Resurrection Power Investment Company Limited V. Union Bank Of Nigeria Plc (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Lead Ruling)

On the 30th June, 2011 the Federal High court sitting at Enugu, per D.V. Agishi J. rendered judgment in suit No. FHC/EN/CP.1/2010 ordering that the appellant herein be wound up. Dissatisfied with this judgment, the appellant commenced this appeal No. CA/E/193/2011 by filing a notice of appeal dated 4-7-2011 and filed on 8th August 2011. Both sides have filed and exchanged briefs of argument. The appeal thereby became ripe for hearing.

Before it could be argued and briefs adopted, the appellant on the 27th March 2012 filed a motion on notice dated 23rd March 2012 praying for “AN ORDER of this Honourable court granting to the Applicant/Appellant leave to adduce fresh evidence on appeal, to wit processes, counter-affidavit, Statement of Defence, Witness Statement on Oath and other processes/Documents filed and used by the respondent ostensibly on behalf of the appellant in suit No: LD/1313/08, SHANGAI TRISUM INTERNATIONAL COMPANY LIMITED V. UNION BANK involving the issue relating to this proceedings.”

It is supported by a 13 paragraphs affidavit and a photo copy of the certified true copy of a bundle of documents referred to as exhibits A, B, C, and D in paragraphs 6(d), 6(g)(v), 6(g)(vi) and 6(g) (vii) of the said affidavit in support of the motion, but not marked as such. The said bundle of documents is what is sought to be adduced as fresh evidence in this appeal.

On the 2nd May 2012, the respondent, filed a 40 paragraphs counter-affidavit in opposition to the above mentioned motion. Attached to the counter-affidavit are exhibits A, B, C and D, documents already forming part of the record of this appeal.

The court ordered the parties to file written addresses or arguments in respect of this application. The Learned Senior Advocate for the appellant/applicant filed his written argument in support of the application on the 9th of July 2012. The Learned Senior Advocate for the respondent filed his written address in opposition to the said application to adduce fresh evidence on appeal on the 16th July 2012.

The Learned Senior Advocate for the appellant on the 23rd July 2012 filed a reply on points of law and on the 30th July filed an amended Appellant’s reply on point of law. The appellant/applicant in its written argument raised one issue for determination as follows – “Whether on the facts of this case, it is just and convenient to admit the processes, i.e. the deposition of the respondent in Suit No. LD/1313/08 SHANGHAI TRISUN INTERNATIONAL COMPANY LTD. VS. UNION BANK PLC as further evidence on appeal.”

The respondent in its address also raised one issue for determination as follows – “Whether the Appellant has satisfied the requirements of law to enable the Honourable court of Appeal exercise its discretion in granting the Appellant’s Motion for leave to adduce fresh evidence on Appeal.”

It is clear that the issues raised for determination by both sides are in substance the same. The question raised by both sides is whether it is in the interest of justice to allow the appellant/applicant adduce further evidence in this appeal.

Both sides agree that this court has the discretionary power to grant applications of this nature. The appellant/applicant’s motion on notice indicates that it is brought pursuant to Order 4 Rule 2 Court of Appeal Rules 2011 which provides that:

“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 of an appeal from a judgment after or hearing of any cause or matter on the merits, no 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.”

The power of this court to receive further or fresh evidence on questions of fact in appeals before it is clearly provided in the above provisions of the Court of Appeal Rules 2011. It is noteworthy that the provisions do not state expressly the purpose for which and the circumstances when this power can be exercised by this court. It only indicates that it can be exercised in the case of an appeal from a judgment after trial or hearing of any cause or matter on the merits on special grounds. It is Rule 4 Order 4 of the said Rules that expressly state that the purpose for which the power shall be exercised is to ensure the determination of the merits of the real question in controversy between the parties. It states that:

“The power of the court under the foregoing provisions of this Rule may be exercised notwithstanding that no notice of appeal or Respondent’s notice has been given in respect of any particular part of the decision of the court below, or by any particular party to the proceedings in that court or that any ground for allowing the appeal or for affirming or varying the decision of that court is not specified in such a notice; and the Court may make any order on such terms as the Court thinks just, to ensure the determination of the merits of the real question in controversy between the parties.”

It is clear from the above provisions of Order 4 Rules 2 and 4 that the power of this court to allow further or fresh evidence on appeal should be exercised sparingly and only in furtherance of justice. The Supreme Court in OKPANUM V. S.C.E (NIG) LTD (1998) 7 NWLR (Pt. 599) 537 at 554 – 554 held that “The exercise of the discretion to adduce fresh evidence should be strictly guarded. This is because, even though a court is always anxious to arrive at the truth, there are rules governing trials of actions. These, rules lead to the conclusion that once the trial takes place, prima facie further evidence should not be allowed to be called unless a strong case had been made out for so doing.”