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EXTRINSIC EVIDENCE CANNOT VARY WRITTEN TERMS

Dictum

The general rule is that where the parties have embodied the terms of their agreement or contract in a written document as it was done in this case, extrinsic evidence is not admissible to add to, vary, subtract from or contradict the terms of the written instrument: See Mrs. O, D. Layode v Panalpina World Transport NY Ltd (1996) 6 NWLR (pt 456) 544, Glaloye v Balogun (1990) 5 NWLR (pt 148), Union Bank of Nigeria Ltd v Ozigi (1994) 3 NWLR (pt 333) 385.

— J.I. Okoro JSC. B.O. Lewis v. United Bank for Africa Plc. (SC.143/2006, 14 January 2016)

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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

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COMPETENCY IS A MATTER OF UNDERSTANDING

And, apart from this, there is a long line of authorities establishing that competency is not a matter of age but of understanding and that if a child understands the nature of an oath, the provisions in question are completely out of place. See Reg. v. Perkins (1840) 9 C. & P. 395 (or 173 E.R.884); also R. v. Michael Moscovitch (1924) 18 CAR 37. – Coker JSC. Okoye v. State (1972)

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SETTLED PRINCIPLES WHICH GUIDE THE COURT WHETHER TO ADMIT FRESH EVIDENCE

As rightly submitted by learned counsel for both parties, there are settled principles, which guide the Court in determining whether to grant leave to adduce fresh or further evidence. They are, inter alia, as follows: (a) The evidence sought to be adduced must be such as could not have been, with reasonable diligence, obtained for use at the trial, or are matters which have occurred after judgment in the trial Court. (b) In respect of other evidence other than in (a) above, as for instance, in respect of an appeal from a judgment after a hearing on the merits, the Court will admit such fresh evidence only on special grounds. (c) The evidence should be such as if admitted, it would have an important, not necessarily crucial effect on the whole case; and (d) The evidence must be such as apparently credible in the sense that it is capable of being believed and it need not be incontrovertible. See: Asabaro vs Aruwaji (1974) 4 SC (Reprint) 87 @ 90 – 91: Akanbi vs Alao (1989) 3 NWLR (Pt.108) 118@ 137 – 138 H – B: Esangbedo vs The State (1989) 4 NWLR (Pt.113) 57 @ 67 A-C.

— K.M.O. Kekere-Ekun, JSC. Williams v Adold/Stamm (2007) – SC.404/2013

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EVIDENCE ON MATTER NOT PLEADED

It is settled that evidence led on any matter not pleaded goes to no issue and ought to be disregarded when giving judgment. – Kutigi JSC. Amadi v. Nwosu (1992)

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CLAIMANT MUST RELY ON THE STRENGTH OF HIS OWN CASE AND SUPPORT FROM EVIDENCE OF DEFENDANT

I bear in mind the well-established principle of law that in every civil action in which a declaration is sought from the Court, a claimant who seeks the declaratory relief must succeed on the strength of his own case as made out creditably in the evidence put forward by him in support of his case and not to merely rely on the weakness or even absence of the Defendant’s case. However, where the evidence of the Defendant supports the case of the claimant, he is perfectly entitled to rely on such evidence. See Nsirim v Nsirim (2002) FWLR (pt. 96) 433 @ p. 441.

— B.A. Georgewill, JCA. Anyi & Ors. v. Akande & Ors. (2017) – CA/L/334/2014

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ORAL EVIDENCE CANNOT CONTRADICT DOCUMENTARY EVIDENCE

Having regard to the provisions of section 132(1) of the Evidence Act, oral evidence cannot be admitted to contradict, alter, add to or vary a contract or document unless such evidence falls within any of the matters that may be proved by such oral evidence by virtue of the provisos thereto. The provisos only permit evidence which will not be inconsistent with the terms of the relevant contract or document.

– Uwaifo JSC. Fortune v. Pegasus (2004)

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