18 Jan




When an evidence is tendered (and before it is evaluated/admitted), either of the parties can object[1] to its admission on various grounds. The court is to consider such objections and either accept[2] or reject the piece of evidence[3]Salawu Jagun Olakade V Abolade Agboola Alade[4]. This is because admitting an evidence which ought not to be admitted or rejecting an evidence which ought to be admitted can have far reaching effects on the validity of the case-Ojengbede V Esan.

In Alashe V Ilu an uncountersigned plan was allowed in evidence contrary to Section 23 Survey Act. The plan was expunged on appeal for being inadmissible. In Minister of Lands Western Nigeria V Dr Azikiwe and Others an uncertified photocopy of a public document instead of a CTC was admitted. On appeal, the Supreme Court held that the document is inadmissible even though there was no objection. See also Yassin V Barclays Bank.

For example, in Umar V Bayero University[5] the court noted that a judgment based on an inadmissible evidence is a nullity. Note however Section 251 which provides; The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.

When an appeal court is confronted with the fact that an evidence had been wrongfully admitted or excluded at the trial, it may do any one of the following:

  1. Allow the decision to still Stand: this is especially where the evidence cannot be held to have affected the decision-Torti V Okpabi and Ors see Section 251 above. Same noted in Ajayi V Fisher Yassin V Barclays Bank. R V Edem and Ors[6], Timitimi V Amabebe, AG Kwata State and Others V Raimi Olawale[7].
  2. Reverse the Decision: especially if such wrongful admission/exclusion occasioned a substantial miscarriage of justice-Yesufu V ACB[8], Sierra Leone Dev Co V Maria Taylor[9] The decision may also be reversed if the appeal court is of the opinion that if the wrongfully admitted evidence is taken away, no other evidence would support the verdict of the lower court Reuben Shofoluwe V R[10] also where the appeal court is in doubt whether or not the erroneous admission was instrumental to the verdict. It may just set aside the judgment-R V Harry and Others[11]
  3. Order for a retrial: In Yesufu Abodunde and others V R[12] the court listed the circumstances where a retrial may be ordered. They include:

*Where the court cannot say whether there was a miscarriage of justice or not-Peter Ezeani and Others V Nneli Ezene and Others[13].

* That leaving aside the irregularity, the evidence as a whole discloses a substantial case against the appellant.

* Where the offence is not merely trivial.

* Where ordering a retrial would NOT be oppressive to the appellant.

* Where refusing an order for retrial would occasion a greater miscarriage of justice than granting it would-James Ikhane V COP[14].


[1] In Civil cases such objection should be raised at trial. While in criminal cases, the objection can be raised even on appeal- Salawu Jagun Olakade V Abolade Agboola Alade.

[2] In which case it proceeds to use the evidence.

[3] In which case the evidence is marked “rejected”.

[4] 1976 2 SC 183.

[5] 1988 4 NWLR 85.

[6] 1943 WACA 25. Where the evidence of a chief (though wrongfully admitted) did not affect the case.

[7] 1993 1 SCNJ 208 at 218.

[8] Where the judgment was set aside because it was based on a wrongfully admitted document.

[9] 1952 WACA 137 here the personal judgment of the trial judge was admitted instead of the evidence. The judgment was set aside.

[10] 1951 13 WACA 264.

[11] Remember that proof in criminal trial is beyond reasonable doubt.

[12] 1959 4 FSC 70.

[13] 1935 2 WACA 342.

[14] 1977 6 SC 119. R V Thomas conviction quashed as inadmissible evidence was admitted. Retrial ordered but same inadmissible evidence presented. Conviction uashed a second time being jeopardy.


Quite eccentric really

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