➥ CASE SUMMARY OF:
Folarin Rotimi Abiola Williams & Anor. v Adold/Stamm International Nigeria Limited & Anor. [2017] – SC
by B.C. “PipAr” Chima
➥ COURT:
Supreme Court – SC.404/2013
➥ JUDGEMENT DELIVERED ON:
Friday, 13 January 2017
➥ AREA(S) OF LAW
Admission of fresh evidence;
➥ NOTABLE DICTA
⦿ SETTLED PRINCIPLES WHICH GUIDE THE COURT WHETHER TO ADMIT FRESH EVIDENCE
As rightly submitted by learned counsel for both parties, there are settled principles, which guide the Court in determining whether to grant leave to adduce fresh or further evidence. They are, inter alia, as follows: (a) The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial, or are matters which have occurred after judgment in the trial Court. (b) In respect of other evidence other than in (a) above, as for instance, in respect of an appeal from a judgment after a hearing on the merits, the Court will admit such fresh evidence only on special grounds. (c) The evidence should be such as if admitted, it would have an important, not necessarily crucial effect on the whole case; and (d) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible. See: Asabaro vs Aruwaji (1974) 4 SC (Reprint) 87 @ 90 – 91: Akanbi vs Alao (1989) 3 NWLR (Pt.108) 118@ 137 – 138 H – B: Esangbedo vs The State (1989) 4 NWLR (Pt.113) 57 @ 67 A-C. — K.M.O. Kekere-Ekun, JSC.
⦿ ADMISSION OF FRESH EVIDENCE ON APPEAL MUST BE BY CAUTION
The power to admit new, fresh or additional evidence must always be exercised sparingly and with caution. The Court must consider whether there are special circumstances to warrant the grant of the application and whether it would be in furtherance of the justice of the case. See: Uzodinma vs Izunaso (No.2) (2011) 17 NWLR (Pt. 1275) 30 @ 55 B-C. — K.M.O. Kekere-Ekun, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Kudirat Motonmori Olatokunbo Kekere-Ekun, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Chris Eneje, Esq.
⦿ FOR THE RESPONDENT
Chima Okereke, Esq.
➥ CASE HISTORY
The appellants/respondents without filing a defence to this suit at the trial Court filed an application seeking to refer this action to an arbitration pursuant to an arbitral Clause contained in Rescission/Family Agreement. It is now being contended that the said family agreement has been rescinded hence the application to reply on the purported rescission in this Court as fresh and further evidence through this application. The learned trial Judge on the 26/7/2007 dismissed the said application for lacking in merit and on appeal, the Court of Appeal, Lagos Division dismissed the appeal on the 1st day of March, 2013 and of note is that whilst the appeal at the Court of Appeal was pending, the 1st respondent/applicant said it became in possession of the WILL of late Chief F. R. A. Williams SAN, CFR dated the 22nd day of June, 1954 which is now sought to be admitted as fresh evidence in this application as Exhibit AB/16.
This is a motion on notice dated 7/11/2013 but filed on 8/11/2013 pursuant to Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Sections 22 and 29 (b) of the Supreme Court Act, Cap S15, Laws of the Federation of Nigeria, 2004, Order 2 Rule 12 (1) and (2) of the Supreme Court Rules (as amended in 1999) and under the inherent jurisdiction of this Honourable Court.
It is filed on behalf of the 1st respondent/applicant and seeks the following reliefs:
1. AN ORDER of this Honourable Court granting LEAVE to the 1st respondent/applicant to produce and tender documentary evidence as fresh evidence for the fair and just determination of this appeal;
2. AN ORDER of this Honourable Court admitting in evidence the bundle of documents captioned “ADDITIONAL EVIDENCE” as further and/or fresh evidence in this appeal, and also to allow the said further and/or fresh evidence form part of the Record of Appeal for the hearing and determination of this appeal;
3. AN ORDER of this Honourable Court deeming the aforesaid further and/or fresh evidence as evidence properly before this Honourable Court for the fair and just determination of this appeal.
The grounds for the application as stated on the face of the motion paper can be summarised as follows: That the documentary evidence sought to be introduced was not available to the applicant during the proceedings at the lower Courts; that the documents are material and relevant and go to the root of the issue before this Court and that their admission would assist this Court in arriving at a just and fair resolution of the appeal.
➥ ISSUE(S) & RESOLUTION
[PRELIMINARY: OVERRULED]
I. Whether the 1st respondent/applicant’s written address filed on 16th November 2015 should not be discountenanced same having not been signed by a legal practitioner known to law.
RULING: THE COURT RULED THAT WRITTEN ADDRESS WAS PROPERLY SIGNED.
A. There is no doubt that it has been held in a plethora of decisions of this Court and it is now firmly settled that a Court process that is not signed by a legal practitioner whase name appears on the roll of legal practitioners and who is entitled to practice as a barrister and Solicitor as provided for in Sections 2 and 24 (2) (1) of the LPA Cap. 111 LFN 2004 is incompetent and liable to be struck out. See: Oketade vs Adewunmi (supra); Okafor Vs Nweke (supra): F.B.N. Plc. Vs Maiwada (2013) 5 NWLR (Pt. 1348) 1433. ln S.L.B. Consortium Ltd. Vs N.N.P.C. (2011) 9 NWLR (Pt. 1252) 317 @ 331 B-332A, this Court affirmed its earlier decision in Registered Trustees of Apostolic Church Lagos Area vs Rahman Akinde (1967) NMLR 263 and held that a process prepared and filed in Court by a legal practitioner must be signed by the legal practitioner, and it is sufficient signature if the legal practitioner simply writes his own name over and above the name of his/or firm in which he carries out his practice.
B. On page 14 of the applicant’s written address, at the bottom of the page, the handwritten name, LADI WILLIAMS’ appears above two names, Chief Ladi Rotimi Williams, SAN and Chris l. Eneje. The grouse of the respondents appears to be that there is no mark beside either of the two names to identify which of then signed the process. In the instant case, the name LADI Williams, though handwritten, is very clear and legible. The respondents are not contending that Chief Ladi Rotimi Williams, SAN is not the same person as LADI WILLIAMS who signed the process or that the person who signed the process is not a legal practitioner whase name is on the roll of legal practitioners entitled to practice law in Nigeria. l am satisfied that there is no doubt as to who signed the process and that he is a legal practitioner whose name is on the roll. The omission to place a tick beside the name Chief Ladi Rotimi Williams, SAN has not misled the respondents nor this Court as to who signed the process and such omission cannot invalidate it. I therefore hold that the applicants written address filed on 16/11/2015 is competent.
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[ON MERIT: APPLICATION DISMISSED]
I. Whether in the circumstances of this matter, the 1st respondent’s Exhibits AB/15 and AB/16 should be admitted as fresh evidence in this appeal.
RULING: THE COURT RULED THAT FRESH EVIDENCE CANNOT BE ADMITTED.
A. It goes without saying that the proposed introduction of the fresh/additional evidence vide Exhibits AB/15 and AB/16 is not as straightforward as it might seem at first glance. What is clear from the averments in the affidavits before the Court and the exhibits attached thereto is that there are several matters pending in different Courts involving the respondents and their two brothers regarding the distribution of the estate of their late father in which the documents play a pivotal role. Two lower Courts have made pronouncements on the documents, which are the subject of pending appeals. They cannot serve their intended purpose in this appeal until there is a final pronouncement as to their validity and/or authenticity. It is obvious from Exhibit KA2, that the will sought to be relied upon has not been admitted to probate, as one of the reliefs in the suit filed by Chief Ladi Williams, SAN and Chief Kayode Williams, as claimants, at the trial Court, that led to the appeal, was for an order vacating the caveat entered on 22/12/2009 by the present appellants (as defendants) and for an order for the grant of Letters of Administration (with will annexed) of the deceased’s estate in their favour, being the only beneficiaries under the will. The deed of revocation is also in dispute. The applicant is also not a party to any of these documents. Taking all these factors into consideration, it is my view that this application is an attempt to overreach the respondents by bringing in through the back door, documents that are presently in dispute in other proceedings. l am not satisfied that the introduction of these documents is crucial to the proper determination of this appeal or that their admission would be in furtherance of the justice of this matter. Rather I am of the view that the respondents would be prejudiced by the grant of this application. This Court being an appellate Court, they would be denied the opportunity of cross-examining on them unless this Court assumes the role of the trial Court which it would not ordinarily do. (See: Adeyefa vs Bamgboye (2013) 10 NWLR (Pt.1363) 532 @ 544 – 545 F – E per Fabiyi, JSC.)
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ GUIDING PRINCIPLE FOR ALLOWING ADMISSION OF FRESH EVIDENCE
Adeyefa & Ors v Bamgboye (2014) LPELR- 22884 (SC) on the issue of admission of fresh evidence held thus: “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 Nnemeka-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.” (See also Uzodinma v Izunaso (2011) 17 NWLR (Pt. 1275) 30.)
➥ REFERENCED (OTHERS)
