OGHENEMARO KESENA v. THE STATE
April 16, 2025BAYERO UNIVERSITY KANO v. HAMISU MUHAMMAD
April 16, 2025Legalpedia Citation: (2017) Legalpedia (SC) 06111
In the Supreme Court of Nigeria
Fri Jan 13, 2017
Suit Number: SC. 404/2013
CORAM
PARTIES
1 FOLARIN ROTIMI ABIOLA WILLIAMS2.TOKUNBO ENIOLA WILLIAMS, SAN APPELLANTS
RESPONDENTS
AREA(S) OF LAW
Nil
SUMMARY OF FACTS
The 1st Respondent as the Plaintiff before the Lagos State High Court instituted this action against Folarin Rotimi, Abiola Willams, Tokunbo Eniola Williams and Chief Rotimi Williams Chambers who were the Appellants and 2nd Respondent respectively, as Defendants. The 1st Respondent’s claim at the High Court was for the recovery of a judgment sum which was awarded in his favour being client’s money received on his behalf by the Appellant and the 2nd Respondent who subsequently refused to hand over the money to it despite repeated demands, hence the action by the Applicant/1st Respondent seeking declaratory reliefs, interest, damages and cost of action. Upon receipt of the writ of summons, the Respondents filed an application seeking a stay of proceedings and an order referring the dispute to arbitration as stipulated in an agreement executed by the Respondents and their two brothers. The trial court in its ruling dismissed the application on the ground that the Applicant herein was not a party to the agreement nor was it a beneficiary thereof and that in the circumstances; the said agreement could not be the basis for an order of stay of proceedings pending a reference to arbitration. Begin dissatisfied with the ruling, the Respondents appealed to the Court of Appeal, Lagos Division, which appeal was dismissed by the court whilst it affirmed the ruling of the trial court. Still dissatisfied, the Applicant have further appealed to this court and subsequently sought for the leave of court to tender some bundle of documents captioned ADDITIONAL EVIDENCE as further and/or fresh evidence and also to allow the said further and/or fresh evidence to form part of the Record of Appeal for the just and fair determination of the appeal. The Respondents opposed the application on the ground that documents sought to be tendered as fresh evidence are documents that have been pronounced upon and rejected by the lower courts and/or still pending before the courts. This ruling is in respect of the application.
HELD
Application Dismissed
ISSUES
– Whether this Honourable Court has the discretionary power to allow Exhibits AB/15 and AB/16 to be admitted as further evidence for the determination of this appeal?
RATIONES DECIDENDI
COURT PROCESS – STATUS OF A COURT PROCESS NOT SIGNED BY A LEGAL PRACTITIONER
“There is no doubt that it has been held in a plethora of decisions of this court and it is now firmly settled that a court process that is not signed by a legal practitioner whose name appears on the roll of legal practitioners and who is entitled to practice as a barrister and solicitor as provided for in Sections 2 and 24 (2) (1) of the LPA Cap. L11 LFN 2004 is incompetent and liable to be struck out. See: Oketade Vs Adewunmi (supra); Okafor Vs Nweke (supra): F.B.N. Plc. Vs Maiwada (2013) 5 NWLR (Pt.1348) 1433, In S.L.B. Consortium Ltd. Vs N.N.P.C. (2011) 9 NWLR (Pt.1252) 317 & 331 B – 332A, this court affirmed its earlier decision in Registered Trustees of Apostolic Church Lagos Area Vs Rahman Akinde (1967) NMLR 263 and held that a process prepared and filed in court by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice.”
ADDITIONAL EVIDENCE ON APPEAL- DUTY OF A PARTY WHO WISHES THE COURT TO RECIEVE ADDITIONAL EVIDENCE ON APPEAL
“Order 2 Rule 12 (1), (2) and (3) of the Supreme Court Rules (as amended) provides as follows: 12. (1) A party who wishes the Court to receive the evidence of witnesses (whether they were or were not called at the trial) or to order the production of any document, exhibit or other thing connected With the proceedings in accordance with the provisions of section 33 of the Act, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal. (2) The application shall be supported by affidavit of the facts on which the party relies for making it and of the nature of the evidence or the document concerned. (3) It shall not be necessary for the other party to answer the additional evidence intended to be called but if leave is granted the other party shall be entitled to a reasonable opportunity to give his own evidence in reply if he so wishes.”
FRESH EVIDENCE ON APPEAL – PRINCIPLES GUIDING THE COURT IN DETERMINING WHETHER TO GRANT LEAVE TO ADDUCE FRESH EVIDENCE
“It is evident that an application brought pursuant to Order 2 Rule 12 of the Rules of this court is not one that is granted as a matter of course. It calls for the exercise of the court’s discretion, which must be exercised judicially and judiciously. As rightly submitted by learned counsel for both parties, there are settled principles, which guide the court in determining whether to grant leave to adduce fresh or further evidence. They are, inter alia, as follows: (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. (c) The evidence 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. See: Asabaro Vs Aruwaji (1974) 4 SC (Reprint) 87 & 90 – 91: Akanbi Vs Alao (1989) 3 NWLR (Pt.108) 118 ® 137 – 138 H – B: Esangbedo Vs The State (1989) 4 NWLR (Pt.113) 57 @ 67 A – C”
FRESH EVIDENCE ON APPEAL – DUTY OF A COURT IN GRANTING AN APPLICATION TO RECEIVE FRESH EVIDENCE ON APPEAL
“The court must consider whether there are special circumstances to warrant the grant of the application and whether it would be in furtherance of the justice of the case. See: Uzodinma Vs Izunaso (No.2) (2011) 17 NWLR (Pt.1275) 30 @ 55 B -C.”
CASES CITED
STATUTES REFERRED TO
