NTOE ANDREW & ORS. v. THE CONGREGATIONAL BOARD, ISHIE PRESBYTERIAN CHURCH & ORS. (2013)

NTOE ANDREW & ORS. v. THE CONGREGATIONAL BOARD, ISHIE PRESBYTERIAN CHURCH & ORS.

(2013)LCN/5847(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 16th day of January, 2013

CA/C/48/2012

RATIO

EVIDENCE: WHAT GOVERNS THE ADMISSIBILITY OF ANY PIECE OF EVIDENCE

Let me start a consideration of the issue in the appeal by saying that the law, ordinarily and generally, is that the admissibility of any piece of evidence documentary or otherwise, in judicial proceedings, civil and criminal, before courts or tribunals established by statutes, including the constitution, is governed by relevancy under the provisions of Section 1 of the 2011 Evidence Act (Section 6 of the 2004 Act).The provisions of the section say that evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue or of such other facts as are declared by the Act to be relevant and of no other. Exceptions are however made to the provisions in the following circumstances:-

a) the court may exclude of facts which though relevant or deemed relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case, and
b) the section shall not enable a person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.

Section 2 of the Act makes all evidence given in accordance with the provisions of section 1, admissible in judicial proceedings to which the Act supplies unless excluded by law. PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: RELATIONSHIP BETWEEN RELEVANCE AND ADMISSIBILITY OF A PIECE OF EVIDENCE

In respect of documents, their admissibility is also based on relevancy and once they are shown by the facts in the pleadings of a party to be relevant to the issue in dispute between the parties and which calls for determination by the court, then they are admissible in evidence. The law in this regard is that the documents do not need to be specifically pleaded to be admissible in evidence so long as facts to which the documents relate and support, are pleaded, such documents can be tendered and are admissible as evidence of the facts pleaded. In the case of Monier Constr. Co. Ltd. v. Azubuike (1990) 3 NWLR (136) 74 at 86 – 7: Agbage, JSC, had explained the position as follows:

“It is submitted by counsel for the defendant that Exhibits A, B, and D are inadmissible because they are not pleaded. The short answer to that, as I have shown earlier on in this judgment, these documents each of them are tendered as evidence of facts pleaded in the plaintiff’s statement of claim. This being so, it is the law that they should not be pleaded. In this regard, I refer to the decision of this court in Thanni v. Saibu (1977) 2 SC 89 at p.116 where Sowemimo, JSC, as he then was, delivering the judgment of this court said:-

“Further, with respect to the submission of learned counsel that these Exhibits should not have been received in evidence (and if received should not have been acted upon because the appellants failed to plead the same). We think, attention should be drawn to the provision of Order XXXII rule 5 of the Supreme Court Civil Procedure Rules Cap. 211 Vol. X 1948 edition of the Laws of Nigeria applicable in the Lagos State High Court of the time of the hearing by the High Court of these proceedings which read:-

“Every pleading shall contain statement of all material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively, and each paragraph containing as nearly as may be a separate allegation.”

In the later case of Allied Bank Ltd. v. Akubueze (supra) the law was succinctly and concisely restated by the apex court at page 140 when it stated that:-

“documentary evidence, to be admissible in evidence, needs not be specifically pleaded, so long as the relevant facts and not the evidence by which such a document is covered are pleaded.” PER MOHAMMED LAWAL GARBA, J.C.A.

PLEADINGS: RULES OF PLEADINGS

Since by established rules of pleadings, only facts are to be pleaded and not the evidence by which they are to be proved, documentary evidence or unpleaded documents, depending on the nature of a claim in a case and state of the pleadings, may constitute evidence by which the material facts pleaded are to be proved and so would be admissible in evidence. See Lawal v. G. B. Olivant (2012) 1 ALL NLR, 207; Akande Talaga (1988) 4 NWLR 80; Ifeadi V. Atedze (1986) 13 NWLR (Pt.581) 205; Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175, Okonkwo v. Co-op & Comm. Bank Plc (2003) 8 NWLR (PT.822) 347; Monier Const. Co. v. Azubuike (supra). PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: CRITERIA GOVERNING THE ADMISSIBILITY OF A DOCUMENT

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 accorded or ascribed thereto, is another. Generally, three main criteria govern the admissibility of a document in evidence as follows:-

i) whether the document is pleaded
ii) whether the document is relevant to the issues being tried in the case and

iii) whether the document is admissible in law. See Okonji v. Njokanma (1991) 11 & 12 SCNJ, 259 at 275; Oyediran v. Alebiosu II (supra); Dunniya v. Jimoh (1994) 3 NWLR (Pt.334) 609 at 617: Udoro v Governor of Akwa Ibom State (2010) 11 NWLR (Pt.1205) 322 at 328. PER MOHAMMED LAWAL GARBA, J.C.A.

EVIDENCE: WHETHER ADMISSIBILITY OF EVIDENCE IS DIFFERENT FROM THE PROBATIVE VALUE ASCRIBED TO IT

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. NTOE ANDREW
2. CHIEF BASSEY E. A. ODO
3. CHIEF PATRICK AGBOR O. EDEM
(For themselves and on behalf of Kasuk Qua Clans, Calabar) Appellant(s)

AND

1. THE CONGREGATIONAL BOARD, ISHIE PRESBYTERIAN CHURCH
2. LAND LEASE COMMITTEE OF ISHIE PRESBYTERIAN CHURCH
3. THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the decision of the High Court of Cross River State, sitting at Akpabuyo, contained in a ruling delivered on the 18/10/2011 in the suit of the Appellants No. HC/15/2011. The Appellants had tendered some documents through a witness from the National Archives, Enugu during the trial of the suit and the High Court had rejected the documents in evidence on the ground that they were not pleaded or on pleaded facts of the Appellants pleadings.
Being aggrieved by the rejection of the documents, the learned counsel for the Appellants had filed the notice of appeal against the ruling on the 31/10/2011 wherein three (3) grounds of dissatisfaction were set out.

In the Appellants’ brief filed on the 9/3/2012, the learned counsel for the Appellants, Chief Orok Ironbar had respectfully posited a single issue for determination in the appeal as follows:-

“Whether the trial court understood the case of the Appellants and was justified in rejecting the documents tendered through the subpoenaed witness from the National Archives, for not being pleaded.”

For Essien H. Andrew, Esq., learned counsel who settled the Respondents’ brief filed on the 27/3/12, the issue for decision in the appeal is:-

“Whether the learned trial judge was right to reject in evidence the documents in issue for not being on pleaded facts.”

Undoubtedly, the meat of the two issues above is the same although the amount of fat in both may be slightly different. Their common substance is whether the High Court was right to have rejected the documents in question on the ground that they were not pleaded or on pleaded facts. At the hearing of the appeal on the 27/11/12, the learned counsel for the Appellant had adopted and relied on the Appellants’ brief as his submissions in support of the appeal. He urged us to allow the appeal. The Respondents’ brief was adopted by Asuquo Akan, Esq. who urged us to dismiss the appeal.
The submissions of the learned counsel for the Appellants on the issue are that the documents were relevant to the proceeding relying on Sections 4, 5, 7 and 9 of the Evidence Act, 2011 but particularly Section 9 which provides that:-

“9. Facts not otherwise relevant are relevant-

(a) If they are inconsistent with any fact in issue or relevant fact;

b) If by themselves or in connection with other facts they make the existence of non -existence of any fact in issue or relevant fact probable or improbable.”

According to him, the principal fact in issue in the Appellants’ case is that the document registered as 35/35/360 Calabar and admitted as Exhibit 3 was forged and/or non-existent and so anything that shows that it may not exist is very material and relevant. He argued that documents from whatever custody that go to show that on the dates relating to Exhibit 3, no order or ruling or judgment of court or other proceedings authenticating it happened, is not only relevant but pleaded. Further, that in paragraphs 11 – 14 of the Appellant’s Amended Statement of Claim, it was pleaded that exhibit 3 did not exist or was fraudulent and so documents from the National Archives on the dates to show that they do not have the Exhibits 3, is in consonance with the pleaded facts.

It was also contended by the learned counsel for the Appellants that the cross-examination of the witness from the National Archives on the documents rejected confirms that the documents were relevant and that relevancy on the authority of Abubakar v. Waziri (2008) 14 NWLR (1108) 386, (08) 2 MJSC and Abdul v Benue State University (2003) 16 NWLR (485) 59 governs admissibility of evidence. The case of Allied Bank Ltd. v. Akubueze (1997) 6 SCNJ 116 was also cited by Chief Ironbar on the principle of law that documents need not be specifically pleaded to be admissible so long as relevant facts relating to the documents have been pleaded. He maintained that the ruling of the High Court had ignored the averments in paragraph 13 (1) of the Appellants amended statement of claim and so was perverse. Finally, it was contended that the High Court had rejected exhibits/evidence which it called for to resolve the pending dispute before it. We were urged to resolve the issue in favour of the Appellants, set aside the ruling of the High Court and order the admission of the documents in question, in evidence. Sections 52 of the Evidence, 2011 was brought to our attention of the hearing of the appeal as additional authority by Chief Ironbor.

For the Respondent, because the Appellants’ argument in the appeal is said to be that the documents rejected were relevant to the facts pleaded in paragraph 13 (1) of the amended statement of claim in particular, the averment was set out and it was argued that the documents, also listed in the Respondent’s brief, were irrelevant to the facts pleaded in the amended statement of claim. It was the Respondents’ submission that what the Appellants pleaded was a court order allegedly made on the 4/5/1935 but that the said order was not part of or among the documents tendered and that copies and particulars of suit No. 9/1931 were pleaded but not tendered by the Appellants. Furthermore, that the Appellants had pleaded that suit No.8/1931, was not found of the High Court Registry, Calabar or at the National Archives, Enugu and that their proof that the said suit did not exist were a letter from the Principal Registrar of the Cross River State High Court and testimonies from National Archives and Lagos Lands Registry in suit No.HC/43/2002.
The learned counsel for the Respondents had submitted that none of the pleaded documents were tendered and that the ones tendered by the Appellants were therefore not on any of the facts pleaded in the amended statement of claim. He said the law is settled that evidence on facts not pleaded goes to no issue and the principle applies to documentary evidence, citing Allied Bank v. Akobueze (supra) at 130 – 1 and Nwogu v. INEC (2010) ALL FWLR (515) 35 at 374. In further argument, learned counsel said the con in which the Appellants mentioned suit No. 8/1931 in their pleadings was that there was no regard of the case at the High Court Registry and National Archives and so the purported record of the case which they sought to tender from the National Archives was at variance with their pleadings. Reference was made to the case of Allied Bank v. Akabueze (supra) at 40 – 3 on the principle that evidence which is of variance with the pleadings would go to no issue. The Respondents were said to in order in their cross examination of the witness from the National Archives with a view to discrediting the Appellants’ case on the existence or otherwise of suit No.8/193. In conclusion, we were urged to dismiss the appeal because the Appellants have not been able to fault the ruling of the High Court.

a) the court may exclude of facts which though relevant or deemed relevant to the issue, appears to it to be too remote to be material in all the circumstances of the case, and
b) the section shall not enable a person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.

Section 2 of the Act makes all evidence given in accordance with the provisions of section 1, admissible in judicial proceedings to which the Act supplies unless excluded by law.

The test to be applied in considering whether evidence is admissible therefore, is its relevance to the facts in issue in a case. Relevancy of a piece of evidence is the relationship it has with the facts or issues in the case or matter, which governs its admissibility. Admissibility on its part, as seen in the provisions above, is dependent on the law and principles of practice and so a piece of evidence may be relevant but depending on the position of the law, may not be admissible in evidence, though admissibility itself is based on relevancy generally. The law is that what is not relevant is not admissible in evidence as it would be of no use in a case. See Agunbiade v Sasegbon (1968) NMLR 223 at 226; Torti v. Ukpabi (1984) 1 SC, 370; Oyediran v. Alebiosu II (1992) 6 NWLR (249) 550 at 559; Fawehinmi v N.B.A. (No.2) (1992) 2 NWLR (105) 558 at 583; Agbahomovo v. Eduyegbe (1999) 3 NWLR (594) 170 at 183.
In respect of documents, their admissibility is also based on relevancy and once they are shown by the facts in the pleadings of a party to be relevant to the issue in dispute between the parties and which calls for determination by the court, then they are admissible in evidence. The law in this regard is that the documents do not need to be specifically pleaded to be admissible in evidence so long as facts to which the documents relate and support, are pleaded, such documents can be tendered and are admissible as evidence of the facts pleaded. In the case of Monier Constr. Co. Ltd. v. Azubuike (1990) 3 NWLR (136) 74 at 86 – 7: Agbage, JSC, had explained the position as follows:
“It is submitted by counsel for the defendant that Exhibits A, B, and D are inadmissible because they are not pleaded. The short answer to that, as I have shown earlier on in this judgment, these documents each of them are tendered as evidence of facts pleaded in the plaintiff’s statement of claim. This being so, it is the law that they should not be pleaded. In this regard, I refer to the decision of this court in Thanni v. Saibu (1977) 2 SC 89 at p.116 where Sowemimo, JSC, as he then was, delivering the judgment of this court said:-
“Further, with respect to the submission of learned counsel that these Exhibits should not have been received in evidence (and if received should not have been acted upon because the appellants failed to plead the same). We think, attention should be drawn to the provision of Order XXXII rule 5 of the Supreme Court Civil Procedure Rules Cap. 211 Vol. X 1948 edition of the Laws of Nigeria applicable in the Lagos State High Court of the time of the hearing by the High Court of these proceedings which read:-
“Every pleading shall contain statement of all material facts on which the party pleading relies, but not the evidence by which they are to be proved, such statement being divided into paragraphs numbered consecutively, and each paragraph containing as nearly as may be a separate allegation.”
In the later case of Allied Bank Ltd. v. Akubueze (supra) the law was succinctly and concisely restated by the apex court at page 140 when it stated that:-
“documentary evidence, to be admissible in evidence, needs not be specifically pleaded, so long as the relevant facts and not the evidence by which such a document is covered are pleaded.”
Since by established rules of pleadings, only facts are to be pleaded and not the evidence by which they are to be proved, documentary evidence or unpleaded documents, depending on the nature of a claim in a case and state of the pleadings, may constitute evidence by which the material facts pleaded are to be proved and so would be admissible in evidence. See Lawal v. G. B. Olivant (2012) 1 ALL NLR, 207; Akande Talaga (1988) 4 NWLR 80; Ifeadi V. Atedze (1986) 13 NWLR (Pt.581) 205; Okeke v. Oruh (1999) 6 NWLR (Pt.606) 175, Okonkwo v. Co-op & Comm. Bank Plc (2003) 8 NWLR (PT.822) 347; Monier Const. Co. v. Azubuike (supra).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 accorded or ascribed thereto, is another. Generally, three main criteria govern the admissibility of a document in evidence as follows:-
i) whether the document is pleaded
ii) whether the document is relevant to the issues being tried in the case and
iii) whether the document is admissible in law. See Okonji v. Njokanma (1991) 11 & 12 SCNJ, 259 at 275; Oyediran v. Alebiosu II (supra); Dunniya v. Jimoh (1994) 3 NWLR (Pt.334) 609 at 617: Udoro v Governor of Akwa Ibom State (2010) 11 NWLR (Pt.1205) 322 at 328.
Applying these tests to the documents in issue in this appeal, the Appellants’ case is that although the documents were not specifically pleaded by them, facts to which they relate and are in support of have been pleaded in paragraphs 11 – 14 of their Amended Statement of Claim filed on the 17/6/2011 which is at pages 4 – 9 of the record of the appeal. The paragraphs are as follows:-
“11. The plaintiffs upon further enquiries stumbled upon a pamphlet titled – ‘A short History of Ishie Church’ dated 10/01/1981, where the Defendants falsely claimed to have bought the plaintiffs land by Public Auction for the use of Ishie Presbyterians Church.
12. The plaintiffs on further search/enquiries stumbled on the document registered as No.35 at page 35 in volume 360 of the Register of deeds allegedly formerly kept in the Lands Registry at Lagos but now kept in the Lands Registry in the office at Calabar.
13. The Plaintiffs were dumb founded to find out that the defendants had fraudulently, irregularly, dishonestly and in a manner that is very unchristian-like smuggled for registration in existent proceedings/order of court and a plan with no defined area of land purchased and/or sold supposedly signed by one Thompson George-Licensed Surveyor about October 1927, claiming same to be true purchased land.

PARTICULARS OF FRAUD/CROSS IRREGULARITY
i) The suit number is not clear on the supposed court order dated 04/05/1935 and copies or particulars of suit No. 9/1931, suit No.8/1931 are not found in the Calabar High Court Registry nor of the National Archives, Enugu. Letter from the Principal Registrar of the Cross River State High Court is hereby pleaded. Also pleaded are the testimonies of representatives of National Archives and Lagos Lands Registry in suit No.HC/43/2002.
ii) The said court order was unsigned, uncertified and the plan of land mentioned therein unrelated to the suit and parties.
iii) Even the plan apart from not showing o defined area of purchase showed the presence of some third party land owners thereon whose lands were thereby claimed through fraudulent registration.
iv) The deed was irregularly submitted for registration by one O. Mkpanam, of Ishie Church and Ishie Town, Calabar, who was an interested party and did not attach thereto receipt of purchase, plan of the area sold, judgment showing indebtedness, court order for the sale, bailiffs report and warrant for possession, etc.
v. The fraud was confirmed by the testimony of National Archives and Lagos Lands Registry in Suit No.HC/43/2002.
vi. The use of pamphlet of 10/11/1981, by the defendants in support and to attempt to authenticate the story of purchase by public auction.
vii. The real registration being 35/35/360, Lagos, exists and there had been no other before or after that.
14. Based on the above the defendants fraudulently reproduced plan No. in 204 containing a total area of 221,411 acres signed on 05/06/71 by the Surveyor General as Plan showing the Landed Property of Ishie Presbyterian Church.”
By these averments, the learned counsel for the Appellants has contended that the Appellants have pleaded non existence and fraud in respect of Exhibit ‘3’ and specifically in paragraph 13 (1), that the document was not available of the National Archives. That the documents tendered but rejected related to the fact that National Archives do not have Exhibit ‘3’ and so in consonance with the pleaded facts.
In the ruling appealed against, the High Court had listed the documents tendered by the Appellants as follows:
a) Certified True Copy from National Archives of Suit No. 4/30 (William Cobham alias Ewa Ekpe v Okon Effiom Ansa & Anor)
b) Suit No. 6/30
c) Suit No. 4/1932 (Heggs Bruce Jojo v. Sodiaye)
d) Suit No. 8/31 (Elias Solomon v Edem Edet)
e) Suit No. 13/13-1931.”

The High court later in the same ruling held that:-

“However I have carefully perused the claimants amended statement of claim filed on 17/6/11 and their reply to Further Amended statement of Defence to see where the documents are pleaded to no avail. I have also failed to see where facts relating to the aforesaid documents are pleaded……The documents aforesaid are hereby rejected…”

Now, the claims made by the Appellants against the Respondents on the facts set out in the pleadings, are in paragraph 24 of the Amended Statement of Claim and thus:

1. A declaration that the documents/papers registered as No. 35 at Page 35 in Vol.360 of the Register of Deeds formerly kept in the Lands Registry at Lagos but not kept in the Lands Registry in the office of Calabar, is forged and non-existent

2. An Order of court canceling the registration made in the Calabar Lands Registry (formerly Lagos Registry) as No. 35 at page 35 in Vol.360, having been fraudulently and/or irregularly done.

3. An Order of court that plan No. In/204 of 221,411 acres signed by the Surveyor General on 05/06/71, is irregular, null, void and of no effect whatsoever.

4. An Order of court that the claimants are entitled to the Certificate of Occupancy over off those lands comprised within the forged document Registered as 35/35/360, Calabar, formerly Lagos and Plan No.IN/204.

5. An Order of court canceling all leases, conveyances and all transactions touching these fraudulently registered lands made by the Defendants, their agents, servants and assigns.

6. An Order of court cancelling within the area in Plain No. IN/204 all names of Street, Road, Lanes, Bus stops, etc. which show or suggest ownership of the land in the defendants or directly named after the defendants, their servants, assigns and privies, etc.

7. An Order of Perpetual Injunction restraining the Defendants by themselves, their servants, agents and/or assigns from leasing or dealing in anyway with the Claimants lands and from repeating or continuing the acts complained of, etc, without the consent and authority of the claimants.

8. An Order of court for the defendants to render an up to date account and to surrender all the proceeds/moneys that have come into their hands from their dealings with the said lands.

9. N25 million damages.

Read calmly and in community, the facts averred in paragraphs 11-14 of the Appellants Amended Statement of Claim and the Claims in Paragraphs 24 above, show prima facie that their case was that the document registered as No.35 at page 35 of Vol.360 of the Register of Deeds in the Lands Registry, Calabar was not existent and forged. The particulars of the forgery were out in details in paragraph 13 as set out above. Based on these facts, the Appellants claimed injunction and damages for trespass, thus title to the land in dispute, against the Respondents. Particulars of the suits No.8/1931 and No.9/1931 are said not to be found in Calabar High Court Registry or National Archives, Enugu.
Except for the suit No.8/31 listed as one of the documents rejected by the High Court, there would appear to be no other facts set out in the Appellants pleadings which relate to or which the other documents support in the Appellants case.
Like the High Court, I am unable to find facts in the other documents relevant to the issue of whether Exhibit ‘3’ was non existent and forged and proof of their claim for title to the land in dispute in the case before the High Court. It may be recalled that exhibit ‘3’ was said by the Appellants to be “allegedly a court order or ruling or certification in suit No.1 or 9/1931, dated at Calabar on 4/5/1935, between Elias Solomon v. Edem Edet.” There are no facts which link the Appellants’ case to the other documents tendered by them through the witness from the National Archives. However, the document in respect of suit No.8/1931 tendered is related to and relevant to the determination of whether any order was made by the court in it and whether Exhibit ‘3’ existed or was forged. To the extent that the said document was relevant to the issue in dispute and relate and support the facts pleaded by the Appellants, the said document in my view, is admissible in evidence in line with the law stated in the authorities referred to earlier. See also Finnih v. Imade (1992) 1 NWLR (219) 511; Ekretsu v Oyobebere (1992) 9 NWLR (266) 438; Odunsi v Bamgbala (1995) 1 NWLR (374) 641: Ezegba v. Ibeneme (2004) 14 NWLR (894) 617.

Perhaps I should emphasise here that admissibility of a piece of evidence in proceedings is distinct or different from the probative value or worth to be ascribed to it in the process of evaluation of evidence in the determination of the issues joined by the parties.
Because the trial of the case in respect of which this appeal was brought is going on, it would be sufficient for me to limit this judgment to the finding that only the document in respect of suit No. 8/1931 tendered by the Appellants is relevant to their case and related to the fats they pleaded and so in admissible.
In respect of the other documents tendered, that is
a) Certified copy of suit No. 4/30
b) Suit No. 6/30
c) Suit No. 4/1932 (Heggs B. Jaja v Sodiaye)
d) Suit No. 13/13 – 1931
there are no facts in the Appellants’ pleading to which they relate or support and so not relevant to their case. I also find no relevant facts in the Appellants’ pleadings that are linked to these documents to make the existence or non existence of exhibit ‘3’ probable or improbable in their case. The mere fact the Appellants had pleaded the testimonies of representatives of the National Archives in paragraph 13 (1) of the amended statement of claim does not amount to or qualify as pleading facts connecting the said documents to any relevant fact of their case. They are for that reason, not admissible in evidence and the High Court was right to have rejected them in evidence.
In the final result, the Appellants appeal succeeds in part and allowed in the above terms. The document in suit No.8/31 is admissible and is hereby directed to be admitted as part of the evidence adduced by the Appellants in the proceedings before the High Court. The appeal fails in respect of the other documents and they remain rejected and marked as such in the Proceedings.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I agree with his reasoning and final conclusions. In support of the conclusions reached in the lead judgment, documents not pleaded are inadmissible in law, and if inadvertently admitted should certainly be expunged from the records.
Zenon Pet & Gas vs. Idrisiyya Ltd (2006) 1 NWLR Pt.982 page 221.
I agree with the trial Judge that those documents were neither pleaded nor the facts relating to them pleaded.
This assertion were also affirmed by my learned brother. I have no difficulty in agreeing with them, that the documents and the facts relating to them were not pleaded.
For this and the fuller reasons in the lead judgment, I allow the appeal in part. I also abide by all the orders in the lead judgment.

ONYEKACHI A. OTISI, J.C.A.: I have had the opportunity of reading the Judgment of my learned Brother, Mohammed Lawal Garba JCA in this appeal.
All issues raised by the parties for determination have been sufficiently resolved therein. I am in complete agreement with the Judgment and I abide with the Orders made.

Appearances

Chief Orok Ironbar, Esq.For Appellant

AND

Essien H. Andrew, Esq.For Respondent