Revisiting the Rule Against Dumping of Documents on the Court

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By Adolphus Nwachukwu

Introduction

Litigation is a like a hydra headed monster. It is a cat that has nine lives. The more you think you have found a solution to it, the more it disappoints you. It is a case of the more you look the less you see. A case of most welcome and unwelcomed.[1]

The principle requiring a party in a litigation or probably an arbitration to link or relate the documents he tendered through his witness to specific areas of his case has been challenging to some litigants and their lawyers. In this article, we shall look at why the rule against dumping was enunciated in the first place; whether the principle is relevant and otiose to our adversarial nature of the Nigerian jurisprudence which was inherited from the common law; whether it undermines the frontloading of court process and the news rules of courts being used in several jurisdictions across the country; and whether there is a leeway to avoid being caught or running the risk of dumping documents on the court. We shall end up with conclusion and recommendation.

Mischief behind the Dumping Principle

The mischief behind the principle of dumping documents on the Court was to avoid a witness dumping documents he tendered in evidence on the court. Thus, a witness must breathe life into the documents he is bringing to the Court.[2] In other words, the witness must have spoken about the document he seeks to tender in evidence for the Court to consider the document.[3] Thus, a witness must while giving evidence in open court, produce, tender, and demonstrate the purpose and worth of the document he is tendering by linking it to specific area of his case.[4]

This issue becomes a reality when the document is tendered from the bar or tendered without opposition or tendered as a bundle. The corollary to the above proposition is that documentary evidence, even if it is a certified true copy of a public document cannot speak for itself without the aid of witness explanation relating its existence.[5] Therefore, it is an infraction of fair hearing principle for the court to do in its chambers, what a witness to the party in a case had not himself done in open court to advance or protect the interest of the party. [6] Besides, linking a document to specific area of a party’s case confirms to the principle of law that a court can only use a document properly admitted in evidence.[7]

Relevance or Otiosity of the Dumping Principle

The relevance of dumping documents on the Court is underpinned by the adversarial nature of the Nigerian jurisprudence which was inherited from the common law. Thus, the judex is constitutionally prohibited from embarking on an inquisitorial forensic examination of documents tendered in evidence outside the court room. The underlying reason for the above is that it is not the duty of the Court and the Court cannot suo motu descend into the arena of conflict or assume the biased responsibility of tying a party’s document to his case.[8] Therefore, tendering a document during trial does not relieve a party from the legal duty of linking his document to specific area of his case.[9]

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Front-loading of Court Processes, Rules of Court versus Dumping of Documents

A bird’s-eye view of the dumping principle will create a wrong and erroneous impression that it undermines the novel front-loading process as encapsulated in Rules of Court in various jurisdictions in Nigeria. Thus, Order 36 Rule 1(4) of the High Court of Lagos State (Civil Procedure) Rules, 2019 provides that the oral examination of a witness during evidence in-chief shall be limited to confirming[10] his deposition and tendering of disputed documents or other evidence referred to in his deposition.[11] However, by the very nature of the dumping principle, a witness is not only expected to confirm his deposition(s) and tender disputed documents but also link the documents to the specific areas of his case as presented by way of explanation.

Likewise, the above argument also ex-rays the dichotomy between the Rules of Court and the Evidence Act, 2011 as far as admissibility of document is concerned. Although, parties to an action are bound to obey and comply with the rules of court, however, it is the Evidence Act, 2011 not the Rules of Court, that governs the admissibility of documents in evidence[12].

Therefore, it is in the process of linking these documents that a witness show how they support the facts pleaded or the allegations made in the pleadings.[13] Though, the main objective of tendering documents in bulk is to ensure speedy trial but that does not prevent the party involved from doing the needful. See A.C.N v. Lamido (2012) 8 NWLR (Pt.1303) 560 at 584-585 (SC). Thus, there is a distinction between tendering bulk exhibits on the one hand and dumping exhibits on the other hand. See Buhari v. I.N.E.C. (2008) 4 NWLR (Pt.1078) 546.

Leeway to avoid being caught in the Dumping Melee

The rule against dumping has come to stay, since it is tied to section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and rules of admissibility in the Evidence Act, 2011. There is a need to strike a balance between the Rules of Court and the Constitution qua the Evidence Act, 2011 regrading tendering documents and demonstrating their evidentiary value. This writer is of the view that a witness can in his witness depositions link the documents he is tendering in evidence to specific area of his case.[14]

In the case of MTN Nigeria Communication Ltd. vs. Corporate Communication Investment Ltd (2019) 9 NWLR (Pt.1678) 427 at 454-455, paras G-F, the Supreme Court per Kekere-Ekun, JSC stated thus:

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Learned senior counsel for the appellant contended that the respondent failed to lead evidence to demonstrate the terms of exhibit A. With due respect to the learned silk, he appears to have overlooked the fact that the front-loaded deposition on oath of a witness in support of his pleadings, constitutes his evidence in chief in the proceedings. ….The terms of exhibit A were therefore pleaded, and exhibit A was before the court to support the pleading along with the written deposition of the witness. The evidence in chief of CW1, as per his written deposition made on 13/5/2011 and his evidence under crossexamination were summarized by the learned trial Judge at pages 148-158 of the record. It is therefore not correct, to contend that the terms of exhibit A were not demonstrated before the court.”

Also, in the case of A.C.N v. Nyako[15], Ogunbiyi, JSC (as she then was) at pages 426-427C-B of the law report noted that it is the failure of a party to call a witness to provide the necessary nexus between the documentary evidence it tendered and the particulars purpose or aspect of the case of the party tendering same that makes the difference between the notion of dumping exhibits on the one hand and tendering bulk exhibits on the other.[16] The Apex Court also noted that none of the documents tendered in that case were linked to the oral evidence of the witness as rightly submitted by the 1st and 2nd respondents’ learned counsel.[17] It was on this point that her Lordship stated that there was nothing in the depositions of the witnesses tying the documents with the allegations made in the petition nor did any of the witnesses mention any of the documents dumped on the tribunal.[18] Thus, linking the documents to be tendered makes for economy of time, the possibility of linking the documents to the specific area of a party’s case and achieve speedy trial. In other words, the purpose and purport of documents can still be linked to a party’s case in the deposition of his witness.

What is more, there is no distinction between the viva voce evidence of a witness and his written deposition. It is the evidence of a witness in writing that is confirmed and adopted at the witness box. The corollary to the above argument is that pleadings is not evidence and thus there must be a distinction between facts pleaded by a party which may be in skeletal form and the evidence to support the said facts.[19]

Conclusion

The rule against dumping of documents on the Court did not come to abolish the novel provisions in the Rules of Court in various jurisdictions. However, its essence is to fulfil the law having regard to the fair hearing principle in the CFRN and the rule on admissibility under the Evidence Act, 2011. Therefore, a party can still take advantage of the provisions of the Rules of the Court through his witness depositions, while at the same time linking his documents to specific areas of his case.

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Recommendation

It is therefore recommended that when preparing witness depositions, both the witness, who is the author of the witness deposition and his Counsel, should ensure that the exhibits or documents to be tendered in evidence are properly linked in the witness deposition to avoid such documents being rejected by the Court.

Adolphus is a Legal Practitioner at Mike Igbokwe (SAN) & Co.

Footnotes

[1] William Shakespeare’s Macbeth – Act 4 Scene 3.

[2] See A.C.N v. Nyako (2015) 18 NWLR (Pt.1491) 352 at 394-395 G-H, A-C(SC); Audu v. INEC (2010) 13 NWLR (Pt.1212) 456 at 520D-G, F-H (SC).

[3]  See Esezobor v. Said (2018) LPELR-46653(CA).

[4] See Ladoja v. Ajimobi (2016) LPELR – 40658 (SC).

[5] See Omisore v. Aregbesola (2015) 15 NWLR (Pt.1482) 205 at 223 and 332(SC).

[6] See Ucha v. Elechi (2012) 13 NWLR (Pt.1317) 330 at 360.

[7] See Ishola v. UBN Ltd [2005] 6 NWLR (Pt.922) 422 at 428.

[8] See APGA v. Al-Mukura [2016] 5 NWLR (Pt.1505) 316 at 342-344D-B; 345D-H.

[9]  See C.P.C V. INEC (2011) 18 NWLR (Pt. 1279) 493 at 546 – 547.

[10] Note that the Federal High Court Rules used the words ‘confirming and adopting’.

[11]  See Order 20 Rule 1(3) of the Federal High Court, Rules, 2019; Order 32 Rule 1(3) High Court of Ogun State (Civil Procedure) Rules, 2014; Order 32 Rule 1(3) of the High Court of Rivers State (Civil Procedure) Rules, 2010; Order 33 Rule 1(3) of the High Court of Delta State (Civil Procedure) Rules, 2009.

[12] See Dunalin Investment Ltd. v. BGL Plc [2016] 18 NWLR (Pt.1544)262 at 340, paras.D-E, 341, paras.D-E; 342-343, paras.H-A

[13] See Bababe v. F.R.N. (2019) 1 NWLR (Pt.1652)100 at 130E-F & B-C(SC).

[14] See A.P.G.A. v. Al-Makura [2016] 5 NWLR (Pt.1505)316 at 340-342(SC); Ugochukwu v. Cooperative & Commerce Bank (Nigeria) Limited (1996) 6 NWLR (Pt.456) 524 at 539D-F(SC)D.

[15]  Foot Note 1 (supra) at 426-427, paras. C-B..

[16] See the case of Buhari v. I.N.E.C. (2008) 12 SC page 1, (2008) 4 NWLR (Pt.1078) 546.

[17] See AUDU vs. I.N.E.C. (2010) 13 NWLR (Pt.1212) 456.

[18] See A.P.G.A. vs. Al-Makura [2016] 5 NWLR (Pt.1505)316 at 340-342(SC); Ugochukwu v. Cooperative & Commerce Bank (Nigeria) Ltd. (1996) 6 NWLR (Pt.456) 524 at 539D-F(SC)D.

[19] 20 See, Francis Okagbue & 2Ors. vs. Janet Romaine (1982) 5 S.C. 133 at 154-155 (SC)

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