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THE COURTS LEAN AGAINST CALLING FRESH EVIDENCE ON APPEAL

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Dictum

Before concluding on the said prayer 7 it is helpful to call to mind the observations of Oputa JSC in Obasi v. Onwuka (1987) 3 NWLR (Pt. 61 ) 364, 372 in an application to call additional evidence on appeal: “To talk therefore of assessing the rightness or wrongness of the trial court’s verdict today by evidence that will be given tomorrow is to talk in blank prose. This is the reason why appellate courts are very reluctant to admit “fresh evidence”, “new evidence” or “additional evidence” on appeal except in circumstances where the matter arose ex improviso which no human ingenuity could foresee and it is in the interest of justice that evidence of that fact be led:- R v. Dora Harris (1927) 28 Cox 432. But by and large, at least in criminal cases (and the principle should also be the same in civil cases), the courts lean against hearing fresh evidence on appeal.”

— Oguntade, JSC. UBA v BTL (SC. 301/2003, 15 April 2005)

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EVIDENCE ON MATTER NOT PLEADED

It is settled that evidence led on any matter not pleaded goes to no issue and ought to be disregarded when giving judgment. – Kutigi JSC. Amadi v. Nwosu (1992)

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ONLY DOCUMENTARY EVIDENCE CAN CONTRADICT DOCUMENTARY EVIDENCE

However the conflict is not strong to hold his evidence is of no value when the documentary evidence speaks for itself. It is trite the best evidence to challenge documentary evidence is same Documentary evidence. – Nwodo, JCA. OLAM v. Intercontinental Bank (2009)

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UNCHALLENGED EVIDENCE IS GOOD EVIDENCE IN WHICH A COURT CAN ACT ON

I bear in mind in doing so that in law unchallenged evidence is good evidence on which a Court should act to make findings of facts. See Nwabuoku v. Ottih (1961) 1 All NLR 487 @ p. 490. See also Odulaja v. Haddad (1973) 11 SC 357; Isaac Omoregbe v Daniel Lawani (1980) 3 – 4 SC 108 @ p. 117; Oluhunde & Anor v. Prof. Adeyoju (2000) 14 WRN 160.

— B.A. Georgewill, JCA. Anyi & Ors. v. Akande & Ors. (2017) – CA/L/334/2014

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EVIDENCE IN EARLIER PROCEEDING NOT RELEVANT IN LATER TRIAL

Now it is settled law that the evidence of a witness taken in an earlier proceeding is not relevant in a later trial. except for the purpose of discrediting such a witness in cross-examination and for that purpose only.

– Kawu, JSC. Ogunnaike v. Ojayemi (1987)

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CLAIMANT CAN RELY ON EVIDENCE OF THE DEFENDANT

The position of the law is that the Claimant is entitled to rely on the evidence put forward by the Defendant. See ODUTOLA V. SANYA (2008) ALL FWLR (PT. 400) 780 AT 793, PARAS. F – G (CA) where it was held that “… if the Defendant’s evidence supports that (the case) of the Plaintiff, he is entitled to rely on same to fortify his case. See Kodilinye v. Odu (1935) 2 WACA 336; Akinola v. Oluwo (1962) 1 All NLR 224″.

— E.N. Agbakoba, J. Igenoza v Unknown Defendant (2019) – NICN/ABJ/294/2014

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A PIECE OF EVIDENCE IS SAID TO BE CONTRADICTORY WHEN IT ASSERTS THE OPPOSITE OF ANOTHER PIECE

Now, a piece of evidence is said to be contradictory to another piece of evidence, when it asserts or affirms the opposite of what the other piece of evidence asserts. It is settled that if the contradiction in the evidence adduced by the Prosecution goes to the root of the case, as to raise doubt in the mind of a Court, the Court should not convict. In other words, if there is contradiction in evidence as to material fact, which raises doubt, the benefit of doubt must be given to the Accused. However, where the contradictions are not as to material facts, such contradictions should not disturb the finding of guilt, if sufficient evidence has been led on material facts to the Charge see Ochemaje V. State (2008)15 NWLR (Pt. 1109) 57SC, wherein Tobi, JSC, explained: Contradictions definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not necessarily mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions, which are not material or substantial will go to no issue.

— A.A. Augie, JSC. Usman v The State (2019) – SC.228/2016

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