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IN LAND CASES THE PLAINTIFF MUST SUCCEED ON ITS OWN CASE

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In land cases that the plaintiff when claiming a declaration of title must succeed on the strength of his case. The onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to the declaration of title claimed. The plaintiff must rely on the strength of his case and not on the weakness of the defendant’s case. If this onus is not discharged, the weakness of the defendant’s case may not generally help him and the proper judgment will be for the defendant. Where, however, the case of the defendant lends support to the case of the plaintiff, it is recognised that the court cannot ignore it in arriving at a conclusion as to which side to believe.

– Iguh, JSC. Clay v. Aina (1997)

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evidence

FAILURE TO TENDER STOLEN ITEMS DOES NOT MAKE PROSECUTION’S CASE WEAK

The position of the law is that where there is overwhelming evidence from Witnesses, which is not contradicted, and which is believed, that property or money were stolen during an armed robbery operation, the non-tendering of these items in Court, as Exhibits, will not destroy the Prosecution’s case – see Ajumobi v. State (2018) LPELR-(43854) SC, wherein Akaahs, JSC, observed that – The production of the stolen items, no doubt, will make watertight the case of the Prosecution. The law, however, still remains that where the evidence adduced by the Prosecution is capable of being believed and the trial Judge believed it and convicts the Accused, an appellate Court will be slow to overturn the verdict simply on the basis that the trial Court could have viewed such evidence otherwise. Where it is suggested that a piece of evidence casts some doubt on the Prosecution’s case, it is necessary to show, unless such is manifest or evident from the Records, what aspects becomes doubtful by reason of the evidence.

— A.A. Augie, JSC. Usman v The State (2019) – SC.228/2016

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PAIN SUFFERED NEED CANNOT BE ASSESSED BY MEDICAL EVIDENCE

As far as I am aware, there is no known means of medically assessing the intensity or otherwise of the pain a person is going through. When related to injury, medical evidence can only describe the nature of the injury but not the pain that goes with it. The more severe the injury the more likely the severity of the pain. Such pain can merely be imagined by a person who has seen when and how the injury occurred or who sees the nature of the injury later and was told how it happened including the medical doctor who may have treated the victim and noticed the agony he expressed by words or action or through groaning; or to whom the nature of the injury is described and the circumstances in which it occurred. For instance, a person who saw how any person’s limb, e.g. leg, was crushed by a heavy object would literally feel, pathologically, some reflexes which tend to register in him that the victim has undergone severe pain. When told about it he will likely imagine the severity of the pain. But the real nature of the pain can best be experienced or described by the victim.

– Uwaifo JSC. C & C Constr. v. Okhai (2003) – SC.8/1999

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THE COURT HAS A DUTY TO ACT ON UNCHALLENGED AND UNCONTROVERTED EVIDENCE

It is settled that the Court has a duty to act on unchallenged and uncontroverted evidence. See: BRONWEN ENERGY TRADING CO.LTD v OAN OVERSEAS AGENCY (NIG) LTD (2022) LPELR-57307(SC) at page 31, paras. B-C; and OGUNYADE v OSHUNKEYE & ANOR (2007) LPELR-2355(SC) at pages 22 – 23, paras. B F.

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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AFFIDAVIT EVIDENCE CONSTITUTES EVIDENCE

It is already a settled law that an affidavit evidence constitutes evidence and must be so construed, hence, any deposition therein which is not challenged or controverted is deemed admitted.

– O. Ariwoola, JSC. Tukur v. Uba (2012) – SC.390/2011

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COURT TO DECIDE CASE ONLY ON LEGALLY ADMISSIBLE EVIDENCE

Thus where a court wrongfully admits inadmissible evidence, it ought as a duty, to disregard the inadmissible evidence in the consideration of the judgment in the matter. Where such evidence has been wrongfully admitted and acted upon and whether or not the opposing party objects or not, an appellate court has the duty to exclude such evidence and decide the case only on the legally admissible evidence, see Timitimi v Amabebe (1953) 14 WACA 374; Ajayi v Fisher (1956) 1 FSC 90, (1956) SC NLR 279.

— Musdapher, JSC. Shittu & Ors. v Fashawe [2005] – SC 21/2001

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ADMISSION OF FRESH EVIDENCE ON APPEAL MUST BE BY CAUTION

The power to admit new, fresh or additional evidence must always be exercised sparingly and with caution. The Court must consider whether there are special circumstances to warrant the grant of the application and whether it would be in furtherance of the justice of the case. See: Uzodinma vs Izunaso (No.2) (2011) 17 NWLR (Pt. 1275) 30 @ 55 B-C.

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

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