THOUGHTS ON SELECTED ISSUES ON EVIDENCE : THE FATE OF EVIDENCE NOT FRONTLOADED AND THOSE NOT SPECIFICALLY PLEADED

The role of evidence in trials can never be over emphasized. In both criminal and civil suits, evidence stands as the backbone of the trial; the foundation, upon which a party’s case is firmly built or otherwise. To have a solid case therefore connotes having the requisite pieces of evidence to nail it. His lordship, Ndukwe Anyanwu J.C.A while delivering the lead judgment in Kolo v. Lawan (2011) All FWLR (pt. 597) 725 at 744 defined
evidence in the following words:

“any species of proof, or probative matter legally presented at the trial of an issue, by the act of the parties and through the medium of witnesses records, documents, exhibits, concrete objects e.t.c for the purpose of inducing belief in the minds of the count or jury as to their contention”.

From the above words therefore, the deciding factor in a trial clings more towards the nature of evidence presented to the court. If badly done, a case would be lost even right from the onset, as it would fail its primary purpose, which is, inducing the mind of the court. Right from the preparatory stages to the level of presentation of a case, evidence must be solid.

I recently witnessed a case before the Federal High Court where certain issues in evidence which are worthy of note and consideration came to fore. I was particularly interested in the issues concerning frontloading of documents and the connection between pleadings and evidence. This paper seeks to expatiate on these issues, bringing out the contentions, submissions and opinions as well as the holdings of the court on them.

DOCUMENTS NOT FRONTLOADED BUT LISTED, AND PART OF PLEADINGS

Frontloading of evidence simply means filing along with, or attaching to, or listing in, the originating or defence processes, of the oral, documentary or other evidence intended to be called by a party in civil proceedings. The courts have settled that from the various wordings of the rules of procedure, the frontloaded documents should accompany the originating processes, be adopted during examination in chief (See Agagu V. Mimiko (2009) & NWLR (pt. 1140) 342 at 424-425 and INEC vs. Action Congress (2009) 2 NWLR (pt. 1126) 524) and must as a matter of importance, be adopted in an open court, for, there can only be a cross-examination in an open court.

The aspect of frontloading this paper seeks to explore however deals with the non-frontloading of documents which form part of pleadings and are duly listed as part of the list of documents to be used in trial. It is important to note here too, that non listing of documents as well as non-attachment of same at the same time, even where the pleadings show traces of its, amounts to substantial non compliance, which can cause the action to be incompetent or render the documents inadmissible (See Okereke V. Yaradua (2008) ALL FWLR (pt. 430) 626). Going back to the main poser, it is humbly submitted that non- frontloading of documents, where reference to it is clear on the face of the pleadings as well as being set out on the list of the documents cannot render the documents inadmissible upon production of same during trial. It should be noted that during the trial in question, Counsel to the Plaintiff had sought to tender a thesis written by the plaintiff in the case and same was met with an objection by counsel to the defendant at the point of tendering it in evidence. The objection raised was akin to that made in Accord Party V. Saraki(2010) ALL FWLR (pt. 544) 65 at 96. The court of Appeal, in that case resolved that where items may not be easily attached to an originating process, the items will still be admissible.

Interestingly, just like the reason proffered in Accord Party’s case, not only was it difficult to attach the thesis to the originating processes as argued by the Plaintiff’s counsel, but also, and more importantly, the reliance on the decided case of Ogboru V. Uduaghan (2011) All FWLR (pt. 577) 650 paved way for the admissibility of the thesis, albeit not being frontloaded. The court in Ogboru’s case in reaching its decision had gone through an extra mile in driving home the point. N.I. Ichekor, counsel to the 1^st and 2^nd Appellants in Ogboru’s case had argued that the admission of certain documents at the trial tribunal was in error as same were not frontloaded.

The court in Ogboru’s case, in resolving the issue first considered a rather stern view of the Court of Appeal in Ukpo v. Naji (2008) 3 LRECN 505 at 525 – 526 where the court held the non compliance to the frontloading procedure as a violation of law. The court in Ogboru’s case later held, and pitched its tent with a more liberal view expressed in Chime V. Egwuonwu (2008) 2 LRECN 575, 616 as wells as the decision in Chime v. Ezea(2008) 2 LRECN 675, 744-745 where the courts held that a rejection of documents because same were not frontloaded would be tantamount to a miscarriage of justice. The Federal High Court in the instant case therefore was not in error when it held that the thesis, though not frontloaded alongside the originating processes, was still admissible. It should also be noted that apart from  listing the document, the plaintiff’s counsel also argued that if it was not purely on the basis of technicality, the defendant ought to have requested for it, as it had been part and parcel of the plaintiff’s case since the commencement of the action.

SPECIFICALLY PLEADING OF EVIDENCE

It is a settled principle of law that where facts exist in pleadings but there are no evidence to support same, such facts are not worthy of consideration by the courts (See Bongo v. Gov. Adamawa State (2012) All FWLR (Pt. 633) 1908 at 1939). The same applies to pieces of evidence which do not have facts pleaded to buttress them (See Amadi v. Nwosu (1989- 1992)3 SCJE 912 at 917). Thus, not only must facts exist in pleadings, but there must also be admissible pieces of evidence tied to those facts. But here is the snag; must the evidence be specifically pleaded and set out in bold letters before same would be given consideration by the court?  Or on the other hand, will a mere mention or inference to the existence of a document in the pleadings suffice? In the instant case, certain letters were written by the Plaintiff to the Defendant and upon tendering same in evidence, counsel to the Defendant raised an objection to the effect that the documents were not specifically pleaded, hence should be inadmissible in evidence. 

The above poser has a history in our law, particularly, case law. Oba R.A.A. Oyederan of Igbonla v. His Highness Oba Alebiousu II & 3 Ors (1992 -1996) 4 SCJE 152 quickly comes to mind. The court in Oyediran’s case had pointed out that pieces of evidence must be tied to pleadings for same to be admissible. This is still part of our law, and has not changed. The erroneous belief that is popularly held by lawyers is that the piece of evidence relied upon must be explicitly linked to facts in the pleadings. With due respect to that school of thought, the Supreme Court had since expressed a liberal view to the above proposition in Ipinlaye v. Olukotun (1992 -1996) 4 SCJE 882, 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. This was the reply to the objection raised, and a solid reliance on the decision in Ipinlaye’s case buried the objection.

The foregoing has been an attempt to bring to fore, some of the contending issues and rather trendy objections that are usually raised on admissibility of documents in trials. The attitude of the courts towards admissibility of documents has been shown to be on liberal terms in accepting documents in evidence, eliminating the use of technicalities while documents are sought to be tendered. It should be stressed however that it is necessary to frontload documents in accordance with the rules of the court and to also properly plead those pieces of evidence or make significant inferences to them in pleadings.