Jerry O. Imoto V. H.f.p. Eng. Nigeria Ltd. (2000)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A. 

By the application dated 23rd March 1999, the appellant/applicant prayed for the following:

(1) an order of the court granting leave for the appellant/applicant to adduce further evidence by tendering as exhibit the respondent’s letter Ref No PF/1927/70098 of 13th July, 1995 terminating the appellant’s appointment which was pleaded in paragraph 11 of the statement of claim dated 27th November, 1995 and admitted by the respondent in paragraph 7 of the statement of defence dated 13th March, 1996 but which could not be tendered in evidence during the trial at the High Court due to exceptional circumstances:

(2) An order accelerating the hearing of the appeal in the interest of justice.

(3) An order setting down the appeal for hearing.

The application which is supported by a 37-paragraph affidavit and 6 – paragraph further affidavit, is brought pursuant to Order 1 Rule 20(3) of the Court of Appeal Rules 1981 as amended and section 16 of the Court of Appeal Act, Cap. 75 Laws of the Federation and the inherent jurisdiction of the Court. Order 1 Rule 20(3) provides:

“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”

Of course, section 16 of the Court of Appeal Act Cap 75 Laws of the Federation spells out the general powers of the court.

I shall start the consideration of this application by saying that generally, in law, a litigant who has obtained a judgment in a court of justice must not be ordinarily deprived of that judgment. If it is sought to deprive him of the judgment by further evidence, three conditions must be satisfied before it can be received and they are:

(1) It must be shown that the evidence now sought to be adduced could not have been obtained with reasonable diligence at the trial of the case;

(2) The evidence must be of such a nature that, if given, it would have a far-reaching effect on the result of the case, though it need not be decisive;

(3) The evidence must be such as is presumably to be believed or it must be apparently credible though it need not be incontrovertible.

See (1) Akanbi & Ors v. Alao & Anor. (1989) 3 NWLR (pt.108) 118; (2) Iweka II & Ors. v. Analogu & Ors. (1991) 4 NWLR (pt.185) 305;(3) Ladd v. Marshall (1954) 1 WLR 1489 and (4) Skone v. Skone (1971) 2 AER 582. Where it is established to the satisfaction of an appellate court that the evidence now sought to be procured was available at the trial, but not tendered, the court will not grant the prayer to tender such evidence. See. Inland Revenue v. Rezeallah (1962) 1 All NLR 1. I should add that at the appellate stage no party can, as of right, adduce fresh or further evidence. The grant or refusal of an application, at this stage to adduce further evidence by affidavit is dependent on the exercise of the discretion of court; of course, the discretion must be judicious and judicial See Krakauer v. Katz (1954) 1 A.E.R. 244.

The question now to ask is what are these special grounds in the printed evidence that will persuade this court to exercise its discretion in favour of the applicant. I pause to say that when this application came before us on 20-1-2000 for argument, Mr. Omamadagu, learned counsel for the appellant/applicant, in moving the said application dated 23-3-99; relied on the 37-paragraph affidavit and the 6-paragraph further affidavit and submitted that by the printed evidence, special circumstances have been shown to warrant the grant of the application and while relying on Anyaegbunam v. A-G, Anambra State & Anor. (1995) NWLR (Pt.417) 97; (2) Owata & Ors v. Anyigo & Ors (1993) 2 NWLR (Pt.276) 380; and (3) Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94 he urged that the application be granted. For his part Mr. Makinde, learned counsel for the respondent argued that the conditions set out in Order 1 Rule 20(3) have not been met; the document according to him, was available at the trial stage. He urged that the appointment be refused. Again, what are these special grounds given by the applicant? The answer can be found in paragraphs 6, 8, 9, 11, 12, 13, 15, 16, 17, 19, 21 and 22 of the affidavit and paragraphs 2, 3 and 4 of the further affidavit both in support of the application and they are in the following terms:-

Para 6

“That the main subject-matter of my case in suit No.LD/4826/95 now on appeal to the Court of Appeal was the termination of my appointment by the respondent’s letter Ref No. PF/1927/95/70098 of 13th July, 1995.

(8) “That the said letter of termination of my appointment was pleaded in paragraph II of statement of claim dated 27th day of November 1995, as contained at page 6 of the record.

(9) That the said averment was admitted by the respondent in its statement of defence paragraph 7 dated 13th day of March 1996 as contained at page 12 of the record.

(11) That about the month of December, 1996 when I was parking from my former room to the present one within the same compound I misplaced the said letter of termination of my appointment.

(12) That all efforts I made to trace the said document proved abortive.

(13) That I found the said document in another file after the trial of the suit in the High Court.

(15) That the learned trial Judge in his judgment at page 4 made reference to the termination of my appointment by the respondent in July 1995.

(16) That a copy of the said letter of termination of my appointment is attached herewith and marked Ex. B.

(17) That the issue relating to the said letter has been fully addressed in the respective briefs filed by the appellant and the respondent.

(19) That the respondent, in its brief of argument on issues 2 and 6 (also referred to the said termination of my appointment on 13th July, 1995 and addressed on its right to terminate my appointment.

(21) That the said letter, if received in evidence by the Court of Appeal, shall enable the Court of Appeal to determine most of the issue involved in the appeal.

(22) The reception of the said letter in evidence by the Court of Appeal will not prejudice the respondent.

Again in paragraphs 2, 3 and 4 of the further affidavit he deposed as follows:-

(2) That in para 10-15 of my affidavit dated 23rd March 1999 in support of the motion, I deposed to the fact that I could not tender the said respondent’s letter terminating my appointment at the High Court during the said trial because the said letter was misplaced when I was parking from my own room to another room.

(3) That on the 28th January, 1997, the counsel who conducted my case at the High Court made the fact known to the learned trial Judge.

(4) That the learned trial Judge adjourned the case to 15th April 1997 to enable me tender the document. This fact was reflected in the proceeding of the day as contained at page 33 of the record of appeal now before this Honourable Court of Appeal.

The affidavit and further affidavit remain unchallenged in the sense that no counter-affidavit was filed. The consequence, in law, is that the depositions in the said printed evidence are deemed to be true. See Agbaje v. Ibru Sea Foods Ltd. (1972) 5 S.C. 50. From the factual account given by the applicant it is obvious that the evidence could not have been obtained for use at the trial with reasonable diligence. The documentary evidence sought to be put in, is undoubtedly material and weighty, the conclusiveness of it is not for consideration at this stage. Its non-production before the court below constitutes a big lacuna. Where it is clear, as in the instant matter, that the purpose of the application to receive the further evidence sought to be admitted is to supply the missing link in the trial which diligent search could not have disclosed, this court, in the exercise of its power the overriding consideration of which is to enable it attain justice, can under section 16 of the Court of Appeal Act exercise all the powers of the trial court. See Owata v. Anyigor (1993) 2 NWLR (Pt.276) 380.

For all of the above, I adjudge the application to be meritorious. Accordingly, leave is granted to the appellant/ applicant to adduce further evidence by tendering as exhibit the respondent’s letter Ref. No. PF/1927/70098 of 13th July, 1995 terminating the appellant/applicant’s appointment, same shall be marked as an exhibit in sequential order. The appeal shall thereafter be fixed for hearing. There shall be N3000.00 cost to the appellant/applicant.

Other Citations: (2000)LCN/0730(CA)