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DEMEANOR PLAYS LITTLE ROLE WHERE DOCUMENTARY EVIDENCE HAS BEEN ADMITTED

Dictum

The Supreme Court in Ohijinle vs. Adeagbo (1988) 2 NWLR (Pt. 75) 238 held that where documentary evidence have been admitted in evidence, demeanour plays an insignificant if any role. The documents tendered in the case should be used as a hanger with which to assess oral testimony.

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RELEVANCY GOVERNS ADMISSION OF EVIDENCE

When it is a question of admission of evidence, strictly, it is not whether the method by which it is obtained is tortious but excusable, but whether what has been obtained is relevant to the issue being tried. See Kuruma v. R. (1955) AC 197.

— Ogwuegbu JSC. Oshunrinde v Akande (1996) – SC.110/1990

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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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IN DETERMINING ADMISSIBILITY, IT IS RELEVANCY THAT MATTERS NOT CUSTODY

Admissibility is a rule of evidence and it is based on relevancy. See Sadau v. The State (1968) 1 All NLR 124: Ogonzee v. State (1997) 8 NWLR (Pt. 518) 566. In determining the admissibility of evidence, the court will not consider how it was obtained; rather the court will take into consideration whether what is admitted is relevant to the issues being tried. See Igbinovia v. The State (1981) 2 SC 5. In Elias v. Disu (1962) 1 SCNLR 361, (1962) 1 All NLR 214, this court held that in determining admissibility of evidence, “it is the relevancy of the evidence that is important and not how the evidence was obtained.”

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

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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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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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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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