Jerry O. Imoto V. H.f.p. Eng. Nigeria Ltd. (2000)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A. 

By the application dated 23rd March 1999, the appellant/applicant prayed for the following:

(1) an order of the court granting leave for the appellant/applicant to adduce further evidence by tendering as exhibit the respondent’s letter Ref No PF/1927/70098 of 13th July, 1995 terminating the appellant’s appointment which was pleaded in paragraph 11 of the statement of claim dated 27th November, 1995 and admitted by the respondent in paragraph 7 of the statement of defence dated 13th March, 1996 but which could not be tendered in evidence during the trial at the High Court due to exceptional circumstances:

(2) An order accelerating the hearing of the appeal in the interest of justice.

(3) An order setting down the appeal for hearing.

The application which is supported by a 37-paragraph affidavit and 6 – paragraph further affidavit, is brought pursuant to Order 1 Rule 20(3) of the Court of Appeal Rules 1981 as amended and section 16 of the Court of Appeal Act, Cap. 75 Laws of the Federation and the inherent jurisdiction of the Court. Order 1 Rule 20(3) provides:

“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”

Of course, section 16 of the Court of Appeal Act Cap 75 Laws of the Federation spells out the general powers of the court.

I shall start the consideration of this application by saying that generally, in law, a litigant who has obtained a judgment in a court of justice must not be ordinarily deprived of that judgment. If it is sought to deprive him of the judgment by further evidence, three conditions must be satisfied before it can be received and they are:

(1) It must be shown that the evidence now sought to be adduced could not have been obtained with reasonable diligence at the trial of the case;

(2) The evidence must be of such a nature that, if given, it would have a far-reaching effect on the result of the case, though it need not be decisive;

(3) The evidence must be such as is presumably to be believed or it must be apparently credible though it need not be incontrovertible.

See (1) Akanbi & Ors v. Alao & Anor. (1989) 3 NWLR (pt.108) 118; (2) Iweka II & Ors. v. Analogu & Ors. (1991) 4 NWLR (pt.185) 305;(3) Ladd v. Marshall (1954) 1 WLR 1489 and (4) Skone v. Skone (1971) 2 AER 582. Where it is established to the satisfaction of an appellate court that the evidence now sought to be procured was available at the trial, but not tendered, the court will not grant the prayer to tender such evidence. See. Inland Revenue v. Rezeallah (1962) 1 All NLR 1. I should add that at the appellate stage no party can, as of right, adduce fresh or further evidence. The grant or refusal of an application, at this stage to adduce further evidence by affidavit is dependent on the exercise of the discretion of court; of course, the discretion must be judicious and judicial See Krakauer v. Katz (1954) 1 A.E.R. 244.

The question now to ask is what are these special grounds in the printed evidence that will persuade this court to exercise its discretion in favour of the applicant. I pause to say that when this application came before us on 20-1-2000 for argument, Mr. Omamadagu, learned counsel for the appellant/applicant, in moving the said application dated 23-3-99; relied on the 37-paragraph affidavit and the 6-paragraph further affidavit and submitted that by the printed evidence, special circumstances have been shown to warrant the grant of the application and while relying on Anyaegbunam v. A-G, Anambra State & Anor. (1995) NWLR (Pt.417) 97; (2) Owata & Ors v. Anyigo & Ors (1993) 2 NWLR (Pt.276) 380; and (3) Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94 he urged that the application be granted. For his part Mr. Makinde, learned counsel for the respondent argued that the conditions set out in Order 1 Rule 20(3) have not been met; the document according to him, was available at the trial stage. He urged that the appointment be refused. Again, what are these special grounds given by the applicant? The answer can be found in paragraphs 6, 8, 9, 11, 12, 13, 15, 16, 17, 19, 21 and 22 of the affidavit and paragraphs 2, 3 and 4 of the further affidavit both in support of the application and they are in the following terms:-