CORAM

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NNAMANI JUSTICE, SUPREME COURT UWAIS JUSTICE, SUPREME COURT KARIBI-WHYTE JUSTICE, SUPREME COURT AGBA

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PARTIES

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1. FRANCIS SHANU2. NIGERWOLF ORGANISATION LIMITED APPELLANTS

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RESPONDENTS / CROSS APPELLANTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The trial judge admitted the evidence given before another judge in a matter starting de novo before him purportedly under section 34(1) of the Evidence Act in giving judgment in favour of the appellant.

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HELD

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The court dismissed the appellant’s appeal against the decision of the court of appeal ordering a retrial.

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ISSUES

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Whether the Court of Appeal ‘s decision on admissibility of exhibit 19 in its final judgment is sustainable.From the Cross-Appeal1. Whether the Court of Appeal failed to consider several of the complaints of the respondent relating to the evaluation of evidence and if so whether this occasioned a miscarriage of Justice’?2.  Whether the Court of Appeal was correct in refusing the respondent leave to raise the issue of admissibility of the previous evidence of the 1st appellant and the defence witnesses having regard to the material before the court and the submissions made to it’?3.  Whether the Court of Appeal was correct in rejecting the respondent’s application to amend the record of appeal?4.  Having expunged exhibit 19 (the record of the previous evidence of the witnesses that the trial court relied upon) whether the Court of Appeal was correct to order a retrial.?

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RATIONES DECIDENDI

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FUNCTUS OFFICIO – EXCEPTION TO

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The duty of the court to decide on legally admissible evidence is an exception to the rule that a court is functus officio on taking a decision on a matter and cannot reverse itself on it, and is considered, I think, a stronger element of justice than issue estoppel that might have precluded it from later rejecting inadmissible evidence- Uwaifo J.S.C

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CONDITIONS FOR ADMISSIBILITY OF EVIDENCE IN PREVIOUS PROCEEDINGS

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Evidence given in a previous proceeding is relevant and admissible under the above subsection in proof of the facts asserted in that evidence;
(a) if the witness is dead:
(b) cannot be found;
(c) is incapable of giving evidence;
(d) is kept out of the way by the other party; or
(e) when his presence cannot be obtained without amount of delay or expense which, in the circumstances of the case, the court considers unreasonable.
For the evidence of a witness in one judicial proceeding to be deemed relevant in a subsequent proceeding the evidence must have been given on oath and will not be applicable where is witness is alive and present in court – Uwaifo J.S.C.

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CASES CITED

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Asiyanbi v. Adeniji (1967) 1 All NLR 82 at p.86 Olurotimi v. Ige (1993) 8 NWLR (pt.311) 257Ajayi v. Fisher (1956) SCNLR 279Owonyin v. Omotosho (1961) 2 SCNLR 57 Okulade v. Alade (1976) 1 All NLR (pt.1) 67; Ayanwale v. Atanda (1988) 1 NWLR (pt.68) 22; Sadhwani v. Sadhwani Nig. Ltd (1989) 2 NWLR (pt. 101) 72;Agbaje v. Adigun (1993) 1 NWLR (pt. 269) 261.?

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STATUTES REFERRED TO

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The Evidence Act   ?

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