A court has a duty to disallow a question which is not relevant to the proceedings; but a question which is relevant can freely be put to a witness and must be answered, although the weight to be attached to the answer is an entirely different matter. Thus relevance and admissibility are closely knit together while the question of weight appertains to the province of evaluation and should, as always, be kept in separate compartment.
– Achike JCA. Adeyemi v. Edigin (1990)
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However, and for whatever it is worth, the law is settled that a tainted witness is a person who is either an accomplice or who on the evidence may be regarded as having some purpose of his/her own to serve – see R vs Enahoro (1964) NMLR 65; Ifejirika vs The State (1999) 3 NWLR (pt. 593) 59; Ogunlana vs The State (1995) 5 NWLR (Pt. 395) 266.
— W.S.N. Onnoghen, JSC. Moses v State [2006] – S.C.308/2002
It is trite law that where there is conflict in the opinions of experts, it is the duty of the court to come to a conclusion in the case by resolving such a conflict and can do so by rejecting the opinion of one or the other such experts. See John Wilberforce Bamiro v. S.C.O.A. (1941) 7 WACA 150; R v. Godo (1975), 61 Cr App R.131; Ozigbo v. Police (1976) 1 NMLR 273, Laws and Practice Relating to Evidence in Nigeria by Aguda at p.115 Article 9-05.
— Edozie, JCA. British American v. Ekeoma & Anor. (1994) – CA/E/60/88
Secondly, it is a well established principle of law that it is not necessary for a person on whom the onus of proof lies, even in criminal cases, to call every available piece of evidence in order to discharge that burden. It is enough if evidence is tendered sufficient to discharge the onus which the law lays upon the prosecution. See: Francis Odili v. The State (1977) 4SC 1 or (1977) 11 NSCC 154 at 158 and Joshua Alonge v.I.G. of Police (1959) SCNLR 516; (1959) 4 FSC 203 or (1959) 1 NSCC 169. In the Francis Odili case, the appellant was convicted and sentenced to death. Following his arrest, the appellant was identified at an identification parade by one of the two Rev. Sisters they violently robbed with arms. At the trial, he pleaded alibi. The learned counsel contended inter alia that the evidence of identification was unreliable and that the prosecution failed to call two other eye witnesses to the incident. On appeal, this court per Alexander C.J.N. stated as follows:- “Counsel’s last submission was that the 2 night guards should have been called as witnesses as they were present throughout………………..The tribunal, in its judgment, pointed out that the defence had an equal opportunity to call the night guards if they considered that the evidence of the night, guards would be favourable to them. The tribunal found no merit in this submission and we unhesitatingly agree. The prosecution is not required to call very available piece of evidence to prove its case. It is enough if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt.”
— Iguh, JSC. Oguonzee v State (1998) – SC.131/97
A tainted witness falls into one or both of the two categories hereunder listed: (1) A witness who is an accomplice in the crime charged. (2) A witness who, by the evidence he gives, may and could be regarded as having some purpose of his own to serve. Rasheed Olaiya v. The State (2010) Vol. 180 LRCN 1-197 p.34; The State v. Dominic Okoro & Ors (1974) 2 SC 73 at 82; Ishola v. The State (1978) 9-10 SC 73 at 100 .
— N.S. Ngwuta, JSC. Odogwu v State (2013) – SC.122/2009
A vital witness is a witness whose evidence may determine the case one way or the other and failure to call a vital witness is fatal to the prosecution s case. In other words, a witness who knows something significant about a matter is a vital witness. In Onah v. State (1985) 3 NWLR Pt. 12 Pg.236 a vital witness was described as a witness whose evidence may determine the case one way or the other and it is settled that the failure to call such a witness is fatal to the prosecution’s case.
– H.M. Ogunwumiju, JSC. State v. Ibrahim (2021) – SC.200/2016
No doubt, the prosecution is only obliged to call witnesses whose evidence is vital to the determination of the case for the prosecution and whose evidence would settle vital points of facts one way or the other to remove any element of doubt in respect of the guilt of the Defendant from the case of the prosecution.
– H.M. Ogunwumiju, JSC. State v. Ibrahim (2021) – SC.200/2016
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