The Rule That Evidence on Facts Not Pleaded Is Inadmissible Even Where Such Evidence Is Extracted Through Cross-Examination: Any Exceptions?
One of the well-known rules of civil litigation is the settled principle that parties/litigants are bound by their pleadings, so that, any evidence on facts not pleaded, whether extracted during evidence in chief or under cross-examination, goes to no issue and ought to be disregarded. Indeed, such evidence is inadmissible, and even where it was wrongly admitted during trial, it is bound to be expunged by the court in its judgment or on appeal. See the cases of Sommer v Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548; Nwawuba & Ors v. Enemuo & Ors (1988) 2 NWLR (Pt. 78) 581; Aniemeka Emegokwue v. James Okadigbo (1973) 4 S.C. 113. The rule is usually invoked during trial when a party seeks to tender a document through a witness or when a party seeks to extract certain answers from a witness to prove or disprove a fact. The rule applies whether during examination in chief, cross-examination, or re-examination of a witness. The basis for this rule is to ensure that parties are certain about the matter that had fallen in controversy between them and to avoid their being taken by surprise by the other party. This can be gleaned from one of the oldest cases on the point – George v. Dominion Flour Mills Ltd. (1963) 1 SCNLR 117; (1963) 1 A11 NLR71 at 77, where the Supreme court in explaining the basis for the rule, held as follows:
“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard; but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met, which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings and save either side from being taken by surprise. Incidentally, it makes for economy. The plaintiff will, and indeed must, confine his evidence to those issues; but the cardinal point is the avoidance of surprise”.
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Pleadings refer to the formal documents in which a party to a suit either sets forth or responds to allegations, claims, denials or defences. Examples of pleadings are Statement of Claim, Statement of Defence, Reply, Counterclaim, Defence to Counterclaim, etc. See the cases of N.A.C.B. Ltd. v. Achagwa (2010) 11 NWLR (Pt. 1205) 339 and Pascutto v. Adecentro (Nig.) Ltd (1997) 11 NWLR (Pt. 529) 467 at 481
Exceptions to the Rule:
Notwithstanding the rationale behind the rule that evidence on facts not pleaded is inadmissible, one noticeable practice among opposing counsel has been to rely on the rule to raise technical objections when their witness is being cross-examined. Sometimes, judges also rely on the rule to restrict crossexamination. This leaves one to wonder if there are no exceptions to the rule especially with respect to crossexamination. As the Court of Appeal, per Ndoma-Egba JCA, rightly observed in the case of Nwuka v. Nwaeche (1993) 5 NWLR (Pt. 293) 295 at 309, paras E-G:
Pleadings are brief statement of the facts relied upon by the plaintiff or the defendant for their case. Evidence in support of these cannot be pleaded. Neither could matters anticipated on cross-examination in practice, be made part of the pleadings. Answers to questions are not usually known beforehand. They could not be made part of the pleading…The learned trial judge had cut in a number of times in course of cross- examinations of witnesses and made factual conclusions rather too early on matters that are essential to the determination of the case before him. It is settled that too many of such interjections could disrupt justice.
From the above decision, two points are clear: First, only facts are pleaded. So, objections based on this rule will not be sustained when the contention of the objector is not that a fact sought to be established was not pleaded but merely that the evidence of same was not pleaded. Secondly, there is need for the rule to be applied with caution as regards cross-examination because its misapplication could disrupt justice. Be that as it may, it is interesting to note that the rule does admit of some exceptions. These exceptions can be gleaned from the rules of court, the Evidence Act, 2011 and, most importantly, judicial authorities.
- When the evidence sought to be tendered touches on the issue of jurisdiction: Jurisdiction is the threshold and lifewire of any case.Any evidence which touches on the jurisdiction of the court will not be rejected simply because the facts in relation to which it is sought to be tendered was not pleaded. This exception was applied in the case of Mobil Prod. Nig. Unlimited. v. LSEPA (2001) 8 NWLR (Pt. 715) 489 at 501. In this case, the court held that the issue of pre-action notice need not be pleaded in the defence of the respondents before it could be raised and entertained.
- Evidence to prove over-voting in an election is admissible even when over-voting was not pleaded: This exception was underscored by the Court of Appeal in Agomuo v. Ogwuegbu (1999) 4 NWLR (Pt. 599) 405 at 413 where the court, per Aderemi JCA at paras B-D held as follows:
‘It has been contended that over-voting was not pleaded, and the lower tribunal therefore over-stepped its bounds, in law, by entertaining it. The law is sacrosanct that facts not pleaded evidence led in proof thereof goes to no issue. But election petitions are special specie of cases. In section 87(1) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 it is provided: “Subject to sub-section (2) of this section, if the Election Tribunal determines that a candidate who was returned as elected was not validly elected on any ground, the Election Tribunal shall nullify the election.” Over-voting is undoubtedly one of such grounds on which and Election Tribunal can overturn an election result. If over-voting is not an averment in an election petition and evidence was led before an election tribunal which points conclusively that there was over-voting, it seems to me clear that by virtue of the aforementioned section 87(1) an election tribunal can, notwithstanding that a petition is devoid of the averment, nullify the election.’
- Evidence in proof of additional facts that explain pleaded facts is admissible.In the case of Eco Bank v Aghazu (2019) LPELR-46966 (CA), the Court of Appeal held that, if in the explanation of a fact pleaded, a witness begins to supply additional facts, evidence elicited through cross-examination on the additional facts supplied (even though not pleaded) is admissible.
- Evidence in support of facts not pleaded by a defendant but which set up a defence for him against an allegation in the plaintiff’s pleading is admissible. This exception was recognized in the case of Orjiekwe v. Orjiekwe (2002) 6 NWLR (Pt. 762) 31 at 49, paras A-B, where the court of appeal, per Muhammad (JCA)while interpreting Order 9 rule 38 of the Anambra State High Court Rules 1988 held as follows:
“Finally, by virtue of rule 38, it is possible for a party to a suit to lead evidence on facts that had not been pleaded. A defendant by this rule is entitled to disprove any allegation in the plaintiff’s pleading that had not been admitted in the statement of defence. It is thus possible to set-up a defence which though not expressly stated in his pleadings, is consistent with the pleadings once element of surprise would not be sprang at the plaintiff.”
The said Order 9 rule 38 of the Anambra State High Court Rules 1988 upon which the court relied in giving effect to the above exception provides that:
“The defence of a defendant shall not debar him at the hearing from disproving any allegation of the plaintiff not admitted by the defence except where the defence or from giving evidence in support of a defence not expressly set up by the defence is such as in the opinion of the court ought to have been expressly set up by the defence or is inconsistent with the statements thereof, or is, in the opinion of the court, likely to take the plaintiff by surprise and to raise new issues not fairly arising out of the pleadings, as they stand, and such as the plaintiff ought not to be then called upon to try.”
The above provision is also contained in the extant rules of the High Courts and can be relied upon to give effect to this exception. Interestingly, the Supreme Court in the case of Ipinlaiye v. Olukotun (1996) 6 NWLR (Pt.453) 148 at pages 170, paras A-D, per Iguh JSC had also applied this exception when interpreting the provisions of Order 14 Rule 15 of the High Court (Civil Procedure) Rules, 1977 of Ondo State which is similar to Order 9 rule 38 of the Anambra State High Court Rules 1988. The apex court held as follows:
“…This rule appears to provide a very wide umbrella for the admission of documents not previously pleaded, and the submission that Exhibits A and A1 are admissible under it would appear to be well taken since those exhibits seek to disprove the allegation that the appellant owns the land in dispute, which averment is denied by the respondent. The circumstances under which their admissions, can be excluded under the exception clause in the Rule, do not here apply. There can be no doubt that the above Rule is as wide as it is all embracing and I agree entirely with the court below that it provides a wide cover under which Exhibit A, A1 became admissible in the proceeding since it sought to disprove the ownership of the land in dispute by the appellant, a claim set up by the said appellant in his pleadings and expressly denied by the respondent.”
However, the conditions for the application of this exception are: (a) the allegation of fact must not have been admitted in the defendant’s pleading; (b) the new defence sought to be established must be consistent with the defendant’s pleading; and (c) the new defence is not such that will spring up surprises at the plaintiff.
- A statement previously made in writing by a witness need not be pleaded before it can be used to contradict or discredit his evidence on oath before the court.The Supreme Court in the case of Ipinlaiye v. Olukotun (supra) at pages 169, paras D-H, per Iguh JSC laid down this exception when it held as follows:
Still on the admissibility of Exhibit A, Al, attention may further be drawn to sections 199,209 and 210 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 which provide as follows – ” 199. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters, in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.” “209. A witness may be cross-examined as to previous statements made by him in writing relative to the subject matter of the trial, without such writing being shown to him, but if it is intended to contradict such witness by the writing, his attention must, before such contradictory proof can be given, be called to those parts of the writing which are to be used for the purpose of so contradicting him: Provided always that it shall be competent for the court at any time during the trial, to require the production of the writing for its inspection and the court may thereupon make use of it for the purpose of the trial, as it shall think fit.” “210. The credit of witness may be impeached in the following ways by any party other than the party calling him or with the consent of the court by the party who calls him…by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.” (All Italics supplied for emphasis) A close study of the above sections of the Evidence Act clearly discloses that the admission in evidence, under cross-examination, of Exhibit A, A1 by the trial court was completely permissible and unimpeachable as a statement previously made in writing by the plaintiff to contradict or discredit his evidence on oath before the court.”
The provisions of the old Evidence Act upon which the apex court relied to lay down the above exception can also be found in sections 232 and 233 of the extant Evidence Act of 2011. In Ezewusim v. Okoro (1993) 5 NWLR (Pt. 294) 478 at 493-494, paras H, A-B, per Edozie JCA, the court of appeal held as follows:
The purpose of cross-examination is either to obtain from one’s adversary facts favourable to a party’s case or to weaken or demolish an opponent’s case. In respect of the former, any material fact elicited under cross-examination must be pleaded, failing which, evidence in respect thereof is not admissible here, however, the purpose of cross-examination is to impeach credibility and credit, it seems to me inconceivable having regard to a wide range of matters on which questions could be asked, that facts relating to such matters should be pleaded. I am inclined to agree with the submission of the learned counsel to the appellant that a statement made by a witness in a previous judicial proceeding is admissible in a subsequent judicial proceeding to contradict him without the statement being pleaded.
From the above, it is submitted that the rule that evidence on facts not pleaded is inadmissible should not be applicable where the evidence in support of such facts is being tendered for the purpose of discrediting the witness or impeaching his credit, as the case might be. See also Adenuga v. Ilesanmi Press (1991) 5 NWLR (Pt. 189) 82 Per ADIO, J.C.A. at page 94, paras. F-G:
- Where evidence on facts not pleaded is admitted, howbeit wrongly, the evidence will become properly admitted if the party who tendered the evidence later amends his pleadings to reflect facts in respect of which the evidence was admitted.
This exception can be traced to the case of Akaninwo v. Nsirim (2008) 9 NWLR (Pt. 1093) 439 at 472-473, paras H, A-B, where the learned law lord, Niki Tobi JSC stated as follows:
Normally, evidence not pleaded will go to no issue. There are however instances when as a result of inadvertence or carelessness of counsel for the opposing party, evidence not pleaded goes into the record of the trial Judge. In such a situation, counsel, the originator of the evidence through his witness, conscious of the fact that the evidence not duly pleaded, could be expunged from the record at the judgment stage, formally applies for the amendment of the pleadings. The trial Judge must take into consideration whether the evidence is relevant in the light of the claim and the reliefs sought.”
In the instant case, the Supreme Court allowed an application for amendment of pleadings the purpose of which was to reflect a fact which had earlier been elicited during cross-examination.
- Where the evidence is sought to be used to debunk facts already pleaded by the other party, the party extracting or tendering it need not to have pleaded the facts. This exception can be gleaned from the case of Bamgboye v. Olanrewaju (1991) 4 NWLR (Pt. 184) 132 at 155 where the Supreme Courtper Karibi- Whyte J.S.C., as he then was, made the following observation:
“It seems to me consistent with principle that evidence led during cross-examination on issues joined is not inadmissible, merely because such evidence is not supported by the pleading of the party eliciting the evidence. For instance, in the instant case, although the defendants did not plead the fact that all the sections of the Okesan family had a common ancestor, the reference to the fact that they were all of the same family by paragraph 6 of the statement of claim was sufficient for the admission of any evidence establishing or negating that fact. And this is so whether on cross- examination.”
See also the case of Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 203
- When a fact is in issue, evidence in proof or otherwise of that fact can be elicited during cross-examination notwithstanding that the fact was not pleaded.This exception was boldly laid down by the Court of Appeal in the case of Bida v. Abubakar (2011) 5 NWLR (Pt. 1239) 130 at 179, paras E-F, where his lordship, Denton-West (JCA) held as follows:
In as much as I agree with the appellants that evidence not pleaded but extracted during cross-examination is inadmissible as earlier stated in Nwawuba & Ors v. Enemuo & Ors. (1988) 5 SCNJ 154 at167, (1988) 2 NWLR (Pt. 78) 581; Isheno v. Julius Berger (Nig.) Plc (2008) All FWLR (Pt. 415) 1632 at 1653 D-F, (2008) 6 NWLR (Pt. 1084) 582; however, when a fact is in issue or in contention the truth of such facts can be elicited during cross-examination…”
- Evidence in relation to unpleaded subordinate facts is admissible:Subordinate facts are facts which, even though they do not go to the substance of a matter, they support the main facts in issue. Whereas a party is required to plead the main facts in issue, he is not bound to plead subordinate facts. This can be gleaned from the case of Eke v. Okwaranyia (2001) 12 NWLR (Pt. 726) 181 at 203, paras G-H, per Uwaifo JSC:
The purpose of pleadings is to bring the parties to issues that arise so that either part may know the real points to be discussed and decided when the case comes on for trial. In other words, the issues to be resolved are defined beforehand. But they must be issues upon facts which are relevant for pleading purposes in the sense that they go to the substance of the matter calling for a decision; and there is no obligation as a pleading procedure to set out the subordinate facts that may help as evidential material. In that case, the parties must only plead in such a way as to prevent surprise when leading evidence in support of their case.
In the case of Okagbue v. Romaine (1982) NSCC (Vol.13) 130 at 135 -140, (1982) 5 SC 133, the plaintiff in the statement of claim (respondent in the appeal) pleaded (a) persons who were the earliest settlers on the land in dispute in Onitsha; (b) that the land was formerly held by the Royal Niger Company; and (c) that she occupied the land as land which originally belonged to the Mgbelekeke family although at one time or the other it came into the possession of the Royal Niger Company. During trial, the Respondent however sought to lead evidence to show how the Royal Niger Company came to possess the land in dispute; how and when they surrendered the same to the Government; and how the Mgbelekeke Family came to own the land so surrendered. The Appellant objected that the Respondent could not do so because those facts were not pleaded. The supreme court held that it was ‘unnecessary’ for the Respondent to plead those facts.
As shown from the foregoing, the rule that evidence on facts not pleaded is inadmissible is not without some exceptions. It is submitted that where a party’s case falls within any of the aforementioned exceptions, an important piece of evidence should not be rejected on the mere ground that the facts in relation to which the evidence was sought to be tendered were not pleaded.