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EXPERT EVIDENCE OVER WEIGHS PRESUMPTION

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It is, therefore, a negation of duty to run away from expert evidence and postulate presumptions. Presumptions do not arise where direct evidence is available.

— Obaseki Ag JSC. Seismograph v. Ogbeni (1976) – SC.39/1974

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TO QUALIFY AS AN EXPERT UNDER THE EVIDENCE ACT

To qualify as an expert under the Act the witness must be specially skilled in the field in which he is giving evidence and whether or not a witness can be regarded as an expert is a question for the Judge to decide; the decision must be based on legal evidence before him. As Sir Verity, CJ (Nigeria) put it in Ajani v. The Controller of Customs 14 WACA 34 at 36: “It is clear, I think, that the test must always be the knowledge and experience of the particular witness and whether the evidence justifies the conclusion that he is ‘specially skilled’ within the meaning of the Evidence Ordinance, which means no more than that he has special knowledge, training or experience in the matter in question.”

— Ogundare, JSC. Azu v State (1993) – SC. 131/1992

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EXPERT IS PERMITTED TO GIVE AN OPINION BASED ON HEARSAY

Para. 40: “It is common knowledge that an expert’s opinion is usually based on his training and experience. In law an expert is permitted to give an opinion on the basis of hearsay information, provided that it relates to specific matters of which he does have personal knowledge. Thus a doctor can give evidence of what he was told by a patient about his condition for the purpose of evaluating his diagnosis; though his testimony is inadmissible to show what symptoms were actually being experienced by the patient; see R. V. Bradshaw (1985) 82 Cr. App. R. 79, CA.”

— Saidykhan v GAMBIA (2010) – ECW/CCJ/JUD/08/10

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WHERE PARTY BRINGS EXPERT WITNESS – WEIGHT OF TESTIMONY

In Fajemi v. Oni (2009) 7 NWLR (Pt. 1140) 223 @ pp. 276 – 277, it was emphatically held inter alia thus: “The Court must be weary of admitting a report prepared by an Expert not at the instance of the Court but at the behest of any of the parties to the dispute. Such a report must be taken with a pinch of salt.”

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STATEMENT MADE BY A PERSON INTERESTED AT A TIME – EXPERT STATEMENT

In other words by virtue of section 91(3) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990, any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish is inadmissible. See Salako vs. Williams (1998) 11 NWLR (Pt. 974) 565. However, as rightly submitted by Respondents’ counsel, expert evidence is treated as an exception to Section 91(3) of the Evidence Act. In Apena vs. Aiyetobe supra it was held that a surveyor or any expert in his field of knowledge who makes a statement in any form in respect of a matter in court at any stage of the proceedings is generally regarded as a person who has no temptation to depart from the truth as he sees it from his professional expertise. The submission of Appellants counsel on this issue is not tenable as there is no evidence to support his conclusion that DW2 as handwriting analyst made the report to favour the Respondents because they paid him. There must be a real likelihood of bias before a person making a statement can be said to be a “person interested” within the meaning of section 91(3) of the Evidence Act. In the instant case there is no evidence on record.

— A.G. Mshelia, JCA. Ize-Iyamu v Alonge & Ors. (2007) – CA/L/184/03

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IT IS NOT IN EVERY CASE THAT A MEDICAL DOCTOR MUST BE CALLED

A lot of heavy weather has been made about the failure of the prosecution to call the medical doctor to testify in this case. First of all, it must be stated, that it is not in every case that the medical doctor must be called to testify. By virtue of Section 55 (1) of the Evidence Act, 2011, the report of the medical officer who performed the autopsy may be taken as sufficient evidence of its contents. See: Edoho Vs The State (2010) 14 NWLR (Pt. 1214) 651; Isiekwe Vs The State (1999) 6 NWLR (Pt. 617) 43; Popoola Vs The State (2013) 17 NWLR (Pt. 1382) 96. The facts and circumstances of each case will determine whether the attendance of the maker of the medical report is essential. Secondly, it is for the prosecution to determine the number of witnesses to call in order to discharge the burden of proving its case beyond reasonable doubt. It has been held that what is material is not the quantity of witnesses but the quality of the evidence adduced. See: Akalezi Vs The State (1993) 2 NWLR (Pt. 273) 1; Smart Vs The State (2016) LPELR 40728 (SC); Nwaturuocha Vs The State (2011) 6 NWLR (Pt. 1242) 170.

— K.M.O. Kekere-Ekun, JSC. State v Abdu Musa (2019) – SC.625/2016

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NON PRODUCTION OF QUALIFICATION OF EXPERTISE GOES TO WEIGHT NOT ADMISSIBILITY

It is the considered view of this tribunal, that the contention of learned counsel to the 2 nd Respondent, that Pw32, did not produce before the tribunal, his qualification or certificate, to satisfy the tribunal of his qualification as an expert witness pursuant to S68 of the Evidence Act 2011 does not go to the admissibility of the report Exhibit P169, but to the weight to be attached to the report, if the court finds so.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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