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Chief Amadi-dike-ogu & Ors V. Owhonda Frank Amadi & Ors (2019)

LAWGLOBAL HUB Lead Judgment Report

SIDI DAUDA BAGE, J.S.C.

By a Motion on Notice dated May 21, 2018 brought pursuant to Order 2 Rule 12 (1) of the Supreme Court Rules (as Amended in 1999) and under the inherent Jurisdiction of this Court, the Appellants/Applicants approached this Court seeking the following Orders:

“1) An Order of this Honourable Court granting the Appellants/Applicants leave to adduce further evidence at the hearing of this appeal, to wit: the production of a certified true copy of the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government, CTC of which was obtained from the Nigerian National Archives.

2) An Order of this Honourable Court deeming the said 1928-1931 Intelligence Report on the Obia Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government duly certified by the Nigerian National Archives and attached herewith as EXHIBIT A, as properly received in evidence.

3) And for such further or other Order(s) this Honourable Court may deem fit to make in the circumstances.”

The Appellants/Applicants premised their

application on 8 grounds, as follows:

“1) That both Appellants and Respondents are in agreement that the EBERA or OROEBARA Group (otherwise known as ORAZI or the RUMUORAZI Group) has always produced the head of Rumueme. The common ground of disagreement has been; which branch in Ebara (Oroazi) group has been producing the head of Rumueme to wit: is it Nyenweli Nsirim, who heads the Appellants’ Rumueme Council of Chiefs or the 8th Respondent (Ohahuru Samuel Akaninwo) who head the Respondents’ Rumueme Council of Chiefs, Elders and Owhor holders.

2) That this core issue is answered conclusively by the document sought to be produced and received as further evidence in this appeal to with: the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government, a pre-independence Intelligence Report of British Government.

3) That the existence of the said document (i.e. the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government), was not known to the Appellants/Applicants’ until 28th July, 2010 when the

Appellant/Applicants’ new Counsel stumble on it while undertaking research on another subject the Nigerian National Archives, Ibadan.

4) That this colonial document (an independent and unbiased Intelligence Report of the Colonial Government) is credible, reliable and capable of being believed.

5) That this Archival is applicable under the RULE IN KOJO VS BONSIE to resolve the two conflicting traditional histories put forward by the two sides in this appeal by resort to this unbiased, credible, reliable and believable historical document.

6) That no oral evidence is required as the said document speaks for itself and corroborates and compliments existing oral testimonies in the Record of Appeal and the said document, if received, will have an important, crucial and indeed pivotal effect on this appeal.

7) That it is in the interest of both the Appellants and the Respondents that this independent antique document (the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government) is received in that is states the correct and independently investigated historical

headship/rulership of Rumueme as at 1928-1931.

8) That this Honourable Court has in several instances and cases sought to discourage Judges from basing their judgements on mere beliefs and/or disbelief. That from Record of Appeal (pages 276, lines 8-25) it is clear the judgement of the lower Court and that of the trial Court were wholly founded on the beliefs and/or disbeliefs of the trial Court who merely stated that he disbelieved the Appellants and believed the Respondents without stating the basis for his beliefs and/or disbeliefs, this Archival document takes this appeal from the realm of beliefs and/or disbeliefs unto the firm grounds of proof.”

In support of the Appellants/Applicants application is a 21-paragraph Affidavit deposed to by Leslie Victor Chizi Michaels of No. 8-10, St. Michaels Crescent, G.R.A. Phase III, Port Harcourt, Rivers State, to which three Exhibits, namely A, B, C were attached, the “A being the Archival documents forming basis of this application, as well as a Written Address.

On their part, the Respondents filed a 57-paragraph Counter-Affidavit in opposition to the Appellants/Applicants’ Motion.

The Counter-Affidavit was deposed to by Chief Collins B. Adele a Traditional Ruler and Legal Practitioner of No. 24, Ikwerre Road as well as a Written Address in opposition to the said Motion.

By way of reply, the Appellants/Applicants also filed a Further Affidavit of 31 paragraphs in Reply to the Respondents’ Counter-Affidavit, also deposed to by Leslie Victor Chizi Michaels of No. 8-10, St. Michaels Crescent, G.R.A. Phase III, Port Harcourt, Rivers State as well as Reply Address dated July 14, 2018.

An interesting twist was added to this application which I’ll proceed to summarily deal with. The Respondents filed a Notice of Preliminary Objection to the Appellants/Applicants’ Motion for leave to adduce further evidence. The Preliminary Objection is dated 4th July, 2018 and essentially contended that the Appellants/Applicants’ Motion to adduce further evidence constituted or amounted to an abuse of Court process in view of the fact that the Appellants earlier motion of 3/10/2013 was still pending before this Court. In the accompanying written address in support of the Preliminary Objection, the Respondents/Applicants relied on the case of

NIMB LTD VS UNION BANK OF NIGERIA (2004) 12 NWLR (Pt.888) 599, Ration 4 at 606; AG OF ONDO STATE VS AG OF EKITI STATE (2001) 17 NWLR (Pt.743) P 706 Ratio 20 at 731 where the Court relied on DOMA VS ADAMU (1999) 10 NWLR (Pt 598) at 311 and BENAPLASTIC IND. LTD VS VASILYEV (1999) 10 NWLR (Pt.624) 620.

The Respondents/Applicants contended that the Appellants’ Motions are seeking the same prayers, thus constituting abuse.

In their reply, the Appellants filed a Counter Affidavit of 21 paragraphs deposed to be Leslie Victor Chizi Michaels, a Legal Practitioner and Founding Solicitor of No. 8-10, St. Michaels Crescent, G.R.A.Phase III, Port Harcourt, Rivers State. In essence, the Appellants contended that they had evinced an intention to withdraw the earlier Motion on Notice of 3/10/2013 being defective and shall, at the hearing, withdraw the said Motion and rely on the new motion dated 5/6/2018. The Appellants relied on the case of NV SCHEEP VS MV ARAZ (2000) 15 NWLR (Pt.691) 622 at 635, Ratio 10, Per KARIBE-WHYTE and submitted in conclusion that having expressed their intention to withdraw the defective Motion of 3/10/2013, the new motion filed on 5/6/2018 should not

be considered to be an abuse of Court process.

DETERMINATION OF THE PRELIMINARY OBJECTION TO THE APPLICATION

The law is settled that a point of law can be raised on a preliminary objection by a party to a suit if the point of law will be decisive of the whole litigation. Therefore, where there is a point of law which if decided one way would impact on the justice of the case, as in the instant case, that advantage ought to be taken of the facilities afforded by the rules of Court to have it disposed as soon as raised. See N.V. SCHEEP VS MV “S. ARAZ” (2000) 12 SCNJ 24, (2001) FWLR (Pt.34) 543; EVERETT VS RIBBANDS (1952) 2 QB 198; ADDIS VS CROCKER (1961) 1 QB 11; MADU VS ONONUJU (1986) 3 NWLR (Pt.26) 23; YEOMAN CREDIT LTD. VS LATTER (1961) 2 All ER 281. “Per Ogbuagu JSC.

The preliminary objection raised by the Respondents is anchored the facts that Appellants/Applicants’ Motion of 5/6/18 to adduce further evidence amounted or constituted an abuse of Court process in view of the fact that the Appellants’ earlier motion of 3/10/2013 was still pending before this Court.

Beyond doubt, what constitutes abuse of Court process involves

circumstances and situations of infinite variety and conditions and referred the Court to a number of judicial authorities including LOKPOBIRI VS OGOLA (2016) (Pt.1499) 328; COMMISSIONER FOR EDUCATION, IMO STATE VS AMADI (2013)13 NWLR (Pt.1370) 133; OGBORU VS UDUAGHAN (2013) 13 NWLR (Pt.1370) 33; ECHAKA CATTLE RANCH LTD. VS N.A.C.B LTD (1998) 4 NWLR (Pt.547) 526; and O.S.S.I.E.C. VS NCP (Supra).

As succinctly enunciated by this Court in NTUKS VS NPA (2007) 13 NWLR (Pt.1050) 392, this Court had expressed a detailed opinion that:

“Abuse of Court process generally means that a party in litigation takes a most irregular, unusual and precipitate action in the judicial process for the sake of action qua litigation, merely to waste valuable litigation time. It is an action which is one (or more) too many; an action which could be avoided by the party without doing any harm to the matter in dispute. The process of the Court is used married to overreach the adversary to the direct annoyance of the Court. The Court process is initiated with malice or in some premeditated or organized vendetta, aimed at frustrating either the quick disposal of the matter or the

abatement of the matter for no good cause. The Court process could also be said to be abused where there is no iota of law supporting it. In other words, the Court process is premised or founded on frivolity or recklessness.”- Per. TOBI, J.S.C.”

In the instant case, it would be impossible to establish abuse unless the Applicant desires to proceed with both applications at hearing. This is not the case here. As held by this Court in NV SCHEEP VS MV ARAZ (Supra), there is no intention on the part of the Appellants to proceed with the two applications. Quite frankly, an intention had been clearly evinced by the said Appellants that they intend to withdraw the defective Motion of 3/10/2013, and that the new motion filed on 5/6/2018 will be relied on at hearing. Unless we intend to stand the law or established procedure on its head, there is no element of abuse in this circumstance. In view of the foregoing, this Preliminary Objection fails and is hereby struck-out. I now proceed to determining the main application forming basis of this ruling, that is the Appellants/Applicants’ Motion on Notice filed 5/6/2018 seeking leave of this Court to adduce further

evidence at the hearing of this appeal.

ISSUES FOR DETERMINATION OF THE APPLICATION

In the argument in support of their application, the Appellants/Applicants formulated one issue for determination on page 3 of the Written Address in support of the Motion, thus:

“Whether the Appellants/Applicants have met the conditions for the grant of this application.”

On their part, the Respondents also formulated one issue:

“Whether there is ground or basis for this application and if the Appellants/Applicants complied or met the requirements implied in the grounds or basis of the Application.”

Clearly, both the Applicants and Respondents have formulated the same issue with different grammatical embellishments. The issue formulated by the Applicants is simpler and straightforward compared to the seemingly convoluted issue formulated by the Respondents. For the purpose of determining this application, I hereby adopt the issue formulated by the Appellants/Applicants.

ARGUMENTS AND RESOLUTION OF ISSUE

The Appellants/Appellants argued that the power of an Appellate Court to receive further evidence is well amplified in the case of

OWATA VS ANYIGOR (1993) 2 NWLR (Pt.276) 380, P 383-384, Ratio 3, where the Supreme Court held that an Appellate Court can receive further evidence on questions of fact but such further evidence is only received on special grounds and that the Court generally exercised this power with great circumspection. The Appellants/Applicants further relied on the case of AKANBI VS ALAO (1989) 3 NWLR (Pt.108) 118 at 121-122, Ratio 7.

The Applicants relied on the above case and further contended that they have met the requirements enunciated by this Court for receiving further evidence to wit: The 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government). The Appellants/Applicants further relied on the case of AMAECHI VS INEC (2008) 5 NWLR (1080) 227 at 262-263 Ratio 42-45 to further drive home the contention that Appellate Court, like in this instance, will permit fresh evidence to be adduced in furtherance of justice and if it would assist the Court to resolve the issue before the Court.

The Appellants/Applicants further urged this Court to arant the reliefs sought and permit them to

adduce Exhibit A in support of the Motion to assist the Court determine the more authentic history between traditional history stated by the Appellants and that of the Respondents in line with the rule in KOJO VS BONSIE (Supra). The Applicant further placed reliance on the case of OKOCHI VS ANIMKWOI (2003) 18 NWLR (Pt.851) SC 1 at 6, Ratio 3 which supports the position ;that the best way to test the traditional history is by reference to the acts of ownership or possession in recent years as established by evidence and by seeing which two competing histories is the most probable.

In its concluding submission, the Appellants/Applicants urged this Court to grant the Application on the ground that it has fulfilled the conditions for the admission of further evidence.

In their opposing arguments, the Respondents contended that further evidence is only received on special grounds and that such powers is exercised by the Appellate Court reluctantly, SEE OWATA VS ANYIGOR (1993) 2 NWLR (276) Page 380, Ratio 3 at 384.

The Respondents further contended that the basis of admissibility is relevance, quoting from Section 1 of the Evidence Act.

The Respondents differed with the Applicants on the contention that KOJO VS BONSIE is applicable in the circumstances of this application. The Respondents insisted, by their submissions that the Applicants have not complied with the requirements for the grant of an application of this nature, and that this is fundamental. The Respondents relied on and quoted extensively from the case of UBA PLC VS BTL INDUSTRIES LIMITED (2005) All FWLR (Pt.263) P 611, Ratio 3 at 615.

In their final submission, the Respondents urged this Court to dismiss the application on the ground that the facts relied upon by the Applicants/Appellants are at variance with the Records of Proceedings before this Court. The Respondents stressed further that the Report forming basis of the instant application is not admissible under the Evidence Act as the document represents the personal opinion of the author and is lacking in credibility as there is no basis or background showing its relevance for the purpose of the issue in the matter.

By way of further Reply on Points of Law, the Appellants/Applicants contended further that the grounds relied upon in this application are supported by the

records of the Court and relevant. Relying on Section 1 of the Evidence Act, the Applicants contended that further evidence sought to be adduced is relevant to the fact in issue, and that the essence is to adduce evidence to supply missing evidence whose existence was not available and known to the parties at the time of the trial. See OWATA VS ANYIGOR (Supra); ANATOGU VS IWEKA (Pt.415) at 934, Para B-E. The Appellants stressed further that the principle in KOJO VS BONSIE (Supra) applies in land cases as well as chieftaincy matters, see DARAMOLA VS A.G. ONDO STATE (2000) NWLR (Pt.665) 440 at 477, Para E-C; AJAGUNGBADE VS LANIYI (1999) 12 NWLR (Pt.633) 92, at 155.

I have painstakingly considered the arguments of the parties in this appeal as far as the application under consideration is concerned. The law is that ordinarily, an Appellate Court is wary of receiving fresh evidence not available at the stage of trial. The Appellate Court is not however inhibited, but only treads with caution in accepting fresh evidence on appeal.

The position of the law is that the power of an Appellate Court to receive further or fresh evidence on appeal is rarely

exercised but is not taken away, extinguished or inhibited. As held by this Court in OWATA VS ANYIGOR (1993) 2 NWLR (Pt.276) 380, P 383-384, an Appellate Court can receive further evidence on questions of fact but such further evidence is only received on special grounds and that the Court generally exercised this power with great circumspection. Thus, before receiving fresh evidence on appeal, an Appellate Court would need to be sure that the party seeking to adduce such evidence has fulfilled the following conditions:

“1) A formal application is brought exhibiting the fresh evidence or document sought to be adduced. This was not one of the conditions in OWATA’s case but now being made a requirement given the rarity and cautionary approach with which such application must be considered.

2) The evidence sought to be adduced should be such that it could not have been obtained with reasonable care and diligence for use at the trial.

3) If the fresh evidence is admitted it would have an important but not necessarily crucial effect on the whole case.

4) If the evidence sought to be adduced is such that is apparently credible in the sense that

it is capable of being believed even if it may not be incontrovertible.

5) Additional evidence may be admitted if the evidence sought to be adduced could have influenced the judgment at the lower Court in favour of the Applicants, if it had been available at the trial Court.

6) The evidence must be material and weighty even if not conclusive. Where the evidence sought to be adduced is immaterial and irrelevant, it will be rejected.”

The above conditions must all co-exist in an application seeking this unusual discretion. Most importantly, the last condition becomes first as the evidence sought to be adduced must be relevant. This is because it is settled principle of law that relevance is the basis of admissibility. The Applicants/Appellants have approached this Court with the application under consideration seeking, essentially, leave to adduce further evidence at the hearing of this appeal in the forms of the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government,CTC of which was obtained from the Nigerian National Archives, Ibadan.

Beyond the factual narratives, the ground on which the application is brought are cognisable and compelling. The Appellants/Applicants premised their application on 8 grounds, as follows:

2) That this core issue is answered conclusively by the document sought to produced and received as further evidence in this appeal to with: the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government, a pre-independence Intelligence Report of British Government.

3) That the existence of the said document (i.e. the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the

Southern Provinces of British Colonial Government), was not known to the 28th Appellants/Applicants’ until July, 2010 when the Appellant/Applicants’ new Counsel stumble on it while undertaking research on another subject as the Nigerian National Archives, Ibadan.

4) That this colonial document (an independent and unbiased Intelligence Report of the Colonial Government) is credible, reliable and capable of being believed.

Provinces of British Colonial Government) is received in that it states the correct and independently investigated historical headship/rulership of Rumueme as at 1928-1931.

8) That this Honourable Court has in several instances and cases sought to discourage Judges from basing their judgments on mere beliefs and/or disbelief. That from Record of Appeal (pages 276, lines 8-25) it is clear the judgment of the lower Court and that of the trial Court were wholly founded on the beliefs and/or disbeliefs of the trial Court who merely stated that he disbelieve the Appellants and believed the Respondents without stating the basis for his beliefs and/or disbeliefs, this Archival document takes this appeal from the realm of beliefs and/or disbeliefs unto the firm grounds of proof.

Given the circumstances of this appeal, would fresh evidence undermine or strengthen the justice in this case, bearing in mind that a grant or refusal of this application does not dispose-off the substantive appeal The answer certainly is a capital NO. Allowing fresh evidence to be adduced in this appeal by a requesting or desiring party is not the exclusive preserve

of the Applicants. The Respondents may as well have taken benefit by applying to adduce any such fresh but relevant evidence. Whichever way one looks at it, what should be paramount in the mind of the Court is whether permitting fresh evidence to be adduced will be in furtherance of the course of justice to the extent that it would assist the Court to resolve the issue before it fairly, justly and equitably.

In view of this, I share the view as expressed in the submission of the Appellants/Applicants that the grant of the reliefs sought would only permit them to adduce further evidence in the form of Exhibit A which is attached to the Affidavit in support of the Motion. This, clearly, will assist the Court determine the more authentic history between traditional history stated by the Appellants and that of the Respondents.

From the above analyses, I resolve in the affirmative the sole issue formulated for the determination of this application in favour of the Appellants/Applicants. I hold that this application has merit and is hereby accordingly granted as prayed.

SC.460/2010(R)

Chief Amadi-dike-ogu & Ors V. Owhonda Frank Amadi & Ors (2019) LLJR-SC

Chief Amadi-dike-ogu & Ors V. Owhonda Frank Amadi & Ors (2019)

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