No doubt, the prosecution is only obliged to call witnesses whose evidence is vital to the determination of the case for the prosecution and whose evidence would settle vital points of facts one way or the other to remove any element of doubt in respect of the guilt of the Defendant from the case of the prosecution.
– H.M. Ogunwumiju, JSC. State v. Ibrahim (2021) – SC.200/2016
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From the foregoing judicial decisions, it is clear that in election petition litigation, whether the witnesses which a party intends to call are ordinary or expert witnesses and whether they are willing or subpoenaed witnesses, their witness depositions must be filed along with petition before such witnesses will be competent to testify before the tribunal or court.
— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023
A tainted witness has been classified as one who is either an accomplice or by the evidence he gives, whether as a witness for the prosecution or defence, may and could be regarded as having some purpose of his own to serve. See: Ishola v. The State (1978) NSCC 499 at 509.
— Iguh, JSC. Oguonzee v State (1998) – SC.131/97
Bello, JSC, in AJIDE v. KELANI (1985) 3 NWLR (pt.12) 248 at 200 – 261, (1985) 16 NSCC (pt.2) 1298 at 1309, stated the options thus – “He may cross-examine the witness on the writing and if he is satisfied with the answer given by the witness or if he does not intend to pursue the matter further, he is not required to show the writing to the witness or to prove the writing. But if the cross-examiner intends to contradict the witness by the writing, then he must show the writing to witness and call his attention to those part of the writing which are to be used for the purpose of contradicting the witness. It is only after this condition has been complied with that the writing can be admitted in evidence.”
It is trite law that where there is conflict in the opinions of experts, it is the duty of the court to come to a conclusion in the case by resolving such a conflict and can do so by rejecting the opinion of one or the other such experts. See John Wilberforce Bamiro v. S.C.O.A. (1941) 7 WACA 150; R v. Godo (1975), 61 Cr App R.131; Ozigbo v. Police (1976) 1 NMLR 273, Laws and Practice Relating to Evidence in Nigeria by Aguda at p.115 Article 9-05.
— Edozie, JCA. British American v. Ekeoma & Anor. (1994) – CA/E/60/88
The first point that needs be emphasised is that the presumption under section 149(d) of the Evidence Act will only apply against whom it is sought that it should operate where that party has infact withheld the particular piece of evidence in issue and if he did not call any evidence on the point. It only applies when the party does not call any evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435. The section deals with the failure to call evidence on the issue in controversy and not because he fails to call a particular witness. See: Bello v. Kassim (1969) NSCC 228 at 233; Okunzua v. Amosu (1992) 6 NWLR (Pt. 248) 416 at 435. The section deals with the failure to call evidence and not the failure to call a particular witness as a party is not bound to call a particular witness if he thinks he can prove his case otherwise. See: Francis Odili v. The State (1977) 4 SC 1 at 8; Alonge v. inspector-General of Police (1959) SCNLR 516; (1959) 4 FSC 203 etc. Mere failure to produce the evidence in issue would not necessarily amount to withholding such evidence. See: Ganiyu Tewogbade v. Arasi Akande (1968) (Pt. 2) NMLR 404 at 408. So, in Francis Odili v. The State supra, learned defence counsel’s submission was that only one of the two Rev. Sisters robbed with violence was called to identify and to testify against the appellant and that the second Rev. Sister and the two night guards who were present during the robbery should have been called as witnesses particularly as the appellant’s defence was that of alibi. This court as already pointed out dismissed this contention as misconceived as the prosecution was not required to call a host of witnesses to prove a particular issue.
— Iguh, JSC. Oguonzee v State (1998) – SC.131/97
This court has stated in a legion of cases that where the evidence of an accused person is the only witness of an event, any other evidence given by another person not being an eye witness to that particular event will be hearsay or speculative. I commend the decision of this court in Ahmed v. State (1999) 7 NWLR (Pt. 612) 641 at 675 Belgore, JSC while allowing the appeal stated as follows: “In a situation where only the evidence of the accused person as to the actual stabbing is the only eye-witness account, he is either believed or there is no other evidence to believe.” Also in Bassey v. State (2019) 18 NWLR (Pt. 1103) 160 at page 166, para. F, Abba Aji, JSC while allowing the appeal stated as follows: “the testimony of appellant appears to me very striking and believable since there was no eye witness to the crime except the story of the appellant herein. His evidence seems consistent and correlated.”
Enobong v. The State (2022) – SC/CR/249/2020
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