S.G. ARIRAN (APPELLANT)
v.
R. ADEPOJU (RESPONDENT)
(1961) All N.L.R. 751
Division: High Court of Lagos
Date of Judgment: 24th October, 1961
Case Number: Appeal No. LD/51A/61
Before: De Lestang, C. J.
Application by the appellant for Leave to adduce Additional Evidence on Appeal.
The appellant and the respondent were parties to an action in the Magistrates Court. At the beginning of the trial, the appellant was not in possession of certain documents which became available to him later, after he had closed his defence but before Judgment was given. He applied to the trial court for leave to re-open his defence for the purpose of putting the documents in evidence, but his application was refused. Judgment was subsequently given against him and he appealed; making the judge's refusal of his application one of his grounds of appeal. He then brought this application for leave to adduce the refused documentary evidence before the High Court on Appeal.
HELD:
(1) Although section 46 of the High Court of Lagos Ordinance is couched in wide terms, it is an invariable rule that if evidence, which was in possession of the parties at the trial, or by proper diligence might have been obtained, is either not produced or has not been produced, the High Court will not allow it to be introduced on Appeal.
(2) Additional evidence, obtained after the party's case is closed, but before Judgment, is not "evidence available at the trial"; since the party was at no time in a position to adduce it during the proceedings.
Application granted. Case referred back to Magistrate to take additional evidence and to adjudicate afresh after taking such evidence.
Ordinance referred to:-
High Court of Lagos Ordinance, Cap. 80, section 46.
APPLICATION for leave to adduce Additional Evidence on Appeal.
Kotun for the Appellant.
Ali-Balogun for Respondent.
De Lestang, C.J.: This is an application by the appellant for leave to adduce additional evidence. It is made under section 46 of the High Court of Lagos Ordinance which empowers the court, where it considers it necessary or expedient in the interest of justice that evidence should be adduced, to so order. Although this section is couched in wide terms, it is an invariable rule in all the courts that if evidence which was in the possession of parties at the trial, or by proper diligence might have been obtained, is either not produced or has not been procured, the court will not allow it to be given on appeal.
In the present case the evidence, which consists of documents, was apparently not available at one stage of the trial, but it was, in a strict sense, available before the conclusion of the trial. Indeed, before Judgment was delivered the appellant applied to the magistrate's court to reopen the defence, which had been closed, for the purpose of producing the documents. The application was refused, and has been made a ground of appeal.
It seems to me that although the appellant was in possession of the evidence before Judgment, he was at no time in a position to adduce it so that, in effect, the evidence was not available at the trial. The application, therefore, comes within the Rule stated above. It is accordingly granted and the case is referred back to the magistrate to take such evidence and to adjudicate afresh after taking the evidence. The appellant will bear the costs of this application, which I assess at four guineas.
Application granted.
Case Referred back to Magistrate to take additional evidence.