Proper Time to Object to the Admissibility of a Document #
The position of law is that that the time for objecting to the admissibility of documents is when a party seeks to tender them in evidence and not on appeal (or by way of appeal) – IBORI V. AGBI & ORS (2004) 6 NWLR (pt. 868) 78 at 136; FATUNBI v. OLANLOYE (2004) 12 NWLR (pt. 887) 229; ASHAKACEM PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2019) LPELR-46541(SC). FIRST BANK v. MUKSAN INTL LTD & ANOR (2017) LPELR-43143(CA), OGUNBODEDE v. FRN (2018) LPELR-44883(CA), GEFESCO ENTERPRISES (NIG) LTD v. UYASCO TECH CO. LTD (2019) LPELR-49020(CA).
How to React/Respond to Objections Raised to the Admissibility of a Document #
When an objection has been raised to the admissibility of a document sought to be tendered, two options immediately exist for the party/Counsel seeking to tender the document being objected to. These options are as follows –
- Withdraw the document sought to be tendered without joining issues (that is without arguing in response or opposition to the objection raised by the adverse party).
- Join issues (that is argue in opposition to the objection) and proffer legal justification for the admission of the document into evidence.
For either of the options stated above, the likely legal outcome is different –
Where the Document is Withdrawn Without Joining Issues #
In the first instance, the law is trite, that where a party applies to tender a document and the same is opposed, and the party seeking to tender the document applies to withdraw the same, thereby not joining issues with the opposition, the application to withdraw the document ought to be granted, to forestall denying the applicant fair hearing – Asiniola Vs Fatodu (2009)6 NWLR (Pt.1136)184 at 188, MBA v. OGBUEWU & ORS (2019) LPELR-47840(CA). In FRN v. ACHO & ANOR (2017) LPELR-42660(CA), the Court of Appeal was of the view that the trial Court e was in error, when she hurriedly rejected a document which the Appellant had sought to put in evidence, but sought to withdraw it, before the Court delivered its ruling. In the Appellate Court’s view, this meant that, at the time the trial Judge ruled, rejecting the document, the same was no longer available for consideration for the order. This is because, upon the application to withdraw the document, the same ceased to be available for admission or rejection – Oguntayo vs. Adelaja (2009) ALL FWLR (Pt.485) 1626; (2009) LPELR 2353 (SC), Hastrup vs Roro Terminal Co. Ltd (2003) 7 NWLR (Pt.819) 358 at 360.
Where Issues Have been Joined on the Admissibility of the Document #
Where issues have been joined on the admissibility or otherwise of the document, the situation becomes different from what has been stated above. Therefore in the case of HAASTRUP V. RORO TERMINAL CO. LTD (2003) 7 NWLR 879 358 At. 364 – 365 H – B, the Court held inter alia that where an objection has been raised to the admissibility of a document, it is competent for the party tendering it to apply to withdraw it immediately the objection is raised. But once the party tendering it has joined issues by making a reply, then he cannot be allowed to withdraw the document – see IHEKWEME & ANOR v. OBUA (2013) LPELR-22520(CA).
Similarly in Akanbi v Osset (2011) LPELR-9102(CA), the Court of Appeal again stated as follows – “the law is clear with plethora of decided authorities that where a document is tendered by a party and an objection is taken or raised on its admissibility, after hearing arguments for, and against by the learned counsel for the parties, the Court is obliged to rule on whether such document is admissible or not. A party who intends to withdraw when objection is taken on the admissibility ought to apply to withdraw rather than joins issue by responding to the objection. Once he joins issue, the Court is entitled to rule on the admissibility rather than allowing such party to withdraw. See Supreme Court decision per Ogbuagu, JSC in OGUNTAYO V. ADELAJA (2009) 15 NWLR (Pt. 163) 15 at 191 PARA F.”
Relevant Case Excerpts – #
EMZOR PHARMACEUTICAL IND. LTD v. GEENCAAF VENTURES LTD & ANOR (2021) LPELR-54693(CA)
“It is the law that a document sought to be tendered could be withdrawn following objection from the opposing side, the Court would easily allow it but, in this case, the learned counsel to the 1st Respondent objected to the admissibility of the document based on the conflicting testimony of the witness and secondly, the appellant’s learned counsel responded to the objection. Where a party wishes to withdraw a document sought to be tendered but opposed, the withdrawal has to be before joining issues with the opposing party on the document. On the other hand, a document could be relevant but inadmissible, such would be marked rejected. Where a party seeking to tender a document realizes that the document has some features, (as in the present appeal, where a photocopy was sought to be tendered) that will not make it be admissible, the party ought to apply to withdraw it before responding to the argument opposing the admissibility, at this stage the document would not be marked rejected but it cannot be tendered by the same witness in the witness box in the same proceedings where the document may be relevant but, by operation of the law inadmissible. See, KEKONG VS. STATE (2017) LPELR – 42343 (SC), EMEGOKWUE VS. OKADIGBO (1973) 4 SC 113, ONOBRUCHERE VS. ESEGINE (1986) 1 NWLR (PT. 19) 799, TORTI VS. UKPABI & ORS. (1984) LPELR – 3259 (SC).” Per CHIDI NWAOMA UWA, JCA (Pp 12 – 13 Paras A – B)
OGOEJOFO v. OGOEJOFO & ORS (2018) LPELR-43950(CA)
“The duty of counsel when a document is tendered by the other party is to raise an objection if he opposes the admissibility of the document and if however he has no objection, he should say so. It will then be for the Court if there is an objection to the admissibility of the document, to give a ruling. If the objection is upheld, the document should be rejected and marked rejected. But for the Court to rule on the admissibility or otherwise of the document issues on its admissibility must necessarily be joined by the parties. In other words, a party tendering a document is at liberty to withdraw as soon as objection is raised but before joining issue on it with the party objecting. The lower Court was clearly in error in refusing to allow the appellant withdraw its document and going ahead to reject it when the party tendering it had not argued and joined on its admissibility.” Per MUHAMMED LAWAL SHUAIBU, JCA (Pp 15 – 16 Paras F – E).
Objecting to the Admissibility of a Document at the Point of Final Address or for the First Time on Appeal #
Ideally, Counsel should raise his objection (if he has any) to the admission of a document at the time such a document is sought to be tendered in evidence. The Law expects Counsel to do so. That position notwithstanding, there are situations where Counsel opts to raise (or ends up raising) his objection to the (now) already admitted document at the point of final addresses.
The question in such a situation is – is it too late in the trial for Counsel to do so?
This question is important because remember that the Court is always duty bound to act only on legally admissible evidence even where such was never objected to by Counsel. The court has no discretion to act on evidence that is inadmissible by an express statutory provision, since a court of law is to determine issues on legally admissible evidence; Engr. Agbi & Anor v Chief Ogbeh & Ors (2003) FWLR (Pt 169) 1245 at 1271 CA, . Consequently, a judge can expunge a document that was previously admitted in evidence at the point of giving his judgment.
Furthermore, the law also is that Counsel cannot by acquiescence or agreement make an inadmissible document admissible. So, if a document that was no way admissible is wrongfully admitted, an appellate Court has inherent jurisdiction to exclude the document even where no objection was raised to the tendering of the document.
Alhaji Safianu Aminu & 2 Ors Vs Isiaka Hassan & 2 Ors – “Neither a trial court nor the parties to an action has any power to admit without objection, a document that is in no way and under no circumstances admissible in law. If such a document is wrongfully received in evidence before the trial court, an appellate court has an inherent jurisdiction to exclude it even where no objection was raised to its going in at the Lower court. PER PETER-ODILI, JSC”
In view of these principles of the law (i.e. the Court’s duty to act on only legally admissible evidence and Counsel’s incapacity to render an inadmissible evidence admissible by consent), the question can now be modified or rephrased to read;
In view of the Court’s duty to act on only legally admissible evidence, Can Counsel raise in his final address an objection to a piece of evidence that was wrongly or inadvertently admitted at the trial?
The current stream of authorities that proffer answers to the poser above, tend to offer both an affirmative and negative answer depending on the circumstances of each case. For the purpose of the purpose of determining whether Counsel can object at the point of final addresses, the Courts have delineated the nature of admitted evidence (to which Counsel may be objecting to) into two categories;
- Documents/Evidence that are in no way and under no circumstances admissible in law
- Documents/Evidence that are admissible only after the fulfilment of some conditions or laying of some foundation.
For Category No 1 above, raising the objection at the point of final address is allowed; such an objection stands on very fertile ground or basis. Put differently, Counsel has hope. Or better put; maybe his client’s case has hope.
But for category 2 above, raising the objection at the point of final address is an attempt at transplanting Mount Gilberta by picking its stones apart. The mount may eventually relocate to another part of town. But that is not yet where our law is. Put simply, currently, the law is that it is too late in the day to object to documents/evidence in category 2 above when such an objection is raised at the point of final address.
See the cases of Salau Okulade v Abolade Alade and Alimi v Obawole (1998) 6 NWLR (Pt 555) 591 at 607
Relevant Case Law Excerpts #
OKPU v. TRUST BOND MORTGAGE BANK PLC (2021) LPELR-54554(CA)
“However, it must be pointed out at once that, it is one thing to raise an objection to admissibility of a document for the first time on appeal, or at the final address stage having not raise such an objection at the time the document was sought to be tendered at the trial, as in the instant Cross-Appeal, and quite another thing entirely to substantiate such an objection. The law is well settled that, whether a complaint against inadmissible evidence being admitted by a trial Court should be raised on appeal or not or after it has been admitted and at the final address stage will depend on whether the evidence so admitted by the trial Court was one admissible on proper foundation and no such foundation was laid or one which is rendered inadmissible by law and thus, not admissible in evidence in any event. ?Thus, where the evidence is of the former category and admitted in evidence without proper foundation but without any objection, it will be too late in the day for a party who had not objected to its admissibility to do so for the first time on appeal or at the final address stage. Where however, the evidence belongs to the latter category of being inadmissible in any event or rendered inadmissible by law, an objection can validly be taken against its admissibility for the first time on appeal or at the final address stage even where it was not objected to when it was sought to be tendered at the trial and was admitted in evidence and marked as Exhibit B3. This is so because, in law, a Court of law is under a duty to act only on admissible evidence in deciding matters before it. See Okulade V. Alade (1976) 1 SC 83. See also Esso West African Incorporated V. Alli (1968) NMLR 414; Ajayi V. Fisher 1 FSC 97; Ugbala V. Okorie (1975) 12 SC 13; Yassin V. Barclays Bank (1968) 1 All NLR 171; Kossen Nig. Ltd. V. Savanah Bank Nig. Ltd.(1995) 9 NWLR (Pt. 421) 1.” Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp 65 – 67 Paras F – C).
HARUNA & ORS v. KOGI STATE HOUSE OF ASSEMBLY & ORS (2010) LPELR-4231(CA)
“The contention of the Appellants is that Exhibit 22 (a-g) are for all intent and purposes inadmissible in law having regard to the provisions of Section 91(3) of the Evidence Act It is his view that since the document cannot be acted upon on the ground of being inadmissible in law it is immaterial that same was tendered by the party now objecting to its admissibility. The Evidence Act has classified different types of evidence and they included, primary and secondary, oral and documentary and lays conditions to be satisfied for the admissibility of each types In he instant case, the evidence that is now sought to be expunged from the record is documentary in nature i.e. Exhibits 22(a-g) the letters of revocation It is true and a fact not in dispute that Exhibits 22(a-g) the letters of revocation were made les pendis, that is, during the pendency of the Suit. Section 91(3) of the Evidence Act clearly prohibits such type of document/statement made by a person interested at a time-when the proceedings were pending or even anticipated involving a dispute as to any fact which the document/statement might tend to establish. Where the provisions of a statute are clear and unambiguous the Court must give those provisions their literal and ordinary interpretation. The provisions of Section 91(3) of the Evidence Act are clear and unambiguous and it is mandatory. Therefore if a piece of evidence wrongly received in evidence by the trial Court, an appellate Court has the inherent jurisdiction to exclude or expunge it from the records notwithstanding that counsel at the trial Court did not object to the admissibility of the piece of evidence. In other words, neither a trial Court nor the parties to a suit have the power to admit, without objection a document that is in no way or circumstance admissible in law. Consequently, where a piece of evidence that is inadmissible in law is admitted by a trial; Court, counsel to either party can raise objection to the admissibility of the piece of evidence during final address at the trial Court or on appeal. See ETIM VS. EKPE (1983) 1 SC 12; OSENI VS. DAWODU (1994) 4 NWLR (PT. 339) 390; ALAO VS. AKANO (2005) 11 NWLR (PT. 935) 160; and ONOCHIE VS. ODOGWU (2006) 6 NWLR (PT. 975) 65. In the instant case, regardless of the fact that Exhibits 22(a-g) were admitted by consent of the parties, the documents suffered a major procedural defect which should have affected their probative value, that they were made when the matter was subjudice or in anticipation of the suit. Consequent upon the above defect, the trial Court should not have afforded any probative value to the documents. See ARARUME VS INEC (2OO7) 9 NWLR (PT 1038) 127; DUNU VS OLADEJO (2004) 13 NWLR (PT 903) 621; and ORONTI VS ONIGBANJO (2003) 17 NWLR (PT 903) 601. Section 151 of the Evidence Act is not applicable in the instant case because the issue relates to the erroneous tendering and admitting of documents which are inadmissible in law.” Per UWANI MUSA ABBA AJI, JCA (Pp 31 – 33 Paras E – D)
Objecting to a Document for the first time on Appeal #
TAJUDEEN v. FRN (2022) LPELR-57741(CA), GOODWILL & TRUST INVESTMENT LTD V WITT & BUSH LTD, (2011) LPELR-1333(SC), OZOAGU v. FAKAYODE & ORS (2023) LPELR-59632(CA)
TAAN v. SCOA (NIG) PLC & ORS (2018) LPELR-51169(CA)
“However, it must be pointed out at once that it is one thing to raise an objection to admissibility of a document for the first time on appeal, having not raised such an objection at the trial Court and quite another thing entirely to substantiate such an objection. The law is well settled that whether a complaint against inadmissible evidence being admitted by a trial Court should be raised on appeal or not will depend on whether the evidence so admitted by the trial Court was one admissible on proper foundation and no such foundation was laid or one which is rendered inadmissible by law and thus not admissible in evidence in any event. Where the evidence is of the former category and admitted in evidence without proper foundation but without any objection, it will be too late in the day for a party who had not objected to its admissibility to do so for the first time on appeal. Where, however, the evidence belongs to the latter category of being inadmissible in any event or rendered inadmissible by law, an objection can validly be taken against its admissibility for the first time on appeal even where it was not objected to at the trial. This is so because in law a Court of law is under a duty to act only on admissible evidence in deciding matters before it. See Olukade v. Alade (1976) 1 SC 83. See also Esso West African Incorporated V. Alli (1968) NMLR 414; Ajayi V. Fisher 1 FSC 97; Ugbala V. Okorie (1975) 12 SC 13; Yassin V. Barclays Bank (1968) 1 All NLR 171; Kossen Nig. Ltd. V. Savanah Bank Nig. Ltd.(1995) 9 NWLR (Pt. 421) 1.” Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp 59 – 60 Paras C – D).
AKANDE & ORS v. OLAOYE & ORS (2022) LPELR-58683(CA)
“It is trite that an appellant is only allowed to raise objection to admissibility of a document for the first time on appeal, only if the said document is inadmissible in law under any circumstance. In other words, an appellant cannot raise objection to admissibility of a document for the first time on appeal where the said document is admissible under certain conditions and no objection to its admissibility was raised at trial. See GOODWILL & TRUST INVESTMENT LTD v WITT & BUSH LTD (2011) LPELR-1333(SC), per Muhktar, JSC (as he then was) at page 22, paras. B – E, KOSSEN (NIG) LTD & ANOR v SAVANNAH BANK (1995) LPELR-1706(SC), per Ogundare, JSC at pages 28 – 30, paras. F – E and OLUKADE v ALADE (1976) LPELR-2527(SC), per Idigbe, JSC at pages 9 – 11, paras. E – E.” Per ABBA BELLO MOHAMMED, JCA (Pp 58 – 58 Paras B – F).
MTN v. MUNDRA VENTURES (NIG) LTD (2016) LPELR-40343(CA)
“In law therefore, admissibility is governed by pleadings as it is the pleadings that will state the facts upon which evidence, whether oral or documentary will be adduced and admitted. In so far as what is pleaded is relevant, including the fact of existence of a document, it is admissible in evidence. Generally, it is relevancy that governs admissibility. A Court of law has the duty to act only on admissible evidence and thus an objection to admissibility of evidence can be raised even for the first time on appeal. See Nwabuoku V. Onwordi (2002) FWLR (Pt. 123) 341. See also Suberu V. The State (2010) 3 SC (Pt 11) 105. However, it must be pointed out at once that it is one thing to raise an objection to admissibility of a document for the first time on appeal, having not raised such an objection at the trial Court and quite another thing entirely to substantiate such an objection. The law is well settled that whether a complaint against inadmissible evidence being admitted by a trial Court should be raised on appeal or not will depend on whether the evidence so admitted by the trial Court was one admissible on proper foundation and no such foundation was laid or one which is rendered inadmissible by law and thus not admissible in evidence in any event. Where the evidence is of the former category and admitted in evidence without proper foundation but without any objection, it will be too late in the day for a party who had not objected to its admissibility to do so for the first time on appeal. Where however, the evidence belongs to the latter category of being inadmissible in any event or rendered inadmissible by law, an objection can validly be taken against its admissibility for the first time on appeal even where it was not objected to at the trial. This is so because in law a Court of law is under a duty to act only on admissible evidence in deciding matters before it. See Okulade V. Alade (1976) 1 SC 83. See also Esso West African Incorporated V. Alli (1968) NMLR 414; Ajayi V. Fisher 1 FSC 97; Ugbala V. Okorie (1975) 12 SC 13; Yasin V. Barclays Bank (1968) 1 All NLR 171; Kossen Nig. Ltd. V. Savanah Bank Nig. Ltd.(1995) 9 NWLR (Pt. 421) 1.” Per BIOBELE ABRAHAM GEORGEWILL, JCA (Pp 49 – 51 Paras D – C)
