Luke Okoro & Ors V. Hilary Egbuoh & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

OGUNTADE, J.S.C.

The respondents were the plaintiffs at the Okigwe High Court of Imo State where as the representatives of the citizens of Umuduruiheoma/ Ofenkoro village, Okwelle, they claimed against the appellants as the defendants (representing the citizens of Ojiowere village, Okwene) the following:

“1. A declaration that the plaintiffs are the owners in possession of the piece and parcel of land known as ‘ALA OBI’ situate at Umuduru iheoma village, Okwene within jurisdiction.

2. N10,000,000.00 (Ten million naira) general damages for trespass committed by the defendants on or about 20th April, 1995.
3. An order of this Honourable Court that the defendants return to the plaintiffs, twenty pick-up loads of plaintiffs’ cassava tubers the defendants forcefully harvested and carted away from the said land.
4. Perpetual injunction restraining the defenants, their agents, servants and privies from further trespass in the said land.”

The parties filed and exchanged pleadings after which the suit was tried by Njemanze, J.

The plaintiffs called four witnesses whilst the defendants called one. The case made by the defendants was that the land in dispute formed a portion of land granted them in a previous Suit No. F.S.C. 16/1959 (1959) SCNLR 316. In order to establish the defence of estoppel per res judicata which they raised, the defendants tendered as an exhibit a Law Report wherein the judgment relied upon was published. The plaintiffs’ reaction to the defence of estoppel per res judicata was that the land adjudicated upon in the judgment pleaded by the defendants was not the same as the land in dispute.

In a judgment delivered on 16/1/97, Njemanze J. dismissed plaintiffs’ suit. He upheld the plea of estoppel per res judicata raised by the defendants. Dissatisfied with the judgment, the plaintiffs brought an appeal before the Court of Appeal, Port-Harcourt Division (i.e. the court below). The defendants, on 20/3/2001 before the appeal brought by the plaintiffs before the court below was heard, brought an application, wherein they prayed for:

“An order granting leave to the respondents/applicants to adduce further evidence in this appeal by tendering the certified true copy of the proceedings and judgment of the Supreme Court in suit No. FSC 16/1959 Ihenacho Nwaneri & 2 Ors. v. Nnadikwe Oriuwa & 5 Ors. (1959) SCNLR 316”.

The plaintiffs opposed the application. The court below in its ruling on 17/9/2001 refused the application. The defendants were dissatisfied with the order refusing their application to adduce further evidence on appeal. They have brought this appeal against the order.

In their appellants’ brief, the issue for determination in the appeal were identified as this:

“Did the learned Justices of the Court of Appeal, having regard to all the circumstances of this case, exercise their discretion properly when they refused to grant leave to the appellants to adduce as further evidence in the appeal, the certified true copy of the proceedings and judgment of the Supreme Court in suit No. FSC 16/1959 (1959) SCNLR 316”

The plaintiffs in their respondents’ brief formulated an issue for determination, which in substance is the same with the defendants’ issue.

In the appellants’ brief, it was argued that it was erroneous for the court below to have taken the general view that because the further evidence sought to be adduced had been available during the trial, the application could not be granted. Counsel relied on Bello Akanbi & Ors. v. Momudu Alao & Anor. (1989) 5 SC 1 at 19 & 44; (1989) 3 NWLR (Pt.108) 118. It was further argued that the paramount consideration in the grant of the leave to call further evidence on appeal was to ensure that the real question in controversy was determined on the merits- Adeleke v. Aserifa (1990) 3 NWLR (Pt.136) 94 at 110. Other cases relied upon on the same point are Owata v. Anyigor (1993) 2 NWLR (Pt.276) 380 and Igboasonyi v. Onwubuariri (1997) 3 NWLR (Pt.495) 592. Appellants’ counsel argued further that where the evidence to be called on appeal would have an effect on the jurisdiction of the court, the court should grant leave to call further evidence on appeal. Nwanezie v. Idris (1993) 11 LRCN 315 at 332; (1993) 3 NWLR (Pt.279) 1; Gazu v. Nyam (1998) 2 NWLR (Pt.538) 477. Developing this argument further, counsel stated that since the further evidence to be called related to the applicability of res judicata, it was an additional reason to grant it Salawu Yoye v. Olubode. In any case, it was submitted, technicalities should not be allowed to hinder justice- Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt.212) 652 at 676; Nneji v. Chukwu (1988) 3 NWLR (Pt. 81) 184 and Long John v. Blakk (1998) 59 LRCN 3864; (1998) 6 NWLR (Pt.555) 524.

The plaintiffs in their respondents’ brief argued although the application of the defendants before the court below was for leave to call further evidence on appeal, what they had tried to do was to bring anew the same evidence they had previously tendered. It was argued that the defendants had not offered any special reason why they had not previously called the same evidence during the trial. Counsel relied on Bello Akanbi & 3 Ors. v. Mamudu Alao & Anor. (1989) 3 NWLR (Pt.108) 118. It was argued that if the counsel retained by the defendants at the trial had made a mistake, the defendants would still be bound by his conduct of the case Mosheshep General Merchants Ltd. v. Nigerian Steel Products Ltd. (1987) 2 NWLR (Pt.55) 110; Adewunmi v. Plastex Nig. Ltd. (1986) 3 NWLR (Pt.32) 767 and Onyia Nwagwu Ngwu & 6 Ors. v. Ugwu Onuigbo & 3 Ors. (1999) 13 NWLR (Pt.636) 512. Counsel stated the conditions for admitting further evidence on appeal as stated in Asaboro v. Aruwaji (1974) 4 SC 119 at 123 – 124 and submitted that the facts in this case did not fit into any of the conditions. Counsel also relied on Adeleke v. Aserifa (supra); Efuwape Okulate & Anor. v. Gbadamos Awosanya & 5 Ors. (1990) 5 NWLR (Pt.150) 340. It was submitted that the facts surrounding the present application differed from those in Igboasonyi v. Onwubuariri (supra).

The respondents’ counsel argued further that the application by the defendants was in reality an attempt to overreach the plaintiffs in their appeal before the court below. It was stated that the plaintiffs had in one of the grounds of appeal before the court argued the inappropriateness of tendering a law report in the place of record of proceedings.

Finally, it was submitted that since the defendants had not filed a cross-appeal, they could not bring an application for leave to call further evidence in the appeal before the court below.

I start a consideration of the only issue in this appeal by examining the relevant Court of Appeal Rule governing the exercise of the power to admit further evidence on appeal. Order 1 rule 20 (3) of the Court of Appeal Rules, 1981 (as amended) provides:

“3. 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.”

In the appeal on hand, it is common ground and clearly undisputed that judgment had been given on the merits by the trial court. When the provision of Order 1 rule 20(3) above is related to the facts in this case, it becomes obvious that the only reason that could justify the reception in evidence of further evidence is, if the applicants before the court below (i.e. the appellants or defendants) showed that there were special grounds making it necessary to grant them the leave sought to call further evidence.

What then are the special grounds shown by the defendants. In paragraphs 6 – 15 of the affidavit in support of the application to call further evidence the defendants deposed thus:

“6. That both in their pleadings and evidence during the trial as fully contained in the record of appeal already before this honourable court, the respondents/applicants made a case that the land now in dispute is part of the land adjudicated upon by the Supreme Court in suit No. FSC 16/1959 Iheanacho Nwaneri & 2 Ors. v. Nnadikwe Oriuwa & 5 Ors. (1959) SCNLR 316.

7. That both in their own pleadings and evidence during the trial as fully contained in the records of appeal already before this honourable court, the appellants made a case that the land now in dispute is not part of the land adjudicated upon by the Supreme Court in the said 1959 suit.
8. That during the trial, we the defendants/respondents/applicants retained the services of P.A. Chikezie Offoaro Esq. to conduct our case.
9. That when the said P.A. Chikezie Offoaro Esqr. demanded from us the judgment of the Supreme Court in suit No. FSC 16/1959 Nwaneri v. Oriuwa (1959) SCNLR 316, we handed over to him what we had, which was the law report called ‘Selected Judgments of the Federal Supreme Court of Nigeria Vol. IV 1959.
10. That the said P.A. Chikezie Offoaro Esqr. informed us and we verily believed him that the said Law Report being an official law report was sufficient and admissible to prove the said judgment.
11. That in order to fortify our case, we also made several trips to the Supreme Court, Lagos and at great expense and inconvenience, we succeeded in obtaining a certified true copy of the proceedings/records that formed the appeal in FSC 16/1959. Nwaneri v. Orinwa (supra)
12. That when DW1 testified on behalf of the respondents/applicants the said law report containing the judgment of the Supreme Court was tendered without objection from the appellant’s counsel and admitted in evidence as exhibit ‘C’.
13. That when we confronted him over the non-tendering of the certified true copy of the records of proceedings given to him, the said P. A. Chikezie Offoaro, .Esq. informed us and we verily believed him that he inadvertently omitted tendering the same but assured us that there was no problem since the Law Report containing the judgment had been tendered.
14. That the said P. A. Chikezie Offoaro, Esq. continued to represent us at the early stages of this appeal until we debriefed him sometime in October 2000 and retained the services of our present solicitors D. O. AGBO CO.
15. That upon perusing the records of appeal and the briefs of argument filed by the parties, our leading solicitor D.O. Agbo, Esq. informs us and we verily believe him as follows:

(a) that since both parties pleaded the suit that culminated in the said suit No. FSC 16/1959, it is in the interest of justice that the duly certified true copy of the proceedings and judgment in the said FSC 16/1959 reported as Nwaneri v. Oriuwa (1959) SCNLR 316 be tendered during the hearing of this appeal as further evidence.

(b) that we require the leave of this honourable court to adduce the said further evidence on appeal.

(c) that the adduction of the further evidence is to properly place a document which both parties pleaded before the court for a just determination of this case on the merits devoid of technicalities.”

In their counter-affidavit the plaintiffs in paragraphs 6 – 16 deposed thus:

“6. That the records of the proceedings and the judgment delivered by the Federal Supreme Court of Nigeria in Appeal No. FSC 16/1959 reported as Nwaneri v. Oriuwa (1959) SCNLR 316 had always been available since Wednesday June 3, 1959 which was the date the Federal Supreme Court delivered judgment in the appeal.

7. That the further evidence now sought to be adduced by the applicants was not in respect of matters, which have occur-red after the date of the trial or hearing of this case at the trial court.
8. That the appellants’ counsel, B.E.I. NWOFOR informed me and I verily believed him that:

(a) the further evidence now sought to be adduced is not a matter that arose ex improviso which no human ingenuity could for see.

(b) the applicants at all material times pleaded the documents now sought to be introduced in evidence in paragraph 11 of their statement of defence and counter-claim and had always been in possession thereof but preferred at the trial not to tender certified copies thereof but rather tendered the law report containing the Federal Supreme Court judgment in FSC 16/1959 reported as Nwaneri v. Oriuwa (1959) SCNLR 316 as exhibit C.

9. That as a matter of fact, the trial court utilised exhibit C in writing its judgment in favour of the respondents now applicants.
10. That the instant appeal now turns inter alia, on whether or not the trial court was right in admitting and using exhibit C to determine the case against the appellants.
11. That before raising the issue of admissibility of exhibit C in this court, the appellants were granted leave by this honourable court on 17/11/99 to raise that issue which was the complaint in ground 2 of the additional grounds of appeal copied on pages 6 and 7 of the appellants brief.
12. That the issue of the propriety of the trial court admitting and acting on exhibit C had been exhaustively canvassed by the parties in their respective briefs now before this court and what the respondents (now applicants) are seeking to achieve by their instant application is to preempt the decision of this court by seeking to correct their omission or error at the trial court without even conceding the error and thereby overreach the appellant’s case in an unjust manner.
13. That the instant application is brought merely to enable the applicants ‘fortify their case’ as stated in paragraph 11 of the supporting affidavit and not to further the ends of justice.
14. That paragraphs 13, 15(a)(c), 16, 18, 20, 21, 23, 25, 26, 27, 28 and 29 of the supporting affidavit are denied.
15. That it is not in the interest of justice to permit the applicants on appeal, to seek to adduce further evidence to fortify and improve upon their case by bringing further evidence which they could with reasonable diligence have produced and tendered at the trial court.
16. That the appellants will be prejudiced if this application is granted.”

It is seen from the affidavit in support of the application that the reason relied upon by the defendants was the inadvertent omission of counsel engaged by them to tender the record of proceedings.

Does this amount to a special ground as stated under Order 1 rule 20(3) of the Court of Appeal Rules I think not. It is helpful once more to bear in mind the language employed under Order 1 rule 20(3) above. It says:

“…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.”

Under the said Rule, the only further evidence which can be admitted is on matters that happened after the trial or hearing, and even then, the applicant who wishes to call such further evidence must show special grounds.

In Comfort Asaboro v. M.G.D. Aruwaji & Anor. (1974) 4 SC (Reprint) 87 at 90 – 91, this court said:

“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 credible 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.”

In Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118 at 159, this court stressing that the jurisdiction to receive further evidence on appeal should only be exercised in furtherance of justice said per Oputa JSC that:

“Furtherance of justice in proceedings before our courts will also presuppose obedience to decisions of our various courts. It is an invariable rule of all courts and one founded on reason, common sense, fair play, and equal treatment of the contestants, and thus on justice, that if evidence which either was in possession of parties at the time of trial or which by proper diligence might have been obtained is either not produced or has not been procured and the case is decided adversely to the side to which the evidence was or could have been available; that side will not so easily be given the extra indulgence of being allowed, on appeal, to adduce or produce such evidence, as new or fresh evidence. Such fresh evidence, on appeal, ought normally to be confined to matters arising ex improviso which no human ingenuity could have foreseen. Order 1, rule 20(3), Court of Appeal Rules, 1981, reflected this when it excepted from the general rules against fresh evidence on appeal ‘evidence on matters which occurred after the date of the trial or hearing”.

In the said case Akanbi v. Alao (supra) this court pointedly made the observation that the error of counsel in the conduct of the case will not be accepted as an excuse to allow the client concerned to lead further evidence on appeal.

The court below in refusing the application to call fresh evidence on appeal said at pages 87 – 88:

“The record of the proceedings and judgment by the Supreme Court in suit no. FSC 16/1959 reported as Nwaneri v. Oriuwa (1959) SCNLR 316 were all the time before the trial of the court in the trial court available to the applicants and their counsel P.A. Chikezie Offoaru, Esq., who conducted the case of the applicant to best of his possessional competence.

In our view of the law, see Order 1 rule 20(3) of the Court of Appeal Rules and the principles decided in the case of (1) Comfort Asaboro v. M.G.D. Aruwaji (1974) 4 SC 119 at page 125 and also Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) 547 at p. 591 we fail to see, having read through the affidavit evidence in support of the application, any special circumstance or circumstances to compel us to grant the application. A party in the trial court ought to go thereto armed with all materials he has to prove his case or any issue.

Involved at the trial (sic). He therefore, calls his witness and tenders what would prove his case. The Appeal Court does not try issues. It does not generally receive evidence except in special circumstance(s). And no one special circumstance(s) exist or exists in the present case based on the material before us.

In conclusion, the application is refused. The motion is dismissed accordingly. There shall be costs of N2,000.00 in favour of the respondents against the applicants.”

I am satisfied that the court below was correct in its views. There is another important feature in the application of the defendants in the court below, which makes it (the application) repugnant in every sense to the ends of justice. The judgment of the trial court was in favour of the defendants in that the plaintiffs’ case was dismissed on the ground that it was caught by the plea of estoppel per res judicata. That plea was upheld by the trial court, which had placed reliance on exhibit ‘C’, the Law Report tendered by the defendants. In their appeal to the court below from the judgment of the trial court, the plaintiffs had raised a ground of appeal contesting the propriety of the admission in evidence of exhibit ‘C’ the Law Report. Plaintiffs’ 5th ground of appeal reads:

“5. The learned trial Judge erred in law in admitting in evidence the Law Report called the selected judgments of the Federal Supreme Court of Nigeria Volume IV 1959 at pages 132 – 137 (i.e. exhibit A) and relying upon it in sustaining the plea of res judicata raised by the respondents.

Particulars of Error:

(i) Exhibit C is a public document within the purview of section 109(a)(iii) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, and by the combined effect of sections 97(2)(c) and 112 of the Evidence Act, the only type of secondary evidence admissible thereof is a certified true copy and none other.

(ii) Exhibit C is neither the original judgment itself nor certified true copy of the original judgment.

(iii) The reception in evidence of exhibit C was contrary to the averment in paragraph 11 of the Statement of Defence in that whereas the respondents pleaded that they will tender and rely on certified copies of proceedings in Suit No. FSC 16/1959 (that is, the Federal Supreme Court decision aforesaid), they tendered the Law Report where the case was reported.

(iv) It is not within the competence of parties to a case to admit by consent or otherwise a document which by law is inadmissible.”

It would seem that what the defendants had tried to do by their application to call fresh evidence before the court below was to take the sting or efficacy out the plaintiffs’ 5th ground of appeal. Clearly, the application was not brought in the furtherance of the ends of justice but merely to overreach and thus defeat the ends of justice. The defendants were in fact not seeking to call further evidence on appeal but rather to improve the quality of the evidence they had called at the court of trial. They had wanted to put in, the proceedings in the suit, which they pleaded to supplement the Law Report on the same case, which they had tendered before the trial court. The defendants’ duty as the respondents in the appeal by the plaintiffs was to defend the correctness of the judgment in their favour not to enhance the quality of the evidence they had earlier called. If they thought that the plaintiffs’ appeal to the court below was meritorious, they should have admitted that fact so that the court below could do what was right in the circumstances.

I am satisfied that this appeal is merely a device to ensnare the plaintiffs and to clearly negate the ends of justice. It has no merit whatsoever. I would dismiss it with N10.000.00 costs in favour of the plaintiffs/respondents.

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SC.395/2001