Ijebu-ode Local Government Council V. Mr. T. Ladipo Segun & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

The appeal emerged from a decision of the High Court of Justice of Ogun State sitting at Ijebu-Ode in the Ijebu-Ode Judicial Division admitting in evidence the testimony of a dead person in aborted previous proceeding before another Judge of the High court of Justice of the same jurisdiction. The appellant’s notice of appeal with two grounds of appeal was dated and filed on 2.12.05, from which two issues were distilled for determination on the appeal in the appellant’s amended brief of argument dated 3.7.07, but filed on 23.2.2010, and deemed duly filed on 21.10.2010, as follows:

“(a) Whether Exhibit B which is a record of the previous proceeding in the aborted trial was rightly admitted by the learned trial judge under section 34(1) of the Evidence Act.

(b) Whether the Exhibit B a record of previous proceedings need not be pleaded for it to be admitted in a subsequent trial ordered to be conducted afresh.”

Issue (a) on the first ground of appeal was argued first to this effect. Exhibit B, a record of the previous proceeding in the aborted trial, was the undisputed evidence of a dead person, but the appellant, joined as 3rd defendant in the suit by order of the Court of Appeal, Ibadan, on 10.5.2004, was not a party in the previous proceeding in Exhibit B, as at the time the previous proceedings in Exhibit B were conducted the 1st and 2nd defendants therein, were sued as tenants of the present appellant, the owner of the disputed land who has been in undisturbed possession of same before the dispute, therefore proviso (a) to section 34(1) of the Evidence Act was not complied with by the 1st respondent qua plaintiff in the court below, before the previous proceeding were admitted in evidence as Exhibit B.

It was, also submitted on issue (a) that Exhibit B was recorded on 27.10.1999, white 3rd defendant, now appellant, was joined in the suit on 10.5.2004, and could not have had the opportunity to cross-examine the witness, Rev. F. O. Segun, in Exhibit B, infringing proviso (b) to section 34(1) of the Evidence Act by the reception in evidence of the previous proceeding in Exhibit B.

It was submitted further on issue (a) that the issues of possession and mesne profits were raised in the previous proceeding in Exhibit B and the witness, Rev. F. O. Segun, was cross-examined upon them, while in the present proceeding pending in the court below, the issues therein are possession; ownership; equitable defences of laches and acquiescence; Limitation Law; Mesne Profits; declaration and injunction, differing from the issues raised in Exhibit B, breaching proviso (c) to section 34(1) of the Evidence Act by admitting in evidence the previous proceeding in Exhibit B. As a result, the previous proceedings in Exhibit B should not have been admitted in evidence following the cases of Shanu v. Afribank (Nig) PLC 242, and Eghbbamien v. F. M. B. N. (2002) 17 NWLR (Pt. 797) 488 at 502,

Issue (b) was argued next to the effect that the previous proceeding in Exhibit B was not pleaded and should not have been admitted in ‘evidence’ as appellant was not put on notice of its use in the present proceeding before the court below, therefore it should be expunged on ground of its inadmissibility as an unpleaded piece of evidence vide F.A.T.B. Ltd v. P.I.C. Ltd (2003) 12 S.C. (Pt.1) page 90 at 103.

The amended brief of argument of the 1st respondent dated and filed on 1.7.09, adopted the two issues for determination on the appeal formulated by appellant. Learned senior counsel, Mr. Ayanlaja, for 1st respondent contended that having regard to the facts that 1st respondent replaced the deceased Rt. Rev. Festus Segun as head of the family in the representative suit pending in the court below, and the appellant being the landlord of 2nd respondent, proviso (a) to section 34(1) of the Evidence Act was not breached by the admissibility in evidence of the previous proceeding as Exhibit B vide Jowitt’s Dictionary of English Law (2nd Edition) Vol. 2 and Phipson on Evidence (11th Edition) paragraph 707 page 320.

It was contended contrariwise on proviso (b) to section 34(1) of the Evidence Act that 2nd respondent participated in the previous proceeding in Exhibit B as appellant’s privy and had the opportunity to cross-examine the deceased witness in Exhibit B, which satisfied the requirement under proviso (b) of the Evidence Act of section 3a(1); also, evidence for one reason or the other not subjected to cross-examination does not render it inadmissible as that should go to the weight to be attached to the evidence especially in respect of the evidence of a dead witness vide Okwa v. Iwerebor and others (1969) NSCC (Vol. 6) 73 at 75.

Learned Senior counsel for 1st respondent submitted on proviso (c) to section 34(1) of the Evidence Act that, the substance of the case is the ownership of the land in dispute and all the other claims merge into it, more so the operative phrase in the proviso is “substantially”, making the issues in the previous proceeding in Exhibit B and the pending proceedings in the court below are same.

Learned senior counsel for 1st respondent capped his contention on issue (a) that evidence such as contained in Exhibit B is not admitted for the truth of it, but to show such evidence was rendered by the dead witness, leaving the issue of its weight to be assessed by the trial court at the end of the day vide the cases of Shanu v. Afribank (Nig) PLC (2002) 17 NWLR (Pt. 798) 185 at 202 and Obawole v. Coker (1994) 5 NWLR (Pt. 345) 416 at 433 to 434.

Learned senior counsel for 1st respondent argued on issue (b) that pleadings are to contain facts, not documents, and documents need not be pleaded so long as relevant facts covering, the documents are pleaded vide the cases of Arabambi v. A.B.I. Ltd. (2006) Vol. 3 M.J.S.C. 6t at 67 and Allied Bank (Nig) Ltd. v. Akubueze (1967) 6 NWLR (Pt. 509) 374 at 4O3; consequently, the contents of Exhibit B are evidence to prove facts set in 1st respondent’s pleadings, showing 1st respondent complied with the issue of pleadings and the appeal should be dismissed.

2nd respondent’s brief of argument dated and filed on 29.10.08, substantially followed the arguments of appellant adding the case Sanyaolu v. Coker and Another (1983) 3 S. C. 124 to support appellant’s arguments on issue (a) upon which learned counsel for 2nd respondent aligned himself with the appellant on issue (a).