By N.F. Nkobowo ESQ
INTRODUCTION
In part one of this series, we attempted to lay the groundwork for a continuing discussion on the law of evidence. As mentioned in the premiere of this series, we shall be using case law to arrive at the present judicial interpretation of various provisions of the Evidence Act. This part will delve into the meaty issues of the probative value of specific documents and affidavit evidence and we will also highlight some case law positions that are arguably changing previously settled legal principles. It is hoped that the principles relayed here will constitute a valuable practice guide to the litigation lawyer who often has to deal with these confrontations on short notice in a Courtroom.
DOCUMENTS TENDERED BUT MARKED REJECTED – CHANGING POSITION OF THE LAW?
The admissibility and tendering of documents are two hurdles any litigation lawyer in Nigeria is certain to face whether in a criminal or civil trial. Standing close to those hurdles is the fear that a crucial piece of evidence would be tendered but rejected by the Court and so marked. This fear is not unfounded because the trite principle of law is that documents tendered but marked rejected cannot be re-tendered in the same proceedings – Agbaje v Adigun and ors (1993) 1 NWLR pt 269 p.271.
To state the principle more elaborately; as a general rule, a document tendered and marked rejected cannot be tendered again. Once a document is marked rejected, it stays rejected for the purposes of the trial in which it was marked rejected and the defect cannot be cured during the said trial; Babu Wassah v Tukshahe LER [2014] SC 308/2001. Such a document cannot be of any relevance in the matter. Thus, such a document has no probative value for the determination of any issue in the trial. It cannot be made use of either by Counsel during address or commented upon by the trial Court – AMOBI v. OGIDI UNION (NIG) & ORS (2021) LPELR-57337(SC).
From the position stated above, it stands to reason that a party who has a document tendered but marked rejected might find out that its case is lacking some crucial piece of evidence that would otherwise have led to judgment being entered in its favour.
Notably, some case laws now reveal a judicial posture which is to the effect that the trite principle of law as stated above is not cast in stone. The tunes from these cases are arguably discordant but they are gathering some stability. As is customary for this author; a poser might help place the discussion here into perspective – and so the poser is; what if a party seeks to tender a document in its inadmissible form (e.g. an uncertified Public Document) and it is rejected in that form (and so marked as rejected), then he subsequently takes steps to rectify the inadmissible status of the document (e.g. he subsequently certifies the Public Document), can he ‘re-tender’ the rejected document?
Put differently, does a trial Court have the competence to admit a document it had earlier rejected in evidence due to certain defects in the document after such defects have been corrected in the course of the same proceedings?[i]
The Court of Appeal authorities of REGISTERED TRUSTEES OF OBOSI DEVELOPMENT UNION v. ELEBOR (2018) LPELR-46657(CA) and REGD TRUSTEES OF IFE-OLUWA MISSION (CHRISLAM) & ANOR v. OWONLA & ORS (2018) LPELR-45981(CA) offer lucid answers to the poster above. In both cases, the Court reiterated the view that attempting to re-tender such a document would be a legal impossibility thereby re-iterating what we have earlier described as the widely known position of the law on the subject.
However, in the subsequent cases of AKINSOLA & ORS v. OGUNGBAYI & ORS (2021) LPELR-52929(CA) and REGENCY (OVERSEAS) CO. LTD v. ARIORI & ORS (2019) LPELR-47281(CA), the Court of Appeal clearly departed from the earlier position. In Akinsola’s case, the words of the Court were unequivocal as follows –
“Where the document is the proper one but something has to be done to the document in order to render it admissible, such as secondary evidence of public documents. In such a situation where the document was rejected on this ground that it did not conform with such requirement then, it is permissible for the person tendering it to obtain the proper copy that is admissible in law and tender it.”
The Court in Akinsola v Ogungbayi (Supra) relied on the Supreme Court authority of TABIK INVESTMENT LTD & ANOR V. GTB PLC (2011) LPELR-3131 (SC). Surprisingly, a stream of earlier decisions support the view in Akinsola’s case (Supra) – thus in UZOMA v ASODIKE (2009) LPELR – 8421 (CA), the Court of Appeal gave credence to the position when it held thus: “It is now settled that a wrongly certified or even an uncertified public document can be re-certified and re-tendered in evidence”. See also UMOGBAI v AIYEMHOBA (2002) FWLR (PT 132) 192 CA; (2002) 8 NWLR (PT 770) 687.
For the sake of brevity, a longer reproduction[ii] of the relevant dictum of the Courts in this regard is available here. Also, apart from the discussion above, an earlier paper on the subject written by Peter Amire is worth reading[iii].
From the present posture of the Courts, as revealed by these decisions, it is arguable that the law on the subject is changing due to the supervening judicial intendment that substantial justice is done.
DEALING WITH AFFIDAVIT EVIDENCE
For matters fought on affidavit evidence as well as for affidavits filed in support of motions, the law is in some respect arguably different from what generally applies. This difference largely sprouts from the nature of affidavit evidence in itself. Thus, unlike evidence embodied in pleadings and witness depositions, the contents of affidavits constitute evidence once they have been properly deposed to – Section 107 of the Evidence Act 2011, MORKA & ORS v. OSADEME (2022) LPELR-58131(CA), OCHEKPE & ANOR v. TAEN (NIG) LTD (2013) LPELR-21958(CA)[iv]. For pleadings and witness depositions, by law and practice, they only evolve into evidence at a hearing when a witness adopts them – TAR & ORS v. MINISTRY OF COMMERCE & INDUSTRIES & ORS (2018) LPELR-44216(CA), MAGNUSSON v. KOIKI & ORS (1993) LPELR-1818(SC).
The nature of affidavit evidence goes on further to affect the evidential weight that affidavits generally possess. Thus, as a general point of law, a party who does not react to or challenge the statements of facts contained in an affidavit is deemed to have accepted them as true and the Court can act on such facts – AKOMOLAFE v. ILESANMI (2015) LPELR-25664(CA). Put succinctly, affidavit evidence is proper evidence for the Court to act upon once not contradicted – JIMOH v. COP (2004) LPELR-11262(CA). This position applies equally to affidavits and counter-affidavits.
Some exceptions to the rule stated above include – the Court is not in all circumstances bound to accept as true all testimony and evidence (in this instance affidavit evidence) that is uncontradicted where it is willfully or corruptly false, incredible, improbable, or sharply falls below the standard expected in a particular case – FALAKI & ORS v. FAGBUYIRO & ORS (2015) LPELR-25848(CA). Affidavit evidence is therefore not sacrosanct. The facts deposed to therein are subject to evaluation by the Court to ascertain their veracity, cogency and authenticity; Okoye v. Centre Point Merchant Bank Ltd (2008) 7-12 S.C. 1. In other words, as held in Ogedengbe Sura Ola v University of Ilorin & 2 Ors (2014) 15 NWLR 453, an affidavit must not be questionable, incredible, unreliable and unbelievable. It must pass the credibility test.
In practice, when such an incredulous affidavit is relied upon by a party, the adverse party may choose not to react by way of a counter-affidavit and rather argue that the affidavit if considered without any opposition fails to fulfill its function and thus grant sufficient/convincing reasons for the award of the prayers or reliefs sought – AHMED & ORS v. CBN (2013) LPELR-20744(SC).
As an addendum – a seemingly innocuous poser arises when affidavit evidence is placed before the Court. That poser is – While a party who is controverting or challenging the facts in the affidavit is expected to file a counter-affidavit, what should the tenor of such a counter-affidavit be? Should it merely say ‘No, that is untrue!’ and stop there – would such amount to a sufficient challenge of the affidavit being responded to? The Court of Appeal decision in Ogedengbe Sura Ola v University of Ilorin & 2 Ors (2014) 15 NWLR 453 at P 472 Paras F -G, offers a profound answer to this poser.
In the words of the Court; “A valid counter-affidavit must contain a valid denial of each fact sought to be denied and the respondent’s version of what happened. A valid denial is a denial pointedly directed to the facts intended to be denied. A simple narration of a respondent’s different and distinct sets of facts deposed to in an affidavit does not qualify as a counter affidavit which has denied the facts deposed to in an affidavit. [Citizens International Bank Ltd. v. SCOA Nigeria Ltd. (2006) 18 NWLR (Pt. 1011) 332, MANA v. PDP & ORS (2011) LPELR-19754(CA).
Having answered the poser above, another issue worthy of discourse in relation to affidavits is the admissibility of documents attached to affidavits. It is a general position of the law that all documents attached to an affidavit form part of the affidavit in question – ENERGY PPRTY DEV LTD & ANOR v. EFCC & ANOR (2021) LPELR-55037(CA), EZECHUKWU & ANOR v. ONWUKA (2016) LPELR-26055(SC). Consequent to the above, the law is also settled that document so attached is already in evidence before the Court.
Thus, being evidence already before the Court, the formalities and conditionalities for its admissibility are dispensed with, since being affidavit evidence it has already been admitted in evidence before the Court – AONDOAKAA v. OBOT & ANOR (2021) LPELR-56605(SC), GUSAU v. LAWAL & ORS (2023) LPELR-60152(SC). Does this position remain so in respect of computer-generated documents attached to an affidavit? By the Court of Appeal decision in HASHIM v. ASO SAVINGS & LOANS PLC (2022) LPELR-57061(CA) the position remains the same. Therefore, computer-generated documents attached to an affidavit need not comply with the provisions of Section 84 of the Evidence Act.
In addition to the foregoing, it is most pertinent to emphasize that the law regulates the contents of affidavits. Therefore, they are not to be drafted without due regard to the provisions of Sections 107 – 120 of the Evidence Act 2011 of the Evidence Act[v].
Hearsay and Affidavit Evidence – The general principle of law is that hearsay evidence is inadmissible except as provided for under the Evidence Act or any other law – Section 38 of the Evidence Act 2011. The pertinent questions that arise are – Does the position of the law on hearsay evidence apply to documents attached to affidavits or contents of an affidavit? And when will this position of the law apply?
In ADEBANJO V BROWN (1990) 6 SCNJ 1 the Supreme Court opined that hearsay in an affidavit is admissible, provided the source and grounds of information or belief are disclosed therein. See also – ALADUM v. OGBU & ORS (2023) LPELR-59995(SC)[vi]
PROBATIVE VALUE OF SPECIFIC DOCUMENTS/PIECES OF EVIDENCE
It is not within the scope of this piece to attempt a treatise on the classification or kinds of documents that exist for purposes of the Law of Evidence. On that issue, however, it is a greenhorn position that documents can largely be classed into public documents, and private documents (and by necessary consideration of Section 84 of the Evidence Act – Electronically generated evidence. The need to classify a particular document into any one of the aforementioned spectrums is most important for the litigation lawyer. This is because it would inform the steps that need to be taken to ensure the document is in its admissible form. More precisely, if the document is a public document, it would be certified in compliance with the Act, if it is electronically generated, the needed certificate would be prepared and if it is a photocopy of a private document the needed foundation would be laid in the evidence of chief of the witness concerned.
For the purpose of achieving a succinct exposition of the classification referenced above, the provision of Sections 102 and 103 of the Evidence Act (The Act) is quite apposite. When considered together, the Sections are to the effect that a matter of general principle the admissible copy of documents is the document(s) itself and no other copy except as allowed by the Act. Put differently, the Act expects primary evidence only except where it gives room for secondary evidence (i.e., primary evidence first and secondary evidence only as allowed by the Act). The allowable instances where secondary evidence is allowed are as listed in Section 90 of the Act.
Away from the classification above, an attempt is made hereunder to distill the probative value of specific documents as they may be tendered and relied upon in matters before the Courts that apply the Act. Before the discussion below, it is necessary to mention in passing that by Section 12 of the NICN Act, the National Industrial Court is empowered to depart from the provisions of the Evidence Act. Thus, the distillation arrived at below is not one cast in stone that applies to all cases without consideration of the peculiar facts of each case.
- Dumped documents – A pertinent beginning point is the point of law that documents no matter their class can in fact be dumped on the Court and thus lack any probative value. The judicial reasoning supporting this position of the law is the expectation/underlying principle that the duty of a Court is to decide a dispute brewing between litigants on the basis of what has been demonstrated, tested, canvassed and argued in court. It is not the duty of a Court to do cloistered justice by making an inquiry into the case outside court even if such inquiry is limited to the examination of documents that were in evidence when the documents had not been examined in court – Onibudo v Akibu (1982) 7 SC 60, 62.
Dumping documents on the Court simply means that a party who tenders the document fails to demonstrate them in Court or sufficiently links the document to his case[vii]. In other words, the witness or party simply provides the documents and walks away expecting the court to undertake the tedious task of sorting through them and pairing the relevant part of the documents to his case – Senator Ladoja v Senator Ajimobi & Ors (2016) 10 NWLR Pt 1519 p 87 at 145 to 146 paras H-F.
The point made above must be contradistinguished from the position that documents when tendered speak for themselves. That principle of law is often cited by Counsel to argue or posit that the document once tendered answers all questions that may arise from it. But this writer takes the considered view that that position does not holistically reflect the law on this subject. The Apex Court seemed to establish a holistic reflection in the case of Omisore v Aregbesola (2015) 15 NWLR (Pt 1482) 205 on page 323 to 324, where the Court stated inter alia as follows;
In other words, documentary evidence, no matter its relevance, cannot on its own speak for itself without the aid of an explanation relating to its existence. The validity and relevance of documents to admitted facts or evidence is when it is done in the open Court and not a matter for Counsel’s address. It is not the duty of a Court to speculate or work out either mathematically or scientifically a method of arriving at an answer on an issue that could only be elicited by credible and tested evidence at the trial.
See also the cases of – DAME PAULINE K. TALLEN & ORS V. DAVID JONAH JANG & ORS (2011) LPELR-9231(CA) which support the position stated herein[viii].
The effect of dumping documents on a court is that the probative value of such documents is totally eroded. In effect, the documents though expected to speak have actually failed to speak and thereby lack evidentiary value – GREAT (NIG) INSURANCE PLC v. ZEAL TRUST LTD (2020) LPELR-53107(CA). It should also be noted that a Court has no duty to evaluate documents dumped on it – SAMUEL & ANOR v. TANIMU MUSA & ORS (2019) LPELR-50988(CA).
- Statements of accounts in debt related-claims – Closely related to the position on dumped documents is the position of the law relating to relying on statements of accounts as proof of indebtedness of the owner of the statement. It is usual that in banking litigation, a Bank that is claiming that its customer is indebted to it would rely on the customer’s statement of account as proof of that indebtedness. The idea is usually simple – the statement of account which at that point indicates a negative (debit) balance shows beyond a doubt that the customer is owing.
But is this belief one cast in stone that can survive judicial scrutiny? Section 51 of the Evidence Act is relevant to this issue and answers the poser just raised. The Section has been judicially interpreted in a host of cases. And these host of cases all sing one chorus which is that a statement of account alone cannot affix liability on its owner. A bank that seeks judgment on the basis of such a statement of account is expected to do more than just tender the statement in evidence. The Bank is duty bound to adduce documentary and testimonial evidence by its official explaining clearly the entries in the statement of account to show how the overall debit balance was arrived at. The dictums in the case of Unity Bank Plc v Raybam Eng. Ltd (2018) 12 NWLR Pt 1633 at 214 @233 -234 Paras. F-A and Ifemesia v Ecobank (2018) LPELR 46589 (CA) are relevant on this point[ix].
See Also; Biezan Exclusive Guest House Ltd v Union Homes Savings & Loans Ltd (2011) 7 NWLR (Pt. 1246) 246 and Ogboja v Access Bank Plc (2015) LPELR (24821); (2016) 2 NWLR Pt 1496 291.
For the nexus between this position of the law and the position on dumped documents see the case of B.E.G.H. Ltd v U.H.S & L. Ltd (2011) 7 NWLR (Pt 1246) P 246 at P 286 Paras E-H.
- Newspapers – Relying on newspapers as evidence in most cases might be a walk on ice. This excludes the use of newspapers in defamation cases which is an entire and separate kettle of judicial exposition. This submission is based on the now-settled position of the law that Newspaper reports are not generally admissible as evidence of the facts contained in them. The Courts have consistently held that newspaper publications are only proof that the publication was made and not proof of the truth of the contents of the publication. The statements contained in newspapers are therefore, in law, deemed to be hearsay by Virtue of Section 37 of the Evidence Act, 2011 and therefore inadmissible as the truth of the statements made therein.
The cases on this point elucidate the law as summarily stated above further and they include – ABEGUNDE v. THE ONDO STATE HOUSE OF ASSEMBLY & ORS (2014) LPELR-23683(CA) Per UGO, J.C.A. (Pp. 112-113, paras. B-F), LAWRENCE v. OLUGBEMI & ORS (2018) LPELR-45966(CA) Per TSAMMANI, J.C.A. (Pp. 47-49, Paras. A-E)[x]. The position above however does not affect the use of newspapers in defamation matters as the thrust of their use in those cases are rather different from what has been described above. The thrust of using newspaper reports in defamation cases is usually the prove the act of publication and not necessarily the truth of the contents of the newspaper (and thus it escapes the hearsay pothole)
- Expert Evidence – expert testimony is not a piece of evidence that the court is compelled to accept. The opinion given by an expert is not, by any means, conclusive of the point on which he testifies because only and only because the opinion is that of an expert. In effect, a Judge does not just, surrender his independent evaluation of an issue to the expert witness just because he claims to be or has demonstrated himself to indeed be an expert. If there is a good reason, the Judge may very well, legitimately reject the opinion evidence of an expert.
The duty of an expert is to furnish the Judge with necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his own independent judgment by the application of those criteria to facts provided in evidence – Owale v. Shell Petroleum Development Company Ltd. (1997) NWLR Pt. 480 page 148 at 183. In essence and as already stated, the Judge is not expected to kowtow to the expert.
It is also necessary to note an expert testimony is not immune from being affected by hearsay and thus inadmissible. The legal position is that if what purports to be an expert report is, in fact, hearsay evidence or was, on a particular point, based on hearsay evidence, it can be perfectly rejected. – BERENDE v. FRN (2019) LPELR-48376(CA). The case of ABUBAKAR & ANOR v. INEC & ORS (2019) LPELR-48488(CA) is also instructive on this point[xi].
In ABUBAKAR & ANOR v. INEC & ORS (Supra), the Petitioners relied on an analysis of votes and called an expert whose report was based on data obtained from a website whose owner he did not know. The website was created weeks after the elections which were the subject matter of the petition by a supposed INEC official who claimed to be a whistleblower and opted to remain anonymous. In effect, his report was based on the Whistleblower’s Data Analysis website called; Facts don’t Lie – www.factsdontlieng.com where reports of his expertise evidence were based. The Court of Appeal considered the report to be hanging on third-party information from an undisclosed source and therefore caught up by Section 37 of the Evidence Act 2011. The Court further considered that the expert report could not be classified as expert opinion but rather ruled it as hearsay and therefore inadmissible and unreliable.
Similarly, in WOWO & ANOR v. SIDI-ALI & ORS (2009) LPELR-5106(CA) the Court of Appeal opined that the evidence of an expert will amount to hearsay and therefore become inadmissible where he gives his opinion in a report and is not called as a witness and cross-examined. In Wowo’s case (Supra) the expert report in issue before the Court was signed by two experts. However, at the trial, the report was tendered through one of the experts and he was cross-examined. The second expert (who was also the second signatory to the report) did not appear in Court, and neither was he did testify on the legitimacy of the report.
Furthermore, under cross examination, the only expert who was called gave evidence to the effect that the analysis leading to the preparation of the report was jointly carried out by himself and the absent expert. This proved fatal for the report as in the Court’s view his failure to separate the ballot papers examined by him from those examined by the second “expert” who was not called as a witness rendered the integrity of the report suspect. And the fact that the second expert was not called rendered a document as documentary hearsay.
CONCLUSION
It was not intended to make this piece this lengthy. Hence the next part of this series would continue the discussion on further issues relevant to the discussion above.
Author’s Bio –
N.F. Nkobowo ESQ is a Senior Associate with Compos Mentis Legal Practitioners where he is part of the dispute resolution unit of the firm. He can be reached via fredericknkobowo@gmail.com and 08128926652.
[i] https://ls-ng.com/index.php/docs/modes-of-tendering-documents-evidence-during-trial/ accessed on 1st August 2023.
[ii] https://ls-ng.com/index.php/docs/modes-of-tendering-documents-evidence-during-trial/ accessed on 31st July 2023
[iii] Inadmissibility of a Document Tendered and Rejected: Any Exception? A Working Paper on the Exceptions to the Law Guiding the Admissibility of Documentary Evidence in Nigeria by Peter Amire; Article in SSRN Electronic Journal published January 2017 assessable at https://ssrn.com/abstract=3242800 last accessed 12/6/2019
[iv] In the words of the Court – “Averments in an affidavit have the legal status of evidence in law. They are like any evidence in civil or criminal proceedings which are applied in proving or establishing facts or assertions in a dispute in a Court of law”. See also – https://ls-ng.com/index.php/docs/affidavit-evidence-pt-1/ accessed on 31st July 2023.
[v] https://kingsleyudofa.com/affidavit/ accessed on 1st August 2023. If we must add as well, it has been held that affidavits meant for use in Court must as near as possible, conform to oral evidence admissible in Court – PDP & ANOR v. SEBASTINE & ANOR (2015) LPELR-42410(CA).
[vi] https://ls-ng.com/index.php/docs/affidavit-evidence-pt-1/ accessed on 1st August 2023
[vii] https://ls-ng.com/index.php/docs/at-the-hearing-3-probative-value-of-specific-documents/ accessed on 1st August 2023
[viii] https://ls-ng.com/index.php/docs/at-the-hearing-3-probative-value-of-specific-documents/ accessed on 1st August 2023
[ix] A further juxtaposition on this issue is available at – https://ls-ng.com/index.php/docs/at-the-hearing-3-probative-value-of-specific-documents/ accessed on 1st August 2023
[x] https://ls-ng.com/index.php/docs/at-the-hearing-3-probative-value-of-specific-documents/ accessed on 1st August 2023
[xi] https://ls-ng.com/index.php/docs/at-the-hearing-3-probative-value-of-specific-documents/ accessed on 1st August 2023
