HUSCO (NIG.) LTD v. FHA & ANOR
(2022)LCN/16808(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, December 20, 2022
CA/A/471/2019
Before Our Lordships:
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
HUSCO NIGERIA LIMITED APPELANT(S)
And
1. FEDERAL HOUSING AUTHORITY 2. MR. LABARAN RESPONDENT(S)
RATIO
WHETHER OR NOT THE CONCLUSION OF A TRIAL COURT IS PRESUMED TO BE CORRECT UNTIL SET ASIDE
It is settled law that the conclusion of the trial Court on the facts is presumed to be correct and that it behoves the person seeking to upset the judgment on the facts to displace this presumption. In evaluation of the evidence the lower Court stated, inter alia, as follows at page 133 of the Records of Appeal:
“From the Claimant’s Pleadings/evidence and the reliefs sought, the claim of the Claimant is mainly ownership of the Plot of land in issue while all other reliefs are ancillary. The issue for determination therefore is posited by Defendant’s Counsel which is whether the claimant has proved its case so as to entitled [sic] it to Judgment.” PER OGAKWU, J.C.A.
WHETHER OR NOT THE PRODUCTION OF DOCUMENTS OF TITLE IS A METHOD OF PROVING TITLE TO LAND
The law is now trite that production of documents of title is one of the recognised methods of proving title to land but such document of title must be admissible in evidence and be of such character to be capable of conferring valid title on the party relying on it. It does not mean that once a Claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. The production and reliance on such document needs the Court to inquire into some or all of a number of questions:
1. Whether the document is genuine and valid.
2. Whether it has been duly executed, stamped and registered.
3. Whether the grantor had the authority and capacity to make the grant.
4. Whether the grantor had in fact what he purported to grant.
5. Whether it has the effect claimed by the holder of the instrument …
The Exhibit A3 – The alleged letter of grant is a photocopy. By Section 105 of the Evidence Act, as far as public documents are concerned as in this case, the secondary evidence admissible is a certified true copy of the document and no other kind of secondary evidence… PER OGAKWU, J.C.A.
WHETHER OR NOT PARTIES ARE BOUND BY THE RECORDS OF APPEAL
It is rudimentary law that the parties and the Court are bound by the Records of Appeal. It is the Records of Appeal that a Court relies upon in the determination of an appeal. The Court will not depart from the Records of Appeal and any extraneous facts and submissions which are not borne out by the Records of Appeal would be futile and ineffectual and the Court cannot rely on the same. See GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374, NNALIMUO vs. ELODUMUO (2018) LPELR (43898) 1 at 22, GWAGWALADA SPECIALIST HOSPITAL vs. KWADO (2022) LPELR (57618) 1 at 12-13 and ERIAYE vs. EREMIENYO (2022) LPELR (58095) 1 at 20-21. PER OGAKWU, J.C.A.
WHETHER OR NOT A TRIAL COURT CAN EXPUNGE FROM THE RECORD A DOCUMENT THAT WAS WRONGLY ADMITTED IN EVIDENCE
By all odds, it is hornbook law that a trial Court has the right to expunge from the record a document that was wrongly admitted in evidence. This can be done, suo motu, at the stage of writing judgment, although a party may also call the attention of the Court to it in its final address. SHANU vs. AFRIBANK (2002) LPELR (3036) 1 at 26 and BROSSETTE MANUFACTURING (NIG) LTD vs. M/S OLA ILEMOBOLA LTD (2007) LPELR (809) 1 at 25-26. In NWABUOKU vs. ONWORDI (2006) LPELR (2082) 1 at 21-22, Tobi, JSC stated:
“A trial Judge has the competence to either completely reject admitted evidence or disregard such evidence admitted at the stage of writing judgment if he comes to the conclusion that the evidence, documentary or oral, was wrongly admitted. This is because at the stage of writing judgment, the trial Judge is fully exposed to the totality of the evidence before him and therefore in the best position to determine the probative strength of the evidence. Accordingly, where a document earlier admitted does not carry any probative value by virtue of the Evidence Act in the light of the live issues before the Court, the Judge can expunge the document or disregard it in the course of evaluating the totality of the evidence before him to enable him arrive at a proper decision.” PER OGAKWU, J.C.A.
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The disputed land in this matter is situate at and known as Plot 1059F, along 1st Avenue, Gwarinpa II Estate, Abuja. The Appellant claims entitlement as the rightful owner of the said disputed land by virtue of allocation of the same to it by the 1st Respondent for commercial use. The Respondents on their part contend that the temporary allocation of the land to the Appellant for commercial use was void for being inconsistent with the original designated use, which is for public use. So, the Appellant claimed declaration as the rightful owner, while the Respondents counterclaimed for the allocation to be declared void and/or for breach of fundamental terms.
Therefore, there was a claim and a counterclaim in the action in SUIT NO. FCT/HC/CV/1517/2016: HUSCO NIGERIA LIMITED vs. FEDERAL HOUSING AUTHORITY & ANOR. The Appellant as Plaintiff before the lower Court, claimed the following reliefs against the Respondents in its Amended Statement of Claim:
“I. A DECLARATION that the Plaintiff is the rightful owner of plot no 1059F, along 1st Avenue, Gwarinpa II Estate, Abuja.
II. A DECLARATION that the Defendant cannot revoke the Plaintiff’s interest on plot 1059F, along 1st Avenue, Gwarinpa II Estate, Abuja, without adequate notice, compensation and due process of law.
III. AN ORDER perpetual injunction restraining the Defendant, their agents, previse [sic] or servants from further acts of trespass of doing anything against the interest of the Plaintiff on plot 1059F, along 1st Avenue, Gwarinpa II Estate, Abuja.
IV. A DECLARATION that the 1st Defendant has no statutory power to grant building plan approval in respect of any plot of land within the Federal Capital Territory, Abuja or in respect of plot no 1059F, along 1st Avenue, Gwarinpa II Estate, Abuja.
V. A DECLARATION that the 1st Defendant has no statutory power to demolish any property and building within the Federal Capital Territory, Abuja or Plaintiff’s fence erected on plot no 1059F, along 1st Avenue, Gwarinpa II Estate, Abuja.
VI. AN ORDER directing the 1st Defendant to refund the sum of N1,457,813.76 (One Million, Four Hundred and Fifty Seven Thousand, Eight Hundred and Thirteen Naira Seventy Six Kobo) paid to her by the Plaintiff for building plan approval as money had and received.
VII. A DECLARATION that the Defendant’s action of demolishing the Plaintiff’s perimeter fencing on plot 1059F, along 1st Avenue, Gwarinpa II Estate, Abuja amount to trespass.
VIII. The sum of N38,114,000 (Thirty Eight Million, One Hundred and Fourteen Thousand Naira) as special damages against the Defendants.
IX. The sum of N1,000,000,000.00 (One Billion Naira) only against the Defendants as punitive damages.”
The Respondents’ counterclaim is for the following reliefs:
“a. A declaration that the initial temporary allocation of plot 1059F, along 1st Avenue Gwarinpa II Estate, Abuja to the Plaintiff/Defendant to the Counter-Claim by the 1st Defendant/Counter-Claimant for ‘COMMERCIAL USE’ is void being inconsistent with the original designated use which is ‘PUBLIC USE’ being ‘GREEN/N12 1ST AVENUE INTERCHANGE’
ALTERNATIVELY:
b. A declaration that the deliberate actions of the Plaintiff/Defendant to the Counter-claim in both failing to develop Plot No. 1059F along 1st Avenue, Gwarinpa II Estate, Abuja within the time frame and in commencing developments on the said plot without any prior approval of any development plan by the 1st Defendant/Counter-claimant amounts to a breach of the fundamental term of the temporary allocation made to the Plaintiff by the 1st Defendant/Counter-Claimant in the letter of allocation dated 2nd July, 2012.
c. A declaration that the Plaintiff/Defendant to the Counter-Claim having deliberately breached a fundamental term of the allocation of Plot No. 1059F as contained in Clause 2(d) of the temporary letter of allocation dated 2nd July, 2012, the 1st Defendant/Counter-Claimant is entitled to rescind/revoke the temporary allocation and the said allocation stands forfeited by the Plaintiff.
d. An order revoking the Plaintiff/Defendant to the Counter-Claim’s allocation/title to, and of Plot No. 1059F situate at 1st Avenue, Gwarinpa II Estate, Abuja for breach of fundamental term of the allocation as contained in Clause 2(d) of the letter of allocation; OR
e. An order of FORFEITURE against the Plaintiff/Defendant to the Counter-Claim in favour of the 1st Defendant/Counter-Claimant of Plot 1059F situate at along 1st Avenue, Gwarinpa II Estate, Abuja on grounds of willful [sic] breach of the fundamental term of the allocation of the said plot by the Plaintiff/Defendant to the Counter-Claim as contained in Clause 2(d) of the letter of allocation dated 2nd July, 2012.
f. Cost of filing and prosecution of this Counter-Claim.”
Pleadings having been filed and exchanged; the matter proceeded to hearing. The Appellant called two witnesses in proof of its case and tendered several documents. The Respondents however did not attend Court to lead evidence in defence of the action and in proof of the Counterclaim, consequent upon which the lower Court foreclosed their case and the matter proceeded to final address. In its judgment, the lower Court dismissed the Appellant’s case and struck out the Respondents’ Counterclaim for having been abandoned.
The Appellant was dissatisfied with the decision of the lower Court and it appealed against the same by Notice of Appeal filed on 16th May 2019. The judgment of the lower Court which was delivered on 4th April 2019 is at pages 119-137 of the Records, while the Notice of Appeal is at pages 138-141 of the Records of Appeal. The Records of Appeal having been compiled and transmitted, briefs of argument were filed and exchanged by the parties; the learned counsel for the parties adopted and relied upon their respective briefs at the hearing of the appeal.
In the Appellant’s Brief which was filed on 30th June 2020, but deemed as properly filed on 5th April 2022, a sole issue was crafted for determination, namely:
“Whether the trial Court was justified in expunging Exhibit A3 a document which it earlier admitted in evidence and consequently dismissed the case of the appellant. This issue is distilled from the sole ground of appeal”.
The Respondents filed their brief of argument on 29th April, 2022 and they adopted the sole issue distilled for determination by the Appellant. It is on the basis of the said issue that I will now review the submissions of learned counsel and resolve this appeal.
ISSUE FOR DETERMINATION
Whether the trial Court was justified in expunging Exhibit A3, a document which it earlier admitted in evidence and consequently dismissed the case of the Appellant.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant submits that the original letter of allocation of the disputed land to it was tendered in evidence and admitted without objection and marked Exhibit A3. It was posited that the lower Court lacks the power to expunge a document which was legally tendered and admitted in evidence vide NWOSU vs. UDEAJA (1990) 1 NWLR (PT 125) 188 at 211. It was asserted that expunging the said Exhibit A3 occasioned a miscarriage of justice which requires the intervention of the appellate Court to redress. The cases of OGBE vs. IDOWU (2004) ALL FWLR (PT 232) 1474 at 1492 and ADEYEMI vs. OVBA (2017) ALL FWLR (PT 870) 1004 at 1060-1061 were referred to.
It was contended that the issue of Exhibit A3, being a photocopy was raised suo motu by the lower Court and resolved without affording the parties the opportunity to address the Court on the issue as required by law. The cases of ADEGOKE vs. ADIBI (1992) 5 NWLR (PT 242) 410 at 420 and GTB PLC vs. OGWEZZY-NDIKA (2017) ALL FWLR (PT 914) 1050 at 1076 were relied upon.
SUBMISSIONS OF THE RESPONDENTS’ COUNSEL
The Respondents submit that parties and counsel are bound by the Records of Appeal and that neither the parties nor the Court can go outside the Records of Appeal. The case of SPLINTERS NIGERIA LTD vs. OASIS FINANCE LTD (2013) 39 WRN 145 at 163-164 was called in aid. It was opined that the Appellant’s contention that the original of Exhibit A3 was admitted in evidence but later withdrawn and substituted with a photocopy is not borne out by the Records of Appeal and that the Appellant has not challenged the Records of Appeal as not being correct.
It was further submitted that the Appellant did not challenge the finding of the lower Court that Exhibit A3 was a public document and that the only admissible secondary evidence of the same was a certified copy. Sections 90 (1) and 105 of the Evidence Act and the cases of UDOH vs. THE STATE (2016) 34 WRN 60 at 77, KANA vs. JATAU (2012) 41 WRN 115 at 137 and IBORI vs. FRN (2012) 14 WRN 115 at 181 were cited in support. It was conclusively submitted that where inadmissible evidence is wrongly admitted in evidence, the same Court or an appellate Court can discountenance or expunge the same from the Records vide KEYSTONE BANK LTD vs. SHEMOMAL NIG LTD (2016) 4 WRN 97 at 115.
RESOLUTION
It is settled law that the conclusion of the trial Court on the facts is presumed to be correct and that it behoves the person seeking to upset the judgment on the facts to displace this presumption. In evaluation of the evidence the lower Court stated, inter alia, as follows at page 133 of the Records of Appeal:
“From the Claimant’s Pleadings/evidence and the reliefs sought, the claim of the Claimant is mainly ownership of the Plot of land in issue while all other reliefs are ancillary. The issue for determination therefore is posited by Defendant’s Counsel which is whether the claimant has proved its case so as to entitled [sic] it to Judgment.”
It continued and comprehensively held as follows at pages 134-136 of the Records of Appeal:
“In proof of the Claimant’s case, he tendered:
Exhibit A2 – The application for allocation of commercial land dated 10th January, 2012.
Exhibit A3 – The letter of allocation to the Claimant by the 1st Defendant dated 2/07/12.
Exhibit A4 – Receipts of payment by Claimant to FHA.
The law is now trite that production of documents of title is one of the recognised methods of proving title to land but such document of title must be admissible in evidence and be of such character to be capable of conferring valid title on the party relying on it. It does not mean that once a Claimant produces what he claims to be an instrument of grant, he is automatically entitled to a declaration that the property which such an instrument purports to grant is his own. The production and reliance on such document needs the Court to inquire into some or all of a number of questions:
1. Whether the document is genuine and valid.
2. Whether it has been duly executed, stamped and registered.
3. Whether the grantor had the authority and capacity to make the grant.
4. Whether the grantor had in fact what he purported to grant.
5. Whether it has the effect claimed by the holder of the instrument …
The Exhibit A3 – The alleged letter of grant is a photocopy. By Section 105 of the Evidence Act, as far as public documents are concerned as in this case, the secondary evidence admissible is a certified true copy of the document and no other kind of secondary evidence…
Exhibit A3 was wrongly admitted in evidence. The law is that evidence that was wrongly admitted is not legal evidence and the Court has a duty to expunge it from the records. Such evidence should be regarded as if it had not been tendered and admitted. The Court cannot rely on such evidence in reacting [sic] its ultimate decision…
In the circumstance Exhibit A3 is hereby discountenanced. Even if Exhibit A3 is not discountenanced, there is nothing to show that it is duly executed, stamped and registered or that the grantor has the authority and capacity to make the grant having regard to Exhibit A8.
In the circumstance, it is my view and I so hold that the Claimant has not put sufficient evidence before me to entitle it to judgment. A claim for trespass and reliefs iv, v – ix can only succeed in proof of a valid title/possession of land. In the absence of a valid title therefore, the reliefs cannot stand.
In totality, the case fails and it is dismissed.”
It is this decision that the Appellant wants this Court to set aside by this appeal. To presently captivate our attention is whether the Appellant has been able to displace the presumption that the conclusion of the lower Court on the facts, as it relates to whether it proved its case, is correct in order to upset the judgment. EHOLOR vs. OSAYANDE (1992) LPELR (8053) 1 at 43, ONI vs. JOHNSON (2015) LPELR (24545) 1 at 11-13 and SANI vs. AYE (2022) LPELR (58096) 1 at 47-51.
The main thrust of the Appellant’s contention in this appeal and on which it crafted the sole issue for determination is on whether the lower Court was justified in expunging Exhibit A3 after it had admitted the same in evidence. The Appellant anchors its position with the restatement of what purportedly transpired at the lower Court in respect of the said Exhibit A3, where at paragraphs 1.6 and 1.7 on page 2 of the Appellant’s Brief it was stated:
“1.6 That at the conclusion of the proceedings on 14/3/2018, the appellant’s counsel applied to the Court to withdraw original copy of Exhibit A3 tendered and admitted and to replaced [sic] same with photocopy which Court obliged but off record and directed them to the registry of the Court with the knowledge of counsel to the defendants.
1.7 That at the registry, the registrar made photocopied [sic] of Exhibit A3 and released original copy to the appellant and retained the photocopy in the record.”
It is rudimentary law that the parties and the Court are bound by the Records of Appeal. It is the Records of Appeal that a Court relies upon in the determination of an appeal. The Court will not depart from the Records of Appeal and any extraneous facts and submissions which are not borne out by the Records of Appeal would be futile and ineffectual and the Court cannot rely on the same. See GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374, NNALIMUO vs. ELODUMUO (2018) LPELR (43898) 1 at 22, GWAGWALADA SPECIALIST HOSPITAL vs. KWADO (2022) LPELR (57618) 1 at 12-13 and ERIAYE vs. EREMIENYO (2022) LPELR (58095) 1 at 20-21. I have insightfully, considered the Records of Appeal on the proceedings of 14th March, 2018 (See pages 108-111 of the Records of Appeal) and there is absolutely nothing therein that bears out the Appellant’s assertion in paragraph 1.6 of the Appellant’s brief. It is definitely a figment of the Appellant’s imagination! Little wonder that the Appellant claimed in the said paragraph 1.6 of the Appellant’s Brief that the lower Court “obliged but off record.” There is however no record of such an application having been made, even if the obliging was off record. Accordingly, I am unable to join the Appellant in pursuit of what its fertile imagination has dug up. Since the Records of Appeal, the holy grail for the appeal does not bear out the Appellant’s assertion, the said assertion is reckless.
Now, the gripe of the Appellant is that after duly admitting Exhibit A3 at the trial as legal evidence, the lower Court proceeded to expunge the said document in its judgment. This it contended that the lower Court lacks the power to do. By all odds, it is hornbook law that a trial Court has the right to expunge from the record a document that was wrongly admitted in evidence. This can be done, suo motu, at the stage of writing judgment, although a party may also call the attention of the Court to it in its final address. SHANU vs. AFRIBANK (2002) LPELR (3036) 1 at 26 and BROSSETTE MANUFACTURING (NIG) LTD vs. M/S OLA ILEMOBOLA LTD (2007) LPELR (809) 1 at 25-26. In NWABUOKU vs. ONWORDI (2006) LPELR (2082) 1 at 21-22, Tobi, JSC stated:
“A trial Judge has the competence to either completely reject admitted evidence or disregard such evidence admitted at the stage of writing judgment if he comes to the conclusion that the evidence, documentary or oral, was wrongly admitted. This is because at the stage of writing judgment, the trial Judge is fully exposed to the totality of the evidence before him and therefore in the best position to determine the probative strength of the evidence. Accordingly, where a document earlier admitted does not carry any probative value by virtue of the Evidence Act in the light of the live issues before the Court, the Judge can expunge the document or disregard it in the course of evaluating the totality of the evidence before him to enable him arrive at a proper decision.”
In SHANU vs. AFRIBANK (supra) at 26, Uwaifo, JSC quipped as follows on the legal position:
“Issue estoppel, however, does not apply against a Court which rules that a piece of oral evidence or a document is admissible but later finds that in law or procedure it is not.
The duty of the Court to decide on legally admissible evidence is an exception to the rule that a Court is functus officio on taking a decision on a matter and cannot reverse itself on it, and is considered, I think, a stronger element of justice than issue estoppel that might have precluded it from later rejecting inadmissible evidence. The admissibility of a document or a piece of oral evidence may be contested by the parties and the trial Judge will normally rule on it. If in his ruling he admits the oral or documentary evidence, he may at the stage of writing his final judgment discover that it is not legal evidence at all. It cannot be considered a valid argument that because he gave a ruling to admit the evidence, he is bound to stick with his error. He has a duty to expunge the evidence and decide on legally admissible evidence. This can be done even at the stage of judgment and this extends to the matter at the appeal stage.”
Then he continued as follows at page 28:
“The principle is a strong one. It is that the Court is not permitted in any event to admit and act on legally inadmissible evidence. If such evidence has been admitted even by overruling an objection to its admission, the Court must reject it when giving its final judgment even if that amounts to overruling itself to do so. See also Olukade v Alade (1976) 1 All NLR (pt. 1) 67, Ayanwale v. Atanda (1988) 1 NWLR (Pt 68) 22, Sadhwani v. Sadhwani (Nig.) Ltd. (1989) 2 NWLR (Pt.101) 72, Agbaje v. Adigun (1993) 1 NWLR (pt. 269) 261.”
It is important to state that in taking a decision to expunge a document admitted in evidence at the stage of writing judgment, the Court does not raise the issue suo motu, as it is an issue which is already existing in the litigation. The duty of a Court is to decide a case on legally admissible evidence. Where the parties have put a document before the Court as legally admissible evidence and the Court in the course of writing its judgment finds that it is not legally admissible evidence, expunging the same would not be raising an issue suo motu since the parties had already put the issue before the Court. See IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE (2008) 6 NWLR (PT 1084) 612 at 642 or (2008) LPELR (1476) 1 at 28-29 and ENEKWE vs. IMB LTD (2006) LPELR (1140) 1 at 25. In OTU vs. ANI (2013) LPELR (21405) 1 at 31-34, Garba, JCA [now JSC] quipped:
“…it is clear that so long as the issue is derivable from the facts and evidence of the parties before the Court, the Court cannot be said to have raised it suo motu for reason only that it used particular words or phrases not used by the parties to describe the issue.”
By all odds, it is settled law that a Court should not raise an issue suo motu and unilaterally resolve the same without affording the parties a hearing, particularly the party that may be adversely affected by the issue raised. OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (19030) 1 at 25, LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 11-12 and SANI vs. AYE (2022) LPELR (58094) 1 at 12. But as already stated, what the lower Court did in the circumstances of this matter was not raising an issue suo motu, but taking a decision on an issue that already existed in the litigation, id est, admissibility vel non of documentary evidence. See generally ADEMOK CONTINENTAL LIMITED vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 11-16, SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 75-79, TOWOJU vs. GOV OF KWARA STATE (2005) LPELR (5390) 1 at 38-39, CHIDI vs. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR (44384) 1 at 16-24, TSEGBA vs. REGD TRUSTEES OF MISSION HOUSE (2018) LPELR (44242) 1 at 51-52, FCMB vs. ACTION ALLIANCE (2018) LPELR (44445) 1 at 10-11 and FINNIH vs. IMADE (1992) 1 NWLR (PT. 219) 511 at 537.
I gave due consideration to the case of NWOSU vs. UDEAJA (supra) relied upon by the Appellant in support of its contention that the lower Court was wrong in expunging Exhibit A3 from the evidence. In the said case of NWOSU vs. UDEAJA (supra) the document admitted in evidence was expunged because the trial Court held that the document was irrelevant. As rightly, held by the apex Court at page 212 of the Law Report; the issue of relevance went to the weight to be attached to the document, since it had been admitted in evidence already. This is in contradistinction to the instant case where the lower Court rightly expunged Exhibit A3 from the Records on the issue of admissibility for being secondary evidence of a public document which had not been certified as required by Section 90 (1) (c) of the Evidence Act. It is instructive that the Appellant did not appeal against this express finding that Exhibit A3 is inadmissible because it is not a certified copy. The said finding is therefore taken as accepted by the Appellant to be correct and it remains subsisting, binding and unassailable. See OBASI vs. ONWUKA (1987) 3 NWLR (PT 61) 364, NDIWE vs. OKOCHA (1992) 7 NWLR (PT 252) 129, ADEJUMO vs. OLAWAIYE (2014) 12 NWLR (PT 1421) 252 and ANYANWU vs. OGUNEWE (2014) LPELR (22184) 1 at 47. In the diacritical circumstances of this matter, I make bold to hold that the lower Court had the vires and was justified in law and on the facts when it expunged the said Exhibit A3 from the Record. NWABUOKU vs. ONWORDI (supra) and SHANU vs. AFRIBANK.
Arguendo, even if the lower Court was wrong in expunging Exhibit A3 from the Records, it would be wrongful rejection or exclusion of evidence and it will not willy-nilly result in the judgment of the lower Court being set aside. By Section 251 (2) of the Evidence Act, the wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it appears to the Court on appeal that had the evidence excluded been admitted it may reasonably be held that the decision would have been the same. See OKOBIA vs. AJANYA (1998) LPELR (2454) 1 at 17-18, OGUNSINA vs. MATANMI (2001) 9 NWLR (PT 718) 286, OMOMEJI vs. KOLAWOLE (2008) LPELR (2650) 1 at 22, TYONEX (NIG) LTD vs. PFIZER LTD (2020) 1 NWLR (PT 1704) 125 and YAKUBU vs. ODIDI (2022) LPELR (57897) 1 at 30. So, it is not enough for it to be shown that a piece of evidence was wrongly admitted or excluded, it has to be further shown that if the evidence had not been admitted or excluded, that the decision would have been different. See OJENGBEDE vs. ESAN (2001) LPELR (2372) 1 at 31-32, OKOBIA vs. AJANYA (supra) and OMOMEJI vs. KOLAWOLE (supra).
Where an issue of wrongful admission or exclusion of evidence is raised, there are three options open to the appellate Court by virtue of the stipulations of Section 251 of the Evidence Act. These options are: the evidence may be left intact, regarding it as properly admitted or rejected; the Court may expunge the evidence wrongly admitted or in case of evidence wrongly rejected or excluded, order a retrial directing its admission. The decision of the Court of trial can only be reversed in any event, if the evidence wrongly admitted or rejected affected the decision of the Court. See DUNALIN INVESTMENT LTD vs. BGL PLC (2015) LPELR (26001) 1 at 96-97, IDUNDUN vs. OKUMAGBA (1976) LPELR (1431) 1 at 22-23 and DUROSARO vs. AYORINDE (2005) LPELR (967) 1 at 21-22. The pertinent question is whether the exclusion of Exhibit A3 affected the decision of the lower Court. It would not appear to have affected the decision. I will explicate.
The lower Court having discountenanced the said Exhibit A3, proceeded and held that if the said Exhibit A3 had not been discountenanced, that it would still not have any probative value. Hear the lower Court at page 136 of the Records of Appeal:
“Even if Exhibit A3 is not discountenanced, there is nothing to show that it is duly executed, stamped and registered or that the grantor has the authority and capacity to make the grant having regard to Exhibit A8.”
This finding on the lack of probative value of Exhibit A3, even if it had not been discountenanced, has not been challenged on appeal. It remains subsisting and binding and an appellate Court cannot interfere. See KOYA vs. UBA LTD (1997) 1 NWLR (PT 481) 251 at 266, UDOM vs. E. MICHELETTI & SONS LTD (1997) 8 NWLR (PT 516) 187 at 200 and ADAMU vs. ESONANJOR (2014) LPELR (41137) 1 at 29-30.
The Appellant prosecuted this appeal on the very narrow restrictive issue of whether the lower Court was justified in expunging Exhibit A3 after it had admitted the same in evidence. I have held that the lower Court has support and justification in law for so doing and that even if it did not, which I maintain that it did, the exclusion of the said Exhibit A3 from the evidence did not affect the decision in the case; since as held by the lower Court, and which finding was not appealed against, the said Exhibit A3 did not have probative value and was not such that could ground a favourable judgment in favour of the Appellant for a declaration that it is the rightful owner of the disputed land.
Indubitably, the sole issue for determination must perforce be resolved against the Appellant. The appeal is devoid of any merit whatsoever. It fails and it is hereby dismissed. The decision of the lower Court is affirmed. The Respondent is awarded the sum of N100,000.00 as costs of this appeal.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA just delivered. I agree with his conclusions that the appeal is devoid of merit and it is consequently dismissed.
I abide by the consequential orders.
BATURE ISAH GAFAI, J.C.A.: I have before now read in draft the judgment delivered by my learned brother Ogakwu, JCA. I agree entirely with the reasonings expressed therein and the conclusion thereby reached. I adopt those reasonings as mine by which I too find no merit whatsoever in the arguments of the learned counsel for the Appellant under the sole issue he argued in the appeal. It is not only a right but the duty of a trial Court to discontinuance or even expunge from its records an inadmissible document or evidence it had previously accepted or admitted as evidence. That is the hallmark of Section 251 of the Evidence Act 2011 when it provided, contrary to the issue formulated by the Appellant, that:
“251 (1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.
(2) The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it appears to the Court on appeal that had the evidence excluded been admitted it may reasonably be held that the decision would have been the same.”
I am in full agreement with my learned brother, Ogakwu, JCA that the lower Court’s finding on Exhibit “A3” (supra) is irreproachable and more importantly did not affect the decision or the justice of it. Whether it was expunged or not, Exhibit “A3”, by its feature, could not add any meaningful value to the Appellant’s case.
In consequence, I too find this appeal devoid of any merit, liable to be and is dismissed by me also.
I further abide by the order on cost made in the lead judgment.
Appearances:
A. I. Abbas, Esq. For Appellant(s)
Felix Tyokase, Esq. For Respondent(s)
