By LUQMAN MUHAMMAD SIRAJO, Esq., MCIArb., ACB

Abstract: This article seeks to examine the concept of adducing new evidence on appeal; the manner/mode of introducing such evidence on appeal; the conditions attached thereto; the hurdles involved; and the attitude of the courts towards it.

Keywords: additional evidence, adduce, appeal, appellate court, applicant, application, court’s discretion, diligent prosecution, equity, evidence, evidence on appeal, fair hearing, fresh evidence, further evidence, interest of justice, judicially and judiciously, natural justice, new evidence, re-litigation, special grounds, substantial justice, trial court

“The main function of an Appellate Court (including the Court of Appeal) is to re-evaluate the evidence at the trial Court.”[1]

“An appeal is not the inception of a new case.”[2]

This were the golden words of Niki Tobi, and Oputa, JJSC (of blessed memories) respectively.

From the above statements, it is crystal clear that the primary assignment of an appellate Court is to re-evaluate the evidence placed before the lower Courts. The Supreme Court Act 1960[3] and the Court of Appeal Act 2005[4] as well as the Supreme Court Rules 1985[5] and the Court of Appeal Rules 2021[6] empowers the 2 appellate Courts to entertain applications to adduce fresh evidence on appeal and admit same. Application by a party to tender new evidence is not granted as a matter of course. However, there is an exception to this general rule. On application by a party to the appellate Court, an appellate Court is empowered to admit and evaluate fresh evidence on appeal in the interest/furtherance of justice[7], but, such application is seldom granted. Therefore, it is safe to say that admitting/adducing fresh evidence on appeal is not as of right but as a matter privilege/discretion.

Before we proceed, what do we understand by the phrase “Fresh/New evidence on appeal”? As the phrase implies, fresh/new evidence on appeal simply means any piece of evidence that came into being, available or discoverable after a case had been determined at the trial/lower Court. In other words, fresh evidence is any evidence that was not in existence or was not discovered during trial after due diligence/reasonable search by the party who sought to adduce/bring the evidence on appeal.[8] Fresh/new evidence is also known and referred to as “Further or additional evidence”[9]

Since it is permissible for the appellate Courts to admit fresh evidence on appeal, it is vital/crucial to know the procedure/mode of how to bring the new evidence to the notice of the appellate Courts. Fresh/further evidence is brought to the notice of the appellate Courts via an affidavit in interlocutory appeals or by the court taking fresh evidence e.g. by calling a witness to testify in court[10]. However, where the appeal stems from a judgment on merits of the trial Court, an applicant must file and serve an application/motion on notice. It is important to note that such evidence (fresh/further) will only be admissible on appeal if a party (the Applicant) can prove to the Court that there are special grounds[11]. My lord, Sirajo, JCA held thus:

“While permitting the Court to receive further evidence, the Rule limited the power of the Court to do so only to evidence on matters which have occurred after the trial or hearing, and even then, the Applicant who wishes to call further evidence must show special grounds. An application brought under this Rule is not one that can be granted as a matter of course. It calls for the exercise of the Court’s discretion, which must be exercised judicially and judiciously, taking into consideration the need to do substantial justice to the parties.”[12]

A party seeking to adduce new evidence on appeal must obtain leave of the appellate Court first[13] by making an application (Motion on Notice) to the appellate Court praying for the leave of the Court to adduce fresh/further evidence at the hearing of the appeal. It should be noted that it is a condition that such an application must be made, heard and determined before the date slated for hearing of the appeal.[14]

Once a litigant files his/her application to adduce further evidence on appeal, he/she becomes an Applicant to that application while the other party becomes the Respondent. The Respondent to that application may respond to that application by filing his/her counter affidavit at the registry of the Supreme Court, if the appeal is in Supreme Court[15]. But, if the appeal is in Court of Appeal, both the application to adduce fresh evidence as well as that of the Respondent must be accompanied by a written address[16]. The Applicant is at liberty to reply on points of law if new issues of law are raised by the Respondent in his/her counter-affidavit. When this is done i.e. parties have joined issues or if the Respondent choose to waive his/her right to counter the application, the application is said to be ripe for hearing and will be heard by the appellate Court before the hearing of the appeal itself.

In determining the application for adducing fresh/further evidence on appeal, the appellate Court must exercise its discretion judicially and judiciously as rightly stated by the erudite jurist, Sirajo, JCA above in the case of Adisa v. Conoil & Ors.[17]. Furthermore, there are certain conditions/special grounds that must be satisfied before the new evidence will be admitted on appeal. As rightly held by my noble lord, Rhodes-Vivour, JSC in Oboh & Anor v. NFL LTD & Ors.,[18] the conditions are:

The evidence sought to be adduced does not exist during trial or could not have been obtained with reasonable diligence during trial;
The fresh evidence if given would have an important influence on the result of the case; and
The evidence must be credible, material and weighty, as well as relevant to the suit/appeal.
In addition to the findings/holdings above of his lordship, Rhodes-Vivour, JSC, permit me to add that the new/further evidence sought to be tendered must not in any way modify the case of the Applicant as it will alter the bearing of the case and amount to injustice to the Respondent/other party to the case. This position was reiterated by Nweze, JSC (of blessed memory) when he held that:

“As counsel for the respondents pointed out, if that issue had been raised at the trial, they would perhaps, have been able to join issues with the applicant on it… if this Court obliges this entreaty to raise that issue now, it would have endorsed the, evidently, surreptitious attempt to overreach the respondents by the introduction of an entirely new case or line of defence difference from the issues fought by the parties at the lower Courts.”[19]

An Applicant should bear in mind that all the above listed conditions must co-exist and must be satisfied by an applicant before an appellate Court will exercise its discretion to admit and evaluate further/fresh evidence on appeal[20]. If one of the conditions is not satisfied, then the Applicant’s application to adduce fresh/further evidence on appeal will automatically fail and will not be granted by the appellate Court. Therefore, the fresh evidence not admitted will not and cannot be used by the Applicant at the hearing of the appeal/for the determination of the appeal. On the other hand, once an Applicant satisfies those conditions, the appellate Court will admit the new/further evidence and give the Respondent the opportunity to join issues on that piece of evidence which shall form part of the appeal and such evidence shall be considered in the determination of the appeal.

I am not oblivious to the fact that an Applicant in order to strengthen his/her case and for the appellate Court to rule in his/her favour, an Applicant may likely invoke the constitutional provision of the right to fair hearing[21]. An applicant in an argument to get pass behind the requirement for special grounds may raise the point that the provisions of the Rules of Court (Supreme Court and Court of Appeal) which serves as a sieve and a barrier to such applications are inferior to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereinafter referred to as “CFRN”)[22], particularly Section 36 of the CFRN which deals with the Right to Fair Hearing. More so, Rules of Courts as stated by Belgore, JSC are:

“Rules of Procedure are made for the for the convenience and orderly hearing of cases in Court… The rules are therefore aids to the Court and not masters of the Court.[23]”

Fair hearing is premised on the principles of natural justice (audi aulteram partem meaning “listen to the other side” and nemo judex in causa sua “no one is judge in his own cause)[24], fairness, and equity[25]. Also, it is well established that he who comes to equity must come with clean hands[26]. One cannot sleep on his/her right by being indolent during trial and later cry of foul play. Equity only helps the vigilant and not the indolent[27]. Fair hearing also is not a one-way traffic i.e. it is not meant for the benefit of one party only. Fair hearing applies to all parties involved in the case. Therefore, it is the courts’ duty to balance the interest of contending parties. Justice should not be sacrificed on the altar of non-diligent prosecution.

It is trite law that application to adduce fresh evidence on appeal is an invocation of the equitable jurisdiction of the Court[28]. “… equity only aids the vigilant and not the indolent”[29] as rightly held by Dongban-Mensem, PCA. Hence, it is without any iota of doubt that it will be unjust and unfair to allow non-diligence on the part of a litigant who decided to sleep on his/her right at trial to later decide to reshape his/her case by way of adducing evidence which he/she is aware of but failed to bring it up at trial or he/she is not aware of due to lack of adequate/reasonable preparatory on their part. In the case of Adeyemi v. State,[30] Sirajo, JCA held that:

“It appears the abuse of the fair hearing principle by litigants has continued unabated despite the admonition of the Supreme Court over the use of such lame and lazy excuses. In Orugbo & Anor vs. Bulara Una & Ors (2002) 9-10 S.C. 61; (2002) LPELR-2778 (SC), Tobi, JSC, said: “It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court.” Six years later, the same cerebral law lord, Niki Tobi, JSC (of blessed memory), continued his admonitions to litigants on their wrong use of the fair hearing principle, in the case of Adebayo vs. Attorney General, Ogun State (2008) LPELR-80 (SC), thus: … The fair hearing provision is the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage.”[31]

Though the appellate courts are authorised to admit fresh evidence on appeal, however, the appellate courts will not allow a party/litigant to take advantage of that to remold/reshape his/her case on appeal as that is tantamount to re-litigating matters that have been laid to rest. The apex court as per Agbaje, JSC held that:

“And in the exercise of its discretion in the application of this rule of practice the appellate Court has debarred an appellant from arguing a case totally inconsistent with or contradictory to the case previously argued.”[32]

If there is one thing that one must take home with, is that the Courts rarely grant applications to adduce new/further evidence on appeal. Based on judicial precedents, it can be seen that such applications are granted once in a blue moon and this can be seen in a plethora of judicial authorities/cases. Below are what some of the learned jurists held in regards to application to adduce new evidence on appeal –

Peter-Odili, JSC:

An application to adduce or produce and rely on fresh or additional evidence on appeal is not granted as a matter of course … It is granted in the judicial discretion of the Court. It is one not readily granted and granted sparingly on every special or exceptional circumstances … This attitude of appellate Courts is in conformity with the public policy; that there must be an end to litigation… Application for additional or fresh evidence is not intended to supply the missing links in his case, or that it be used by the appellant/applicant as a repair kit to enable him mend his case at the trial that he lost.[33]

Rhodes-Vivour, JSC:

“The discretion to allow a party to call new evidence on appeal should be sparingly exercised and only for the furtherance of justice. On no account should a party who called insufficient evidence or was lethargic at trial benefit from this discretion.”[34]

Kekere-Ekun, JSC:

“The power to admit new, fresh or additional evidence must always be exercised sparingly and with caution.”[35]

The above 3 holdings of the apex court vividly shows the attitude of the appellate Courts in granting the application for adducing new evidence on appeal. The above position is not meant to scare litigants away from applying to adduce fresh evidence on appeal. Rather, it is meant to educate, enlighten and inform litigants about the exceptional mandatory requirements that must be fulfilled/satisfied in order for the litigant/applicant to succeed in his/her application and also to be wary of circumstances that will lead to the refusal of such application or that will not warrant the grant of such application.

I am of the strong view that the special grounds/conditions required to be satisfied before the Court could invoke its powers to admit additional evidence serves as a floodgate to litigation. In addition to this, the conditions/special grounds also serve as a wake-up and an eye-opener call to unserious litigants. Without the conditions placed by the appellate Courts, some litigants are likely not to prosecute/defend their cases diligently during trial knowing fully that they will have a second bite at the cherry if the judgment does not favour them by re-litigating and re-strategising their case on appeal via the means of adducing new evidence. Such action/attitude will defeat the purpose of having appellate Courts as it will gradually convert appellate Courts into another trial Court.

The liberty given to litigants to adduce new evidence on appeal should never be used as a mechanism to re-litigate their cases as this will amount to a serious miscarriage of justice to the other party/Respondent as well as the lower Courts. My lord, Oredola, JCA held as follows:

“It will thereby occasion great injustice and ridicule to the lower Court if parties are granted the liberty to raise new point of law or issue on appeal and set aside the decision of the lower Court as a result thereof.”[36]

Written by LUQMAN MUHAMMAD SIRAJO, Esq., MCIArb., ACB

Called to the Nigerian Bar and the Bar of England and Wales by the Honourable Society of Lincoln’s Inn. A Member of the Chartered Institute of Arbitrators. Initially practiced at Lateef O. Fagbemi, SAN & Co., but currently in public service.

lmsirajo@nigerianbar.ng

https://www.linkedin.com/in/luqman-sirajo-810b017a/

[1] Dada & Ors v. Bankole & Ors (2008) LPELR-907 (SC) Pp. 30-31, paras. G-A; [2008] 5 NWLR (Pt. 1079) P.26

[2] Oredoyin & Ors v. Arowolo & Ors. (1989) LPELR-2756 (SC) P. 67, paras. B-C; [1989] 4 NWLR (Pt. 114) P.172 @ 211

[3] Section 22

[4] Section 15

[5] Order 10 Rule 12

[6] Order 4 Rule 2

[7] Okoro & Ors. v. Egbuoh & Ors. (2006) LPELR-2491 (SC) P.22, paras. A-F; 15 NWLR (Pt. 1001) P.1

[8] Anatogu & Ors. v. Iweka II & Ors. (1995) LPELR-484 (SC) P. 57, paras. D-E; 8 NWLR (Pt. 415) P.547

[9] Owata & Ors. v. Anyigor & Ors. (1993) LPELR-2842 (SC) Pp. 22-23, paras. G-C; 2 NWLR (Pt. 276) P.380

[10] Elike v. Nwakwoala & Ors. (1984) LPELR-1118 (SC) Pp. 22-23, paras. G-B; 1 ANLR P.505

[11] Court of Appeal Rules, 2021, Order 4 Rule 2; Duke & Anor v. Ambo & Ors. (2013) LPELR-21140 (CA) Pp. 19-22, para. D

[12] Adisa v. Conoil (Nig.) PLC & Ors. (2021) LPELR-56209 (CA) Pp. 8-9, para. B

[13] Statoil (Nig.) Ltd. v. Inducon (Nig.) Ltd. & Anor (2018) LPELR-44387 (SC) P.13, paras. A-C; [2018] 9 NWLR (Pt. 1625) P.586

[14] Supreme Court Rules, 2014, Order 2 Rule 12; Court of Appeal Rules, 2021, Order 4 Rule 2

[15] Supreme Court Rules, 2014, Order 2 Rule 28

[16] Court of Appeal Rules, 2021, Order 6 Rule 1

[17] Adisa v. Conoil (Nig.) PLC & Ors. (2021) LPELR-56209 (CA) Pp. 8-9, para. B

[18] (2020) LPELR-55520 (SC) Pp. 13-14, paras. E-C

[19] Bulet Int’l (Nig.) Ltd. & Anor v. Olaniyi & Anor (2016) LPELR-40303 (SC) Pp. 27-28, paras. E-D; [2016] 10 NWLR (Pt. 1521) P. 580

[20] T.S.A. Industries (Nig.) Ltd. v. Kema Investments (Nig.) Ltd. (2008) LPELR-8479 (CA) Pp.14-16, paras. F-C

[21] Constitution of the Federal Republic of Nigeria, 1999 (as amended), Section 36

[22] Wonah Construction Co. Ltd. v. Nassarawa State Govt. & Ors (2019) LPELR-48357 (CA) Pp. 14-35, paras. D-C

[23] U.T.C. (Nig.) Ltd. v. Pamotei & Ors (1989) LPELR-3276 (SC); [1989] 2 NWLR (Pt. 103) 244

[24] Adamu & Anor v. FRN (2017) LPELR-42338 (CA)

[25] Ifediorah & Ors v. AMCON & Anor (2018) LPELR-48695 (CA) Pp. 25-28, paras. A-D

[26] Karaye v. Wike & Ors (2019) LPELR-49382 (SC) P.24, paras. D-E

[27] Fed. Uni. Of Tech., Yola v. Nkire (2014) LPELR-24202 (CA) Pp. 34-35, paras. F-A

[28] Ifediorah & Ors v. AMCON & Anor (2018) LPELR-48695 (CA) Pp. 25-28, paras. A-D

[29] Olawunmi v. Ugwu & Ors. (2022) LPELR-59116 (CA) Pp. 21-25, paras. F-C

[30] (2022) LPELR-57342 (CA)

[31] (2022) LPELR-57342 (CA) Pp. 16-20, paras. F-A

[32] A-G Oyo State & Anor v. Fairlakes Hotel Ltd. (1988) LPELR-24926 (SC) Pp. 25-27, paras. E-C

[33] Sharing Cross Educational Services Ltd. v. Umaru Adamu Enterprises Ltd & Ors (2020) LPELR-49567 (SC) Pp. 21-31 paras. E-B

[34] Oboh & Anor v. NFL LTD & Ors (2020) LPELR-55520 (SC) Pp. 13-14, paras. E-C

[35] Williams & Anor v. Adold/Stamm Int’l (Nig.) Ltd. & Anor (2017) LPELR-41559 (SC) P. 31 paras. B-D

[36] Orika & Ors v. Jibrin (2018) LPELR-44652 (CA) Pp. 15-17, paras. C-A