TUNWASE v. ADENIYI
(2022)LCN/16519(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, May 12, 2022
CA/L/986/2017(R)
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
SEGUN TUNWASE APPELANT(S)
And
OLUFEMI ADENIYI, ESQ. RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT OF APPEAL HAS THE POWER TO RECIEVE FRESH OR ADDITIONAL EVIDENCE ON APPEAL
The jurisdiction of the Court of Appeal, which enables the admission of additional or fresh evidence on appeal, is not at large. Order 4 Rule 2 of the Court of Appeal Rules, 2021 (formerly Order 4 Rule 2 of the Court of Appeal Rules, 2016) provides:
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 matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.
(Emphasis mine).
Considering similar provisions in Order 1 Rule 20(1), (3) of the Court of Appeal Rules, 1981, the Supreme Court, per Karibi-Whyte, JSC in Owata v Anyigor (1993) LPELR-2842(SC) pages 15 – 17, said
“It appears from the provisions of this rule that the Court is entitled to exercise its discretion where
(a) the matter on appeal has not been heard on its merits in the trial Court, or
(b) the appeal is from a judgment after trial or hearing on the merits.
In the first case, the Court has the power to receive further evidence on questions of fact in the manner provided. In the second case, further evidence is only received on special grounds. See Adeleke v. Aserifa (1990) 3 NWLR (Pt.136) 94.
The power vested in the Court by these rules to receive fresh evidence or further evidence is generally exercised reluctantly, sparingly and with great circumspection. This is because of the risks involved in allowing a person to reopen an issue after it has been decided on the excuse that new facts which could have been discovered and relied upon and used at the trial have now been found. It is likely to prejudice the position of the other party and result in the miscarriage of justice. The Court however will exercise the power in all cases where the Appellant has brought his case within the conditions prescribed in the rules and on the facts of the case, the interest of justice demands that the evidence be received. The rule has provided that fresh or further evidence will be admitted on special grounds.”
His Lordship further held:
“Analysis of decided cases disclose that the Courts have relied on the following principles, where;
First, the evidence sought to be adduced should be such that could not have been obtained with reasonable care and diligence for use at the trial – see Asaboro v. Aruwaji (1974) 4 SC.119, where the evidence was not within easy reach. The records kept by the Companies Registry was not open most of the time during the period.
Secondly, if the fresh evidence is admitted it would have an important, but not necessarily crucial effect on the whole case. – see Ladd v. Marshall (1954)3 All ER.745.
Thirdly, if the evidence sought to be tendered is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible – see Obasi v. Onwuka (1987) 3 NWLR (Pt.61) 364. PER OTISI, J.C.A.
THE POSITION OF LAW ON WHO A “PERSON INTERESTED” IS
I think these provisions are clear enough. Explaining who can be described as a person interested, Kekere-Ekun, JSC in U. T. C. (Nig) Plc v. Lawal(2013) LPELR-23002(SC) at pages 33-34, opined:
“A person interested has been described as a person who has a personal interest, financial, material or otherwise in the outcome of the proceedings. An “independent person” on the other hand is a person who has no temptation to depart from the truth on one side or the other; a person not swayed by personal interest but completely detached, judicial, impartial and independent. In interpreting the provision, the Courts are enjoined to give the expression a narrow rather than a broad meaning. See: Gbadamosi v. Kabo Travels Ltd. (pt. 2010) 8 NWLR (pt. 668) 243; Peterside & Ors. v. Wabara & Ors. (2010) LPELR- CA/PH/188M/2003 AT 8 D-G; Anyaebosi v. R.T. Briscoe Nig. Ltd. (1987) 3 NWLR (pt. 59) 84; (1987) 6 SCNJ 9 AT 22.
It has also been held that there must be a real likelihood of bias before a person making a statement can be said to be a “person interested”. A person acting in an official capacity is generally not considered to be a “person interested”.”
See also: Anyaebosi v. R.T. Briscoe (Nig.) Ltd (1987) LPELR-506(SC); Highgrade Maritime Services Ltd v. First Bank (1991) LPELR-1364(SC); Nigeria Social Insurance Trust Fund Management Board v. Klifco Nigeria Ltd (2010) LPELR-2006(SC); B.B Apugo & Sons Ltd v. OHMB (2016) LPELR-40598(SC); Ladoja v. Ajimobi & Ors(2016) LPELR-40658(SC). PER OTISI, J.C.A.
WHETHER OR NOT A PARTY IS BOUND BY THE PROFESSIONALISM OF HIS COUNSEL
It is important to resound that a party is bound by the professionalism of his counsel. In County & City Bricks Development Company Ltd v. Hon. Minister of Environment Housing & Urban Development & Anor (2019) LPELR-46548(SC), the Supreme Court, per Peter-Odili, JSC said:
“This Court made this very clear in Akanbi v Alao (1989) 3 NWLR (Pt.108) 143, Per Eso as follows: –
“I think it would be extending Ibodo v Enarofia case beyond reason if every considered or assumed considered professional decision of a counsel which has gone wrong should qualify as ground of appeal. We did say once, and I am still of the firm view that the conduct of a case lies wholly with counsel. The rule really should be “caveat client”. If you choose a counsel, you should permit him, once seised of the case to conduct the case in the manner of his professional ability. Indeed that is part of the independence of the Bar. If there is a lapse in his office, his clerk forgetting to file some papers, he forgetting the date of hearing or such like procedural errors, of course, the client should not be made to suffer. If however, he takes a deliberate decision and loses thereby, then, it is his privilege to lose and that will constitute a right for the client for utilization as a ground of appeal. For, if it were not so, the profession would be in jeopardy”.
See also Rivtrust Securities Ltd & Ors v. AMCON (2019) LPELR-47966(CA), per Ogakwu, JCA. PER OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgement): By Motion on Notice filed on 9/3/2020, the Appellant/Applicant sought the following Order:
AN ORDER GRANTING LEAVE to the Appellant/Applicant to introduce/adduce fresh evidence on appeal.
The application was made on the following grounds:
a. The Respondent as Claimant commenced this suit at the Ikeja Judicial Division of the High Court of Lagos State by way of Writ of Summons, Statement of Claim and other Originating Processes dated 5th March, 2009 and 18th February 2009, respectively.
b. In response, the Appellant/Applicant as 1st Defendant filed a Statement of Defence and other accompanying process dated 12th July 2010 and 13th July 2010, respectively.
c. Subsequently, the 2nd Defendant was joined as a party to the suit.
d. Trial commenced on the 19th of February 2013 wherein the Respondent was Examined-in-Chief.
e. The Respondent filed an amended Writ of Summons and amended Statement of Claim on the 18th of April 2013.
f. The Appellant/Applicant equally filed an amended Statement of Defence dated 17th July 2014.
g. Sometime in 2013 during the course of trial, the Appellant/Applicant obtained his Certificate of Occupancy dated 23rd February 2012 and brought same to the attention of his Counsel at that time.
h. In response, the Appellant/Applicant’s Counsel stated that the Certificate of Occupancy was not relevant as evidence in the suit on the ground that the Respondent was only relying on a purchase receipt and Sale Agreement which was issued after the period Appellant/Applicant’s father bought the land.
i. Yet again, prior to the opening of the defence, the Appellant/Applicant requested that the Certificate of Occupancy dated 23rd February 2012 be put in evidence in support of his case.
j. However the Appellant/Applicant’s Counsel at that time discarded the Appellant/Applicant’s request on the ground the Sale Agreement dated 11th February 1976, relied on by the Respondent had been rejected at the proceedings of 19th February 2013.
k. Trial was concluded on 3rd June 2016 and judgment was delivered on 7th March 2017.
l. Consequently, the Appellant/Applicant instructed the law firm of G.R.F Dalley and Partners to file an Appeal against the judgment of the High Court of Lagos State delivered by the Honourable Justice R.I.B Adebiyi on 7th March 2017.
m. The Appellant/Applicant in the course of his interview disclosed the above stated facts to Counsel.
n. The Appellant/Applicant was immediately informed of the relevance of the Certificate of Occupancy in proving his title to the land, the subject matter of the suit.
o. The Appellant/Applicant in order not to delay the pace of this appeal immediately filed his Notice of Appeal dated 10th May 2017.
p. The evidence sought to be introduced by the Appellant/Applicant is credible being the Certified True Copy of the Certificate of Occupancy.
In support of the application is an affidavit of 4 paragraphs with one annexure, deposed to by one Damilola Umogboh, Litigation Officer in the firm of G.R.F. Dalley and Partners, Solicitor to the Appellant/Applicant. There is a Further Affidavit filed on 14/7/2020, with an annexure, marked Exhibit AO1, deposed to by Adeolu Oshinaya, also a Litigation Officer in the firm of G.R.F. Dalley and Partners. Exhibit AO1 was a copy of the Certified True Copy of the Appellant/Applicant’s Certificate of Occupancy dated 23/2/2012.
In opposition to the application, the Respondent filed a Counter Affidavit of 15 paragraphs on 19/3/2020, and a Further Counter Affidavit of 9 paragraphs, on 20/7/2020, both deposed to by Betse Dan-Abia, Legal Practitioner in the Chambers of Olumide Sofowora, Esq., SAN, Counsel for the Respondent.
The facts leading to this application are largely as deposed to by the Appellants/Applicants. The Respondent as Claimant commenced this suit in 2009. Trial commenced on 19/2/2013. In the course of trial, the Appellant/Applicant obtained a Certificate of Occupancy dated 23/2/2012 in respect of the land in issue and requested that it be put in evidence in support of his case. But his Counsel, at the material time, was of the view that the said Certificate of Occupancy was not relevant, considering the evidence adduced in the matter by the Respondent, who was only relying on a purchase receipt and Sale Agreement that was issued after the period Appellant/Applicant’s father bought the land, and which was later rejected in evidence. Trial was concluded on 3/6/2016 and judgment was delivered on 7/3/2017 against the Appellant. The Appellant/Applicant’s present Counsel, which filed the instant appeal on his instructions, advised that the said Certificate of Occupancy was relevant in proving his title to the land, the subject matter of the suit. The said advice led to the instant application.
In support of the application, Counsel for the Appellant/Applicant filed a written address on 14/7/2020. The written address of the Respondent was filed on 20/7/2020. At the hearing of this application on 14/3/2022, the written addresses were adopted by W.A. Esan, Esq., for the Appellant/Applicant, and by Olumide Sofowora, SAN with Muyiwa Esan, Esq., for the Respondent. While Mr. Esan urged the Court to allow the application, Mr. Sofowora, SAN, urged the Court to dismiss the application.
The Appellant/Applicant formulated the following Issue for determination:
Whether this Honourable Court should grant the Appellant/Applicant leave to introduce and/or adduce fresh evidence on appeal.
For the Respondent, the issue for determination was framed this way:
Whether this Honourable Court should grant the Appellant/Applicant leave to introduce and/or adduce evidence on appeal which was available for use during the trial at the lower Court and which was prepared when proceedings was pending at the lower Court in the name of the Appellant who is a person interested.
The issue as framed by both parties seek, in effect, the same resolution. I shall adopt the issue as formulated by the Appellant/Applicant, and consider all arguments alongside
Arguments
For the Appellant/Applicant, the Court is empowered by Order 4 Rules 2 and 3 of the Court of Appeal Rules, 2016 to grant such applications. Reliance was placed on Ohikhuare v Malami & Ors (2013) LPELR-22348(CA) to submit that the evidence sought to be introduced is a certified true copy of the Appellant/Applicant’s Certificate of Occupancy dated 23/2/2012 and registered as No 2 at Page 2 in Volume 2011 of the Lands Registry of Lagos State. The Appellant/Applicant’s Counsel at the time it was obtained had failed or refused to tender the document when it was brought to his notice, during the course of trial before the lower Court. On principles guiding the grant of such applications, the case of Koote & Anor v Namon (2019) LPELR-46454(CA) was cited and relied on. The Court was urged to grant the application.
For the Respondent, the application ought to be refused. The history of the matter which was commenced on 5/3/2009 by Writ of Summons was traced. The document in issue was prepared and dated 23/2/2012, at the time the matter was already pending at the lower Court. The provisions of Section 83(3) of the Evidence Act, 2011 was cited and relied on to submit that the said document, which was prepared in the name of the Appellant/Applicant, who was a person interested in the dispute at the lower Court, and for the purpose of establishing his claim to ownership of the property in dispute. The decisions in Mantec Water Treatment Nig Ltd v Petroleum (Special) Trust Fund (2007) 15 NWLR (PT 1058) 451 at 495-496, and Disu Olomo v Sunday Ape (2013) LPELR-22327(CA), were cited and relied on to submit that the document sought to be tendered lacked evidential value as it was in contravention of the provisions of Section 83(3) of the Evidence Act. The Respondent argued that the document was intended to overreach and steal a match on the Respondent. Since the document was inadmissible, the Court was urged to refuse the Appellant/Applicant’s application. On circumstances in which such applications could be granted, the case of Adegbite v Amosu (2016) 15 NWLR (PT 1536) 405 at 422-423 was cited and relied on.
Further reliance was placed on Section 167(d) of the Evidence Act, 2011 in urging the Court to dismiss the application.
Resolution
The jurisdiction of the Court of Appeal, which enables the admission of additional or fresh evidence on appeal, is not at large. Order 4 Rule 2 of the Court of Appeal Rules, 2021 (formerly Order 4 Rule 2 of the Court of Appeal Rules, 2016) provides:
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 matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds.
(Emphasis mine).
Considering similar provisions in Order 1 Rule 20(1), (3) of the Court of Appeal Rules, 1981, the Supreme Court, per Karibi-Whyte, JSC in Owata v Anyigor (1993) LPELR-2842(SC) pages 15 – 17, said
“It appears from the provisions of this rule that the Court is entitled to exercise its discretion where
(a) the matter on appeal has not been heard on its merits in the trial Court, or
(b) the appeal is from a judgment after trial or hearing on the merits.
In the first case, the Court has the power to receive further evidence on questions of fact in the manner provided. In the second case, further evidence is only received on special grounds. See Adeleke v. Aserifa (1990) 3 NWLR (Pt.136) 94.
The power vested in the Court by these rules to receive fresh evidence or further evidence is generally exercised reluctantly, sparingly and with great circumspection. This is because of the risks involved in allowing a person to reopen an issue after it has been decided on the excuse that new facts which could have been discovered and relied upon and used at the trial have now been found. It is likely to prejudice the position of the other party and result in the miscarriage of justice. The Court however will exercise the power in all cases where the Appellant has brought his case within the conditions prescribed in the rules and on the facts of the case, the interest of justice demands that the evidence be received. The rule has provided that fresh or further evidence will be admitted on special grounds.”
His Lordship further held:
“Analysis of decided cases disclose that the Courts have relied on the following principles, where;
First, the evidence sought to be adduced should be such that could not have been obtained with reasonable care and diligence for use at the trial – see Asaboro v. Aruwaji (1974) 4 SC.119, where the evidence was not within easy reach. The records kept by the Companies Registry was not open most of the time during the period.
Secondly, if the fresh evidence is admitted it would have an important, but not necessarily crucial effect on the whole case. – see Ladd v. Marshall (1954)3 All ER.745.
Thirdly, if the evidence sought to be tendered is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible – see Obasi v. Onwuka (1987) 3 NWLR (Pt.61) 364.
Fourthly, additional evidence may be admitted if the evidence sought to be adduced could have influenced the judgment at the lower Court in favour of the applicant, if it had been available at the trial Court- See Fawehinmi v. State (1990) 5 NWLR (Pt.148) 42.
Fifthly, the evidence should be material and weighty even if not conclusive. Where evidence sought to be admitted is irrelevant and immaterial it will be rejected, – See Nwokoro v. Nwosu (1990) 6 NWLR 679. Rinco Construction Co. v. Veepee Industries Ltd, (1990)6 NWLR (Pt. 158) 630, Adeleke v. Aserifa(1990) 3 NWLR (Pt. 136) 94.”
These conditions must all co-exist in an application seeking the exercise of this unusual discretion by the appellate Court; Chief Amadi-Dike-Ogu & Ors v. Amadi & Ors (2019) LPELR-47847(SC); Adeyefa & Ors v. Bamgboye (2013) LPELR-19891(SC). Once these conditions are met, this Court, by Section 15 of the Court of Appeal Act, 2004, may exercise the powers of the lower Court and make an objective finding of fact thereon; Attorney General of Kwara State & Anor v. Lawal & Ors (2017) LPELR-42347(SC); Joseph v. Fajemilehin & Anor (2012) LPELR-9849(CA).
In considering whether these conditions have been met to warrant the grant of this application, I believe a starting point ought to be whether the evidence sought to be tendered was admissible, in the light of provisions of the Evidence Act, 2011. Section 83(3) of the Evidence Act provides:
(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute is to any fact which the statement might tend to establish.
(4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialled by him or otherwise recognised by him in writing as one for the accuracy of which he is responsible.
I think these provisions are clear enough. Explaining who can be described as a person interested, Kekere-Ekun, JSC in U. T. C. (Nig) Plc v. Lawal(2013) LPELR-23002(SC) at pages 33-34, opined:
“A person interested has been described as a person who has a personal interest, financial, material or otherwise in the outcome of the proceedings. An “independent person” on the other hand is a person who has no temptation to depart from the truth on one side or the other; a person not swayed by personal interest but completely detached, judicial, impartial and independent. In interpreting the provision, the Courts are enjoined to give the expression a narrow rather than a broad meaning. See: Gbadamosi v. Kabo Travels Ltd. (pt. 2010) 8 NWLR (pt. 668) 243; Peterside & Ors. v. Wabara & Ors. (2010) LPELR- CA/PH/188M/2003 AT 8 D-G; Anyaebosi v. R.T. Briscoe Nig. Ltd. (1987) 3 NWLR (pt. 59) 84; (1987) 6 SCNJ 9 AT 22.
It has also been held that there must be a real likelihood of bias before a person making a statement can be said to be a “person interested”. A person acting in an official capacity is generally not considered to be a “person interested”.”
See also: Anyaebosi v. R.T. Briscoe (Nig.) Ltd (1987) LPELR-506(SC); Highgrade Maritime Services Ltd v. First Bank (1991) LPELR-1364(SC); Nigeria Social Insurance Trust Fund Management Board v. Klifco Nigeria Ltd (2010) LPELR-2006(SC); B.B Apugo & Sons Ltd v. OHMB (2016) LPELR-40598(SC); Ladoja v. Ajimobi & Ors(2016) LPELR-40658(SC).
The document in issue is the certified copy of the Certificate of Occupancy attached as Exhibit AO1 of the Further Affidavit. It is an official document prepared by the Lagos State Government, pursuant to the Land Use Act. It was issued/signed by the Governor of Lagos State. Within the meaning of Section 83(3)and (4) of the Evidence Act, the said document cannot be said to have been prepared by a person interested. The said document did not therefore fall foul of these provisions.
The question is whether there were any special circumstances that compelled the admission of the said document at this stage. The main reason given by the Appellant/Applicant is that his former Counsel did not see the need or relevance of tendering the said document in issue. His present Counsel is of the contrary view. In other words, the fresh or additional evidence sought to be tendered at this appellate stage, was available at the time the matter was being heard by the lower Court but was not brought before the Court, deliberately.
It is important to resound that a party is bound by the professionalism of his counsel. In County & City Bricks Development Company Ltd v. Hon. Minister of Environment Housing & Urban Development & Anor (2019) LPELR-46548(SC), the Supreme Court, per Peter-Odili, JSC said:
“This Court made this very clear in Akanbi v Alao (1989) 3 NWLR (Pt.108) 143, Per Eso as follows: –
“I think it would be extending Ibodo v Enarofia case beyond reason if every considered or assumed considered professional decision of a counsel which has gone wrong should qualify as ground of appeal. We did say once, and I am still of the firm view that the conduct of a case lies wholly with counsel. The rule really should be “caveat client”. If you choose a counsel, you should permit him, once seised of the case to conduct the case in the manner of his professional ability. Indeed that is part of the independence of the Bar. If there is a lapse in his office, his clerk forgetting to file some papers, he forgetting the date of hearing or such like procedural errors, of course, the client should not be made to suffer. If however, he takes a deliberate decision and loses thereby, then, it is his privilege to lose and that will constitute a right for the client for utilization as a ground of appeal. For, if it were not so, the profession would be in jeopardy”.
See also Rivtrust Securities Ltd & Ors v. AMCON (2019) LPELR-47966(CA), per Ogakwu, JCA.
From the clear depositions of the Appellant/Applicant, his former Counsel took a deliberate decision not to bring before the lower Court the Certificate of Occupancy that was issued during the pendency of the matter before the lower Court. The Appellant/Applicant must sink or swim with the consequence of this decision. In my considered view, I agree with Senior Counsel for the Respondent that it would be overreaching the Respondent to allow the document in issue come in at this stage. The application is therefore refused and is hereby dismissed.
I make no order as to costs.
The parties have already filed their respective Briefs of Argument in this appeal. Accordingly, this appeal is hereby adjourned to 16/1/2023 for hearing.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I was privileged to have read in advance, the draft copy of the lead judgment delivered by my learned brother Onyekachi Aja Otisi, JCA I agree that the application is unmeritorious and is hereby refused by me. I abide by the consequential orders.
PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the benefit of a preview of the ruling just delivered by my learned brother, ONYEKACHI AJA OTISI, JCA. I agree with the judicial reasoning and conclusions reached on the issues raised, which I adopt as my own. I hereby record my concurrence with the ruling dismissing the motion dated 9/3/2020, and abide by the consequential orders.
Appearances:
W.A. Esan, Esq. For Appellant(s)
Olumide Sofowora, SAN, with him, Muyiwa Esan, Esq. For Respondent(s)
