AGHAEGBUNAM ILOABACHIE & ORS. V. ANOSIKE ILOABACHIE
(2005)LCN/1708(CA)
In The Court of Appeal of Nigeria
On Thursday, the 17th day of March, 2005
CA/E/97/2003
RATIO
The appeal is of right as provided for in section 241 (1)(b) of the 1999 Constitution which reads: “(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases: (b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.” Be that as it may, I am not impressed by the insistence of the appellants’ counsel to pursue this interlocutory appeal. The issues raised in this appeal can easily wait for the final decision of the court below and be taken together with the main appeal, if necessary, depending on the outcome of the case. PER OGEBE, J.C.A.
ACTION: EFFECT IF ANY EVIDENCE THAT IS AT VARIANCE WITH THE PLEADINGS BEFORE THE COURT
It is trite law that any evidence which is at variance with the pleadings goes to no issue and should be disregarded by the court. See the case of Obalaja v. Etikan (1998) 6 NWLR (Pt. 553) 320. PER OGEBE, J.C.A.
JUSTICES
JAMES OGENYI OGEBE Justice of The Court of Appeal of Nigeria
OLUFUNLOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria
JAAFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
Between
- AGHAEGBUNAM ILOABACHIE
2. CHUKWUKA ILOABACHIE
3. THOMPSON ILOABACHIE Appellant(s)
AND
ANOSIKE ILOABACHIE Respondent(s)
OGEBE, J.C.A. (Delivering the Leading Judgment): This appeal arose from a land dispute between the respondent and the appellants in the High Court of Ogidi, Anambra State where the respondent sued the appellants in respect of family property. During the course of hearing, some documents namely exhibits A, B and C were sought to be tendered and an objection was raised to their admissibility by the appellants’ counsel. The trial court admitted them without giving any reasons. Evidence was also being laid on facts not pleaded and the learned counsel to the appellants objected and was overruled on each occasion without any reason assigned by the court. All these rulings took place on the 19th of March, 2002.
Dissatisfied with the rulings, the appellants appealed to this court on six (6) grounds of appeal. No leave of the trial court or this court was sought to appeal from the interlocutory rulings of the trial court and I would have been minded to strike out the appeal but for the fact that the grounds of appeal are all of law.
The appeal is of right as provided for in section 241 (1)(b) of the 1999 Constitution which reads:
“(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases:
(b) where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings.”
Be that as it may, I am not impressed by the insistence of the appellants’ counsel to pursue this interlocutory appeal. The issues raised in this appeal can easily wait for the final decision of the court below and be taken together with the main appeal, if necessary, depending on the outcome of the case.
The learned counsel for the appellants formulated four (4) issues for determination as follows:
(i) Whether the learned trial Judge was right in law when he admitted a document that was not pleaded as exhibit A?
(ii) Whether the learned trial Judge was right in law when he admitted exhibits Band C in evidence without giving any reason?
(iii) Whether the learned trial Judge was right in law when he admitted material facts in evidence which were not pleaded?
(iv) Whether the learned trial Judge was right in law when he delivered rulings to objection without giving any reason for same?”
The respondent did not react to this appeal and the appellants were granted leave to argue their appeal on the appellants’ brief alone.
On the first issue, the learned counsel for the appellants submitted that the respondent in paragraph 4 of the statement of claim averred that he would rely on minutes of family meetings held between 30th December, 1994 and December, 1996 all of which were taken by the 3rdappellant. He said that exhibit A which was admitted by the court was an address written by the respondent and not minutes of any meeting and the trial court was wrong in admitting it in spite of the objection of the appellants’ counsel. I agree with this submission.
It is trite law that any evidence which is at variance with the pleadings goes to no issue and should be disregarded by the court. See the case of Obalaja v. Etikan (1998) 6 NWLR (Pt. 553) 320. Only minutes of meetings written by the 3rd appellant between 30th December, 1994 to December, 1996 were pleaded in the statement of claim. The address, exhibit A did not constitute such minutes and was therefore wrongly admitted by the trial court. I hereby set aside that order admitting it and mark it exhibit “A” rejected.
On the second issue, the learned counsel for the appellants submitted that the trial court was wrong in admitting exhibits B and C without giving any reasons in spite of his objection. I agree with the learned counsel that a court of law must always give reasons for its decision. Decisions of a court should not be arbitrary but must be based on sound reasoning and conclusion. However, since exhibits B and C purport to be minutes of meetings prepared by the 3rd appellant within the time range pleaded in the statement of claim, (they were properly admitted by the trial court especially, as the 3rd appellant did not deny producing them. The question of what weight is to be attached to them is another matter altogether.
On the 3rd issue, the learned counsel for the appellant submitted that the trial court was wrong to have allowed the respondent to I give evidence on facts which were not pleaded. He referred particularly to the proceedings at page 23 of the record in which the trial court kept overruling his objection to such evidence without giving any reasons.
I agree with the submissions that the evidence given when the lower court wrongly overruled the objection of appellants’ counsel was not properly received by the trial court and it is hereby expunged from the record of the lower court.
On the 4th issue, the complaint of the learned counsel for the appellants is that the lower court was wrong in delivering rulings to objections without giving any reason for the same.
I have already answered this question that the trial court is duty bound to give reasons for its decision. However, in some cases where argument are presented by both sides and the ruling favours one side without stating the reason, it is implied that the reason is the same as contained in the submission of the party in whose favour the ruling is given.
In summary, this appeal is allowed and the order of the lower court admitting exhibit A is set aside as earlier done in this judgment. The evidence given which is at variance with the pleadings at pages 22 and 23 is also expunged. The case is remitted to the lower court for continuation of the trial. I make no order as to costs in the circumstances of this case.
ADEKEYE, J.C.A.: I had read in draft the judgment just delivered by my learned brother J.O. Ogebe, J.C.A. I agree with his reasoning and the conclusion reached in the four issues for determination. I also wish to reinforce the remarks in the lead judgment that counsel should minimize interlocutory appeals where this will have an effect of wasting the time of the court, prolonging trials and making litigation more expensive. Interlocutory appeals on admissibility of documents can conveniently wait and be included in the main appeal after the determination of a case.
I abide by the order made as to costs.
MIKA’ILU, J.C.A.: I have had the opportunity of reading the draft of the lead judgment delivered by my learned brother, J.O. Ogebe, J.C.A. I agree with reasoning and the conclusion reached therein. I also allow the appeal. The order of the court below admitting exhibit “A” is set aside. It has been decided in so many cases that evidence which is at variance with pleadings goes to no issue and should be disregarded and or expunged from the record. It has no where been pleaded by the parties. In respect of exhibits “B” and “C” they have been pleaded. Undoubtedly, a court of law is always expected to give sound reasoning in support of its decision in this case exhibits “B” and “C” have been pleaded. There was nothing before the trial court to warrant rejecting them in evidence. The mere fact that the trial court did not give reason for admitting them in itself does not warrant the appellate court to expunge them from the record.
I allow the appeal in the same terms as in the lead judgment. I also award no costs.
Appeal allowed.
Appearances
Chief U. UgoloFor Appellant
AND
Respondents absentFor Respondent
