K.O. Imale & Ors. V. M. Agiri & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A. 

By a motion on notice filed on 3/5/95 the applicants applied to this court for the following orders:-

“1. An order permitting the defendants/appellants to tender as further evidence the proceedings of 22nd September, 28th September, 29th September and 5th October, 1938 as part of Exhibit ‘B’ tendered by the respondents in the court below copy attached herewith marked Exhibit “B9-B11”.

2. An order permitting the defendants/appellants to rely on Exhibit “B9-B11” in arguing their appeal.
3. An order compelling the plaintiffs/respondents to amend paragraphs 18 and 20 of their statement of claim in the court below to reflect the judgment in Exhibits “B9-B11” as per the “Schedule of Amendments” attached herewith marked “Exhibit C”.

ALTERNATIVELY

3b. An order allowing the defendants/appellants to amend their statement of defence in the court below by adding paragraphs 30(A) and 30B to the statement of defence as per a “Schedule of Amendments” attached herewith marked “Exhibit C1”.

4. An order allowing the use of Exhibits “B9-B11″ in this Honourable Court and as part of the exhibit tendered in the court below.
5. An order allowing the defendants/appellants/applicants to amend the Notice of Appeal filed on pages 52-53 of the Records by adding more grounds of appeal to the original grounds of appeal and by adding another relief to the reliefs sought from the Court of Appeal as per the Schedule of Amendments attached herewith marked Exhibit D.
6. An order allowing the defendants/appellants to file a new brief of argument reflecting the real issues in the appeal.

AND FOR such further or other orders as this Honourable Court may deem fit to make in the circumstances. ……..”

At the hearing of the application on 21/5/97, the learned counsel for the applicants Chief O. Esan submitted that the application (as per the heading of the motion paper) is brought pursuant to section 16 of the Court of Appeal Act, 1976; order 1 rule 20(3); order 3 rules 16 and 20 of the Court of Appeal Rules, 1981; and the inherent power of this court. He referred to the 3 prayers in the motion paper and the 3 alternative prayers (as reproduced above) as well as the supporting affidavit (of 30 paragraphs). He relied on all the paragraphs particularly paragraphs 10 to 21 thereof. He stated that the purpose of the application is to prevent the respondents from getting judgment in their favour based on false hypothesis and suppression of relevant facts. The applicants’ counsel then referred to the counter-affidavit filed by the respondents in respect of the motion and pointed out that the said respondents have admitted (in paragraphs 20 and 22 of the said counter-affidavit) the existence of the judgment of 5/10/38 which the applicants are now seeking to tender. He also stated that the applicants were not aware of the said judgment (of 5/10/38) until after the decision of the trial court which was in 1981. It is further stated by the applicants’ counsel that they did not become aware of the said judgment until 1995. The learned counsel referred to the case of Comfort Asaboro v. M.G.D. Aruwaji (1974) 1 All NLR (Pt. 1) 140 and all the 13 case law authorities as contained in the motion paper cited in support of the application. He finally urged us to grant the application.

The learned counsel for the respondents Chief H.B. Fabunmi who opposed the application referred us to the counter-affidavit (of 34 paragraphs) filed on 1/9/95 for the purpose of their opposition (or objection) to the application. He relied on all the paragraphs of the counter affidavit and pointed out that they did not admit the existence of the judgment of 1938 in their paragraph 20 (of the counter-affidavit) as asserted by the applicants’ counsel. Rather, the respondents have in paragraph 5 of the said counter-affidavit, denied all the averments in the paragraphs of the supporting-affidavit except paragraphs 1 and 3 thereof. The learned counsel for the respondents also pointed out that at the lower court the applicants pleaded (in paragraph 2 of their statement of defence) denying the existence of the judgment of 5/10/38 which they are now seeking to tender. The learned counsel also referred to paragraphs 17 and 18 of the statement of claim (at pages 10 – 12 of the record) where the respondents pleaded the said judgment. It was argued that instead of the applicants to make efforts to find the said judgment as pleaded by the respondents or to seek for an adjournment to trace it, they flatly or carelessly denied its existence. Reference was also made by the respondents’ counsel to the address of the applicants’ counsel (at page 41 of the record) where he submitted that the judgment in question was irrelevant. It was submitted by the respondents’ counsel that the applicants’ counsel who made that submission at the lower court cannot now be heard to argue or assert that they were not aware of the said judgment until after the decision of the lower court or that the decision of the said lower court was obtained by fraud or suppression of relevant facts. It is also submitted that the applicants by their motion are now trying to bring fresh evidence at this level and the principles for doing so have been enunciated in some authorities which include: Emmanuel Iloegbu v. C.O.P (1992) 7 NWLR (Pt. 254) 459 at P.467; Okulate v. Awosanya (1990) 5 NWLR (Pt. 150) 340 at Pp. 345-346.

On prayers 3 and 3(b) of the motion paper which are for amendment of pleadings, the learned counsel for the respondents referred us to the case of Laguro v. Toku (1992) 2 NWLR (Pt. 223) 278 at pp. 290-291 and submitted that the applicants have not satisfied the principles or conditions for amendment of pleadings as enunciated in that case. He pointed out that to allow the said applicants to amend their pleadings at this stage and in the way they want is to allow them to present a different case from what was presented at or before the lower court – see also Attorney-General of Anamhra State v. C.N. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt.66) 547;(1987) 9-11 SC 197 at p. 202 cited in further support of the submission of the respondents’ counsel. Finally the learned counsel for the respondents urged us to refuse the application and to dismiss it.

The learned counsel for the applicants made no further submissions in reply but referred us to paragraph 22 of the counter-affidavit where the respondents have admitted the existence of the judgment of 5/10/38.

From the above submissions of learned counsel to the parties in this application, there are two issues involved or arising from both the main prayers and the alternative prayers in the motion paper viz:

(a) the calling, adducing or tendering of fresh or further evidence on appeal;

(b) the amendment of pleadings both during trial and on appeal.

Prayers 1 and 2 of the motion paper relate to the 1st issue while prayer 3 is on the 2nd issue. Also the alternative prayer 4 is on the 1st issue while the alternative prayer 3(b) is on the 2nd issue. I intend to hereunder consider and apply the principles of law regulating the two issues (i.e. when they are permissible or not).

On the calling or adducing of fresh or further evidence on appeal, the guiding principles which the appellate courts take into consideration in granting or refusing leave to the applicant to do so are as follows:-

(a) the evidence sought to be adduced must be such as could not have been with reasonable diligence, obtained for use at the trial or is or are on matters which occurred after the judgment; (b) after hearing the case on merit the Court of Appeal will only admit evidence other than under (a) above on special grounds;

(c) the evidence to be adduced must be such as would have an important effect on the whole case; and

(d) the evidence must be credible in the sense that it is capable of being believed – See Iloegbu v. C.O.P. (supra) cited by the respondents’ counsel); Akanbi v. Alao (1989) 3 NWLR (Pt. 108) 118.

In applying the above principles particularly with regard to the first of the above listed conditions which is more relevant to the present application the appellate courts insist that it is not enough for the applicant to merely aver in the affidavit or in the counsel’s submission that he exercised reasonable diligence and yet the evidence to be adduced could not be obtained or that it is in the interest of justice to admit the fresh evidence, he must go further to show the practical steps he took to procure the evidence at the trial without success- see Iloegbu’ s case (supra at p. 467 of the report). It is pertinent here to note and restate the submission of both counsel in this case regarding the first condition. The learned counsel for the applicant in his submissions stated that they did not become aware of the judgment they are now seeking to tender (i.e the judgment of 5/10/38) until after the decision of the lower court in 1981 and that they actually became aware of the said judgment in 1995 (when this application was brought). Against this assertion by the applicants’ counsel, the respondents’ counsel referred to paragraph 2 of the applicants’ statement of defence at the lower court where they denied the existence of the judgment which they are now seeking to tender (i.e. the judgment of 5/10/38). The applicants also did not make any effort nor did they seek for an adjournment to ascertain the existence of the said judgment which had also been pleaded by the respondents in paragraphs 17 and 18 of their statement of claim. It was also pointed out by the learned counsel for the respondents that the applicants’ counsel in his address at the lower court (during the trial) submitted that the judgment in question was irrelevant. In my view, the submissions of the respondents’ counsel (which I confirmed and therefore believe) show that the applicants were actually aware of the judgment in question (i.e. the evidence they are now seeking to adduce in this court) during the trial and before the decision or judgment of the trial court. This is contrary to their averment in their supporting affidavit and also to their counsel’s submissions which show that they were not aware of the judgment (i.e. the evidence sought to be adduced) until after the lower court’s decision in 1981. In view of this misstatement by the applicants which when compared with their true position as rightly classified by the respondents’ counsel as regards their knowledge of the judgment in question before the decision of the lower court, they are, by virtue of the first principle or condition for grant of leave to adduce further or fresh evidence on appeal, not entitled for the grant of leave by or the discretion they are seeking from this court. It is also pertinent to observe that the applicants who were aware of the judgment (or proceedings) they are now seeking leave to tender failed to take any reasonable or diligent steps to procure and tender it at the trial court but instead denied its existence and regarded it as irrelevant. I think they should be estopped from asserting its existence or relevance now – at this level. Thus the applicants have failed to satisfy the 1st, 2nd and 4th conditions, as discussed and set up above and as enunciated by the superior courts, for the grant of leave to adduce further evidence at the Court of Appeal.

Another important principle considered by the courts in dealing with application for leave to adduce further evidence at the appellate court is that the applicant should not be allowed by the fresh evidence sought to be adduced to change his position in the Court of Appeal by making a completely different case from the one he had presented at the trial court – see Uor v. Loko (1988) 2 NWLR (Pt. 77) 430 at p. 438; and Ejiofodomi v. Okonkwo (1982) 11 SC 74 at p. 96. Fresh evidence on appeal is also allowed if the admission of the further evidence is necessary to prevent an obvious miscarriage of justice – see Attorney-General of Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt. 92) 1 at p. 19; and Onwughufor v. Okoye( 1996) 1 NWLR (Pt.424) 252 at p. 291; Ahaye v. Ofoli (1986) 1 NWLR (Pt. 15) 134 at p. 145; and Temco Engineering & Co. Ltd. v. S.B.N. Ltd. (1995) 5 NWLR (Pt. 397) 607 at pp. 617 – 618. In my humble view the applicants who denied the existence of the judgment of 5/10/38 (now sought to be tendered) and treated it as irrelevant and the decision or judgment of the trial court of 1981 was arrived at without the said judgment would, if now allowed to tender it in this court, be presenting a different case from the one they presented before the said trial court. The said applicants have not also shown that the said judgment (now sought to be tendered) is necessary to be in this court in order to prevent an obvious miscarriage of justice. For all the above reasons I will resolve the first issue relating to the calling of or tendering fresh or further evidence at the Court of Appeal against the applicants. Accordingly I hold that the applicants are not entitled under the principles of the law to be granted leave by this court to tender the proceedings leading to or the judgment of 5/10/38 (as per their 1st & 2nd main prayers and the alternative prayer 4 of their motion paper). The said prayers are consequently hereby refused and dismissed.

On the second issue which is on the application for leave to amend the pleadings at the lower court (as per prayers 3 and 3(b) of the motion paper), the main principles to be considered in such an application, from the decided authorities, are aimed at the justice of the case and the rights of the parties – See: Laguro v. Toku (supra. cited by the respondents); Afolabi v. Adekunle (1983) 2 SCNLR at p. 141; Dominion Flour Mills Ltd v. George (1960) LLR 53; Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214; Ijebu-Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt. 166) 136; and U.B.N Plc. v. Sparkling Breweries Ltd. (1997) 3 NWLR (Pt. 491) 29 at pp. 49-51.

Furthermore, an amendment can only be granted by the court (particularly by the appellate court) for the following reasons:-

(a) the need to amend the record of the trial court so as to comply with the facts before the trial court and the decision given by it in order to prevent the occurrence of substantial injustice;

(b) where the grant of the amendment would not necessitate the calling of additional evidence;

(c) where the amendment sought to be made to the pleading at the trial court would not change the character or nature of the applicants’ case and no prejudice or injustice would result from the amendment;

(d) where the amendment sought to be made is in order to bring the pleadings in line with the evidence at the trial.

In addition to the above conditions an amendment to the pleadings will not be granted by the appellate court if the appellant/applicant is acting mala fide (in bad faith) or if it will cause injustice to the respondent or cause him some injury that cannot be compensated by costs or otherwise – See: Ojah v. Ogboni (1976) 4 SC 69; Oguntimehin v. Gubere (1964) 1 SCNLR 299; Amadi v. Thomas Aplin & Co. Ltd. (1972) 1 All NLR (Pt.1) 409 and Laguro v. Toku (supra).

In applying all the above principles or conditions to the present application as regards the application for the amendment of the pleadings of the lower court (as per the prayers of the applicants in the motion paper) I am inclined to accept and agree with the submissions of the learned counsel for the respondents to the effect that the proposed amendment to the pleadings would change the character or nature of the appellants/applicants’ case before the lower court. Thus the said applicants by their proposed amendment to the pleadings are in effect seeking to present a different case from what they presented at the lower (or trial) court. It is pertinent to note that in both the two prayers in the motion paper seeking for the amendment of pleadings at the lower court (i.e. prayers 3 and 3(b), the applicants are trying to plead the judgment in exhibits B9-B11 (the judgment of 5/10/38) the existence or reference of which they had denied during the trial at the lower court (both in their pleadings and in the address of their counsel). Consequently to allow them now to amend their pleadings to show that the judgment in question actually existed and is relevant is to permit them to change the character or nature of their case to present a case which is different from that they presented at the lower court. It is also important to note that the decision or judgment of the said lower court was arrived at or given on the premises that no previous judgment (i.e. of 1938) had existed. The said judgment if pleaded and admitted at this level (or in this court) would surely change the position of the parties in the case and thereby adversely affect the right or interest of the respondents. The final fate in this appeal under such a situation would be to reverse or upset the trial court’s decision. In my humble view this will cause a serious injustice and prejudice to the respondents. This will be contrary to the above stated principles, as enunciated by our superior courts, which regulate amendment of pleadings by the appellate courts. Consequently and in view of my consideration of the second issue in this application, the prayers for amendment of pleadings as contained in the motion paper should also be refused for lacking in merit and being in bad faith – mala fide. Accordingly I hereby refuse and dismiss the said prayers (i.e prayers 3 and 3(b) as contained in the motion paper.

The other prayers (prayers 5 and 6) in the motion paper are from their nature and wordings consequential upon or supplemental to the other prayers already considered and refused in this ruling. In other words the said other prayers are also aimed at the taking of necessary legal steps to regularize and rectify the non-pleading and a fortiori non-tendering of the judgment of 5/10/38 at the trial court. To this extent the said other prayers (i.e. prayers 5 and 6) should also by the failure of the main ones on which they are based (or from which they flow) be refused and I hereby accordingly refuse them.

Finally in view of my consideration of all the aspects of this application (i.e., all the prayers) I found that it is lacking in merit and should be refused. Consequently the application is hereby refused and dismissed. I assess the costs of the application at N1,000.00 which I hereby award in favour of the respondents.

Other Citations: (1997)LCN/0251(CA)