YUSUF ABDULWAHEED AYINDE GBENGA v. ADENIRAN MARIAM JOY & ORS
(2019)LCN/12927(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of March, 2019
CA/IL/28/2019(R)
RATIO
EVIDENCE: WHEN AN AFFIDAVIT IS UNCONTROVERTED
“The state of the law with regards to affidavit evidence is that when a fact or facts are asserted, and such fact(s) are not denied or controverted by the adverse party, the same is deemed to have been admitted by him, and the Court justified in utilizing the uncontroverted affidavit evidence in resolving the issue in controversy. See Duru vs. Nwosu (1989) 4 NWLR (pt. 113) 24, Ajomale vs. Yadu?at (No. 2) (1991) 5 NWLR (pt. 191) 266.”
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BALKISU BELLO ALIYU Justice of The Court of Appeal of Nigeria
Between
YUSUF ABDULWAHEED AYINDE GBENGA Appellant(s)
AND
1. ADENIRAN MARIAM JOY
2. ALL PROGRESSIVE CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL
COMMISSION (INEC) Respondent(s)
HAMMA AKAWU BARKA J.C.A. (Delivering the Lead Ruling):
By this application dated and filed on the 7th day of March, 2019, and brought pursuant to Order 4 Rule 2 and Order 6 Rule 1 of the Court of Appeal Rules 2016, and under the inherent jurisdiction of the Court, the appellant as applicant prayed for the following orders:-
1. An order of the Court granting leave to the appellant/applicant to call additional and or further evidence in this appeal to wit: tendering the All Progressives Congress, Summary Result Sheet for State House of Assembly Primary Election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government Area of Kwara State on the basis of which the appellant/applicant was declared the winner of the Primary Election and his name submitted by the 2nd Respondent to the 3rd respondent as the candidate of the 2nd respondent for Esa/Shawo/Igbo-Idun State constituency at the forth coming 9th March, 2019 elections.
2. An order of the Court allowing the appellant/applicant to call additional and or further evidence in this appeal to wit: tendering the All Progressives Congress, Summary Result Sheet for State House of Assembly Primary Election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government Area of Kwara State on the basis of which the appellant/applicant was declared the winner of the Primary Election and his name submitted by the 2nd Respondent to the 3rd respondent as the candidate of the 2nd respondent for Esa/Shawo/Igbo-Idun State constituency at the forthcoming 9th March, 2019 elections.
3. An order of the Court admitting the All Progressives Congress, Summary Result Sheet for State House of Assembly Primary Election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government Area of Kwara State as part of the evidence to be used and relied upon in the hearing and determination of this Appeal.
The grounds in support of the application were listed as being
1. The judgment of the lower Court the subject of the Appeal was delivered by Hon. Justice Mahmud AbdulGafar of the High Court of Justice, Ilorin Kwara State on 30th January, 2019.
2. The appellant/applicant’s Notice of Appeal was filed on the 5th day of February, 2019 at the Registry of the lower Court while the Record of Appeal was transmitted to the Court on the 10th day of February, 2019.
3. All efforts made by the appellant/applicant and his counsel, Salman Jawondo Esq. during the trial of the case to get/collect and tender the All Progressives Congress, Summary Result Sheet for State House of Assembly Primary Election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government Area of Kwara State on the basis of which the appellant/applicant was declared the winner of the Primary Election and his name submitted by the 2nd Respondent to the 3rd respondent as the candidate of the 2nd respondent for Esa/Shawo/Igbo-Idun State constituency at the forth coming 9th March, 2019 elections from the 2nd respondent proved abortive.
4. After unrelenting and sustained efforts, the said All Progressives Congress, Summary Result Sheet for State House of Assembly Primary Election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government Area of Kwara State was eventually obtained during the pendency of this Appeal via a letter of 26th February, 2019 from the National Chairman of the 2nd respondent.
5. Leave of the Court is required for the appellant/applicant to tender, have admitted and use as evidence for the determination of this Appeal, the said All Progressives Congress, Summary Result Sheet for State House of Assembly Primary Election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government Area of Kwara State.
6. The grant of this application will serve the interest of justice.
In support of the application is an affidavit of 21 paragraphs deposed to by one Yusuf Abdulwaheed Ayinde Gbenga, the appellant/applicant in the application. Also hinged on the motion papers are four exhibit titled.
1. Exhibit 1, – suit No. KWS/441/2018; Adediran Mariam Joy vs. Yusuf Abdulwaheed Ayinde Gbenga & 2 Ors.
Request for final result of APC primary election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government of Kwara State conducted on 6th October, 2018 dated 23rd December, 2018?.
2. Exhibit 2 – Re: ?Suit No. KWS/441/2018; Adediran Mariam Joy vs. Yusuf Abdulwaheed Ayinde Gbenga & 2 Ors.
Request for final result of APC primary election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government of Kwara State conducted on 6th October, 2018 dated 2nd January, 2019?
3. Exhibit 3 – ATTN: Salman Jawondo ESQ. Re: ?Request for final result of APC primary election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government of Kwara State conducted on 6th October, 2018 dated 26th February, 2019?.
4. Exhibit 3A – All Progressives Congress Summary Result sheet for State House of Assembly Primary Election for Esa/Shawo/Igbo-Idun State constituency dated 7/10/2018.
5. Exhibit 4 – All Progressives Congress Summary Result sheet for State House of Assembly Primary Election for Esa/Shawo/Igbo-Idun State constituency dated 7/10/2018.
In opposition to the application, the 1st Respondent filed a counter-affidavit on the 11th day of March, 2019, and deposed to by one Olakunle T. Ajayi, a legal practitioner in the law office of Ronke Adeyemi & Co, the learned counsel to the Respondent.
In obedience to the order of this Court, which gave direction for the filling of written addresses, the appellant/applicant filed a written address in support of his motion, on the 13th day of March, 2019, while the 1st Respondent filed the respondents address supporting the counter-affidavit on the 19th of March 2019.
On the 25th day of March, 2019, when the application eventually came up for hearing, Mr. Salman Jawondo for the Appellant/Applicant adopted the written address settled by him, in urging the Court to grant his application as prayed.
Mrs Oluronke Adeyemi, the learned counsel for the 1st Respondent also adopted the written address settled by her in support of the counter-affidavit in urging the Court to refuse the application.
I must note here that the 2nd and 3rd respondents, who were represented by learned counsel, informed the Court that they are not opposed to the grant of the applicants’ prayers.
There is no questioning the fact that the two parties are agreed that what the Court ought to determine at this stage, is whether from the available facts before the Court, the appellant/applicant is entitled to the discretion of the Court, allowing the applicant to adduce further or additional evidence. It is a trite legal position as conceded by the applicant that an application of this nature is dependent on the Court’s discretion, which must be exercised judicially and judiciously. The case of Aroh vs. PDP (2014) ALL FWLR (pt729) 1028 @ 1037 was referred to. He goes on to rely on the decision of this Court in the case of Ilorin South Local Government Area vs. Afolabi (2002) LPELR 10338 (CA), and numerous other cases, on the conditions necessary that must be established by an applicant in order to have the Court’s discretion exercised in its favor. He further relied on the authority of Uzodinma vs. Izunaso (2011) 5 MJSC (pt. 1) 27 in arguing that all the salient conditions needed to be established for the grant of the application were satisfied.
On the counter affidavit filed by the 1st respondent, the learned counsel for the appellant/ applicant is of the view that apart from the general denial therein, all the salient facts in the affidavit in support of the application are deemed unchallenged and established. With respect to exhibit 4, attached to the applicant’s motion papers, it was contended that the document being a private document does not require certification for its admissibility. Learned counsel urged the Court to discountenance the counter affidavit filed and to grant the application as prayed, the applicant having met all the conditions for its grant.
In its response to the submissions of the applicant, it was contended for the 1st respondent, that whereas by paragraph 4 of the counter affidavit all the depositions of the applicant were challenged and denied, paragraph 5 A ? L, specifically denied all the depositions of the applicant. It was also contended that the applicant is not entitled to the discretion of the Court being exercised in its favor as all the documents attached to the motion papers have been discredited. Though conceding that the conditions for the grant of the Court’s discretion to adduce fresh evidence has been decided by a plethora of case law, learned counsel submits that the applicant has not met the conditions established.
Going through the three conditions referred to in the applicants address, learned counsel proceeded to disparage the submissions made, to the conclusion that the conditions thus established were not met by the applicant, and with respect to the counter affidavit filed, counsel proceeded to argue that the paragraphs of the counter affidavit attacked the paragraphs in support of the application. Further submit that applicant by his application ought to have shown the Court that the result being sought to be tendered, must be or was the authentic result, and the case of the PDP vs. INEC (2011) LPELR 9236 (CA) was cited in support of the legal principle. Further submits that leave to adduce fresh evidence is sparingly exercised by the Courts unless all the stringent conditions are met. Obasi vs. Onwuka & Ors (1987) 7 SC (pt. 1) 233. Further that the Court should not allow the procedure to be used as a repair kit or for a party to amend its case and thereby over reach the respondent.
Conclusively, learned counsel from the foregoing submissions made urged the Court to refuse the application as the applicant woefully failed to meet the conditions necessary for the grant of the application.
Now Order 4 Rule 2 of the rules of this Court provides that:
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.
I understand the provision reproduced in the con of the instant case, as stating that the Court is precluded from accepting further evidence on appeal, except where special circumstances are established.
It is common ground therefore that all that this court needs to do is to establish whether the applicant is entitled to the discretion of this court allowing the applicant adduce additional, fresh or further evidence on appeal, in line with the provision of the law. The decision of the legal luminary Oputa JSC, in the case of Ukariwo Obasi & Anor vs. Eke Onwuka & Ors (1987) LPELR ? 2152 (SC), also reported as (1987) NWLR (pt. 61) 364, (1987) 7 SC (pt. 1) 233, still remains the guiding light on the issue. His lordship of the apex Court had this to say on the issue:
In civil cases the Court will permit fresh evidence in furtherance of justice under the following circumstances:
1. Where the evidence sought to be adduced is such as could not have been obtained with reasonable care and diligence for use at the trial.
2. Where the fresh evidence is such that if admitted would have an important, but not necessarily crucial effect on the whole case.
3. Where the evidence sought to be tendered on appeal is such as is apparently credible in the sense that it is capable of being believed. It need not necessarily be incontrovertible. See also the case of Amaechi vs. INEC (2008) 5 NWLR (pt. 1080) 227, Onwubuariri & ors vs. Igboasoyi & ors (2011) 3 NWLR 357.Onnoghen JSC (as he then was) relying on the case of Owata vs. Anyigo (1993) 2 NWLR (pt. 276) 380, reiterated the three conditions set out by Oputa JSC in the case of Onwuka vs. Obasi (supra), adding that:
d. If the evidence sought to be adduced could have influenced the judgment of the lower Court in favor of the applicant if it had been available at the trial Court, and;
e. The evidence must be material and weighty even if not conclusive.
In exercising its discretion whether to grant the application or not, the Court must be in seeing to it that in the con of the case before it justice is done founded upon the facts and circumstances presented to the Court. See, Akingbola vs. FRN (2018) 14 NWLR (pt. 1640) 395 @ 416.
The applicant now submits that by the averments in his deposition in the affidavit in support, particularly paragraphs 4 ? 14 of the affidavit, and exhibits 1 ? 4, attached to the motion papers, he has demonstrated therein his entitlement to the exercise of the discretion in his favor having satisfied all the conditions for this Court to hold that special circumstances gravitated in his favour. For ease of reference, paragraphs 4 ? 16 of the affidavit in support of the application read as follows:
4. That I know that as a result of the tension and anxiety generated by the outcome of the primary elections of the 2nd respondent conducted in Kwara State on 5th and 6th October, 2018, while the Results and the names of the winners were not given to winners including myself.
5. That based on the authentic result of the primary election for the Esa/Shawo/Igbo-Idun State constituency of Offa, I was given the INEC necessary Forms by the 2nd respondent which I filled and returned to the 2nd which in turn submitted my name and the forms to the 3rd respondent as the candidate of the 2nd respondent for Esa/Shawo/Igbo-Idun state constituency.
6. That upon being served with the 1st respondent?s originating summons in this case in December, 2018, in preparation for my defense as requested by my lead counsel, Ayinla Jawondo Salman Esq., on 10th December, 2018, I went to the National Secretariat of the 2nd respondent in Abuja and applied for a copy of the Result Sheet of the primary election for Esa/Shawo/Igbo-Idun State constituency but I was informed by the National Publicity Secretary of the 2nd respondent, Mr. Lanre Issa-Onilu that because of discovery of fake Results of the primaries of the party in circulation, in particular with respect of Kwara State, the National Chairman of the 2nd respondent has taken custody of all the Result Sheets and only the National Chairman can issue to me or give approval for issuance of copy of the Result sheet required by me.
7. That when I made it known to the said National Publicity Secretary of the 2nd respondent who is an indigene of Kwara State that I needed a copy of the Result sheet for my defense in the Court case instituted against me by the 1st respondent, he promised to liaise with the National Chairman to see that a copy of the Result Sheet of the primary election is issued to me.
8. That when I did not hear anything from the National Chairman and after phone discussions with the said National Publicity Secretary, on my instruction, my counsel, Salman Jawondo Esq. of Jawondo & Co. by a letter of 23rd December, 2018 applied for a copy of the Result sheet which letter I personal took to the National Secretariat of the 2nd respondent in Abuja on 24th December, 2018 where I delivered same to the office of the National Chairman of the 2nd respondent as the National Chairman was said to be out of Abuja. A copy of the said letter of 23rd December, 2018 is hereto attached and marked as exhibit 1.
9. That I also informed the National Publicity Secretary of the 2nd respondent of the fact deposed to in paragraph 8 above who restated his promised to liaise with the National Chairman on the issue.
10. That when there was no response to my counsel?s letter of 23rd December, 2018, based on my request, my counsel, Salman Jawondo Esq. of Jawondo & Co. by another letter of 2nd January, 2019 renewed his request for a copy of the Result sheet which letter I personal took to the National Secretariat of the 2nd respondent in Abuja on 3rd January, 2019 where I delivered same to the office of National Chairman of the 2nd respondent as the National Chairman was also said to be out of Abuja on party matters. A copy of the said letter of 2nd January, 2019 is hereto attached and marked as exhibit 2.
11. That I also informed the National Publicity Secretary of the 2nd respondent on the fact deposed to in paragraph 10 above and he assured me that as soon as the National Chairman is available he would get a copy of the Result Sheet for and transmit same to me.
12. That I informed the National Publicity Secretary that the case was fixed for 10th January, 2019 and my counsel would need the Result before then so as to be able to place same before the Court by way of a further affidavit.
13. That when I did not hear anything from the office of the National Chairman of the 2nd respondent on the issue, following the adjournment of the case from 10th January, 2019 to 14th January, 2019, on Friday, 11th January, 2019, I was at the National Secretariat of the 2nd respondent to process the issuance of copy of the Result Sheet but I did not see both the Chairman and the National Publicity Secretary as the secretariat was virtually empty of National Officers of the party who were said to be busy with electioneering campaigns/matters.
14. That because of the aforementioned circumstances, I was unable to obtain and place before the trial Court a copy of the Result of the primary election before the conclusion of the case which was heard on 14th January, 2019 and the judgment delivered on 30th January, 2019.
15. That based on the advice of my lead counsel Ayinla Jawondo Esq. that I can still make use of the Result as an additional or further evidence on appeal, I intensified efforts at getting a copy of the Result Sheet and after the Presidential and National Assembly elections held on 23rd February, 2019, I went to the National Secretariat of the 2nd respondent on 26th February, 2019 where I was lucky to meet the National Chairman, who after apologizing for the stress I have gone through, gave to me a copy of the Summary Result Sheet with a covering letter dated the 26th February, 2019. The covering letter conveying the Summary of Result Sheet and copy of the Summary of Result Sheet are hereto attached and marked as exhibit 3 and 3A respectively.
16. That based on the advice of my counsel, Ayinla Salman Jawondo Esq. I applied for certification of the copy of the Result Sheet by the 2nd respondent which certification was done for me by the Directorate of Organization of the 1st respondent on 6th March, 2019. A copy of the Certified True Copy of the Result Sheet is hereto attached and marked as exhibit 4.
In response to the deposition of the applicant, the 1st respondent filed a counter affidavit thereto. The following paragraphs are reproduced as follows:
5. That in reaction to the stated paragraphs, I state as follows;
a.) That in response paragraphs 5 of the affidavits, I know as a fact that the 1st respondent was the one that was issued the INEC nomination form as candidate for the seat of State House of Assembly to represent Essa/Shawo/Igbodun constituency for the 2nd Respondent All Progressive Congress.
b) Contrary to paragraphs 6, I know as a fact that the National Chairman All Progressive Congress is not the one in charge of issuance of result sheet but the National Secretariat/Secretary.
c) That in response to paragraphs 8, 9 and exhibits 1 and 2, I know that the letters were never sent to national chairman as there is no evidence of receipt endorsed on the purported letters of Request.
d) That contrary to Paragraph 10 of the affidavit in support of motion, the said Result sheets were at all times available throughout the pendency of trial at the lower Court.
e) That furtherance of the paragraph above, the 2nd Respondent who purportedly issued the said result sheet sought to be brought in as fresh evidence was also a party to the suit at the trial at the lower Court and never at any time throughout the trial raised any issue as to the existence of the said result sheet showing that the Appellant won at the party?s primary.
f) That contrary to Paragraph 15 of the Appellant?s affidavit, the said result sheet sought to be brought is not properly certified as required by the Evidence Act as there exist no signature of the official of the 2nd Respondent (All Progressive Party) on the face of the document while evidence of receipt of certification was not attached.
g) That I know as a fact that the result sheet accredited to the 1st Respondent at trial in the Appellant?s Counter-Affidavit against 1st respondent?s originating summons stated 408 votes as accruing to the 1st respondent (page 53 of Record) whereas in the result sheet sought to be brought in as exhibit 3, the 1st respondent was accorded 406 votes.
h) That in furtherance to the above paragraph, the 2nd respondent (who allegedly issued result sheet sought to be freshly tendered) stated at trial in the lower Court that the 1st respondent polled 408 votes.
i) That I know of a fact that the purported letter of Request dated the 23rd December, 2018 for final result of APC primary election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government Area of Kwara and the letter date 2nd January, 2019 titled ?request for final result of APC Primary election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government Area of Kwara conducted on 6th October, 2018 marked as exhibit 1 and 2 respectively are documents procured in anticipation of this appeal as the said letters which by the dates the Appellant claimed had existed during the trial at the lower Court were never tendered by the appellant at the lower Court.
j) That I know of a fact that the appellant in paragraph 3a (page 52 of record) of the 1st Defendant?s counter affidavit against the Originating Summons deposed that the 1st respondent came third in the primary election conducted by the 2nd respondent who also confirmed same in his counter affidavit (page 113 of Record) in paragraph 5a as against the position stated in the result sheet the appellant is now seeking to tender as exhibit 3 where the 1st respondent was alleged to have come 4th in the primary election conducted by the 2nd respondent on 6th October, 2018.
k) That I know that if the appellant truly won at the primary election of the 2nd respondent, there would have been no need for him to write a letter of protest dated the 7th October, 2018 (page 55 of the record) to the 2nd respondent in which he claimed manipulations in the primary elections concluded by the 3rd respondent, on the same 7th October, 2018 that he claimed he won the primary elections which led to the issuance of nomination form to the 1st respondent.
l) That I know as fact that the primary elections was conducted by the 3rd respondent for the 2nd respondent wherein the 1st respondent was declared the winner and for which reason the appellant wrote a letter of protest dated 7th October, 2018 (page 55 of the record) whereas the result sheet the appellant now seeks to tender now carries his name as the winner having allegedly polled the highest votes in the same primary election concluded on 7th October, 2018.
The state of the law with regards to affidavit evidence is that when a fact or facts are asserted, and such fact(s) are not denied or controverted by the adverse party, the same is deemed to have been admitted by him, and the Court justified in utilizing the uncontroverted affidavit evidence in resolving the issue in controversy. See Duru vs. Nwosu (1989) 4 NWLR (pt. 113) 24, Ajomale vs. Yadu?at (No. 2) (1991) 5 NWLR (pt. 191) 266.
With regards to whether the evidence sought to be adduced could not have been obtained for use before the trial, applicant relied on his paragraphs 4 ? 14 and exhibits 1, 2 and 3 in showing that applicant demonstrated due diligence by doing all things humanly possible in getting the result sheet in focus with no result. The case of Hope Uzodinma vs. Izunaso (2011) LPELR ? 5083 (CA) was cited in support of the legal principle. With respect to the second condition exposed by the apex Court in the case of Obasi vs. Onwuka (supra), it was submitted that the fresh or additional evidence sought to be adduced on appeal where granted, being the result of the primary election declared by the 2nd respondent would impact on the case. And finally with regards to the third condition, whether the evidence sought is apparently credible and thereby capable of being believed, it was submitted that the result is not only credible, but that the respondents did not controvert the said evidence. He alluded to exhibit 3, as being a letter from the National Chairman of the 2nd respondent, by which exhibit 3A was forwarded, and on whether the evidence to be adduced would influence the judgment of the lower Court in favor of the applicant were it to have been available at the Court of trial, it was argued that such would have caused the decision of the lower Court to have been favorably disposed towards the applicant. On whether the evidence to be adduced is weighty and material, it was contended that the evidence was weighty and material and therefore relevant to a just determination of the case on the issue of facts.
The 1st respondent however insists that the conditions under which the discretion of the Court will be granted to adduce fresh or further evidence were not met by the applicant. In particular, learned counsel argued that by paragraph 5(d) and 5(e), it was shown that applicant had not shown enough diligence in obtaining the purported result sheet for the prosecution of his case, knowing fully well that his case was dependant on the said result sheet. In resolving the issue in controversy, i.e. whether applicant exhibited diligence in his effort at procuring the said result sheet, the law provides that where the evidence adduced by way of affidavit evidence is supported by documentary evidence/exhibits, both should be employed in the resolution of the matter in controversy, and in questions where there are conflicting affidavits, the document may be used to determine the conflict depending upon the circumstance of the case.
See Dagazau vs. Bokir International Co. Ltd (2011) 14 NWLR p.261, Nwosu vs. Imo State Environment Sanitation Authority (1990) 2 NWLR (pt. 135) 688.
In the instant case, the applicant has shown by his exhibit 1, 2 and 3, that he engaged the national chairman of the 2nd respondent in an effort at trying to obtain the result sheet of the primary election for the Esa/Shawo/Igbo-Idun state constituency, from the 23rd of December, 2018 in furtherance of his case before the trial Court, but was unable to secure same until the 26th of February, 2019, when he was able to get the stated document. The applicant has deposed that he had numerously travelled to the headquarters of the 2nd respondent in pursuit of the stated document. I agree with the applicant that these averments remained uncontroverted for which this Court can rely upon in resolving the issue in controversy. I have no doubt therefore that applicant with reasonable diligence sought for the use of the document sought to be adduced as additional evidence thus satisfying the first and major condition enumerated in the case of Asaboro vs. Aruwaji (1974) 1 ALL NLR (pt. 1) 140, cited by the learned counsel for the applicant.
Where the 1st condition succeeds in favor of the applicant, the other conditions enumerated as special grounds for the grant by the appellate Court to admit additional evidence likewise, remains established, more so in the circumstance of the case before the Court. Having examined the affidavit evidence and the accompanying exhibits, as well as the counter affidavit by the 1st respondent, I am left in no doubt at all that applicant satisfied all the conditions necessitating the discretion of this Court being exercised in its favor in the interest of justice.
Consequently, the appellant/applicant is hereby granted leave to call additional evidence in this appeal, to wit the tendering of the All Progressive Congress, Summary Result Sheet for the State House of Assembly primary Election for Esa/Shawo/Igbo-Idun State constituency of Offa Local Government Area, Kwara State.
Order of this Court is also granted allowing the appellant/applicant to call additional and or further evidence in this appeal to wit tendering the All Progressive Congress Summary result sheet for State House of Assembly primary Election for Esa/Shawo/Igbo-Idun state Constituency of Offa Local Government Area of Kwara State, and finally order of this Court is hereby granted admitting the All Progressive Congress, Summary Result Sheet for State House of Assembly Primary Election for Esa/Shawo/Igbo-Idun State Constituency of Offa Local Government Area of Kwara State as part of the evidence to be used and relied upon in the hearing and determination of this appeal.
Consequentially, the hearing of the appeal is adjourned to the 1st day of April, 2019 for hearing of the appeal.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I concur with the reasoning and conclusion reached in the ruling just delivered by my learned brother Barka, JCA, to the effect that the instant application is meritorious. Hence, having adopted the said reasoning and conclusion as mine, I too hereby adopt same and grant the application as prayed.
BALKISU BELLO ALIYU, J.C.A.: I had the privilege of reading in draft the Ruling just delivered by my learned brother
HAMMA AKAWU BARKA, JCA, with which in entirely agree. I also grant the prayers of the Appellant to call additional evidence by tendering result sheets of the All progressive Congress primary election for Esa/Shawo/Igbo-idun State Constituency of Offa Local Government Area of Kwara State. The appeal is adjourned for hearing to 1st April, 2019.
Appearances
Salman Jawondo with him, Razak Saka AyodejiFor Appellant
AND
Oluronke Adeyemi with him, Kunle Ajayi, Oluwatomi Adetula and Seun Osanupin for the 1st Respondent.
Sambo Murital for the 2nd Respondent.
Ayodeji Akerele (Senior Legal Officer, INEC) for the 3rd RespondentFor Respondent
