LEGAL PRINCIPLE: EVIDENCE LAW – Presumption – Withholding Evidence
PRINCIPLE STATEMENT
Under Section 148(d) of the Evidence Act, the court is entitled to presume that any evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
RATIO DECIDENDI (SOURCE)
Per Mohammed, JSC, in Jallco Limited v. Owoniboys Technical Services Limited (1995) NLC-2701988(SC) at p. 12; Paras B--C.
"Under S.148(d) of the Evidence Act, the court is entitled to presume that any evidence which could be and is not produced, would if produced, be unfavourable to the person who withholds it."
EXPLANATION / SCOPE
The presumption applies when a party fails to produce evidence within his control. The court may draw an adverse inference. The principle applies to both civil and criminal cases. The party may rebut the presumption by explaining why the evidence was not produced. The rule encourages parties to produce all relevant evidence. The presumption is not mandatory; the court has discretion. The principle promotes fairness and discourages concealment. The court will not apply the presumption if the evidence is equally available to both parties.