EVALUATION OF EVIDENCE; INTERFERENCE BY APPELLATE COURT

COURT SHOULD NOT ACT ON INADMISSIBLE EVIDENCE WHERE ADMITTED

In the case of Olukade v Alade (1976) 2 SC 183, this Court summarised the general rule on the effect of the admission of inadmissible evidence:- “A court is expected in all proceedings before it to admit and act only on evidence which is admissible in law (i.e. under the Evidence Act or any other law or enactment relevant in any particular case or matter) and so if the court should inadvertently admit inadmissible evidence it has the duty not to act upon it.”

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.”

COURT WILL ACT ON UNCHALLENGED EVIDENCE

The law is well settled that where the evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the case to act on such unchallenged evidence before it. See Isaac Omoregbe v. Daniel Lawani (1980) 3 – 4 SC 108 at 117, Odulaja v. Haddad (1973) 11 SC 357, Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 SC 79 at 81, Abel Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322, (1961) All NLR 917.

— Iguh, JSC. Olohunde v. Adeyoju (2000) – SC.15/1995

PLAINTIFF MUST RELY ON THE STRENGTH OF HIS CASE

In Ngene v. Igbo (2000) 4 NWLR (Pt. 651) 131 at 142, this Court, per Ogundare, JSC said: “A long line of cases beginning with Kodilinye v. Mbanefo Odu (1935) 2 W.A.C.A. 336 has laid it down that in a claim for declaration of title the onus is on the plaintiff to prove his case. He must rely on the strength of his own case and not on the weakness of the defence – Jules v. Ajani (1980) 5/7 SC 96 except of course where the weakness of the defendant’s case tends to strengthen plaintiff’s case – Nwagbogu v. Ibeziako (1972) Vol. 2 (Pt.1) ECSLR 335, 338 SC or where the defendant’s case supports his case – Akinola v. Oluwo (1962) 1 SCNLR 352 (1962) 1 All NLR 224 (1962) (Pt. 1) All NLR 225 all of which is not the case here.”

EVIDENCE GIVEN IN ANOTHER CASE, HOW MAY BE USED IN PRESENT CASE

Evidence given by a witness in another case may be used to impeach his credit if, in the later case, he says something different; but what he said in the earlier case does not become evidence in the later case. And a judgment given in another case can, in appropriate cases, be put in a later suit, to prevent the re-opening of the same question. One hopes that the indiscriminate introduction of other proceedings into a trial will be discontinued.

— Bairamian, F.J. Owonyin v. Omotosho (1961) – F.S.C.249/1960