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30TH JANUARY, 1976.

SUIT NO. SC 237/1974.

3PLR/1976/18 (SC)


(1976) All N.L.R 56





OBASEKI,     Ag. J.S.C.



Mr. M. O. Onalaja – for Appellant

Mrs. P. C. Ajayi-Obe – for Respondent



Land Law – Damages for trespass and order of injunction – Section 95 and 96 of Evidence Act Cap. 62.



IDIGBE, J.S.C. (Delivering the Judgment of the Court):

This appeal is from the judgment of the Western State Court of Appeal dated 4th December, 1973, dismissing the appeal of the present appellant from the judgment of the High Court, Western State holden at Ibadan (Somolu J. – as he then was) in a suit (1/62/69) by the respondent against the appellant in which the former claimed (a) “declaration of title under native law and custom” to a parcel of land “at Oluolo Alade Compound, Elekuro Area Ibadan, (b) the sum of £150…… general and special damages for trespass…… and (c) injunction……..

The facts of the case are in a comparatively short compass. According to the respondent, the land in dispute which is edged yellow on the plan, exhibit C (filed in court and put in evidence by the respondent), forms part of a larger area of land, verged green on the same exhibit, which was awarded to the respondent’s family in a previous suit (1/33/62, a certified true copy of the judgment in which case was put in evidence as exhibit A) between the respondent’s family and that of the appellant and in which the former claimed inter alia a declaration of title to the said area. Since the said remained in exclusive possession of the land in dispute until March, 1969, when the appellant trespassed thereon and commenced the erection of a building. When challenged by the respondent, the appellant claimed the land in dispute as that of the Jagun Olukade family. The foregoing facts are not disputed by the appellant who, however, denies that the land in dispute forms part of the area of land involved in exhibit A. (Suit 1/33/62). At the hearing of the present claim in the High Court, a licensed surveyor – Mr. Samuel Akinloye Ogunbiyi (plaintiff’s witness No. 2) gave evidence for the respondent and produced in evidence a sun-print copy of the plan which was filed in court during the proceedings in exh. A (i.e. Suit 1/33/62); that plan was received in evidence of the witness, Mr. Ogunbiyi, that the area verged yellow in exhibit C lies within the area verged green in exh. B which was the land in dispute in Suit 1/33/62 (exhibit A). It should be mentioned here that it was Mr. Ogunbiyi who made both plans, exhibit B & C. Under cross-examination by counsel for the appellant who put in evi-dence exh. B1 another sun-print copy of a plan Mr. Ogunbiyi admitted that exh. 81 was a good copy of the plan filed in court in the proceedings in exh. A. It is quite clear that the land in dispute verged yellow in exh. C falls within the area verged green in both exh. B and B1.

In the course of his judgment, the learned trial Judge rightly, in our view, ob-served:-

“It appears to me that the only point for decision in this case is whether since the previous judgment (i.e. in 1/33/62) which binds both parties, the defendant has crossed the boundary …………………………………………………………………

The area verged yellow in exh. C is within the land awarded to the plaintiff’s family in the previous suit. Therefore if I find that the defendant or any member of his family has gone into that area, the trespass is proved………….” (Brackets supplied).

Having reviewed the evidence before him, the learned trial Judge accepted the evidence of the respondent and found as a fact that the appellant and “some other members of his family have gone on to the plaintiff’s land as shown on exh.C and erected structures on it……” Accordingly, the trial court found in favour of the respondent, to whom it awarded £50 as general damages for trespass and in whose favour it also made an award of declaration of title to the land in dispute, and an order of injunction restraining the appellant from “any further acts of trespass” thereon.

As already stated, the appeal from the judgment of the High Court State was dismissed by the Western State Court of Appeal, One of the grounds of appeal argued before that court (the Western State Court of Appeal) has again been argued strenuously before us and it has been urged upon us that this appeal ought to be allowed on this ground alone. That ground, as filed in the Western State Court of Appeal, reads:-

‘The learned trial Judge erred in law to have admitted the sun-printed copy of the plan filed by the plaintiff in the previous suit when there was no account of the loss or the whereabouts of the primary evidence to wit, the original plan.”

In this court, the ground of appeal, as filed, reads:-

‘That the learned Justices of Appeal erred in law in their interpretation of sections 94 and 95 of the Evidence Act as to the admissibility of a sum-printed copy of the plan filed in the previous suit when there was no explanation of the loss or the whereabout of the preliminary evidence, to wit, the original plan.”

With respect to the argument of counsel in support of this ground of appeal, their Lordship of the Western State Court of Appeal (Madarikan P. – as he then was – Eso and Akinkugbe JJ.A) in considered judgment read by the learned President observed as follows:-

“In support of this ground of appeal, learned counsel for the appellant, Mr. Joshua, invited our attention to the evidence of the surveyor where he said that he drew a plan for the plaintiff in Suit 1/33/62, and produced a sun-print copy of the plan which was admitted in evidence and marked exhibit B. Counsel argued that the admission of a copy of the plan offends against the provisions of section 94 and 95 of the Evidence Act as there was no proof that the original plan had been lost. We are in no doubt that this argument is defeated by the fact that the plan – exhibit B1 – which was tendered by the appellant’s counsel whilst cross-examining the surveyor in the lower court and which has in now way been challenged is, apart from the observations which we propose to make later in this judgment, identical with exh. B. It follows that irrespective of what-ever view is taken regarding exhibit B, we are still left with the appellant’s own plan – exh.B1 – on which the judgment could stand….”

We fully endorse the views expressed in the quotations above. In this Court, however, learned counsel for the appellant has argued that although exh.B1 was put in evidence by counsel for the appellant and although exh. B was received in evidence without objection by or on behalf of the appellant it was still open to him (the appellant), in this court, to object to these exhibits since “it is the duty of this court to exclude inadmissible evidence which was erroneously received in evidence during the trial”. In support of this proposition learned counsel for the appellant cited the cases of Ajayi v. Fisher 1 F.S.C. 97 and Esso West Africa Incorporated v. Alli (1968) N.M.L.R. 414 at 423. There is no doubt, however, that 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) and so if the court should inadvertently admit inadmissible evidence it has a duty generally not to act upon it. When, however; inadmissible evidence is tendered it is the duty of the opposite (or adverse) party or his counsel to object immediately to the admissibility of such evidence; although if the opposite party should fail to raise objection in such circumstances the court in civil cases may (and, in criminal case, must) reject such evidence ex proprio motu. On appeal, however, different considerations arise where a party failed to take objection to inadmissible evidence in the court of trial. It has frequently been stated (as, indeed, learned counsel for the appellant has done) that where a matter has been improperly received in evidence in the court below, even when no objection has been there raised, it is the duty of the court of appeal to reject it and to decide the case on legal evidence. The case frequently relied upon for this proposition is Jacker v. The International Cable Company Ltd. (1888) 5 T.L.R. 13. In criminal cases, however, the party in default can, it seems, raise, at any stage (this includes, the “appeal stage”) the question of admissibility of inadmissible evidence. However, in civil cases where the trial has been before a judge and jury the wrongful admission of evidence cannot be made a ground of appeal unless the appellant had formally objected to the evidence at the trial. In a trial by a judge alone, as in the case in hand, a distinction must be drawn between those cases where the evidence complained of is in no circumstances admissible in law and where the evidence complained of is admissible under certain conditions. In the former class of cases the evidence cannot be acted upon even if parties admitted it by consent and the court of appeal will entertain a complaint on the admissibility of such evidence by the lower court (although the evidence was admitted in the lower court

without objection); in the latter class of cases, if the evidence was admitted in the lower court without objection or by consent of parties or was used by the opposite party (e.g. for the purpose of cross-examination) then it would be within the competence of the trial court to act on it and the court of appeal will not entertain any complaint on the admissibility of such evidence. Dealing with the first class of cases, this Court, in Minister of Lands, Western Nigeria v. Or. Nnamdi Azikiwe and others – SC.169/68 of 31/1/69 – observed:-

‘The document now marked exh. 2 is not a certified true copy but a Photostat copy and is therefore inadmissible as secondary evidence of a public document which it purports to be. There was no objection as to its admissibility when it was produced but it is not within the competence of parties to a case to admit by consent or otherwise a document which, by law, is inadmissible. (see Owo-niyin v. Omotosho (1961) All N.L.R. 304, 308; Alashe v. Olori IN (1964), 1 All N.L.R. 390, 397; also Yassin v. Barclays Bank D.C.O. (1968) 1 All N.L.R. 171″ (The italics are supplied by the court).

Dealing with the latter class of cases, however, this court in Cavallotti Govian-ni v. Bonaso Luigi SC 402/67 of 31/10/69 held that a document (a photo copy) which did not comply with section 96(l)(b) of the Evidence Act and which had been admitted without objection by the appellant was legal evidence upon which the court could properly act. (See also Chekwurah Akunne v. Mathias Ekwunno and others. (1952) 14 W.A.C.A. 59). Accordingly, in those cases where the evidence complained of is not, by law, inadmissible in any event a party may, by his own conduct at the trial, be precluded from objecting to such evidence on appeal – see Gilbert v. Endean (1878) 9 Ch. D. 259 where Cotton L. J. made the following observations:-

“But I must add this: where in the court below the evidence not being strictly admissible, not being that on which the court can properly act, if the person against whom it is read does not object, but treats it as admissible, the before the court of appeal, in my judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.”

(See (1978) 9 Ch.D at 269).

Now, in the case in hand, the documents complained of are exhibits B and 131. In his submission before us, however, exhibit 131 and urged that being secondary evidence these exhibits ought not to have been admitted except in the circumstances provided by section 96 of the Evidence Act, Cap. 62 Vol. 1 Laws of the Federation of Nigeria (1958 Edition). In our view, it is not now open to learned counsel to take this objection in view of the course taken by the defence (i.e. the appellant’s counsel) in the trial court. Exhibit 131 (a sun-print of a certified copy of the original plan) was admitted in the course of cross-examination of respondents’ witness by learned counsel for the appellant at whose request the document was received in evidence. Exh. B is a sun-print of a copy of the original plan. It is clear that these documents do not come within the class of documents which are inadmissible in evidence, in any event, in law; under section 96 of Cap 62 they are admissible under certain conditions; The original of exhs.B and 131 is not a public document (as defined in section 108 of Cap 62) and section 96(2)(c) and Cap 62 is therefore in-applicable to exhs. B and B1 (See Minister of Lands Western Nigeria v. Dr. Nnamdi Azikiwe & others SC 169/68 of 31/1/69. No objection was taken by, or on behalf of, the appellant when exhibit B was proffered in evidence, and exhibit Bt was offered in evidence by, and on behalf, of the appellant. In our view that appellant, by his conduct at the trial in the lower court, is now precluded from taking this objection. (See Cavallotti Govianni v. Bonaso Luigi SC 402/67 of 31/10/69 and Chukwurah Akunne v. Ekwuno & others (1952) 14 W.A.C.A. 590). Accordingly, the only material ground of appeal argued in support of this appeal fails. We are satisfied that the land in dispute forms part of the area of land involved, and awarded to the respondents’ family in exhibit A (1/33/62) and the Western State Court of Appeal rightly dismissed the appeal from the decision of Somolu J. in 1/62/69 which is hereby affirmed. This appeal fails and is accordingly dismissed with costs to the respondents assessed at N113.

Appeal dismissed.


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