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ESTIMATE OF REPAIRS DOES NOT SUFFER FROM INADMISSIBILITY (DUE TO BEING AN INTERESTED PERSON)

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This Court has held that estimate of repairs though made during the pendency of the suit does not suffer from the disability of S.91(3) of the Evidence Act because the maker of the estimate was not an interested party in the suit. An interested party contemplated in the exclusion of evidence or disqualification therefore is a person who is interested in the outcome of the litigation. See IGBINOVIA v. AGBOIFO (2002) FWLR (Pt. 103) 505 at 517, OWENA BANK PLC, v. CHIEF OLATUNJI and ORS. (2002) FWLR (Pt. 124) 529 at 591. The overriding raison d’etre of the legislation in my humble view is that the Courts would not allow a person interested to cook up a statement during the pendency of a suit or its anticipation in order to defeat the course of justice. In UGWU v. ARARUME (2007) 6 SCNJ Pg.316 at 354 – 355, the Supreme Court held that even though PDP was not a party in the proceedings at the material time, the document made by PDP was inadmissible under S.91 (3) because they were interested in the outcome of the litigation between UGWU v. ARARUME.

— M. Ogunwumiju JCA. Arab Contractors (O.A.O.) Nigeria Ltd. V. Gillian Umanah (CA/L/445M/09, 26 April 2012)

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admissibility

ADMISSIBILITY OF EVIDENCE GIVEN IN PREVIOUS JUDICIAL PROCEEDING

The intent and purpose of Section 34 of the Evidence Act is clear. Simply put, it pertains to the admissibility in the present proceeding, of evidence given by a witness in a previous proceeding. Such previous evidence though hearsay, is admissible in the present proceeding under Section 34, which provide an exception to hearsay rule once the requisite conditions are fulfilled. See IKENYE VS OFUNE (1985) 2 NWLR (PT 5) 1. For the purpose of clarity, I herein below reproduce the provisions of Section 34 (1) of the Evidence Act:- 34(1) “Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence or is kept out of the way by the adverse Party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable: Provided:- (a) that the proceeding was between the same parties or their representatives in interest; (b) that the adverse party in the first proceeding had the right and opportunity to cross examine; and (c) that the questions in issue were substantially the same in the first as in the second proceeding.” I do not need to say much again. The above provision is very clear and succinct to the effect that it relates to the admissibility of evidence given in a previous judicial proceeding in a subsequent judicial proceeding or in a later stage of the same proceeding.

— S.C. Oseji, JCA. ACB v Ajugwo (2011) – CA/E/66/2006

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ADMISSIBILITY VERSUS FROM PROBATIVE VALUE

There is a clear dichotomy between admissibility of document and placing probative value on it. While admissibility is based on relevance, probative value depends not only on relevance but on proof. An evidence has probative value if it tends to prove an issue.

— Niki Tobi, JSC. Buhari v. INEC (2008) – SC 51/2008

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A DOCUMENT WHICH IS CONSISTENT WITH THE PLEADINGS IS ADMISSIBLE

A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. The converse position is also the law, and it is that a document which is irrelevant to the facts in issue is not admissible. Documents which are tendered to establish facts pleaded cannot be rejected on the ground of irrelevancy in so far as they confirm the facts pleaded. See Oyetunji v. Akaniji (1986) 5 NWLR (Pt. 42) 461. In other words, a document which is consistent with the pleadings is admissible, if the document is admissible in law. —

N. Tobi JSC. Musa Abubakar v. E.I. Chuks (SC.184/2003, 14 DEC 2007)

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THREE MAIN CRITERIA FOR ADMISSIBILITY OF A DOCUMENT

A good starting point is to state the three main criteria that govern the admissibility of a document in evidence, namely:- (1) Is the document pleaded? (2) Is it relevant to the inquiry being tried by the court? and (3) Is it admissible in law? See Okonji v. Njokanma (1999) 11 – 12 SCNJ 259 @ 273 where Achike JSC stated thus: “The position of the law in relation to the question of admissibility of a document in evidence is that admissibility is one thing while the probative value that may be placed thereon is another. Generally, three main criteria govern the admissibility of a document in evidence, namely: (1) is the document pleaded? (2) is it relevant to the inquiry being tried by the court? and (3) is it admissible in law?”

— A. Jauro, JCA. Chevron v. Aderibigbe (2011) – CA/L/76/04

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DOCUMENTS MADE WHILE ELECTION IS PENDING – SECTION 83(3) EA; ALSO EXCEPTION

In resolving this issue, it is necessary to have recourse to section 83(3) of the Evidence Act, 2011, provides thus: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish” The import of this section, is that before a document could be rejected as inadmissible, it must not only be made when litigation was pending or anticipated, but the person making it must be interested. It is not in dispute, from the dictates of the letters and their annexure updated membership lists, that exhibits P163 and P163(a) were made and dated the 28 th day of April, 2023 and June 9, 2023 and were submitted and received by the 1 st Respondent on the 3 rd day of May, 2023 and 6 th of July 2023 respectively. Both Exhibits P163(b) and 2R20(x), (which as said by this tribunal are the same, as one is an extract of the other), are not dated nor signed. The position of the law generally speaking, in relation to documents prepared in anticipation of impending litigation, is that such documents are not admissible in evidence, although there are exceptions to this general rule. See the cases of ANISU VS OSAYOMI (2008) 15 NWLR (PT. 110) PAGE 246 AT 275, ABDULLAHI VS HASHIDU (1999) 4 NWLR (PT. 600) 638 AT 645, ANYANWU VS UZOWUAKA (2009) 13 NWLR (PT. 1159) 445 AT 476. The exception to this general rule, excludes documents made in anticipation of litigation, by a person who is not personally interested in the outcome of the litigation. The operative words, as far as the exceptions are concerned, are “persons not personally interested in the outcome of the litigation”. In other words, it relates only to a situation, where such a person relying on such documents, has no personal interest in the matter, as against mere interest in an official capacity. In the instant case, the exceptions do not apply here. This is because the maker of exhibit P163, P163(a) and exhibit 2R20X is the 3rd Respondent, who is a party in this Election petition and clearly has exhibited her interest in the ultimate result of the proceedings for the simple reason that the temptation to protect her interest is clearly overwhelming. See the following cases: ALIYU VS ADEWUYI (1996) 4 NWLR (PT. 442) 284, GBADAMOSI VS KANO TRAVELS LTD (2000) 8 NWLR (PT. 608) 243, GAMJI NIG. COMP. LTD VS NIG. AGIP OIL. COMP. LTD (2018) LPELR- 49215 (CA).

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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RETRACTED CONFESSIONAL STATEMENT IS STILL ADMISSIBLE

In ASIMI V. STATE (2016) LPELR – 40436 (SC), this Court per Rhodes Vivour JSC at Pp 14-15, para E-C stated succinctly thus: 22 “Once, an extra-judicial confession has been proved as in this case to have been made voluntarily and it is positive and unequivocal, amounting to an admission of guilt (such as the appellant’s confessional statement, Exhibit P6) a Court can convict on it even if the appellant retracted or resiled from it at trial. Such an afterthought does not make the confession inadmissible. It is desirable but not mandatory that there is general corroboration of the important incidents and not that retracted confession should be corroborated in each material particular.”

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