PAUL & ANOR v. OWOLABI & ANOR (2020)

PAUL & ANOR v. OWOLABI & ANOR

(2020)LCN/15424(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, November 19, 2020

CA/IB/115/2014

RATIO

EVIDENCE: EFFECT OF A DOCUMENT TENDERED BY A PERSON WHO IS NOT THE MAKER OF THE SAME

It is settled law that where a party intends to establish the truth contained in a document, he has a duty to tender such document through the maker of the document. Where a person who is not the maker tenders it in evidence, the document constitutes documentary hearsay and cannot be used to establish any fact other than the fact that it was made. The end result is that the Court of law will not attach any probative value to it. See LAMBERT VS. NIGERIAN NAVY (2006) 7 NWLR (PT. 980) 514; AWUSE VS. ODILI (2005) 16 NWLR (PT. 952) 416 AND OMEGA BANK PLC VS. O.B.C. LIMITED (2005) 8 NWLR (PT. 928) 547. PER FOLASADE AYODEJI OJO, J.C.A

EVIDENCE: PRACTICE OF THE COURT WHERE A DOCUMENTARY HEARSAY EVIDENCE IS ADMITTED IN EVIDENCE

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

1.) GABRIEL PAUL 2.) SEVEN-UP BOTTLING COMPANY LIMITED APPELANT(S)

And

1.) MR. DUNMOMI OWOLABI 2.) MISS DIWURA OWOLABI (Suing By Their Attorney MRS. FUNMILAYO OWOLABI) RESPONDENT(S)

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This Appeal emanated from the Judgment of High Court of Justice Oyo State, Ibadan Judicial Division in Suit No – I/901/2011. Between: (1) MR. DUNMOMI OWOLABI (2) MISS DIWURA OWOLABI (Suing by their Attorney Mrs. Funmilayo Owolabi) Vs. (1) GABRIEL PAUL (2) SEVEN-UP BOTTLING COMPANY LIMITED wherein it was held that the claimants’ claim in general damages succeeds while the claim in special damages fails and it was dismissed.

The sum of (₦5,000,000,00) Five Million Naira was awarded in favour of the claimants against the defendants (now Appellants) jointly and severally being general damages for causing the death of Engineer Adekunle Sunday Owolabi on 18th day of April 2011 through injuries arising from the collision caused by the reckless driving of the 1st defendant(now 1st Appellant) while in control of the 2nd defendant’s truck (now 2nd Appellant) with Registration No: XF 712 DKA along U.I. Secretariat Road, Bodija, Ibadan on 13th April, 2011.

Briefly, the facts of this case are that the claimants (now Respondents) at the Trial Court claimed various sums from the defendants (now Appellants) as damages (both general and special) for the loss of their father who died in a vehicular accident which according to the claimants occurred due to the negligence of the 1st Appellant who at that point in time was an agent of the 2nd Appellant being its truck driver who was driving the 2nd Appellant’s truck when the accident occurred.

On their part the Appellants denied the claims of the Respondents. It was their case that it was the deceased who drove recklessly on the day in question which made the accident inevitable.

At the close of pleadings, evidence were led on both sides while several Exhibits were tendered in evidence. The Learned Trial Judge later delivered his Judgment in which the Respondents’ claims were partly granted.

The Appellants who were dissatisfied with the Judgment of the Trial Court appealed to this Court.

The Learned Counsel for the Appellants formulated a sole issue for the determination of this Appeal. The said issue is hereby set out as follows:-
“Whether the Respondents have by credible and admissible evidence proved their case as to warrant the Trial Court granting their claim for general damages. (Distilled from Grounds 1 and 2).”

On the other hand, the Learned Counsel for the Respondents also formulated a sole issue for the determination of the Appeal. The said issue is hereby set out as follows:-
“Whether having regard to the state of the pleadings, the evidence led and the circumstances of this case, the Lower Court was not right in holding that the Respondents have established the negligence of the Appellants.”

At the hearing of this Appeal on 19/10/2020, the Learned Counsel for the Appellants stated that the Appeal is against the Judgment of Oyo State High Court, Ibadan Division delivered on 16/1/2014.

The Notice of Appeal was filed on 22/1/2014 while the Record of Appeal was entered on 14/3/2014. The Appellant’s Brief was filed on 28/4/2014 while the Appellant’s Reply Brief was filed on 19/3/2019.

The Learned Counsel for the Appellants adopted and relied on the said Appellants’ Brief as well as the Appellants’ Reply Brief of Argument in urging that the Appeal be allowed.

The Learned Counsel for the Respondents referred to the Respondents’ Brief of argument filed on 18/2/2016 and deemed as properly filed on 5/3/2019. She adopted and relied on the said Respondents’ Brief as her Argument in urging that the Appeal be dismissed, and the decision of the Lower Court upheld.

I have perused the issues formulated by Counsel for both parties in this Appeal. The issues are more or less the same. I will therefore rely on the issue formulated on behalf of the Appellants in the determination of this Appeal.

ISSUE FOR THE DETERMINATION OF THIS APPEAL
“Whether the Respondents have by credible and admissible evidence proved their case as to warrant the Trial Court granting their claim for general damages (Distilled from Grounds 1 and 2).”
The Learned Counsel for the Appellants stated that the Respondents’ Claim is based on negligence and in order to succeed, credible evidence must be proffered. He relied on the case of –SPDC (NIG.) LTD. VS. OLAREWAJU (2002) 10 NWLR PART 792 PAGE 38 AT 76 -77.

He went further in his submission that the only piece of evidence relied upon which formed the basis of the Judgment of the Trial Court is Exhibit “D” series i.e. the photographs of the scene of the accident. He went further that the said series were tendered in evidence by a witness who is not the maker and who was not even present at the time they were taken.

It was also submitted that where documents not tendered in evidence by the maker is admitted in evidence, the Court ought not to attach probative value to such documents.
He relied on the following cases:-
-FLASH FIXED ODDS LTD VS. AKATUGBA (2001) 9 NWLR PART 717 PAGE 46 AT PAGE 63.
-OLUKADE VS. ALADE (1976) 2 SC, PAGE 183.

The Learned Counsel for the Appellants contended that although Exhibit D series were admitted in evidence without objection but that if for any reason a document is wrongly admitted in evidence by a Trial Court, the Court has a duty not only to refrain from ascribing probative value to same but also to expunge same from its records. He relied on the following cases:-
– OKAFOR VS. OKPALA (1995) 1 NWLR PART 374 PAGE 749.
– JOHN VS. BLAKK (2001) 10 NWLR PART 721 PAGE 378 AT 386.

Learned Counsel for the Appellants finally urged that the Appeal be allowed and Judgment of Trial Court set aside.

The Learned Counsel for the Respondents in her response submitted that for the claim grounded in Negligence to succeed, it must be proved by credible and admissible evidence.

She referred to paragraph 4 of the statement of claim on Pages 3 to 4 of the Record of Appeal.

It was submitted that the averment referred to above must be proved in order to succeed in proof of negligence of the 1st Defendant.

It was contended on behalf of the Respondents that there was no eye witness of the accident and the scene of the accident but photographs of the scene of the accident and the final resting position of the respective vehicles involved were taken and tendered in evidence as Exhibit D series without objection. The Learned Counsel for the Respondents relied on the following cases:-
– KALLA VS. JARMAKANI TRANSPORT LTD. (1961) ALL NLR PAGE 778 AT 785.
– ANYAH VS. IMO CONCORDE HOTELS LTD. (2002) 18 NWLR PART 799 PAGE 377 AT 396 PARAGRAPH D.
– NBC PLC VS. BORGUNDU (1999) 2 NWLR PART 591 PAGE 408 AT 427 PARAGRAPH F.

She submitted further that since Exhibit D series are documents admissible in Law subject to some conditions, they having been admitted without any objection from the Appellants at the Lower Court constitutes a waiver of the condition to which their admissibility are subject. She relied on
– ATTORNEY GENERAL OF OYO STATE & ANOR VS. FAIR LAKES HOTELS LIMITED & 1 ANOR NO. 2 (1989) 5 NWLR PART 121 PAGE 255 AT 273, PARAGRAPH C PAGE 282 PARAGRAPHS A-C.
– OKEKE VS. OBIDIFE & ORS (1965) 1 ALL NLR PAGE 51 AT 54.
– IGBODIM VS. OBIANKE (1976) 9-10 SC PAGE 179.
– AYENI & ORS VS. DADA & ORS (1978) NSCC PAGE 147 AT 154 LINES 35 -50.

The Learned Counsel for the Respondents argued that Exhibit “D” series were not dumped on the Court as alleged by the Appellants but they were shown to the 1st Appellant who confirmed that the vehicles in the pictures were that of the Respondents’ late father and the 2nd Appellant. And under cross-examination, 1st Appellant also confirmed the position of the vehicles and the point of impact of the collision as shown in the picture i.e. the Exhibit “D” series.

She submitted that the Trial Court was in order under the circumstances to have attached probative value to the Exhibit “D” series.
She urged that this issue be resolved in favour of the Respondents.

In the Appellants’ Reply Brief of Argument, it was submitted that Exhibit “D” series deserves no probative value by reason of the way it came before the Court i.e. via a witness who was not the maker and since it formed the basis of the Lower Court’s finding against the Appellant. He urged that the Judgment of the Trial Court be set aside and dismiss the case of the Respondents.

RESOLUTION
The Respondents’ claims before the Trial Court according to Counsel for both parties in this Appeal is grounded in Negligence and for the same to succeed, it must be proved by credible and admissible evidence and that he who asserts must prove.
In KALLA VS. JARMAKANI TRANSPORT LTD. (SUPRA), it was held among others that:-
“It is an accepted principle of law that Negligence is a question of fact, not law, each case must depend upon its own facts.”
And in OTARU VS. IDRIS (1999) 4 S.C. PART II PAGE 87 AT 92. The Supreme Court defined the tort of NEGLIGENCE to be:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

“The omission to do something which a reasonable man would do, or doing something which a prudent and reasonable man would not do.”
Negligence consists of failure to exercise due care in the circumstances in which duty of care exists.
See – DONOGHUE VS. STEPHENSON (1932) AC PAGE 562 AT 580 – 581. Negligence includes
(i) a careless act or omission and
(ii) a duty to the person injured.

The pillar upon which the Trial Court based its decision in this case is Exhibit “D” series i.e. the photographs of the scene of the accident. The Trial Court held among others as follows:-
“From the evidence before the Court, there was no eye witness evidence or of how the collision occurred as the CWI stated that she was not at the scene of the collision. As rightly submitted by defendants’ Counsel, there was no sketch map of how the collision occurred. The only inference that could be drawn from the collision can only be gotten from the photographs of the collision, that is Exhibit “D” series. Again at the time the photograph were taken CWI was not at the scene.”
The germane question that comes to mind at this juncture is Whether Exhibit “D” series is worthy of any consideration to enable the Court attach probative value to it?

In answering the above question it must not be forgotten that Exhibit “D” series were tendered in evidence by a witness who is not the maker of the documents and who was not even present at the time they were taken.

It is settled Law that where a document is not tendered in evidence by the maker and if for any reason such documents are admitted in evidence, the Court ought not to attach any probative value to the documents in the consideration of the case.
In the case of:- FLASH FIXED ODDS LTD. VS. AKATUGBA (SUPRA), PAGE 46 AT 63. It was held as follows:-
“It is the law that a maker of a document is the proper person to tender it. If a person who did not make the document tenders it, (and he can) the Trial Judge should not attach probative value to it because that person cannot be cross- examined on the document since he is not the maker and therefore not in a position to answer any question arising therefrom”
Also in the case of – AYENI VS. DADA (1978) S.C. PAGE 35 the Supreme Court held that:-
“…while admissibility of a document may be made under the Evidence Act, the weight to be attached to its contents is another matter.”
And in ATTORNEY GENERAL OF OYO STATE & ORS VS. FAIR LAKES HOTELS LTD. & ORS (1989) 5 NWLR PART 121 PAGE 255 AT 282 – 283 the Supreme Court stated the Law that
“Oral evidence and a document in evidence under Section 90 of the Evidence Act, cannot on the authorities receive the same treatment when it comes to the matter of evaluating such evidence. The former if unchallenged, must, on the authorities be accepted as establishing the facts therein stated. As regards the latter, documents admitted by the consent or by the Court in the absence of their maker under Section 90 of the Evidence Act, the Court still has, on the authorities a duty to consider the weight to be attached to such documentary evidence before coming to the conclusion as to whether or not it establishes the facts stated therein…”
See also – OLUKADE VS. ALADE (SUPRA).
In this Appeal under consideration, the Photographs i.e. the Exhibit “D” series confirmed that the accident did in fact happened and it involved vehicles belonging to parties in this suit. The photographs i.e. Exhibit “D” series showed the final resting place of both vehicles after the collision. The Exhibit ”D” series also showed that the 1st Appellant hit the vehicle of the Respondent’s father.
But, it goes without saying that the only witness of the Respondents who tendered the photographs i.e Exhibit “D” series in evidence is not the proper person in the circumstance of the case to do so, because she is not the maker of Exhibit “D” series and the witness never gave evidence on the photographs in proof of the Respondents’ case.
It is very pathetic and unfortunate that the Respondents’ father lost his life in the accident and the photographer who took the photographs i.e. Exhibit “D” series was not called to testify and tender Exhibit “D” series.
The only witness called by the Respondents was not the maker of Exhibit “D” series relied upon heavily by the Trial Court. She could not be cross examined on the Exhibits because she was not present when the accident occurred and when the pictures were taken.
In O. V. IKPEAZU VS. ALEX OTTI & ORS (2016) 8 NWLR PART 1513 PAGE 38 it was held by the Supreme Court that –
“It is now settled law that a party who did not make a document is not competent, to give evidence on it. This is the situation here. PW19 did not make PWC2 she cannot competently tender it. The maker must be called to test its credibility and veracity.”
Consequent upon the foregoing the inevitable conclusion I arrived at is that since the only witness called by the Respondents did not witness the accident, she was also not the maker of Exhibit “D” series relied upon by the Trial Court and she was not even present when the pictures i.e. Exhibit “D” series were taken therefore negligence was not proved against the 1st and 2nd Appellants.
The Trial Court ought not to have attached any probative value to Exhibit “D” series and should not have drawn inferences on the said Exhibits.

In the circumstance, the lone issue in this Appeal is resolved in favour of the Appellants and against the Respondents.
This Appeal is meritorious and it is allowed.

The Judgment of the Trial Court in suit No – I/901/2011 Between – (1) MR. DUNMOMI OWOLABI (2) MISS DIWURA OWOLABI (Suing by their Attorney MRS. FUNMILAYO OWOLABI) VS. (1) MR. GABRIEL PAUL (2) SEVEN-UP BOTTLING COMPANY LIMITED delivered on the 16th day of January, 2014 is hereby set aside. In its place the Plaintiffs/Claimants’ claim at the Trial Court is hereby dismissed.
Appeal Allowed.

On the issue of cost, this suit was commenced in 2014. As I stated earlier in this Judgment, it is a pathetic case in which the Respondents lost their father in the ghastly motor accident. I am of the view that it is a case which ought to have been settled out of Court before now, I am therefore not inclined to award any cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance, the judgment delivered by my learned brother, Jimi Olukayode Dada, JCA.

My learned brother has admirably and succinctly resolved the issue that arose for determination in this appeal. There is no doubt that the evidence adduced at the trial did not establish, even prima fade, that the accident that led to the death of the Respondents’ father, was caused by the negligent act of the Appellants. In other words, the fact of causation was not established.

I therefore agree with my learned brother that the learned trial Judge erred both in law and on the facts in judging In favour of the Respondents. This appeal has merit and is accordingly allowed.
I abide by the consequential orders made by my learned brother.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading before now, the lead judgment just delivered by my learned brother JIMI OLUKAYODE BADA, JCA. I agree with his reasoning and the conclusion reached thereat.

In the instant appeal, Exhibit D- the photograph which shows the scene of the accident was tendered as evidence of how the collision occurred. The witness who tendered it is not the maker. It is settled law that where a party intends to establish the truth contained in a document, he has a duty to tender such document through the maker of the document. Where a person who is not the maker tenders it in evidence, the document constitutes documentary hearsay and cannot be used to establish any fact other than the fact that it was made. The end result is that the Court of law will not attach any probative value to it. See LAMBERT VS. NIGERIAN NAVY (2006) 7 NWLR (PT. 980) 514; AWUSE VS. ODILI (2005) 16 NWLR (PT. 952) 416 AND OMEGA BANK PLC VS. O.B.C. LIMITED (2005) 8 NWLR (PT. 928) 547. In effect, Exhibit D cannot be used to establish how the collision occurred. I agree with my learned brother that the lower Court ought not to have attached any probative value to Exhibit D.

In view of the foregoing and the fuller reasons given in the lead judgment, I also allow the appeal.

Appearances:

MR. S. O. AJAYI with him, A. S. AMIRE Esq. For Appellant(s)

MRS N. J. ONIBIYO with him, MRS. REBECCA AMEEN OJOMU. For Respondent(s)