APPEAL - ADDUCING FRESH/ADDITIONAL/FURTHER EVIDENCE ON APPEAL- Circumstances where an appellate court will admit fresh evidence on appeal.
"The law is that ordinarily, an Appellate Court is wary of receiving fresh evidence not available at the stage of trial. The Appellate Court is not however inhibited, but only treads with caution in accepting fresh evidence on appeal. ?The position of the law is that the power of an Appellate Court to receive further or fresh evidence on appeal is rarely exercised but is not taken away, extinguished or inhibited. As held by this Court in OWATA VS ANYIGOR (1993) 2 NWLR (Pt.276) 380, P 383-384, an Appellate Court can receive further evidence on questions of fact but such further evidence is only received on special grounds and that the Court generally exercised this power with great circumspection. Thus, before receiving fresh evidence on appeal, an Appellate Court would need to be sure that the party seeking to adduce such evidence has fulfilled the following conditions: "1) A formal application is brought exhibiting the fresh evidence or document sought to be adduced. This was not one of the conditions in OWATA's case but now being made a requirement given the rarity and cautionary approach with which such application must be considered. 2) The evidence sought to be adduced should be such that it could not have been obtained with reasonable care and diligence for use at the trial. 3) If the fresh evidence is admitted it would have an important but not necessarily crucial effect on the whole case. 4) If the evidence sought to be adduced is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible. 5) Additional evidence may be admitted if the evidence sought to be adduced could have influenced the judgment at the lower Court in favour of the Applicants, if it had been available at the trial Court. 6) The evidence must be material and weighty even if not conclusive. Where the evidence sought to be adduced is immaterial and irrelevant, it will be rejected." The above conditions must all co-exist in an application seeking this unusual discretion. Most importantly, the last condition becomes first as the evidence sought to be adduced must be relevant. This is because it is settled principle of law that relevance is the basis of admissibility. The Applicants/Appellants have approached this Court with the application under consideration seeking, essentially, leave to adduce further evidence at the hearing of this appeal in the forms of the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government,CTC of which was obtained from the Nigerian National Archives, Ibadan. Beyond the factual narratives, the ground on which the application is brought are cognisable and compelling. The Appellants/Applicants premised their application on 8 grounds, as follows: "1) That both Appellants and Respondents are in agreement that the EBERA or OROEBARA Group (otherwise known as ORAZI or the RUMUORAZI Group) has always produced the head of Rumueme. The common ground of disagreement has been; which branch in Ebara (Oroazi) group has been producing the head of Rumueme to wit: is it Nyenweli Nsirim, who heads the Appellants' Rumueme Council of Chiefs or the 8th Respondent (Ohahuru Samuel Akaninwo) who head the Respondents' Rumueme Council of Chiefs, Elders and Owhor holders. 2) That this core issue is answered conclusively by the document sought to produced and received as further evidence in this appeal to with: the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government, a pre-independence Intelligence Report of British Government. 3) That the existence of the said document (i.e. the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government), was not known to the 28th Appellants/Applicants' until July, 2010 when the Appellant/Applicants' new Counsel stumble on it while undertaking research on another subject as the Nigerian National Archives, Ibadan. 4) That this colonial document (an independent and unbiased Intelligence Report of the Colonial Government) is credible, reliable and capable of being believed. 5) That this Archival is applicable under the RULE IN KOJO VS BONSIE to resolve the two conflicting traditional histories put forward by the two sides in this appeal by resort to this unbiased, credible, reliable and believable historical document. 6) That no oral evidence is required as the said document speaks for itself and corroborates and compliments existing oral testimonies in the Record of Appeal and the said document, if received, will have an important, crucial and indeed pivotal effect on this appeal. 7) That it is in the interest of both the Appellants and the Respondents that this independent antique document (the 1928-1931 Intelligence Report on the Obia Clan, Ikwerre Tribe, Ahoada Division by the Southern Provinces of British Colonial Government) is received in that it states the correct and independently investigated historical headship/rulership of Rumueme as at 1928-1931. 8) That this Honourable Court has in several instances and cases sought to discourage Judges from basing their judgments on mere beliefs and/or disbelief. That from Record of Appeal (pages 276, lines 8-25) it is clear the judgment of the lower Court and that of the trial Court were wholly founded on the beliefs and/or disbeliefs of the trial Court who merely stated that he disbelieve the Appellants and believed the Respondents without stating the basis for his beliefs and/or disbeliefs, this Archival document takes this appeal from the realm of beliefs and/or disbeliefs unto the firm grounds of proof.'' Given the circumstances of this appeal, would fresh evidence undermine or strengthen the justice in this case, bearing in mind that a grant or refusal of this application does not dispose-off the substantive appeal? The answer certainly is a capital NO. Allowing fresh evidence to be adduced in this appeal by a requesting or desiring party is not the exclusive preserve of the Applicants. The Respondents may as well have taken benefit by applying to adduce any such fresh but relevant evidence. Whichever way one looks at it, what should be paramount in the mind of the Court is whether permitting fresh evidence to be adduced will be in furtherance of the course of justice to the extent that it would assist the Court to resolve the issue before it fairly, justly and equitably. In view of this, I share the view as expressed in the submission of the Appellants/Applicants that the grant of the reliefs sought would only permit them to adduce further evidence in the form of Exhibit A which is attached to the Affidavit in support of the Motion. This, clearly, will assist the Court determine the more authentic history between traditional history stated by the Appellants and that of the Respondents."
Per BAGE ,J.S.C ( Pp. 14-20, paras. E-D )
 : ISSUE - ADDUCING FRESH/ADDITIONAL/FURTHER EVIDENCE ON APPEAL- Circumstances where an Appellate Court will Admit Fresh Evidence on Appeal.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI.){kind=link}
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