MRS. SALOME EDE v. MRS. MARIA CHITA (2016)

MRS. SALOME EDE v. MRS. MARIA CHITA

(2016)LCN/8117(CA)

In The Court of Appeal of Nigeria

On Friday, the 22nd day of January, 2016

CA/E/210/2008(R)

RATIO

APPEAL: THE IMPORTANCE OF THE CREDIBILITY OF THE EVIDENCE SOUGHT TO BE ADDUCED AS FRESH EVIDENCE

It is trite law that the evidence sought to be adduced as fresh evidence must be apparently credible in the sense that it is capable of being believed and need not be incontrovertible. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

APPEAL: THE EFFECT OF THE GRANT OF THE RELIEF SOUGHT BY THE PLAINTIFF TO AMEND THE NOTICE OF APPEAL

To grant the applicant’s relief will amount to allowing the applicant to reshape or resharpen a case which has already been decided on the merit or raise fresh point on appeal without establishing any special circumstance for the exercise of such discretion in his favour. This Court will not lend its weight to such a move. See the case of Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94 ; Owata v. Anyigor (1993) 2 NWLR (Pt. 276) 280 at 393. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

COURT: COURT’S DISCRETION; THE EXERCISE OF THE DISCRETION OF THE COURT TO GRANT OR REFUSE AN APPLICATION FOR THE AMENDMENT OF THE A NOTICE OF APPEAL

The grant or refusal of the relief in question, like the earlier one considered in this decision is equally discretionary and can only be rightly granted upon material facts. By virtue of the provisions of Order 6 Rule 15 of the Court of Appeal Rules, 2011, a notice of appeal may be amended with the leave of the Court. The grant of an application of this nature requires the discretion of the Court which is required to be exercised judicially and judiciously. See the case of Nwobodo & Ors. v. Nwobodo (1995) 1 NWLR (Pt. 370) 203; Rabiu v. Adebajo (2012) 6 SC (Pt. II) 160. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

APPEAL; AMENDMENT OF A NOTICE OF APPEAL; WHEN CAN THE AMENDMENT OF A NOTICE OF APPEAL BE DONE

Amendment of a notice of appeal can be done at any time prior to the delivery of judgment in the appeal, if justice of the case permits upon a thorough consideration of the competing right of the adverse party. per. MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

Before Their Lordships

HELEN MORONKEJI OGUNWUMIJUJustice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLAJustice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFFJustice of The Court of Appeal of Nigeria

Between

MRS. SALOME EDEAppellant(s)

AND

MRS. MARIA CHITARespondent(s)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Lead Ruling): This is an interlocutory decision of this Court on the application brought by the appellant/applicant (?the applicant?) praying this Court in the main for three (3) reliefs. The substantive appeal before this Court was initiated by the applicant vide the ?Notice of Appeal? dated 1st March, 2007 (?the notice of appeal?) which contains three (3) grounds of appeal, against the judgment of the Honourable Justice E. C. Ahanonu, J., of the High Court of Enugu State, sitting at Enugu (hereinafter referred to as the Lower Court).

The applicant?s motion on notice dated 5th November, 2012 but filed on 6th February, 2013 (?the application?) is praying this Court for leave to file additional grounds of appeal and the leave of this Court to adduce further evidence for the purpose of the appeal. The orders and or reliefs prayed for in the said application are reproduced below:
?1.Granting leave to the Appellant/Applicant to file additional grounds of appeal against the Judgment of Honourable Justice E.C. Ahanonu (of blessed memory) of the High Court of

Justice of Enugu State, Enugu Judicial Division delivered on the 22nd day of January, 2007 in Suit No. E/62/2003 ? MRS. MARIA CHITA VS. MRS. SALOME EDE.
2.Granting leave to the Appellant/Applicant to adduce Additional/Fresh evidence in this Appeal by allowing the bundle of documents attached to this application and marked Exhibit C to form part of the Records of Appeal for the purpose of using same in determining this Appeal.
3.To deem the Additional Grounds of Appeal and bundle of documents attached and marked as Exhibit C as properly filed and served, necessary fees having been paid.?

In support of the application, the applicant filed a 19 paragraph affidavit (?affidavit in support?) sworn to by the applicant on 6th February, 2013. The applicant attached three (3) Exhibits to the affidavit in support of the application. They are: Exhibit A (Notice of Appeal), Exhibit B(Additional Grounds of Appeal) and Exhibit C bundle of documents comprising (Additional/Fresh evidence: that is; The Judgment of the Magistrate Court in Suit No: ME/439C/02 delivered on 02/07/08, A document said to be Extra Judicial Statement of the Respondent herein made

to the police on 22nd October, 2002 (?extra judicial statement?) and the Charge Sheet in Suit No: ME/439C/2002). The applicant equally filed a 16 paragraph Further Affidavit dated 20th day of September, 2013 (?further affidavit?) in reaction to the respondent?s counter affidavit.

On her part, the respondent filed a 19 paragraph counter affidavit (?counter affidavit?) sworn and dated 4th March, 2013 together with three Exhibits: Exhibit A (Notice and Grounds of Appeal against conviction) Exhibit C1 (Order of this Court dated 14th April, 2011) and Exhibit C2 (Order of this Court dated 23rd May, 2012) in response to the application. In addition to the counter affidavit, the respondent further filed a counter affidavit dated 14th October, 2013 (?further counter affidavit?) to the applicant?s further affidavit.

?At the hearing of the application on 4th February, 2015 this Court ordered both parties to file written addresses in support of their respective positions in respect of the application. Pursuant to the said order of this Court, counsel to the applicant and respondent filed written addresses dated 13th

February, 2015 and 16th March, 2015 respectively. Both parties adopted their written addresses as the arguments in support of their respective standpoints in the course of hearing in this appeal matter on the 26th day of October, 2015.

Before proceeding with the merits of the application, it is pertinent to comment on the Court processes before this Court, particularly the affidavits sworn to and filed by the parties respectively. Affidavits in support or in opposition to an application before a Court of law are expected to be concise, direct and contain only material facts necessary for the determination of the real issue or issues under consideration and must comply with the requirements of the law and rules of procedure of the Court. In order for affidavit evidence to be admissible, the affidavit must duly comply with conditions stipulated under the Evidence Act.The numerous affidavits filed by the parties in this suit leave much to be desired.Aside the fact that the affidavits are unnecessarily verbose, the practice and procedure of our Courts does not allow a respondent to further raise new facts by way of counter affidavit to a further affidavit by the

applicant. Such a right does not exist otherwise there will be no end to the litigation as it pertains to the application.
More importantly, I find paragraphs 4, 5, 8 and 16 of the affidavit in support of the application and paragraphs 13 of the document titled ?Further Affidavit in Reaction to the Respondent?s Counter Affidavit? offensive to Section 115 of the Evidence Act, 2011; the deponent having failed to state the circumstances, time, place and where the information was obtained as required by the Evidence Act. Similarly paragraphs 4, 11 and 13 of the Counter Affidavit as well as paragraphs 6, 8 and 12 of the document titled ?Counter Affidavit To Further Affidavit Of The Appellant? are inadmissible in law as the deponent equally failed to state the circumstances under which she received the information stated therein from her informant, contrary to Section 115 of the Evidence Act, 2011. Section 115 (1) ? (4), are set out below:
?(1) Every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which

he believes to be true.?
(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.?
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant, and the time, place and circumstances of the information.? (Underlining mine)
The use of ?shall? in the underlined portions of the provisions quoted above signifies that the requirements are mandatory and non-compliance thereto shall render the paragraphs of the affidavit defective.Where any paragraph of an affidavit offends the provisions of the Evidence Act as stated above, the defective paragraph is liable to be struck out. See the cases of Nigeria LNG Ltd. V. African Development Insurance Co. Ltd. (1995) 8 NWLR (Pt. 416) 677 @ 699-700 SPDC (Nig) Ltd. V. Okei (2006) 17

NWLR (Pt. 1007) 1@ 23. I hereby strike out the said paragraphs from the record of this Court.

Having dealt with the issue of affidavit evidence, it is appropriate at this point to address the submissions of the learned counsel for the respondent, to the effect that this present application is incompetent by reason of the fact that two (2) applications had been previously filed on behalf of the applicant which were struck out by this Court. In support of this assertion, the respondent annexed and relied heavily on the Orders of this Court dated 14th April, 2011 and 23rd May, 2012 marked Exhibit C1 and C2 respectively.

I have carefully considered the said Orders. I find that the orders were made by this Court upon the application for their withdrawal by the applicant/appellant. The respondent has failed to show that the two (2) previous applications were determined on merit which is obviously not the case. Thus, the submission of the learned counsel for the respondent that this present application is an abuse of Court process is unmeritorious. When an application or suit is struck out by the Court, which was not determined on the merit, the application is still

alive and could be resuscitated by the applicant. It is only a dismissal upon a determination on merits, that constitutes res judicata on the issues raised and contained therein. See the decision of this Court in the case of Oko v. Igweshi (1997) 4 NWLR (Pt. 497) 48. The argument of the learned counsel for the respondent in this regard lacks merit in law and the same is therefore discountenanced. The coast is now clear for the determination of this application on the merits.

The crux of this application as may be gleaned from the motion paper are prayers for leave of this Court to file additional grounds of appeal as well as leave of this Court to adduce fresh evidence vide the bundle of documents attached to the affidavit in support of the application and marked Exhibit C. I shall now consider the applicant?s reliefs and arguments of the parties in support or opposition to the application starting with the prayer for leave of this Court to adduce further evidence.

?The applicant sought to adduce fresh evidence not proffered at the trial of the suit that culminated into this appeal, that is, the documents annexed to the affidavit in support of the

application as Exhibit C. This particular prayer was brought pursuant to Order 4 Rule 2 of the Rules of this Court. The applicant is seeking the leave of this Court to rely on fresh evidence to wit; a charge sheet, judgment of a Magistrate Court in Suit No: ME/439C/02 more particularly a document admitted in that case purported to be extra-judicial Statement of the Respondent. The relief under consideration is therefore, one which is seeking for the exercise of the discretion of this Court to admit the extra-judicial statement forming or contained in the judgment of the Magistrate Court in Suit No: ME/439C/02 as evidence in this appeal.

The applicant contended that the evidence sought to be adduced was not in existence during the trial in this suit at the Lower Court. The applicant relied on Order 4 Rule 2 of the Rules of this Court and maintained that this Court has the discretion to grant or refuse the application. The learned counsel for the applicant referred the Court to the decision of this Court in the case ofMabogunje v. Odutola (2008) All FWLR (Pt. 412) 1182. The learned counsel further referred this Court to the facts stated in the applicant?s

affidavit as well as the Supreme Court?s decision in the case ofObasi v. Onwuka (1987) 3 NWLR (Pt. 61)364 at 370 wherein the Court, per Oputa, JSC (of blessed memory) stated the principles guiding the acceptance of fresh evidence in civil cases on appeal. Learned counsel for the applicant urged this Court to grant leave to the applicant to rely on Exhibit C as fresh evidence in this appeal.

This Court has the inherent powers to accept further evidence on appeal upon the conditions stated by the rules of Court as interpreted by the appellate Courts. The learned counsel for the respondent opposed the application for leave to adduce further evidence on the grounds that the applicant was bound by her pleadings at the Lower Court upon which the Court properly evaluated the evidence before it. The respondent?s counsel submitted that the judgment of the Magistrates? Court or the extra judicial statement sought to be adduced by the applicant did not form part of the records of appeal before this Court. He referred us to the case of Okwejiminor V. Gbakeji (2008) 17 WRN 1 on the rules of pleadings. The learned counsel further referred to Order 4 Rule 2

of the Rules of this Court. He concluded and stated that the applicant ought not to be allowed by this Court to change its entire case on appeal and that it is not the duty of the appellate Court to evaluate fresh evidence which the trial Court had not considered before reaching a decision on the suit. He cited the case of Ayanwale v. Atanda (1988) 1 SCNJ 1 @ 2. He finally urged the Court to dismiss the applicant?s application.
I agree with the learned counsel for the respondent that as a general rule, an appellate Court will not allow a party to restructure its case on appeal. See Adetoun Oladeji (Nig.) v. Nigerian Breweries Plc. (2007) ALL FWLR (Pt. 357) 837@ 858.

?Now to the second leg of the application, which is centered on the relief for an order granting leave of this Court to the applicant to file additional grounds of appeal which was also opposed by the respondent in its counter affidavit and further counter affidavit, but to which the respondent?s learned counsel failed to proffer any legal submission in her written address. The applicant?s counsel submitted, that this Court has discretionary powers to allow an application seeking

leave to file additional grounds of appeal when necessary. He referred this Court to the cases of :Chinwo v. Chinwo (2012) All FWLR (Pt. 656) 598 and Integrated Data Service v. Adewumi (2006) All FWLR (Pt. 292) 154. He therefore prayed the Court to grant leave to the applicant to file additional grounds of appeal as contained in Exhibit B annexed to the affidavit in support of the application. He equally urged the Court to deem the said additional grounds of appeal and the document sought to be adduced (Exhibit C) as properly filed and served.

In the determination of this application, I shall adopt the lone issue formulated by the applicant which encapsulates all the reliefs sought by the applicant. Learned counsel for the respondent on his part, failed to set out any issue for determination in his written address in opposition to the application. The applicant has asked this Court to determine:
?WHETHER THIS IS AN APPLICATION IN WHICH THE HONOURABLE COURT WILL EXERCISE ITS DISCRETIONARY POWERS IN FAVOUR OF THE APPELLANT/APPLICANT GRANTING SAME?

Put differently, whether this Court will exercise its discretion in favour of the applicant?s

application.

The relevant provision of the rules of this Court applicable to and or with regard to acceptance of fresh evidence in this Court is Order 4 Rule 2 of the Court of Appeal Rules, 2011.The said Order grants this Court, the inherent jurisdiction to allow an applicant, to adduce further evidence in a suit upon fulfilling the conditions stated therein. The relevant provision of the Court of Appeal Rules is hereunder reproduced:
?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?. (Underlining mine)
?Suffice it to say, that the underlined part of the excerpt from the provision is directly applicable to this present application. The general rules that this Court will not allow a party to improve its case on appeal by

adducing further evidence in the course of the appeal, which he could have reasonably adduced during trial of the case at the Lower Court except on special circumstances.
The implication of the latter part of the aforementioned provision of the Rules is that in the circumstance of an appeal on a matter decided after hearing of the whole case, the only further evidence that may be allowed by this Court is the evidence on issues which occurs subsequent to completion of hearing in the suit. See the decision of the Supreme Court in the case of Okpanum v. SGE (Nig.) Ltd.(1998) 7 NWLR (Pt. 559) 537 at 552- 553.This narrows the question in contention to whether the relevant evidence sought to be adduced by the applicant in this appeal was in existence after the conclusion of hearing in this suit at the Lower Court thereby creating a special ground for the acceptance of the document in evidence.
?This Court therefore has a duty at this juncture to determine whether the applicant has established the special circumstance to warrant exercise of its discretionary power in favour of the application for the leave of this Court to adduce further evidence in this suit and more

particularly whether this evidence sought to be adduced as fresh evidence occurred consequent upon the conclusion of hearing at the Lower Court? The principle which the appellate Court would take into consideration in the resolution of the above question has been firmly established by the Supreme Court and this Court, to wit:
1. The evidence sought to be adduced must be such as could not have been, with reasonable diligence obtained for use at the trial, or matters which have occurred after judgment in the trial Court.
2. The evidence to be adduced should be such as if admitted, will have an important, not necessarily crucial, effect on the whole case.
3. The evidence must be apparently credible in the sense that it is capable of being believed and need not be incontrovertible.
See the case of Okparum v. SGE (Nig.) Ltd. (supra).This Court in the case of British Airways Plc. v. Amadi (2012) 2NWLR (Pt. 1283) P. 21@ 40, 41 and 42, Per Nwodo JCA, (of blessed memory) while interpreting the provisions of Order 4 Rule 2 of the Court of Appeal Rules, 2007 which is in pari materia with Order 4 Rule 2 of the Court of Appeal Rules, 2011 made an elucidating and succinct

pronouncements which are apt to this present application. This Court stated in that case as follows:
?This provision is clear and unequivocal and in construction, should be ascribed its ordinary and grammatical meaning. Under the aforesaid provision as set out above and relied upon by the Applicant, for an application for leave to call further evidence on appeal to succeed, the applicant will have to satisfy this Court:
i. That the further evidence sought to be admitted occurred after the date of the trial or hearing.
ii. That special grounds exist on which Court will exercise its jurisdiction.
..The power conferred on this Court under Order 4 calls for the exercise of the Court?s discretion which must be exercised judiciously. Being a discretionary power, each case is determined in line with the facts peculiar to the case. The Courts in an effort to exercise their discretion judicially and judiciously have set down certain principles to guide the appellate Court in deciding whether to grant leave to call further evidence or not. The principles were enunciated in the case of Asaboro v. Aruwaji (1971) 1 All NLR (Pt. 1) 140SC per Coker, JSC where

his Lordship set out the principles to consider where further evidence on appeal is sought. They are as follows:
I. The evidence sought to be adduced must be such that could not have been with reasonable diligence obtained for the use at the trial.
II. The evidence should be such that if admitted would have an important, not necessarily crucial effect on the whole case; and,
III. The evidence must be such that is apparently credible in the sense that is capable of being believed and it need not be incontrovertible.
?These guiding principles have turned out to be mandatory in nature as the 3 conditions which the Courts have always taken into consideration in the judicious exercise of powers to grant leave to adduce new evidence must co-exist before a Court will consider granting the application to call fresh evidence. The Court must adhere strictly to these conditions.?Per Nwodo, JCA (of blessed memory).

?Flowing from the foregoing, has the applicant established these three (3) conditions to the satisfaction of this Court in the instant case? The main document sought to be adduced by the applicant, as I earlier indicated, is the extra judicial statement

of the respondent tendered as evidence in another suit before an Enugu Magistrate?s Court. The applicant is therefore seeking the leave of this Court to tender the judgment of the Magistrate?s Court in Suit No: ME/439C/02 between the Commissioner of Police against the respondent which contains the said statement. On the first condition, the applicant contend that the judgment of the Magistrate?s Court sought to be adduced as further evidence was delivered on 2nd July, 2008 a period of one year and six months after the decision leading to the present appeal was delivered by the Lower Court on 22nd January, 2007. The applicant by seeking to tender the judgment of the Magistrate?s Court in this appeal is making an attempt to create the impression that the relevant document sought to be adduced, the extra judicial statement, occurred after the conclusion of this suit at the Lower Court. More particularly, the judgment of the Magistrate?s Court is not directly relevant to the present appeal as the subject matter of the suit at the Magistrate?s Court, as can be gleaned from the totality of Exhibit C, is the destruction of a

property situated and known at No. OP/59A owned by the applicant herein. On the other hand, the subject matter of the suit initiated by the respondent at the Lower Court which gave rise to this pending appeal is the ownership and destruction of the property situate and known as No: OP/59B. The entire judgment of the Magistrate?s Court in Suit No: ME/439C/02 is irrelevant to the facts of the case decided by the Lower Court.

?It is trite law that the evidence sought to be adduced as fresh evidence must be apparently credible in the sense that it is capable of being believed and need not be incontrovertible. Hence, would it be in the interest of justice for this Court to rely on the judgment of the Magistrate Court where the respondent has clearly filed a notice of appeal in respect thereof as incontrovertible? Reliance on the judgment of the Magistrate?s Court which is a subject of an appeal would amount to speculation on the success or otherwise with regard to the appeal lodged by the respondent against the decision, particularly, should this Court rely on the judgment sought to be adduced as fresh evidence and the respondent succeeds in its appeal

against the judgment; this Court would not be in a position to reverse the decision, that may have been given in respect of the judgment. Prayer 2 seeking to rely on the judgment of the Magistrate?s Court is hereby refused and it is accordingly dismissed.

?The only document that shares or harbours any bearing with the decision of the Lower Court is the extra judicial statement. I am of the firm view that the extra judicial statement of the respondent is not such that could not have been reasonably and diligently obtained for use at the trial. The extra judicial statement is not evidence which emanated or occurred after the completion of the trial of this case at the Lower Court, which according to the provision of the Rules of this Court is a condition precedent to the admissibility of fresh evidence. The extra judicial statement was made on 22nd October, 2002 prior to the commencement of this suit at the Lower Court, sometimes in 2003. The extra judicial statement of the respondent (being a public document) could have reasonably been obtained and tendered by the applicant at the trial of this case at the Lower Court, where at trial commenced on 20th day

of October, 2004. The applicant failed to show, at the minimum, that he applied for the extra judicial statement made on 22nd October, 2002 but was denied the issuance of certified true copies of this document. The applicant?s submission that the documents were not available at the time of hearing in the suit is unsubstantiated and cannot stand as special ground in the circumstance of this application. In the case of British Airways Plc v. Amadi (supra), the Court held thus:
?It is clear to me that the additional evidence sought to be adduced could have been obtained for use at the trial with reasonable diligence. I also have no doubt that if the evidence sought to be adduced had been produced at the trial, it may have a credible effect ? the Appellant/Applicant has not shown any special ground why further evidence should be allowed. He has not established the existence of the three conditions stipulated as guidelines. It is when the three conditions co-exist that an Applicant would earn the discretion of the Court in his favour. The Appellant/Applicant cannot earn the discretion of the Court in his favour having failed to show the three

(3)conditions prescribed in Asaboro v. Aruwaji (supra) exist thus raising special circumstance?

The afore-quoted decision applies to this present application with full force. Exhibit C therefore fails to scale through the first mandatory condition for the exercise of the discretion of this Court in favour of the relief for leave to adduce further evidence in this appeal. In this circumstance further consideration of the second and third conditions contained in Order 4 Rules 2 of the Rules of this Court would amount to an academic exercise which must be avoided to save precious judicial time. To grant the applicant?s relief will amount to allowing the applicant to reshape or resharpen a case which has already been decided on the merit or raise fresh point on appeal without establishing any special circumstance for the exercise of such discretion in his favour. This Court will not lend its weight to such a move. See the case of Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94 ; Owata v. Anyigor (1993) 2 NWLR (Pt. 276) 280 at 393. Thus, applicant?s prayer 2 is hereby refused.

?With regard to relief (1) on the motion paper seeking for the leave of

this Court to file additional grounds of appeal in this appeal matter, the applicant annexed Exhibits A (the notice of appeal) and B (proposed additional grounds of appeal) for the consideration of this Court. He urged the Court to grant her application for leave to file additional grounds of appeal contained in the Exhibit B. By implication, the applicant is seeking the leave of the Court to amend her notice of appeal dated 1st March, 2007 but filed on 11th April, 2007.

further delay this appeal. Amendment of a notice of appeal can be done at any time prior to the delivery of judgment in the appeal, if justice of the case permits upon a thorough consideration of the competing right of the adverse party. The respondent equally opposed the applicant?s application for leave to file additional grounds of appeal on the ground that similar applications have been filed by the applicant but were struck out by this Court. The respondent?s opposition to the relief under consideration is misplaced and therefore discountenanced.

?Unfortunately, there is no fact upon which this Court may exercise its discretion in favour of this application or the applicant. The shred of evidence in support of the application for leave of this Court to file additional grounds of appeal fell within the offending paragraphs 4 and 5 of the affidavit in support of the application as well as paragraph 13 of the further affidavit which have earlier been struck out in this application/matter, thereby leaving this Court with no cogent fact to exercise its discretion judicially and judiciously. The applicant though has a right to seek the leave of this

Court to file additional grounds of appeal in this case but cannot achieve the objective with this present application.

Before I conclude on this point, I wish to emphasize that a legal practitioner has bouden duty under the Rules of Professional Conduct which is akin to religious rites, to be diligent in the conduct of his client?s case. That will not only protect the interest of the client but will aid the course of justice in the resolution of the question of law.

The Court is always faced with the onerous task to decide all cases according to the law and facts of the case. No matter the feet of magnanimity of the Court in the dispensation of justice, the Court?s duty is to adjudicate over matters before it as contained in the Court processes placed before the Court. The relief 1 of the application is also refused and by extension relief (3) must also fail and it is hereby refused.

?In essence the singular issue formulated for determination in this suit is resolved in the negative and against the application and applicant herein. Thus, the application dated the 5th day of November, 2012 but filed on the 6th day of February, 2013 is hereby

dismissed. No order is made with regard to costs.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the ruling just delivered by my learned brother MASSOUD ABDULRAHMAN OREDOLA JCA. I agree with his Lordship?s view that the prayers in the application are inextricably linked together. I also agree with my learned brother that sufficient and good cause had not been given by the applicant to enable this Court exercise its discretion in favour of the applicant to grant the prayer to adduce fresh evidence on appeal. The guiding principles for the exercise of the discretion as set out in Asaboro v. Aruwaji (1971) 1 ALL NLR (Pt.1) 140 (SC) per Coker JSC have not been met. The application dated 5/11/12 filed on 6/2/13 is hereby dismissed for want for merit. I abide by the order as to costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have had a preview of the ruling just delivered by my learned brother HON. JUSTICE MASSOUD ABDULRAHMAN OREDOLA, JCA. I agree with the reasons therein advanced to arrive at the conclusion that the appellant has not shown any special ground to warrant an exercise of this Court?s power to receive further evidence in this appeal in

his favour. I too dismiss the application. I abide by the consequential orders made therein.

Appearances

G. A. Ekoh, Esq.For Appellant

AND

Respondent UnrepresentedFor Respondent