Lateef Adegbite Vs Aminu Amosun (2016)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

An application was filed by the appellants/applicants in which they seek for the following reliefs:

An order granting leave to adduce further or additional evidence which was not tendered at the two lower Courts to wit:

a) A letter from the office of the Surveyor General of the Federation Ref: No.

FMLHUD/LA/S5A/Vol.III dated 14/08/2003 Captioned “RE-REQUEST FOR LAND INFORMATION (CHARTING) AN PARCEL OF LAND COVERED BY SURVEY PLAN NO. NSMC/95/LS045 DATED 7/4/95.” (attached as Exhibit “B” to this application).

b) Certified True Copy of the Government Notice No. 13 Volume 63 dated 4th March, 1976 (attached as Exhibit “C” to this application).

AND FOR SUCH FURTHER or other orders as this Honourable Court nay deem fit to make in the circumstances.

Moving the motion, learned counsel for the applicants, Mr Oyewo, slated that the motion is accompanied by seven grounds; a 13 paragraph affidavit; some exhibits and a written address After stating the historical facts giving rise to the appeal in his written brief (address), the learned counsel admitted orally

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and in his brief that when the applicants engaged him as counsel (after the death of their previous counsel) he realised the need to raise on appeal, issue of jurisdiction of the trial Court as a fresh issue. After the delivery of judgment by the Lower Court, the applicants’ new counsel applied to the office of the Surveyor General of the Federation for information regarding the status of the disputed land shown on the respondent’s Survey Plan No. NSMC/95/LS045/ dated 7/4/95 (Exhibit “A’) attached to this motion Exhibit ‘A” was issued by the office of the Surveyor General showing that the disputed land falls within Federal Government acquisition; copy of the report Ref. No FMLHUD/LA/S5A/Vol.III, dated 14/08/2113 is attached to this motion as Exhibit “B”

On 19/8/2013, learned counsel obtained certified true copy of the Government Notice No. 344 dated 4th March, 1976 under and by virtue of which acquisition of the disputed land was published in The Federal Republic of Nigeria Official Gazette No.13, Volume 63 of 11th March, 1976; certified true copy of the said Official Gazette which had hitherto been pleaded by the applicants but not tendered before the

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trial High Court and now attached to this motion as Exhibit “C”.

Learned counsel for the applicants, stated that it is the said report from the office of Surveyor General and the notice of acquisition of the disputed land that the applicants want the Honourable Court to now receive as further evidence to show want of LOCUS STANDI of the respondent to institute the case and lack of jurisdiction of the High Court to have heard it. All these facts, submitted the learned counsel for the applicants, were discovered after judgment had been delivered by the Lower Court on 18/7/2013. The evidence sought to be adduced (Exh. B & C), he contended, were dated 14/8/2013 and 19/8/2013 respectively. Learned counsel cited Order 2 Rule 12 of the Supreme Court Rules. He relied on the case of Asaboro v. Aruwaji (1974) 1 All NLR (Pt.1) 140 at 144, in which this Court stated the principles which the Courts have always taken into consideration in the judicial exercise of powers to grant leave lo adduce new evidence. He stated further that the three conditions stated by this Court in the above cited case, must co-exist before the Court can grant the applicants leave

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to call further evidence on appeal.

In Paragraph 4.04 of his written address, the learned counsel for the applicants lamented the inability of the erstwhile counsel (his predecessor) for not requesting for and tendering in evidence of Exhibit “A”. He clearly pointed out that it is clear that the evidence sought to be adduced could have been obtained for use at the trial Court with reasonable diligence The applicants, he lamented further, have thus failed to satisfy the first condition laid down above and if the applicants’ case was to be considered on the principle in Asaboro v. Aruwaji (supra) alone, it would have failed.

Learned counsel for the appellant argued further, that there are other stronger reasons why the evidence sought to be adduced should be admitted by this Court

i. that the evidence shows that the disputed land has been acquired by the Federal Government. Thus, all hitherto existing rights become extinguished hence the respondent lacks the required locus standi to institute the suit.

ii. cited and relied on Sections 2 and 2(2) of the States Land Act, Cap.45, Laws of the Federation 1958.

iii. In an action to protect

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acquired land, only the Attorney-General has the requisite standing to sue and the respondent can only sue if he had been granted fiat by the Attorney-General to do so in his name.

iv. the competence of the respondent to initiate the action is a fundamental issue as it relates to the jurisdiction of the trial Court to adjudicate on it.

Learned counsel cited in support some cases among which are: FGN v. Akinde (2013) 7 NWLR (Pt.1353) 349 at 370 F – H; Makeri v. Kafinta (1990) 7 NWLR (Pt.163) 411 at 424 – H. Fawehinmi v President Federal Republic of Nigeria (2007) 4 NWLR (Pt.654) 275 at 333 334 – H – B; Madukolu v. Nkemdilim (1962) 1 All NLR 587 at 595.

In urging this Court to grant the reliefs sought, learned counsel for the applicants made further copious submissions, which in my view, relate to the main suit, which would even be properly considered by the trial Court. I do not consider such submissions relevant at this stage and are hereby discountenanced.

Learned counsel for the respondent, in opposing the motion, filed a counter affidavit. He stated, while making oral submissions, that the counter affidavit, sworn to by one

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Oyewole, a legal officer in the Law Firm of V.A. Odunaiya & Co.; solicitors to the respondents, is of 4 paragraphs. He adopted and relied on all the paragraphs. He urged this Court to refuse the motion on Notice.

My lords, Order 2 Rule 12(1-3) of the Supreme Court Rules, 1985, as amended, lays down the necessary steps to be taken by an appellant (a party) who wishes the Court to receive additional or further evidence of witnesses (whether they were or were not called at the trial Court) or how to order the production of any document, exhibit or other thing connected with the proceedings in accordance with the provisions of Section 33 of the Supreme Court Act. The requirement of Section 33 of the Act is limited to the exercise of the Court’s appellate jurisdiction, where the Court thinks it necessary and expedient and in the interest of justice that the Court can:

a) Order the production of any document, exhibit, or other thing connected with the proceedings, which appears necessary for the determination of the case.

b) Order any witness who would have been compellable witness at the trial to attend and be examined before that Court, whether

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they were or not called at the trial or be examined as provided by rules

c) receive the evidence, if tendered, of any witness (including the appellant)who is a competent but not compellable witness.

d) ….

Thus, Section 33 of the Act and Order 2 Rule 12 of the Rules of this Court, create an avenue where this Court shall permit receiving of new/additional/fresh evidence. But that does not normally occur except where the appellant (a party) first seeks and obtains leave to do so. This kind of leave should however be differentiated from where an appellant is seeking leave to file additional grounds of appeal. See: Obiora v. Duru (1994) 8 NWLR (Pt.365) 631 (1994) 10 SCNJ 48).

The circumstances where this Court may grant leave to an applicant to adduce new/fresh/additional evidence have for long been pronounced upon by this Court.

I have had the advantage of encapsulating such conditions/circumstances in another judgment:

“It is now trite that for an appeal Court to admit additional evidence of facts on appeal, there must exist special grounds In Asaboro v. Aruwaji (1974) 1 All NLR (Pt.1) 140, such special grounds were stated

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a) The evidence sought to be adduced must be such as would not have been, with reasonable diligence, obtained for use at the trial.

b) The evidence shall be such as if admitted, it would have an important not necessarily crucial effect on the whole case.

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

d) The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the Lower Court (trial Court) in favour of the applicant had it been available at the trial Court.

e) The evidence should be weighty and material, where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.”

See Amaechi v. INEC (2008) 5 NWLR (Pt.1080) 227. See also: Asaboro v. Aruwaji (supra); Ukarino Obasi & Anor v. Eke Onwuka & 5 Ors (1987) 3 NWLR (Pt.61) 364 at 370; Attorney General of the Federation v. Mallam Modu Alkali (1972) 12 SC 20; Owuta v. Ayigor (1993) 2 SCNJ 1 at pp 12 – 13; UBA v B.T L. Ind. Ltd. (2005) 4 SC 40.

The three principles, or rather, conditions, laid down in Asaboro v.

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Aruwaji (supra) were held by this Court that they must co-exist.

The learned counsel for the applicant has in his written address acknowledged this position of the law (Paragraph 4.03 thereof) and even went further to state categorically after some analysis that:

“It is therefore clear that the evidence sought to be adduced could have been obtained for use at the trial Court with reasonable diligence.

The applicants have thus failed to satisfy the first condition laid down above. So if this case was to be considered on the principle in Asaboro v. Aruwaji (supra) alone it would have failed.”

(Paragraphs 4.04, 4.05 of the written address)

The learned counsel for the applicants made other frank observation (Paragraph 4 04) of his written address. This is what he observed:

“In the instant case, the applicants’ counsel could have called before the trial Court the same evidence which the applicants now seek leave to call. He only needed to have requested for the Charting of the respondent’s Survey Plan of the land in dispute (Exhibit “A” at the trial Court) in the office of the Surveyor General to determine whether or not the land had

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been acquired as alleged in the pleadings. It is more regrettable that counsel did even tender the acquisition law (Decree No.344 of 1976) which was copiously pleaded by him. It is therefore clear that the evidence sought to be adduced could have been obtained for use at the trial Court with reasonable diligence.”

My lords, address of counsel however brilliant can never take the place of evidence. Thus, there is need for me to examine the affidavit evidence placed before this Court. The applicants deposed to the following facts amongst others:

“3 In suit No. ID/518/95/ as the respondent sued the applicants herein at the High Court of Lagos State claiming title to the land in dispute shown on survey plan No. NSMC/95/LS045 dated 7/4/95 which was admitted at his (respondent’s) instance as Exhibit ‘A’ by the trial High Court.

4. In their pleadings before the High Court the applicants questioned the jurisdiction of the Court to entertain the case on the ground that the disputed land has been acquired by the Federal Government under Decree No.344 of 1976
5. The respondent equally joined issues on the point of jurisdiction in his pleading before

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the High Court.

6. The matter proceeded to hearing and on 29/6/2006 the trial High Court gave judgment in favour of the Respondent.
7. Dissatisfied, the appellant/applicants appealed to the Court of Appeal which in its judgment dated 18/7/2013 affirmed the Judgment of the trial High Court.

8 Consequently on 7/8/2013 Oyesola Oyewo of counsel who took over the matter from the appellants/applicants’ previous counsel applied to the office of the Surveyor General of the Federation for information regarding the status of the disputed land shown on the respondent’s survey plan referred to in paragraph 3 above; copy of counsel’s letter dated 7/8/2013 is attached and marked as Exhibit ‘A’.

9. The respondent’s survey plan was charted and a report was issued by the office of the Surveyor General showing that the disputed land falls within Federal Government acquisition; copy of the report Ref No. FMLHUD/LA/S5A/Vol. III dated 14/08/2013 which is now sought to be adduced as further evidence is attached as Exhibit ‘B’.
10. An 19/8/2013 counsel also obtained certified true copy of the Government Notice No.344 by virtue of which acquisition of the

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disputed land was published in The Federal Republic of Nigeria Official Gazette No.13 Volume 63 of 11th March. 1976; certified true copy of the said Official Gazette is attached as Exhibit ‘C’

11. I verily believe that the evidence sought to be adduced (Exhibits ‘B’ and ‘C’ herein) have a crucial effect on the whole case because they show:

a) that the respondent lacked the required locus standi to institute this case

b) that the trial Court lacked jurisdiction to have heard the case.

c) that the Court of Appeal was in error to have affirmed the judgment of the trial High Court and

d) that the jurisdiction of this Hon. Court to entertain the appeal is equally affected.

12 The appellants have raised the issue of jurisdiction as a ground of appeal before this Honourable Court hence the need to adduce further evidence in order to establish that the land in dispute falls within the Federal Government Acquisition.”

(underlining supplied)

In his counter affidavit, the respondent deposed to the following facts:

“3. That I was informed in our chambers by Mrs. Tunde Sobowale of counsel on Thursday 10/12/15 at about

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5.00pm when this matter was being reviewed and I verily believe as follows:

a. That same is not a jurisdictional issue.

b. Membership of the Court was qualified in accordance with the law.

c. the processes through which the matter was placed before the Court followed minutely the provisions of the law.

d. The issue was already dealt with at the Lower Court.

e. The issue of jurisdiction which was raised at the Lower Court (High Court) had been raised, taken and dealt with at the lower Court.

f. The documents now being sought to be used as additional evidence are not of such a nature that would affect the jurisdiction of the Court.

g. It was the appellants’ choice then not to tender any document in support of his case at the Lower Court, during trial.

h. The respondent will be prejudiced if the application is granted.

i. The appellants had the opportunity to obtained(sic) the documents at the High Court and tender then but chose not to do so.

j. The nature of the evidence sought to be adduced does not affect the jurisdiction of this or any other Court.

k. That it is in the interest of justice to dismiss the

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appellants’ application.”

From the parties’ affidavit evidence as above, it is my finding as:

a) as per Exhibits ‘A’ (Paragraph 3) Exhibit ‘B’ (Paragraph 9) and Exhibit ‘C’ (Paragraph 10) of the affidavit in support the status of the land in dispute shown in these exhibits shows that the land in dispute was acquired by the Federal Military Government as per Government Notice No.344 (Public Lands Acquisition Act (Chapter 167).

b) The Survey Plan No. NSMC/95/S045 dated 7/4/95, issued by the office of the Surveyor General as per copy of report Ref No FMLHUD/LA/S5A/Vol.lll dated 14/08/13 (Exhibit ‘B’, Paragraph 9 of Affidavit in Support) covers the disputed land which is shown to have been captured by Government Notice No 344 published in The Federal Republic of Nigeria Gazette No 13 Volume 63 of 11th March, 1976 (Exhibit ‘C’ Paragraph 10 of the affidavit in support)

c) The issue of jurisdiction, was pleaded by both parties: applicants as defendants in their amended statement of defence, Paragraphs 2, 12, 14 and 17, and the respondent as plaintiff, joined issues on jurisdiction as per Paragraph 1(a) of his further amended reply to statement of defence

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(Paragraph 12 of record). However, no evidence was led by any of the parties.

d) At the Court below, the issue of jurisdiction was a well abandoned hence the judgment of the trial Court was affirmed.

I entirely agree with the learned counsel for the applicants that these are strong, cogent points which may likely affect the jurisdiction of the trial Court. The evidence sought to be tendered on appeal is apparently credible in the sense that it is capable of being believed, though need not be incontrovertible. See: Obasi &Anor v. Onwuka & 5 Ors (supra); A G Federation v. Alkali (supra). The issue of jurisdiction is fundamental and it can be raised at any stage of the proceedings even for the first time in this Court. See Oyakhire v The State (2006) 15 NWLR (Pt.1001) 157 SC; Gaji v. Paye (2003) 8 NWLR (Pt.823) 583 SC; Arjay Limited v. Airline Management Support Ltd. (2003) 7 NWLR (Pt.820) 577 SC.

It is beyond dispute as per Paragraphs 6 and 7 of the affidavit in support that the matter proceeded to hearing at the trial Court whereof judgment was delivered in favour of the respondent. Court below gave its judgment o 18/7/2013,

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affirming the trial Courts decision. The Constitution of the Federal Republic of Nigeria, 1999 (as amended) has conferred exclusive jurisdiction on the Federal High Court in a matter in which the Federal Government or any of its agencies is involved. (Section 251(1) (p), (q), (r) and (s). Exhibits ‘B’ and ‘C’ annexed to the affidavit in support are to the effect that the land dispute has been acquired by the Federal Government. The Federal Government is, therefore, directly involved.

It is also in evidence (Paragraph 12 of the affidavit in support) that the appellants have raised the issue of jurisdiction as a ground of appeal before this Court, hence the need to adduce further evidence in order to establish that the land in dispute falls within the Federal Government Acquisition.

I agree, too, that there was ineptitude, inadvertence or mistake from the previous counsel for the applicants (at both the trial and appeal Courts) as the said documents (Exhibits ‘B’ and ‘C’), in particular, were not sought for and tendered before the trial Court or even at the Court below. That of course, is what they describe as “mistake of counsel” or “sin” of counsel which

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should not be visited on his clients. See: Shanu v. Afribank (2003) 13 NWLR (Pt.684) 392 at page 403 – B – C; Chima & Anor v. Nelson Ude & 2 Ors (1996) 7 NWLR (Pt.461) 379 SC.

Thus, documents not tendered at the trial Court due to inadvertence of counsel, can be tendered on appeal as fresh evidence in the interest of justice. See: Jadesannmi v. Okotie-Eboh (1986) 1 NWLR (Pt.16) 264 Further, in Adeleke v. Aserifa (supra). The law was restated by Karibi-Whyte in his contribution in the above case as follows:

“Hence where evidence is available and could with reasonable care and diligence be made available to the applicant at the time of the trial, as in the instant case, the Court of Appeal will refuse to exercise its discretion to receive such evidence. However, if applicant referred to the document in his pleadings or evidence but did not tender it, the appellate Court can admit it. See Latinwo v. Ajao (1973) 2 SC 99.”

Further, on the issue of jurisdiction the learned counsel for the applicants (Paragraph 4.11) submitted that the competence of the respondent to initiate the action is a fundamental issue as it relates to the jurisdiction

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of the trial Court lo adjudicate on it, as the standing to sue, locus standi, is a condition precedent for the determination of a case on the merit. Madukolu v Nkemdilim (1962) 1 All NLR 587 at 595.

Learned counsel argued that in an action to protect acquired land (such as the one in dispute), it is only the Attorney-General of the Federation that has the requisite standing to sue and the respondent can only sue if he had been granted fiat by the Attorney-General. It is not the case in this matter. He cited Makera v Kafinta (1990) 7 NWLR (Pt 163) 411 at 420 – H; Fawehinmi v President FRN (2007) 4 NWLR (Pt1054) 275 at Pages 333-334-H-B.

In considering the totality of this application, I think the interest of justice requires that the application be granted as per the reliefs sought by the applicants. In any event, this Court granted a similar application in Nwanezie v Idris (1993) 3 NWLR (Pt.279) 1 at page 17, where it was held as follows:

“In any case where the challenge to the decision of the Court is founded on lack of jurisdiction, the Court is bound to consider such evidence which goes to the root of the matter and to show that the Court

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has acted without jurisdiction – See: Adeigbe v. Kushimo (1965) 1 All NLR 248.

A party to litigation cannot be shut out and the Court precluded on technical grounds from receiving evidence showing that the decision of Court was given without jurisdiction. The issue of jurisdiction is fundamental to the proper hearing of a cause – Madukolu v. Nkemdilim (1962) 2 SCNJ 341; 1962 1 All NLR 587. There is no doubt that the evidence sought to be adduced if, admitted, would not only have a critical but a decisive effect on the whole case. In the instant case, it is necessary to receive such evidence for the just disposal of the case. To refuse to admit the additional evidence tantamount to the appeal Court endorsing the decision of the trial Court reached without jurisdiction.”

My lords, it is elementary, that an appeal is a continuation of the Original case/suit from the Court of first instance. Thus, the jurisdiction of an appellate Court including this Court, can only inure when the trial Court is imbued with jurisdiction. That is why an issue of jurisdiction is so fundamental such that it can be raised at any stage of the proceedings even for the

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first time in this Court. See: Deborah v. Okonkwo (1982) 11 SC 74 at 94; A-G Oyo State v. Fairlakes Hotel Ltd (1988) 5 NWLR (Pt 92) 1 at pp. 4849-H-A; Ofedoyin v. Arowolo (1989) 4 NWLR (Pt 114) 172 at page 187 – C; International Bank Plc v. Olam (Nig.) Ltd. (2013) 6 NWLR (Pl 1351) 468 at pages 479 – F – G.

Permit me, my lords, to quote and adopt the encapsulating reasoning put forward by Oguntade, JCA, (as he then was) in the case of Gazu v. Nyam (1988) 2 NWLR (Pt.538) 477 at 494:

” . …There is still another reason why the evidence sought to be called ought to be admitted, if as contended by the applicant, the trial Court which heard the case has no jurisdiction: it follows that the judgment of that Court is potentially useless. Under the doctrine of RES JUDICATA, a judgment given without jurisdiction cannot create an estoppel. It is therefore, in the interest of the direct parties to this case, and the larger public that the true status of the judgment be pronounced upon as soon as possible. Otherwise, a great injury would be caused to innocent privies of the parties who would have placed reliance on the judgment in transactions involving

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large sums of money before realising that it is valueless.”

I am in full agreement with Oguntade (JCA) now JSC (in retirement). I adopt the reasoning.

Accordingly, I hereby grant this application as prayed. The applicants are granted leave to adduce further evidence in this Court which was not tendered at the two Lower Courts, to wit:

a) A letter from the office of the Surveyor General of the Federation Ref No. FMLHUD/LA/S5A/Vol.lll dated 14/08/2013 Captioned “RE: REQUEST FOR LAND INFORMATION (CHARTING) ON PARCEL OF LAND COVERED BY SURVEY PLAN NO. NSMC/95/LS045 DATED 7/4/95” (attached as Exhibit “B” to this application).

b) Certified True Copy of the Government Notice No.344 published in The Federal Republic of Nigeria Official Gazette No.13 Volume 63 dated 4th March, 1976 (attached as Exhibit ‘C’ to this application).

Application granted as prayed.

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SC.673/2013(R)