LEGAL PRINCIPLE: EVIDENCE LAW — Presumptions — Section 149(d) of Evidence Act — Withholding of Evidence Distinguished from Failure to Call Particular Witness
PRINCIPLE STATEMENT
Section 149(d) provides for evidence, not witness. The prosecution has the liberty to pick witnesses and not be foisted with any particular witness. As long as the burden of proof is discharged, it does not matter whether a particular witness was not called.
RATIO DECIDENDI (SOURCE)
Per Tobi, JSC, in Nigerian Air Force v. Obiosa (2003) NLC-3612001(SC) at pp. 37–38; Paras A–D.
"Section 149(d) clearly provides for evidence, not witness. The rationale behind the provision is to ensure that the prosecution has the liberty and right to pick witnesses and not be foisted with any particular witness. The legal duty of the prosecution is to prove the offence charged beyond reasonable doubt and as long as that burden is discharged, it does not matter whether a particular witness was not called to give evidence."
EXPLANATION / SCOPE
Section 149(d) refers to evidence, not witnesses. The prosecution may choose its witnesses. The principle applies to criminal trials. Adverse inference does not arise from failing to call a particular witness. The rule respects prosecutorial discretion. The principle is well-established.