"The Appellants at the lower Court put in evidence and relied heavily on Exhibit C1. Exhibit C1 is reproduced at pages 248 to 264 of the Record of Appeal. Exhibit C1 from the Record of Appeal is a Record of proceedings in suit C/49/72 between CHIEF ADOMI MBINA V REYNOLDS - BREZINA BROWN & 4 ORS. It was the decision of the Cross River State High Court sitting at Calabar. That decision in clear terms established that the land in issue was owned by the Plaintiff. The Trial Court accepted the record of the judgment as exhibit but failed to apply the definite findings of the Court in Exhibit C1. The finding of the Lower Court in the instant case is that the land belongs to Mbina Abarikang Paternal Family. This finding cannot be supported in law and facts from the record before this Court.
This fact was dug and scooped up by the lower Court from the evidence of a witness in Exhibit C1 - a record of previous decision of the High Court of Cross River State without following the provisions of Sections 39 and 46 of Evidence Act, 2011. The sign post of this is that the Judgment of the lower Court in the instant case is perverse. A decision is perverse where the trial judge takes in to account matters which he ought not to have taken in to account or where he shut his eyes to the obvious or to prove facts in favour of a party, or distorts the facts or evidence in the case so as to tilt the scale of justice in favour of a party. It is equally perverse where a decision is speculative and not based on any evidence, or the Court shut its eyes to the obvious. See the cases of BARIDAN VS. STATE (1994) 7 NWLR (PT. 320) 250; OSUJI VS. EKEOCHA (2009) 16 NWLR (PT. 1166) 81 S.C.
In the instant case, the learned trial Judge as earlier pointed out, relied heavily on evidence given by the witnesses in Exhibit 'C1', a previous record of proceedings. See pages 242 to 244 of the record of Appeal. It is our basic law that evidence given in previous proceedings cannot be evidence in the instant case; it can only be used to establish what was decided previously by the Court for the purposes of Cross-examination as to credit. See YUSUF VS, ADEGOKE (2007) 11 NWLR (PT. 1045) 332 DUROSARO VS. AYORINDE (2005) 8 NWLR (PT. 927) 407; ELEGUSHI VS. OSENI (2005) 14 NWLR (PT. 945) 348. The Evidence Act 2011 by Section 46 (1) has laid out the conditions for the admissibility of evidence given in previous proceedings. In the case of EZE VS. ENE & ANOR (2017) LPELR- SC295/2006, the Supreme Court held Per Rhodes-Vivour, JSC as follows: "Section 46 (1) of the Evidence Act, 2011 lays down the condition under which secondary evidence of the testimony of a witness given in a former proceeding be it civil or criminal is admissible in a subsequent proceedings or in a later stage of the same proceedings. This is premised on the position of the law that the best evidence available must always be produced and used by the Courts so that the rights of litigants are correctly decided.
The power under Section 46 (1) must at all times be exercised with great caution. For instance death or incapability to give evidence must be proved strictly and the onus of proving that a witness is dead or cannot be found is on the party who wishes to rely on the evidence. The following conditions must be fulfilled before a previous testimony can be admitted in evidence. Once any of them is absent, the evidence to be relied on would be inadmissible 1. The evidence must have been given in judicial proceedings. 2. The first proceedings must be between the same parties as the second proceedings, and the identity of the parties in the two proceedings must be substantial and not nominal. 3. The party against whom the testimony is tendered must have had opportunity of crossexamining the witnesses when his testimony was taken. 4. The issues in both proceedings must be the same or substantially the same. 5. The witness must be incapable of coming to Court in the subsequent proceeding on account of death or incapability of giving evidence or prevented from coming to Court by the adverse Party, or bringing him to Court would entail huge expense or unreasonable amount of delay. See IKENYE & ANOR. VS. OFUME & ORS. (1985) 16 NSCC (PT. 1) 379. All these requirements I emphasize must be clearly established or proved duly. They are not to be subject of assumptions or conjectures."
Per ADAH, J.C.A. IN MBINA & ORS v. ENYA & ORS CITATION: (2017) LPELR-43532(CA)
