Modes of Tendering Documents/Evidence during Trial

Tendering of documents during the examination of witnesses can be done through the following ways

  1. Documents can be tendered from the Bar without the need to call a witness
  2. Documents can be tendered during examination in Chief
  3. Documents can be tendered during cross examination (through the witness of the adverse party)
  4. Documents can be tendered during re-examination

Documents can be tendered from the Bar: #

Public documents can be tendered from the bar particularly when the procedure is not contested – ABDULLAHI v. F.R.N (2016) LPELR-40101(SC), (2016)10 NWLR (Pt.1521) P.475, SULEIMAN v. MOHAMMED & ORS (2021) LPELR-56088(CA). However, the legal effect of tendering documents through the bar is worthy of note and how this step fits into or affects a trial strategy is one Counsel seeking to tender a document from the bar should not ignore. Also, it should be noted, that the position of the law that public documents can be tendered from the bar does not mean that a public document not made a part of a party’s case (or pleadings) can be tendered in evidence – ESEZOBOR v. SAID (2018) LPELR-46653(CA) Per JOSEPH SHAGBAOR IKYEGH, JCA (Pp 9 – 13 Paras F – B).

In Esezobor’s case, the Court of Appeal also held in part as follows;

Certified true copy of a public document can be tendered from the Bar without formally tendering it through a witness vide Agagu v. Dawodu (1990) 7 NWLR (pt.160) 56, Anatogu v. Iweka II (1995) 9 S.C.N.J. 1, Progressive Action Congress v. INEC (2009) All FWLR (pt.478) 260, Magaji v. The Nigerian Army (2005) All FWLR (pt.257) 1511 at 1531, Aregbesola v. Oyinlola (2009) All FWLR (pt.472) 1147 at 1181, Our Line Limited v. S.C.C. Nigeria Limited (2009) All FWLR (pt.498) 210. Once so tendered and admitted in evidence the Court must then scrutinize it in considering the matter before it as proof it can be waived vide Our Line Limited v. S.C.C. Nigeria Limited (supra) at 251 per the judgment prepared by Chukwuma-Eneh, J.S.C. It follows that cross-examination on such a public document so admitted in evidence from the Bar would not arise.

See also; Belgore v Ahmed (2013) 8 NWLR (Pt 1355) 0 at 100

Documents can be tendered through witnesses either during evidence in chief or during cross examination by the adverse party. #

Tendering during cross examination – Ogbunyinya v Okudo Suit No: SC/13/1979.

Tendering Documents During Re-Examination #

It is pertinent to note that the purpose of re-examination is the explanation of matters referred to in cross-examination. And if a new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter – See Section 215 of the Evidence Act 2011.

The question that however arises is if the limits of re-examination is expansive enough to allow apart tender a document under the guise of achieving an explanation of a matter that arose under cross examination. In EM-INTL SYSTEMS (NIG) LTD v. FCMB LTD (2019) LPELR-50896(CA), the Court of Appeal was of the view that the trial Court erred when it rejected a document sought to be tendered during re-examination on a blanket statement of law that documents cannot be tendered during re-examination. Although the Court of Appeal yet rejected the contested document in evidence, the Appellate Court gave a different reason for doing so which is that Appellant failed to establish the rudiments of what facts or “discrepancy” was sought to be explained by the document it sought to tender at the trial Court.

See the decisions in YAKUBU v. STATE (2021) LPELR-56351(CA),

Practice Notes – Dumping Documents on the Court #

Whichever way or method is adopted by Counsel to tender documents (from the bar or through a witness) at trial, it is most important to note that it is the duty of the party tendering documents in a suit to relate each document tendered to the part of the case he intends to prove. This duty still remains and must be fulfilled – A.P.G.A. v. AL-MAKURA & ORS (2016) LPELR-47053(SC).  Where this is not done, it is said that the document has been dumped on the Court. This remains so even though it is a trite position of law that documents speak for themselves. The fact that a document was tendered in the course of proceedings does not relieve a party from satisfying the legal duty placed on him to link his document with his case. See CPC v INEC (2011) 18 NWLR part 1279 p. 93 at 546-547.

Therefore, Counsel should ensure that tendered documents are tied or linked to the relevant portions of the client’s case to prevent the damage it could occasion to his client’s case. This is to be done by ensuring that the witness speaks to the document in his evidence in chief. One may ask – what is the worst that could occur?  The worst is that the Court will not attach probative value to the dumped documents as the Court has no duty to evaluate such dumped documents.  

The dictum in FBN v Kolo (2021) LPELR-56082(CA) offers further illumination to the question –

“The point must be made that a Court is not a dumping ground or dumping site for any of the parties. No party can be allowed to dump any document on a Court. When this is done, the Court will obviously do to the document what is done to waste, which is to trash same. The end of any documents dumped on a Court is to trash same. See APGA vs. Alhaji Al- Makura (2016) 1 S.C. (pt IV) 66; Ucha v. Elechi (2012) All FWLR (Pt.625) 237, (2012) 13 NWLR (Pt.1317) 330. A document is dumped on a Court when it is placed before a Court without any link to the case or linking same to any evidence before the Court. Such a document has no pleading or evidence backing it up and so it is like a stand-alone document with nothing to support same. It is like an orphan document with no parent indeed no relative. It is all alone in this world. There is no connection of the said document to the pleading and evidence adduced. See Abia vs INEC & Ors (2019) LPELR 48951(CA). Since documents are papers and papers cannot talk, the Court deals with evidence and so there is need for a witness to give a voice to the document so that the Court will know exactly what the document is for and what specifically does the document intend to address. That will give the other party the opportunity to cross examine on the document.”

Demonstration of the document could also be achieved under cross-examination even where the party who tendered it failed to link it to his case earlier on – St. Peter Parish Makurdi Vs Registered Trustees of the Deeper Life Bible Church &  Ors (2018) LPELR – 45892 CA.

It is not the duty of the Court to embark on enquiry outside the Court, not even by examination of documents which were in evidence when the document had not been examined or analyzed by the party who tendered it – NRC & ANOR v. IMAM & ORS (2022) LPELR-57546(CA) Pp 61 – 63 Paras D – A, OKEREKE v. UMAHI & ORS (2016) LPELR-40035(SC). In PURPLE PINE GLOBAL CONCEPT LTD & ANOR v. IZGE & ORS (2022) LPELR-57762(CA) it was held that 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.  See – Ucha v. Elechi (2012) 13 NWLR (Pt.1317) 330, Samuel & Anor V. Tanimu Musa & Ors (2019) LPELR-50988(CA), J. K. Obielodan (Nig) Ltd V. Union Bank (2021) LPELR-56341(CA).

Where Counsel considers tendering the document from the bar, it is relevant to prevent or avoid the pitfall in POLARIS BANK v. CENTRE POINT TRAVEL AGENCY LTD (2022) LPELR-57359(CA)- and CPC v. INEC & ORS (2012) LPELR-15522 (SC) AT 32-33 (C-C). You can read both cases via these links – POLARIS’s Case and CPC’s Case.  

More precisely the Court in MINISTRY OF LAND AND SURVEY, NASARAWA STATE v. NWAFOR & ORS (2021) LPELR-56254(CA) held as follows;

“…when documents are tendered by persons who are not the makers and who cannot be cross-examined on them, the Court does not place credibility on them, see OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR-24803(SC) where the apex Court held that: ”The exhibits tendered from the bar without calling the maker thereof were also held to attract no probative value because there was no opportunity given the respondents to cross-examine upon for purpose of testing their veracity. See Saeed v. Yakowa (2011) All FWLR (Pt. 692) 1650. As a matter of law, documents are to be tested in open Court before the Tribunal can evaluate them. See ACN v. Lamido (2012) 8 NWLR (Pt. 1303) P.56 at 580-581.” Per OGUNBIYI, J.S.C.” Per YARGATA BYENCHIT NIMPAR, JCA (Pp 37 – 38 Paras C – A)

Similarly in CPC v. INEC & ORS (2012) LPELR-15522(SC), the Apex Court held as follows;

“This issue has raised a pertinent question of the Court evaluating documents allegedly dumped on it where there is no oral evidence linking the documents to the appellant’s case. It is significant that these documents as per Exhibits P1- P201 have been tendered from the Bar with the consent of both sides. The appellant’s contention is that they have been taken as read and that it is the duty of Court to appraise the documents without more. I think the appellant has misconceived the law in this regard that where the documents so tendered are not examined in the open Court by oral evidence showing the purpose for tendering them and thus linking them precisely to a part of the case of the appellant as per the pleadings of petition. Otherwise, there is no duty on the Court to embark on a cloistered justice to examine them on its own outside the Court. The Court is not supposed to do a party’s case for him. I am fortified for so holding by a plethora of cases including Jang v. Dariye (supra), Anyankwo v. Uzowuaka (supra) to mention but a few. To contend that the documents speak for themselves thereof is not to appreciate that it is the appellant’s duty to call direct evidence to support its case.” Per CHRISTOPHER MITCHELL CHUKWUMA-ENEH, JSC (Pp 32 – 33 Paras C – C)

Mere identification cannot by any stretch be taken to mean that the documents were properly linked to the aspects of the case of the relevant party. There is a world of difference between mere identification of a document and demonstration qua linking same to the party’s case – ANDREW & ANOR v. INEC & ORS (2017) LPELR-48518(SC)

Per OLABODE RHODES-VIVOUR, JSC (Pp 34 – 37 Paras E – D) in A.P.G.A. v. AL-MAKURA & ORS (2016) LPELR-47053(SC) –  “A judge is to descend from the heavenly abode, no lower than the tree tops, resolve earth 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.” -)

See also APC V ADELEKE (2019)

Legal effect of tendering a document from the bar without calling the maker #

In ANDREW & ANOR v. INEC & ORS (2017) LPELR-48518(SC) the Court stated inter-alia “exhibits tendered from the Bar without calling the maker thereof will not attract any probative value.” – on this position of the law see also OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR-24803(SC), Saeed v. Yakowa (2011) All FWLR (Pt. 692) 1650, MINISTRY OF LAND AND SURVEY, NASARAWA STATE v. NWAFOR & ORS (2021) LPELR-56254(CA), RE: ONWUBUARIRI (2019) LPELR-49121(CA).

Similarly in EMMANUEL v. UMANA & ORS (2016) LPELR-40659(SC) the Supreme Court restated thus;

“However, I wish to further emphasize on the rather reckless behavior of the Court below in refusing to be guided by the decision of this Court but relied on its own decision to decide that it was unnecessary to call the makers of documents Exhibits 317 and 322 to testify in this case. The law is well settled that documents produced by parties in evidence in course of hearing are to be tested in open Court before the Court can evaluate them to determine their relevance in the determination of the case upon which the documents are relied upon. For this reason, any document tendered from the bar without calling the maker thereof attracts no probative value in the absence of opportunity given to the other party to cross-examination for the purpose of testing its veracity, see OMISORE VS. AREGBESOLA (2015) NWLR (Pt.1482) 205 at 322 Per MAHMUD MOHAMMED, JSC (Pp 12 – 13 Paras F – E)

There is an exception to the above stated position of the law that arises specifically in criminal matters. Thus, by Section 55 of the Evidence Act 2011, certificates signed by specific Government officials and medical doctors can be tendered and relied upon as sufficient proof of their content without calling the Government official who made the certificate to tender same. It is noteworthy that while Section 55(1) of the Act makes specific reference to criminal cases, Section 55(2) does not.

Procedure for Tendering Documents Through a Witness During Examination in Chief #

It is noteworthy that by some rules of Court, examination in chief is expressly limited to leading the witness to adopt his witness deposition on oath. Most Courts apply this rule strictly, others allow some limited oral examination of the witness during his examination in chief.

Witness is sworn on Oath

Introductory questions are put to the witness

The witness is led to adopt his witness statement on oath as his evidence in the suit

Proceed to the relevant paragraphs in the witness deposition where the witness mentioned a particular document and what the witness is relying the document as, in the case

Whether the witness can recognize the document if he sees it?

How can he identify the document? (This question may be unnecessary in some Courts)

Counsel seeks the leave of court to show the document to the witness for identification; through the Registrar. After identifying, the witness will confirm that that that is the document he referred to.

Counsel seeks the leave of court to tender the document in evidence and for the court to mark it as Exhibit.

The adverse party could object as to admissibility on points of law relying on the Evidence Act and some decided cases in support.

Evidence is admitted and marked as Exhibit or the objection is upheld and the document/evidence is marked rejected

Practice Note: Legal Effect of a document rejected in evidence and so marked #

Once a document has been rejected in evidence, it cannot have probative value for the determination of any issue. So, it cannot be made use of either by Counsel during address or commented upon by the trial Court – Agbaje v. Adigun (1993) 1 NWLR (Pt. 269) 261 SC, AMOBI v. OGIDI UNION (NIG) & ORS (2021) LPELR-57337(SC) Per AMINA ADAMU AUGIE, JSC (Pp 27 – 27 Paras D – E)

NIGERIAN PORTS PLC v. BEECHAM PHARMACEUTICAL PTE LTD & ANOR (2012) LPELR-15538(SC) – “A document that is rejected when it is offered in evidence cannot be of any relevance in the matter. Also, contents of a rejected document cannot fare better than the document itself.” Per NWALI SYLVESTER NGWUTA, JSC (Pp 30 – 30 Paras B – C)

Furthermore, such a document that has been rejected in evidence cannot be tendered again in the same proceedings (even through another witness), neither can it be relied upon in the course of address by counsel nor commented upon by the trial Court or the Appellate Court – see AGBOOLA v. STATE (2011) LPELR-8948(CA), HARUNA v. STATE (2021) LPELR-56739(CA). The decision (ruling) of the Court rejecting a document in evidence constitutes a decision of that Court and the only remedy available to an aggrieved party is to appeal against the ruling. – see AGBOOLA v. STATE (Supra). The position stated in Agboola’s case is now being departed by a number of Court of Appeal decisions as noted in answer to the poser hereunder.

What if – A party seeks to tender a document in its inadmissible form (e.g. an uncertified Public Document) and it is rejected in that form (and so marked as rejected), then he subsequently takes steps to rectify the inadmissible status of the document (e.g. he subsequently certifies the Public Document), can he ‘re-tender’ the rejected document?

Put differently, does a trial Court have the competence to admit a document it had earlier rejected in evidence due to certain defects in the document, after such defects have been corrected in the course of the same proceedings?

The Court of appeal in REGISTERED TRUSTEES OF OBOSI DEVELOPMENT UNION v. ELEBOR (2018) LPELR-46657(CA) ruled such to be a legal impossibility. In effect, a document which had been tendered but rejected and duly so marked, cannot at a later stage of the proceedings be cured, tendered and admitted as an exhibit. Such a document cannot be of any evidential value or relevance in the matter. In other words, the subsequent correction and admission of such document in evidence is not permitted by law. This is the general position of the law on this point.

The case of REGD TRUSTEES OF IFE-OLUWA MISSION (CHRISLAM) & ANOR v. OWONLA & ORS (2018) LPELR-45981(CA) is also relevant here and the dictum of the Court is reproduced in extenso hereunder –

“The disceptation in this issue is on the admissibility in evidence by the lower Court of the Respondents purchase receipt (Exhibit D8) and the Respondents’ Survey Plan of 1918 (Exhibit D9). In the course of the testimony of the Respondents DW1, they sought to tender certain documents in evidence, including the purchase receipt and Survey Plan of 1918. An objection was raised to the admissibility of the said documents on the grounds that they were photocopies. In its Ruling, the lower Court upheld the objection and ordered that the documents be marked rejected. Subsequently, in later proceedings, the Respondents applied to tender the originals of the documents, the photocopies of which had earlier been rejected in evidence. The Appellants once again objected to their admissibility contending that having been rejected and marked as such the documents could no longer be tendered in the same proceedings. The lower Court in overruling the objection and admitting the documents in evidence reasoned and held as follows: “On 26/04/06, this Court delivered a ruling on the admissibility of certain documents tendered by the defence and ended with an order that: ‘I. The Photocopy of plan no. LA/1441/L/77 dated 30/11/77. II. Photocopies of the letters to the Lagos State Urban and Physical Planning Board dated 24/07/02 and 10/02/03. III. The photocopy of the purchase Receipt dated 20/05/1907 Are all rejected and marked R1, 2, 3 and 4 respectively.’ Now these documents were duly marked and they are still in the custody of this Court. They are not with the defendants so they cannot possibly seek to re-tender them. As rightly submitted by the defence counsel, the documents now being sought to be tendered are not the ones in the custody of the Court which are copies – they are original documents. I firmly believe that this objection is grossly misconceived with much respect to learned counsel for the claimants.” (See page 333 of the Records) It is limpid that the purchase receipt and survey plan had been tendered in evidence but rejected and marked as such. The reasoning of the lower Court in admitting the documents in evidence when re-tendered was that the defect in the documents (being photocopies) had been cured by the originals being produced and that since the documents marked rejected were still in the custody of the Court, it was not the same documents that were sought to be tendered. Now, it seems to be settled law that a document once rejected and marked as such cannot be subsequently tendered and admitted in the same proceedings: ACB vs. GWAGWADA (supra) and BELLO vs. KOGI STATE (supra). It is important to underscore that it is the document that can no longer be admitted. The legal position is not that the copy of the document that was rejected can no longer be tendered and admitted again. The document remains the same, be it photocopy or original. Accordingly, I am not enthused by the reasoning of the lower Court that the photocopy of the documents that were rejected were still in the custody of the Court and so the originals could be admitted. In WASSAH vs. KARA (2014) LPELR (24212) 1 at 24, Rhodes-Vivour, JSC stated as follows: “The well laid down procedure for admitting documents in evidence is for the trial judge to hear arguments for and against the admissibility of the document, then render a Ruling. If the ruling is favourable to the document being admitted in evidence the document is admitted in evidence and marked as an exhibit. If on the other hand, the Ruling is unfavourable, the document is marked rejected. A document marked as an exhibit is good evidence that the judge is expected to rely on when preparing his judgment. A document tendered and marked rejected cannot be tendered again. Once a document is marked rejected it stays rejected for the purposes of the trial in which it was marked rejected and the defect cannot be cured during the said trial. See Agbaje v. Adigun & Ors (1993) 1 NWLR (Pt. 269) p. 271.” See also AREGBESOLA vs. OYINLOLA (supra). The lower Court definitely got it wrong when it admitted the documents in evidence after the “defect” of tendering photocopies was presumed to have been cured by the production of the originals. It was already too late in the day and the document having been tendered and rejected could not be tendered again. Accordingly, the lower Court was in error when it admitted Exhibits D8 and D9 in evidence.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 9 – 13 Paras B – A)

Is the above position rigid for all purposes? Or are there any exceptions? So, in what instances can a document which was earlier rejected by a court be subsequently admitted in evidence?

The case of AKINSOLA & ORS v. OGUNGBAYI & ORS (2021) LPELR-52929(CA) in line with the earlier decision of REGENCY (OVERSEAS) CO. LTD v. ARIORI & ORS (2019) LPELR-47281(CA)  clearly departs from the position of the law stated above. In the words of the Court “…Where the document is the proper one but something has to be done to the document in order to render it admissible, such as secondary evidence of public documents. In such situation where the document was rejected on this ground that it did not conform with such requirement then, it is permissible for the person tendering it to obtain the proper copy that is admissible in law and tender it.”

The Court in Akinsola v Ogungbayi relied on the Supreme Court authority of TABIK INVESTMENT LTD & ANOR V. GTB PLC (2011) LPELR-3131 (SC).

Also, a stream of earlier decision’s support the view in Akinsola’s case (Supra) – thus in UZOMA v ASODIKE (2009) LPELR – 8421 (CA), the Court of Appeal gave credence to the position when it held thus: “It is now settled that a wrongly certified or even an uncertified public document can be re-certified and re-tendered in evidence. Also UMOGBAI v AIYEMHOBA (2002) FWLR (PT 132) 192 CA, (2002) 8 NWLR (PT 770) 687.

The position in Akinsola’s case now tends to be the prevailing posture of the Courts and in effect the law due to the desire of the Courts to do substantial justice. For emphasis, the dictum in REGENCY (OVERSEAS) CO. LTD v. ARIORI & ORS (2019) LPELR-47281(CA) is quoted hereunder –

Whether a public document tendered and marked rejected in the same course of proceedings can still be re-tendered and admitted into evidence

“The main issue in controversy is one dealing with whether a public document tendered and marked rejected in the same course of proceedings can still be re-tendered and admitted into evidence. It is the general position of the law that a document tendered and marked rejected is no longer admissible in evidence. See the cases of EBONYI STATE UNIVERSITY & ORS v ETENG (2012) LPELR – 19973 (CA); ADDISON UNITED NIG LTD v LION OF AFRICA INSURANCE LTD (2011) ALL FWLR (PT 594) 130; WASSAH & ORS v KARA & ORS (2014) LPELR – 24212 (SC). Indeed, there is no dispute as to the fact that the proper foundation and certification necessary for the admissibility of the document in question was not complied with by the Respondents in the tendering of the document and the Appellant rightly objected to its admissibility which the Court then marked as rejected. The Respondents then went back to put its house in order by getting the document certified and re-tendered same which was now admitted in evidence. The lower Court in admitting of the earlier rejected document made a distinction between when the general position of the law will apply and what the exceptions are. The lower Court in its ruling at page 183 of the record held thus: “at this stage, I must point out that basically a party cannot seek to tender a document which had been rejected earlier in the proceedings, but this position of the law has two broad classifications (1) Where the document sought to be tendered is the proper one but rendered inadmissible by a provision of the law in itself i.e. qua that document itself. (2) Where the document is one which even though proper, must be put in a particular condition before it can be admitted, like secondary evidence of public records, private documents of which public records were kept, bankers books, etc. The document in issue here falls into the second classification above. In respect of those in the first classification, once rejected, they are taken to have been dealt with on their merits. However, in respect of those in the second classification, when the document which then was not put in conformity with what type or copy of it the law allows to be tendered, and were so rejected on that ground, it is permissible for an applicant to obtain the proper copy admissible in law and seek to tender it. If an applicant does so and so applies, that will not be taken as a second bite at the cherry and such permissions will be granted. For the earlier decision refusing the tendering of the copy of the same document was based on the fact that the copy of it sought to be tendered was not put in the condition the law stipulates, such documents must be put before they are admissible in court proceedings.” In the case of UZOMA v ASODIKE (2009) LPELR – 8421 (CA), this Court gave credence to the position of the lower Court when it held thus: “It is now settled that a wrongly certified or even an uncertified public document can be re-certified and re-tendered in evidence. See UMOGBAI v AIYEMHOBA (2002) FWLR (PT 132) 192 CA, (2002) 8 NWLR (PT 770) 687, and also LAW OF EVIDENCE IN NIGERIA – S.T. Hon at page 287 . Poor certification is generally treated as mere irregularity, and the Court can order the document to be properly certified by curing the defect complained of.” Also the Apex Court per RHODES-VIVOUR, JSC in the case of TABIK INVESTMENT LTD & ANOR v GTB PLC (2011) LPELR – 3131 (SC) held thus: “The Court of Appeal set aside the judgment of the trial Court because Exhibits A, B1, B2 AND B3, public documents were not paid for. This is correct, but rejecting the document is rather harsh. The learned trial judge ought to have ordered counsel to ensure that the said documents are paid for, and after payment the trial continues.” Based on the foregoing, it becomes obvious that the document in question (which there is no dispute as to the fact that it is a public document) was not rejected on the ground that it was inadmissible under the law, but on the ground that it was not tendered in accordance with the proper form required of a public document. By virtue of the provision of Sections 104 & 105 of the Evidence Act, a public document to be considered proper and admissible must first be certified. See also the cases of OKOREAFFIA & ANOR v AGWU & ORS (2010) LPELR – 4708 (CA); AGBALLAAH v NNAMANI (2005) ALL FWLR (PT 245) 1052 at 1078, paras D – E; DANIEL v ADAJI & ORS [1998] 11 NWLR (PT 574); AGBAJE v COKER (2016) LPELR – 40157 (CA). The Respondents in the course of the trial was able to get the document certified and brought into conformity with the proper and acceptable mode of a public document, the lower Court then had no qualms in admitting the earlier rejected document. Having gone to regularise the document, I have no difficulty in aligning my view with that of the lower Court and the Respondents. The tendering of the proper form of the document is akin to the party regularising its position which in no way prejudiced the Appellant. The apex Court also gave credence to this position on the basis that Courts must strive to do substantial justice rather than relying on undue technicalities. See the case of TABIK INVESTMENT LTD & ANOR v GTB PLC (Supra); OGUNNUBI v KOSOKO [1991] 8 NWLR (PT 210) 511; OLAOSEBIKAN v INEC & ORS (2009) LPELR – 8513 (CA); ADELUSOLA & ORS v AKINDE & ORS (2004) LPELR – 120 (SC); EROMOSELE v FRN (2018) LPELR – 43851 (SC). I also have no difficulty in holding that the re-admission of the document is permissible in the interest of justice. It is also now trite that the Court has moved away from the era of placing undue reliance on technicalities at the expense of the substance and justice of a case. See the cases of AKULAKU & ORS v YONGO [2002] 5 NWLR (PT 759) 135; BANK OF THE NORTH LTD & ANOR v C. T. AKPAJA [2002] 13 NWLR (PT 785) 617; DAKUT v DAKUR (2012) LPELR – 7921 (CA). The trial Court rightly held at page 183 of the record thus: “That was more or less a technical defect, and as such once that is cure by bringing a copy of the same document, which is in the condition or with the particulars, the law stipulates for their admission in Court proceedings, they will be allowed in.” Therefore admitting the document in question will not in any way prejudice or overreach the case of the Appellant. At the end of the trial, the Court will weigh all evidence and decide the case based on a balance of probability. From the foregoing, once a public document is duly certified, there exists no impediment to its admissibility by the Court.” Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA (Pp 5 – 11 Paras E – C)

In practice it could rather happen that once the objection is raised by the adverse party the party who earlier sort to tender the document may rather chose not to join issues on the objection raised but instead withdraws the document. What is the proper order the Court is to make in this instance? To ask that fully, what is the proper order to be made by a Court where a party withdraws a document without joining issues with the preliminary objection raised to its admissibility?

The supreme Court case of OGUNTAYO v. ADELAJA & ORS (2009) LPELR-2353(SC) offers an interesting answer to this question.

Tendering Documents During Re-Examination #


“…Section 215 of the Evidence Act provides as follows: “215. (1) Witnesses shall be first examined-in-chief, then, if any other party so desires, cross-examined, then, if the party calling him so desires, re-examined. (2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief. (3) The re-examination shall be directed to the explanation of matters referred to in cross-examination and if a new matter is, by permission of the Court, introduced in re-examination, the adverse party may further cross-examine upon that matter.” Of interest to us in this appeal is the stipulation of Section 215 (3). Without a doubt, the stipulation is clear and univocal. Re-examination is directed at explanation of matters referred to in cross-examination. The emphasis is on the word explanation. Any interpretation and application of the stipulation, in the context of this appeal, will involve deciding whether the contents of a document can be used to explain a matter referred to in cross examination. Where, it can be so used, and I see no reason why it cannot, then the lower Court would have stated the legal position in an unbridled blanket manner when it held that a document cannot be tendered during re-examination. It is rudimentary law that in proceedings in Court, the purpose of evidence in chief or examination in chief is for the claimant and his witnesses to state the case of the claimant on oath. Thereafter the witnesses are cross-examined; the object being to test the credibility of testimony given in evidence in chief. Thereafter, comes re-examination which is an opportunity for the witness to restore the credibility of the testimony of the witness by explaining and clarifying any facts that arose in the course of cross examination. See AYORINDE vs. SOGUNRO (2012) LPELR (7808) 1 at 17, OKORO vs. THE STATE (2012) LPELR (7846) 1 at 31, OKULEYE vs. ADESANYA (2014) LPELR (23021) 1 at 18-19 and NATSAHA vs. THE STATE (2017) LPELR (42359) 1 at 31-32. The lower Court seemed not to have given due consideration to the fact that what is to be achieved by re-examination is to explain matters. The lower Court’s approach seemed to have been beclouded by the fact that it gave the Appellant leave to re-examine on new matters, consequent upon which it held that the new matter is not for purpose of tendering a document. No. That was not the correct approach. The correct approach was to interrogate whether a document can be used to explain a matter that had arisen on the basis of which facts can be clarified in order to restore the credibility of the testimony of a witness. It is in this wise that I am of deferential view that the lower Court stated the law in an unbridled manner when it held that a document cannot be tendered during re-examination. ?In the diacritical circumstances of this matter, the thrust of the re-examination was not on a matter arising from cross examination but in respect of a new matter which the lower Court gave the Appellant leave to re-examine on, with liberty for the Respondent to further cross examine. The reason given by the lower Court for rejecting the document in evidence, id est, that a document cannot be tendered during re-examination may not be correct, but an appellate Court is concerned with whether the right decision was arrived at; the reason given for arriving at the right decision is therefore immaterial. See NDAYAKO vs. DANTORO (2004) LPELR (1968) 1 at 32, FHA vs. OLAYEMI (2017) LPELR (43376) 1 at 79, DAIRO vs. UBN PLC (2007) 16 NWLR (PT 1059) 99 at 161 and OLUSANYA vs. UBA PLC (2017) LPELR (42348) 1 at 27. Therefore, to now captivate our attention is whether the decision rejecting to admit the document in evidence is the correct decision, maugre the reason. ?Now, pages 487-489 of the Records shows that the Appellant sought to re-examine in respect of a document (Exhibit P10) which the Respondent did not cross-examine the witness on. Upon an objection being taken to that line of re-examination, the lower Court granted the Appellant leave to re-examine on the said Exhibit P10, with liberty for the Respondent to further cross examine. In the course of re-examining on the said Exhibit P10, the Appellant applied for an adjournment to obtain a certified copy of Exhibit P10. The adjournment was granted. Before the re-examination continued, the Appellant applied for the issuance of a subpoena for the certified copy of Exhibit P10 to be produced by the Solicitor-General of the Federation (See pages 490-491 of the Records). The document subpoenaed for was produced by a representative of the Solicitor-General of the Federation and the Appellant applied that the document be received, not as an exhibit, but for identification purpose; whereupon it was marked as ID 1. (See pages 495-496 of the Records). The re-examination of the witness thereafter continued and the following is what transpired at page 496 of the Records: “Registrar remind him of his oath. Registrar: My lord PW2 has been reminded of his Oath. Tarfa (SAN): Have a look at ID1 are you aware of that letter. P.W.1. [sic]: Yes I am aware of that letters [sic] Tarfa (SAN): I humbly to [sic] tender the letter in evidence.” An objection was then raised to the admissibility of the letter in evidence, culminating in the decision appealed against. ?It is trite law that parties and the Court are bound by the Records of Appeal and it is the Records of Appeal that the Court will rely upon in the determination of the appeal. The Court will not depart from the Records and any extraneous facts not contained in the Records would be mere conjecture and the Court cannot rely or act on the same: GARUBA vs. OMOKHODION (2011) 15 NWLR (PT 1269) 145 at 180, ARUM vs. NWOBODO (2013) 10 NWLR (PT 1362) 374, FHA vs. OLAYEMI (supra) at 38-39 and TRANSOCEAN SHIPPING VENTURES PRIVATE LTD vs. MT SEA STERLING (2018) LPELR (45108) 1 at 9. It is manifest from the pericope of the proceedings when the Appellant sought to tender the document in evidence that what the Appellant sought to explain or clarify by having the document admitted as an exhibit is not evident from the Records. Re-examination of a witness is not at large. It is circumscribed to explanation of matters which may have arisen in cross examination or a new matter which is by permission of the Court introduced. The operative word is explanation. I am not unaware of the proceedings at page 492 of the Records when the representative of the Solicitor-General of the Federation was not in Court and the Appellant’s counsel informed the Court that the adjourned date was “with respect to the discrepancy of the documents.” The subpoenaed document having been produced, the Appellant did not lay any foundation as to any “discrepancy” which could be explained by the admission of the subpoenaed document as an exhibit. The laconic testimony leading on to the application to tender the document is “Yes I am aware of that letters” [sic]. In the absence of any foundation as to what was sought to the explained by the document, against the background of the restricted nature of re-examination, the refusal of the lower Court to admit the document in evidence was a proper exercise of judicial discretion. When it is remembered that the purpose and object of re-examination is to explain and clarify facts, it was presumptive for the Appellant to seek to have a document admitted in evidence without any attempt to establish the rudiments of what facts or “discrepancy” was sought to be explained. Consequently, the decision of the lower Court rejecting the document in evidence is the correct decision. This makes immaterial the fact that the lower Court may have given the wrong reason therefor; but it still arrived at the correct decision. See ABAYE vs. OFILI (1986) 1 NWLR (PT 15) 134 at 179, UKEJIANYA vs. UCHENDU 19 WACA 46 and NDAYAKO vs. DANTORO (supra).” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 10 – 16 Paras A – G)

YAKUBU v. STATE (2021) LPELR-56351(CA)

“…The challenge of the Appellant on the admissibility of these Exhibits is on the ground that they were admitted during re-examination and not during the examination in chief. The point must be made clear that the ground for the objection is not that the items are inadmissible in law but rather the procedure by which they were tendered and adopted. I make bold to say that the test of admissibility is relevant and once an exhibit sought to be tendered is relevant and has passed the requirement for its admissibility, it will be admitted no matter the stage of the examination it was tendered. The point I am trying to make here is that, I do not seem to know of any law that says documents or items cannot be tendered during re-examination. This is a new learning which I do not want to learn. The items, that is Exhibits A-J are relevant and therefore admissible and the fact that they were tendered during re-examination is of no issue. See Em-International Systems Nigeria Limited vs First City Monument Bank Ltd (2019) LPELR-50896 (CA).” Per EBIOWEI TOBI, JCA (Pp 22 – 23 Paras F – D)

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