Legalpedia Citation: (2025-01) Legalpedia 53912 (CA)

In the Court of Appeal

HOLDEN AT BENIN

Wed Jan 29, 2025

Suit Number: CA/B/461/2018

CORAM

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Lateef Adebayo Ganiyu Justice of the Court of Appeal

Asmau Ojuolape Akanbi Justice of the Court of Appeal

PARTIES

OSARETIN AIGHOBAHI

APPELLANTS

1. W.O. OSADIAYE

RESPONDENTS

AREA(S) OF LAW

APPEAL, PRACTICE AND PROCEDURE, ADMINISTRATIVE LAW, LAND LAW, PROPERTY LAW, EVIDENCE, CONSTITUTIONAL LAW, EMPLOYMENT LAW, LEGAL ETHICS

SUMMARY OF FACTS

The Respondent/Applicant initially instituted an action at the High Court of Edo State via a Writ of Summons issued on May 27, 2004, against Mr. R.I. Osayogie as 1st Defendant and the Appellant herein as 2nd Defendant. The Respondent filed a Statement of Claim on April 4, 2005, relying on Survey Plan No. KS/ED/L/13/2004 of November 29, 2004, to show the boundaries, features, and dimensions of his land.

The Respondent discontinued the suit against the 1st Defendant on April 18, 2013, leaving the Appellant as the only Defendant. Following this discontinuance, the Respondent filed a Further Amended Statement of Claim and Statements on Oath for three witnesses on May 20, 2013. In this Further Amended Statement of Claim, the Respondent sought a declaration that his father, Alfred Aighobahi, was the owner in possession of a parcel of land measuring 800 feet x 1000 feet at Iguosa village and therefore entitled to be granted a Statutory Right of Occupancy over the said land, damages for trespass, and a perpetual injunction.

During the trial, the Respondent tendered an Amended Plan dated May 18, 2012, which was admitted as Exhibit ‘B’. On April 30, 2018, the learned trial Judge resolved the claim in favor of the Respondent/Applicant and granted ownership as delineated in the Amended Litigation Survey Plan No. KS/ED/L/01/2012 dated May 18, 2012.

Dissatisfied with the trial Court’s decision, the Appellant appealed to the Court of Appeal on May 25, 2018. The Appellant later filed a further amended notice of appeal on January 3, 2023, which was deemed filed on September 26, 2024.

Subsequently, the Respondent/Applicant filed a Motion on Notice on November 6, 2024, seeking leave to amend his Further Amended Statement of Claim, to amend his respondent brief, and to deem the clean copies of these documents as properly filed and served.

HELD

1. The application partially succeeded. The prayer for amendment of the Respondent’s Brief of Argument was granted, while the prayers for amendment of pleadings and introduction of a new survey plan were refused.
2. The court held that the Respondent/Applicant failed to demonstrate special grounds required for adducing fresh evidence at the appellate stage, especially evidence that could have been obtained with reasonable diligence during trial.
3. The court determined that allowing the Applicant to substitute the Survey Plan used by the trial Court with a new one would change the character of the case and potentially overreach the Appellant.
4. Leave was granted to the Respondent to amend his Respondent Brief of Argument within 14 days of the ruling.
5. Parties were ordered to bear their costs.

ISSUES

1. Whether by law the Court can grant the reliefs sought by the Respondent/Applicant in the interest of justice.
2. Whether the Applicant has placed sufficient materials before the Court to justify the grant of the application to amend his pleadings and introduce a new survey plan after judgment.
3. Whether the Court can allow the amendment of pleadings and introduction of new evidence that would alter the substance of the appeal and potentially overreach the Appellant/Respondent.

RATIONES DECIDENDI

APPELLATE COURT’S POWER TO ALLOW AMENDMENTS – LIMITATIONS ON AMENDMENTS AFTER JUDGMENT

“Generally,
an appellate Court has the power to allow parties amend any defect or error
that may have arisen in a matter, depending on the circumstances of the case.
Section 15 of the Court of Appeal Act provides thus: The Court of Appeal may,
from time to time, make any order necessary for determining the real question
in controversy in the appeal, and may amend any defect or error in the record
of appeal, and may direct the Court below to inquire into and certify its
findings on any question which the Court below is authorised to make or
grant…” — Per ASMAU OJUOLAPE AKANBI, J.C.A.

AMENDMENT AT APPELLATE STAGE – DISCRETIONARY NATURE OF AMENDMENT POWERS:

“However,
an amendment in the Appellate Court is not granted as a matter of routine, the
Applicant must have satisfied the conditions as provided in the rules of this
Honourable Court.” — Per ASMAU OJUOLAPE AKANBI, J.C.A.

FRESH EVIDENCE ON APPEAL – REQUIREMENTS FOR ADDUCING FURTHER EVIDENCE AT APPELLATE STAGE:

“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.” — Per ASMAU OJUOLAPE AKANBI, J.C.A.

FRESH EVIDENCE ON APPEAL – CONDITIONS FOR ADMISSIBILITY OF FRESH EVIDENCE:

“It
is pertinent to note that there must be an end to litigation and a party cannot
be allowed to introduce a new case on appeal either by way of amendment of
pleadings or production of new evidence.” — Per ASMAU OJUOLAPE AKANBI,
J.C.A.

FRESH EVIDENCE ON APPEAL – SPECIAL GROUNDS REQUIREMENT:

“It
therefore means that the fresh fact sought to be raised by the Applicant must
not have been in existence during the hearing of the matter at the Trial Court
and there must be credible and cogent reasons for not presenting the fact
during hearing at the trial Court.” — Per ASMAU OJUOLAPE AKANBI, J.C.A.

INADVERTENCE OF COUNSEL – LIMITATIONS ON RELIEF FOR COUNSEL’S MISTAKES:

“It
is indeed, true that the Courts will not punish a litigant for the mistake or
inadvertence of his counsel in procedural matters but when a counsel that has
been briefed to conduct a case and he decides on which evidence he considers as
important to call, that decision is not an inadvertence or a mistake, it is an
exercise of a legal right. He has full control of the case and to conduct it
properly. It behoves on counsel to be diligent.” — Per ASMAU OJUOLAPE
AKANBI, J.C.A.

AMENDMENT OF SURVEY PLAN ON APPEAL – LIMITATIONS ON CHANGING EVIDENCE AFTER JUDGMENT:

“Now,
to allow the Applicant substitute the survey plan which has not been subjected
to cross-examination will certainly be prejudicial to the other party, more so
where it is shown that one of the Grounds of appeal bothers on the certified
True copy of the Amended plan dated 18/5/2012.” — Per ASMAU OJUOLAPE
AKANBI, J.C.A.

CONSISTENCY OF CASE ON APPEAL – PROHIBITION AGAINST CHANGING CASE AT APPELLATE STAGE:

“An
appellate Court will be guided by the principle of law that a party is bound to
make the same case in both the trial Court and the Court of Appeal. An
appellate Court will not encourage, or better, allow a party make a case at the
trial Court and then take or make a somersault on appeal. That will be
tantamount to blowing hot and cold under the same breath; a conduct which
equity, with its hands of fairness and fair play, will not allow.” –– Per
ASMAU OJUOLAPE AKANBI, J.C.A.

CONDITIONS FOR ADDUCING FRESH EVIDENCE ON APPEAL – SUPREME COURT’S ESTABLISHED TEST:

“The
position of the law is that the power of an appellate Court to receive further
or fresh evidence on appeal is rarely exercised but is not taken away,
extinguished or inhibited. As held by this Court in Owata v. Anyigor (1993) 2
NWLR (Pt.276) 380 p. 383-384, an appellate Court can receive further evidence
on questions of fact but such further evidence is only received on special
grounds and that the Court generally exercised this power with great
circumspection. Thus, before receiving fresh evidence on appeal, an appellate
Court would need to be sure that the party seeking to adduce such evidence has
fulfilled the following commons…” — Per ASMAU OJUOLAPE AKANBI, J.C.A.

FRESH EVIDENCE ON APPEAL – BURDEN ON APPLICANT:

“The
above conditions must co-exist for the Court to exercise its discretion in
favour of the Applicant. I have examined the Affidavit in Support of the
Application; I cannot find the special grounds or any worthy ground at all to
admit the Survey Plan or any further evidence in this appeal.” — Per
ASMAU OJUOLAPE AKANBI, J.C.A.

AMENDMENT OF CASE ON APPEAL – PROHIBITION AGAINST INTRODUCING NEW SURVEY PLAN:

“The
Applicant particularly failed to show that the fresh evidence could not have
been obtained with reasonable care and diligence for use at the trial. The
Respondent rightly submitted that the Applicant has not placed any material to
support the grant of prayer 1 of the Application. The mere fact that the
Respondent failed to tender the accurate or proper Survey Plan will not entitle
them to furnish further evidence on appeal.” — Per ASMAU OJUOLAPE AKANBI,
J.C.A.

NATURE OF APPEAL – APPEAL AS REHEARING NOT OPPORTUNITY TO REOPEN CASE:

“It
is trite that an appeal is by way of rehearing and a party is not allowed to
introduce a new case or re-open his case on appeal. This Court is therefore not
a platform for parties to correct the mistakes in their case at the trial
Court.” — Per ASMAU OJUOLAPE AKANBI, J.C.A.

COUNSEL DEPOSING TO AFFIDAVIT – IMPROPRIETY OF COUNSEL ACTING AS WITNESS

“Before
proceeding with the determination of the Application, I shall address the
anomalous practice of counsel deposing to the Affidavit in Support of the
Application he argues. It is a bad practice for Counsel to depose to Affidavit
in a matter he handles. This is to prevent a situation where Counsel becomes a
witness compellable to give oral evidence in line with Section 116 of the
Evidence Act.” — Per ASMAU OJUOLAPE AKANBI, J.C.A.

CASES CITED

STATUTES REFERRED TO

• Court of Appeal Act, 2004
• Court of Appeal Rules, 2021
• Evidence Act, 2011
• Constitution of the Federal Republic of Nigeria, 1999 (as amended)
• Land Use Act, 1978

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