The Supreme Court of Nigeria will on Friday June 23, 2017 rule on whether a typographical error of date on a search report issued by the Abuja Geographical Information System (AGIS) constitutes fresh evidence in a property suit involving Sokoto Prince, Elder Statesman and former Nigeria’s Ambassador to South Africa, Alhaji Shehu Malami and an Igbo business mogul, Sir Emeka Offor, as Appellants, and a Nigerian-American businessman in Diaspora, Mr Imokhuede Ohikhuare as First Respondent.
As ridiculous as this may seem, the typographical error appears to be the only ground upon which Malami and Offor are hanging on to argue their case before the Supreme Court in a matter both Appellants had lost at the Court of Appeal, Abuja Headquarters on May 28, 2015.
Although the AGIS document has always been available to Malami and Offor right from the start of the case at an Abuja High Court through to the Court of Appeal, Counsel to both Malami and Offor, Barrister Joe Agi (SAN), claimed before the Supreme Court at the last hearing of the matter on Tuesday March 28, 2017 that it constituted fresh evidence.
When the apex court’s panel led by Hon. Justice Bode Rhodes-Vivour (JSC) asked Agi if he did not spot the typographical error through hearings that commenced at the High Court and the Court of Appeal, Agi’s plea was that he did not represent Malami and Offor at the lower courts. However, one of the lawyers who appeared alongside Agi and usually deputises for him when absent from court at the Supreme Court, J. C. Njikonye (Esq), was on the Malami/Offor Legal Team right from inception of the matter at the High Court before Judge A.S. Umar.
As a rule, the Supreme Court does not consider evidence tendered at lower courts. Litigants who appear before the apex court are only expected to present fresh evidence hitherto unavailable to them in any way in the course of proceedings at the courts below.
However, it appears that Ambassador Malami is an unwilling Appellant in the on-going appeal as he had sought to drop out of it during previous hearings through another lawyer – Barrister Shaka Awaliene -, a move opposed by his co-appellant – Emeka Offor.
Ruling on that bid to opt out of the appeal, the Supreme Court accepted Agi as counsel to both Malami and Offor in the matter, insisting that Malami would have to appear in person before it to disown Agi and tell the court that he (Malami) would rather abide by the Court of Appeal judgment on the case than continue with the appeal at the apex court.
The property in dispute is Plot 1809 Asokoro, Abuja, which both Malami and Offor seized from Ohikhuare four years ago based on a judgment delivered by an Abuja High Court Judge, A.S. Umar, in a suit filed by Ambassador Malami. On the land is a N1 billion two-wing duplex built by Mr. Ohikhuare.
However, in a unanimous decision delivered on May 28, 2015, the Court of Appeal, Abuja restored the ownership of the property to Mr. Ohikhuare, a verdict which is now on appeal at the Supreme Court. The Appeal Court had ruled that the Abuja High Court judgment was legally deficient because Malami “no longer had the power to initiate proceedings at the lower court for himself because it is settled that an Irrevocable Power of Attorney given for valuable consideration robs the donor of power to exercise any of the powers conferred on the donee.”
Since Malami had divested his interest in the land, the Appeal Court reasoned, he cannot institute any legal case on it, as the Supreme Court had ruled in the precedent case of Edebiri vs Omotayo, which the current Chief Justice of Nigeria (CJN), Hon. Justice Walter Samuel Onnoghen delivered on February 11, 2014 in suit Number SC./440/2012 involving Mrs. Mojisola Edebiri (Appellant) and Prince Omotayo Daniel & ANOR (Respondents).
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