K.O. Imale & Ors. V. M. Agiri & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

ADAMU, J.C.A. 

By a motion on notice filed on 3/5/95 the applicants applied to this court for the following orders:-

“1. An order permitting the defendants/appellants to tender as further evidence the proceedings of 22nd September, 28th September, 29th September and 5th October, 1938 as part of Exhibit ‘B’ tendered by the respondents in the court below copy attached herewith marked Exhibit “B9-B11”.

2. An order permitting the defendants/appellants to rely on Exhibit “B9-B11” in arguing their appeal.
3. An order compelling the plaintiffs/respondents to amend paragraphs 18 and 20 of their statement of claim in the court below to reflect the judgment in Exhibits “B9-B11” as per the “Schedule of Amendments” attached herewith marked “Exhibit C”.

ALTERNATIVELY

3b. An order allowing the defendants/appellants to amend their statement of defence in the court below by adding paragraphs 30(A) and 30B to the statement of defence as per a “Schedule of Amendments” attached herewith marked “Exhibit C1”.

4. An order allowing the use of Exhibits “B9-B11″ in this Honourable Court and as part of the exhibit tendered in the court below.
5. An order allowing the defendants/appellants/applicants to amend the Notice of Appeal filed on pages 52-53 of the Records by adding more grounds of appeal to the original grounds of appeal and by adding another relief to the reliefs sought from the Court of Appeal as per the Schedule of Amendments attached herewith marked Exhibit D.
6. An order allowing the defendants/appellants to file a new brief of argument reflecting the real issues in the appeal.

AND FOR such further or other orders as this Honourable Court may deem fit to make in the circumstances. ……..”

At the hearing of the application on 21/5/97, the learned counsel for the applicants Chief O. Esan submitted that the application (as per the heading of the motion paper) is brought pursuant to section 16 of the Court of Appeal Act, 1976; order 1 rule 20(3); order 3 rules 16 and 20 of the Court of Appeal Rules, 1981; and the inherent power of this court. He referred to the 3 prayers in the motion paper and the 3 alternative prayers (as reproduced above) as well as the supporting affidavit (of 30 paragraphs). He relied on all the paragraphs particularly paragraphs 10 to 21 thereof. He stated that the purpose of the application is to prevent the respondents from getting judgment in their favour based on false hypothesis and suppression of relevant facts. The applicants’ counsel then referred to the counter-affidavit filed by the respondents in respect of the motion and pointed out that the said respondents have admitted (in paragraphs 20 and 22 of the said counter-affidavit) the existence of the judgment of 5/10/38 which the applicants are now seeking to tender. He also stated that the applicants were not aware of the said judgment (of 5/10/38) until after the decision of the trial court which was in 1981. It is further stated by the applicants’ counsel that they did not become aware of the said judgment until 1995. The learned counsel referred to the case of Comfort Asaboro v. M.G.D. Aruwaji (1974) 1 All NLR (Pt. 1) 140 and all the 13 case law authorities as contained in the motion paper cited in support of the application. He finally urged us to grant the application.

The learned counsel for the respondents Chief H.B. Fabunmi who opposed the application referred us to the counter-affidavit (of 34 paragraphs) filed on 1/9/95 for the purpose of their opposition (or objection) to the application. He relied on all the paragraphs of the counter affidavit and pointed out that they did not admit the existence of the judgment of 1938 in their paragraph 20 (of the counter-affidavit) as asserted by the applicants’ counsel. Rather, the respondents have in paragraph 5 of the said counter-affidavit, denied all the averments in the paragraphs of the supporting-affidavit except paragraphs 1 and 3 thereof. The learned counsel for the respondents also pointed out that at the lower court the applicants pleaded (in paragraph 2 of their statement of defence) denying the existence of the judgment of 5/10/38 which they are now seeking to tender. The learned counsel also referred to paragraphs 17 and 18 of the statement of claim (at pages 10 – 12 of the record) where the respondents pleaded the said judgment. It was argued that instead of the applicants to make efforts to find the said judgment as pleaded by the respondents or to seek for an adjournment to trace it, they flatly or carelessly denied its existence. Reference was also made by the respondents’ counsel to the address of the applicants’ counsel (at page 41 of the record) where he submitted that the judgment in question was irrelevant. It was submitted by the respondents’ counsel that the applicants’ counsel who made that submission at the lower court cannot now be heard to argue or assert that they were not aware of the said judgment until after the decision of the lower court or that the decision of the said lower court was obtained by fraud or suppression of relevant facts. It is also submitted that the applicants by their motion are now trying to bring fresh evidence at this level and the principles for doing so have been enunciated in some authorities which include: Emmanuel Iloegbu v. C.O.P (1992) 7 NWLR (Pt. 254) 459 at P.467; Okulate v. Awosanya (1990) 5 NWLR (Pt. 150) 340 at Pp. 345-346.

On prayers 3 and 3(b) of the motion paper which are for amendment of pleadings, the learned counsel for the respondents referred us to the case of Laguro v. Toku (1992) 2 NWLR (Pt. 223) 278 at pp. 290-291 and submitted that the applicants have not satisfied the principles or conditions for amendment of pleadings as enunciated in that case. He pointed out that to allow the said applicants to amend their pleadings at this stage and in the way they want is to allow them to present a different case from what was presented at or before the lower court – see also Attorney-General of Anamhra State v. C.N. Onuselogu Enterprises Ltd. (1987) 4 NWLR (Pt.66) 547;(1987) 9-11 SC 197 at p. 202 cited in further support of the submission of the respondents’ counsel. Finally the learned counsel for the respondents urged us to refuse the application and to dismiss it.

The learned counsel for the applicants made no further submissions in reply but referred us to paragraph 22 of the counter-affidavit where the respondents have admitted the existence of the judgment of 5/10/38.

From the above submissions of learned counsel to the parties in this application, there are two issues involved or arising from both the main prayers and the alternative prayers in the motion paper viz:

(a) the calling, adducing or tendering of fresh or further evidence on appeal;

(b) the amendment of pleadings both during trial and on appeal.

Prayers 1 and 2 of the motion paper relate to the 1st issue while prayer 3 is on the 2nd issue. Also the alternative prayer 4 is on the 1st issue while the alternative prayer 3(b) is on the 2nd issue. I intend to hereunder consider and apply the principles of law regulating the two issues (i.e. when they are permissible or not).