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SETTLED PRINCIPLES WHICH GUIDE THE COURT WHETHER TO ADMIT FRESH EVIDENCE

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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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THE PEPT CONSIDERED EVIDENCE DESPITE DISCARDING THEM

We, however, wish to state that, despite our conclusions above on the objections raised by Respondents to documents tendered by the petitioners, I am still minded to the evaluate evidence adduced and consider the merits of the petition. The only evidence I shall not revisit are Exhibits PBD, PBD1A, PBD1B, PBD1C, PBD1D, PBD1A, PBD2A, PBD3, PBD4, PBE1, PBE2, PBE3, PBE4, PBE5, PBE6, PBF1, PBF2, PBF3 and PBF4 relating to 2nd Respondent’s alleged non-qualification that were tendered by P.W.27, Mr. Mike Enahoro-Ebah, the said documents in our view being bereft of pleadings to sustain them as elaborately stated earlier in this judgment.

— H.S. Tsammani, JCA. Atiku v PDP (CA/PEPC/05/2023, 6th of September, 2023)

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APPEAL COURT: WHERE FURTHER EVIDENCE WILL BE NECESSARY

A situation where further evidence will be necessary arises only when the evidence relevant to the issue in controversy to determine an issue and ensure substantial justice is absent and deplete from the proceedings. This court or the court below does not ordinarily go out of its way to fish for evidence to fill a vacuum that does not exist in a case, just to satisfy a party, when in fact all the pleadings and evidence, that are necessary material are already part of the record of proceedings before it.

– Mukhtar JSC. Goodwill v. Witt (2011) – SC. 266/2005

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ONLY DOCUMENTARY EVIDENCE CAN CONTRADICT DOCUMENTARY EVIDENCE

However the conflict is not strong to hold his evidence is of no value when the documentary evidence speaks for itself. It is trite the best evidence to challenge documentary evidence is same Documentary evidence. – Nwodo, JCA. OLAM v. Intercontinental Bank (2009)

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EXTRINSIC EVIDENCE NOT ALLOWED TO VARY WRITTEN CONTRACT

The Supreme Court has held in Layade v. Panalpina (1996) 6 NWLR (Pt. 456) 544 at 558; (1996) 7 SCNJ 1 at 14-15 per Adio. J.S.C., as follows and I quote; ”The general rule is that where 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 … So, where the parties enter into a contract, they are bound by the terms of that contract and it is unfair to read into such a contract the terms on which there was no agreement.”

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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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DOCUMENTS ATTACHED TO A CHARGE NOT TENDERED AND ADMITTED ARE NOT EVIDENCE

Eze v. State (2026): ‘From the above excerpts, if the alleged Police Report were tendered in evidence it would not have been unfavourable to the prosecution. Therefore, section 167(d) of the Evidence Act, 2011 is inapplicable to this case. I must quickly point out that documents or statements accompanying a charge or an information filed in court, if not tendered and admitted in evidence at the trial, does not constitute evidence which the court can rely on.’

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