CORAM

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UGOCHUKWU ANTHONY OGAKWU JCA

MOHAMMED MUSTAPHA JCA

BATURE ISAH GAFAI JCA

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PARTIES

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LAM-ANKO (NIG) LTD

APPELLANTS 

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ZAKARIA OKANGA PROPERTIES (NIG) LTD & ORS

RESPONDENTS 

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AREA(S) OF LAW

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 APPEALS, CIVIL PROCEDURAL LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE.

 

 

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SUMMARY OF FACTS

This ruling is in respect of the 5th Respondent/Applicant’s application for leave to adduce further or additional evidence on appeal. The disputed land in this action is situated at Wuye District, Abuja. The Appellant/Respondent, claiming entitlement to the ownership of the land instituted proceedings against the 1st-4th Respondents in respect thereof. The 5th Respondent/Applicant, equally laying claim to the disputed land, applied to the lower Court and it was joined as a party in the action. It then filed its processes and set up a Counterclaim wherein it also claimed entitlement to ownership of the disputed land. Issues were joined between the Appellant/Respondent and the 5th Respondent/Applicant on the juristic capacity of the 5th Respondent/Applicant. The 5th Respondent/Applicant asserted its juristic personality and pleaded that it would rely on the relevant incorporation documents at the trial. The matter went through a full-blown trial and the 5th Respondent/Applicant failed to tender any incorporation documents to establish its juristic capacity. In its judgment, the lower Court held that the 5th Respondent/Applicant failed to prove its legal personality and proceeded to strike out the 5th Respondent/Applicant from the action, and it also struck out its Counterclaim and other processes. The 5th Respondent/Applicant did not appeal against this finding and decision of the lower Court. The lower Court ultimately held that the Appellant/Respondent did not prove its case and it proceeded to dismiss its case. The Appellant/Respondent was dissatisfied with the decision dismissing its case and filed this appeal and the 5th Respondent/Applicant has now filed the application subject of this ruling.

 

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HELD

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Appeal dismissed

 

 

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ISSUES

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Whether this Honourable Court can grant the reliefs sought in this application?

 

 

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RATIONES DECIDENDI

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JUDICIAL DISCRETION – THE GUIDING PRINCIPLE OF JUDICIAL DISCRETION

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Now, the 5th Respondent/Applicant has rightly submitted that it seeks a discretionary relief from the Court and that it is not granted as a matter of right. It therefore behoves upon it to furnish sufficient materials for discretion to be exercised in its favour by a grant of the application. There are no hard and fast rules as to the manner of exercise of discretion; the guiding principle is that the discretion

being judicial must be exercised judicially and judiciously on sufficient grounds. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 SC 265 at 271, NNEJI vs. CHUKWU (1988) 3 NWLR (PT 87) 184 at 199 and LAGOS STATE GOVT. vs. BENEFICIAL ENDOWMENT LTD (2018) LPELR (45779) 1 at 9-11. Per – UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

 

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FURTHER EVIDENCE – POWER OF THE COURT TO RECEIVE FURTHER EVIDENCE AND THE CONDITION INHERENT

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Order 4 Rule 2 of the Court of Appeal Rules, 2021 stipulates 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.”

​The 5th Respondent/Applicant seeks leave to adduce further evidence after the trial at the lower Court. By Order 4 Rule 2 reproduced above, 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. The further evidence which the 5th Respondent/Applicant seeks to adduce, id est, its certificate of incorporation is not a matter which occurred after the trial; the incorporation status vel non was in existence as at the time the action was instituted. Indeed, there was a joinder of issues in this regard at the lower Court, and the 5th Respondent/Applicant averred that it would rely on and tender its incorporation documents at the trial; which it failed to do. Therefore, in order for discretion to be exercised in its favour, the materials it furnished ought to establish special grounds. The 5th Respondent/Applicant has referred to the conditions which if established would constitute the special grounds envisaged for the grant of the application. See OBOH vs. NIGERIA FOOTBAL LEAGUE LTD (supra), ADEGBITE vs. AMOSU (supra), ASABORO vs. ARUWAJI (1974) ALL NLR (Reprint) 127 at 130-131, GAZU vs. NYAM (1998) 2 NWLR (PT 538) 437, DIKE-OGU vs. AMADI (2020) 1 NWLR (PT 1704) 45 and AMAECHI vs. INEC (2008) 5 NWLR (PT 1080) 227 at 301-302. Per – UGOCHUKWU ANTHONY OGAKWU, J.C.A. 

 

 

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FURTHER EVIDENCE – CIRCUMSTANCES WHERE THE COURT WILL PERMIT FURTHER, ADDITIONAL OR FRESH EVIDENCE

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The legal position in considering an application for adduction of further evidence on appeal is that in civil cases, the Court will permit further, additional or fresh evidence in furtherance of justice under the following circumstances –

1. where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial.

2. where the fresh evidence is such that if admitted would have an important, but not necessarily crucial, effect on the whole case.

3. where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed. It need not necessarily be incontrovertible. See ASABORO vs. ARUWAJI (supra), OBOH vs. NIGERIA FOOTBAL LEAGUE LTD (supra), ADEGBITE vs. AMOSU (supra), OBASI vs. ONWUKA (1987) 3 NWLR (PT 61) 364, ADELEKE vs. ASERIFA (1990) LPELR (116) 1 at 24-25, WILLIAMS vs. ADOLD/STAMM INT’L NIG LTD (2017) LPELR (41559) 1 at 47-48 and ODUTOLA vs. SANNI (2019) LPELR (49823) 1 at 6-7. It seems to me that when an appellate Court is called upon to allow further, additional or fresh evidence on appeal, it must recognise the necessity to adhere strictly to the three conditions reproduced above and in order for discretion to be exercised in favour of granting leave to adduce further, additional or fresh evidence on appeal, the said three conditions must co-exist: GAZU vs. NYAM (supra) at 493, UBA PLC vs. BTL IND LTD (2005) LPELR (8065) 1 at 14-15, SHARING CROSS EDUCATIONAL SERVICES LTD vs. UMARU ADAMU ENTERPRISES LTD (2020) LPELR (49567) 1 at 8-10, ADELAKUN vs. EFCC (2021) LPELR (53406) 1 at 16-19, MBAKWE vs. OBAKUNLE (2017) LPELR (50200) 1 at 14, GTB PLC vs. BENDU PETER SERVICES NIGERIA LTD (2022) LPELR (57064) 1 at 10-15 and ZENITH BANK PLC vs. NELKEN (2022) LPELR (58944) 1 at 11-16. Per – UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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FURTHER EVIDENCE – THE POWER OF THE COURT TO RECEIVE ADDITIONAL/FRESH EVIDENCE IS EXERCISED SPARINGLY, WITH GREAT CIRCUMSPECTION

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The power vested in the Court to receive further, additional or fresh evidence is generally exercised reluctantly, sparingly and with great circumspection. This is on account of the risk involved in allowing a person to reopen an issue after it has been decided on the excuse that new facts which could have been discovered and relied upon and used at the trial have now been found. It is likely to prejudice the position of the other party and result in the miscarriage of justice. The Court will however exercise the power where the applicant has satisfied the applicable conditions, and if on the facts of the case it will be in the interest of justice to receive the further, additional or fresh evidence: OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 15-17. Per – UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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FURTHER EVIDENCE – 3 PROMINENT CONSIDERATIONS AGAINST ADDUCING FRESH EVIDENCE AT THE APPELLATE COURT

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In GTB PLC vs. INNOSON (NIG) LTD (2017) 16 NWLR (PT 1591) 181 at 201, Eko, JSC stated:

“Three prominent considerations tending to work against adducing fresh evidence at the appellate Court, when this Court exercises its power under Order 2, Rule 12 of the rules of this Court in that regard, are –

1. Where issues are joined on pleadings at the trial Court, no party shall be taken by surprise. Thus, the appeal Court cannot consider the reception of new evidence without amendment of the pleadings. See Onibudo v. Akibu (1982) 7 SC. 60; Adeleke vs. Aserifa (1990) 3 NWLR (Pt. 136) 94 at 111; (1990) 21 NSCC 145 at 154.

2. It is in the interest of public policy, particularly for the purpose of efficient and effective administration of justice, to obviate prolongation of litigation that the practice of adducing evidence, which ought to have been adduced at the trial Court, should not be postponed to after judgment: See Adeleke v. Aserifa (supra).

3. Appellate Courts generally exercise their jurisdiction to correct errors of law or fact made by the Courts below, after the latter’s consideration of the totality of evidential materials before them. Accordingly, the correctness of the decision of a trial Court or Judge should not be assessed or judged on the new evidence that the trial Court or Judge never had an opportunity to consider: See Adeleke v. Aserifa(supra). In other words, the correctness or otherwise of the judgment of the trial Judge or Court should not be assessed on evidential materials he or it never had opportunity to  consider.” Per – UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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FRESH EVIDENCE – WHAT IS FRESH EVIDENCE?

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The 5th Respondent/Applicant seeks leave to adduce further, additional or fresh evidence, which was not tendered at the lower Court. What is fresh evidence? In WILLOUGHBY vs. IMB (NIG) LTD (1987) LPELR (3495) 1 at 25, Obaseki, JSC opined:

“What is fresh Evidence? I think this is evidence that was not available previously which is designed to be a reply to the evidence given by the other side, or points material to the determination of the issues or any of them.” Furthermore, in ANATOGU vs. IWEKA II (1995) LPELR (484) 1 at 57, Ogundare, JSC stated:

“Now, what is ‘fresh evidence’ and in what circumstances can it be given? A definition of the expression is given… thus: A ‘fresh evidence’ it seems to me, must have the quality of newness, or the feature of having become newly available and obtainable”. Per – UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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FURTHER EVIDENCE – THE RELUCTANT NATURE OF THE COURTS TO ADMIT ADDITIONAL EVIDENCE ON APPEAL

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The Courts are reluctant to admit fresh, further or additional evidence on appeal except in situations where the matter arose in circumstances in which no human ingenuity could have foreseen and it is in the interest of justice that evidence of that fact be led. See MABOGUNJE vs. ODUTOLA (2008) ALL FWLR (PT 412) 1182. Per – UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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CONDITIONS FOR THE GRANT OF FURTHER EVIDENCE – AN APPLICANT MUST SATISFY ALL THE CONDITIONS IN ORDER FOR DISCRETION TO BE EXERCISED IN HIS FAVOUR

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The conditions for the grant of leave to adduce further, additional or fresh evidence are coalescent. The applicant must satisfy all the conditions in order for discretion to be exercised in his favour. The fact that the further, additional or fresh evidence sought to be adduced on appeal is such that could have been obtained by reasonable care and diligence during the trial makes it unnecessary to consider the other two conditions. This is so because whether the further, additional or fresh evidence is important and such that would have an effect on the whole case, as well as whether the evidence is credible and capable of being believed are factors which would only come into play if the further, additional or fresh evidence were such that reasonable care and diligence would not have unearthed for use at the trial. Per – UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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JUDICIAL DISCRETION – MEANING OF

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An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law. See THE OWNERS OF THE M.V. LUPEX vs. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 158 at 168. Per – UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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JUDICIAL DISCRETION – SUFFICIENT MATERIALS MUST BE FURNISHED BEFORE A COURT CAN EXERCISE DISCRETION AND GRANT THE RELIEFS SOUGHT

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The reliefs sought cannot be granted as sufficient materials have not been furnished in order for discretion to be exercised in favour of the 5th Respondent/Applicant. Per – UGOCHUKWU ANTHONY OGAKWU, J.C.A.

 

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CASES CITED

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Not Available

 

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STATUTES REFERRED TO

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Court of Appeal Rules 2021

Companies and Allied Matters Act 1990

 

 

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