AFFIDAVIT EVIDENCE CONSTITUTES EVIDENCE

TAKING EVIDENCE BY HIGH COURT INSTEAD OF MAGISTRATE COURT

It seems to me that if under the provisions of Order 23, rule 54 of the High Court Rules of Anambra State, 1988 a Magistrate or any officer of the court is permitted to take the evidence of a witness by way of commission, it cannot, with respect, be right to suggest that a High Court Judge, a judicial officer with much higher jurisdiction and status than a Magistrate or any other officer of the court is incompetent to take such evidence unless there exists any law which stipulates to the contrary. I know of no such law and my attention has not been drawn to any in this appeal. I am therefore of the view that the High Court was right by taking the evidence of the fourth defendant by way of commission as urged upon the court by learned Counsel for the appellant.

— Iguh JSC. Chime v Chime (2001) – SC 179/1991

PAIN SUFFERED NEED CANNOT BE ASSESSED BY MEDICAL EVIDENCE

As far as I am aware, there is no known means of medically assessing the intensity or otherwise of the pain a person is going through. When related to injury, medical evidence can only describe the nature of the injury but not the pain that goes with it. The more severe the injury the more likely the severity of the pain. Such pain can merely be imagined by a person who has seen when and how the injury occurred or who sees the nature of the injury later and was told how it happened including the medical doctor who may have treated the victim and noticed the agony he expressed by words or action or through groaning; or to whom the nature of the injury is described and the circumstances in which it occurred. For instance, a person who saw how any person’s limb, e.g. leg, was crushed by a heavy object would literally feel, pathologically, some reflexes which tend to register in him that the victim has undergone severe pain. When told about it he will likely imagine the severity of the pain. But the real nature of the pain can best be experienced or described by the victim.

– Uwaifo JSC. C & C Constr. v. Okhai (2003) – SC.8/1999

EVIDENCE GIVEN IN ANOTHER CASE, HOW MAY BE USED IN PRESENT CASE

Evidence given by a witness in another case may be used to impeach his credit if, in the later case, he says something different; but what he said in the earlier case does not become evidence in the later case. And a judgment given in another case can, in appropriate cases, be put in a later suit, to prevent the re-opening of the same question. One hopes that the indiscriminate introduction of other proceedings into a trial will be discontinued.

— Bairamian, F.J. Owonyin v. Omotosho (1961) – F.S.C.249/1960

PRINCIPLES TO GUIDE WHETHER NEW EVIDENCE SHOULD BE ALLOWED

In Comfort Asaboro v. M.G.D. Aruwaji and Anor. (1974) 4 SC 87 at 90-91 (Reprint) this court had cause to consider the principles which are to be taken into consideration in an application to call additional evidence on appeal. The court per Coker JSC said:- “The decision also evidently applied the principles which time honoured practice has established and the matters which the courts have always taken into consideration in the judicious exercise of powers to grant leave to adduce new evidence, namely:- The evidence sought to be adduced must be such as could not have been with reasonable diligence obtained for use at the trial; The evidence should be such as if admitted, it would have an important, not necessarily crucial, effect on the whole case; and the evidence must be such as apparently creditable in the sense that it is capable of being believed and it need not be incontrovertible. See for these observations Roe v. R McGregor and Sons Ltd. (1968) 1 WLR 925 where the earlier decision of the Court of Appeal in Ladd v. Marshall (1954) 3 All ER 745 was considered and applied. Strictly speaking, under our own rule, the discretion to grant leave to adduce new evidence is properly exercised for the “furtherance of justice”. The exercise must however be judicious and it is in this respect that the guidelines set out above have been followed and applied. We are not unmindful of the fact that it would be a dangerous precedent to allow a person who did not call evidence in the lower court, or who, for one reason or another, had called insufficient evidence at the trial, with comparative ease, to bring forward for the first time before this court the evidence which could and should have been adduced before the trial Judge. Such an attitude would be disastrous to the principles of seeing an end to litigation. The stand taken by the Privy Council in the case of Edie Maud Leeder v. Nnance Ellis (1953) at 52 (sic) also illustrates this point. However one looks at the problem, it seems to be generally accepted that the guiding principles have always been applied to the special facts or circumstances of each application before the Court of Appeal, and in every case the question whether or not sufficient diligence has been put into the quest for such evidence has been decided as a matter of fact.”

EVIDENCE ADMISSIBLE UNDER CERTAIN CONDITIONS vs EVIDENCE NOT ADMISSIBLE AT ALL

In Unity Life and Fire Insurance Company Ltd V. International Bank of West Africa (2001) LPELR-3412 (SC) (2001) NWLR (Pt 713) 610 this Court in restating the principle has held at pages 21 22; page 627 of the reports as follows: “A distinction must however, be drawn between where the evidence complained of is one which by law is prima facie admissible albeit under stipulated conditions as against where such evidence is by law inadmissible in any event and in all circumstances. In the latter class of cases, such evidence ought never to be acted upon by any Court of law whether, of first instance or of appeal, and it is immaterial that its admission in evidence was by the default or consent of the party complaining in failing to raise the necessary objection at the appropriate time. In other words, where the evidence complained of is by law inadmissible in any event and all circumstances, the evidence cannot be acted upon by any Court of law even if the party complaining failed to raise any objection or consented to the admission of such evidence in the proceeding. The appellate Court in such circumstance is duty bound to entertain a complaint on the admissibility of such evidence by the trial Court, reject it if it finds it absolutely inadmissible in any event and in all circumstances and decide the case on the legal evidence before the Court…”