Emmanuel Okpanum v. S.G.E. Nigeria Limited

This is an appeal against the decision of the Court of Appeal of the Enugu Judicial Division sitting in Enugu. The decision dated 9th December, 1988 leading to the setting aside of the judgment of Abakaliki High Court delivered in Suit No. AB/12/81 on the 22nd day of March, 1982 culminated in the dismissal of the plaintiff/respondent/appellant’s case. For ease of reference, the plaintiff/respondent/appellant shall in the rest of this judgment be referred to as plaintiff while the defendant/appellant/respondent shall hereinafter be referred to as defendant.
Facts relevant to this appeal may be stated briefly as follows:-
The plaintiff, a motor transporter by a writ of summons issued in the High Court, Abakaliki, of the former Anambra State of Nigeria (later Enugu State but now Ebonyi State) claimed against the defendant, a road construction company in paragraph 6 of his statement of claim as follows:-
“6. Whereof the plaintiff has suffered damage and claims:
(a) N30,000.00 (Thirty thousand naira) general and special damages from the defendant in negligence.
Special damages:
(a) Value of the Mercedes Benzlorry completely damaged beyond repairs                         N14,400.00
(Receipt for vehicle purchase will be founded upon).
(b) Cost of towing the vehicle from Ogbala, scene of accident to Urunebo village, Enugwu-Ukwu         N500.00
(c) Cost of labour hired to watch the vehicle for 3 days

P.2

(night and day) at N40.00.                  N120.00
(d) Loss of use of vehicle from date of accident up to date of judgment at N100.00 per day .
(e) General damages                                                               N15,600.00
Whereof the plaintiff claims as per writ.”
Pleadings were ordered and although the plaintiff filed his statement of claim, the defendant failed to file its statement of defence. The plaintiff’s witnesses were called in default of the defendant’s appearance at the trial following which the learned trial Judge entered judgment for him based upon the evidence adduced. Thereafter, the defendant unsuccessfully applied to the High Court to set aside its judgment. Accordingly, the application was dismissed. There was no appeal against the dismissal. Later, however, the defendant appealed against the judgment of the trial court dated 22nd March, 1982 to the Court of Appeal, Enugu (hereinafter in the rest of this judgment referred to as the court below). In the course of hearing the appeal, the defendant with the leave of the court below adduced further or additional evidence.
The court below in its judgment set aside the decision of the trial court and consequently dismissed the plaintiffs case. The appeal herein is against that decision premised on five grounds.
The plaintiff alone filed a brief of argument in which he submitted three issues as arising for the determination of this court, to wit:
“1. Was the Court of Appeal right in relying on the additional evidence, and on what it referred to as Exhibits

P.3

‘C’ and ‘F’ in its judgment and on matters which were not before it, to wit, cause for an insurance company to assess the value of a vehicle and questions as to the service of the writ of summons, the statement of claim and other processes in the case, to set aside the judgment of the High Court and to dismiss the plaintiff/respondent/appellant’s claim when the defendant/appellant/respondent filed no statement of defence in the case.
2. Had the decisions in Meek v. Fleming (1961) 2QB 366 and Ferguso v. Welsh & Ors. (1987) 3 All ER 77 any application to this case?
3. Was the Court of Appeal right in holding that the evidence called by the plaintiff/respondent/appellant did not sustain his claim’)”
The three issues formulated above, in my view, may be compressed into one issue which is capable of disposing of the matter in controversy thus:
Was the Court of Appeal right in receiving and relying on oral and documentary evidence (vide Exhibits ‘C’ and ‘F) and in consequence setting aside the judgment of the High Court by dismissing appellant’s claim when the respondent filed no statement of defence in the case.
For a clearer appraisal of my treatment or the lone issue, it is pertinent firstly to consider what additional evidence is all about and when it is receivable by an appellate court. Undoubtedly, the Court of Appeal has 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. See Order 1, rule 20(3) Court of Appeal Rules, 1981 (as amended) and

P.4

the Court of Appeal decision in Michael Odiase v. Vincent Omele (1985) 3 NWLR (Pt.11) 82 at 85. See also Enekebe v. Enekebe (1964) NMLR 42. However, the conditions for admitting such fresh evidence on appeal are so stringent that there are very few cases if any, in our courts where such evidence was admitted. But see the English cases of Ladd v. Marshall (1954) 1 WLR 1489 at 1491; Skone v. Skone (1971) 1 WLR812; (1971) 2 All ER 582.

The principles which an appellate court must take into consideration in the judicious exercise of its power to grant leave to adduce new evidence are:-
(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 as provided for in Order 1, rule 20(3) of the Court of Appeal Rules (ibid).
(c) The evidence to be adduced 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: Severino v. Witt & Busch (1912) 2 NLR 77;Ariran v. Adepoju (1961) All NLR 722; Federal Board of Inland Revenue v. J. Rezcallah & Son Ltd. (1962) 1 All NLR 1 at page 5; Dawodu v. Danmole

P.5

(1962) 2 SCNLR 215;(1962) 1 SCNLR 1; (1962) 1 All NLR 702; Atswaga v. Agena (1964) NNLR 122; Enekebe v.Enekebe (supra) and Atunrase & Ors. v. Federal Commissioner for Works and Housing (1975) 1 All NLR (Pt.1) 331 at pages 334-337.
In the first place, Order 1, rule 20(3) of the Court of Appeal Rules as amended (ibid) 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 matter on the merits, no such further 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.” (italics is mine for comments).
Be that as it may, instances for such applications for the receipt of additional or further evidence in this court have arisen in some cases, prominent among which is Comfort Asaboro v. M.G.D. Aruwaji & Anor (1974) 4 SC 119 following Attorney General of the Federation v. Mallam Modu” Alkali (1972) 12 SC 29. In Asaboro v. Aruwaji (supra), this court (per Coker, J.S.C.) stated the legal position succinctly as follows:-
“Before the argument on the appeal, learned counsel for the defendant sought to adduce further evidence by putting in evidence of certified true copies of company forms lodged with the Registrar of Companies in connection with the company known as Thomas Associates Ltd., and to show that on the 10th June, 1970

P.6

or thereabout when one of the forms was signed, the 2nd plaintiff was a Director of that company. We allowed the application and as we had written the ruling on the application at the appropriate time, we do not propose to discuss that issue at any length in this judgment. It is apposite to point out, however, that at the same time learned counsel for the plaintiffs applied to us to put in another certified copy of company form in connection with the same company, showing that on the 4th July, 1970, the 2nd plaintiff resigned from the directorate of that company, and we allowed it.”
As I had pointed out earlier on in this judgment, while the plaintiff filed his statement of claim and upon it obtained judgment in default, the defendant did not file a statement of defence in the case. At the hearing, the plaintiff gave evidence as PW 1, his driver testified as PW 2 while the police sergeant who investigated the accident testified as PW 3. At the end of the hearing the learned trial Judge entered judgment for the plaintiff in the sum of N30,000.00 with N300.00 costs. There is visibly no appeal against that decision.
On the 5th of April, 1982, the defendant filed an application at the High Court, Abakaliki, for an order of court to set aside the judgment delivered on the 22nd of March, 1982, but the application was dismissed and there was ostensibly no appeal against the dismissal either.
It is incontrovertible therefore, that the defendant did not join issue with the plaintiff on his averments in the statement of claim as it did not file a statement of defence in the case. Not only did the defendant not join issue with the plaintiff on his averments upon being moved the court

P.7

below on 19th April, 1985 granted the defendant leave to adduce further or additional evidence. What the court below referred to as Exhibits “C” and “F” in its judgment delivered on 9th December, 1988, were not tendered in evidence as further evidence when the court heard further evidence in the appeal on 7th October, 1986.
When the court below took additional evidence in the appeal, Exhibits CA 1, CA2 and CA3 were tendered and another document was ordered to be marked Exhibit CA4 on being certified. What the court below therefore referred to as Exhibits “C” and “F” in its judgment of 9th December, 1988, were parts of the affidavit in support of the defendant’s application for leave to adduce further or additional evidence. I take the view that the court below was wrong to refer to and rely on the said Exhibits “C” and “P’ in arriving at its judgment in the case as they did pot constitute further or additional evidence in the case. Furthermore, the said Exhibits “C” and “P’ as well as the whole evidence (oral or documentary of Jibril Amebu Amadu and Propolicap Nnaji vide page 152, 152A and 1528 of the record of proceedings) who both testified before the court below on 7th October, 1986, went to no issue as the defendant did not join issue with the plaintiff on the averments in the statement of claim. See: Ehimare v. Emhonyon (1985) 1 NWLR (Pt.2) 177 and as such the said Exhibits “C”, “F’, CA I, CA-, CA3 and CA4 were not pleaded. See: Ferdinand George v. UBA Ltd. (1972) 8-9 SC 264 and Great Nigeria Insurance Co. Ltd. v. Ladgraup Ltd. (1986) 4 NWLR (Pt.33) 72. Even if the defendant had filed its statement of defence, without its having pleaded the above exhibits, they would still have gone to no issue

P.8

unless such a statement of defence was amended to cover the proposed further or additional evidence.
See Bello Akanbi  & Ors. v. Mamudu Alao & Anor (1989) 3 NWLR (Pt. 108) 118 at 191.
Parts of the judgment of the court below as can be seen, were based on Exhibits “C” and “F” and these affected the whole judgment in the case herein; thus leading it (court below) to set aside, erroneously the judgment of the trial court. The reliance by the court below on the two English authorities of Meek v. Fleming (1961) 3 All ER 148 and Ferguson v. Welsh & Ors. (1987) 3 All ER 777 is strictly  inappropriate to the case in hand, wherein with or without Exhibits “C”, “F’. CA1, CA2. CA3. CA4,  I venture to say, the plaintiff would still have got judgment for the sum claimed viz N30, 000.00 damages.
Irrespective of what the court below said that the counsel “for the plaintiff did not dispute the authenticity or the said additional evidence” this is not borne out by the record of appeal. On the submission of learned counsel for the plaintiff that the further evidence could be used for the cross-examination of the plaintiff as to his credit, the court below upheld that submission which, with due respect, could not have been so since the defendant filed no defence in the case. What is more, further or additional evidence of a witness could only be adduced where on application for a new trial, the witness was recalled by the court for cross- examination and not as done here in which what transpired was no more than adduction of “fresh evidence at page 152, 152A and 152B of the record respectively.
In  Atunrase & Ors. Federal Commissioner for Works &

P.9

Housing (supra) this court appropriately granted one of the plaintiffs/appellants permission on appeal, to tender in evidence a letter in which one of the defendants had, contrary to two affidavits which his family had sworn to, written to the Federal Government that he had sold the piece of land to him (plaintiff/appellant), and the reply from the Federal Government acknowledging the situation. After this court had admitted these documents as additional evidence, the plaintiff/appellant contended firstly, that the trial court’s finding of fraud was wrong because fraud was neither pleaded nor mentioned by the parties in the proceedings before the lower court, and secondly, that trial Judge erred in holding that the mere issuing of acquisition notice under the Public Lands Acquisition Act automatically vests the ownership or the land in the Government. It was held inter alia:
(a) That the order of the lower court, awarding compensation in respect of the area of land concerned to the Oloto Chieftaincy Family is hereby set aside; and
(b) That the compensation due should be paid to the appellant instead.
In Odiase v. Omele (supra), the Court of Appeal adumbrating and underlining the applicable principles unanimously refused the application brought by the appellant to adduce further evidence (in that case a layout plan that was in existence at the trial of the action) stating inter  alia that:-
“1. Order 1, rule 20(3) of the Court of Appeal Rules, 1981 as amended sets out the conditions under which further evidence may be admitted on hearing an appeal against the decision of a lower court.

P.10

2. Where as in this case, the application is to adduce further evidence on the hearing of an appeal from the judgment given at the lower court after a trial or hearing of any cause or matter on the merits, further evidence can only be adduced in respect of matters which have occurred after the date of the trial or hearing.
   3. In this case, the certified true copy of the original layout plan which is sought to be tendered in evidence, is a copy of an original which came into existence in 1973; therefore, the document is not a matter which has occurred after the date of hearing.
   4. Further evidence means evidence which is complementary to evidence already adduced at the trial and which may be taken together with it. to prove or defeat a claim. A piece of evidence which contradicts the evidence of the applicant at the court below cannot be said to be further evidence but really a substitutional evidence.
   5. Where however, a witness made a mistake on a most important matter and wished to put it right, and the circumstances were so well explained that his fresh evidence were (sic) presumably to be believed, there would be ground for a new trial.
   6. An appellate court is not a trial court and as such once a case has been tried and concluded, the case should not be re-opened on appeal, to enable a party to improve on his case at the trial court by allowing him to adduce further evidence, unless such evidence could not have been obtained for use at the trial by the exercise of reasonable diligence:’
   Irregularities attendant to this instant case in its

P.11

peregrination through the courts may be demonstrated as follows:-
Firstly, on  30th January, 1985 when the plaintiff’s application to adduce additional evidence was brought before the court below the composition of the court was coram:
“Hon Mr. Justice S.M.A. Belgore Justice, Court of Appeal
Hon. Mr. Justice O.O Olatuwura Justice, Court of Appeal
Hon. Mr. Justice S.S. Aikawa Justice, Court of Appeal”
On the 15th day of April, 1985, the composition of the court remained the same. However, by 7th October, 1986 when the purported additional evidence of the two witnesses called by the defendant was proffered leading to the ruling complained of, the court’s composition changed to:
“Hon. Mr. Justice A.I. Aseme Presiding Justice
Hon. Mr. Justice S.S. Aikawa Justice, Court of Appeal
Hon. Mr. Justice A.I. Katsina-Alu Justice, Court of Appeal”
It has been decided by this court in Gabriel Madukolu & Ors. v. Johnson Nkemdilim (1962) 2 SCNLR 341: (1962) ANLR (Pt. 4) 587 that a court is competent when:
(1)  It is properly constituted with respect to the number and qualification of its members:
(2) the subject-matter of the action is within its jurisdiction:
(3) the action is initiated by due process of law; and
(4) any condition precedent to the exercise of its jurisdiction has been fulfilled. (Italics is mine)
In the case in hand. from the way the court below was irregularly constituted, Exhibits “C’. “F’. CA1, CA2. CA3 and CA4 constituted documents irregularly received and a decision based on them as additional evidence would

P.12

appear to me to go to no issue. In other words, courts ought to restrict themselves to the matters put before them by the parties. See: Orizu  v. Anyaegbunam (1978) 5 SC 21 (1978) 1 LRN 216 at 222. Thus,  as this court also had occasion to state in categorical terms in Overseas Construction Ltd. v.  Creek Enterprises (Nig.) Ltd. (1985): 3 NWLR (Pt. 13) 407, courts should not adjudicate on matters not put before them by the parties.

In the result, the one single issue formulated by me is answered in the affirmative and the decision cannot be allowed to stand.
Consequently, this appeal succeeds and it is accordingly allowed by me. The decision of the court below is set aside while that of the trial High Court is accordingly affirmed. There shall be no order as to costs.