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RELEVANCY GOVERNS ADMISSIBILITY

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In civil proceedings every fact which is pleaded and is relevant to the case of either of the parties ought to be admitted in evidence. The denial of making the document by the respondent ought to affect weight not admissibility. In the instant case, the trial court considered the weight to be attached to the document instead of its relevance which ought to have been considered at that stage of the proceedings when the document was tendered. See Ogunbiade v. Sasegbon (1968) NMLR 233. Thanni v. Saibu (1977) 2 SC 89 @ 116. Monier Construction co. Ltd v. Azubuike (1990) 3 NWLR (Pt. 136) 74. Fadlallah v. Arewa Textiles Ltd (supra).

— A. Jauro, JCA. Chevron v. Aderibigbe (2011) – CA/L/76/04

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admissibility

IT IS THE EVIDENCE ACT THAT DETERMINES ADMISSIBILITY

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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DEMEANOR PLAYS LITTLE ROLE WHERE DOCUMENTARY EVIDENCE HAS BEEN ADMITTED

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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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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ADMISSIBILITY OF A CONFESSIONAL STATEMENT

Olalekan v. State (2001) LPELR-2561(SC) 4, 50-51, F-A, where Onu, J.S.C. held as follows: “This Court has held times without number that the statement of an accused is not inadmissible merely because it is taken down in a different language from the language of the person making it. See Queen v. Baba Haske (1961) 1 All NLR 330 at 333.” (Emphasis supplied).

At page 37, A-C of the same Report, Karibi-Whyte, J.S.C. also stated as follows: “The general proposition is well settled that where an interpreter has been used in the recording of a statement, the statement is inadmissible unless the person who interpreted it is called as a witness as well as the person who wrote it down.”

Again, at pages 55-57 of the same Report, Uwaifo, J.S.C. made his findings in extension as follows: “I have read the reasons given by my learned brother Ogundare, J.S.C. for dismissing this appeal on 20 September, 2001. I wish however, to express my views briefly on whether Exhibit A was properly admitted at the trial. Sgt Linus Patricks (PW6) was the officer who recorded the statement of the appellant. The appellant spoke in Yoruba language and PW6, acting through an interpreter, Aremu Adeosun (PE3), recorded the statement in English language. That was how Exhibit A, the said statement, came into existence. Now, PW3 testified that he interpreted between PW6 and the Appellant. Thereafter, he read the statement as written in English language by interpreting it to the Appellant who agreed that it was correctly recorded. He said the Appellant thumb-printed Exhibit A and he, the interpreter, signed it, as did PW6, the recorder of the statement… At the trial Court, no objection was taken to the voluntariness of the statement, or any other objection at all… The objection now taken in this Court is that the statement (Exhibit A) is hearsay evidence… With the greatest respect, what I understand the authorities in this country to establish is that where an interpreter has been used in taking down a statement, both the person who wrote down the statement and the person who interpreted it must be called as witnesses. In the case of the person who recorded the statement, he would, of course, state in evidence the procedure he took in the process. That was done in the present case. As for the person who interpreted, he would need to be presented as a witness to testify that he interpreted. It is then open to the defence to cross-examine them… I am therefore satisfied that the prosecution called the necessary witnesses who gave sufficient evidence in the present case to make Exhibit A admissible… The objection that it was hearsay is not well founded and I overrule it.”

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COURT CAN ONLY ACT ON ADMISSIBLE EVIDENCE

There is no doubt, however, that a court is expected in all proceedings before it to admit and act only on evidence which is admissible in law (i.e. under the Evidence Act or any other law or enactment relevant in any particular case) and so if the court should inadvertently admit inadmissible evidence it has a duty generally not to act upon it. When, however, inadmissible evidence is tendered it is the duty of the opposite (or adverse) party or his counsel to object immediately to the admissibility of such evidence; although if the opposite party should fail to raise objection in such circumstances the court in civil cases may (and, in criminal case, must) reject such evidence ex proprio motu. On appeal, however, different considerations arise where a party failed to take objection to inadmissible evidence in the court of trial. It has frequently been stated (as, indeed, learned counsel for the appellant has done) that where a matter has been improperly received in evidence in the court below, even when no objection has been there raised, it is the duty of the court of appeal to reject it and to decide the case on legal evidence.

— Ogundare, JSC. Kossen v Savannah Bank (1995) – SC.209/89

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THE TEST FOR ADMISSIBILITY IS RELEVANCE – WEIGHT COMES AFTER ADMISSION OF THE DOCUMENT

The test for admissibility therefore is relevance, the source by which the document has been obtained is immaterial. A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. It has to be noted also that admissibility of a document is one thing, and the weight that court will attach to it is another. Relevancy and weight are in quite distinct apartments in the law of evidence. Relevancy which propels admissibility is invoked by the trial court immediately a document is tendered to determine the relevancy or otherwise of the document tendered. If the document is relevant the court admits it. Weight on the other hand, comes after admission of a document at the stage of writing the judgment. The two therefore ought not to be confused. See Dunniya v. Jomoh (1994) 3 NWLR (Pt. 334) 609 @ 617. Sadan v. State (1968) 1 All NLR 124. Dalek (Nig) Ltd v. OMPADEC (2007) 7 NWLR (Pt. 1033) 402. Abubakar v. Chuks (2001 18 NWLR (Pt. 1066) 386. Torti v. Uknabi (1984) 1 SC 370. Avong v. KRPC Ltd (2002) 14 NWLR (Pt. 788) 508. ACB Ltd v. Gwaswada (1994) 5 NWLR (Pt. 342) 25.

— A. Jauro, JCA. Chevron v. Aderibigbe (2011) – CA/L/76/04

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