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TWO CATEGORIES OF INADMISSIBLE EVIDENCE

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It must be borne in mind that there are two categories of inadmissible evidence. Evidence that is absolutely inadmissible in law which is not within the competence of the parties to admit by consent or otherwise. It is a document which is by law inadmissible, see for example James v Mid Motors (1978) 11-12 SC 31; Minister v Azikiwe (1969) 1 All NLR 49; Kale v Coker (1982) 12 SC 252. The second class of inadmissible evidence is, for example, a document which is admissible in law but upon fulfilling certain conditions, parties may by consent admit it notwithstanding the conditions not being fulfilled e.g. the admission of unstamped instrument required to be stamped, see Etim v Ekpe (1983) 1 SC NLR 120, (1983) NSCC 86; Igbodim v Obianke (1976) 9-10 SC 179.

— Musdapher, JSC. Shittu & Ors. v Fashawe [2005] – SC 21/2001

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ADMISSIBILITY IS BASED ON RELEVANCE; HOW OBTAINED IS IMMATERIAL

Kuruma, Son of Kaniu v. The Queen (1955) A.C. 197 at p.203, observed. “In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matter in issue. If it is, it is admissible and the court is not concerned with how the evidence is obtained. While this proposition may not have been stated in so many words in any English case, there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle. There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case a judge always has a discretion to disallow evidence if the strict rule of admissibility would operate unfairly against an accused.”

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ADMISSIBILITY OF A DOCUMENT IS ONE THING; WEIGHT IS ANOTHER THING

The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the Court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence.

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

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ORAL EVIDENCE NOT ADMISSIBLE WHERE DOCUMENT EXIST

Where there is documentary evidence on an aspect of a party’s case, no oral evidence is admissible on that aspect. This is because our adjectival law does not admit oral evidence on an aspect or area covered by a document. A party cannot benefit from two ways: documentary evidence and oral evidence. He can only lead evidence in respect of one and not the two of them. But this principle of law is subject to an important qualification and it is this. If the parties by their ad idem agree by oral agreement to change part of the written agreement, the court will not reject the oral agreement.

– Niki Tobi, JSC. Brossette v. Ilemobola (2007)

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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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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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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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