At the Hearing 3: Probative Value of Specific Documents/Pieces of Evidence

Admissibility of a Document Vs Weight/Probative Value attached to the Admitted Document – Two Different Considerations #

The admissibility of a document and its weight or probative value are two separate concepts in the law of evidence and each is governed by different principles. A plethora of authorities now emphasize this settled position of law by restating vividly that a distinction exists between admissibility of a document and the weight to be attached to it. Put differently, the admissibility of a piece of evidence is not the same thing as the question of weight to be accorded the piece of evidence – Sa’eed vs. Yakowa (2013) 7 NWLR (pt. 1352) 124 S.C, U.T.C. NIGERIA PLC V ALHAJI JIA WAHAB LAWAL (2014) 5 NWLR (PART 1400) 221 AT 244 F – G per KEKERE-EKUN, JSC; 2. A.C.N. V LAMIDO & ORS (2012) 8 NWLR (PART 1303) 560 AT 592D per FABIYI, JSC.

Also, the admissibility of a document in evidence does not automatically confer on it probative value. Therefore, a piece of evidence may ordinarily be admissible but may be lacking in probative value and therefore worthless – GBOMS & ANOR v. OGUNDU & ORS (2019) LPELR-49026(CA), JIME & ANOR v. INEC & ORS (2019) LPELR-49224(CA), IWOWARI-GOLD & ANOR v. INEC & ORS(2019) LPELR-49205(CA), KONJI & ORS Vs GEORGE NJOKANMA & ORS (1999) LPELR-2477 (SC).

Whereas admissibility is based on the law, the weight to be attached to a piece of evidence depends on such factors as relevance, credibility, probability and conclusiveness. See NAB Limited vs. Shuaibu (1991) 4 NWLR (186) 450, Omega Bank Nigeria Limited vs. O.B.C. Limited (2005) 1 SC (Pt. 1)49, Buildwell Plants Equipment Nigeria Limited vs. Roli Hotels Limited (2006) ALL FWLR (314) 238, Nasir vs. C.S.C. Kano State (2010) 6 NWLR (1190) 253. The weight or probative value of a piece of evidence also depends on the reasonable inferences that can be drawn in the circumstances in relation to the accuracy of the piece of evidence under consideration – ABUBAKAR v. IBRAHIM & ORS (2022) LPELR-58303(CA), Abubakar vs Chuks (2007) 12 S.C. 1.

Also, the issue of weight can only arise when the piece of evidence is admissible. In other words, the consideration of the probative value to be attached to a document comes after it has been admitted in evidence – BALA v. CHAIRMAN OF EFCC (2021) LPELR-56469(CA). More precisely, the issue of weight or probative value comes in for consideration at the stage of writing the judgment or ruling. That is when the document is evaluated alongside facts of the case – JWAN v. ECOBANK & ANOR (2020) LPELR-55243(CA).

Case Law Excerpts – #

OKONKWO v. VANGUARD MEDIA LTD (2022) LPELR-57246(CA)

“The position has been further strengthened in various judicial decisions that admissibility of evidence is different from the probative value thereof. That a document is relevant and in the legally admissible form would enable its admissibility but this does not automatically translate to its being accorded necessary evidential value in the course of evaluation. That a document therefore scales through the test of admissibility will not automatically attract probative value to it. See MONTANYA & ORS VS ELINWA & ORS (1994) LPELR-1919(SC) and ACN VS LAMIDO & ORS (2012) LPELR-7825(SC).” Per JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA (Pp 10 – 11 Paras E – B).

ERIAYE v. EREMIENYO & ANOR (2022) LPELR-58095(CA)

“Let me hasten to state that the fact that a document has been admitted in evidence does not mean that a Court must attach any probative value to it. The admissibility of a document and the weight to be attached to it, in the sense of probative value, are two different things. Little or no weight can still be attached to a document that has been admitted in evidence. In such a case the document is as worthless as if it had not been admitted in evidence in the first place. See DALEK NIG LTD vs. OMPADEC (2007) 7 NWLR (PT 1033) 402 at 441, NEPA vs. ADEYEMI (2007) 3 NWLR (PT 1021) 315, UTC NIG. PLC vs. LAWAL (2013) LPELR (23002) 1 at 31-32, ABUBAKAR vs. CHUKS (2007) LPELR (52) 1 at 13-14 and MOTANYA vs. ELINWA (1994) LPELR (1919) 1 at 11.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 16 – 17 Paras F – C).

MAKU v. AL-MAKURA & ORS (2016) LPELR-48123(SC)

“…The lower Court in affirming the Tribunal’s findings on Exhibits P20 and P32 firstly, see pages 3336 3337 of the record, relied on the decision of this Court in Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386 at 403, (2008) All FWLR (Pt. 408) 207, to stress the difference between the issue of admissibility of a document and the issue of the weight to be attached to the document. The Court concluded at pages 3339-3340 of the record by further relying on another decision of this Court, Omega Bank (Nig.) Plc. v. O.B.C. Ltd on the worthlessness of the two exhibits. Being rightly guided, one cannot agree more with the Court in its foregoing findings. It is indeed the principle that where a document ought to be signed and if it is not, its authenticity will be in doubt. An unsigned document, such as Exhibit P20, it is correct to hold, carries no weight. In addition to Omega Bank (Nig.) Plc. v. O.B.C. Ltd, the lower Court relied upon, Ikem v. Vidah Packaging Ltd (2011) All FWLR (Pt. 601) 1476 at 1507; Ojo v. Adejobi and Ors. (1978) 11 NSCC 161 at 165. Certainly, there is a clear dichotomy between the admissibility of a document and the probative value to be placed on it. What the appellant herein seems to ignore is that while admissibility is based on relevance, the probative value to be attached on the document depends not only on relevance but on proof. Exhibits P20 and P32 may be relevant and therefore admissible. The fact that they have been admitted in evidence, however, does not necessarily render them reliable, see Buhari v. I.N.E.C. (2008) All FWLR (Pt. 437) 42, (2008) 12 SC (Pt. 1) 1. The two Courts are aware of this principle and, for all the reasons adumbrated in their concurrent findings, they are entitled to discountenance the documents consequent upon the serious doubt in the authenticity of both exhibits.” Per MUSA DATTIJO MUHAMMAD, JSC (Pp 13 – 15 Paras F – C).

KOLAWOLE & ORS v. SALAWU-DEEN & ANOR (2022) LPELR-58078(CA)

“The point must be made that there is a world of difference between admitting a document in evidence and according the document probative value in the evaluation of evidence. The fact that a document has been admitted in evidence, with or without objection, does not mean that it must be accorded probative value in the course of evaluation of evidence by the trial Court. Different considerations apply to a trial Court attaching weight to a document admitted in evidence – Fadlallah Vs Arewa Textile Ltd (1997) 1 SCNJ 202, UTC Nigeria Plc Vs Lawal (2014) 5 NWLR (Pt 1400) 221, FCMB Ltd Vs Ogbuefi (2021) 10 NWLR (Pt 1783) 1, Jwan Vs Ecobank (Nig) Plc (2021) 10 NWLR (Pt 1785) 449. Thus, the fact of the admission of the document tendered as Exhibit A did not translate automatically to it being accorded probative value by the lower Court.” Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 21 – 22 Paras D – B)

Documents Dumped on the Court #

It is a common mantra among litigation lawyers that documents speak for themselves. While this mantra is not untrue (for the most part), it is best understood and applied within the context of the principle of law that a party who who produces a document so that the Court could utilise it in the process of adjudication, must tie it to the relevant aspects of his case. Where he fails to do so, it would be considered that he dumped the documents on the Court. And it should be noted that a Court has no duty to evaluate documents dumped on it – SAMUEL & ANOR v. TANIMU MUSA & ORS (2019) LPELR-50988(CA).

For emphasis, dumping documents on the Court simply means that a party who tenders the document fails to demonstrate them in Court or sufficiently link the document to his case. In other words, the witness or party simply provides the documents and walks away expecting the court to undertake the tedious task of sorting through them and pairing the relevant part of the documents to his case – Senator Ladoja v Senator Ajimobi & Ors (2016) 10 NWLR Pt 1519 p 87 at 145 to 146 paras H-F.  

This issue of dumping documents on the Court was held to arise in OKI & ANOR v. FED. MIN. OF WORKS & HOUSING & ANOR (2019) LPELR-49251(CA) where a witness tendered documents in bulk without proffering further evidence in the open Court to link them with the specific allegations contained in the pleadings. It has also been held to arise even where the documents in question were public documents and even where the documents were tendered from the bar – ASSENE (NIG) LTD v. MIVERO PHARMA LTD & ANOR (2021) LPELR-56247(CA).

The effect of dumping documents on a court is that the probative value of such documents is totally eroded. In effect, the documents though expected to speak have actually failed to speak and thereby lack evidentiary value – GREAT (NIG) INSURANCE PLC v. ZEAL TRUST LTD (2020) LPELR-53107(CA).

Cases on Point #

TUMBIDO v. INEC & ORS (2023) LPELR-60004 (SC), Ivienagbor v. Bazuaye [1999] 9 NWLR (pt 620) 552; (1999) 6 SCNJ 235, 243; Owe v. Oshinbanjo (1965) 1 All NLR 72 at 75; Bornu Holding Co. Ltd. v. Alhaji Hassan Bogoco (1971) 1 All NLR 324 at 333; Alhaji Onibudo & Ors v Alhaji Akibu & Ors [1982] 7 SC 60, 62; Nwaga v Registered Trustees Recreation Club (2004) FWLR (pt 190) 1360, 1380-1381; Jalingo v Nyame (1992) 3 NWLR (pt 231) 538; Ugochukwu v Co-operative Bank [1996] 7 SCNJ 22. Others include: WAB v Savanah Ventures [2002] FWLR (pt Pt 112) 53, 72; Obasi Brothers Ltd v MBA Securities Ltd [2005] 2 SC (pt 1) 51, 68; ANPP v INEC [2010] 13 NWLR (pt 1212) 549; Ucha v Elechi [2012] 13 NWLR (pt 1317] 330, 360; Omisore v Aregbesola [2015] 15 NWLR (pt 1482) 202, 323 -324.

Case Law Excerpts #

A.P.G.A. v. AL-MAKURA & ORS (2016) LPELR-47053(SC)

“In respect to the issue as to whether or not the appellant dumped documents on the trial Tribunal without a proper linkage between them and the proof required as to the non-compliance for which the electoral victory of the 1st and 2nd respondents should be set aside. In this wise, the two Courts below held thus at pages 3115 and 3349-3350 of the record and as follows: “On the issue of dumping documents, it is trite that documents apart from what they contain, do not speak. Therefore, a document cannot serve any useful purpose in the absence of oral evidence explaining its essence. The fact that a document has been admitted in evidence from the bar or by consent of parties does not necessarily mean that significant weight or any weight at all, should automatically be attached to it without further proof. It is the duty of the party tendering documents to relate each document tendered to that part of the case he intends to prove. This will enable the opposing party ask appropriate question. It does not lie in the Court to fish for evidence for the party tendering from the bar, from those documents. The position of the law on dumping of documents on Courts is that a party is under an obligation to tie his documents to facts or evidence or admitted in the open Court and not through a counsel’s address written or oral. It has been held by plethora of authorities that it is not the duty of the Court or Tribunal to embark upon cloistered justice by making inquiry outside Court, not even by examination of document which was in evidence when the document have not been examined in open Court nor brought out and exposed to test in open court……” This position was confirmed by the lower Court on pages 3349-3350 of the record of proceedings when it held: “The Tribunal rightly relies on the case of Obasi Brothers Ltd v. Merchant Bank of Africa Securities Ltd (2005) All FWLR (Pt. 261) 216, (2005) 2 SC (Pt.1) 51 at 68 to unassailably hold that the position of the law in dumping of documents on Courts is that the party is under an obligation to tie his documents to the facts or evidence or admitted facts in the open Court and not through counsel’s oral or written address. As for the contention of the learned counsel for the appellant that no barrier was in the way of the Tribunal to evaluate the documents tendered, the Tribunal also was on a very strong reason, when it held that from a plethora of authorities, it is not the duty of a Court of Tribunal to embark on inquiry outside the Court, not even by examination of documents which were in evidence when the documents had not been examined or analyzed as in the instance case by the party who tendered them.” It is to be noted and in agreeing with the concurrent findings and decisions of the two Courts below on dumping of documents, this Court had that question settled to the effect, that dumped documents may just be accepted as an architectural or artistic display of paper but if for the purpose of proving electoral malpractices or substantial non compliance with the Electoral Act, so as to jettison an electoral victory or return, then it is a non starter. There are numerous authorities in this regard but I shall anchor with that as stated by this Court per Rhodes-Vivour JSC in Ucha v. Elechi (2012) 13 NWLR (Pt. 1317) 330 at 360 that: “When a party decides to rely on documents to prove his case, there must be a link between the document and the specific areas of the petition. He must relate each document to the specific area of his case for which the document was tendered. On no account must counsel dump documents on a trial Court. No Court would spend precious judicial time linking documents to specific area of a party’s case. See A.N.P.P v. INEC (2010) 13 NWLR (1212) 549. A judge is to descend from his heavenly abode, no lower than the three tops, resolve earthly disputes and return to the Supreme Lord. His duty entails examining the case as presented by the parties in accordance with standards well laid down. Where a judge abandons that duty and starts looking for irregularities in electoral documents, and investigating documents not properly before him, he would most likely be submerged in the dust of the conflict and rendered a perverse judgment in the process.” Per MARY UKAEGO PETER-ODILI, JSC (Pp 64 – 67 Paras A – E)

GREAT (NIG) INSURANCE PLC v. ZEAL TRUST LTD (2020) LPELR-53107(CA)

“…The law on dumping of document is settled. The party tendering any document before the Court has a duty to give voice to the lifeless document tendered. Though we say the document speaks for itself but that does not mean that the document can be dumped in the Court. A document is said to be dumped on the Court when the person or party who tenders the document do not speak concerning the document. The document must be given a voice, in other words, there must be evidence adduced relating the document to the case. Where this is not done, the document will be said to be dumped on the Court. See APGA vs Alhaji Al- Makura & Ors (2016) 1 S.C. (pt IV) 66. I have looked at the proceedings in the lower Court and I am inclined to agree with the Appellant that the documents were dumped on the Court and therefore the Court should not give it probative value. In Maku vs Alhaji Al-Makura & Ors (2016) 5 NWLR (pt 1505) 201 the Supreme Court held: “1. Documents were tendered from the bar. It is the duty of the party tendering the said documents to relate each document tendered to the part of the case he intends to prove. Both Courts below were correctly of the view that the appellant failed to relate documents tendered to the part of the case he intends to prove. This could be very fatal, and usually is. Indeed, in Ucha v. Elechi (2012) All FWLR (Pt. 625) 237, (2012) 13 NWLR (Pt. 1317) 330 on dumping of documents, I said that: When a party decides to rely on documents to prove his case, there must be a link between the document and the specific areas of the petition. He must relate each document to the specific area of his case for which the document was tendered. On no account must counsel dump documents on a trial Court. No Court would spend precious judicial time linking documents to specific areas of a party’s case. See A.N.P.P. v. I.N.E.C. (2010) 13 NWLR (Pt. 1212) 549. A judge is to descend from his heavenly abode, no lower than the tree tops, resolve earthly disputes and return to the Supreme Lord. His duty entails examining the case as presented by the parties in accordance with standards well laid down. Where a judge abandons that duty and starts looking for irregularities in electoral documents, and investigating documents not properly before him, he would most likely be submerged in the dust of the conflict and render a perverse judgment in the process. Several documents after being admitted in evidence as exhibits were of no evidentiary value as there was no oral evidence to explain why they were tendered. It is the duty of appellant’s counsel to link documents tendered to specific areas of the appellant’s case, a procedure he failed to follow with obvious consequences.” Per EBIOWEI TOBI, JCA (Pp 68 – 70 Paras D – F)

PURPLE PINE GLOBAL CONCEPT LTD & ANOR v. IZGE & ORS (2022) LPELR-57762(CA)

“It is settled law that despite the tendering of exhibits in proof of a case, the onus of proving the case pleaded and for which the documents were tendered in evidence, lies on the Claimant. Where a claimant tenders documents in Court without linking them individually to the case being made, in this case, to the claim of money owed the Appellants by the 1st Respondent, it amounts to dumping of the documents on the Court. The law is trite that it is not the duty of the Court to sort out the documents and relate them to the claim of a party in order to arrive at the total sum claimed by the claimant. Doing so would compromise the role of the Court as an impartial arbiter. See Maku V Al-Makura (2016) LPELR-48123(SC) 21-22, E-F, per Onnoghen, JSC (later CJN). This Court in Akpabio V Union Bank Plc (2021) LPELR-54301(CA), 13-15, F-A, per Owoade, JCA explained it simply but splendidly when he said – “The rule of evidence which requires demonstration of documents tendered in proof of a case arose in the case of Duruminiya V COP (1962) NNLR 70 where Bate J. said that, a trial is not an investigation and that investigation is not the function of a Court. That, a trial is the public demonstration and testing of the cases of contesting parties. That, the demonstration is by presentation of evidence and that the testing is by cross-examination of witnesses. Since then, trial Judges frown on the dumping of documents as it were in Court without linking same to the particular facts and/or reliefs sought by the parties to the case.” It has also been held in Ogboru V Uduaghan (2011) 2 NWLR (Pt. 1232) 538, 580-581, that – “A party relying on documents as part of his case must specifically relate each of such documents as part of his case in respect of which the document is tendered. The rationale for this judicial attitude is that the Court cannot be saddled with the duty of relating each of the documents or bundles of documents tendered in evidence to aspects of the case of a party. This is because it is the duty of the party to do so for himself. More so, it would be an infraction of the right of fair hearing if the Tribunal, in the ambience of its chambers engages itself to guess which document relates to a particular aspect of the case of a party. Such a duty ought to be carried out in open Court.” Per JUMMAI HANNATU SANKEY, JCA (Pp 17 – 19 Paras A – A)

What does a Newspaper really proof? – Probative Value of Newspapers #

When a newspaper publication is relied upon to prove the truth of the facts stated therein, such amounts to hearsay evidence and the newspaper publication is consequently inadmissible in evidence as proof of the truth of the fact or story reported in the newspaper. Thus, newspaper publications only constitute proof of the fact that the news reports made therein were in fact made and do not constitute proof of the truth of the contents of the publication.

ABEGUNDE v. THE ONDO STATE HOUSE OF ASSEMBLY & ORS (2014) LPELR-23683(CA) Per UGO, J.C.A. (Pp. 112-113, paras. B-F)

“…the law is well settled that newspaper report is hearsay evidence and so irrelevant and inadmissible in proof of whatever is reported there. In RNHW v. SAMA (1991) 12 NWLR (Pt. 171) 64 at 77, this Court held that: “A newspaper report is not generally admissible as evidence of the facts recorded in it.” Again in Olly v. Tunji (2012) ALL FWLR (Pt. 654) 39 @ 67 at para H, this court, per Ogunwumiju J.C.A., reiterated that point, holding that: “There is no doubt in my mind that this court cannot rely on newspaper publications etc. which the 1st respondent relied on among other evidence. It is a non-issue to consider photocopies of newspaper publications as having any probative value since they have no such value. Newspaper publications are only proof that the publication was made and not proof of the truth of the contents of the said publication.”

LAWRENCE v. OLUGBEMI & ORS (2018) LPELR-45966(CA) Per TSAMMANI, J.C.A. (Pp. 47-49, Paras. A-E)

“…Now, in law, Newspaper reports are not generally admissible as evidence of facts contained in them. The statements made in such Newspapers are therefore reports of statements made in them by a person who is not the maker. The statements reported are therefore, in law, deemed to be hearsay by Virtue of Section 37 of the Evidence Act, 2011 and therefore inadmissible as the truth of the statements made therein…Thus Tobi, JSC (of blessed memory) in the case of Ojukwu v. Yar’adua (2009) All FWLR (pt. 482) 1065 said: “What is the evidential value of a newspaper report? I do not see any and there is none in law.” For the statement contained in a newspaper to have any credibility, the maker of the statement subject of the report in the Newspaper must be called to testify. Thus, when tendered and admitted, it will be evidence that the publication was made and therefore not proof of the truth of the statements contained therein. See Lawal v. Governor of Kwara State (2006) All FWLR (pt. 321) 1299 at 1308 and Lekwot v. Judicial Tribunal (1997) 7 SCNJ 147, Chuka v. Ikechukwu & Ors (2015) LPELR – 40443 (CA); Abegunde v. Ondo State House of Assembly & Ors (2014) LPELR – 23683 (CA) and Bajowa v. FRN & Ors (2016) LPELR – 40229 (CA).

OLLY v. TUNJI & ORS (2012) LPELR-7911(CA)

“There is of course no doubt in my mind that this Court cannot rely on Newspaper publications etc which the 1st Respondent relied on among other evidence. It is a non issue to consider photocopies of newspaper publications as having any probative value since they have no such value. Newspaper publications are only proof that the publication was made and not proof of the truth of the contents of the said publication.” Per HELEN MORONKEJI OGUNWUMIJU, JCA (Pp 42 – 42 Paras E – F).

APC v. AGUMA & ORS (2020) LPELR-52574(CA)

“The trial Court ought not to have accorded probative value to the said publication in the Newspaper because such publication may not contain the truth about its content. See AYO ADEGBITE V THE STATE (2018) 5 NWLR (PART 1612) 183 AT 204H TO 205 A per GALINJE, JSC who said:- “The lower Court was also right when it refused to accord probative value to the Newspaper report and radio interview as newspaper report is not always the truth of its contents and the prosecution had no burden to tender the newspaper report in evidence.” Per PETER OLABISI IGE, JCA (Pp 101 – 102 Paras D – A)

Effect of an unsigned document #

There is no gainsaying that an unsigned document is worthless and has no evidential value; Bello v Sanda (2012) 1 NWLR (Pt 1281) P 219, Omega Bank Plc v O.B.C. Ltd (2005) 8 NWLR (Pt 928) 547.

This rule, however, applies only where the document in issue ought to be signed.

In Nwancho v. Elem [2004] All FWLR (Pt. 225) 107, Aiki v. Idowu [2006] All FWLR (Pt. 293) 361; [2006] 9 NWLR (Pt. 984) 47 and Sarai v. Haruna [2008] 23 WRN 130, it was held that any document which ought to be signed and is not signed renders its authorship and authenticity doubtful.

By the authority of Madam Jaratu Abeje & anor v. Madam Saratu Apeke [2013] LPELR-20675(CA), though unsigned documents should attract little or no evidential weight or value, it is not everything in writing that goes under the rubric of “document” that will lose its evidential worth simply because it is not signed.

Also, in the case of Ashakacem Plc v A.M. Inv Ltd (2019) 5 NWLR (Pt 1666) Page 447, the Supreme Court highlighted an exception to the general position that unsigned documents are inadmissible and worthless.

The Court held as follows; “The Appellant is urging this Court to discountenance exhibit L because it was unsigned but the Appellant did not take up the findings of the lower Court which stated that this case is of peculiar circumstance that cannot be ignored.

The point has to be made that the requirement of signature is made by the law to determine its origin and authenticity with regard to its maker and so where certain situations exist an unsigned document could be admissible as in this instance where oral evidence clarifying the document and its authorship as in the case at hand thereby rendering such an unsigned document admissible. This unusual but allowable exception to the general rule was well explained in this Court in the case of Awolaja & Ors v Seatrade G.B.V. (2002) LPELR – 651 per Ayoola. JSC as follows:- “A signed document though valuable as putting it beyond peradventure what terms the parties have agreed to is not essential to the existence of a contract of affreightment. Where the immediate parties to the agreement do not deny their agreement or the existence of the contract of affreightment and there is no doubt about their intention that they should be bound, barring statutory provision to the contrary, (and none has been cited by the defendants) the existence of the contract cannot be impugned on the ground that the document embodying the terms they have agreed to was unsigned, unless the parties have made such a condition of their being bound”. (Italics supplied). The cognizibility of the origin of Exhibit L is underscored in this instance where the appellant’s sole witness stated thus:- “Exhibit L is dated 12/5/2008. Exhibit L was copied to me and in the figures in attachment of Exhibit L. 6.384,469 litres according to dispute. I agree that Exhibit L is confirming Exhibit F”. Clearly the parties are agreed on the said Exhibit L and that it emanated from the appellant and so the current posture on the said Exhibit L by the appellant is strange and so the Court below had its findings well supported by evidence and for effect I shall quote excerpts therefrom thus:- “Counsel to the appellant submitted that the lower Court ought not to have relied on Exhibit L because the email was unsigned. This argument, with respect, cannot hold water in the circumstances of this case because the purchasing manager of the appellant at the time, Dahiru Alhassan, one of the addressee on the email and who testified as the witness of the appellant, confirmed under cross examination, the origin and authenticity of the email and of attachment to it. He stated: ” …Exhibit L is dated 12/5/2008. Exhibit L was copied to me and in the figures in the attachment of Exhibit L 6.384.469 litres according to dipping. I agree that Exhibit L is confirming Exhibit F”. The finding of the Court of Appeal on the point is unassailable and I am at one with it” Per MARY UKAEGO PETER-ODILI, JSC (Pp 27 – 29 Paras C – E).

Documents marked without prejudice #

Grayshot Ent Ltd v Min. of Agric (2002) 9 NWLR (Pt 711) 1 at 22 – “Jowitt’s Dictionary of English Law 2^nd Edition by John Burke in volume 2-page 1909 defines “without prejudice”, a phrase used in offers, in order to, guard against any waiver of right; also for the purpose of negotiating a compromise. Communications made without prejudice for the purpose of negotiating a compromise are not admissible in evidence (Robin v Mendozat Co) 1954 1 WLR 271. If, however, they result in a concluded agreement they are admissible Attorney General v Dyer (1947) Ch. 67

RESURRECTION POWER INVESTMENT COMPANY LTD V. UBN PLC (2013) LPELR-21262(CA)

“There is no doubt that it is settled law that a letter or correspondence marked “without prejudice” signifies that (1) whatever is said therein concerning the subject matter of the dispute or negotiation between the parties, is a bona fide offer of compromise or settlement of the dispute or bargain and should not be treated as an admission against the interest of the writer or the party making the statement; and (2) that whatever the addressee says in response to the said subject matter shall equally not be treated as an admission against him. To encourage good faith in negotiations and dispute resolutions, amicable settlement of such disputes and avoid unfair practices, the courts have overtime remained unanimous that such offer, or statements or discussions of same cannot be admitted in evidence against either of the parties to the dispute or negotiation. See for example FAWEHINMI V. NBA & ORS (1989) 4 SC (Pt 1) 63, ASHIBOGWU V. ATTORNEY GENERAL BENDEL STATE (1988) NSCC (Pt 1) 439 at 662, NWADIKE & ORS V. IBEKWE & ORS (1987) 112 SC 14 and OBEYA V. F.B.N PLC (2010) LPELR 4666. But where such letter or other communication or correspondence is not being tendered as evidence of such offer or compromise but for a purpose not connected with the proof of such offer or compromise or any discussion connected therewith and the purpose for which it is tendered is not against the interest of either party to the dispute but to help the due process of administration of justice in the case by avoiding abuse of the court process, I am inclined to hold that it can be admitted in evidence. The “without prejudice” protection or privilege is one of good faith. So a party cannot exploit it mala fide for inordinate purposes. A party to a case, cannot exploit that protection to prevent the court from finding out if a step the party has taken or seeks to take in proceedings before it will help the due process of adjudication or amount to an abuse of the process of court.” Per AGIM, J.C.A. (Pp. 28-29, paras. A-C)

ASHAKACEM PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR-46541(SC)

STATEMENT MADE WITHOUT PREJUDICE: Whether a statement made without prejudice during a negotiation can be admitted in court when such negotiation fails

“…That being the law it falls to reason that the letter dated 2nd March 2009 having been made in the process of reconciling the dispute between the parties and so the Court of Appeal was right to have upheld the decision of the trial Court on the document. The principle is anchored on the basis that at the point of mediation, parties should speak freely all in the quest for a peaceful resolution of the dispute. This principle of free discussion will be seriously prejudiced or impaired if any offer or admission made in the process of the negotiation could be given in evidence and used in support of a party’s case in Court afterwards where the negotiation breaks down. Therefore when those negotiations are reduced in writing they are usually marked “without prejudice” for the avoidance of doubt and so remain inadmissible against the parties or any of them in the ensuing suit in Court. However, if the words “without prejudice” is not stated in plain language, it does not detract from the fact that the words are implied in the negotiations conducted in documentary form or verbally. See Ashibuogwu v Attorney General Bendel State (1988) 1 SC 248; (1988) 1 NWLR (Pt.69) 138 at 169 which case interpreted Section 198 of the Evidence Act which provisions are impari materia with the old Evidence Act which interpreted the law in accordance with the established cannon of interpretation, reliance being placed on public policy in the protection and service of public interest. This is all the more germane at this current time where the trend is the encouragement of mediation and resolution of disputes in peaceful atmosphere without resorting to Court process. All I have been I have been labouring to put across is that the Court below was right in its findings and decision on this issue that the said document of 2nd March, 2009 remained outside and inadmissible as evidence at the trial proper.” Per PETER-ODILI, J.S.C. (Pp. 23-25, Paras. D-A)

Similarly, see –

SOCACIC WEST AFRICA (NIG.) LTD v. ACCESSFILED (NIG.) LTD (2021) LPELR-56405(CA)

 – Whether any letter or minute of discussion written in the course of mediation between parties to a dispute is inadmissible in evidence in a subsequent suit between them

“The position of the law as decided in plethora of authorities is that any letter or minute of discussion written in the course of mediation between parties to a dispute is inadmissible in evidence in a subsequent suit between them whether or not such documents were marked “without prejudice”. The Apex Court further expatiated this principle in the case of ASHAKACEM PLC V. A.M. INV. LTD, (2019) 5 NWLR (PT. 1666) 447 (P. 463, PARAS A-E) (SC) Per MARY UKAEGO PETER-ODILI, JSC: “A letter written in the course of mediation between parties to a dispute is inadmissible in evidence in a subsequent suit between them. The principle is based on the need for the parties to speak freely in their quest for a peaceful resolution of the dispute. The need for free discussion would be seriously prejudiced or impaired if any offer or admission made in the process of the negotiation could be given in evidence and used in support of a party’s case in Court afterwards if the negotiation breaks down. Therefore when the negotiations are reduced in writing they are usually marked “without prejudice ” for the avoidance of doubt and so remain inadmissible against the parties or any of them in the ensuing suit in Court, However, if the words “without prejudice” are not stated in plain language, it does not detract from the fact that the words are implied in the negotiations conducted in documentary form or verbally, In this case, the respondent’s letter dated 2nd March, 2009 was made in the process of reconciliation between the parties. So the Court of Appeal rightly upheld the decision of the trial Court that the document is inadmissible. [Ashibuogwu v. A.-G., Bendel State (1988) 1 NWLR (Pt.”) 138″ See also MAKANJUOLA V STATE (2021) LPELR(SC).” Per UCHECHUKWU ONYEMENAM, JCA (Pp 14 – 16 Paras F – C)

Further readings;

A LEGAL POSITION ON ADMISSIBILITY OF DOCUMENTS MARKED ‘WITHOUT PREJUDICE’ UNDER NIGERIAN LAW

Effect of an Undated document #

An undated document has been held to be worthless just like its counterpart; an unsigned document –

OLUWARANTI v. SONOLA & ANOR (2022) LPELR-57839(CA)

“…the Deed of Sale Agreement appellant tendered lacks date of transaction, an undated document is worthless. See MR. YORIS VISINONI V. MRS. TINA BRAHAMS & ANOR (2015) LPELR-40405(CA) wherein the Court held thus: “An undated document was held to be invalid and has no probative value. See OGBAHON V. REG. TRUSTEE C.C.G.G. (2001) FWLR (PT. 80) 1496.” PER ABBA AJI, JCA.” Per YARGATA BYENCHIT NIMPAR, JCA

SIFAX (NIG) LTD v. PHOENIX CAPITAL LTD & ANOR (2017) LPELR-50825(CA)

“The said exhibit is undated and the trial Court rightly stated the position of the law to the extent that a document which bears no date of execution by the parties is invalid and unenforceable as it has no evidential value in law. See OLAWEPO v SEC [2011] LPELR – 3598 (CA); UDO & ORS v ESSIEN & ORS [2014] LPELR – 22684.” Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA (Pp 45 – 45 Paras B – C)

See also – VISINONI v. BRAHAMS & ANOR (2015) LPELR-40405(CA), AMIZU v. NZERIBE (1989) 4 NWLR Pt.118 Pg.775, ADIGHIJE v. NWAOGU & ORS (2010) LPELR-4941(CA), ABDULLAHI v. STATE (2016) LPELR-43753(CA)

In the Supreme Court case of OMORINBOLA II v. MIL. GOV. ONDO STATE, the Apex Court held that the presumption in S.130 of the Evidence Act cannot avail an undated document more than 20 years old and whose authors were not known.

Exception to the Rule –

Can an unsigned/Undated document be admitted in evidence and accorded probative value?

It is a general principle of law that unsigned and undated documents are invalid and have no evidential/probative value. See VISINONI V. BRAHAMS & ANOR (2015) LPELR-40405 (CA). This general rule however is not without exceptions.

Thus, when certain situations exist, an unsigned document can be admissible. See ASHAKACEM PLC V. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) 5 NWLR PT. 1666 (P-464, PARAS F-G) (SC); (2019) LPELR-46541 (SC).

The Apex Court in the referred case succinctly stated that: “The legal requirement of signature on a document is to determine the document’s origin and authenticity with regard to its maker. So, where certain situations exist, an unsigned document could be admissible where oral evidence is presented to clarify the document and its authorship. In this case, the parties agreed that Exhibit L emanated from the Appellant and rendered it admissible. Therefore, the Court of appeal rightly found the document was admissible”. – PEACE CAPITAL MARKET LTD v. UJAM (2021) LPELR-54954(CA)

Also, not all unsigned documents are void an example is an unsigned/undated final written address;

HARUNA v. UNIVERSITY OF AGRICULTURE MAKURDI & ANOR (2004) LPELR-5899(CA)

“Not every unsigned document is void. The authorities relied on by the appellant’s counsel seem to apply to specific types of documents and would not apply to an address which the rules of the High Court or the law does not specifically require to be in writing and signed. I must not fail to state that it is desirable for counsel to sign and date documents being filed in Court which is made by him. It is well settled that an unsigned and undated judgment is null and void and of no effect – See Tsalibawa v. Habiba (1991) 2 NWLR (Pt.174) 461; Akinola Awoniyi v. Aleshinloye Per IFEYINWA CECILIA NZEAKO, JCA (Pp 54 – 56 Paras B – B)

But an unsigned judgment lacks all probative value and is invalid.

OGBUKA v. NAF (2021) LPELR-56090(CA)

“I must make the point agreeing entirely with Appellant’s counsel that an unsigned judgment is not valid and in fact is like an unsigned document. The law on unsigned document is that, that document is of no effect and indeed void. See Mohammed Ali vs The State (2020) LPELR-53409 (SC); Davidson & Ors. v. INEC (2021) LPELR-52805 (CA); Omega Bank ( Nig) Plc vs O.B.C Ltd (2005) 1 S.C. (pt 1) 49. In similar vein, an unsigned judgment cannot pass any right or place liability on anyone. It is a non-existing document or in fact a non-existing judgment. It is not a judgment that can pass any right or deserving of a second look. This Court took this position on unsigned and undated judgment of a Court martial. See Capt. Erizea vs Nigerian Army (2016) 10 NWLR (pt 1519) 52; Philip vs Nigerian Army (supra).” Per EBIOWEI TOBI, JCA (Pp 43 – 44 Paras C – A)

Business Letters Un-responded to #

Liabilities can be established via business correspondences/letters. The consistent case law position here is that the failure to respond to a business letter whose contents require a response is deemed an admission of the letter’s contents; Advanced Coating Technology (NIG) Ltd. v. Express International Plant Hire (NIG) Ltd. (2019) LPELR 7833(CA). A plethora of cases establish this position;

Maradun v. Tambuwal it was held that:

“The failure of the defendant to react to the contents of the letter written to him by the plaintiff’s lawyer even in his affidavit to disclose intention to defend action on merits coupled with the various documents signed by him and exhibited to the plaintiff’s affidavit totally obviated the need for the lower Court to transfer the suit to the general cause list. The silence of the defendant on the letter of the plaintiff’s lawyer leads to presumption of admission of its contents by conduct by the defendant.”

See also; Gwani v. Ebule 2015 LPELR-24443(CA) Per Awotoye, J.C.A (Pp. 31 paras. A) [1990] 5 NWLR (PT.149) 201

Even the failure to respond to a Solicitor’s letter has been held to be an admission – UBA PLC v. Vertex Agro Ltd. (2019) LPELR-48742(CA).

But this caselaw position is clearly not cast in stone.  

Business Letters and Debt Recovery Actions

Failure of a debtor to react to a demand letter from a creditor: In In-Time Connection Ltd v Mr Janet Ichie (2008) LPELR – 8772 (CA), per Eko JCA (as he then was) at P.20 Para D-G, it was held that “where a creditor writes a demand letter which the supposed debtor fails to react to, the silence of the latter leads to presumption of admission of conduct.” per Adefope-Okojie ,J.C.A (Pp. 19-20 Paras. C)Construction Road To House Limited & Anor V. Unity Bank Plc (2017) LPELR-43187(CA)

Failure to react to the figure quoted in a demand letter: In the Registered Trustees Anacowa Motorcycle Owners & Riders Association & Ors v. Nut Endwell Micro Finance Bank Limited Per Wambai ,J.C.A (Pp. 22-23 paras. E-E) (2018) LPELR-46749(CA) held that the failure to react to the figure quoted in the demand letter leads to a presumption of admission by conduct. The Appellants must thus be deemed to have admitted their indebtedness to the Respondent.

JOE IGA VS CHIEF AMAKIRI (1976) II SC PG. 1 where the Supreme Court held that “where a creditor writes a demand letter which the supposed debtor fails to react to, the silence of the later leads to the presumption of admission by conduct.”

Suggested Reading:

BUSINESS CORRESPONDENCE AND CONTRACTUAL RELATIONSHIPS: WHAT PARTIES MUST KNOW by Chidiebere Ejiofor available via https://www.templars-law.com/wp-content/uploads/2021/04/BUSINESS-CORRESPONDENCE-AND-CONTRACTUAL-RELATIONSHIPS.pdf

Evidential Value of a Statement of Account – Can a Statement of account alone prove complete liability of a Bank Customer or Borrower? – Section 51 of the Evidence Act #

For emphasis, the issue under discuss here can be framed as – Whether a statement of account alone can be used to prove the indebtedness of a customer for the overall debit balance to a bank.

The law is now settled beyond peradventure that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the statement of account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account must adduce both testimonial and documentary evidence, explaining clearly the entries therein to show how the overall debit balance was arrived at.

[There is need to note the applicability of Section 84 to statements of account and arising exceptions thereto]

LUMATRON (NIG) LTD & ANOR v. FCMB PLC (2016) LPELR-41409(CA)

By their tenor, statements of entries in books of accounts or electronic records kept or maintained in the ordinary and usual course of business, are admissible whenever they refer to a matter which a Court has to determine in case, but alone, without more, “shall” not be sufficient evidence which can be used or relied upon by a Court to charge any person with liability. It simply means that such statements are not sufficient to prove, on their own, and without other or further evidence, the liability of person for which he can be charged by a Court. Exhibit CW25 is undoubtedly, a statement of entries in books of accounts kept by the Respondent in the course of its usual business of banking in the relationship between it and the Appellants; its customers. It therefore comes within the provisions of the Section above, by which the statement alone, shall not be sufficient evidence to charge the Appellants with liability. See Anyaebosi v. R.T-Briscoe Nigeria Limited (1987) 6 SCNJ. 9. It may be noticed that the use of the word “shall” in the provisions does not admit of a discretion on whether the statement mentioned therein alone, could be considered as sufficient evidence upon which the liability of a person can be charged by a Court. The context in which the word was employed by the legislature, eliminates situations when or where the word “shall” may be interpreted to just be permissible or “may” instead of being directory of a command to be complied with in the application of the provisions. The provisions do not deal with procedure but rather, is the law on the requirement of proof of a fact assertion or allegation of liability by the party who alleges or asserts such liability against another person. In the case of Odogwu v. Odogwu (2006) 2 SCNJ. 96 @ 114, it was held that the word “shall” is used to express a command or exhortation, or what is legally mandatory. See also Bamaiyi v. A.G.F. (2001) 468 @ 480; Agip Nigeria Limited v. Agip Pet. Int’l (2010) 5 NWLR (1187) 348 @ 419. In the above premises, a statement of account, alone and without other or further evidence, oral or documentary, is not sufficient evidence to form or warrant a charge of liability of a person.” Per MOHAMMED LAWAL GARBA, JCA (Pp 18 – 21 Paras F – A)

FCMB v. ROPHINE (NIG) LTD & ANOR (2017) LPELR-42704(CA)

“Under the provisions of Section 51 of the Evidence Act, 2011 entries in books of accounts kept regularly in the course business, such as statements of accounts, shall not alone be sufficient evidence to charge any person with liability. Consequently, even where statements of account/s kept by banks in respect of customers’ accounts, are put in evidence in a claim for repayment of debt owed by the customer, there must be satisfactory and sufficient evidence to demonstrate and prove how the entries therein were arrived at in order to ground charging the customer with liability on the claims. See: Wema Bank Plc. vs. Osilaru (2012) 1 BFLR 693 @ 712, Yusuf v. ACB (1986) 1-2 SC 149, Habib Nigeria Bank Limited v. Gifts Unique Nigeria Limited (2004) 15 NWLR (896) 408.” Per MOHAMMED LAWAL GARBA, JCA (Pp 22 – 23 Paras F – C)

AKINRINLOLA & ANOR v. ECOBANK (2021) LPELR-53342(CA)

“The law is now settled beyond peradventure that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the statement of account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account must adduce both testimonial and documentary evidence, explaining clearly the entries therein to show how the overall debit balance was arrived at. See Section 51 of the Evidence Act 2011 and the cases of OGBOJA vs. ACCESS BANK PLC (2015) LPELR (24821) 1 at 42-44, CO-OPERATIVE BANK LTD vs. OTAIGBE (1980) NCLR 215, YUSUF vs. ACB (1986) 1-2 SC 49, HABIB NIGERIA BANK LTD vs. GIFTS UNIQUE (NIG) LTD (2004) 15 NWLR (PT 896) 405 and WEMA BANK vs. OSILARU (2008) 10 NWLR (PT 1094) 150. This legal position is not changed by the fact that testimonial evidence was not adduced in this matter and that summary judgment was entered based on the motion filed by the Respondent. In such circumstances, it behoves the claimant to clearly explain in the supporting affidavit, the entries in the Statement of Account, on the basis of which it wants summary judgment, so as to satisfy the stipulations of Section 51 of the Evidence Act. The Respondent did not explain the entries in the statement of account and the lower Court erred when it entered summary judgment in its favour.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 32 – 33 Paras E – F)

HADYER TRADING MANUFACTURING LTD & ANOR v. TROPICAL COMMERCIAL BANK (2013) LPELR-20294(CA)

“It is settled law that a Statement of Account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the account. This position of law is predicated on the provision of Section 38 of the Evidence Act, Cap 112, Laws of the Federation 1990, which was the applicable law as at 3rd of December, 2004 when the Exhibit E was tendered in Court, and the Section stated that “entries in books of account, regularly kept in the course of business are relevant whenever they refer to a matter into which a Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.” This provision has been integrated by the Courts to mean that any bank which is claiming a sum of money on the basis of the overall debit balance of a Statement of Account must adduce both documentary and oral evidence explaining clearly entries therein, particularly where the debt is constituted largely by interest charges, to show how the overall debit balance was arrived at. The Bank cannot just toss and dump before the Court the Statement of Account in proof of the indebtedness of the customer for the overall debit balance therein; it must do more than that Co-Operative Bank Ltd Vs Otaigbe (1980) NCLR 215, Yusuf Vs African Continental Bank (1986) 1-2 SC 49, Habib Nigeria Bank Ltd Vs Gifts Unique (Nig) Ltd (2004) 15 NWLR (Pt.896) 405 and Wema Bank Plc Vs Osilaru (2008) 10 NWLR (Pt.1094) 150.” (DISSENTING) Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 63 – 64 Paras B – C)

MUOGBO v. EQUINOX MICROFINANCE BANK LTD (2019) LPELR-47161(CA)

UNION BANK v. TENOSYS GLOBAL KONNECT LTD & ANOR (2020) LPELR-49736(CA)

“The Appellant/Cross Respondent relied exclusively on the statement of account in proof of the indebtedness of the Respondents/Cross Appellants. As its sole witness, the DW1, failed to testify and speak to the specific entries in the statement of account. In fact, she testified that she is not the accounts officer in respect of the accounts. The law is now settled beyond peradventure that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the statement of account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account must adduce both testimonial and documentary evidence, explaining clearly the entries therein to show how the overall debit balance was arrived at. See Section 51 of the Evidence Act 2011 and the cases of OGBOJA vs. ACCESS BANK PLC (2015) LPELR (24821) 1 at 42-44, CO-OPERATIVE BANK LTD vs. OTAIGBE (1980) NCLR 215, YUSUF vs. ACB (1986) 1-2 SC 49, HABIB NIGERIA BANK LTD vs. GIFTS UNIQUE (NIG) LTD (2004) 15 NWLR (PT 896) 405 and WEMA BANK vs. OSILARU (2008) 10 NWLR (PT 1094) 150. The Respondents/Cross Appellants disputed their indebtedness to the Appellant/Cross Respondent. Indeed, the tenor of their claim before the lower Court is that it is the Appellant/Cross Respondent that is indebted to the 1st Respondent/Cross Appellant. Therefore, the Appellant/Cross Respondent was under the bounden duty to prove that the Respondents/Cross Appellants are in fact indebted to it. This cannot be accomplished by mere production of the statement of account. It must go further to demonstrate by viva voce evidence, given by an official familiar with the accounts, how the debit balance was arrived at. See BIEZAN EXCLUSIVE GUEST HOUSE LTD vs. UNION HOMES SAVINGS & LOANS LTD (2011) 7 NWLR (PT 1246) 246, BILANTE INT’L LTD vs. NDIC (2011) 15 NWLR (PT 1270) 407 and SAMABEY INT’L COMMUNICATIONS LTD vs. CELTEL NIGRIA LTD (2013) LPELR (20758) 1 at 28-29.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 17 – 19 Paras F – E)

Documents executed in Counter parts – Section 86(3) of the Evidence Act #

WILLOUGHBY NIG. LTD & ANOR v. HON. MINISTER FEDERAL MINISTRY OF TRADE AND INVESTMENTS & ANOR (2020) LPELR-51184(CA)

“The law is trite by Section 86(1) of the Evidence Act, 2011 that “Primary evidence means the document itself produced for the inspection of the Court” and by Section 86(3) that “Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it.” It therefore goes to show that where a counterpart copy is produced, it is primary evidence. It is noteworthy to mention that primary evidence is also termed Best Evidence which presupposes that no better evidence could have existed than what is adduced. In SOLID UNIT NIG. LTD & ANOR VS. GEOTESS NIG. LTD (2013) LPELR-20724(CA), the Court of Appeal per Sankey, JCA in P. 40, paras. A – C held that: “The law is that documents may be proved by primary evidence except in the cases mentioned in the Evidence Act, 2011, particularly in Sections 89 and 90 thereof. Primary evidence means either that (i) the document itself is produced before the Court, (ii) any one of the documents which was executed in several parts, (iii) its counterparts where each has been executed by one or some of the parties and copies produced via one uniform process such as printing, computer or other electronic or mechanical process, etc.” Also, in the case of LUFTHANSA GERMAN AIRLINES VS. BALLANYNE (2012) LPELR – 7977(CA), the Court of Appeal held that: “It is a trite general principle, that a party that relies on the contents of a document to establish his case, has a duty to produce the original of the document before the Court. See R. VS. ROBSON (1972) 2 ALL ER 699 at 701. Where many copies of a document (e.g. contract, agreement etc) are made by the process of typing with carbon papers, each copy thereof, including the carbon copies, is primary evidence of the document; provided they are signed or executed by all the parties to the agreement. See FORBES VS. SAMUEL (1913) 3 KB 705.”Per SAULAWA, J.C.A (Pp. 27-28, paras. F – A)” From the forgoing it can be concluded that the counterpart copy of the award letter Exhibit A submitted by the Appellants is in fact primary evidence which is the best evidence. It is therefore clear that a valid and binding contract has been established between the parties.” Per MOHAMMED BABA IDRIS, JCA (Pp 22 – 23 Paras A – F)

Admissions against interest #

– MOHAMMED v. APC & ORS (2019) LPELR-48061(CA)

Seismograph Services Nig. Ltd v Eyuafe 9-10 SC 135 at 146, per Idigbe JSC, as follows: “…A statement oral or written, made by a party to a civil proceeding and which statement is adverse to his case is admissible in the proceedings as evidence against him of the truth of the facts asserted in the statement…” As held by Augie JCA (as she then was) in Lateef Atobatele Ali v United Bank For Africa Plc (2014) LPELR-22635(CA) “An admission is an express or implied concession by a party of the truth of an alleged act; it is a statement made by a party that is adverse to his case. It is admissible against the maker as truth of the fact asserted and in civil cases, they are evidence of facts asserted against but not in favour of such party…It is presumed that no man would declare anything against himself unless it was true… Thus, a party is entitled to rely on his opponent’s admission as an admission against interest to defeat his opponent’s claim.”  In Onyenge v Ebere (2004) 13 NWLR Part 889 Page 1 at 39 Para F-G the Supreme Court, per Tobi JSC held an admission against interest to be “the best evidence” of the opponent. I accordingly hold Exhibit P12 to be an admission against the interest of the 1st Respondent and the best evidence against it, requiring no further proof.” Per OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA (Pp 60 – 62 Paras E – A)

EGBUTA & ANOR v. ELEKWACHI & ANOR (2013) LPELR-20666(CA)

– Effect of an admission against interest

“The law is that an admission by a party against his interest is admissible against that person. Though in law, admission per se does not constitute conclusive evidence of the matters admitted, they may operate as estoppels against such person, for they stand against such person making the admission. In other words, a statement, oral or written made by a party in a civil proceeding, and which statement is adverse to his case, is admissible against him in the proceedings as evidence against him of the truth of the facts ascertained in the statement. See ODI v. IYALA & ORS (2004) 8 NWLR (Pt. 875) p.283, SEISMOGRAPH SERVICES NIG. LTD v OGBENEGWEKE (1927) 9-10 S.C.P. 146 and AKINTOLA v BALOGUN (2000) NWLR (Pt. 642) P. 553. See also section 27 of the Evidence Act, 2011.” Per HARUNA SIMON TSAMMANI, JCA (Pp 51 – 52 Paras E – B)

KAMALU & ORS v. UMUNNA & ORS (1997) LPELR-1657(SC)

– Effect where a party makes an admission against his interest

“Where there are admissions by a party against his interest such admissions will be admissible against the person [Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248, 260; S.20(3)(a) Evidence Act]. This is not to say, however, that admission per se is conclusive proof of the entire matter in litigation, but it stands firmly on the subject of the admission against the person making it. Also it must be viewed in relation to the entire evidence before the Court to know the weight to attach to it. [Ojiegbe & Ors. v. Okwaranyia & Ors (1962) 2 SCNLR 358. (1962) 1 All NLR 605; Nwankwo v. Nwankwo (1995) 5 NWLR (Pt.394) 153, 171; Seismograph Services (Nig) Ltd. v. Eyuafe (1976) 9-10 SC.135].” Per SALIHU MODIBBO ALFA BELGORE, JSC (Pp 27 – 27 Paras C – F)

Formal admission may take the form of clear admissions filed or made by a party to a civil proceeding or by his counsel in the course of the trial of a civil suit. – MONEME v. ONOJA & ORS (2011) LPELR-8972(CA)

Legal Snippets

The admission must not be based on mistaken belief of facts. An admission based on mistaken belief of the facts and true position of the law is not an admission against interest – ODUTOLA V. PAPERSACK NIGERIA LTD (2006) 28 NSCQR 470.

It must be precise and unequivocal – OSEMWENKHA v. OSEMWENKHA (2012) LPELR-9580(CA), OBU & ANOR v. OKIGWE & ORS (2018) LPELR-43938(CA)

An admission against interest in order to be valid in favour of an adverse party must not only vindicate or reflect the material evidence before the Court; it must also vindicate and reflect the legal position. Where an admission against interest does not reflect the legal position it will be regarded for all intents and purposes as superfluous. And a Court of law is entitled not to assign any probative value to it. – OYETUNJI v. AWOYEMI & ORS (2013) LPELR-20226(CA)

LUCAS & ORS v. OBAWOLE & ANOR (2017) LPELR-51026(CA)

“Admissions against interest however, by persons from whom the parties to an action have derived their interest in the subject matter of the action are relevant and admissible evidence in the action. See LAMIDI OBAWOLE V OLUSOJI COKER [1994] 5 NWLR Part 345 Page 416. See also Section 33 [1] [c] of the Evidence Act.

Admission of one respondent or defendant cannot bind a co-respondent or co-defendant – Abubakar v Yaradua (2008) 19 NWLR Pt 1120

ORAKWE v. ORAKWUE & ORS (2018) LPELR-44763(CA)

– Conditions that must be met before an admission against interest can attract probative value

“For an admission against interest to be relied on and accepted by the Court as prove of the matter or a fact in issue, it must be weighed along with the entire evidence on record in order to determine its correct and proper probative value. An admission based on mistaken belief of the facts and true position of the law is not an admission against interest. It is against all sense of justice to rely on admission against interest when the truth of the admission is not borne out by other material pieces of evidence on record and/or does not reflect the position of the law. See KAMALU & ORS. V. UMUNNA & ORS. (1997) LPELR – 1657 (SC)AT 27 (C-F). ODUTOLA & ANOR. V. PAPERSACK NIG. LTD. (2006) LPELR – 2259 (SC)AT 29 -30(C-A) where the Supreme Court stated the conditions that must be met before an admission against interest can be relied on by the Court in favour of an adverse party as follows: “I realise that the so-called admissions in Exhibit P3, P6 and the evidence of 1st appellant under cross- examination did not reflect the true legal position of the matter in respect of the status of the tenancy. There was a clear mistaken belief on the part of the parties as to the true legal position and this Court cannot deviate from the position of the law merely because there are admissions; admissions which are not borne out in law. After all, this is a Court of law and must therefore uphold the law as its clientele. An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court; it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a Court of law is entitled not to assign any probative value to it.” Per MISITURA OMODERE BOLAJI-YUSUFF, JCA (Pp 29 – 30 Paras A – E) ODUTOLA V. PAPERSACK NIGERIA LTD (2006) 28 NSCQR 470 , in which the Supreme Court dwelling on “admission against interest” per Tobi, JSC; stated thus at page 494:- “I realize that the so-called admissions in Exhibits P3, P6 and the evidence of 1st appellant under cross-examination did not reflect the true legal position of the matter in respect of the status of the tenancy. There was a clear mistaken belief on the part of the parties as to the true legal position and this Court cannot deviate from the position of the law merely because there are admissions; admissions which are not borne out in law. After all, this is a Court of law and must therefore uphold the law as its clientele. An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court; it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a Court of law is entitled not to assign any probative value to it.”

See Also – OBIOYE V LAWAL (2007) ALL FWLR (Pt. 350) 1376, at 1385 D -E ratio 5, KIMDEY V GOV. GONGOLA STATE (1988) 5 SCNJ 281

Witness Depositions Signed in a Lawyer’s Office (Section 112 of the Evidence Act and Section 19 of the Notaries Public Act) #

There have been two streams of arguments on this issue.

For clarity the issue is – is a witness deposition that was signed in a lawyer’s office (and not before the commissioner for oaths or other designated official) fundamentally defective and liable to be struck out?

The saving argument (or position of the Law) used to be that the second oath sworn to in Court before the witness adopts his witness deposition cures any defect in the witness deposition. For this position, see  the case of MAJEKODUNMI V OGUNSEYE (2017) LPELR – 42547 (CA) P 40 – 45 D – C where Tsanmani JCA relying on the case of UDUMA V ARUNSI (2010) LPELR – 9133 CA per Ogunwumiju JCA stated that while Affidavit evidence is  admissible in evidence if no objection is raised, a written statement on oath does not become evidence unless it is adopted on oath by the maker and subjected to cross examination, thus whatever defect exists in the original oath in respect of the signing of the statement, is cured by the second oath made in the Court before the judex prior to the adaption by the maker and his subsequent cross examination.

The converse and damning argument is this –

By virtue of Sections 112 and 117 (4) of the Evidence Act, 2011, the written statements on adopted in a lawyer’s office violate the clear provisions of the law. CHIDUBEM V EKENNA & 12 ORS (2008) LPELR 3913, also cited as (2009) ALL FWLR (Pt. 455) 1692, EROKWU V EROKWU (2016) LPELR 41515 (CA) and the Supreme Court case of BUHARI V INEC (2008) 12 SCNJ at 91 – are in tune to the effect that the implication of such signing of witness statement (depositions) rather than before an officer authorized to take oaths, is that such a deposition is rendered ineffective. Thus, a witness written statement signed in a lawyer’s chambers in contravention of Section 112 of the Evidence Act and Section 19 of the Notaries Public Act, is not a mere irregularity that can be cured but one that calls for the striking out of the witness’ statement.

The case of UDUMA V ARUNSI & ORS (2010) LPELR – 9133 CA which can be relied upon to draw a distinction between “signing” a deposition and “swearing an affidavit” to the effect that a defect in the signing of a statement could be cured by a subsequent oral oath taking in Court before adopting the statement, has been held to no longer represent the law on this point; see Aliyu v Bukali (2019) LPELR 46513 CA 

Buhari v INEC (2008) 12 SCNJ at 91, Aliyu v Bukali (2019) LPELR 46513 CA

The position in the above noted cases (Buhari’s and Aliyu’s) have been followed in the more recent case of – BUBA & ANOR v. MAHMUD & ANOR (2020) LPELR-51404(CA). In Buba’s case, the witness statements of DW1 – DW4 were expunged after they were held to be incompetent and inadmissible for the reason that they were signed in the lawyer’s office in contravention of the Evidence Act and Notary Public Act. Similarly, in NWAKOLOBI v. EJEMELI & ANOR (2020) LPELR-51357(CA) the Court of Appeal even regarded the practice of deposing to the witness statement in the lawyer’s office before taking it to court for endorsement as amounting to deceit and perjury. In the Court’s judgment, the effect of the above is that the witness depositions of DW1 and DW2 were a nullity, and in-capable of being used in/as evidence for the Respondents at the trial Court. The trial Court was therefore wrong, in the Appellate Court’s view, to have proceeded to use the incurably defective written statements on oath by DW1 and DW2 and ascribed probative value to them in his judgment.

The predominant dictum of Ogunwumiju JCA in UDUMA V ARUNSI (2010) LPELR – 9133 CA that was to the effect that the subsequent or second oath before the judex cures irregularities in the written deposition has bowed to the Supreme Court’s position in Buhari v INEC (Supra). Ogunwumiju JCA stated this much herself in the later authority of – Erokwu & Anor Vs Erokwu (2016) LPELR – 41515 CA, where she said: “I had hitherto been of the view that even where the witness statement of the Respondent at the trial Court was not sworn to before a person duly authorized to take oaths, in contravention of Section 112 of the Evidence Act 2011, the subsequent adoption of the written deposition after he had been sworn in open Court to give evidence, regularizes the deposition. I was of the view that the witnesses’ statements, which are adopted during oral evidence on Oath are different from mere affidavit evidence, which stand on their own, without any oral backup and which are not subjected to cross-examination. That it is such affidavit evidence which do not meet the requirements of Section 112 of Evidence Act 2011 that are intrinsically inadmissible. That where a witness is in Court to say he/she is adopting an irregular written deposition, the implication is that the witness is re-asserting on Oath what is contained in the otherwise defective deposition and such adoption on oath makes all the evidence in the written deposition admissible. However, that previous way of thinking must perforce give way to the opinion of the Supreme Court in Buhari Vs INEC (2008)12 SCNJ 1 at 91. In that case, the Supreme Court unequivocally agreed with the Court of Appeal’s decision to strike out the depositions of the Appellant’s witnesses, sworn before a Notary Public, who was also Counsel in the Chambers of the Senior Counsel to the Appellant, which was a violation of Section 19 of the Notary Public Act and 83 of the Evidence Act (now Section 112)... The deponent after words, signs in the presence of the Commissioner for Oaths, who witnesses that the Affidavit was sworn to in his presence. This explains the phrase “Before me”, usually signed by the Commissioner for oaths. Any arrangement other than the above amounts to a nullity… When a deponent swears to an oath, he signs in the presence of the Commissioner for oaths, who endorses the document, authenticating the signature of the deponent. Signatures signed outside the presence of the commissioner for oaths fall short of the requirement of the statute and such document purported to be sworn before Commissioner of Oaths is not legally acceptable in Court.”

UNION BANK v. ESTATE OF LATE CLEMENT OGEH, (2018) LPELR-46701(CA);

 “In law, when it is required that a writ of summons shall be accompanied with the list of witnesses and their written statement on oath, which would be adopted by the witness as the evidence in chief at the trial, such statement on oath must be one sworn to in compliance with the Oaths Act and the Evidence Law 2011 to be valid. The irreducible minimum requirement of a valid statement on oath is that it must be sworn to before a Commissioner of Oath or at least before a notary public. Thus, failure to comply with this mandatory requirement for a valid oath would render such a statement on oath incompetent and incapable of supporting any evidence in the Court”

It is noteworthy that there exists a presumption in favor of the regularity of witness depositions on oath. However, this presumption is a rebuttable presumption.

UNITY BANK v. ZAMAFARA STATE COMPULSORY FREE UBEB (2020) LPELR-52782(CA)

“By the provisions of the Evidence Act, where there is evidence that the depositions were not sworn before a person duly authorized to administer oath, such deposition would be defective and the Court would have to discountenance it. However, by virtue of Section 82 of the Evidence Act 2011, the signature of a person authorized to administer oath, on the written deposition is prima facie evidence that the deposition was duly sworn before the person authorized to administer oaths. Prima facie has been defined by Black`s law Dictionary, 6th edition thus; “Such as will prevail until contradicted and overcome by other evidence.” But it is a rebuttable presumption, hence it can be rebutted by the witness… Where witnesses gave evidence by themselves that none of them signed their depositions before the person authorized to administer oaths, they had thus by their own evidence rebutted the presumption in favour of their written depositions.”

In this case, the Court upheld the presumption arising from the Evidence Act in favor of the contested witness deposition on oath. This was especially as the witness said under cross as follows; “I cannot remember whether I signed it (the witness deposition) in my Lawyer’s office or in my office”. The Court held that these words cannot be taken to mean that the witness said he did not sign his deposition before the Commissioner for Oaths. Hence the presumption of law in favour of the deposition was applied/upheld.

Expert Testimony #

The evidence of an expert is not cast in stone and immovable as the Mount of Sinai. It is not testimony that the Court is bound to accept hook, line and sinker. Thus, the mere fact that a document is prepared or tendered by an expert does not mean that the Court must accept and act on any or everything that it contains. The Court has a duty to consider the weight, if any, to be attached to any documentary evidence, even when tendered by an expert, before coming to a conclusion as to whether or not it establishes the fact stated therein – Elukpo v FHA (1991) 3 NWLR Pt 179 322.

The duty of the expert is to furnish the Judge with the necessary scientific criteria for testing the accuracy of his conclusions so as to enable the Judge to form his own independent judgment by the application of the criteria to the facts proved in evidence before him – Idudhe v. Eseh (1996) 5 NWLR pt 451 750, at 758.

It is pertinent to state that an expert report can wholly or in part be afflicted or affected by the law on hearsay and therefore become inadmissible to the extent of that affliction. The legal position is that if what purports to be an expert report is, in fact, hearsay evidence or was, on a particular point, based on hearsay evidence, it can be perfectly rejected. – BERENDE v. FRN (2019) LPELR-48376(CA).

In ABUBAKAR & ANOR v. INEC & ORS (2019) LPELR-48488(CA), the Petitioners relied on an analysis of votes and called an expert whose report was based on data obtained from a website whose owner he did not know. The website was created weeks after the elections which were the subject matter of the petition by a supposed INEC official who claimed to be a whistleblower and opted to remain anonymous. In effect, his report was based on the Whistleblower’s Data Analysis website called; Facts don’t Lie – www.factsdontlieng.com that Report of his expertise evidence was based. The Court of Appeal considered the report to be hanging on third party information from an undisclosed source and therefore caught up by Section 37 of the Evidence Act 2011. The Court further considered that the expert report could not be classified as expert opinion rather ruled it as hearsay and therefore inadmissible and unreliable.

The Court of Appeal also opined in WOWO & ANOR v. SIDI-ALI & ORS (2009) LPELR-5106(CA) that the evidence of an expert will amount to hearsay and therefore inadmissible where he gives his opinion in a report and is not called as a witness and cross-examined. In Wowo’s case (Supra) the expert report in issue before the Court was signed by two experts. However at trial, the report was tendered through one of the experts and he was cross examined. The second expert (who was also second signatory to the report) did not appear in Court, neither was he did testify on the legitimacy of the report. Furthermore, under cross examination, the only expert who was called gave evidence to the effect that the analysis leading to the preparation of the report was jointly carried out by himself and the absent expert. This proved fatal for the report as in the Court’s view his failure to separate the ballot papers examined by him from those examined by the second “expert” who was not called as witness rendered the integrity of the report suspect. And the fact that the second expert was not called rendered a document as documentary hearsay.

Cases On the Issue – Seismograph Services Nigeria Ltd. v. Ogbeni (1976) 1 All NLR 198,

Case Law Excerpts #

BERENDE v. FRN (2019) LPELR-48376(CA)

“PW6, Aliyu Usman, a Certified Forensic Examiner with the Counter Terrorism Investigation Department of the Department of State Services, National Headquarters, Abuja, gave detailed explanation of his forensic investigation of the contents of mobile phones, laptops, digital camera, Internet modem and external storage devices recovered from the appellant and his co-accused and made a written report of his investigation which was tendered in evidence as exhibit H. Clearly, PW6 was an officer of the Department of State Services that investigated this case. He testified about what he did and observed while carrying out the forensic examination of electronic devices recovered from the appellant and his co-accused. His testimony of what he did is direct evidence of the conduct of the forensic investigation. The probative value of this part of his testimony is not in doubt. What is in doubt is the probative value and maybe the admissibility, of his testimony and exhibit H relating to the content of the electronic devices investigated by him. His opinion of the content of the said electronic devices qualify as expert opinion in that it is opinion on a point of science or technology that require specialised knowledge to unravel and interpret is admissible in evidence by virtue of S.68 of the Evidence Act 2011. Be that as it is, it is not the evidence of the person who imputed the data in the electronic devices or made the statements contained therein. The probative value of this opinion is heavily diminished for this reason and the further and more weighty reason that most of the materials upon which the findings contained therein were based, were not tendered in evidence before the Court. The call data record of the telephone conversations which exhibit H analysed, the e-mail accounts listed in exhibit H as allegedly opened by the Appellant and even the extracts of the E-mails that were copiously attached to the proof of evidence served on the Appellant, were not tendered in evidence at the trial. The conclusions of the PW6 had no evidential foundation and were therefore not verifiable. Therefore they had no probative value. In Idudhe v. Eseh (1996) 5 NWLR pt 451 750, at 758 this Court held that “The duty of the expert is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of his conclusions so as to enable the Judge or Jury to form their own independent judgment by the application of the criteria to the facts proved in evidence before them”. In Elukpo v FHA (1991) 3 NWLR Pt 179 322 this principle was applied thusly- “The mere fact that a document is prepared or tendered by an expert does not mean that the Court must accept and act on any or everything that it contains. The Court has a duty to consider the weight, if any, to be attached to any documentary evidence, even when tendered by an expert, before coming to a conclusion as to whether or not it establishes the fact stated therein. In the present case, there was some sort of confusion in the appellant’s case, as presented. The issue of the nature or quantum of the work allegedly done by the appellant was lumped together with the issue of the valuation of the work after its nature or quantum had been determined. Valuation of the work after the nature or quantum had been determined was a matter for an expert, for example, a quantity surveyor like the appellant’s only witness. However, the nature or quantum of the work allegedly done by the appellant was a question of fact to be determined by the learned trial Judge on the basis of the evidence, if any, led by the appellant. There was nothing scientific or technical, requiring the evidence of an expert, about it. Those who could testify, on the point, were the persons who actually took part in the execution of the work or those who saw them doing so. They were the ones who could give the best evidence on the issue. There was no evidence that quantity Surveyor was one of such people. What the quantity surveyor did was a valuation of the work which the appellant showed or caused to be shown to him as the work allegedly done by the appellant. In short, that aspect of the matter dealt with in the valuation report, Exhibit P.9, was based on hearsay, which is not admissible. The proper thing, which should have been done, was that whoever gave the information to the quantity Surveyor should have come to the Court to testify so that his evidence might be tested by cross-examination by the learned counsel for the respondent. The legal position is that if what purports to be an expert report is, in fact, hearsay evidence or was, on a particular point, based on hearsay evidence, it can be perfectly rejected. Expert evidence, if admitted and it is unchallenged by way of cross-examination or contradictory evidence, does not become inevitably acceptable merely because it is an expert evidence which has not been contradicted or challenged. It should be accepted only if there is no good reason to reject it, and, in the process of scrutinizing it, could be rejected if there is reason so to do.” Per EMMANUEL AKOMAYE AGIM, JCA (Pp 32 – 36 Paras B – C).

ABUBAKAR & ANOR v. INEC & ORS (2019) LPELR-48488(CA)

“EXPERT EVIDENCE AND RELIANCE PLACED ON EVIDENCE OF PW5.9 AND PW60. Section 68 of the Evidence Act 2011 provides: – “68(1) When the Court has to form an opinion upon a point of foreign law, customary law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, customary law or custom, or science or art, or in questions as to identity of handwriting or finger impressions, are admissible. (2) Persons so specially skilled as mentioned in subsection (1) of this section are called experts.” See: 1. A.G. FEDERATION & ORS VS ALHAJI ATIKU ABUBAKAR ORS (2007) LPELR – 3 SC PAGES 198 per P. 0. ADEREMI, JSC who said: – “In legal parlance, an expert is any person who is especially skilled in the field he is giving evidence. But I hasten to add that whether or not such a witness can be regarded as an expert is a question for the Judge to decide. See Azu v. The State (1993) 6 NWLR (Pt.299) 303. The word “OPINION” as it relates to an expert has been defined in The New Webster’s Dictionary of the English Language International Edition as: “a formal expression by an expert of what he Judges to be the case or the light course of action.” It has been said that the opinion of an expert is always necessary where he (the expert) can furnish the Court with scientific or other information of a technical nature that is very much or even likely to be outside the experience and knowledge of the Judge. See Seismograph Services Nigeria Ltd. v. Ogbeni (1976) 1 All NLR 198. But expert evidence on matters which reasonably fall within the knowledge and experience of the Judge or a tribunal may not be called. In fact, expert evidence is not usually admitted on questions of credibility of a witness even where the witness under consideration is a child. See “Blackstone’s Civil Procedure, 2004″ paragraph 52.2. In the two cases I have referred to above and in several other cases in which expert opinions were made use of by the Courts, those experts were called as witnesses to testify before the Court and he was subjected to cross-examination as to his qualifications, experience and the credibility of his opinion to enable the Court determine whether his testimony is of any evidential value or not.” 2. KAYDEE VENTURES LTD VS THE HON. MINISTER FCT (2010) 2 NWLR (PART 1192) 171 AT 216H TO 217A per MUHAMMAD, JSC. 3. ABIODUN V FRN (2018) 1 NWLR (PART 1629) 86 AT 106 A-B per GALINJE, JSC The PW59 was specifically called to establish existence of INEC SERVER and to show that by the results imputed into the alleged server through Smart Card Readers (SCR) the Petitioners proved all the irregularities complained of in 35 States of the Federation and FCT, Abuja except Rivers State as pleaded in paragraphs 16 – 106 of the Petition. Reliance was also placed on Exhibits P87 – P88 and P89. The Petitioners also relied on what they described as analysis of votes. Results obtained as reflected in certified True Copies of Forms EC8A, EC8B and EC8C from “the 11 focal States, namely, Kaduna, Katsina, Kebbi, Kano, Borno, Gombe, Jigawa, Niger, Yobe and Zamfara States are pleaded in paragraphs 113 to 363 of the Petition and that they called PW6O” who is referred to as a Statistician and an expert who reports were admitted as Exhibits P90 A – K in respect of the 11 States aforesaid. PW59 testified on 19-07-2019 when he adopted his witness statement on oath. His evidence revealed that his Report is based on a website whose owner he did not know. The said website is www.factsdontlieng.com, according to PW59 and that the author of the website relied upon by him claimed to be an INEC. The website was created on 12/3/2019 about two weeks after the result of Presidential election was announced. On page 6 of Exhibit 8 attached to his witness statement on oath PW59 said he copied into page 6 INEC’s diagram for Training Manual and concluded on page 6 of Exhibit 8 attached to his witness statement as follows: – “Whistleblower’s Data Analysis Facts don’t Lie Website – www.factsdontlieng.com II. The Website was created on the 12th of March, 2019. A look at the website will show that apart from the information on the INEC records, nothing else appeared there. It has no other basic information or navigation features as to what a regular website ought to contain such as Contact; About, etc. The author of the content of the website revealing the information on INEC server, claimed to be an INEC staff. He remained anonymous and hence, christened Whistle Blower.” In paragraphs 18 and 19 of his witness statement on oath he concluded as follows: – “18. CONCLUSION (a) Bearing a simplified and common understanding of the ‘server’ as “a computer, a device or a program that is dedicated to managing network resources such as storage, communication, security, centralized applications and database management systems”; and acknowledging the INEC’ s Guidelines which outlined a transparent and integrated electronic process of voters accreditation, votes collation and transmission; indeed, there existed a robust system of servers whose extensive use in the presidential elections is undeniable. (b) The analysis of the data held at the whistle blowers website using standard professional data analysis tool and techniques authoritatively demonstrates Accuracy and Precision, Legitimacy and Validity, Reliability and Consistency, Timeliness and Relevance, Completeness and Comprehensiveness, Granularity and Uniqueness of the data whose source can be nothing but INEC Servers. (c) An expertise corroboration and correlation of the technical processes, data and description of whistle blowers data herein and INEC’s setups is an explicit and implicit demonstration that the server from whose data the whistle blowers was drawn is INECs tallying servers. 19. That a report of my findings are attached and marked as Exhibit 8.” His evidence is that it is the Whistleblower’s Data Analysis Facts don’t Lie Website – www.factsdontlieng.com that Report of his expertise evidence was based. He variously referred to the owner of the website as whistle blowers, Anonymous and “the author of the content of the website, claimed to be an INEC Staff.” PW59 a could be seen in his evidence did not rely on any data gotten by him from an INEC Server. He stated that the Server he relied upon for his Report as an Expert was an anonymous website which to me is of doubtful and unreliable source by all accounts, PW59 gave in his evidence and the Report he authored. Whatever results he claimed to have got, according to him came from server belonging to Whistle blower not INEC. When asked under cross examination the source of the results he claimed were found in the Anonymous website he said, the author of the content of the website may be an INEC Staff but that the said anonymous author of the contents of the website got the information or the results from INEC Servers which he PW59 said he could not access without the consent of INEC. Under cross examination he admitted that the information in the website Whistleblowers Data Analysis Facts don’t Lie Website – www.factsdontlieng.com could have been doctored. Under further cross examination by L. O. FAGBEMI, SAN for 3rd Respondent, PW59 said as an expert, that it is possible to use scientific method to decrypt data source and tamper or alter the content or information contained therein. PW59’s Report and evidence is thus hanging on third party information from an undisclosed source. PW59’s evidence is no doubt caught by Section 37 of the Evidence Act which provides:- “37. Hearsay means a statement- (a) oral or written made otherwise than by a witness in a proceeding; or (b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.” (underlined mine) As can be seen the evidence of the PW59 cannot under any stretch of imagination be classified as expert opinion as it is not supported by any direct knowledge of what his Report contains and it is not supported by anything he did directly with regard to the existence or otherwise of an INEC SERVER. He relied on third party information not derived from his knowledge. Worse still, his informant the author of the contents of the website relied upon by PW59 cannot be identified. Even if he could be identified, it is the alleged whistleblower or anonymous who claimed to be INEC Staff that could give the evidence of anything relating to the existence of the alleged Server which Petitioners heavily relied upon as containing results of elections transmitted electronically vide the Smart Card Readers. PW59’s evidence is hearsay and it is unreliable. See: – 1. DR. OLUBUKOLA SARAKI V FRN (2018) 16 NWLR (PART 1649) 405 AT 449 F-G per NWEZE, JSC who said:- “Now, as it is well-known, hearsay evidence, oral or documentary, is inadmissible and lacks probative value, Sections 37 and 38 of the Evidence Act, 2011; Ozude v. Inspector General of Police (1965) 1 All NLR 102; Okoro v. The State (1998) LPELR-2493 (SC) 17; B-C, (1998) 14 NWLR (Pt. 584) 181; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1, 317; Doma v. INEC (2012) ALL FWLR (Pt. 628) 813,829, (2012) 13 NWLR (Pt. 1317) 297; Okpara v. Federal Republic of Nigeria (1977) NSCC 166; Management Enterprises v. Otusanya (1987) NSCC 577, (1987) 2 NWLR (Pt. 55) 179; Ojukwu v. Onwudiwe (1984) 1 SCNLR 247.” 2.MARTIN OPARA V A.G. FED. (2017) 9 NWLR (PT. 1569) 61 AT 113F – H TO 114 A – C per NWEZE, JSC who said:- “Exhibit PD.III (Exhibit PD.4) was, at page 39 of the record, admitted in evidence as the statement under caution of the victim, Micah Eteng Ibe, through the PWA, one Odudare Oluremi Fidelis, an intelligence Officer of NAPTIP who recorded it. Exhibit PD.III (Exhibit PD.4) was no doubt admitted in evidence for a purpose. That is to establish the truth of what Micah Eteng Ibe, the victim, experienced in the hands of the appellant. To that extent it amounts to hearsay. On the other hand, if exhibit PD.III (Exhibit PD4) was admitted in evidence to merely show or establish the fact that Mr. Odudare Oluremi Fidelis (PW.4), an investigator, interviewed and recorded a statement from the victim, Micah Eteng Ibe, it is not hearsay. This distinction was made in Kasa v. The State (1994) 5 NWLR (Pt. 344) 269 at 286 at paras. C-D by Uwais, JSC (as he then was) thus “Evidence of a statement made to a witness by a person who is, not himself called, as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by evidence, not the truth of the statement, but the fact that it was made”. See also Subramanian v. Public Prosecutor (1956) 1 WLR 965 at 970; Theophilus v. The State (1996) 34 LRC 74, (1996) 1 WLR (Pt. 423) 139″. PW59 also went out of his way to interpret INEC’s Manuals as providing for electronic transmission of results of the 2019 general elections. It is within the province or domain of the Court to give interpretation to Manuals and Regulations of INEC. In effect, evidence of PW3, PW4, PW16, PW17, PW36 and PW59 together with the expert Report Exhibit P91 cannot be relied upon to come to the conclusion that there was an INEC Server(s) wherein results are transmitted electronically from Smart Card Readers in the 2019 Presidential Election. The pieces of evidence given by those witnesses lack probative value.” Per MOHAMMED LAWAL GARBA, JCA (Pp 214 – 225 Paras F – A).

WOWO & ANOR v. SIDI-ALI & ORS (2009) LPELR-5106(CA)

“I have earlier said in this Judgment that the Appellants invited a finger print expert to establish the allegation of criminal acts of the 1st and 2nd Respondents. Section 57 of the Evidence Act relates to Expert evidence and it reads:- “When the Court has to form an opinion upon a point of foreign law, native law or custom, or of science or art, or as to identity of handwriting or finger impressions, the opinion upon that point of persons specifically skilled in such foreign law, native law or custom, or science or art or in questions as to identity of handwriting or foreign impressions, are relevant facts.” I am of the opinion that the provisions of Section 57 of the Evidence Act can only be invoked where a party has alleged and proffered primary evidence of a fact, information of which requires scientific analysis or expert opinion. It follows therefore that an expert opinion will only be required on fact provided in evidence and not on facts pleaded. An expert opinion which is not based on facts provided in evidence by the parties especially that party alleging is not the one contemplated by Section 57 of the Evidence Act. I am of the opinion that the purpose of subjecting facts provided in evidence to expert opinion is to bring out through the special skill or knowledge of the said expert, features and characters of the subject which the uninitiated or unlearned might not otherwise understand. After demonstrating the said features and characters of the subject matter, the revelation will then guide the Court who for the purpose of that subject matter is regarded as layman. While explaining the basis of expert opinion, this Court said in Owale v. Shell Petroleum Development Company Ltd. (1997) NWLR Pt. 480 page 148 at 183: “the duty of an expert is to furnish the Judge with necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his own independent judgment by the application of those criteria to facts provided in evidence.” This Court went further to state: “the duty of an expert is to utilize his skill or knowledge to bring out and demonstrate features or characteristics of the subject which the uninitiated or unlearned might not otherwise understand so that such revelation will guide lay men.” In ANPP v. Usman (2008) 12 NWLR Pt. 1100 page 1 at 72 – 73 this Court stipulated the criteria upon which a person may be accepted by the Court as an expert as follows:- “Where the evidence of opinion of an expert is relevant he may be called as a witness and must first of all state his qualification and satisfy the Court that he is an expert on the subject in which he is to give his opinion. He must also state clearly the reason/or his opinion.” See: Azu v. State (1993) 6 NWLR Pt. 299 page 302; Wambai v. Kano Native Authority (1965) NMLR 15; Fasugba v. Inspector General of Police (1964) 2 All NLR 15. It follows therefore that where an expert fails to satisfy the Court before whom he testified as to the following- (a) His qualification; (b) That he is an expert on the subject in which he is to give his Opinion; and (c) To clearly state the reason or scientific basis for his opinion, the Court is at liberty to refuse to accept his testimony or opinion. In his statement on oath Exhibit P6, PW6 stated in Paragraphs 14, 15 and 16 thus: “14. That as forensic experts in finger prints in our examination of finger prints to determine multiple thumb printing we look out for patterns of the thumb prints which could either be arc, tented arc, loop, whorl, twins double loop corporate and accidental. 15. That in our analysis we further studied the ridges of the said patterns and the common ridges are ridges ending, fork island, spur, cross over and lake. 16. That it is when a finger print on a ballot paper carries identical pattern and ridge with those of other ballot papers that we conclude that there is multiple thumb printings by an individual or some individuals and this is the mode we employed in respect of our examination of the ballot papers at the INEC FCT Headquarters Abuja.” Under cross-examination PW6 at page 2352 of the Record of Appeal said: “I do not know how many repeated arch are contained in all the ballot papers. The same goes for other patterns. I do not know how many of the ballot papers had any of the patterns.” I am of the considered view that the evidence of an expert will amount to hearsay and therefore inadmissible where he gives his opinion in a report and is not called as a witness and cross-examined. In the instant case, the report Exhibit P6 tendered in evidence at the trial Tribunal by the Petitioners/Appellants was signed by two experts – Inspector Tanimu Zaman and Inspector Bala Goki. The report was tendered through Inspector Bala Goki and he was cross-examined. However the second signatory to the report Inspector Tanimu Zaman did not appear in Court neither did he testify on the legitimacy of Exhibit P6. Although PW6 said in response under cross-examination at page 3352 that: “We examined 33,100 ballot papers.” PW6 however failed to give evidence as to how many out of the 33,100 ballot papers were examined by him and how many were examined by the expert that did not give evidence. I am of the opinion that the failure of PW6 to separate the ballot papers examined by him from those examined by the second “expert” who was not called as witness renders the integrity of Exhibit P6 suspect. Also, the fact that Inspector Tanimu Zaman the second signatory to Exhibit P6 was not called renders the document a hearsay evidentially and worthless. A party relying on a document as part of its case must specifically relate each of such documents to that part of its case in respect of which the document is being tendered. In ANPP v. Usman (supra) it was held at page 86 that: “The Court cannot assume the duty of relating each of the documents or bundle of documents tendered in evidence to specific aspect of the case for a party. It is the duty of a party to do so for itself. It will be an infraction of the right to fair hearing if the Court or Tribunal engages itself in the recess of its chambers to fish out or guess which document relates to a particular aspect of the case of a party. Such a duty ought to be carried out in open Court by the party.” See: Hashimu v. Goje (2003) 15 NWLR Pt. 843 page 352; Tereb v. Lawan (1992) 3 NWLR Pt.231 page 569; Jalingo v. Nyame 1992) 3 NWLR Pt. 231 page 538. On Exhibits P6A1-556 which is the bone of contention between the parties, the trial Tribunal observed as follows:- “Though the Tribunal allowed PW6 to demonstrate the factual basis or criteria for the conclusion that there were multiple thumb printing of ballot papers, we did not comprehend neither were we convinced hence we are not bound to accept it……. It is rightly submitted by the learned Counsel for 3rd – 662nd Respondents that for Exhibit P6A1-556 to be of any help to the Tribunal, PW6 ought to have gone further to attach, the diagram of the fingers of individuals that thumb printed the ballot papers or the photograph of the ballot papers that was scanned, we are in agreement with this suggestion and through that PW6 would convince us during the demonstration in Court but this was not to be. The demonstration did not convince us. Even the 115 ballot papers IJAPADA PRIMARY SCHOOL as sample were not explained or compared with the genuine or fake ballots. They were merely tendered in evidence without further explanation. Further to that the fact that the experts were requested to examine and did examine only the ballot of one party (PDP) leaving that of the Petitioner (ANPP) and other parties call for caution. When further asked by the 3rd – 662nd Respondents Counsel, PW6 said: ‘I do not know the votes scored by the ANPP in the last election. I do not know whether 28,810 was scored by ANPP.” In ANPP v. Usman (supra) at 89-90 it was held as follows:- “Admitted documents useful as they could be, would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their purport.” See Alao v. Akana (2005) 11 NWLR Pt. 935 page 160. In the instant case PW6 – Inspector Bala Goki dumped on the Court the report he co-authored and failed to demonstrate features and characteristics of finger prints in Exhibits P6 – A1-556 to bring out revelations which ought to guide the Court which in this case of Finger Printing is uninitiated and unlearned to form opinion on such subject matter. In Ngige v. Obi (2006) AFWLR Pt. 330 page 1041-1059 it was held that:- “A Court is entitled to accept the evidence of an expert if it is credible, particularly if it is not controverted or challenged and comes from an expert with demonstrable skill.” In the instant case, the trial Tribunal in its Judgment on the expert witness and the Exhibits in contention thus:- “…… the expert PW6 did not assist us in understanding or comprehending his expert evidence both oral and documentary. Exhibit P6A1 -556 contain only numbers of ballot papers in two columns and no sample of finger prints matching with those in the columns were established.” Courts are enjoined to exercise great care and caution in accepting expert opinion especially from Handwriting experts. In UTB v. Awanzigana Eng. Ltd. (1994) 6 NWLR Pt. 348 page 56 at 81, Pat Acholonu J.C.A. (as he then was of blessed memory) cautioned thus:- “Courts faced with the opinion of expert witness but more particularly handwriting expert should exercise great and due care in wholly accepting as gospel truth the opinion of such expert. This is because often than not, they appear to sing the song of their master i.e. the party that calls them regardless of the damage they are doing to the profession.” In the case at hand, the trial Tribunal made a finding of fact on the Exhibits analyzed by the expert witness and came to this conclusion:- “In the light of the foregoing the Tribunal hereby holds that Exhibit P61-556 is worthless, vague, inchoate, and invariably defective and we reject it in its entirety. In the absence of any direct evidence in support of this allegation, we further hold that the Petitioners have failed to prove the allegation beyond reasonable doubt.” I have carefully perused the entire proceedings of the trial Tribunal and the evidence presented by the contesting parties, I am of the opinion that the trial Tribunal was correct in rejecting the evidence of PW6, the so called expert procured by the Appellants for being Unreliable and incompetent.” Per ABDU ABOKI, JCA (Pp 116 – 125 Paras A – C)

Further Resources #

Admissibily Generally By Adedayo Samuel Adesheila – https://thenigerialawyer.com/admissibily-generally-by-adedayo-samuel-adesheila/

Is An Unsigned Document Admissible in Evidence? -By Odaste Peter – https://barristerng.com/is-an-unsigned-document-admissible-in-evidence/

https://www.journals.ezenwaohaetorc.org/index.php/AJLHR/article/download/529/492