THE PEPT CONSIDERED EVIDENCE DESPITE DISCARDING THEM

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.”

PRINCIPLES WHICH APPELLATE COURTS SHOULD CONSIDER IN THE EVALUATION OF EVIDENCE

And that takes me to the principles which an Appellate Court should consider in the evaluation of evidence by the trial Judge: 1. Evaluation of trial evidence is the primary responsibility of the trial court and so an Appellate Court cannot interfere just for the asking by an appellant. 2. An Appellate Court will however evaluate the evidence before the court if the trial court fails to do so; and this is from the Record. 3. An Appellate Court will also evaluate the evidence before the court if the trial court failed to evaluate the evidence properly in the sense that the evaluation is perverse. And so, the evaluation of evidence, though the primary responsibility of the trial court, is not the exclusive preserve of that court. It becomes so only where the evaluation is borne out from the evidence before the court.

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

CONSIDERATIONS AGAINST ADDUCING FRESH EVIDENCE AT APPELLATE COURT

Three prominent considerations tending to work against adducing fresh evidence at the appellate Court, when this Court exercises its power under Order 2, Rule 12 of the Rules of this Court in that regard, are –
i. Where issues are joined on pleadings at the trial Court no party shall be taken by surprise. Thus, the Appeal Court cannot consider the reception of new evidence without amendment of the pleadings. See ONIBUDO v. AKIBU (1982) 7 SC. 60; ADELEKE v. ASHERIFA (1990) 3 NWLR (Pt.136) 94 at 111; (1990) 21 NSCC 145 at 154.
ii. It is in the interest of public policy, particularly for the purpose of efficient and effective administration of justice, to obviate prolongation of litigation that the practice of adducing evidence, which ought to have been adduced at the trial Court, should not be postponed to after judgment: See ADELEKE v. ASHERIFA (supra).
iii. Appellate Courts generally exercise their jurisdiction to correct errors of law or fact made by the Courts below, after the latter’s consideration of the totality of evidential materials before them. Accordingly, the correctness of the decision of a trial Court or Judge should not be assessed or judged on the new evidence that the trial Court or judge never had an opportunity to consider: See ADELEKE v. ASHERIFA (supra). In other words the correctness or otherwise of the judgment of the trial Judge or Court should not be assessed on evidential materials he or it never had opportunity to consider.

– Ejembi, JSC. GTB v. Innoson (2017) – SC.694/2014(R)

COURT TO DECIDE CASE ONLY ON LEGALLY ADMISSIBLE EVIDENCE

Thus where a court wrongfully admits inadmissible evidence, it ought as a duty, to disregard the inadmissible evidence in the consideration of the judgment in the matter. Where such evidence has been wrongfully admitted and acted upon and whether or not the opposing party objects or not, an appellate court has the duty to exclude such evidence and decide the case only on the legally admissible evidence, see Timitimi v Amabebe (1953) 14 WACA 374; Ajayi v Fisher (1956) 1 FSC 90, (1956) SC NLR 279.

— Musdapher, JSC. Shittu & Ors. v Fashawe [2005] – SC 21/2001

QUALITY OF EVIDENCE IS MORE RELEVANT THAN THE QUANTITY

The first point that must be made is that a court of law needs not take into account the number of witnesses for each side to a dispute as a relevant factor in deciding which side to succeed. What is primarily relevant is the quality of the evidence adduced before the court. In this regard, Section 179(1) of the Evidence Act provides as follows:- “179(1) Except as provided in this section, no particular number of witnesses shall in any case be required for the proof of any fact.”

— Iguh, JSC. Oguonzee v State (1998) – SC.131/97