Absence of counsel
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(8) ABSENCE OF COUNSEL
80. Absence of party to argue his appeal where briefs have been filed.
“The respondents (one of whom, the 2nd, had died and was by Order of Court on 21/
10/91 substituted by one Oke Ajawuike) for their part, submitted the following three
issues as arising for determination in their joint brief of argument dated 11th day of
November, 1991 and filed on 14th November, 1991 and deemed filed. (a) On a calm
appraisal of the pleadings and evidence tendered by the plaintiff/appellant at the trial
Court can it be said that the appellant discharged the burden of proof placed on him
by the law as to shift the onus on the defence? (b) Having regard to the pleadings
and evidence led at the trial Court can it be said that the trial Judge was wrong in
holding that the decision of the “Amala” which found that the plaintiff is not entitled
to redeem the land in dispute from the defendants is binding on the plaintiff and
creates estoppel? (c) whether from the state of pleadings and evidence adduced at
the trial the plaintiff/appellant established his case on the balance of probabilities as
to entitle him to judgment of the lower Court? On the 25th February, 1992 when the
appeal finally came up for hearing, learned counsel for the appellant being absent
and the briefs of argument on either side having hitherto been filed, this Court applied
the provisions of Order 6 rule 9(c) of the Court of Appeal Rules 1981 as amended, to
regard the appellant’s appeal as argued. For his part, learned counsel for the
respondents adopted the respondents’ brief of argument dated 11th November, 1991
and filed on the 14th November 1991. He urged us to dismiss the appeal. For the
purpose of my consideration of this appeal, I adopt the appellant’s issues for
determination.” - Per Onu, J.C.A., in Akuchie v. Nwamadi Suit No. S.C. 92/1993;
(1992) 8 N.W.L.R. (Pt. 258) 214 at 222.
(9) ADMISSIBILITY OF DOCUMENTS
81. Appellate Court’s attitude to objection against admissibility of evidence
not objected to in lower Court.
“Thus, in Gilberty v. Endeen (1878) 9 Ch. D 259 Cotton L.J. observed as follows at
P.269: - “But I must add this: where in a Court below the evidence not being strictly
admissible, not being that on which the Court can properly act, if the person against
whom it is read does not object, but treats it as admissible, then before the Court of
Appeal, in my judgment, he is not at liberty to complain of the order on the ground
that the evidence was not admissible.” See also Alade v. Olukade (1976) 2 S.C.
N.W.L.R. (Pt. 494) 439 at 453.
82. Appellate Court’s attitude to wrongful exclusion of evidence by trial
Court.
“Sofola Esq. S.A.N alluded to S. 226 (2) of Evidence Act that the wrongful admission
of evidence should not per se lead to reversal of Court’s decision unless certain
conditions are met. That provision is very clear in its purport as it states: - 226 (2) “
Paras. 80-82
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