USMAN SHEHU BASHIR V. THE STATE
March 15, 2025NPG PROPERTIES & CONST. WORKS LTD V. ZENITH BANK PLC
March 15, 2025Legalpedia Citation: (2023-06) Legalpedia 08962 (CA)
In the Court of Appeal
Holden at Lagos
Tue Jun 27, 2023
Suit Number: CA/L/818/2018
CORAM
OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEA
ABUBAKAR SADIQ UMAR JUSTICE, COURT OF APPEAL
ABDULLAHI MAHMUD BAYERO JUSTICE, COURT OF APPEAL
PARTIES
MR. EMEKA ODOGWU (For and on Behalf of the Late Sunny Dike Odogwu Family) APPELLANT/APPLICANT
APPELLANTS
PRINCE TAIWO OKUNIGA (For and on Behalf of the Late Ajayi Belo-James Okuniga Family) RESPONDENT/RESPONDENT
RESPONDENTS
AREA(S) OF LAW
APPEAL, EVIDENCE, LAND, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The subject matter of this application is for this Honorable Court to grant leave to the Applicant to adduce new evidence before this Court, to wit: Certified True Copy of LAGOS TITLE No. 2867 for No. 6 Ikoyi Road, Obalende, Lagos, which the Applicant discovered after trial on the merits and delivery of Judgment by the lower court (that both parties are at ad idem on the property in issue. The lower court had in its Judgment ordered forfeiture of 4-6 Ikoyi Road, Obalende, Lagos, to the Respondent). The document was discovered while this appeal was pending.
HELD
Appeal allowed
ISSUES
Whether in the light of the discovery of fresh evidence in respect of the matter adjudicated at the lower court, this Honourable Court can exercise its discretion in favour of admitting fresh evidence in this Appeal?
RATIONES DECIDENDI
DISCRETION – MEANING AND EXERCISE OF DISCRETION BY THE COURTS/JUDGES
Discretion signifies: the right or power of a Judex to act according to the dictates of his personal judgment and conscience uninfluenced by the judgment or conscience of other persons, see Suleiman v. C.O.P., Plateau State (2008) 8 NWLR (Pt. 1089) 298, Ajuwa v. S.P.D.C.N. Ltd. (2011) 18 NWLR (Pt. 1279) 797; NJC v. Dakwang (2019) 7 NWLR (Pt. 1672) 532; Nzekwe v. Anaekwenegbu (2019) 8 NWLR (Pt. 1674) 235; Adeniyi v. Tina Goerge Ind. Ltd (2019) 16 NWLR (Pt.1699) 560. A Judge, in exercise of discretion, must act judicially and judiciously. To act judicially denotes “…discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances” see Babatunde v. P.A.S. & T.A. Ltd. (2007) 13 NWLR (Pt. 1050) 113, at 149 and 150, Per Muhammad, JSC. On the other hand, “Acting judiciously … is said to import the consideration of the interest of both sides and weighing them in order to arrive at a just or fair decision”, see Babatunde v. P.A.S. & T.A. Ltd (supra), at 164, Per Ogbuagu, JSC.
Being an exercise of discretion, the law mandates an applicant, if he must attract the favourable discretion of a court, to furnish it with sufficient material facts that it will use, as the springboard, to exercise its discretion judicially and judiciously. This is because a court does not dish or dash out its discretion in vacuo in that material facts are the desiderata for such judicial exercise, see Dongtoe v. Civil Service Commission, Plateatu State (2001) 9 NWLR (Pt. 717) 132; Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203; In Re: Mawa v. NACBCFC Ltd. (2007) 7 NWLR (Pt. 1032) 54; Ebe v. C.O.P. (2008) 4 NWLR (Pt. 1076) 189; Ifekandu v. Uzoegwu (2008) 15 NWLR (Pt. 1111) 58; Ani v. Otu (2017) 12 NWLR (Pt. 1578) 30. – Per O. F. Ogbuinya, JCA
FRESH EVIDENCE – MEANING OF FRESH EVIDENCE – THE DOCTRINE OF RECEPTION OF FURTHER EVIDENCE AND THE PRINCIPLES THAT GUIDE THE COURTS
order 4 of the Court of Appeal Rules, 2021. Being the pivot of the issue, it is germane to pluck it out from its residence in the Court of Appeal Rules, 2021, ipsissima verba, as follows:
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.
To begin with, fresh evidence must possess the rare quality of newness or the feature of having become newly available and obtainable. It must amount to what was called, in the old form of pleading, Res noviter ad notitian perventa, see Anatogu v Iweka (1995) 8 NWLR (Pt. 415) 54; Statoil Nig. Ltd. v. Inducon Nig. Ltd. (2018) 9 NWLR (Pt. 1625) 586.
The doctrine of reception of further evidence on appeal, which is the kernel of the application, requires the leave of court which, in turn, involves an exercise of its discretion. The courts have invented some principles that guide them in exercising their discretion in such proceedings. The paramount ones are, videlicet: that: (a) The evidence sought to be given must be one that could not have been, with reasonable diligence, obtained for use at the trial. (b) The evidence should be such that if admitted, it would have an important, not necessarily crucial effect on the whole case. (c) The evidence must be such that it is apparently credible in that it is capable of being believed, but need not be incontrovertible. (d) 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. (e) The evidence must be material and weighty even if not conclusive. Where the evidence sought to be adduced is immaterial and irrelevant it will be rejected. These guidelines had received the imprimatur of the Supreme Court in sea of ex cathedra authorities, see Asaboro v. Aruwaje (1974) 4 SC 119, Ariran v. Adepoju (1961) 1 All NLR 722; Nwanezie v. Idris (supra); Okpanum v. S.G.E (Nig.) Ltd. (1998) 7 NWLR (Pt. 559) 537/(1998) 5 SCNJ 142; Amechi v. INEC (2008) 5 NWLR (Pt. 1080) 227; UBA Plc v. BTL Ind. Ltd. (2005) 10 NWLR (Pt. 933) 356; Ehinlanwo v. Oke (supra)/(2008) 16 NWLR (Pt. 1113) 357; Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30; Onwubuariri v. Igboasoiyi (2011) 3 NWLR (Pt. 1234) 357; Adeyeta v. Bangboye (2013) 10 NWLR (Pt. 1363) 532; CPC v. Onbugadu (2013) 18 NWLR (Pt. 1385) 66; GTB Plc v. Innoson Nig. Ltd. (2017) 16 NWLR (Pt. 1591) 181; Statoil Nig. Ltd. v. Inducon Nig. Ltd. (2018) 9 NWLR (Pt. 1625) 586; Enilolobo v. N.P.D.C. Ltd. (2019) 18 NWLR (Pt. 1703) 168; Dike-Ogu v. Amadi (2020) 1 NWLR (Pt. 1704) 45; Sharing Cross E-S Ltd. v. Umaru Adamu Ent. Ltd. (2020) 10 NWLR (Pt. 1733) 561; Oboh v. NFL Ltd. (2021) 14 NWLR (Pt. 1766) 305; UBN Plc v. Petro Union Oil & Gas Co. Ltd. (2022) 7 NWLR (Pt. 1829) 199. – Per O. F. Ogbuinya, JCA
EVIDENCE – MEANING OF CREDIBLE EVIDENCE
A piece of credible evidence is one that is worthy of belief, see Agbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Ewemuo (2009) 10 NWLR (Pt. 1149) 35. – Per O. F. Ogbuinya, JCA
CASES CITED
STATUTES REFERRED TO
1. Court of Appeal Rules, 2021
