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APPEAL COURT CAN EVALUATE DOCUMENTARY EVIDENCE

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Dictum

Very much aware of the findings of facts by the two lower courts in this matter, I must state, all the same, that where the evidence to be evaluated is mainly documentary as here, this court is as in good a vintage position as the trial court. – Chukwuma-Eneh JSC. Yaro v. Arewa CL (2007)

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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)

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APPEAL COURT: WHERE FURTHER EVIDENCE WILL BE NECESSARY

A situation where further evidence will be necessary arises only when the evidence relevant to the issue in controversy to determine an issue and ensure substantial justice is absent and deplete from the proceedings. This court or the court below does not ordinarily go out of its way to fish for evidence to fill a vacuum that does not exist in a case, just to satisfy a party, when in fact all the pleadings and evidence, that are necessary material are already part of the record of proceedings before it.

– Mukhtar JSC. Goodwill v. Witt (2011) – SC. 266/2005

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SETTLED PRINCIPLES WHICH GUIDE THE COURT WHETHER TO ADMIT FRESH EVIDENCE

As rightly submitted by learned counsel for both parties, there are settled principles, which guide the Court in determining whether to grant leave to adduce fresh or further evidence. They are, inter alia, as follows: (a) The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial, or are matters which have occurred after judgment in the trial Court. (b) In respect of other evidence other than in (a) above, as for instance, in respect of an appeal from a judgment after a hearing on the merits, the Court will admit such fresh evidence only on special grounds. (c) The evidence should be such as if admitted, it would have an important, not necessarily crucial effect on the whole case; and (d) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible. See: Asabaro vs Aruwaji (1974) 4 SC (Reprint) 87 @ 90 – 91: Akanbi vs Alao (1989) 3 NWLR (Pt.108) 118@ 137 – 138 H – B: Esangbedo vs The State (1989) 4 NWLR (Pt.113) 57 @ 67 A-C.

— K.M.O. Kekere-Ekun, JSC. Williams v Adold/Stamm (2007) – SC.404/2013

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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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READING TWO DOCUMENTS TOGETHER

In Burgess v. Cox (1951) Ch. 383 Harman, J., (as he then was), found that he could read two documents together to remedy the deficiency of the defendant’s signature lacking in the first document relied on as being a memorandum when it was obvious that if the two documents were placed side by side, they referred to the same transaction.

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ORAL EVIDENCE CANNOT CONTRADICT DOCUMENTARY EVIDENCE

Can this evidence pass for its content of oral agreement of a yearly tenancy to vitiate the termination of the lease in 1980? Can the bare ipse dixit of a witness of the existence of oral evidence turn around in his favour in the face of clear documentary evidence to the contrary? I have a few more questions to ask but I can stop here.

– Tobi JSC. Odutola v. Papersack (2007)

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