OLAMIFE ADEDOYIN R. & ANOR V KOLAWOLE O. MATTHEW & ORS

CORAM

MOORE A, A. ADUMEIN, JUSTICE. COURT OF APPEAL

TANI YUSUF HASSAN, JUSTICE, COURT OF APPEAL

MOHAMMED MUSTAPHA, JUSTICE, COURT OF APPEAL

PARTIES

1. OLAMIFE ADEDOYIN R.

2. ALL PROGRESSIVE CONGRESS

APPELLANTS

1. KOLAWOLE O. MATHEW

2. PEOPLES DEMOCRATIC PARTY (PDP)

3. INDEPENDENT NATIONALELECTORAL COMMISSION (INEC)

4. RETURNING OFFICER (KOGI STATE HOUSE OF ASSEMBLY ELECTION FOR THE KABBA/BUNU CONSTITUENCY)

RESPONDENTS

AREA(S) OF LAW

APPEAL, COURT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellants/Applicants by a motion on notice filed before the Honourable Court an application seeking for an order of the Court permitting the Appellants/Applicants to adduce evidence on appeal. The 1st Respondent filed a counter affidavit opposing the application on grounds that the depositions in the appellants’/applicants’ affidavit in support of the motion on notice did not satisfy the conditions for granting an application of this nature. The learned counsel for the 2nd Respondent argued that the documents sought to be adduced as fresh evidence are not credible as they “are fabricated and a product of an afterthought.

HELD

Application Dismissed

ISSUES

Nil

RATIONES DECIDENDI

CONDITIONS OR FACTORS TO BE TAKEN INTO CONSIDERATION IN AN APPLICATION FOR LEAVE TO ADDUCE FRESH EVIDENCE IN AN APPEAL

“The conditions or factors to be taken into consideration in an application for leave to adduce fresh or new evidence were set out by the Supreme Court, per Coker, JSC in the case of Comfort Asaboro v. N.G.D. Aruwaji & Anor. (1974) All NLR (Pt 1) 127, (1974) S.C. 119 at 124 as follows:

“…the matters which the courts have always taken into consideration in the judicious exercise of powers to grant leave to adduce new evidence namely:-

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

ii. the evidence should be such that if admitted, it would have an important not necessarily crucial, effect on the whole case; and

iii. 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 foregoing factors or conditions must co-exist. This fs to say that failure to satisfy any of the aforementioned three conditions is fatal to an application to adduce fresh evidence. See United Bank for Africa Plc v. BTL Industries Limited (2005) 10 NWLR (Pt. 933) 356.” PER M. A. A. ADUMEIN, J.C.A