EVALUATION OF EVIDENCE ENTAILS

EVIDENCE ADMISSIBLE UNDER CERTAIN CONDITIONS vs EVIDENCE NOT ADMISSIBLE AT ALL

In Unity Life and Fire Insurance Company Ltd V. International Bank of West Africa (2001) LPELR-3412 (SC) (2001) NWLR (Pt 713) 610 this Court in restating the principle has held at pages 21 22; page 627 of the reports as follows: “A distinction must however, be drawn between where the evidence complained of is one which by law is prima facie admissible albeit under stipulated conditions as against where such evidence is by law inadmissible in any event and in all circumstances. In the latter class of cases, such evidence ought never to be acted upon by any Court of law whether, of first instance or of appeal, and it is immaterial that its admission in evidence was by the default or consent of the party complaining in failing to raise the necessary objection at the appropriate time. In other words, where the evidence complained of is by law inadmissible in any event and all circumstances, the evidence cannot be acted upon by any Court of law even if the party complaining failed to raise any objection or consented to the admission of such evidence in the proceeding. The appellate Court in such circumstance is duty bound to entertain a complaint on the admissibility of such evidence by the trial Court, reject it if it finds it absolutely inadmissible in any event and in all circumstances and decide the case on the legal evidence before the Court…”

EVIDENCE BY WITNESS IN PREVIOUS PROCEEDINGS CANNOT BE USED IN LATER PROCEEDING

It is settled law that evidence given in a previous case cannot be accepted as evidence in a subsequent proceedings except in conditions where the provisions of section 34(1) of the Evidence Act applies. Even where a witness who testified in a previous proceeding testifies again in a subsequent proceeding, the previous evidence has no greater value than its use in cross-examination of the witness as to his credit. Romaine v. Romaine (1972) 4 NWLR (Part 238) 650 at 669; Ayinde v. Salawu (1989) 3 NWLR (Part 109) 297 at 315; Alade v. Aborishade (1960) 5 FSC 167; Irenye v. Opune (1985) 2 NWLR (Part 5) 1 at 6-8 Sanyaolu v. Coker (1983) 1 SCNLR 168.

— F.F. Tabai JSC. Tijani Dada v Jacob Bankole (2008) – S.C. 40/2003

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)

NOT FUNCTION OF THE COURT TO SUPPLY OMISSION

The main thrust of the appeal appears to be that if the original of the public document is lost or destroyed thereby rendering the making of a certified copy impracticable, it would be unjust not to admit other form of secondary evidence such as a photocopy of the original document. I share the plight of the appellant but it must be borne in mind that the duty of the court is to expound the law and not to expand it. It is not the function of the court to supply omissions in statutes and thereby embark on judicial legislation.

– Edozie, JSC. Araka v. Egbue (2003) – SC.167/1999