ABUBAKAR U. BIRMA & ORS V. AHMED DAMCIDA & ANOR

CORAM

MURITALA AREMU OKUNOLA JUSTICE, COURT OF APPEAL (Presided)

PARTIES

1. ABUBAKAR U. BIRMA

2. IBRAHIM U. BIRMA

3. MARYAM U. BIRMA

4. HAJIYA HANNATU S. BIRMA (Administrator & Adiministrix of Estate of Late Umaru Sand a Birma)

APPELLANTS 

1. AHMED DAMCIDA

2. ALIYU DAMCIDA

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/Respondents’ father instituted a suit against the Defendants/Appellants at the High Court of Kano State seeking a declaration that he was entitled to the property lying, being and situate at No.13E Bello Road Kano, Kano State. The trial Court dismissed the Defendant/Appellant’s Counter-claim and entered judgment for the Plaintiff/Respondent. Dissatisfied with the judgment of the trial Court, the Defendants/Appellants appealed to the Court of Appeal but while the appeal was pending, the original Plaintiff/Respondent died and was substituted with the present Respondents, the Administrators of the estate of the deceased Plaintiff/Respondent. At the Court of Appeal, the Defendants/Appellants brought an application seeking leave to adduce further evidence and/or tender the counterpart copy of the deed of assignment which the Defendants/Appellants stumbled into after the judgment of the trial Court and could not tender same at the trial Court even though the said deed of assignment was pleaded in their Statement of Defence.

HELD

Application Granted.

ISSUES

Whether the Appellants/Applicants have placed sufficient materials before this court to warrant the admission of fresh evidence (Exhibit A) in this Appeal.?

RATIONES DECIDENDI

LEAVE TO ADDUCE FURTHER EVIDENCE – GUIDING PRINCIPLES FOR GRANT OF LEAVE TO ADDUCE FURTHER EVIDENCE

“In the exercise of its discretion to grant leave to adduce further evidence an appellate Court is guided by the following principles:

“1. The evidence sought to be adduced should be such that could not have been obtained with reasonable care and diligence for use at the trial. See:-Asaboro v. Arumuaji (1974) 4 SC119; Ariran v. Adepoju (1961) 1 All NLR 722; Peterside v. 1MB (Nig) Ltd (1993) 2 NWLR (pt. 278) page 72.
2. The fresh evidence if admitted, it would have an important but not necessarily crucial effect on the whole case. See; Hadd v. Marshall (1954) 3All ER 511.
3. The fresh evidence sought to be tendered is such that is apparently credible in the sense that it is capable of being delivered even if it may not be incontrovertible. See:-Obase v. Onwuka (1987) 3 NWLR (pt. 61) page 364.
4. The evidence sought to be adduced could have influence the judgment at the lower Court in favour of the Applicants if it been available at the trial Court. See: Fawehinmi v. State (1990) 5 NWLR (pt. 148) page 42; Enekese v. Enekese (1964) 1 All NLR 42.
5. The evidence should be material and weighty even if not conclusive where such evidence is irrelevant and immaterial it will be rejected. See:- Nwokoro v. Nwosu (1990) 6 NWLR (pt 129) page 679; Rinco Construction Co. v. Veepee Ind. Ltd (1990) 6 NWLR (pt. 158) page 630; Adeleke v. Aserifa (1990) 3 NWLR (pt.136) page 94”. PER A. ABOKI, J.C.A

RULE GOVERNING ADMISSIBILITY- RELEVANCE IS THE DETERMINING FACTOR FOR ADMISSIBILITY OF A DOCUMENT IRRESPECTIVE OF THE MANNER IN WHICH IT WAS OBTAINED

“The test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is admissible, the court should not be concerned with how it was obtained. See Aregbesola vs Oyinola (2011) 9 NWLR (Pt 1253) pg 453 @572; Adebayo vs Adusei (2004) 4 NWLR (Pt 862) page 44 @ 80- 81, Torti vs Ukpabi (1984) 1 SCNLR 214; Oshurinde vs Akande (1996) (Pt 455) Page 383.” PER A. ABOKI, J.C.A

PRESUMPTION OF GENUINENESS OF A DOCUMENT OF TITLE REGISTERED AT THE LANDS REGISTRY – A DOCUMENT OF TITLE THAT IS DULY REGISTERED AT THE LANDS REGISTRY IS PRESUMED UNDER SECTION 146 OF THE EVIDENCE ACT 2011 TO BE GENUINE AND VALID

“It is also settled law that where a document of title is duly registered at the Lands Registry and the registration particulars are reflected on it, a presumption is raised under the provisions of Section 146 of the Evidence Act 2011 (formerly Section 114 of the Evidence Act) that the document is genuine and valid. Bida vs Commissioner For Revenue (1972) 1 ALL NLR (Pt 1) 191 Cardoso vs Daniel supra Magnussion vs Koiko (1991) 4 NWLR (Pt 183) 119 Ngene vs Igbo (1991) 7 NWLR (Pt 203) 358, Odubeko vs Fowler (1993) 7 NWLR (Pt 308) 637, Tumo vs Murana (2000) 12 NWLR (Pt 681) 370, Bob- Manuel vsWoji (2010) 8 NWLR (Pt 1196) 260.” PER H.A.O. ABIRU, J.C.A

EFFECT OF UNCHALLENGED DEPOSITIONS IN AN AFFIDAVIT – UNCHALLENGED/ UNCONTRADICTED DEPOSITIONS IN AN AFFIDAVIT SHALL BE DEEMED TRUE AND CORRECT

“It is settled law that where facts deposed to in an affidavit are not challenged or contradicted in a response affidavit, they shall be deemed true and correct. Epe Local Government vs Keshinro (2009) 4 NWLR (Pt 1131) 405 Asol (Nig) Ltd vs Access Bank (Nig) Plc (2009) 10 NWLR (Pt 1149) 283 and First Bank of Nigeria vs Ndarake& Sons (Nig)Ltd (2009)15 NWLR (Pt 1164) 404.” PER H.A.O. ABIRU, J.C.A

FURTHER EVIDENCE ON APPEAL – THE COURT WILL ALLOW FRESH EVIDENCE ON APPEAL WHERE SUCH NEW EVIDENCE COULD NOT BE OBTAINED FOR USE AT THE TRIAL COURT

“The exception under the Rule is such that further evidence can be allowed on appeal only where such new evidence could not have been obtained for use at the trial Court by the exercise of reasonable diligence.” PER A. ABOKI, J.C.A

FURTHER EVIDENCE ON APPEAL – AN APPELLATE COURT WILL NOT ALLOW AN APPELLANT TO IMPROVE OR RESHAPE HIS CASE BY INTRODUCING FURTHER EVIDENCE EXCEPT ON SPECIAL GROUNDS

“An appellate court generally does not allow an Appellant to improve or reshape his case by introducing further evidence which could reasonably be produced at the trial court on special grounds. See Odeleye vs Orehise (1991) 7 NWLR (Pt 202) pg 247 @ 256, where a matter has been contested and judgment given on the writ by a trial Court no further evidence except evidence as to matter which occurred after the date of trial or hearing shall be admitted except on special grounds see Adeleke vs Aserifa (1990) 3 NWLR (Pt 136) pg 94, Esangbedo vs State (1989) 7 SCNJ 16, Gazu vs Nyam (1998) 2 NWLR (Pt538) pg 447, Abana vs Obi (2004) 9 NWLR (Pt 877) 1, Ilorin South L.G vs Atolebi (2003) 16 NWLR (Pt 846) pg 274, Okpanum vs S.G.E (NIG) Ltd (1998) 7 NWLR (Pt 559) pg 537 @ 552- 553; Amaechi vs INEC (2007) 18 NWLR (Pt 1065) 170.” PER A. ABOKI, J.C.A

RATIONALE FOR ADDUCING FRESH EVIDENCE ON APPEAL- A PARTY CAN PRODUCE FRESH EVIDENCE AT THE APPELLATE STAGE WHICH HE COULD NOT PRODUCE AT THE TRIAL COURT SO AS TO ENABLE THE APPELLATE COURT DETERMINE WHETHER THE TRIAL COURT CORRECTLY APPLIED THE LAW TO THE

“The law is that a trial court determines a case on its merits after hearing all the witnesses and considering all the documentary evidence before it. Therefore, as a general rule, a party is bound to elicit and produce all the evidence he intends to rely upon to prove his case at the appellate stage by bringing forth evidence which he did not produce before the trial court. This is because the duty of an appellate court is always to determine from the fact contained on the records whether the trial court came to the right decision on the evidence place before it by both sides and whether it correctly applied the law to the facts before it.
Thus to determine an appeal on the basis of evidence or document which the lower court had no opportunity of seeing or considering before judgment would amount to a miscarriage of justice to the adverse party. Ombagudu vs Congress for Progressive Change (2013) 3 NWLR (Pt 1341) 415.” PER H.A.O. ABIRU, J.C.A

PRESUMPTION IN RESPECT OF DOCUMENT OF TITLE AGED TWENTY YEARS – WHERE THE ORIGINAL OR CERTIFIED COPY OF A DOCUMENT OF TITLE OF TWENTY YEARS OR MORE IS PRODUCED FROM PROPER CUSTODY, THERE IS A PRESUMPTION OF DUE EXECUTION AND ATTESTATION BY THE APPROPRIATE

“It is settled law that where a document of title is aged twenty years or more at the date it is given in evidence and it is produced from proper custody i.e an original copy or a certified true copy from the lands registry, it enjoys a presumption under the provision of section 155 of the Evidence Act 2011 (formerly section 123 of the Evidence Act) that is was duly executed and attested by the person by whom it purports to be executed and attested. Agbonifo vs Aiwereoba (1988) 1 NWLR (Pt 70) 325 @ 341, Cardoso vs Daniel (1986) 2 NWLR (Pt 20) 1 Obawole vs Williams (1996) 10 NWLR (Pt 477) 146 @169, Macaulay vs Omiyale (1977) 4 NWLR (Pt 497) 94,Bassey vs Pamol (Nig) Ltd (2009) 6 NWLR (Pt 1136) Asuquo vs Asuquo (2009) 16 NWLR (Pt 1167) 225.” PER H.A.O. ABIRU, J.C.A

FURTHER EVIDENCE ON APPEAL -AN APPELLATE COURT SHOULD ADMIT FURTHER EVIDENCE IN EXCEPTIONAL CIRCUMSTANCES WHERE THE MATTER ARISES EX-IMPROVISO SUCH THAT NO HUMAN INGENUITY COULD FORESEE AND IN THE INTEREST OF JUSTICE

“In other words, an appellate Court must be reluctant to admit further evidence except in exceptional circumstances where the matter arises ex-improviso such that no human ingenuity could foresee and it is in the interest of justice to allow such evidence –Owata Vs Anyigor(1993) 2 NWLR (Pt 276) 380, Ombagudu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1341) 415. An appellate Court is obliged not to allow litigants abuse the court process in that regard as it would be against public policy to allow concluded matters willy-nilly to be re-opened and thus open the floodgates to endless litigations – Alawiye Vs Ogunsanya(2013) 5 NWLR (Pt 1348) 570.” PER H.A.O. ABIRU, J.C.A

NATURE OF FRESH EVIDENCE ADMISSIBLE IN EVIDENCE – FRESH EVIDENCE SHOULD BE ALLOWED ON APPEAL IF IT CAN ASSIST THE COURT TO RESOLVE THE ISSUES RAISED

“I am of the opinion that any fresh evidence admissible by this Court should only be such evidence capable of assisting the court to resolve the issues properly raised before it. See Amaechi vs INEC (supra) 300.” PER A. ABOKI, J.C.A

CASES CITED

STATUTES REFERRED TO

1. Court of Appeal Rules 2011.

2. Evidence Act 2011.

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