YAFUGBORHI v. SIKURU & ORS
(2022)LCN/16626(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Wednesday, June 01, 2022
CA/AS/177/2018
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
EKI YAFUGBORHI (For Himself And On Behalf Of The Descendants Of Gbebue And David Ugoruvwoghor Yafugborhi Of Otu-Jeremi Town) APPELANT(S)
And
1. EDIRIN SIKURU 2. TAKUFIA OKPEMU 3. MADDOCKS TARIEN (For Themselves And On Behalf Of The Otu-Jeremi Town) RESPONDENT(S)
RATIO
THE CONDITIONS WHICH AN APPLICANT MUST SATISFY BEFORE LEAVE TO ADDUCE ADDITIONAL EVIDENCE CAN BE GRANTED BY THE COURT
The conditions which an applicant must satisfy before leave to adduce additional evidence can be granted by the Court have been settled by a long line of cases. The conditions are as follows:- 1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the Court of trial. 2. The Court must be satisfied that the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. 3. The evidence must be apparently credible, though it need not be incontrovertible. These conditions must co-exist before an application for additional evidence is granted. See UBA PLC. V. BTL IND. LTD (2005) LPELR-8065(SC) AT 14-15 (F-B). ADEYEFA & ORS. V. BAMGBOYE (2013) LPELR-19891(SC) AT 15-18 (D-C). WILLIAMS & ANOR V. ADOLD/STAMM INT’L (NIG) LTD & ANOR (2017) LPELR-41559(SC) AT 25-26 (A-A), (2007) 6 NWLR (PT.1560) 1. PER BOLAJI-YUSUFF, J.C.A.
THE GUIDING PRINCIPLES ON THE GRANT OF LEAVE TO ADDUCE ADDITIONAL EVIDENCE ON APPEAL
In DIKE-OGU & ORS. V. AMADI & ORS (2019) LPELR-47847(SC) AT 25-27 (F-B) the Supreme Court Per ABBA AJI, JSC stated the guiding principles on the grant of leave to adduce additional evidence on appeal as follows:
“Parties and Counsel are advised to adequately prepare for their cases and not to waste the precious time of the Court with flimsy and frivolous applications especially with regard to bringing in fresh evidence. The taking of fresh evidence is not a rule of pleading but a panacea out of a necessity or special and unavoidable circumstance to proffer justice to a given case. The leave to adduce fresh evidence is grantable usually to obviate the need and necessity of not crying after spilled milk or when the head is cut off since justice is not only for the party seeking it but for all, especially in our judicial jurisprudence of precedents and case laws. Again, since Honourable Justices and Judges are human beings and therefore not infallible, they can make mistakes or commit errors at any time like any other mortals. Thus, the desideratum of considering some fresh evidence not available at the time the case came up for hearing. Some of the reasons for allowing further evidence on appeal are where the matter arose ex improviso which no human ingenuity could foresee and it is in the interest of justice that evidence of that fact be led:R. V. Dora Harris (1927) 28 Cox 432. See also Per OGUNTADE, J.S.C in UBA PLC. V. BTL IND. LTD (2005) LPELR-8065(SC). The procedure for admitting further evidence on appeal is not at the disposal of an indolent or not diligent litigant. The procedure cannot be used for the repair of a case at the end of the trial. It is not designed to overreach the other party or spring surprise at the other party when the appeal is heard. See Per TOBI, J.S.C in OKORO & ORS V. EGBUOH & ORS (2006) LPELR-2491(SC).” PER BOLAJI-YUSUFF, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
The law is settled that an appellate Court would not interfere unless the exercise of discretion by a lower Court is manifestly wrong, arbitrary, reckless or injudicious which is not the case here. See BRAITHWAITE & ORS V. DALHATU (2016) LPELR-40301 (SC) AT 24-25(B-A). APGA & ANOR. V. UMEH & ORS (2011) LPELR-426(SC) AT 35-36 (D-A). Once the discretion is exercised judicially and judiciously by the lower Court, that is to say, with correct and convincing reasons as in the instant case, the exercise of discretion will not be disturbed. PER BOLAJI-YUSUFF, J.C.A.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This appeal is against the ruling of the Customary Court of Appeal, Delta State delivered in appeal no. DCCA/20A/2017 on 16/1/2018 which appeal emanated from the judgment in suit no. DCCA/34/88 instituted in the Customary Court of Bendel State, Agbaro District Customary Court on 25/1/88 wherein the appellant’s father was a defendant. Judgment was delivered against the appellant’s father on 20/12/88. An appeal filed against the judgment was struck out twice, the last being on 4/12/92. The appellant succeeded in obtaining leave to appeal against the ruling which struck out the suit on 4/12/92. The appeal to the Customary Court of Delta State was allowed on 16/5/2017. The Court ordered the Customary Court to send the appeal no. UACC/1A/90 to the Customary Court of Appeal for hearing and it is now the appeal no. DCCA/20A/2017. By an application filed on 9/6/2017, the appellant applied for an order to substitute him for late Pa David U. Yafugborhi as the appellant and Edirin Sikuru, Takufia Okpemu and Maddocks Tarien for late Isikuru Okpiroro as respondents and an order for leave to adduce additional evidence in the appeal.
In a considered ruling delivered on 16/1/18, the prayer for substitution was granted while the one for leave to adduce additional evidence was refused. The appellant filed a notice of appeal dated 25/1/18 containing one ground of appeal against the part of the ruling which refused leave to adduce additional evidence.
The appellant’s brief of argument was filed on 24/4/18. The respondent’s brief of argument was filed on 9/11/18. It was deemed as properly filed and served on 25/2/22. The appellant filed a reply to the respondent’s brief on 11/3/2019. The appellant formulated the following issue for determination:
“Whether having regards to all the circumstances of this case, the lower Court was right in refusing to allow the appellant to adduce additional evidence in this case.”
The respondent adopted the issue formulated by the appellant and formulated the following additional issue as issue 2:
Whether the appellants have made out a case warranting this honourable Court to interfere with the lower Court’s exercise of discretion?
The appellant in his reply urged the Court to discountenance the respondent’s brief as there cannot be more issues than the ground of appeal and the respondent who did not cross-appeal can only adopt the issues formulated by the appellant based on the grounds of appeal. He referred to ATANDA V. AJANI (1989) 3 NWLR (PT.111) 5111. GWEDE V. INEC (2014) 18 NWLR (PT.1438) 56.
As rightly submitted by the appellant’s counsel, the Courts have constantly frowned at formulating more than one issue from a ground of appeal. In other words, there should be no proliferation of issues over and above the grounds of appeal raised. See DREXEL ENERGY & NATURAL RESOURCES LTD & ORS v. TRANS INTERNATIONAL BANK LTD & ORS (2008) 18 NWLR (PT.1119) 388, (2008) LPELR-962(SC) AT 31 (D-F) where the Supreme Court Per OGBUAGU, J.S.C held as follows:
“It is settled that no party to an appeal, is allowed to formulate more than one issue from one Ground of Appeal. See the case of A.C.B. Plc. v. Odukwe (2005) All FWLR (Pt. 276) 804. In other words, neither party is allowed to formulate more issues than the Grounds of Appeal as contained in the appellant’s Grounds of Appeal. See the case of Gwar v. Adole (2003) FWLR (Pt. 176) 747 @ 760. The exception is in special cases where the Grounds of Appeal, dictate.”
See also STATE V. OMOYELE (2016) LPELR-40842(SC) AT 33 (B-D), (2017) 1 NWLR (PT.1747) 341. NWEZE V. STATE (2017) LPELR- 42344(SC) AT 4-5 (F-B), (2018) 6 NWLR (PT.1615) 197. The respondent who did not file a cross-appeal has no business formulating an additional issue from the sole ground of appeal. Issue 2 formulated by the respondent is incompetent and is hereby struck out.
On the sole issue formulated by the appellant, the appellant’s counsel submitted that there may have been an initial mistake in putting the documents the appellant is seeking to bring in as additional evidence before the Court in previous proceedings but such mistake should not be a bar to a party retracing his steps and correcting his mistake. According to counsel, blunders must occur from time to time but as long as such blunders can be remedied by remedial applications which will do absolutely no harm to the other side and as long as the other side is not overreached, the litigants should be allowed to correct their mistakes. He referred to AKANINWO V. NSIRIM (2008) 9 NWLR (PT.1093)439.
The respondent’s counsel referred to ASABORO V. ARUWAJI (1974) 4SC 119, U.B.A. PLC V. BTL IND. (2005) 10 NWLR (PT.933) 356 on the principles guiding consideration of an application for leave to adduce additional evidence on appeal. He submitted that the additional evidence must be material and weighty, although not necessarily conclusive. He referred to NWAOGU V. ATUMA (2013) 10 NWLR (PT.1363) 591) MAJOR ABU V. ALHAJI TIJJANI AHMED (2016) LPELR- 41327. He posited that the affidavit in support of the application did not satisfy any of the conditions for granting an application for leave to adduce additional evidence on appeal.
RESOLUTION
The conditions which an applicant must satisfy before leave to adduce additional evidence can be granted by the Court have been settled by a long line of cases. The conditions are as follows:- 1. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the Court of trial. 2. The Court must be satisfied that the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. 3. The evidence must be apparently credible, though it need not be incontrovertible. These conditions must co-exist before an application for additional evidence is granted. See UBA PLC. V. BTL IND. LTD (2005) LPELR-8065(SC) AT 14-15 (F-B). ADEYEFA & ORS. V. BAMGBOYE (2013) LPELR-19891(SC) AT 15-18 (D-C). WILLIAMS & ANOR V. ADOLD/STAMM INT’L (NIG) LTD & ANOR (2017) LPELR-41559(SC) AT 25-26 (A-A), (2007) 6 NWLR (PT.1560) 1. The appellant stated the facts upon which his application is predicated and the additional evidence he is seeking to adduce in paragraph 4 of his affidavit in support of the application as follows:
4. That I know as a fact that:
a) The judgment which is the subject matter of this appeal was delivered in the year 1988.
b) There were certain crucial facts which would have influenced and affected the judgment of the lower Court one way or the other which facts were not brought to the attention of the lower Court, and some of these facts include:
i. the father of the appellant had alleged before the trial Court that the President of the Court at the material time in 1988 was biased against him.
ii. Evidence abound that when the late David U. Yafugborhi was President General of Out-Jeremi (Otughievwen), the said Gordon Umukoro who presided over the proceedings of the trial Court was also a member of the Otu-Jeremi Community and was sent on errands by the David U. Yafugborhi.
iii. The 1st Respondent when he wanted to get married printed marriage invitation which disclosed that he is a native of Ovu-Inland and not from Otu-Jeremi.
iv. David U. Yafugborhi was the 1st Chairman of Otu-Jeremi Community, a position to which no stranger could rise or could attain.
v. David U. Yafugborhi was at a time, the senior spokesman of the Otu-Jeremi Community, a position never held by a stranger.
vi. David U. Yafugborhi was family Trustee/ Representative of the entire Mukri family Otu-Jeremi Community in an agreement entered into in 1964.
vii. David U. Yafugborhi was the Mukri Family representative in respect of agreements entered into with Shell Petroleum Development Company Ltd.
viii. The son of David U. Yafugborhi who is the appellant herein, was the General Secretary of the Community, a position which a stranger cannot attain.
ix. When the original Plaintiff/Respondent died, he was buried in Ovu Inland in Ethiope East Local Government Area of Delta State and not in Out-Jeremi (Chief Isikuru Okpiroro)
x. When the original Defendant/Appellant died he was buried in his house in Mukri’s family compound in Otu-Jeremi.
xi. David U. Yafugborhi built his first block house in 1960 in Uduebor Quarters in Otu-Jeremi on Mukri’s family land since he is a bonafide member of the family.
xii. The real father of Isikuru Okpiror was David Usiyan from Ovu Inland in Ethiope East L.G.A of Delta State, he decided to adopt his mother’s father’s name to disguise his real identity.
xiii. A 1st cousin of David U. Yafugborhi named Omotefe Niboro also built a block house on the same Mukri’s family land and their status as members of the Mukri Family was never challenged at any point in time and Omotefe Niboro was also buried in her house on the Mukri Family land.
xiv. Isikuru Okpiroro who claimed to be a descendant of the Mukri Family never built any property or house on Mukri Family land.
xv. The President of the District Customary Court at Agbarho who presided over the suit at the trial was a political rival to David U. Yafugborhi, when the president lost election to P.E.S Ideh, he felt David U. Yafugborhi joined to conspire against him and he publicly declared that he would deal with David U. Yafugborhi.
xvi. Even when allegation of bias was raised before the trial Court, the Court refused an application to transfer the suit.
c) That I know that the said facts are crucial and will affect the judgment of the Court if brought to the attention of the Court one way or the other.
d) The facts which are sought to be adduced are facts which also are well known to the Respondents and they are facts which are known to the entire Otu-Jeremi Community that they cannot be denied in the course of leading the additional evidence. I shall tender the following documents to establish my position:
i. The C.T.C of the enrolment of judgment in case No. 562/20 of 6/5/20.
ii. C.T.C of proceedings judgment in case 43/60. Between D.U Yafugborhi v. Korume & Morere
iii. C.T.C of proceedings/judgment in suit No. HCG/38/2005
iv. Copy of proceeding before Okobaro’s Palace of 21/1/1988.
v. Marriage invitation card of Odirin Sukuru (1st Respondent) (2005)
vi. 1964 Agreement in Otu-Jeremi Community (the three sub-quarters)
vii. Agreement between Shell Petroleum Development Company and the three families of 10/4/1970
viii. Agreement between Shell Petroleum Development Company and the three families of 13/1/1975
ix. Agreement between Shell Petroleum Development Company and the three families of 13/1/1975
x. Sundry receipts for payment of compensation for damaged crop of 13/1/1975, 13/1/1975, 9/9/1974, 9/9/1974, 17/9/1974 & 13/9/1974.
xi. List of Mukri’s (Mukri) Family members who contributed to the 1960 case.
xii. Letters of 8/3/85, 14/2/85 and 16/3/85 to and from the Department of Land and Survey in Bendel State.
xiii. Letter of 16/4/1970 Change of family Representative to Shell BP
xiv. Proclamation by Mukri (Mukri) family of 1/12/1972.
xv. Fundraising letter of Otughievwen Community of 31/10/1980.
xvi. Sharing of received income from SPDC 5/12/97 and 24/3/2004
xvii. Otughievwen Constitution Reviewed in 1998 (Amended) 2014
xviii. Otughievwen Constitution, 2014 (Amended)
xix. Programme of event for OML 34 Host Landlords Open Forum 27/9/2012
xx. Document headed UTOROGU bearing the date 1/7/2002.
xxi. Letters both dated 4/10/2004 from SPDC on Expired Swamp hire lease of 16″ South Forcados.
xxii. Account book kept when David U. Yafugborhi was the Chairman of Otu-Jeremi Community.
xxiii. Invitation card to the Burial Ceremony of David U. Yafugborhi in 2005.
xxiv. Mukri Family Account Book between 1968-1980 showing sharing of money in Mukri Family for damage to fish pond and farm lands.
xxv. Motion for stay of farming in suit No. 43/60 Between D.U Yafugborhi Vs. Morere & Anor. Dated 21st March, 1960. pgs 118-120
The lower Court held as follows at page 258 of the record of appeal:
“The question to be resolved in prayer 1 is whether the appellant/applicant has met the legal requirements for the prayer to adduce additional evidence on appeal. The only document that is relevant is the affidavit in support of the motion on notice. We have earlier reproduced the affidavit. There is nothing to show the reason why the evidence that was available at the time of the trial was not adduced. There is also nothing to show that the documents could not be obtained after due diligence for use at the trial as prescribed in Amaechi v INEC (Supra) and other sister cases. The conditions for the grant of leave to adduce additional evidence have not been met in the affidavit in support or the motion on notice”.
I have no reason to disagree with the lower Court. It is obvious from the affidavit in support of the application that most of the facts and documents the appellant is seeking to adduce as additional evidence were available at the time of trial at the Customary Court and the documents could have been obtained with some reasonable diligence. A careful consideration of the affidavit in support of the application shows that the application is simply a call for a new trial. Though Order VII Rule 12 of the Customary Court of appeal Rules, 2019 of Delta State provides that:
“Upon the application by either party to the appeal, the Court may, in any case hear (sic) it may consider it necessary that evidence should be adduced either.
(1) Order such evidence to be adduced, before the Court on a day to be appointed in that behalf and on subsequent adjournments thereof; or
(2) Refer the case back to the lower Court to take such evidence, and may in such case either direct the lower Court to adjudicate afresh after taking such evidence and subject to such directions in law, if any, as the Court may deem fit to give; or direct it after taking such evidence, to report specific findings of fact for the information of the Court and on any such reference the case shall so far as may be practicable and necessary be dealt with as if it were being heard in the instance.”
It is clear from the above rule of Court that granting an application for leave to adduce additional evidence calls for an exercise of Court’s discretion which discretion must be exercised judicially and judiciously.
A new trial would not be ordered where the fresh evidence could have been obtained by exercising reasonable diligence during the trial. A party who has won a case at the trial Court on the case brought to Court by his adversary ought to not normally be confronted with a new case on appeal simply because his adversary decided to bring his case in dribs. See ADEYEFA & ORS. V. BAMGBOYE (SUPRA).
In DIKE-OGU & ORS. V. AMADI & ORS (2019) LPELR-47847(SC) AT 25-27 (F-B) the Supreme Court Per ABBA AJI, JSC stated the guiding principles on the grant of leave to adduce additional evidence on appeal as follows:
“Parties and Counsel are advised to adequately prepare for their cases and not to waste the precious time of the Court with flimsy and frivolous applications especially with regard to bringing in fresh evidence. The taking of fresh evidence is not a rule of pleading but a panacea out of a necessity or special and unavoidable circumstance to proffer justice to a given case. The leave to adduce fresh evidence is grantable usually to obviate the need and necessity of not crying after spilled milk or when the head is cut off since justice is not only for the party seeking it but for all, especially in our judicial jurisprudence of precedents and case laws. Again, since Honourable Justices and Judges are human beings and therefore not infallible, they can make mistakes or commit errors at any time like any other mortals. Thus, the desideratum of considering some fresh evidence not available at the time the case came up for hearing. Some of the reasons for allowing further evidence on appeal are where the matter arose ex improviso which no human ingenuity could foresee and it is in the interest of justice that evidence of that fact be led:R. V. Dora Harris (1927) 28 Cox 432. See also Per OGUNTADE, J.S.C in UBA PLC. V. BTL IND. LTD (2005) LPELR-8065(SC). The procedure for admitting further evidence on appeal is not at the disposal of an indolent or not diligent litigant. The procedure cannot be used for the repair of a case at the end of the trial. It is not designed to overreach the other party or spring surprise at the other party when the appeal is heard. See Per TOBI, J.S.C in OKORO & ORS V. EGBUOH & ORS (2006) LPELR-2491(SC).”
There is no doubt that the appellant got wiser after his father lost the case and what he is trying to do is to repair the damage or correct the mistakes which he thinks or believes that his father made in the defence of the respondent’s claim. The appellant stated that the evidence which he is seeking to adduce as additional evidence are facts well known to the entire Otu- Jeremi Community which means the facts were available and could have with reasonable diligence been presented before the trial Court. According to counsel, there was an initial mistake in putting in the documents. If every litigant is given an open door to correct their mistakes after losing a case, there would be no end to litigation. See UBA PLC. V. BTL IND. LTD (2005) LPELR-8065(SC) AT 13-14 (D-B) where the Court held that:
“The discretion to grant a party the liberty to call new evidence on appeal is one sparingly exercised. This is because its indiscriminate use portends great danger for the administration of justice. In a case as this which was commenced at the High Court, parties exercise their right to file pleadings and later call evidence at the trial in support of their different standpoints. Witnesses called are cross-examined by their adversaries. It is the normal expectation therefore, that parties would diligently bring before the Court all the evidence needed in support of their case including all documents. Human experience shows that we often get wiser after an event. When judgment has been given in a case, parties with the advantages of what the Court said in the judgment get a new awareness of what they might have done better or not done at all. If the door was left open for everyone who has fought and lost a case at the Court of trial to bring new evidence on appeal, there would be no end to litigation and all the parties would be the worse for that situation. There is no doubt that there is a jurisdiction and power in the Court to allow fresh evidence on appeal but it is a power which has been used only in exceptional circumstances.”
The law is settled that an appellate Court would not interfere unless the exercise of discretion by a lower Court is manifestly wrong, arbitrary, reckless or injudicious which is not the case here. See BRAITHWAITE & ORS V. DALHATU (2016) LPELR-40301 (SC) AT 24-25(B-A). APGA & ANOR. V. UMEH & ORS (2011) LPELR-426(SC) AT 35-36 (D-A). Once the discretion is exercised judicially and judiciously by the lower Court, that is to say, with correct and convincing reasons as in the instant case, the exercise of discretion will not be disturbed.
For the above reasons, the sole issue formulated is resolved against the appellant. The appeal is unmeritorious. It is hereby dismissed. The ruling delivered by the Customary Court of Appeal of Delta State in appeal no. DCCA/34/2017 on 16/1/2018 is hereby affirmed. There shall be N100,000.00 (One Hundred Thousand Naira) costs in favour of the respondents against the appellant.
JOSEPH EYO EKANEM, J.C.A.: I read in advance, a copy of the lead judgment of my learned brother, BOLAJI-YUSUFF, JCA, which has just been delivered. For the reasons stated therein, I find the appeal to be unmeritorious.
I also dismiss the same and abide by the consequential orders made in the lead judgment.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have the privilege of reading the draft, the judgment of my lord MISITURA OMODERE BOLAJI-YUSUFF JCA, and entirely agree with her reasoning and conclusion except to add that; in an application to adduce fresh evidence, all the preconditions must co-exist before a grant, which is a discretionary exercise by the judex who in his opinion is of the view that it is actually fresh facts.
See CHIEF HUMFREY ANUMUDU V CHIEF ACHIKE UDENWA & ORS (2003) LPELR-7223 (CA) BRAITHWAITE VS M.S.A, LINES (1999) 13 NWLR (PT 636) 611 the Court held that, definitely, the Court has a discretion to allow parties adduce fresh evidence on appeal before such discretion is exercised. Some conditions must be as a matter of law, be met or fulfilled by the party.
In this case, it was basically to repair his case and nothing more, this does not call for the discretion of the Court in his favor. There was nothing wrong with the exercise of discretion by the lower Court.
I also find the appeal unmeritorious, and it fails, and it is dismissed.
Appearances:
O. J. Obodaya holding the brief of Ikhide Ehighelua For Appellant(s)
R. A. Ekpe holding the brief of A. A. Oloko For Respondent(s)