SANTOS ESTATE LIMITED v. ASSOCIATED PROPERTIES & TRUST PLC
(2019)LCN/12563(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of January, 2019
CA/A/511/2014(R)
RATIO
EVIDENCE: TRADITIONAL EVIDENCE
“Traditionally, evidence is adduced at the trial Court and what occurs in the appellate Court is a review of the evaluation of the evidence as carried out by the trial Court. The law is clear as to the fact that a trial Court has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. See Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1; Adamu v. The State (1991) 4 NWLR (Pt. 187) 530; where however the trial Court fails in this duty the appellate Court will intervene in the interest of justice. Where also, a party seeks to introduce a fresh evidence never placed before the trial Court, the appellate Court upon the basic rules may exercise its discretion to allow such.” PER STEPHEN JONAH ADAH, J.C.A.
EVIDENCE: WITHHOLDING EVIDENCE
“‘…It therefore appears to me that failure of the Defendant/Counter Claimant to tender these vital documents in evidence, it would be unfavourable to him. And this amounts to withholding of evidence contrary to Section 149 (d) of the Evidence Act 2011 (as amended) see also Ugochukwu Agballah v. Sullivan Chime, (2008) All FWLR (Pt. 444) page 1480 at 1488 and University of Illorin v. Adeshina (2009) All FWLR (Pt. 487) page 56 at 80. In the instant case, I hold the view that the Defendant/Counter Claimant by withholding the vital evidence of the search report and refusing to tender in evidence the survey plan of Plot 17, Dakwo District, such vital information if produced before the Court would be to the Defendant/Counter unfavourable Claimant and I so hold.'” PER STEPHEN JONAH ADAH, J.C.A.
JUSTICES
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
SANTOS ESTATE LIMITED Appellant(s)
AND
ASSOCIATED PROPERTIES & TRUST PLC Respondent(s)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Lead Ruling):
The appellant in this appeal has brought this application dated and filed on the 25th day of June, 2015 seeking six reliefs. Reliefs 4 and 5 were however withdrawn leaving only reliefs 1, 2, 3 and 6.
The extant reliefs are couched as follows: –
1. An Order granting leave to the appellant/applicant to adduce further evidence on questions of facts by way of admitting and receiving affidavit and documents in evidence in this Appeal which is against part of the judgment of Hon. Justice Z.D. Senchi of the High Court of the Federal Capital Territory Abuja in suit No. FCT/HC/CV/3031/2011 between ASSOCIATED PROPERTIES and TRUST PLC vs SANTOS ESTATE LTD which judgment was delivered on the 5th of May, 2014.
2. An Order deeming the said affidavit evidence Exhibit AFE10 which clean copy has been separately filed and Exhibits E1 to E6 attached to Exhibit AFE10 as forming part of the evidence of the appellant/applicant in the trial Court in support of its statement of defence and counter claim in paragraphs 4, 6, 7, 8, 9 and (d) respectively.
3. An Order enlarging time within which the appellant/applicant shall file its appellant’s brief of argument.
The motion is supported by a 16 paragraph affidavit deposed to by O.C. Asogwa Esq. There are documentary Exhibits annexed to this affidavit.
The respondent filed in opposition, a counter affidavit of 50 paragraphs deposed to by Ejiga Benjamin Ochuma.
The applicant filed a written address on 4th day of September, 2018 to argue this application. The respondent on its part filed a written address along with the counter affidavit on 13th September, 2018.
The applicant proposed two issues for determination while the respondent proposed one issue for determination. The two issues framed by the applicant are:
1. Whether the appellant/applicant has made out a case for leave to be granted for it to adduce further evidence on appeal.
2. Whether the appellant/applicant is entitled to the exercise of this Honourable Court discretion for time to be enlarge for it to file its appellant’s brief of argument out of time.
The sole issue generated by the respondent is: –
Whether the applicant’s affidavits thereof and grounds have disclosed any cogent reason required by law that will enable this Court grant them leave to adduce fresh/further/additional evidence on appeal? And whether the instant application has met the legal requirement for the grant of leave to adduce additional/further/fresh evidence on appeal.
The primary and major issue for consideration in this application is the issue of adducing fresh evidence. This issue is commonly identified by the applicant and the respondent. I shall take that issue first.
Traditionally, evidence is adduced at the trial Court and what occurs in the appellate Court is a review of the evaluation of the evidence as carried out by the trial Court. The law is clear as to the fact that a trial Court has a primary duty to receive admissible evidence, assess the same, give it probative value and make specific findings of fact thereon. See Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1; Adamu v. The State (1991) 4 NWLR (Pt. 187) 530; where however the trial Court fails in this duty the appellate Court will intervene in the interest of justice. Where also, a party seeks to introduce a fresh evidence never placed before the trial Court, the appellate Court upon the basic rules may exercise its discretion to allow such.
The law is certain and settled that an appellate Court must adhere to the principles of law before allowing fresh evidence on appeal. In the case of UBA Plc v. BTL Ind. Ltd (2005) LPELR 8065 (SC), Oguntade, JSC held as follows:
“It is helpful to call to mind the observance of Oputa, JSC in Obasi v. Onwuka (1987) 3 NWLR (Pt. 61) 364, 370 in an application to call additional evidence on appeal. To talk therefore, of assessing the rightness or wrongness of the trial Court’s verdict today by evidence that will be given tomorrow is to talk in blank prose. This is one reason why appellate Courts are very reluctant to admit “fresh evidence”, “new evidence on appeal except in circumstances where the matter arose ex improvise which no human ingenuity could foresee and it is in the interest of justice that evidence of that fact be led.”
Karibi Whyte, JSC in Nwanezie v. Idris and Anor. (1993) 3 NWLR (Pt. 279) 1, gave the condition under which the Court will allow fresh evidence to be adduced on appeal as follows:
“The appellate Courts have in the exercise of their discretion to grant leave to adduce new evidence adhered to the following principles: (i) The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial; see Asaboro v. Aruwaji (1974) 4 S.C. 119; Enekebe v. Enekebe (1964) NMLR 43 (ii) The evidence must be such that if admitted, would have an important, not necessarily crucial effect on the whole case; and (iii) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible. (iv) The evidence must be available at the trial ? see Ariran v. Adepoju (1961) 1 All NLR 722. It appears from the view expressed in Asaboro v. Aruwaji (1974) 4 SC 119 at p. 124 ? 125, that the exercise of the discretion may be refused in respect of additional evidence where no evidence or insufficient evidence was called in the trial Court.”
In the instant case, the applicant canvassed that there are special ground for this application as specified in paragraphs 1 to 12 of the affidavit. He relied on Order 4 Rule 2 of the Rules of this Court 2016 and the cases of Comfort Asaboro v. M.G.D. Aruwaji & Anor (1974) 4 SC (reprint) 87; Hope Uzodinma v. Izunaso (2011) 17 NWLR (Pt. 1275) 30, 54 (Paragraphs E – H). He canvassed that the evidence sought to be introduced were not available while the matter was heard in the trial Court. That the evidence became available to the applicant after the trial and judgment had been delivered. A look at the evidence in focus will reveal whether the evidence is such as would meet the demand of the law in that regard. I shall refer to paragraphs 2 to 10 of the applicant’s affidavit in support of the motion. These paragraphs read as follows:
2. That when the appellant/applicant was served the Court processes of the respondent as plaintiff in Suit No: FCT/HC/CV/3031/2011 between ASSOCIATED PROPERTIES & TRUST PLC vs SANTOS ESTATE LIMITED, I was instructed by the Managing Director to use due and all reasonable diligence to obtain Exhibits AFE1, AFE2, AFE3 and the appellant was expecting Exhibit AFE4, AFE5 and AFE6 from the Minister of the Federal Capital Territory and Federal Capital Development Authority which were not given to him until after the judgment of the trial Court and while this matter is already on appeal.
Attached to this affidavit is Exhibit AFEI which is a search report on appellant’s Plot 17 Dakwo District Cadastral Zone COB, Abuja obtained on 22/10/2014 after the judgment in the above suit but not the search report for the same plot pleaded and dated 7th March, 2011 in paragraph 8 of the appellant’s statement of defence and counter-claim. This search report was not tendered at the trial Court because O.J. Aboje Esq., of counsel informed me and I verily believed him in chambers at No. 15 Agaez Street, Wuse Il Abuja on the 19th March, 2013 by 8:00am that he had inadvertently misplaced the search report dated 7th March, 2011 and all efforts to locate same proved abortive when he was moving office.
3. That as an alternative, I went back to the Abuja Geographic Information System (AGIS) to conduct and obtain another search report and the officers in charge could not locate the file (hard copy) and the soft copy of the particulars of Plot 17 Dakwo District Cadastral Zone C08, Abuja could not be located in the computer system of the AGIS.
4. That I kept going to AGIS through the period of the trial and several adjournments were granted in the hope tha the hard copy of the file and soft copy could be located at AGIS to no avail.
5. That I kept going to AGIS even when judgment was delivered and an appeal filed and record compiled and transmitted on behalf of the appellant, even suggesting to AGIS officials to try and locate their back-up systems to see if the soft copy could be found.
6. That on 22/10/2014 using backup and retrieval system, AGIS located the particulars of Plot No. 17 Dakwo District Cadastral Zone C08, Abuja in their backup system and I was given a search report and from information in AGIS computer system, the hard file was located and I was given the site plan of plot 17 Dakwo District Cadastral Zone COB, Abuja which is attached and marked Exhibit AFE2.
7. That I continued in my effort knowing that respondent’s Plot No. 16 Dakwo District had been withdrawn and revoked for non-mobilization to site, withdrawal of Accelerated Development Programme allotment in FCT by the Minister coupled with the expiration of the Development Lease Agreement between Minister of FCT and respondent, I was eventually given the approved memorandum and list of revoked Accelerated Mass Housing Development Allottees which includes respondent’s Plot No. 16 Dakwo District Cadastral Zone COB, Abuja which renovation took place as far back as 21/12/2009 which is attached and marked Exhibit AFE3 even before Plot 17 Dakwo District Cadastral Zone COB, Abuja was allotted to the Appellant/Applicant.
8. That the respondent was aware of that revocation but refused to sue the Minister of FCT and FCDA and decided to sue the appellant who was allotted Plot 17 Dakwo Cadastral Zone C08, Abuja on 29/11/2010 one year after revocation of respondent’s Plot 16 Dakwo District, Abuja.
9. That the appellant’s allocation paper for the Plot 17 Dakwo District Cadastral Zone C08, Abuja is attached and marked Exhibit AFE8.
10. That the respondent’s allocation paper for the scrapped, withdrawn and revoked Accelerated Development Programme is attached and marked Exhibit AFE9.
From the account of the applicant as deposed to in this affidavit, there is nothing to suggest that any of the documents listed therein and sought to be tendered never existed at all during the trial at the Court below. One of the Exhibits is the search report which the deponent averred that the counsel inadvertently misplaced and that as an alternative he had to apply again to Abuja Geographic Information System (AGIS) to conduct and obtain another search report which came after the Court had delivered its judgment in the case. The search report is the one labelled Exhibit AFE1. Thereafter he got the site plan Exhibit AFE2; the approved memorandum and list of revoked Accelerated Mass Housing Development Programme allottees including the respondent’s Plot No. 16 Dakwo District Cadastral Zone COB, Abuja. That the revocation took place as far back as 21/12/2009 before Plot 17 Dakwo District Cadastral Zone COB Abuja was allotted to the appellant/applicant. Part of the Exhibits sought to be tendered include the applicant’s allocation paper for Plot 17, which is said to be Exhibit AFE8. The respondent’s allocation paper for the scrapped allocation is Exhibit AFE 9.
The Court below in his judgment said at page 246 of the record of appeal as follows:
“Furthermore, I observed that at paragraph 8 of the Defendant’s statement of defence and counter claim, the defendant pleads its allocation letter, search report and other relevant documents issued to the Plaintiff.
The defendant/counter claimant did not tender in evidence the search report. He did not also tender in evidence the survey plan of Plot 17 Dakwo District Abuja. The search report of the subject matter in dispute would have revealed or disclosed the rightful allottee of the plot of land in dispute. The survey plan would have also the fact of existence of Plot 17 Dakwo District, Abuja. It therefore appears to me that failure of the Defendant/Counter Claimant to tender these vital documents in evidence, it would be unfavourable to him. And this amounts to withholding of evidence contrary to Section 149 (d) of the Evidence Act 2011 (as amended) see also Ugochukwu Agballah v. Sullivan Chime, (2008) All FWLR (Pt. 444) page 1480 at 1488 and University of Illorin v. Adeshina (2009) All FWLR (Pt. 487) page 56 at 80. In the instant case, I hold the view that the Defendant/Counter Claimant by withholding the vital evidence of the search report and refusing to tender in evidence the survey plan of Plot 17, Dakwo District, such vital information if produced before the Court would be to the Defendant/Counter unfavourable Claimant and I so hold.”
The applicant in his affidavit had deposed to the facts that he made a report to the Abuja Geographic Information System (AGIS) and pursued it to obtain the relevant evidence sought to be tendered but that he could not succeed until judgment of the Court below was delivered. From the date on the evidence sought to be tendered, it is obvious that the delay was from AGIS. It is also clear that the applicant made reasonable efforts to obtain the evidence but was delayed by the AGIS. These documents from the comments of the learned trial judge in his judgment would have much impact on the whole case.
The evidence from AGIS definitely is a credible evidence. It is in the interest of justice to grant this application. I hold
therefore that this application has merit and it is hereby granted as prayed in prayer 1. Consequently, prayer 2 seeking for an order deeming the affidavit evidence Exhibit AFEIO and Exhibits E1 to E6 attached thereto as forming part of the evidence of the applicant in the trial Court is also granted: Prayer 3 which is for an order enlarging time within which the Appellant/Applicant shall file its Appellant Brief of Argument is also granted and I order as prayed extending time for the filing of the said brief from today. The Appellant’s Brief filed on 10/06/2016 is accordingly deemed properly filed and served.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the judgment just delivered by my Learned brother, Lord Justice Stephen Jonah Adah, JCA. I agree with the reasoning, conclusions and orders therein.
MOHAMMED BABA IDRIS, J.C.A.: I agree.
Appearances:
C.N. Nwagbo, Esq. with him, Kelechi A. Ologwu, Esq.For Appellant(s)
E.B. Ochuma, Esq. with him, H. Danbauchi, Esq. and O.S. Oyibo, Esq.For Respondent(s)
