Adducing Fresh Evidence on Appeal (Court of Appeal and The Supreme Court): The Principles in Maduekwe v. Anambra State Govt. [2024] 11 NWLR (Pt. 1949) 381

By Oliver Azi

Last week, the Law Lords at the Supreme Court gave judgment in the age-long case of Maduekwe v. Anambra State Government . [2024] 11 NWLR (Pt. 1949) 381, which began in 2006, and held onto several principles of law relating to, but not restricted to, the adducing of fresh evidence on appeal.

In the instant case, the Supreme Court was pondered with whether or not to adduce the laws—Anambra State Local Government Law 1999, Autonomous Communities (Recognition) Law 2002, and Autonomous Communities (Recognition) Repeal Law 2004—being laws, legislation, and enactments applicable in Anambra State as additional evidence to be proved on appeal.

The law on proving additional evidence on appeal is strictly guarded by the “there should be an end to litigation” disposition of the justice system. That is, often, the court is restricted from accepting or stopping litigants from bringing fresh cases on appeal. However, in special and exceptional cases, evidence can be brought on appeal for consideration. This is rightly provided for by the Court of Appeal Rules in Order 4 Rule 2, where it states expressly that:

The Court shall have power to receive further evidence on questions of facts, either oral examination in court, by 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

On the part of the Supreme Court, the appellant in the instant case relied on the provision of Section 22 of the Supreme Court (Amendment) Rules, which provides that:

The Supreme Court may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the court below to inquire into and certify its findings on any question which the Supreme Court thinks fit to determine before final judgment in the appeal and may make an interim order or grant any injunction which the court below is authorized to make or grant and may direct any necessary inquiries or accounts to be made or taken and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court.

However, the law lords, declining the said provision, said they are not sufficient grounds upon which the Supreme Court may adduce fresh evidence on appeal and further posit that, although there are no legislative requirements for the Supreme Court to adduce fresh evidence, it is expected that the court, through laid down principles over time, can adduce fresh evidence, although on strict conditions.

Recall that the provisions of the Court of Appeal Rules, as referred to above, had indicated that on special circumstances, this evidence should be brought. This special circumstances are now enshrined by the  requirements framed over the years by the Supreme Court for grant of any applications to adduce fresh evidence on appeal, and the said requirements are as follows:

1. The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial, or are matters which have(a)occurred after judgment in the trial court.
2. In respect of other evidence other than in above, as for in instance in respect of an appeal from a judgment after a hearing on the merits, the court will admit such fresh evidence only on special grounds.
3. The evidence to be adduced should be such as if admitted, would have an important, not necessarily(c)crucial effect on the whole case; and
4. The evidence must be such as apparently credible in the sense that it is capable of being believed and it(d)need not be incontrovertible.

These principles, or rather and better still, standards of application, have been held severally, as seen in the instant case, as well as the cases of Asaboro v. Aruwaji (1974) 4 SC 119 at 90–91, Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357 at 383–384; Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30 at 54–55; Owata v. Anyigor (1993) 2 NWLR (Pt. 276) 380; and Odiase v. Omele (1985) 3 NWLR (Pt. 11) 82.

For the sake of particularity with regards to the case at hand, in recognition of law, legislation, or statutes as fresh evidence, which is the situation in this case that the appellant seeks to make an application for, the court, whether trial or appellate, must take judicial notice of them without necessarily considering them or proving them as fresh evidence. They need not be included in the process or record of appeal, unlike other forms of evidence. This is because the court must always rely on legislation, laws, or enactments that are relevant to a case in order to determine a case.

Oliver Azi, a legal writer and Researcher, is a law graduate from the University of Jos and Bar Part II Aspirant of the Nigerian Law School. He can be reached via email at: oliverazi20@gmail.com or LinkedIn at: www.linkedin.com/in/oliver-azi-76b323182

Source: thenigerialawyer