Senator (Sir) I. G. Abana V. Chief Ben Obi & Ors (2004)

LawGlobal-Hub Lead Judgment Report

MONICA BOLNA’AN  DONGBAN-MENSEM, J.C.A. 

In a motion on notice, the appellant/applicant seeks the order of this court:

“1. granting leave to adduce fresh and/or additional evidence on appeal.
2. that such fresh evidence be received by affidavit or by deposition taken by an Examiner or Commissioner of Oaths or as this Honourable Court may direct.
3. such further or other order(s) as this Honourable Court may deem fit to make in the circumstance.”

The grounds for the application are:
“1. That the appellant/applicant was not aware of the existence of the additional evidence sought to be adduced during the proceedings at the lower tribunal.
2. That the evidence if admitted would have a far-reaching effect on the result of this Appeal.
3. That the appellant/applicant only became aware of the said evidence after the matter was concluded before the lower tribunal.”

Supported by an affidavit of sixteen paragraphs deposed to by Tola Oshodi, Esquire, the affidavit has four exhibits annexed thereto.

Some of the said exhibits are marked while others are not. I must state at this stage that there seem to be some confusion as to the numbering of the exhibits. What we have are exhibits A, B, C, D as respectively referring to Form EC8E 0000193 bearing the name of Chief Ben Obi, form EC8E 0000193 bearing the name of Hon. C, N. Ukachukwu, the letter to the Inspector General of Police, Force Headquarters, Abuja, the petition of Hon. C. N. Ukachukwu also marked exhibit C and the Newspaper Report as exhibit D. Also annexed but without any exhibit numbers are three Forms EC8E one bearing the names of Hon. C. N. Ukachukwu, the second without a name and the third bearing the name of Chief Ben Obi.

We observe that the Forms EC8E bearing the names of Hon. C. N. Ukachukwu and Chief Ben Obi are the same with the documents marked exhibits B and A respectively. By the depositions in paragraphs 4, 5 and 6 of the affidavit in support, it appears exhibits ‘A’ and ‘B’ are referred to in the affidavit as exhibits TOA and TOB.

By paragraphs 13 and 14, exhibits TOC and TOD refer respectively to the letter to the Inspector-General of Police while TOD refers to the ‘Thisday Newspaper’ publication. In this ruling, we shall adopt the numbering A, B, C and D as indicated on the exhibits before us.

Upon being served with the counter-affidavit of the 1st respondent, the applicant filed a further affidavit sworn to by Chidi Nobis-Elendu, Esquire.

In response to the application, a counter affidavit of seventeen paragraphs was filed. Also relied on are the records of this court in the suit of Ukachukwu against INEC & 4 Ors.

The application is made pursuant to Order 1 rule 19(2) of the Court of Appeal Rule, 2002 and the inherent jurisdiction of this court.

Order 1 rule 19(2) states as follows:
“(2) The court shall have power to receive further evidence on questions of fact, either by 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.” (emphasis are mine.)

This court will exercise this discretion only where the applicant has brought his case within the conditions prescribed in the rules as noted above. These are special grounds which have been well
adjudicated upon. The case of Awoke Owata v. Uchanchi Anyigor (1993) 2 NWLR (Pt. 276) p. 380 at 393 sets out the principles as follows; that:
“(i) The evidence sought to be adduced should be such that could not have been obtained with reasonable care and diligence for use at the trial.
(ii) If the fresh evidence is admitted, it would have an important, but not necessarily crucial effect on the whole case.
(iii) If the evidence sought to be tendered is such that is apparently credible in the sense that it is capable of being believed even if it may not be incontrovertible.
(iv) 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 applicant, if it had been available at the trial court.
(v) The evidence should be material and weighty even if not conclusive. Where the evidence sought to be admitted is irrelevant and immaterial, it will be rejected.” See also Akanbi v. Alao (1989) 3 NWLR (PU08) 118 at 137.

The facts supporting this application are deposed to in paragraphs 4, 5, 6, 7, 8, 9 and 13 of the affidavit and which paragraphs are hereby reproduced:
“4. In petition No. EPT/AN/NA/3/2003, Chief Ben Obi v. INEC & 4 Ors., the 1st respondent purported to have been issued with declaration of result of election to the Senate Form EC8E with serial No. 0000193, in respect of the Anambra Central Senatorial Elections. The said Form EC8E with serial No. 0000193 was admitted in evidence as ‘exhibit PI’ at the lower tribunal. A certified true copy of the said Form EC8E, serial No. 0000193 is attached herewith and marked exhibit ‘TOA’. The 1st respondent in the aforesaid petition claimed to have been returned as winner of the Anambra Central Senatorial Election by virtue of the said ‘exhibit TOA’.