All FWLR This Week: Adducing Further Evidence on Appeal; Condition Precedent, Guiding Principles, Rationale For Exercise of Discretionary Power


Parties: S.C.E. Service Ltd v. Umaru Adamu Ent. Ltd

Court: Supreme Court


      • CHIMA CENTUS NWEZE JSC (Dissenting)
      • EJEMBI EKO JSC (Read the Lead Ruling)

Citation: (2020) All FWLR (Pt. 1051) P. 718


The 1st respondent filed an action in the High Court of the Federal Capital Territory (Abuja) alleging that its statutory right of occupancy over plot No. 595 along Adetokunbo Ademola Crescent, Wuse, Abuja was unconstitutionally revoked and reallocated to the appellant/applicant who in concert with 2nd and 3rd respondents pulled down its structures on the land. The trial court granted the reliefs sought by the 1st respondent consequent upon which a new certificate was issued by the 2nd and 3rd respondents to the 1st respondent. The appellant was dissatisfied and appealed to the Court of Appeal where its appeal was dismissed. Yet dissatisfied, the appellant appealed to the Supreme Court and filed the present application seeking orders: granting leave to rely on document annexed as traditional evidence and directing that the time for filing of applicant/appellant’s brief of argument starts to run upon the hearing and determination of the instant application.


1. Discretionary powers of appellate court to grant application to adduce further evidence on appeal and rationale for exercise of

An application to adduce, 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 only sparingly on very special or exceptional circumstances. This attitude of appellate courts is in conformity with the public policy; that there must be an end to litigation. If the door were left open for anyone who had fought and lost a case at the court of trial to bring new evidence on appeal, there would be no end to litigation. Application for additional or fresh evidence is not intended either to be employed by the appellant/applicant 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. Nor will it be an iniquitous ploy used by an applicant to delay or filibuster proceedings. In the instant case, where the applicant failed to establish any special circumstance to warrant a grant of its application to adduce additional evidence on appeal, the Supreme court dismissed its application for. [Uzodinma v. Izunaso (No.2) (2017) 17 NWLR (Pt. 1275) 30 (SC); Opanum v. SGE Nig. Ltd. (1998) 7 NWLR (Pt. 599) 537; U.B.A. Plc v. BTL Ind. Ltd. (2005) 10 NWLR (Pt. 933) 356; Ehilanwo v. Oke (2008) All FWLR (Pt. 442) 1007, (2008) 16 NWLR (Pt.113) 357, (2008) 6 -7 SC (Pt. 11) 123 referred to] [P. 733; paras. C – G].

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2. Conditions precedent to grant of application to adduce further evidence on appeal –

a) The evidence sought to be adduced must be such that could not have been with reasonable diligence obtained for use at the trial.

b) The evidence should be such that if admitted would have an important not necessarily crucial effect on the whole case, and

c) The evidence must be such that is apparently credible in the sense that it is capable of being believed and it need not be incontrovertible.

To grant the leave to adduce fresh or further evidence, all the necessary conditions for the grant must co-exist or be conjuctively proved. In the instant case, where the above conditions were not met, the Supreme Court dismissed applicant’s application to adduce further evidence on appeal. [Ehinlanwo v. Oke (2008) 6-7 SC (Pt. 110) 123; Adegbite v. Amosun (2016) 15 NWLR (Pt. 1536) 405; Williams v. Adol/Astamm Int. (Nig.) Ltd. (2017) 7 NWLR (Pt. 1560) 1 referred to] [P. 741; paras. E – G]

3. Guiding principles in determining applications to adduce further evidence on appeal –

The Supreme Court is to advise itself to be extremely cautious in the consideration of application to adduce further evidence on appeal, the reason is not far-fetched since the Supreme Court is a policy decision one. It is in this light that certain guiding principles are laid down for which are;

a) Where issues are joined on pleadings at the trial court, no party shall be taken by surprise. Thus, the appeal court cannot consider the reception of new evidence without amendment of the pleadings

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b) It is in the interest of public policy, particularly for the purpose of efficient and effective administration of justice, to obviate prolongation of litigation that the practice of adducing evidence, which ought to have been adduced at the trial court, should not be postponed to after judgment.

c) Appellate courts generally exercise their jurisdiction to correct errors of law or fact made by the court below, after the latter consideration of the totality of evidential materials before them. Accordingly, the correctness of the decision of a trial court or judge should not be assessed or judged on the new evidence that the trial court or judge never had an opportunity to consider. In other words, the correctness or otherwise of the judgment of the trial judge or court should not be assessed on evidential materials he or it never had opportunity to consider. [GTB Plc v. Innoson (Nig.) Ltd. (2017) 16 NWLR (Pt. 1591) 181 referred to] [P. 746; paras. A – G]


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