Dr. M. G. O. Iweka v. S.C.O.A. (Nigeria) Limited

This interlocutory appeal by the Plaintiff/ Appellant (hereinafter in this judgment referred to shortly as Appellant) is against the ruling of the Court of Appeal, Enugu given on 14th July, 1992 disallowing three motions filed by him on 30th August 1991, 7th February, 1992 and 3rd June, 1992 respectively, in which he sought to amend his appeal (still pending in the Lower Court) and to introduce further evidence therein, it is pertinent to point out in addition, that the action whose tortuous but humble origin commenced in the High Court of Anambra State before Iguh, J. (as he then was) sitting at Onitsha in

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Suit No.O/241/86, wherein the Appellant’s claim in paragraph 13 of the Amended Statement of Claim it is averred as follows:-
“(i) Specific performance by the Defendant of the contract between the parties for the delivery by the Defendant to the Plaintiff of a 504 G.R. air-conditioned Saloon Car.
OR
In the preferred alternative:-
An order for delivery of a comprehensively insured new Peugeot 504 GR. A.C. Car to the Plaintiff by the Defendant.
(ii) N750.000 (Seven Hundred and Fifty Thousand Naira) damages being remedy for breach of contract and/or detention of the said car, till same is delivered to plaintiff.”
The learned trial Judge having heard the evidence proffered on both sides. on 4th July 1990 delivered his judgment in which he arrived at the conclusion that the Respondent did indeed fail to deliver the car as well as to insure it after the one month agreed by the parties. He therefore proceeded to find the Respondent liable in the sum of N16,766.00 being special and general damages for the breach of contract. Being aggrieved by the decision of the trial court the appellant appealed to the court below where in his desire to introduce the current or present cost of Peugeot G.R. A.C. Saloon Cars into his main appeal to enable the court below enhance his damages for breach of contract on which in his opinion, that Court’s judgment should be based as at the date of delivery, he brought the three motions herein-before referred to.

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In each of these, the Court below (Coram: Oguntade, JCA, Uwaifo, JCA, (as he then was)and Akintan. JCA, disallowed the application against the background or a Notice of Preliminary Objection filed and argued by the Respondent in opposition thereto.
A brief comment, I think, is necessary to shed more light on the motions at this juncture.
In the motion of 30th August, 1991, the Appellant sought to “further amend the Writ and Prayers in Suit No.0/241/86” which was filed at the Onitsha High Court on 7th June, 1990 and struck out by that Court on 11th June. 1990. As against the striking out, he never filed a fresh motion, nor did he request the High Court to relist the same and neither did he appeal against this order to the Court of Appeal At the Court of Appeal. Enugu, he now prayed it to have the same relisted. Opposing it, the respondent filed the Notice of Preliminary Objection herein before mentioned.
In the second motion filed on 7th February, 1990, the Appellant inter alia prayed for an order to further. further amend the Writ and the prayer in suit No.O/241/86. In effect, the prayer sought was to allow the Appellant tender a document which listed the new price of Peugeot 504 as at 25th March. 1992, so as to affect the price or Peugeot cars for which judgment was given on 4th July, I990 notwithstanding the fact that the Court below held that the breach accurred on 25th July. 1986.
Being dissatisfied with the said Ruling dismissing all three motions, the Appellant who after obtaining leave for extension of time granted by this Court for the purpose in 1993, filed the interlocutory appeal herein premised on

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seven grounds. From these latter grounds twenty-three prolix and for the better part thereof, irrelevant issues were formulated from the Ruling given on 14th July. 1992. These issues in pith and substance constitute mere legal discussions which lack merit for any judicial consideration as the purpose is not to write discourses, embark as it were, on wild and futile academic exercises unrelated to the issues of the day. It is in that wise that I share the humble view preferred by the learned Counsel for the Respondent that issues 1(b) (e) (d), Issue Nos. 2, 3, 4, 6, 7, 7(b), 8(a), 8(d), 9(a), (b), Issue Nos. 10, 10(b), 11, 12, 13, 13(b) 13(e), 13(d), 14, 15, 15(b),(e), 16, 17, 17(a) and (b), Nos.18, 19, 21, 22 and 23, have no relevance to the interlocutory appeal which is against the ruling on the Appellant’s three motions which were filed to enhance his chances of success at the substantive appeal.
Furthermore, I am of the firm view that for the effectual disposition of the issues, it is only right to totally ignore what the Appellant has postulated as “the circumstantial and legal background” save where it is overridingly necessary to refer to any relevant point in the argument put forward.

Likewise, I do not deem it worthy for consideration what the Appellant dubs as Summary vide pages 165-169 of the Record as deserving of any particular attention in so far as the issues discussed therein are essentially matters to be considered in the main appeal before the Court below and are not matters opportune to be given any treatment at this interlocutory appeal.
This is because this Court has advised in the case

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of Sylvanus Mortune v. Alhaji Mohammed Gambo (1983) 4 NCLR 237 at 242 “that care should be taken when a court is hearing an interlocutory application to avoid making any observation in its ruling on that application which might appear to prejudge the main issue in the proceedings relative to the interlocutory application.” This is as it should be for as Coker, J. (as he then was) stated in Kufeji v. Kogbe (1961) 1 ALL NLR (Part I) 113 at 114, the tendency is to avoid trying the main question twice and to grant injunctions only in clear cases: Article 951 Halsbury’s Laws of England Vol. 24. 4th Edition. As further pointed out in the latter case, it is not necessary for the Plaintiff or Applicant to make out a complete case as he would be required to do on the merits. That is why the House of Lords (England) in American Cyanamid v. Ethicon Ltd. (1975) AC 396 at 407, per Lord Diplock said:,
“It is no part of the court’s function at this stage of the litigation to try to resolve the conflicts of evidence on affidavits as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for derailed argument and mature consideration. These are matters to be dealt with at the trial.” (Italics supplied for emphasis).
In the instant case, not only has the Appellant formulated issues for determination far in excess of the grounds of appeal filed, raised issues outside the contemplation of those grounds: are variegated and in certain instances, raised matters unrelated to issues decided in the judgment from which the appeal emanated. See Attorney-General of Bendel State v. Aideyan (1988) 4 NWLR (Part

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118) 646: Buraimoh v. Bamgbose (1989) 3 NWLR(Part 109) 352; Utih v. Onoyivwe (1991) 1 NWLR(Part 166) 166 at 214 and Egbe v. Alhaji (1990) 1 NWLR (Part 128) 546 at 590.
It is for the above reasons that I discountenance the Appellant’s twenty three issues as superfluous proliferation and consider the Respondent’s dichotomy of the issues into three as arising for our determination which I respectfully endorse for the resolution of the appeal herein, as apt. They are:-
Issue No. I:

Could the Court of Appeal relist a motion struck out at the Lower Court when the same has not been appealed against by way of interlocutory appeal nor leave to appeal out of time granted?
Issue No.2:
Could the Court of Appeal make an order to further amend the Writ of Summons and the reliefs sought therein after the case had been determined and is pending on appeal before it”
Issue No.3:
Is it permissible to allow fresh evidence to be introduced at the hearing of an appeal?
At the hearing of this appeal on 14th December, 1999 both Appellant in person and learned Counsel for the Respondent each adopted and relied on the Appellant’s brief of 12/2/93 and the Reply Brief of 22/2/95 as well as the Respondent’s brief of 30/12/94 respectively.
Elaborating on his Brief and Reply Brief the Appellant orally submitted that he was appealing against the Ruling

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of the Court below of 14th July. 1992 on his three related motions. The reliefs sought therein having to do with wrongful breach of trust by the Respondent which are material matters for determination in the trial Court. For one year he maintained his Counsel. Mr. lkeazor. (SAN) was relying on implied (constructive) trusts, fiduciary relationships etc;not necessarily having anything to do with facts but on law alone. In other words, he contended. his prayer was to amend his action in his prayers to plead facts only. He called in aid the case of Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt.60) 214. He added that he was therefore claiming there and then in this Court to amend his prayer as set out on page 24 of his brief. the Court below having earlier on without considering his similar application. dismissed it. The relief he was now seeking, he emphasized is that set out in both his Reply Brief and Grounds of Appeal adding that he needed no new or further evidence to amend the matter for the Court below to look into. Nor is he seeking to introduce any new matter etc…. it being a meritorious amendment and the rationale for his being overruled by the trial Court being the culmination of his attack in Ground 19 of the Grounds of Appeal on page 153 of the Records in Exh. SCA wherein the reason given for his being overruled was that the application was too close to the judgment of that Court. He concluded by urging us to grant his prayer since for 16 years, his money had not been returned to him and nothing done to restore him to the statuo quo ante. He concluded that if the striking out order was part of the Court of Appeal decision, then his motion to amend was in order.

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Replying and relying on Respondent’s Brief aforementioned, learned Counsel for the Respondent. Mr. Okereke submitted that where issues are formulated which do not touch on the matter or matters in issue as in the instant case, such issues ought not to be considered.

After pointing out that the substantive suit NO.CA/E/32/91 in the case herein is still pending in the Court below at Enugu, learned Counsel submitted that the appeal only seeks to restore the three motions struck out to be relisted and heard, adding that the Appellant cannot raise the matter of the amendment of an action as he is precluded from doing so. I will now proceed to consider the above issues starting with issue 1 separately and issues 2 and 3 together in that order as follows:-
Issue No 1
The question posed in this issue is: Could the Court of Appeal relist a motion struck out at the Lower Court when the same has not been appealed against by way of interlocutory appeal? Also, could the Court also entertain such an application when no leave to appeal out of time has been granted? Now, on 7th June, 1990 the Appellant filed a motion to amend his claim at the trial Court. That notion we struck out on 11th June, 1990 by that court which later on 4th July. 1990 delivered its judgment in the substantive case. The Appellant did not file a similar motion the one struck out before judgment nor did he file an interlocutory appeal against the striking out or the substantive judgment delivered by Iguh. J. (as he then was). he never applied for leave or then Court or at any

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time at the Court of Appeal for leave to appeal against the interlocutory judgment. It is against this background that the Appellant applied by way of motion at the Court of Appeal for the motion struck out at the trial court on 11th June, 1990 to be re-listed by the Court or Appeal to enable him argue same in his substantive appeal. I uphold the preliminary objection raised by the Respondent to the same motion to the effect that by virtue of Section 25(2) (a) of the Court of Appeal Act, 1976, the Notice of Appeal or Notice of Application for Leave to Appeal in a Civil Cause or Matter in the High Court must be made within 14days of the striking out or if time has elapsed, on application to the Court of Appeal pursuant to Order 3 Rule 4(2) of the Court or Appeal Rules. 1981, as amended supported by an affidavit selling forth good and substantial reasons for failure to appeal within the prescribed period and by grounds of appeal which prima facie show good cause why the appeal should be heard. See Ibodo v. Enarofia (1980) 5-7 SC 42: and Co-operative & Commerce Book (Nigeria) Ltd. v. Emeka Ogwuru (1993) NWLR (Part 284) 630 at 633- 634. 

From the foregoing, I uphold the Respondent’s submission that where leave had been sought in the High Court and was refused, the applicant could take advantage of Order 1 Rule 3(3) of the Rules, which provides:-
“(3) where an application has been refused by the Court below, an application for a similar purpose may be made to the Court within fifteen days after the date of the

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refusal.”
The period provided for above which may also be enlarged by leave of the Court of Appeal since in the instant case the Appellant look no steps to avail himself of the laid down procedure. The Court of Appeal was in the circumstances, right in dismissing the motion. See Alade v. Alemuloke (1988)1 NWLR (Part 69) 207: Utih v. Onoyivwe (supra) and Attorney-General Anambra State v. Okafor( 1992) 2 NWLR (Part 224) :196 at 429.
My answer to the above issue is accordingly rendered in the negative.
Issues 2 and 3
While Issue 2 postulates whether it is legally permissible for a Court of Appeal to make an order in the course of hearing an appeal from the Lower Court to exercise its powers and allow an amendment to Writ of Summons and the reliefs sought therein after the case had been concluded and determined by the Lower Court, Issue 1 asks whether one could delimit or circumscribe the circumstances in which an appellate court could permit fresh evidence to be introduced at the hearing of an appeal. By virtue of Order 1 Rule 20(1) Court or Appeal rules (ibid) the Court of Appeal can order an amendment of a Writ, a Statement of Claim or Defence as the High Court could have done. However, in the exercise of this rule. the Court is slow or reluctant and would only grant such an amendment so as to bring the pleadings in line with evidence already led. See Udechukwu v. Okwuka (1956)1 FSC 70: (1956) SCNLR 189 Ewarami v. A.C.B. Ltd. (1978) 4 SC 99; Oyenuga v. Provisional Council of the University of Ife (1965) NMLR 9 and Joseph Afolabi &

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Ors v. John Adekunle & Anor. (1983) 8 SC 98 at 103; (1983) 2 SCNLR 141. See also Asani Taiwo & Ors. v. Adamo Akinwumi (1975) 6 SC 143. where the Supreme Court refused an application to amend a statement of Defence. In that case Fatayi-Williams, JSC (as he then was) said:-
“In the first place. unless there is very good and strong justification for so doing, a High Court should be reluctant to grant amendments before judgment, even though it has been indicated in the course of the hearing that some amendment might be asked for. Such an amendment may be allowed where the matter involved has been raised in the course of the trial and Counsel has addressed the Court on it since it will be merely incorporating in the pleadings that which has emerged in the course of the case as an issue between the parties.See Loufti v. Czanikow Ltd. (1952) 2 ER P.823; See also Mosudi Saka v. Disu Sanni & Ors. – Appeal NO. CA/1/190/87 delivered on 4/7/89 (per Omololu-Thomas, J.C.A.).

An amendment that is designed to create a suit that was not in existence, as in the instant case where the amendment was being sought by the Appellant with a view to enhancing the award of special and general damages made in the High Court so that the Court of Appeal on hearing and granting the amendment sought, may be enabled to award the proposed bloated amended figures. will not in my view be permissible. See Pedro St Matthew Daniel v. Olajide Bamgbose 19 NLR 7. Indeed, a similar principle of law was enunciated in Amaechi v.

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Obioha (1972) 2 ECSLR (Pt. 2) 596 at 597; See also Agbapuonwu v. Agbapuonwu (1991) 1 NWLR (Part 165) 33 and Unegbu v.  Medland Enterprises Ltd. (1990) 6 NWLR (Part 156) 306. Be it noted that the Court does not act in vain and will not exercise its discretion if nothing will be achieved in the circumstances, it must, for instance, appear to the Court that it is in the interest of justice to grant such an amendment and even at that stage in the life of the case. See Biode Pharmaceuticals Ind. Ltd. v. Adsell (1986) 5 NWLR (Part 46) 1070. 
An Appellate Court is bound to base its consideration of every appeal before it upon legal evidence upon which the court below acted. In appropriate cases, the Court is empowered to grant such an amendment and allow fresh or further evidence to be called. See Jadesinmi v. Okotie-Eboh (No.2) (1986) 1 NWLR (Part 16) 264 at 275 per Karibi-Whyte, J.S.C. and Esangbedo v.  State (1989) 7 SCNJ 16, (1989) 4 NWLR (Pt. 113) 57 where in Nnaemeka-Agu. J.S.C. stated the grounds upon which further evidence can be allowed viz:
(a) the evidence sought to be adduced must be such as could not have with reasonable diligence been obtained for use at the trial:
(b) the evidence should be such as if admitted, it would have an important not necessarily crucial, effect on the whole case: and:
(c) the evidence must be such as is apparently credible in the sense that it is capable of being believed although it need not be incontrovertible.
All three special grounds must co-exist. See Asaboro v. Arawaji (1974)4 SC 119 at 124: Obasi v. Onwuka (1987)3

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NWLR(Part 61) 364 at 370 and Chairman Board of Inland Revenue v. Joseph Rezcallah and Sons Ltd. (1962) 1 ALL NLR 1. In Turnbull v. Duval (1902) AC 429, the Privy Council (England) held that a new trial will not be ordered where the fresh evidence is a document which could have been obtained by discovery during the trial proceedings.

The attitude of the Appellant in making the application to the Court below in which he attached as Exhibit “E”‘ Peugeot Automobile Nigeria Limited. Official Car selling (public) prices as applicable from 25th March. 1992, is summarised in his (“Plaintiffs/Appellant’s Brief (Interlocutory Ruling of 14th July, 1992)” at pages 2 and 3 of “Part II introduction” which inter alia reads at page 2. Lines] -4 as follows:-
“For the appellant to be able to recover that range of awards. if he succeeds in this claim in trust. he must expunge the now puny figure of N750.000.00 (Seven hundred and fifty thousand naira) and substitute the highest possible ceiling of award in his written claim.”
Lines 1-5 of page  3 of the above document goes on to amplify:
“On the other hand, if the amendment is not made before final judgment, then however high, the award, that the Court finds in favour of the Plaintiff. that award will be frustrated by the pygmy ceiling already stated in the claims. N75,000.00 …. a pygmy? One asks. Yes …..” In other words he now wants millions of naira to replace the judgment sum of N 16.766.00.
In the instant case, it ought to be stressed that the new

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evidence sought, in law, cannot be allowed as to do so is to influence the enhancement of the value of the Car (Peugeot 504 G.R. A.C. Saloon Car). The trial court (per Iguh. J. as he then was) held that the breach of contract by the Respondent occurred on 25th June, 1986, it is settled law that in actions for breach of contract, the cause of action accrues for the Plaintiffs benefit from the time the breach is committed and not when the damage is suffered. See Egbe v. Adefarasin (1985)1 NWLR (Part 3) 549: Thomas v. Olufosoye (1986) 1 NWLR (Part 18) 669 and Bello v. A.G. of  Oyo State (1986) 5 NWLR (Part 45) 828 at 876. Thus the period of limitation begins to run from the date the cause of action accrues. See Sanda v. Kukawa Local Government (1991) 2 NWLR (Part 174) 379 at 388. per Wali. J.S.C. and this Court’s recent decision in Alhaji Aliyu Ibrahim v. Judicial Service Committee Kaduna State & Anor. (1998) 14 NWLR (Pt.584)1.
Where, as in the case in hand, a breach of contract is alleged in which goods form the subject- matter of the litigation, the court has to ascertain the pecuniary loss before trial. See Shell B. P. v. Jammal Engineering Ltd. (1974) 4 SC 33: Union Beverages Ltd v. Owolabi (1988)1 NWLR (Part 68) 128 at 136. per Nnaemeka Agu. J.S.C. and Ijebu -Ode Local Government v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Part 166) 136 at 158. per Karibi-Whyte.J.S.C.
If, as Stated by Oputi, J.S.C. in Lawrence Adebola Oredoyin & Ors v. Chief Akala Arowolo & Ors. (1989) 4 NWLR (Part 114) 172 at page 211 E-F: 

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“An appeal is not the inception of a new case. No, far from that. An appeal is generally regarded as a continuation of the original suit rather than as an inception of a new action. That being so, an appeal should normally and generally be confined to consideration of the record which came from the court below with no new testimony taken or new issues raised in the Appellate Court. This is the broad view or an appeal. An appeal to the Court of Appeal should be a complaint against the decision of the trial court .. An appeal is an invitation to a Higher Court to find out whether on proper consideration of the facts placed before it and the applicable law. that court arrived at a correct decision and Black’s Law Dictionary. Sixth Edition page 96 defines the word “Appeal”‘ as:
“Resort to a superior (i.e. appellate) Court to review the decision of an inferior (i,e, trial) Court or administrative agency, A complaint to a higher tribunal of an error or injustice sought to be corrected or reversed.”
Then in the instant case the fact of the pendency of the trial High Court’s decision awarding in Appellant’s favour general and special damages or N16.766.00 for breach of contract in the Court below (Court of Appeal. Enugu Division) outrightly precludes the Appellant from bringing the three motions culminating in the ruling of that Court given on 14th July. 1992 and now the subject of the appeal herein. Thus when in its said ruling written and delivered by Uwaifo. JCA. (as he then was) and concurred in by Ogumade and Akintan. JJ.C.A. dismissing the application:
.. It (Court of Appeal) has no jurisdiction to hear and determine the motion filed in this Court by the

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Plaintiff/Appellant on: 10 August. 1991 since it has not come by way of an appeal or leave to appeal.. I therefore strike out the motion filed on 30 August. 1991.
In respect of the motion of 7 February, 1992 there is no doubt that under Order 1 rule 20(1) of the Court of Appeal Rules. This court can order an amendment of a Writ. A statement of claim or defence as the High Court would have done. Normally, such an amendment in the Court of Appeal would be to bring the pleading in line with the evidence already led. See Taiwo v. Akinwunmi (1975) 6 SC 143 at 169-170. It must appear to the Court that it is the interest or justice to grant such an amendment even at that stage: See Biode Pharmaceutical Ind. Ltd. v. Adsell (1986) 5 NWLR (Part 46) 1070.
In appropriate case” this Court can grant such an amendment and allow fresh or further evidence to be called ………………

In the present Case, the Plaintiff/Appellant does not seek the amendment in order to bring the evidence led in the Court below in line with his pleading. He intends to amend and then to tender in evidence a document (or other evidence in support), showing the new prices of Peugeot 504, in particular the price of 504 GR with air conditioner (same as his car, the subject matter of dispute) as at March, 25, 1992, nearly two years after the judgment appealed against was delivered. That is not the further evidence that can be allowed to be led in the present circumstances. No special grounds have been shown to permit such a procedure. Judgment was given on the

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value of the Plaintiff/Appellant’s vehicle as it was at the time of judgment or more correctly at the time the cause of action arose. The Plaintiff/Appellant can never show that the present evidence sought to be adduced is such as if admitted, it would have an important effect on the whole of the case since that is one of the conditions to be satisfied when further evidence is intended to be adduced on appeal. See Asaboro v. Arawaji (1974) 5 SC 119 at 124.
In the present case the new evidence, in law, cannot be allowed to influence the enhancement of the value of the Car even if it was erroneously admitted as further evidence….” (Italics and parenthesis above are supplied for emphasis).
Their Lordships in my respectful view, were perfectly right and justified in their conclusions above and I see no reason whatsoever to interfere therewith. The result of all I have been saying is that all three issues are accordingly answered in the negative and having resolved them against the Appellant. the appeal be and is hereby dismissed with N10.000.00 (Ten Thousand Naira) Costs to the Respondent.