Assertions In The Court Of Law Without Proof Of Evidence Say Nothing: The Rules Of: Admissibility; Relevance; And Probative Value In Civil Suits In The Relevant Nigerian Courts

By Amb. Hameed Ajibola Jimoh, Esq.

FIGPCM, CGArb. (Certified Global Arbitrator), LPC (Licensed Peace and Conflict Resolution and Management Specialist), PC-WCM (Certified Specialist in ‘Workplace Conflict Management’), ACArb (Chartered Arbitrator), FIMC, CMC (Certified Management Consultant), CMS (Certified Management Specialist (with distinction in time Management), London) and Notary Public for Nigeria

1. Background:

‘Evidence’ is an important factor to consider when contemplating a suit in a court of law especially in civil suit (though, criminal suits are inclusive, however, the subject matter of this paper is civil suits). Therefore, when a lawyer is briefed by a prospective litigant on a complaint relating to civil matters, it will not be enough for the lawyer to pay attention to the complaints and or assertions or facts of the client rather, the lawyer should request from the client any complaint or assertion with the corresponding evidence to back up or sustain or support such complaint or assertion because ‘assertions in the court of law without proof of evidence say nothing in the relevant Nigerian courts’. One important analysis that the lawyer should do in the above instance too is to act as if he were a Judge sitting over the case in the trial court of law. Therefore, he should consider the rules or legal principles of: admissibility; relevance; and probative value, relating to each of the evidence sought to be tendered in the court of law. This is also that every case is won on the evidence and a case is lost in court for want of evidence or for lack of evidence to support the assertions made in the case, especially in regard to the main assertion which lacks ‘substantial evidence’ or where a main witness lacks substantial evidence to support his pleadings and or assertions in the trial court of law. Hence, this topic analyses these three basic principles of evidence in a civil suit in the relevant Nigerian Courts.

2. Abstract:

Generally, the strength of a case in civil suit in the relevant Nigerian courts is ‘evidence’, which the trial court would believe in holding a case in favour of a party in the case based on the scale of probability or preponderance of evidence based on the scale of justice in the suit. Such evidence is assessed by the trial court based on the legal principles of: admissibility; relevance; and the probative or weight to be attached to such evidence by the court. It becomes important for a lawyer and a Judge to always prepare and assess each evidence to be tendered or that is tendered in the court in civil suit having regard to or paying attention to these basic rules. This is because no matter how sweet or interesting a complaint is or an assertion is, it says nothing in the relevant court of law in civil matters. This paper is a note on these rules of evidence in civil suits in the relevant courts of law in Nigeria.

3. Introduction:

First and foremost, I must state here that the provisions of the Evidence Act, 2023-herein after referred to as the- Evidence Act or the EA- is not generally applicable to all courts in Nigeria rather they apply to the relevant courts stated in section 256(1) of the EA. Section 256(1) of the EA exempts certain courts from its application when it provides thus

‘(1) ‘This Act shall apply to all judicial proceedings in or before any court established in the Federal Republic of Nigeria but it shall not apply to —

(a) proceedings before an arbitrator:

(b) a field general court martial: or

(d) judicial proceedings in any civil cause or matter in or before any Sharia Court of Appeal, Customary Court of Appeal. Area Court or Customary Court, unless any authority empowered to do so under the Constitution, by order published in the Gazette, confers upon any or all Shari a Courts of Appeal, Customary Courts of Appeal. Area Courts or Customary Courts in the Federal Capital Territory Abuja or a State, as the case may be, power to enforce any or all the provisions of this Act.

(2) In judicial proceedings in any criminal cause or matter, in or before an Area Court, the court shall be guided by the provisions of this Act and in accordance with the provisions of the Criminal Procedure Code Law.

(3) Notwithstanding anything in this section, an Area Court shall, in judicial proceedings in any criminal cause or matter, be bound by the provisions or sections 134 to 140.’ (Underlining is mine for emphasis).

Also, section 12(b) of the National Industrial Court Act, 2006, which binds the Court to the EA, nevertheless, permits the trial court to depart from the provisions of the EA in the interest of justice.

Furthermore, it is important for me to summarily state some relevant principles that guide ‘evaluation of each evidence’ in a civil suit in the relevant Nigerian Courts. ‘It is settled principle of general application that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist’. See Section 131(1) Evidence Act. By the provision of Section 132 Evidence Act, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side, regard being had to any presumption that may arise on the pleadings. It is equally important to state that in law, it is one thing to aver a material fact in issue in one’s pleadings and quite a different thing to establish such a fact by evidence. Thus, ‘where a material fact is pleaded and is either denied or disputed by the other party, the onus of proof clearly rests on him who asserts such a fact to establish same by evidence’. This is because it is now elementary principle of law that averments in pleadings do not constitute evidence and must therefore be proved or established by credible evidence unless the same is expressly admitted. (Underlining is mine (i.e. the writer of this paper) for emphasis). See Tsokwa Oil Marketing co. ltd. V. Bon Ltd. (2002) 11 N.W.L.R (pt 77) 163 at 198 A; Ajuwon V. Akanni (1993) 9 N.W.L.R (pt 316)182 AT 200. I must also add here that under our civil jurisprudence, the burden of proof has two connotations: 1. The burden of proof as a matter of law and pleading that is the burden of establishing a case by preponderance of evidence or beyond reasonable doubt as the case may be; 2. The burden of proof in the sense of adducing evidence. The first burden is fixed at the beginning of the trial on the state of the pleadings and remains unchanged and never shifting. Here when all evidence is in and the party who has this burden has not discharged it, the decision goes against him. The burden of proof in the second sense may shift accordingly as one scale of evidence or the other preponderates. The onus in this sense rests upon the party who would fail if no evidence at all or no more evidence, as the case may be given on the other side. This is what is called the ‘evidential burden of proof’. In succinct terms, it is only where a party or the Claimant adduces ‘credible evidence’ in proof of his case which ought reasonably to satisfy a court that the fact sought to be proved is established that the burden now shifts to or lies on the adversary or the other party against whom judgment would be given if no more evidence was adduced. See Section 133(2) of the Evidence Act. It is also apposite to state that in law, declarations are in the nature of special claims or reliefs to which the ordinary rules of pleadings, particularly on admissions, have no application. The authorities on this principle are legion. I will refer to a few. In Vincent Bello V. Magnus Eweka (1981)1 SC 101 at 182, the Supreme Court stated aptly thus: “It is true as was contended before us by the appellants counsel that the rules of court and evidence relieve a party of the need to prove what is admitted but where the court is called upon to make a declaration of a right, it is incumbent on the party claiming to be entitled to the declaration to satisfy the court by evidence not by admission in the pleading of the defendant that he is entitled to the declaration.” The law is thus established that to obtain a declaratory relief as to a right, there has to be credible evidence which supports an argument as to the entitlement to such a right. The right will not be conferred simply upon the state of the pleadings or by admissions therein.

It is also the law that, pleadings are mere averments which require proof by oral or documentary evidence. ‘Thus any fact pleaded but on which no evidence is led is deemed abandoned and must be discountenanced’. (Underlining is that of the writer of this paper for emphasis). See ODUWOLE v. WEST (2010) 10 NWLR (Pt.1203) Pg. 598; S.A.F.P. & U v. U.B.A. PLC (2010) 17 NWLR (Pt.1221) Pg.192 at 207 Paras. F – G and OSADM v. TAIWO (2010) 6 NWLR (Pt.1189) PG.155. PER HARUNA SIMON TSAMMANI, J.C.A.

In essence, the above legal authorities give credence to the fact that a lawyer or litigant must ensure that each of his complaints is supported with a ‘cogent  or credible evidence’ for the facts or assertions made to the court to be believed by the court of law. Also, it is a trite law that one cannot place such an ‘assertion’ which lacks credible evidence on nothing and expect it to stand. See: the case of Macfoy v United African Company Limited PC 27 Nov. 1961.

4. Assertions:

What are assertions under the Evidence Act, 2023?

‘Assertion’ by the Meriam Webster online Dictionary is defined as ‘the act pf asserting or something that is asserted: such as: a. insistent and positive affirming, maintaining or defending (as of right or attribute); b. a declaration that something is the case’. Synonyms: affirmation, avouchment, claim, insistence, protestation, asseveration, avowal, declaration, profession.’. According to Oxford online Dictionary, ‘assertion’ means ‘a confident and forceful statement of fact or belief’. The word ‘ASSERT’ (i.e. verb of ‘assertion’) according to the BLACK’S LAW DICTIONARY Definitions of the Terms and Phrases of American and English Jurisprudence, Ancient and Modern By HENRY CAMPBELL BLACK, M. A. Author of Treatises on Judgments, Tax Titles, Intoxicating Liquors, Bankruptcy, Mortgages, Constitutional Law, Interpretation of Laws, Rescission and Cancellation of Contracts, Etc. REVISED FOURTH EDITION, means ‘To state as true; declare; maintain. To assert against another has probably a prima facie meaning of a contradiction of him, but the context or circumstances may show that it connotes a criminatory charge;’.

 In my humble submission, ‘assertions’ are ‘facts’ submitted to a court of law as facts for the court to believe in in resolving a case or complaint before the court’.

By virtue of section 258(1) EA, “Fact” includes – (a) anything, state of things, or relation of things, capable of being perceived by the senses; (b) any mental condition of which any person is conscious;’. Also, “Fact in issue” under same section, includes any fact from which either by itself or in connection with other facts the existence, non – existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows;’. By virtue of section 121 of the EA, A fact is said to be – (a) “proved” when, after considering the matters before it, the court  either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does exist; (b) “disproved’ when after considering the matters before it, the court either believes that it does not exist or considers its non – existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist; (c) “Not proved” when it is neither proved nor disproved.’. I agree with Jide Olakanmi of Jide Olakanmi & Co., LawLord Publication, 2015, Abuja, at page 109, where he stated and succinctly put the issue thus ‘A fact should be distinguished from law. A court of law is presumed to know the law since the rule of law could be shown to exist by making references to the statute which enacts it or to the decision of court which embodies if or to relevant authoritative textbooks. Opinions differ from fact. Opinions are formed by individual persons on facts. Opinions are subjective because they vary from person to person on the same facts. Relative to its nature, opinion of a witness is not allowed to be given in evidence (note exception in expert opinion). It is the function of the court to form its opinion as to the effects of facts adduced before it. But, the opinion of the court must be based on the facts before it; it is not allowed to bring in extraneous matter.’.

Therefore, ‘evidence’ is very important and it is the basis of the cardinal principle of law that ‘he who asserts a fact, must prove that such fact exists’. Proving in this respect, in my humble submission, entails three (3) important litmus tests vis-à-vis: i). relevancy; ii). admissibility; and iii). Credibility. In fact, the decision of the trial court could be set aside by the appellate court on the ground or grounds listed above. Also, in my humble submission, while objection as to: i). relevancy; and ii). Admissibility, might be raised at the time the said evidence and or document is sought to be tendered, the objection as to iii). ‘Credibility’ is to be raised in the final written address. Therefore, in my humble submission, each and every one of the pieces of evidence to be used by a litigant in a civil suit must undergo the above litmus tests. Hence, this is to show how important it is that a lawyer or litigant or even the trial court should understand and or take note of certain means of successfully winning such a civil suit vis-à-vis the evidence thereto.

I must however note that, in my humble view, the conducts of trials or proceedings of a court is at the ‘discretion’ of the Judge, nevertheless, such discretion must be used ‘judicially and judiciously’. It has been held by our Courts that ‘it is the general position of the law that a court while exercising its discretion must do so judiciously and judicially. While the exercise of discretion is at the instance of a court and must be respected by the appellate court, a court can interfere with the exercise of the discretion if it is not exercised judiciously and judicially.’. This was held to be the decision of the Supreme Court in BANNA VS TELEPOWER (NIG) LTD (2006) 7 S.C. (PT 1); (2006) LPELR-1352(SC). In fact, an appellate court will interfere with findings of fact of a court below or a trial court where such findings are ‘perverse’ and a decision is said to be perverse where it has occasioned a miscarriage of justice. See the cases of: Missr v Ibrahim (1975) 5 S.C. 55, Incar Ltd. V Adegboye (1985) 2 NWLR (pt. 8) 453 Ramonu Atolagbe v Shorun (1985) 1 NWLR (pt. 2) 360.

Also, ‘Miscarriage of justice’ was ably defined by the appellate Court thus “Miscarriage of justice’ means, ‘justice failure.’ It is justice that finds itself in a wrong carriage. ‘It is therefore injustice. It occurs when the court fails or refuses its rules, facts or law” OGUNTAYO V ADOLAJA  (2009) 15 NWLR (Prt. 1163) P. 160.  Furthermore, on what constitutes ‘miscarriage of justice’, the court held that ‘there is said to be miscarriage of justice or failure of justice when the judgment of the court is inconsistent or prejudicial to the right of the party concerned. It is a failure on the part of the court to do justice. That is to say, the court did what amounts to injustice.’. See: Oladina Sanusi v Oreitan Ameyogun (1992) 4 NWLR 9pt. 237), pg. 527; Harrison Okonkwo & anor v Godwin Udoh (1997) 9 NWLR (pt. 519), p. 16; Ojo v O. Anibire & Ors. (2004) 10 NWLR (pt. 882) p.571.

Also, where a finding of a court of law is ‘perverse’ and what amounts to a ‘perverse’ finding by a court of law has been held by the Supreme Court of Nigeria in the case of Mmamman v FRN (2013) 6 NWLR (pt. 1351) 569 SC, where M.D. Muhammad J.S.C. at page 585, paras. E-F on what amounts to perverse finding of a court thus ‘A court’s finding is said to be perverse if the finding draws wrong influence from the evidence before it or where same has occasioned miscarriage of justice. (Ukpabi v State (2004) 11 NWLR (pt. 884) 439, SC and Aiguokhian v State (2004) 7 NWLR (pt. 873) 565 SC.’

5. The Rules Of: Admissibility; Relevance; and Probative Value in Civil Suits in the relevant Nigerian Courts through the case laws:

In the case of ANAGOR vs. EFAB PROPERTIES LTD. & ANOR.(2022)LCN/16214(CA), the Court of Appeal of Nigeria, Per MUSTAPHA, JCA, held thus

 ‘The Appellant as claimant has to prove his claim, and the standard of proof is on a preponderance of evidence or balance of probabilities. See LONGE V. FBN (2006) 3 NWLR (PT. 967) 228 and ITAUMA V. AKPA-IME (2000) 7 SC (PT. II) 24. A claimant cannot rely on the weakness of the opposite party in order to succeed, but must rely on the strength of his own case. See: IMAM V. SHERIFF (2005) 4 NWLR (PT. 914) 80; ELIAS V. OMO-BARE (1982) 2 SC 25 and AGBI V. OGBEH (2006) 11 NWLR (PT. 990) 65. Where the claimant fails to discharge the burden of proof, as in this case, he will fail.’.

That is why the Court of Appeal of Nigeria held that Akalonu v. State (2000) 2 NWLR (Pt. 643) 165, ‘On Need for submissions by counsel to be based on evidence rather than speculations’ –

‘Submissions by counsel ought to be based on the evidence received and recorded and not based on speculations or conjectures. (P. 176, para. F)’.

In the case of Mafimisebi v. Ehuwa (2007) 2 NWLR (Pt. 1018) 385, the Supreme Court of Nigeria (the apex court) held ‘On When appellate court will interfere with evaluation of evidence by trial court’ –

‘The evaluation of evidence and the ascription of probative value thereto reside within the province of the trial court that sees, hears and assesses the witnesses. Where a trial court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate court to substitute its own views for the view of the trial court. However, an appellate court can intervene in the following circumstances:

(a) where there is insufficient evidence to sustain the judgment; or

(b) where the trial court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses; or

(c) where the findings of fact of the trial court cannot be regarded as resulting from the evidence; or

(d) where the trial court has drawn wrong conclusion from accepted evidence; or has taken an erroneous view of the evidence adduced before it; or

(e) the trial court’s findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the court. [Akinloye v. Eyiyola (1968) NMLR 92; Enang v. Adu (1981) 11-12 SC 25; Woluchem v. Gudi (1981) 5 SC 291; Akpagbue v. Ogu (1976) 6 SC 63; Odofm v. Ayoola (1984) 11 SC 72; Amadi v. Nwosu (1992) 5 NWLR (Pt. 241) 273; Okpiri v. Jonah (1961) 1 SCNLR 174; Maja v. Stocco (1968) 1 All NLR 141; Ike v. Ugboaja (1993) 6 NWLR (Pt. 301) 539; Ebba v. Ogodo (1984) 1 SCNLR 372 referred to.]’. (P. 433, paras. B-F).

Therefore, a challenge to evaluation of evidence in a trial at the appellate court shall be based on either of the above laid down items for the appellate court to re-evaluate same evidence. In the case of ‘Sunmonu v. Sapo (2001) 5 NWLR (Pt. 705) 59, the Court of Appeal of Nigeria held ‘On Primary duty of appellate court to evaluate evidence and attitude of appellate court thereto’ – and held thus ‘Evaluation of evidence is the primary function of the trial court which has the unique opportunity of hearing evidence and watching the demeanour of witnesses. An appellate court cannot interfere with findings of fact made by the trial court as an appellate court has no business to re-evaluate the evidence led in a case as a matter of cause in the hope of reaching its decision. [Abisi v. Ekwealor (1993) 6 NWLR (Pt.302) 643; Obodo v. Ogba (1987) 2 NWLR (Pt.54) 1; Woluchem v. Gudi (1985) 5 SC 291; Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 referred to]’. (Pp. 77-78, paras.G-A). Also, in the case of Suleman v. Osideinde(1994) 2 NWLR (Pt. 327) 477, the Court of Appeal of Nigeria held thus

‘On Appraisal of evidence by trial court and attitude of appellate court thereto’ –

‘If there has been a proper appraisal of evidence by a trial court, a Court of Appeal ought not to embark on a fresh appraisal of the same evidence in order merely to arrive at a different conclusion from that reached by the trial court. Furthermore, if a court of trial unquestionably evaluates the evidence, then it is not the business of a Court of Appeal to substitute its views for the views of the trial court. [ Woluchem v. Gudi (1981) 5 S.C. 291 at 326 followed; Akinloye v. Eyiyola (1968) NMLR 92 and 95; Balogun v. Agboola (1974) 1 All NLR (Pt.II) 66 at 73 referred to].’. (P.489, paras. G-H).

The Supreme Court of Nigeria reechoed this principle when it held thus in the case of ‘Adebayo v. A.-G., Ogun State (2008) 7 NWLR (Pt. 1085) 201, ‘On Evaluation of evidence by trial court and attitude of appellate court thereto’ –

‘The function of the evaluation of evidence is essentially that of the trial Judge. Where the trial Judge has unquestionably evaluated evidence and justifiably appraised the facts, it is not the business of an appellate court to interfere and to substitute its own views for the view of the trial court. (P. 221, paras. A-B)8. On Duty on appellate court in appraising judgment appealed against –. In order to pick faults in a judgment of a trial Judge, an appellate court should not take paragraphs or pages in isolation but must take the whole judgment together as a single decision of the court. An appellate court cannot allow an appellant to read a judgment in convenient installments to underrate or run down the judgment.’.

This is also important because an argument or submission or address by a Counsel to a litigant cannot take the place of evidence or be supplied to fill the missing gab or link in an evidence, thus, in the case of Ogunsakin v. Ajidara (2008) 6 NWLR (Pt. 1082) 1, the Court of Appeal of Nigeria, held thus ‘On Whether address of counsel constitute evidence’ –

‘Address by counsel, no matter how well prepared and delivered, cannot take the place of evidence. [UBA Plc v. ACB (Nig.) Ltd. (2005) 12 NWLR (Pt. 939) 232; Aro v. Aro (2000) 3 NWLR (Pt. 649) 443referred to.]’. (P. 24, para. D). Also, in the case of Edonkumoh v. Mutu (1999) 9 NWLR (Pt. 620) 633, held ‘On Whether address of counsel can constitute evidence’ –

‘Addresses of counsel no matter how well presented do not constitute evidence’. (P. 649, para. H). Also, in B.S.J.S.C. v. Danjuma (2017) 7 NWLR (Pt. 1565) 432

Held ‘On Whether counsel written address can take place of evidence’ –

‘No matter how beautiful a counsel’s written address is, it cannot take the place of evidence. A court is bound by the evidence before it and not the address of counsel not supported by material evidence.’. (P. 457, paras. B-C).

The Supreme Court of Nigeria, in the case of  Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1, held ‘On Whether addresses of counsel constitute evidence’ –

‘Addresses of counsel are not evidence. In the instant case, although the appellants’ counsel argued in his address before the Court of Appeal that election materials were not certified by polling agents as required by section 67(3) of the Electoral Act, 2002, there was no evidence from polling agents in support of the argument. (Pp. 286-287, paras. H-A)88.On Ambit of judicial powers of court under 1999 Constitution -By virtue of section 6(6)(c) of the 1999 Constitution, the judicial powers vested in accordance with the provisions of the constitution extend to any issue or question as to whether any act or omission by any authority or person or as to whether any law or any judicial decision is in conformity with the fundamental objectives and directive principles of state policy set out in chapter 2 of the Constitution.’.

The Court of Appeal of Nigeria has also emphasized further in the case of ‘Desemyof (Nig.) Ltd. v. Kwara State Govt. (2019) 6 NWLR (Pt. 1667) 97, ‘On Whether pleadings can substitute for evidence’ – thus

‘Pleadings are not evidence and cannot substitute for evidence in proof of any fact that has been alleged. Any pleading not supported by evidence is of no value. In this case, the trial court was wrong to have relied on a purported termination letter that was pleaded but was not tendered in evidence by the respondents to hold that the agreement between the parties was rescinded in accordance with the terms of the MOU. [Brawal Shipping (Nig.) Ltd. v. F.I. Onwadike Co. Ltd.(2000) 11 NWLR (Pt. 678) 387 referred to.]’. (P. 109, paras. D-E; G).

In the case of Olusanya v. Osinleye (2013) 11 NWLR (Pt. 1367) 148, the Supreme Court of Nigeria held thus ‘On Onus on plaintiff in a civil suit’ –

‘The onus is on the plaintiff who asserts in civil proceedings to plead both the facts he sought to prove and also lead cogent and credible evidence in proof of those facts on the balance of probability, before judgment could be given in his favour.’ (P. 171, para. E). Also, in the case of Dalek (Nig.) Ltd. v. OMPADEC (2007) 7 NWLR (Pt. 1033) 402, the Supreme Court of Nigeria, held thus ‘On How issues joined in a civil suit’ –

‘In an action based on pleadings issues are joined by the parties in their pleadings. Thus, evidence led on facts not pleaded goes to no issue. The existence or non-existence of a fact is said to be in issue if the existence or non-existence of that fact is asserted by a party in his pleading and denied by the other party specifically, positively and unequivocally. In the instant case, the parties never joined issues on whether exhibit “B” was a counter-offer. [Lewis & Peat v. Akhimien (1976) 1 All NLR (Pt.l) 460; Atolagbe v. Shorun (1985) 1 NWLR (Pt.2) 360 referred to.]’. (Pp. 429-430, paras. H-B).

The Court of Appeal of Nigeria, held in the case of ‘B.O.N. Ltd. v. Saleh (1999) 9 NWLR (Pt. 618) 331, held ‘On Effect where scales of justice are evenly weighed in a civil suit’ –

‘The burden is on the plaintiff who files an action to discharge that burden and he must do so on balance of probability. Where the evidence adduced by both parties is such that the scales are evenly weighed, the plaintiff has failed to prove his case and his case is liable to be dismissed. [Owoade v. Omitola (1988) 2 NWLR (Pt. 77) 413 at 421; Odiete v. Okotie (1973) 1 NMLR 175 referred to.]’. (P. 352, paras. D-E).

Furthermore, it is important for me to state that there must be connection between a fact pleaded and the corresponding evidence in a civil suit. This is because, ‘evidence not supported by pleadings goes to no issue’. In the case of Okonkwo v. C.C.B. (Nig.) Plc. (2003) 8 NWLR (Pt. 822) 347, the Supreme Court of Nigeria, held thus

‘On Need to plead allegation of fraud where raised in a civil suit’ –

Fraud, as a crime, must be specifically pleaded and proved. In other words, charges of fraud and charges of criminal malfeasance or felony against a defendant ought not to be made at the hearing of an action unless, in a case where there are pleadings, those charges have been definitely and clearly alleged so that the defendant comes into court prepared to meet them. In the instant case, the appellant did not specifically plead the allegation of fraud; neither did he adduce evidence on it. Even if he had given evidence, the evidence would have gone to no issue. This is because evidence not borne out from the pleadings is inadmissible. [U.A.C. Ltd. v. Taylor (1934) 2 WACA 67; Tamakloe v. The Basel Trading Company Ltd. (1940) 6 WACA 231; Usenfowokan v. Idowu (1969) NMLR 77; Fabunmi v. Agbe (1985) 1 NWLR (Pt. 2) 299; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1 referred to.]’. (P. 415, paras. (Underlining is mine for emphasis).

Furthermore, in the case of Phillips v. E.O.C.Ind. Co. Ltd. (2013) 1 NWLR (Pt. 1336) 618, the Supreme Court of Nigeria held thus  ‘On Burden of proof on a plaintiff in a civil suit’ –

‘In civil suits, what is expected of a plaintiff is to file a statement of claim stating all the facts which he intends to rely on to prove his case vide evidence, in support of the averments in the said statement of claim.’. (Pp. 640-641, paras. H-A).

Also, in the case of Arum v. Nwobodo (2004) 9 NWLR (Pt. 878) 411, the Court of Appeal of Nigeria, held on ‘On Import of evidential burden in a civil suit’ –

‘The evidential burden in a suit imports that where a given allegation, whether affirmative or negative, forms an essential part of a party’s case, the onus of proof of such allegation rests on that party. The evidential burden is thus complementary to the general principle of burden of proof that has its origin in sections 135, 136 and 137 of the Evidence Act and whenever its application is warranted it is said that the burden of proof to establish a particular assertion has shifted. In the instant case, the 2nd appellant, though a defendant to the respondent’s suit, claimed that he inherited the land in dispute from his father. In the circumstance, he had the evidential burden to prove his assertion. The appellants however failed to discharge this burden.’.

Furthermore, in the case of Broadline Ent. Ltd. v. Monterey Maritime Corp (1995) 9 NWLR (Pt. 417) 1, the Supreme Court of Nigeria, held ‘On Effect where defendant offers no evidence in a civil suit’ –

‘Where the defendant offered no evidence, the plaintiff’s evidence before the court under such circumstance clearly goes one way with no other evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the plaintiff. The onus of proof in such a case is discharged on minimal of proof. [Nwabuoku v. Ottih (1961) 2 SCNLR 232;Oguma v. I.B.W.A. (1988) 1 NWLR (Pt. 73) 658; Balogun v. U.B.A. Ltd. (1992) 6 NWLR (Pt. 247) 336 referred to]. (Pp. 27, paras. C-D; 47, para. C)Per IGUH, J.S.C. at Pages 27-28, paras. E-B:” In the present case, two witnesses testified for and on behalf of the plaintiff. According to their evidence, the 1st respondent is the owner of the ship, “M.V. Cape Monterey” which on the 29th July, 1981 was concerned with the transportation of the 100,000 bags of white crystal sugar from Rotterdam to Apapa for reward.’.

The Court of Appeal of Nigeria, in the case of Okolie v. Onyejuluwa (2000) 10 NWLR (Pt. 676) 450, held ‘On Principles of evaluation of evidence in civil cases’ –

‘The judgment of the appellate High Court, Nnewi accords with the law when it applied the principle of weighing of evidence on an imaginary scale which is an off-shoot of proof based on preponderance of evidence as dictated by Section 135 of the Evidence Act. The facts proved by each side will be put on an imaginary scale to see which side the scale tilts. The judgment in the instant case, is not perverse in any respect. There is no error therein. [Bello v. Eweka (1981) ISC 101; Aromire v. Awoyemi (1972) 1 All NLR (Pt.l) 101; Owoade v. Omitola (1988) 2 NWLR (Pt.77) 413; Adisa v. Ladokun (1973) 1 All NLR (Pt.2) 18 referred to.] (P. 468, paras. D-F)Per FABIYI, J.C.A. at pages 468-469, paras. F-A: “In this matter, the plaintiff/respondent proved that he got the land through his forebears. His traditional evidence did not fail.’.

Furthermore, ‘In civil cases, relevance is determined by the pleading which set forth the purpose for tendering the document. [A.C.B. Ltd. v. Gwagwada (1994) 5 NWLR (Pt. 342) 25 referred to.]’. (P.264, para. E). (Underlining is that of the writer of this article for emphasis). In the case of Olusanya v. Osinleye (2013) 11 NWLR (Pt. 1367) 148, the Supreme Court of Nigeria held thus ‘On Onus on plaintiff in a civil suit’ –

‘The onus is on the plaintiff who asserts in civil proceedings to plead both the facts he sought to prove and also lead cogent and credible evidence in proof of those facts on the balance of probability, before judgment could be given in his favour.’ (P. 171, para. E).

In the case of ‘Henshaw v. Effanga (2009) 11 NWLR (Pt. 1151) 65’, the Court of Appeal of Nigeria, held ‘On Principles governing evaluation of evidence by trial court in civil cases’ thus –

‘A trial court must put the totality of the testimony adduced by both parties in a civil case on an imaginary scale before it comes to a decision as to which evidence it believes or accepts and which evidence it rejects. It should weigh one side against the other and then decide upon the preponderance of credible evidence which weights more. In other words, it should first of all put the totality of the evidence adduced by both parties on an imaginary scale, put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. The court will then see which is heavier, not by the number of witnesses called by each party but by the quality of the probative value of the testimony of those witnesses. That is what it meant when it is said that a civil case is decided on the balance of probabilities.’.

Furthermore, in the case of Iroagbara v. Ufomadu (2001) 11 NWLR (Pt. 724) 465, the Court of Appeal of Nigeria, held ‘On Nature of evidence required in proof of civil cases’ thus –

‘The weight of evidence that would preponderate a case is evidence that can be described as being substantial. It is evidence that would carry conviction or is entitled to do so; such evidence in weight or amount as will legally justify the finding for the proponent of a case.’ (Pp.469-470 paras. H-A).

In the case of Ozoemena v. State (1998) 10 NWLR (Pt. 571) 632, the Court of Appeal of Nigeria, held ‘On Distinction between admissibility and probative value’ thus –

‘There is a clear distinction between the question whether evidence is admissible and the question of its probative value or weight to be attached to it. The fact that evidence, oral or documentary, is admissible does not mean that it has weight. It may not have any probative value or any weight at all though admissible. [Gbafe v. Gbafe (1996) 6 NWLR (Pt. 455) 417, Ayeni v. Dada (1978) 3 SC 35 referred to.]’ (P. 649, paras. E-F). 

In the case of U.T.C. (Nig.) Plc v. Lawal (2014) 5 NWLR (Pt. 1400) 221, the Supreme Court of Nigeria, held ‘On Distinction between admissibility and probative value’ –

‘Admissibility of a document can be based on relevance. The admissibility of a document is quite different from the probative value to be attached to it. While admissibility is based on relevance, probative value depends not only on relevance but also on proof. In the instant case, there was no doubt that exhibits 4, 5, 6 and 7 were relevant to the facts in issue. The issue therefore was whether any probative value could be attached to them. [Magaji v. Nigeria Army (2008) 8 NWLR (Pt. 1089) 338; Ogbuanyinya v. Okudo (1979) 6-9 SC 32; Fadlallah v. Arewa Textiles Ltd. (1997) 8 NWLR (Pt. 518) 546 ; Dalek Nigeria Ltd v. OMPADEC (2007) 7 NWLR (Pt. 1033) 402; A.C.N. v. Lamido (2012) 8 NWLR (Pt. 1303) 560; Abubakar v. Chuks (2007) 18 NWLR (Pt. 1066) 386 referred to.]’ (P. 244, paras. E-H).

Furthermore, the Supreme Court of Nigeria, held in the case of A.C.N. v. Lamido (2012) 8 NWLR (Pt. 1303) 560, On Distinction between admissibility of documents and probative value thereof –

‘There is a dichotomy between admissibility of documents and the probative value to be placed on them. While admissibility is based on relevance, probative value depends not only on relevance but also on proof. Evidence has probative value when it tends to prove an issue.’. (P. 592, paras. D-F).

Furthermore, the Court of Appeal of Nigeria, held in the case of ‘I.N.E.C. v. Action Congress (2009) 2 NWLR (Pt. 1126) 524, ‘On Relationship between admissibility of documentary evidence and probative value thereof’ –

‘Where a document is relevant, it is admissible. However, not all evidence admissible on account of relevancy would be accredited probative value. [Torti v. Ukpabi (1984) 1 SCNLR 214; Nwabuoku v.Onwordi (2002) 3 NWLR (Pt. 755) 558 referred to.]’ (P. 622, paras. E-F).

In the same vein, the Court of Appeal of Nigeria held in the case of Ezekwesili v. Onwuagbu (1998) 3 NWLR (Pt. 541) 217, ‘On Admissibility of exhibits and ascription of probative value thereto’ –

‘Admissibility of exhibits in proceedings is a function of the trial court. So too, the attachment of probative value to the exhibits admitted in evidence. The criterion for the attachment of probative value to exhibits is relevancy, which is the pivot of the law of evidence. Thus, if a party proves that a document is relevantly connected with his case or clearly forms part of the case so much so that it adds to the erection of a common evidential scene in the matter, a trial court will attach evidential value to it. In the exercise, the trial court will take into consideration the totality of the exhibit and not bits or portions of it. Once the entire exhibit has evidential value, probative value will be attached to it. As a matter of adjectival law, the two mean the something as both reflect the chain of proof in Nigerian law.’. (P. 239, paras. E-G). The Supreme Court of Nigeria laid credence to this principle too in the case of Gbafe v. Gbafe (1996) 6 NWLR (Pt. 455) 417, when it held ‘On Distinction between admissibility of evidence and probative value thereof’ thus-

‘In law, there is a clear distinction between the question whether evidence is admissible and the question of its probative value or weight to be attached to it. The fact that evidence, oral or documentary, is admissible does not mean that it has weight. It may not have any probative value or any weight at all, though admissible.’ (P.425, para. B). The Supreme Court of Nigeria further held in the case of Haruna v. A.-G., Federation (2012) 9 NWLR (Pt. 1306) 419, ‘On Distinction between admissibility of evidence and probative value thereof’ thus –

‘The fact that evidence, oral or documentary, is admissible does not mean that it has weight. It may not have any probative value or any weight at all, though admissible. In the instant case, the trial court correctly admitted the exhibits which were considered relevant to the crime of murder and also gave them due probative value. Apart from that, the appellant withdrew his objection to the admissibility of the exhibits. He could not therefore be expected to question the weight or probative value ascribed to the exhibits admitted in evidence. The court was not bound as a matter of law, to make a finding as to the probative value of all the exhibits tendered before a conviction could be grounded in the circumstance of the present case.’. (P. 440, paras. A-C; 439, C-D).

For a clearer picture of these rules, the Court of Appeal of Nigeria held in the case of Camac (Nig.) Ltd. v. Etikerentise (2023) 15 NWLR (Pt. 1907) 221,

‘On Difference between admissibility of evidence and its probative value’ thus –

‘There is a wide dichotomy between admissibility of evidence and weight to be attached to it. A piece of documentary or oral evidence may be admissible, but lacks probative weight. Conversely, a piece of evidence that commands high probative value may not be admissible. In this case, the appellants’ grounds of objection to the document are hinged on the weight to be attached to the document on its admission and, totally, separated from its admissibility. However, the probative value of the document can only be determined after it has been admitted in evidence. [Abubakar v. Chuks (2007) 18NWLR (Pt. 1066) 386 referred to.]’. (P. 241, paras. D-H). Also see the case of  Jwan v. Ecobank (Nig.) Plc (2021) 10 NWLR (Pt. 1785) 449, where the Court of Appeal of Nigeria held ‘On Distinction between admissibility of document and probative value of same’ –

‘The admissibility of a document on ground of relevancy does not automatically mean that the content therein is proved or that since it was admitted in evidence, it must be attached probative value.’. (Pp. 479-480, paras. H-A).

Also, the Supreme Court of Nigeria, held in the case of Maku v. Al-Makura (2016) 5 NWLR (Pt. 1505) 201, ‘On Difference between admissibility of document and probative value of document’ –

‘There is a clear dichotomy between the admissibility of a document and the probative value to be placed on it. While admissibility is based on relevance, the probative value to be attached on the document depends not only on relevance but on proof. In the instant case, exhibits P20 and P32 may have been relevant and therefore admissible. However, the fact that they were admitted in evidence did not necessarily render them reliable. [Buhari v. I.N.E.C. (2008) 18 NWLR (Pt.1120) 246 referred to.]’. (P. 224, paras. E-F).

Furthermore, the Supreme Court of Nigeria, has held in the case of ‘Dakolo v. Rewane-Dakolo (2011) 16 NWLR (Pt. 1272) 22, ‘On Principles guiding determination of civil cases’ –

‘In deciding whether a party is entitled to judgment on its case, the court will advert its mind to the evidence before it, and will thereafter ascribe probative value to the evidence, and then proceed to weigh the evidence before it on the imaginary scale and appreciate, upon the preponderance of evidence, which side the scale weighed having regard to the burden of proof. [Agbonifo v. Aiwereoba (1988) 1 NWLR (Pt. 70) 325; M.I.S.R. (Nig.) Ltd. v. Ibrahim (1975) 5 SC 55; Egonu v. Egonu (1978) 11-12 SC 111; Mogaji v. Odofin (1978) 4 SC 91; Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643 referred to.]’. (P. 55, paras. A-C).

The Court of Appeal of Nigeria further held in the case of Womiloju v. Kiki (2009) 16 NWLR (Pt. 1166) 143, ‘On Principles guiding determination of civil cases’ thus –

‘A civil case is decided on preponderance of evidence. The decision having to be on the balance of probability. In determining which is heavier, the trial court will have regard to whether the evidence is admissible, relevant, credible, conclusive or more probable than that adduced by the other party. [Mogaji v. Odofin (1978) 4 SC 91; Akanni v. Odejide (2004) 9 NWLR (Pt. 879) 575 referred to.]’. (P. 153, paras, B-C). (Underlining is that of the writer of this paper for emphasis).

The Supreme Court of Nigeria, also held thus Kaydee Ventures Ltd. v. Min., F.C.T. (2010) 7 NWLR (Pt. 1192) 171, ‘On Standard of proof in civil cases and nature of evidence required’ –

‘Although civil cases are won on a preponderance of evidence, yet it has to be preponderance of admissible, relevant and credible evidence that is conclusive and which commands such probability that is in keeping with the surrounding circumstances of the case on hand.’. (P. 205, paras. G-H). (Underlining is that of the writer of this paper for emphasis).

Also, the Court of Appeal of Nigeria, held thus in the case of ‘A.B.U. v. Molokwu (2003) 9 NWLR (Pt. 825) 265, ‘On Standard of proof in civil cases’ –

‘Proof of issues in civil matters is on preponderance of evidence and when there is no evidence to put on one side of the scale, minimum on the other tilts the scale in satisfaction of the requirement. [Mogaji v. Odofin (1978) 4 SC 91; Nwabuoku v. Ottih (1961) 2 SCNLR 232; Buraimoh v. Bamgbose (1989) 3 NWLR (Pt. 109) 352 referred to.]’. (P. 289, para. F).

The Court of Appeal of Nigeria further held on this principle thus in the case of ‘U.B.A. Plc. v. Mustapha (2004) 1 NWLR (Pt. 855) 443’, ‘On Standard of proof in civil cases’ –

‘Civil suits are decided on the balance of probabilities, on the preponderance of evidence. This connotes that the totality of the evidence of both parties is bound to be taken into account and appraised so as to determine which evidence has weight and which has none. The credible evidence led by both parties is thereafter weighed in an imaginary scale by the trial court in order to see which party’s evidence has more weight or preponderates and it is that party who succeeds in the case. In the instant case, the trial court did not properly appraise the evidence adduced by the parties as required by law. [Woluchem v. Gudi (1981) 5 SC 291 referred to.]’. (Pp. 468-469, paras. G-A). In the case of ‘Kara v. Wassah (2001) 18 NWLR (Pt. 744) 117, the Court of Appeal of Nigeria, held thus ‘On Standard of proof in civil cases’ –

‘The standard of proof in civil cases is proof on the preponderance of evidence or the balance of probability. In the instant case, the appellants adduced oral evidence in support of their pleadings and also tendered in evidence Exhibit “D”. In the circumstance, the appellants proved their case as required by law. [Elias v. Omo-Bare (1982) 5 SC 25; Woluchem v. Gudi (1981) 5 SC 291 referred to.]’. (P. 138, paras. C-D).

Furthermore, the Court of Appeal of Nigeria further held in ‘Akpalakpa v. Igbaibo (1996) 8 NWLR (Pt. 468) 533, thus ‘On Standard of proof in civil cases’ –

‘Civil cases are decided on preponderance of evidence and balance of probabilities. For a plaintiff to succeed in his claim he must establish it on balance of probabilities. The law requires a plaintiff to prove his case in all the material ways he can. However, the success of a case depends on the credibility and weight ascribable to the evidence. A case that is not supported by evidence or proved by a plaintiff is bound to fail. In the instant case, the appellants from all the totality of evidence led failed to prove their case on the preponderance of evidence and balance of probability. [Elias v. Omobare (1982) 5S.C. 25; Elebute v. Odekilekun (1969) 1 All NLR 449; Odulaja v. Haddad (1973) 11 S.C. 357; Eyibagbe v. Eyibagbe (1996) 1 NWLR (Pt. 425) 408; Arase v. Arase (1981) 5 S.C. 33; Atane v. Amu (1974) 10 S.C. 237 referred to.]’. (P. 551, paras. B-D). Also, the Court of Appeal of Nigeria, held in the case of Tecno Mech. (Nig.) Ltd. v. Ogunbayo (2000) 1 NWLR (Pt. 639) 150, ‘On Standard of proof in civil cases’ –

‘Civil cases are decided on balance of probabilities. In the instant case, the accident during which the respondent was injured occurred on the premises of the appellant where the respondent and Fatai Enitan were employees discharging their duties. The question whether or not Fatai Enitan was authorised to drive the forklift which caused the accident is a fact which needs to be proved with cogent evidence but which evidence the appellant did not adduce. In the circumstance, the finding of the trial court that Fatai Enitan was carrying out an authorised act wrongfully and thereby caused injury to the respondent for which the appellant was vicariously liable in its capacity as the employer of Fatai Enitan is proper. (Pp. 72).

Furthermore, the Court of Appeal of Nigeria held in the case of ‘Bongo v. Gov. Adamawa State (2013) 2 NWLR (Pt. 1339) 403, thus on ‘On Attitude of appellate court to appraisal of evidence by trial court’ –

‘The function of a trial court is the appraisal of oral evidence and the ascription of probative value to such evidence. Therefore, where the issue turns on the credibility of witnesses, an appellate court which has not seen or heard the witnesses must defer to the opinion of the trial court. Unless an appellant can show that miscarriage of justice had been occasioned, and there was in fact a wrong appraisal of the evidence, the opinion of the trial court must be accepted. In the instant case, the appellant did not show that there was wrong appraisal of evidence and miscarriage of justice. [Fashanu v. Adekoya (1974) 6 SC 83 referred to.]’. (P. 446, paras. D-F).

Also, in the case of ‘Ogunleye v. Oyewole (2000) 14 NWLR (Pt. 687) 290, the Court of Appeal of Nigeria, held thus ‘On Meaning of evaluation or appraisal of evidence’ –

‘Evaluation or appraisal of evidence simply means the assessment or estimation of evidence so as to give credit or value to it. In this regard, reviewing or making a summary of evidence does not constitute evaluation. [Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182 referred to.] (P.303, paras. C-D)6. On Presumption of ownership by person in possession under section 146 of the Evidence Act – When the question is whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is, by virtue of section 146 of the Evidence Act, on the person who affirms that he is not the owner.’

Furthermore, I agree with my learned brother ‘Nkobowo Nkobowo ESQ.’ in his very sound legal article titled ‘The Law Of Evidence In Civil Claims In Nigeria — A Primer From The Cases Pt 1’ published on ‘LawPavilion Blog’ via https://lawpavilion.com/blog/the-law-of-evidence-in-civil-claims-in-nigeria-a-primer-from-the-cases-pt-1/, published on July 5, 2023, where he stated thus

‘The obvious consequence of the position above is that a document might be relevant but yet rejected in evidence as being inadmissible. This is because the document despite being relevant might be presented in its inadmissible form. Therefore, that a document is relevant does not mean it will be or must be admitted in evidence.

More precisely, relevant facts may not be admitted in evidence based on some grounds –

1. by Section 1(a) of the evidence Act relevant facts may be excluded (or ruled as inadmissible) if they are considered by the judge to be too remote to be material in all circumstances of the case;
2. Relevant facts may also be excluded where a provision of the law disentitles a person from giving evidence of such relevant facts -Section 1(b) of the Evidence Act 2011 (though now 2023 (words in this parenthesis are that of the writer of this paper for emphasis)). Examples of such persons would be persons covered by Section 308 of the 1999 Constitution;

• If the Evidence Act or another Act excludes such otherwise relevant fact or declares it to be inadmissible, it so shall be or it so it is;

1. Where the document or evidence is improperly or illegally obtained and the Judge has exercised his discretion not to admit the evidence even though it is indeed relevant – Section 14 and 15 of the Evidence Act.
2. Where the interest of justice demands;
3. Where it would be contrary to public policy to admit such evidence;

• Where it is hearsay evidence. If a fact that is ordinarily relevant amounts to hearsay, the Court will rule same as being inadmissible due to the relevant provisions of the Evidence Act;
• Under section 243 of the Evidence Act, evidence may be excluded on grounds of public interest.’.

In the case of Alhaji Usman Sharu baban-lungu and Anor v. Alhaji Ahmed Abubakar Zarewa and ors (2013) LPELR- 20726 CA. pp.38-39 Paras F-C, the Court of Appeal substantiated the position above in the following words;

“the often cited authority for the proposition that once a document is relevant to a matter, it is admissible is Torti v Ukpabi 1984) 1 SCNLR 214 where the Supreme Court stated that the test of admissibility of a document is relevance. However, it is a misunderstanding of the law of evidence to assert the application of this statement of the Supreme Court in all situations. It is elementary that a document sought to be tendered in evidence by a party in the course of trial in the high court must satisfy two requirements; (i) the rules of pleadings i.e. that it must be pleaded; and (ii) the rules of evidence i.e. that it must possess the quality required by the Evidence Act to make it admissible in law”…the fact that a document is relevant is not always enough ground for its admissibility; there are other criteria to be considered. The point was ably captured by Oguntade JCA (as he then was) in the case of Fawehinmi v Inspector General (2000) 7 NWLR (Pt 655) 481 at 524 to 525 G-B.”

6. Evidence by ‘Affidavit’:

I must state here that matters that are presented to the relevant Nigerian Courts; for instance: an affidavit filed in support of a Motion or originating summons, etc., the above general rules and or principles guiding pleadings and the witness depositions thereto, do not generally apply (though some of the rules or principles apply but not all based on the peculiar circumstances), having regard to the nature of an affidavit as ‘an affidavit constitutes an evidence on its own along with the exhibits attached to the said affidavit’, which makes it different from the evidence that relates to pleadings and witness statements. The law is that ‘the contents of affidavits constitute evidence once they have been properly deposed to’. See: Section 107 of the EA, MORKA & ORS v. OSADEME (2022) LPELR-58131(CA), OCHEKPE & ANOR v. TAEN (NIG) LTD (2013) LPELR-21958(CA). For pleadings and witness depositions, by law and practice, they only evolve into evidence at a hearing when a witness adopts them – TAR & ORS v. MINISTRY OF COMMERCE & INDUSTRIES & ORS (2018) LPELR-44216(CA), MAGNUSSON v. KOIKI & ORS (1993) LPELR-1818(SC).

Therefore, the position of law is clear and remains (generally) that ‘an affidavit not challenged is deemed admitted and a court can rely on same in evidence and attach probative value to the said evidence in favour of a party who tenders same in evidence’. See the case of AKOMOLAFE v. ILESANMI (2015) LPELR-25664(CA). Put succinctly, affidavit evidence is proper evidence for the Court to act upon once not contradicted – JIMOH v. COP (2004) LPELR-11262(CA). This position applies equally to affidavits and counter-affidavits. Furthermore, in the case of Atakpa v Ebetor (2015) 3 NWLR (pt. 1447) 549 C.A., AT PAGE 572, PARAS. E-F, held that

‘Where evidence is unchallenged, uncontroverted and is credible, the trial court is bound to accept it. And in the case of affidavit evidence, averments not denied are deemed unchallenged and uncontroverted. Such averments should be accepted and acted upon. See: The Honda Place Ltd. V Globe Motor Holdings Nig. Ltd. (2005)7 SC (pt.111) 182, (2005) 14 NWLR (pt. 945) 273, Jack v Shell (2002) 12 MJSC 114’.

Furthermore, the Supreme Court of Nigeria, in the same veins, on an uncontroverted averments in an affidavit, held in the case of Tukur v Uba (2013)4 NWLR (pt. 1343)90 S.C. thus

‘It is already a settled law that an affidavit evidence constitutes evidence and must be so construed, hence, any deposition therein which is not challenged or controverted is deemed admitted. (Underlining is that of the writer of this paper for emphasis). See: Ajomale v Yaduat & Anor (No. 2) (1991) 5, NWLR (pt.191) 226 at 282-283, (1991) 5 SCNJ 178, Magnusson v Koiki (1993) 12 SCNJ 114;(1993) 9 NWLR (pt.317) 287, Henry Stephens Engineering Ltd. v Yakubu (Nig.) Ltd. (2009)6, SCM 90 at 99; (2009) 10 NWLR (pt. 1149) 416’.

Some exceptions however that guide this rule stated above include – ‘the Court is not in all circumstances bound to accept as true all testimony and evidence (in this instance affidavit evidence) that is uncontradicted where it is willfully or corruptly false, incredible, improbable, or sharply falls below the standard expected in a particular case – FALAKI & ORS v. FAGBUYIRO & ORS (2015) LPELR-25848(CA). Affidavit evidence is therefore not sacrosanct. The facts deposed to therein are subject to evaluation by the Court to ascertain their veracity, cogency and authenticity; Okoye v. Centre Point Merchant Bank Ltd (2008) 7-12 S.C. 1. In other words, as held in Ogedengbe Sura Ola v University of Ilorin & 2 Ors (2014) 15 NWLR 453, an affidavit must not be questionable, incredible, unreliable and unbelievable. It must pass the credibility test.

Furthermore, on ‘document attached to an affidavit’, ‘it is a general position of the law that all documents attached to an affidavit form part of the affidavit in question’ – ENERGY PPRTY DEV LTD & ANOR v. EFCC & ANOR (2021) LPELR-55037(CA), EZECHUKWU & ANOR v. ONWUKA (2016) LPELR-26055(SC). Consequent to the above, the law is also settled that ‘document so attached is already in evidence before the Court’. Thus, being evidence already before the Court, the formalities and conditionalities for its admissibility are dispensed with, since being affidavit evidence, it has already been admitted in evidence before the Court – AONDOAKAA v. OBOT & ANOR (2021) LPELR-56605(SC), GUSAU v. LAWAL & ORS (2023) LPELR-60152(SC). I must also emphasise that ‘such document attached to an affidavit does not require the requirements for admissibility under section 84 of the EA, notwithstanding that same is a computer generated evidence’. See the case of: HASHIM v. ASO SAVINGS & LOANS PLC (2022) LPELR-57061(CA)/ HASHIM v. ASO SAVINGS & LOANS PLC (2022). In this case of Hashim v ASO (supra), the Court of Appeal of Nigeria, explained the difference and implications between a case fought by affidavit evidence and that fought by pleadings vis-à-vis the evidence thereto (including whether the provisions of section 84 of the EA applies to any computer generated evidence attached to an affidavit) and held thus

‘The Appellant has challenged the reliance by the lower Court on ‘Exhibit ASO H’, contending that the said exhibit did not satisfy the precondition in Section 84 of the Evidence Act since it is a computer generated document. Let me start by saying that this matter was heard on affidavit evidence and the documentary evidence relied upon was attached to the affidavit and formed part of the evidence adduced in the case. This is in contradistinction to where it is a case fought on pleadings, where the pleadings does not constitute evidence. The affidavit is evidence which a Court can act upon and a document attached to an affidavit forms part of the evidence adduced by the deponent and being evidence already before the Court, the formalities and conditionalities for its admissibility are dispensed with, since being affidavit evidence it has already been admitted in evidence before the Court. I can do no better than refer to the recent decision of the apex Court in this regard. By some uncanny coincidence, it is a decision in which the learned senior counsel for the Appellant in this matter was the Appellant. Here my Lord, Kekere-Ekun, JSC in AONDOAKAA vs. OBOT (2021) LPELR (56605) 1 at 35-37:

“In a matter fought on affidavit evidence, the documentary evidence relied upon is attached to the affidavit and therefore forms part of the evidence adduced in the case before the Court. The distinction between averment of facts in pleadings and averment of facts contained in an affidavit was explained by this Court in Magnusson vs Koiki (1993) 12 SCNJ 114; (1993) 9 NWLR (Pt. 317) 287 at 303 C, as follows: ‘Averments of facts in pleadings must be distinguished from facts deposed to in an affidavit in support of an application before a Court. Whereas the former, unless admitted constitutes no evidence, the latter are by law, evidence upon which a Court of law may, in appropriate cases, act.’ The holding of Mbaba, JCA in Ilorin East Local Government vs Alasinrin & Anor (2012) LPELR 8400 (CA) referred to and relied on in the case of: B.A.T (Nig) Ltd vs International Tobacco Co. Plc (2013) 2 NWLR (Pt. 1339) 493 at 520-521 D-A, following the reasoning in Magnusson vs Koiki (supra), is quite instructive. His Lordship held, inter alia: ‘I have already held that a document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court to be used, once the Court is satisfied that it is credible. Being already an evidence before the Court (on oath), the formality of certification for admissibility (if it required certification) had been dispensed with … The reason for this is easy to deduce, the first being that affidavit evidence is already admitted evidence before the Court unlike pleading, which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided. The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy (except where the document was executed in several parts or counterparts and the deponent has many of the parts to exhibit in original forms).’”

I kowtow. See also EZECHUKWU vs. ONWUKA (2016) LPELR (26055) 1 at 37, ANUEBUNWA vs. A-G, FEDERATION (2020) LPELR (51434) 1 at 18-19 and THE NIGERIAN AIR FORCE vs. CHIA (2021) LPELR (53923) 1 at 56-58.

​It would seem to be in the realisation that unlike with pleadings, ‘Exhibit ASO H’ being attached to affidavit evidence was already admitted in evidence by the affidavit which it forms a part of, that no issues were raised at the lower Court as to whether any conditions for the admissibility of ‘Exhibit ASO H’ in evidence, including the stipulations of Section 84 of the Evidence Act, had been met. The Appellant cannot now raise the same especially when the Appellant in paragraphs 6 and 8 of the affidavit disclosing a defence on the merit relied on the said ‘Exhibit ASO H’ as showing that he had completed payment on the loan and had indeed overpaid on the agreed quarterly repayment instalments. It is in this wise that the decision in the cases of OMISORE vs. AREGBESOLA (supra) and KUBOR vs. DICKSON (supra) relied on by the Appellant are distinguishable. The said cases were not fought on affidavit evidence; they were fought on the pleadings filed and exchanged by the parties, so there remained the abiding need for the facts pleaded to be converted to admissible evidence at the trial, with the attendant requirement of issues of admissibility of exhibits.’. Therefore, computer-generated documents attached to an affidavit need not comply with the provisions of Section 84 of the Evidence Act.

7. Conclusion:

This paper has been able to espouse the rules governing evidence vis-à-vis: admissibility; relevance; and the probative value that a court would attach to such evidence. This paper has clearly espoused too that every lawyer and a trial court must have regard to the above laid down rules and or principles of evidence in a civil suit in order for such evidence to be relied upon by the trial court. Also, this paper has been able to show that the Evidence Act is not applicable to all courts in Nigeria and that this paper is only applicable to evidence in those courts to which the Evidence Act applies. This paper has further shown (by case laws) that there is difference between the rules and principles applicable to civil suits fought by affidavit evidence and those fought by pleadings and the evidence thereto. While the above stated rules and or principles apply to cases fought by pleadings and the witness’s depositions thereto, they do not apply to cases fought by affidavit evidence, even where such evidence attached to an affidavit (though, the affidavit itself constitutes evidence on its own) is a computer generated evidence to which section 84 of the EA ought to apply, same will not or does not apply to affidavit evidence. This paper has therefore espoused that assertions made in civil suits without evidence thereto says nothing and has distinguished assertions relating to affidavit from this principle of law or statement. Finally, this paper has laid down principles that would guide lawyers and trial courts (possibly as a reminder) in civil suits as far as facts (or assertions) and evidence therein are concerned.

8. Recommendations:

The following are my humble recommendations to litigation lawyers:

1. They should always request their clients during client-interview to provide all evidence that they have at their (i.e. clients’) disposal relating to each of any fact or assertion that they make to the lawyer forming part of their complaints requiring litigation;
2. They should always analyse all such evidence provided or produced to them by such client during such briefing and only use such evidence useful for the facts they intend to aver in the court of law which would satisfy the above laid down rules and or principles and or as would fulfil those conditions for the reliance on same by the trial court (that is to say; having regard to the rules of pleadings and the witness depositions thereto and whether the complaints is to be fought by affidavit evidence);

• They should ensure that they proceed to court only when they are sure about the facts and the evidence thereto. Hence, the proposition that ‘cases are won and lost in a lawyer’s chambers’. They can therefore, do a lot by avoiding the need for ‘amendment of pleadings’ during the trial which could delay the trial or proceedings by how they conduct their client-interviews;

1. Winning a case is based on evidence adduced in the court of law and losing a case is also based on evidence so adduced (whether a case fought by affidavit evidence or by pleadings and witness’s depositions thereto). Therefore, they must have absolute regard for the facts and the evidence in support which they wish the trial court to believe as being their case (credibly).