FEDERAL REPUBLIC OF NIGERIA v. OPARA EDMUND ACHO & ANOR
(2017)LCN/10205(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of July, 2017
RATIO
DOCUMENTARY EVIDENCE: THE POSITION OF THE LAW WHERE A PARTY WHO SOUGHT TO TENDER A DOCUMENT IN EVIDENCE UPON ITS ADMISSIBILITY BEING OPPOSED APPLIES TO HAVE THE DOCUMENT WITHDRAWN
I think the learned trial judge was in error, when she hurriedly rejected a document which the Appellant had sought to put in evidence, but sought to withdraw it, before the Court delivered its ruling. It means that, at the time the trial Judge ruled, rejecting the document, the same was no longer available for consideration for the order. This is because, upon the application to withdraw the document, the same ceased to be available for admission or rejection. In the case of Oguntayo vs. Adelaja (2009) ALL FWLR (Pt.485) 1626; (2009) LPELR 2353 (SC) (relied upon by the Appellant), the Supreme Court, Per Ogbuagu JSC, said on page 1666 in the instant case, As soon as objection was taken, the learned Counsel for the Plaintiff/Respondent/Cross-Appellant withdraw both the document and the witness, the said document, naturally, was therefore, not before the Court below. Of Course, the law is well established that when a party seeks to tender a document and the same, upon being opposed, is withdrawn, without the party who sought to tender it contesting the objection, the trial Court should allow the document to be withdrawn. In that case of Oguntayo vs. Adelaja (supra), my Lord Ogebe, JSC said;
It is clear from the proceedings that PW2 was only called to tender the proceedings in case HeJ/6/85. The Defendants Counsel objected to its admissibility. The Plaintiffs Counsel chose not to reply to the objection, even though he had ample opportunity to do so. Instead he applied to withdraw the evidence and the witness. What the trial Court ought to have done was to have asked him to reply to the objection so that it could properly rule on the admissibility of the document, or the Court would have granted the request to withdraw the evidence and the witness. The trial Court was clearly wrong in marking the document rejected when argument had not been concluded on its admissibility.
That, in my opinion, is the same error in this case. The trial Court should have refrained from pronouncing on the document and rejecting it, after Appellant had indicated intention to withdraw it.
In the case of Hastrup vs Roro Terminal Co. Ltd (2003) 7 NWLR (Pt.819) 358 at 360, this Court Per Oguntade JCA (as he then was) said:
Where a party seeks to tender a document in evidence and an objection is taken to the admissibility of the document by his adversary, if the party seeking to tender the document did not join issues with the adversary on the admissibility of the document, but seeks to withdraw the document, the Court will be in error if it refused to allow the party withdraw the document which he had sought to tender. It would only be necessary to reject the request to withdraw the document in evidence if the party seeking to tender it had argue that it was receivable in evidence. The trial Court in the instant case would have returned the agreement to the Appellants Counsel since at that stage no issue was submitted to the Court for decision as to the admissibility of the agreement.
It should also be noted that, looking at the Records of Appeal (page 14), the application to withdraw the document was not opposed by the Respondent; the Court did not call on the Respondents Counsel to react to the intent/ application to withdraw the document; the Court did not also call on the Appellants Counsel to reply to the objection by the Respondents Counsel, before it ruled on the objection. Thus, the Ruling, rejecting the document and marking it rejected, was, in my opinion, an infraction of the right of fair hearing of the Appellant, on the matter, as Appellant was not heard on the objection before the trial Court ruled on it. See Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and the case of Akpangbo Okadigbo & Ors vs. Chidi & Ors (2015) LPELR 24564 SC, where it was held:
Section 36 (1) of the 1999 Constitution, as amended makes it a condition precedent that the Appellants be heard or offered opportunity of being heard in the matter
In the case ofFederal Civil Service Commission & Ors vs J.O. Laoye (1989) LPER 1264 (SC), the Supreme Court said:
The rule relating to hearing both sides in a dispute is fundamental to the administration of justice and decision making in all societies, irrespective of their level of civilization or sophistication. Almost every indigenous ethnic group has a saying importing the concept. If what is being done has a semblance of justice, it is elementary that the two sides must be heard first, before any determination could be made.
I resolve the issue in favour of the Appellant, as I think the Appeal has merit and should be allowed.
I set aside the decision of the trial Court rejecting the said document and marking it rejected. I grant the Appellants application to withdraw the photocopy of the Power of Attorney earlier tendered by the Appellant, the same having been withdrawn. PER ITA GEORGE MBABA, J.C.A.
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):This is an appeal against the interlocutory decision of the Federal High Court in charge NO.FHC/OW/28/2015 delivered on 21/6/2016, by Hon. Justice Jane E. Inyang, wherein the trial Judge rejected a document (Power of Attorney) tendered by the Prosecution (Appellant) through her witness (Okechukwu Ogbonnaya, who testified as PW1).
The Respondents were standing trial at the lower Court on a two Counts charge of conspiracy to commit offence and for the offence of obtaining Money by false pretence, from one 0kechukwu 0gbonna contrary to Section 8(a) and 1(1) (b), punishable under Section 1 (3) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006. They (Accused) had pleaded Not guilty to the charge, and while on trial, taking evidence from the complainant (0kechukwu 0gbonnaya sic) on 21/6/2016, the prosecution tendered, and applied for the admission of a document (photocopy of a power of attorney). The application was opposed by the defence Counsel, who said that the Power of Attorney was not properly executed in accordance with the law i.e.
Registerable Instruments Act 1978; that the Power of Attorney was a Registerable document, pursuant to Section 10 of the said Act. The Respondents also relied on the case of Utuk vs. Liquidator (2010) 4 WRN 58 and 59.
That objection prompted the Prosecution to apply to withdraw the document. The Prosecution counsel said:
My Lord, the Prosecution has not joined issues with the Defendant and so we can withdraw the document being sought to be tendered.
The trial Court refused the application to withdraw the document and said:
The objection of the Learned Counsel for the Defendant is upheld. The Power of Attorney being sought to be admitted is rejected.
See page 14 of the Records of Appeal.
That is the Ruling Appellant appealed against, as per the Notice of Appeal on pages 18 20 of the Records of appeal filed on 30/6/16. Appellant filed her brief of arguments on 23/1/17 which was deemed duly filed on 26/4/17. The Records of Appeal was also deemed duly compiled and transmitted to this Court on that same date 26/4/17. Appellant distilled a lone issue for the determination of the Appeal, namely:
Whether the Court below was right when he (sic) ruled rejecting the document, sought to be tendered when Appellant applied to withdraw same without replying to the Respondents argument objecting to the admissibility.
Arguing the appeal, Appellants Counsel, Ifeanyi Agwu Esq. submitted that the position of the law has long been settled and given judicial backing, to the effect that, where a party seeks to tender a document in evidence and objection is taken against the admission of the document, if the party, who sought the admission of the document, does not join issues with the adversary on the admissibility of the document, but seeks to withdraw it, the Court will be in error to refuse the application to withdraw the document. He relied on the case of Hastrup vs. Roro Terminal Co. Ltd (2003) 7 NWLR (Pt.819) 358; Oyetunji vs. Akanni (1986) 5 NWLR (Pt.42) 461 at 467.
Counsel further submitted that equity and fair play demand that both parties be heard in order to ensure that justice prevails, and refusing the other party opportunity to be heard occasions miscarriage of justice; Counsel said that the steps taken by the trial Court in rejecting the document did not accord with settled judicial authorities; that the trial Court could only have rejected the document, if the Appellant had insisted on its admissibility, joining issues with the objection. He relied on the case of Oguntayo vs. Adelaja (2009) ALL FWLR (Pt. 485) 16 at 1648 -1650 (per Ogebe JSC) and at 1665 1666 (per Ogbuagu JSC)
Counsel also relied on the case of Alafia vs. G.V. (Nig) Ltd (2016) ALL FWLR (Pt.838) 792 at 813 -814, to say that non registration of a document does not even make it inadmissible.
The Respondent did not file any brief
RESOLUTION OF THE ISSUE
I think the learned trial judge was in error, when she hurriedly rejected a document which the Appellant had sought to put in evidence, but sought to withdraw it, before the Court delivered its ruling. It means that, at the time the trial Judge ruled, rejecting the document, the same was no longer available for consideration for the order. This is because, upon the application to withdraw the document, the same ceased to be available for admission or rejection. In the case of Oguntayo vs. Adelaja (2009) ALL FWLR (Pt.485) 1626; (2009) LPELR 2353 (SC) (relied upon by the Appellant), the Supreme Court, Per Ogbuagu JSC, said on page 1666
in the instant case, As soon as objection was taken, the learned Counsel for the Plaintiff/Respondent/Cross-Appellant withdraw both the document and the witness, the said document, naturally, was therefore, not before the Court below
Of Course, the law is well established that when a party seeks to tender a document and the same, upon being opposed, is withdrawn, without the party who sought to tender it contesting the objection, the trial Court should allow the document to be withdrawn. In that case of Oguntayo vs. Adelaja (supra), my Lord Ogebe, JSC said;
It is clear from the proceedings that PW2 was only called to tender the proceedings in case HeJ/6/85. The Defendants Counsel objected to its admissibility. The Plaintiffs Counsel chose not to reply to the objection, even though he had ample opportunity to do so. Instead he applied to withdraw the evidence and the witness. What the trial Court ought to have done was to have asked him to reply to the objection so that it could properly rule on the admissibility of the document, or the Court would have granted the request to withdraw the evidence and the witness. The trial Court was clearly wrong in marking the document rejected when argument had not been concluded on its admissibility.
That, in my opinion, is the same error in this case. The trial Court should have refrained from pronouncing on the document and rejecting it, after Appellant had indicated intention to withdraw it.
In the case of Hastrup vs Roro Terminal Co. Ltd (2003) 7 NWLR (Pt.819) 358 at 360, this Court Per Oguntade JCA (as he then was) said:
Where a party seeks to tender a document in evidence and an objection is taken to the admissibility of the document by his adversary, if the party seeking to tender the document did not join issues with the adversary on the admissibility of the document, but seeks to withdraw the document, the Court will be in error if it refused to allow the party withdraw the document which he had sought to tender. It would only be necessary to reject the request to withdraw the document in evidence if the party seeking to tender it had argue that it was receivable in evidence. The trial Court in the instant case would have returned the agreement to the Appellants Counsel since at that stage no issue was submitted to the Court for decision as to the admissibility of the agreement.
It should also be noted that, looking at the Records of Appeal (page 14), the application to withdraw the document was not opposed by the Respondent; the Court did not call on the Respondents Counsel to react to the intent/ application to withdraw the document; the Court did not also call on the Appellants Counsel to reply to the objection by the Respondents Counsel, before it ruled on the objection. Thus, the Ruling, rejecting the document and marking it rejected, was, in my opinion, an infraction of the right of fair hearing of the Appellant, on the matter, as Appellant was not heard on the objection before the trial Court ruled on it. See Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and the case of Akpangbo Okadigbo & Ors vs. Chidi & Ors (2015) LPELR 24564 SC, where it was held:
Section 36 (1) of the 1999 Constitution, as amended makes it a condition precedent that the Appellants be heard or offered opportunity of being heard in the matter
In the case ofFederal Civil Service Commission & Ors vs J.O. Laoye (1989) LPER 1264 (SC), the Supreme Court said:
The rule relating to hearing both sides in a dispute is fundamental to the administration of justice and decision making in all societies, irrespective of their level of civilization or sophistication. Almost every indigenous ethnic group has a saying importing the concept. If what is being done has a semblance of justice, it is elementary that the two sides must be heard first, before any determination could be made.
I resolve the issue in favour of the Appellant, as I think the Appeal has merit and should be allowed.
I set aside the decision of the trial Court rejecting the said document and marking it rejected. I grant the Appellants application to withdraw the photocopy of the Power of Attorney earlier tendered by the Appellant, the same having been withdrawn.
RAPHAEL CHIKWE AGBO, J.C.A.: I had the privilege of reading in advance the lead judgment of my learned brother MBABA, JCA and I agree with him that the appeal be allowed. I abide by all the consequential orders contained in the judgment.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I had the privilege of reading the draft of the leading judgment delivered by my learned brother ITA G. MBABA, JCA; and I am in complete agreement with the reasoning and conclusion of his lordship in respect of the appeal.
Accordingly, I too allow the appeal and abide by the orders contained in the leading judgment.
Appearances
Ifeanyi Agwu, Esq.For Appellant
AND
UnrepresentedFor Respondent
