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IT IS THE EVIDENCE ACT THAT DETERMINES ADMISSIBILITY

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It has to be pointed out here that what determines admissibility or otherwise of a particular piece of evidence or document is the Evidence Act and not the common law. See also R. v. Agwuna (1949) 12 WACA 456 at 458. — S. Galadima, JCA. Jadesimi & Anor. v. Egbe (2003)

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admissibility

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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RELEVANCY, ADMISSIBILITY, AND WEIGHT ARE IN SEPARATE DEPARTMENT IN THE LAW OF EVIDENCE

In the Law of Evidence, Relevancy, Admissibility of evidence, and weight to be attached to evidence, all these are each in a separate department. What value or weight to be attached to a piece of evidence, once it is admitted as evidence, is for the Jury, the judges of facts. And here in Nigeria, the trial judges sit in a dual capacity, qua Judges of law in matters of law and qua jury in matters of fact In my view, with due respect to the counsel, his criticism of the Tribunal is unwarrantable and so unjustified. It was for the Tribunal to accept or not to accept the evidence by the p.w.5. It was for it as well to ascribe weight or no weight to the exhibits. To be in the best position to reach a conclusion on the testimony of the p.w. 5 and the value to attach to the exhibits it adopted, in my view, the proper and right approach to reach its conclusion.

— Nsofor, JCA. Ugo v Indiamaowei (1999) – CA/PH/EP/97/99

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A DOCUMENT WHICH IS CONSISTENT WITH THE PLEADINGS IS ADMISSIBLE

A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. The converse position is also the law, and it is that a document which is irrelevant to the facts in issue is not admissible. Documents which are tendered to establish facts pleaded cannot be rejected on the ground of irrelevancy in so far as they confirm the facts pleaded. See Oyetunji v. Akaniji (1986) 5 NWLR (Pt. 42) 461. In other words, a document which is consistent with the pleadings is admissible, if the document is admissible in law. —

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

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REPORTS BY INTERESTED PERSONS ARE INADMISSIBLE

It is therefore evident from the above that PW4, PW7 and PW8 are persons interested in the outcome of this proceedings. The reports produced by PW4 and PW8 qualify as statements made by persons interested in anticipation or during the pendency of this Petition. As for PW7 she is admittedly an interested party having been a member of and even contested election under the umbrella of the 2nd Petitioner. Her interest is further underscored by the fact that she admitted under cross examination that she was attending court throughout the proceedings prior to her evidence. By virtue of Section 83(3) of the Evidence Act, 2011, the reports tendered by those witnesses which form part of their evidence are inadmissible.

— H.S. Tsammani, JCA. Peter Obi & Anor. v INEC & Ors. (2023) – CA/PEPC/03/2023

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DOCUMENTS MADE WHILE ELECTION IS PENDING – SECTION 83(3) EA; ALSO EXCEPTION

In resolving this issue, it is necessary to have recourse to section 83(3) of the Evidence Act, 2011, provides thus: “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish” The import of this section, is that before a document could be rejected as inadmissible, it must not only be made when litigation was pending or anticipated, but the person making it must be interested. It is not in dispute, from the dictates of the letters and their annexure updated membership lists, that exhibits P163 and P163(a) were made and dated the 28 th day of April, 2023 and June 9, 2023 and were submitted and received by the 1 st Respondent on the 3 rd day of May, 2023 and 6 th of July 2023 respectively. Both Exhibits P163(b) and 2R20(x), (which as said by this tribunal are the same, as one is an extract of the other), are not dated nor signed. The position of the law generally speaking, in relation to documents prepared in anticipation of impending litigation, is that such documents are not admissible in evidence, although there are exceptions to this general rule. See the cases of ANISU VS OSAYOMI (2008) 15 NWLR (PT. 110) PAGE 246 AT 275, ABDULLAHI VS HASHIDU (1999) 4 NWLR (PT. 600) 638 AT 645, ANYANWU VS UZOWUAKA (2009) 13 NWLR (PT. 1159) 445 AT 476. The exception to this general rule, excludes documents made in anticipation of litigation, by a person who is not personally interested in the outcome of the litigation. The operative words, as far as the exceptions are concerned, are “persons not personally interested in the outcome of the litigation”. In other words, it relates only to a situation, where such a person relying on such documents, has no personal interest in the matter, as against mere interest in an official capacity. In the instant case, the exceptions do not apply here. This is because the maker of exhibit P163, P163(a) and exhibit 2R20X is the 3rd Respondent, who is a party in this Election petition and clearly has exhibited her interest in the ultimate result of the proceedings for the simple reason that the temptation to protect her interest is clearly overwhelming. See the following cases: ALIYU VS ADEWUYI (1996) 4 NWLR (PT. 442) 284, GBADAMOSI VS KANO TRAVELS LTD (2000) 8 NWLR (PT. 608) 243, GAMJI NIG. COMP. LTD VS NIG. AGIP OIL. COMP. LTD (2018) LPELR- 49215 (CA).

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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REQUIREMENT FOR ADMISSIBILITY

It is trite, that the basic principle on admissibility in law, is whether the documents are duly pleaded; whether they are relevant to the facts in issue and whether they are admissible in Law? See the cases of AONDO AKAA V OBOT 7 OR 2021 SC; TORTI V UKPABI 1984 1 SC PG 370 and DIKIBO & ORS V IZIME 2019 LPELR – 48992-CA. There is no gainsaying the fact, that the certified true copies admitted by the court met the criteria on admissibility, as relevancy governs admissibility and the said documents were pleaded. See the cases of NAB LTD VS SHUAIBU (1991) 4 NWLR (PT. 186) 450, OKECHUKWU VS INEC (2014) 17 NWLR (PT. 1436) 256 AT 294-295.

— A. Osadebay, J. APC v INEC & Ors. (EPT/KN/GOV/01/2023, 20th Day of September, 2023)

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