THE PEPT CONSIDERED EVIDENCE DESPITE DISCARDING THEM

EXTRINSIC EVIDENCE CANNOT VARY A WRITTEN CONTRACT

The general rule is that where the parties have embodied the terms of their contract in a written document, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument.

– Adio, JSC. UBN v. Ozigi (1994)

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.”

NOT CHALLENGING REJECTION OF EVIDENCE

Akpasubi v. Umweni (1982) All N.L.R. 306 at 308 where the Supreme Court held that “It is elementary I think that once a trial court rejected the evidence of a witness and the Judge’s decision in regard thereto has not been challenged on appeal that is the end of that evidence for ever”.

COURT CANNOT PICK BETWEEN TWO CONTRADICTING EVIDENCE

The law is trite that where there are material contradictions in the evidence adduced by a party, the court is enjoined to reject the entire evidence as it cannot pick and choose which of the conflicting versions to believe or follow. See Mogaji v. Cadbury (1985) 2 NWLR (Pt. 7) 393, Okezie Victor Ikpeazu v. Alex Otti & Ors (2016) LPELR-40055 (SC), (2016) 4 NWLR (Pt. 1513) 38; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297 at 322 – 323 paragraphs G-C, Muka v. The State (1976) 9 – 10 SC (Reprint) 193 at 205, Onubogu v. The State (1974) 9 SC 1 at 20, Salami v. Gbadoolu & Ors (1997) 4 NWLR (Pt. 499) 277.

— Okoro, JSC. Anyanwu v. PDP (2020) 3 NWLR (Pt. 1710) 134

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