Attorney General Of The Federation Vs Mallam Modu Alkali (1972)

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O. ELIAS, C.J.N.

In this appeal, the appellant is appealing against the judgment of Hague J., in the High Court Maiduguri, in Suit No. NEM/2/70, in which the claim of the appellant, therein plaintiff, for the refund of 709pounds:10:10d from the defendant/respondent was dismissed by the learned trial judge mainly on the ground that the hire-purchase agreement, the basis of the claim, had merely been pleaded but not produced at the trial and that clause 4 of the guarantee agreement of 26th April, 1965 does not provide for the Federal Government to make any further claim once the car was repossessed and sold.

Mr. Osinupebi, learned counsel for the appellant, sought leave of the court to file additional evidence. Learned counsel referred to the case of Mathew Udo Oton v. R. 12 W. A. C. A. 212 in support of his application to file additional evidence, although he conceded that this is a criminal case, and not a civil one. He submitted that there are few cases in civil matters to which he could refer us; instead, he cited the White Book in respect of the English Rules of the Supreme Court which contained a proviso permitting that Court to allow additional evidence in exceptional circumstances. We think that the additional evidence contemplated therein is that of a fact or set of facts or a document discovered by the applicant for leave only since the judgment in the lower court has been given and not otherwise.

We have considered the application for leave for appellant to adduce additional evidence. We think the application should be refused because:

(a) to grant it would be contrary to Order 7, rule 24 under which the application purports to have been made by the appellant. Order 7, rule 24 provides: “It is not open as of right to any party to an appeal to adduce new evidence in support of his original case; but, for the furtherance of justice, the Court may, where it thinks fit, allow or require any new evidence to be adduced, such evidence to be either by oral examination in Court, by affidavit or by disposition taken before an examiner or commissioner as the Court may direct. A party may by leave of the Court allege any facts essential to the issue that have come to his knowledge after the decision of the Court below and adduce evidence in support of such allegation.”

(b) The appellant’s reference to the (English) White Book does not apply here, in view of the provision of our Order 7, rule 36 which excludes English Rules of Court where there is an express provision in our Rules.

(c) In paragraph 7 of the appellant’s affidavit in support of the application, the reason for non-production of the hire-purchase agreement was appellant’s witness’s inadvertence, i.e. gross negligence, consisting in failure to tender a document forming the basis of the appellant’s claim in the court below, and as to which specific pleading was filed in the court of trial. It would have been made otherwise if an application had been made to the court below for permission to tender the document on the ground, now suggested by Mr. Osinupebi, that because of the confusion attendant upon the political crisis in the country during the relevant period, the document in question was not available for production until now.

(d) The importance of having the agreement produced before the trial court was emphasized in paragraph 8 of the appellant’s own affidavit which says that the whole judgment might have been different had the document been produced before the trial judge or its nonsatisfactorily explained and either accepted or refused by that judge. In the latter event we might have been disposed to consider what evidence of non-production the appellant might have wished to advance on this appeal.

(e) To grant the appellant’s application for leave to adduce additional evidence in this case would be unfair to the trial judge and might create a dangerous precedent. There should be no special treatment for Government cases in this regard.

(f) In O. A. Oshodi v. Attorney-General of the Federation (S.C. 327/71), the hire-purchase agreement was duly tendered at the trial and the ex-M.P. concerned was accordingly held liable to repay the money paid on the guarantee agreement by the Federal Government. That course had not been adopted by the Attorney-General in this case.

Mr. Osinupebi asked leave to withdraw the appeal. We accordingly dismiss the appeal with 10 guineas costs awarded to the respondent.

Other Citation: (1972) LCN/1286(SC)