ELF PETROLEUM (NIG.) LIMITED V. AUGUSTINE MATHEW AMADIKE & ANOR (2011)

ELF PETROLEUM (NIG.) LIMITED V. AUGUSTINE MATHEW AMADIKE & ANOR

(2011)LCN/5071(CA)

In The Court of Appeal of Nigeria

On Thursday, the 7th day of July, 2011

CA/PH/271/2006

RATIO

THE ATTITUDE OF THE COURT TOWARDS THE PROLIFERATION OF ISSUES

Learned counsel for the Respondents formulated three issues out of the two grounds of appeal filed by the appellant. This is proliferation of issues which courts frown at. It is trite law that whilst an issue may embrace one or more grounds of appeal, the issues formulated must not be more than the grounds of appeal. See LAWAL V. SALAMI (2002) 2 NWLR (PT. 752) 658; OYEKAN v. AKINRINWA (1996) 7 NWLR (PT. 459) 128; DUWIN P&C CO. LTD. V. BENEKS P&C LTD (2008) 31 WRN 1 at 17. PER. T. O. AWOTOYE, J.C.A.

ON THE ISSUE OF ADMISSIBILITY OF NEWSPAPER IN COURT PROCEEDINGS.

Section 116 of the Evidence Act (aforequoted) is to the effect that the genuineness of every document purporting to be
(a) the official Gazette of Nigeria or of a State
(b) the Gazette of any part of the commonwealth or
(c) to be a newspaper, or journal or a copy of the resolutions of the National Assembly printed by the Government printer.
(d) or any document purporting be a document directed by any law to be kept by any person when produced from proper custody.
It appears to me with due respect that genuineness of the documents aforestated which is the focus of section 116 of the Evidence Act pertains to the weight to attach to such documents as opposed to their admissibility. One is more fortified in this view when one considers that sections 109 – 113 of the Evidence Act exhaustively deals with the issues of admissibility of documents (including those listed in section 116 of the Evidence Act). PER. T. O. AWOTOYE, J.C.A.

THE POSITION OF THE LAW ON CUSTODY

THE RATIONALE FOR PLEADINGS

The rationale for pleadings as stated by the Federal Supreme Court in GEORGE & ORS V. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71 at 71 Per BAIRAMIAN FJ IS- The fairness of a trial can be tested by the maxim audi alteram partem. Party must be given an opportunity of being heard; but a party can not be expected to prepare for the unknown; and aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings and saves the either side from being taken by surprise. See also ATTORNEY-GENERAL, ANAMBRA v. ONUSELOGU ENT. LTD (1987) 4 NWLR 547. PER. EJEMBI EKO, J.C.A.

THE POSITION OF THE LAW WHERE A DOCUMENT IS PLEADED

When a document is pleaded, it forms part of the pleading that it may be relied on by the pleader. The existence of that document has to be pleaded as a fact. The contents are also facts which have to be pleaded. See BRAWL SHIPPING LTD v. F. I. ONWADIKE CO LTD (2000) 11 NWLR (Pt. 678) 1 at 20. PER. EJEMBI EKO, J.C.A.

Before Their Lordships

ISTIFANUS THOMASJustice of The Court of Appeal of Nigeria

EJEMBI EKOJustice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria

Between

ELF PETROLEUM (NIG.) LIMITEDAppellant(s)

AND

1. AUGUSTINE MATHEW AMADIKE
2. CHIMEZIE ZACHARIA ONYIRI
(For themselves and as representing Umu-Uboh Umu Azaga Family)Respondent(s)

T. O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of appeal against the Ruling of High Court of Rivers State Coram Jumbo J. delivered on 28/02/2006 admitting in evidence a THIS DAY NEWSPAPER of 3/9/97 as Exhibit B in the proceeding.
In the course of the proceedings at the court below, PW1 in his evidence in chief tendered a THIS DAY NEWSPAPERS OF 3/9/97 as exhibit. The defence counsel objected to its admissibility. In his Ruling, the learned trial judge held as follows inter alia:
“The essence of tendering the document sought to be admitted in evidence is to show that there was an increase in rent payable. In paragraph 7 of the Statement of Claim, the plaintiffs pleaded that there was a recent Government approved rate. I am of the view that the document sought to be admitted is intercede to prove the fact of increase. I have also thoroughly perused the document in question. It is a copy of This Day Newspaper. It is certified by an officer in the Rivers State Library Board and stamped with the seal and official stamp of the Board. From the state pleadings, it is also obvious that this document is relevant to this proceeding. The objections raised by the Learned Counsel for the Defendant border more on technicalities. The Supreme Court has in a plethora of juristic authorities reiterated the fact that it is more concerned with doing substantial justice between the parties and will not be deterred by objections based on technicalities. See ATTORNEY-GENERAL OF BENDEL STATE V. ATTORNEY – GENERAL OF THE FEDERATION (1982) 1 NCR. 1.
In view of the foregoing, I have come to the conclusion that the document sought to be admitted in evidence is admissible in evidence. The objection is therefore dismissed, and the document is admitted in evidence and marked EXHIBIT “B”.
Being aggrieved by the decision of the trial court the appellant filed two grounds of appeal to this court.
After the transmission of records both parties to the appeal exchanged briefs of argument.
In his brief counsel for the appellant formulated on issue for determination to wit.
“Whether on the state of the pleadings in suit No. OHC/129/98 and in the circumstances of the case the THIS DAY NEWSPAPER admitted by the learned trial judge is pleaded, relevant and therefore admissible in evidence?”
DENNIS I OKWAKPAM, learned counsel for the appellant submitted that the THIS DAY PUBLICATION or facts not having been pleaded precisely distinctly and unequivocally to were clearly inadmissible and irrelevant. He further submitted that the publication was not an agreement between the parties in suit No. OHC/129/98 neither a statute nor publication showing government increase in rent or tariffs payable to the Respondents by the appellants the Cited ATANDA V. AJANI (1989) 6 SCNJ 193 At 205; IPINLAYE V. OLUKOTUN (1996) 6 SNJ 74, 84 and other cases.
He finally urged the court to allow the appeal and set aside the decision of the court below admitting the Respondents THIS DAY PUBLICATION delivered on the 28/2/2006 and expunge same from the evidence.
Learned counsel for the Respondents formulated three issues out of the two grounds of appeal filed by the appellant. This is proliferation of issues which courts frown at. It is trite law that whilst an issue may embrace one or more grounds of appeal, the issues formulated must not be more than the grounds of appeal. See LAWAL V. SALAMI (2002) 2 NWLR (PT. 752) 658; OYEKAN v. AKINRINWA (1996) 7 NWLR (PT. 459) 128; DUWIN P&C CO. LTD. V. BENEKS P&C LTD (2008) 31 WRN 1 at 17. I shall therefore discountenance the issues moreso when the sole issue formulated by the appellant covers the issues formulated by the Respondents.
In his brief learned counsel for the Respondent submitted that the material facts leading to the admissibility of Exhibits B were pleaded. He stated that Exhibit B was documentary evidence which did not need to be pleaded. He referred to section 111 and 116 of the Evidence Act. He submitted further that:
(a) By virtue of section 116 of the Evidence Act Exhibit B (Newspapers) was a documentary evidence and a public document.
(b) By virtue of section 111 of the Evidence Act a public document must be certified to render it admissible in evidence
(c) By virtue of section 111(2) of the Evidence Act a public document should be deemed to be in the custody of the certifying officer.
(d) No custody was improper custody for a public document section 111(2) of the Evidence Act.
(e) By virtue of section 112 of the Evidence Act public documents were admissible in evidence.
(f) A public document needed not be tendered in evidence by a public officer. It might even be tendered by a counsel across the Bar. He cited Ogbuiniya & Ors V. Okudo & Ors (1979) 3 LRN 318. 2) Agagu V. Dawodu (1990) 7 WLR (PT. 56).
He also relied on ORDER 15 Rule 2(1) of the Rivers State High Court Civil Procedure Rules 2006 and finally urged the court to dismiss the appeal as lacking in merits.
I have carefully considered all the arguments canvassed before me as well as the contents of the records of appeal transmitted to this court.
I agree with learned counsel for the Respondent that only material facts are to be pleaded by a party to a proceeding and not the evidence by which they are to be proved. See ORDER 15 Rule 2(1) of the Rivers State High Court Civil Procedure Rules. See IPINLAYE V. OLUKOTUN (supra) See also OLUBODUN V. LAWAL (2001) 42 WRN 22; EZEMBA V. IBENEME (2004) 40 WRN 1 at 24.
Is the newspaper publication a material fact within the con of ORDER 15 Rule 2(1) of the Rules or the evidence by which the material fact is to be proved? This question cannot be answered without considering what transpired at the proceeding in the court below:
In his evidence on pages 77 – 78 of Record of Appeal, PW1 stated inter alia.
“Apart from the land rent the Defendant made a second payment of N270,000 for economic trees and cash urges and the next payment was N14,000 for the clearing of the site. These payments were made in 1996.
In 1997 there was a publication made in This Day Newspaper front page on 3/9/97 therein the rent was increased from N430,000.00 to N500,000 per hecter per annum. I have something to show that there is an increase. I have the newspaper publication. I have This Day Newspaper. I can identify the paper. This is it.
OGBUMGBADA: – I seek to tender the newspaper as an exhibit”
It seems clear from the above that the This Day Newspaper was tendered to show the increase from N430,000 to N500,000.00.
In paragraph 7 of the further Amended statement of Claim of the Plaintiff/Respondent he had averred thus:
“7. In 1997, plaintiff’s’ solicitor wrote to the Defendants asking them to upgrade the amount payable in accordance with the recent Government Approved rate N500,000.00 per hecter per annum and to call a meeting with the plaintiffs to enable them resolve the issue of Agreement/Leasehold over the land, but the Defendant has neglected, refused and failed to reply to the plaintiffs’ letter. A copy of the said letter is hereby pleaded, and shall be relied on at the trial to show the Defendant’s indifference to the plaintiffs claim.
It therefore, follows that the tendering of the newspaper publication was to adduce evidence in proof of the material fact averred in paragraph 7 of the further statement of claim. This in my respectful view is in line with the provision of ORDER 15 Rule 2(1) of the Rivers State High Court Rules.
The next question to consider is the newspaper publication admissible? References have been made to section 111 and 116 of the Evidence Act in this regard.
For ease of reference I shall quote the provisions of section 109, 111, 112, 116 and 124 of the Evidence Act in extenso.
“109. The following documents are public documents-
(a) documents forming the acts or records of the acts-
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere;
(b) public records kept in Nigeria of private documents.
111(i) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.
(2) Any officer who, by the ordinary course of official duty, is authorized to delivered such copies, shall be deemed to have the custody of such documents within the meaning of this section.
112. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purported to be copies.
116. The court shall presume the genuiness of every document purporting to be the official Gazette of Nigeria or of a state or the Gazette of any part of the commonwealth or to be a newspaper or journal, or to be a copy of the resolutions of the National Assembly printed by the Government printer, and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.
124. Documents are said to be in proper custody within the meaning of section 116 to 123 of this Act if they are in the place in which, and under the care person with whom, they would naturally be; but no custody is improper if it is prove to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable”.
Exhibit B which is the copy of the This Day Newspaper publication is a certified true copy from Rivers State Library Board Port Harcourt. This makes it a public document under section 109 (a) (iii) of the Evidence Act. It is also not in dispute that it is duly certified in compliance with section 111 and 112 of the Evidence Act.
It is pertinent at this stage to consider the provisions of section 116 vis-Ã -vis section 124 of the Evidence Act on the issue of admissibility of newspaper in court proceedings.
Section 116 of the Evidence Act (aforequoted) is to the effect that the genuineness of every document purporting to be
(a) the official Gazette of Nigeria or of a State
(b) the Gazette of any part of the commonwealth or
(c) to be a newspaper, or journal or a copy of the resolutions of the National Assembly printed by the Government printer.
(d) or any document purporting be a document directed by any law to be kept by any person when produced from proper custody.
It appears to me with due respect that genuineness of the documents aforestated which is the focus of section 116 of the Evidence Act pertains to the weight to attach to such documents as opposed to their admissibility.
One is more fortified in this view when one considers that sections 109 – 113 of the Evidence Act exhaustively deals with the issues of admissibility of documents (including those listed in section 116 of the Evidence Act).

Section 124 of the Evidence Act seems to further whittle down the potency of section 116 of the Act in that it states that “no custody is improper if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an origin probable.” Statutes are to be given their ordinary meaning. See UNILONN v. ADESINA (2009) 25 WRN 97; ELEGUSHI v. LAMINA (2009) 10 WRN 129.
What I have been trying to state is that the THIS DAY NEWSPAPER publication, Exhibit B, admitted by the trial court after overruling the objection of the appellant, having regard to its certification by the Head of Acquisitions of Rivers state Library Board, Port Harcourt is admissible in evidence. It satisfies the requirements of section 111(1) of the Evidence Act being certified true copy of document from the custody of a public officer and section 124 of the Evidence Act being a newspaper publication is the custody of Rivers State Library Board which makes its origin probable.
Any other objection to it should be as to the weight to be attached to it as opposed to its admissibility. Issues of weight to be attached to such documents should be considered by the court at the judgment stage, when relative weight of evidence adduced is assessed.
For the above reasons I resolve the sole issue formulated by the appellant in favour of the Respondents.
The Ruling of the learned trial judge of 3/9/97 is unassailable.
This appeal lacks merit. It is accordingly dismissed with cost of N60,000.00 in favour of the Respondents.

ISTIFANUS THOMAS, J.C.A.: I read before now, the lead judgment of my learned brother, Awotoye, JCA and I entirely agree that the appeal has no merit whatsoever, and is dismissed by me. I abide with consequential orders including costs.

EJEMBI EKO, J.C.A.: At pages 80-81 of the Record the learned trial Judge ruled on the objection to admissibility of in evidence of a copy of THIS DAY NEWSPAPER of 3rd September. 1997 as follows:-
Where a document is vital to a party’s case so much so that he intends to rely upon it at trial, he must plead it, See CONSOLIDATED BREWERIS PLC v. AISOWEIREN [2001] 15 NWLR 424 at page 433, ratio 15. The general principle is that pleadings must contain and contain only a statement in a summary form of the material facts on which the party pleading relies for his claim or defence but not the evidence by these facts are to be proved. Documents in support of facts pleaded, need not be pleaded and they can be tendered in support of facts pleaded. See DOUNSI v. BAMGBOLA & ORS (1995) 1 NWLR (Pt.374) page 461 rationnes 1 and 7.
The essence of tendering the document sought to be admitted in evidence is to show that there was an increase in rent payable. In paragraph 7 of the statement of claim, the plaintiffs pleaded that there was a recent Government approved rate. I am of the view that the document sought to be admitted is intercede (sic: intended) to prove the fact of increase.
The narrow issue in this appeal is whether the plaintiffs’ respondents in this appeal, pleaded THIS DAY NEWSPAPER of 3RD September, 1997. In paragraph 7 of the statement of claim. This is what the said paragraph 7 had averred:
7. In 1997 plaintiffs’ solicitors wrote to the defendants seeking them to upgrade the amount payable in accordance with the recent Government Approved rate N500,000.00 per hecter per annum and to call a meeting with the plaintiffs to enable them resolve the issue of Agreement/Leasehold over the land, but the defendant has neglected, refused and failed to reply to the plaintiffs’ letter. A copy of the said letter is hereby pleaded, and shall be relied on at the trial to sow the defendants’ indifference to the plaintiffs’ claims.
On 20th October 2005 the leave to amend the statement of claim was granted. The Further Amended Statement of Claim was consequently filed on 31st October, 2005. See pages 65-74 of the Record. Paragraph 7 of the Further Amended statement of claim is as earlier reproduced.
The rationale for pleadings as stated by the Federal Supreme Court in GEORGE & ORS V. DOMINION FLOUR MILLS LTD (1963) 1 ALL NLR 71 at 71 Per BAIRAMIAN FJ IS-
The fairness of a trial can be tested by the maxim audi alteram partem. Party must be given an opportunity of being heard; but a party can not be expected to prepare for the unknown; and aim of pleadings is to give notice of the case to be met; which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings and saves the either side from being taken by surprise.
See also ATTORNEY-GENERAL, ANAMBRA v. ONUSELOGU ENT. LTD (1987) 4 NWLR 547. That is why, and to make the function of pleadings meaningful, a party is restricted at the trial to give evidence only of facts we had alleged or given in his pleadings. This much was appreciated by the learned trial judge in the ruling appealed.
The question is: Did the plaintiffs give the Defendant, by paragraph 7 of the statement of claim, an opportunity to prepare against THIS DAY NEWSPAPER of 3rd September, 1997? In other words, did the Defendant have enough Notice of this Newspaper publication?
What the defence had from paragraph 7 of the statement of claim is that in 1997 the plaintiffs’ solicitors wrote to them requesting that the rents payable should be up graded “in accordance with the recent Government Approved rate of N500,00.00 per hecter per annum” and the need for the parties to meet to resolve the issue. The plaintiffs then specifically pleaded the said letter written by their solicitor. No such specific reference was made to the THIS DAY NEWSPAPER of 3rd September, 1997. Therefore the defence “can not be expected to prepare for the unknown”. The specific mention of the plaintiff’s solicitor’s letter on the need to up grade the rent payable in accordance with the Government Approved rate is no doubt the implicit exclusion of any other document on that issue. The defence was entitled to know that the newspaper is part of the pleading. That will enable the defence to thoroughly check on it before the hearing date. When a document is pleaded, it forms part of the pleading that it may be relied on by the pleader. The existence of that document has to be pleaded as a fact. The contents are also facts which have to be pleaded. See BRAWL SHIPPING LTD v. F. I. ONWADIKE CO LTD (2000) 11 NWLR (Pt. 678) 1 at 20.
The statement of claim did not plead the existence of the THIS DAY Newspaper of 3rd September, 1997 and its contents to enable the defence not only to know the case they were going to meet, but also prepare their case against it. Since audi alterum partem is the very essence of pleadings, surprise and embarrassment are therefore antithetic to pleadings.
In my judgment the learned trial judge got it all wrong when he overruled the objection to admissibility of the Newspaper and consequently admitted it in evidence. On authority of GEORGE v. DOMINON FLOUR MILLS LTD (supra) I hold that the trial judge, by admitting in evidence the newspaper, was thereby not fair to the defence. Accordingly, I allow the appeal. The objection is sustained. The Ruling and order admitting the newspaper in evidence are hereby set aside. In its stead I enter an order sustaining the objection. The said newspaper shall be and is hereby rejected in evidence and marked as Exhibit B Rejected.
Costs assessed at N60,000.00 are hereby awarded to the Appellant against the Respondents.