➥ CASE SUMMARY OF:
United Bank for Africa Plc V. BTL Industries Limited (SC. 301/2003, 15 April 2005)
by Branham Chima.
United Bank for Africa Plc
BTL Industries Limited
Supreme Court – SC. 301/2003
➥ JUDGEMENT DELIVERED ON:
15 April 2005
➥ SUBJECT MATTER
Application to call fresh evidence at Supreme Court
➥ LEAD JUDGEMENT DELIVERED BY:
➥ CASE FACT/HISTORY
The appellant, United Bank for Africa Plc by its motion filed on 23/2/05 prayed for the following:- “1. An order granting leave to the appellant to raise fresh issues of law as to: (a) Frustration; (b) public policy consideration; (c) misjoinder of causes; (d) illegality and supervening legislation;(e) jurisdiction;(f) unjust enrichment; and (g) burdenof proof. An order granting the appellant leave to amend the notice of appeal dated 20/10/03 by substituting thereof the notice of appeal attached as exhibit 1101 to the affidavit in support of this motion. An order enlarging the time within which to apply for leave to file grounds other than the grounds of law in this appeal. An order granting leave to the appellant to file grounds other than grounds of law in this appeal. An order granting leave to the appellant to file grounds of appeal challenging concerning concurrent finding of fact. An order, (sought ex abundanti cautela ), granting the appellant extension of time within which to appeal. An order granting the appellant leave to adduce additional evidence for the court to receive on appeal. An order granting the appellant leave to file an amended brief of argument, with liberty for the respondent to file a fresh brief, or alternatively ; An order granting leave to the appellant to file its reply brief out of time; or further alternatively. (10) An order deeming the reply brief filed on the date hereof as duly and properly filed.”
➥ ISSUE(S) & RESOLUTION(S)
I. Has the appellant/applicant shown by its affidavit evidence before this court enough ground to be granted its request to be allowed to call additional evidence in the appeal?
RULING: IN APPLICANT’S FAVOUR.
A. APPLICATION TO CALL ADDITIONAL EVIDENCE IS SPARINGLY GRANTED, AND CANNOT BE GRANTED IN THIS INSTANCE
[‘The discretion to grant a party the liberty to call new evidence on appeal isone sparingly exercised. Thisis because its indiscriminateuse portends great danger for the administration of justice. In a case as this which was commenced at the High Court, parties exercise their right to file pleadings and later call evidence at the trial in support of their different standpoints. Witnesses called are cross-examined by their adversaries. It is the normal expectation therefore that parties would diligently bring before the court all the evidence needed in support of their case including all documents. Human experience shows that we often get wiser after an event. When judgment has been given in a case, parties with the advantage ofwhat the court said in the judgment get a new awareness of what they might have done better or not 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 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. In the instant case, the court of trial and the Court of Appeal have adjudicated and given expressions to their thoughts on the merits or demerits of the case of parties. The appellant/applicant now wishes to call further evidence because according to the applicant in paragraph 13 of its affidavit: “These exhibits further corroborate the case of the appellant. …”’]
B. IT IS THE PROVINCE OF THE TRIAL COURT TO ASCRIBE PROBATIVE VALUE TO EVIDENCE OF WITNESSES
[‘It seems to me that when an appellate court is called upon to allow fresh evidence on appeal, it must recognise the necessity to adhere strictly to the three conditions stated above in Asaboro v. Aruwaji (supra). It is undisputed that the same person who signed the documents which appellant/ applicant wishes to put in as additional evidence had himself been a witness at the trial of the suit. He had testified as DW5. He was at the hearing extensively cross-examined and the trial Judge had had the opportunity of expressing an opinion as to his credibility as a witness. Viewed from this angle, the attempt to put in evidence document prepared by this same person is an indirect way to enhance the credibility of this person as a witness. The applicant’s request if granted draws this court, an appellate court into an area traditionally reserved for trial courts in civil matters. It is the province of the court of trial to ascribe probative value to the evidence of witnesses: See Akinloye v. Eyiyola and Ors. (1968) NMLR 92 at 95; Fabumiyi and Anor v. Obaje and Anor (1968) NMLR 242 at 247 and Balogun v. Agboola (1974) 1 All NLR (Pt. II) 66 at 73. It seems to me also that evidence given by a witness who had once testified in a case does not become any more credible just because the evidence was subsequently reduced into writing. It does not qualify as such evidence which could not have been produced at the trial with reasonable diligence under the first condition stated in Asaboro v. Aruwaji (supra).’
‘As I observed earlier, the maker of exhibits U06 to U09 had testified earlier in the trial; and the trial Judge had had an opportunity of expressing an opinion as to his credibility. I do not therefore think that the exhibits subsequently made by the same person would, if admitted have an important effect on the whole case. This is the more so, given the fact that the intention of the applicant is to use the evidence to ‘corroborate’ aspects of the case made at the hearing. I do not wish to concern myself with a consideration of the issue whether the so-called evidence can be described as apparently credible but it is obvious that it cannot be described as incontrovertible in view of the fact that the maker of the document had testified earlier as a witness. It suffices for me to say that the evidence which the appellant/applicant wishes to call as additional certainly does not fall in line with what is permissible as stated in Asaboro v. Aruwaji (supra). Prayer 7 must therefore be refused.’]
‘Prayers 5, 9 and 10 which are withdrawn are struck out Prayers 1, 2, 3, 4, 6 and 8 which were not opposed are granted as prayed. Prayer 7 for leave to adduce additional evidence in this court A is refused and or dismissed. Costs of N1,000.00 are awarded to the respondent in the motion.’
➥ FURTHER DICTA:
⦿ PRAYERS NOT OPPOSED IN A MOTION WILL MOVE IN SMOOTHLY
Let me say in this ruling that it is only necessary to consider the facts A deposed to by parties in their affidavit evidence and counsel’s argument with respect to only prayer 7 as respondent’s counsel is not opposing prayers 1, 2, 3, 4, 6 and 8. Appellant/applicant’s counsel had also indicated that he was not pursuing prayers 5, 9 and 10. — Oguntade, JSC.
⦿ THE COURTS LEAN AGAINST CALLING FRESH EVIDENCE ON APPEAL
Before concluding on the said prayer 7 it is helpful to call to mind the observations of Oputa JSC in Obasi v. Onwuka (1987) 3 NWLR (Pt. 61 ) 364, 372 in an application to call additional evidence on appeal: “To talk therefore of assessing the rightness or wrongness of the trial court’s verdict today by evidence that will be given tomorrow is to talk in blank prose. This is the reason why appellate courts are very reluctant to admit “fresh evidence”, “new evidence” or “additional evidence” on appeal except in circumstances where the matter arose ex improviso which no human ingenuity could foresee and it is in the interest of justice that evidence of that fact be led:- R v. Dora Harris (1927) 28 Cox 432. But by and large, at least in criminal cases (and the principle should also be the same in civil cases), the courts lean against hearing fresh evidence on appeal.” — Oguntade, JSC.
⦿ FOR THE APPELLANT
Dr. Konyin Ajayi SAN.
⦿ FOR THE RESPONDENT
Chief Afe Babalola SAN.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ PRINCIPLES TO GUIDE WHETHER NEW EVIDENCE SHOULD BE ALLOWED
In Comfort Asaboro v. M.G.D. Aruwaji and Anor. (1974) 4 SC 87 at 90-91 (Reprint) this court had cause to consider the principles which are to be taken into consideration in an application to call additional evidence on appeal. The court per Coker JSC said:- “The decision also evidently applied the principles which time honoured practice has established and the matters which the courts have always taken into consideration in the judicious exercise of powers to grant leave to adduce new evidence, namely:- The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial; The evidence should be such as if admitted, it would have an important, not necessarily crucial, effect on the whole case; and the evidence must be such as apparently creditable in the sense that it is capable of being believed and it need not be incontrovertible. See for these observations Roe v. R McGregor and Sons Ltd. (1968) 1 WLR 925 where the earlier decision of the Court of Appeal in Ladd v. Marshall (1954) 3 All ER 745 was considered and applied. Strictly speaking, under our own rule, the discretion to grant leave to adduce new evidence is properly exercised for the “furtherance of justice”. The exercise must however be judicious and it is in this respect that the guidelines set out above have been followed and applied. We are not unmindful of the fact that it would be a dangerous precedent to allow a person who did not call evidence in the lower court, or who, for one reason or another, had called insufficient evidence at the trial, with comparative ease, to bring forward for the first time before this court the evidence which could and should have been adduced before the trial Judge. Such an attitude would be disastrous to the principles of seeing an end to litigation. The stand taken by the Privy Council in the case of Edie Maud Leeder v. Nnance Ellis (1953) at 52 (sic) also illustrates this point. However one looks at the problem, it seems to be generally accepted that the guiding principles have always been applied to the special facts or circumstances of each application before the Court of Appeal, and in every case the question whether or not sufficient diligence has been put into the quest for such evidence has been decided as a matter of fact.”
➥ REFERENCED (OTHERS)