Ntoe Andrew & Ors. V. The Congregational Board, Ishie Presbyterian Church & Ors. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment)

This is an interlocutory appeal against the decision of the High Court of Cross River State, sitting at Akpabuyo, contained in a ruling delivered on the 18/10/2011 in the suit of the Appellants No. HC/15/2011. The Appellants had tendered some documents through a witness from the National Archives, Enugu during the trial of the suit and the High Court had rejected the documents in evidence on the ground that they were not pleaded or on pleaded facts of the Appellants pleadings.

Being aggrieved by the rejection of the documents, the learned counsel for the Appellants had filed the notice of appeal against the ruling on the 31/10/2011 wherein three (3) grounds of dissatisfaction were set out.

In the Appellants’ brief filed on the 9/3/2012, the learned counsel for the Appellants, Chief Orok Ironbar had respectfully posited a single issue for determination in the appeal as follows:-

“Whether the trial court understood the case of the Appellants and was justified in rejecting the documents tendered through the subpoenaed witness from the National Archives, for not being pleaded.”

For Essien H. Andrew, Esq., learned counsel who settled the Respondents’ brief filed on the 27/3/12, the issue for decision in the appeal is:-

“Whether the learned trial judge was right to reject in evidence the documents in issue for not being on pleaded facts.”

Undoubtedly, the meat of the two issues above is the same although the amount of fat in both may be slightly different. Their common substance is whether the High Court was right to have rejected the documents in question on the ground that they were not pleaded or on pleaded facts. At the hearing of the appeal on the 27/11/12, the learned counsel for the Appellant had adopted and relied on the Appellants’ brief as his submissions in support of the appeal. He urged us to allow the appeal. The Respondents’ brief was adopted by Asuquo Akan, Esq. who urged us to dismiss the appeal.

The submissions of the learned counsel for the Appellants on the issue are that the documents were relevant to the proceeding relying on Sections 4, 5, 7 and 9 of the Evidence Act, 2011 but particularly Section 9 which provides that:-

“9. Facts not otherwise relevant are relevant-

(a) If they are inconsistent with any fact in issue or relevant fact;

b) If by themselves or in connection with other facts they make the existence of non -existence of any fact in issue or relevant fact probable or improbable.”

According to him, the principal fact in issue in the Appellants’ case is that the document registered as 35/35/360 Calabar and admitted as Exhibit 3 was forged and/or non-existent and so anything that shows that it may not exist is very material and relevant. He argued that documents from whatever custody that go to show that on the dates relating to Exhibit 3, no order or ruling or judgment of court or other proceedings authenticating it happened, is not only relevant but pleaded. Further, that in paragraphs 11 – 14 of the Appellant’s Amended Statement of Claim, it was pleaded that exhibit 3 did not exist or was fraudulent and so documents from the National Archives on the dates to show that they do not have the Exhibits 3, is in consonance with the pleaded facts.

It was also contended by the learned counsel for the Appellants that the cross-examination of the witness from the National Archives on the documents rejected confirms that the documents were relevant and that relevancy on the authority of Abubakar v. Waziri (2008) 14 NWLR (1108) 386, (08) 2 MJSC and Abdul v Benue State University (2003) 16 NWLR (485) 59 governs admissibility of evidence. The case of Allied Bank Ltd. v. Akubueze (1997) 6 SCNJ 116 was also cited by Chief Ironbar on the principle of law that documents need not be specifically pleaded to be admissible so long as relevant facts relating to the documents have been pleaded.