Hon. Emmanuel David Ombugadu V. Congress For Progressive Change & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA J.C.A (Delivering the Leading Ruling)

This is a motion filed by the appellant who appealed against the judgment of the Federal High court (herein referred to as the trial court) sitting at Lafia in Nasarawa State, on which judgment was delivered on 28/06/2011 granting the 1st and 2nd respondents’ claims. The appeal is now pending before this court.

The appellant had challenged the nomination and sponsorship candidature of the 2nd respondent by the 1st respondent for the Akwanga/Wamba/Nasarawa Eggon Federal Constituency of Nasarawa State who for that became the member representing the said constituency in the House of Representative since the 1st respondent (C.P.C,) won the election conducted on 09/04/2011.

By the appellant’s/applicants application dated the 10/12/2011 and filed on 12/12/2011, he seeks leave of this court to “adduce and tender fresh documentary evidence which was not tendered at the trial court” and the fresh documentary evidence is the letter from the office of the chairman of INEC (3rd respondent in the appeal) to the I.G.P, to investigate a criminal offence, alleged to have been committed.

The copy of the letter has been annexed to the motion paper as Exhibit “A”.

The grounds upon which the application is predicated are as stated in the body of the motion paper.

In support of the application the applicant through Omale Mike Ajonye Esq. of counsel in the firm of J.S. Okutepa, SAN & Co. Who is his legal representative deposed to an affidavit of 11 paragraphs.

Moving the motion the learned Senior Counsel for the appellant/applicant Mr. J.S, Okutepa, (SAN) drew our attention to the prayers in the motion paper with the grounds thereof, and the affidavit in support which he relied upon. He noted that the 1st and 2nd respondents had filed a counter affidavit to debunk the averments in the said affidavit in support but submitted that they did not effectively do so. He urged us to grant the application.

Reacting to the arguments proffered, learned counsel for the 1st and 2nd respondents, pointed out that their counter affidavit have substantially answered the application especially as they relate to the appellants/applicants prayers sought the learned counsel referred us to their counter-affidavit.

By Order 4 Rule 2 of the Court of Appeal Rules 2011, which governs the power of this Court to receive further evidence it is provided as follows:-

2. “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.”

It is important to note that generally a trial court determines a case on its merit after hearing all the witnesses and considering all the oral documentary evidence before it. Therefore, a party is bound to elicit all the evidence he intends to rely upon to prove his claim and shall not be allowed to reshape his case in the appellate stage by bringing forth evidence which ought to have been produced at the trial court upon the exercise of reasonable care and due diligence, see Enekebe v. Enekabe (1964) NWLR 42. The duty of an appellate court is always determined from the cold facts on records whether the trial court came to the right decisions on the evidence placed before it from both sides and whether it has correctly applied the law to the facts before it. See Akinwale v. Amodu (1991) 7 NWLR (Pt. 206) 710 at 716 – 717.

I should point out that in law, to determine an appeal on the basis of evidence or document which the lower court had no opportunity of seeing or considering before judgment, would tantamount to a miscarriage of justice to the adverse party. This general principle of law afore-stated, informs the seeking reluctance of this Court of Appeal to admit further evidence except in exceptional circumstances where the matter arose ex-improviso such that no human ingenuity could foresee and it is in the interest of justice to allow such evidence. See Owata v. Anyigor (1993) 2 S.C. N.J.L @ 12-13.

From the provisions of the said Rules of this Court and the legal authorities that interpreted provisions that are in pari-materia with Order 4 rule 2 of this court, it is clear that this court has power or discretion to receive further evidence provided certain conditions are fulfilled. These conditions were from the English case of Ladd V. Marshall (1954) 3 ALL E.R 745 and were accepted by the Nigerian Apex court in the case of Asaboro V. Aruwaji (1974) 4 S.C, 119 @ 124 where it was stated thus:-

“…the matters which the courts have always taken into consideration in the judicious exercise of powers to grant leave to adduce new evidence are namely”