MR. BABATUNDE AJAYI v. E.M.A GENERAL ENTERPRISES (NIG) LTD (2016)

MR. BABATUNDE AJAYI v. E.M.A GENERAL ENTERPRISES (NIG) LTD

(2016)LCN/8455(CA)

In The Court of Appeal of Nigeria

On Thursday, the 31st day of March, 2016

CA/K/278/2012(R)

RATIO

EVIDENCE: REQUIREMENT FOR FRESH EVIDENCE TO HAVE AN IMPORTANT EFFECT ON APPEAL
No amount of fresh evidence can change the Law. Furthermore, for any fresh evidence to have an important effect or impact on the appeal, it must produce a result in the appeal. Such a result must be an important and significant one and not just an inconsequential or trifling effect. PER AMINA AUDI WAMBAI, J.C.A.
COURT: WHETHER ACTING IN VAIN FORMS PART OF THE FUNCTIONS OF THE COURT
It is trite that acting in vain is not and does not form part of the functions of the Court and the Courts do not in practice facilitate or allow itself to act in vain. It would amount to a futile exercise to allow fresh evidence to be admitted which the Court knows cannot serve any important effect on the appeal.
The Supreme Court per Muhammad JSC had occasion in PROF. B. A. ABE V. UNIVERSITY OF ILORIN & ANOR (2013) LPELR SC/85/2003 to state the Law and to emphasize and restate the law in UGWU & ORS V. PDP & ORS (2015) LPELR – 24352 (SC) that acting in vain never forms part of the Court’s functions, This statement of the Law was followed by this Court in TAZOOR V. IORAER (2015) LPELR – 25975 (CA). PER AMINA AUDI WAMBAI, J.C.A.
APPEAL: CIRCUMSTANCES THE APPEAL COURT WILL GRANT LEAVE TO ADDUCE FURTHER EVIDENCE
It is settled Law that the exercise of the power of this Court to grant leave to adduce further or fresh evidence is sparingly exercised and is only invoked for the furtherance of justice if and only if all the stringent conditions are satisfied OBASI V. ONWUKA & ORS (1987) 7 SC (Pt. 1) 233, also reported in (1987) NWLR (Pt. 61) 364. This is because the trial Court having arrived at its decision after considering the evidence on both sides, the purpose of an appeal is to determine whether on those same evidence and no other, and the Law applicable, the trial Court came to the right decision. Otherwise, it will be difficult to assess the correctness of the decision of the trial Court where fresh evidence not tendered before it, is taken into consideration see UBA PLC v. BTL IND. LTD (2005) 10 NWLR (pt. 933) 356, O/C PANUM v. SGE NIG LTD (1998) 7 NWLR (pt. 559) 537, 546- 547. See AMAECHI V. INEC (2008) 5 NWLR (Pt. 1080) 227 SC, ADELEKE V. ASERIFA (1990) NWLR (Pt. 136) 94 per Karibi-Whyte JSC.
Thus the Court should not allow the procedure to be used as a repair kit to allow fresh or further evidence be led to repair or amend the case of the party, at the end of trial nor to overreach the party or spring surprises at the other party. See OKORO V. EGBUOH & ORS (2006) 15 NWLR (Pt. 61) 1.
As remarked by Oputa JSC in OBASI V. ONWUKA (Supra) Courts are always reluctant to admit “fresh evidence’, “new evidence” or additional evidence on appeal except in circumstances where the matter arose ex inproviso which no human ingenuity could forsee and when it is in the interest of justice to do so. The learned jurist further held that the conditions are so stringent that the Courts rarely admit fresh evidence if any. See pp. 11-12 paragraph B-B. In practice, the Courts lean against hearing or admitting fresh evidence. In the case at hand, the Applicant has not shown any important effect that the fresh evidence if admitted would serve. The fresh evidence intended to be used as a repair kit cannot mend or suture the Applicant’s case at the Lower Court. The Applicant having failed to meet all the stringent conditions for the grant of the leave sought to adduce further, fresh or new evidence on appeal, the application is hereby dismissed. PER AMINA AUDI WAMBAI, J.C.A.
COURT: WHAT IS THE DUTY OF A PARTY SEEKING THE EXERCISE OF DISCRETION OF COURT
It is elementary that a party seeking the exercise of discretion should place before the Court facts necessary, explicit, adequate and sufficient to bring his case within the classes of cases in which the Court may exercise its discretion in his favor – SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt 1151) 106. The applicant has the duty to support his application with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor – Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt 1171) 429. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

MR. BABATUNDE AJAYI
(RECEIVER, STIRLING CIVIL ENG. (NIG.) LTD IN RECEIVERSHIP) Appellant(s)

AND

E.M.A GENERAL ENTERPRISES NIG. LTD Respondent(s)

AMINA AUDI WAMBAI, J.C.A. (Delivering the Lead Ruling): This application by way of motion on notice dated and filed on the 13/3/2015 by the Respondent/Applicant prays for the following:-
1. “Leave of this Honourable Court to tender additional evidence in this appeal.
2. An order admitting the certified True copy of page 16 of the Guardian Newspaper publication dated February, 25th 2005 which is attached herewith as “Exhibit A1″ as additional evidence in this Appeal.
3. And for such further order(s) as this Honourable Court may deem fit to make in the circumstance.”

The brief facts of the case necessary for this application are that the Respondent as Plaintiff commenced an action at the Federal High Court Katsina, against Mr. Ade A. Babington Ashaye (Receiver, Stirling Civil Engineering Nigeria Limited in Receivership) under the undefended list procedure claiming the sum of Twenty Two Million, Four Hundred and Sixty-Six Thousand, Two Hundred Naira and Fifty Kobo (N22, 466,200.50K) being the balance of payment due to the Plaintiff for carrying out sub-contract work of stone pitching of water drainage in Funtua town of Katsina State for

Stirling Civil Engineering Nigeria Limited. Judgment was entered in favour of the Respondent and the Appellant being dissatisfied appealed to this Court. That Appeal was allowed by this Court on the ground that the Federal High Court, Katsina lacked jurisdiction to entertain the action. The Judgment was set aside and the suit struck out. Consequent upon the striking out of the case, the Respondent as Plaintiff filed a fresh action before the High Court of Katsina State in suit No. KTH/FT/135M/2010 against the said Mr. Ade A. Babington Ashaye (Receiver/Manager Stirling Civil Engineering Nigeria Limited) under the undefended list procedure claiming the same amount.

The matter was placed on the undefended list and for the absence of a notice of intention to defend and of the Appellant on the return date, default Judgment was entered against the Appellant in favour of the Respondent. The displeasure of the Appellant against that decision gave rise to the present Appeal from which this application arose.
?
The Appellant’s Counsel later sought and was granted leave to amend the Notice of Appeal and in ground 1 of the Amended Notice of Appeal averred that the

Appellant as Defendant was not a proper party to the suit having been sued as:-
“MR. ADE A. BABINGTON ASHAYE, THE RECEIVER/MANAGER OF STIRLING CIVIL ENGINEER NIGERIA LIMITED?

In his brief of argument filed on 16/12/2013 but deemed properly filed and served on the 01/12/2014, in respect of the appeal, learned Counsel for the Appellant argued in his issue No. I distilled from ground I that the Appellant having been sued in his name
?MR. ADE A. BABINGTON ASHAYE, THE RECEIVER/MANAGER OF STIRLING CIVIL ENGINEER NIGERIA LIMITED?
instead of the Company’s name, vitiated the entire action and all proceedings conducted thereon were a nullity and ought to be set aside.
?
This is what prompted the Respondent/applicant to file the present application which is predicated on these two grounds:-
“(1) The Appellant in his notice of appeal and brief of argument is objecting to the manner in which the initial Appellant (now deceased) was sued at the lower Court and the additional evidence sought to be tendered would assist in the just determination of this appeal by this Honourable Court.
(2) The Appellant has by his brief of

argument put the capacity in which the initial Appellant (now deceased) was sued at the lower Court and the additional evidence sought to be tendered is necessary to resolve the issue before this Honourable Court”.

The application is supported by a 6 paragraph affidavit and one annexure Exhibit A1. In the affidavit in support of the application, Respondent/Applicant deposed to the facts inter alia that the additional evidence would assist the Court, that it is necessary to resolve the issue before the Court, that the Appellant neither filed a statement of defence before the lower Court nor challenge the capacity in which the initial Appellant was sued, that the evidence sought to be adduced now was not in issue at the Lower Court and could not have been tendered there.

The Appellant’s Counsel in a 9 paragraph counter-affidavit opposed the application and parties were ordered to file written addresses.

In his written address in support of the application dated and filed on 20/11/2015, learned Counsel to the Respondent/Applicant, L. E. Ogar Esq formulated a sole issue for determination, to wit:-
“Whether this Honourable Court should allow the

Respondent/Applicant to tender additional evidence in this appeal.”

The Appellant/Respondent also formulated a sole issue, viz:-
“Whether the Respondent/Applicant have (sic) established the conditions necessary for the grant of leave to adduce fresh evidence on appeal”.
Substantially, the issues are the same.

In contending that this Court is empowered vide Order 4 Rule 2 of the Rules of this Court to grant the application and that the additional evidence sought to be tendered is important to the just determination of the appeal, the learned Counsel to the Applicant argued that the additional evidence being a Certified True Copy of Newspaper publication which though was available at the material time but was not in issue before the Court could not have been tendered at the Lower Court; but same is very important to the entire case to illuminate the facts to this Court. Thus the purpose for seeking its admission in evidence stated in paragraphs 3(a)(b)(c)(d)(e)(f) and (g).

It was argued that since the capacity in which Appellant/Respondent was sued was never in issue, there was opportunity to bring the application earlier.

According

to him, the factors necessary for the grant of the application as stated by the Supreme Court in C. P. C. V. OMBUGADU (20l3) 18 NWLR (Pt. 1385) P. 66 @ 161 PARAS F-B; A. G. F. V. MALLAM MODU ALKALI (1972) 12 SC 29; UKARIWO OBASI V. EKE ONWUKA (1987) 3 NWLR (Pt. 61) P. 364; AMEACHI V. INEC (2008) 5 NWLR (Pt.1080) P. 227 or (2008) 1 SCM 26; ADEFAYA V. BAMGBOYE (2013) 2 SCNJ (Pt. 1) 198 @ 217, are all present in this application, in that,
(1) The evidence sought to be adduced could not have been obtained with reasonable care and diligence for use at trial and,
(2) It is such that it is capable of being believed, though not necessarily incontrovertible.

He contended that Respondent has not shown that the grant of the application would be prejudicial to him. We were urged to grant the application.
?
On his part, in arguing his issue in objection to the granting of the application, the Appellant/Respondent’s Counsel submitted that where as in this application the additional evidence relates to a fact which was known by the Applicant to exist at trial, then special circumstance must exist to warrant the grant of the application. Such special

circumstances which must all co-exist before granting the application which he submitted are absent in this application, are those spelt out by the Supreme Court in ONWUNBUARIRI V. IGBOASOIYI (2011) 3 NWLR (pt. 1234) 367, 381- 383,
(1) “The evidence sought to be adduced should be such that it could not have been obtained with reasonable care and diligence for use at the trial;
(2) lf the fresh evidence is admitted, it will have on impact but not necessarily crucial effect on the whole case;
(3) lf the evidence sought to be adduced is such that it is capable of being believed even if it may not be incontrovertible;
(4) lf the evidence sought to be adduced could have influenced the judgment at the Lower Court in favour of the Applicant if it had been available at the trial;
(5) The evidence must be material and weighty even if not conclusive”.

Learned Counsel contended that the Newspaper publication dated 21/02/2005 had been of public knowledge for 5 years when the case was instituted and is not a fact/matter that has arisen ex-inprovisio but the Applicant chose as a matter of legal strategy not to tender same. He stated that the

Court should not admit fresh evidence as in this case that would change the facts upon which the decision complained against was based where the Applicant did not exercise reasonable diligence in providing the evidence for use at the trial.

Moreover, he argued, the fresh evidence will not have any important effect on the totality of the case because the evidence contained in the Newspaper showing the name by which the Appellant/Respondent was described cannot change the clear provisions of the Law on the capacity in which a receiver can be sued, which is only in the name of the Company.

It was also argued that at best the additional evidence even if allowed, can only show that the Appellant/Respondent was sued in his correct name as receiver of the Company but cannot have an impact on whether a receiver can be sued in his personal name. Reference was made to Section 393(3) Item 5 of the 11th Schedule to the Companies and Allied Matters Act, Cap C20 Laws of the Federal Republic of Nigeria 2004.
?
Additionally, it was contended that the Newspaper publication is not credible and not admissible pursuant to the National Archives Act, Cap N6 Laws of

the Federal Republic of Nigeria 2004 same not having been authenticated. We were urged to refuse the application.

The Applicant’s Counsel filed a reply brief on points of Law on the 15/12/2015 which, save for the admissibility of the Newspaper Publication, is a re-argument of this written address in support of the motion. I discountenance all those portions of the reply on point of Law because it will be overreaching to allow an Appellant or Applicant as in this case have a 2nd bite at the cherry to enhance, improve or re-argue his brief while the Respondent is being impoverished for not having another chance. A reply brief is neither a repair kit to suture or amend the Appellant’s brief of argument, or in this case, the Applicant’s written address, nor can it be used to fill in the gaps in the Appellant’s/Applicant’s brief of argument.
?
On the Newspaper Publication being inadmissible, learned Appellant’s Counsel submitted and correctly so that the Newspaper Publication duly certified by the Kaduna branch of the National Library of Nigeria, conforms with Section 2(2)(a) of the National Library Act and Section 104 of the Evidence Act, 2011 as

amended.

This additional or new evidence sought to be adduced in evidence in this application, the Guardian Newspaper Publication of 21/02/2005, Exhibit A1, contains an advertisement, Notice of appointment of a receiver/Manager in the person of Ade, A. Babington-Ashaye as the appointed Receiver/Manager of Stirling Civil Engineering Nigeria Limited.

The purpose of seeking to adduce this new evidence, Counsel argued, is to show that the Appellant/Respondent was sued in the Lower Court in the manner and capacity in which he advertised himself. That allowing the evidence to be admitted though will not change the position of the law, will assist in resolving the issue and shed light on the facts of the case.

Now, let us examine how this application fits into the conditions set out in the established principles of Law as stated in Onwunbuariri v. Igboasoiyi (Supra) and several other cases.
The first condition is whether the evidence sought to be adduced is such that could not have been obtained with due diligence at the trial. The Newspaper Publication of 21/02/2005 unarguably was available prior to and after the trial. The contention of the

Appellant is that though the new evidence was available, it was not in issue at the Lower Court before the Judgment appealed against was entered and so could not have been tendered.
As argued by the Respondent/Applicant’s Counsel, the capacity in which the Appellant/Respondent was sued became an issue only when the leave of this Court was sought and granted to the Appellant to amend his Notice of Appeal wherein this issue was made a ground of appeal. The question was not raised at the trial and to that extent I am in agreement with the Applicant’s Counsel that though the evidence sought to be admitted was available and could be obtained at the trial, the necessity for its tendering at trial did not arise and could not have been tendered.
?The next condition is that the new evidence is credible and capable of being believed even if it may not be incontrovertible. This Newspaper Publication which the learned Counsel to the Appellant/Respondent argued is inadmissible because it is not authenticated in compliance with the National Archives Act Cap LFN 2004, undoubtedly is not an extract in the Archives, and does not fall within that Law. Being a Newspaper

publication duly certified by an officer of the National Library of Nigeria, Kaduna State branch and fully paid for, and having satisfied Section 2(2)(a) of the National Library Act Cap N6 Laws of the Federal Republic of Nigeria 2004, is admissible in evidence under Section 104 of the Evidence Act. Unquestionably, it is credible and capable of being believed. This condition is satisfied.
The 3rd and 4th conditions are that the new evidence to be adduced, if admitted would have an impact, an important effect though not a crucial effect on the whole case. These in my view are the crucial questions in this application. In other words, whether the fresh evidence if admitted would have an important effect on the appeal before us and or would have influenced the decision appealed against if it had been admitted at trial.

The record of appeal shows, and this is common ground, that the initial Appellant as Defendant was sued at the Lower Court as:-
?MR. ADE A. BABINGTON ASHAYE, THE RECEIVER/MANAGER OF STIRLING CIVIL ENGINEER NIGERIA LIMITED?.
?
The applicant contends that what the additional evidence sought to be admitted seeks to do is

to show that the Appellant was sued in the name in which he advertised himself in the Newspaper.
Would the fresh evidence have an important effect on this appeal if admitted?

The Applicant deposed in paragraph 3(b)(c)(d)(e)(f) and (g) to the effect that the fresh evidence would assist the Court to resolve the issue and arrive at just determination of the appeal, and would have an important effect on the whole case. He contended that though it would not change the law, it would illuminate the facts.

It is pertinent to restate that the purpose of allowing a party to adduce fresh or additional evidence on appeal is for furtherance of justice where the necessary conditions are present.

One fact stands out clear in this application which is that the capacity in which the Appellant/Respondent was sued is wrong in Law. The Law upon which there is no dispute is that a receiver of a Company such as the Appellant can only sue or be sued in the name of the Company with an indication that he is a receiver of the Company, but not in this personal name as the Appellant was sued. This is a mandatory requirement of the Law.
“How would the additional

evidence change the mandatory requirement of the Law?”

?The applicant concedes that it would not change the Law. That being the case, wherein lies the purpose which the additional/fresh evidence if admitted will serve or the utilitarian value or effect it would have on the appeal? The purpose which the Applicant contends the admission of the evidence will serve is to illuminate the facts of the case to assist the Court in a just determination of the appeal. Merely illuminating the facts of the matter by showing the reason why the Appellant was sued in the manner in which he was sued would not assist the Court in resolving the legal issue of not being sued in the only legally recognized capacity in which he ought to have been sued. That is a matter of Law and not of fact which the fresh evidence cannot change. No amount of fresh evidence can change the Law. Furthermore, for any fresh evidence to have an important effect or impact on the appeal, it must produce a result in the appeal. Such a result must be an important and significant one and not just an inconsequential or trifling effect. In the instant case, the fresh evidence even if admitted will serve

little or no purpose in resolving the issue in contention. Perhaps, its value may be of cosmetic or window dressing and an order in vain. It is trite that acting in vain is not and does not form part of the functions of the Court and the Courts do not in practice facilitate or allow itself to act in vain. It would amount to a futile exercise to allow fresh evidence to be admitted which the Court knows cannot serve any important effect on the appeal.
The Supreme Court per Muhammad JSC had occasion in PROF. B. A. ABE V. UNIVERSITY OF ILORIN & ANOR (2013) LPELR SC/85/2003 to state the Law and to emphasize and restate the law in UGWU & ORS V. PDP & ORS (2015) LPELR – 24352 (SC) that acting in vain never forms part of the Court’s functions, This statement of the Law was followed by this Court in TAZOOR V. IORAER (2015) LPELR – 25975 (CA).

It is settled Law that the exercise of the power of this Court to grant leave to adduce further or fresh evidence is sparingly exercised and is only invoked for the furtherance of justice if and only if all the stringent conditions are satisfied OBASI V. ONWUKA & ORS (1987) 7 SC (Pt. 1) 233, also reported

in (1987) NWLR (Pt. 61) 364. This is because the trial Court having arrived at its decision after considering the evidence on both sides, the purpose of an appeal is to determine whether on those same evidence and no other, and the Law applicable, the trial Court came to the right decision. Otherwise, it will be difficult to assess the correctness of the decision of the trial Court where fresh evidence not tendered before it, is taken into consideration see UBA PLC v. BTL IND. LTD (2005) 10 NWLR (pt. 933) 356, O/C PANUM v. SGE NIG LTD (1998) 7 NWLR (pt. 559) 537, 546- 547. See AMAECHI V. INEC (2008) 5 NWLR (Pt. 1080) 227 SC, ADELEKE V. ASERIFA (1990) NWLR (Pt. 136) 94 per Karibi-Whyte JSC.
Thus the Court should not allow the procedure to be used as a repair kit to allow fresh or further evidence be led to repair or amend the case of the party, at the end of trial nor to overreach the party or spring surprises at the other party. See OKORO V. EGBUOH & ORS (2006) 15 NWLR (Pt. 61) 1.
As remarked by Oputa JSC in OBASI V. ONWUKA (Supra) Courts are always reluctant to admit “fresh evidence’, “new evidence” or additional evidence on appeal except in

circumstances where the matter arose ex inproviso which no human ingenuity could forsee and when it is in the interest of justice to do so. The learned jurist further held that the conditions are so stringent that the Courts rarely admit fresh evidence if any. See pp. 11-12 paragraph B-B. In practice, the Courts lean against hearing or admitting fresh evidence. In the case at hand, the Applicant has not shown any important effect that the fresh evidence if admitted would serve. The fresh evidence intended to be used as a repair kit cannot mend or suture the Applicant’s case at the Lower Court. The Applicant having failed to meet all the stringent conditions for the grant of the leave sought to adduce further, fresh or new evidence on appeal, the application is hereby dismissed.

ISAIAH OLUFEMI AKEJU J.C.A.: I read the draft of the judgment of my learned brother, AMINA AUDI WAMBAI JCA before it was delivered. I agree with the reasoning and conclusion of my learned brother. I find no merit in the application and I dismiss it accordingly.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead Ruling

delivered by my learned brother, Amina Audi Wambai, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with and abide the conclusion reached therein.

The application in contention was the motion on notice filed by the Respondent seeking to adduce further evidence on appeal. The principles governing the exercise of discretion by an appellate Court to grant leave to adduce fresh evidence or further evidence on appeal have been stated and restated by the Courts. They are (a) the evidence must be such that could not have been obtained at the trial if reasonable care had been taken; (b) the evidence would have an important although not necessarily a crucial effect on the case; (c) the evidence must be such as is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible; (d) the evidence could have influenced the judgment of the trial Court had it been made available and tendered at the trial Court and (e) the evidence sought to be introduced must be material and weighty, although not conclusive and where the evidence is immaterial and irrelevant, it will be

rejected – Statoil (Nig) Ltd Vs Inducon (Nig) Ltd (2013) 10 NWLR (pt 1363) 491, Nwaogu Vs Atuma (2013) 10 NWLR (Pt 1363) 591, Aroh Vs Peoples Democratic Party (2013) 13 NWLR (Pt 1371) 235, Congress for Progressive Change Vs Ombugadu (2013) 18 NWLR (Pt 1385) 66.
?
The additional evidence sought to be introduced by the Respondent is a certified true copy of a Newspaper Publication wherein notice was given of the appointment of a Receiver for Stirling Civil Engineering (Nig) Ltd and it was issued by the predecessor of Appellant describing himself as Ade A. Babington Ashaye, Receiver/Manager. The Respondent commenced the action in the lower Court against the Appellant as Ade A. Babington Ashaye, The Receiver/Manager of Stirling Civil Engineering (Nig) Ltd, and the case was prosecuted against the Appellant in that capacity. The case of the Respondent in the affidavit was that the first issue for determination distilled by the Appellant in his brief of arguments questioned the capacity in which the Appellant was sued and in which judgment was entered against him in the lower Court. It was the case of the Respondent that the issue was not canvassed in the lower

Court and was being brought up before this Court for the first time and that it was to meet this issue for determination that the additional evidence was necessary.

Now, it is not in dispute that the capacity in which the Appellant was sued in the lower Court is evident on the face of the records of appeal and neither is it in dispute that the question whether a Receiver can sue or be sued in his own name and the legal effect thereof are purely questions of law and not of fact. Therefore, the Newspaper publication sought to be adduced as additional evidence in this appeal will not assist in any way in resolving the said first issue for determination distilled by the Appellant. The proposed additional evidence is immaterial and irrelevant and will serve no useful purpose in this appeal. It is elementary that a party seeking the exercise of discretion should place before the Court facts necessary, explicit, adequate and sufficient to bring his case within the classes of cases in which the Court may exercise its discretion in his favor – SCOA (Nig) Plc Vs Omatshola (2009) 11 NWLR (Pt 1151) 106. The applicant has the duty to support his application

with all necessary evidence and it is the corresponding duty of the Court to determine whether the applicant had discharged his duty in that regards. If he fails, it is just right and fair that the Court should refuse to exercise its discretion in his favor – Ali Pindar Kwajafa Garage Ltd Vs Borno State Water Corporation (2009) 17 NWLR (Pt 1171) 429.
?
The Respondent has not given this Court any justifiable reason to warrant the exercise of its discretion in favour of its application. The application must thus fail. It is for this reason, and the fuller exposition contained in the lead Ruling, that I find no merit in the application of the Respondent. I too hereby dismiss the application.

Appearances

Raymond OfagborFor Appellant

AND

L. E. Oga (Mrs) with F. T. Hassan (Miss)For Respondent