Festus Mrakpor & Anor V. The Police Service Commission (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Lead Ruling)

The Applicants are Respondents in the main appeal CA/L/854/07 and Cross Appellant in the Cross Appeal. By Motion on Notice dated 15th of May, 2009 filed on 20/5/09 the Applicants pray for the following reliefs:

‘1. AN ORDER granting leave to the Cross-Appellants to amend their Notice and Grounds of Cross-appeal dated 20th December, 2006, and filed on 4th January, 2007, against the judgment of Lufadeju J. of the Lagos High Court delivered on 6th of October, 2006, by the amendment of Relief (1) under clause 4, and the addition of a new ground 3 as indicated in the Proposed Amended Notice of Cross-appeal (Exhibit ‘C’).

2. AN ORDER granting leave to the Cross-Appellants to produce/furnish before this honourable court further/additional evidence of their entitlements as shown in Exhibit ‘B’ of the Affidavit in Support of this Motion.
3. AN ORDER deeming such further/additional evidence as part of the Record of Appeal in this appeal.
4. AN ORDER EXTENDING time within which the Cross-s may file and serve their BRIEF OF ARGUMENT the time allowed by the Rules of this court having expired.
5. AND FOR SUCH ORDER(S) as this honourable court may deem fit to make in the circumstances.

In support of the application is a 15 paragraph affidavit deposed to by Chidi Anene, a legal practitioner exhibiting exhibits ‘A to E’. The Appellant/Cross Respondent did not file a counter-affidavit. Pursuant to an order of court made on 27 June, 2009, the learned counsels were asked to file and exchange written addresses in respect of the application. The learned counsel for the Cross-Appellants/Applicants at the hearing of the Motion on Notice adopted and relied on their written submission dated 6th July, 2009 and filed 8th July, 2009. The Appellant/Cross Respondent did not file a written submission and was not in court at the hearing notwithstanding he was served as per the Affidavit of service on 14/12/2009.

The Cross Appellants/Applicants was the claimant in the court below. After hearing the claim the court below delivered Judgment granting him the reliefs he sought for except the relief for reinstatement Thereafter, the Federal Government through the National salaries, incomes and wages commission on 15th January, 2007 released a circular incorporating ‘consolidated police salary structure’ (CONPOSS), a hitherto new document that promises a better deal for the officers and men of the Nigerian Police. It is this document the Applicants as Cross- Appellants/Respondent seek leave to furnish as additional evidence in the Appeal. The said circular was issued after the Judgment.

Learned counsel for the Cross-Appellants/Applicants Chidi C. Anene in his written address distilled three Issues for determination. The 3 Issues reads as follows:

1. Do the circumstances of this case not justify a grant of leave to the Cross Appellants/Applicants to furnish before this honourable court additional evidence of their entitlement which arose after the conclusion of the proceedings at the lower court?
2. Whether, if the answer to (1) above is in the affirmative, the Cross Appellants/Applicants are not entitled to an Order of this honourable court to amend their Notice and Grounds of Cross-appeal in the interest of justice?
3. Whether the justice of this case does not call for an enlargement of time to enable the Cross Appellants/Applicants file and serve their Brief of Argument?

I will now consider the merits of the forgoing issues in Issue 1 not withstanding there is no Respondent’s Brief. Whether the circumstances of this case do not justify the grant of leave to the Cross-Appellants/Applicants to furnish before this honourable court additional evidence of their entitlements which arose after the conclusion of the proceeding at the lower court?

The learned counsel for the Applicant referred the court to Order 4 rule 2 of the Court of appeal Rules 2007 which provision gives the court the discretion to admit additional evidence. it is his submission that even with the most reasonable diligence there is no way the Applicants could have obtained the evidence for use at the trial court because it did not exist. Learned counsel’s further submission is that the evidence they seek to tender will definitely have an important effect on the outcome of the case of the Cross-Appellants/Applicants. It is his contention that the lower court ordered that the Cross Appellants/Applicants are entitled to all salaries/allowances/benefits hitherto enjoyed by them and flowing from their employment with the Respondent but that the court erroneously limited these entitlements to the date of Judgment instead of calculating same to run until the date of retirement of the Cross Appellants/Applicants which they have appealed against. It is his further contention that it is proper and just that additional evidence Exh. ‘B’ should be integrated into the case so that the Cross Appellants/Applicants will fully enjoy the fruits of any favourable decision made by this court especially as regards Ground 1. He referred to the decision of this court in Ilorin South Local Government Area v. Afolabi (2003) F.W.L.R. (pt.174) 215 at 223-224, wherein the provision of Order 4 Rule 2 of the Rules of the Court was interpreted. He also relied on the principles set out by the Supreme Court in U.B.A. Plc. v. BTL. Industries limited (2005) All F.W.L.R. (pt.263) 611 at 623.

I have carefully considered the averments in the affidavit in support of the application and the written argument of the learned counsel for the Cross Appellants/Applicants. The averments in the affidavit in support of the application is uncontradicted by any counter affidavit, it is trite law that facts in an affidavit that are not controverted nor contradicted by the Respondent must be deemed as admitted by the Respondent and be accepted by the trial court as unchallenged evidence. See Okoebor v. Police Council (2003) 12 N.W.L.R. (pt.834) 444.

Issue One raises the question of whether the circumstances presented by the Applicant falls within the category of instances when the court will grant leave to Applicant to furnish additional evidence of their entitlement which arose after Judgment was delivered. Order 4 Rule 2 of the Court of Appeal Rules 2007 provides as follows:

‘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 the trial or hearing) shall be admitted except on special grounds.

By this provision this court has the powers to allow or admit further/additional evidence on appeal under special grounds. The general provision under Order 4 envisages that once an appeal is from a Judgment after trial or a cause determined on the merits, no further evidence shall be admitted other than evidence as to matters which occurred after trial, if special grounds are established. Therefore the exception to the general provision is the crux of the present application.

The rules did not define what is special ground. The Appellate courts in order to exercise its discretion judicially and judiciously have set down certain principles as guideline. In Ehinlanwo v. Oke (2008) 16 N.W.L.R (pt.1113) SC 357, the Supreme Court set down the following principles:

‘Once an Appellate court comes to the conclusion that a party was entitled to be heard before a decision was reached but not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside. This is because such an order is against the rules of fair hearing, one of the twin pillars of natural justice expressed by the maxim audi alteram partem’.