The purpose of this article is to answer the question whether owing to the new facts/evidence available to Alh. Atiku Abubakar (i.e) the recently released Chicago State University (CSU) academic records and certificate of President Bola A. Tinubu, which is aimed at augmenting Atiku’s contention that President Bola A. Tinubu was not qualified to contest for the office of the president in the 2023 general election, on the ground that Tinubu presented or tendered a fake and forged certificate to INEC, whether in the light of the above circumstances, such new findings/evidence can be taken into consideration by the appellate court, i.e. the Supreme Court.
A layman would say that with the CSU certificate or academic records alleged to be those of President Tinubu that has come to light, the Supreme Court should automatically receive and consider the new evidence in order to decide the appeal one way or the other. A handful of people may say otherwise, but what does the law say.
The Trial Court and the Appellate Court
In the Nigerian legal system, the first competent court where parties/litigants present their cases to ventilate their grievances is referred to as the trial court or the court of first instance.
This court must be competent in all forms and clothed with the requisite jurisdiction. It is at the trial court that parties present their cases to the best of their ability, albeit within the bounds of the law – the parties present the totality of evidence which they rely upon in support and proof of their case, after which, the trial court is then called upon to evaluate the evidence adduced before it.
It is settled law that the evaluation of evidence and the ascription of probative value to such evidence remains the primary function of the trial court which saw, heard and duly assessed the witnesses. See Owakah v. RSH & PDA
Appellate courts are not constitutionally vested with the power to try cases. The trial of cases is preeminently the duty of the trial court. It is not the business of an appellate court to re-open the dispute to try the case afresh like a trial court.
The proper function of an appellate court is to over-see, superintend and to review the way the dispute and the issues arising therefrom were tried and to see whether the trial court used the correct procedure and/or arrived at the right and proper decision.
In other words, the appellate court does not take new evidence like in a trial at the court of first instance, except in some special and exceptional circumstances.
Is the Supreme Court Sitting on Appeal, Empowered to Receive Fresh or Further Evidence?
In answering this question, our port of call is the enabling statute on this issue, which is the Supreme Court Rules 1985 as amended in 1999. Order 2 Rule 12 of the Supreme Court rules as amended, provides:
12 (1) A party who wishes the court to receive the evidence of witnesses (whether they were or weren’t called at the trial) or to order the production of any document, exhibit or other thing connected with the proceedings in accordance with the provisions of Section 33 of the Act, shall apply for leave on notice of motion prior to the date set down for the hearing of the appeal.
(2) The application shall be supported by affidavit of facts on which the party relies for making it and of the nature of the evidence on the document concerned.
(3) It shall not be necessary for the other party to answer the additional evidence intended to be called but if leave is granted the other party shall be entitled to a reasonable opportunity to give his own evidence in reply if he so wishes.
By above provisions, the supreme court is well vested with the powers to take further evidence. Furthermore, an appellant/applicant who wishes to bring/introduce new, fresh or further evidence on appeal, is expected to first apply for leave for the court to receive further evidence via motion on notice.
The application should be supported by affidavit showing the facts and circumstances for the application, and of the nature of the evidence or the document concerned.
May it be stated here, that an application to adduce, produce or rely on fresh or additional evidence on appeal is not granted as of right. It is granted in the judicial discretion of the court. It is not granted readily as of course but granted only sparingly on very special or exceptional circumstance. See SCE Services Ltd v. Umaru Adamu Ent Ltd.
The supreme court has advised appellate courts to be extremely cautious in the consideration of application to adduce further evidence on appeal.
The reason is not far-fetched as 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.
This attitude of the appellate court is in conformity with public policy, that there must be an end to litigation.
The issue that presses the mind of the court while considering an application to receive new/further evidence on appeal is the nature of the special or exceptional circumstance necessitating the application.
These special grounds are the conditions precedent and principles guiding the grant of application for leave to adduce further evidence on appeal. In Eniloloba v. NPDC Ltd, the supreme court enumerated the special grounds an applicant requires to fulfill in order to be entitled to leave 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,
- The evidence must be such as apparently credible in the sense that it is capable of being believed 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 judgement 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.
The above conditions must co-exist before the court would exercise its power to grant leave for the calling of fresh/new evidence in appeal. The applicant for leave to adduce further evidence qualifies for a grant if he satisfies the stated requirements jointly.
It is advised that facts which form and explain the special or exceptional circumstance necessitating the application for leave to adduce further evidence should be stated in the affidavit in support of the said application.
In Okulate v. Awosanya (1990) 5 NWLR (pt. 150) 340, the court held that it is not enough for an applicant for leave to adduce fresh or further evidence on appeal to merely aver in his affidavit in support that reasonable diligence was exercised and yet the evidence could not be obtained or, that it is in the interest of justice that the fresh evidence be admitted.
He must go on to show what practical steps he took to procure the evidence at the trial and what important effect the additional evidence will have on the case and in what way it could have affected the decision of the tribunal at the original hearing of the case.
In the final analysis, by the foregoing statutory and judicial authorities, there is no doubt that the Supreme Court has the power to and can admit or take fresh, new or further evidence on the issue revolving around forgery of certificate and Tinubu’s CSU academic records.
If Alh. Atiku Abubakar makes the necessary application and also satisfies the conditions enumerated above, then the Supreme Court may exercise its discretion.
 (2022) 12 NWLR (Pt. 1845) 498, Paras B – E
 Tom Anyafulude, Principles of Appellate Practice in Nigeria Through the Cases, 1st ed, Mercele Press Nig P. 492 – 493.
 (2020) All FWLR (Pt. 1051) 718 (SC)
 (2021) All FWLR (Pt. 1084) 572 (SC); Statoil (Nig) Ltd v. Inducon (Nig) Ltd (2019) All FWLR pt. 999 491 (SC).
About the Author
Ekene Raphael Obi Esq, is a legal practitioner with a flair for litigation. He is an avid researcher and writer.