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COURT MAY RELY ON EVIDENCE UNCHALLENGED

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It is trite that where evidence tendered by a party to any proceedings was not challenged or put in issue by the other party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it. See Isaac Omoregbe V Daniel Lawani (1980) 3-4 S.C. 108 at 117; Odulaja V Haddad (1973) 11 S.C. 357; Nigerian Maritime Services Ltd. V Alhaji Bello Afolabi (1978) 2 S.C. 79 at 81; Adel Boshali V Allied Commercial Exporters Ltd. (1961) All NLR 917; (1961) 2 SCNLR 322.

— Iguh, JSC. Yesufu v. Kupper Intl. (1996) – SC.302/1989

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EVIDENCE NOT CHALLENGED OR CONTRADICTED MUST BE ACCEPTED AS THE CORRECT VERSION

Saipem SPA vs. India Tefa (2001) FWLR (pt 74) 377 @p. 394, where this Court had held firmly inter alia, “When evidence of a witness has not been challenged, contradicted or shaken under cross-examination and such evidence is not inadmissible in law, provided the evidence is in line with the facts so pleaded, the evidence must be accepted as the correct version of what was expected to be proved. The Court is not only entitled to but also has no reason not to accept it.”

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THE NATIONAL INDUSTRIAL COURT CAN DEPART FROM THE EVIDENCE ACT

“In any event, section 12(2)(b) of the National Industrial Court Act, 2006 and Order 5 Rule 6 (b) of the Rules of this Court 2017 allows this court to depart from the Evidence Act in the interest of justice, fairness, equity and fair-play. See the case of Mr. Victor Adegboyu V. United Bank for Africa (unreported) Appeal No. CA/IL/20/2021, a decision of the Court of Appeal Ilorin Judicial Division delivered on the 14th day of April, 2022, where the Court of Appeal applied section 12(2) of the National Industrial Court Act 2006 and departed from the provisions of the Evidence Act 2011.”

— P.I. Hamman, J. per para. 2.6. FRN v ASUU (2022) – NICN/ABJ/270/2022

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RESPONSIBILITY OF TRIAL COURT TO EVALUATE EVIDENCE

It is now settled law, that it is the primary responsibility of the trial court which saw and heard witnesses to evaluate the evidence and pronounce on their credibility or probative value and not the appellate court which neither heard the witnesses nor saw them to observe their demeanors in the witness box. It follows therefore that when a trial court unquestionably evaluates the evidence and appraises the facts of a case, it is not the business of the appellate court to substitute its own views for the views of the trial court. – Musdapher JSC. Gbadamosi v. Dairo (2007)

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THE COURTS LEAN AGAINST CALLING FRESH EVIDENCE ON APPEAL

Before concluding on the said prayer 7 it is helpful to call to mind the observations of Oputa JSC in Obasi v. Onwuka (1987) 3 NWLR (Pt. 61 ) 364, 372 in an application to call additional evidence on appeal: “To talk therefore of assessing the rightness or wrongness of the trial court’s verdict today by evidence that will be given tomorrow is to talk in blank prose. This is the reason why appellate courts are very reluctant to admit “fresh evidence”, “new evidence” or “additional evidence” on appeal except in circumstances where the matter arose ex improviso which no human ingenuity could foresee and it is in the interest of justice that evidence of that fact be led:- R v. Dora Harris (1927) 28 Cox 432. But by and large, at least in criminal cases (and the principle should also be the same in civil cases), the courts lean against hearing fresh evidence on appeal.”

— Oguntade, JSC. UBA v BTL (SC. 301/2003, 15 April 2005)

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CLAIMANT IS TO ADDUCE EVIDENCE THAT WILL SUSTAIN HIS CLAIM ONLY

A claim is circumscribed by the reliefs claimed; and the duty of a claimant, therefore, is to plead only such facts and materials as are necessary to sustain the reliefs and adduce evidence to prove same So held the Supreme Court in Gabriel Ativie v. Kabelmetal (Nig.) Ltd [2008] LPELR-591(SC); [2008] 10 NWLR (Pt. 1095) 399; [2008] 5 – 6 SC (Pt. II) 47. I already held that by Dmez Nig Ltd v. Nwakhaba & 3 ors, the claimants cannot succeed on the evidence of the defendants; they can only succeed on their own evidence, something that is just not sufficiently before the Court. This means that the declaratory reliefs in terms of reliefs (1) to (3) cannot be granted given the insufficient facts/evidence advanced by the claimants in proof of same. I so hold.

— B.B. Kanyip, J. Olatunji v UBER (2018) – NICN/LA/546/2017

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CIRCUMSTANCES WHEN AN APPELLATE COURT WILL EMBARK ON A RE-EVALUATION OF EVIDENCE

Suffice to say that an appellate court will not embark on a re-evaluation of the evidence led by the parties in the trial simply because a party made an allegation of improper evaluation of evidence and formulated an issue for determination from the complaint. An appellate court will only do so where a party visibly demonstrates the perversity of the findings made by the trial court by showing that the trial court:
(a) made improper use of the opportunity it had of seeing and hearing the witnesses, or
(b) did not appraise the evidence and ascribe probative value to it, or
(c) drawn wrong conclusions from proved or accepted facts leading to a miscarriage of justice.

– M.L. Shuaibu, J.C.A. Dekan Nig. Ltd. v. Zenith Bank Plc – CA/C/12/2020

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