It is the law that a document received in evidence without
objection from the opposing counsel, where the Court finds out that
the said document is not relevant and inadmissible the proper order
to make is to expunge such inadmissible document from the record of
the Court and this issue can be raised suo moto by the
trial court or the appellate court as the case maybe.
A trial court is under an onerous duty to admit and act upon
only on an evidence which is properly admissible within the purview
of the provisions of the Evidence Act and other relevant statutory
provisions. Where, however, the trial court inadvertently admits
such an inadmissible evidence, the court is under a duty not to act
on it. EZEUGO v. STATE (2013)
LPELR-19984(CA).
It is not within the competence of the parties to a case to
admit by consent or otherwise a document which by law is
inadmissible. Therefore, where such evidence is in error or
otherwise admitted in evidence, then it behoves the trial court to
expunge it in the course of the judgment. And where the trial court
fails to do so, then the Appeal Court has the duty to reject
(discountenance) such evidence, and accordingly consider the case
in the light only on the legally admitted evidence. See the case of
MIDOKUN OWONIYI VS. OMOTOSHO (1961) ALL NLR
304.
A trial Court nor the parties in a matter has
no power to admit either by consent without raising objection as to
the admissibility of inadmissible document. Where such document was
wrongly admitted by the trial court, during the delivery of
judgment a duty is impose on the trial court to expunge such
document. Where the trial court did not expunge the said
inadmissible evidence, an appellate court during appeal has the
inherent power to expunge it even when no objection was raised at
the lower court.
The law is clear on the fact that where an inadmissible document
is admitted by the trial Judge, it can be expunged by an appellate
court, without ado or qualms. This is because a document which is
inadmissible under the Evidence Act cannot be allowed to stay in
the record of the Court for whatever purpose. See the case of
PASTOR J. AKINLOLU AKINDURO V. ALHAJI IDRIS AKAYA (2007)
LPELR-344(SC).
Though a Counsel at the trial court may maintained that he was
not objecting to the admissibility of a document that would not
confer on the document the garment of admissibility. Generally
admissibility is based on relevance. Once evidence is probative of
the fact in issue, it is considered to be relevant and therefore
admissible, because relevance determines admissibility. Therefore,
once evidence is relevant for the proper determination of any fact
in issue, the court is bound to admit it.
Therefore where a piece of evidence is wrongly received in
evidence by the trial court, an appellate court has the inherent
jurisdiction to exclude it or expunge it from the records not
withstanding that counsel at the trial court did not object to the
admissibility of the piece of evidence as any finding made on
inadmissible evidence is perverse. See the case of OGUDO v.
STATE (2011) Vol. 202 LRCN pg.1; STEPHEN HARUNA V. THE ATTORNEY
GENERAL OF FEDERATION (2012) LPELR-7821(SC).
The law is now firmly settled that where at the trial court, a
document or evidence was not strictly admissible and 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 then, before
the Court of Appeal, he can raise the objection as to its
admissibility.
Also, the law is that where a party did not raise any objection
to the admissibility of a document, the Court therefore has no
obligation to conduct a trial within trial (especially in criminal
cases) to ascertain whether or not it was voluntarily made. The
Court would be entitle to admit such evidence and consider its
probative value along with other evidence in the case. See the case
of UDO v. STATE (2016) LPELR-40721 (SC).
The position of the law is that legally inadmissible evidence
which is wrongly admitted by the trial Court cannot be the basis of
a just judgment. A party must succeed on legally admissible
evidence and not otherwise.
ADEDAYO SAMUEL ADESHEILA is a counsel in the law firm of
Ferd Orbih SAN & Co.