Whether A Document Wrongly Admitted Without Objection Can Be Expunge From The Record Of The Trial Court Or On Appeal By Adedayo Samuel Adesheila

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.