Timipa Okponipere Vs The State (2013)
LAWGLOBAL HUB Lead Judgment Report
PAUL ADAMU GALIN
By a motion on notice dated 7th November 2012 and filed on the November 2012, the Respondent/Applicant herein seeks for leave to adduce fresh evidence. The said motion on notice supported by four grounds and accompanied by eleven paragraph affidavit. Annexed to the affidavit is the fresh evidence that is sought to be adduced, titled “RE: NOTIFICATION OF HIGHER DEGREE RESULT OF JOLAYEMI AYODEJI ADEMOLA IN RE: SUIT NO. FHC/IL/CS/14/2008 – MR. JP;AYEMI AYODEJI UNIVERSITY OF ILORIN “ and an unmarked letter addressed to Jolayemi Ayodeji Ademola titled “NOTIFICATION OF HIGHER DEGREE PAGE| 2 RESULT” and dated 13th September 2012. This application came up for hearing on the 16th April 2013. Mr. Y. A. Alajo learned Counsel for the Respondent/Applicant moved the motion in terms as there was no counter affidavit. Learned Counsel submitted that the conditions for the grant of the application as enunciated in the case of Mabogunje V. Odutola (200$) FWLR (Pt. 412) 1182 at 1187 paragraph B – E have been met land that there was no impediment on the way of the success of the application. Mr. T. Aduagba, leading Miss F. M. Ayo and A. A. Ayanla told the Court that he has no objection to the grant of the application. Even though Aduagba raised no objection, it is the law that an application to adduce fresh evidence is not granted as a matter of course. To succeed the Applicant must show that such evidence could not by any reasonable diligence have been adduced at the trial. The judgment, subject matter of the appeal to this Court was delivered on the 27th July 2011. The document that is sought to be tendered in evidence is dated 4th October 2012. It was therefore not in existence and could not have been adduced at the trial. See Obasi & Ors V. Onwuka & Ors. (1987) 7 SCNJ 84 at 89. The relevance of the evidence that is sought to be adduced and the weight to be attached to it can only be determined in the appeal. Accordingly I am prepared to exercise my discretion in granting the application in favour of the Applicant. Accordingly the application is hereby granted as prayed. Exhibit JI therefore shall be part of the record of this appeal. APPEAL NO CA/IL/50/2011 DELIVERED BY GBANDE OGBUINYA, JCA I have had a preview of the succinct ruling delivered by my learned brother, Paul Adamu Galinje, JCA. I agree, in toto with his reasons and conclusion in. the ruling. I, too grant the application and abide by the consequential orders m therein. APPEAL NO: C/IL/50/2911 TIJJANI ABUBAKAR JCA PAGE| 3 The Respondent Applicant came before the Court for leave to adduce evidence on appeal, he did so by way .of motion on notice filed on 8th November 2012 supported by four grounds and eleven paragraph affidavit in support and the evidence sought to be adduced tagged “Notification of higher degree result of Jolayemi Ayodeji Ademola. The affidavit in support of the application gave reasons for the application which my learned brother Galinje JCA found sufficient to justify granting the application, the reasons given by the applicant in the affidavit are cogent and support the requirements in Order 4 Rule 2 of the Court of Appeal Rules 2011, dealing with application to adduce fresh evidence on appeal. The principles which Appellate Court must take into account in exercising its discretion to grant leave to adduce further evidence on appeal are: (a).The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial, or matters which have occurred after judgment (b).The evidence should be in respect of other evidence other than in (a) as for instance in on appeal from a judgment after hearing on the merits, the Court will admit such fresh evidence only on special grounds as provided in Order 4(2). (c).The evidence to be adduced should be such that if admitted will have an important, not necessarily crucial effect on the whole case. (d)The evidence must be apparently credible, in the sense that it is capable of being believed and need not be incontrovertible. See OKPARUM VS. SGE (NIG) LTD (1998) 7 NWLR (PT.559) 537 at 552 – 553 and AMAECHI VS INEC (2007) 18 NWLR (PT.1065) 170. My learned brother Galinje JCA has ably and sufficiently dealt with the application my contribution is just to offer support, his reasoning and conclusion is precise and to the point, I adopt them as mine having been granted the privilege to read before now the ruling just delivered. I also grant the application and order that exhibit J1 be made an integral part of the record of appeal in CA/IL/50/2012.