The process of tendering documentary evidence in court during trials, be it
civil or criminal is rather a well settled one. This assertion is supported
by a chain of decisions of our superior courts of records. While the
Evidence Act and the various rules of the court make provisions for the
necessary conditions to make documents relevant and admissible in trials,
case law has come to fill the void of the procedural aspect of tendering
those documents in the course of trial. This paper attempts to re-echo the
firm principle in our law and also raise a bit of concern with regards to
the ‘point of no return’ while tendering a document during trials.

It is argued that although the law allows a party who intends to tender a
document to withdraw the document before joining issues upon the objection
or objections on the document, the withdrawal at that point seems somewhat
questionable and synonymous with eating one’s cake and having it at the same
time. It concludes therefore that a certain form of rule should be provided,
albeit not too technical one to allow for fair play between the parties in

Consider this fictional scenario in court. You are before a High Court as
the claimant’s counsel and the case is fixed for hearing of your case. Your
sole witness has been led to adopt his witness statement on oath and all
that was left for you to do was just to tender the only document through the
witness. This document you intend to tender is a photocopy of a private
document, the original of which has been lost and all efforts to obtain the
original document have been in futility. However, for one reason or the
other, the witness totally forgot this point and you thereafter intended to
tender the said document anyway. Counsel to the defendant promptly raised an
objection to the admissibility of the document and prays the court to mark
it as rejected. Before replying to the defendant’s counsel’s objection, you
promptly applied to withdraw the document
before joining issues on the admissibility of the document.

I have created the above scenario to illustrate a typical example where the
issue being discussed may occur. The latter part of the scenario will be the
focus of this effort. The questions to be asked include; when will issues be
deemed to have been joined to preclude withdrawal of a document being
tendered in evidence? Is it fair enough to listen to the possible objection
of counsel on the document sought to be tendered before asking for a
withdrawal of that document? Will it amount to a breach of fair hearing if a
court refuses to allow counsel withdraw his document sought to be tendered
at that stage? These questions will be given attention in due course.

First, we have to agree that the relevancy and admissibility of a document
are governed by the Evidence Act, 2011. Where a document is found to be
relevant but not admissible, such document ought to be marked rejected by
the court. The Supreme Court in Abubakar v. Chuks (2008) All FWLR (Pt. 408)
207 at 221 succinctly reiterated the laid down principles of relevancy as it
relates to admissibility and where the admissibility of such document is
supported by case laws.

Now coming back to the focus of this paper. The issue centres on when a
person tendering a document exercises a right of withdrawal when an
objection has been raised to the admissibility of the document. It would be
also important to restate the point where an objection can even be raised to
the admissibility of a document at the first instance. The Supreme Court in
a plethora of cases has continuously held that the proper time to raise an
objection to the admissibility of a document is when it is sought to be
tendered in evidence. Where an adverse party sleeps over his right to raise
the objection at the necessary time, he cannot be heard complaining about
the admission of the document, albeit with an exception to documents which
are inherently inadmissible in the way they are. See the Case of Etim &
Ors v. Ekpe & Anor (1983) 14 NSCC 86 at 96 where the court per Aniagolu
JSC (as he then was) stated thus;

“It is a cardinal rule of evidence, and of practice, in civil as well as
in criminal cases, that an objection to the admissibility of a document
sought by a party to be put in evidence is taken when the document is
offered in evidence. Barring some exceptions where  by law certain
documents are rendered inadmissible (consent or no consent of the parties
notwithstanding) for failing to satisfy some conditions or to meet some
criteria, the rule still remains inviolate that where objection has not
been raised by the opposing party to the reception in evidence of a
document (or other evidence see: Chukwura Akunne v. Mathias Ekwuno (1952)
14 W.A.C.A. 59), the document will be admitted in evidence and the
opposing party cannot afterwards be heard to complain about its admission
(See Alade v. Olukade (1976) 2 S.C. 183 at 188 -9;
The court then went ahead to give some of the exceptions to be an
unregistered document which is expected to be registered by law, unsigned
deed of grant (or copy) and unstamped instrument or document requiring to be
stamped, unless it may be legally stamped after execution and the proper
penalties paid.

Where no objection is raised at this crucial point, the party is expected
to formally seek to tender same in evidence and upon which the court is
entitled to mark it accordingly. Where there is an objection however, a
response is required from the party tendering the document and a further
reply on points of law where necessary from the original objector, after
which the court is entitled to rule on its admissibility. It should be noted
here that once the party who seeks to tender the document replies to the
objection, issues are deemed to have been joined, hence, a point of no
return is established/reached. The subsequent obligation of the judge at
this stage is to treat the document either as admitted and marked it
‘tendered and admitted or as rejected and marked it as ‘tendered but

Where issues have not been joined on the admissibility or otherwise of a
document, such document can be withdrawn by the party tendering it. The
Supreme Court has already given validity to this position of the law. The
peculiar issue was graphically reported in Oguntayo v. Adelaja (2009) All
FWLR (Pt. 495) 1626. In the case, the 1st respondent’s counsel
had sought to tender a certified true copy of the court proceedings in suit
No. HCJ/6/85 dated March, 1989 through a higher register, High Court of
Justice, Ijebu-Ode who was subpoenaed to tender the proceedings. Upon
tendering the document, the appellant’s counsel promptly objected to the
admissibility of the document as, according to him, it is an evidence in a
previous proceedings. He cited the case of Lagos State Development property
Corporation v. Adold / Stamn Inter (Nig) Ltd. (1994) 7 NWLR (Pt. 358) 545 at
561 and submits that the proceedings sought to be tendered contravened
section 34 of the Evidence Act (Now section 46 of the Evidence Act, 2011)
and therefore irrelevant and inadmissible. Other counsel on the other part
also objected to the admissibility of the proceedings, while associating
themselves with the earlier objection.

Without joining issues with the objectors, the 1st respondent’s
counsel sought to withdraw both the piece of evidence and the witness. This
however did not go down well with the objector to the admissibility of the
document who protested that the document ought to be marked rejected. The
insistence upon the withdrawal of the document by the 1st
respondent’s counsel therefore led the court to take a stance. In his
ruling, the trial court judge took the view that the fact that the 1st
respondent’s counsel had not replied to the objection against the
admissibility of the document did not preclude him from making a ruling on
the admissibility. The court then considered the document inadmissible and
marked it rejected accordingly.

On appeal, the issue was stretched as far as going to a denial of fair
hearing. The 1st respondent (appellant at the court of appeal)
had maintained that the marking of the document as rejected, even where he
had neither joined issues nor offered any argument on the admissibility of
the document was tantamount to a denial of fair hearing. The court of appeal
allowed the appeal and agreed with the appellant. The position was further
restated by the Supreme Court which also felt that the trial court got the
procedure of rejecting the evidence wrong (although it allowed the appeal
and felt the decision didn’t amount to a miscarriage of justice). In the
words of the court;

“It is clear from the proceedings that PW2, Kolawole Olufowobi, a higher
Registrar of the High Court of Ijebu Ode was only called to tender the
proceedings in case No. HCJ/6/85. The defendant’s counsel objected to its
admissibility. The plaintiff’s counsel Chief Coker chose not to reply to
the objection even though he had every ample opportunity to do so. Instead
he applied to withdraw the evidence and the witness. What the trial court
ought to have done was to have asked him to reply to reply to the
objection so that  it could properly rule on the admissibility of the
document or the court would have granted the request to withdraw the
evidence and the witness. The trial court was clearly wrong in marking the
document rejected when argument had not been concluded on its
In a swift way of answering another poser raised above about the issue of
breach of fundamental human right of fair hearing, the Supreme Court however
did not agree with the court of appeal that the marking of the exhibit as
rejected without allowing counsel to the 1st respondent argue
upon the admissibility or otherwise of the document amounts to the breach of
fair hearing. This position was succinctly put by the Court in the following

“With the greatest respect, the court of Appeal misunderstood the purport
of the proceedings sought to be tendered and wrongly castigated the trial
court for denying the 1st respondent’s counsel the opportunity
to reply to the objection on the admissibility of that document. The
learned counsel for the 1st respondent who tendered the
document heard the objection and had every opportunity to reply to it. For
reasons best known to him, he refused to reply. To my mind this was
abandonment of his right to reply… It can be seen from my analysis above
that nobody violated the 1st respondent’s right of fair hearing
and no miscarriage of justice resulted from the rejection of the
Thus, one could safely conclude, in line with the court’s decision, that
procedurally, the trial court was wrong in marking the document rejected
when the 1st respondent wanted to exercise his right of
withdrawal. However, on the same token, it cannot be said that the right to
fair hearing of the 1st respondent was breached as he was given
an opportunity to be heard. Nonetheless, the primary purpose was reaffirmed
by the court and this was followed in a later case of Akanbi v. Osset (2012)
All FWLR (Pt. 657) 785 at 799, where the Court of Appeal per Abdullahi JCA
applied the principles in Oguntayo’s case on both the proper time within
which to apply for the withdrawal of the document and when the denial of
withdrawing same would amount to a breach of fair hearing.

Other decisions have also applied the principle, including but not limited
Ihekweme & Anor v. Obua (2013) LPELR-22520(CA) and HAASTRUP V. RORO TERMINAL CO. LTD (2003) 7 NWLR 879 358 At. 364 – 365 H –
The principle as laid down by the Supreme Court in Oguntayo’s case however
was not a unanimous one. Although being a dissenting opinion, Niki Tobi JSC
(as he then was) held a rather contrary view while expressing his dissent to
the judgment. His lordship’s view is rather described as one trying to avoid
the use of technicalities or tricks or gimmicks in law practice. For, if
counsel is allowed to withdraw a document as many times as he wants, he is
sure to scale through as many objections as possible, cause delay and
probably seek to amend his pleadings. All he has to do is to listen to the
objection raised, withdraw the document and perfect it for the purpose of
retendering it at another time. This, in the words of Tobi JSC amounts to
tricks or artifice to outsmart the opponent. He states the inappropriateness
in the following words;

“With respect, I do not agree with the Court of Appeal. I agree with the
High Court. In my view, the moment a document is tendered and its
admissibility is opposed by the opponent, the party tendering the document
should satisfy the court why the document should be admitted. If the party
fails to so satisfy the court, the document can be rejected. This is what
the learned trial judge did and I cannot fault him.
In litigation, parties are required to place their case honestly, frankly
and openly before the court. Parties are not expected to involve
themselves in tricks or artifice to outsmart the opponent. The well
settled principles of equity will not allow that. Litigation is not a
forum for playing games. By applying to withdraw the witness and the
document already tendered, the respondent exhibited some kind of smartness
on the appellant. As he cannot eat his cake and still have it intact in
his hands, the learned trial judge correctly marked the document
This dissent from Tobi JSC (as he then was) represents the opinion of the
writer, albeit with an understanding of certain difficulties which it may
pose. For the purpose of emphasis, his Lordship, Tobi JSC had criticized
playing hide and seek in litigation in another case of
(PT 416) 1996 at 2011

where he stated as follows;

“Litigation is not the children’s game of hide and seek. It is not a game
of smartness. It is not a game of artifice or cunning display of a smart
conduct designed to overreach or outsmart the adverse party. On the
contrary, litigation is decent, open, and not deceitful process of making
and defending claims in a court of law. The art and craft of even the most
litigious person does not allow him to set a trap with a bait to lure the
adverse party, as if he is a fish. That should be left to the fisherman or
the keeper of an aquarium; not the courts”
The necessary question is, would it be fair enough to keep retendering a
particular document until it is perfected? Would it not be a waste of time
and cause delay in litigation? Since parties are already allowed to fully
prepare for the presentation of their cases, diligence and professionalism
dictates that one should have crossed his or her t’s and dotted the i’s
before bringing a suit to court or entering defence. A particular instance
would have made this position more glaring, if for instance, pleadings would
have to be amended before the perfection of the document would be
appropriate. In jurisdictions like Lagos State where amendments are not
allowed at later stages of the proceedings, would it not become too
difficult to achieve? These questions I suppose would not necessarily occur
if there was no difference in ‘tendering a document’ and ‘applying to tender
a document’ in court as stated in Oguntayo’s case.

On the other hand also, it would not be too wise to shut out a litigant
totally from withdrawing a document which is inherently inadmissible due to
counsel’s negligence. As the courts have stated in a plethora of cases that
the courts will not visit counsel’s negligence or mistake on litigants.
Then, if these two positions are put on a scale, it is in the writer’s
opinion that a certain midpoint has to be made to allow for a fair playing
ground in litigation.

It is suggested that this rule of withdrawing a document once an objection
is raised to its admissibility should accommodate certain exceptions. More
particularly, litigants should be allowed to withdraw a document only on one
occasion and no more. Where a party is allowed to withdraw for more than
once, the situation is at best described in the line of the dictum of Tobi
JSC above as simply of hide and seek, an equivalent of trial and error among
mathematicians. Where another objection has been raised to the admissibility
of a document for the second time, counsel should owe the court a duty for
arguments upon its admissibility or otherwise. For documents that are
inherently inadmissible in law, and cannot be remedied at all, for instance,
an unregistered deed which requires registration to make it admissible, the
judge on his own should be allowed to prevent a withdrawal and mark it
rejected accordingly, save, it is meant to be used for other purposes.

It is also suggested that where the issue with the admissibility of the
document is solely on the fact that proper foundation has not been laid for
its admissibility, a right of withdrawal should be allowed. Otherwise, a
rejection of such piece of relevant evidence may lead to technicalities
which the party seeking to tender it may not find convenient to appeal
against. In such circumstances, the party should be allowed to retender the

In carving out these exceptions therefore, it is further suggested that the
exceptions be reduced to legislation, particularly the Evidence Act or the
rules of Court. This suggestion is premised on the position that any
exceptions to be created to the rule of procedure can be appropriately made
by legislation.

Conclusively, the foregoing has been an attempt to re-echo the stance of
the courts in allowing a party to withdraw a document upon which an
objection has been raised against and which issues have not been joined
upon. The dissent expressed by Tobi JSC in Oguntayo’s case has however
opened a new vista for exploration and the development of our law. For, what
better way can the law be advanced if not with dissenting opinions? It is
the view of the writer that this dissent should be critically looked upon in
order to shut out sharp practices among advocates, albeit trying as much as
possible not to prevent a honest presentation of case and avoid visiting a
lawyer’s mistake on clients.


  1. Without mincing of word, I lack the stance to comment on this article, apart from the wisdom and industry deposited in it, the calibre of the author, to my mind, leave no doubt to conclude that no comment can surpass the opinion.

    While I agree in its entirety with the opinion of my learned senior, I intend to present another ground why the need for such legislation is dearly and deserving.

    In the field where I play the wing of a registrar, I have witnessed several pre-trial conferences where documents would have been settled but to a greatest surprise counsel will still rise and take objection while it is been tendered. Reference here is to the process where the judge, during pre-trial conference, ask counsel to check the exhibits and state wether they are objecting or not. Where there is no objection, the documents are deemed accepted and settled. But where there is objection, the court will directs that written addresses be filed in respect of the objection. I do not believe this practice is adopted in all the courts. Thus, I quickly suggest that all documents should be settled at the pre trial conference.

    The questions that comes to mind is that; Of what essence is Pre-Trial conference? I think the answers are not farfetched, the court in several decisions have stated the use and purpose of pre-trial conference as follows:
    "A pre-trial conference is an informal meeting at which opposing attorneys (counsel) confer with the judge, to work toward the disposition of the case by discussing matters of evidence and narrowing the issues that will be tried. The conference takes place shortly before trial and ordinarily results in a pre-trial order." Per AKEJU, J.C.A. (P. 20, Paras. B-D) in AfriBank (Nig) Plc V Ubana (2011) LPELR-3632(CA)

    In another decision of the court, it was expressed as follows:
    "It may be reiterated that the essence of a pre-hearing session can not be over emphasized. The process of pre-hearing or pre-trial process enables both the court and parties to scale down the areas of dispute by consenting on the important issues that require full investigation and trial. The process also allows for summary disposal of matters." Per SAULAWA, J.C.A.(P. 49, paras. A-G) in Onyedebelu V Nwaneri & Ors (2008) LPELR-4793(CA)

    Against this background, pre-trial conference is set to banish delay, technicalities and enhance speedy dispensation of justice. This is more-so in the light of the combine effect of Order 33 rules 2(2)(b) and rules 4(c,d,&l) and Order 1 rule 4(2) of the Kwara State High Court (Civil Procedure) Rules 2005. The later rule provides:
    "(2) Application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice."

    If the above position represent the truth of the matter, the very essence of the rules of court, the aim it sets to achieve and the purpose of front-loading system are in abeyance. It is however my opinion after aligning myself with my learned senior that all processes of laying foundation should be allowed through front-loading.

    Parties should be allowed to depose the facts of their foundations in their written statement on oath, adopt same and tendered the document. No objection on the admissibility of the document should be allowed. This in my view will put an end to the technicality of objecting to relevant documents that may be fatal to the justice of a case. This will further harness the court procedure, enable quick dispensation of justice and allow parties focus on the main issue.

    I will conclude by thanking the learned author for the opportunity given to benefit from his wisdom and industry. May Allah continue to enrich you in wisdom and knowledge.

  2. Thanks for your comments. I must confess that I have learnt a lot from it too. I think we should all be after justice rather than technicalities. but like some practitioners will also argue, if these technical rules are whittled down, what makes us different from laymen? that could be an argument for another time. Thanks a lot for your comment once again

  3. Unknown says:

    Learned Senior, your stance is what I have been working on for days now! May God reward your industry.
    To Mr. Aliyu, Sir, you have made useful input. God bless you.

  4. Unknown says:

    Learned Senior, your stance is what I have been working on for days now! May God reward your industry.
    To Mr. Aliyu, Sir, you have made useful input. God bless you.

  5. Anonymous says:

    I respectfully commend you to dig deeper as there seem to be a decision of the SC upholding your view.

  6. Thanks for your comment. I really appreciate.

  7. Thanks a lot sir. I will definitely do that and update as soon as I lay my hands on it.

  8. Hector says:

    Truly enriching and very detailed and i have learnt alot from this.

  9. Anonymous says:

    I just encountered this situation in court today. Sought to tender CDs of videos made from a phone in a magistrate court and the counsel on the other side raised objections as to lack of proper foundation and I sought to withdraw the exhibits and he asked rejected. We are to address court on it. However, I had not joined issues with him but the court is of the view that I cannot withdraw the exhibits at the time.

  10. Anonymous says:

    Thanks for this insightful article. I found it to be really helpful. I encountered the same issue while trying to tender the photocopy of a letter of demand written to the defendant- I omitted to lay foundation first and on realising my mistake, sought to withdraw same. So I started doing some research on this and found your article. I have really learnt a lot. Thanks once again.

  11. Unknown says:

    Can anyone here tell me if there is any authority that says a trial court should reject a CTC of its own record because a lawyer made a pencil mark on the said CTC? Thank you for responding.

  12. Thanks a lot for the feedback.

  13. Oh! really? I guess you should call the attention of the judge to Oguntayo v. Adelaja. Fair is fair. and justice should be paramount. That's in no difference to my opinion above. Thanks for your feedback

  14. Great to know! glad it was of help.

  15. Omeiza ,Esq says:

    Dear learned Author, thanks for this insightful article. I find it very helpful! Much as I am swayed by your opinion, I believe that the Courts have moved from the era of narrow technicalities . What should be paramount in the minds of the Courts is substantial justice. Consequently, I submit that application to withdraw a defective piece of evidence before issues are joined on it is a good law ! If it will serve the justice of the case , yes. However, in a manner of agreeing with you, such applications should not recur after the first time!! Thank you!!!

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