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.