OTUNBA ADESESAN OGUNTAYO V. PRINCE FATAL ADELAJA
In the Supreme Court of Nigeria
Friday, July 10, 2009
Case Number: SC. 365/2001
NIKI TOBI, JUSTICE SUPREME COURT
IKECHI FRANCIS OGBUAGU, JUSTICE SUPREME COURT
JAMES OGENYI OGEBE , JUSTICE SUPREME COURT
O. O. ADEKEYE, JUSTICE SUPREME COURT
JOHN AFOLABI FABIYI, JUSTICE SUPREME COURT
1. PRINCE FATAl ADELAJA..
2. CHIEF A. DUDUYEMI ODUNUGA(JEWO-Olu of IJEBU-IFE)
3. CHIEF SEGUN OSIBOTE(ALORAN OF IJEBU-IFE )
4. CHIEF F. JAIYEOLA ADEKOYA(ODELE OF IJEBU-IFE)(OLIWO OF IJEBU-IFE)
5. CHIEF B. ADELEYE OSIBADEJO
6. CHIEF AJADI OGUNDEKO
7. CHIEF SHOSE(AGBON OKE-IFE OF IJEBU-IFE
8. THE MILITARY ADMINISTRATOR OF OGUN STATE 9. THE ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, OGUN STATE
FEDERAL HOUSING AUTHORITY
MISCARRIAGE OF JUSTICE
“Miscarriage of justice occurs when the court fails or refuses to follow its rules and arrives at a decision which is prejudicial or inconsistent with the legal rights of a party”. Per Tobi, JSC
CUSTOMARY LAW : HOW TO PROVE CUSTOMARY LAW
“Customary law is a question of fact to be proved by evidence. Hence a person who alleged the existence of a particular custom must adduce sufficient evidence in support and establish its existence to the satisfaction of the court”. Per Tobi, JSC
(Delivered by J.O. Ogebe, JSC)
The 1st Respondent in this appeal who was the plaintiff in the High Court of Ogun State sued the appellant and the other respondents claiming in his writ of summons as follows:
‘1. A declaration that being a Kingmaker by virtue of the registered declaration for Ajalorun of Ijebu-Ife Chieftaincy, the 1st Defendant is not eligible to be nominated, selected or appointed, approved and installed as the Ajalorun of Ijebu-Ife in the Ijebu East Local Government Area of Ogun State.
- A declaration that being the Oraderemo of Ijebu-Ife the 1st Defendant is not eligible to be nominated selected or appointed, approved and installed Ajalorun of Ijebu-Ife.
- A declaration that the purported nomination of the 1st Defendant as a candidate by the Afurukeregboye House for the filling of the vacant stool of Ajalorun of Ijebu-Ife irregular, illegal, unconstitutional, null and void.
- A declaration that the purported selection or appointment of the 1st Defendant by the 2nd, 3rd 5th, 6th and 7th Defendants as the Ajalorun of Ijebu-Ife is irregular, illegal, unconstitutional, null and void.
- An order setting aside the purported nomination, selection or appointment of the 1st Defendant as Ajalorun of Ijebu-Ife.
- Perpetual injunction restraining the 8th and 9th Defendants from giving approval to the purported selection or appointment of the 1st Defendant as Ajalorun of Ijebu-Ife’.
Pleadings were exchanged between the parties and the matter went into full trial. The question turned on the illegibility of the appellant to be nominated and appointed the Ajalorun of Ijebu-Ife on the ground that as the head of the Kingmakers he was not qualified to take the title, and also as a descendant from the male-line he was not qualified. The 1st respondent did not raise the question of the appellants descent from the male line in his statement of claim. He only raised it in his reply to the appellants Statement of Defence.
Witnesses were called on both sides but the appellant did not testify on his own behalf. During the course of the trial the 1st respondents counsel sought to tender proceedings in suit No. SCJ/6/85 to show that the appellant had given evidence in the proceedings that he was of male descent. There was objection to the admissibility of that document. The learned counsel for the 1st respondent failed to reply to the objection. Instead he applied to withdraw the document and the Higher Registrar of the High Court through whom he had tendered the document. The trial court marked the document rejected.
At the conclusion of the case the trial court evaluated the evidence and dismissed the 1st respondents claim. He was aggrieved by that decision and appealed to the Court of Appeal Ibadan Division which allowed the appeal and ordered a retrial of the case before another Judge mainly on the view of the Court of appeal that the 1st respondent was not given a fair hearing by the trial court before the proceedings in HCJ/6/85 was rejected.
Dissatisfied with the decision the appellant appealed to this court and the 1st respondent also cross-appealed to this Court. Both of them exchanged briefs in respect of their respective appeal. It should be noted that all the other defendants/respondents have not shown interest in this appeal. The appeal is simply between the appellant and the 1st respondent.
The learned counsel for the appellant in his brief of argument formulated 3 issues for determination as follows:
“(a) Whether having regard to the pleadings and evidence, the Court of Appeal was right in overturning the decision of the trial Court by which that Court held that the 1st Defendant did not descend from the male line of the Afurukeregboye Ruling House. This issue is distilled from Ground 1 of the grounds of appeal.
(b) Whether in the face of the provisions of Section 34 of the Evidence Act and the evidence before the trial Court, the Court of Appeal was right in holding that the learned trial Judge breached the rule of natural justice and was wrong in law in rejecting the proceedings in Suit No. HCJ/6/85 in evidence. This issue is distilled from Grounds 2, 3 and 4 of the grounds of appeal.
(c) Whether in all the circumstances of the case, the Court of Appeal was right in ordering a re-trial of the case? This issue is distilled from ground 5 of the grounds of appeal.’
The learned counsel for the 1st respondent filed a brief and distilled 2 issues for determination as follows:
‘1. Whether, having regard to the circumstance of this case, the way and manner the proceedings in Suit No. HCJ/61/85 was rejected did not occasion a miscarriage of justice warranting the Court of Appeal to interfere with the decision of the trial court; and
- whether the Court of Appeal was right in its decision ordering a new trial.
In his brief the 1st respondents counsel raised a preliminary objection to the competence of the appeal. During the oral hearing of the appeal he abandoned the objection and I hereby strike it out.
The 1st issue raised in the appellants brief showed that the learned counsel for the appellant misunderstood the findings of the Court of Appeal on the question of the appellants descent from the male line of the AFURUKEREGBOYE RULING HOUSE. The Court of appeal did not overturn the decision of the trial court that the appellant did not descend from the male line.
The Court of Appeal at pages 335, 336, and 337 of the Record found exhaustibly as follows:
‘Whereas, it can be said, that it is doubtful that the appellant proved that the 1st Respondent is a member of the Afurukeregboye Ruling House on the male line, the 1st Respondent pleaded and proved that he is a member of the said house on the female line. In his statement of defence the following facts were averred-
With reference to paragraphs 17, 18 and 19 of the Statement of Claim, the 1st Defendant avers as follows:
(a) That he is a member of the Afurukeregboye Ruling House of the female line.
(b) That his great paternal grandmother, Princess Adeite Adeoti was a daughter of Oba Olumona Afurukeregboye the 30th Ajalorun of Ijebu-Ife and his claim to the vacant stool of Ajalorun is through Princess Adeite Adeoti.
A cousin of the 1st Respondent, Yekinni Adesanya Oguntayogave evidence on the genealogy of the 1st Respondent, in a bid to support the supra averment, as follows:
‘The 1st defendant is my 1st cousin. The 1st defendant and myself are related to Afurukeregboye through the female line. Olumona was the first to bear the name Afurukeregboye. No other Oba bore the name Afurukeregboye before Olumona. It is not possible that anyone can claim to belong to the Afurukeregboye Ruling House without being related to Oba Olumona. I know Adeiti. She is the daughter of Olumona. Adeiti Adeoti is the mother of Olufowobi Oguntayo and he begat Raji Osibade and he begat Adesesan Oguntayo the 1st defendant. ‘
Suffice to say that the above piece of evidence, even though not coming from the 1st respondent himself has established his claim that he is a member of the Ruling House by female line through Adeiti his great grand mother.
Then there was the allegation of complaint of the eligibility of the 1st respondent on his descendancy by the Appellant and some other members of the Afurukeregboye Ruling House. In his, evidence the Appellant testified that he thought his protest was recorded, but looking at the record of the meeting Exh. ‘C10’ the complaint on the genealogy of the 1st Respondent is not contained therein. The only protest recorded is in respect of the impropriety of the Oladere mo, the position he held, to be nominated or appointed as an Ajalorun. In fact the petition he wrote to the then Military Administrator of Ogun State Exh. C did not raise any complaint or protest on the genealogy of the 1st respondent. The complaints on Exhibits C10 – are all in respect of the 1st respondents disqualification because he was an Oraderemo, a Kingmaker, who should not be nominated to fill the vacant stool of Ajalorun. It is as clear as crystal therefore that the Appellant has not established his claim and allegation that the 1st Respondent was not qualified or eligible to be nominated or appointed as the Ajalorin because he did not come within the category of those eligible as stated in the Declaration Exh. L. In the circumstance I fail to see that the first stage is irregular, illegal, unconstitutional null and void as professed in the Appellants brief of argument. I am satisfied therefore that the 1st Respondent was validly nominated, and so the argument canvassed in respect of a second stage of the appointment by the appellant is of no importance’.
It follows therefore that the appellants first issue is not relevant to this appeal and I discountenance it.
The remaining two issues are identical with the two issues raised in the 1st respondents brief and I shall adopt them in this judgment. The learned counsel for the appellant submitted under the second issue that the trial court was right in rejecting the proceedings in suit No. HCJ/6/85 because its admissibility was objected to and the 1st Respondents counsel who had an opportunity to reply to the objection failed to do so. Instead he withdrew both the document and the witness. The learned counsel submitted that that document could only be used to contradict the evidence of the appellant who in this case did not testify at all. The Court of Appeal was therefore wrong in holding that the rejection of the document amounted to denial of fair hearing resulting in miscarriage of justice.
The learned counsel submitted that the proceedings could not be admitted under section 34 of evidence Act as the whole purport of that document was to contradict the evidence of the appellant who as it turned out never testified in the case. He relied on the case of Ogunaike V. Ojayemi (1987) 1 NWLR ( Pt.53) 769.
On this issue, the learned counsel for the 1st respondent submitted that the Court of Appeal was right in holding that the rejection of the proceedings without calling on the 1st respondents counsel to reply to the objection to its admissibility amounted to denial of fair hearing and miscarriage of justice. He said that that document was critical to the proof of the 1st respondents claim.
For proper resolution of this issue it is necessary to quote what transpired in the High Court It is at pages 90-92 of the record:–
‘P.W.2 – (He is not sworn). I am Kolawole Olufowobi, Higher Registrar, High Court of Justice, Ijebu-Ode. I live at 7, Lagos Road, Obalende, Ijebu-Ode. I have subpoena to tender the proceedings in HCJ/6/85 dated 28th March, 1989. Here is the Certified True Copy of the Proceedings.
I object to the admissibility of this document. See Section 34 of the Evidence Act. It is evidence in a previous proceedings, it is inadmissible in this proceedings. Lagos State Development and Property Corporation Vs. Adoldstamn Inter Nig. Ltd. (1994) 7 N.W.L.R. (Part 358) 545 at 561 C-D, F-G.
Submits that in so far as the proceedings contravenes Section 34, it is irrelevant and inadmissible.
I object to the admissibility. I associate myself with the submission of counsel.
I object to the admissibility of the document.
At this stage I withdrew the evidence and the witness.
The document should be marked rejected.
The witness is withdrawn (sic), the document cannot be marked rejected.
This document has already been tendered before an objection was raised on point of law. After the document and the witness were withdrawn by counsel for the plaintiff. Chief Coker submitted that since he had not addressed the court on the submission made by counsel for the 1st defendant, the court ought not to mark the document rejected. It is my view that in view of the facts already placed before this court, the fact that Chief Coker -had not replied to the objection raised by learned counsel for the 1st defendant does not preclude the court from making a ruling on the admissibility of the document.
In my view the document is not admissible. It is to be marked rejected.’
It is clear from the proceedings that P.W.2 Kolawole Olufowobi a High Registrar of the High Court of Ijebu Ode was only called to tender the proceedings in case No. HCJ/6/85. The defendants counsel objected to its admissibility. The plaintiffs counsel Chief Coker 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. But can it be said that the 1st respondent to this appeal was denied fair hearing as held by the Court of appeal? At pages 341 to 342 the Court of Appeal opined as follows:
“That is a very wrong view, for the principle of fair hearing and audi alteram paten (sic) has been violated. When the Respondents gave their reasons for objecting to the admissibility of the document, it was incumbent on the learned Judge to hear Appellants Counsels address on it. Equity and fair play demands that both parties be heard in order to ensure that justice prevails, for in depriving the other side the opportunity of being heard before rejecting the document in totality, a miscarriage of justice has been occasioned. See Olagunju V. Oveniran (1996) 6 NWLR part 453 page 127. The heavy weather mad~ about the breach of the rule of audi alteram patem to my mind is warranted even if the evidence and witness were voluntarily withdrawn by learned counsel for the Appellant before the ruling. I refuse to endorse the argument of learned State Counsel that the fact that the learned trial Judge failed to give reasons for rejecting the said document is immaterial. That he conceded that the document was inadmissible and withdrew it at that stage does not warrant the rejection of it at that stage, for by so doing the Appellant was completely shut out as far as the record of proceeding of Suit No. HCJ/6/85 upon which he relied heavily was concerned. If it had not been marked rejected he would have found another avenue of tendering it.’
With the greatest respect, the Court of Appeal misunderstood the purport of the proceedings sought to be tendered and wrongly castigated the trial court for denying the 1st respondents counsel the opportunity to reply to the objection to the admissibility of that document. The learned counsel for the 1st respondent who tendered the document heard the objection and had every opportunity to reply to it. For reasons best known to him, he refused to reply. To my mind this was abandonment of his right to reply. Not only that he then withdrew both the document and the witness which meant that he conceded the objection. How else can One explain his withdrawal of both the document and the witness?
It is trite law that evidence of a witness taken in an earlier proceedings is not relevant in a later trial except for the purpose of discrediting such a witness in cross-examination and for that purpose only.
See L.S.D.P V. Adold/stamm Int. Ltd. 1994 7 NWLR
(Pt. 357)545 at 561-562, and Okonji V. Njokanma 1999 -14 NWLR (Pt. 638 at 280-281.the point was succinctly made in the case of Ogunaike V. Ojayemi 1987 1 NWLR (Part 53) 769 in the following words:-
“In Ariku V. Ajiwogbo (1962) 1 All NLR (Part 4) Page 629 at Page 631 Ademola CJF delivering the judgment of the Supreme Court stated the law as follows:- This Court has frequently directed attention to The practice, now not uncommon, of making use of evidence of a witness in another case as if it were evidence in the case on trial. As was pointed out in Alade V. Aborishade 5 F.S.C. 167 at P. 171, this is only permissible under Section 33 or 34 of the Evidence Act. Where a witness in a former case is giving evidence in a case in hand his former evidence may be brought up in cross-examination to discredit him if he was lying, but evidence used for this purpose does not become evidence in the case in hand for any other purpose. There are also pre-requisites to the making use of the former testimony of a witness; for example, his attention must be called to the former case where such evidence was given and he should be reminded of what he had said on that occasion.
In this case at the trial, the respondent was never confronted with Exhibit ‘C’ when she gave evidence and neither was her attention drawn to any specific portion of her testimony in Exhibit ‘C’. In fact this could not have been possible as Exhibit ‘C’ was tendered by 3D.W. towards the end of the case after the respondent and her witnesses had closed their case. In my view the Court of Appeals criticism of the Appellate Judges use of Exhibit ‘C’ was justified. Accordingly this ground of appeal also fails’.
In the present case the appellant did not testify on his own behalf and so he could not be contradicted by showing him the earlier proceedings. The learned counsel who sought to tender the proceedings, withdrew 56th the document and the witness. For all practical purposes that document ceased to be relevant in the case even if it was not marked rejected since the learned counsel who tried to tender it, had withdrawn it. If he tried to tender it again he would be met with the same objection as he had withdrawn the only witness through whom it could be tendered.
It. can be seen from my analysis above that nobody violated the 1st respondents right of fair hearing and no miscarriage of justice resulted from the rejection of the document.
On his 3rd Issue the learned counsel for the appellant submitted that the Court of Appeal was wrong in ordering a retrial just because the proceedings in suit No. HCJ/6/85 was marked rejected. He said that sending it back just because of that document which was withdrawn by the 1st respondents counsel would not in any way help their case.
The learned counsel for the 1st respondent submitted otherwise and urged this Court to admit the document under section 22 of the Supreme Court Act and use it in favour of the 1st respondents claim.
This submission is totally misconceived since the 1st respondents counsel did not press for the admission of the document in the trial court but withdrew it. How can we now admit it at the Supreme Court level? I agree with the learned counsel for the appellant that the Court of Appeal was wrong in ordering a retrial as that document was no longer relevant.
The 1st respondent/cross-Appellant filed a cross-appellants brief and identified 3 issues for determination as follows:
(1) Having regard to the Ajalorun Chieftaincy Declaration, whether the 1st respondent can validly contest for the office of Ajalorun and whether the 1st respondents selection was not fraught with irregularities which vitiate the entire exercise; Grounds 2,3 & 4.
(2) Whether the learned justices of the court below were not in error in holding that the 1st respondent was qualified to contest for the office of Ajalorun without evaluating or properly evaluating the crucial effect which the proceedings in HCJ/6/85 have on the qualification of the 1st respondent; (Ground 1)…; and
(3) Having regard to the totality of the evidence before the court below, whether it was fair and unconscionable for the 1st respondent to be chosen as the Ajalorun and whether the court below was right not to have found for the plaintiff as per his statement of claim –
Grounds 5, 6 and 7.’
The appellant/cross-respondent also filed a cross-respondents brief and formulated 3 issues for determination as follows:
‘(a) Having regard to the Ajaolorun Chieftaincy declaration, whether the 1st Defendant could validly contest for the office of the Ajalorun and whether the 1st Defendants selection was tainted with irregularities capable of vitiating the selection process. (Grounds 2, 3 of the Grounds of Appeal).
(b) Whether having regard to its finding that the proceedings in HCJ/6/85 were wrongly rejected in evidence, the Court of Appeal was right in (a) ordering a retrial of the case (b) holding that the 1st Defendant is a member of Afurukeregboye Ruling House through (sic) the female line (Grounds 1 and 4 of the Grounds of Appeal).
(C) Whether the Lower Court was right in upholding the finding of the High Court that neither the allegation of undue influence on the part of the 1st Defendant nor likelihood of bias on the part of 2nd 7th Defendants was substantiated. (Ground 5).’
On these three issues the learned counsel for the cross-appellant submitted by way of summary that the Ajalorun Chieftaincy declaration is not exhaustive on the qualification of candidates into that office and by Native Law and Custom of Ijebu-Ife the 1st defendant as the head of kingmakers could not contest for that office and the court below was wrong in holding that he was qualified to contest.
The learned counsel for the cross-respondent submitted that the lower court was right in holding that the cross-respondent was properly nominated and selected as Ajalorun despite the fact he held the post of Orademe-mo and carried out certain procedural functions during the selection process.
The trial court found as a fact that the appellant/cross-respondent was properly nominated and appointed to the disputed stool in accordance with the relevant chieftaincy declaration exhibit TC1 The Court of Appeal confirmed these findings of facts as I have shown earlier in this Judgment. This amounts to two concurrent findings of facts by the two lower courts and it is not for the Supreme Court to interfere with concurrent findings of facts of lower courts unless they are shown to be perverse and that is not the case in this appeal. See MOJEKWU V. IWUCHUKWU (2004) 11 N.W.L.R. (Pt. 883) 196, AGBANA V. OWA (2004) 13 NWLR (Pt. 889) 1. I see no merit in the cross-appeal.
Consequently, I see merit in the main appeal, and allow it. Set aside the judgment of the Court of Appeal as it relates to its order of retrial and restore the judgment of the trial court. I dismiss the cross-appeal for lack of merit. I award costs of N50,000.00 in the main appeal in favour of the appellant and N50,000.000 in the cross- appeal in favour of appellant/ cross-respondent.
JUSTICE, SUPREME COURT
Mr. B Adesanya SAN with S.A. Ogunade & T. Alabi for Appellant/ cross-respondent.
Mr. H.O. Afolabi with A.O.Popoola, B.A Ogun,
A.Umoru, A.A. Oyeneyinfor 1st respondent/ cross-appellant; A.O.Osinuga for 2nd -7th respondents.
DELIVERED BY O.O ADEKEYE
I read in draft the judgment just delivered by my learned brother J.O. Ogebe JSc. The judgment meticulously considered all the issues raised in the main appeal and cross/appeal. I agree with the reasoning and conclusion. I however wish to add a few words to issues 2 and 3 in the Appellants brief in the main appeal.
In the Appellants Brief filed on 13/5/02 three issues were raised for the determination of this court as follows:-
(a) Whether having regard to the pleadings and evidence, the Court of Appeal was right in overturning the decision of the trial Court by which that Court held that the 1st Defendant did not descend from the male line of the Afurukeregboye Ruling House. This issue is distilled from Ground 1 of the grounds of appeal.
(b) Whether in the face of the provisions of section 34 of the Evidence Act and the evidence before the trial Court, the Court of Appeal was right in holding that the learned trial Judge breached the rule of natural justice and was wrong in law in rejecting the proceedings in Suit No.HCJ/6/85 in evidence. This issue is distilled from Grounds 2, 3, and 4 of the grounds of appeal’
(c) Whether in all the circumstances of the case, the Court of Appeal was right in ordering a re-trial of the case? This issue is distilled from ground 5 of the grounds of appeal.
The fulcrum of issue 2 is the propriety of the learned trial judges rejection of the record of proceedings in the suit HCJ/6/85 when the learned counsel for the plaintiff/Respondent attempted to tender it at the trial, and the Court of Appeals reaction to the rejected document. In order to appreciate the scenario before the trial court on that particular day it is of prime importance to reproduce the full text of the court proceedings when the Certified True Copy of suit No./HCJ/6/85 was rejected.
Pages 90 – 95 of the Record covered the proceedings before Hon. Justice Titllola Mabogunje on Thursday the 5th day of October, 1995 where the learned Trial judge recorded as follows:-
‘The plaintiff, the 1st – 7th defendants are present.
Chief Coker for the plaintiffs, Mr. Taju Okunsokan appears with him.
Mr. Ayanlaja for the 1st defendants,
Mr. T. Soremi and A. Adetunji appears with him, Mr. Mabekoje for the 8th and 9th defendants
Plaintiffs case opens:
P.W.I- Duduyemi Odunuga
Chief Samson Adewale Duduyemi Odunuga. I live at No.2 Iwajuta Court, Iwade Quarter, Ife-Ijebu. I received a subpoena yesterday to tender document. I do not have the original. This is the copy.
Since he cannot find the original, he has to lay foundation for the whereabout of the original. That will be evidence. He has to be sworn.
‘I do not want him to give evidence. I withdraw the document.’
P.W.2 (He is not sworn) I am Kolawole Olufowobi, Higher Regisuar, High Court of Justice, Ijebu-Ode. I live at 7, Lagos Road, Obalende, Ijebu-Ode. I have a subpoena to tender the proceedings in HCJ/6/85 dated 28th March, 1989. Here is the certified True Copy of the proceedings.
I object to the admissibility of the document. See section 34 of the Evidence Act. It is evidence in previous proceedings, it is inadmissible in this proceedings. Lagos State Development and Property Corporation v. Adoldstamn Inter Nig. Ltd. (1994) 7 NWLR (Partt 358) page 545 at page 561
C-D, F – G. Submits that in so far as the proceedings contravan (sic) Section 34, it is irrelevant and inadmissible.
I object to the admissibility. I associate myself with the submission of counsel.
Objects to the admissibility of the document.
At this stage I withdraw the evidence and the witness.
The document should be marked rejected.
The witness is withdraw (sic) the document cannot be marked rejected.
‘This document has already been tendered before an objection-was raised on point of law. After the document and the witness were withdrawn by counsel for the plaintiff.
Chief Coker submitted that since he had not addressed the court on the submission made by counsel for the 1st defendant, the Court ought not to mark the document rejected. It is my view that in view of the facts already placed before this court, the fact that Chief Coker had not replied to the objection raised by learned counsel for the 1 defendant does not preclude the court from making a ruling on the admissibility of the document. In my view the document is not admissible. It is to be marked rejected.’
The objection taken by all three counsel for the defendants was that the document could only be admitted pursuant to section 34 of the Evidence Act, and that in so far as the conditions stated in that section have not been met, the document remain irrelevant and inadmissible.
Section 34 of the Evidence Act Cap E 14 Vol. 6 Laws of the Federation of Nigeria 2004 stipulates that:-
’34. Relevancy of certain evidence for proving in subsequent proceeding, the truth of facts therein stated.
(1) Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party or when his presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable. .
(a)’That the proceeding was between the same parties or their representatives in interest.
(b) That the adverse party in the first proceeding had the, right and opportunity to cross-examine; and
(c) That the question in issue were substantially the same in the first as in the second proceeding’
Generally speaking, the essence of section 34 of the Evidence Act is to allow the evidence of a witness taken in earlier proceedings which is not ordinarily relevant in a later trial to discredit such a witness in cross-examination and for that purpose only. This is meant to test the credibility of such a witness and the veracity of his evidence. The evidence used for this purpose does not however become evidence in the latter case or for any other purpose. At such hearing his. attention must be called to the former case where such evidence was given and he should be reminded of what he had said on that occasion.
In the instant case, the Certified True Copy of the proceedings in HCJ/6/85 was meant to discredit the evidence of the 1st defendant at the trial court. In that case he testified that he belonged to Afurukeregboye Ruling House from the male line, a fact which was inconsistent with his averments in the case before the trial court.
A plethora of cases established the pre-requisite to making use of a former testimony of a witness. It is imperative that the attention of the witness to be discredited must be called to the former case and he should be reminded of his testimony on that occasion. The 1st defendant was not subpoenaed to give evidence and note worthy is the fact that he did not give evidence at all at the trial court.
The rejected document could only have been tendered to become admissible and relevant evidence if the 1st defendant had given evidence and was confronted with his earlier evidence in HCJ/6!85 under cross-examination so as to test the veracity of his evidence.
I agree-with my learned brother that the Court of Appeal was wrong in their judgment when the learned justices expressed at page 342 lines 11-35 of the Record that if the document had not been rejected the plaintiff could have had another opportunity of tendering the document to prove what is said to be the pivot of his case. The document could not be brought into evidence at a later stage
Bambo Adesany, Esqr (SAN), for the Appellant/Cross Respondent
with him, S.A Ogunede, Esqr
and T. Alabl, Esqr.
- O. Afolabi, Esqr, for the Plaintiff/1st Respondent/Cross Appellant
with him, A O. Popoo/a, . Esqr,
- A Ogun, Esqr,
Akeem Umoru, Esqr
and AA Oyeneyin, Esqrp
. Osinuga, Esqr, for the 2nd to 7th Respondents.