Awoke Owata & Ors v. Uchanchi Anyigor & Ors

This appeal is against the ruling of the Court of Appeal, Enugu Division granting respondent leave to adduce further evidence in that court and to amend their pleadings. The facts are straightforward and not contested. The only issue raised by appellant is that the Court below erred in law in relying on the provisions of Order 1 rule 20(3) and (5) of the Court of Appeal Rules and section 16 of the Court of Appeal Act 1976 instead of Order VII rule 24 of the Supreme Court Rules 1961 which it is claimed is the applicable rule.

The facts of this case are that plaintiffs are natives of Igbudu village, Ikwo. Plaintiffs brought an action in 1970 against the defendants., who are natives of Inyimagu village, also of Ikwo. Plaintiffs claimed a declaration of title to a piece of land called Agu Igbudu, N400 general damages for trespass and an order of perpetual injunction restraining the defendants by themselves, agents and servants from crossing the boundary between the two communities. The boundary is verged yellow in plaintiffs, plan No.L/D.316. This action was suit No.AB/3/70. The defendants on their part, also in 1971 filed an action suit No.AB/6/71 in respect of the same piece of land which they called “Agu Inyinmagu” claiming identical reliefs, except for a sum of N800 as general damages for trespass. They relied on the plan No.MEC/174/71 filed with the statement of claim. Both parties filed and exchanged pleadings. The actions were consolidated for trial. The plaintiffs in suit No.AB/3/70 became the plaintiffs

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in the consolidated action, and plaintiffs in AB/6/71 became the defendants. The action was tried on pleadings and viva voce evidence. Both parties pleaded and relied on the judgment in Agubia Group Civil suit No.50/51. The plaintiffs pleaded the judgment in civil suit No.50/51 of the Agubia Native Court in paragraph II of the statement of claim as follows –

“Each side have resented any encroachment by the other across the boundary. Thus about 1952 the Defendant resisted the attempt of Imeogo Village of Igbudu to settle on Defendant’s land known as Uduwa across Ngene Otoneng when they were hit by flood disaster. The Defendants took action in the Agubia Native Court. The matter was finally settled by the then Resident Ogoja Province and the Plaintiffs withdrew to their side thus respecting this traditional and natural boundary. At that time the paramount Chief of Ikwo was Chief Owata Nwedu from Igbudu -the Plaintiffs.”

In paragraphs 6, 7 and 8 of the statement of defence, defendants pleaded as follows –

6. The defendants further say that the concrete pillars INIG 1 to INIG 40 as shown in the defendants plan NO.MEC 174/71 number 1459 form the boundary between the plaintiffs and the defendants and that the pillars were placed there by a licensed Surveyor, Mr. Inyang O. Inyang in 1952 in pursuance of the decision of Agubia Customary Court in Suit No. 1/52/1 and 5/20-40 between Nwanchor Atuma and Elom Nwali for Inyimagu against 1. Iluma  Egwu 2. Ali ldoke 3. Iganga  4.Nar Eke 5. Ukwa Onyiba 6. Alobu Orogba 7. Oduburu Otubo 8. Nwarie Anyigor 9. Ominyi Nwankpa 10. Ukwa Nwogboji

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Aligbudu Agum 12. Iggoji 13. Nwanchor Ukwaru 14. Ekechi Iburu 15. Wachukwu Okpokpo and Nworie Ichanchi for the people of Igbudu, which said decision was confirmed on appeal by the then District Officer, Mr. O.P. Gunning and later still on further appeal by the Resident Ogoja Province.”

7.The defendants also say that the Plaintiffs are estopped from relitigating over the area in dispute and/or the subject-matter of this action by virtue of the above mentioned decision which led to the award of the area in dispute to the defendants and/or any of their representatives.

8. The defendants have made several abortive attempts through the Agubia Customary court, the Residents Office. and Mr. Inyang O. Inyang to obtain a certified true copy of the said judgment and plan but they all complained that the relevant documents were lost during the Nigerian Civil War. The defendants will call witnesses to support this averment, and to establish that judgment was given in their favour.”

Consistent with their pleading the defendants called as the 3rd defendant’s witness, Chukwuka Igwebuike, the Archive Assistant, at the National Archives. Enugu who testified as follows –

“I was aurhorised by the Controller of Archives to give evidence in this case. I received a letter of inquiry from Barrister Ebele Nwokoye about ajudgment between Inyimagu and Igbudu people. We were not able to trace any judgment in our office from Agubia Native Court. There is no Native Court records from the whole of Abakaliki province in the National Archives at Enugu:”

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He was not cross-examined. The 4th defendant’s witness Umangi Amiara gave evidence about the litigation between the parties including the judgment relied upon by the parties. Defendants alone gave evidence of the effort made to produce the judgment. At the trial none of the parties could produce the judgment relied upon. The trial Judge gave judgment in favour of the plaintiffs. The defendants who were dissatisfied with the judgment appealed to the Court of Appeal. The first appeal to the Court of Appeal was dismissed on the grounds of want of diligent prosecution. Defendants further appealed to the Supreme Court.

The judgment of the Court of Appeal was set aside on the ground that the motion to dismiss the appeal was not served on the appellants, or their counsel. The appeal was then sent back to the Court of Appeal for hearing on May 9, 1988. It was on this occasion that defendants/appellants discovered the record of proceedings relating to the land pleaded and relied upon by the parties at the trial. Accordingly learned counsel to the appellants/defendants considered it necessary to plead the record of proceedings. In doing so it was considered also relevant and important to amend the statement of defence. Appellant then brought a motion on notice to the respondents, relying on the inherent jurisdiction of the court, and pursuant to Order 3 rule 2(1) and (5) of the Court of Appeal Rules 1985, and Order 1 rule 20(3) & (5) of the same Rules and section 16 of the Court of Appeal Act, 1976, for:

(a) accelerated hearing of the motion

(b) to amend the notice and grounds of appeal

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(c) granting leave to the Appellants/Applicants to adduce further or fresh evidence in this appeal

(d) leave to amend paragraphs 6 of their statement of defence and paragraphs 8 and 13 of their statement of claim.

The defendants/appellants, having obtained certified true copies of the judgment relied upon from the National Archives, now sought to adduce further evidence by tendering the judgment. The Court of Appeal granted the application. Plaintiffs, then brought this appeal against the ruling granting leave to adduce further evidence and to amend their pleadings on 11th July, 1989, The grounds of appeal, including particulars of errors are as follows Grounds of Appeal

“1. The lower Court erred in law ill relying on Order 1 rule 20(3) and (5) of the Court of Appeal Rules 1981 and Section 16 of the Court  of Appeal Act 1976 instead of Order VII rule 24 of the Supreme Court Rules 1961 which is the applicable rule in granting leave to the respondents to adduce further evidence of the record of proceedings in suit No. 50/51.

Particulars of Error

(a) The judgment in this case was given in 1974 and appeal against the judgment was filed in 1974, As at that time the applicable rules of court was the Supreme Court Rules 1961 it was not the right of the applicant to adduce new evidence but only in exceptional circumstance the court may grant an applicant leave to adduce new evidence. See the cases of: Ukariwo Obasi & anor. v. Eke Onwuka & ors  (1987) 3 NWLR (Pt.61) 364, (1987) 7 S.C. part 1 page 233 at pages 252 to 254; Agbajo v. Federal

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Attorney General (1986) 2 NWLR (Pt.23) page 528,

(b) Under Order I rule 20(3) (5) of the Court of Appeal Rules 1981 the court shall have power to receive further evidence on question of fact The 1961 and 1981 Rules of Court are not the same, The 1981 Court of Appeal Rules is wider than the 1961 Supreme Court Rules, 2, The Lower Court misdirected itself in law in holding that the applicants made sufficient effort to get a copy of the judgment of the 1950/51 Native Court case when there was no such evidence in the Record of Proceedings to support the same apart from the evidence of Archives’ Assistant Chukwuka Igwebuike to the effect that ‘We are not able to trace any judgment in our office from Agubia Native Court.

There is no Native Court Records for the whole of Abakaliki Province at the National Archives Enugu at page 133 of the Record of Proceedings,

(a) There is no witness who testified as to the effort they made in getting the copy of the judgment or as to the effect of the Civil War as stated by the Lower Court at page 4 of the ruling.

(b) There is no evidence as to how the respondents were able to get the certified copy of the Record of Proceedings of suit No.50/51 from the National Archives Enugu in spite of the prior evidence of Igwebuike aforesaid.

3. The Lower Court erred in law in granting the respondents leave to amend the statement of defence and statement of claim under Order I rule 20(1) of the Court of Appeal Rules 1981 and Section 16 of the Court of Appeal Act 1976 when there is no such provision in the Supreme Court Rules 1961 which is the applicable law.

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Particulars of Error in Law Under Order 1 rule 20(1) of the Court of Appeal Rules 1981 the Court of Appeal has all the powers and duties as to amendment and otherwise of the High Court, but there is no such power granted to the Court of Appeal under the Supreme Court Rules 1961 which is the applicable Rule of Court. It is contended that for the Lower Court to grant the respondents the leave to adduce further evidence and amend their pleadings, such power must exist in the Supreme Court Rules 1961.”

Learned counsel filed and exchanged briefs of argument. Chief Ezeofor for the appellant in his brief of argument formulated 8 issues for determination from the three grounds of appeal. I reproduce below the issues so formulated notwithstanding the irrelevance of a number of them to the grounds of appeal from which they have been formulated. Besides irrelevance, prolixity is not generally a merit in the formulation of issues for determination. Appellants’ issues for determination are as follows-

Issues/Questions for Determination

“2.1 What is the applicable law to be applied by the Court of Appeal in considering whether or not to grant the defendants/appellants/ respondents leave to adduce further evidence? Is the applicable law the Supreme Court Act 1960 and Order VII Rule 24 of the Supreme Court Rules 1961 or the Court of Appeal Act 1976 and Order I Rule 20(3) of the Court of Appeal Rules 1981?

2.2 Is there any material difference between Order VII Rule 24 Supreme Court Rules 1961 and Order I Rule 20(3) Court of Appeal Rules 1981?

2.3 If there is any difference between the two Rules has any miscarriage of justice occurred by applying Order I

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Rule 20(3) Court of Appeal Rules 1981 as against Order VII Rule 24 Supreme Court Rules 1961?

2.4 Did the defendants/appellants/respondents satisfy the requirements for adducing further evidence on appeal as envisaged in Order VII Rule 24 to warrant the Court of Appeal granting them leave to adduce further evidence on appeal?

2.5 Assuming but not granting that Order I Rule 20(3) of the Appeal Court Rules 1981 is applicable, have the respondents satisfied the requirements of that Order for adducing further evidence on appeal?

2.6 Is there any provision in the Supreme Court Rules 1961 for amending the pleadings in the High Court as is provided for in Order I Rule 20(1) of the Court of Appeal Rules 1981?

2.7 What is effect of the absence of a provision granting power to amend the pleadings in the lower court in the Supreme Court Rules 1961?

2.8 Did the respondents satisfy the requirements for amending the pleadings before the Court of Appeal granted them leave so to do?”

It could be seen that apart from 2. I which stands alone, 2.2 and 2.3 are clearly irrelevant and not related to the grounds of appeal relied upon. Issue 2.4 and 2.5 can be formulated into one issue relating to the preconditions for granting leave to the provision for amending pleadings in Order 1 Rule 20(3) of the Court of Appeal Rules 1981, and the Supreme Court Rules 1961. On the other hand the formulation of the issues for determination by learned counsel to the respondent are consistent with and cover the grounds of appeal from which they are formulated.

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They are as follows –

3.01 Were the learned Justices of the Court of Appeal right in receiving the certified the copies of the Agubia Group Court judgment in suit No.50/51 as well as the appeal proceedings therefrom as further evidence on appeal?

3.02 Has the Court of Appeal jurisdiction to grant an amendment to the pleadings filed at the court of trial?

3.03 What is the applicable law to be applied by the Court of Appeal in considering whether or not to grant the defendants/appellants/ respondents leave to adduce further evidence?” I prefer the formulation of the issues for determination by learned counsel to respondent. They cover all the issues raised in the grounds of appeal. They are neither prolix nor repetitive. I will therefore adopt them in the determination of this appeal.

I find it convenient to consider issue 3.03 first, which raises the question of the applicable law in granting leave to adduce further evidence in this appeal. Chief Ezeofor has argued in his brief of argument and orally before us that the rule of Court applicable to the grant of leave to adduce further evidence is Order VII rule 24 Rules of the Supreme Court 1961 and not Order 1 rule 20(3) of the Court of Appeal Rules 1981.

This submission was founded on the consideration that the cause of action arose about 1967 and the judgment was delivered in 1974. Learned counsel cited and relied on Agbajo v. A.G for the Federation (1986) 2 NWLR (Pt.23) 528; Uwaifo v. AG. of Bendel State (1982) 7 SC.124 (1983) 4 NCLR 1; Savannah Bank of Nigeria Ltd. v. Pan Atlantic Shipping & Transport Agencies Ltd. (1987)

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1 NWLR (Pt.49) 212. It seems to me that Chief Ezeofor’s contention is founded on the well settled law that the action is governed by the law applicable, and in force at the time the cause of action arose. In this proposition he is on Firm ground. All the decided cases cited and relied upon by Chief Ezeofor were decided on this principle.

It is however not the same principle when the procedure governing the action is being considered. There is a clear distinction between the substantive law applicable, and the rule of law governing practice and procedure. It is similarly well settled that the rule governing practice and procedure is the rule in force at the time of the trial or the application is heard, unless there is any provision to the contrary. This is based on the principle that there is no vested right in any course of procedure – See Costa Rica v. Erlanger (1874) 3 Ch.D.69. A litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed acccording to the altered manner. See Att.-Gen. v. Sillem (1864) 10 HLC.704. The Court of Appeal Act No.43 of 1976 came into force on the 1st October, 1976. Section 8(3) of the Act provided that until rules are made under this section, the rules in force in the Supreme Court at the time of the commencement of this decree shall be deemed to have been made under this section ….

” At the commencement of this Decree on 1st October, 1976, the Supreme Court Rules 1961 was in force in the Court in accordance with the above mentioned provision. Section 8(2) of the Court of Appeal Act No.43 of 1976 empowered the President of the Court to make rules regulating the practice and procedure of the Court. On the

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coming into force of the Constitution 1979 on Oct. 1 ,1979 section 227 therein conferred powers on the President of the Court of Appeal with the approval of the President of the Country to make rules for regulating the practice and procedure of the Court. In exercise of powers under section 227 of the Constitution, the President of the Court of Appeal made rules regulating the practice and procedure in the Court of Appeal and which came into force on the 1st day of July, 1981.

The Federal Court of Appeal (Amendment) Act, 1982 which  came into force on the 15th July, 1982, repealed sub-section (3) of section 8 of the Federal Court of Appeal Act No.43 of 1976, which introduced the application of the Supreme Court Rules 1961 for the regulation of practice and procedure in the Court of Appeal. Thus as from 1st July, 1981, the Supreme Court Rules 1961 ceased to apply in the Court of Appeal. The Federal Court of Appeal Rules 1981 became the rules applicable for regulating practice and procedure in that Court. The motion subject mailer of the ruling which gave rise to the appeal before us, was dated 24th February, 1989. It is a distinct proceeding from the cause of action between the parties. It is not a claim for a substantive right and is therefore not governed by the principles relating to determination of causes of action. It is an application in the proceedings for the determination and enforcement of the substantive right in the claim before the Court. It was not intended for the definition or determination of the substantive right. In a more concise sense it is for regulating of steps in the action and retrieval of errors and defects in the substantive action. The rules of practice and procedure

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are the rules and practice in operation at the time the application was being heard. In the instant case it is the Court of Appeal Rules 1981.

Learned counsel to the appellant was clearly wrong in his contention that Order VII rule 24 Rules of the Supreme Court 1961 applicable when the substantive action was brought and the President of the Court of Appeal had not made rules of practice and procedure was still applicable after 1st July, 1981, when the President of the Court had made such rules. The first issue is whether the Court of Appeal has the jurisdiction to receive the certified true copies of the Agubia Group Court judgment in suit No.50/51 as well as the appeal proceedings as further evidence on appeal. In addition to the general powers of the Court provided in order 1 rule 20(1),sub rule (3) of the rule 20 of Order 1 provides as follows –

“(3) The Court shall have power to receive further evidence on questions of fact either by oral examination in court by affidavit, or by deposition taken before an examiner or commissioner as the court may direct, but in the case of an appeal from a judgment after trial, or hearing of any cause or mailer on the merits, no such evidence (other than evidence as to matters which have occurred after the date of the trial or hearing)shall be admitted, except on special grounds.” It appears from the provisions of this rule that the court is entitled to exercise its discretion where

(a) the matter on appear has not been heard on its merits in the trial Court, or

(b) the appeal is from a judgment after trial or hearing on the merits.

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In the first case the court has the power to receive further evidence on questions of fact in the manner provided.

In the second case, further evidence is only received on special grounds. See Adeleke v Aserifa (1990) 3 NWLR (Pt.136) 94. The power vested in the court by these rules to receive fresh evidence or further evidence is generally exercised reluctantly, sparingly and with great circumspection. This is because of the risks involved in allowing a person to reopen an issue after it has been decided on the excuse that new facts which could have been discovered and relied upon and used at the trial have now been found. It is likely to prejudice the position of the other party and result in the miscarriage of justice. The Court however will exercise the power in all cases where the appellant has brought his case within the conditions prescribed in the rules and on the facts of the case, the interest of justice demands that the evidence be received. The rule has provided that fresh or further evidence will be admitted on special grounds. Analysis of decided cases disclose that the courts have relied on the following principles, where,

First, the evidence sought to be adduced should be such that could not have been obtained with reasonable care and diligence for use at the trial – see Asaboro v. Aruwaji (1974) 4 SC.119, where the evidence was not within easy reach. The records kept by the Companies Registry was not open most of the time during the period.

Secondly, if the fresh evidence is admitted it would have an important, but not necessarily crucial effect on the whole case. – see Ladd v. Marshall (1954)3 All ER.745 .

Thirdly, if the evidence sought to be tendered is such that

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is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible – see Obasi v. Onwuka (1987) 3 NWLR (Pt.61) 364.

Fourthly, 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 available at the trial Court- See Fawehinmi v. State (1990) 5 NWLR (Pt.148) 42. Fifthly, the evidence should be material and weightly even if not conclusive. Where evidence sought to be admitted is irrelevant and immaterial it will be Rejected, – See Nwokoro v. Nwosu (1990) 6 NWLR 679. Rinco Construction Co. v. Veepee Industries Ltd, (1990)6 NWLR (Pt. 158) 630, Adeleke v. Aserifa (1990) 3 NWLR (Pt. 136) 94.

I have already set out in this judgment, the pleadings of the parties, and the effort by the respondent, in the trial court to obtain certified true copies of the judgment sought to be admitted. At the trial, defendants called the Assistant Archivist as a witness to testify to the unsuccessful effort they made to trace the judgment. The judgment and the proceedings have now been discovered. It will be inequitable not to receive it in evidence. This is the more so when both sides referred to it and relied on it in their pleadings. It will certainly not prejudice the opponent. The purpose of the application to receive the further evidence sought to be admitted is to supply the missing link in the trial which diligent search did not disclose. Defendants had pleaded res judicata, relying on the judgment sought to be admitted.- See para.7 of statement of defence. In the circumstances of this case the judgment being material and relevant, the

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Court of Appeal could not have refused to exercise its discretion in favour of the appellant/applicant to receive the further evidence discovered.-See Attorney-General of the Federation v. Alkali (1972) 12 S.C.29 Uche v. State (1986) 3 NWLR. (Pt.30) 528.

The judgment having been pleaded and relied upon by both parties, the Court of Appeal was right to have received it. See Latinwo v. Ajao (1973) 2 SC. 99. The overriding consideration for the exercise of this general power to receive further evidence or fresh evidence is to enable the court to exercise to its optimum and in the interest of justice, the powers vested in it by section 16, of the Court of Appeal Act 1976. By virtue of section 16, the Court of Appeal can exercise all the powers of the trial court. It can amend any defect or error in the record of appeal and generally shall have full jurisdiction over the whole proceedings as if the Court of Appeal is a Court of first instance. I think it is in the interest of justice, the efficient and effective administration of justice, and to minimise the prolongation of litigation, to ensure that evidence which ought to be admitted, at the trial, but was not because diligent search did not lead to its discovery, is received in evidence on appeal when subsequently discovered, and is sought to be admitted. The maxim interest rei publicae ut sit finis litium is not only a statement of public policy it is a principle of justice of undoubted relevance in all cases. It will not be justice to refuse to receive relevant and material evidence relied upon by both parties.

The Court of Appeal was right to have granted the application to receive the further evidence. For the

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reasons I have given in this judgment, this appeal lacks merit and is hereby dismissed. Appellant shall pay costs assessed at N1,000 to the respondents.