Major Abu V. Alhaji Tijjani Ahmed (2016)

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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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