Dr. Olise Imegwu V. Ugo Rudolf Asibelua & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE PAUL ADAMU GALINJE, J.C.A. (Delivering the Lead Ruling)

By a motion on notice dated 15th day of November, 2010 and filed on the 22nd November, 2010, the Applicant herein who is the Cross-Respondent/Appellant sought for an order admitting the underlisted documents in evidence for consideration of the cross appeal-

(a) Certified True Copy of the originating summons in FHC/ASB/CS/02/2009; ASIBELUA VS IMEGWU & 5 ORS;

(b) Certified True Copy of the Cross-Appellants pay slip for October, 2008 in the Delta State House of Assembly.

The grounds upon which the application is predicated, as set out in the motion paper are as follows:-

“1. The second issue raised in the cross appeal was not presented before neither was it considered by the lower court,

2. The documents subject to this application are relevant for a fair consideration of the justiciability or otherwise of the new claims made for the first time on appeal on the basis of facts and materials also sought to be raised for the first time before this Court.”

This motion is supported by a ten paragraphs affidavit deposed to by Paul Kasim, one of the solicitors retained by the Applicant. Annexed to the affidavit are a copy of an originating summons dated 15th April, 2009 and filed on the 28th of April, 2009, and a copy of Government of Delta state Pay slip for the month of October, 2008. These documents are marked exhibits KEM1 and KEM2 respectively.

The 1st Respondent/Cross Appellant filed an eight paragraphs counter affidavit on the 9th December, 2010.

When this motion came up for hearing on the 18th of January, 2011, Mozia Esq, of counsel for the Applicant, who argued the Applicant’s motion relied on all the paragraphs of the supporting affidavit particularly paragraphs 4, 5, 6 and 7 and submitted that the Applicant has met all the conditions necessary for admission of additional evidence on appear. Finally learned counsel urged the court to grant the application since the counter affidavit has not countered the fact that there was originating summons.

Mr. Azubike, learned counsel for the 1st Respondent/Cross Appellant in reply referred to the 1st Respondent’s/Appellant’s counter affidavit filed on the 9th of December, 2010 and submitted that the motion on notice is incompetent. In a further argument, learned counsel submitted that the Applicant has failed woefully to establish the necessary conditions for admission of additional or fresh evidence on appeal. For this reason learned counsel urged this Court to dismiss the application,

As a starting point, I wish to state here that Mr. Azubike did not advance any argument in support of his assertion that the application is incompetent. It is not enough to merely state that a Court process is incompetent without more and expect the Court to embark on fishing out the reasons in support of such assertion. A counsel who assert the existence of any situation, must make submission in support of the position he has taken, otherwise the Court will ignore such bare assertion. However where it is apparent on the face of such process that it is manifestly incompetent, the Court will not shy away from its responsibility in declaring such document incompetent even though no reason is advanced by any party that the said document is incompetent. In the instant case, I have not found anything on the face of the motion that has rendered it incompetent. It is therefore my firm view that the motion on notice is competent, and so I hold.

Now, by Order 4 Rule 2 of the Court of Appeal Rules 2007, the court of Appeal is empowered to receive additional or further evidence in determining appeals if such evidence is relevant to the effectual determination of the appeal. Such relevant evidence can only be admitted if it became available only after the matter on appeal had been determined by the lower court. However where additional or further evidence was available before the conclusion of trial at the lower court, and such availability of the evidence was known by the Applicant, then the Applicant has to establish or show special circumstances warranting the grant of application seeking to receive them in evidence. He has to advance cogent reasons justifying his inability to introduce such evidence at the time of trial. See ILORIN SOUTH L.G.A. VS AFOLABI (2003) 16 NWLR (Pt.846) 274. In the instant application the documents sought to be received in evidence are Exhibits KEM1 and KEM2. Exhibit KEM1 is an originating summons which is dated 15th April, 2009 and filed on the 28th April 2009, while Exhibit KEM2 is a pay slip for the month of October, 2008, which was issued on the 02/10/2009. Clearly these two Exhibits were issued after the judgment against which the appeal and the cross appeal lie, the judgment having been delivered on the 30th of April, 2007. For the avoidance of doubt, Order 4 Rule 2 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 merit, 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.”

Having scaled the first hurdle that the documents became available after the judgment against which the appeal lies, the Applicant must show that the documents sought to be received in evidence are relevant to the appeal and the cross appeal herein. In order to find out if the Applicant has shown the relevancy of the documents to the appeal, recourse must be had to the supporting affidavit. The relevant paragraphs read as follows:-