Ukariwo Obasi & Anor. V. Eke Onwuka & Ors. (1987)

OPUTA, J.S.C.

This has been a long tedious and protracted case with some rather unfortunate vicissitudes like deaths of Mr. Adighije and Mr. Abua who appeared at one time or the other as counsel in the case. It had its sunny and happier side too.

Mr. F.I. Ukattah who settled the pleading has since been elevated to Higher Bench as a High Court Judge in the Imo State Judiciary in 1976 and Mr. Chike Ofodile who appeared at the Appeal Court stage became Attorney-General for the Federation in 1984. These vagaries of fortune contributed in no small measure to the delay in disposing of this case which started by a Writ of Summons issued at Umuahia on the 16th day of August, 1974 thirteen years ago.

In Suit No. HU/49/74 the present Appellants as Plaintiffs sued the present Respondents as Defendants claiming:

“1. Declaration of title to the lots, pieces or parcels of lands known as and called “Abamkpughuru”, “Agboizu”, “Edo”, “Ogboakwu” and “Okaiafo” situate and being at Uzo Ndi Okoronta, Amaeke Ahiriba within the jurisdiction of this Court Annual rental value being N10.00.

2. N800.00 being general damages for trespass to the said lands.
3. Injunction permanently restraining the defendants, their servants, agents and/or workmen from further entry upon or interference with the said lands.”

Pleadings and plans were ordered, filed and duly exchanged and delivered.

From those pleadings it is apparent that the parties based their roots of title mainly on the traditional stories handed down by word of mouth from generation to generation by their ancestors and predecessors in title. As I have always observed, traditional evidence is nothing but hear-say evidence removed from the hear-say rule and elevated to the status of admissible evidence by the statutory provisions of Section 44 of the Evidence Law Cap.49 of the Laws of Eastern Nigeria applicable to this case.

In considering such evidence a trial Court should always remember that there is inevitably bound to be conflicts in the traditional stories of the parties. This does not mean that either side is lying. They may both be honest and truthful yet genuinely mistaken. That is why it is necessary to test each side’s traditional history by reference to facts and acts done in recent years as established by the evidence led, in order to see which side ought to be preferred on the basis of probability. See Twimahene Kojo II v. Opanin Bonsie (1957) 1 W.L.R. 1223; (1958) W.A.L.R. 257; Olisa Chukura’s Privy Council Judgments 668. In other words, though proof of title by traditional evidence may have its roots in ancient history, it must have its stem and branches in modern history to be conclusive. This is one reason why Webber, J. delivering the opinion of the Full Court in Ekpo v. Ita XI N.L.R. at p.68 observed:-

“If then the traditional history is not accepted as proved what are the facts in support of the plaintiff’s claim to a declaration … There is no evidence of occupation by the plaintiff’s people … In a claim for a decree of declaration of title, the onus is on the plaintiff to prove acts of ownership …. numerous and positive enough to warrant the inference that the plaintiffs were exclusive owners – if the evidence of tradition is inconclusive the case must rest on question of fact.”

In this case the learned trial Judge Ononuju, J. disbelieved the P.W.l, P.W.2 and P.W.3 and held that the Plaintiffs failed to establish their claim by traditional evidence. He then applied the principle in Ekpo v. Ita supra and held at p. 91:-

“The plaintiffs in this case have not been able to prove acts of ownership of the land in dispute over a sufficient length of time numerous and positive enough to lead to the conclusion that they are entitled to the declaration sought.”

The Plaintiffs’ case was therefore dismissed in its entirety by the trial Court.

The Plaintiffs having lost in the Court of first instance appealed to the Court of Appeal Enugu Division on the omnibus ground on the facts and on 3 grounds of Error in Law. In the Court of Appeal also, the Plaintiffs brought a motion to adduce or to use their ipssissima verba “to receive further evidence in respect of the above-mentioned matter.” By a majority decision of 2 to 1, the Court of Appeal allowed the “further evidence.” This was an alleged” Arbitration Proceeding” tendered as EX. FCA1. After considering the arguments of counsel and EX.FCA 1, the Court below unanimously dismissed the Plaintiffs’ appeal as lacking in merit and in substance. This means that the Plaintiffs have lost in the two Courts below.

Still aggrieved and dissatisfied the Plaintiffs have now appealed to the country’s Court of last resort – the Supreme Court of Nigeria. Two grounds of appeal were filed by the Plaintiffs. These are copied at pages 235-236 of the record. During his oral argument in this Court, learned counsel for the Plaintiffs/Appellants, Mr. G.A. Graham Douglas, confined himself only to ground one. He did not argue Ground 2 at p.236 at all. He is therefore deemed to have abandoned that ground, see Shell B.P. v. Abadi (1974) 1 All N.L.R. Part 1 p.1 at p.16.

Now Ground 1 of the Plaintiffs/Appellants’ Grounds of Appeal complains:-

“(a) Error in Law

The learned Justices of the Court of Appeal erred in law after admitting the document headed “Peaceful Arbitration On Farm Dispute” as Exhibit FCA1 proceeded to consider and evaluate its contents thereof without sending the case back to the lower Court, an exercise that has occasioned a miscarriage of justice.

Particulars of Error

(i) The appraisal of evidence is that of the trial Court not the Court of Appeal and consideration of Exhibit FCA1 or its contents is that of the lower Court.

(ii) Exhibit FCA1 is a document that embodied the arbitration proceedings and was pleaded in paragraph 15 of the Statement of claim.

(iii) Exhibit FCA1 though pleaded and admitted by the Respondents, evidence was not available at the trial.

(iv) Proceedings embodied in Exhibit FCA1 is not a document tainted with illegality in view of Criminal Code Constitution of the Federal Republic of Nigeria, an existing law.

(v) Alleged criminality of Exhibit FCA1 relied upon heavily by the Court obviated consideration of issues raised by Appellant in Court below.”

Particulars (iv) and (v) above are to me unintelligible. Ground 1 above is the only ground argued before this Court. The submission of Mr. Graham-Douglas was as follows:-

“Having admitted the document (EX.FCA1) and seeing that it is a document to be admitted, the Court of Appeal should have allowed the appeal and remitted the case to the Court of first instance, the trial Court – to Ononuju, J. – to consider the additional evidence.”

The above appears to me to be a very novel submission to make. May be because of its novelty learned counsel was unable to cite one solitary authority in support either in his Brief or during his oral argument.

The guiding principle here is that to avoid surprise to the opposite party the Plaintiff should plead all the facts and all the documents he intends to rely on, at the trial of the case. During that trial he should establish by evidence oral or documentary, those facts on which his case rests and depends. The trial Court usually comes to a decision on the totality of the evidence led on both sides. The purpose of an appeal is to find out whether on that evidence and the applicable law the trial Court came to right decision. It will normally be wrong to “judge” the trial judge on the basis of evidence which was not before him and which he could not have therefore considered. This looks like the brutal absurdity of commanding a man today, to do something yesterday. To talk therefore of assessing the rightness or wrongness of the trial Court’s verdict today by evidence that will be given tomorrow is to talk in blank prose.

This is one reason why appellate Courts are very reluctant to admit “‘fresh evidence”, “new evidence” or “additional evidence” on appeal except in circumstances where the matter arose ex improviso which no human ingenuity could foresee and it is in the interest of justice that evidence of that fact be led:- R v. Dora Harris (1927) 28 Cox 432. But by and large, at least in criminal cases, (and the principle should also be the same in civil cases) the Courts lean against hearing fresh evidence on appeal, see R v. Alexander Campbell Mason (1923) 17 CR.App.R.160: see also R v. Walter Graham Rowland (1947) 32 CR.App.R.29.

In civil cases the Court will permit fresh evidence in furtherance of justice under the following circumstances:-

(i) Where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial.

(ii) Where the fresh evidence is such that if admitted would have an important, but not necessarily crucial, effect on the whole case.

(iii) Where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed. It need not necessarily be incontrovertible.

In Attorney-General of the Federation v. Mallam odu Alkali (1972) 12 S.C. this Court (Per Elias. C.J.N) refused an application for leave for the appellant/ applicant to adduce further or additional evidence on appeal because it was contrary to Order 7 Rule 24 of the Federal Supreme Court Rules 1961. The reason given there for the non-production of the Hire Purchase Agreement sought to he tendered on appeal was the appellants’ witnesses’ inadvertance or gross-negligence. The conditions for admitting fresh evidence on appeal are so stringent that there are very very few cases, if any, in our Courts where such evidence was admitted (but see the following English cases Ladd v. Marshall (1954) 1 W.L.R. 1489 at p.1491: Skone v. Skone (1971) 1 W.L. R.812: (1971) 2 All E.R. 582 where the proposed further evidence satisfied the conditions precedent).

In a civil case on appeal Order 1 Rule 20(3) of the Court of Appeal Rules, 1981 empowers the Court of Appeal and stipulates:-

“20)-(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 merit, no such evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall he admitted except on special grounds”

(italics mine)

From the above and from the averment in the Particulars of Error in Ground 1 especially in particulars (11) and (111) which allege that the “Peace Arbitration on Farm Land” was pleaded in paragraph 15 of the Statement of Claim, it is very doubtful that the Court below acted in accordance with its own Order 1 Rule 20(3) of the Court of Appeal Rules when it admitted as EX. FCA 1 a document alleged to have been pleaded but not tendered at the trial stage, a document which did not come into existence “after the date of the hearing or trial.” There is however no appeal against the admission of EX.FCA 1 and it will be better therefore to let that sleeping dog lie.

The Appellants’ only complaint is that having admitted EX. FCA 1, the Court below would have automatically allowed the appeal and would have then remitted the case to the Court of first instance to evaluate the impact of EX. FCA 1 on its findings and conclusion. This is a rather bizarre submission to make. No Appeal Court allows an appeal merely because fresh evidence or a new exhibit is tendered. No. It is incumbent on the appellate Court first and foremost to consider the weight of that new evidence and then its impact on the case as a whole. In the case of James Clinton Jordan (1956) 40 C.R. App.R.152 convicted of murder by the trial Court, the Court of Criminal Appeal received fresh medical evidence as to the cause of death. The way the English Court of Criminal Appeal treated Jordan’s case supra seems to answer all the questions calling for answers in this appeal and these are:-

1. The Court emphasised the fact that such reception of fresh evidence was to be regarded as wholly exceptional.
2. The Court considered the fresh evidence tendered and held that “they were tenable opinions” (as the prosecution admitted).
3. Death resulting from any normal treatment employed to deal with a felonious injury may be regarded as caused by the injury.
4. The same principle does not apply where the treatment applied was abnormal.
5. In such a case it will be quite plausible to hold that death was caused not by the injury but by the abnormal treatment.
6. In such a case also as an appellate Court its function was not to decide whether the opinions in the fresh evidence was correct but whether being tenable opinions they would have been likely to have affected, in favour of the Appellant, the verdict of the jury.
7. If the answer is yes the appellant wins; if the answer is – “No one can say” the appellant still wins. But if the answer is definitely “No” then the appeal ought to be dismissed.

In Jordan’s case above the Court of Criminal Appeal ended up at p.158 thus:-

“We feel no uncertainty at all that, whatever direction had been given to the jury and however correct it had been, the jury would have felt precluded from saying that they were satisfied that death was caused by the stab wound” (rather than the abnormal treatment).

I think the principles of Jordan’s case supra outlined above will apply with equal force to fresh evidence introduced on appeal in civil cases. This happened in Skone v. Skone supra.

In this case, now on appeal, Belgore, J.C.A. (as he then was) in his lead judgment described EX.FCA 1 as “a document tainted with criminality” and which “was subject of successful criminal prosecution of the authors and their accomplices” and ended by affirming that ‘”certainly no Court will make use of illegality which the so-called arbitration is … “Olatawura, J.C.A. in his concurring judgment held that the parties did not voluntarily submit the dispute in EX.FCA1 to arbitration with the result that “the result of such an arbitration cannot bind that party” who was forced into the arbitration.

He relied on Onwusike v. Onwusike 6 E.N.L. R. 10. Now if the parties to EX. FCA 1 are not bound by what it (EX. FCA 1) decided then EX.FCA 1 will have no value either as evidence or as estoppel per rem judicatam. The Court of Appeal is not under any legal duty or obligation to consider a document (EX. FCA 1) which is at best “worthless” and at worst “tainted with criminality.” If the Court of Appeal could not itself consider EX. FCA 1 for the reasons given, what will that Court hope to achieve by sending the “worthless” and “criminally tainted” EX.FCA 1 to the trial Court The law like equity does not act in vain.

As Ground 1 above clearly indicated and suggested the purpose of sending EX. FCA1 back to the trial Court is for “the appraisal of that evidence”, for that Court “to consider and evaluate its contents.” Normally it is the Court that receives evidence that has the burden of assessing the evidence it received. It will be strange for one Court to receive evidence and then send the evidence to another Court for appraisal or/and assessment and evaluation. If the evidence before the Court of Appeal were oral testimony of witnesses who were examined, cross-examined and re-examined in the Court of Appeal as was the case in R v. Jordan supra how would or even how could another Court assess the demeanour and the credibility of those witnesses in order to evaluate their fresh and additional evidence It has to be put as bluntly as this to reveal the impracticability of the only issue for determination in this appeal. The point is that even if EX. FCA 1 was not “tainted with criminality” and was not “worthless” it will still be for the Court that received the evidence to assess and evaluate the evidence it received. It is true that normally the appraisal, the assessment, the evaluation of evidence is within the exclusive preserve of the trial Court but that is so because it is the trial Court that receives and admits evidence in proceedings before it.

In the final result and for all the reasons given above this appeal fails being entirely unmeritorious. It ought to be dismissed and it is hereby dismissed. The judgments of the two Courts below are affirmed. There will be costs to the Defendants/Respondents which I assess at N300.00.

OBASEKI, J.S.C.: The short point in this appeal is whether the Court of Appeal, having admitted on the application of the appellants, further evidence the Court of Appeal should have allowed the appeal and remits the case to the High Court for re-appraisal and re-assessment of the evidence led before it along with the further evidence for purpose of judgment. The appellants were the plaintiffs and the respondents the defendants in the High Court to a claim for:

“1. Declaration of title to the lots, pieces or parcels of lands known as and called “Abamkpughuru”, “Agboizu”, “Edo”, “Oghoakwu” and “Okaiafo” situate and being at Uzu Ndi Okoronta. Amaeke Abiriba within the jurisdiction of this court – annual rental value being N10.00.

2. N800.00 being general damages for trespass to the said lands;
3. Injunction permanently restraining the defendants, their servants, agents and/or workmen from further entry upon or interference with the said lands.”

These claims were not proved at the trial and the learned trial judge dismissed them with costs. The plaintiffs appealed to the Court of Appeal and lost. In the course of the hearing at the Court of Appeal, further evidence, Arbitration Proceedings, Exhibit “FCA 1” was admitted. However, during the consideration of the judgment, it was rejected as evidence wrongly admitted and tainted with illegality.

Dissatisfied with the judgment of the Court of Appeal, the plaintiffs further appealed to this Court. The arguments of the appellants’ counsel centres around the short point already referred to in the opening paragraph of this judgment. This issue and the others raised in the appeal have been dealt with in detail in the judgment just delivered by my learned brother Oputa, JSC, the draft of which I had the privilege of reading in advance. I agree with the opinions expressed therein on all the issues raised in this appeal and I adopt them as my own.

Ground 1 of the grounds of appeal without the particulars which raised the only issue dealt with at the oral hearing reads:

“The learned justices of the Court of Appeal erred in law after admitting the document headed “Peaceful Arbitration on Farm Dispute” as Exhibit FCA 1 proceeded to consider and evaluate its contents thereof without sending the case back to the lower court, an exercise that has occasioned a miscarriage of justice’” (Italics mine)

Five Particulars of Errors were given but only the first two are material and they read:

(i) The appraisal of evidence is that of the trial court not the Court of Appeal and consideration of Exhibit FCA 1 or its contents is that of the lower court.

(ii) Exhibit FCA 1 is a document that embodied the arbitration proceedings and was pleaded in paragraph 15 of the statement of claim.

Particular (iii) in support of the ground is not particulars of error but an admission that though pleaded and admitted by the respondents, the evidence was not produced at the trial. The Court of Appeal is a creature of statute and derives all its powers from statute. For our present purpose, it was first established by Decree No.42 of 1976 – Constitution (Amendment) Act 1976.

The Court of Appeal derived its powers from the Constitution (Amendment) Act 1976, the Court of Appeal Act of 1976 and the Constitution of the Federal Republic of Nigeria 1963. When the 1979 Constitution of the Federal Republic of Nigeria came into force, it recreated the Court of Appeal. In exercise of the powers vested in the President of the Court of Appeal by section 227 of the 1979 Constitution, the Court of Appeal Rules 1981 as amended, were made by the President of the Court. Therefore, the Court of Appeal derives all its powers and jurisdiction from these enactments.

The Court of Appeal is wholly an appellate court and as an appellate court. appeals are argued before it on the record of proceedings forwarded to it by the High Court or court below. However, Order 1 Rule 20(3) of the Court of Appeal Rules 1981 gives it power to hear and admit further evidence during the hearing of the appeal in exceptional cases on special grounds. The Rule reads

(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 trial or hearing – shall be admitted except on special grounds.”

Sub Rule 4 of Rule 20 of Order 1 proceeded to state that:

(4) The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made, and to make such further or other order as the case may require including any order as to costs.”

This Rule therefore knocks the bottom off the ground of appeal canvassed before this Court as it gives the Court the power to draw inferences of fact and to give any judgment which ought to have been given.

The submission of learned counsel for the appellants that in this present case on appeal, the appraisal and consideration of the evidence before the Court of Appeal including Exhibit FCA 1 or its contents is that of the lower court is, in my view, grossly erroneous.

Furthermore, section 16 of the Court of Appeal Act 1976 gives the court

“full jurisdiction over the whole proceedings as if the proceedings had been instituted before it as a court of first instance.”

It also gives the court power to

“re-hear the case in whole or in part.”

Having heard further evidence, the court has jurisdiction to appraise, assess and evaluate the evidence for purpose of judgment. Learned counsel was therefore in error in his submission that the Court of Appeal has no power to assess and evaluate the evidence Exhibit FCA 1 for purpose of judgment in the case.

The Court of Appeal is in as good a position to assess Exhibit FCA 1 admitted by it as the lower court, the High Court, if it had been admitted before the High Court.

It is not the law that when a court of appeal admits or hears further evidence oral or documentary, it has to allow the appeal automatically and remit the case to the lower court for rehearing or re-assessment of the whole evidence. This needs no citation of judicial authority. The statutory provision clearly provides the contrary of what is submitted by appellants’ counsel.

It may be observed that Order 1 Rule 20(3) of the Court of Appeal Rules 1981 is in pari materia with Order 59 Rule 10(2) of the 1965 Rules of the Supreme Court in England. Further evidence is admissible on appeal where such evidence (a) could not have been obtained at the trial with reasonable diligence Skone v. Skone (1971) 2 All ER 582 (H.C) would or might if believed, have a very important effect on the mind of the tribunal and (c) is of a sort which is not improbable [Roe v. Robert McGregor & Sons (1968) 1 WLR. 925] –

The Court of Appeal having assessed Exhibit FCA 1 and found it worthless and even illegal and void was entitled to reject it.

I too find no merit in this appeal and for the above reasons and the reasons lucidly set out in the judgment of my learned brother, Oputa, JSC I hereby dismiss the appeal with N300.00 costs to the respondents.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by-my learned brother, OPUTA, J.S.C and I entirely agree with his reasoning and conclusions.

This is a matter in which there are concurrent findings of fact in the High Court and the Court of Appeal. Ononuju, J. in the High Court thoroughly discredited the case of the appellants/plaintiffs. He not only did not believe their 3 principal witnesses, but held that they had failed to establish their traditional evidence. Even when he applied the principles established in Ekpo v. Ita II N.L.R. 68 they still could not succeed. As he stated,

“The plaintiffs in this case have not been able to prove acts of ownership of the lands in dispute over a sufficient length of time numerous and positive enough to lead to the conclusion that they are entitled to the declaration sought. It is not enough to say in what looks like general terms that “we farm on the land in dispute and harvest economic trees”

In the Court of Appeal the appellants applied, and were granted, leave to adduce additional evidence in the form of a document entitled “PEACEFUL ARBITRATION ON FARM LAND DISPUTE.” The document was, admitted in evidence as Exhibit FCA 1. After the admission of the exhibit, E the learned Justices of the Court of Appeal (Belgore, JCA. as he then was, Olatawura, J.C.A. and Aikawa, J.C.A.) evaluated it and having found it to be worthless and tainted with illegality, rejected it. They upheld the findings of fact of the learned trial judge and dismissed the appeal.

In this Court, it was first contended in the appellant’s brief of argument that the Court of Appeal, having admitted Exhibit FCA1 in evidence, was not competent to consider and reject it claiming that it was tantamount to one Panel of the Court sitting on appeal over the decision of another Panel. This argument was not pursued in oral argument before this Court. What was pursued was the contention by Mr. Douglas, learned counsel to the appellants, that once the Court of Appeal admitted Exhibit FCA1 it would have allowed the appeal and remitted the case to Ononuju, J. for a reevaluation of the case together with the additional evidence.

It is not in dispute that evaluation of evidence is in the province of the trial Judge, at least initially. But that cannot mean that when a Court of Appeal receives additional evidence such as Exhibit FCA 1 it should send it down to the trial Court without satisfying itself that such document could make some difference to the decision of the Court below, or that it has any weight indeed. Such a contention was not and could not be supported by any authorities. Indeed a Court of Appeal which treated additional evidence in such a manner as was urged on this Court would be clearly abdicating its responsibilities.

There being no merit whatsoever in this appeal, I shall and do dismiss it with N300.00 costs to the respondents.

UWAIS, J.S.C.: I have had a preview of the judgment read by my learned brother Oputa, J.S.C. I agree that this appeal is devoid of merit and that it should be dismissed. Accordingly, the appeal is hereby dismissed with N300.00 costs to the respondents.

---

Other Citation: (1987) LCN/2359(SC)