REGISTERED TRUSTEES OF THE CHERUBIM & SERAPHIM MOVEMENT v. ALHAJA OMOLARA IBRAHIM & ORS
(2019)LCN/13242(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/IL/71/2018(R)
RATIO
COURTS: INSTANCES WHERE A COURT CAN EXERCISE DISCRETION IN ALLOWING ADDITIONAL, FRESH AND FURTHER EVIDENCE ON APPEAL
It is common ground therefore that all that this Court needs to do is to establish whether the applicant is entitled to its discretion in allowing the applicant adduce additional, fresh or further evidence on appeal, in line with the provision of the law. Of recent, I had course to rely on the decision of the legal luminary Oputa JSC, in the case of Ukariwo Obasi & Anor V. Eke Onwuka & Ors (1987) LPELR 2152 (SC), also reported as (1987) NWLR (pt. 61) 364, (1987) 7 SC (pt. 1) 233, which still remains the guiding light on the issue. His lordship of the apex Court had this to say on the issue:
In civil cases the Court will permit fresh evidence in furtherance of justice under the following circumstances:
1. Where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial.
2. Where the fresh evidence is such that if admitted would have an importance, but not necessarily crucial effect on the whole case.
3. Where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed. It need not necessarily be incontrovertible. See also the case ofAmaechi V. INEC (2008) 5 NWLR (pt. 1080) 227, Onwubuariri & Ors V. Igboasoyi & Ors (2011) 3 NWLR 357. Onnoghen JSC (as he then was) relying on the case of Owata V. Anyigor
9
(1993) 2 NWLR (pt. 276) 380, reiterated the three conditions set out by Oputa JSC in the case of Onwuka V. Obasi (supra), adding that:
d. If the evidence sought to be adduced could have influenced the judgment of the lower Court in favor of the applicant if it had been available at the trial Court, and;
e. The evidence must be material and weighty even if not conclusive.
It is now established that in exercising its discretion whether to grant the application or not, the Court must see to it that in the con of the case before it, justice is done, founded upon the facts and circumstances presented to the Court. See, Akingbola V. FRN (2018) 14 NWLR (pt. 1640) 395 @ 416.PER HAMMA AKAWU BARKA, J.C.A.
APPEAL: FRESH EVIDENCE: INSTANCES WHERE THE COURT OF APPEAL WILL ALLOW FRESH EVIDENCE
As earlier stated, though the general rule is that no further evidence shall be received on appeal other than evidence of facts or matters that had occurred after the hearing of the case: Ilorin South Local Government Area V. Afolabi (2002) LPELR 10338 (CA), settled principles have been evolved by the Courts pursuant to Order 4 Rule 2 of the rules of Court, where leave to adduce additional evidence may be granted by the Court. See Ilorin South Local Government Area V. Afolabi (supra).PER HAMMA AKAWU BARKA, J.C.A.
APPEAL: EVIDENCE IN APPEAL: WHERE A PIECE OF EVIDENCE IS NOT IN EXISTENCE BEFORE OR DURING TRIAL, IF MATERIAL, MAY ADMIT IT ON APPLICATION
Thus where a piece of evidence is not in existence before or during trial, the Court where satisfied that the evidence is material, may admit such evidence on application. In the same vein, where the evidence was in existence before or during the trial the party seeking to adduce the further evidence may do so upon satisfying certain principles earlier stated in the judgment. See also Esangbedo V. The State (1989) 4 NWLR (pt. 113) 57 @ 63, Amaechi V. INEC (2008) ALL FWLR (pt. 407) 1 @ 171, Asaboro V. Aruwaji (1974) 1 ALL NLR (pt.1) 140.PER HAMMA AKAWU BARKA, J.C.A.
JUSTICE
IBRAHIM MOHAMMED MUSA SAULAWA justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA justice of The Court of Appeal of Nigeria
Between
REGISTERED TRUSTEES OF THE CHERUBIM & SERAPHIM MOVEMENTAppellant(s)
AND
1. ALHAJA OMOLARA IBRAHIM
2. ALFA WAHAB BELLO
(Representing Ile Awe Family, Laduba)
3. ALHAJI JIMOH IYANDA
(Representing Ile Nla Family)
4. ALHAJI ABASS ALAGA
(Representing Ile Alobaloderun Family)Respondent(s)
HAMMA AKAWU BARKA, J.C.A. (Delivering the Lead Ruling): By this application dated the 31st day of December, 2018 and filed on the 5th day of March, 2019 pursuant to Order 4 Rule 2 and Order 6 Rule 1 of the Court of Appeal Rules 2016 and under the inherent jurisdiction of the Court, the appellant/applicant sought for the following reliefs:-
1. An order of the Court allowing the appellant/applicant to call additional and or further evidence in this appeal to wit; tendering the Certified True Copy of the Site plan of the land donated to the appellant by the respondent which formed the basis of the Survey Plan annexed to the Certificate of Occupancy which could not be obtained and tendered at the trail despite serious efforts.
2. And for such further Order(s) as the Court may deem fit to make in the circumstances of this case.
The grounds for the application are four fold namely:-
a. The Judgment of the lower Court, the subject of the Appeal, was delivered by Hon. justice A. O. Akinpelu of the High Court of justice, Ilorin, Kwara State on the 28th day of November, 2017.
b. The appellant/applicants Record of Appeal
1
was deemed properly transmitted to the Court on the 10th day of October, 2018.
c. Upon a study of the Record of Appeal by the appellant/applicants lead counsel, Ayinla Jawondo Salman Esq. it was discovered that the site plan of the land granted to the appellant by the respondents and which formed the basis of the registered Survey Plan used in obtaining the Certificate of Occupancy of the land, in respect of the land, the subject of the claimant/appellants claim was not tendered at the trial.
d. Inquiries from the appellants former counsel and the Bureau of Lands in Ilorin by the appellants new counsel revealed that the original copy of the site plan got lost and a Certified True Copy of the site plan could not be obtained from the Bureau of Lands, Ilorin despite due diligence and strenuous efforts by the appellants former counsel.
In support of the application brought by way of a motion on notice is an affidavit of eleven paragraphs deposed to by Isiaka Abdulrasheed a legal practitioner in the law firm of Jawondo and Co. the legal firm representing the appellant. Hinged on the motion papers in Exhibit 1 being
2
a survey plan showing the property of the Cherubim and Seraphim College and conference retreat center at Laduba town Asa Local Government Area, Kwara State. In opposition to the application are two sets of counter affidavits. First in time is that filed on behalf of the 1st Respondent dated and filed on the 19th day of March, 2019, predicated on 22 paragraphs and deposed to by Ajakaiye Tosin, a legal practitioner in the law office of P.A.O Olorunisola (SAN) and Co. The chamber briefed to handle the appeal representing the 1st respondent, the second counter-affidavit was filed on behalf of the 2nd -4th respondents dated and filed on the 27th of March, 2019. It is borne on 14 paragraphs.
When the application was to be heard on the 2nd day of April, 2019, the application being contentious, this Court pursuant to Order 6 Rule 8(2) of this Court ordered for written addresses.
In obedience to the direction/orders of Court, the appellant/applicant filed a written addresses in support of the motion on notice on the 9th day of April, 2019. The 1st respondents written address in opposition to the application to adduce further evidence was filed on the
3
12th day of April, 2019. The 2nd -4th respondents written address also in opposition to the appellant/applications motion was filed on the 15th day of April, 2019 though dated the 11th day of April, 2019.
On the 16th Day of April, 2019 parties identified their respective processes adopted their written addresses and urged the Court to grant their respective prayers.
The pit of the appellant/applicants motion is for the leave of Court to adduce additional/further evidence on appeal by tendering the Certified True Copy of the site plan of the land allegedly donated to the appellant by the respondent which formed the basis of the survey plan annexed to the Certificate of Occupancy earlier tendered.
Moving his application, the learned counsel for the appellant/applicant places reliance on the provisions of Order 4 Rule 2 of the Rules of this Court, paragraphs 6-10 of the affidavit in support of the application and Exhibit 1 attached thereto, and argued that even though the site plan sought to be tendered was in existence as at the time of trial before the lower Court, the applicant made strenuous and serious diligent efforts to get a
4
copy from the Kwara State Bureau of Lands to no avails.
The learned appellants counsel identified a single issue in the resolution of the application before the Court. It is
Whether or not the applicant is entitled to the discretion of the Court to adduce further evidence on appeal.
It was therefore contended on behalf of the appellant/applicant that lacing regard to the unchallenged and uncontroverted facts deposed to in the affidavit in support of the application, applicant had made a good case worthy of the Courts discretion being exercised in its favor.
Learned counsel made reference to the provision of Order 4 Rule 1 of the Court of Appeal Rules and the holding in the case of Ilorin South Local Government Area V. Afolabi (2002) LPELR-10338 (CA), Amaechi V. INEC (2008) ALL FWLR (pt 407) 1 at 171-172, Uzodinma V. Izunaso (2011) 5 MJSC (pt 1) 27 at 72-73 amongst many others to argue that from the uncontroverted facts particularly in paragraph 7 of the affidavit, where it was averred that applicants were not responsible for not being able to obtain the use of the site plan being sought to be adduced as additional
5
evidence, applicant has satisfied the conditions for the grant of the application. He states that the 1st respondent apart from generally denying the deposition of the applicant in paragraph 4 of the counter-affidavit did not put in issue any of the paragraphs and thereby deemed unchallenged and uncontroverted. He states further that paragraphs 6-11 and 22 of the 1st respondents counter-affidavit are irrelevant to the determination of the application with respect to the counter-affidavit by the 2nd -4th respondent, learned counsel argued that the issue is not that the site plan was not in existence at the Bureau of Lands while the trial lasted, but the inability of the applicant to get a copy.
He urged the Court to discountenance the counter-Affidavits filed and to grant the application.
The learned counsel for the 1st respondent in the written address filed, also identified a single issue to wit,
Whether the applicant has satisfied the requirement of law to warrant granting leave to give further evidence and tendering document at appeal stage.
Learned counsel appraised the paragraphs of the applicants affidavit in support, relied on the
6
cases of Obasi V. Onwuka (1987) 3 NWLR (pt 61) 364 @ 371 and Aroh V. PDP (2014) ALL FWLR (pt 729) 1028, Owata V. Anyigor (1993) 2 NWLR (pt 876) 360 at 393 and urged the Court to refuse the application.
For the 2nd – 4th respondent, a sole issue was equally identified for resolution:
Whether or not the appellant has provided special circumstances to warrant the Courts direction allowing her to adduce further evidence.
While positing that an application of this nature is dependent on special grounds necessitating the grant of the leave, learned counsel submitted that before the discretion of the Court can be exercised in its favour certain conditions laid out in the case of Bartholomew Onwubuariri & 3 Ors V. Isaac Igboasoyi and 4 Ors (2011) 2 SCNJ 72 at 75 must be established. Learned counsel opined that the applicant filed to satisfy the condition for the grant of the application as the provisions of Order 4 Rule 1 of the Rules of Court are not made to aid the indolent or to be used as a repair kit. He urged the Court to refuse the application accordingly.
It is common ground that the only issue/decision of
7
resolution by this Court is whether the discretion of this Court ought to be exercised in favour of granting the applicants application or not.
Now Order 4 Rule 2 of the rules of this Court provides that:
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 judg
