SHELL PETROLEUM DEVELOPMENT CO. OF NIG v. BEKANWAH & ORS
(2020)LCN/15550(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Thursday, July 16, 2020
CA/PH/55/2017(R)
Before Our Lordships
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA APPELANT(S)
and
1. CHIEF DONATUS BEKANWAH 2. PASTOR NICHOLAS EWUNE 3. CHIEF BARIKA KOIH 4. MR. FORTUNE D. NWILE 5. MR. CHARLES KIKOH 6. MR. DANIEL KPOAKA (For Themselves and as Representing Other Members of Kpena Community Of Khana Local Government Area of Rivers State). RESPONDENT(S)
RATIO:
PRINCIPLES GOVERNING THE GRANT OF LEAVE TO ADDUCE FURTHER EVIDENCE ON APPEAL
What are the principles governing the grant of leave to adduce further evidence on appeal?
The apex Court in ADEGBITE vs. AMOSU (2016) 15 NWLR (pt. 1536) 405 stipulated 5 special conditions that must exist before such leave could be granted. The conditions are:
(a) the evidence sought to be adduced must be such or would have not been with reasonable diligence, obtained for use at the trial.
(b) the evidence shall be such as if admitted, it would have an important not necessarily crucial effect on the whole case.
(c) the evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
(d) the additional evidence may be admitted if the evidence sought to be adduced would have influenced the Judgment at the trial Court in favour of the Applicant had it been available at the trial Court.
(e) the evidence should be weighty and material as where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.
The above conditions must co-exist before such leave can be granted. See also STATOIL (NIG) LTD vs. INDUCON (NIG) LTD & ANOR (2018) 9 NWLR (pt. 1625) p. 586. TUNDE OYEBANJI AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgement): This is the Ruling in respect of the Motion on Notice filed on 14/9/2018 by the Appellant praying for:
“AN ORDER granting leave to the Appellant/Applicant to adduce further evidence i.e. the Report of the Investigation of the unlawful signing of the Writ of Summons carried out by the Chief Registrar of the Federal High Court.”
The grounds upon which the application is made are:
“(1) The report is relevant and material as to whether or not the Writ of Summons was filed, signed or unsigned.
(2) The report of investigation was at the time of hearing the Motion for striking out dated the 21st day of May 2013, not in evidence.
(3) That the said report to be introduced and relied on as evidence in this appeal has a very important and crucial effect in determining the appeal one way or the other.”
The application is supported by 13 paragraph affidavit, to which the Ruling of Federal High Court in Suit No. FHC/PH/CS/07/2009 delivered on 9/7/2014 is attached and a Certified True Copy of the Report of the Investigation Panel set up to investigate are attached and marked as Exhibits JA1 and JA2 respectively.
Most pertinent among the paragraphs of the supporting Affidavit are paragraphs 4-9 which reads thus:
“(4) That Appellant/Applicant filed a Motion dated the 21st day of May, 2013 at the lower Court praying the Honourable lower Court to strike out Suit No. FHC/PH/CS/07/09 on the ground that the Writ of Summons was not signed.
(5) That on the 21st day of October, 2013 when the said Motion came up for hearing, the Honourable lower Court Judge, Justice L. Akanbi discovered that the Writ of Summons earlier certified unsigned had become signed.
(6) Following the above discovery, the Appellant/Applicant’s Counsel caused a Complaint to be made to the Chief Registrar of the Federal High Court via a letter dated the 22nd day of October, 2013 calling for investigation into the circumstances that led to the certified unsigned Writ of Summons to become signed.
(7) That at the hearing of the Motion for striking and when the ruling on same was delivered, the report of the investigation was not ready and therefore not available. This fact was acknowledged by the Honourable lower Court in its ruling at page 7. The said ruling is attached and marked as Exhibit “JA1”.
(8) That at the time the Appellant/Applicant filed its appeal, the report of the investigation was ready or available.
(9) That on the 3rd day of August, 2017, we caused to be obtained a copy of the report of the Investigative Panel set up to investigate our Complaint wherein it was found at paragraphs 8 and 11 at pages 15 and 16 of the report that the said Writ of Summons was unlawfully signed by Mrs. Wumi Komolafe. A Certified True Copy of the said Report with Receipt No. 350775624353 is attached and marked as Exhibit “JA2”.
On receipt of the Motion on Notice and supporting Affidavit, the Respondents filed 16 paragraphed Counter-affidavit Key among the 16 paragraphs are paragraphs 5-13 of the Counter-affidavit. The read as follows:
“(5) However, in the Notice of Appeal that initiated this appeal, the Appellant/Applicant unilaterally changed the representatives capacity in which we instituted the action at the trial Court by filing the Notice of Appeal to read, wrongly:
“For themselves and as representing other members of Kpean Community Local Government Area of Rivers State.”
(6) In the instant application and its affidavit in support, the Appellant/Applicant without the leave of this Court unilaterally again altered the capacity in which the notice of Appeal was filed.
(7) We are the Plaintiffs in the trial Court and did not institute the action in the representative capacity: “for themselves and as representing other members of Kpean Community Local Government Area of Rivers State” and no such representative capacity was stated both in the Writ of Summons.
(8) There is no Local Government in existence in Nigeria known “Kpean Community Local Government Area Rivers State” and we are not representing such non-existent Local Government Area or any Local Government Area in this case that gave rise to this appeal.
(9) In reply to paragraph 4 of the purported affidavit in support of the application, the true position is that the said Appellant’s motion dated 21st May, 2013, merely made an unfounded allegation that the Writ of Summons was not signed whereas the Writ was duly signed as found by the learned trial Judge on pages 5, 6 and 7 of the Certified True Copy of the ruling of the trial Federal High Court, Port Harcourt Judicial Division, delivered on 9th July, 2014, marked Exhibit JA1 in the affidavit in support of this purported application.
(10) Paragraph 5 of the affidavit in support of the application is false and mischievous. The true position is clearly stated in the said ruling of the learned trial Judge on page 5 which show that his Lordship promptly drew the attention of Appellant/Applicant’s Counsel to his allegation that the Writ of Summons was not signed, the Writ of Summons in the Judge’s file (A) was signed, by O. O. Komolafe, Esq. This is clear from page 5 of the said Ruling which reads;
“Now to the merit of the application itself. The Writ of Summons in the Judge’s file (A) was signed by O. O. Komolafe, Esq. That much I drew the attention of learned Senior Counsel for the Applicant to when the application was first introduced.
(11) Paragraphs 6, 7 and 8 of the affidavit in support of the application are deliberately distorted and does not represent the true position in view of the said Ruling of the trial Federal High Court. On page 7 of the Ruling of the trial Court, the learned trial Judge expressly held as follows:
“I am aware that learned Senior Counsel has made a petition to the Honourable Chief Judge of the Court to investigate the matter and come up with a position. That is yet to be received from the Honouable Chief Judge.”
(12) From the above underlined words of the learned trial Judge, it is absolutely clear that the petition which the learned trial Judge found was written on the matter was addressed to “Honourable Chief Judge of the Court” and not “the Chief Registrar of the Federal High Court”, and the person the learned trial Judge expect to come up with a position is Honourable Chief Judge of the High Court and not Chief Registrar of the Federal High Court and also not the purported Investigative Panel which issued the alleged Report marked Exhibit JA2, now sought to be adduced as further evidence in this appeal, to occasion a miscarriage of justice.
(13) The Appellant/Applicant did not appeal against the finding of fact made by the trial Court on page 7 of its said Ruling which had been quoted in paragraph 11 above and is therefore, bound by the said finding; so also is this Court.
The Applicant in reaction filed a Reply to the Respondents’ Counter Affidavit.
In support of the application learned Senior Counsel Uwensuyi-Edosomwan, SAN in his argument relied on the case of ADEGBITE vs. AMOSU (2016) 15 NWLR (pt. 1536) 405 at 432. Learned Senior Counsel urged the Court to grant the application.
Nwibe for Respondent in opposition argued and referred to the 16 paragraph affidavit filed by the Respondent and contended that an allegation of fraud which had to be proved beyond reasonable doubt was involved.
I have deeply considered the submission of learned Counsel on both sides.
This application is one of the series of application in this appeal are impinging on the other. There is a Motion on Notice filed on 21/2/2019 by the Applicant and there is a Notice of Preliminary Objection by the Respondents filed on 13/11/2018. In order not to prejudge and predetermine these two applications, I will restrict myself to the prayer of the Applicant in the instant application as other points being raised by the Respondents would be considered in the course of determining the other two applications.
What are the principles governing the grant of leave to adduce further evidence on appeal?
The apex Court in ADEGBITE vs. AMOSU (2016) 15 NWLR (pt. 1536) 405 stipulated 5 special conditions that must exist before such leave could be granted. The conditions are:
(a) the evidence sought to be adduced must be such or would have not been with reasonable diligence, obtained for use at the trial.
(b) the evidence shall be such as if admitted, it would have an important not necessarily crucial effect on the whole case.
(c) the evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
(d) the additional evidence may be admitted if the evidence sought to be adduced would have influenced the Judgment at the trial Court in favour of the Applicant had it been available at the trial Court.
(e) the evidence should be weighty and material as where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.
The above conditions must co-exist before such leave can be granted. See also STATOIL (NIG) LTD vs. INDUCON (NIG) LTD & ANOR (2018) 9 NWLR (pt. 1625) p. 586.
I shall view this application in the light of the above.
Firstly this appeal is in respect of a Ruling delivered on 9/7/2014. The said Ruling being challenged on appeal is in respect of a Motion on notice dated 21/5/2013 but filed on 27/5/2013. The Report being sought to be tendered as further evidence in this appeal is dated 25/7/2017. It was applied for on 3/8/2017. So obviously the Report was not in existence as at the time the Ruling being challenged in this appeal was delivered.
Secondly, could the Report have impacted the said Ruling, if it had been available to the learned trial Judge?
The learned trial Judge in his Ruling held inter alia as follows in considering the allegation before him:
“What is seriously in contention is the observation or the allegation that the Writ was tampered with or altered. That is a crucial allegation or fraud. Learned Senior Counsel has urged on the Court to compare the two documents together and come to a conclusion one way or the other whether there was an alteration in line with Section 167 of the Evidence Act.
The understanding of learned Senior Counsel for the Applicant of the provision of Section 167 of the Act represents the true and correct position of the law. However, before the Court can exercise such power, there must be similar contriptions or writing for comparism. The first document bears no signature while the other has signature on it. There is therefore no basis for comparism.
I accordingly decline invitation to do so.
The allegation made by the Applicant is fraud; it is fundamental as it is criminal allegation which by law is required to be proved beyond reasonable doubt. I am aware that learned Senior Counsel has made a petition to the Honourable Judge of the Court to investigate the matter and come up with a position. That is yet to be received from the Honourable chief Judge.
The position as it stands today is the CTC of unsigned Writ exhibited by the Applicant and the signed Writ as shown in File A of the Court’s record. Thus, in the absence of any proven case of fraud or alteration, I am of the humble view that the Writ of Summons in file “A” which is the Judge’s file will suffice. In other words, the process in file “A” appears to me to be superior to the CTC until the contrary is proved.”
The observation and findings of the Investigating Panel who prepared the Report sought to be tendered is that the Writ of Summons was fraudulently signed by one Mrs. Komolafe.
Hence the Report could have been arguably, a little useful to the learned trial Judge in his Ruling. There is no confessional statement neither was there any admission made in the Report. I am aware that under Section 48 of the Evidence Act, 2011 such a statement would have been admissible even though made in the course of preliminary investigation.
I have carefully perused the Report. Nobody saw anybody forging or falsifying any document. Though some people were suspected, of what use therefore could the Report have been to the learned trial Judge?
Thirdly, however, the additional evidence sought to be adduced could not have influenced the Ruling of the trial Court as an allegation of fraud which required criminal prosecution was involved. The Ruling of the learned trial Judge on this point is very clear. The tendering of a Report of the Three Men Investigating Panel on Disciplinary Case against Mr. Sampson U. Kanu – the Chief Clerical Officer could not have constituted a positive proof of the criminal allegation of fraud involved before the trial Court. The allegation of fraud must be strictly proved and proved beyond reasonable doubt. See Section 135 (1) of the Evidence Act 2011. Nobody saw anybody forging or falsifying any document.
As aforestated, the conditions laid down by the Supreme Court in ADEGBITE vs. AMOSU (supra) must co-exist before leave to adduce additional evidence could be granted. This is not the case in this application, hence this application must fail.
This application lacks merit. It is accordingly dismissed.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I agree
ABUBAKAR MUAZU LAMIDO J.C.A.: I have had the privilege of reading in draft the Ruling just delivered by my learned brother T. O. Awotoye, JCA, I agree with the reasoning and conclusion reached therein. I too dismiss this application as lacking in merit.
Appearances:
CHIEF CHARLES UWENSUYI-EDOSOMWAN, SAN, WITH JOHN EDJEBA, ESQ. For Appellant(s)
C. NWIBE, ESQ. For Respondent(s)