OPADOKUN & ANOR v. DARA & ANOR (2020)

OPADOKUN & ANOR v. DARA & ANOR

(2020)LCN/15184(CA)

In The Court Of Appeal

(ILORIN JUDICIAL DIVISION)

On Friday, February 21, 2020

CA/IL/47M/2019(R)

Before Our Lordships:

Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal

Ibrahim Shata Bdliya Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Between

1. SOLA OPADOKUN 2. GANIYU ADEBAYO APPELANT(S)

And

CHIEF SAMUEL O. DARA (For Himself And On Behalf Of Ipee Community) 2. COMMISSIONER OF POLICE KWARA STATE COMMAND RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS AT THE DISCRETION OF THE COURT TO GRANT AN APPLICATION TO ADDUCE FURTHER OR ADDITIONAL EVIDENCE ON APPEAL

PRINCIPLES TO GUIDE THE COURT IN DETERMINING WHETHER TO GRANT LEAVE TO ADDCUE FRESH OR FURTHER EVIDENCE

As rightly submitted by learned counsel for both parties, there are settled principles, which guide the Court in determining whether to grant leave to adduce fresh or further evidence. They are, inter alia, as follows:
(a) The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial, or are matters which have occurred after judgment in the trial Court;
(b) In respect of other evidence other than in (a) above, as for instance, in respect of an appeal from a judgment after a hearing on the merits, the Court will admit such fresh evidence only on special grounds;
(c) The evidence should be such as if admitted, it would have an important, not necessarily crucial effect on the whole case; and,
(d) The evidence must be such as apparently credible in the case sense that it is capable of being believed and it need not be incontrovertible.
See Asaboro vs Aruwaji (1974) 4 SC (reprint) 87 @ 90-91; Akanbi vs Alao (1989) 3 NWLR Pt. 108 P.118 @ 137-138, Pragaraph H-B and Esangbedo vs The State (1989) 4 NWLR Pt. 113 P.57 @ 67.” PER BDLIYA, J.C.A.

WHETHER OR NOT A PARTY WHO HAS BEEN IN CUSTODY OF A DOCUMENT BUT NEGLECTED TO TENDER SAME AT TRIAL IS ALLOWED TO AMBUSH THE OTHER PARTY AFTER TRIAL OR ON APPEAL
Furthermore, in Babalola vs Suoclum (2010) All FWLR Pt. 702 P.702 @ 743, this Court Per Agube JCA espoused that Courts frown at a party who has been in custody of a document but neglected to tender same at the trial only to ambush the other party after the trial or on appeal, to bring an application for leave to adduce same evidence which ought to have been tendered at the appropriate time during the trial.
The law is settled as to which type of evidence, how and when the Court can admit as additional or further evidences after the hearing of the suit at the trial Court or on appeal. The only evidence which can be admitted after the hearing of the case must be one which was not in existence at the time of the trial or was not found having diligently sought for it without any success. In the extant application before this Court, the bundle of documents, that is, Exh A-G attached to the proposed further and better affidavit by the applicants was in existence between 1978 and 2014, whereas, the suit before the lower Court instituted in 2018, such evidence cannot be admitted under Order 4 Rule 2 of Court of Appeal Rules, 2016. PER BDLIYA, J.C.A.

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): This application (Motion on Notice) dated the 21st and filed on the 22nd day of October, 2019, during the pendency of Appeal No. CA/IL/47/2019; wherein the applicants sought for the following reliefs:
1. “LEAVE of Court to adduce further evidence by filing a further and better affidavit.
2. LEAVE of Court to argue the additional evidence in line with the order.
3. AN ORDER OF THIS HONOURABLE COURT deeming the 1st and 2nd respondents’ attached Further and Better Affidavit and brief of Argument already filed and served as properly filed and served.
4. AND FOR SUCH ORDERS as this Honourable Court may deem fit to make in the circumstance(s).”

The application was predicated on the following grounds:
GROUNDS FOR THE APPLICATION:
1. The appellant has raised new issues on jurisdiction and locus standi of the applicants before this Court on appeal.
2. There are a lot of documentary evidences which have become necessary by the issues three and three and four just raised at the appeal stage.
3. The facts where within the knowledge of the parties.
4. The new facts to be adduced have just become relevant by the issues just raised on appeal and the arguments made thereon.
5. That the Court is likely to be misled if the applicants are denied adducing further evidence.
6. The 1st and 2nd respondents’ brief of Argument have been filed and served on the parties.”

The application is supported by an eight (8) paragraphed affidavit and a further and better affidavit of fourteen (14) paragraphs. A counter affidavit has been filed. The relevant and material depositions contained in the aforesaid affidavits would be referred to in course of the ruling where necessary. The High Court of justice, Kwara State, (the lower Court) delivered judgment in suit No. kws/251/2018, on the 6th day of December, 2018. The appellant was aggrieved by the judgment of the lower Court, hence he filed Notice of Appeal to this Court on the 28th day of February, 2019 containing seven (7) grounds of appeal, three (3) of which are incompetent, having not obtained leave of the Court to do so. Upon the discovery of the incompetent grounds of appeal, an application was filed wherein the leave of Court was sought to file the aforementioned grounds of appeal in order to adduce further evidence on appeal which were not available during the proceedings at the lower Court. On the 27th of June, 2019, the application was granted. On the 17th of September, 2019, an application was again filed to amend the Notice of Appeal and to file brief of argument incorporating arguments on the new issues raised in the Amended Notice of appeal which was also granted on the 19th of September, 2019. The applicant, in consultation with his counsel, filed an application for leave to adduce further evidence to establish that appellant intended to mislead this Court by making available documents of over 30 years showing the ‘locus standi’ of the applicant in the matter in dispute before the lower Court.

Upon the hearing of the appeal on the 4th of December 2019, this Court ordered for written addresses to be filed by the parties, the application before the Court being contentious. The appellant’s written address was filed on the 11th of December, 2019, wherein, at page 2 thereof, a sole issue for determination has been crafted by the applicant. The respondent’s written address was filed on the 10th of December, 2019, containing a sole issue for determination on page 1 thereof. The issue for determination in the applications’ and the respondent’s written addresses are hereunder amalgamated and compressed into a sole issue, thus:
Whether, having regard to the provisions of Order 4 Rule 2 of the Court of Appeal Rules, 2016, and the depositions contained in the affidavit and the counter-affidavit, the application of the applicants for leave to adduce further evidence by filing a further and better affidavit ought to granted by this Court?

Prince J.O Ijadola Esq, of learned counsel to the applicants, pointed out that an application of this nature (as the extant one) is not time bound like compilation of supplementary record, which if granted, could form part of the transmitted record of appeal, upon which briefs of argument are filed and argued. Learned counsel then submitted that by virtue of Sections 4, 5 and 6 of the Evidence Act, only relevant facts are deposed to or averred at the trial Court. It was therefore contended that, by issue 4 raised and Exhibit ‘A’ attached to the application, it is clear that the appellant is just trying to mislead this Court on the assertion that the applicants have no locus standi to be parties in the appeal before this Court.

Learned counsel referred to Order 4 Rule 2 of the Court of Appeal Rules, 2016, and submitted that the condition to be satisfied in order to grant an application for leave to adduce further evidence on appeal, is that such evidence must be related to matters which have occurred after the date of the hearing at the trial Court or upon special circumstances disclosed by the applicant. It is the learned counsel’s submission that the totality of the evidence, particularly the documentary evidence, the Exhibits to be adduced at this stage, for the first time on appeal, due to the raising of the issue of locus standi, cannot be proper and legally possible. That the raising of the issue of locus standi, and the application to adduce further evidence on same is only tantamount to a hide and seek game which ought not be allowed by this Court. That the intendment of this application is to draw the attention of the Court, being misled, which on itself constitutes special circumstances to warrant the grant of the leave sought to adduce further evidence in the appeal before the Court in line with the provisions of Order 4 Rule 2 of the Court of Appeal Rules, 2016. This Court has been urged to so hold. Learned counsel did urge that the sole issue be resolved in favour of the applicants.

Adewole Thomas Olatunde Esq, of learned counsel to the appellant/respondent, drew the attention of this Court to the counter-affidavit filed on the 21st day of November, 2019, opposing the application and did urge that same be relied on in the consideration of this application. It is the learned counsel’s contention that by the provisions of Order 4 Rule 2 of the Court of Appeal Rules, 2016, that facts deposed to in the affidavit and the Counter-affidavit, it is not just and fair to grant the application. It is further submitted that the provisions of Order 4 Rule 2 of the said Rules of Court, 2016, are clear and unambiguous as to its import and purport and when further evidence can be adduced.

On when further or additional evidence can be adduced on appeal under Order 4 Rule 2 of the Rules of Court, 2016, counsel pointed out that such must be fresh evidence on matters which occurred after the trial or the hearing at the trial Court. That the bundles of documents sought to be relied on which have been exhibited or attached to the proposed further and better affidavit were made between 1978 and 2014, therefore cannot be on matters which accrued after the date of the trial or hearing as envisaged by Order 4 Rule 2 of the Rules, 2016. For instance, learned counsel pointed out, Exhibit ‘G’ a copy of motion on Notice filed before the High Court of Justice, Offa Division on 25/11/2014, which is 4 years preceding the date of filing of the suit before the lower Court, which now culminated to this appeal in which the application to adduce further evidence is being sought. It is learned counsel’s submission that the documents sought to be used as further or additional evidence, which were made between 1978 and 2014 and remained in the custody of the applicants which they failed to tender at the trial at the lower Court cannot be adduced as further evidence under Order 4 Rule 2 of Court of Appeal, Rules, 2016.

On the contention that further evidence can be adduced on appeal under special circumstances, learned counsel did submit that the depositions contained in the affidavit in support of the application cannot support the admission of such evidence under Order 4 Rule 2 of Rules of Court, 2016. Learned Counsel referred to paragraphs 3, 4, and 5 of the affidavit in support of the application and submitted that the ruling therein cannot support the existence of special circumstances to warrant the admission of further evidence.

Furthermore, it has been adumbrated that the depositions contained in the affidavit in support of the application have been controverted or debunked by the depositions in paragraphs 7 to 23 of the counter-affidavit. That there was no further and better affidavit filed by the applicants therefore the depositions in the counter-affidavit are deemed to be true and the Court can rely on same to take a decision. As to the exercise of discretion in considering an application for leave to adduce further evidence on appeal, it has been submitted that such exercise must be judicial and judicious. That further or additional evidence can only be admitted under three (3) conditions as espoused in the case of Okoro vs Egbuoh (2006) All FWLR pt. 332 P. 1569 @ 143. In conclusion, learned counsel did urge that the application be refused for being unmeritorious, and the sole Issue be resolved against the applicants.

Order 4 Rule 2 of the Court of Appeal Rules, 2016, provides thus:
“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 matter which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.”
The provisions of Order 4 Rule 2 of the Court of Appeal Rules, 2016, are clear and unambiguous as to what, when and how can be further evidence and when such evidence can be adduced after the hearing of a suit or appeal. In the case of Idiok v. State (2006) 12 NWLR Pt. 993 P. 1 @ 28, this Court when considering an application for leave to adduce additional or further evidence, after the hearing by the Court, held that three conditions must be satisfied or fulfilled in order to grant an application to adduced further additional evidence on appeal. Omokiri J.C.A. (of blessed memory) held thus:
“Even if this Court is well disposed to admit the said statements as additional evidence on appeal the prosecution witnesses cannot now be cross-examined unless this Court assumes the whole role of the Court of trial. Moreover, admissions of further evidence in this Court is not allowed as a number of course. It is only admissible on settled principles which were clearly stated in Esangbedo vs The State (supra). First it must be shown that the evidence could not have been obtained and with reasonable diligence used at the trial Court. Secondly, the Court must be satisfied that the evidence is such that if given, it would probably have an important influence on the result of the case, though it need not be decisive. Thirdly, the evidence must be apparently credible, though it need not be incontrovertible.”
The import and purport of the provisions of Order 4 Rule 2 of the Court of Appeal Rules, 2016, is that the further additional evidence to be admitted must be one that was not available at the trial by the Court, or which must have occurred or was available after the hearing by the Court. In the affidavit filed by the 2nd applicant in support of the application for leave to adduce additional evidence deposed to facts as follows in paragraphs 2 to 7 thereof:
2. “That on the 30th of September, 2019 myself and the first respondent were in our Lawyers’ Office to discussing the appeal and we were told that the appellant has raised new issues on jurisdiction of the trial Court and our locus standi to seek the protection of our lives and properties.
3. That in the cause of discussions, the 1st respondent informed our lawyer of the gamut of documentary evidence which were not adduced at the trial Court as they were not relevant to the issues raised at that time but have become necessary by the issues three and four just raised at the appeal stage and the arguments made thereon.
4. That the true facts are within the knowledge of the parties but unknown to the Court.
5. That the Court is likely to be misled if the applicants are denied an opportunity to adduce further evidence.
6. That the proposed further affidavit is attached as exhibit A.
7. That our brief of Argument have been filed and served on the parties.”

Exhibit A attached to the proposed further and better affidavit contained seven 7 documents marked as Exhibits A, B,E,F and G which are documents made between 1978 and 2014. The suit before the lower Court leading to this appeal was filed at the lower Court on the 9th of July 2018. See pages 5 of the record of appeal. The documents (Exhibit A-G) cannot be said to have been made after the institution of the case before the lower Court. The respondents in paragraph 6 and 16 of the counter-affidavit deposed to facts thus:
“(6.) That I know as a fact that before my application for joinder was filed before the Lower Court, the 1st and 2nd Respondents, (as the Claimants before the Lower Court) were in custody/possession of all the documents now sought to be adduced as fresh evidence on appeal but the 1st and 2nd Respondents/Applicants herein refused or neglected to exhibit or make same available for the consideration of the lower Court while pursuing the case they eventually won.”
“(16) That I know as a fact that the several documents attached/exhibited to the 1st and 2nd Respondents’ further ad better affidavit were available and at the material times in custody of the said Respondents when the case was fought before the Lower Court.”

By the depositions contained in paragraphs 6 and 16 of the counter-affidavit, the documents sought to be admitted in evidence in the proposed further and better affidavit by the applicants were available at the trial before the lower Court. The depositions contained in paragraphs 6 and 16 of the counter-affidavit have not been controverted by the applicants. Same are deemed admitted by the applicants and the Court can rely on same in this application. The adumbration supra is fortified by the exposition of the principles of law in the case of Ajomale vs. Yaduat No 2 (1991) 5 SCNJ P. 178 @ 184 where it was held that facts which could be proved by affidavit and a party deposed to such facts in an affidavit, but the other party neglected to controvert by filing a further and better affidavit, he is bound by the deposed facts. Exhibit A-G, which were made prior to the commencement of the suit before the trial Court, which are now being sought to be admitted as further evidence after the trial, cannot be supported by the provisions of Order 4 Rules 2 of the Court of Appeal Rules, 2016.

The depositions contained in the affidavit in support of the applicant’s application have been controverted or debunked by the depositions in paragraphs 7 to 23 of the counter-affidavit of the respondents. The depositions in paragraphs 7-23 of the counter-affidavit are reproduced hereunder:
(7.) “That before this noble Court in my application to raise and argue fresh issue on locus standi, I did not exhibit or refer to any document outside the ones filed by the Claimants before the lower Court and it is the processes or documents that have been included in the record of appeal transmitted to this Honourable Court.
8. That I know as a fact that it is in ground 7 of the amended notice of appeal filed on 17/9/2019 (and which is the same as ground 7 of the original ground of appeal filed on 28/2/2019) that the issue of locus standi of the 1st and 2nd Respondents was raised.
9. That I know as a fact that it is from the materials placed before the Lower Court by the claimants, who are 1st and 2nd Respondents to this appeal that the issue of their Locus Standi is being challenged.
10. That I know that before the Lower Court, the 1st and 2nd Respondents in this Court had attached a copy of the judgment of Honourable Justice Gbadeyan delivered in Suit No. KWS/36/1982 – S. A. Sayomi and Amos Ibitoye v. HRH Oba Mustapha Olawore Olanipekun Ariwajoye II, (the proprietor of Okin High School), Alhaji H.T. Adeniyi (proprietor petrol filling station) as EXHIBIT C.
11. That I know as a fact that the said Exhibit C is at pages 15 – 25 of the record of appeal.
12. That I know as a fact that when my motion for joinder was filed and served on the Claimants, now 1st and 2nd Respondents in this appeal, a counter affidavit (found at pages 98 – 98 of the record of appeal) was filed and the same judgment of Gbadeyan, J was exhibited as Exhibit C the said exhibit C, is at Pages 107 – 116 of the record of appeal.
13. That I know as a fact that it is in the affidavit filed by the Claimants before the Lower Court that they referred to themselves as being from Ojomu and Asanlu families, Offa, while in the said Exhibit C (Pages 15 -25 or 107 – 116 of the record) the land forming the subject matter of the case now on appeal was said to have been originally owned by Atagisoro family Offa who gave it to HRH Oba Mustapha Olawore Olanipekun Ariwajoye II.
14. That to the best of my knowledge and the facts I know, none of the said Claimants (1st and 2nd Respondents) share no relationship or affinity with either Atagisoro family, Offa or the family of the late Oba Mustapha Olawore Olanipelu Ariwajoye II.
15. That I know as a fact that the issue of the claimants’ suit before the Lower Court being statute barred was raised before the Lower Court, the complaint on the issue is in ground 6 of the amended notice of appeal, it is not part of the fresh issue I sought and got leave to be argued before this noble Court.
16. That I know as a fact that the several documents attached/exhibited to the 1st and 2nd Respondents’ further ad better affidavit were available and at the material times in custody of the said Respondents when the case was fought before the Lower Court.
17. That I know as a fact that the 1st and 2nd Respondents have not filed any cross – appeal before this noble Court to complain against any of the judgment.
18. That I know that the grant to the application will do irreparable damage to my appeal as there is no way I can appropriately reply to the issues raised in the proposed further and better affidavit and the exhibits attached thereto.
19. That I know as a fact that ground 6 of the amended ground of appeal is not on the locus standi and issue 3 (three) argued in the Appellant’s brief of argument is not on claimants’ locus standi.
20. That I know as a fact that none of the documents attached to the proposed further affidavit are on the issue of the suit of the Claimants further affidavit are on the issue of the suit of the Claimants (1st and 2nd Respondents) being statute barred or on the locus standi of the Claimants.
21. That in response to paragraph 7 of the affidavit in support of the application, I know as a fact that the Appellant’s Brief of Argument filed before this Honourable Court was served on the 1st and 2nd Respondents personally in my presence on 20/5/2019.

That I know as a fact that no 1st and 2nd Respondents’ brief of argument was ever filed and served on the Appellant’s counsel within 30 days of the service of the Appellant’s brief of argument on the 1st and 2nd Respondents.
23. That I know that even after the filing and service of the Amended Appellant’s Brief of Arguments on the Respondents, no respondent’s brief has been properly filed or served on my counsel, (the Appellant’s counsel) within 30 days of service of the said Appellant’s brief.”

The granting of an application to adduce further or additional evidence on appeal is at the discretion of the Court. See Williams vs Adold/stamm International Nig Ltd (2017) All FWLR Pt. 879 P.744 @ 745, wherein it was held that to grant leave to adduce further/additional evidence, either at the trial or appellate Court, certain conditions must be satisfied which are thus as propounded by the Apex Court, Per Kekere-Ekun JSC on page 744-745
“It is evident that an application brought pursuant to Order 2, Rule 12 of the Rules of this Court is not one that is granted as a matter of course. It calls for the exercise of the Court’s discretion, which must be exercised judicially and judiciously. As rightly submitted by learned counsel for both parties, there are settled principles, which guide the Court in determining whether to grant leave to adduce fresh or further evidence. They are, inter alia, as follows:
(a) The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial, or are matters which have occurred after judgment in the trial Court;
(b) In respect of other evidence other than in (a) above, as for instance, in respect of an appeal from a judgment after a hearing on the merits, the Court will admit such fresh evidence only on special grounds;
(c) The evidence should be such as if admitted, it would have an important, not necessarily crucial effect on the whole case; and,
(d) The evidence must be such as apparently credible in the case sense that it is capable of being believed and it need not be incontrovertible.
See Asaboro vs Aruwaji (1974) 4 SC (reprint) 87 @ 90-91; Akanbi vs Alao (1989) 3 NWLR Pt. 108 P.118 @ 137-138, Pragaraph H-B and Esangbedo vs The State (1989) 4 NWLR Pt. 113 P.57 @ 67.”
Furthermore, in Babalola vs Suoclum (2010) All FWLR Pt. 702 P.702 @ 743, this Court Per Agube JCA espoused that Courts frown at a party who has been in custody of a document but neglected to tender same at the trial only to ambush the other party after the trial or on appeal, to bring an application for leave to adduce same evidence which ought to have been tendered at the appropriate time during the trial.
The law is settled as to which type of evidence, how and when the Court can admit as additional or further evidences after the hearing of the suit at the trial Court or on appeal. The only evidence which can be admitted after the hearing of the case must be one which was not in existence at the time of the trial or was not found having diligently sought for it without any success. In the extant application before this Court, the bundle of documents, that is, Exh A-G attached to the proposed further and better affidavit by the applicants was in existence between 1978 and 2014, whereas, the suit before the lower Court instituted in 2018, such evidence cannot be admitted under Order 4 Rule 2 of Court of Appeal Rules, 2016.

In the end result, I hold that the application of the applicants for leave to adduce further or additional evidence as per the proposed further or and better affidavit, cannot be granted. Same is dismissed for lacking in merit. I make no order as to costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I agree

HAMMA AKAWU BARKA, J.C.A.: I had the privilege of reading the ruling of my learned brother Ibrahim Shata Bdliya, JCA just delivered in draft.

The sole question agitated upon was whether in view of the stipulations of Order 4 Rule 2 of the Court of Appeal Rule 2016, appellant’s application for leave to adduce further evidence can be positively considered.

Having also read the arguments of counsel and the record of proceedings, I am satisfied that my learned brother dealt with the issue admirably which I adopt as mine. I see no merit in the application, thus joining my brother in dismissing same.

Appearances:

Adewale Olatunde, Esq. with him are A.B Abdulwahab, Esq. and Josephine Friday Otun, Esq. For Appellant(s)

Prince J.O Ijaodola Esq. For Respondent(s)