CORAM

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Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Lateef Adebayo Ganiyu Justice of the Court of Appeal

Asmau Ojuolape Akanbi Justice of the Court of Appeal

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PARTIES

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MR. FOLORUNSHO EKE

APPELLANTS 

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CHIEF ENIOLA OSAH (ALIAS SMALL BABA)

RESPONDENTS 

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AREA(S) OF LAW

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CIVIL PROCEDURE, EVIDENCE LAW, LAND LAW, PROPERTY LAW, JUDICIAL REVIEW, APPELLATE JURISDICTION, AFFIDAVIT EVIDENCE, PUBLIC DOCUMENTS, JUDICIAL NOTICE, ADMISSIBILITY OF EVIDENCE, RECOVERY OF POSSESSION

 

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SUMMARY OF FACTS

The Appellant (Mr. Folorunsho Eke) had previously commenced an action at the High Court of Edo State, Okada Judicial Division, in Suit No. HCOK/124/2006 against one Julius Okhuaresohan, claiming declaration of title to a parcel of land measuring 600ft by 600ft situated at Ohunmwun Village in Ward 1 A, Benin-Lagos Road, via Benin City. The Appellant also claimed ₦500,000.00 damages and perpetual injunction. In a judgment delivered on 26/11/2013, the High Court granted all the reliefs, though reducing the damages to ₦200,000.00, and issued a Warrant of Possession to the Appellant.

Subsequently, the Appellant initiated another action at the same High Court, Suit No. HCOK/5/2017, through an Originating Summons for recovery of possession against the current Respondent (Chief Eniola Osah), seeking to recover a portion of the land measuring 50ft by 100ft, which was allegedly illegally occupied by the Respondent without the Appellant’s consent.

The Originating Summons was supported by a 9-paragraph Affidavit to which the earlier judgment in Suit No. HCOK/124/2006 was annexed as Exhibit A. The Respondent did not contest the action. However, in a judgment delivered on 21/11/2018, the lower Court (Hon. Justice A.T. Momodu) dismissed the Appellant’s claim on the ground that the previous judgment (Exhibit A) relied upon was an uncertified photocopy, contrary to the deposition in the Affidavit that it was a certified true copy.

Dissatisfied with this decision, the Appellant filed a Notice of Appeal on 04/12/2018, which was later amended on 16/05/2022 and deemed properly filed on 29/01/2025. The Respondent, though duly served with all processes, did not file a Brief of Argument, and the appeal was argued solely on the Appellant’s Brief.

 

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HELD

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1. The appeal was allowed and the judgment of the High Court of Edo State in Suit Number HCOK/5/2017, delivered on 21/11/2018, was set aside.

2. The Court held that documents attached to an affidavit as exhibits automatically form part of the affidavit, and it is not possible for the opposing party or the Court to raise objection to their admissibility, even where they are uncertified, in the case of public documents.

3. The Court found that the lower Court was in error of law in refusing to ascribe probative value to its own judgment annexed to the Appellant’s Affidavit as Exhibit A for the sole reason that it was not certified.

4. The Court declined to exercise its powers under Section 15 of the Court of Appeal Act to determine the Appellant’s case on the merits, as there were insufficient materials before it to establish that the 50ft by 100ft parcel of land alleged to have been illegally occupied by the Respondent formed part of the 600ft by 600ft declared for the Appellant in the earlier judgment.

5. The case was remitted to the Chief Judge of Edo State for re-hearing by another Judge. No order was made as to costs.

 

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ISSUES

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Whether the failure of the lower Court to give probative value to the judgment of Court attached as Exhibit to an Affidavit was not perverse as to have occasioned a miscarriage of justice?

 

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RATIONES DECIDENDI

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DOCUMENTS ATTACHED TO AFFIDAVIT – STATUS AS EVIDENCE BEFORE THE COURT

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“Every document annexed to an affidavit that is duly sworn to is deemed to be evidence properly before the Court and the Court is enjoined to consider such document in coming to its decision.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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CERTIFICATION OF PUBLIC DOCUMENTS – DISPENSATION IN AFFIDAVIT EVIDENCE

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“The trite position of the law is that documents attached to affidavit as exhibits automatically form part of the affidavit and it is not possible for the opposing party or even the Court to raise objection to their admissibility, even where they are uncertified, in the case of public documents. This is so because, by their annexation as exhibits to an affidavit, the formality for certification for admissibility had been dispensed with.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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ADMISSIBILITY OF UNCERTIFIED PUBLIC DOCUMENTS – DISTINCTION BETWEEN WRIT OF SUMMONS AND ORIGINATING SUMMONS PROCEEDINGS

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“Even though the law provides that the only secondary evidence that is admissible in proof of public document is a certified true copy of the document, the issue of certification only goes to the realm of admissibility during trial. This normally occurs in actions commenced by way of Writ of Summons where documents intended to be relied upon are subjected to scrutiny to ensure that they pass the test of admissibility before they are admitted in evidence. This rule does not however apply in applications/actions commenced by way of Notice of Motion, Preliminary Objection, Originating Summons and Originating Motions, etcetera, where proof is by way of affidavit evidence.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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JUDICIAL NOTICE OF COURT JUDGMENTS – NECESSITY OF BRINGING TO COURT’S ATTENTION

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“The Supreme Court was emphatic that a Court is not bound to take judicial notice of its judgment which is not brought to its attention. This position accords with statutory provisions as the Evidence Act, in listing matters or facts for which a Court can take judicial notice of, in Section 122(2), the Act did not list judgments of Courts. A party who wants to rely on a judgment of Court to prove his case, has to bring the said judgment to the notice of the Court.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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RAISING NEW ISSUES ON APPEAL – PROHIBITION AGAINST

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“Having not asked the lower Court to take judicial notice of its judgment, the Appellant cannot, on appeal, fault the decision of the lower Court on that account, as same was not an issue before the lower Court.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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LIMITS OF APPELLATE COURT’S POWERS – GRANTING UNREQUESTED RELIEFS

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“This Court, not being a Father Christmas, cannot grant what the Appellant has not prayed for.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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CONDITIONS FOR APPLYING SECTION 15 OF COURT OF APPEAL ACT – REQUIREMENTS FOR APPELLATE COURT TO EXERCISE POWERS OF COURT OF FIRST INSTANCE

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“The provision of Section 15 of the Court of Appeal Act empowers this Court to make orders that a lower Court could have made in appropriate cases towards the attainment of substantial justice to the parties in an appeal before it. The section is designed to facilitate speedy administration of justice thereby obviating the necessity of the parties returning to the lower Court for re-hearing in the event an appeal succeeds. The application of the section is however subject to the fulfilment or existence of some conditions as laid down by the Supreme Court.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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ENUMERATION OF CONDITIONS FOR EXERCISE OF POWERS UNDER SECTION 15 OF COURT OF APPEAL ACT

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“The conditions are: 1. That the lower Court or trial Court must have the legal power to adjudicate in the matter before the appellate Court can entertain it; 2. That the real issue raised by the claim of the Appellant at the lower Court or trial Court must be seen to be capable of being distilled from the grounds of appeal; 3. That all necessary materials must be available to the Court for consideration; 4. That the need for expeditious disposal of the case or suit to meet the ends of justice must be apparent on the face of the materials presented; and 5. That the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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ABSENCE OF RESPONDENT’S BRIEF – EFFECT ON APPELLANT’S CASE

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“The law is trite that where a Respondent fails to file Brief of Argument, it would be deemed by the Court that the said Respondent is not interested in the appeal and/or he has agreed to be bound by the outcome of the appeal.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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ABSENCE OF RESPONDENT’S BRIEF – APPELLANT’S BURDEN TO SUCCEED ON MERIT

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“It is also the law that the absence of a Respondent’s Brief does not translate to smooth sail for the Appellant, who must succeed only on the strength of his case.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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JUDICIAL NOTICE – DEFINITION AND LEGAL EFFECT

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“The term ‘Judicial Notice’ denotes the Court’s acceptance of a well-known and indisputable fact, without requiring a proof therefore. The trite general principle is that no fact of which the Court must take judicial notice need be proved, because such a fact or matter has become so notorious or clearly established thereby dispensing with the necessity of proof.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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PERVERSITY OF JUDGMENT – CONSEQUENCE OF FAILURE TO CONSIDER RELEVANT EVIDENCE

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“Having found earlier in this judgment that the lower Court was in grave error in not considering Exhibit A and ascribing probative value to it, the judgment of the lower Court cannot stand as same is perverse.” – Per MUHAMMAD IBRAHIM SIRAJO, J.C.A.

 

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CERTIFICATION OF PUBLIC DOCUMENTS ATTACHED TO AFFIDAVIT – DISPENSATION OF REQUIREMENT

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“When a matter is fought on affidavit evidence or where a document is attached to an affidavit in a matter, any document attached thereto forms part of that affidavit and is therefore already in evidence before the Court… Where the document is a public document, the requirement of certification can be dispensed with as long as the document is credible and the contents are not in dispute or challenged.” – Per LATEEF ADEBAYO GANIYU, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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• Evidence Act, 2011 (Sections 109, 111, 112, and 122)

• Court of Appeal Act, 2004 (Section 15)

• Constitution of the Federal Republic of Nigeria, 1999 (as amended)

 

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