REACHING THE POINT OF NO RETURN WHILE TENDERING DOCUMENTARY EVIDENCE IN COURT

The process of tendering documentary evidence in court during trials, be it civil or criminal is rather a well settled one. This assertion is supported by a chain of decisions of our superior courts of records. While the Evidence Act and the various rules of the court make provisions for the necessary conditions to make documents relevant and admissible in trials, case law has come to fill the void of the procedural aspect of tendering those documents in the course of trial. This paper attempts to re-echo the firm principle in our law and also raise a bit of concern with regards to the 'point of no return' while tendering a document during trials.
It is argued that although the law allows a party who intends to tender a document to withdraw the document before joining issues upon the objection or objections on the document, the withdrawal at that point seems somewhat questionable and synonymous with eating one's cake and having it at the same time. It concludes therefore that a certain form of rule should be provided, albeit not too technical one to allow for fair play between the parties in trial.

Consider this fictional scenario in court. You are before a High Court as the claimant's counsel and the case is fixed for hearing of your case. Your sole witness has been led to adopt his witness statement on oath and all that was left for you to do was just to tender the only document through the witness. This document you intend to tender is a photocopy of a private document, the original of which has been lost and all efforts to obtain the original document have been in futility. However, for one reason or the other, the witness totally forgot this point and you thereafter intended to tender the said document anyway. Counsel to the defendant promptly raised an objection to the admissibility of the document and prays the court to mark it as rejected. Before replying to the defendant's counsel's objection, you promptly applied to withdraw the document before joining issues on the admissibility of the document.

I have created the above scenario to illustrate a typical example where the issue being discussed may occur. The latter part of the scenario will be the focus of this effort. The questions to be asked include; when will issues be deemed to have been joined to preclude withdrawal of a document being tendered in evidence? Is it fair enough to listen to the possible objection of counsel on the document sought to be tendered before asking for a withdrawal of that document? Will it amount to a breach of fair hearing if a court refuses to allow counsel withdraw his document sought to be tendered at that stage? These questions will be given attention in due course.

First, we have to agree that the relevancy and admissibility of a document are governed by the Evidence Act, 2011. Where a document is found to be relevant but not admissible, such document ought to be marked rejected by the court. The Supreme Court in Abubakar v. Chuks (2008) All FWLR (Pt. 408) 207 at 221 succinctly reiterated the laid down principles of relevancy as it relates to admissibility and where the admissibility of such document is supported by case laws.

Now coming back to the focus of this paper. The issue centres on when a person tendering a document exercises a right of withdrawal when an objection has been raised to the admissibility of the document. It would be also important to restate the point where an objection can even be raised to the admissibility of a document at the first instance. The Supreme Court in a plethora of cases has continuously held that the proper time to raise an objection to the admissibility of a document is when it is sought to be tendered in evidence. Where an adverse party sleeps over his right to raise the objection at the necessary time, he cannot be heard complaining about the admission of the document, albeit with an exception to documents which are inherently inadmissible in the way they are. See the Case of Etim & Ors v. Ekpe & Anor (1983) 14 NSCC 86 at 96 where the court per Aniagolu JSC (as he then was) stated thus;

"It is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases, that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where  by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document (or other evidence see: Chukwura Akunne v. Mathias Ekwuno (1952) 14 W.A.C.A. 59), the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission (See Alade v. Olukade (1976) 2 S.C. 183 at 188 -9;

The court then went ahead to give some of the exceptions to be an unregistered document which is expected to be registered by law, unsigned deed of grant (or copy) and unstamped instrument or document requiring to be stamped, unless it may be legally stamped after execution and the proper penalties paid.

Where no objection is raised at this crucial point, the party is expected to formally seek to tender same in evidence and upon which the court is entitled to mark it accordingly. Where there is an objection however, a response is required from the party tendering the document and a further reply on points of law where necessary from the original objector, after which the court is entitled to rule on its admissibility. It should be noted here that once the party who seeks to tender the document replies to the objection, issues are deemed to have been joined, hence, a point of no return is established/reached. The subsequent obligation of the judge at this stage is to treat the document either as admitted and marked it 'tendered and admitted or as rejected and marked it as 'tendered but rejected'.

Where issues have not been joined on the admissibility or otherwise of a document, such document can be withdrawn by the party tendering it. The Supreme Court has already given validity to this position of the law. The peculiar issue was graphically reported in Oguntayo v. Adelaja (2009) All FWLR (Pt. 495) 1626. In the case, the 1^st respondent's counsel had sought to tender a certified true copy of the court proceedings in suit No. HCJ/6/85 dated March, 1989 through a higher register, High Court of Justice, Ijebu-Ode who was subpoenaed to tender the proceedings. Upon tendering the document, the appellant's counsel promptly objected to the admissibility of the document as, according to him, it is an evidence in a previous proceedings. He cited the case of Lagos State Development property Corporation v. Adold / Stamn Inter (Nig) Ltd. (1994) 7 NWLR (Pt. 358) 545 at 561 and submits that the proceedings sought to be tendered contravened section 34 of the Evidence Act (Now section 46 of the Evidence Act, 2011) and therefore irrelevant and inadmissible. Other counsel on the other part also objected to the admissibility of the proceedings, while associating themselves with the earlier objection.

Without joining issues with the objectors, the 1^st respondent's counsel sought to withdraw both the piece of evidence and the witness. This however did not go down well with the objector to the admissibility of the document who protested that the document ought to be marked rejected. The insistence upon the withdrawal of the document by the 1^st respondent's counsel therefore led the court to take a stance. In his ruling, the trial court judge took the view that the fact that the 1^st respondent's counsel had not replied to the objection against the admissibility of the document did not preclude him from making a ruling on the admissibility. The court then considered the document inadmissible and marked it rejected accordingly.

On appeal, the issue was stretched as far as going to a denial of fair hearing. The 1^st respondent (appellant at the court of appeal) had maintained that the marking of the document as rejected, even where he had neither joined issues nor offered any argument on the admissibility of the document was tantamount to a denial of fair hearing. The court of appeal allowed the appeal and agreed with the appellant. The position was further restated by the Supreme Court which also felt that the trial court got the procedure of rejecting the evidence wrong (although it allowed the appeal and felt the decision didn’t amount to a miscarriage of justice). In the words of the court;

"It is clear from the proceedings that PW2, Kolawole Olufowobi, a higher Registrar of the High Court of Ijebu Ode was only called to tender the proceedings in case No. HCJ/6/85. The defendant's counsel objected to its admissibility. The plaintiff's counsel Chief Coker chose not to reply to the objection even though he had every ample opportunity to do so. Instead he applied to withdraw the evidence and the witness. What the trial court ought to have done was to have asked him to reply to reply to the objection so that  it could properly rule on the admissibility of the document or the court would have granted the request to withdraw the evidence and the witness. The trial court was clearly wrong in marking the document rejected when argument had not been concluded on its admissibility…"

In a swift way of answering another poser raised above about the issue of breach of fundamental human right of fair hearing, the Supreme Court however did not agree with the court of appeal that the marking of the exhibit as rejected without allowing counsel to the 1^st respondent argue upon the admissibility or otherwise of the document amounts to the breach of fair hearing. This position was succinctly put by the Court in the following words;

"With the greatest respect, the court of Appeal misunderstood the purport of the proceedings sought to be tendered and wrongly castigated the trial court for denying the 1^st respondent's counsel the opportunity to reply to the objection on the admissibility of that document. The learned counsel for the 1^st respondent who tendered the document heard the objection and had every opportunity to reply to it. For reasons best known to him, he refused to reply. To my mind this was abandonment of his right to reply… It can be seen from my analysis above that nobody violated the 1^st respondent's right of fair hearing and no miscarriage of justice resulted from the rejection of the document"

Thus, one could safely conclude, in line with the court's decision, that procedurally, the trial court was wrong in marking the document rejected when the 1^st respondent wanted to exercise his right of withdrawal. However, on the same token, it cannot be said that the right to fair hearing of the 1^st respondent was breached as he was given an opportunity to be heard. Nonetheless, the primary purpose was reaffirmed by the court and this was followed in a later case of Akanbi v. Osset (2012) All FWLR (Pt. 657) 785 at 799, where the Court of Appeal per Abdullahi JCA applied the principles in Oguntayo's case on both the proper time within which to apply for the withdrawal of the document and when the denial of withdrawing same would amount to a breach of fair hearing.

Other decisions have also applied the principle, including but not limited to

Ihekweme & Anor v. Obua (2013) LPELR-22520(CA) and HAASTRUP V. RORO TERMINAL CO. LTD (2003) 7 NWLR 879 358 At. 364 - 365 H - B

         

The principle as laid down by the Supreme Court in Oguntayo's case however was not a unanimous one. Although being a dissenting opinion, Niki Tobi JSC (as he then was) held a rather contrary view while expressing his dissent to the judgment. His lordship's view is rather described as one trying to avoid the use of technicalities or tricks or gimmicks in law practice. For, if counsel is allowed to withdraw a document as many times as he wants, he is sure to scale through as many objections as possible, cause delay and probably seek to amend his pleadings. All he has to do is to listen to the objection raised, withdraw the document and perfect it for the purpose of retendering it at another time. This, in the words of Tobi JSC amounts to tricks or artifice to outsmart the opponent. He states the inappropriateness in the following words;

"With respect, I do not agree with the Court of Appeal. I agree with the High Court. In my view, the moment a document is tendered and its admissibility is opposed by the opponent, the party tendering the document should satisfy the court why the document should be admitted. If the party fails to so satisfy the court, the document can be rejected. This is what the learned trial judge did and I cannot fault him.

In litigation, parties are required to place their case honestly, frankly and openly before the court. Parties are not expected to involve themselves in tricks or artifice to outsmart the opponent. The well settled principles of equity will not allow that. Litigation is not a forum for playing games. By applying to withdraw the witness and the document already tendered, the respondent exhibited some kind of smartness on the appellant. As he cannot eat his cake and still have it intact in his hands, the learned trial judge correctly marked the document rejected…"

This dissent from Tobi JSC (as he then was) represents the opinion of the writer, albeit with an understanding of certain difficulties which it may pose. For the purpose of emphasis, his Lordship, Tobi JSC had criticized playing hide and seek in litigation in another case of UMEANADU v. ATTORNEY GENERAL, ANAMBRA STATE & ANOR (2008) ALL FWLR (PT 416) 1996 at 2011 where he stated as follows;

“Litigation is not the children’s game of hide and seek. It is not a game of smartness. It is not a game of artifice or cunning display of a smart conduct designed to overreach or outsmart the adverse party. On the contrary, litigation is decent, open, and not deceitful process of making and defending claims in a court of law. The art and craft of even the most litigious person does not allow him to set a trap with a bait to lure the adverse party, as if he is a fish. That should be left to the fisherman or the keeper of an aquarium; not the courts”

The necessary question is, would it be fair enough to keep retendering a particular document until it is perfected? Would it not be a waste of time and cause delay in litigation? Since parties are already allowed to fully prepare for the presentation of their cases, diligence and professionalism dictates that one should have crossed his or her t's and dotted the i's before bringing a suit to court or entering defence. A particular instance would have made this position more glaring, if for instance, pleadings would have to be amended before the perfection of the document would be appropriate. In jurisdictions like Lagos State where amendments are not allowed at later stages of the proceedings, would it not become too difficult to achieve? These questions I suppose would not necessarily occur if there was no difference in 'tendering a document' and 'applying to tender a document' in court as stated in Oguntayo's case.

On the other hand also, it would not be too wise to shut out a litigant totally from withdrawing a document which is inherently inadmissible due to counsel's negligence. As the courts have stated in a plethora of cases that the courts will not visit counsel's negligence or mistake on litigants. Then, if these two positions are put on a scale, it is in the writer's opinion that a certain midpoint has to be made to allow for a fair playing ground in litigation.

It is suggested that this rule of withdrawing a document once an objection is raised to its admissibility should accommodate certain exceptions. More particularly, litigants should be allowed to withdraw a document only on one occasion and no more. Where a party is allowed to withdraw for more than once, the situation is at best described in the line of the dictum of Tobi JSC above as simply of hide and seek, an equivalent of trial and error among mathematicians. Where another objection has been raised to the admissibility of a document for the second time, counsel should owe the court a duty for arguments upon its admissibility or otherwise. For documents that are inherently inadmissible in law, and cannot be remedied at all, for instance, an unregistered deed which requires registration to make it admissible, the judge on his own should be allowed to prevent a withdrawal and mark it rejected accordingly, save, it is meant to be used for other purposes.

It is also suggested that where the issue with the admissibility of the document is solely on the fact that proper foundation has not been laid for its admissibility, a right of withdrawal should be allowed. Otherwise, a rejection of such piece of relevant evidence may lead to technicalities which the party seeking to tender it may not find convenient to appeal against. In such circumstances, the party should be allowed to retender the document.

In carving out these exceptions therefore, it is further suggested that the exceptions be reduced to legislation, particularly the Evidence Act or the rules of Court. This suggestion is premised on the position that any exceptions to be created to the rule of procedure can be appropriately made by legislation.

Conclusively, the foregoing has been an attempt to re-echo the stance of the courts in allowing a party to withdraw a document upon which an objection has been raised against and which issues have not been joined upon. The dissent expressed by Tobi JSC in Oguntayo's case has however opened a new vista for exploration and the development of our law. For, what better way can the law be advanced if not with dissenting opinions? It is the view of the writer that this dissent should be critically looked upon in order to shut out sharp practices among advocates, albeit trying as much as possible not to prevent a honest presentation of case and avoid visiting a lawyer's mistake on clients.