(2018) LPELR-43970(CA)

Transcription

1 KOGI STATE HOUSE OF ASSEMBLY & ORS v. SANI (MAKAMA) CITATION: In the Court of Appeal In the Abuja Judicial Division Holden at Abuja ON TUESDAY, 20TH MARCH, 2018 Suit No: CA/A/540/2017 MOJEED ADEKUNLE OWOADE CHIDI NWAOMA UWA HAMMA AKAWU BARKA Before Their Lordships: Between 1. KOGI STATE HOUSE OF ASSEMBLY 2. RT. HON. IMAM UMAR (Speaker, Kogi State House of Assembly) 3. HON. GODWIN OSUYI 4. GOVERNOR OF KOGI STATE 5. COMMISSIONER FOR JUSTICE AND ATTORNEY-GENERAL OF KOGI STATE 6. ACCOUNTANT-GENERAL OF KOGI STATE 7. KOGI STATE GOVERNMENT Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal And ELDER DR. FRIDAY SANI (MAKAMA) RATIO DECIDENDI - Appellant(s) - Respondent(s)

2 1. ACTION - ORIGINATING SUMMON(S): When the adoption of the originating summons procedure will be inappropriate "It goes without saying that the Originating Summons procedure is not suitable perhaps incompetent where there is a dispute over facts and/or where the issues between the parties are contentious. See: S.C.S. COMPANY VS. COUNCIL, O.A.U. ILE-IFE (2011) 15 NWLR (PT. 1269) 193;UZODINMA VS. IZUNASO (NO. 2) (2011) 17 NWLR (PT. 1275) 30; DAGAZAN VS. BOKIR INTERNATIONAL COMPANY LIMITED (2011) 14 NWLR (PT. 1267) 261; and OWUAMA VS. OBASI (2011) 1 NWLR (PT. 1228) 431."Per OWOADE, J.C.A. (P. 30, Paras. A-C) - read in context 2. APPEAL - RIGHT OF APPEAL: Who can exercise a right of appeal "It must always be borne in mind that basically, an Appeal is a constitutional right of an Appellant." Per OWOADE, J.C.A. (P. 14, Para. A) - read in context

3 3. EVIDENCE - ADMISSIBILITY OF EVIDENCE: Whether objection can be raised to the admissibility of evidence on appeal "In the Law of Evidence, if a document whose admission is not forbidden by law is unlawfully admitted without objection, such is generally regarded as legal evidence on which the trial Court can properly use in arriving at a decision in the case.see:chukura AKUNNE VS. MATTHIAS EKWUNO AND ORS. (1952) 14 W.A.C.A. 59; ABOLADE ALADE VS. SALAWU OLUKADE (1976) 6 SC, 183 The scope of case law authorities differ on the situation where an Appellant still raises objection on appeal to the admissibility of such piece of evidence hitherto admitted by consent in the trial Court. What seems to be the view of some authorities is that an Appellant in criminal proceedings may still raise an objection to the admissibility of such piece of evidence on Appeal.?However, that in civil cases, an Appellant may only be allowed to raise an objection at the Appeal if as a result he has suffered injustice or miscarriage of justice has occurred. See:R.V. ELLIS (1910) 2 K.B. 746; STIRLAND VS. D.P.P. (1944) A.C. 315 AT 327; WAHABI ALAO LAWAL VS. THE STATE (1966) 1 ALL N.L.R N.M.L.R. 343; AJAYI VS. OLU FISHER (1956) 1 F.S.C. 90; SADIKU OSO AND ANOR VS. MICHEAL APE (1998) 8 NWLR 492 (SC) Now, it would seem that the trend of the authorities in both civil and criminal cases is that an Appellant who did not raise an objection to the admissibility of a piece of evidence documentary or otherwise may not be allowed to raise it again. Thus in RAIMI VS. AKINTOYE (1986) 3 NWLR (PT. 26) 97, the Supreme Court held that where certain documents are admissible in evidence upon the fulfilment of certain conditions, an Appellant who fails to object to their admissibility in the trial Court cannot do so in the Appellate Court.See also:shuaibu VS. MUAZU (2014) 8 NWLR (PT. 1409) 207 AT 299;OLANLOYE VS. FATUNBI (1999) 8 NWLR (PT. 614) 203/229;EZOMO VS. N.M.B. PLC (2006) 14 NWLR (PT. 1000) 349 AT ;NOIBI VS. FIKOLATI (1987) 1 NWLR (PT. 52) 619; EZOMO VS. OYAKHIRE (1985) 1 NWLR (PT. 2) 195; AMINU VS. HASSAN (2014) 5 NWLR (PT. 1400) 287 AT 322; IPINLAIYE VS. OLUKOTUN (1996) 6 NWLR (PT. 453) 148 AT 169; ETIM VS. EKPE 1983) 1 SCNLR 120 Similarly, in BLESSING VS. F.R.N. (2012) 12 WRN 36, it was held that once a piece of documentary evidence is legally admissible and its admission was not opposed by a party such a party is not allowed to object to it on Appeal. See also:oseni VS. STATE (2012) 5 NWLR (PT. 1193) 351; ARCHIBONG VS. THE STATE (2006) 14 NWLR (PT. 1000) 349/ ;UNION BANK VS. SAMSON MORONFOYE (2017) LPELR ;UDO VS. STATE (2016) LPELR (SC)."Per OWOADE, J.C.A. (Pp , Paras. B-D) - read in context

4 4. EVIDENCE - DOCUMENTARY EVIDENCE: Whether documentary evidence must be specifically pleaded to be admissible in evidence "It is equally an integral part of the law of Evidence that documentary evidence need not to be specifically pleaded in order to be admissible in evidence, so long as facts and not the evidence by which such document is covered are expressly pleaded. In order words, un-pleaded documents, depending on nature of claim, may clearly be seen to constitute evidence by which material facts are to be proved and will be admitted as evidence if not pleaded. See:IMAN VS. SHERIFF (2005) 4 NWLR (PT. 914) 80; OKONKWO VS. CO-OPERATIVE AND COMMERCE BANK (NIGERIA) PLC (2003) 8 NWLR (PT. 822) 347 (SC); MONIER CONSTRUCTION COMPANY VS. AZUBUIKE (1990) 3 NWLR (PT. 136) 74 (SC); IFEADI VS. ATEDZE (1998) 13 NWLR (PT. 581) 205; OKEKE VS. ORUH (1999)_6 NWLR (PT. 606) 175 (SC); SALAMI VS. UNION BANK OF NIGERIA PLC (2010) LPELR 8975; ADEYEFA VS. BAMGBOYE (2013) 10 NWLR (PT. 1363) 532 AT 551; OGORO VS. SEVEN-UP BOTTLING COMPANY PLC (2016) 13 NWLR (PT. 1528) 1 AT "Per OWOADE, J.C.A. (Pp , Paras. D-C) - read in context 5. EVIDENCE - EVIDENCE ON UNPLEADED FACTS: Effect of evidence on facts not pleaded "I think the more germane contention of the learned Counsel for the Appellants here is that Affidavit evidence in Originating Summons is synonymous to pleadings in proceedings by Writ. And, that evidence adduced on un-pleaded fact even where no objection is raised to its admissibility ought to be discountenanced. Properly so called, I think this is a rule of pleading but it is not in doubt that a Court cannot rely on such piece of evidence in reaching its decision.see: NWAOBA VS. IHEBIE (1990) 2 NWLR (PT. 134) 589 AT 596. The clear contention of the learned Counsel for the Appellants in this case is that Paragraph 14 of the Respondent's supporting Affidavit to the Originating Summons depose to the fact of the 1st Appellant plotting to suspend him from his legislative duties but that the evidence contained in Exhibit C1 which was utilized by the learned trial Judge to reach his decision is that the Respondent was suspended for taking the Appellants to Court. This seems to me to be the crux of this Appeal. Yes, the learned Counsel for the Appellants was right to say the learned trial Judge was not justified to act on evidence of "unpleaded" facts contained in Exhibit C1 to come to the conclusion that the suspension of the Respondent by the 1st Appellant for instituting this action against the Appellants was unlawful."per OWOADE, J.C.A. (Pp , Paras. D-E) - read in context

5 MOJEED ADEKUNLE OWOADE, J.C.A.(Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Justice of Kogi State No. 2 sitting at Lokoja, delivered by Hon. Justice H. A. Olusiyi on the 29th day of June, 2017 in Suit No. IDHC/6/2017 between the Respondent herein as Claimant and the Appellants herein as Defendants. The Respondent, as the Claimant before the Kogi State High Court No. 2 sitting at Lokoja instituted an action against the Appellants, then Defendants by way of Originating Summons wherein he raised nine (9) questions for determination and sought nineteen (19) Reliefs. In support of the Originating Summons was an Affidavit of 28 Paragraphs deposed to by the Respondent Claimant himself to which were attached; Exhibits A, B, and C. The Respondent also filed a Written Address in support of the Originating Summons. The Appellants herein as Defendants before the trial Court filed their Counter Affidavit in opposition to the Originating Summons and a Written Address. In the pendency of the proceedings, the Respondent was suspended by the 1st Appellant from plenary sittings 1

6 of the House of Assembly pending the final outcome of the litigation in Court. On 5th June, 2017, Certified True Copy (CTC) of Votes and proceedings and the Motion moved to suspend the Respondent was tendered from the Bar and admitted in evidence without any objection from the Appellants. The trial Court delivered its Judgment on 29th June, 2017 and upheld only in part the Reliefs claimed by the Respondent. In particular, Respondent s Relief 6 was upheld. Relief No. 6 of the Respondent is for: 6. A Declaration that the 1st Defendant has no power to suspend or purport to suspend the Plaintiff from the performance of his legislative duties. The Appellants are now dissatisfied with the fact that Exhibit C1 was admitted and the reliance placed on it by the learned trial Judge in arriving at his conclusion in favour of the Respondent. The Appellants filed a Notice of Appeal containing three Grounds of Appeal in this Court on 21/01/2017. The relevant Briefs of Argument for this Appeal are: i. Appellants Brief of Argument dated 22/08/2017 but filed on 14/09/2017. It is settled 2

7 by M. Y. Abdullahi, Esq. ii. Respondent s Notice of Preliminary Objection and Brief of Argument dated 30/10/2017 but filed on 02/11/2017. It is settled by J. S. Okutepa, SAN. iii. Appellants Response to Respondent s Preliminary Objection and Reply Brief of Argument filed on 03/01/2018 but deemed filed on 22/01/2018. RESPONDENT S PRELIMINARY OBJECTION Learned Senior Counsel for the Respondent raised objection to the competence of the Appeal and the jurisdiction of this Court to determine the Appeal. The Grounds for the objection are: a) This Appeal is academic in that the finding and conclusion of the trial Court against the appellants to the effect that the suspension of the Respondent is illegal, invalid and unconstitutional is subsisting and binding and the Appellants did not challenge that finding and same is binding, and since appellants did not appeal against the crucial findings of the trial Court that set aside the suspension of the Respondent as contained on P.300 of the record, no utilitarian value can be conferred on the Appellants by the success of this Appeal. b) The 3

8 Appeal of the Appellants amounts to an abuse of Court process in that the Appellants herein suspended the Respondent from his legislative duties pending the hearing and determination of SUIT NO: IDHC/6/2017, and Judgment was delivered in the case on the 29th day of June, 2017 by Hon. Justice H. A. Olusiyi, of the High Court of Kogi State, Lokoja Judicial Division. c) The Appellants did not appeal against the decision of the learned trial judge and or the trial Court that set aside the suspension of the Respondent which was the bone of contention between the parties as contained at P.298, paragraphs 2, of the record and therefore, this Hon. Court cannot assume jurisdiction to hear and determine this appeal that did not challenge the decision of the trial Court on live issues in controversy between the parties. d) This Hon. Court cannot set aside the decision of the Court below which has not been appealed against. Learned Senior Counsel for the Respondent argued the Grounds together and contended that the Appeal is merely academic in that it cannot confer any utilitarian value or benefit to the Appellants and this Honourable Court has no 4

9 jurisdiction to decide academic questions or issues. He referred to the cases of: UGBA VS. SUSWAM (2014) 14 NWLR (PT. 1427) 264 AT ; PLATEAU STATE OF NIGERIA VS. ATTORNEY-GENERAL OF THE FEDERATION (2006) 3 NWLR (PT. 967) 346; ABUBAKAR VS. YAR ADUA (2008) ALL FWLR (PT. 404) 1409 AT 1437 for the meaning of academic issue and that a suit is academic if it is not related to a practical situation of human nature and humanity and hypothetical if it is imaginary and not based on real facts. He drew our attention to various findings of the learned trial Judge particularly at Pages 295, 298 and 302 which he said form the fulcrum of the decision. For example, at Page 295 that: Looking at Exhibit C1, it is evident that the Claimant was suspended for six months for taking out this Suit against the defendants, especially the 1st to 3rd defendants. He was suspended pending the final outcome of the litigation in Court... At Page 298 that: The suspension of the Claimant by the 1st 5

10 Defendant during the pendency of this Suit and for the sole reason that he filed this Suit was not only an act of legislative prudence and insolence; it was actually a deliberate contemptuous act. No reasonable Court or Tribunal will allow that to stand And at Page 302 that: It is crystal clear from the foregoing that the 1st Defendant acted outside its statutory powers when it suspended the Claimant from the House for six months for suing it to Court, when the Claimant was merely exercising his constitutional rights to seek redress in Court Learned Senior Counsel for the Respondent submitted that the above findings and conclusions of the trial Court which are based on the live issue that activated the jurisdiction of the trial Court has not been appealed against by the Appellants. He referred to the case of S.P.D.C. (NIGERIA) LIMITED VS. EDAMKUE (2009) ALL FWLR (PT. 489) 407 at 430 for the view that any decision of the Court not appealed against remains valid, subsisting and binding. And, that for the reason of not appealing against the decision on the live issues raised, the Appeal is devoid of any practical or 6

11 utilitarian value to the Appellant/Claimant. On this, Counsel referred to the case of OKE VS. MIMIKO (NO. 1) (2014) 3 NWLR (PT. 1388) 225 AT 265. On another wicket, learned Senior Counsel for the Respondent submitted that it is common knowledge that six months from the date the Originating Summons, Suit No. IDHC/6/2017, ELDER DR. FRIDAY SANI (MAKAMA) VS. KOGI STATE HOUSE OF ASSEMBLY AND 6 ORS. was filed and served and also from the date of delivery of the Judgment by the trial Court has lapsed. Consequently, that the totality of the present Appeal whichever way is viewed has become academic and bereft of any live issue. He submitted that the decision of the learned trial Judge which was based on sound judicial principle and law was that the suspension of the Respondent during the pendency of the case was an affront and contemptuous of the Court. Appellants, he said are not disputing that they suspended the Respondent for six months and pending the determination of the case before the trial Court. That there is no ground of Appeal faulting the decision of the learned trial Judge on the point. In fact, that the Appeal did not find fault 7

12 with the reasons in quashing the suspension of the Respondent but merely challenged the admissibility of Exhibit C1 done on the 5th day of June, He referred again to the case of OKE VS. MIMIKO (Supra) 225 AT and urged that the general attitude of Courts of law is that they are loathe in making pronouncements on academic or hypothetical issues as it does not serve any useful purpose. He submitted further that the instant Appeal constitutes an abuse of Court process. He referred to the cases of: ORJI VS. AMARA (2016) 14 NWLR (PT. 1531) 21 AT 57; N.J.C. VS. AGUMAGU (2015) 10 NWLR (PT. 467) 365 AT 410; DONALD VS. SALEH (2015) 2 NWLR (PT. 1444) 529 AT 568; and LOKPOBIRI VS. OGOLA (2016) 3 NWLR (PT. 1499) 328 AT 387 and submitted that the concept of abuse of judicial process is imprecise, it involves circumstances and situations of infinite variety and conditions. And, it recognizes that the abuse of the process may be in both a proper or improper use of the judicial process in litigation. He drew our attention to the fact that, despite the binding and subsisting Judgment of the trial Court, the Appellants 8

13 have refused to allow the Respondent to perform his legislative duties and have also not paid the Respondent all the allowances due him, instead the Appellants decided to further frustrate Respondent by filing the instant Appeal. He urged us to uphold the preliminary objection. Learned Counsel for the Appellants on the other hand submitted that the crux of this Appeal which is borne out of live issues is that, Exhibit C1, which forms the basis and the only foundation for the decision of the Court below ought not to have been admitted in the first place. Further, that Exhibit C1 did not form the basis for commencement of the Respondent s Claimant s action before the Court below and that same was not pleaded and that no evidence was led on record in support of the exhibit and in particular, its contents warranting the decision of the lower Court at Page 295 only came into existence while the suit was pending if Exhibit C1 were not admitted in evidence, the lower Court would have arrived at a different decision. He submitted that nowhere on the record of Appeal did the Respondent amend his Originating process to accommodate 9

14 Exhibit C1 neither is there a place on the record where the Respondent amended his prayers before the Court below. Appellant s Counsel further submitted that ground Three of the Notice of Appeal is that the decision of the trial Court is against the weight of evidence placed before it. He referred to the cases of: OSOLU VS. OSOLU AND ORS. (2003) 11 NWLR (PT. 832) 608, (2003) 6 SC (PT. 1) 1; and AJIBONA VS. KOLAWOLE (1996) 10 NWLR (PT. 476) 22 (1996) LPELR 299 (SC) and posited that by an omnibus ground that there is no evidence which if accepted would support the finding of the trial Court. He submitted that an Appeal founded on omnibus ground alone can stand and succeed without more. He submitted that the argument on Appeal and indeed, the relief sought by the Appellants is to the effect that the matter before the lower Court was not whether the Respondent was suspended or not but that there were plots to suspend him without more. To hold that the suspension was wrongful is therefore completely outside the vires of the Court. He concluded that the Appellants have a constitutional right to appeal, that the 10

15 grounds of Appeal question the very foundation of the decision of the Court below and that they raise live issues and therefore could not have constituted abuse of Court process. He urged us to dismiss the preliminary objection. The Appellants grounds of Appeal together with their particulars and the Reliefs sought are reproduced below: GROUND ONE: The trial Judge erred in law when he admitted Exhibit C1 during trial of the case. Particulars of Error 1. Respondent's case was presented to the lower Court via Originating summons proceedings governed by the Kogi State High Court (Civil Procedure) Rules, All exhibits to be relied upon by the aforesaid Rules must accompany the affidavit in support of the Originating Summons. 3. The Rules of Court did not give exception to the attachment of exhibits in Originating Summons proceedings. 4. Parties and or Court cannot waive express and mandatory provisions in the rules of Court during hearing and trial of the Originating summons proceedings. 5. The admissibility of Exhibit C1 is alien to the Rules of Kogi State High in Originating Summon 11

16 proceedings. 6. The trial Court should not have admitted Exhibit C1 when it was tendered at trial. 7. Exhibit C1 was not pleaded by the Respondent in any of his affidavit. 8. This error of the trial Judge occasioned a miscarriage of justice against the Appellants. 9. The trial Judge was therefore wrong to have admitted Exhibit C1 in evidence. GROUND TWO The trial judge erred in law when at trial, he placed heavy reliance on Exhibit C1 and such, occasion a miscarriage of Justice against the Appellants. Particulars of Error 1. Exhibit C1 was inadmissible in law during hearing of Originating Summons under the Kogi State High Court (Civil Procedure) Rules, The exhibit was not referred to in any of the affidavit evidence placed before the Court by parties. 3. Exhibit C1 was not Pleaded by the Respondent. 4. The Respondent did not make Exhibit C1 or its content as part of his case before the Court through his affidavit evidence. 5. Exhibit C1 has no direct connection to the respondent's case before the lower Court. 6. Documents that are inadmissible cannot be relied on 12

17 for consideration and determination of a suit. 7. The trial Court has power to discountenance with inadmissible evidence at Judgment stage. 8. The trial Court failed to consider the inadmissibility of Exhibit C1 and thus, it placed heavy reliance on it against the interest of the Appellants. 9. The reliance on Exhibit C1 occasioned a miscarriage of justice against the Appellants. GROUND THREE The Decision of the Trial Court is against the weight of evidence placed before it. Take Notice that further Grounds of Appeal may be filed upon receipt of the Record. 4. RELIEFS SOUGHT FROM THE COURT OF APPEAL 1. An Order of this Honourable Court of Appeal allowing the Appeal and setting aside part of the decision of the lower Court setting aside the suspension of the Respondent by the 1st Appellant. 2. An Order dismissing the Respondent s Suit for lacking in merit. 3. And for such further orders your Lordships may make within the contemplation of the Appeal. A careful perusal of the Appellants grounds of Appeal together with their particulars and the reliefs sought would show 13

18 that this Appeal is neither academic, hypothetical nor an abuse of the process of Court. It must always be borne in mind that basically, an Appeal is a constitutional right of an Appellant. In the instant case, the live issues and conclusions referred to in the Judgment of the Court below are not necessarily those that activated the jurisdiction of the Court. The suggestion of the learned Senior Counsel for the Respondent for example, that the decision of the learned trial Judge was based on the principle that the suspension of the Respondent during the pendency of the case was an affront and contemptuous of the Court must in the circumstances be regarded as a Novus Actus Interveniens not being the principle or basis on which the parties joined issues before the Court below. For these reasons, this Appeal is neither academic, hypothetical nor an abuse of process of Court. The Respondent s preliminary objection is overruled. MAIN APPEAL Learned Counsel for the Appellants nominated a sole Issue for determination of the Appeal that is:- Whether the trial Court was right to have admitted Exhibit C1 when same was 14

19 not pleaded or evidence led in respect thereof and placed heavy reliance on it in its Judgment.'' (Grounds 1, 2 and 3). Learned Senior Counsel for the Respondent similarly formulated a sole Issue for the determination of the Appeal thus; Whether the learned trial Judge was right to have admitted Exhibit C1 tendered from the Bar without objection by the Appellant and to have relied on same Learned Counsel for the Appellants opened up his submission on the sole Issue by saying it is settled law that parties to every action are bound by their pleadings and that the purpose of pleadings is to reveal to the opposing party the nature of the case at the earliest opportunity, he is likely to be confronted with. Indeed, said Counsel, parties and the Court are bound by their pleadings and must not go beyond what they have pleaded in their evidence, as doing so will render the evidence so given a non-issue and liable to be struck out. He referred to the cases of: AMERICAN CYNAMID VS. VITALITY PHARM. LIMITED (1991) 2 NWLR (PT. 171) 15 (1991) LPELR 461 (SC); AGALA AND ORS. VS. CHIEF BENJAMIN OKUSIN (2010) LPELR

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21 221 (SC) (2010) 10 NWLR (PT. 1202) 412; ANYANWU AND ORS. VS. UZOWUAKA AND ORS. (2009) LPELR 515 (SC) (2009) 13 NWLR (PT. 1159) 445 Appellants Counsel then referred to the provision of Order 2, Rule 8 (2) of the Kogi State High Court (Civil Procedure) Rules He pointed out that an Originating Summons as in the instant case is an unusual method of commencing proceedings in the High Court and it is confined to cases where special statutory provisions exist for its application. He referred to the decision of the Supreme Court in the case of HUSSAINI ISA ZAKIRI VS. SALISU DAN AZUMI MUHAMMED AND ORS. (2017) LPELR (SC) where the Apex Court held that: In effect, Originating Summons is a procedure wherein the evidence is mainly by way of documents and there is no serious dispute as to their existence in the pleadings. It is usually heard on Affidavit evidence and involves questions of law rather than disputed issues of fact. In essence, according to Appellants Counsel, pleadings in an action commenced by way of Originating Summons are the summons itself accompanied by the Affidavit in 16

22 support thereof together with all exhibits to be relied upon and a Written Address in support of the application. He submitted that the use of the word shall in Order 2, Rule 8 (2) of the Kogi State High Court (Civil Procedure) Rules, 2006 (which is the only Rules governing Originating Summons proceeding in the Court) is mandatory in nature, hence, any evidence documentary or otherwise not forming part of the exhibits or affidavit accompanying the originating summons goes to no issue and must be discarded by the Court. Exhibits C1 said Counsel, which was tendered at the bar and admitted by the trial Court although, without objection is not referred to in any paragraph of the Affidavit in support of originating summons neither was it referred to in other part of the originating summons. In fact, it relates to an action that took place after the commencement of the action before the trial Court. He submitted that this Honourable Court has maintained that, the fact that a document is tendered through the bar does not mean that the document should not be pleaded or that evidence should not be led as to what the party wants the 17

23 documents to be used for. Per Iyizoba, J.C.A in PRINCE ADETULEWA SIJUADE V ROPO OYEWOLE (2011) LPELR-4869 (CA), P.38,PARAS C-D. The trial Court, said Counsel, was therefore wrong to have admitted and relied on exhibit C1 in granting Relief 6 of the Respondent herein where it held that the 1st defendant had no power to suspend the claimant for seeking redress in Court as it did vide exhibit "C1". He submitted that the multiplier effect is that, no evidence was led by the Respondent at the trial Court to show that he was suspended because of the suit in Court. The trial Court therefore was on a voyage to discover and/or generate evidence in favour of the Respondent when it held on pages 283 to 284 of the record of appeal, while evaluating the affidavit evidence that, "...the 1st defendant resolved on 28/3/2017 to suspend the claimant for six months for suing it to Court". He submitted further that, when a document which is inadmissible in evidence is admitted at trial, such document must be rejected on Appeal. That absence of objection does not render admissible, evidence which is inadmissible in law. Where it is wrongfully 18

24 admitted, it ought to be expunged even at the stage of judgment otherwise it must be expunged on Appeal. He referred to the cases of: ESSO WEST AFRICAN INCORPORATED VS. ALLI (1968) NMLR 414 AT 423; JUDE ONWUZULIKE VS. THE STATE (2017) LPELR-41889(CA). What is more, said Counsel, Relief 6 of the Respondent before the trial Court was sought before the action in Exhibit C1 occurred. The intention of the said Relief 6 read alongside the affidavit evidence of the Respondent at trial reveals that the Respondent by that relief, intended to prevent the suspension he was apprehensive was imminent against him and not that he was already suspended. He reproduced Relief 6 and Paragraph 14 of the Respondent s Affidavit in support. He submitted that a Judgment of Court must be based and confined to the issues joined by the parties in their pleadings. A Judgment unrelated to the relief sought or the issues joined of a claim tried on pleadings cannot be sustained. He referred to the case of: OGUNYADE VS. OSHUNKEYE (2007) 15 NWLR (PT. 1057) 218; (2007) LPELR-2355 (SC). It is also settled in law said Counsel that findings of fact should be 19

25 made on issues raised as between the parties and whether relief or reliefs sought have been explicitly claimed and proved. A judgment unrelated to the relief sought or issues joined cannot be sustained on appeal. He referred to the case of INCAR (NIGERIA) LIMITED VS. BENSON TRANSPORT LIMITED (1975) LPELR 1512 (SC). He further submitted that it is not the duty of the Court to endeavour by examination of the evidence to conjecture or deduce what ought to be or might be the true nature of claim and then proceed to make a declaration which the Plaintiff has not sought and may not in fact, desire. It would be improper for the Court so to do unless it were prepared to order an amendment of the pleadings in which case it would be necessary to give the defendant an opportunity of what would be an entirely different case. He referred to the case of AGBAISI VS. EBIKOREFE (1997) 4 NWLR (PT. 502) (1997) LPELR 226 (SC). He submitted that, if Relief 6 of the Respondent before the trial Court must be granted, it must be granted on the strength of evidence given in support of same and not otherwise. The trial Court cannot go outside the evidence properly placed 20

26 before it to grant the said relief. He concluded that the trial Court would not have arrived at its decision of granting Relief 6 of the Respondent if it had not wrongfully admitted Exhibit C1 and relied heavily on same. Learned Senior Counsel for the Respondent on the other hand submitted on the sole Issue by referring to the Provision of S.122 (1) and (2) (b) (c) of the Evidence Act, 2011 and the cases of:idris VS. AGUMAGU (2015) 13 NWLR (PT. 1477) 441 AT 484; AIYEOLA VS. PEDRO (2014) 13 NWLR (PT. 1424) 409; and NTOE ANDREW AND ORS. VS. THE CONGREGATIONAL BOARD, ISHIE PRESBYTERIAN CHURCH AND ORS. (2013) LPELR (CA) P.10 to say that Exhibit C1 is relevant and admissible. And that relevancy is the basis of admissibility of any evidence. Respondent s Counsel noted that Exhibit C1 was not the only document that the trial Court placed reliance on in declaring the suspension of the Respondent illegal, invalid and unconstitutional. In this respect, learned Senior Counsel for the Respondent referred to Pages of the Record, where the Court below relied on Rules of the 21

27 Standing Rules of Kogi State House of Assembly (as amended) in 2011 and the authorities of: ELUFIOYE VS. HALILU (1993) LPELR 1120; SHA ABAN VS. SAMBO (2010) 19 NWLR (PT. 1226) 353; WILSON VS. A-G, BENDEL STATE (1987) 1 NWLR (PT. 53) 678 amongst others to come to the conclusion that the suspension of the Respondent was illegal. Learned Senior Counsel for the Respondent submitted that the fundamental question to ask is, whether a party as in this case, the Appellants who had the opportunity to object to the admissibility of Exhibit C1 at the trial Court and refused/failed to object to same, can now raise objection at the Appellate Court? In answering the question in the negative, Respondent s Counsel referred to the case of BLESSING VS. F.R.N. (2012) 12 WRN 36 that once a piece of documentary evidence is legally admissible and its admission was not opposed by a party such a party is not allowed to object on Appeal. Learned Senior Counsel for the Respondent reproduced Respondent s/claimant s Relief 6 as follows: A Declaration that the 1st Defendant has no power to suspend, or 22

28 purport to suspend the Plaintiff from the performance of his legislative duties He also reminded us that his second Issue for determination before the Court below was: Whether the 1st Defendant (Appellant) has the power to suspend, or purport to suspend the Plaintiff from the performance of his legislative duties He added that the Appellants in fact did not challenge the Affidavit evidence in support of the Originating Summons. He relied on the case of ECO INTERNATIONAL BANK PLC VS. N.U.L.G.E. JALINGO L.G.C. (2015) 10 NWLR (PT. 1466) 49 AT 77 AND 80 to say that unchallenged Affidavit evidence remains good evidence which ought to be relied upon by a Court. Respondent s Counsel submitted further that assuming but not conceding that Exhibit C1 was not pleaded, same is still admissible as the Appellants did not object to its admissibility. He also referred to the cases of: OGORO VS. SEVEN- UP BOTTLING COMPANY PLC (2016) 13 NWLR (PT. 1528) 1 AT 29 30; and ADEYEFA VS. BAMGBOYE (2013) 10 NWLR (PT. 1363) 532 AT 551 that the settled position of the law as it relates to the tendering of

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30 documentary evidence is that it is sufficient if Statements of facts relating to the document are contained in the pleading and it is not necessary that the document or piece of documentary evidence must be specifically pleaded. He concluded that Exhibit C1 is a Certified True Copy (CTC) of a public document. That it was tendered to show that the Appellants suspended the Respondent while the case was pending in Court. That the Issue was not contested by the Appellants. That they (Appellants) did not challenge the facts that they suspended the Respondent because he filed this case. He urged us to dismiss the Appeal. In his Reply Brief of Argument, Learned Counsel to the Appellants further argued that any piece of evidence which slips into the records without passing the test of admissibility is not legal evidence and is liable to be expunged even if admitted by consent. He referred on this to the cases of: ENGINEER GOODNEWS AGBI AND ANOR VS. CHIEF AUDU OGBEH AND ORS. (2006) LPELR 240 (SC) PP ; SAIDU VS. STATE (1982) 4 SC 41; JAMES VS. MID MOTORS (NIGERIA) COMPANY LIMITED (1978) (SC) 31; 24

31 ALADE VS. OLUKADE (1976) 2 SC 183. RESOLUTION The submissions of the learned Counsel for the Appellants in this Appeal tend to blur the fine but important distinctions between Rules of Evidence and Rules of Pleadings, putting them under one umbrella as Rules of Evidence. In the Law of Evidence, if a document whose admission is not forbidden by law is unlawfully admitted without objection, such is generally regarded as legal evidence on which the trial Court can properly use in arriving at a decision in the case.see:chukura AKUNNE VS. MATTHIAS EKWUNO AND ORS. (1952) 14 W.A.C.A. 59; ABOLADE ALADE VS. SALAWU OLUKADE (1976) 6 SC, 183 The scope of case law authorities differ on the situation where an Appellant still raises objection on appeal to the admissibility of such piece of evidence hitherto admitted by consent in the trial Court. What seems to be the view of some authorities is that an Appellant in criminal proceedings may still raise an objection to the admissibility of such piece of evidence on Appeal. However, that in civil cases, an Appellant may only be allowed to raise an objection at the Appeal if as a 25

32 result he has suffered injustice or miscarriage of justice has occurred. See:R.V. ELLIS (1910) 2 K.B. 746; STIRLAND VS. D.P.P. (1944) A.C. 315 AT 327; WAHABI ALAO LAWAL VS. THE STATE (1966) 1 ALL N.L.R N.M.L.R. 343; AJAYI VS. OLU FISHER (1956) 1 F.S.C. 90; SADIKU OSO AND ANOR VS. MICHEAL APE (1998) 8 NWLR 492 (SC) Now, it would seem that the trend of the authorities in both civil and criminal cases is that an Appellant who did not raise an objection to the admissibility of a piece of evidence documentary or otherwise may not be allowed to raise it again. Thus in RAIMI VS. AKINTOYE (1986) 3 NWLR (PT. 26) 97, the Supreme Court held that where certain documents are admissible in evidence upon the fulfilment of certain conditions, an Appellant who fails to object to their admissibility in the trial Court cannot do so in the Appellate Court. See also: SHUAIBU VS. MUAZU (2014) 8 NWLR (PT. 1409) 207 AT 299; OLANLOYE VS. FATUNBI (1999) 8 NWLR (PT. 614) 203/229; EZOMO VS. N.M.B. PLC (2006) 14 NWLR (PT. 1000) 349 AT ; NOIBI VS. FIKOLATI (1987) 1 NWLR (PT. 52) 619; 26

33 EZOMO VS. OYAKHIRE (1985) 1 NWLR (PT. 2) 195; AMINU VS. HASSAN (2014) 5 NWLR (PT. 1400) 287 AT 322; IPINLAIYE VS. OLUKOTUN (1996) 6 NWLR (PT. 453) 148 AT 169; ETIM VS. EKPE (1983) 1 SCNLR 120 Similarly, in BLESSING VS. F.R.N. (2012) 12 WRN 36, it was held that once a piece of documentary evidence is legally admissible and its admission was not opposed by a party such a party is not allowed to object to it on Appeal. See also: OSENI VS. STATE (2012) 5 NWLR (PT. 1193) 351; ARCHIBONG VS. THE STATE (2006) 14 NWLR (PT. 1000) 349/ ; UNION BANK VS. SAMSON MORONFOYE (2017) LPELR 43164; UDO VS. STATE (2016) LPELR (SC). It is equally an integral part of the law of Evidence that documentary evidence need not to be specifically pleaded in order to be admissible in evidence, so long as facts and not the evidence by which such document is covered are expressly pleaded. In order words, un-pleaded documents, depending on nature of claim, may clearly be seen to constitute evidence by which material facts are to be proved and will be admitted as evidence if not pleaded. See:IMAN VS. 27

34 SHERIFF (2005) 4 NWLR (PT. 914) 80; OKONKWO VS. CO-OPERATIVE AND COMMERCE BANK (NIGERIA) PLC (2003) 8 NWLR (PT. 822) 347 (SC); MONIER CONSTRUCTION COMPANY VS. AZUBUIKE (1990) 3 NWLR (PT. 136) 74 (SC); IFEADI VS. ATEDZE (1998) 13 NWLR (PT. 581) 205; OKEKE VS. ORUH (1999)_6 NWLR (PT. 606) 175 (SC); SALAMI VS. UNION BANK OF NIGERIA PLC (2010) LPELR 8975; ADEYEFA VS. BAMGBOYE (2013) 10 NWLR (PT. 1363) 532 AT 551; OGORO VS. SEVEN-UP BOTTLING COMPANY PLC (2016) 13 NWLR (PT. 1528) 1 AT From the foregoing, it may be difficult to accept the view of the learned Counsel for the Appellants that Exhibit C1 is not legal evidence and/or that it was wrongfully admitted. I think the more germane contention of the learned Counsel for the Appellants here is that Affidavit evidence in Originating Summons is synonymous to pleadings in proceedings by Writ. And, that evidence adduced on unpleaded fact even where no objection is raised to its admissibility ought to be discountenanced. Properly so called, I think this is a rule of pleading but it is not in doubt that a Court cannot rely on such piece of evidence in 28

35 reaching its decision.see: NWAOBA VS. IHEBIE (1990) 2 NWLR (PT. 134) 589 AT 596. The clear contention of the learned Counsel for the Appellants in this case is that Paragraph 14 of the Respondent s supporting Affidavit to the Originating Summons depose to the fact of the 1st Appellant plotting to suspend him from his legislative duties but that the evidence contained in Exhibit C1 which was utilized by the learned trial Judge to reach his decision is that the Respondent was suspended for taking the Appellants to Court. This seems to me to be the crux of this Appeal. Yes, the learned Counsel for the Appellants was right to say the learned trial Judge was not justified to act on evidence of unpleaded facts contained in Exhibit C1 to come to the conclusion that the suspension of the Respondent by the 1st Appellant for instituting this action against the Appellants was unlawful. In the instant case, the facts elicited from Exhibit C1 brought to fore the contentious nature of the dispute between the parties especially as to why, when and how the Respondent was suspended. It became clearer therefore, that the suit would 29

36 have been fought by pleadings rather than under the Originating Summons procedure. It goes without saying that the Originating Summons procedure is not suitable perhaps incompetent where there is a dispute over facts and/or where the issues between the parties are contentious. See: S.C.S. COMPANY VS. COUNCIL, O.A.U. ILE-IFE (2011) 15 NWLR (PT. 1269) 193;UZODINMA VS. IZUNASO (NO. 2) (2011) 17 NWLR (PT. 1275) 30; DAGAZAN VS. BOKIR INTERNATIONAL COMPANY LIMITED (2011) 14 NWLR (PT. 1267) 261; and OWUAMA VS. OBASI (2011) 1 NWLR (PT. 1228) 431. In spite of the above observation on the inappropriateness of the Originating Summons procedure in this case, the learned trial Judge was nevertheless in error to have utilized unpleaded facts elicited from Exhibit C1 in arriving at his decision in favour of the Respondent. The sole Issue in this Appeal is resolved in favour of the Appellants. The Appeal is meritorious and it is accordingly allowed. In consequence, the parties in SUIT NO. IDHC/6/2017 are hereby ordered to file pleadings. Suit No. IDHC/6/2017 is remitted to the Honourable, the Chief Judge, Kogi 30

37 State to be assigned to another Judge for trial by pleadings. I make no order as to Costs. CHIDI NWAOMA UWA, J.C.A.: I was privileged to have read before now the judgment of my learned brother, MOJEED ADEKUNLE OWOADE, JCA. My learned brother has dealt comprehensively with the sole issue that arose in this appeal and I adopt his reasoning and conclusion arrived at as mine in holding that the appeal is meritorious and allowing same. I also allow the appeal and abide by the orders therein including the order awarding no cost in the leading judgment. HAMMA AKAWU BARKA, J.C.A.: My lord MOJEED ADEKUNLE OWOADE PJ/JCA kindly availed me a copy of the judgment just read in draft. I agree with the reasoning and the conclusions therein and thereby join my lord in allowing same. I also abide by all consequential orders made in the lead judgment. 31

38 Appearances: F. O. Ekpa, Esq. For Appellant(s) J. S. Okutepa, SAN with him, Ede Uko, Esq., A.O. Okey Obasi, Esq., O. S. Apeh, Esq. and K. A. Danfulani, Esq. For Respondent(s)