LEGAL PRINCIPLE: EVIDENCE LAW — Burden of Proof — Failure to Call Available Witnesses — Adverse Inference
PRINCIPLE STATEMENT
The defendant on whom the onus of proof of due execution lay called only one witness (DW2) out of five persons who witnessed the purported execution of Exhibit 'B'... Four other witnesses to the document are alive and why he did not call them, the court was not told.
RATIO DECIDENDI (SOURCE)
Per Ogwuegbu, JSC Itauma v. Akpe-Ime (2000) NLC-231995(SC) at p. 22; Paras. B–D.
"The defendant on whom the onus of proof of due execution lay called only one witness (DW2) out of five persons who witnessed the purported execution of Exhibit 'B'... Four other witnesses to the document are alive and why he did not call them, the court was not told."
EXPLANATION / SCOPE
Where a party bears the burden of proving a fact and fails to call available, material witnesses without explanation, the court may draw an adverse inference against that party. Here, the defendant had to prove due execution of a document but called only one of five living attesting witnesses. The unexplained failure to call the others suggests the uncalled witnesses would have given unfavorable testimony. This principle discourages selective presentation of evidence and reinforces that parties must present the best available evidence within their control.