MISS FUNMILAYO BABALOLA v. DR. (MRS.) MAGRET OLUWAJUMOKE & ORS
(2018)LCN/12204(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of November, 2018
CA/AK/166M/2016(R)
RATIO
COURT AND PROCEDURE; WHEN THE COURT WILL REFUSE TO AMEN PLEA
“We have carefully perused the submissions as filed and adumbrated orally, and agree with the Respondent’s Counsel that the application cannot sail; for one, amendment relates to the original process filed; and the original process filed in this appeal as notice(s) of Appeal are said to be that of 24/7/16 and 1/8/16. There is no Notice of Appeal filed on 3/6/16 which can be amended. Non-existent process cannot be amended. We have not been shown any in the Record of Appeal – the bible of the case, which has not been impugned, as having exercised it. It is the prayer as made that shall be resolved; as it is not within the province of a Court to make out an entirely different case for a party with a view to coming to a decision. The applicant prayed for the amendment of a Notice of Appeal Filed On 3/6/16 and no other. The Court is not a Father Christmas to grant what was not asked or prayed for. See: The arguments relating to Notices and Grounds of Appeal of 24/7/16 and 29/7/16 therefore are in departure from the prayer in the motion paper and which prayer is akin to pleadings. In this wise, the submissions are discountenanced as they go to no issue. The written address on that score has no basis/anchor. That prayer could be deemed to have been abandoned and rightly, too.” MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
MISS FUNMILAYO BABALOLA Appellant(s)
AND
1. DR. (MRS.) MAGRET OLUWAJUMOKE
2. MR. OLATOKUNBO WILLIAMS OMODARA
3. MISS OLUWABUMI GRACE OMODARA
(Suing for themselves as beneficiaries and Next of Kin of the Estate of Late Barrister William Oluwadara Omodara) Respondent(s)
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Lead Ruling):
The Appellant/Applicant herein by motion on Notice brought pursuant to Order 7 Rules 4 and 8 of the Court of Appeal Rules 2016, has brought this application for the following Orders:
1. Leave to amend the Notice and grounds of Appeal filed on the 3rd day of August, 2016.
2. An Order to file/tender Additional documents not tendered at the lower Court to wit certificate of Call to Bar of late Mr. William Oluwadare Omodara.
3. The application for a certified true copy of the certificate of Marriage between the late Mr. William Omodara Oluwadare and Mrs. Margaret Olajumoke Omodara celebrated in 1965 at Lagos Registry.
4. And for such orders or further orders as the honourable Court may deem fit to make in the circumstances of this case.
The Grounds of the application are that:
1. After compilation of the record of appeal, it was discovered that it was necessary to amend the Notice and Grounds of Appeal.
New #2. That new documents were discovered after the Judgment of the lower Court and which are germane of this appeal.
The motion is supported by an affidavit of 13 paragraphs and one annexure being the proposed Amended Notice of Appeal.
The Respondent filed a counter Affidavit of 23 paragraphs of 4/10/17 by which he denied paragraphs 4, 5, 7, 8, 9, 10, 11 and 12 of the Appellant New’s affidavit and states that there is, per the Record of Civil Appeal CA/AK/268/2016 relating this application, no Notice of Appeal filed on 3rd August, 2016 by the Appellant/Applicant to warrant this application.
That the Appellant/Applicant filed two Notices and Grounds of Appeal dated 24/7/2015 and 29/7/2016.
The parties adopted their respective written addresses filed in this motion. By the Applicant New’s Written Address filed on 20/10/17 and adopted at the hearing, the Solo Issue, to wit; New Whether the Honourable Court had the power to grant this application New.’
New ‘The Learned Counsel, relying on Order 7 Rule 4 of the Court of Appeal Rules 2016, urged that this Court has the power to amend the Notices and Grounds of Appeal in both the Notice and Grounds of Appeal dated on 29th July respectively. Refers to FRN v. Dairu (2015) E.J. S.C. (Vol. 10) 116 SC, where-in the Supreme Court held that the Court has the discretion to amend or permit the amendment of the Notice of Appeal at any time.
New ‘Furthermore, that Applicant argued that unfettered power existed in the Court to raise further evidence or other additional documents if in furtherance of Justice in circumstances thus: –
a. Where the evidence sought is such that could not have been obtained with reasonable care and diligence for use at the trial.
b. Where the fresh evidence is such that will have an important but not necessarily crucial effect on the whole case if admitted.
c. Where the evidence sought to be tendered is credible and capable of being believed. See, Ochor C. Ochor v. Alphonsus Ojo & Ors (2008) 13 NWLR (Pt. 1105) 524 @ 531; Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227; Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 3641 and Asaboro v. Aruwaji (1974) 4 SC Page 119.
New ‘It was finally submitted that the certificate of call to the Bar was discovered after the Judgment while the certified true copy of the entry in the marriage registry and the application for same are germane and crucial for the determination of the appeal.
New ‘In response, the Respondents Counsel, by his address of 30/10/17 urged that the application cannot be granted as there is no such Notice of Appeal filed on 3rd of August, 2016, the (3/8/16) and which is now sought to be amended; that there existed two notices of 24/7/2015 and of 1/8/2016, rather.
That since amendment relates to an existing process, the amendment sought of a process of 3/8/16 only existed in the imagination of the Applicant; the Learned Counsel intoned.
New ‘On the application to call additional evidence, it is contended that this cannot be done, as the conditions have not been shown to exist; referred to UBA Plc v. BTL. Industries Ltd (2005) All FWLR 611 @ 623A New D; Asaboro v. Aruwaji (1974) 4 SC 87.
New ‘That the fact of the copy of the certificate of call to the Bar being in the Record of Appeal having been frontloaded means that it was available and could have, with diligence, be obtained for use by the Appellant who refused or neglected to tender same at the trial. That the two documents related to things that occurred before the date of the trial or hearing of the suit; that with reasonable diligence, they could have been obtained and used at the trial. See Order 4 Rule 2 of the Court of Appeal Rules, 2016.
That the certificate of marriage had already been tendered as an Exhibit New ‘ANew’ at the trial Court and the Court had ascribed probative value to it. Paragraphs 12, 13, 14 and 15 of the Counter Affidavit and the list of Exhibits in the Record of Appeal relied upon.
That the facts in Counter Affidavit remain unchallenged and that the application seeks to draw this Court to the position traditionally reserved for trial Courts in Civil Matters. Akinloye v. Eyiyola & Ors (1968) NWLR 92 @ 95.
That the documents sought to be tendered as additional evidence do not fall in line with what is permissible by judicial authorities.
We have carefully perused the submissions as filed and adumbrated orally, and agree with the Respondent New’s Counsel that the application cannot sail; for one, amendment relates to the original process filed; and the original process filed in this appeal as notice(s) of Appeal are said to be that of 24/7/16 and 1/8/16.
New ‘There is no Notice of Appeal filed on 3/6/16 which can be amended. Non-existent process cannot be amended. We have not been shown any in the Record of Appeal New ? the bible of the case, which has not been impugned, as having exercised it.
It is the prayer as made that shall be resolved; as it is not within the province of a Court to make out an entirely different case for a party with a view to coming to a decision. The applicant prayed for the amendment of a Notice of Appeal Filed On 3/6/16 and no other.
The Court is not a Father Christmas to grant what was not asked or prayed for. See:
The arguments relating to Notices and Grounds of Appeal of 24/7/16 and 29/7/16 therefore are in departure from the prayer in the motion paper and which prayer is akin to pleadings.
In this wise, the submissions are discountenanced as they go to no issue. The written address on that score has no basis/anchor. That prayer could be deemed to have been abandoned and rightly, too.
New’ On the second prayer for leave to call additional evidence by documents to be filed, it is obvious that the documents which were in existence before the trial were such that reasonable diligence would have placed them before the trial Court; In any case, they have been so listed as Exhibits in the Record of Appeal New – meaning that they existed and form part of the record; It is no wonder, therefore, that they were as relating to the call to bar certificate, tendered as Exhibit New ‘eNew ‘. There is also Exhibit New ‘KNew – New ‘ Affidavit of Customary Marriage and the certified copy of marriage Certificate, Exhibit New ‘ANew’ and the entries thereto were in respect of things done before trial as they existed; and evaluation had been so made upon them by the trial Court.
The documents clearly do not fall within the permissible ambit of fresh evidence that may be called under Order 4, Rule 2, of the Rules of this Court, 2016. The documents existed before trial and indeed had some of them already tendered at the trial. To accede to this prayer therefore would amount to aiding the abuse of Court process. This, the Court will not encourage. For it is also oppressive of the other side and promoting endless litigation. This is not in the public interest.
New On the whole the prayers fail as they have no merit. The application is dismissed.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I agree.
PATRICIA AJUMA MAHMOUD, J.C.A.: I agree
Appearances:
Oluwole Adeyemo Esq.For Appellant(s)
Oluwole Adeyemo, Esq. with Ezekiel K. Inakoju, Esq., C. O. Falana Esq. and S. K. Dada Esq.
For Respondent(s)
