ON WEDNESDAY, THE 22nd of January, 2014
AFRICAN INTERNATIONAL BANK LIMITED ...... Appellant
UNITED BANK FOR AFRICA PLC .................. Respondent
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Lead Ruling):
The Appellant lodged an appeal against the decision of the Kaduna State High Court delivered on the 4th February 2004 in Suit No.KDH/KAD/597/2002 striking out the said suit for being an abuse of process of the court. The court on 4/2/04 stated thus:
"I therefore hereby uphold the objection of learned Counsel to the defendant in urging this Court to strike out this suit and to declare same as an abuse of Court processes. The matter is hereby struck out. As there is nothing before this Court to show that the matter at Port-Harcourt High Court has been withdrawn or any order set aside."
This appeal is still pending while the Appellant filed this application asking for leave to adduce additional evidence which he stated was discovered after the decision of the lower Court. The Applicant prayed for the following:
1. Leave of this honourable Court to adduce additional/further and new evidence to wit by admitting the ruling of Hon. Justice P. N. C. Agumagu of Port Harcourt High Court of Justice in suit No. PHC/323/2001 delivered on 14th May, 2003 between A. Micheletti Ltd vs. France Bruce Ltd & 9 others in place of or together with the statement of claim of the same suit No.PHC/323/2001 which already admitted in evidence in suit No.KDH/KAD/597/2002 presided over by Hon. Justice Othman Abdulkadir of the Kaduna High Court and constituting part of the record of proceedings and contained at page 29 of the Record of proceedings of this Appeal in proof of the issue of Abuse of Court process being basis of this Appeal.
2. Leave of this honourable Court to adduce additional/further evidence indicating that A. Michelleti Plc is under receivership to wit by admitting deed of appointment of receiver/manager dated 9th January, 2003 registered with corporate affairs commission.
3. Leave of this honourable Court to adducing additional/further evidence to wit, by admitting Certified True Copy of search report by Corporate Affairs Commission indicating that the Receiver/Manager appointed has not been discharged.
4. Incorporating the Additional/Further and new evidence as in Paragraph's 1, 2 and 3 above, into the record of the Court so that it forms part of the earlier record of the suit No.KDH/KAD/597/2002 presided over by Hon. Justice Othman Abdulkadir leading to this Appeal.
5. Leave to Amend the Appellants Brief of Argument in this Appeal dated 26th August, 2005 to incorporate the new and additional evidence admitted by this Honourable Court.
6. And for such further order and orders as this Honourable Court may deem fit to make in this circumstances of this Appeal.
TAKE FURTHER NOTICE THAT the grounds of this Application are as follows:
i. There is a subsisting Judgment of the Kaduna High Court of Justice presided over by Hon. Justice Othman Abdulkadir between the Appellant and Respondent in Suit No. KDH/KAD/597/2002 leading to this Appeal, the Appeal has been slated for hearing on 9th April, 2007 for adoption of parties respective Briefs of Argument.
ii. The Respondent misdirected the Court when he deliberately exhibited a Writ of Summons, instead of telling the Court that the Respondent was under receivership in proof of principle of abuse of Court process, the ground upon which the Respondent succeeded in the Court below.
iii. The issue in this Appeal is whether the principle of Abuse of Court process will operate to decide this Suit leading to this Appeal on the face of the proceedings in Suit No. PHC/323/2001.
iv. The abstract of the proceeding of the Court in Suit No. PHC/323/2001 will enable this Court to wholly determine the real question in controversy in this Appeal once and for all.
v. The record of proceedings would, if admitted have an important and crucial effect on the whole case. It has also been newly received that A. Michelleti has been in distress and under receivership.
vi. That a search report at Corporate Affairs Commission shows that Receiver/Manager appointed has not been discharged, therefore the suit in competent.
In arguing this application, learned Counsel for the Applicant, Hassan Abdrulrahman Esq; firstly submitted that this Court being a Court of justice will not allow a litigant to escape with a judgment on grounds of technicality only. He explained that the judgment of the Lower Court which has given rise to this appeal clearly made reference to Suit No.PHC/323/2002. He stated that the reason for bringing this fresh piece of evidence is the need to be very careful to ensure that all the avenues available for prosecuting the case are exploited to the fullest. He referred to Exhibits B, C, and D attached to the affidavit in support of the Motion and submitted that any new evidence that has the ability to show that an earlier judgment was decided on an invalid premise is relevant, particularly, where it is clear that the Lower Court would have decided otherwise had it been armed with the new evidence at the trial. He referenced the case of Justina Nwaosu vs. Honourable Emeka Abuma & 2 Ors (2013) 9 S.C.N.J. 1; per Ngwuta, J.S.C; sections 393(4) 417 of the Companies and Allied Matters Act, and listed the circumstances as depicted by Ngwuta, J.S.C., for granting this type of application, as; (1) where the additional evidence could not be obtained for use during the proceedings at the trial court; (2) if the document is admitted, it would have an important and crucial effect on the whole appeal; (3) the documents are such that are apparently credible; (a) the document would have influenced the judgments of the Lower Court in favour of the applicant and (5) the document is weighty and material. Learned Counsel explained that Exhibit B is an indication that the case is dead and it need not be accorded any recognition by this Court. Also, the fact of appointment of a Receiver is in itself a fresh evidence. He argued that the Port-Harcourt case can no longer be sustained by the Company. Exhibit C is the Deed of Appointment of the Receiver while Exhibit D is the Search Report from the Corporate Affairs Commission showing that the Company is still under receivership. Learned Counsel raised an issue as to the facts deposed to in the Applicant's affidavit not being challenged.
I must observed with due respect, that the Respondent herein, filed a Counter-affidavit of four paragraphs together with the Respondent's address in respect of this Motion.
It was contended by the Respondent that under Order 4 Rule 2 of the Rules of this Court, in the case of an appeal from a judgment after trial or hearing of any case or matter on the merits, no 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. Learned Counsel pointedly argued that the ruling of the River State High Court sitting at Port-Harcourt in Suit No. PHC /323/2001, which the Applicant is persuading this Court to admit as a fresh or additional evidence, was delivered on the 14th May, 2003 whereas the judgment of the Lower Court being appealed against was delivered on 4/2/2004.
He contended that the ruling of the River State High Court delivered on 14/5/2003 is not evidence as to matters that occurred after the date of trial or hearing at the lower Court. He referred to the phrase "the trial or hearing" mentioned in the provisions of Order 4 Rule 2 of the Rules of this Court and emphasized that the Applicant must show special grounds to succeed in this application.
He argued that to receive or not to receive an additional evidence is a discretionary matter of this Court, but such a discretion must be exercised judiciously and judicially. The Court must recognize that; (a) the evidence sought to be admitted must be such as could not have been with reasonable diligence, obtained for use at the trial; (b) the evidence should be such that if admitted, it would have an important effect on the whole case and; (c) the evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible. Counsel cited the cases of Amaechi vs. I.N.E.C. (2008) 5 N.W.L.R. Part 1080 page 227 at 444-445; Asoboro vs. Aruwaju (1974) 4 S.C. 119 at 124; Ehinlanwo vs. Oke (2008) 15 N.W.L.R. Part 1113 page 357 at 384; Iweka vs. S.C.O.A. (2000) 3 S.C. N. J. 71 at 83; Adelaja vs. Yesufu Alade (1999) 4 S.C.N.J. 225 at 245; Efunwape Okulate vs Gbadamosi Awosanya (2000) 1 S.C.N.J. 75 at 93-94 and Umarah vs. Attah (2005) 9 S.C.N.J. 84, and submitted that the difficulties mentioned at paragraph 3 sub-paragraphs (a)-(j) of the affidavit in support of the Motion apparently occurred after the date of the judgment of the Court below. He contended that reasonable diligence as mentioned by the Supreme Court in Ehinlanwo vs. Oke (supra) should have dictated to the Applicant to ascertain the position in Suit No.PHC/323/2001 in Port-Harcourt during the pendency of Suit No.KDH/KAD/597/2002 before the Kaduna State High Court which led to this appeal. The Supreme Court stressed in Iweka (supra) that the three special grounds must co-exist to warrant the grant of such application which the present application has not met, therefore, the application must fail.
There is no doubt by Order 4 Rule 2 of the Court of Appeal Rules, 2011, this Court possesses the power to receive further evidence on questions of fact, either by oral examination, 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.
In Amaechi vs. I.N.E.C. (supra) Muhammad, J.S.C.; held
"That for an appeal court to admit additional evidence of facts on appeal, there must exist special grounds. Such special grounds are as follows:-
- 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 shall 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 credible in the sense that it is capable of being believed and it need not be incontrovertible,
- The additional evidence may be admitted if the evidence sought to be adduced would have influenced the judgment at the Lower Court in favour of the applicant had it been available at the trial court.
- The evidence should be weighty and material, where evidence sought to be admitted is irrelevant and immaterial, it will be rejected."
Further, in Okpanum v. S.G.E. (Nig.) Ltd. (1998) 7 NWLR Part 559 page 537, Uwais, J.C.N., opined that:
"the additional evidence has to be in respect of an event that happened after the judgment of the High Court and secondly, it is only under special circumstances or grounds that such additional evidence should be admitted".
His Lordship went further to express,
"The question is: what is the "matter" that occurred after the date of the hearing of the case by the High Court? Is it the registration of the ownership of the vehicle or the discovery by the respondent that the vehicle belonged to a third party? The answer is the latter, that is, the discovery by the respondent. The question that follows is: should the respondent be allowed to adduce additional evidence as to the discovery? I do not think so. Firstly, under the Court of Appeal Rules - Order 1, rule 20(3) - a special ground must exist for the additional evidence to be admitted. Secondly, for the additional evidence to be relevant to the case, the facts to be admitted as additional evidence must go to the issue in the case. The discovery or the fact that the vehicle was not registered in the name of the appellant may be important for the purpose of disproving the appellant's claim; but of what use was it at the stage at which such additional evidence was discovered? There were no pleadings by the respondent to support the admission of the additional evidence since the respondent did not file statement of defence at the hearing of the case to aver that the vehicle did not belong to the appellant. There were, therefore, no special circumstances or grounds for the Court of Appeal to admit Exhibits CA1, CA2, CA3 and CA4 as additional evidence. The only use which the respondent could have made of the new evidence would be to cross-examine the appellant at the hearing before the High Court as to his ownership of the vehicle, This could not have happened before the Court of Appeal. The Court should not, therefore, have admitted the additional evidence.
Furthermore, could the evidence discovered by the respondent be properly referred to as "further evidence" since the respondent did not adduce any evidence at the hearing in the court below? It could be additional to the evidence adduced by the appellant but certainly not to the respondent which did not call any evidence at all at the High Court."
It ought to be reminded that Suit No. KDH/KAD/597/2002 was struck out for being an abuse of process of Court. The decision of the Lower Court had nothing to do with the status of A. Micheletti Plc; whether it was still a viable Company or going under receivership. The fact is that Suit No. PHC/323/2001 was still pending before the River State High Court sitting at Port-Harcourt when the Appellant filed Suit No.KDH/KAD/597/2002 before the Kaduna State High Court. It was on that premise, the lower Court, in its decision of 4/2/2004 queried;
"Is it proper for this Court to proceed to determine this Suit where and when its (sic) is confirmed that there is a matter similar between the parties at the Port-Harcourt High Court, this is in fact one of the situation (sic) referred to (sic) NV SCHEEP's case. Its certainly an abuse of Court processes (sic)". The Court went further to state; "No matter how good a case(sic) it will be wrong for a Judge to proceed to determine a matter, which is already before another Court."
I would, therefore, divert the attention of this Court to Annexure B attached to this Motion. It is a certified true copy of the proceeding of the River State High Court conducted on Wednesday, the 14th May, 2003. As shown on Annexure A, the decision of the Lower Court was delivered on the 4th February, 2004 signifying that this piece of evidence the Appellant wants to adduce further, was in existence as at the 17th June, 2003 when P.W.1 was cross-examined before the Lower Court as to the existence of Suit No.PHC/323/2001.
It is imperative to note that the order of the Lower Court adjourning the Port- Harcourt suit sine die had been made by the River State High Court before P.W.1 was cross-examined on it. Written addresses of Counsel were adopted before the Lower Court on 12/1/2004, yet the Applicant's Counsel or the Applicant itself never bothered to carry out investigation at the River State High Court sitting at Port-Harcourt to ascertain the state or stage of the case. They waited until hearing was fully conducted, addresses were filed and adopted and the Lower Court delivered its decision on 4/2/2004, before they woke up from their slumber and suddenly realized the necessity to obtain up to date information about the suit pending in the River State High Court. It was obtained on 26/9/2006.
I am afraid, the Applicant has not shown due diligence and has not displayed any special grounds that would prevail on this Court to allow this application. The fact about adjourning the action pending before the River State High Court sine die did not occur after the date of trial or hearing as stipulated by Order 4 Rule 2 of the Rules of this Court. It is not a fresh evidence.
It need be emphasized that Suit No. PHC/323/2001 pending before the River State High Court sitting at Port-Harcourt was not and has not been struck out or withdrawn. It is still in the docket of the River State High Court. It is instructive to note the difference between striking out of a suit and adjourning a suit sine die.
Adjournment sine die means adjournment "without date," or "adjournment without day." To adjourn means to postpone or stop a trial for a period of time, or defer or postpone a matter to some future time, either specified or not specified. To adjourn sine die means without fixing a day for future action or sitting or meeting. When a Court adjourns a matter sine die, it means the matter is stayed indefinitely without a future date being arranged. A matter may be adjourned sine die if there is no possibility of proceeding in the foreseeable future, i.e., if there is no prospect of continuing the action at that time. In a sine die adjournment of this type, the hearing stands open indefinitely and could theoretically be resumed if the situation changed. Sine die means without any future date being designated as for resumption. It further means indefinitely. Indefinite means not certain in amount or length of time, having no exact limits.
Further, adjourning sine die is like putting a case on indefinite hold, not knowing when to resume. Any of the parties in the matter could approach the Registrar of the Court when the reason for adjourning sine die comes to an end, to have the matter fixed for mention or hearing, because the matter has not seen struck off the list or struck out, therefore, it is still pending before the River State High Court. The matter was adjourned thereat, without, mentioning the date because of the issue of receivership mentioned. It follows that when the issue of receivership is over any of the parties could go back to resurrect it by having hearing notices served on the parties. See Tinubu vs. I.M.B. Securities Plc (2001) 16 NWLR Part 740 page 670, where the Supreme Court expressed that the Latin expression sine die means without a date being fixed. On the other hand, a struck off matter can never have hearing notices served on the lawyers in its respect. There must be a Motion on Notice filed for it to be relisted. In a sine die circumstance, all that need to be done is service of hearing notice because the matter is still pending before the Court. It was adjourned without setting a date for resumption of the hearing. In Chief Ozo Nwankwo Alor & Anor vs. Christopher Ngene & ors (2007) 17 NWLR Part 1062 page 184 where Niko Tobi, J.S.C. stated that; the Rules of Court empower a party whose case was struck out to reapply to the same Court to have the case relisted and determined. For instance, where an action is struck off for want of prosecution, it can be relisted by a Motion on Notice. In such situation the matter has not totally left the Cause List because by the order of striking out, the plaintiff is at liberty to file a motion to relist the cause.
A matter adjourned sine die does not require the filing of any Motion on Notice to have it relisted in the Cause List of the Court. All the interested party needs to do is to approach the Registry of the Court and request that it be fixed for mention or hearing and hearing notices will be served on the parties. It does not require the approval or an order of the Court to be fixed for hearing. It is, therefore, my profound view that the so called additional evidence cannot be said to be relevant when the matter is still pending before the River State High Court. It was merely adjourned indefinitely without any date given for its resumption. Whether the company, A. Micheletti Plc., is under receivership is irrelevant to the decision of the Lower Court that merely struck out the case before it on the ground of abuse of process of the Court, that is to say, two actions involving the same parties and on the same subject matter were pending before two different Courts at the same. I am not stating that that is the scenario herein because the substantive appeal in this respect has not been heard. I merely stated the reason given by the Lower Court for striking it out for being abuse of Court process. In the circumstance, prayers 1, 2, 3, 4, 5 and 6 sought by the Applicant in this Motion are hereby refused. Accordingly, this Motion is hereby dismissed. I make no order as to costs.
DALHATU ADAMU, J.C.A.:
I have read the ruling of my learned brother Orji-Abadua JCA and I agree with his reasons and the conclusion he arrived at. In the result I too feel that prayers 1, 2, 3, 4, 5 and 6 are hereby refused. I accordingly hereby dismiss the motion without making an order as to costs. Each of the parties is to bear his own costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.:
I have had the privilege of reading before now the ruling delivered by my learned brother, Theresa Ngolika Orji-Abadua, JCA. His Lordship has ably resolved the issues in contention in the application of the Appellant. I agree with the reasoning and abide the conclusions reached therein.
The request of the Appellant on the application in issue in this ruling is for leave to adduce further evidence before this Court in support of his case on appeal. The law is that a trial Court determines a case on its merits after hearing all the witnesses and considering all the oral and documentary evidence before it. Therefore, as a general rule, a party is bound to elicit and produce all the evidence he intends to rely upon to prove his case before the trial Court and shall not be allowed to re-shape or reconfigure his case at the appellate stage by bringing forth evidence which he did not produce before the trial Court. This is because the duty of an appellate Court is always to determine from the facts contained on the records whether the trial Court came to the light decision on the evidence place before it by both sides and whether it correctly applied the law to the facts before it. Thus, to determine an appeal on the basis of evidence or document which the Lower Court had no opportunity of seeing or considering before judgment would amount to a miscarriage of justice to the adverse party - Ombagudu Vs Congress for Progressive Change (2013) 3 NWLR (Pt.1341) 415.
This, however, does not mean that an appellate Court can never receive further evidence on appeal. Order 4 rule 2 of the Court of Appeal Rules 2011 provides that:
This court shall 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 at 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.
These provisions, and similar provisions to it, have been subjected to judicial interpretation and the general consensus amongst all the decisions is that this Court has a discretionary power to receive further evidence, but that it a power that can be exercised only if certain conditions are fulfilled. In Nwaogu Vs Atuma (2013) 10 NWLR (Pt.1363) 591, the Supreme Court stated that the principles to which an appellate Court must have regard to in the exercise of its discretion to grant leave to adduce further evidence on appeal were:
i. the further evidence sought to be adduced must be such as could not have been obtained at the trial with reasonable diligence;
ii. the further evidence should be as such as, if admitted, it would have an important, though not necessarily a crucial, effect on the case;
iii. the evidence must be such as is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible;
iv. the evidence could have influenced the judgment of the trial court had it been made available and tendered at the trial court and
v. the further evidence to be introduced must be material and weighty, although not necessarily conclusive.
See also the cases of Enekebe Vs Enekebe (1964) NMLR 42, Asaboro Vs Aruwaji (1974) 4 SC 119, Obasi vs Onwuka (1987) 3 NWLR (Pt.61), Uzodinma vs Izunaso (No 2) (2011) 17 NWLR (Pt.1275) 30. The conditions must be satisfied together and at the same time before an application for leave to adduce further evidence can be granted.
In other words, an appellate court must be reluctant to admit further evidence except in exceptional circumstances where the matter arises ex-improviso such that no human ingenuity could foresee and it is in the interest of justice to allow such evidence - Owata vs Anyigor (1993) 2 NWLR (Pt.276) 380, Ombagudu vs Congress for Progressive Change (2013) 3 NWLR (Pt.1341) 415. An appellate Court is obliged not to allow litigants abuse the court process in that regard as it would be against public policy to allow concluded matters willy-nilly to be re-opened and thus open the floodgates to endless litigations - Alawiye Vs Ogunsanya (2013) 5 NWLR (Pt.1348) 570.
The present appeal is against a ruling of the High Court of Kaduna State in Suit No KDH/KAD/511/2002 delivered on the 4th of February, 2004 wherein the Lower Court struck out the suit as an abuse of process in view of a similar matter commenced earlier in time and pending before the High Court of Rivers State in Suit No PHC/323/2001, - A. Michelleti Plc Vs France Bruce Ltd & 9 Ors. The further evidence sought to be introduced by the pending application are (i) the ruling delivered in the said Suit No PHC/323/2001 on the 14th of May, 2003 wherein the High court of Rivers state adjourned the suit sine die on the ground that the plaintiff company was under Receivership, (ii) deed of appointment of a receiver/manager for A. Michelleti Plc dated the 9th of January, 2003 and registered with the Corporate Affairs Commission; and (iii) certified true copy of a report of a search conducted at the Corporate Affairs showing that the receiver/manager appointed for A. Michelleti Plc has not been discharged. Counsel to the Appellant/Applicant stated that the essence of the further evidence was to show that Suit No PHC/323/2001 was legally dead and was no longer being, and could no longer be, prosecuted by A. Michelleti Plc by reason of the Receivership as at 4th of February, 2004 when the Lower Court in this appeal struck out the Appellant's suit as an abuse of process.
What is apparent is that all the documents that the Appellant/Applicant desires to adduce as further evidence were in existence and were available for use as at the 4th of February, 2004 when the lower court delivered its Ruling striking out the case before it as an abuse of process. The Appellant/Applicant has not provided any cogent and credible reason to show why the documents were not procured and produced before the Lower Court before the 4th of February, 2004; it has not shown that the documents were of such nature that could not have been discovered with reasonable diligence. Additionally, the fact that a suit is adjourned sine die does not mean that the action is legally dead. It simply means that the suit has been adjourned without a date fixed for its continuation. Such a case can easily be restored on the cause list by requesting the court that so adjourned it to fix a date for its continuation and the court will oblige such a request and issue hearing notices to the parties. Thus, the question of whether the further evidence sought to adduced could have influenced the decision of the Lower Court had it been made available and tendered before it cannot be answered with any conviction.
The Appellant/Applicant did not satisfy the conditions necessary to warrant this court exercising it discretion in favour of its application I agree that the application lacks merit and I too hereby dismiss the application. I abide the order on costs in the lead ruling