ISA vs. AUDU(2022)LCN/16881 (CA)
*ISSUE:* ADDUCING FRESH/ADDITIONAL EVIDENCE ON APPEAL-Whether a misplaced document can be adduced as fresh evidence on appeal without condescending to particulars; Whether a document which is not admissible at the lower Court can be adduced as fresh evidence in the appellate Court
PRINCIPLE:*
“I will at this stage take a little excursion into the settled law on this issue and then apply the law to the facts in finally determining whether to grant this application or refuse it. As earlier mentioned, the law has laid down the conditions that must be satisfied before a Court can grant an application of this sort. In this respect, I find the case of Sharing Cross Educational Services Ltd. vs. Umaru Adamu Enterprises Ltd. (2020) LPELR-49567 (SC) very instructive where the apex Court held thus: “In ASABORO v. ARUWAJI (1974) 1 All NLR (Pt. 1) 140, this Court stated conditions/principles that must co-exist before a fresh evidence can be adduced on appeal. They are:
a) The evidence sought to be adduced must be such as would not have been, with reasonable diligence, obtained for use at the trial;
b) The evidence shall be such as if admitted it would have an important not necessarily crucial effect on the whole case;
c) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible;
d) The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the trial Court in favour of the applicant had it been available at the trial Court;
e) The evidence should be weighty and material as where evidence sought to be admitted is irrelevant and immaterial, it will be rejected.
Interestingly, the above principles/special conditions were also codified under Order 2 Rule 12 of the Supreme Court Rules (as amended in 2009). The said rule sets out the necessary steps to be taken by a party who wishes the Court to receive additional or further evidence of witnesses, whether they were or were not called at the trial Court or how to order the production of any document, exhibit or thing connected with the proceedings.”
From the above cases, the following are the conditions the Applicant will have to satisfy before an application to adduce additional evidence on appeal can be granted:
The evidence sought to be tendered could not have been obtained with reasonable diligence for use at the trial.
2. The evidence must be such that, if given, it would probably have an important influence on the outcome of the case.
3. The evidence must be such that is presumably believable, that is to say it is credible.
The above conditions are mutually inclusive and not exclusive. See Chief Amadi-Dike-Ogu & Ors. vs. Owhonda Frank Amadi & Ors. (2019) LPELR-47847; Williams vs. Adold Stamm International (Nig) Ltd. (2017) 6 NWLR (Pt. 1560) 1; Nwaogu vs. Atuma (2013) 10 NWLR (Pt. 1363) 591.
To succeed in this application, the Applicant must deliberately and intentionally make averment that can sway the Court to favour his application. When the affidavit evidence is bereft of facts, the Court cannot grant the application. See Muhammadu Buhari & Ors. vs. Chief Olusegun Aremu Obasanjo & Ors. (2003) 11 SC 74; Jolabon Inv. (Nig) Ltd. vs. Oyus International Company (Nig) Ltd. (2015) 18 NWLR (Pt. 1490) 30.
The question now is whether there is enough affidavit evidence from the Applicant to show that at the time the case was going on in the lower Court the documents sought to be tendered were not available or could not have been obtained with reasonable diligence. The duty is on the Applicant to show in his affidavit evidence that those conditions exist. The case of the Applicant is that he bought the land in dispute from one Alhaji Audu Dan Dingas and collected some documents from him bearing the name of Alhaji Baba Yaro. The reason given for why the documents could not be produced at the lower Court is that the Applicant, an old and blind man misplaced them which were later found by one of his children sometime in March, 2019 after the judgment had been delivered. This is the averment in paragraphs 7, 8 and 9 of the supporting affidavit. The Respondent in opposition averred that the Appellant had in the lower Court testified to the effect that he had not been given the documents that he now seeks to tender. How this submission supports the case of the Respondent as one of the grounds upon which additional evidence can be allowed on appeal is that the document was not available as at the time of the trial. The document clearly therefore could not have been obtained at the time of the trial. If the document was available and he was unable to present it, that makes it much more a difficult situation. If I take the averment of the Respondent in paragraph 3 (b)(c) of the counter affidavit, I will be sympathetic to the plight of the Applicant. I have looked at the record and at page 52 the Applicant only said the original has not been issued to him but that he has the photocopy. This means that, at the time of the trial, he had the photocopy of the document that is Exhibit E. He did not tender same before the lower Court. Will the Applicant be said not to have obtained that document and that it was not in existence at the time of the trial? I cannot in good conscience say so. The matter before the lower Court was filed on 27/7/2015, judgment was delivered on 23/10/2017. The documents sought to be adduced as additional evidence were issued to Alhaji Bala Yaro to whom the land was originally allocated to. All the documents bear the name of Alhaji Bala Yaro. They were all in existence as at when the matter was going on in the lower Court. They were in existence before judgment was delivered. The Applicant’s reason for why they were not tendered at the lower Court was that they were misplaced. This is the only reason as shown in paragraphs 8 and 9 of the supporting affidavit.
8. That, the Appellant/Applicant misplaced his receipts evidencing payment of ground rent to obtain Certificate of Occupancy in respect of the disputed land and as a result, did not tender same in evidence.
9. That, it was after the judgment of the trial Court sometimes in March, 2019 one of his children discovered the said receipts and dated 29/8/2005 and 22/2/2017 and the sketch plan of the disputed land, attached thereto is the said documents and marked as Exhibit “A”, “B”, and “C” respectively. He was asked to pay another ground rent in 2017 as he could not trace his receipt of payment dated 29/08/2005.
Looking at paragraphs 8 and 9 of the affidavit in support, it would appear that the receipt which was misplaced and intends to be present as additional evidence is “his” receipt of payment of ground rent. This is my understanding of those paragraphs. This is not a class in English language but when the word “his” is used, it is a personal pronoun, meaning that the receipt evidencing payment of ground rent has to be the receipt showing his name as the person who made the payment. The receipt tendered does not bear the name of the Appellant/Applicant’s name but rather the name of Alhaji Baba Yaro who was the original allottee. The ownership of the land has passed through several persons before it got to the Appellant/Applicant. I must at this point caution myself so that I do not delve into the substantive appeal at this interlocutory stage. The law does not allow me to do that. See Agwu & Ors. v. Julius Berger (Nig) Plc (2019) LPELR-47625 (SC); Cil Risk & Asset Management Ltd. v. Ekiti State Govt. & Ors. (2020) LPELR-49565 (SC); Oboh & Anor. v. N.F.L. Ltd. & Ors. (2020) LPELR- 55520 (SC).
The Applicant has shown that the documents he seeks to adduce as additional evidence were in existence at the time of the trial. He had them in his possession but somehow misplaced them but was conveniently found after the judgment had been delivered. Any party that is seeking for an order from a Court has the duty to ensure that he produce all material evidence before the Court to assist the Court in arriving at the decision one way or the other. When the affidavit evidence is bereft of material evidence, the Court will not grant the order sought. See Buhari & Ors. v. Obasanjo & Ors. (2003) 11 SC 74.
In the application before this Court, the Applicant only averred that he misplaced the documents. One material evidence missing in the affidavit evidence is, when did he discover that the documents were missing? This is material evidence needed to determine whether this application will succeed. In addition, there is need to show by way of affidavit evidence whether the Applicant was just careless or he genuinely misplaced the document within the period of the case. There is also need for evidence to show the documents were misplaced. The point I am labouring to make here is that, it is not just enough for the Applicant to state that he misplaced the documents he sought to present before this Court as additional evidence without stating material facts relevant to when and how they were misplaced. This omission in the affidavit in support is fatal to this application.
It is of interest that the Respondent’s Counsel submitted that, this application will fail since the documents sought to be tendered were not pleaded in the lower Court. This is an interesting argument that the Applicant’s Counsel did not respond to. The purpose of pleading and the law on unpleaded document is clear. The purpose of pleading is that a party must plead facts that he intends to rely on in the case so that the other party is not taken unawares. Parties therefore, are bound by their pleadings and evidence adduced not based on pleading will be discountenanced. The apex Court drove home this point in Apena & Anor. v. Aileru & Anor. (2014) 6-7 SC (Pt. III) 58 where it was held: “The purpose of pleading is to give the other side at the earliest opportunity, the case the other side is to meet. It is important to state further that there cannot be a better notice of the case a party intends to make than his pleadings. It is a notice and can never be substituted for the evidence required in proof of the facts pleaded, subject however to an admission made by the other party. I need to emphasize also that evidence led at the trial which is at variance with the pleadings goes to no issue and must be rejected or discountenanced. See Anyah V. African Newspapers of Nig. Ltd. (1992) 7 SCNJ 47; Obmiami Brick & Stone Nig. Ltd. V. African Continental Bank Ltd. (1992) 3 NWLR (Pt. 229) 250; American Cyanamid Company V. Vitality Pharmaceuticals Ltd. (1991) 2 NWLR (Pt. 171) 15.”
I must also hasten to add that unpleaded document and evidence goes to no issue and even if such evidence is admitted, an appellate Court can expunge same. This is the decision of the apex Court in Otaru & Sons Ltd. v. Idris & Anor. (1999) 6 NWLR (Pt. 606) 330 where it was held: “…Surely, no Court has the power to allow inadmissible evidence to be led in respect of unpleaded facts because such evidence goes to no issue. The Court ought to ignore such evidence. And, in any event, an appellate Court should remedy such error by expunging or ignoring such evidence. It offends the rules of pleadings for any Court to act on evidence of unpleaded facts. See Ekpenyong v. Nyong (1975) 2 SC 71 at 80-81.”
The Applicant in his pleading did not expressly or impliedly plead the documents he intend to bring in as additional evidence in this appeal. I am not unaware that the Appellant/Applicant in his pleading is not under obligation to specifically plead the document but he must plead relevant facts relating to the document. The Applicant in the lower Court only pleaded that he bought the land, surveyed same, and putting a fence therein. That is where his pleading stopped. No mention was made of the Certificate of Occupancy or Right of Occupancy in the name of Alhaji Baba Yaro. I am in agreement with the Respondent’s Counsel that the Applicant’s Counsel did not plead the documents he sought to tender as additional or fresh evidence in his 23 paragraphs Statement of Defence found at pages 10-13 of the record. It was the Respondent’s Counsel that made mention of “Application for the grant of a right of occupancy dated 21/9/1989 bearing the name of Alhaji Bala Yaro”. This was stated in paragraph 4 of the Statement of Claim. All other documents were not mentioned.
I do not think that a Court will allow a document that is not pleaded to be adduced as additional evidence. This is because a document which is not admissible at the lower Court cannot be looked at in the appellate Court. In such a situation, this Court cannot peruse such a document to determine whether it is important or credible in assisting the Court in the appeal. It is only a document that is admissible before the Court which the Court can look at before the Court can determine its credibility. In Adejumo & Ors. v. Eboda & Anor. (2019) LPELR-47885 (CA), this Court held in this regard as follows: “It is trite that a Court of law does not act on inadmissible documentary evidence. See ABUBAKAR V. CHUKS (2007) 18 NWLR (PT. 1336) 389; NWAOGU V. ATUMA (2013) 11 NWLR (PT. 1364) 177 and AROMOLARAN V. AGORO (2014) 18 NWLR (PT. 1438) 153. The law is that a Court cannot base its decision on a document not pleaded or evidence not given on it. A document not pleaded, in law goes to no issue and document pleaded which no evidence is adduced upon is deemed abandoned.”
I refer to one more case in this regard. This is the Supreme Court case of Nwaogu v. Atuma & Ors. (2013) LPELR-20667 (SC) where it was held: “It is now trite that a document that is inadmissible in law is invalid for all intents and purposes. It cannot form the basis of any competent finding of a Court of record. Where the law declares a document, like Exhibit EA3 inadmissible, it cannot be admitted in evidence even where there was no objection or even where the parties consent to its admission. See: Alao v. Akano (supra) at page 175 and Olukade v. Alade (supra)”
Since the documents sought to be adduced as additional evidence were not pleaded at the lower Court, they are not admissible and therefore they cannot be smuggled in by way of this application.
The affidavit evidence of the Applicant is weak as it is bereft of material facts to satisfy the condition of special circumstances. The Appellant/Applicant’s Counsel could not surmount the uphill task. All the documents sought to be adduced as additional evidence were in existence at the time the trial was before the lower Court and more so the documents are not bearing the name of the Applicant which means there was no nexus between the Applicant and Alhaji Bala Yaro. I however looked at the record to get the nexus, even at that the affidavit evidence is not strong enough to warrant granting this application. This application fails and it is dismissed.
I award N50,000 cost in favour of the Respondent.” Per TOBI, JCA.