ROYORK NIGERIA LTD v ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, SOKOTO STATE
IN THE COURT OF APPEAL
IN THE SOKOTO JUDICIAL DIVISION
HOLDEN AT SOKOTO
ON THURSDAY, 8TH JUNE, 2017
Appeal No: CA/S/93/2016
CITATION:
Before Their Lordships:
HUSSEIN MUKHTAR, JCA
MUHAMMED LAWAL SHUAIBU, JCA
FREDERICK OZIAKPONO OHO, JCA
BETWEEN
ROYORK NIGERIA LIMITED
(APPELLANT)
AND
ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, SOKOTO STATE
FEDERAL INLAND REVENUE SERVICES
(RESPONDENTS)
PRONOUNCEMENTS
A. COURT
1. Duty of Court – Duty of the court to discountenance inadmissible evidence
Duty of Court to expunge inadmissible evidence
“But I will add that a trial Court is under an onerous duty to admit and act on only evidence which is properly admissible within the purview of the provisions of the Evidence Act. Where a trial Court, as in the instant case, inadvertently admits inadmissible evidence, the trial Court is under a duty to expunger it in the course of its judgment and not to act on it. However; if the trial Court fails to do so, an appellate Court has the duty to reject or discountenance such evidence and decide the case on the basis of only legally admitted evidence.” Per SHUAIBU, J.C.A. read in context
2. Duty of Court – Duty of the Court to discountenance evidence received in respect of matters not pleaded
Duty of Court to expunge evidence received in respect of matters not pleaded
“Consequently, evidence relating to un-pleaded exhibits as in the instant case, if accepted must be expunged. See the cases of FABIYI vs. ADENIYI (2000) FWLR (PT. 18) 196 SC; ANYANWU vs. IWUCHUKWU (2001) FWLR (PT. 32) 1 AT 9 SC; OKOKO vs. MONG (2001) FWLR (PT. 52) 21906 AT 2114.”Per OHO, J.C.A. read in context
B. EVIDENCE
3. Documentary Evidence –
Whether documentary evidence must be specifically pleaded to be admissible in evidence
“There are several decisions of this and the Apex Court concerning the scope and style that a given pleading should contain. Pleadings are expected to be confined to a concise statement of the material facts of the case, and parties are therefore enjoined to refrain from arguing their cases in their Pleadings and should neither make conclusions of law nor give the evidence that would prove the material facts in their pleadings. There are legions of decided cases on this. See the case of PDP vs. INEC (Supra) cited by learned ppellant’s Counsel, where the Apex Court per RHODES-VIVOUR, JSC had this to say; “Pleadings are averred facts in numbered paragraphs, which parties rely on to present their case so that the adverse party is not taken by surprise. The facts in the pleadings must be concise and unambiguous.”
A given pleading, therefore which is riddled with arguments and hyperbole is not likely to be well received by the trial judge. But suffice this to say, a pleading must provide the opposing party with sufficient details to allow for a full response. If a pleading fails to adequately define the material facts or issues in controversy, especially where it fails to deal with the facts of a documentary piece of evidence sought to be tendered by way of pleading briefly the facts related to the document, the Court may be hesitant in admitting such piece of documentary exhibit in evidence. See the case of ALHAJI SAFIANU AMINU & 2 ORS vs. ISIAKA HASSAN & 2 ORS (Supra) where the Supreme Court per PETER-ODILI, JSC had this to say;
“It is to be said that documentary evidence needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. Consequently, where the contents of a document are material, it shall be sufficient in any pleading to avert the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.”
Against the backdrop of the foregoing and backed by a plethora of decided authorities on the subject, the law is trite that documentary evidence needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. See the case of IPINLAIYE II vs. OLUKOTUN (1996) LPELR-SC.207/1992. It is important, nevertheless to note that although the law as it relates to the tendering of documents is that it would ordinarily suffice where statements of material facts relating to the document are pleaded and not necessarily that the document is specifically pleaded, the emphasis still remains that sufficient facts relating to the document are pleaded, otherwise the document would be rejected in evidence. See the case of AMAECHI vs. INEC (2008) 5 NWLR (PT.1080) 227.” Per OHO, J.C.A. – read in context
4. Admissibility of Evidence – Importance of relevancy to the admissibility of evidence
Whether admissibility of evidence is governed by relevance; what makes a piece of evidence relevant
“The position of the law is that evidence is admissible when it is relevant to the issues and when it is also competent. The usual catch phrase is: “that admissibility of evidence is governed by relevance”. The issue of competence comes into the scene when the piece of evidence is not excluded by law or some Rules of Court. What makes a piece of evidence relevant is when sufficient facts relating to the piece of evidence or documentary evidence are copiously pleaded. This goes to show its relevancy to the case of the party in question and once the piece of evidence is competent, that is to say that there is no legal bar to its admissibility, then the document is admissible. One notable bar to the admissibility quotient of a document in matters of this nature is the element of surprise, which under the rules of pleading is prohibited by law. Where the adverse party is taken by surprise, the given piece of evidence will lose its relevance and would be rejected in evidence. Generally speaking, evidence is relevant if it tends in any reasonable degree to establish the probability or improbability of a fact in issue. It is for this reason that the question of relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in the case.” Per OHO, J.C.A. read in context
LEAD JUDGMENT DELIVERED BY OHO, J.C.A.
This is an interlocutory Appeal against the ruling of the Sokoto State High Court presided over by BELLO ABASS, J in Suit No. SS/102/2014 delivered on the 14th of July, 2016, in which the Court admitted Exhibits K, L, M and N, which the Appellant as Plaintiff had taken an objection to on the ground that the admitted exhibits were not pleaded by the 1st Respondent in her Statement of Defense. Consequent upon the ruling of the lower Court overruling Appellant’s objection and admitting the un-pleaded Documents as Exhibits K, L, M and N, the Appellant being dissatisfied with the Court’s ruling, has appealed to this Court vide his Notice of Appeal filed on the 15-7-2016 and which contains a Ground of Appeal to wit (Shorn of its particulars);
GROUND OF APPEAL;
“The lower Court erred in law when it admitted in evidence documents neither pleaded by the Plaintiff not the defendants.”
ISSUE FOR DETERMINATION:
Only one issue was distilled from the sole Ground of Appeal filed, and it is accordingly reproduced thus;
“Whether Exhibits K, L, M and N which were not pleaded by the 1st Respondent were correctly admitted by the trial Court on the basis of relevance.”
On the part of the 1st Respondent, a sole issue was also formulated for the determination of the Court thus;
“Whether the trial Court was right in admitting Exhibits K, L, M and N in evidence in view of the state of the parties’ pleadings.”
On the part of the 2nd Respondent, the only issue formulated for the determination of the Court is reproduced thus;
“Whether in the circumstances of this case, the lower Court was right to admit in evidence documents marked Exhibits K, L, M and N respectively which were relevant to the case.”
The Appellant’s Brief of argument dated the 1-9-2016 was settled by FERDINAND E. OKOTETE ESQ., and filed on the same date while the 1st Respondent’s Brief of argument dated the 14-2-2017 and filed on the 15-2-2017 was settled by L. S. WALI ESQ. The 2nd Respondent’s Brief of Argument dated the 28-9-2016 was filed same date and settled by MUAZU SHEHU AHMAD ESQ. The Appellant filed a Reply Brief of argument dated the 21-2-2017 and filed on the 22-2-2017. At the hearing of the Appeal on the 21-3-2017, learned Counsel adopted their respective Briefs of argument on behalf of the parties and each urged this Court to resolve this Appeal in favour of their clients.
ARGUMENTS OF LEARNED COUNSEL TO THE PARTIES;
APPELLANTS;
On the part of learned Appellant’s Counsel, it was contended that the purpose and function of pleadings is for a party pleading to give sufficient notice to the adverse party of the case he would meet at the trial and that this practice is designed to narrow the issues in controversy and so that no party is taken by surprise. Counsel cited the case of P.A. I. INCORPORATION vs. S.L. LTD. (2010) 6 NWLR (PT. 1189) 98 S.C. It was further contended that in the instant Appeal at page 54 of the records, the learned trial Court expounded correctly the three main criteria governing the admissibility of a document in evidence to wit:-
a. Is the document pleaded?
b. Is it relevant to the inquiry being tried by the Court?
c. And is it admissible in law? Counsel cited the case of
OKONJI vs. NJOKANMA (1999)12 S.C.N.J 259 R 3 @ 263; OKEYE vs. OBIASO (2010) 3 S.C.N.J. 220 at page 233 ratio 9
The contention of Counsel was that from the authorities cited by the trial Court, it is crystal clear and shorn of any ambiguity that the Apex Court is emphatic that for any document to be admissible, pleading the said document is sine qua non requirement before further inquiry into other criteria of whether same is relevant and admissible by law could be done. In this connection Counsel also cited the case of S.O. ADEYEFA vs. BELLO BAMGBOYE (2013)2 S.C.N.J.198 AT 201, ratio 5, where the Supreme Court had this to say on the subject;
“For a document to be admissible in civil proceedings, it must not only be pleaded by a Plaintiff so as to make the Defendant know what to meet at the trial, it must also be relevant, the two requirements must be complied with conjunctively and not disjunctively.”
Learned Appellant’s Counsel also argued that for the Court to hold that the cardinal consideration in the admissibility of a document is relevancy is not supportable by law and case-law. To further deflate the holding of the lower Court, Counsel cited the Supreme Court in the Case of ALHAJI SAFIANU AMINU vs. ISIAKA HASSAN (2014) 1 S.C.N.J. 163 AT 166, where the Court held thus;
“Paragraph 6 of the Statement of Defense and Counter Claim which says; “the Defendants shall rely on all related documents in their possession on the said land at the trial and all relevant survey plans including survey Plan No. SEW/73016 does not disclose any fact in proof of which Exhibits E, G and G1 could have been properly tendered and admitted.”
It was therefore contended by learned Counsel that a perusal of the 1st Defendant’s Statement of Defense from pages 32 to 34, of the records of Appeal reveal that the 1st Respondent pleaded thus at Paragraph 3(g);
“That simultaneous with the payment mandate issued to Skye Bank Plc remitting withholding taxes to the 2nd Defendant was another mandate in respect of one M/S ROYAL MERCHANT CO. in the sum of Three Million, Two Hundred and Seventy – Four Thousand, Two Hundred and Thirty Eight Naira, Eighty Two Kobo (N3,274,238.82) on payment voucher No. evo31/10/09/3189/01 to whom Sokoto State G o v e r n m e n t h a s a w a r d e d a c o n t r a c t o f N65,484,776.40 the said payment mandate is hereby pleaded and shall be relied upon at the trial of this suit.”
Learned Counsel therefore submitted that the holding of the lower Court at page 55 of the records of Appeal that the document i.e. those marked as Exhibits K, L, M and N respectively, were admissible without the appropriate pleading in the 1st Respondent’s Statement of Defense, but on the basis of relevance, is not reflective of the present galaxy of judicial decisions to the contrary. On the lower Court’s findings at page 54 of the records of Appeal that under the evidence Act, the admissibility of the documents sought to be admitted in evidence would depend on a party’s “satisfactory pleading of material facts not evidence”, Counsel submitted that a diligent perusal of the 1st Respondent’s Statement of Defense from pages 32 to 34 of the printed records would reveal that the 1st Respondent’s pleading in Paragraph 3(g) earlier reproduced contain no material facts that are satisfactorily pleaded by the 1st Respondent to justify the admission of Exhibits K, L, M and N into evidence.
It was therefore contended that the 1st Respondent knows that any document she intends to rely upon must be pleaded and that for this reason, she adopted and adhered to the rules and case law requirement, which ordains that pleading of documents is a prerequisite for their admissibility into evidence, as this can be seen from her Paragraph 3(g) (Supra) where she specifically pleaded payment voucher No. PV 031/10/09/3189/01, which was admitted without objection. Counsel further contended that this was not the position with Exhibits K, L, M and N where no specific or material facts were pleaded regarding their admission as Exhibits by the trial Court.
In the instant Appeal, Counsel contended that no allusions were made to (1) Notification of contract of Royal Merchant Company, (2) Monitoring and verification of capital project committee report in respect to contract for Royal Merchant, (3) Sokoto State government Accounts Vat and other deductions Accounts, dated 31/10/2009 and (4) FIRS revenue collectors receipt in the sum of N3,274,238.62k, which were subsequently admitted as Exhibits K,L,M and N respectively, as they were not mentioned or alluded to by the said Paragraph 3(g) or any other paragraphs of the 1st Respondent Statement of Defense or by even trying to bring them in through the omnibus clause of; “the Defendant shall rely on all related documents in their possession and all relevant documents”.
Learned Counsel therefore argued that it is clear that there was no basis even on material facts for the Court below to have admitted the disputed Exhibits and that by so doing it amounted to an ambush and an unpleasant surprise to the Appellant.
Learned Counsel further referred Court to Order 17 Rule 9, of the Sokoto State High Court (Civil Procedure Rules) 2015 which provides thus;-
“Where the contents of any document are material, it shall be sufficient in any pleadings to state the effect thereof as briefly as possible without setting out the whole or part thereof. Unless the precise words of the document or any part thereof are material.”
It was contended by Counsel that what the order requires of the 1st Defendant/1st Respondent is to state the effects of the disputed Exhibits where the contents of the documents are material to their pleadings, and where the precise words of the documents or any part thereof are material, and then the precise contents must be fully pleaded. Flowing from this position, Counsel submitted that the 1st Respondent’s Statement of Defense neither stated the effects of Exhibits K,L,M and N nor the precise words of the documents pleaded.
It was finally submitted by Counsel that the findings of the lower Court at pages 54-55 of the records of Appeal as regards the question of relevancy and party satisfactory pleading of material facts are otiose and erroneously applied in the admission of Exhibits K,L,M and N in Suit No. SS/102/2014 and he urged this Court to answer the only issue in this Appeal in the negative and resolve same in favour of the Appellant.
1st RESPONDENT
On the part of the 1st Respondent, it was submitted by Counsel that the cardinal legislation dealing with admissibility or inadmissibility of any kind of evidence before Courts of record is the Evidence Act. He argued that although there might be other provisions in other laws or Rules of procedure dealing with admissibility of evidence before Courts of law, such other laws or Rules of Procedure are subsidiary and subservient to the Evidence Act, it being an Act of the National Assembly specifically dealing with the issue of evidence. Counsel therefore contended that the whole of the objection of the Appellant before the lower Court giving rise to this Appeal was out of misconception of the purport and import of the provisions of the Sokoto State High Court (Civil Procedure) Rules 2015 and a misapplication of the doctrine of judicial precedent to the admissibility of Exhibits K, L, M and N. It was therefore argued by Counsel that the Sokoto State High Court (Civil Procedure) Rules 2015 is in a class of the new Rules that provides for the procedure of front-loading documents before the commencement of trials and therefore, that in the entire provisions of Order 17 dealing with pleadings, there is no single provision that provides specifically for; “pleading documents” before they could be made admissible in evidence. Counsel further argued that essentially, Order 17, Rule 3 (1) only provides for pleading material facts and not evidence by which such fact(s) could be established. According to Counsel, the nearest that the Sokoto State High Court (Civil Procedure) Rules 2015 had come in making provisions relating to documentary evidence is in Order 33, Rule 4.
It was also submitted by Counsel that an examination of the provisions of the Sokoto State High Court (Civil Procedure) Rules 2015, especially the provision cited above, will invariably reveal that the lower Court was right in overruling the Appellant’s objection before it and admitting Exhibits K, L, M and N on the strength of their relevance to the proceedings notwithstanding that they were not specifically pleaded by the 1st Respondent in his Statement of Defense. He further argued that Order 9 Rule 4 of the Sokoto Rules has made it the preserve of the trial Court to admit or reject a document in evidence notwithstanding its pleading or otherwise, filed along with pleadings or not.
According to Counsel the provisions of the Evidence Act are sacrosanct on the issue of admissibility or otherwise of documentary evidence and that the least that the Rules of procedure can do in relation to the admission of evidence is outline the procedure to be adopted in admitting evidence in the course of trial and not to say that a particular document is admissible or not. Counsel also submitted that even where a Rule of procedure prescribes the procedure in admitting a piece of evidence, the failure to comply with such procedure (such as pleading a document where the rules provide for that) may be treated as a mere irregularity, which should not be allowed to defeat the ends and cause of justice. It is in this wise that Counsel referred Court to Order 5, Rule 1(2) and submitted that the lower Court was not in any way wrong when it went ahead and admitted Exhibits K, L, M, and N as Exhibits at page 54 of the records of Appeal. On account of this position, Counsel cited the case of ADEOYE 7 ORS vs. ADEGOKE (2014) LPELR – 22423 (CA), where this Court per PEMU, JCA held thus:
“The law is elementary that a document in support of facts pleaded need not be pleaded. It can be tendered in support of facts pleaded Amadi vs. Olumati (1995) 7 NWLR, part 410, page 739 at 744; Monia Construction Company vs. Uzuibuike (1990) 3 NWLR, part 136 at 74; Odunsi vs. Bangbala (1995) 1 NWLR, part 374 at page 641; Ojoh vs. Kamalu (2006) 6 WRN 110 SC.”
See also the case of F.B.N vs. ONIYANGI (2000) 1 NWLR, (PT. 661)497.
Counsel further contended that the decision of the trial Court in admitting the exhibits is perfectly in consonance with the provisions of Sections 4, 5, 6 and 83(1) of the Evidence Act and which has found favour and protection in many decisions of this Court and the Supreme Court and that it is therefore unassailable. Counsel also cited the case of OKOYE vs. OBIASO (2010) 8 NWLR, (PT.1195) 145 where it was held thus:
“Ordinarily, admissibility of evidence is governed by Section 6 of the Evidence Act. The cardinal consideration in the admissibility of a document is relevance. Once a piece of document is relevant, it is admissible. – Fawehnmi vs. NBA 2 (1989) 2 NWLR, part 105 at 558 SC; B.O.N vs. Saleh (1999) 3 NWLR, part 981 at 145.”
Learned Counsel further submitted that the Appellants Counsel’s mechanical reference and reliance on the decision in S. O. ADEYEFA vs. BELLO BAMGBOYE (Supra) rather than aid the Appellant’s arguments only strengthened the position of the lower Court. Finally, Counsel urged this Court to dismiss this Appeal and affirm the ruling of the learned trial judge relating to the admission of Exhibits K, L, M and N as Exhibits in the trial.
2nd RESPONDENT
On the part of the 2nd Respondent, Counsel argued that relevancy governs admissibility of document and that in considering the issue of admissibility of documents the relevancy of the document matters. He said that under the Evidence Act, the admissibility of documents sought to be admitted in evidence would depend on a party’s satisfactory pleading of material facts, which brings him within the purview of the Evidence Act. Counsel further argued that documents could be admitted in evidence where enough facts have been shown to be pleaded and when the document is most importantly relevant, since relevancy forms the bedrock for the admissibility of documentary evidence. For this proposition of the law, Counsel cited the case of AMINU & ORS vs. HASSAN & ORS (2014) 1 SCM 1.
It was contended by Counsel that the 1st Respondent laid a solid foundation sufficiently enough to introduce the documents into the case and stated all that is factually needed in Paragraphs 3(d), (e), and (g) of his Statement of Defense. Counsel therefore submitted that it is sufficient if statements of facts relating to the documents are contained in the pleadings and not necessarily that the documents or piece of documentary evidence must be specifically pleaded in a party’s pleading before it can be admitted in evidence. According to Counsel, pleading sufficient facts relating to the document goes to show its relevancy to the case of the party in question and once there is no legal bar to its admissibility, then the document is admissible. He cited the case of SALAMI vs. UNION BANK OF NIGERIA PLC (2011) 8 WRN para. 45-5 page 130 at pages 164-165. See also the case of YUNUSA UMAR GUNDA vs. UNIVERSITY OF MAIDUGURI (2014) LPELR-23351 (CA).
Counsel therefore argued that the law is clear that the admission of the documents marked as Exhibits K, L, M and N in this case was in line with the law and supported by the pronouncement of the Court of Appeal and Supreme Court as evidenced by the cited cases. He added that this position is now embedded in our case laws as determined by the Apex Court. He urged this Court to rely on these decisions accordingly.
RESOLUTION OF APPEAL;
The brief facts of this case is as follows; The Appellant as Plaintiff on the 3-12-2014, filed a Writ of Summons and Statement of Claim at the High Court of Justice, Sokoto State against the 1st Respondent wherein the Appellant claimed the following reliefs:-
1. Fifty million (N50,000,000) Naira only as General damages for the inability to bid for contract jobs which has led to set back in the business transactions of the Plaintiff caused by the unauthorized conducts of the Defendant.
2. 10% post judgment sum until the final liquidation of the judgment sum.
3. Cost of this action.
In response to the case as borne out by the Writ of Summons, the 1st Respondent thereafter filed an application to join the 2nd Respondent in the suit, which was granted by the lower Court. The 1st Respondent subsequently filed her Statement of Defense on the 10-11-2015. In the course of proceedings, Counsel to the 1st Respondent through DW1, one Ibrahim Shehu Abubakar sought to tender the following documents which were admitted by the Court as Exhibits K, L, M and N respectively:
1. Notification of Contract of Royal Merchant Company,
2. Monitoring and verification of capital project committee Report in respect to contract for Royal Merchant,
3. Sokoto State Government Accounts Vat other deductions Accounts dated 31/10/2009 and
4. FIRS revenue collectors receipt in the sum of N3,274,238.62.
It would be important to note that these documentary exhibits, according to learned Appellant’s Counsel were not pleaded in any of the paragraphs of the Statement of Defense of the 1st Respondent and that same were objected to consequent upon which the learned trial Court adjourned to the 15-6-2016 for ruling. But on the 14-7-2016, when the lower Court delivered its ruling on the objection, it admitted these documents as Exhibits as being relevant to the proceedings and accordingly marking them as Exhibits K, L, M and N respectively.
There are several decisions of this and the Apex Court concerning the scope and style that a given pleading should contain. Pleadings are expected to be confined to a concise statement of the material facts of the case, and parties are therefore enjoined to refrain from arguing their cases in their Pleadings and should neither make conclusions of law nor give the evidence that would prove the material facts in their pleadings. There are legions of decided cases on this. See the case of PDP vs. INEC (Supra) cited by learned Appellant’s Counsel, where the Apex Court per RHODES-VIVOUR, JSC had this to say;
“Pleadings are averred facts in numbered paragraphs, which parties rely on to present their case so that the adverse party is not taken by surprise. The facts in the pleadings must be concise and unambiguous.”
A given pleading, therefore which is riddled with arguments and hyperbole is not likely to be well received by the trial judge. But suffice this to say, a pleading must provide the opposing party with sufficient details to allow for a full response. If a pleading fails to adequately define the material facts or issues in controversy, especially where it fails to deal with the facts of a documentary piece of evidence sought to be tendered by way of pleading briefly the facts related to the document, the Court may be hesitant in admitting such piece of documentary exhibit in evidence. See the case of ALHAJI SAFIANU AMINU & 2 ORS vs. ISIAKA HASSAN & 2 ORS (Supra) where the Supreme Court per PETER–ODILI, JSC had this to say;
“It is to be said that documentary evidence needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. Consequently, where the contents of a document are material, it shall be sufficient in any pleading to avert the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are material.”
Against the backdrop of the foregoing and backed by a plethora of decided authorities on the subject, the law is trite that documentary evidence needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. See the case of IPINLAIYE II vs. OLUKOTUN (1996) LPELR-SC.207/1992. It is important, nevertheless to note that although the law as it relates to the tendering of documents is that it would ordinarily suffice where statements of material facts relating to the document are pleaded and not necessarily that the document is specifically pleaded, the emphasis still remains that sufficient facts relating to the document are pleaded, otherwise the document would be rejected in evidence. See the case of AMAECHI vs. INEC (2008) 5 NWLR (PT.1080) 227.
In the instant Appeal, while the learned Appellant’s Counsel had contended that no specific or material facts were plead by the 1st Respondent regarding the admissibility of Exhibits K, L, M and N as Exhibits, the learned 2nd Respondent’s Counsel on the other hand had contended that the 1st Respondent had laid a solid foundation sufficiently enough to introduce the documents into the case and all that is factually needed in Paragraphs 3(d), (e), and (g) of his Statement of Defense. Arising from this position, what the situation calls for in the opinion of this Court, is a critical examination of the 1st Respondent’s Statement of Defense contained at pages 32 to 35 of the records of Appeal, with particular emphasis on Paragraphs 3(d), (e) and (g) at page 33 of the records and, which are hereby reproduced for the avoidance of any doubt as follows;
“3(d) The 1st Defendant states that it has an understanding and arrangement with the 2nd defendant whereby withholding taxes on all eligible contracts awarded by the Sokoto State Government to contractors bound to pay same such as the Plaintiff are deducted at source from payments due to the contractors so as to avoid tax evasion by contractors.
(e) The 1st Defendant states that under the said arrangement, all deductions made at source are remitted to the 2nd defendant periodically through payment mandates enumerating the year, names of the contractors, payment vouchers (with details of the total contract sum) and the sum payable as withholding tax from the contract sum.
(g) That simultaneous with the payment mandate issued to Sky Bank Plc remitting withholding taxes to the 2nd Defendant was another mandate in respect of one M/S ROYAL MERCHANT CO. in the sum of N3,274, 238.82 (three Million, two hundred and Seventy-Four thousand, two hundred and thirty-Eight Naira, Eighty-two Kobo) on payment voucher No. PV031/10/09/3189/01 to whom Sokoto State G o v e r n m e n t h a s a w a r d e d a c o n t r a c t o f N65,484,776.40. The said payment is hereby pleaded and shall be relied upon at the trial of this suit.”
The relevant question perhaps to therefore address at this stage is: whether going by the wordings of the reproduced paragraphs of the 1st Respondent’s Statement of Defense, there is any iota of correlation between the admitted Exhibits K, L, M and N and the reproduced Paragraphs 3(d), (e) and (g) of the 1st Respondent’s pleadings? The answer to this teaser may have to wait a little longer in view of the fact that the learned trial Court had relied on the question of relevancy in admitting the documents into evidence. There may however be the need to mention just by the way, that the study of the law of evidence on this issue usually involves two main problems. The one which has to do with determining whether a given piece of evidence is admissible; while the other which has to do with the proper presentation of that evidence so that the Court will admit it into evidence in deciding the case presented for adjudication.
Although evidence as in the case where it is documentary, may by itself be admissible, the Court may not admit or consider it in the resolution of the case unless the evidence was properly presented. It is instructive to note that the learned trial Court in admitting Exhibits K, L, M and N in evidence, had relied on the question of relevancy when the Court noted at page 55 line 7 thus;
“…the documents sought to be admitted in evidence being relevant to the proceedings therefore are admitted in evidence and are to be marked accordingly.”
The position of the law is that evidence is admissible when it is relevant to the issues and when it is also competent. The usual catch phrase is: “that admissibility of evidence is governed by relevance”. The issue of competence comes into the scene when the piece of evidence is not excluded by law or some Rules of Court. What makes a piece of evidence relevant is when sufficient facts relating to the piece of evidence or documentary evidence are copiously pleaded. This goes to show its relevancy to the case of the party in question and once the piece of evidence is competent, that is to say that there is no legal bar to its admissibility, then the document is admissible. One notable bar to the admissibility quotient of a document in matters of this nature is the element of surprise, which under the rules of pleading is prohibited by law. Where the adverse party is taken by surprise, the given piece of evidence will lose its relevance and would be rejected in evidence. Generally speaking, evidence is relevant if it tends in any reasonable degree to establish the probability or improbability of a fact in issue. It is for this reason that the question of relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in the case.
I have therefore, once again and for the umpteenth time, taken a rather careful and very calm view of the averments in the pleadings of the 1st Respondent herein and what seem to be of practical importance is: whether the averment of the 1st Respondent has sufficiently disclosed the content of the documentary evidence as to portray their relevance to the proceedings in the instant Appeal. I cannot help but be in agreement with learned Appellant’s Counsel on the issue, that no allusions were made in the pleadings to;
(1) Notification of contract of Royal Merchant Company,
(2) Monitoring and verification of capital project committee report in respect to contract for Royal Merchant,
(3) Sokoto State Government Accounts Vat and other deductions Accounts, dated 31/10/2009 and;
(4) FIRS revenue collectors receipt in the sum of N3,274,238.62k, as a basis for the admissibility into evidence of Exhibits K, L, M and N respectively, as they were not mentioned or alluded to by either Paragraphs 3(d), (e) and (g) or any other paragraphs of the 1st Respondent’s Statement of Defense. Consequently, evidence relating to un-pleaded exhibits as in the instant case, if accepted must be expunged. See the cases of FABIYI vs. ADENIYI (2000) FWLR (PT. 18) 196 SC; ANYANWU vs. IWUCHUKWU (2001) FWLR (PT. 32) 1 AT 9 SC; OKOKO vs. MONG (2001) FWLR (PT. 52) 21906 AT 2114.
This Appeal therefore succeeds and it is accordingly allowed. Exhibits K, L, M and N wrongly admitted in evidence by the lower Court are accordingly expunged forthwith. No Orders as to cost.
MUKHTAR, J.C.A.
I have read before now the leading judgment of my learned brother, Frederick O. Oho, JCA. I am in total agreement with him in adopting the eloquent reasoning therein and the conclusion that the appeal is meritorious and deserves to be and same is hereby allowed.
I subscribe to all the orders made in the judgment.
SHUAIBU, J.C.A.
I have had the privilege of reading in draft the judgment of my learned brother, Frederick O. Oho, JCA. I agree completely with his reasoning and conclusion reached. But I will add that a trial Court is under an onerous duty to admit and act on only evidence which is properly admissible within the purview of the provisions of the Evidence Act. Where a trial Court, as in the instant case, inadvertently admits inadmissible evidence, the trial Court is under a duty to expunger it in the course of its judgment and not to act on it. However; if the trial Court fails to do so, an appellate Court has the duty to reject or discountenance such evidence and decide the case on the basis of only legally admitted evidence. A careful perusal of the averments in Paragraphs 3 (d), (e) and (g) of the 1st Respondent’s statement of defence clearly shows no correlation with the admitted Exhibits K, L, M and N. In other words, there is no sufficient facts in the 1st Respondent’s pleadings relating to those documentary evidence. I too allow the appeal and expunged the said documentary evidence.