Bello Akanbi & Ors. V. Mamudu Alao & Anor (1989)

LawGlobal-Hub Lead Judgment Report

CRAIG, J.S.C.

This is an appeal from a Ruling of the Court of Appeal, Kaduna, given on the 16th September, 1986, and the two main issues which arise for determination are:

(a) Whether the lower Court had jurisdiction under the Nigerian Constitution to grant the respondents leave to adduce fresh evidence and if it did,

(b) Whether the power to grant such leave had been exercised judiciously.

When this appeal came up for hearing on the 6th of February, 1989, the Court, after hearing oral arguments from Counsel, allowed the appeal and indicated that it would give reasons fordoing so today 5th May, 1989. I now give my reasons for agreeing that the appeal should be allowed.

The facts leading to the ruling arose from a judgment of the Ilorin High Court where the plaintiffs (appellants herein) had sued the defendants in Suit No.KWS/52/79 for:

“1. N10,000.00 (Ten Thousand Naira) being special and general damages for trespass committed by the defendant on the plaintiffs land situate at Jaju Gbagede, that is, from Budo Nuhu down to Ogbomosho boundary which has earlier been awarded to the plaintiff by the High Court of Justice, Ilorin in Appeal No.KWS/12A/74 and confirmed by the Supreme Court in Suit No.SC.480/1975.

2. An injunction restraining the defendants, their servants or agents from further trespass on the said land.”

In that court, pleadings were ordered and exchanged and in their Statement of Claim the plaintiffs pleaded that they became entitled to the land in dispute by virtue of the judgment of the Supreme Court in Suit No.SC.480/1975 between the same parties. The relevant portion of those pleadings were as follows:

“1. The first, second and fourth plaintiffs are and were at all material times the customary owners of a parcel of land situate at Jaju Gbagede, that is, from Budo Nuhu down to Ogbomosho boundary on Ogbomoso Road, Ilorin, Kwara State of Nigeria.

4. The first defendant is a son to one Ajani Bale Jaju Gbagede, now deceased.
5. The said Ajani Bale Jaju Gbagede was tenant to the first, second and fourth plaintiffs on the land mentioned in paragraph 1 above.
6. The said Ajani Gbagede used to pay tributes and/or royalties to the plaintiffs in return for his tenancy on the land.
7. Suddenly, the said Ajani Bale Jaju stopped paying tributes and/or royalties to the plaintiffs.
8. As a result of the said Ajani Bale Jaju’s refusal to pay tributes to the plaintiffs, the first plaintiff instituted an action against him in the Upper Area Court, Ilorin, in case No.UACI/CVF.20/73, claiming his (plaintiffs) land from him.
9. The first defendant appeared for and represented the said Bale Jaju while the 2nd plaintiff represented the first plaintiff in the suit.
10. On 15th May, 1974, the Upper Area Court gave judgment in favour of the first plaintiff.
11. As a result of the judgment referred to in paragraph 10, the said Ajani Jaju appealed to the High Court, Ilorin.
12. On 14th February, 1975, the appellate session of the Ilorin High Court, presided over by Justices J.M. Adesiyun, S. Kawu and Alhaji A. Aliyu, in suit No.KWS/12A/74 dismissed the appeal and confirmed the judgment of the Upper Area Court in favour of the plaintiffs.
13. Being also dissatisfied with the decision of the High Court, the said Ajani Bale Jaju appealed to the Supreme Court of Nigeria.
14. On 20th June, 1978, the Supreme Court sitting at Kaduna and presided over by the Chief Justice of Nigeria, Sir D.A.R. Alexander, in suit No.SC.480/ 1975 dismissed the appeal and entered judgment for the first plaintiff.
15. On or about the month of August, 1978, the second defendant who claimed to be acting as the caretaker or tenant of the first defendant wrongfully broke and entered the land referred to in paragraph 1 above, particularly the part of the land that lie between Odo-Omo and Odo-Eleran.
16. In the process of the first defendant’s trespass on the land, he plucked several bags of sheanuts and locust beans, thereby depriving the plaintiffs of their means of livelihood.
17. The first defendant, on the instruction of the second defendant still continues with his illegal occupation, and plucking of economic trees’ fruits on the land despite persistent warning jointly and severally from the plaintiffs.”

In their reply the defendants denied the trespass and pleaded further as follows:

“(20) The defendants say that the part of the land entered into by the 2nd defendant is called Odo Eleran, and that Odo Eleran has never been part of the land adjudicated upon in suits No. UACI/CVP.20/73, KWS/12A/74 and SC.480/1975

(21) The defendants further aver that when the 2nd defendant was farming on ado Eleran land the plaintiffs sued the defendant and in appeal No.KWS/21A/1976 decided by the Ilorin High Court of Appeal on 23rd May, 1977 the High Court decided that the Odo Eleran land did not form part of the land adjudicated upon in Appeal No.KWS/12A/74 and decided by the Supreme Court in SC.480/1975.

(22) A retrial was ordered by the High Court in Appeal No.KWS/21A/1976 and the retrial was conducted by the Upper Area Court, Ilorin, which visited the locus in quo and found as a fact that Odo Eleran entered by the 2nd defendant did not form part of the land adjudicated upon in KWS/12A174 decided by the Supreme Court in S.C.480/1975.

(23) When the retrial was in favour of the present defendant the present plaintiffs appealed to the High Court in appeal No.KWS/10A/78 and in this appeal again, the High Court decided that Odo Eleran is not part of the land adjudicated upon in KWS/12A/74 and S.C.480/1975.

(24) It was the decisions in appeal No.KWS/21A/1976 and judgment of the retrial and in appeal No.KWS/1OA/78 that the 2nd defendant relied upon and entered Odo Eleran in August, 1978.

(25) The defendants admit paragraph 17 of the statement of claim to the extent only that the 2nd defendant plucked some sheanuts and some locust beans but say that the 2nd defendant did so only on Odo Eleran land and deny committing trespass on plaintiffs’ land since Odo Eleran is not part of the land of the plaintiffs adjudicated upon and awarded to the plaintiffs in Suit No.KWS/12A/74 and SC.480/1975.

(26) In view of paragraph 25 above the defendants say that the 2nd defendant entered on his landlord’s land and not the land of the plaintiffs, and the defendants further say that by plucking sheanuts, and locust beans on their own land they did not deprive the plaintiffs of their means of livelihood.”

From the above, it will be seen that the straight issue between the parties was as to whether the land allegedly trespassed upon by the defendants was the same as that in respect of which the Supreme Court had given judgment for the plaintiffs or whether it was a different parcel of land. At the trial, the plaintiffs called evidence and tendered the various judgments pleaded by them; in particular, they tendered the Supreme Court judgment in Suit No.SC.480/1975 and this was admitted as an Exhibit.

At the close of the plaintiffs’ case, Counsel for the defendants announced that he was not calling evidence but that he would rest the defendants’ case on that of the plaintiffs. That announcement was made on the 10th February, 1981 and thereafter, the Court adjourned the suit till the 28th April, 1981, for Counsel’s addresses but it eventually heard the addresses on 5th May, 1981, and delivered its judgment on the 19th February, 1982. The trial Court found for the plaintiffs. The defendants were dissatisfied with that judgment and appealed to the Court of Appeal, Kaduna on a number of grounds of appeal. That appeal is still pending and consequently, those grounds of appeal are not relevant to the present appeal.

However, when the appeal came up for hearing in the lower Court, the defendants’ Counsel applied to that Court for leave to adduce fresh evidence before the Court. The application was made under Order 1, rules 20(3) and (4) of the Court of Appeal Rules, 1981. In the accompanying Affidavit, the defendants stated that they would like to tender the various judgments pleaded in their Statement of Defence; they complained that their lawyer in the trial Court had closed their case without allowing them to testify even though they had expressed a desire to do so. The pertinent portions of their affidavit were as follows:-

“27. That sometimes in January, 1981, Alhaji Yahaya Jaju and myself told Lawyer Adeyinka Adeoye in his office at number 18, Edun Street, Ilorin, that the two of us would like to give evidence in the defence suit No.KWS/52/79, tender judgments of Ilorin High Court in Appeal No.KWS/21A/1976, the retrial by the Upper Area Court, Ilorin, and Appeal No.KWS/10A/78 and call four other witnesses.

28. That on the 9th February, 1981, Alhaji Yahaya Jaju and myself went to Lawyer Adeyinka Adeoye in his office at number 18, Edun Street, Ilorin, for the final preparation of our defence in suit No.KWS/52/79.
29. That on the 9th February, 1981, Lawyer Adeyinka Adeoye in his office at No.18 Edun Street, Ilorin, told Alhaji YahayaJaju, and myself and we verily believed him, that we would give evidence in our defence of Suit No.KWS/52/79 in Court on the 10th February, 1981.
30. That Alhaji Yahaya Jaju and myself were at the Ilorin High Court on the 10th day of February, 1981, when case No. KWS/52/79 was called.
31. That on the 10th February, 1981, the respondents closed their case in suit No.KWS/52/79 before Ilorin High Court.
32. That on the 10th February, 1981, Lawyer Adeyinka Adeoye in handling suit No.KWS/52/79 told the Ilorin High Court that he will not call any witness at all, that he will be resting our case on the evidence produced by the plaintiffs in Suit No.KWS/52/79 and finally asked the Court for a date to address the Court.
33. That on the 10th February, 1981, Alhaji Yahaya Jaju and myself protested to Lawyer Adeyinka Adeoye after the Court that we would like to give evidence in the defence of suit No.KWS/52/79 tender judgments already pleaded in our Statement of Defence and called four witnesses.

34 That on the Ilorin High Court presided over by His Lordship Honourable Mr. Justice LA. Salami gave judgment in suit No.KWS/52/79 in favour of the respondents (awarded Odo-Eleran land to the respondents) and awarded the sum of N500.00 general damages against Alhaji Yahaya Jaju and myself for trespass.

In answer to these averments the respondents filed a counter-affidavit which they denied the above paragraphs and deposed as follows:

“5. That I know as a matter of fact that Mamudu Alao, the first applicant in this case speaks and writes English language very well.

6. That I also know as a matter of fact that Mamudu Alao was present throughout the proceedings of this case at the lower court.
7. That I was in court on 10/2/81when Mr. Adeyinka Adeoye intimated the lower court that the defendants/ applicants would neither call any witness nor tender any documents.
8. That before Mr. Adeyinka Adeoye spoke to the Court, he had a discussion with the first applicant/defendant.
9. That after Mr. Adeyinka Adeoye informed the court as per paragraph 7 supra, neither of the defendants/ applicants raised any objection to what he said on their behalf.
10. That the proceedings at the lower court were always translated into Yoruba language by the clerk of Court.
11. That after Mr. Adeyinka Adeoye’s announcement on behalf of the defendants/applicants on 10/2/81, the case was adjourned to 28/4/81 for Counsel’s addresses.
12. That before 28/4/81, the court on its own motion further adjourned the case to 5/5/81 for addresses.
13. That on 5/5/81, it was the defendants and their counsel alone that were present in court and that their counsel addressed the court at length on their behalf. These facts are now contained on pages 37-42of the record of proceedings of the lower court which is now before this court.
14. That throughout the aforementioned dates and periods, I know as a matter of fact that the defendants/ applicants did not complain about the announcement which Mr. Adeyinka Adeoye made on their behalf on 10/2/81.
15. That I know as a matter of fact that Mr. Adeyinka Adeoye cross-examined all the plaintiffs’ witnesses and he did not suggest to them the existence of the exhibits/judgments now sought to be tendered on appeal.”

At the hearing of the Motion, Counsel urged the Court not to punish the applicants for the negligence of their Counsel and cited the cases of Asaboro v. Aruwaji (1974) 1All N.L.R.140 and Ibodo v. Enarofia (1980) 57 S.C.42, as authority for the request.

The respondents opposed the application on the ground that the applicants had failed to show that the documents which they sought to tender were not available at the hearing in the High Court.

In a reserved Ruling, the Court of Appeal, per Ogundere, J.C.A., (Maidama and Akpata, H.C.A., concurring) granted the Motion and purported to do so in “furtherance of the interest of justice.” Earlier in the said Ruling, the lower Court had reviewed the facts of the Asaboro’s case and gone further to state as follows:

“It would appear from the following case that the Supreme Court after all, in cases of this nature, would no longer visit the sins of commission and omission of others including counsel for the parties, on helpless litigants. Thus, in Ukpe Ibodo & Ors. v. Iguasi Enarofia & Ors. (1980) 5-7 S.C.42 at p.52-53, which deal with good and substantial reasons” for appealing out of time, admittedly a matter of procedure, may be prayed in aid of applications like the one in hand. It was held:

“This court has stated in several decisions that it is not right to visit the parties with punishment arising out of the mistakes or inadvertence or negligence of counsel and that in such a case the discretion of the court, although always required to be exercised judicially (see: G.B.A. Akinyede v. The Appraiser (1971) 1 All N.L.R.162 at p.165; Doherty v. Doherty (1964) 1 ALL N.L.R. 299; Tunji Bowaje v. Moses Adediwura (1976) 6 S.C.143 at 147), should be exercised with a leaning towards accommodating the parties interests without allowing mere procedural irregularities, brought about by counsel, to preclude the determination of a case on the merits (Ahmadu v. SaLawu (1974) 1 All N.L.R. (Pt. 11) 318 at 324).”

In this case, the Court of Appeal Order 1, Rule 20(3) requires “special grounds”, which in my view, includes grounds for furtherance of justice. It would tantamount to injustice if a decision of a superior court, in particular, the Supreme Court, which would have helped the lower court to decide the matter one way or the other, once pleaded, were not admitted in the Court of Appeal.”

The plaintiffs/respondents were dissatisfied with that ruling and have appealed to this court on one original ground of appeal and, by leave of this Court, two other grounds were added. These grounds of appeal are as follows:-

The Court of Appeal erred in law in failing to observe that it has no jurisdiction to admit and/or act upon Exhibits CA.1, CA.2 and CA.3 moreso when the said Exhibits were not tendered before or acted upon by the trial court.

PARTICULARS OF ERROR

(a) By virtue of the provisions of section 219 of the Constitution of the Federal Republic of Nigeria, 1979, (hereinafter referred to as “the Constitution”) the Court of Appeal has only appellate jurisdiction over decisions of a State High Court, etc.

(b) In the alternative, the Court of Appeal does not have original jurisdiction to determine matters which were not considered by the High Court.

(c) Exhibits CA.1, CA.2. and CA.3 having not been tendered, admitted or considered by the trial High Court are not subject of appeal from the decision of the High Court.”

2. The Court of Appeal misdirected itself in law when it construed Counsel’s discretion not to call any evidence on behalf of his clients as a special ground warranting the receipt of further evidence on appeal.

PARTICULARS OF ERROR

(i) Counsel retained to conduct a case has general authority on how to conduct a case and the client is bound by his conduct of the case.

(ii) Counsel for the respondents herein (Adeyinka Adeoye) exercised his discretion at the trial court not to tender Exhibits CA.1, CA.2 and CA.3 and the exercise of such a discretion cannot be a ground for the receipt of the said Exhibits on appeal.

(iii) In the alternative to particular (ii) supra the exercise of counsel’s discretion as to whether or not to adduce evidence does not amount to a special ground within the meaning of Order 1 rule 26(3) of the Court of Appeal Rules for the admittance of such evidence on appeal”.

3. The Court of Appeal erred and misdirected itself in law in applying the Supreme Court decision in Asaboro v. Aruwaji & Anor. (1974) 1 All N.L.R.140 or 1974 4 S.C. 119 to grant the respondents application to adduce fresh evidence on appeal when the case or application before it is distinguishable in many respects from the Asaboro’s case.

PARTICULARS OF ERROR/MISDIRECTION

(i) In Asaboro’s case supra, the evidence sought to be tendered was not available at trial whereas in this case, Exhibits CA.1, CA.2, and CA.3 were available at the trial.

(ii) Unlike the Asaboro’s case where reasonably diligent effort to get the information or evidence concerned for the purpose of the trial was made, the evidence i.e. Exhibits CA.1, CA.2 and CA.3 were available in the trial of this case but were not tendered at Counsel’s discretion.

(iii) The additional evidence admitted in Asaboro’s case was apparently credible and believable unlike Exhibit CA.1, CA.2 and CA.3 in this case.”

In his brief of arguments, the plaintiffs have formulated three questions for determination and these are:

“(i) Whether the Court of Appeal has original jurisdiction to consider, adjudicate or pronounce on matters which were not considered at all by (or which were not brought before) the trial High Court.

(ii) Whether the exercise of Counsel’s discretion not to call any evidence at the trial court can amount to a special ground warranting the grant of an application to adduce fresh or further evidence on appeal.

(iii) Whether the Supreme Court decision in Asaboro v. Aruwaji & Anor. (1974) 1 All N.L.R. 140 has opened the flood-gate for the admissibility of fresh or further evidence on appeal or

ALTERNATIVELY

Whether Asaboro’s case (supra) is distinguishable from this case.”

At this stage, I must mention that although the defendants/respondents were served with all the papers of the appeal and were represented by Counsel, they did not file any brief of argument nor formulate any issues for determination. Counsel, appearing for them, Mr. Omodara, appeared before this Court on a number of occasions; in particular, he appeared for the respondents on the 25th of October, 1988, when the appeal was adjourned for hearing. On that date, the Court observed that no briefs had been filed for respondents and advised Counsel to do so before the hearing date.

It is a matter for deep regret that Mr. Omodara did not file that brief and when he appeared before this Court on the 6th February, he was unable to state why he had not done so. I cannot conceive of a more disrespectful attitude of Counsel to this Court; and the unanswered question is whether this is another negligent act of Counsel in respect of which yet another Counsel will be asking us to apply the principles in Ibodo’s case (supra), or whether non-compliance with the Court’s order was due entirely to the inadequacy of the respondents. Whatever it is Counsel should always remember that as an officer of this Honourable Court, he owes it a duty to assist the Court in dispensing justice.

In spite of all these shortcomings, and because of the importance of the issues raised, Mr. Omodara was allowed to address the Court at the hearing of the appeal.

I have already set out the three issues formulated by the appellants and it seems convenient to deal first with Issue No.1 where the question of jurisdiction was raised.

In his brief of arguments, Counsel contends that under Sec. 219 of the Nigerian Constitution, the lower Court only has appellate jurisdiction to hear appeals from the High Court, and that, by admitting the three judgments in evidence, the Court of Appeal has-

“unwittingly turned itself into a trial Court, or in the alternative, it has put itself in a position whereby it is no longer exercising appellate jurisdiction over the decision of the trial High Court.”

Counsel concedes that under Order 1, rule 20(3), of the Court of Appeal Rules 1981, the lower Court is empowered to admit fresh evidence, but Mr. Olanipekun submits that a mere Rule of Court cannot extend the original jurisdiction conferred on the Court by the Constitution. The short answer to the submission made is that the Court of Appeal Rules are not just mere rules. They are Rules of Court made under powers conferred on the Hon. President of the Court of Appeal by section 227 of the Nigerian Constitution. That section reads:

227: Subject to the provisions of any Act of the National Assembly, the President of the Court of Appeal may make rules for regulating the practice and procedure of the Court of Appeal.”

Similar powers are delegated to the Hon. Chief Justice of Nigeria in Sec. 216 of the Constitution in respect of the making of the Rules of the Supreme Court.

It must be appreciated that these Rules are the lubricants of the machinery of justice and they contain minute details of the various steps which a litigant is expected to take in the process of getting the Court to hear and adjudicate on the different types of cases which come before it. Furthermore, these rules are subject to amendment from time to time; and they vary from one tier of Court to another. It is obvious therefore that the power to make those rules has to be delegated if the Constitution is not to be rendered unduly cumbersome.

In those circumstances, the legal effect is that once it is shown that the Rules are made under powers conferred by the Constitution, they would have the same force of law as the Constitution itself. In this regard, reference may be made to the definition of “Law” in section 18(1) of the Interpretation Act, 1964. In the same Act, “subsidiary instrument” is defined to mean:-

Any order, rules, regulations, rules of Court, or bye-laws made either before or after the commencement of this Act in exercise of powers conferred by an Act.” (Italics mine)

In the result, I hold that the lower Court had jurisdiction to hear and determine the Motion to adduce fresh evidence on appeal.

I now come to the 2nd and 3rd issues and these issues are concerned with the questions:

(a) whether the lower Court has correctly construed the provisions of Order 1 Rule 20(3) of the Court of Appeal Rules 1981; and

(b) whether the case of Asaboro v. Aruwaji (supra) applies to the facts of this case.

In Asaboro’s case, as in the present case, an application was brought at the appellate stage of the proceedings, to admit certain documents’ which the applicant could not tender in the High Court because they were not then available. The Motion was brought under Order 7 rule 24 of the Rules of the Supreme Court 1961which was then applicable. That rule provided that:

“24. 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 deposition 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 allegations.” (Italics mine)

It will be seen that that Rule has placed some emphasis on the “furtherance of justice” and, in his judgment, Coker, J.S.C. took great pains to expatiate on the correct interpretation of the Rule. At page 144 of the Report, His Lordship stated:

“The rule postulates therefore that this Court may grant leave to adduce new evidence for the “furtherance of Justice” if it thinks fit to do so. The decision of this Court in the case of Attorney General of the Federation v. Mallam Modi Alkali, supra, clearly exemplifies this rule and dispensed with the introduction of the relevant English rule, in the same respect. The decision also evidently applied the principles which the courts have always taken into consideration in the judicious exercise of powers to grant leave to adduce new evidence, namely:-

(i) The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial,

(ii) The evidence should be such as if admitted, it would have an important, not necessarily crucial, effect on the whole case; and

(iii) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.”

The Supreme Court then went on to apply the above principles to the facts of the application before it, and came to the conclusion that since the documents sought to be tendered could not “with reasonable diligence” have been obtained for use at the trial, it would he in the interest of justice to admit them on appeal.

The Rule under which the present application was brought is slightly different from the old Rule although the wording is similar. In fact, the New Rule can be described as a neater version of Order 7, Rule 24.

In the new Rule the phrase “for the furtherance of justice” has been deleted and a new one, “on special grounds”, substituted. But in both Rules, the central theme is the same -that after a case has been tried on the merits in the Court of first instance, fresh evidence will not be readily received on appeal except on special grounds.

It would appear that this principle has been followed in previous cases which have been before the Courts. Some of these cases are:

Severino v. Witt & Busch (1912) 2 N.L.R.77

Ariran v. Adepoju (1961) All N.L.R.722 E

Federal Board of Inland Revenue v. J. Rezcallah Ltd. (1962) 1 All N.L.R. 1 at p.5.

Dawodu v. Danmole (1962) 1 All N.L.R.702.

L. Atswaga v. G. Agena (1964) N.N.L.R.122.

Enekebe v. Enekebe (1964) N.M.L.R.42

Attorney-General v. M. Alkali (1972) 12 S.C.29.

In Enekebe’s case (supra), the Supreme Court, per Bairamian, J.S.C., refused leave to call further evidence and held that:

“The powers of this Court are large and wide; but it is the practice, briefly put, to refuse an application to adduce more evidence which the applicant could have adduced at the trial.”

But in Dawodu v. Danmole (supra) the Privy Council held that the Federal Supreme Court was right in admitting fresh evidence on the issue as to the appropriate native law and custom which applied to the distribution of the estate of a deceased who died intestate. In his judgment, Lord Evershed stated:

“Finally, there can in their Lordships’ view be no doubt of the justice of the observation in the judgment of Abbot, F.J. that the evidence before Jibowu, J. on native law and custom was “scanty.” The witness before the trial Judge upon it was the deceased’s sister. She appears to have been some eighty years of age but her qualifications as a witness upon such a subject do not appear, and, as the learned trial Judge observed, she could not say when the old customs, Idi-Igi, was, as she alleged, “swept away.”

In the circumstances their Lordships entertain no doubt that it was competent for the Federal Supreme Court to direct the calling of the evidence which they did and that, by So directing, the Court properly exercised its discretion. Mr. Bernstein suggested that a more proper course would have been to remit the case to the trial Judge: but it does not appear that such a suggestion was ever made to the Federal Supreme Court nor can their Lordships find in the Rule any ground for it.”

Those two cases, I think, show why it is important to advance good and substantial reasons when applying to adduce fresh evidence on appeal.

I now return to a consideration of the instant appeal. The relevant Rule of Court, Order I rule 20(3), under which the application was brought reads as follows:

“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.”

It seems to me that the import of that Rule is that the Court of Appeal may, in its discretion admit fresh evidence in respect of matters which had occurred after judgment in the trial Court; but in other cases, as for instance, in respect of matters which occurred at the trial or before judgment, the lower Court will admit such fresh evidence only on special grounds.

In the instant appeal, the defendants admit that the documents which they sought leave to tender were available at the trial but the excuse which they gave was that their lawyer decided not to call evidence and to rest his case on that of the plaintiffs. In consequence, the applicants did not testify and were unable to tender the documents in evidence.

The lower Court gave due consideration to these reasons and seemed to have been satisfied with the excuse given. It held the view, that it would be wrong to punish “helpless litigants” with the mistakes of their Counsel. The Court relied on the case of U. Ibodo & Ors. v. I. Enarofia & Ors. (1980) 5-7 S.C.42 at 52.

In Ibodo’s case, the Supreme Court held:

“This Court has stated in several decisions that it is not right to visit the parties with punishment arising out of the mistakes or inadvertence or negligence of Counsel and that in such a case the discretion of the Court, although always required to be exercised judicially (see G.B.A. Akinyede v. The Appraiser (1971) 1 ALL N.L.R. 162 at p. 165; Doherty v. Doherty (1964) 1 ALL N.L.R. 299; Tunji Bowaje v. Moses Adediwura (1976) 6 SC.143 at 147), should be exercised with a leaning towards accommodating the parties’ interests without allowing mere procedural irregularities, brought about by Counsel, to preclude the determination of a case on the merits (Ahmadu v. Salawu (1974) 1 All N.L.R. (Pt.11) 318 at 324.”

It is true that the Courts will not punish a litigant for the mistake or inadvertence of his Counsel in procedural matters. But the question which arises in the present appeal is whether a decision by Counsel not to call evidence is a mistake or mere inadvertence In my view, it is neither. Far from being a mistake, it is in actual fact a distinct exercise of a legal right. A party is free to choose whether to adduce evidence in support of his pleading or not and the Court has no power to interfere with the exercise of that right. See the case of Mobil Oil (Nigeria) Ltd. v. Federal Board of Inland Revenue (1977) 3 S.C. 1 at p.15.

Furthermore, it is provided in Order XLI, Rule S of the Supreme Court (Civil Procedure) Rules 1948 that:

“When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence and to sum up and comment thereon,”

In my view, when a party makes a choice which the Law requires him to make, and that choice was acted upon by both parties in the suit and by the Court, the party who made the choice cannot turn round afterwards and claim that he had made a mistake. Such a mistake of Law will not excuse the party.

In my experience, a decision not to call evidence has always been regarded as a legal strategy, not a mistake. If the strategy succeeds, then it enhances the case of that party; but if it fails, such a litigant cannot ask for leave to adduce further evidence in order to repair his damaged case.

It seems to me that if every party who makes a wrong choice of that nature is allowed to repair his case in this way, there will be no end to litigation. The legal maxim is Interest rei publicae ut sit finis litium.

I bear in mind that the defendants’ Counsel also announced that he was resting his case on that of the plaintiffs, and Counsel must be understood to be saying either:

(a) That the plaintiff has not made out any case for the defendants to answer or

(b) That the Defendants have a complete answer in Law to the plaintiffs’ case.

Now I ask, can the lawyer’s announcement to rest his case on that of the plaintiffs be regarded as a mistake also I do not think so.

It has been held that once Counsel makes that announcement, and addresses the Court on it, he must stand by his submission. See Tandoh v. C.F.A.O. of Accra (1944) 10 W.A.C.A.186; S. Atugbue v O. Chime (1963) 1 All N.L.R.208.

In the instant appeal, it is clear to me that all the legal steps taken by Counsel were part of a grand design or strategy to defeat the plaintiffs’ claim with the minimum effort. As it later turned out, those plans went wrong, and Counsel must be content with a decision of the case on evidence which was properly tendered in the trial Court, and not on any fresh evidence.

In this respect, it must be remembered that the principal issue on the pleadings was as to the identity of the land trespassed upon.

The plaintiffs claimed that the said land was that awarded to them by a Supreme Court judgment, whilst the defendants averred that the land they had entered was the parcel of land awarded to them by virtue of three Court judgments which they listed in paragraphs 21-25 of their statement of defence.

At the trial, the plaintiffs called evidence in proof of their pleading, but the Defendants refused to give evidence and failed to tender the relevant judgments which permitted them to enter into the land in dispute.

Consequently, the trial Court gave judgment against the defendants on the uncontradicted evidence of the plaintiffs.

On appeal, the defendants sought leave to present that same defence which they ought to have placed before the trial court and the question is should they be allowed to do so I think not.

In my view, to grant the defendants such indulgence would amount to permitting them to prove their case by instalments – See Udo v. Etok (1934) 11 N.L.R. 136 – and in my opinion, such practice would run contrary to the principles of fair bearing and natural justice.

The lower Court did grant the respondents such indulgence and I hold that this was not a judicious exercise of its discretion under the relevant Rule of the Court.

There is one final point that need be made. The lower Court seemed to have been unduly concerned about the plight of the “helpless litigant” whose Counsel had made an error of judgment in his legal submissions, and consequently lost the case for his clients.

The view of this Court in such circumstances has been clearly stated by Eso, J.S.C., in the case of: Mosheshe General Merchant Ltd. v. Nigeria Steel Products Ltd. His Lordship stated:

“A Counsel who has been briefed and has accepted the brief and also has indicated to the court that he has instructions to conduct a case has full control of the case. He is to conduct the case in the manner proper to him, so far he is not in fraud of his client. He can even compromise the case. He can submit to judgment. Sometimes, he could filibuster, if he considers it necessary for the conduct of his case but subject to caution by the Court. The only thing open to the client is to withdraw instructions from the counsel or if the counsel was negligent sue in tort for professional negligence. Such are the powers but such are also the risks.”

These views apply to the facts of this appeal and I would respectfully adopt them.

In the net result, this appeal succeeds and it is ordered that the Ruling of the Court of Appeal dated 16th September, 1986 admitting Exhibits CA1 – CA3 shall and is hereby set aside.

For the avoidance of doubt, it is ordered that Exhibit 5 CA1, CA2 and CA3 which relate to Suits Nos.KWS/21A/1976, KWS/10A/78 and KWS/12A/74 respectively shall be expunged from the Record of the proceedings of the lower Court.

We are informed by both Counsel that Exhibit CA4 which relates to the Supreme Court case SC.480/75 had been received in evidence by the trial Court and does not therefore constitute fresh evidence in the Court of Appeal.

It was for the reasons stated above that I allowed the appeal on the 6th February, 1989 and it is ordered that there will be costs in favour of the plaintiffs/appellants assessed at N500.00.

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SC.117/1987