CORAM

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M.L. UWAIS – JUSTICE, SUPREME COURT

A.B. WALI – JUSTICE, SUPREME COURT

E.O. OGWUUGBU – JUSTICE, SUPREME COURT

U. MOHAMMED – JUSTICE, SUPREME COURT

S.U. ONU – JUSTICE, SUPREME COURT

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PARTIES

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EMMANUEL OKPANUM APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The plaintiff is a motor transporter; the defendant is a road construction company. The Plaintiff sued the defendants to claim damages for negligence of the defendants that led to the damage of the plaintiff’s car.

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HELD

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The appeal succeeded. The decision of the lower court was set aside while that of the trial court was affirmed.

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ISSUES

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Was the Court of Appeal right in receiving and relying on oral and documentary evidence (vide Exhibits ‘C’ and ‘F’) and in consequence setting aside the judgment of the High Court by dismissing appellant’s claim when the respondent filed no statement of defence in the case.

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RATIONES DECIDENDI

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CONDITIONS FOR ADMITTING NEW EVIDENCE ON APPEAL

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” The principles which an appellate court must take into consideration in the judicious exercise of its power to grant leave to adduce new evidence are:-
(a) The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial, or are matters which have occurred after judgment in the trial court.
(b) In respect of other evidence other than in (a) above, as for instance in respect of an appeal from a judgment after a hearing on the merits, the court will admit such fresh evidence only on special grounds as provided for in Order 1, rule 20(3) of the Court of Appeal Rules (ibid).
(c) The evidence to be adduced should be such as if admitted, it would have an important, not necessarily crucial effect on the whole case; and
(d) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.” Onu, JSC.

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POWER OF COURT OF APPEAL TO RECEIVE ADDITIONAL EVIDENCE

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“Undoubtedly, the Court of Appeal has 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.” Onu, JSC.

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CASES CITED

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1. Michael Odiase v. Vincent Omele (1985) 3 NWLR (Pt. 11) 82 at 852. Enekebe v. Enekebe (1964) NMLR 423. Ladd v. Marshall (1954) 1 WLR. 1489 at 14914. Skone v. Skone (1971)1 WLR 812;(1971) 2 All ER 582.5. Severino v. Witt & Busch (1912) 2 NLR 77 6. Ariran v. Adepoju (1961) All NLR 7227. Federal Board of Inland Revenue v. J. Rezcallah & Son Ltd. (1962) 1 All NLR 1 at page 5; 8. Dawodu v. Danmole (1962) 2 SCNLR 215;(1962) 1 SCNLR 1; (1962) 1 All NLR 702 9. Atswaga v. Agena (1964) NNLR 122; 10. Atunrase & Ors. v. Federal Commissioner for Works and Housing (1975) 1 All NLR (Pt. 1) 331 at pages 334-337.

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STATUTES REFERRED TO

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Court of Appeal Rules, 1981 (as amended)

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