MADUGU COMMERCIAL & CONSTRUCTION CO. LTD & ORS v. NIGERIA ROAD CONSTRUCTION CO. LTD & ORS
(2022)LCN/17057(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Thursday, March 31, 2022
CA/YL/148/20(R)
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
1. MADUGU COMMERCIAL AND CONSTRUCTION CO. LTD 2. MUSA GARBA 3. PRIAM GROUP OF COMPANIES APPELANT(S)
And
1. NIGERIA ROAD CONSTRUCTION CO. LTD 2. COMMISSIONER OF POLICE ADAMAWA STATE 3. ATTORNEY GENERAL OF ADAMAWA STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A CASE ON APPEAL WHICH HAS BEEN TRIED ON ITS MERIT
The law is that in a case on appeal after it has been tried on its merit, further evidence will be received in furtherance of justice under the following circumstances:
(i) Where the evidence sought to be adduced in 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, DIKE-OGU & ORS VS. AMADI & ORS (2019) LPELR–47847 (SC) PP. 22–23, PARAS. D–B, OWATA VS. ANYIGOR (1993) 2 NWLR (PT. 276) 280; UBA PLC VS. B.T.L. INDUSTRIES LTD (2005) 10 NWLR (PT. 933) 356; EHINLANWO VS. OKE (2008) 16 NWLR (PT. 1113) 357, ADEGBITE & ANOR. VS. AMOSU (2016) LPELR–40655 (SC) PP. 6–9, PARAS. B–A. PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgement): The application filed on 30/12/21 by the 1st, 2nd and 5th Respondents/Applicants was brought pursuit to Order 4 Rules 1 & 2, Order 6 Rule 1 of the Court of Appeal Rules 2021, Section 6 (6) of the Constitution of the Federal Republic of Nigeria 1999, (as amended) hereafter (referred to as the Constitution) sought the following reliefs from the Court:
A. “AN ORDER FOR LEAVE of this Honourable Court to adduce further/additional documentary evidence on appeal in respect of Suit No. ADYS/111/2018.
B. AN ORDER admitting Certified True Copy of DHL Receipt and Cover Note issued to Hon. Commissioner Adamawa State Ministry of Land & Survey, Copy of Photograph pictures of pasted Notice of Revocation at revoke plot/land, Certificate of Authentication of Electronic generated evidence, Memorandum of Appearance dated 7th June, 2010 and Statement of Defence dated 22nd July, 2010 filed by Appellant in Suit NO. ADSY/24/2010 and non-suit judgment as fresh evidence on appeal as exhibit E1-2, F1-3, G1-4 and H1-9 accordingly.
C. AN ORDER deeming the said Certified True Copy of DHL Receipt and Cover Note issued to Hon. Commissioner Adamawa State Ministry of Land & Survey, Copy of Photograph pictures of pasted Notice of Revocation at revoked plot/land, Certificate of Authentication of Electronic generated evidence, Memorandum of Appearance dated 7th June, 2010 and Statement of Defence dated 22nd July, 2010 filed by Appellant in Suit NO. ADSY/24/2010 and non-suit judgment which are annexed hereto and marked as A–F the clean copies of which have been transmitted/filed before this Court as properly tendered and admitted as additional/fresh evidence on appeal.
D. AN ORDER for LEAVE of this Honourable Court to argue fresh issue on appeal based on the fresh/additional evidence adduced.
E. AND FOR SUCH OTHER OR FURTHER ORDERS this Court may deem fit to make in the circumstances.”
The grounds upon which the application was brought are as follows:
a. “That the issue or question as to whether there was service of Notice of Revocation was never in issue at the trial or during the trial but only surfaced at the Appellant’s Final Written Address hence the need to apply and obtain CTC of service proof.
b. That there was nowhere stated in the Appellant’s pleadings either in the Statement of Claim or Reply to the Respondent’s Statement of Defence at the trial that Notice of Revocation was not served on the Appellant.
c. That the fresh issue raised by the Appellant as per the service of Notice of Revocation was not rooted in the pleading before the lower Court, thus, fresh issue on appeal.
d. That the appellant haven (sic) raised fresh issue on appeal, it is necessary and expedient to adduce fresh/additional evidence for effectual determination of the instant appeal.
e. That Suit No. ADSY/24/2010 is on same subject matter of this appeal, whereby both the Appellant and the 4th respondents were parties to the suit and the Applicant is unaware of the progression of occurrences in the said suit until recently when obtained (sic) Certified True Copy of the processes after the judgment of the trial lower Court in suit No. ADSY/111/2018 that lead to this appeal.
f. The Certified True Copy of Suit No. ADSY/24/2010 processes and judgment are record of proceedings of Adamawa State High Court of Justice.
g. That the Appellant/Respondent’s title on the subject matter of this appeal was void ab initio having been procured during the pendency of Suit No. ADSY/24/2010.
h. That leave of this Honourable Court is necessary to raise and argue fresh issue on appeal.
i. That this Court has the power to admit fresh evidence on appeal under the rules to serve justice for the parties before it in a matter such as this.”
In moving the application, the learned counsel to the Applicants relied on his sixteen paragraphs affidavit deposed by J.O. Ajayi Esq. of counsel in the law firm of M. A. Attah, Esq. and Exhibits A–A3, B-B3, C, D, D1, E1–E3 and F1–F9. Learned counsel adopted his written address in support of the application, attached to the motion papers, pages 8–12 also, his reply on points of law contained in his further and better affidavit filed on 1/2/22 deemed properly filed and served on 3/3/22, deposed to by J. O. Ajayi, Esq. Learned Counsel relied on all the paragraphs of his further and better affidavit and his argument in the reply on points of law in urging us to grant the application.
The Applicants formulated a sole issue for the determination:
“Whether the instant application had satisfied the requirement of the law to warrant the Honourable Court granting same.”
In arguing the sole issue, it was submitted that the application should be granted in the interest of justice, the Applicants having satisfied the requirements of the law as laid down in Order 4 Rule 2 of the Court of Appeal Rules, 2021 and the Constitution of the Federal Republic of Nigeria 1999 (as amended). It was submitted that the Applicants are seeking leave to adduce further or additional documentary evidence on appeal in respect of Suit No. ADSY/111/18. It was submitted that the power of the appellate Court to admit fresh or additional evidence must always be exercised sparingly and with caution, therefore that the Court must consider whether there are special circumstances to warrant the grant of the application and whether it would be in furtherance of the justice of the case. See, SHARING CROSS EDUCATIONAL SERVICES LTD. VS. UMARU ADAMU ENTERPRISES LTD. & ORS. (2020) LPELR–49567 (SC). It was contended that from the motion papers and all the Exhibits, the Court would arrive at the conclusion that special circumstances are in existence to warrant the application being granted. See, MBAKWE VS. OBAKUNLE & ANOR (2017) LPELR–50200 (CA) PP. 10-12, PARAS. B–D where this Court gave the conditions for the grant of an application to admit additional evidence on appeal. We were urged to consider the contents of Exhibits A1–2, B1–2, C, D, E1–3 and F1–9 attached to the motion papers. It was concluded that its grant would enable the applicants exercise their Constitutional right to fair hearing.
In response, the learned counsel to the Appellant/Respondent, J. O. Ogodi, Esq. filed his Counter-Affidavit on 25/1/22 but, deemed properly filed and served on 3/3/22. The learned counsel to the Appellant/Respondent adopted the sole issue as formulated by the Respondents/Applicants. The learned counsel relied on his Counter-Affidavit deposed to by Elizabeth Wike containing twenty (20) paragraphs, the annexed Exhibit “K”, the statement of defence of the 1st, 2nd and 5th defendants and the 5th defendant’s Counter-Claim and the witnesses’ statements. Reliance was also placed on learned counsel’s address in support of the application and Section 28 of the Land Use Act in respect of revocation, overriding public interest and notice. It was argued that anything that had been handled in the lower Court cannot be re-litigated upon by the lower Court and a decision taken. In his written address in opposition to the application, it was submitted that the Applicants’ application did not satisfy the requirement of the law to warrant the grant of same, particularly Order 4, Rule 2 of the Court of Appeal Rules, 2021. It was submitted that Exhibits E1-2, F1-3, G1-4 and H1-9 are pieces of evidence that predated Suit No. ADSY/111/2018, the subject of this appeal. It was argued that these Exhibits were known to the Applicants but they failed to plead same and tender in evidence during the trial at the lower Court thereby making the documents inadmissible on appeal. Further, that the Appellants have not shown any special grounds that would warrant its grant at this stage on appeal. It was submitted that admitting these documents in evidence on appeal would be prejudicial and would overreach the Appellant as it would afford the Applicants the opportunity to reopen and argue their case again on appeal. See, MALAMI VS. OHIKHUARE (2018) ALL FWLR (PT. 958) 917 at 927–928, PARAS. H-E and OKENWA VS. MILITARY GOVERNOR, IMO STATE (1996) 6 SC NJ 221. It was submitted that there are no facts from the records of appeal to support the additional documentary evidence the Applicants seek to adduce and the fresh issues they sought leave to raise and argue. It was argued that if granted, the Applicants would have been given the leverage to recommence their case and/or introduce a new line of defence, different from the issues that were fought by parties at the trial Court based on the pleadings that were filed and exchanged and that the Appellants’ appeal would be kept in abeyance. It was argued that if new issues are raised and argued, fresh evidence would have to be adduced to support the fresh issues that the Applicants intend to raise, reference was made to the pleadings of the Applicants filed at the lower Court, Exhibit “LO”. We were urged to refuse the application as it was brought in bad faith and intended to overreach.
The 3rd and 4th Respondents did not file any process.
The Applicants’ reply on points of law to the submissions of the Appellant/Respondent was argued in their address accompanying the Appellants’ Further and Better Affidavit. It was argued that the Respondents’ Counter-Affidavit, paragraphs 7, 10, 13, 14, 16, 17 and 18 contain arguments and conclusion contrary to the provisions of Section 115 of the Evidence Act, 2011. See, G.S. & D. IND. VS. N.A.F.D.A.C (2012) 5 NWLR (PT. 1294) PAGE 511 at 517, I.T.N.A.G.P.P.E VS P.C.N. (2012) 2 NWLR (PT. 1284) PAGE 262 at 266. We were urged to strike out the deposition in the listed paragraphs. It was submitted that it is at the discretion of this Court to allow the Applicants to adduce new evidence, fresh evidence or additional evidence and that such discretion is properly exercised if it is in furtherance of justice. See, UZODINMA VS. IZUNASO (2011) 17 NWLR (PT. 1275). It was submitted that the Appellant/Respondent did not deny the Applicants’ paragraphs 5, 6 and 7 of the affidavit in support of the application to the effect that service of the Notice of Revocation was not in issue at the trial and that the Appellant/Respondent had admitted having failed to specifically deny being served with the Notice of Revocation. We were urged to deem the above paragraphs admitted while reliance was placed on the case of YAR’ADUA VS. YANDOMA (2015) 4 NWLR (PT. 1448) PAGE 174 and ONWUBUARIRI & ORS VS. IGBOASOYI & ORS (2011) LPELR–754 (SC). Further, that the Applicants complied with Order 4, Rule 2 of the Court of Appeal Rules, 2021 through the uncontroverted deposition at paragraphs 5, 10, 11 and 13 of the Affidavit in support of the Motion on Notice. Also, paragraphs 7 and 8 of the Further and Better Affidavit.
The application basically sought the leave of this Court to adduce additional documentary evidence on appeal. No doubt, the appellate Courts have the power to admit new, fresh or additional evidence but, exercise it with caution. Special circumstances warrant the grant of the application as long as it is in furtherance of the case without prejudicing the case of the other party. At this stage, the question is whether there are special circumstances that have arisen in this case to warrant its grant? The power of this Court to admit additional evidence on appeal was provided for by Order 4 Rule 2 of the Court of Appeal Rules, 2021 which 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.” (underlined mine for emphasis).
The law is that in a case on appeal after it has been tried on its merit, further evidence will be received in furtherance of justice under the following circumstances:
(i) Where the evidence sought to be adduced in 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, DIKE-OGU & ORS VS. AMADI & ORS (2019) LPELR–47847 (SC) PP. 22–23, PARAS. D–B, OWATA VS. ANYIGOR (1993) 2 NWLR (PT. 276) 280; UBA PLC VS. B.T.L. INDUSTRIES LTD (2005) 10 NWLR (PT. 933) 356; EHINLANWO VS. OKE (2008) 16 NWLR (PT. 1113) 357, ADEGBITE & ANOR. VS. AMOSU (2016) LPELR–40655 (SC) PP. 6–9, PARAS. B–A. The learned counsel to the Applicants had submitted that the application was necessitated because the learned counsel to the Respondent raised the issue of non-service of Notice of Revocation which was not in issue in his address and the applicants had to show that the Notice was served and therefore sought to adduce fresh documentary evidence on appeal. The fresh evidence sought to be adduced are documentary that would not require oral evidence, Exhibits “A–F” attached to the motion papers. Further, the clean copies of these Exhibits were compiled and transmitted and filed before this Court. The learned counsel to the Applicants had argued that the Appellant’s/Respondent’s contention as shown in her Appellant’s brief of argument centered on the service of the Notice of Revocation. Further, the Applicants in paragraphs 5, 6 and 7 of their affidavit in support of the Application deposed as follows:
5.“That the issue of service of Notice of Revocation was never an issue at the trial or during the trial but only surfaced at the Appellant’s Final Written Address. Hence the need to apply and obtain CTC of service proof.
6. That I know there was nowhere stated in the Appellant’s pleadings either in the statement of claim or Reply to the Respondent’s Statement of Defence at the trial that Notice of Revocation was not served on the Appellant.
7. That I know in the entire pleadings and the evidence led at the trial, the Appellant/Respondent never specifically denied being served with the Notice of Revocation.”
From the records, the Appellant/Respondent has not denied or controverted these depositions, in other words, the Appellant did not deny being served with the Notice of Revocation at the trial but, raised same at the address stage at the trial. The Appellant/Respondent has also not stated how the grant of the Application would be prejudicial to this appeal and overreach the Appellant/Respondent. On the other hand, the refusal of the application would occasion a miscarriage of justice, the fresh issue would not introduce anything new in the case of the parties or a defence that is different from issues that were examined and determined at the trial Court, contrary to the argument of the learned counsel to the Appellant/Respondent, fresh evidence would not be adduced to support the fresh issues intended to be raised.
In sum, I am of the humble view that the interest of justice would be better advanced by granting the reliefs sought. The orders are granted as prayed in the motion papers as follows:
1. Leave is granted to the Applicants to adduce further/additional Documentary evidence on appeal in respect of Suit No. ADSY/111/2018.
2. The certified copies of Exhibits E1–2, F1–3, G–1–4 and H1–9 are admitted as fresh evidence on appeal.
3. The clean copies of Exhibits A–F which have been transmitted and filed before this Court are deemed as properly tendered and admitted as additional/fresh evidence on appeal and accordingly marked.
4. Leave is granted to the Appellant/Applicant to argue the fresh issue on appeal based on the additional/fresh evidence on appeal.
Parties to bear their respective costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance, the draft copy of the lead ruling just delivered by my learned brother CHIDI NWAOMA UWA, JCA. I am in agreement with the decision of my lord in granting the application with nothing further to add.
MUHAMMED LAWAL ABUBAKAR, J.C.A.: I had the privilege of reading in draft, the lead reuling just delivered by my learned brother, Chidi Nwaoma Uwa, JCA. and I entirely agree with the conclusion that the application is meritorious and it is accordingly granted.
Appearances:
J. A. Ogodi, Esq., with him, F.T. Ikyan, Esq. For Appellant(s)
M. A. Attah, Esq. – for 1st, 2nd and 5th Respondents/Applicants
3rd Respondent absent
J. A. Waya, Esq. SSC II, Adamawa State Ministry of Justice – for 4th Respondent. For Respondent(s)