Comfort Asaboro V. M.g.d. Aruwaji & Anor (1974)
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COKER, JSC.
This ruling concerns an application by the defendant/appellant for an order for “leave of the court to adduce new evidence and for such further order or other orders as this honourable court may deem fit to make in the circumstances”. The application which is in writing is supported by an affidavit sworn by a Mr. Bello, legal practitioner who deposed to facts concerning the application and its purpose.
In short, the affidavit is to the effect that the applicant did try to obtain from the Registry of Companies in Lagos certified copies of returns in connection with a company known as “Thomas Associates Ltd.” of No. 41, Itire Road, Surulere, Lagos, at the trial of the case, but she was unable to obtain these documents as the deponent (her solicitor) was informed by the officer-in-charge of those records that the file was missing and that the office was closed to the public. Paragraphs 13 and 14 of the affidavit read as follows:- “13. That I personally travelled to Lagos to make a personal search at the Companies Registry on several occasions during the period December to June 1972, but access to the Registry was not allowed to the public because the officer-in-charge of the Registry informed me that the files could not be traced.
14. That with the closure of the Companies Registry to the public, the defendant was not in a position at the hearing of the case in the High Court on 8th March, 1972, to prove with the aid of material particulars the allegations of the 2nd plaintiff’s connection with Thomas Associates Limited.” With respect to the application itself, the appellant claims that the purpose of the new evidence is to put in evidence certified copies of returns forwarded by Thomas Associates Ltd., to the Registrar of Companies which would disparage the evidence given on oath by the 2nd plaintiff to the effect that he was neither a director nor the Chairman of the said company – Thomas Associates Ltd. Paragraph 10 of the affidavit accompanying the motion states thus:- “10. That the facts of the information about the said Company in connection with the estate were pleaded in paragraphs 24-27 of the amended statement of defence.”, and in other to appreciate the point we set out paragraphs 24-27 of the amended statement of defence:-
“24. The defendant further avers that the plaintiffs fraudulently misrepresented certain facts to the Lagos Executive Development Board early this year and caused to be assigned to a Company known as Thomas Associates Ltd. of 41, Itire Road, Surulere, Lagos, Plot No. WK.1016 Apapa otherwise known as 9, Commercial Road, Apapa, property of Joseph Asaboro – deceased. 25. Messrs. Thomas Associates Ltd. of 41, Itire Road, Surulere, Lagos, is a private company owned, controlled and managed by the 2nd plaintiff. 26. The assignment by the plaintiffs was fraudulently carried out under and by virtue of the Letters of Administration granted to the plaintiffs and defendants to administer late Joseph Asaboro’s Estate in the West and which Letters the plaintiffs are now seeking to be resealed in Lagos. 27.
The defendant avers that it was because of her timely intervention that the L.E.D.B. withdrew its consent to the assignment on 17th March, 1971.” A counter-affidavit was filed on behalf of the respondents, challenging the substantive averments of fact in the appellant’s affidavit and indeed stating that the appellant neither gave evidence at the trial nor indicated to the learned trial Judge that she required any adjournment for the purpose of bringing in the evidence which she now seeks to introduce. Paragraphs 4-8 of the counter-affidavit read as follows:- “4. That the Companies Registry, Lagos, was never closed to the public as alleged or at all.
5. That I have also made necessary inquiries and have discovered that at no time was any application for subpoena applied for by the appellant for service on the Registrar of Companies. 6. That the appellant or her counsel never applied to the learned trial Judge for the adjournment of the defence at any time in order to call the alleged new evidence. 7. That the appellant did not give evidence even though she and her counsel were present in court throughout the proceedings and heard the evidence led in support of the plaintiff’s case. 8. That the application has not been brought in good faith.”
We were addressed at some length by learned counsel on both sides when the matter came up for hearing and determination and learned counsel for the appellant urged the points contained in his affidavit. The application was vehemently opposed by learned counsel for the respondents who contended that it would not be proper to grant the application in the circumstances described in his counter-affidavit, the more so as the appellant could have obtained the evidence in question at the trial and used it then. Learned counsel also drew our attention to the decision of this court in the case of Attorney-General of the Federation v. Mallam Modi Alkali (1972) 12 S.C. 29 where an application to call fresh evidence was refused by this court.
There is of course no dispute as to the powers of this court to grant leave to adduce new evidence or additional evidence. Order VII Rule 24 of the Rules of the Supreme Court provide as follows:- “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.”
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 rules in the same respect.
The decision also evidently applied the principles which time honoured practice has established and the matters 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 creditable in the sense that it is capable of being believed and it need not be incontrovertible. See for these observations Roe v. R. McGregor & Sons Ltd. (1968) 1 WLR 925 where the earlier decision of the court of Appeal in Ladd v. Marshall (1954) 3 All ER 745 was considered and applied. Strictly speaking, under our own Rule, the discretion to grant leave to adduce new evidence is properly exercised for the “furtherance of justice”.
The exercise must however be judicious and it is in this respect that the guidelines set out above have been followed and applied. We are not unmindful of the fact that it would be a dangerous precedent to allow a person who did not call evidence in the lower court, or who, for one reason or another, had called insufficient evidence at the trial, with comparative ease, to bring forward for the first time before this court the evidence which could and should have been adduced before the trial Judge. Such an attitude would be disastrous to the principle of seeing an end to litigation. The stand taken by the Privy Council in the case of Edie Maud Leeder v. Nnance Ellis (1953) AC 52 also illustrates this point.
However one looks at the problem, it seems to be generally accepted that the guiding principles have always been applied to the special facts or circumstances of each application before the Court of Appeal, and in every case the question whether or not sufficient diligence had been put into the quest for such evidence had been decided as a matter of fact.
In the present application, there is no dispute that the evidence sought to be adduced by putting in evidence the certified copies of returns obtained from the Registry of Companies, if accepted, would disparage the evidence of the 2nd plaintiff to the effect that he was neither the Chairman nor a director of Thomas Associates Ltd. By statute the documents are of equal validity with their originals (see Section 374 of the Companies Decree, 1968). The only questions are whether or not in the circumstances this evidence is such as with reasonable diligence it could have been obtained and produced at the trial and whether the privilege which the rule confers enures to a party who did not call any evidence at the trial.
The affidavit in support of the application herein states clearly that a legal practitioner representing the defendant did visit the offices of the Registrar of Companies for the purposes of obtaining these documents and that he was there told by the officer-in-charge that the file could not be traced, and that access to the records were not then available to the public. Indeed, paragraphs 16-19 of the affidavit of the defendant read as follows:- “16. That the defendant had no means after all diligent steps taken in this direction of combating the denial of the obvious fact made by the 2nd plaintiff as respects his position with Thomas Associates Ltd. 17. That the judgment was delivered by the learned trial Judge of the High Court on 29th May, 1971, in favour of the plaintiffs. 18. That it wa
Other Citation: (1974) LCN/1793(SC)
