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Shittu & 3 Others v Fashawe [2005] – SC

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➥ CASE SUMMARY OF:
Shittu & 3 Others v Fashawe [2005] – SC

by B.C. “PipAr” Chima

➥ COURT:
Supreme Court – SC 21/2001

➥ JUDGEMENT DELIVERED ON:
Friday, the 8th Day Of July 2005

➥ AREA(S) OF LAW
Inadmissible evidence.
Title to land.

➥ NOTABLE DICTA
⦿ SUPREME COURT CANNOT DEAL ON ISSUES DIRECTLY FROM THE HIGH COURT
Another point worthy of mentioning in passing is that the issues for determination as formulated by the respondent’s Counsel indicate discussions on the treatment of the matters raised as dealt with by the trial High Court. This court has clearly and obviously no jurisdiction to hear and consider appeals from the decisions of the High Court. The jurisdiction of this Court is limited to a complaint on a decision of the Court of Appeal and the issues formulated by the respondent are only concerned with the decision of the trial High Court. It is for the above, that I consider the respondent’s brief incompetent and is accordingly struck out by me. I shall discuss this appeal by reference only to the appellant’s brief argument. — Musdapher, JSC.

⦿ COURT TO DECIDE CASE ONLY ON LEGALLY ADMISSIBLE EVIDENCE
Thus where a court wrongfully admits inadmissible evidence, it ought as a duty, to disregard the inadmissible evidence in the consideration of the judgment in the matter. Where such evidence has been wrongfully admitted and acted upon and whether or not the opposing party objects or not, an appellate court has the duty to exclude such evidence and decide the case only on the legally admissible evidence, see Timitimi v Amabebe (1953) 14 WACA 374; Ajayi v Fisher (1956) 1 FSC 90, (1956) SC NLR 279. — Musdapher, JSC.

⦿ TWO CATEGORIES OF INADMISSIBLE EVIDENCE
It must be borne in mind that there are two categories of inadmissible evidence. Evidence that is absolutely inadmissible in law which is not within the competence of the parties to admit by consent or otherwise. It is a document which is by law inadmissible, see for example James v Mid Motors (1978) 11-12 SC 31; Minister v Azikiwe (1969) 1 All NLR 49; Kale v Coker (1982) 12 SC 252. The second class of inadmissible evidence is, for example, a document which is admissible in law but upon fulfilling certain conditions, parties may by consent admit it notwithstanding the conditions not being fulfilled e.g. the admission of unstamped instrument required to be stamped, see Etim v Ekpe (1983) 1 SC NLR 120, (1983) NSCC 86; Igbodim v Obianke (1976) 9-10 SC 179. — Musdapher, JSC.

Available:  Ferodo Limited & Anor. v. Ibeto Industries Limited (2004)

⦿ FAILURE TO RAISE OBJECTION AT THE TRIAL, CANNOT RAISE ON APPEAL
It is also the law, in the latter case, where a party fails to object to the admission of inadmissible evidence, at the trial, he cannot be allowed to raise an objection at the appeal stage unless the evidence was absolutely legally inadmissible, see Igbodim v Obianke (supra). — Musdapher, JSC.

➥ LEAD JUDGEMENT DELIVERED BY:
Musdapher, JSC

➥ APPEARANCES
⦿ FOR THE APPELLANT

⦿ FOR THE RESPONDENT

➥ CASE HISTORY
The plaintiff claimed against the defendant as follows:
(1) A declaration that the plaintiff is the person entitled to the statutory right of occupancy and/or certificate of occupancy of all that piece or parcel of land together with the storey building consisting of six flats thereon situate, lying and being No 19, Oluwasanmi Close, Mafoluku, Oshodi, Lagos State and more particularly described and delineated in the survey plan No FL502 of 29 September 1972 drawn by A.O. Adebogun, licensed surveyor.
(2) Possession of the said property and N100,000 (one hundred thousand Naira) only, being accrued rents in respect of the said property. The defendants, their servants, agents and/or privies on the property in dispute.
(3) A declaration that the defendants have incurred forfeiture of their tenancy in respect of the said storey building subject matter of this suit.
(4) A perpetual injunction restraining the defendant by themselves, their servants, agents and/or privies howsoever called from occupying the said house as tenants or otherwise.

After the delivery and exchange of pleadings, the matter went to trial. The plaintiff did not give evidence but called two witnesses. The first defendant, a tenant in the premises testified for himself and denied the claims of the plaintiff. The second-fifth defendants called 3 witnesses. At the conclusion of the taking of oral evidence, the parties submitted written addresses. In his judgment delivered on 5 December 1996, the learned trial Judge found for the plaintiff and entered judgment in terms of the amended Statement of Claim recited above. The second-fifth defendants felt aggrieved with the judgment and appealed to the Court of Appeal. In its decision delivered on 21 June 2000, the Court of Appeal, Lagos Division, dismissed the appeal of second to fifth defendants and this is a further appeal with leave to this Court.

Available:  De Facto Bakeries & Catering Ltd v. Mrs. A. Ajilore & Anor (1974)

➥ ISSUE(S) & RESOLUTION
[ON MERIT: DISMISSED, WITH N10,000 COST]

I. Whether respondent’s claim can be sustained on his document of title relied upon which document is unpleadable and inadmissible and ought to be expunged having been wrongly admitted. If the document is expunged, whether the decision of the lower court would have been otherwise more so that respondent pleaded that tenant in the property failed to recognise him as owner and they never atoned to him?

RULING: IN RESPONDENT’S FAVOUR.
A. In the instant case, now Section 15 of the Land Instruments Registration Law of Lagos State is the statutory authority relied on by the learned Counsel for the appellant to found his objection to Exhibits ‘C’, ‘D’ and ‘E’. It reads:- “No instrument shall be pleaded or given in evidence in any court as affecting any land unless the same shall been registered . . .”
These exhibits in my view fall under Section 15. They were not registered, they were wrongly pleaded and admitted as they were by law inadmissible in evidence. The courts have the bounden duty to reject them even where the opposing party did not object to their tendering in evidence, see Alade v Olukade (supra); Minister v Azikiwe (supra). But in these proceedings, the appellant merely pleaded that the Exhibits ‘C’, ‘D’ and ‘E’ were not registered in accordance with the law, but led no evidence whatever to establish the fact. In my view, it may be that the appellant had abandoned the complaint since he led no evidence to establish the non-registration and also failed not only to object, but did not cross examine the respondent’s witness on this score nor did they call any witness to refer to the issue, it is trite law that pleading is no evidence.
Although the learned Counsel for the appellant raised the matter in his address before the trial court, yet the learned trial Judge did not deem it fit to consider it in his judgment because according to the judgment:- “I have no iota of doubt that all the defendants and their witnesses knew nothing about the transaction between the first PW and late Alhaji Lasisi Shittu.”
As a matter of fact the learned trial Judge came to the conclusion that the respondent was entitled to the judgment on the basis of the oral evidence of PW1 and PW2 Kayode Sunmonu.

Available:  Alhaji Nahmood I. Atta v. Miss Chinye A. M. Ezeanah (2000)

B. The learned trial Judge thus saw no need to even refer to the exhibits or the objection raised as to their admissibility in his judgment, The law is that even where inadmissible evidence is admitted, the trial Judge or an appellate court should reject the evidence and after expunging such evidence shall consider if there is any remaining legal evidence to sustain the claims. The wrongly admission of evidence may not necessarily, fatally affect the decision of a court unless the use of the evidence has brought about miscarriage of justice in the case, see Ugbola v Okorie (1975) 12 SC 1. The wrongful admission of evidence will not itself create a ground for the reversal of a case unless the appellate court would have come to a different decision without such evidence, see Ajayi v Fisher (supra); Idundun v Okumagba (1976) 9-10 SC 227. Accordingly, I find the complaint of the appellant on this score not made out. The Court of Appeal in my view rightly affirmed the decision of the trial court. There was abundant evidence accepted by the trial court after duly appraising and evaluating all the evidence adduced before it. The Court of Appeal was therefore justified in affirming the findings of the facts.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Section 15 of the Land Instruments Registration Law of Lagos State.

➥ REFERENCED (CASE)
⦿ COURT SHOULD NOT ACT ON INADMISSIBLE EVIDENCE WHERE ADMITTED
In the case of Olukade v Alade (1976) 2 SC 183, this Court summarised the general rule on the effect of the admission of inadmissible evidence:- “A court is expected in all proceedings before it to admit and act only on evidence which is admissible in law (i.e. under the Evidence Act or any other law or enactment relevant in any particular case or matter) and so if the court should inadvertently admit inadmissible evidence it has the duty not to act upon it.”

➥ REFERENCED (OTHERS)

End

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