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INHERENTLY INADMISSIBLE EVIDENCE CAN BE EXPUNGED AT ANYTIME

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Incontestably, if a party fails to register an objection to the admissibility of a document in the bowel of a trial Court, he is estopped from opposing its admission on appeal. This hallowed principle of procedural law is elastic. It admits of an exception. Where a document is inherently inadmissible, as in the instant case, the rule becomes lame. The law grants a trial Court the unbridled licence to expunge admitted inadmissible evidence at the judgment stage. An appellate Court enjoys the same right so far as the document is inherently inadmissible. The wisdom behind these is plain. A Court of law is drained of the jurisdiction to act on an inadmissible evidence in reaching a decision, see Alade v. Olukade (1976) 2 SC 183; IBWA v. Imano Ltd. (2001) 3 SCNJ 160; Durosaro v Ayorinde (2005) 8 NWLR (pt. 927) 407; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307; Abubakar v Chuks (2007) 18 NWLR (pt. 1066) 389; Phillips v. E.D.C. & Ind. Co. Ltd. (2013) 1 NWLR (pt. 1336) 618; Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117.

— O.F. Ogbuinya, JCA. Impact Solutions v. International Breweries (2018) – CA/AK/122/2016

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admissibility

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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ADMISSIBILITY OF A DOCUMENT IS ONE THING; WEIGHT IS ANOTHER THING

The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the Court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence.

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

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EXTRA JUDICIAL STATEMENT IS INADMISSIBLE EXCEPT TO CONTRADICT

The extra judicial statement of a witness in a criminal trial is inadmissible as evidence for either side. The admissible evidence is the evidence on oath in open Court by the witness which is subject to cross examination by the adverse party. The only time when an extra judicial statement of a witness is admissible is where a party seeks to use it to contradict the evidence of a witness already given on oath.

– Ogunwumiju JCA. Okeke v. State (2016)

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UNSIGNED DOCUMENTS NOT ADMISSIBLE

The Supreme Court in Omega Bank (Nig) Plc v. O.B.C. Ltd. [2005] 8 NWLR (Part 928) 547 at 587 Paragraphs C – D per Tobi, JSC (as he then was) the Apex Court held inter alia that: “… It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker….at page 582 Paragraph A, His Lordship, Tobi, JSC of blessed memory further emphasized that:” A document which is not signed does not have any efficacy in law. As held in the cases examined, the document is worthless and a worthless document cannot be efficacious…”

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A DOCUMENT MARKED REJECTED STAYS REJECTED FOR THE PURPOSE OF THE TRIAL

The well laid down procedure for omitting documents in evidence is for the trial judge to hear arguments for and against the admissibility of the document, then render a Ruling. If the ruling is favourable to the document being admitted in evidence the document is admitted in evidence and marked as an exhibit. If on the other hand the Ruling is unfavourable the document is marked rejected. A document marked as an exhibit is good evidence that the judge is expected to rely on when preparing his judgment. A document tendered and marked rejected cannot be tendered again. Once a document is marked rejected it stays rejected for the purposes of the trial in which it was marked rejected and the defect cannot be cured during the said trial. See Agbaje v. Adigun & Ors (1993) 1 NWLR Pt.269 p.271.

— O. Rhodes-Vivour, JSC. Wassah & Ors. v. Kara & Ors. (2014) – SC.309/2001

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

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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