applicant filed a written address in support of the application on 9th March 2022 and a Reply on Points of Law on 29th March 2022. The Appellant’s written address was filed on 14th March 2022. The 5th Respondent/Applicant formulated a sole issue for determination on the application, namely:
“Whether this Honourable Court can grant the reliefs sought in this application.”

​For the Appellant/Respondent, three issues were distilled for determination on the application, as follows:
“1. WHETHER at the Appellate Court, it is proper for further evidence to be adduced and/or predicated on a pleading struck out by the trial Court.
2. WHETHER the inclusion or citing of the 5th respondent as a party in appeal NO: CA/ABJ/567/2020 by the Appellant reversed the decision of the trial Court on non-juristic personality of 5th respondent, and therefore, entitles 5th respondent to adduce further evidence.
3. WHETHER by the binding pronouncement, finding or decision of the trial Court on the issue of juristic personality of the 5th respondent, the 5th respondent’s application for leave to adduce further evidence on its juristic personality instead of appealing against the finding is improper, wrongful and incompetent.”

SUBMISSIONS OF LEARNED COUNSEL
It is the submission of the 5th Respondent/Applicant that the application is not granted as a matter of right but upon the placement of material facts in order for discretion to be exercised in favour of granting the application. Order 4 Rule 2 of the Court of Appeal Rules and the cases of STATOIL (NIG) LTD vs. INDUCON (NIG) LTD (2013) 10 NWLR (PT 1363) 491 at 499 and BRITISH AIRWAYS PLC vs. AMADI (2012) 2 NWLR (PT 1283) 21 at 40 were referred to. It was stated that the application can be granted where special grounds exist and upon fulfilment of the conditions for the grant of the application. The cases of OBOH vs. NIGERIA FOOTBALL LEAGUE LTD (2021) [sic] (PT 1089) 1406 at 1432 and ADEGBITE vs. AMOSUN (2016) 15 NWLR (PT 1536) 405 at 422 were relied upon.

It was opined that the necessary conditions had been met by the application and furthermore that an issue of jurisdiction affords special ground for further evidence to be allowed on appeal vide NWANEZIE vs. IDRIS (1993) 3 NWLR (PT 279) 1 at 17, GAZU vs. NYAM (1998) 2 NWLR (PT 538) 477 at 494 and 496 and ADEGBITE vs. AMOSUN (supra) at 429. It was asserted that where a party is not a juristic person, the Court will not have jurisdiction; but that in the circumstances of this case, where the 5th Respondent/Applicant has juristic capacity and the Court struck out its claim, it occasioned a miscarriage of justice and the application to adduce further evidence should be granted in order to redress the miscarriage of justice by showing that the 5th Respondent/Applicant has juristic capacity, and the lower Court, the jurisdiction to entertain the Counterclaim. The cases of OKONKWO vs. C.C.B. (2003) FWLR (PT 154) 457 at 508, WITTBUSCH LTD vs. GOODWILL & TRUST INV. LTD (2004) 8 NWLR (PT 874) 179 at 197, OGUNSANYA vs. DADA (1990) 6 NWLR (PT 156) 347 at 360 among other cases were called in aid.

Replicando, the Appellant/Respondent submits that the lower Court having struck out the 5th Respondent/Applicant’s pleadings, that there existed no pleadings on which to anchor any further evidence. It was posited that citing the 5th Respondent/Applicant as a party in the appeal, which was done to retain the appellation of the parties as they appeared in the lower Court, did not resuscitate or revive the striking out of the 5th Respondent/Applicant’s pleadings to warrant an application for further evidence on appeal, since parties cannot confer status on a dead process. The case of ABE vs. SKYE BANK PLC (2015) 4 NWLR (PT 150) [sic] 512 at 536 was cited in support. It was asserted that the decision of the lower Court subsists until set aside on appeal. The case of POROYE vs. MAKARFI (2018) 1 NWLR (PT 1599) 91 at 154 was referred to.

​It is the further submission of the Appellant/Respondent that issues were joined on the juristic capacity of the 5th Respondent/Applicant, evidence led at the trial and the lower Court resolved the issue and put the issue to rest. It was stated that the issue can only be reopened by an appeal against the decision on the issue and not by seeking to adduce further evidence vide HERITAGE BANK LTD vs. BENTWORTH FINANCE NIG LTD (2018) 9 NWLR (PT 1625) 420 at 436. It was conclusively submitted that in the absence of any ground of appeal on the juristic capacity of the 5th Respondent/Applicant in the pending appeal, that the application is incompetent and a waste of judicial time.

In replication on points of law, the 5th Respondent/Applicant submits in its Reply on Points of Law that the subsistence of pleadings is not a requirement before leave to adduce further evidence can be granted; as further evidence on appeal is generally out of the normal stream in the judicial process vide BRITISH AIRWAYS PLC vs. AMADI (supra) at 40. It was conclusively stated that where diligent and reasonable steps were taken to obtain evidence without success, and the evidence will have effect on the case; such evidence should be allowed as further evidence on appeal. The case of AKANBI vs. ALAO (1989) 3 NWLR (PT 108) 118 at 160-161 was relied upon.

RESOLUTION
In order to conduce to the utmost pellucidity, it will be apposite to start with a background to the facts that necessitated this application. The disputed land in this action is situated at Wuye District, Abuja. The Appellant/Respondent, claiming entitlement to the ownership of the land instituted proceedings against the 1st-4th Respondents in respect thereof. The 5th Respondent/Applicant, equally laying claim to the disputed land, applied to the lower Court and it was joined as a party in the action. It then filed its processes and set up a Counterclaim wherein it also claimed entitlement to ownership of the disputed land.

​Issues were joined between the Appellant/Respondent and the 5th Respondent/Applicant on the juristic capacity of the 5th Respondent/Applicant. The 5th Respondent/Applicant asserted its juristic personality and pleaded that it would rely on the relevant incorporation documents at the trial. The matter went through a full blown trial and the 5th Respondent/Applicant failed to tender any incorporation documents to establish its juristic capacity. In its judgment, the lower Court held that the 5th Respondent/Applicant failed to prove its legal personality and proceeded to strike out the 5th Respondent/Applicant from the action, and it also struck out its Counterclaim and other processes. See generally pages 482-487 of the Records of Appeal. The 5th Respondent/Applicant did not appeal against this finding and decision of the lower Court. The lower Court ultimately held that the Appellant/Respondent did not prove its case and it proceeded to dismiss its case. The Appellant/Respondent was dissatisfied with the decision dismissing its case and filed this appeal and the 5th Respondent/Applicant has now filed the application subject of this ruling.

​Now, the 5th Respondent/Applicant has rightly submitted that it seeks a discretionary relief from the Court and that it is not granted as a matter of right. It therefore behoves upon it to furnish sufficient materials for discretion to be exercised in its favour by a grant of the application. There are no hard and fast rules as to the manner of exercise of discretion; the guiding principle is that the discretion being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 87) 184 at 199 and LAGOS STATE GOVT. vs. BENEFICIAL ENDOWMENT LTD (2018) LPELR (45779) 1 at 9-11. 

Order 4 Rule 2 of the Court of Appeal Rules, 2021 stipulates as follows:
“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.”
​The 5th Respondent/Applicant seeks leave to adduce further evidence after the trial at the lower Court. By Order 4 Rule 2 reproduced above, 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 further evidence which the 5th Respondent/Applicant seeks to adduce, id est, its certificate of incorporation is not a matter which occurred after the trial; the incorporation status vel non was in existence as at the time the action was instituted. Indeed, there was a joinder of issues in this regard at the lower Court, and the 5th Respondent/Applicant averred that it would rely on and tender its incorporation documents at the trial; which it failed to do. Therefore, in order for discretion to be exercised in its favour, the materials it furnished ought to establish special grounds. The 5th Respondent/Applicant has referred to the conditions which if established would constitute the special grounds envisaged for the grant of the application. See OBOH vs. NIGERIA FOOTBAL LEAGUE LTD (supra), ADEGBITE vs. AMOSU (supra), ASABORO vs. ARUWAJI (1974) ALL NLR (Reprint) 127 at 130-131, GAZU vs. NYAM (1998) 2 NWLR (PT 538) 437, DIKE-OGU vs. AMADI (2020) 1 NWLR (PT 1704) 45 and AMAECHI vs. INEC (2008) 5 NWLR (PT 1080) 227 at 301-302.
​The legal position in considering an application for adduction of further evidence on appeal is that in civil cases, the Court will permit further, additional or fresh evidence in furtherance of justice under 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.
See ASABORO vs. ARUWAJI (supra), OBOH vs. NIGERIA FOOTBAL LEAGUE LTD (supra), ADEGBITE vs. AMOSU (supra), OBASI vs. ONWUKA (1987) 3 NWLR (PT 61) 364, ADELEKE vs. ASERIFA (1990) LPELR (116) 1 at 24-25, WILLIAMS vs. ADOLD/STAMM INT’L NIG LTD (2017) LPELR (41559) 1 at 47-48 and ODUTOLA vs. SANNI (2019) LPELR (49823) 1 at 6-7. It seems to me that when an appellate Court is called upon to allow further, additional or fresh evidence on appeal, it must recognise the necessity to adhere strictly to the three conditions reproduced above and in order for discretion to be exercised in favour of granting leave to adduce further, additional or fresh evidence on appeal, the said three conditions must co-exist: GAZU vs. NYAM (supra) at 493, UBA PLC vs. BTL IND LTD (2005) LPELR (8065) 1 at 14-15, SHARING CROSS EDUCATIONAL SERVICES LTD vs. UMARU ADAMU ENTERPRISES LTD (2020) LPELR (49567) 1 at 8-10, ADELAKUN vs. EFCC (2021) LPELR (53406) 1 at 16-19, MBAKWE vs. OBAKUNLE (2017) LPELR (50200) 1 at 14, GTB PLC vs. BENDU PETER SERVICES NIGERIA LTD (2022) LPELR (57064) 1 at 10-15 and ZENITH BANK PLC vs. NELKEN (2022) LPELR (58944) 1 at 11-16.

​The power vested in the Court to receive further, additional or fresh evidence is generally exercised reluctantly, sparingly and with great circumspection. This is on account of the risk involved in allowing a person to reopen an issue after it has been decided on the excuse that new facts which could have been discovered and relied upon and used at the trial have now been found. It is likely to prejudice the position of the other party and result in the miscarriage of justice. The Court will however exercise the power where the applicant has satisfied the applicable conditions, and if on the facts of the case it will be in the interest of justice to receive the further, additional or fresh evidence: OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 15-17. In GTB PLC vs. INNOSON (NIG) LTD (2017) 16 NWLR (PT 1591) 181 at 201, Eko, JSC stated:
“Three prominent considerations tending to work against adducing fresh evidence at the appellate Court, when this Court exercises its power under Order 2, Rule 12 of the rules of this Court in that regard, are –
i. Where issues are joined on pleadings at the trial Court, no party shall be taken by surprise. Thus, the appeal Court cannot consider the reception of new evidence without amendment of the pleadings. See Onibudo v. Akibu (1982) 7 SC. 60; Adeleke vs. Aserifa (1990) 3 NWLR (Pt. 136) 94 at 111; (1990) 21 NSCC 145 at 154.
ii. It is in the interest of public policy, particularly for the purpose of efficient and effective administration of justice, to obviate prolongation of litigation that the practice of adducing evidence, which ought to have been adduced at the trial Court, should not be postponed to after judgment: See Adeleke v. Aserifa (supra).
iii. Appellate Courts generally exercise their jurisdiction to correct errors of law or fact made by the Courts below, after the latter’s consideration of the totality of evidential materials before them. Accordingly, the correctness of the decision of a trial Court or Judge should not be assessed or judged on the new evidence that the trial Court or Judge never had an opportunity to consider: See Adeleke v. Aserifa(supra). In other words the correctness or otherwise of the judgment of the trial Judge or Court should not be assessed on evidential materials he or it never had opportunity to consider.”

The 5th Respondent/Applicant seeks leave to adduce further, additional or fresh evidence, which was not tendered at the lower Court. What is fresh evidence? In WILLOUGHBY vs. IMB (NIG) LTD (1987) LPELR (3495) 1 at 25, Obaseki, JSC opined:
“What is fresh Evidence? I think this is evidence that was not available previously which is designed to be a reply to the evidence given by the other side, or points material to the determination of the issues or any of them.”
Furthermore, in ANATOGU vs. IWEKA II (1995) LPELR (484) 1 at 57, Ogundare, JSC stated:
“Now, what is ‘fresh evidence’ and in what circumstances can it be given? A definition of the expression is given… thus: A ‘fresh evidence’ it seems to me, must have the quality of newness, or the feature of having become newly available and obtainable”.

It is in the light of the above that we would consider the conditions, already reproduced, on the fulfilment and satisfaction of which discretion is to be exercised in favour of granting leave for further, additional or fresh evidence to be adduced. Not surprisingly, the 5th Respondent/Applicant has contended that it has satisfied and fulfilled the conditions. But is it right?
​Now, the further, additional or fresh evidence sought to be tendered is the Certificate of Incorporation of the 5th Respondent/Applicant to show that it has juristic capacity. The 5th Respondent/Applicant deposed that it could not tender the same at the trial due to circumstances beyond its control and that it did not have its RC Number to enable it obtain a certified copy of the Certificate of Incorporation from the Corporate Affairs Commission. The pertinent question is whether the Certificate of Incorporation could have been obtained with reasonable care and diligence for use at the trial at the lower Court. It has to be remembered that the legal personality of the 5th Respondent/Applicant was made an issue on the pleadings. Issues were joined in this regard as at 26th October 2017 when the 5th Respondent/Applicant filed its Reply to the Appellant/Respondent’s Defence to its Counterclaim and it averred in Paragraph 5 thereof that it would rely on its incorporation documents. See page 184 of the Records of Appeal. The adduction of evidence at the lower Court was concluded on 5th November, 2018 and final address of learned counsel was taken on 28th January, 2019. So, the 5th Respondent/Applicant had ample time during the trial at the lower Court to produce and tender its Certificate of Incorporation.
​The Courts are reluctant to admit fresh, further or additional evidence on appeal except in situations where the matter arose in circumstances in which no human ingenuity could have foreseen and it is in the interest of justice that evidence of that fact be led. See MABOGUNJE vs. ODUTOLA (2008) ALL FWLR (PT 412) 1182. The reason given as circumstances beyond the control of the 5th Respondent/Applicant is that its Attorney who was prosecuting the matter at the lower Court could not trace the Directors of the 5th Respondent/Applicant and that she did not have the RC Number of the 5th Respondent/Applicant, without which a certified copy of the Certificate of Incorporation could not be issued by the Corporate Affairs Commission. See paragraph 4 (c) of the supporting affidavit and paragraph 3 (e)-(k) of the Further Affidavit.
​With due deference, I do not find this reason credible and I am not enthused by it. At all times material to the quest to obtain the Certificate of Incorporation, the regnant legislation was the Companies and Allied Matters Act, 1990. Section 32 thereof provides for name search/name reservation. A simple name search/reservation would have disclosed the RC Number of the 5th Respondent/Applicant and the names and availability of all companies with similar names. This did not require rocket science to attain, and it could have easily been done for the evidence to be obtained for use at the trial. Therefore, it is my informed view that the further, additional or fresh evidence sought to be adduced is not such that was not available previously: WILLOUGHBY vs. IMB (NIG) LTD (supra); it could have been obtained with reasonable care and diligence and used at the trial. Unfortunately, in the peculiar circumstances of this matter, the 5th Respondent/Applicant did not exercise reasonable, fair, proper and due degree of care and diligence as would have been done by a person of ordinary prudence and activity, given that the information was readily available by recourse to the extant provisions of the Companies and Allied Matters Act: LEEDO PRESIDENTIAL MOTEL LTD vs. BANK OF THE NORTH LTD (1998) LPELR (1775) 1 at 40 and AFRICAN INTERNATIONAL BANK LTD vs. EDUCATION TAX FUND (2010) LPELR (3640) 1 at 12 and ZENITH BANK PLC vs. NELKEN (supra).
​The other conditions which the 5th Respondent/Applicant has to establish are whether the further, additional or fresh evidence is important and such that would have an effect on the whole case, as well as whether the evidence is credible and capable of being believed. The conditions for the grant of leave to adduce further, additional or fresh evidence are coalescent. The applicant must satisfy all the conditions in order for discretion to be exercised in his favour. The fact that the further, additional or fresh evidence sought to be adduced on appeal is such that could have been obtained by reasonable care and diligence during the trial makes it unnecessary to consider the other two conditions. This is so because whether the further, additional or fresh evidence is important and such that would have an effect on the whole case, as well as whether the evidence is credible and capable of being believed are factors which would only come into play if the further, additional or fresh evidence were such that reasonable care and diligence would not have unearthed for use at the trial. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. See THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 158 at 168. In the light of the settled principle of law which requires that the evidence sought to be tendered on appeal is not such that could have been obtained by reasonable care and diligence during the trial, which the document sought to be adduced as further, additional or fresh evidence does not meet; it is indubitable that the discretion of the Court cannot be exercised in favour of granting the application. In a coda, the materials furnished by the 5th Respondent/Applicant are not such for discretion to be exercised in its favour by the grant of the relief for leave to adduce further, additional or fresh evidence on appeal.

As I begin to sum up this ruling, let me iterate that the lower Court found and held that the 5th Respondent/Applicant is not a legal entity. There is no appeal against this decision as the Appellant/Respondent’s appeal herein is against the decision of the lower Court dismissing the reliefs it claimed. There being no challenge in the appeal against the decision that the 5th Respondent/Applicant is not a legal person, the application to adduce the Certificate of Incorporation in the circumstances of this appeal, even if the 5th Respondent/Applicant had furnished sufficient materials for its grant, which it did not; would not have been of any utilitarian purpose in the appeal since there are no issues arising in the appeal in respect of the legal capacity of the 5th Respondent/Applicant. The 5th Respondent/Applicant’s submission on jurisdiction being a special ground for grant of leave to adduce further, additional or fresh evidence is therefore otiose, since there is no issue of jurisdiction involved in the appeal.

In summation, the concatenation of the foregoing is that the issue for determination as distilled by the 5th Respondent/Applicant is resolved against it. The reliefs sought cannot be granted as sufficient materials have not been furnished in order for discretion to be exercised in favour of the 5th Respondent/Applicant. The application fails and it is hereby dismissed with costs of N50,000.00 in favour of the Appellant/Respondent.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the ruling of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA, just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.
I abide by the consequential Orders.

BATURE ISAH GAFAI, J.C.A.: I have had the opportunity of reading in advance, the draft of the ruling delivered by my learned brother Ogakwu, JCA. I am in full agreement with the reasonings expressed therein and the conclusion thereby reached. I adopt those reasonings as mine; by which I too find this Application devoid of merit and is accordingly dismissed by me too. I abide by the Order on cost made in the lead ruling.

Appearances:

Prince N. Uwagbokwu, Esq. For Appellant(s)

Uche Ofodile, Esq. for 2nd-4th Respondents.

Ugochukwu Isiguzo, Esq. for 5th Respondent/Appellant. For Respondent(s)