LEGAL PRINCIPLE: EVIDENCE LAW — Presumptions — Section 149(d) Evidence Act Concerns Withholding Evidence Not Failure to Call Witness
PRINCIPLE STATEMENT
It is quite settled that section 149(d) of the Evidence Act is concerned with the withholding of evidence and not with the failure of a party to call a particular witness.
RATIO DECIDENDI (SOURCE)
Per Edozie, JSC, in Ezemba v. Ibeneme & Anor (2004) NLC-1422000(SC) at p. 12; Paras A–B.
"It is quite settled that that provision is concerned with the withholding of evidence and not with the failure of a party to call a particular witness."
EXPLANATION / SCOPE
Section 149(d) of the Evidence Act applies to withholding evidence, not failure to call a particular witness. The presumption arises when a party fails to produce evidence within its control. The principle applies to evidence law. The rule prevents misuse of the section against parties who merely choose not to call certain witnesses. The court cannot draw an adverse inference under section 149(d) solely from failure to call a witness. Actual withholding of existing evidence is required.
