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

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.”

IN LAND CASES THE PLAINTIFF MUST SUCCEED ON ITS OWN CASE

In land cases that the plaintiff when claiming a declaration of title must succeed on the strength of his case. The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title claimed. The plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case may not generally help him and the proper judgment will be for the defendant. Where, however, the case of the defendant lends support to the case of the plaintiff, it is recognised that the court cannot ignore it in arriving at a conclusion as to which side to believe.

– Iguh, JSC. Clay v. Aina (1997)

RESPONSIBILITY OF TRIAL COURT TO EVALUATE EVIDENCE

It is now settled law, that it is the primary responsibility of the trial court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate court which neither heard the witnesses nor saw them to observe their demeanors in the witness box. It follows therefore that when a trial court unquestionably evaluates the evidence and appraises the facts of a case, it is not the business of the appellate court to substitute its own views for the views of the trial court. – Musdapher JSC. Gbadamosi v. Dairo (2007)

WHERE EVIDENCE NOT CHALLENGED ONUS IS DISCHARGED

Ajero & Anor. v. Ugorji & Ors (1999) LPELR – 295 (SC), where Onu JSC., had stated inter alia thus: “Indeed, the Court has by a host of decided cases stated that where evidence called by a Plaintiff in a civil case is neither challenged nor contradicted, the onus or proof on him is discharged on a minimum of proof.”