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TYPES OF INADMISSIBLE EVIDENCE (BY LAW OR BY FULFILLMENT OF CERTAIN CONDITIONS)

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In a trial by a Judge alone, as in the case in hand, a distinction must be drawn between those cases where the evidence complained of is in no circumstances admissible in law and where the evidence complained of is admissible under certain conditions. In the former class of cases the evidence cannot be acted upon even if parties admitted it by consent and the court of appeal will entertain complaint on the admissibility of such evidence by the lower court (although the evidence was admitted in the lower court without objection); in the latter class of case, if the evidence was admitted in the lower court without objection or by consent of parties or was used by the opposite party (e.g. for the purpose of cross-examination) then it would be within the competence of the trial court to act on it and the court of appeal will not entertain any complaint on the admissibility of such evidence.

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

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admissibility

RELEVANCY AND ADMISSIBILITY DISTINCTION

Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight. Relevancy, which propels admissibility, is invoked by the trial Judge immediately the document is tendered. At that stage, the Judge applies sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the Judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be. At that stage the Judge is involved in the evaluation or the evidence vis-a-vis the document admitted. While logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of facts.

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

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THREE MAIN CRITERIA FOR ADMISSIBILITY OF A DOCUMENT

A good starting point is to state the three main criteria that govern the admissibility of a document in evidence, namely:- (1) Is the document pleaded? (2) Is it relevant to the inquiry being tried by the court? and (3) Is it admissible in law? See Okonji v. Njokanma (1999) 11 – 12 SCNJ 259 @ 273 where Achike JSC stated thus: “The position of the law in relation to the question of admissibility of a document in evidence is that admissibility is one thing while the probative value that may be placed thereon is another. Generally, three main criteria govern the admissibility of a document in evidence, namely: (1) is the document pleaded? (2) is it relevant to the inquiry being tried by the court? and (3) is it admissible in law?”

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

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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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WRONGFUL ADMITTAL OF EVIDENCE MUST LEAD TO MISCARRIAGE OF JUSTICE

The law is equally well settled that where inadmissible evidence is admitted, it behooves the trial Court to expunge such evidence from the record and consider if there is any viable evidence upon which the charge could be sustained. In essence, the wrongful admission of an evidence ought not to totally affect the decision of the Court unless the use of such evidence has resulted in occasioning a miscarriage of justice.

– Saulawa, JSC. Makanjuola v. State (2021)

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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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COURT WILL EXPUNGE INADMISSIBLE EXHIBIT RECEIVED IN EVIDENCE

The law is that where a Court has received evidence that is inadmissible, the proper thing is to expunge such evidence from the records; see Zenith bank Plc v. Ekereuwem (2012) 4 NWLR (Pt. 1290) at 213 214. Consequently, I make an Order expunging Exhs. PW1-A1 PW1-A7 from the record of this Court in this case.

— I.E. Ekwo J. Mbah v. NYSC, Ibrahim Muhammad (FHC/ABJ/CS/611/2023, 10-NOV-2023)

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