Major Abu V. Alhaji Tijjani Ahmed (2016)
LawGlobal-Hub Lead Judgment Report
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
The Appellant filed before this Court a motion on notice dated the 5th of June, 2015 praying for the following orders:
“i. An order of Court granting leave to the Appellant to adduce further evidence.
ii. An order of Court admitting the Ministerial White Paper on unwholesome allocation of carved out lands by staff of the Kaduna Field Office as forwarded by a letter with Ref. FMLHUD/S/PAC/569/258 dated the 5th of May, 2015.”
The grounds upon which the motion was predicated were stated on the face of the motion paper. The motion was supported by an affidavit of seven paragraphs with one exhibit attached and which was deposed on the 12th of June, 2015 and by a further affidavit of twelve paragraphs with one exhibit attached and which was deposed on the 16th of November, 2015. The Respondents opposed the application and they filed a counter affidavit of four paragraphs with one exhibit attached and it was deposed on the 1st of June, 2015. At the hearing of the application, Counsel to the Respondent indicated that they would be opposing the application and
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whereupon this Court ordered the parties to file written addresses of their arguments on the application.
Counsel to the Appellant filed a written address on the application dated the 11th of November, 2015 on the 16th of November, 2015. Counsel to the Respondent also filed a written address of arguments on the application and it was dated 1st of December, 2015, but filed on the 2nd of December, 2015. Counsel to the Appellant filed a reply address on points of law dated the 17th of December, 2015 on the 18th of December, 2015. At the hearing of the application, Counsel to the parties relied on and adopted their respective processes on the application.
The case of the Appellant on the affidavits in support of the motion was that the Ministerial Paper sought to be adduced as further evidence is in respect of unwholesome allocation of carved out lands by staff of the Kaduna Field Office issued under the hand of the Honorable Minister of the Federal Ministry of Lands, Housing and Urban Development on the 5th of May, 2015, after the lower Court had delivered judgment in this matter. It was his case that the Ministerial Paper covered the findings and
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recommendations of the Ministerial Paper Drafting Committee on the unwholesome allocation of carved out lands by staff of the Kaduna Field Office, including the land in dispute in this matter. It was his case that the recommendation of the Committee for the discipline of Surveyor Mohammed Pate was modified, the Surveyor being queried for carrying out unauthorized and illegal survey of properties and that the said Surveyor testified on behalf of the Respondent in the lower Court as the second plaintiff witness and he admitted under cross examination that the Appellant’s boys’ quarters was carved out of his house. It was his case that the Respondent’s tide was anchored on the carve out which the Ministerial Paper classified as illegal and unauthorized and that the Ministerial Paper was a fresh and credible evidence, not in existence before the judgment of the lower Court and could not have been tendered at the trial and it will have an important impact on the whole case.
In arguing the application, Counsel to the Appellant reproduced the provisions of Order 4 Rule 2 of the Court of Appeal Rules 2011 on adducing further evidence on appeal and stated that the
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requirements of the Rule is that the evidence must be fresh, i.e. occurred after the date of the judgment of the trial Court, have an important effect on the case and must be capable of being believed. Counsel stated that the discretionary power of this Court to admit fresh evidence is exercised in furtherance of justice and that where a piece of evidence was not in existence before or during trial and it is material, it will be admitted by this Court on the application of party. Counsel referred to the case of Congress for Progressive Change Vs Ombugadu (2013) 18 NWLR (Pt 1385) 82 on the factors to be considered in granting an application of this nature and stated that the affidavits in support of the application showed that the document was not in existence before the judgment and could thus not have been produced, even with reasonable diligence, before the lower Court and that it was important, weighty, and material and could have influenced the decision of the lower Court and he urged this Court to admit same and he referred to the case of Nwagu Vs Atuma (2013) 10 NWLR (Pt.1363) 597.
In his response arguments, Counsel to the Respondent stated
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that it was trite that an appellate Court cannot hear evidence on appeal and it is only concerned with complaints against the judgment of the lower Court and a party was obliged to adduced all the evidence he desired to rely on in establishing his claim before the lower Court which has the responsibility of evaluation of evidence and he referred to the case of Akad Industries Ltd Vs Olubode (2004) 4 NWLR (Pt 862) 1. Counsel stated that an appellate Court is only allowed in special and exception circumstances, and in the exercise of its discretionary power, to allow further evidence to be adduced on appeal and it is a discretion that must be exercised judicially and judiciously and the just determination of a decision appealed against should be based upon the facts the case was decided on and the introduction of further evidence may alter the factual basis of the decision appealed against and he referred to the case of Nwanze Vs Idris (1993) 3 NWLR (Pt.279) 1. Counsel referred to the case of Owata Vs Anyigor (1993) 2 NWLR (Pt 380) 393 on the conditions laid down by the Courts for the exercise of the discretionary power to allow further evidence on appeal
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and he stated that the conditions must be conjunctively applied and he referred to the case of Aroh Vs PDP (2013) 13 NWLR (Pt.1371) 235.
Counsel stated that the Appellant failed to comply with the conditions as laid down by the Supreme Court because it was obvious from the document sought to be tendered as further evidence that the document came into existence as a result of petitions written by one Brigadier General B. I. Agbab (Rtd) and one Mr. I. I. Anagbado in respect of carved out lands on No 1, Ethiopia Street, Kaduna and No 17 Degel Road, Kaduna. Counsel stated that nowhere in the entire document were the plots land in dispute in this suit, Nos. 5A and 61, Ethiopia Crescent, Kaduna, mentioned or commented upon and that the further evidence sought to be tendered relates to the properties that are completely different from the land in dispute in this case and that the document could not have influenced the judgment at the lower Court if it had been available and as such the document was not material. Counsel stated further that the document sought to be tendered was a public document and that only a certified true copy of the document was thus
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admissible and the document attached to the affidavits of the Appellant as the proposed further evidence was not a certified true copy and was hence inadmissible and he referred to the cases of Tabik Investment Ltd Vs GTB Plc (2011) All FWLR (Pt 602) 1592 and Nwagu Vs Atuma (2013) All FWLR (Pt 693) 1893.
Counsel concluded his arguments by urging the Court to dismiss the application of the Appellant on the ground that the Appellant did not satisfy the necessary conditions for its grant.
In his reply arguments on points of law, Counsel to the Appellant stated that it was incorrect that the application did not meet the required conditions for its grant and that the legality or otherwise of the alleged carve out upon which the tide of the Respondent to the land in dispute was predicated was an issue contested on the pleadings before the lower Court and that as such the document sought to be admitted has a correlation with the instant appeal and is material. Counsel stated that a read through of the document shows that the contents of the document is not limited to Brigadier General B. I. Agbab (Rtd) and Mt. I. I. Anagbado but all cases of unwholesome
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allocation of carved out lands by staff of the Kaduna field office and he referred to portions of the recommendations in the document and said that the Appellant was one of the complainants of the fraudulent allocation of carved out plot on his property. Counsel stated that the document sought to be admitted demonstrably show that all purported rationalized plots including the alleged carve out and sale and allocation of the Respondent’s alleged plot is illegal, null and void having been done in clear violation of the Federal Government’s Policy.
On the issue of certified true copy of the document, Counsel stated that the requirement was inapplicable as it was a settled principle of law that documents attached to an affidavit are part of the affidavit and must not be objected to. Counsel stated that public documents exhibited as secondary copies in affidavit evidence cannot necessarily be certified true copies as documents exhibited to an affidavit are already exhibits before the Court, being part of the affidavit which a Court is entitled to look at and use; they form part of the evidence adduced by the deponent on oath and are deemed properly before the
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Court to be used once the Court is satisfied and it is credible and the formality of certification for admissibility becomes unnecessary and he referred to the case B. A. T (Nig) Ltd Vs International Tobacco Co Plc (2013) 2 NWLR (Pt 1339) 493. Counsel concluded his arguments by urging this Court to grant the application as prayed.
The request of the Appellant on the application in issue in this ruling is for leave to adduce further evidence before this Court in support of his case on appeal. The law is that a trial Court determines a case on its merits after hearing all the witnesses and considering all the oral and documentary evidence before it. Therefore, as a general rule, a party is bound to elicit and produce all the evidence he intends to rely upon to prove his case before the trial Court and shall not be allowed to re-shape or reconfigure his case at the appellate stage by bringing forth evidence which he did not produce before the trial Court. This is because the duty of an appellate Court is always to determine from the facts contained on the records whether the trial Court came to the right decision on the evidence placed before it by both sides
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and whether it correctly applied the law to the facts before it. Thus, to determine an appeal on the basis of evidence or document which the lower Court had no opportunity of seeing or considering before judgment would amount to a miscarriage of justice to the adverse party – Ombagudu Vs Congress for Progressive Change (2013) 3 NWLR (Pt.1341) 415.
This point was succinctly made by Supreme Court in Okoro Vs Egbuoh (2006) 15 NWLR (Pt 1001) 22 where Tobi, JSC observed thus:
“Application to lead further evidence in an appellate Court is not one of the regular applications in the judicial process. The application is generally out of the normal stream in the judicial process because it is outside the ordinary scheme of things. This is because it is the intention of our adjectival law that parties should lead all the evidence they need or require in the case at the trial Court whose jurisdiction is to hear oral evidence of the parties to ventilate their different pleadings. One of the reasons behind this principle is that it is the trial Court that has the eyes of the eagle to look closely at the demeanour of the witnesses, their habits, mannerisms and
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idiosyncrasies in the witness box. As opposed to this, an appellate Court has no such eyes, by the fact of the appellate arrangement, to see the witnesses facial and body movement in the box. On the contrary, an appellate Court is regimented to the cold record before it and the rules of procedure normally do not allow that Court move out of the record …”
This, however, does not mean that an appellate Court can never receive further evidence on appeal. Order 4 Rule 2 of the Court of Appeal Rules 2011 provides that:
“This 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.”
These provisions, and similar provisions to it, have been subjected to judicial interpretation and the general consensus amongst all the decisions is that
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this Court has a discretionary power to receive further evidence, but that it a power that can be exercised only if certain conditions are fulfilled. In Nwaogu Vs Atuma (2013) 10 NWLR (Pt 1363) 591, the Supreme Court stated that the principles to which an appellate Court must have regard to in the exercise of its discretion to grant leave to adduce further evidence on appeal were:
i. the further evidence sought to be adduced must be such as could not have been obtained at the trial with reasonable diligence;
ii. the further evidence should be as such as, if admitted, it would have an important, though not necessarily a crucial, effect on the case;
iii. the evidence must be such as is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible;
iv. the evidence could have influenced the judgment of the trial Court had it been made available and tendered at the trial Court; and
v. the further evidence to be introduced must be material and weighty, although not necessarily conclusive.
See also the cases of Enekebe Vs Enekebe (1964) NMLR 42, Asaboro Vs Aruwaji (1974) 4 SC 119, Obasi
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Vs Onwuka (1987) 3 NWLR (Pt 61, Uzodinma Vs Izunaso (No 2) (2011) 17 NWLR (Pt 1275) 30. The conditions must be satisfied together and at the same time before an application for leave to adduce further evidence can be granted.
In other words, an appellate Court must be reluctant to admit further evidence except in exceptional circumstances where the matter arises ex-improviso such that no human ingenuity could foresee and it is in the interest of justice to allow such evidence – Owata Vs Anyigor (1993) 2 NWLR (Pt 276) 380, Ombagudu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1341) 415. An appellate Court is obliged not to allow litigants abuse the Court process in that regard as it would be against public policy to allow concluded matters willy-nilly to be re-opened and thus open the floodgates to endless litigations –United Bank for Africa Plc Vs BTL Industries Ltd (2005) 10 NWLR (Pt 933) 356, Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt.1348) 570. In Ehinlanwo Vs Oke (2008) 16 NWLR (Pt 1113) 357, the Supreme Court was of the opinion that when judgment has been given in case, parties with the advantage of what the Court said in the judgment get a new
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awareness of what they might have done better or not done at all and if the door were left open for everyone who has fought and lost a case at the Court of trial to bring new evidence on appeal there will be no end to litigation and all the parties would be worse for it.
The question in this application is whether the Appellant brought his case on the application within the exceptional circumstances in which further evidence is admissible on appeal?
It is trite that the starting point for determining whether a document is admissible as further evidence on appeal is, and must be, the pleadings of the parties and this because both the trial Court and the appellate Court are bound by the pleadings of the parties, and neither the trial Court nor the appellate Courts can allow a party to canvass a case outside that contained on his pleadings – Idahosa Vs Oronsaye (1959) 4 FSC 166, African Continental Seaways Ltd Vs Nigeria Dredging, Road and General Works Ltd, (1977) 5 SC 235, Atanda Vs Ajani (1999) 6 SCNJ (Pt.II) 193 and Tenco Engineering Ltd Vs Savannah Bank of Nigeria Ltd (1995) 5 NWLR (Pt.397) 607.
Reading through the records of appeal, the case
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of the Respondent, as plaintiff on the pleadings before the lower Court was that his predecessor in title, one Lawal Augie, applied for a plot of land at Ethiopia Crescent, Kaduna North, Kaduna under the Sites and Service Program, following the rationalization of Federal Government plots throughout the country, from the Federal Ministry of Works and Housing at the Headquarters in Abuja on the 26th of February, 2003.
It was his case that on the 10th of April, 2003 the Land Use and Allocation Committee of the Ministry made an offer of a ninety nine year lease of Plot 61 Ethiopia Crescent, Kaduna North, Kaduna to Lawal Augie with effect from the 30th of April, 2003 and that Lawal Augie accepted the offer and made payment of the requested consideration to Federal Government Treasury on 17th of June, 2005. It was his case that the plot of land was officially and legally allocated to Lawal Augie by the Federal Ministry of Works and Housing following the re-adjustment exercise carried out by the Federal Government of Nigeria on all its land and properties located across the Federation and that Lawal Augre was subsequently handed the survey plan and sketch of the
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carved out plot of land and was put in possession thereof by the Kaduna Field Office of the Federal Ministry of Works, Housing and Urban Development. It was his case that Lawal Augie sold the plot of land to him by a Deed of Assignment executed between them on the 12th of January 1, 2009 and he went into possession of the land.
The case of the Appellant, as defendant, on the Amended Statement of Defence was that he was the allottee of a plot of land known as No 5b, Ethiopia Crescent, Kaduna North, Kaduna by the Presidential Implementation Committee on the Alienation of Federal Government landed property for purchase and for which he paid the requisite deposit of the purchase price and this plot of land was inclusive of the land in dispute known as Plot 6.1, Ethiopia Crescent, Kaduna North, Kaduna. It was his case that the subsequent carve out of the land in dispute from his plot of land in favour of Lawal Augie was done unofficially and illegally and that Federal Ministry of Works, Housing and Urban Development did not carve out any plot of land from his plot of land and did not hand any plan or sketch in respect of the land in dispute to Lawal
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Augie.
The Respondent testified as the first plaintiff witness and he called a surveyor, Surveyor Mohammed Pate, from the Federal Ministry of Works, Housing and Urban Development in proof of the averments on his pleadings. The Appellant, on the other hand, testified as the only defence witness and did not call any staff of the Federal Ministry of Works, Housing and Urban Development to prove the illegality or non-authorization of a curve out from his plot of land.
The Appellant led no evidence to the effect that he made any protest to contest the plot of land carved out from his allotted plot of land to the Federal Ministry of Works, Housing and Urban Development and/or that the Ministry was investigating the carve out made from his plot of land. It must be noted that these facts did not originally form part of the case of the Appellant on the pleadings, but they were subsequently included in his pleadings by a Further Amended Statement of Defence dated the 28th of January, 2011. The Appellant, however, led no further evidence after his pleadings were amended and the additional facts added to the case of the Respondent must be deemed abandoned –
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Union Bank of Nigeria Ltd Vs Jimba (2001) 12 NWLR 505 and Mirchandani Vs Pinheiro (2001) 3 NWLR (Pt 701) 557.
The document sought to be adduced as further evidence on appeal, and attached to the affidavits in support of the application was the Ministerial White Paper on Unwholesome Allocation of Carved Out Lands By Staff of the Kaduna Field Office of the Federal Ministry of Lands, Housing and Urban Development. It was stated in the document that it was in furtherance of the report of the Investigative Committee set up by the Federal Ministry of Works, Housing and Urban Development to look into and make findings in respect of plots of land carved out of No 1, Ethiopia Crescent, Kaduna belonging to one Brigadier General B. I. Agbab and out of No 17, Degel Road, Kaduna belonging to a Mr. Innocent Anagbado. The recommendations contained in the said White Paper were in respect of these two plots of land. There is nowhere in the document that mention was made of either the plot of land in dispute in the matter or the plot of land allocated to the Appellant and neither was the name of the Appellant or of the Respondent mentioned therein.
The issue before
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the lower Court on the pleadings of the parties was whether or not the carve out of the land in dispute was carried out by the Federal Ministry of Works, Housing and Urban Development, Headquarters, Abuja and nothing was said on the pleadings or led in evidence about an unwholesome allocation of carved out lands by the Kaduna Field Office of the Ministry. There is nothing either in the life portion of the pleadings of the Appellant or in the evidence he led in proof of his case, and in the document in question, connecting the contents of the document to the present case in this appeal. There is nothing on the records of the appeal or in the document itself showing that the document is relevant or material to the instant case. There is nothing showing that the proposed further evidence will assist this Court in resolving the issues in this appeal. For the document to be of use in this appeal, this Court will have to reopen oral evidence in the matter and allow the Appellant lead additional oral evidence on his case and give leave to the Respondent to react thereto. This will amount to starting the trial all over. This is not within the purview of the principles
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governing admissibility of further evidence on appeal. In Okoro Vs Egbuoh supra, the Supreme Court stated that the procedure for admitting further evidence on appeal is not at the disposal of an indolent or non diligent litigant. The procedure cannot be used for the repair of a case at the end of the trial. It is not designed to overreach the other party or spring surprise at the other party when the appeal is heard. A party who has won a case at the trial Court on the case brought to Court by his adversary ought not normally be confronted with a new case on appeal simply because his adversary decided to bring his case in dribbles – Queen Vs Ohaka (1962) All NLR 505 and Adeyefa Vs Bamgboye (2014) LPELR-SC.185/2003.
Additionally, it is pure commonsense that the further evidence sought to be tendered on appeal must be in the form in which such evidence is admissible under the provisions of the Evidence Act. The document sought to be tendered as further evidence in this appeal, , ”The Ministerial White Paper on Unwholesome Allocation of Carved Out Lands By Staff of the Kaduna Field Office of the Federal Ministry of Lands, Housing and Urban Development”,
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clearly forms part of the records of acts of a public officer and thus qualifies as public document. It is elementary that only certified true copies of a public document can be presented for admission into evidence – Onobruchere Vs Esegine (1986) 1 NWLR (Pt 19) 799 and Araka Vs Egbue (2003) FWLR (Pt 175) 507. As rightly pointed out by Counsel to the Respondent, the copies of the document attached to the two affidavits of the Appellant on the application were not certified true copies, but ordinary copies.
Counsel to the Appellant sought to justify this omission on the ground that the document forms part and parcel of the affidavit and thus needs no certification for it to be admissible. Counsel to the Appellant obviously forgot that the essence of this application is to have that document admitted as further evidence in this appeal, not as part of the affidavit, but as a separate stand alone document. For the document to scale through admissibility in that capacity, it must be a certified true copy. The document as presented by the Appellant is not admissible as further evidence.
In conclusion, this Court finds that the application of the Appellant
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did not satisfy some of the necessary conditions governing the admissibility of further evidence on appeal and the document presented for admission as further evidence did not constitute a legally admissible evidence. The application thus fails and it is hereby dismissed. The Respondent is entitled to the cost of the application assessed at N20,000.00. These shall be the orders of this Court.
Other Citations: (2016)LCN/8762(CA)
