Documents

• Pages: 765-808

DOCUMENTS

(1) ADMISSIBILITY OF DOCUMENTS

1701. Admissibility of documents on fulfillment of conditions.

“On my part I hold the firm view that where a document is rendered admissible on

the fulfillment of certain conditions, it is admissible on the fulfillment of these condi-

tions or if admitted without objection by the other party. See: A.A Chanchangi &

Son Ltd v. N.R.C Ltd. (1996) 5 N.W.L.R. (Pt. 446) 46; Okeke v. Obidfe (1965)

N.M.L.R. 133; Alade v. Olukade (1976) 2 S.C 183.” - Per Muhammed J.C.A in

Oneh v. Obi Suit No. CA/E/202/96; (1999) 7 N.W.L.R (Pt. 611) 487 at 499.

1702. Admissibility of documents.

“That unless a document is shown to be relevant, it will be inadmissible in law. In this

case, none of the documents tendered and rejected by the Court has been shown to

be relevant to the facts in issue in this case and I am satisfied that their rejection has

not occasioned any miscarriage of justice.” - Per Akanbi, J.C.A. in Thirwell v.

Oyewunmi Suit No. CA/I/56/86; (1990) 4 N.W.L.R. (Pt. 142) 384 at 403.

1703. Can document earlier marked “rejected” be tendered again in the

same proceedings.

(1) “Once a document is rejected and marked so, it remains rejected and the only

course open to the counsel is to appeal against the decision of the Court. The learned

trial Judge has rightly rejected the appellant’s application for an amendment as the

application is noting but an abuse of process.” - Per Opene, J.C.A. in Ita v.

Ekpenyong Suit No. CA/E/183/98; (2001) 1 N.W.L.R. (Pt. 695) 587 at 622.

(2) “The purchase agreement having been rejected and marked “rejected” by the

Court below, the application for leave to amend the statement of defence whereby

the purchase agreement was then pleaded for the sole purpose of reintroducing it at

the trial for admission in evidence seems to me to constitute an abuse of process of

the Court. It has been decided by this Court that a document which is marked re-

jected when tendered in evidence cannot subsequently be tendered and admitted in

evidence as an exhibit in the case. It cannot be made use of as it has no value. See:

Oyetunji v. Akanni (1986) 5 N.W.L.R. (Pt. 42) 461 at page 470; Agbaje v. Adigun

(1993) 1 N.W.L.R. (Pt. 269) 261 at page 272.” - Per Ekpe, J.C.A. in Ita v. Ekpenyong

Suit No. CA/E/183/98; (2001) 1 N.W.L.R (Pt. 695) 587 at 617.

1704. Condition precedent to admission of copy of document in possession

of the adversary.

“In the ruling at page 40 of the record of the trial Court, the learned trial Judge found

that the document sought to be tendered by the appellant was not the original docu-

ment but a copy of it and no notice to produce the original was given as required by

Section 98 of the Evidence Act. Accordingly, the learned trial Judge refused to admit

765

Admissibility of documents Paras. 1701-1704

the document in evidence and rejected the same. The action of the learned trial

Judge in this respect was perfectly justified in law having regard to the provisions of

Sections 97 & 98 of the Evidence Act Cap. 112. Laws of the Federation 1990. The

fact that the document sought to be admitted in evidence by the appellant is not the

original but a copy is not in dispute. It is also not in dispute that the appellant did not

give the required notice to the 3rd respondent to produce the original as required by

Section 98 of the Evidence Act and therefore no proper foundation was laid for the

admission of secondary evidence of the document sought to be tendered. Therefore,

the document not having satisfied the various conditions laid down by Sections 97 &

98 of the Evidence Act for its admission, the learned trial Judge acted correctly in his

ruling on the objection raised by the respondents to the admission of the document in

rejecting the document. See decisions of this Court in Daily Times v. Williams (1986)

4 N.W.L.R. (Pt. 36) 526 and Habib (Nig.) Bank Ltd. v. Koyal (1992) 7 N.W.L.R.

(Pt. 251) 43 at 56. The rejection of the document being in accordance with the law

could not have therefore caused any miscarriage of justice to the appellant. ” – Per

Mohammed, J.S.C. in Jimba v. A.P. (Nig.) Ltd. Suit No. CA/K/161/96; (1998) 13

N.W.L.R. (Pt. 581) 273 at 285.

1705. Conditions precedent to admissibility of secondary evidence of a docu-

ment.

“Exhibit A is a copy of the contract agreement and was admitted in the teeth of

robust resistance to its admissibility. The only plaintiff’s witness testified that the

original of the document was given to the appellant, the defendant in the Court below

and in the absence of any evidence to the contrary it is established that the appellant

received the document. In other words it was in the proper custody of the appellant.

To satisfy the provisions of Section 97(1)(a)(i) of the Evidence Act (supra) not only

must it be shown that the documents being sought to be tendered is in the custody of

the adverse party, it must further be established that the adverse party failed to pro-

duce the same after receiving the notice intended in Section 98 of the Evidence Act.

The respondent failed to adduce evidence to show that the notice prescribed by

Section 98 of the Evidence Act (supra) was ever served on the appellant or his

counsel and the latter failed to produce the said document. In the absence of such

evidence it cannot be held that Section 97(1) (a) (i) of the Evidence Act (supra) had

been complied with.” - Per Salami, J.C.A. in Olaogun Ent. Ltd. v. S.Y. & M Suit

No. CA/I/157/89; (1992) 4 N.W.L.R. (Pt. 235) 361 at 383.

1706. Effect where party fails to complain against document admitted with-

out his objection.

“On the admissibility of Exhibits ‘A’ - ‘C’, I agree with the respondents’ submissions

that where a party fails to object as to the admissibility of a document or documents

during the trial, an appellate Court will not entertain any complaint based on their

admissibility – see Etim v. Ekpe (1983) 1 S.C.N.L.R. 120; Akunne v. Ekwuno (1952)

14 W.A.C.A. 59; Sadhwani v. Sadhwani (Nig.) Ltd. (1989) 2 N.W.L.R. (Pt. 101)

72; and Ikenna v. Bosah (1997) 3 N.W.L.R. (Pt. 494) 439.” - Per Adamu, J.C.A. in

Olanloye v. Fatunbi & Ors. Suit No. CA/I/53/90; (1999) 8 N.W.L.R. (Pt. 614) 203

at 229.

Paras. 1704-1706 VOL. 8 DOCUMENTS 766

1707. Objection to documents.

(1) “In Nwosu v. Imo State Environmental Authority supra which is referred to the

learned trial Chief Judge, Agbaje J.S.C. at pages 131-132 observed:- “There is of

course the decision in Adejumo v. Governor of Lagos State (1970) 1 All N.L.R.

183 to the effect that documents in an affidavit must not be objected to until the

substantive action comes up for hearing.” In Adejumo v. Governor (1970) 1 All

N.L.R. 183 Ademola C.J.N. has this to say:- “But whether or not counsel’s address

is evidence the question remains, at what stage should counsel object to the docu-

ment being made use of in the case? Is it proper to object to a paragraph of an

affidavit, or a document exhibited on an affidavit before the substantive action is

heard or before it is known to what use document would be put? We think not. In our

view objection should be taken when all the facts are put before the Court and not at

the preliminary.” The law has been settled and these decisions show that a document

should not be objected to before the substantive action is heard but when all the facts

are put before the Court and not at the preliminary stage.” - Per Opene, J.C.A. in

Adebayo v. F.C.D.A. Suit No. CA/A/36/96; (1998) 6 N.W.L.R. (Pt. 552) 118 at 130.

(2) “The objection as to the admissibility of the exhibits was raised in this matter after

the use in which the documents would be put into was known in this case, that is, to

oust the jurisdiction of the Court. The objection was not raised by way of preliminary

objection but during the reply of the appellant’s counsel on point of law to the address

of respondent. If the objection cannot be raised and entertained at that stage that the

trial Court was taking arguments to dispose of the substantive matter, I wonder when

it will ever be raised. I am of the view that the objection was raised when all the facts

were put before the trial Court and not at the preliminary stage and that Court was

duty bound to entertain the objection and then rule on it, this trial Court had failed to

do and this no doubt has occasioned a miscarriage of justice.” - Per Opene, J.C.A. in

Adebayo v. F.C.D.A. Suit No. CA/A/36/96; (1998) 6 N.W.L.R. (Pt. 552) 118 at 130

- 131.

(2) ADMISSIBILITY AND WEIGHT TO BE ATTACHED

1708. Distinction between admissibility of document and weight.

(1) “The admissibility of documentary evidence is one thing but the weight to be

attached to that document is a different matter. A document may be admissible in

evidence under the provisions of the Evidence Act, the weight to be attached to its

contents is another matter, for every piece of evidence that has been admitted in the

course of proceedings is subject to be tested for credibility, weight or cogency by the

trial Court before it becomes acceptable. Vide A-G. Oyo State v. Fiarlakes Hotels

Ltd. (1989) 5 N.W.L.R. (Pt. 121) 255; Ayeni v. Dada (1978) 3 S.C. 35 at 61.” – Per

Edozie, J.C.A. in Pever v. Adaa Suit No. CA/J/118/96; (1998) 3 N.W.L.R. (Pt. 540)

129 at 140.

(2) “The simple and crucial question that arises for determination in this appeal is

whether the respondent’s Certificate of Occupancy No. 1883 Exhibit ‘A’ is of such a

probative value as to establish that the land in dispute was granted to him by the

767 Admissibility of documents Paras. 1707,1708