UNITED BANK FOR AFRICA PLC V. AMINU LAWAL ATANA
March 15, 2025ABUBAKAR ALI PETERS V THE FEDERAL REPUBLIC OF NIGERIA & ANOR
March 15, 2025Legalpedia Citation: (2023-06) Legalpedia 07183 (CA)
In the Court of Appeal
LAGOS JUDICIAL DIVISION
Tue Jun 27, 2023
Suit Number: CA/L/915/2014
CORAM
OBANDE FESTUS OGBUINYA JCA
FREDRICK OZIAKPONO OHO JCA
MUHAMMAD IBRAHIM SIRAJO JCA
PARTIES
1. CAMAC NIGERIA LIMITED
2. ALLIED ENERGY PLC
APPELLANTS
GODGREY ETIKERENTISE
RESPONDENTS
AREA(S) OF LAW
APPEAL, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellant sought the reception of further/additional/fresh evidence on appeal by tendering, as exhibit the applicant’s letter, dated 17th October, 2016, at the hearing and determination of this appeal. This was opposed by the respondent.
HELD
Appeal allowed
ISSUES
Whether in respect of this appeal, there exists a special ground to justify the grant of this application?
RATIONES DECIDENDI
DISCRETION – MEANING AND EXERCISE OF DISCRETION
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 – PRINCIPLES THAT GUIDE THE ADMITTANCE OF FRESH EVIDENCE
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 loads 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
JURISDICTION – CONDUCT OF COURTS REGARDING EVIDENCE WITHIN THE PROVINCE OF JURISDICTION
“That is not all. It admits of no argument that the issue of jurisdiction is numero uno in adjudication, see APC v. Lere (2020) 1 NWLR (Pt. 1705) 254. Incontestably, owing to its kingly position in adjudication, any evidence that falls within its wide province has to be received by an appellate court. Thus, in Nwanezie v. Idris (1993) 2 SCNJ 139 at 152, Karibi-Whyte, JSC, incisively, declared:
“In any case where the challenge to the decision of the court is founded on lack of jurisdiction, the court is bound to consider such evidence which goes to the root of the matter and to show that the court has acted without jurisdiction. See Adeigbe v. Kushiro (1965) 1 All N.L.R. 248.
A party to litigation cannot be shut out and the court precluded on technical grounds from receiving evidence showing that the decision of a court was given without jurisdiction. The issue of jurisdiction is fundamental to the proper hearing of a cause – Madukolu v. Nkemdilim (1962) 1 All N.L.R. 584.” Per O. F. Ogbuinya, JCA
JURISDICTION – IMPORTANCE OF JURISDICTION
Indisputably, jurisdiction has been characterised as the spinal cord, lifeline, touchstone, bedrock and linchpin of adjudication. It oxygenates the power and duty of courts in adjudication. A court without jurisdiction has been likened to an animal drained of blood. – Per O. F. Ogbuinya, JCA
JURISDICTION – THE BAROMETER TO MEASURE THE PRESENCE OR ABSENCE OF JURISDICTION
“Undeniably, a statement of claim is the major barometer which the court uses to measure the presence or absence of jurisdiction of court, see Akine v. Edjerode (2001) 18 NWLR (Pt. 745) 446; A.-G., Lagos State v. Eko Hotels (2018) 7 NWLR (Pt. 1619) 518. Nevertheless, it is not a sole/exclusive determinant of jurisdiction.
It is a settled elementary law that a court utilizes received evidence as one of the indices to gauge the presence or absence of jurisdiction of court, see Barclays Bank of Nigeria Ltd v. CBN (1976) 1 All NLR 409 at 424; NDCC v. CBN (2002) 7 NWLR (Pt. 766) 272; Nonye v. Anyiechie (2005) 2 NWLR (Pt. 910) 623; Julius Berger (Nig) Plc v. T. R.C.B. Ltd, (2019) 5 NWLR (Pt. 1665) 219; Zubair v. Kolawole (2019) 11 NWLR (Pt. 1682) 66; Titilayo Plastic Ind. Ltd. V. Fagbola (2019) 14 NWLR (Pt. 1691) 88.” Per O. F. Ogbuinya, JCA
EVIDENCE – ADMISSIBILITY OF EVIDENCE AND THE WEIGHT TO BE ATTACHED TO IT
“To begin with, 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.
It is apropos to place on record, apace, that, in the landscape of adjectival law, there is a wide dichotomy between admissibility of evidence and weight to be attached to it, see Abubakar v. Chuks (2007) NWLR (Pt. 1066). A piece of evidence, documentary or viva voce, may be admissible but disrobed of any weight appurtenant to it. Conversely, a piece of evidence that commands high probative value may not be admissible.” Per O. F. Ogbuinya, JCA
CASES CITED
STATUTES REFERRED TO
Court of Appeal Rules
