UNION BANK PLC v. NURAFF BUREAU DE CHANGE & ANOR
(2022)LCN/16587(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, July 01, 2022
CA/LAG/CV/568/2020(R)
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
UNION BANK PLC APPELANT(S)
And
1. NURAFF BUREAU DE CHANGE 2. ALHAJI NURUDEEN ABDULLAHI RESPONDENT(S)
RATIO
WHETHER OR NOT AN APPLICANT SEEKING TO ADDUCE FRESH EVIDENCE ON APPEAL SHOULD BE ALLOWED BY THE FRESH EVIDENCE SOUGHT TO BE ADDUCED TO CHANGE HIS POSITON IN THE COURT OF APPEAL
It is against these background prerequisites for admission of fresh evidence on appeal that an applicant seeking to adduce fresh evidence on appeal should not be allowed by the fresh evidence sought to be adduced to change his position in the Court of Appeal by making a completely different case from the one he had presented at the trial Court. Where that becomes the case, this Court will not allow such. See on this position – UOR V LOKO (1988) 2 NWLR (PT 77) 430 AT P 438; AND EJIOFODOMI V OKONKWO (1982) 11 SC 74 AT P. 96 PER ADAMU J.C.A. PER UMAR, J.C.A.
THE JURISDICTION OF THE COURT OF APPEAL THAT ENABLES THE ADMISSION OF ADDITIONAL OR FRESH 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 Rules 2 and 3 of the Court of Appeal Rules, 2021 provide:
2. 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.
3. The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other order(s) as the case may require, including any order as to costs.
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.” PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgement): This application herein filed on 13/03/2021 prays for the following reliefs:
1. AN ORDER of this Honourable Court granting the Appellant/Applicant leave to adduce fresh evidence on appeal by admitting in evidence the letter of investigation activities from the Economic and Financial Crimes Commission dated the 8th of June, 2018 and attached hereto marked Exhibit A as part of the documents upon which this appeal is to be determined.
2. AN ORDER of this Honourable Court granting the Appellant/Applicant leave to (upon the admission of the said exhibit A) rely upon the same and have the said letter dated the 8th of June, 2018 marked as Volume 2 of the Appellant’s Record of Appeal in this appeal.
3. AND FOR SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.
The grounds given in support of the application as shown are as follows:
1. The Records of Appeal containing substantially all the documents necessary for the hearing of this appeal have already been transmitted by the Appellant in appeal number CA/LAG/CV/568/2020 UNION BANK OF NIGERIA PLC VS. NURAFF BUREAU DE CAHNGE, ALAHI NURUDEEN ABDULLAHI.
2. The proceedings culminating in this appeal were conducted and concluded while the Economic and Financial Crimes Commission was still carrying out its investigations.
3. A certified true copy of the document sought to be now admitted was not available until trial had been concluded and the suit before the lower Court adjourned for the adoption of final written addresses.
4. The evidence sought to be introduced is a letter referencing previous letters by the Economic and Financial Crimes Commission (EFCC) and requesting that the restriction placed on the Respondent’s account be removed and normal transaction be allowed.
5. The document sought to be admitted is relevant and facts to ground its admission were pleaded in paragraphs 3,4, and 6 of the Defendant’s Statement of Defence before the lower Court.
6. The document sought to be admitted was not available prior to the conclusion of trial and could not have been obtained with reasonable diligence on the part of the Applicant.
7. The admission of the document by this Honourable Court has an important bearing on this appeal and it is altogether credible.
8. The said document could have influenced the judgment of the lower Court in favour of the Appellant, had it been available to that Court.
9. It would be in the overall interests of justice to grant this application in order to pave way for the hearing of the substantive appeal.
In support of the application is a 9 paragraphed affidavit with one annex marked exhibit A i.e. the fresh/additional evidence sought to be added. In support of the application the Respondents filed a written address dated 26/03/2021 and filed on 29-3-2021. The Respondents’ address dated and filed on 31-3-2021. Abiodun Olaleru, Esq., for the Appellant/Applicant adopted his written address and urged the Court to grant the application. Mr. Gabriel Utomi Giwa, Esq., adopted the respondents’ written address and urged the Court to dismiss the Application. Learned counsel for the Applicant filed a reply address on point of law of 3 pages, dated 29th day of April, 2021.
The Appellant/Applicant had deposed in paragraph 2 of the supporting affidavit that:-
i. The Respondent instituted the suit which culminated in this appeal at the lower Court on the 4th of March, 2014 seeking amongst other prayers for a declaration that the action of the Defendant/Appellant in refusing the Respondents access to operate their account with Number 0037268313 is wrongful, illegal, unconstitutional, arbitrary, null and void.
ii. The Appellant only denied access to the Claimant/Respondent’s account in compliance with a Banker’s Order issued by a Magistrate on the 25th of January, 2013 and pursuant to an application made to the Court by the Economic and Financial Crimes Commission (EFCC) pursuant to Section 38(1) and (2) of the Economic and Financial Crimes Commission (Establishment) Act, 2004 and Section 21 of the Money Laundering (Prohibition) Act, 2011.
iii. The Appellant/Applicant in compliance with the Economic and Financial Crimes Commission letter dated the 16th of January, 2013 placed “POST ON DEBIT” Order on the Respondents’ account.
iv. The Economic and Financial Crimes Commission (EFCC) wrote to the Appellant/Applicant by letter dated the 8th of June 2018 after trial had closed in the matter and the case adjourned for the adoption of financial written addresses that the restriction placed on the account be removed.
v. This new evidence was only received on the 13th of June, 2018 and was not available as at the 10th day of October, 2017 when the matter was adjourned for the adoption of final written addresses by the lower Court as contained on page 471 of the Record of Appeal in this case.
vi. Facts to ground the document sought to be admitted were pleaded and the evidence itself I verily believe, is credible.
vii. I verily believe that the document sought to be introduced will have an important bearing on the appeal.
viii. It will be in the interest of justice to grant this application and I verily believe that the Respondents will not be prejudiced thereby.
In opposition to this application, the Respondents filed a counter affidavit, stated as thus:-
5 (1) That the judgment in this suit was delivered on the 27th February, 2019.
(2) That the Appellants at the lower Court did not establish that the Appellant complained or made a report against the Respondents to the Police or to the EFCC.
(3) That the Banker’s Order of the Magistrate issue on the 25th January, 2013 referred to by the Appellant in this application, which was admitted as exhibit D at the lower Court did not specifically mention the name of the Respondents.
(4) That the Appellants did not tender the Affidavit attached to the Banker’s Order indicating the names of those affected by the Bankers Order for the lower Court to know if the Respondents were among the names listed on the Banker’s Order.
(5) That the letter dated 16th January, 2013 referred to in the Appellant affidavit in support was rejected by the lower Court as exhibits R1/R2.
(6) That the Appellant throughout the trial at the lower Court did show to the lower Court that the account of the Respondents was subject or subject of EFCC investigation.
(7) That the Appellant throughout the trial did not invite the EFCC personnel and Police to give the lower Court the description of any investigation, accusation or protection concerning the Respondent account.
(8) That the letter dated 8th June, 2018 from the Economic and Financial Crimes Commission sought to be admitted as fresh evidence was not pleaded and was not part of the documents relied upon by the Appellant at the lower Court.
(9) That the letter dated 8th June, 2018 is a procured document which has no relevance with the Respondents case at the Lower Court.
(10) That the documents sort to be admitted as fresh evidence has no relevance on this appeal and calculated attempt by the Appellant to continue holding on to the Respondents’ account since 2013.
(11) That the document will not influence the judgment of the lower Court nor this appeal.
(12) That the facts before the lower Court are that the Appellant and the EFCC did not obtain the Order of the Court before the account of the Respondents was illegally blocked.
(13) That the Appellant cannot procure fresh document to contradict admitted facts of the lower Court’s judgment which the Appellant did not appeal against before the Appeal Court.
(14) That the fresh evidence sought to be adduced by the appellant in this appeal confirms the illegality and injustice the EFCC and the Appellant perpetuated on the Respondents current account No. 0037268313 the subject matter of this appeal.
6. That it will tantamount to grave injustice to allow the Appellant to continue to debar the Respondents from reaping the fruit of its judgment and for the Appellant to hold on to the Respondents account since 2013 to date.
7. That it will be in the interest of justice for the Honourable Court to dismiss this application.
ARGUMENTS OF COUNSEL
Mr. Abiodun Olarewaju for the Appellant/Applicant relied on the deposition in the affidavit in support of the motion and the Exhibit attached to state that this Court is empowered to hear and grant this application by virtue of Order 4 Rules 1, 2 & 3 of the Court of Appeal Rules 2016. He cited the cases of Aroh vs. PDP (2013) 13 NWLR (Pt. 137) Pg. 235 and C.P.C vs. Ombugadu (2013) 18 NWLR (Pt. 1385) Pg. 66.
Learned counsel argued that the appellant could not have frontloaded a document which it had only received on 13th June, 2018, which the record had already been transmitted by the appellant. He stated that evidence sought to be introduced is a letter referencing previous letters of the economic and financial crimes commission (EFCC).
Counsel for Applicant submitted that the Appellant has acted with reasonable care and diligence in obtaining the document in existence as at the time when trial was concluded. He finally urged the Court to grant the application.
Learned counsel for the Respondent on the other hand, adopted the 3 issues formulated in his written address and relied on the counter affidavit. The issues are: – (i), (ii), and (iii).
(i) Whether the Court of Appeal has the jurisdiction to allow the appellant/applicant to proffer fresh evidence to contradiction finding of facts of the lower Court admitted by the appellant in this appeal and that which the appellant did not appeal against finding of facts.
(ii) Whether the appellant has complied with the condition of adducting fresh evidence in this appeal.
(iii) Whether the fresh evidence sought to be adduced can influence the judgment of the lower Court had it been made available.
Arguments on these issues are contained at pages 2-7 of the written address of the Respondents. In determining this application, I think it is desirable to formulate an issue distinct from the issues formulated by counsel in the interest of justice.
I therefore formulate the sole issue for determination of this application as thus:- WHETHER THIS APPLICATION HAS MERIT AND IS GRANTABLE.
To answer this issue, I have to make reference to Order 4 Rule 2 of the rules of this Court 2021 which provide thus:-
“the Court shall have power to receive further evidence on questions of fact either by oral examination in Court by affidavit or by depositions taken before and examination 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 (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds”.
The apex Court has consistently stated the conditions precedent to grant of application to adduce further evidence on appeal to wit;
a. The evidence sought to be adduced must be such that could not have been with reasonable diligence obtained for use at the trial.
b. The evidence should be such that if admitted, would have an important not necessarily crucial effect on the whole case, and
c. The evidence must be such that is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.
The law is trite that fresh evidence on appeal is allowed if the admission of further evidence is necessary to prevent an obvious miscarriage of justice- see ATTORNEY-GENERAL OF OYO STATE V FAIRLAKES HOTELS LTD (1988) 5 NWLR (PT 92) 1 AT P. 19; AND ONWUGBUFOR V OKOYE (1996) 1 NWLR (PT. 424) 252 AT P. 291; ABAYE V. OFILI (1986) 1 NWLR (PT. 15) 134 AT P, 145.
The Respondents contended that if the door were left open for anyone who had fought and lost a case at the Court of trial to bring new evidence on appeal, there would be no end to litigation. He further stressed this point by arguing that application for additional or fresh evidence is not intended either to be employed by the appellant/applicant to supply the missing links in its case, or that it be used by the appellant/applicant as a repair kit to enable him mend its case at the trial that he lost. The Respondents has also argued strenuously that the Appellant/Applicant did not establish that she complained or made a report against the Respondents to the police or EFCC or that the Respondents’ account was subject of an investigation or that the account was blocked on Banker’s order.
After giving careful thought to the arguments of counsel, I asked rhetorically; are these concerns expressed by the Respondents applicable to the present circumstance so as to defeat the quest to admit the fresh evidence in this appeal?
By the very nature of the evidence sought to be introduced at this stage, it seems that there is no way the said document could have been available at the lower Court to be evaluated but only became available after parties had closed their cases and the matter adjourned for adoption of final written addresses. The document from all indications was not available prior to the conclusion of trial and could not have been obtained with reasonable diligence.
It is against these background prerequisites for admission of fresh evidence on appeal that an applicant seeking to adduce fresh evidence on appeal should not be allowed by the fresh evidence sought to be adduced to change his position in the Court of Appeal by making a completely different case from the one he had presented at the trial Court. Where that becomes the case, this Court will not allow such. See on this position – UOR V LOKO (1988) 2 NWLR (PT 77) 430 AT P 438; AND EJIOFODOMI V OKONKWO (1982) 11 SC 74 AT P. 96 PER ADAMU J.C.A
However, I have carefully considered the date the said document was issued. The document was dated 8th of June, 2018 and was received on 13th June, 2018 by the appellant after trial had been concluded and the proceedings adjourned for final written addresses. In other words, it would be different ball game if the document was in existence at the material time of the proceeding and the appellant refused or neglected to utilize same at the trial to his benefit. Obviously, the Applicant could not have tendered invisible evidence to the Court below.
The appellant in my view acted with diligence in retrieving the documents not in existence as at the time when trial was concluded. It is a document which can only speak for itself at the appropriate time for its consideration.
It is against the backdrop of the forgoing that I hold the strong view that this application has merit and ought to be granted. It is hereby accordingly granted in the overall interest of justice.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft the leading ruling delivered by my earned brother, Abubakar Sadiq Umar, JCA I concur fully with the reasoning and conclusion in it. I too, grant the application in the manner decreed in the leading ruling. I abide by the consequential orders made therein.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Abubakar Sadiq Umar, JCA made available to me a copy of the Ruling now delivered in draft form in which this application was granted. I agree with, and accept as mine the resolution of the issues in contention, as comprehensively done by my learned brother. I will only make few comments in support.
The jurisdiction of the Court of Appeal, which enables the admission of additional or fresh evidence on appeal is not at large, Order 4 Rules 2 and 3 of the Court of Appeal Rules, 2021 provide:
2. 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.
3. The Court shall have power to draw inferences of fact and to give any judgment and make any order, which ought to have been given or made, and to make such further or other order(s) as the case may require, including any order as to costs.
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), Subaya Metalware (Nig) Ltd v. Toyota Motor Corp. & Anor (2021) LPELR-57346(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). Fundamentally, the fresh evidence should be relevant to the appeal.
I am convinced that the Appellant herein has acted with reasonable diligence to retrieve the document sought to be brought before the Court. It is my view that it is in the interest of justice for this Court to grant this application.
It is for this reason, and for the fuller reasons given in the leading Ruling, that I also grant this application.
Appearances:
O. Olaleru For Appellant(s)
G. U. Giwa For Respondent(s)
