S.O Adeyefa Vs Bello Bamgboye (2013)
LAWGLOBAL HUB Lead Judgment Report
JOHN AFQLABI FABIY1, JSC
This ruling is sequel to the Motion on Notice dated 26th May, 2010, and filed on 7th June, 2010 argued before the court on 12th November, 2012. The application was filed under Order 1 Rule 12 (1) of the Supreme Court Rules, 1999 (as amended). The appellants/Applicants prayed as follows:- ‘1. For leave to tender the attached three documents marked Exhibits P10, Pll and P12 as further evidence and form part of the records of appeal pending in the above named PAGE| 2 suit. 2. That the appellants brief of argument filed on 20/7/05 be amended accordingly. 3. That the amended brief of argument with the attached Exhibits PI0, PI 1 and P12 is dated (sic) 21st day of May, 2010 be deemed properly field and served personally on Bamgboye Bello the new party to be substituted for respondent and Chief B. O. Omirefa the respondents solicitor.’ The grounds for the application are stated as follows ‘(i) That the three documents sought to be tendered as further evidence were not available during the trial of the above named suit and its appeal before the court below. (ii) That the three documents sought to be tendered and form part of the records of appeal are the government decision over the access road in dispute between the appellants Community and Ganiyu Elusoji – respondents father. This made the documents very relevant and may assist the Supreme Court to reach a just decision.’ The application was supported by an affidavit of 12 paragraphs deposed to by the 2nd appellant/applicant. Paragraphs 3, 4, 5 and 6 of the affidavit which are germane to the determination of the application are reproduced as follows:- ‘3. That we the appellants have filed a motion before the Supreme Court dated 18th day of January, 2010 and filed on 18th day of January, 2010 seeking leave to delete the 1st and 2nd plaintiffs/appellants names and that of the respondent Simbiatu Elusoji now deceased and substitute the name of one Bamgboye Bello as the respondent. PAGE| 3 4. That after the filing of the said above mentioned motion we further photocopies of documents the originally (sic) of which had been tendered in Suit No. 27/83 before the Customary Court which inadvertently were not collected back after judgment in the said suit and got lost during the movement of Customary Courts in Ife from one place to another and so the document (sic) were not available during the trial of this case and the appeal in the lower court. I am very luck (sic) to get photocopies of the documents from the Customary Court clerks recently. 5. The documents were three in number and were the settlement effected over the access road in dispute by the Local Government Council and Ife Area Town Planning Authority between the Ojaja Community and Ganiyu Elusoji the respondents Simbiatu Elusojis father. 6. That the contents of the three documents are very relevant for the determination of the appeal now pending before the Supreme Court. The documents confirmed the land in dispute as access road. Copies of the three documents are attached to this affidavit marked Exhibits P10, Pll and P12.’ In the opposing the application, a counter-affidavit of eight (8) paragraphs, deposed to by Inyene Dorcas Ntuk (Miss), a counsel in the firm of the respondents counsel was filed on 5th June, 2012. Paragraphs 4(a) 5 and 6 which are relevant are reproduced as follows:- ‘4. (a) That from my perusal of the record of appeal and the documents exhibited to the supporting affidavit, I discovered the following:- (i) Out of the three (3) documents now sought to be tendered as additional evidence on appeal, only Exhibit 10 was pleaded by the applicants at the trial court ( in paragraph 14 of their statement of claim), though all the said documents pre-dated the trial. (ii) I have also seen that the said Exhibit P10 is a response to a letter by the applicants’ PAGE| 4 counsel informing him that the matter mentioned therein had been examined and that the Ife Area Planning Authority had been instructed to take appropriate action. It makes no reference to the subject matter of the dispute between the parties.’ (iii) Exhibits Pll and PI2 now sought to be tendered as additional evidence were not pleaded before the trial court. (iv) The said Exhibits Pll and P12 are dated 12/7/1976 and 14/7/1976 respectively; while the documents pleaded in paragraphs 21, 24, 26, 28 and 31 of the applicants Statement of Claim at the trial court are dated 23/6/90, 25/7/90, 5/6/95, 28/8/95, 1679/95; 10/9/95, 26/9/95 and 4/3/95 respectively. (v) There is nothing on the face of the documents sought to be tendered as additional evidence to show that they were ever used at the Customary Court. (vi) There is no stamp of the Customary Court on the said documents, neither do they bear any mark to show that they were tendered as Exhibits before the Customary Court. (vii) The additional evidence sought to be tendered are unnecessary, immaterial and have not placed before the Honourable Court any question or questions in controversy between the parties. (5) That I know as a fact that the appellants have not shown special circumstances why the new evidence sought to be admitted ought to be received. (6) That I know as a fact that the application is sought to overreach the respondent and is made in bad faith.’ The applicants counsel – Chief A. 0. Fadugba deposed to a further affidavit in support of the application at the Registry of the High Court of Justice, Ile-Ife on 6th November, 2012 and same was filed in the Registry of this court on 9th November, 2012. The Customary Court proceedings and judgment in one of the exhibits transmitted to this court was attached as PAGE| 5 Exhibit ‘A1’. Strenuous effort was made to explain the back ground facts leading to the dispute in respect of the contested strip of land – the subject matter of this appeal. I wish to point it out at this stage that this court should, for now, concentrate on the application to tender Exhibits P10, Pll and P12 as further /additional evidence which is before this court for a due determination. This court will not fall to the temptation of determining the real issue in the appeal by act of commission or omission upon the prompting of counsel/parties. In the appellants/applicants brief of argument, it was stated that the application was brought under Order 1 Rule 12 (2) of the Supreme Court Rules, 1999 (as amended). Chief A. O. Fadugba, learned counsel who settled the brief of argument, submitted that the documents sought to be tendered were not available during the trial of the appellants case before the trial court and the Court of Appeal. He maintained that the original letters had been tendered before the Customary Court in Suit No. 27/83 and as a result of movement of Customary Courts from one place to another, all the exhibits were lost and the duplicate copies were nowhere to be found from the Customary Courts registry despite diligent searches for same. He asserted that photocopies of the documents now found were given to the appellants. Learned counsel decoded two issues for determination as follows:- ‘7.01 Whether or not at this stage of the proceedings the three newly discovered documents which are very relevant for the just determination of the appeal pending before the Supreme Court can be tendered and admitted to form part of the Supreme Court Records of Appeal as additional further evidence for the consideration and just determination of the appeal. 7.02 Whether or not it is necessary to amend the brief of argument in view of the death of the 1st and 2nd appellants and the respondent and on (sic) the light of the newly discovery (sic) documents.’ Learned counsel observed that it is the appellants/applicants prayer that the three Photostat copies of the documents attached to the affidavit and the amended brief of argument be permitted to form part of the Records of Appeal. He submitted that the documents sought to be tendered as additional/further evidence are very relevant, credible and weighty and are for the just determination of the issue before this court. PAGE| 6 Leaned counsel further submitted that the documents are admissible in law. He maintained that once a document is admissible and even if it is not pleaded but supports the facts already pleaded and having regards to the nature of the claim, such document will be admitted not minding the fact that it was not pleaded. He cited the case of Abual v. BENSU (2003) 16 NWLR (Pt. 845) 59. Learned counsel submitted that in this matter, there are sufficient facts in both the pleadings as averred and evidence on record to justify the admissibility of the documents. He observed that the letters relate to the access road-in-dispute. He opined that if the three documents were available during the trial at the High Court or before the Court of Appeal, the judgments must have been different. He urged that the prayer sought be granted in the interest of justice. On the 2nd issue, learned counsel submitted that it is necessary to amend the appellants brief of argument as a result of the deletion and substitution of deceased parties to the suit. He observed that as a result of the discovery of the new documents to be tendered for consideration of this court, it would be necessary to make submission on them in the appellant’s brief of argument. On 12th November, 2012 when the application was argued before us, Z. O. Alayinde, Esq. appeared as counsel for the appellants/applicants. He made oral submissions and observed that the three documents now sought to be tendered were admitted as Exhibits at the Customary Court and marked thereat as Exhibits D, E and F respectively. He stated it clearly that there is nothing to indicate that Exhibits P10, Pll and P12 were recovered from the Customary Court. Learned counsel for the respondent referred to counter-affidavit of eight (8) paragraphs filed on 5th June, 2012. He submitted that admission of additional evidence like Exhibits P10, Pll and P12 must be done with extreme caution. He cited the cases of Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94 at 111 and Okpanum v. S.G.E (Nig) Ltd. (1998) 7 NWLR (Pt.559)537at 540. Learned counsel submitted that the documents, on their faces are not credible. He observed that PAGE| 7 Exhibit ‘A1’ attached to the further affidavit is not certified. He opined that it is worthless and made in an attempt to fill the gap. He felt that the filing of the further affidavit did not cure the defect in the application. Learned counsel submitted that the application is overreaching and will prejudice the respondent as the documents were not pleaded. He maintained that it will not assist the court to do justice. As well, learned counsel urged the court to refuse the application. Let me say it without any atom of equivocation that the tendering of documents in this court is subject to valid objection. This is because they cannot now be cross-examined upon unless this court assumes the whole role of the trial court. It is basic that admission of further evidence in this court is not granted as a matter of course. This court in the case of Esangbedo v. The State (1989) 4 NWLR (Pt. 113) 57 at page 67, per Nnaemeka-Agu, JSC stated the guiding settled principles as follows:- 1. It must be shown that the evidence could not have been obtained and, with reasonable diligence, used at the court of trial. 2. The court must be satisfied that the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. 3. The evidence must be apparently credible, though it need not be uncontrovertible. On the above principles, the cases of Asaboro v. Aruwaji (1974) 4 SC 119 at pages 123 – 125; Chairman, Board of Inland Revenue v. Rezcallah (1962) 1 All NLR 1 are of moment. It is also apt to observe that the Privy Council in Turnbull v. Duval (1902) A.C. 429 held that a new trial would not be ordered where the fresh evidence is a document which could have been obtained by discovery during the trial with due diligence. A party who has won a case at the trial court on the case brought to court by his adversary ought not normally be confronted with a new case on appeal simply because his adversary decided to bring his case in dribbles. See: the case of Queen v. Ohaka (1962) All NLR 505. I think that it will not be out of place to state another principle which I strongly feel is PAGE| 8 paramount in seeking to tender documents as additional /further evidence, as in this case. It is that such document must satisfy the dictates of the law of evidence. It is not an avenue for putting in a public document which ordinarily must be certified, but was not duly certified, as provided by the law. Let me further state a clear point which is also of moment in admissibility of documents in evidence in civil cases. It is that for a document to be admissible in civil proceedings it must not only be pleaded by a plaintiff so as to make the defendant know what to meet at the trial, it must also be relevant. The two requirements must be complied with conjunctively and not disjunctively. The cases of Oyediran v. Alebiosu 11 (1992) 5 NWLR (Pt. 249) 550 and Monoprix (Nig.) Ltd. v. Okenwa (1995) 3 NWLR (Pt. 183) 325 are of moment herein. I have carefully read over the statement of claim of the appellants a number of times. I am unable to trace where the three documents sought to be tendered as additional / further evidence have been pleaded. The learned counsel to the respondent is quite right on this point. He got it right when he submitted that the application is designed to overreach and same will prejudice the respondents; if granted from the blues; as it were. The above is not the end of the matter. The learned counsel for the respondent seriously raised objection to Exhibit ‘A1’ attached to the further affidavit filed by the applicants who seriously relied on it. He maintained that it was not certified. For Exhibit ‘A1’ to be admissible it must be duly certified by the appropriate officer of the court and it must be issued with the seal of the court as dictated by section 74 of the Evidence Act, 1990. See: International Merchant Bank (Nig.) Ltd. v. N. Abiodun Dabiri & Ors. (1998) 1 NWLR (Pt. 533) 284 at 298; Daily Times v. Williams (1986) 4 NWLR (Pt. 36) 526. Dobadina Family&Ors. (1969)1 NMLR 24. After all, certify, put simply, means to authenticate or vouch for a thing in writing. It may also be said to mean -to attest as being true or as represented. As Exhibit ‘A1’ did not contain the seal of the customary court, it failed to pass the test of due certification as dictated by the law and the heavy premium placed on it by the appellants/applicants appears to be to no avail. By virtue of section 110 of the Evidence Act, 1990 public documents must be duly certified before they can be admissible in evidence. This is a pronouncement of the Court of Appeal per Tobi, JCA (as he then was) in Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91 at 107. It was well made and I endorse same without any shred of hesitation. PAGE| 9 There is a point which needs to be reiterated at this juncture. On 12/11/12 when the appeal was heard, learned counsel for the appellants/applicants observed that the three documents sought to be tendered as further evidence were admitted as exhibits at the Customary Court in 1983 or thereabout. He thereafter stated it in clear terms that there is nothing to indicate that the documents were recovered from the Customary Court. It does not require that any one should put on a magnifying glass to view the desired exhibits and conclude that there is nothing on the faces of the documents to show that they were tendered and admitted as exhibits at the Customary Court. They were not. This significantly cast aspersion on the posture of the appellants/applicants. I do not want to say it that they embarked upon falsehood; all in a bid to get in those un-pleaded documents through the back door; as it were. I was not taken in by the ploy or gimmick embarked upon by the appellants/ applicants. No court of record should tolerate such a rather mundane practice. Viewed from any angle, the application for leave to tender the three documents as further evidence is doomed to end at a brick wall. The prayer fails and it is refused. Since the documents have been rejected the 2nd prayer to reflect them in the appellants brief of argument has no foundation to support it. The prayer was made to no avail. It is refused. In sum, the application as a whole lacks any iota of merit. It is hereby dismissed. The appellants/applicants shall pay N50,000:00 costs to the respondent. PAGE| 10 RULING (Delivered by Olukayode Ariwoola, JSC) The appellants herein had come up with an application filed on 07/06/2010 pursuant to Order 2 Rule 12(1) of the Supreme Court Rules 1999 (as amended). The application sought the following reliefs: (a) Leave to tender the attached three documents marked Exhibits P10, P11 and P12 as further evidence and form part of the records of appeal pending in the above named suit. (b) That the appellants brief of argument filed on 20/07/2005 be amended accordingly. (c) That the amended brief of argument with the attached Exhibits P10, P11 and P12 is dated (sic) 21st day of May, 2010 be deemed properly filed and served personally on Bamgboye Bello the new party to be substituted for respondent and Chief B. O. Omirefa the respondents solicitor. The applicants gave the following two grounds for seeking the said reliefs: (i) That three documents sought to be tendered as further evidence were not available during the trial of the above named suit and its appeal before the court below. (ii) That the three documents sought to be tendered and formed (sic) part of the records of appeal are the Government decision over the Access Road in dispute between the appellants Community and Ganiyu Elusoji-respondents father. This made the documents very relevant and may assist the Supreme Court to reach a just decision. In support of the application was an affidavit of 12 paragraphs. Attached to the affidavit are the three documents being sought to be tendered as further evidence in this court. The documents dated were marked as Exhibits P10, P11 and P12 respectively. PAGE| 11 The application was vehemently opposed by the respondent who filed a counter affidavit of 8 paragraphs. Ordinarily, and in particular, in criminal cases, even though the principle should be the same in civil cases, the courts lean against and are very reluctant in hearing fresh evidence on appeal. See; R Vs. Alexandar Campbell Mason (1923) 17 CR App. R. 160 R. Vs. Walter Graham Rowland (1947) 32 CR. App. R.29. However, in civil cases and in furtherance of justice, the court will permit fresh evidence in appeal in the following circumstances only:- (i) Where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial. (ii) Where the fresh evidence is such that if admitted would have an important, but not necessarily crucial effect on the whole case. (iii) Where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed. It needs not necessarily be incontrovertible. See; Attorney General of the Federation Vs. Mallam Modu Alkali (1972) 12 SC.20, Ukariwo Obasi & Anor Vs Eke Onwuka & Ors (1987) NWLR (Pt.61) 364, (1987) 7 SC (Pt.1) 233, Rt. Hon. Rotimi C. Amaechi Vs. INEC & Ors (2008) 5 NWLR (Pt.1080) 227, (2008) 33 NSCQR (Pt.1) 332. (2008) 1 SCM 26 (2008) LPELR 446. In Attorney General of the Federation Vs. Alkali (supra) this court, per Elias, CJN refused an application for leave to enable the appellant adduce further or additional evidence on appeal because it was contrary to Order 7 Rule 24 of the Federal Supreme Court Rules, 1961. The reason given by the then applicant for the non production of the Hire-Purchase Agreement sought to be tendered on appeal was the appellants witnesses inadvertence or gross negligence. In the instant case on hand, the applicants in their affidavit in support of the application had PAGE| 12 asserted that the three documents being sought to be tendered now in this court had earlier been tendered before the Customary court in suit No.27/83. The reason why they were not available for use before the trial High Court was inadvertence of the applicants from collecting the documents them from the Customary court. But that because the Customary Court had lost the original documents during its movements from one place to another, the documents were not available to be used before the two courts below. They claimed that the Customary court recently made available the photocopies of the said documents now being sought to be tendered. There is no doubt, these three documents being sought to be tendered are public documents said to be in custody of public officers of the Customary court. The law is clear on this issue, that every public officer having the custody of a public document which any person has a right to inspect shall give that person, on demand, a copy of it on payment of the prescribed legal fees, with a certification at the foot of the document, that it is a true copy of its original. The certification expected to be endorsed on the said copy shall be dated and subscribed by such officer with his name and his official title and shall be sealed. The copy of such document so certified are referred to as certified copies admissible in court. See; Section 104 of the Evidence Act. Justus Nwabuoku & Ors Vs Francis Onqwordi & Ors (12006) 8-9 SCM 247; (2006) 5 SC (Pt.111) 03; (2006) LPELR 2082. I have closely looked at the three documents attached as Exhibits P10, P11 and P12 being sought to be used before this court. They are photocopies of public documents but curiously there is no indication whatsoever that they emanated or were derived from the Customary court which has the custody of the original. They are simply not Certified copies of the original. As a result, they are simply not credible, to say the least. I am therefore not in the slightest doubt that this application failed to meet the circumstances pursuant to which this court can consider allowing the applicants to tender the three documents being sought to tender as further or additional evidence before this court. In the circumstance, and for the above short comment and the fully adumbrated reasons and conclusion of my learned brother, Fabiyi, JSC with which I am in total agreement and which I adopt as my own, I hold that this application is unmeritorious and should be dismissed.