Statoil Nigeria Limited V. Inducon Nigeria Limited & Anor (2018)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

This is an interlocutory appeal by the appellants against the Ruling of the Court of Appeal, Lagos Division (the Court below herein), delivered on the 12th of March, 2012 in Appeal No. CA/L/284/2011, between the parties herein. The Court below dismissed the appellant’s application of 7th March, 2011 wherein it sought leave of the Court below to adduce further evidence. That dismissal of the appellant’s application by the Court below is the subject matter of this appeal.

SUMMARY OF FACTS

By a writ of summons of 22/2/2010, the (plaintiffs) respondents (herein), instituted an action against the (defendant) appellant (herein), at the Federal High Court, Lagos (trial Court), alleging that:

a) “Sometime in 1979, the Federal Government of Nigeria nationalized all the assets and interest of British Petroleum Company Limited (BP) and British Petroleum were compelled to leave Nigeria.

b) In 1990, BP informed the respondents that it was interested in pursuing opportunities in the Nigerian Oil Industry in alliance with the appellant.

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c) The respondents were retained by the alliance to negotiate its entry into the Nigerian oil industry.

d) The respondents succeeded in bringing the BP/Statoil alliance into Nigeria in 1991 further to which the Alliance applied for and was granted some concession acreage.

e) It was agreed that the respondents’ consideration for services rendered to the alliance would include “a leasehold interest in the concession expressed as a net profit interest in the production from any oil mining lease allocated to the alliance pursuant to the efforts of the plaintiffs.”

f) BP confirmed the agreement of the parties by assigning a 1.5% leasehold interest and thereby executing a formal Net profit interest agreement with the respondents.

g) The appellant has however refused to fulfill its obligation by executing a similar Net Profit Interest Agreement with the Respondents.”

The plaintiff then sought several reliefs from the trial Court including:

A declaration that the respondents are the assignees of a leasehold interest or Net Profit interest of 1.5% out of the appellant’s interest in the Agbani field in consideration of the business development successes it achieved for

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the appellant.

b. A declaration that the respondents are entitled to a Net Profit interest of 1.5% in any and all of the appellant’s oil and gas interests resulting from the business development efforts of the respondents.

Other reliefs sought by the plaintiffs/respondents were ancillary to the aforestated two reliefs. The defendant/appellant filed an amended Statement of Defence dated 25th May, 2010, denying the allegations in the amended statement of claim and respondents’ entitlement to the reliefs sought. They also filed a reply dated 11th June, 2010. Thus, issues were joined by the parties. At the end of trial, the trial Court delivered its judgment on the 6th of December, 2010 wherein it gave judgment for the respondents. Aggrieved by the trial Court’s judgment, the appellant appealed to the Lagos Division of the Court of Appeal (Court below) seeking to set aside the judgment of the trial Court.

Meanwhile, the appellant filed its brief of argument on 7/3/2011 in the Court below and thereafter filed an application on the same date seeking the leave of the Court below to adduce or rely on further evidence under Order 4 Rule 2 of

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the Court of Appeal Rules, 2011. Affidavits in support and counter affidavits were filed and exchanged by the parties.

On the 2nd of February, 2012 the Court below took arguments from learned counsel for the respective parties on the application for leave to adduce further evidence and adjourned ruling to the 12th of March, 2012. On the 12th of March, 2012, the Court below delivered its Ruling in which it dismissed the application for leave to adduce further evidence.

On 23rd of March, 2012, the appellant brought an application seeking leave of the Court below to appeal against its Ruling dismissing the application for leave to adduce further evidence. Leave was granted to the appellant by the Court below, hence this interlocutory appeal.

In the brief of arguments filed and exchanged, the parties set out their respective issues for the determination of the appeal. Learned senior counsel for the appellant formulated the following issues:

1. “Whether the Affidavit in support of the application disclosed special circumstances which necessitated the grant of the application (Ground(s) 1 and 3).

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Whether the appellant’s application to adduce further evidence was tantamount to making a fresh case on appeal and the only remedy open to the appellant was to appeal against the judgment of the trial Court (Ground 2).”

For the respondent, a Preliminary Objection was raised on the incompetence of the appeal and that same should be struck out. In the alternative, however, the learned senior counsel for the respondents formulated the following sole issue for determination, viz:

“Whether, in view of the facts and circumstances of this case, the Court of Appeal (lower Court) was right when it dismissed the appellants application for leave to adduce further evidence on appeal (Distilled from Grounds 1, 2 and 3 of the Grounds of Appeal).”

Now, what is the Preliminary Objection about In his brief of argument, learned counsel for the respondents gave the grounds which make the appeal incompetent and should be struck out, in paragraph 3.1 of page 12 of the brief as follows:

“3.1 Invitation to the Supreme Court to Determine issues in Substantive Appeal while Determining Interlocutory Appeal.”

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Learned SAN submitted that it is settled law that a Court should not at an interlocutory stage of a case make pronouncements that would affect or decide issues which are to be determined at the hearing of the substantive case. Several decided cases were cited including: AP PLC v. Adeniyi (2011) 15 NWLR (Pt.1271) 560 at 586; Group Danone v. Voltic (Nig.) Ltd. (2008) 7 NWLR (P1.1087) 637. Learned senior counsel submitted that in the instant case, relief 2 in the appellant’s Notice of Appeal dated 11th February, 2014 seeks to invoke the powers of this Court under Section 22 of the Supreme Court Act to evaluate the further evidence it seeks to adduce, and consequently set aside the findings and orders of the two lower Courts made against the appellant which it has appealed against in the substantive appeal before this Court in SC.411/2012. The appellant, it is further submitted, concedes that some of the points raised in its brief have been appealed to this Court in the substantive appeal. Learned SAN submitted further, appellant’s arguments in paragraphs 2.23, 2.32, 2.33,2.48 and 2.60 of its brief to the effect that the trial Court made some findings suo motu or that it granted some reliefs that were not

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sought, are not issues for determination between the parties in this interlocutory appeal. They are issues for the substantive appeal and that this Court ought not to pronounce on, or determine those issues at this stage. There was no prior order which consolidated this interlocutory and the main appeals. Furthermore, the two appeals arose from different decisions of the Court below; other applications are pending in the substantive appeal which have not been determined etc. The substantive appeal is not ripe for hearing as no briefs of argument have been filed. Hence, the conditions precedent for this Court to invoke its general powers under Section 22 of the Supreme Court Act have not arisen. It is learned senior counsel’s contention that the only real issue in controversy between the parties in this interlocutory appeal is the lower Court’s dismissal of the appellant’s application for leave to adduce further evidence on appeal. This appeal, it is argued, is an abuse of the judicial process and ought to be dismissed.

In response to the respondent’s Preliminary Objection, the learned SAN for the appellant filed an amended reply brief of 52 pages.

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This to me, indeed, strange! It is strange because, the appellant’s original brief of argument was of 25 pages. The respondents’ brief of argument was of 62 pages! Perhaps this is what prompted the learned senior counsel for the appellant to go a wild goose chasing in an attempt to answer almost all points raised by the respondent, making the reply brief to look unnecessarily verbous. The aim of a reply brief is to respond in a concise form, new points of law raised by the respondent and not a re-argument of the appeal. Be that as it may, the learned SAN for the appellant replied on the competence of relief 2 in the appellant’s Notice of Appeal that even if this Court considers appellant’s relief 2 incompetent, the flaw would not be the basis for dismissing the entire appeal.

On the issue of the trial Court making findings suo motu or granted reliefs that were not sought, the appellant replied that there is no argument anywhere in its brief that the trial Court granted reliefs that were not sought. Appellant conceded making the point that the trial Court raised issues suo motu.

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On the facts and circumstances this Court need to consider in the determination of application to adduce further evidence, such facts and circumstances, the learned SAN, argued, would not amount to delving into substantive issues in the course of interlocutory proceedings.

On the issue of abuse of Court process, learned SAN for the appellant urged that we should discountenance all the submissions by the respondents on abuse of Court process as the submissions are out of place and grossly misconceived. On the point of raising fresh points which did not arise from the Ruling of the lower Court, it is argued that all the arguments of the appellant relate to issues that arise from the Ruling of the lower Court. Learned SAN for the appellant urged that the Preliminary Objection lacks merit and should be dismissed.

My Lords, narrowing the voluminous submissions made by both senior counsel on the Preliminary Objection, two main points were raised and addressed by them: (i) Invitation to the Supreme Court to Determine issues in Substantive Appeal while Determining Interlocutory Appeal. (ii) Raising Fresh Arguments on Appeal without Prior Leave of Court.

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The two points, happily, are such that almost all the superior Courts of record, especially this Court, have made several pronouncements in settlement of their guiding principles. In case of determining issues in substantive appeal while determining interlocutory appeal, although the learned SAN for the appellant does not believe that this appeal is interlocutory in nature (paragraph 2.12 of his amended reply brief) filed on 30/9/14, wherein he said:

“Another flaw in the plaintiff/respondents’ argument in this regard is that they have erroneously assumed that this appeal is an interlocutory proceeding. This appeal is however not interlocutory proceeding but is rather a separate and distinct appeal from SC/411 which is the appeal against the final judgment of the lower Court. The fact that identical issues have arisen in two separate and distinct appeals does not raise a scenario where substantive issues are determined in interlocutory proceedings.”

(Underlining for emphasis)

It is my humble findings that the issues pointed out by the respondents that appellant’s arguments on the point that the trial Court made findings suo motu or granted reliefs that were not sought as contained in paragraphs 2.23, 2.32, 2.33,

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2.44, 2.48 and 2.60 of the appellant’s brief relate to substantive issues in the main appeal, specifically in Grounds III, IV, V, VI, VII, IX, XII, XIV, XV, XVI, XVII and XVIII of the appellant’s Notice of Appeal in SC/411, that the appellant has not argued anywhere in its brief that the trial Court granted reliefs that were not sought. And, on the point that the trial Court made findings suo motu.

I think it only draws this Court’s attention to the facts and circumstances that should be considered in determining the application to adduce further evidence which does not amount to delving into substantive issues in the course of interlocutory proceedings. In almost a similar situation, this Court considered the point raised above elaborately. Thus, in Aroh v. PDP (2013) 13 NWLR (Pt.1371) 247, the appellant, therein, commenced proceedings at the trial Court by originating summons. The respondents filed a Preliminary Objection to the Originating Summons and this objection was heard by the trial Court together with the Originating Summons. In the judgment, the trial Court held that the facts of the case were seriously in dispute and that the conflicting

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affidavits of the parties cannot be resolved without calling oral evidence. The trial Court therefore ordered the parties to file pleadings.

Thus, the Court of Appeal is entitled to apply the principles for the grant of leave to adduce fresh evidence to the facts of the case which does not necessarily mean applying at interlocutory stage facts in a substantive matter. Just as in Aroh’s case (supra) the fact that the learned trial judge, in the appeal on hand, raised issues suo motu in relevant facts in determining whether the Court below exercised its discretion judiciously in refusing the appellants request for leave to adduce further evidence, would not, in my view, amount to deciding the issue in a substantive appeal as it were. Courts are enjoined not to decide the merits of substantive cases/issues at interlocutory stage.

See Aroh v. PDP (supra); A.P. Plc v. Adeniyi (2011) 15 NWLR (PT. 1271) 560; Group Danone v. Voltic Nig. Ltd. (2008) 7 NWLR (Pt.1087) 637; Akapo v. Hakeem Habeeb (1992) 6 NWLR (Pt.247) 266; Dingyadi v. INEC No. 2 (2010) 18 NWLR (Pt.1224) 145; Omnia (Nig.) Ltd. v. Dyktrade Ltd. (2007) 15 NWLR (Pt.1058)76.

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On the point of raising fresh issues or arguments on appeal without prior leave of Court, it is trite law that a party can argue or raise fresh points on appeal before an appeal Court where such a party has sought and obtained the prior leave of that appeal Court. See: Elugbe v. Omokhafe (2004) 18 NWLR (Pt.905) 319; Olalomi lnd. Ltd. v. NIDB Ltd. (2009) 16 NWLR (Pt.1167) 266; Tiamiyu v. Olaogun (2008) 17 NWLR (Pt.1115) 86. Thus, where leave of Court is required, such a leave becomes a condition precedent.

The Preliminary Objection lacks merit. It is hereby dismissed.

Now turning to the appeal under consideration, I prefer to go along the lone issue formulated by the respondent which is more relevant to the principal issue posed by the applicant in the application for leave to adduce further evidence on appeal. The issue is comprehensive enough such that it covers, in my view, both issues formulated by the learned SAN for the appellant.

My Lords, as seen earlier in the introductory part of this judgment, the issue the Court below was confronted with was an application which was filed by the appellant on the

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7/3/2011 for leave of that Court to adduce or rely on further evidence under Order 4 Rule 2 of the Court of Appeal Rules, 2011. That application was dismissed after hearing by the Court below. In dismissing the application, Ogunwumiju, JCA held as follows:

“Usually such evidence would not be controversial evidence. For example where forensic evidence is later discovered that would exculpate a convict or in civil matters documents not available are discovered that would have had an impact on the decision of the trial Court. That is why one of the guiding principles is that the application must be made in the interest of justice of the whole case rather than the interest of the applicants as in the circumstances of this case.

The applicants cannot be allowed to make a fresh case on appeal by adducing fresh evidence. The appellate process is to review what had been done by the trial Court and to make orders the trial Court should have made. The applicants have not adduced any special ground as contemplated by Order 4 Rule 2. All the circumstances as enunciated by the Supreme Court must be present to make or constitute special grounds.

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This is moreso when the evidence was available before/during the trial at the trial Court. See: Asaboro v. Aruwaji (1974) 4 SC.119; Akanbi v. Alao (1989) 3 NWLR (Pt.108) page 118; Okulate v. Awosanya & Ors (1990) 5 NWLR (Pt.l50) page 340.

It is my view that the circumstances of this case particularly the reasons given for the application cannot sustain the prayers to adduce further evidence on appeal. In the circumstances, the application filed and dated 7th March, 2011 is hereby dismissed as completely unmeritorious.”

The submission of learned SAN for the appellant is that it was clear from the appellant’s affidavit that when the application was filed, trial had been concluded and the evidence to be adduced was not in respect of events that had occurred after trial. Thus, the appellant would be entitled to adduce further evidence only where there are special grounds for the grant of the application. Learned SAN cited the case of Okoro v. Egbuoh (2006) 15 NWLR (Pt.1001) 1 at 22 F – H; that if the Court below had appropriately applied the principles stated in Okoro’s case (supra) to the facts in the appellant’s affidavit, it should have found that there were special grounds for the grant of the application.

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While responding, learned SAN for the respondent submitted that this Court has consistently laid down certain conditions that must be conjunctively satisfied by an applicant seeking the leave of the lower Court to adduce further evidence. He cited in support, the case of Aroh v. PDP (2013) 13 NWLR (Pt.1371) 235.

My Lords, both senior counsel in this appeal, are in agreement that the guiding principles for the grant to an applicant, leave to adduce further evidence and or rely on same include the following:

i. The evidence sought to be adduced should be such that it could not have been obtained with reasonable care and diligence for use at the trial.

ii. If the fresh evidence is admitted it would have an important but not necessarily crucial effect on the whole case.

iii. If the evidence sought to be adduced is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible.

iv. Additional evidence may be admitted if the evidence sought to be adduced could have influenced the judgment at the lower Court in favour of the applicant if it had been

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available at the trial Court.

v. The evidence must be material and weighty even if not conclusive. Where the evidence sought to be adduced is immaterial and irrelevant it will be rejected.

The above conditions/principles of the law must be conjunctively complied with by an applicant. See: Gazu v. Nyam (1998) 2 NWLR (Pt.538) 477 at 493; Okpanum v. SGE (Nig) Ltd. (1998) 7 NWLR (Pt.559) 537 at 546 – 547 Asaboro v. Aruwaji (1974) 4 SC 119; Owata v. Anyigor (1993) 2 NWLR (Pt.276) 380 at 393 D – G. The conditions must co-exist before the Court could exercise its power to grant leave for calling of fresh or new evidence on appeal. In the instant appeal, the Court below (as seen above) (pages 2398 to 2402) of Vol.6 of the Record of Appeal, considered the provisions of Order 4 Rule 2 of the Court of Appeal Rules, 2011, before it dismissed the application.

My Lords, it is the same scenario that is repeating itself in the application under consideration in this appeal. Supreme Court Rules, 1985, as amended, Order 2 Rule 12(1) makes similar provisions to Order 4 Rule 2 of the Court of Appeal Rules. The Rules provide as follows:

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“12(1) A party who wishes the Court to receive the evidence of witnesses (whether they were or were not called at the trial) or to order the production of any document, exhibit or other thing connected with the proceedings in accordance with the provisions of Section 33 of the Act, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal.

(2) The application shall be supported by affidavit of the facts on which the party relies for making it and of the nature of the evidence or the document concerned.

(3) It shall not be necessary tor the other party to answer the additional evidence intended to be called but if leave is granted the other party shall be entitled to a reasonable opportunity to give his own evidence in reply if he so wishes.”

From the above, one can easily say that the requirements/conditions set by the Rules of Court (which are meant to be obeyed) are similar with those provided by decided authorities.

My humble understanding of the legal terms used in the conditions/principles of the law as set out above, such as: “reasonable care” connotes such a degree of care,

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precaution, or diligence as may fairly and properly be expected or required, having regard to the nature of the action, or of the subject matter and the circumstances surrounding the transaction in reference. “Diligence” refers to vigilant activity; attentiveness, alertness or care of which there are infinite shapes from the slightest momentary thought to the most vigilant anxiety. Attentive and persistent in doing a thing; steadily applied, active sedulous, laborious, unremitting and untiring. One may even add that “due” or “reasonable” diligence can portray a fair, proper and due degree of care and activity, measured with reference to the particular circumstances such diligence, care or attention as might be expected from a man of ordinary prudence and activity. This will mean, in relation to an application for leave to adduce further evidence that the applicant must establish that he could not obtain or get hold of the fresh/new evidence inspite of his frantic effort to procure, acquire or get possession of it with fair vigilance and prudence before or during the trial of the case having regard to the nature of the action or of the subject matter of the suit and the

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circumstances surrounding the transaction. In other words, the fresh/new evidence was not available to the applicant before or during the trial inspite of having made frantic efforts to get the evidence with reasonable care and diligence.

In the instant appeal, there is a finding by the Court below, after considering the reasons given by the appellant in its affidavit evidence in support of the application, that the documents sought to be tendered as fresh/new evidence were available to and in custody of the appellant before or during the trial of the matter but, it failed, refused or neglected to produce them. By way of an instance, among several others, the appellant was found to have conceded in paragraph 13 of the Fourth Affidavit of Helge Haland, sworn to on the 4th of July, 2012, in support of the application to adduce further evidence where he stated among other things, as follows:

“Dr. Abebe says in his counter affidavit in opposition to the appellant’s application to adduce further evidence that all the documents sought to be adduced were created between 1996 and 1999 could have been adduced at the trial in the

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lower Court in June, 2010 and that the parties were given ample and opportunity time (sic) to prepare their cases. These are true but irrelevant.”

(Underlining for emphasis)

Further to the above, close and meticulous consideration of the record of appeal, reveals that the third Affidavit of Helge G. Haland, sworn to on 7th of March, 2011, in support of the application for leave to adduce further evidence, and all the fresh” documents which the appellant sought to be adduced at the lower Court, are documents or matters which existed and pre-dated the writ of summons and indeed the trial of the case. They were available and were in the custody of the appellant before and even during the trial and the appellant had unrestricted access to the documents. The appellant could have used them at the trial if reasonable care and diligence were exercised by him. Thus, it can safely be said that the appellant deliberately withheld or excluded the said documents from the trial. Further instances show that some of the documents sought to be adduced on appeal were signed by one Mr. Gbenga Biobaku (Pw4) but such documents were not tendered or even mentioned in evidence.

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The law, my Lords, has severally been stated that fresh evidence must have the quality of newness, or the feature of having become newly available and obtainable. It means practically the same sort of evidence as that upon when a new trial would in the ordinary course, be granted; it must relate to something which has happened since the former hearing or trial. It must be evidence which has come to the knowledge of the party applying since that hearing or trial and which could not by reasonable means have come to his knowledge before that time. It must amount to what was called in the old forms of pleadings RES NO VITER AD NOTIRAM PERVENTA. It is thus, erroneous to suppose that fresh evidence means or includes evidence which could have been called, but which was not called at the first hearing. It would be monstrous to suppose that a party could abstain from calling evidence, and could thereafter proceed to make application upon application, as in this matter, based on evidence which could have been tendered in the first instance. See: Anatogu v. lweka II (1995) 8 NWLR (Pt.415) 547.

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Call it by whatever expression: “new evidence”, “fresh evidence”, “further evidence on appeal,” once an applicant has deliberately refused, failed, neglected, obliterated, to call it in evidence at trial stages once he had the opportunity to do so, such proposed evidence may hardly find its way into the main body of evidence that finally makes up the case.

Several exhibits such as “STAT6 (iv)” STAT 6(viii); “STAT 6(xi) were annexed to confirm the formation, existence and carrying on of business of partnership between the appellant and British Petroleum (BP). Could these documents be said to be non-existent, or could not be accessed with reasonable diligence Certainly, no!

I applaud the decision of the Court below more particularly where it emphasised one of the conditions for the grant of such applications that it considered the interest of justice of the whole case rather than the sole interest of the “applicant.”

My Lords, this Court once observed and sounded a strong warning to all and sundry that allowing defendants to call fresh evidence on appeal is a step that will definitely do injury not only to the plaintiffs/appellants but violence to our long line of decisions on this branch of the law.

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The question now is, is it really in furtherance of justice to fly in the face of all these decisions and thus, cause confusion in the law My answer will be: Stare decisis et quilta non movere. It will certainly be in furtherance of consistency in our laws (and therefore of justice) to stand by our previous decisions on this aspect of the law. We need to remind ourselves as well, that the grant of such applications purely rests with the discretion of the Court. In grant of application for leave to adduce further/fresh/new evidence on appeal, the discretion is one to be exercised glaringly or sparingly.

Permit me my Lords, to conclude with the wise advice given by my learned brother, Oguntade, JSC (Rtd.) in the case of UBA Plc v. BTL Industries Ltd. (2005) 10 NWLR (Pt. 933) 356 at 371, where he stated:

“Human experience shows that we often get wiser after an event. When judgment has been given in a case, parties with the advantages of what the Court said in the judgment get a new awareness of what they might have done better or not have done at all. If the door were left open for everyone who has fought and lost a case at the Court of trial to bring

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new evidence on appeal there would be no end to litigation and all the parties would be the worse for that situation.

There is no doubt that there is a jurisdiction and power in the Court to allow fresh evidence on appeal but it is a power which has been used only in exceptional circumstances.

Finally, I find no merit in this appeal which I dismiss. I affirm the decision of the Court below which found no merit in the application filed and moved before it on the 7th of March, 2011 and subsequently, for leave to the appellant (applicant, then) to adduce further evidence on appeal. Each set of respondents is entitled to N500, 000.00 (Five Hundred Thousand Naira) costs from the appellant.

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SC.412/2012