T.S.A. Industries Nigeria Limited V. Kema Investments Nigeria Limited (2008)

LawGlobal-Hub Lead Judgment Report

ADAMU JAURO. J.C.A.

On the 27th day of April, 2007, the applicant filed a motion dated 25th April, 2007 before this court praying for the following orders:-

“(1). AN ORDER seeking leave of this Honourable to adduce fresh evidence in this matter.

(2). AN ORDER of this Honourable Court granting leave to the Appellant to adduce additional evidence in this matter.

(3). AN ORDER of this Honourable Court to exercise powers vested on it under Section 15 of the Court of Appeal Act and receive additional evidence on this matter.

(4). AN ORDER admitting in evidence the documents attached to this application and applying same in resolving the issues raised by the Appellant in this Appeal.

AND for such Order or further orders this Honourable Court may deem fit to make in the circumstances.”

The grounds upon which the application is anchored as stated on the face of the motion papers are as follows:-

“(a). The Defendant/Respondent has consistently claimed that it had changed it’s address from 11, Abagbon Close, Victoria Island, Lagos since February, 1998 but in 2006 it entered appearance in a suit where it was served the Writ of Summons on the same address.

(b). this piece of evidence was not available to the Plaintiff/Appellant as at the time the Ruling was delivered by the lower court.

(c). the said piece of evidence will help the court to resolve the issue of service of court processes on the Defendant/Respondent beyond any shadow of doubt.”

The application is supported by a 6 paragraphs affidavit with two annexutres marked exhibits TSA 1 and TSA 2 respectively. The two annextures are the additional evidence sought to be adduced on appeal, namely a certified true copy of a writ of summons dated 20th June, 2006 in Suit No. LD/982/2006 before the Lagos State High Court as exhibit TSA1 and the 2nd defendant/applicant reply brief in the same suit dated 17th January 2007 as exhibit TSA 2. In further support of the application is a further affidavit of 11 paragraphs filed on 1st June, 2007 in reply to the counter affidavit in opposition to the motion on notice.

In reaction to the application, the respondent filed a 56 paragraphed counter affidavit in opposition to the said application, with three annextures marked exhibits KO1, HB1 and HB2 respectively. Exhibit KO1 is an affidavit dated 26th June 2006, deposed to by Kenneth U. Obike in support of an application in Suit No. LD/982/06 before the Lagos State High Court. Exhibit HB1 is a letter dated 19th June, 2006 addressed to the applicant and respondent in this application and Bull Pack Services Limited, from the Commissioner of Police Lagos State. The last exhibit HB 2 is a public notice of caveat emptor in respect of property at No. 78 Acme road, Ogba Industrial Estate, Lagos, issued by the chambers of Chief Ladi Rotimi Williams SAN and published on page 41 of the Punch Newspaper of 22nd May, 2007.

On realising the contentious nature of the application, this court on 1st June 2007 ordered both parties to file in written addresses. Consequent upon the order of court, written addresses were filed and exchanged. On the date fixed for hearing the application, Mr. Ahigbe for the applicant stated that the application was brought pursuant to Order 4 rule 2 of the Court of Appeal Rules 2007. Learned counsel thereafter identified his written address which was dated 11th June, 2007 and filed on 14th June 2007 and his reply address on points of law dated and filed on 6th July, 2007. Learned counsel adopted the written address and the reply on points of law, placed reliance on both the affidavit and the further affidavit and urged this court to grant the application. On his part, learned counsel for the respondent Mr. Abina stated that in opposition to the application, he has filed a counter affidavit on 30th May, 2007 and a written address dated and filed on 28th June, 2007. Learned counsel adopted the written address, placed reliance on the counter affidavit and urged this court to dismiss the application.

The basis for which this application is made are contained in the paragraphs 4 and 5 of the applicant’s affidavit. The said paragraphs are hereby reproduced thus:-

“4. That I was informed by G.I.J. Akhigbe, Counsel in chambers in charge of this Matter and I verily believe him as follows:-

(i) That the Defendant/Respondent was served with the Writ of Summons, Statement of Claim and Motion for Judgment at it’s Head Office at No. 11, Abagbon Close, Victoria Island, Lagos.

(ii) That the Defendant/Respondent persistently and consistently denied being served with the above mentioned processes on the basis of which the lower court set aside the judgment.

(iii) That the Defendant/Respondent hinged its case of non-service on the ground that it had changed it’s address from No. 11, Abagbon Close to 219B, Jubril Martins Street, Victoria Island, Lagos since February, 1998. Even though the Defendant in affidavit evidence also claimed Plot 291B, Muri Okunola Street as its address.

(iv) That the Defendant/Respondent consistently canvassed the case of change of address at the lower court and maintained same on its brief of Argument before this Honourable Court.

(v) That sometime in 2006 the Defendant/Respondent was sued along with the Plaintiff/Appellant as co-Defendants in Suit No. LD/982/2006.

(vi) That the Defendant/Respondent was served with the Writ of Summons and all the court processes, in the Suit referred to in paragraph 7, at its Head Office at No. 11, Abagbon Close, Victoria Island, Lagos, attached herewith is the Writ of Summons marked as Exhibit TSA/1.

(vii) That the Defendant/Respondent defended the said suit, which fact clearly indicates that it’s claim of change of address had been false all along. Attached herewith is a copy of a Written Address filed by the Defendant/Respondent in the said Suit marked as Exhibit TSA/2.

5. That I was further informed by Chief G.I.J. Akhigbe, Counsel to the Plaintiff/Appellant and J verily believe him as follows:-

(a) That this piece of evidence will help the court to resolve the issue of service on the Defendant/Respondent conclusively.

(b) That this application is necessary to bring the said piece of evidence properly before this Honourable Court.

(c) That it will be in the interest of justice to grant this application.

(d) That the Defendant/Respondent will not be prejudiced by the grant of this application.”

Learned counsel for the applicant contended that by virtue of Section 15 of the Court of Appeal Act 2004 and Order 4 Rule 2 of the Court of Appeal Rules 2007, this court has the power to grant leave to adduce additional evidence. Learned counsel in relying on the case of Akad Industries Ltd V Olubode (2001) FWLR (Pt. 57) 1004, stated that the principles to be considered in receiving fresh evidence 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 are matters which have occurred after the judgment

(b) In respect of other evidence other than in (a) above, as for instance in respect of an appeal from a judgment after evidence, only on special grounds as provided for in Order I rules 20(3) now Order 4 rule 2 of the Court of Appeal Rules.

(c) The evidence to be adduced should be such as if admitted, it would have an important, not necessarily crucial effect on the case.

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

On whether the applicants have satisfied the conditions above, learned counsel referred to paragraph 4(v) of the affidavit and submitted that exhibit TSA 1 and TSA 2 came into existence in 2006, pursuant to institution of suit No. LD/982/2006 at the Lagos State High Court. Consequently, learned counsel argued that the two documents were not in existence when judgment was delivered in the suit on 8th October, 1999 or when the ruling setting aside the judgment was delivered on 18th May 2001. Learned counsel further contends that the admission of the fresh evidence exhibit TSA1, which is the writ of summons served on the respondent at 11 Abagbon Close, Victoria Island and not else where and has remained unchanged. Learned counsel argued that the respondent has not complained about non service of exhibit TSA1 or service at the wrong address but rather participated in the proceedings in court by filing exhibit TSA 2. In concluding learned counsel contends that the facts contained in the counter affidavit are irrelevant to this application and have been countered by a further affidavit, hence counsel urged the court to grant the application in the interest of justice and in resolving the issue of address of the respondent.

In his address, learned counsel for the respondent identified two issues to be considered in this application, namely:

(1) On the affidavit evidence was there any need to serve the Writ of Summons sought to be introduced and was same ever served? and

(2) Is the document sought to be introduced as fresh evidence pertinent to the appeal herein or can change some fundamental assumptions in this appeal.

In his argument, learned counsel contends that the applicants misunderstood the facts in Akad Industries Ltd V Olugbode (supra) cited in their address. Learned counsel submitted that there is a fine line of distinction between introducing on appeal, evidence obtained after the trial of an action and introducing on appeal fresh evidence, a document which came into existence after the date of trial and judgment in the lower court. Learned counsel contends that the case of Akad Industries Ltd V Olugbode (supra) relates to the former, while in the letter situation on the authority of Okpanum V SGE (Nig) Ltd (1998) 7 NWLR (Pt. 559) 537, special circumstances must be established before such an evidence could be admitted. In citing an example of such a special circumstances, learned counsel referred to the case of Attorney General V Birmingham, Tame and Rea Drainage Board (1912) AC 788. Learned counsel further contends that the evidence sought to be adduced, exhibit TSA1 has not been shown by affidavit evidence that it was ever served on the respondents at No. 11 Abagbon Close Victoria Island, Lagos. On this submission, the following paragraphs of the counter affidavit are relevant, namely paragraphs 4-12, 17, 25, 26 and 37 and are hereby reproduced thus;

“4. Paragraph 4 of the said affidavit is not true.

5. The said Writ of Summons in Suit No. ID/982/06 sought to be introduced by the Appellant as fresh evidence in this appeal was not served on the Respondent and does not need to be served as the case ended on Ex-parte Application for Injunction and an Ex-parte Motion for Interim Suspension of same.
6. No Memorandum of Appearance was filed by the Respondent in the said suit and even the Appellant, as 1st Defendant in the said suit were not served and they did not enter any appearance.
7. Before the said Order of Injunction was drawn up or served, I got to know about the suit and immediately applied to search the file at the High Court Ikeja; Lagos as same was obtained by fraud.
8. After searching the file, I filed two applications dated the 26th day of June 2006. This was less than three days after the injunction was granted.
9. The Court took argument on the said Motion on Notice and discharged the Order of interim Injunction.
10. There was no need to serve the Writ of Summons and same was never served since the suit did not proceed beyond the grant of the Exparte Order of Injunction and the Motion to discharge same.
11. No attempt was ever made to serve the writ at No. 11, Abagbon Close, Victoria Island and none was served as the suit has been amicably settled. The wrong address was given to them by the Appellant herein purposely to create confusion.
12. In paragraph 2.21 of the said Written Address, I argued before the Lower Court as follows:

“2.21 The only condition under which such an order can be renewed is if the court is satisfied that the Motion on Notice has been served. Also the application should be made before the abatement. As shown in the Reply to the Counter Affidavit, the Motion on Notion and even all the originating process filed in the suit herein are yet to be served on the 2nd Defendant.”

The learned counsel further argued that for fresh evidence to be adduced, applicants must establish that the evidence is highly fundamental and germane to their appeal. In the instant application, counsel contends that there is nothing to prove service of exhibit TSA1 on the respondents. Learned counsel further argued that applicants ought to have obtained a certified true copy of the affidavit of service for exhibit TSA1 i.e. the writ and the memorandum of appearance in order to disprove the counter affidavit. Consequently counsel contended that the fresh evidence sought to be introduced is irrelevant to this appeal as it has not been shown that the purported fresh evidence will alter any basic assumption in this appeal, which is whether the address of the respondent herein in 1997 or 1998 was No. 11 Abagbon Close Victoria Island Lagos. In concluding learned counsel urged the court to dismiss the application.

In a short reply on points of law, learned counsel for the applicants contended that the case of Okpanum V SGE (Nig) Ltd (supra) cited by the respondents, made no distinction between fresh evidence available at trial and evidence which came into existence after the case. Learned counsel re-stated the conditions for the grant of the instant application and submitted that where the interest of justice demands, the court will admit fresh evidence considering the special circumstances of each case. In concluding, learned counsel urged the court to grant the prayers and admit the fresh evidence.

The facts necessitating this application as can be gleaned from the affidavit of the parties can be summarized as follows. The application herein is hinged on an appeal against a ruling of the Lagos State High Court dated 18th May, 2001 in suit number ID/1816/97 setting aside the judgment earlier given on 8th October, 1999 in favour of the applicants on ground of non service of originating processes. The contention of the respondents in the court below was that they were no longer in occupation of the premises where the processes were said to have been served. Hence they contended that they were not served, which resulted in the setting aside of the earlier judgment. The additional evidence now sought to be adduced is a writ of summons in suit No. LD/982/2006 before the Lagos State High Court and a written address made by the respondent in the same suit. The import of adducing the evidence according to the applicants is to show that the respondents were up to the year 2006 in occupation of the premises they claimed to have vacated, as the writ of summons had that address against the name of the respondent.

This application as submitted by both parties, calls for the exercise of the discretion of this court for leave to adduce fresh evidence. The applicants contended that by virtue of Section 15 of the Court of Appeal Act 2004 and Order 4 Rule 2 of the Court of Appeal Rules 2007, this court has the power to grant such an application. In further reliance on the cases of Akad Industries Ltd V Olubode (supra) and Iweka v SCOA (supra) where the requirements for the grant of such applications were spelt out, applicants submitted they have satisfied the said requirements. Replying on the case of Okpanum V. SGE (Nig) Ltd (supra), the respondent contends that the fresh evidence sought to be introduced is irrelevant to this appeal. It was further contended by the respondent, that it has not been shown that the purported fresh evidence will alter any basic assumption in this appeal, which is whether the address of the respondent herein in 1997 and 1998 was No. 11 Abagbon Close, Victoria Island Lagos. On this score and other arguments in the address, the respondent contends the application should be dismissed.

By virtue of Section 15 of the Court of Appeal Act 2004 and Order 4 Rule 2 of the Court of Appeals Rules 2007, this court has the power to receive further evidence. However to justify the reception of fresh evidence after a trial on the merit, there must be special grounds. This is so, because it involves the exercise of discretion which is exercised discretely with regard to the need to bring litigation to an end. Therefore the discretion to grant leave to rely on further evidence is sparingly exercised. See UBA PLC v BTL IND. LTD (2005) 10 NWLR (Pt. 933) 356 at 370.In any application of this nature, for an applicant to succeed, he must place adequate materials constituting special grounds before the court to warrant the exercise of the discretion in his favour. The circumstances constituting special grounds have been illustrated in a plethora of cases. See Comfort Asaboro V M.G.D. Aruwaji & Anor (1974) 4 SC 119, Okoro V Egbuoh (2006) 15 NWLR (Pt. 1001) 1 at 17-19, Esangbedo V State (1989) 4 NWLR (Pt. 571) at 66 to 67, Akanbi J Alao (1989) 3 NWLR (Pt. 108) 118, and F.B.N. Plc V Jibo (2006) 9 NWLR (Pt. 985) 255. The special grounds as laid down by the cases are thus:-

(i) It must be shown that the evidence could not have been obtained with reasonable diligence for use at trial. See Federal Board of Inland Revenue V Joseph Rezeallah & Sons (1962) 1 All NLR 1.

(ii) The evidence must be such that, if given, it would have an important influence on the result of the case, although it need not to be decisive. See Kraus V Bright Ordami (1963) 1 SCNLR 45.

(iii) The evidence must be such as is presumably to be believed, or in other words it must be apparently credible, although it need not to be incontrovertible.

All the above three conditions must co-exist.

The basic question now to be answered is, has the applicant satisfied the above listed conditions to warrant invoking the discretion of this court in his favour? As to the 1st requirement above, it is clearly not in dispute that exhibits TSA1 and TSA2, came into existence in June 2006, pursuant to the institution of suit No. LD/982/2006 before the Lagos High Court by Bulk Pack Services Ltd. The action giving rise to this appeal was determined in 2001. It therefore goes without saying that the said evidence would not have been obtained for use during the trial, since it was then not in existence. Consequently the first requirement as shown above has been satisfied.

The next issue to be considered is the effect of the evidence to be adduced on the case, that is to say would it have important influence on the case? The judgment delivered in 1999 was set aside in 2001 on grounds of non service on the respondent, because respondent contended having left the premises (11 Abagbon Close Victoria Island Lagos) where service was said to have been affected. The evidence sought to be adduced exhibit TSA 1, has 11 Abagbon Close as the address of the respondent and the said exhibit was issued in 2006. Once it is established that exhibit TSA 1, was served on the respondent, then the said evidence will have crucial effect on the case, as it will establish that the respondent was in occupation of the said premises up to, at least 2006. The only snag here is as to the issue of service of exhibit TSA 1 on the respondent in 2006.

The obvious question that readily comes to mind flowing from the last paragraph is, was exhibit TSA1 served on the respondent in 2006 or conversely put what is the evidence of service on the respondent of exhibit TSA1. The logic and the sequence being retained here is once exhibit TSA1 has not been served, and then the address ascribed to the respondent on it cannot establish anything. The only evidence supporting the service of exhibit TSA1 on the respondent is paragraph 4 (vi) and (vii) of the affidavit and the cumulative effect of paragraph 4 of the further affidavit. Paragraphs 4, 5, 6, 25, 26, 27 and 37 of the counter affidavit vehemently denied that exhibit TSA1 was served on the respondent. Paragraphs 10 to 12 of the counter affidavit made further explanations as to how exhibit TSA2 was filed. The issue of service of exhibit TSAI still appears unsettled. Ideally a certified true copy of affidavit of service or memorandum of appearance if any filed by respondent in the suit, would have helped more in linking the address on exhibit TSA 1 to the respondent. As it is now, there appears to be nothing to establish that exhibit TSA 1 was served on the respondent. The evidence sought to be adduced will not have any crucial effect on the case, particularly as there is no evidence or proof of service of the said writ at the stated address. The failure to prove service has completely wittle down any effect exhibits TSA1 and TSA2 might have on the case and knocked out the bottom of this application.

Consequent upon the foregoing, the second requirement has not been satisfied.

Having failed to satisfy the second requirement, it will be a wasteful exercise to consider the third requirement, because the three must con-exist. Consequent upon the foregoing, the applicant has not established special grounds to warrant invoking the discretion of this court in his favour. The application is lacking in merit and is hereby dismissed.

A cost of N10, 000.00 is hereby awarded in favour of the respondent against the applicant.

---

Other Citations: (2008)LCN/2915(CA)