EVIDENCE LAW — Witnesses — Vital Witness — Failure to Call — Effect
Ratio Decidendi
Per Rhodes-Vivour, JSC, in Ogudo v. State (2011) NLC-123-341-2010(SC) at pp. 11—12; Paras D—A:
"A vital witness is a witness whose evidence is fundamental, in that it determines the case one way or the other. Failure to call a vital witness by the prosecution is fatal to the prosecution's case. See State v. Nnolim 1994 5NWLR pt. 345 p. 394. Furthermore, failure to call vital witness raises the presumption under section 149 (d) of the Evidence Act that had he been called the evidence he would have led would have been unfavourable to the prosecution."
Explanation / Scope
This principle establishes that failure to call a vital witness whose evidence is fundamental is fatal to the prosecution’s case and raises the presumption under Section 149(d) that the evidence would have been unfavourable. The principle applies in criminal trials. It ensures that vital witnesses are called. The principle reflects the consequence of failure to call. It prevents prosecution from withholding evidence. The court must draw the presumption. The principle provides guidance on vital witnesses.