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TREVI FOUNDATION (NIG) LTD v. AUTO KREDIT (NIG) LTD & ANOR (2020)

TREVI FOUNDATION (NIG) LTD v. AUTO KREDIT (NIG) LTD & ANOR

(2020)LCN/15604(CA)

In the Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 24, 2020

CA/L/321M/2014

 

Before Our Lordships:

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

 

Between

TREVI FOUNDATION NIGERIA LIMITED APPELANT(S)

And

1. AUTO KREDIT NIGERIA LIMITED 2. ATTORNEY GENERAL OF LAGOS STATE RESPONDENT(S)

 

RATIO:

THE COURT SHALL HAVE POWER TO RECEIVE OTHER EVIDENCE ON QUESTION OF FACTS BUT NOT IN THE CASE OF AN APPEAL FROM A JUDEGMENT AFTER TRIAL.

It is not open to any debate that, the rule of this Court, is not averse to adducing further evidence on It appeal. I hereunder reproduce the provisions of Order 4 Rule 2 of the Court of  Appeal, 2016, as follows: 
“the Court shall have power to receive other 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 trial or hearing) shall be admitted except on special grounds”. GABRIEL OMONIYI KOLAWOLE, J.C.A.

 

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgement): The Applicant filed a Motion on Notice dated and filed on 15/4/15 in the instant appeal. The application was brought pursuant to Section 15 of the Court of Appeal Act and Order 4 Rule 2 of the Court of Appeal Rules, 2011. By the said Motion on Notice, on the face of it, the Applicant prays, for the following relief:
1. Leave to adduce, as further evidence on appeal, Notice of Revocation of Right of Occupancy dated 4th day of October, 2011, issued after the closure of evidence at the High Court, Exhibit “A” attached to the Affidavit in support.
2. Leave to raise a fresh issue on appeal that, “whether the Appellant is still liable for possession and damages for use and occupation of the disputed land when its right of occupation has been revoked by Notice of Revocation dated 4th day of October, 2011, signed by the Governor of Lagos State.

The said Motion on Notice is supported by a 14 paragraphed affidavit deposed to by Oludare Odetoki- a legal practitioner in the law firm of the counsel representing the Applicant. Also annexed to the Motion on Notice, is a copy of the “NOTICE OF REVOCATION OF RIGHT OF OCCUPANCY”, with respect to “all that parcel of land (with any improvement thereon) measuring 33.490 Hectares situate and lying at Igbo Elerin, in Ojo Local Government Area of Lagos State of Nigeria”, the Notice of Revocation was dated 4th day of October, 2011 and signed by “BABATUNDE RAJI FASHOLA (SAN)” as the then “EXECUTIVE GOVERNOR OF LAGOS STATE”. A copy of the judgment of the lower Court, subject of this appeal, and the Notice of Appeal dated 10/1/14 were also attached to the motion paper.

Also, filed in the proceedings, is the reply affidavit to the 1st Respondent’s Counter Affidavit dated and filed on 15/1/2016, the 11 paragraphed deposition was made by Olajide Ismaila Sanni, a legal practitioner in the law firm of the counsel for the Applicant. The Applicant through its Counsel, filed a written address dated 13/02/16, in support of the Motion on Notice dated and filed on 15/4/15, and the Applicant’s counsel therein nominated sole issue for determination of this application thus: “Whether the Notice of Revocation of Right of Occupancy dated 4th of October, 2011 received after trial at the High Court is admissible as further evidence on appeal to determine its legal consequence.”

The Applicant also filed a reply address dated 20/2/17, in response to the 1st Respondent’s written address in opposition to the Applicant’s motion on notice of 15/4/15.

The 1st Respondent, in its response to the Applicant’s Motion on Notice, on 15/4/15 filed a 16 paragraphed Counter-Affidavit deposed to by Olorundare Sowunmi, a legal practitioner in the law firm of the Counsel to the 1st Respondent, the counter-affidavit was filed on 28/4/15. The 1st Respondent filed a written address in opposition to the Applicant’s Motion on Notice of 15/4/15. The written address was filed on 12/1/17, wherein the 1st Respondent’s counsel nominated a sole issue for determination thus:
“Whether this Honourable Court ought on the facts as presented by parties and on the applicable settled principle of law, (to) grant the reliefs sought by the Appellant”

In addition to the processes highlighted above, the Applicant also filed a Motion on Notice on 17/5/17, wherein the Applicant prays the Court for the following reliefs:
i. AN ORDER granting leave to the Appellant to amend Ground two in the Notice of Appeal herein in terms of the Amended Notice of Appeal attached as exhibit “B” hereto.
ii. AN ORDER granting leave to the Appellant to amend Ground Two of the Appellant’s Brief herein in terms of the Amended brief of Argument, exhibit “C” hereto.
And for such further order or orders as the Court may deem fit to make in the circumstances.

The grounds, upon which these prayers are being sought, are as follows:
1. The Appellant counsel misquoted the learned trial judge in ground two of the Notice of Appeal.
2. The error in ground two of the Notice of Appeal also affected issue two in the Appellant’s Brief.
3. The mistake made with regard to ground 2 of the notice of appeal and issue 2 in the Appellant’s Brief is that of counsel.
4. The Appellant’s counsel became aware of the mistake upon reading the 1st Respondent’s Brief filed together with its motion on notice dated 23rd of February, 2017 for extension of time to file its Brief of Argument.
5. The 1st Respondent has included in its Respondent’s Brief a Notice of preliminary Objection partly on the ground of the said mistake.

6. By Order 4 Rule 1 of the Court of Appeal Rules 2016 a Notice of Appeal may be amended with leave of Court.
7. The filing of a preliminary objection showing errors in the process of an appeal does not prevent the Appellant from making an application to seek to correct the errors.
8. The amendment will enable the settlement of the controversy between the parties.

The said Motion on Notice filed on 17/5/17, has an 8 paragraphed affidavit deposed to by one Jamiu Oyerinde, a litigation officer in the law office of the counsel to the Applicant in its support. Both the Notice of Appeal and the Proposed Amended Notice of Appeal together with the Proposed Amended Appellant’s Brief were produced and annexed to the motion paper.

​I have advisedly, perhaps deliberately undertaken the obligation to enumerate, in details, the extant processes filed before this Court, being a Court of record, and because, the decision of this Court is required to be borne out of the records made available to the Court by the parties in the appeal. It is necessary to remark, as I have observed, that the Motion on Notice filed on 17/5/17 by the Applicant herein, was neither argued by the Applicant nor was any written address filed to oppose the Respondents’ motion. Though, it was noted during the hearing of the application, that the learned counsel for the Applicant drew the attention of the Court to the two pending applications filed by the Applicant vide the Motion on Notice filed on 15/4/15 and the other one filed on 17/5/17, the learned counsel for the 1st Respondent, Olalekan Bolaji, Esq., although expressed his opposition to the two applications, he however, did not file any counter-affidavit to the second application, and no mention was made by the Respondents of the Applicant’s Motion on Notice filed on 17/5/17 in any of the processes filed by the Respondents with respect to this appeal. It is my respectful opinion, and in line with the Rules of this Court, that the said application, having being made in the proceedings, is deemed to have been duly argued. See: Order 6 Rule 8 (2) Court of Appeal Rules, 2016.

This however does not make it automatic to grant the prayers of the Applicant in the said Motion on Notice filed on 17/5/17, as the application must, as a matter of law, be determined on its merit pursuant to the provision of Section 15 of the Court of Appeal Act in order to satisfy the intendment of the law as prescribed in the provisions of Order 4 Rules 1 & 2 of the Court of Appeal Rules, 2016. It then becomes necessary, to proceed to determine the merit or otherwise of the application, in the circumstance.

The application was brought pursuant to the Order 4 Rule 1 of the Court of Appeal Rules, 2016, and Section 15 of the Court of Appeal Act. I had earlier reproduced the prayers sought by the Applicant which are essentially, for an order of the Court to amend “ground two” in the Notice of Appeal in terms of the proposed “Amended Notice of Appeal”, and also for an order to amend the “ground two” in the Applicant’s Appellant Brief of Argument. The gist of the Applicant’s case in the application, as could be gleaned from the grounds of the application filed on 17/5/17 and from the affidavit in support, is that the Appellant/Applicant misquoted the learned trial judge in his judgment delivered on 23/12/13 in its ground two of the notice of appeal and that the error, which was said to be that of the Appellant’s counsel, had affected the submissions canvassed on issue 2 of the Appellant Brief of Argument.

It is evident from the Briefs of Arguments in this appeal, that the inadvertence being sought to be corrected, arose from the mistake of the Applicant’s counsel concerning the ruling of the lower Court. The learned trial judge was quoted, albeit, erroneously as holding that the 1st Respondent “was not aware of the accrual of action because there was no written communication” from the Appellant to the 1st Respondent, whereas the actual finding of the learned trial judge in the judgment was “that no date has been placed before the Court by admissible evidence as to awareness by Claimant of the fact of acquisition”. The error was supposed to be that of the counsel, and I am of the view that such error of counsel ought, ordinarily not to be imputed to the litigant, except where such error borders on an issue of jurisdiction which cannot be treated as a mere irregularity or inadvertence of counsel. See: OGUNDIMU V KASUNMU (2006) ALL FWLR (Pt 326) 207 @ 218 and IBODO V ENAROFIA (1980) 5-7 SC 42. I hold the view that the said inadvertence falls within the permitted precinct that the Court will allow in order not to defeat substantial justice on the altar of technicality. See: A.G BENDEL STATE V AIDEYAN (1989) 4 NWLR (Pt 118) 646. It is my opinion that the said mistake or the inadvertence of counsel seems to be a genuine mistake and ought to be remedied by the Court as it appears as not being capable to foist injustice on the other parties in the appeal. See: AKANBI V ALAO (1989) ALL NLR 4242and ONYEMELUKWE V N.A.C.C (1995) 4 NWLR (Pt 381) 44 @ 56. I am clear in my view that the Court will not allow such relief, unlike in the instant case, where it is a strategic blunder or a failed tactics adopted by counsel. See: ELIKE V NWAKWOALA(1984) ANLR 505and ISITOR V FAKARODE (2017) NG SC 22.
The statutory authorities relied on by the Applicant’s counsel for the exercise of the discretionary powers of the Court is, in my opinion, well founded.
The Court is required on the strength of extant judicial decisions, to exercise such discretion both judicially and judiciously. See: UNIVERSITY OF LAGOS V OLANIYAN (1985) 1 NWLR (Pt 1) 156, and the whole essence of it is for the ends of justice to be achieved. See: KWAJAFFA V BANK OF THE NORTH LTD (2004) ALL FWLR (Pt 215) 222. I have carefully looked into the reliefs being sought in the application, and I have come to the conclusion that the said amendment can be accommodated without the Respondents being irreversibly prejudiced.

In the light of this view, I am inclined to and hereby, grant the instant application as prayed by the Applicant in its Motion on Notice filed on 17/5/17.

Having resolved the first leg of the instant ruling in favour of the Applicant, I then move to the second leg of the ruling. It was the Applicant’s desire to adduce further evidence of a “Notice of Revocation of Right of Occupancy” which was said to have been obtained after the close of trial of the suit before the lower Court, the 1st Respondent however opposed the grant of the Application based on its arguments “that Exhibit A was a document available and in custody of the Appellant during trial but which the Appellant rather chose not to avail itself of its use at the trial Court”.
​It is not open to any debate that, the rule of this Court, is not averse to adducing further evidence on appeal. I hereunder reproduce the provisions of Order 4 Rule 2 of the Court of  Appeal, 2016, as follows:
“the Court shall have power to receive other 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 trial or hearing) shall be admitted except on special grounds”. (Emphasis supplied).
By the decision of the Supreme Court in ADEGBITE V AMOSU (2016) 15 NWLR (Pt 1536), cited by the parties, the apex Court stated deserving circumstances, as being such that would meet the following conditions:
1. Such evidence must be such as would not have been obtained for use at trial, with reasonable diligence on the part of the party seeking to tender same on appeal;
2. That such evidence shall be such if admitted, would have an important (but not necessarily crucial) effect on the whole case;
3. The evidence must be apparently credible, such that, it is capable of being believed, but need not be incontrovertible;

  1. That the evidence would have influenced the judgment at the trial Court in favour of the party tendering same, if such evidence had been available at the trial Court;
    5. The evidence should be weighty and material to the case of the parties, otherwise, such evidence will be rejected.
    See also: NWAOGU V ATUMA & ORS (2013) 1-2 SC.
    I have availed myself with the facts borne out of the record before the Court, to assess the said “Exhibit A”, being a Certified True Copy of a Notice of Revocation of Right of Occupancy with respect to a land measuring 4.073 hectares, lying, being and situate at Okokomaiko along Lagos Badagry Express-way, Lagos – the subject of the suit that birthed the instant appeal, and it is my observation and finding, that the said document may not have been available at the time of trial in the lower Court. The document, having been issued on 4/10/2011, and the record before the Court reveals that the lower Court at its proceedings of 20/6/2011 when the defence of the 2nd Defendant was taken, this was at the end of the hearing of the cases of the defence. It is my respectful opinion also, that at the close of the trial, when the lower Court had adjourned for the adoption of the respective written addresses in the suit, the document issued thereafter, could not have been reasonably said to have been in existence, the knowledge of which could then be imputed to the Applicant as the Defendant, and that it was deliberately withheld from the lower Court during the trial. On the face of the document, it was signed on 4/10/2011 by the then Executive Governor of Lagos State, and a closer look at the proceedings of the lower Court for some selected days, reveals that the lower Court, had in essence, closed the case of the defence in the suit. I have observed the proceedings of the lower Court for some relevant days in the lower Court, especially the proceedings for 20/6/2011 and that of 18/10/2011 as placed before the Court by the Applicant, when the case for the defence was closed and the suit was adjourned to 1/12/2011 for the adoption of the final written addresses. It is my view that, while the proceedings of the 18/10/2011 could be said, had Exhibit A in existence, same could not be imputed on the proceedings of 20/6/2011 when the hearing was closed and when Exhibit A was obviously non-existent as at the day of the said proceedings. I am therefore in agreement with the learned counsel for the Applicant that the document was not withheld and that Exhibit A could reasonably not be said to be available to the Applicant in the defence of its case before the lower Court.
    Though, this Court has no such power to allow a party to raise issues not raised at the trial Court except where the fresh issue or question involves substantial points of law, substantive or procedural, which need to be allowed to prevent an obvious miscarriage of justice. See: OKENWA V. MILITARY GOVERNOR, IMO STATE (1996) 2 NWLR (Pt. 455) 394 SC. The 1st Respondent had argued that “Exhibit A” sought to be tendered as further evidence, was not worth to be so treated as it does not qualify as a “special ground”. I am not convinced by the said line of argument. It is trite that where the point of law raised, arose out of the decision of the Court of first instance and could not have been raised earlier in that Court, this Court ought to allow further evidence to be adduced therefrom. See: A.G OYO STATE V. FAIRLAKES HOTEL LTD. (1988) 5 NWLR (Pt. 92) 1 SC.

The 1st Respondent had deposed to some facts in its counter-affidavit filed on 28/4/15 against the Appellant/Applicant’s Motion on Notice dated 15/4/15, some of which are hereunder reproduced:
9. That I state contrary to paragraph 5 of the Affidavit in support of the Appellant Applicant’s application as follows:
a. that the document sought to be adduced as fresh evidence (Exhibit A) had always been available to the Appellant/Applicant and had been in the custody of the Appellant/Applicant since October 2011 before trial was concluded and judgment delivered by trial Court.
b. that the document sought to be adduced as fresh evidence (Evidence A) is not in respect of any matter or cause which occurred after the trial or hearing of the case at the trial Court or in respect of any matter or cause which occurred or arose unexpectedly or ex improvise or which no human could have foresee.
c. that between October 2011 when the Appellant/Applicant had possession of Exhibit A and the 23rd December 2013 when judgment was delivered by the trial Court, the Appellant/Applicant had over two years to take the necessary procedural step to make Exhibit A part of its case but failed to do so but only brought Exhibit to the fore sometime on 16th January 2014, when Exhibit A was attached as an Exhibit in support of Appellant’s Motion for stay of execution at the Lower Court.
10. that contrary to paragraphs 8, 9 and 10 of the Affidavit in support of the Appellant/Applicant’s application, Exhibit A sought to be adduced as fresh evidence on appeal is not important or necessary for the determination of the appeal before this Honourable Court.
The Applicant’s response to the foregoing depositions of fact by the 1st Respondent, in my opinion, is apt to the granting of the reliefs being sought in this application. In its reply affidavit filed on 15/1/16 to the counter affidavit of the 1st Respondent filed on 28/4/15, the Applicant states that:
“the earliest time that the document could be brought before the High Court was after judgment when the application for stay of execution dated 16h of January, 2014 was filed at the High Court and the document was accordingly made use of as an exhibit.”
The deponent stated further that: “the 1st Respondent is also relying on the document in its counter-affidavit to the motion for stay of execution pending at the Court of Appeal.”
(See: paragraphs 6 and 7 of the Applicant’s reply affidavit filed on 15/1/16 to the 1st Respondent’s counter affidavit filed on 28/4/15). The provisions of Order 4 Rules 1 to 4, particularly Rule 2 of the Court of Appeal Rules, 2016, leaves no one in doubt that such fresh or additional evidence which will be permitted to be presented on appeal are “evidence as to matters which have occurred after the date of trial or hearing”. See the recent decision of this Court in BENUE STATE HOSPITALS MANAGEMENT BOARD & ORS V KPUM(2019) LPELR – 48133 (CA). I believe this is a deserving case in which the Applicant should be allowed to present additional evidence not available at the time of trial before the lower Court.

In the final analysis, I find the instant application meritorious, and it is hereby allowed. In essence, the prayers sought by the Applicant in the Motion on Notice filed on 15/4/15 and the Motion on Notice filed on 17/5/17, are hereby granted as prayed. No order as to costs.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO,  J.C.A.: I have had the opportunity to read in advance the lead judgment of my learned brother, GABRIEL OMONIYI KOLAWOLE, J.C.A., and I agree with the reasoning and conclusion of my brother in this appeal, with only few words to re-emphasized the point that an appellate Court may entertain additional evidence and issues on appeal. The Apex Court in the case of FASUYI & ORS v PDP & ORS (2017) LPELR – 43462 (SC) held per GALINE, J.S.C. thus;
“The general adopted in this Court is that an appellate will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial Court, but where the question involves substantial points of law, substantive or procedural, and it is plain that no further evidence shall be called, this Court being the final Court will allow the question to be raised and the points taken in order to prevent an obvious miscarriage of justice. See K. Akpene v. Barclays Bank of Nigeria & Anor (1977) 11 NSCC 29; Shonekan vs Smith (1964) ALL NLR 168; INEC vs Musa (2003) 3 NWLR (Pt. 806) 72.” See also; OKENWA v MILITARY GOVERNOR IMO STATE (SUPRA); EZE v UNIJOS (2017) LPELR – 42345 (SC); CORPORATE IDEAL INSURANCE LTD v AJAOKUTA STEEL CO. LTD & ORS (2014) LPELR – 22255 (SC); BULET INT’L (NIG) LTD v OLANIYI & ANOR (2016) LPELR – 40303 (SC); ACHONU v OKUWOBI (2017) LPELR – 42102 (SC).

In light of the above and the reasons in the lead judgment, I also agree that the application has merit and it is hereby granted. I abide by all other consequential orders in the lead judgment.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother, GABRIEL OMONIYI KOLAWOLE J.C.A., afforded me the opportunity of reading in draft before today the Ruling just delivered and I agree with the reasoning and conclusion contained therein, adopt the Ruling as mine with nothing further to add.

Appearances:

Afolabi Dawodu, Esq., with him, Z. Z. Folami For Appellant(s)

Olalekan Bolaji, Esq. – for 2nd the Respondent. For Respondent(s)