OKONJI V. NJOKANMA

• Pages: 462-478

462

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NIGERIAN SUPREME COURT CASES [1991] 2 N.S.C.C.

OKONJI V. NJOKANMA

1.

OBI NWANNE OKONJI

2.

1GBAJI NWAEKU

3.

NWOKOCHA NGALI

4.

NWANZE OBIDI

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APPELLANTS

5.

OBI NWOKOBIA

(For themselves and on

behalf of the Umuodogwu

family, Ibusa).

V.

1.

GEORGE NJOKANMA

2.

AMOLO ONWUGBENU

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RESPONDENTS

3.

ANTHONY OGBOGU

(For themselves and on

behalf of the Ogbeilo

family of Asaba).

APPEAL No. SC. 193/1988.

SUPREME COURT OF NIGERIA

UWAIS,



J.S.C.

WALT,



J.S.C.

0 LATAWU RA ,



J.S.C.

BABALAKIN,



J.S.C.

NWOKEDI,



J.S.C.

13th September, 1991.

Appeals -

Grounds of appeal - Leave to be obtained to file fttrther grounds - Right of

appellate to grant application.

Evidence

Admissibly of documents - S.198 Evidence Act - Inadmissible document - When

admitted in evidence to test veracity of witness - Weight attached thereon.

ISSUES:

1.

When may the question of weight to be attached on a document admitted in

evidence arise?

2.

Whether it is proper for an appellate court not to consider an issue raised before

it?

FACTS:

The appellants were the defendants in the case instituted by the present

respondents in the High Court of Bendel State, Asaba Judicial Division shortly after

the action was filed, the appellants filed a cross action. The two actions are in

respect of the same piece of land. The two cases were consolidated. The plaintiffs

claimed against the defendants a declaration of title to ownership and possession

to the piece and parcel of land known as Akuliose situate at Asaba, general

OKONJI V. NJOKANMA

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463

damages and perpetual injunction restraining the defendants from entering the

land. At the trial one of the documents admitted in evidence by the trial judge and

marked Exhibit D was purported to be a record of evidence of one of appellant's

witnesses in a previous suit. The document was alleged tendered to contradict the

5 said witness under S.198 of the Evidence Act. The appellants who were defendants

in the trial court objected to the admissibility of the said document. The learned

trial Judge however, overruled the objection and admitted it in evidence. In his

judgment he relied on the document and gave judgment for the plaintiffs. The

appellants appealed to the Court of Appeal, Benin Division. The Court of Appeal

10 dismissed the appeal. They appealed to the Supreme Court contending amongst

other things that the Court of Appeal erred in law when it did not consider at all a

ground of appeal properly before it.

HELD:

1. It is the law and practice where the issue of admissibility of a document is raised

to consider first whether the document is admissible in law. Once the document

is not admissible in law, the question of weight does not arise, but if it is

admissible then the court considers the weight to be attached to the document.

The issue of admissibility of a document is different from the weight to be

attached to it. (See

p.469 lines

45 - 50).

2. A Court of Appeal should not deal with issues not before it so also when a party

submits an issue to the court for determination the court must make a

pronouncement on that issue except where the issue is subsumed in another

issue. A point properly raised as an issue cannot be ignored or glossed over

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in an appellate court. (See

p.470 lines 4 - 8 & lines 40 - 41).

3. The omission of the Court of Appeal to make any pronouncement on the issues

properly raised before it must not prejudice the appeal in the Supreme Court.

(See p.470 lines 18 - 20).

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Appeal allowed.

EDITORIAL

[As to

Inadmissible evidence,

see

Owonyin v. Omotosho

(1961) A.N.L.R. 304;

(1961) 2 N.S.C.C. 179;

Alashe v. Ilu

(1964) 1 A.N.L.R. 390.] (1964) 3 N.S.C.C. 297.

35

CASES REFERRED TO IN THE JUDGMENT

1.

Alashe v. 1/u

(1964) 1 A.N.L.R. 390. (1964) 3 N.S.C.C. 297.

2.

Bello v. A.G. Oyo State

(1986) N.W.L.R. (part 45) 828 1983 N.S.C.C.

vol.14393.

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40 3.

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Dweya & Ors. v. lyomahan & Ors.

(1983) 8 SC. 77.

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4.



Ebba v. Ogodo & Anor.

(1984) N.S.C.C. (vol.15) 255.

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5.



Ebamawor v. Fadiyo

(1973) 1 A.N.L.R. 134.

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6.



Engineering Enterprise v. A.G. Kaduna State

(1987) 2 N.W.L.R. (part 57)

45

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381

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7.



Ezeoke & Ors. v. Nwagbo & Ors.

(1988) 1 N.S.C.C. 414; (1988) 1 N.W.L.R.

(part 71) 616.

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8.



Idundun V. Okumagba

(1976) 9-10 SC.227 vol.10 N.S.C.C. 445.

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50 9.



Jamgbadi v. Jamgbadi

(1963) N.S.C.C. 281.

10.

Kolawole v. Alberto

(1989) 1 N.'VV.L. R. (part 98) 382 SC

11.

Momodu v. Momoh

(1991) 1 N.W.L. R. (part 169) 608.

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