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SILENCE COULD AMOUNT TO ACCEPTANCE

Dictum

It is a settled principle of law that where an adversary or a witness called by him testifies on a material fact in controversy in a case, the other party should, if he does not accept the witness’s testimony as true, cross-examine him on that fact, or at least show that the he does not accept the evidence as true, where, as in this case, he fails to do either, a court can take his silence as an acceptance that the party does not dispute the facts.

– Nnaemeka-Agu JSC. Amadi v. Nwosu (1992)

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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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THE COURTS LEAN AGAINST CALLING FRESH EVIDENCE ON APPEAL

Before concluding on the said prayer 7 it is helpful to call to mind the observations of Oputa JSC in Obasi v. Onwuka (1987) 3 NWLR (Pt. 61 ) 364, 372 in an application to call additional evidence on appeal: “To talk therefore of assessing the rightness or wrongness of the trial court’s verdict today by evidence that will be given tomorrow is to talk in blank prose. This is the reason why appellate courts are very reluctant to admit “fresh evidence”, “new evidence” or “additional evidence” on appeal except in circumstances where the matter arose ex improviso which no human ingenuity could foresee and it is in the interest of justice that evidence of that fact be led:- R v. Dora Harris (1927) 28 Cox 432. But by and large, at least in criminal cases (and the principle should also be the same in civil cases), the courts lean against hearing fresh evidence on appeal.”

— Oguntade, JSC. UBA v BTL (SC. 301/2003, 15 April 2005)

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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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EVIDENCE GIVEN IN ANOTHER CASE, HOW MAY BE USED IN PRESENT CASE

Evidence given by a witness in another case may be used to impeach his credit if, in the later case, he says something different; but what he said in the earlier case does not become evidence in the later case. And a judgment given in another case can, in appropriate cases, be put in a later suit, to prevent the re-opening of the same question. One hopes that the indiscriminate introduction of other proceedings into a trial will be discontinued.

— Bairamian, F.J. Owonyin v. Omotosho (1961) – F.S.C.249/1960

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A PIECE OF EVIDENCE IS SAID TO BE CONTRADICTORY WHEN IT ASSERTS THE OPPOSITE OF ANOTHER PIECE

Now, a piece of evidence is said to be contradictory to another piece of evidence, when it asserts or affirms the opposite of what the other piece of evidence asserts. It is settled that if the contradiction in the evidence adduced by the Prosecution goes to the root of the case, as to raise doubt in the mind of a Court, the Court should not convict. In other words, if there is contradiction in evidence as to material fact, which raises doubt, the benefit of doubt must be given to the Accused. However, where the contradictions are not as to material facts, such contradictions should not disturb the finding of guilt, if sufficient evidence has been led on material facts to the Charge see Ochemaje V. State (2008)15 NWLR (Pt. 1109) 57SC, wherein Tobi, JSC, explained: Contradictions definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not necessarily mean that the event that they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions, which are not material or substantial will go to no issue.

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

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EVERY RELEVANT EVIDENCE IS ADMISSIBLE

Once a piece of evidence is relevant, it is admissible in evidence irrespective of how it was obtained.

– M.L. Garba JCA. Odogwu v. Vivian (2009) – CA/PH/345/05

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