MASOBI NIGERIA LIMITED & ORS v. REV. DR. STEPHEN OKAFOR & ORS
(2018)LCN/11803(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/E/48/2012(R)
RATIO
DISCRETION TO GRANT LEAVE MUST BE EXERCISED JUDICIOUSLY
…the discretion to grant leave to adduce new evidence is properly exercised for the furtherance of justice. The exercise must however be judicious… per IGNATIUS IGWE AGUBE, JCA
TENDERING FRESH EVIDENCE BEFORE SUPREME COURT INIMICAL TO JUSTICE
We are not unmindful of the fact that it would be a dangerous precedent to allow a person who did not call evidence in the lower Court, or who for one reason or another, had called insufficient evidence at the trial, with comparative ease, to bring forward for the first time before this Court the evidence which could and should have been adduced before the trial Judge. Such an attitude would be disastrous to the principles of seeing an end to litigation. The stand taken by the privy council in the case of EDIE MAUD LEEDER V. NNACE ELLIS (1953) AT 52 also illustrates this point. per IGNATIUS IGWE AGUBE, JCA
GRANT TO TENDER FRESH EVIDENCE MUST BE EXERCISED SPARINGLY
The discretion to grant a party the liberty to call new evidence on appeal is one sparingly exercised. This is because its indiscriminate use portends great danger for the administration of justice. per IGNATIUS IGWE AGUBE, JCA
JUSTICES
IGNATIUS IGWE AGUBE, Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice, of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF, Justice of The Court of Appeal of Nigeria
Between
- MASOBI NIG. LTD
2. MICHAEL ASOBI
3. ALEXENDER ANICHEBE
4. MICHEAL ONWUKAMUCHE
5. MOKWUO ARINZE
6. UDOJI EMEJULU
7. IRON – BAR EMEJULU
8. SUNDAY ORAJEKWE
9. DAVID EZEAGU
10. UCHENNA ANICHEBE
11. NWAFOR ANANTI
12. ANTHONY EZENWA
13. MR. ATUOKWU Appellant(s)
AND
- REV. DR. STEPHEN OKAFOR
2. CHIEF PATRICK OKAFOR
3. MR. GABRIEL OKEKE Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Lead Ruling):
The appellants/applicants instituted suit no HID/130/2005 in the High Court of Anambra State, Idemili Judicial Division and claimed the following reliefs against the respondents:
(a) A declaration that the said parcels of land at Ojota as properly delineated in survey plan No. AC/LD54/2006 is the property of the first and second plaintiffs in accordance with Ojota Customary Laws. And that the 1st and 2nd plaintiffs are entitled to the Certificate of Occupancy.
(b) A declaration that the first defendant’s Memorandum of Customary Grant of land is a forgery and that the Customary Right of Occupancy was obtained fraudulently.
(c) An injunction restraining the defendants, their servants, Attorneys, thugs, and or Agents and each of them from continuing or repeating similar or other acts of trespass on the land.
(d) #2, 608, 620.00 (Two Million Seven Hundred and Eight Thousand, Six Hundred and Twenty Naira) special damages against the defendants.
(d) #2, 718, 380.00 (Two Million Three Hundred and Eighteen Thousand, Three Hundred and Eighty Naira) General damages against the defendants.
In its judgment delivered on 14/6/2010, the Court below dismissed the appellants claim in its entirety. Dissatisfied with the judgment, the applicants filed a notice of appeal against the judgment on 8/9/2010. An amended notice of appeal was filed on 30/3/2017. Parties have filed and exchanged briefs of argument. The last brief of argument which is the appellants reply to respondents preliminary objection was filed on 30/3/2017. By an application filed on 20/10/2017, the appellants have applied for the following orders:
1. AN ORDER GRANTING LEAVE to the Appellants/Applicants to adduce further evidence in this Appeal.
2. AN ORDER OF THE COURT admitting the certified true copy of the 1st Respondents Memorandum of Customary Grant of Land attached hereto exhibit as Exhibit C in the affidavit in support of motion which was pleaded but not readily available during the trial to form part of the supplementary record of appeal.
3. An Order granting leave to the appellants/applicants to transmit the said certified true copy of Memorandum of Customary Grant of land as supplementary record of appeal within 10 days.
4. AND for such other orders as the Honourable Court may deem fit to make in the circumstance.
The grounds on which the orders are sought are as follows:-
(a) It was not possible for the appellants to get the certified true copies of the document Memorandum of Customary Grant of land during the trial as the Ministry of Lands and Survey could not find it.
(b) This Memorandum of Customary Grant of Land is most relevant in the determination of this appeal.
(c) The appellants recently got the said documents after many years of search from the Land Registry Awka on the 13th day of October 2017.
The application is supported by twenty three (23) paragraph affidavit filed along with the application, the exhibits attached thereto and thirty two (32) paragraph further affidavit sworn to on 18/12/2017. The respondents filed a thirteen (13) paragraph counter affidavit to oppose the application.
Pursuant to the order of this Court, the applicants filed a written address on 13/11/2017. The respondents filed their written address on 29/11/2017 together with their counter affidavit. Counsel to both parties adopted their written addresses as their arguments in support and against the application.
The applicants counsel formulated the following issue for determination:
Whether the admission of the certified true copy of the 1st respondents Memorandum of Customary Grant of Land to form part of the supplementary record of appeal is relevant and indispensable to this appeal.
The respondents counsel formulated the following issue for determination as follows:
Is adducing further evidence on appeal an invidious strategy for a clever party to reopen or retry issues the trial High Court has fully adjudicated on, pronounced upon and which forms one of the issues for determination in the appeal
I have considered the orders being sought, the grounds upon which they are sought, the affidavits and the arguments of counsel to both parties. The issue for determination is whether the applicants have satisfied the conditions for granting an application to receive further evidence on appeal.
The applicants counsel submitted that it is obvious from the provisions of Order 4 Rule 2 of the Court of Appeal Rules, 2016 that this Court has the power to admit or receive further evidence necessary for the determination of the real question in controversy in an appeal. On the conditions for admitting further evidence on appeal, counsel referred to EHINLANWO V. OKE (2008) 36 NSCQR I. OBASI V. ONWUKA (1987)2 NSCC 981 AT 985. He further submitted that the affidavits in support of the application have shown all the efforts made by the applicants to obtain a certified true copy of the document they are seeking to adduce as further evidence in this appeal and how the efforts were frustrated by those in charge of the documents. According to counsel, the overriding consideration for the exercise of the power of the Court to receive further evidence is to enable the Court to exercise to its optimum and in the interest of justice, the powers vested in it by Section 16 of the Court of Appeal Act. According to counsel, it is in the interest of justice, efficient administration of justice and to minimize the prolongation of litigation to ensure that the evidence which ought to be admitted but was not because a diligent search did not lead to its discovery is received on appeal when subsequently discovered. He stated that the applicants tendered a photocopy of the document without an objection because the respondents failed to produce the original only to turn around and contended that it was not the document they used to obtain their customary right of occupancy and they failed to produce the document they used to obtain the said customary right of occupancy. He argued that the admission of the certified true copy of the document as further evidence which has a survey of the 1st respondents land and the subject matter of this appeal is relevant and crucial because by implication, the respondents were the ones that forged the document and obtained a customary right of occupancy fraudulently. He referred to paragraph 22 of the Further Amended Statement of Claim and the Amended Statement of Defence. He submitted that this appeal cannot justly and equitably be determined without the document especially when the Court below imputed the forging of the Memorandum of Customary Grant of Land on the appellants/applicants.
In his response to the above submissions and arguments, the respondents counsel referred to the findings of the Court below on the document admitted as exhibit P9A certified true copy of which the applicants want this Court to receive as further evidence in this appeal. He submitted that it is crystal clear that the applicants are trying to mislead the Court of Appeal by purporting to represent for re trial or re hearing a document which the Court below admitted in evidence and discountenanced after hearing evidence. He further submitted that the document sought to be adduced as further evidence is not a new piece of evidence as it has been tendered in the Court below in its primary form. He urged the Court to dismiss the application as it is an abuse of the process of the Court.
RESOLUTION
Order 4 Rule 2 of the Court of Appeal Rules, 2016 gives this Court the power to receive further evidence on questions of fact in an appeal from a judgment after the trial or hearing of any cause or matter. The rule reads:
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 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.
A similar provision in the previous rules of this Court have been interpreted and considered in a long line of cases by this Court and the Supreme Court. See A.I.B. LTD V. U.B.A PLC (2014) LPELR 23070 (CA) AT 18 21 (C A). OWATA & ORS. V. ANYIGOR & ORS (1993) LPELR 2842 (SC). AROH V. P.D.P. & ORS (2013) AT 17 19 (B C). A grant or refusal of an application to receive further evidence in an appeal from a judgment after trial or hearing of cause or matter is an exercise of discretion which like any other discretionary power must be exercised judicially and judiciously. As rightly stated by the applicants counsel, in the exercise of that discretion, the Court must be satisfied that:
(i) The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial;
(ii) The evidence should be such as if admitted, it would have an important, not necessarily crucial, effect on the whole case; and
(iii) The evidence must be such as apparently creditable in the sense that it is capable of being believed and it need not be incontrovertible.”
See UBA PLC. v. BTL IND. LTD (2005) LPELR-8065(SC) AT 12 (A-C). AMAECHI V. INEC (2008) 5 NWLR (PT. 1080) 227 AT 444 445. It is settled that all the above conditions must co exist before the Court can exercise its discretionary power to receive further evidence on appeal. See GAZU V. NYAM (1998) 2 NWLR (PT. 538) 477 AT 493. In order to understand what the applicants are trying to do by this application, I find it necessary to state the facts as deposed to in paragraphs 4 – 21 of the supporting affidavit.
4. That about the 19th day of January 2007 the Appellants/Applicants made an application to the Ministry of Lands and Survey Awka demanding for the Certified True Copy of the Respondent Customary Right of Occupancy and the Memorandum of Customary Grant of land.
That the Applicants could not get the Customary Right Of Occupancy nor the Memorandum of Customary Grant of Land as we were informed that they could not find the documents.
6. That we met Mr. S.G Okigbo who was the Deputy Registar of Deed, Anambra State in the Ministry of Land and Survey then and explained the need we had for the document but Mr. S.G Okigbo told us that they could not find the documents in their possession. We insisted that the documents must be found for our use in this case.
7. That Mr. S.G. Okigbo then informed us that the only land document of 1st Respondent relating to land at Ojoto was Document Registered as No. 27 Vol. 78 page 27. He then brought the document and maintained that he could not find any other document and promised that they would continue to search for those documents we applied for. Attached and marked exhibit A is the said document he certified.
8. That since the 19th of January 2007 we had been consistently visiting the land office at Awka for the documents but could not get the documents. At a point they requested for a new application as they have changed the procedure, thus we made a fresh application. Attached and marked Exhibits B, is the said application.
9. That all our efforts to obtain and tender the Certified True Copy of the 1st Respondents Memorandum of Customary Grant of Land and the Customary Right Of Occupancy were met with frustration as the Ministry of Land and Survey in charge of such registered documents could not find them at the pendency of the suit.
10. That at the end of the trial the Honourable Judge held and I quote that it appears to me that the plaintiffs procured Exhibits P9A (the Memorandum of the Customary Grant of Land) to impugn the Customary Right of Occupancy of the 1st Defendant (1st Respondent). They have failed to prove that the 1st Defendant ever used it for any purpose and in particular that he used it to obtain his Customary Right of Occupancy. The only logical deduction is that it was forged by the plaintiffs (Appellants) themselves to help their case. They have thereby failed to prove that the Customary Right of Occupancy was obtained fraudulently on account of the said Memorandum of Customary Grant of Land. The paragraph of the judgment is evident in page 352 of the Record of Appeal precisely the second paragraph.
11. That the underlined in paragraph 11 is a serious pronouncement of the Court imputing the commission of A VERY SERIOUS CRIME on the Appellants/Applicants when in the truth and Equity it was Respondents who forged the documents and used the said Memorandum of Customary Grant of land to obtain the Customary Right of Occupancy.
12. That in paragraph 22 and sub para(iii) of the Further Amended Statement of Claim, in page 178 of the Records Of Appeal, the Appellants pleaded clearly that the Respondents forged the Memorandum of Customary Grant of Land and Utilized it to obtain a Customary Right of Occupancy, he also relied on the Memorandum of Customary Grant of land which is evident of how he transacted the land in dispute.
13. That in paragraph (00) of the 1st Defendants/Respondents Amended statement of Defence, the 1st Respondent averred that the Appellants forged the Memorandum of Customary Grant of land which he used to obtain the Customary Right of Occupancy. The 1st Respondent relied on his Customary Right of Occupancy and its Memorandum of Customary Grant of Land used to Obtain the Customary Right Of Occupancy.
14. That we gave a NOTICE TO PRODUCE the Customary Right Occupancy and the Memorandum of Customary Grant of land to the 1st Respondent in paragraph 22 of the Further Amended statement of claim to produce in Court for the purpose of being tendered as exhibits but 1st Respondent produced only the Customary Right of Occupancy but refused to produce the relevant Memorandum of Customary Grant of Land to the Court during the trial.
15. That this MEMORANDUM of CUSTOMARY GRANT of LAND IS VERY RELEVANT AND INDISPENSABLE IN THIS APPEAL as the document was found on 13th of Oct. 2017 from the Ministry of Lands, Survey and Town Planning Awka, Anambra State and there was no other way to obtain and tender it or bring it to the NOTICE of the Court until now that it was found and the certified true copy obtained. Attached and marked Exhibit C is the said Memorandum of Customary Grant of Land.
16. That this appeal cannot be justly and equitably determined without the Memorandum of Customary Grant of Land which document when admitted as a supplementary Record speaks for itself on the fundamental issues in this appeal especially when the trial Judge impute the forging of Memorandum of Customary Grant of land on innocent appellants/applicants.
17. The grounds and issues raised in this appeal are fundamentally founded on the 1st Respondents Memorandum of Customary Grant of Land and his Customary Right of Occupancy hereto attached and marked Exhibits D.
18. That the Memorandum of Customary Grant of Land of the 1st Respondent relied on by both the Appellants and the 1st respondent has the effect of affecting and turning the decision of the trial Court assuming the certified true copy was obtained and it was properly considered as to its content and import during the trial.
19. That admission of the Memorandum of Customary Grant of Land will enable the Court to determine the real question in controversy between the parties and ensures that the matter is heard and determined on its merits.
20. That the 1st Respondent was then hiding under the cover of non availability of the certified true copy of the Memorandum of Customary Grant of Land to present to the Court that the Memorandum of Customary Grant of Land was not his Memorandum of Customary Grant of Land but was forged by the appellants/applicants when in actual fact he was the forger.
21. That reception of the certified true copy of the Memorandum of Customary Grant of Land will save the Appellants from a serious criminal indictment over the forgery of a document which we are absolutely innocent of.
In reaction to the above averments, the 1st respondent deposed to the following facts in paragraphs 3 12 of his counter affidavits.
3. That the certified Memorandum of Customary Grant of Land assigned to me by the appellants/applicants is completely strange to me, I do not know anything about the said Memorandum of Customary Grant of Land, I neither signed same nor prepared same nor engaged any person to do so for me.
4. That appellants/applicants who are master forgers forged the Memorandum at the trial stage of this matter at the High Court level and the High Court judicially condemned the document as clear forgery by the appellants/applicants and discountenanced same.
5. That not yet done, the Appellants have perfected their forgery strategies by getting Lands Registry Awka to certify a forgery with which to mislead the Court of Appeal.
6. That the customary gift of land to me was in 1990 by my Umuomaluaju Family and wholly oral as nothing was written between me and my kindred family.
7. That it was in 1993 (after Four Years) that I engaged the 3rd Respondent a Lands Surveyor to apply for certificate of occupancy for me which he did, but not with the forged and manipulated Memorandum being peddled by the appellants to mislead the Hon. Court.
8. That the Certified Memorandum could have with diligence been tendered at the High Court, it was when the High Court discountenanced and condemned same that certification became necessary for the appellants to certify so as to mislead the Court of Appeal.
9. That the Certified copy of Memorandum of Customary Grant is wholly irrelevant to the fair determination of the Appeal and it was not pleaded in the pleadings and depositions of the parties at the High Court level, it is totally strange to the Court of Appeal that there is urgent need for the officer at Lands Ministry Awka who purportedly certified the Memorandum to be cross examined so as to establish the genuineness and the root of this forgery and manipulations.
10. That in the forged Memorandum of Customary Grant Partrick Okafor was stated to be my Grantor and father whereas in reality Partrick Okafor is my younger brother and never granted any land to me, and the signature purporting same to be that of Partrick Okafor is not his signature at all.
11. That Chief Okafor Igboloenyi of Umuezema Ojoto is my father and that Partrick Okafor was illiterate, the forgeries are puerile and functionally useless, because the Customary Grant of Land made to me in 1990 was by Umuoshi kindred a unit of Umuomalaju Larger Family and in joyful recognition of my excellent academic achievement in British Universities between 1972 and 1983 Dip Th, Lond B D Hons, Lond, Mphil Distinction Leicester, PhD, Leicester).
12. That it will be necessary and desirable for Umeadi Beatrice said to be a Deputy Director Lands Awka be subpoenaed to testify and be cross examined as to the circumstances of 13/10/17 discovery of the mystery Memorandum of Customary Grant of land at large since 2007.
The appellants stated that they applied for a certified true copy of the document they want this Court to receive as further evidence about 19/1/2007 but the ministry said they could not find it. They did not exhibit a copy of their 2007 application to confirm the fact that they applied for the document in 2007. They stated that they made a new application in 2017 because they were informed by the Ministry of Lands that the procedure changed. They exhibited the new letter which is not dated but was received by the Ministry on 24/3/2017. The content of the letter is as follows:
The Commissioner for Lands and Survey
Awka, Anambra State.
Sir,
APPLICATION FOR CERTIFIED TRUE COPY OF MEMORANDUM OF CUSTOMARY GRANT AND CUSTOMARY RIGHT OF OCCUPANCY
REGISTERED AS NO 85 AT PAGES 85 VOLUME 55 AT LANDS REGISTRY AWKA
We are Barristers and Solicitors and have copies of the above documents though not every legible thus have need for Certified True Copies of the documents as the documents are public documents which the public are entitled to obtain on payment of required fees in compliance with Section 104(1) (2) of the Evidence Act 2011.
We look forward to your usual dispatch in this regards.
The content of the above letter is very clear and unambiguous. The letter made no reference to any previous letter or application. The letter instead of complaining about the previous inability of the ministry to produce the document they applied for commended the ministry for their usual dispatch in this (sic) regards. The truth is that the appellants did not apply for a certified true copy of the document they want this Court to receive as further evidence until 24/3/2017. Seven years after the judgment being appealed against was delivered by the Court below and six days before the Amended Notice of Appeal was filed on 30/3/2017. A certified true copy was made available on 13/10/2017. The application under consideration was filed on 20/10/2017. On the entire facts disclosed on the affidavits of both parties, there is no doubt that the document was available and could with reasonable diligence have been obtained from the Ministry of Lands. There is nothing before this Court from the Ministry of Lands to confirm that the document could not be found from 2007 till 2017, a period of ten years. It is clear to me that the applicants concocted the story of the inability of the ministry to find the document in a desperate bid to repair their case having had the benefit of the reasoning of the Court below, the reasons for its refusal to rely on the document and what they ought to have done which they failed to do. This is what the Court said.
It is an accepted fact that the 1st defendant has a customary right of occupancy over the land in dispute issued by Idemili Local Government Authority. That raises a presumption of title in favour of the 1st defendant. For the plaintiffs to succeed therefore they must show that the Customary Right of Occupancy is void. In the statement of claim as Amended, the case of the plaintiffs is that the memorandum of customary grant of land with which the 1st defendant applied and obtained the Customary Right of Occupancy was forged. In proof of that fact the plaintiffs tendered a memorandum of customary grant of land in evidence as Exhibit P9A. There is absolutely no evidence to show that it was ever submitted to the Local Government as proof of the 1st defendants title. There is no evidence that it ever formed part of the records of the Idemili Local Government Authority. It is not certified as a document in the custody or control of the Local Government Authority. No official of the Idemili Local Government Authority was called to testify that the document was ever submitted to the authority and that the Customary Right of Occupancy was granted on the strength of it. It is worthy of note that the 1st defendant pleaded that the gift of the land from the family to himself was wholly a customary kindred transaction. It was not formalized in writing. So where did the plaintiffs get the purported Memorandum of Customary Grant of Land, Exhibit P9A from The parties to this suit agree that Exhibit P9A is a forgery. The 1st defendant denied ever signing the document. He admitted only signing Exhibit P9 which is the Customary Right of Occupancy though he called it the certificate of customary grant of land. He testified that it was in 2007 that he saw Exhibit P9A for the first time and that as far as he was concerned it was a forgery.
It appears to me that the plaintiffs procured Exhibit P9A to impugn the Customary Right of Occupancy of the 1st defendant. They have failed to prove that the 1st defendant ever used it for any purpose and in particular that he used it to obtain his Customary Right of Occupancy. The only logical deduction is that it was forged by the plaintiffs themselves to help their case. They have thereby failed to prove that the Customary Right of Occupancy was obtained fraudulently on account of the said memorandum of customary grant land.
The applicants want this Court to receive as further a certified true copy of a document already tendered, admitted as an exhibit and evaluated by the Court below. It is clear from the facts and circumstances of this case to circumvent the evaluation and finding of fact made by the Court below and to overreach the respondent. The appellants knew what they ought to have done which they failed to do. What they want to do is to now open a new trial in this Court for the allegation of forgery thereby having a second bite at the cherry. In U.B.A. V. B.T.L (2005) LPELR 3404 (SC), the Supreme Court per Oguntade JSC AT 12 15 (D C) stated the attitude of the appellate Court to an application to adduce further evidence as follows
Strictly speaking, under our own rule, the discretion to grant leave to adduce new evidence is properly exercised for the “furtherance of justice.” The exercise must however be judicious and it is in this respect that the guidelines set out above have been followed and applied. We are not unmindful of the fact that it would be a dangerous precedent to allow a person who did not call evidence in the lower Court, or who for one reason or another, had called insufficient evidence at the trial, with comparative ease, to bring forward for the first time before this Court the evidence which could and should have been adduced before the trial Judge. Such an attitude would be disastrous to the principles of seeing an end to litigation. The stand taken by the privy council in the case of EDIE MAUD LEEDER V. NNACE ELLIS (1953) AT 52 also illustrates this point. However, one look at the problem, it seems to be generally accepted that the guiding principles have always been applied to the special facts or circumstances of each application before the Court of Appeal, and in every case the question whether or not sufficient diligence has been put into the quest for such evidence has been decided as a matter of fact. “This Court also in Okpanum v. S.G.E. (Nig.) Ltd. (1998) 7 NWLR (Pt.559) 537 at 546-547 said substantially the same things. The discretion to grant a party the liberty to call new evidence on appeal is one sparingly exercised. This is because its indiscriminate use portends great danger for the administration of justice. In a case as this which was commenced at the High Court, parties exercise their right to file pleadings and later call evidence at the trial in support of their different standpoints. Witnesses called are cross examined by their adversaries. It is the normal expectation therefore, that parties would diligently bring before the Court all the evidence needed in support of their case including all documents. Human experience shows that we often get wiser after an event. When judgment has been given in a case, parties with the advantages of what the Court said in the judgment get a new awareness of what they might have done better 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 the 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.
Trial and hearing of a case by affidavit evidence or receipt of documentary and viva voce evidence is a duty reserved for the Court of first instance. If the applicants request is granted, parties will have to re- open their case and call witnesses who have to be examined to establish and rebut the allegation of fraud. That is a duty reserved for the trial Court.
I do not wish to concern myself with the genuineness of the certification of the document or whether it is a further act of forgery. What is paramount here is that a certified true copy of the document tendered and admitted as exhibit P9A could with reasonable diligence have been obtained before the trial at the Court below. As NIKI TOBI, JSC stated in OKORO & ORS. V. EGBUOH & ORS. (2006) LPELR -2491(SC) AT 23 (A-B)
“The procedure for admitting further evidence on appeal is not at the disposal of an indolent or not diligent litigant. The procedure cannot be used for the repair of a case at the end of the trial. It is not designed to overreach the other party or spring surprise at the other party when the appeal is heard.”
Having in my mind, the caution sounded by Oguntade, JSC in U.B.A. V. B.T.L. (SUPRA) and re-echoed by ONNOGHEN, CJN in EHINLANWO V. OKE &ORS (2008) LPELR-1054 (SC) AT 19 (G-C), I have no difficulty in coming to the conclusion that the applicants have failed to establish any special ground to warrant an exercise of this Courts discretion to receive further evidence in this appeal. The application is refused and it is hereby dismissed. There shall be N40,000 (Forty Thousand Naira) costs in favour of the respondent and against the appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I agree
JOSEPH TINE TUR, J.C.A.: I agree
Appearances:
A.U ObiorahFor Appellant(s)
B.S Nwankwo SAN with him, Oge Nwankwo For Respondent(s)
Appearances
A.U ObiorahFor Appellant
AND
B.S Nwankwo SAN with him, Oge Nwankwo For Respondent
