DISU OLOMO v. SUNDAY APE
(2013)LCN/6663(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of December, 2013
CA/EK/54/2013
RATIO
WORDS AND PHRASES: RELEVANCY AND ADMISSIBILITY
A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. The converse position is also the law, and it is that a document which is irrelevant to the facts in issue is not admissible.
However where the situation is governed by the rule of law, as in the instant case, which touches on admissibility of a document where the provision of the Evidence Act come into play, although the Court may have its own discretion, such discretion must be exercised according to the ordinary principles laid down in the Evidence Act as set out above. It’s judicial discretion is founded upon those principles. And if a trial Judge refuses to do so, then the appellate Court will set the matter right. See R. v. STAFFORD JUSTICES (1940) 2 K. B. 33 AT 43.
Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight.
Relevancy, which propels admissibility, is invoked by the trial Judge immediately the document is tendered. If the document is relevant, the Judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be.
The criteria for admissibility of documents are pleading, relevance and admissibility in law. The court has a duty to reject inadmissible documents arising from its duty to act only on legal evidence. Thus documents relating to unpleaded facts cannot be used, see OKONJI v. NJOKANMA (1999) 12 SCNJ 295; IBWA v. IMANO (2001) 3 SCNJ 160. Per FATIMA OMORO AKINBAMI, J.C.A
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
FATIMA OMORO AKINBAMI Justice of The Court of Appeal of Nigeria
Between
DISU OLOMO
(For himself and on behalf of Olomo Family of Ado-Ekiti) Appellant(s)
AND
SUNDAY APE
(For himself and on behalf of Ape Family of Ado-Ekiti) Respondent(s)
FATIMA OMORO AKINBAMI, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal by the Appellant – who was the plaintiff at the lower court, against the ruling of the Ekiti state High Court per J. O. Adeyeye J, delivered on the 13th of March, 2013. The facts which led to this appeal are as follows:
The Appellant as plaintiff in the lower court claimed against the respondent as defendant in his further amended statement of claim filed on the 17th of September, 2012 as follows:
(1) Declaration that the plaintiff’s family is the one entitled to apply for a certificate of Statutory Right of Occupancy in respect of the entire Land lying situate and being at Oke Efon in Ado-Ekiti. The plaintiff shall file a composite plan.
(2) Fifty Million Naira (N50,000,000.00) general damages for continuing trespass.
(3) Forfeiture of the Defendant’s structure on the land in dispute.
(4) Perpetual injunction restraining the Defendant. His privies, agents, servants and anyone lawfully claiming through him from re-entering the land in dispute.
The Respondent as Defendant at the lower Court filed an Amended Statement of Defence on the 7th of April, 2008. The Defendant Counter-Claimed against the Plaintiff as follows:
(A) A DECLARATION that the Defendant and his family are the deemed holders of statutory right occupancy in respect of a large parcel of land lying and being at Agidimo/Omikurudu area of Ado-Ekiti bounded by Christ School Asa. Alamoji, Adebolu, Elerin Odunro and Akingbisu families, State Hospital interlaced by Ado-Iworoko Road otherwise known as State Hospital Road, Ado-Ekiti.
(B) A PERPETUAL ORDER OF INJUNCTION restraining the Plaintiff whether by himself, his agents, servants, assigns, privies, workmen, members of his family and anybody whosoever from further encroaching on the defendant’s aforementioned land either by way of selling, alienating, cultivating, developing or using the same in any manner whatsoever.
(c) Twenty Million Naira only (N20,000,000) being general damages against the Plaintiff for trespass and continuous acts of trespass on the Defendant’s family land lying and being at Agidimo/Omikurudu area of Ado-Ekiti.
Pleadings were filed, issues joined and the trial commenced. The appellant called seven witnesses in proof of his case, he sought to tender a survey plan through the seventh witness, the surveyor, and the respondent objected to the admissibility of the survey plan on the ground that it is one made in anticipation of this case and prepared during the pendency of this case. That it is settled law that any document prepared during the pendency of a suit is inadmissible. Learned Counsel noted that the survey plan sought to be tendered was made on the 7th of December, 2004. Whereas this action was instituted by the plaintiff on the 19th of January, 2004. He placed reliance on Section 83 (3) of the Evidence Act, 2011 (as amended) as well as Rule 4 of the Rules of the Ekiti State High Court. Also leaned respondent’s counsel contended that he was not served with a copy of the survey plan as required by the Rules of Court.
What led to this appeal is the fact that the Respondent objected to the admissibility of the survey plan on the ground that it was made during the pendency of the suit. This objection was upheld by the lower court and the survey plan was rejected in evidence and so marked.
Appellant’s counsel in his reply submitted that the Section of the Evidence Act relied upon by the Respondent is irrelevant. The learned trial Judge J. O. Adeyeye, in his Ruling on the 13th of March, 2013 “stated that it is clear that the survey plan was made on the 7th of December, 2004. Whilst this case was filed on the 19th of January, 2004. That the law is settled that any document procured during the pendency of a case is inadmissible. In the circumstances the survey plan having been made after the commencement of this case, is inadmissible in law, it is accordingly rejected.”
The Appellant being dissatisfied with the Ruling of the learned trial Judge filed a Notice of appeal, it’s against that Ruling that the Appellant has brought this appeal. The notice of appeal at pages 32 – 34 of the records dated 19th March, 2012 contains two (2) grounds of appeal. Appellant filed brief or Argument on the 4th of June, 2003 deemed properly filed on the 30th September, 2013. The grounds of appeal are:
(1) That the learned trial Judge erred in law and misdirected himself when he declared inadmissible the survey plan sought to be tendered by the Plaintiff’s witness and rejected same on the ground that the said document was a document made by a “person interested at a time when proceedings were pending and anticipated”.
(2) The learned trial Judge erred in law when he placed a wrong and unduly narrow interpretation to and/or misconstrued the proviso to the provisions of Section 83 (3) of the Evidence Act and thereby arrived at a wrong decision.
Mr. O. B. Akinola, learned counsel for the Appellant who settled the Appellant’s Brief of Argument formulated two (2) issues for determination of this appeal as follows:
(i) Whether the trial Court was not wrong in rejecting the survey plan sought to be tendered by the surveyor having regards to the particular circumstances of the case (Ground 1 of the Appellant’s Grounds of Appeal.)
(ii) Whether the trial court was not wrong in placing such a narrow interpretation on the words “person interested at the time when proceedings were pending or anticipated” in subsection 3 section 83 of the Evidence Act (Ground 2 of Appellant’s Grounds of Appeal).
It must be noted that, the Respondent was duly served hearing Notice through his Counsel A. T. Lawal Esq. on the 6th November, 2013. He failed to file Respondent’s Brief of Argument, neither was he represented by Counsel when this appeal came up for hearing on the 18th November, 2013.
The Appellant applied to be allowed to argue his appeal stating that the Respondent was already out of time.
This court granted the Appellant’s application to argue his appeal in the absence of any pending application i.e. for extension of time to file Respondent’s Brief of Argument. O. B. Akinola adopted appellant’s brief of argument and urged this Court to grant the appeal Appellant in his brief of argument applied for leave to take the two issues for determination together. In arguing Appellant’s brief, O. B. Akinola, Appellant’s Counsel submitted that first and foremost in challenging the interlocutory decision of the trial Judge it must be conceded that the survey plan No. OOA/EK/2004/049. Sought to be tendered by PW7, the surveyor, was dated 7th December, 2004 while the action was instituted by the Appellant on 19th January, 2004. It is therefore not difficult to observe that the action pre-dated the plan, and therefore was pending when the survey plan was made.
Learned Counsel submitted that the crucial question arising therefore in this factual situation is whether from the foregoing a conclusion supported by law could or ought to have been reached by the trial Judge. He answered the question anon. He stated that the law is settled that while the production of the survey plan is not a sine qua non to an award of declaration of title, it is also the position of the law that the most important ingredient in an action for declaration of title of Land is to show the Court with certainty the area of land in respect of which the claim is made.
In aid, he cited the cases of EPI & ANOR v. AIGBEDION (1972) 10 SC 53: MABERI v. ALADE (1987) 4 SC 184; EFETIROJE v. OKPALEFE (1991) 4 LRCN 1327 & 1347; ELIAS v. OMOBARE (1982) 5 SC 25; ARABE v. ASANLU (1980) 5-7 SC 78; OKPALOKO v. UMEH (1976) (9 – 10) SC 269.
Learned counsel submitted that in the particular circumstances, of their case, a survey was not only important it was sine qua non and that was precisely what the Appellant in his wisdom wanted to achieve by filling one and proceeding to tender same in evidence.
Learned Counsel submitted that the importance of a survey plan in the action is also underscored by the fact that it would have provided a veritable assistance to the trial Judge, if he finds in favour of Appellant on his claim, to make a pronouncement or declaration in respect of, or tied to a clearly defined area as delineated within the ambit of the plan.
Learned Counsel contended that in rejecting the survey plan as he did, the learned trail Judge had deprived himself of the opportunity of taking advantage of the plan which, upon a finding for the Appellant on his claim would have assisted him in making declaratory and injunctive orders on the said claim.
Learned Counsel submitted further that the action of the trial Judge has resulted in and occasioned a grave miscarriage of justice to the Appellant which can only be cured by directing him to admit the survey plan in evidence.
Learned counsel posed the question whether the fact that the plan post dates the suit in itself vitiated the plan to render it inadmissible and therefore liable to be rejected having regards to subsection 3 of section 83 of the Evidence Act?
Learned counsel argued that the survey plan is relevant to the determination of the issue of title of the land in dispute.
The learned counsel examined Section 83 (3) of the Evidence Act and stated that the word interested used in the Section has not been defined by the Evidence Act. But that Section 1 of the Evidence Act, 1938 of England is in pari materia with Section 83 of our Evidence Act. He cited in aid the case of BEARMANS LTD & ANOR v. METROPOLITAN POLICE DISTRICT RECEIVER (1961) 1 WLR 634 at 655; ELIZABETH ANYAEBOSI v. R. T. BRISCOE NIG LTD (1987) 6 SC 15 at 49-50. In further submission learned counsel stated that, the learned trial Judge fell into a grave error by ignoring the fact that two elements must be satisfied before a document under this subsection will become inadmissible, namely (a) the document is made by a person interested in the outcome of the proceedings materially or otherwise and (b) it was made during the pendency of the matter or when the matter was anticipated – See NWANGWA v. UBANI (1997) 10 NWLR (Pt. 526) 559.
Learned counsel argued that the proof of bias is lacking in this case. See HIGH GRADE MARITIME SERVICE LTD v. FIRST BANK OF NIG LTD (1991) 1 NWLR (Pt. 167) 390, 307; Group CAPTAIN A. G. GBADAMOSI & ORS v. KABO TRAVELS LTD & ORS (2000) 8 NWLR (Pt. 668) 243.
Learned counsel urged this Court to hold that the plan is admissible because the maker had no interest in the outcome of the proceedings other than in an official capacity. See the case of APENA v. AYETOBI (1989) 1 NWLR (Pt.95) 85.
The Learned counsel finally urged this Court to resolve the two issues against the Respondent and hold that the trial Court was wrong in sustaining the objections of the Respondent to the admissibility of the Appellant’s survey plan and to direct the trial court to admit same in advance.
The learned counsel for the appellant formulated two (2) issues for determination I had earlier in this judgment reproduced them. I will now proceed to assess the submissions of the appellant’s counsel. The first question that requires resolution by me is, whether the trail court was wrong in rejecting the survey plan sought to be tendered by the surveyor. The question calls into play the provisions of section 83 (3) of the Evidence Act 2011 (as amended).
To resolve these questions I think it is right at the onset to set out the provision of the Evidence Act Section 83(3) which provides “Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute or to any fact which the statement might tend to establish:”.
Coming to the first question of whether the trial court was not wrong in rejecting the survey plan sought to be tendered by the surveyor same having been prepared during the pendency of this suit.
Admissibility of Document – the doctrine behind not admitting a document made “when proceedings were pending or anticipated” under Section 83 (3) of the Evidence Act.
“On the question of the second arm of when proceedings were pending or anticipated,” there is no doubt that Section 83 (3) of the Evidence Act is anchored on the doctrine of his pendens which prevents the admission of documents made pende lite. Achike, JSC had in OGIDI & ORS v. DANIEL EGBA & ORS (1999) 10 NWLR (Pt. 621) 4 deprecated the admissibility of such documents made by interested parties pending litigation. He had held that the doctrine is common to both Courts of law and Equity. In the case of ABDULLAHI v. HASHIDU & ORS (1999) 4 NWLR (Pt. 638) at 645 – 647; Pats Acholonu, JCA (of blessed memory) that by the provisions of Section 91(3) of the Evidence Act, documents made during the pendency of an action for the purpose of the action and particularly after pleadings have been filed should not be admitted on the grounds that they lack evidential value and would tantamount to stealing a match against an opponent.
I must state that the provisions of section 83(3) of the Evidence Act bears very strongly on this question and it is clear, plain and unambiguous and so has to be literarily construed by giving the words therein their ordinary grammatical meaning. In the circumstances of this question, I think in resolving this matter one has to examine the provisions of Section 83(3) (supra) in the con of two crucial phrases; i.e. Who is, “a person interested and” when proceedings were pending or anticipated”. As regard the phrase “a person interested” I agree with the Appellant that the phrase has been examined in the case of EVON v. NOBEL (1949) IKB 222 at 225 where a person not interested in the outcome of an action has been described as, “a person who has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest but completely detached, judicially, impartial, independent”. In other words, it contemplates that the person must be detached, independent and non-partisan and really not interested which way in the con the case goes. Normally a person who is performing an act in his official capacity cannot be a person interested under section 83(3). I think the phrase “a person interested ever more so has been quite” definitively put in the case of HOLTON v. HOLTON (1946) 2 AER 534 and 535 to mean “a person who has a pecuniary or other material interest in the result of the proceeding – a person whose interest is affected by the result of the proceedings, and therefore would have a temptation to pervert the truth, to serve his personal or private ends. It does not mean an interest in the sense of intellectual observation or an interest purely due to sympathy. It means an interest in the legal sense, which imports something to be gained or lost”
I think that nothing will be gained by way of further commenting on the above self explanatory and very comprehensive definition covering “a person interested” in the outcome of any suit excepting to say in regard of the instant surveyor that he has been engaged by an interested party to produce a document for the purpose of securing the interest of the person who engaged him. In other words, the surveyor has acted as a professional for an interested party; therefore he cannot be described as an uninterested party.
However, it is not in any doubt that the survey plan must also meet the conditions prescribed in Section 83(3) (supra) otherwise it remains inadmissible. It is noted that the surveyor prepared the survey plan sought to be tendered during the pendency of this suit, in his professional capacity. The general principle is that the document made by a party to a litigation or person otherwise interested when proceedings are pending or is anticipated is not admissible. The disqualifying interest is a personal not merely interest in an official capacity… where however the interest of the maker is purely official or as a servant without a direct interest of a personal nature, there are decided cases that the document is not thereby excluded.
The nature if the disqualifying interest will depend upon the nature of duty undertaken by the servant. Where from the nature of the duty the maker can be relied upon to speak the truth and that he will not be adversely affected thereby, the document has always been admitted in evidence. The facts of this case have clearly disclosed that the surveyor has a personal interest in the result because he was engaged by an interested party, the court below, was therefore right to have rejected the survey plan.
The surveyor’s interest in the suit as a surveyor is in a substantial respect congruous with that of his employer (i.e. the Appellant) in this case. The time to take objection for admitting a document is at the tendering of the same that is not to say that the court cannot expunge inadmissible evidence wrongly admitted.
A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. The converse position is also the law, and it is that a document which is irrelevant to the facts in issue is not admissible.
However where the situation is governed by the rule of law, as in the instant case, which touches on admissibility of a document where the provision of the Evidence Act come into play, although the Court may have its own discretion, such discretion must be exercised according to the ordinary principles laid down in the Evidence Act as set out above. It’s judicial discretion is founded upon those principles. And if a trial Judge refuses to do so, then the appellate Court will set the matter right. See R. v. STAFFORD JUSTICES (1940) 2 K. B. 33 AT 43.
Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight.
Relevancy, which propels admissibility, is invoked by the trial Judge immediately the document is tendered. If the document is relevant, the Judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be.
The criteria for admissibility of documents are pleading, relevance and admissibility in law. The court has a duty to reject inadmissible documents arising from its duty to act only on legal evidence. Thus documents relating to unpleaded facts cannot be used, see OKONJI v. NJOKANMA (1999) 12 SCNJ 295; IBWA v. IMANO (2001) 3 SCNJ 160.
I have carefully perused the record of appeal. I have not seen anywhere where the Appellant notified the Respondent of the Survey plan sought to be tendered. See Rule 4 of the Ekiti High Court rules of Court.
Rules of Court must be obeyed. This breach of the rules has made the survey plan inadmissible.
Rules of Court: Whether it is on established principle of law that Rules of Court are to be obeyed and complied with.
It is an established principle of law that Rules of Court are to be obeyed and complied with, where breached or not complied with, without any explanation, as in the present case, it cannot be overlooked or swept under the carpet in favour of the party in breach. See the case of MAKO v. UMOH (2010) 8 NWLR (Pt.1195) 82 where his lordship Abba Aji, J.C.A. had this to say:
“It is now firmly settled that rules of Court are not mere rules, but they partake of the nature of subsidiary Legislations by virtue of section 18 (1) of the Interpretation Act and therefore have the force of law, see AKANBI v. ALAO (1989) 3 NWLR (Pt.108) 118. That is why Rules of court must be obeyed. This is because it is also settled, that when there is non-compliance with the Rules of court, the court should not remain passive and helpless. There must be sanction otherwise the purpose of enacting the rules will be defeated. See the cases of OBA AROMOLARAN & ANOR v. OLADELE & 2 ORS (1990) 7 NWLR (Pt. 162) 359: BANGO v. CHADO (1998) 9 NWLR (Pt. 564) 139. THE HON. JUSTICE KALU ANYAH v. AFRICAN NEWSPAPERS OF NIGERIAL LTD (1992) 6 NWLR (Pt.241) 319. In other words, Rules of court are not only meant to be obeyed, they are also binding on all the parties before the Court.
In the circumstance, this survey plan having been made after the commencement of this case is inadmissible in law and on the authorities of W.D.N. LIA v. OYIBO (1992) 5 NWLR (Pt.239) 77 AND ABDULLAHI v. HOSHIDU (1999) 4 NWLR (Pt. 638) 654. Per Pats-Acholonu, JCA (as he then was) that by the provisions of section 91 (3) of the Evidence Act, documents made during the pendency of an action for the purpose of the action and particularly after pleadings have been filed should not be admitted on the grounds that they lack evidential value and would tantamount to stealing a match against an opponent.
The grouse of the Appellant’s counsel on this issue is on the interpretation of Section 83 (3) of the Evidence Act, Cap 112, laws of the Federation 2011, on the admissibility of the survey plan sought to be tendered through the surveyor, who prepared the said plan. Whilst this suit was pending.
I hold that the learned trial judge rightly rejected the survey plan which was prepared during the pendency of this case before the lower court. Also the learned counsel for the Appellant contrived the Ekiti High Court Rules.
Be that it as it may, I am not impressed by the insistence of the Appellant’s 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.
Appeal is dismissed with costs of N20,000 in favour of the Respondent.
PAUL ADAMU GALINJE, J.C.A.: The draft of the lead judgment which was delivered by my learned brother, Akinbami, J.C.A., on the 18th December, 2013 was made available to me today the 17th of January, 2014 for my contribution. I have read through the judgment and I agree that the survey plan which was tendered at the lower court but was rejected on the ground that it was made during the pendency of the suit was properly rejected by the learned trial Judge.
I agree that the appeal lacks merit and ought to be dismissed and same is accordingly dismissed by me. I abide by the consequential orders made in the lead judgment, including order as to cost.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read while in draft form the leading judgment just delivered by my learned brother, Fatima Omoro Akinbami, JCA. I agree with the reasoning and conclusion arrived at, which is to the effect that the appeal is devoid of both substance and merit. It was dismissed and it is accordingly dismissed by me too. I also abide by the order contained in the said leading judgment with regard to costs.
Appearances
O. B. Akinola Esq.For Appellant
AND
For Respondent
