FRESH EVIDENCE

• Date: 06 February 2019

(1) "A definition of the expression is given by Morris, L.J. in R. v. Medical Appeal Tribunal (North Midland Region), Ex parte Hubble (1959) 3 All E.R. 40-47 thus: - "Fresh evidence" it seems to me, must have the quality of newness, or the feature of having become newly available and obtainable." The learned Justice cited, with approval, the dictum of Sir. Francis Jeune, P. in Johnson (1900) Pp. 19-20 to the effect: - "The question raised in this case is of general interest but to my mind, absolutely free from doubt. The Summary Jurisdiction (Married Women) Act, 1895, S.7, provides that a Court of summary jurisdiction, acting as therein specified, may upon fresh evidence, alter, vary, or discharge an order previously made. But it is necessary that magistrates should clearly understand what ‘fresh evidence’ means, though, in my view, there is no real doubt about it. It means practically the same sort of evidence as that upon which a new trial would, in the ordinary course, be granted; it must relate to something which has happened since the former hearing or trial, or it must be evidence which has come to the knowledge of the party applying since that hearing or trial, and which could not by reasonable means have come to his knowledge before that time. It must amount to what was called in the old forms of pleading res noviter ad notitiam perventa. It is altogether a mistake to suppose that ‘fresh evidence,’ within the meaning of the Act of 1895, means or includes evidence which could have been called, but which was not in fact adduced, at the first hearing. It would be monstrous to suppose that a party could abstain from calling evidence, and could thereafter proceed to make application upon application, based on evidence, which might have been tendered in the first instance. I have no hesitation in saying that to the words ‘fresh evidence’ in S. 7 must be assigned the limited meaning and scope which I have indicated." - Per Ogundare, J.S.C. in Anatogu v. Iweka II Suit No. S.C. 192/1991; (1995) 8 N.W.L.R. (Pt. 415) 547 at 587.

(2) "What is fresh evidence? I think this is evidence that was not available previously which is designed to be a reply to the evidence given by the other side on points material to the determination of the issues or any of them. It could not, in my view, be evidence which ought to have been led to establish the facts pleaded and meet the issues raised on the pleadings. If it were otherwise, the purpose of pleading...