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APPEAL COURT: WHERE FURTHER EVIDENCE WILL BE NECESSARY

Dictum

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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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.”

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SILENCE COULD AMOUNT TO ACCEPTANCE

It is a settled principle of law that where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross-examine him on that fact, or at least show that the he does not accept the evidence as true, where, as in this case, he fails to do either, a court can take his silence as an acceptance that the party does not dispute the facts.

– Nnaemeka-Agu JSC. Amadi v. Nwosu (1992)

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EVIDENCE ADMITTED IS SUBJECT TO BE TESTED AND EVALUATED

The class of witnesses described as expert witnesses is well settled. It is imperative to state that every piece of evidence that has been admitted in the course of proceedings is subject to be tested for credibility, weight or cogency by the trial court before it becomes acceptable. In effect it is not merely acceptable because the witness is described as an expert and his evidence not challenged. The primary duty of the trial court is to evaluate the evidence before it is accepted whether given by an expert or not.

– Nwodo, JCA. OLAM v. Intercontinental Bank (2009)

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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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WHERE EVIDENCE IS CONTRADICTING, ALL SHOULD BE REJECTED

It is well settled that where prosecution witnesses have given conflicting conversions of material facts in issue that the trial Judge before whom such evidence as led must make specific findings on the point and in so doing must give reasons rejecting one version and accepting the other. Unless this is done it will be very unsafe for the court to rely on any of the incidence before it. The proper course in the circumstance is to reject both versions of the evidence as unreliable and unsafe for the purpose of determining the material issue before the court. See: Onubogu v. The State (1974) 9 S.C. 1; Albert Ikem v. The State (1985) WLR (Pt. 2) 378.

— Opene JCA. JIMOH ABDULLAHI & Ors. v THE STATE (1995) – CA/K/180/C/94

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ANY AGENT OF THE COMPANY CAN GIVE EVIDENCE FOR THE COMPANY

Saleh v. B.O.N. Ltd (2006) NWLR (Pt. 976) 316 at 326-327 thus: “A company is a juristic person and can only act through its agents or servants. Consequently, any agent or servant can give evidence to establish any transaction entered into by a juristic personality. Even where the official giving the evidence is not the one who actually took part in the transaction on behalf of the company. Such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence…”

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