UBA PLC v. PEB 04 (NIG) LTD
(2020)LCN/15617(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Tuesday, July 21, 2020
CA/A/431/2019
Before Our Lordships:
Peter Olabisi Ige Justice of the Court of Appeal
Emmanuel Akomaye Agim Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA PLC (UBA) APPELANT(S)
And
PEB 04 NIGERIA LIMITED RESPONDENT(S)
RATIO:
THE LACK OF LOCUS STANDI ROBS THE COURT OF JURISDICTION
The lack of locus standi of the respondent to bring the suit on the cheque robs the Court of the jurisdiction to entertain and determine the suit. The situation cannot be cured by treating it as one of non joinder of P. Y. Okala who had the right to bring the action on the cheque. The material facts established by the evidence do not give the respondent a legal right to sue on the cheque.
THE INTEREST IN AN OUTCOME OF AN ACTION
This Court in Abe & Anor v. Damawa (2011) LPELR – 5007 adopted the holding of the English Court in Evan v. Noble (1949) 1 KB 222 at 225 that-
“A person not interested in the outcome of an action was described to include a person who has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest, but completely detached, impartial and independent.” EMMANUEL AKOMOYE AGIM, J.C.A
THE EXPERT EVIDENCE SHOULD BE INDEPENDENT AND UNINFLUENCED
This Court in Mamah & Anor v. Agbo (CA/E/EPT/24/2015 on 7-12-2015) adopted the holding of the English House of Lords inWhite House v. Jordan (1981) 1 All ER 267 that-
“…it is necessary that expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that is not, the evidence is likely to be not only incorrect but self defeating.” EMMANUEL AKOMOYE AGIM, J.C.A
THE INADMISSIBILITY OF HEARSAY EVIDENCE
Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.“
Being legally inadmissible evidence, that has been inadvertently admitted as evidence, the trial Court can suo motu expunge it from the evidence during its judgment. See Anyaebosi v. R.T Briscoe Nig Ltd (supra). So the error of the trial Court in expunging exhibit F from the evidence on the ground that it was made during pendency of the proceedings in this case did not occasion a miscarriage of justice, as it remained legally inadmissible evidence even without the said error and was liable to be expunged from the evidence at any stage of the case. EMMANUEL AKOMOYE AGIM, J.C.A
THE LACK OF LOCUS STANDI AND THE LACK OF JURISDICTION
On the whole this appeal succeeds in part. The respondent lacked the locus standi to sue. Therefore, the trial Court lacked the jurisdiction to entertain and determine the suit. The purported exercise of jurisdiction is a nullity. The entire proceedings and judgment of the trial Court is a nullity. Accordingly the proceedings and judgment of the trial Court delivered on 14-3-2019 by A.I. Chikere J. in suit No. FHC/ABJ/CS/998/2016 is hereby set aside and struck out. EMMANUEL AKOMOYE AGIM, J.C.A
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/431/2019 was commenced on 21-3-2019 when the appellant herein filed a notice of appeal against the judgment of the Federal High Court delivered on 14/3/2019 by A.I. Chikere J in suit No. FHC/ABJ/CS/998/2016.
The notice of appeal contains 2 grounds for the appeal. With the leave of this Court granted on 25-6-2020, the said notice of appeal was amended. The amended notice of appeal contains 5 grounds for this appeal.
The parties herein have filed their respective briefs as follows- appellant’s brief, respondent’s brief and appellant’s reply brief.
The appellant’s brief raised the following issues for determination-
1. Whether the Federal High Court (Trial Court) had the jurisdiction to entertain the claims of the Respondent under Section 251(1)(d) of the 1999 Constitution (as amended). (Distilled from grounds 1)
2. Whether the Respondent had the Locus Standi to maintain the suit before the Trial Court in his name having regard to the fact that the Cheque on which the case is founded was issued to one P.Y Okala (Distilled from Ground 4)
3. Whether the learned Trial Judge was right in law to expunge Exhibit F under the guise of Section 83(3) of the Evidence Act, 2011(Distilled from grounds 2 & 3).
4. Whether or not the Lower Court misdirected itself in law by refusing to ascribe probative value to Exhibit F (Distilled from Ground 5).
The respondent’s brief raised the following issues for determination-
1. Whether or not the Lower Court had the jurisdiction to entertain the respondent’s suit;
2. Whether or not the Respondent had the locus standi to maintain the suit at the Lower Court;
3. Whether or not the Learned Trial Judge was right in expunging Exhibit G (Exhibit F or Purported Search Report from one Haliru Mahe Haliru and Co.) from the record of the Lower Court; and
4. Whether or not the Learned Trial Judge was wrong in refusing to ascribe probative value to Exhibit G (Exhibit F or Purported Search Report from one Haliru Mahe Haliru and Co.) in view of Exhibit D (Letter from the Corporate Affairs Commission).
I will determine this appeal on the basis of the issues raised for determination in the appellant’s brief. Let me start with issue No. 1 which asks- “Whether the Federal High Court (Trial Court) had the jurisdiction to entertain the claims of the Respondent under Section 251(1)(d) of the 1999 Constitution (as amended).“
I have carefully read and considered the arguments of both sides on this issue.
To determine if the claim of the respondent at the trial Court was within its subject matter jurisdiction prescribed by Section 251(1) (d) of the Constitution of the Federal Republic of Nigeria 1999 as amended (the 1999 Constitution), it is the provisions of Section 251(1)(d) therein and any Act of the National Assembly that gives it additional subject matter jurisdiction and the originating processes that should be considered.
The claim of the respondent in its statement of claim reads thusly-
“1. The Plaintiff is a company duly incorporated under the Companies and Allied Matters Act and the owner of Peb 04 Plaza situate at Plot 2027, Dalaba Street, Zone 5, Wuse, Abuja.
2. The Defendant is a bank and financial institution subject to relevant laws and regulations in Nigeria with head office at UBA House, 57 Marina, Lagos, Lagos State and branches all over the Federation including Abuja.
3. The Plaintiff avers that sometime in January, 2009, the Plaintiff rented out a Suit/Office Space in its said property situate and known as Peb 04 Plaza, Peb 04 Plaza situate at Plot 2027, Dalaba Street, Zone 5, Wuse, Abuja to one Turiya International Ltd.
4. The Plaintiff avers that the Plaintiff was moved into entering the tenancy agreement between it and the said Turiya International Ltd on the strength of the Defendant’s cheque issued by the said Turiya International Ltd immediately in payment of rent and service charge for the period of 2009 to 2010, which cheque convinced the Plaintiff to believe that the said Turiya International Ltd is a duly incorporated company under relevant law in Nigeria.
5. The plaintiff avers that shortly after taking over possession of the said suit/Office space the said Turiya International Ltd became in arrears of rent and in a frail effort to satisfy same arrears issued a post-dated Defendant’s (UBA’s) Cheque No. 3829191 in favour of the Plaintiff’s Managing Director Barr. P.Y. Okala in the sum of N1,260,000 (One Million, Two Hundred and Sixty Thousand Naira) purporting to be its rent payment for the period of January, 2010 to January, 2012 with assurance to the said Managing Director that on the matured date (28th June, 2011) sufficient fund will be in its (Turiya International Ltd’s) account held with the Defendant.
6. The Plaintiff avers that on 28th June, 2016 being the matured date of the said Cheque, the Plaintiff’s Managing Director Barr. Okala presented cheque at a branch of the Defendant in Abuja for payment but the Cheque was returned with the inscription “DAR” meaning “Drawer’s Attention Required.” The said UBA Cheque No. 3829191 with the inscription “DAR” is hereby pleaded and a copy is attached and marked as Annexure 1.
7. The plaintiff avers that on getting back to the said Peb 04 Plaza on the same day to confront the purported company (Turiya International Ltd) on the dud cheque, the Plaintiff’s Managing Director Barr. Okala discovered that the purported company (Turiya International Ltd) had secretly moved out of the Plaza the previous week to an unknown destination without paying its outstanding rent and service charge, as at the time it move out, in the sum of N945,000 (Nine Hundred and Forty-Five Thousand Naira).
8. The Plaintiff avers that ever since then, the Plaintiff has been searching everywhere for the whereabouts of the purported company (Turiya International Ltd) and/or its owners or promoters without any success.
9. The Plaintiff avers further that about 23rd August, 2016 the Plaintiff instructed its solicitors Messrs. A.E. Igomu & Co. to conduct search at the Corporate Affairs Commission to find out the details of the purported company (Turiya International Ltd).
10. The plaintiff’s solicitor’s effort to verify the RC Number of the purported company Turiya International Ltd shows that there is no company on the Commission’s record with the name Turiya International Ltd.
11. The Plaintiff’s solicitor further applied to the Register-General of the Commission for confirmatory report on the status of the purported company (Turiya International Ltd). Thus, on 25th August, 2016 the Commission issued a letter addressed to the Plaintiff’s solicitors containing a report that there is no evidence of incorporation of Turiya International Ltd. The Corporate Affairs Commission’s letter dated 25th August, 2016 with reference number RGO/SU/VOL.5/2016/0940 is hereby pleaded and a copy is attached and marked as Annexure 2.
12. The Plaintiff avers that the Defendant fraudulently and/or negligently aided and abetted the purported company (Turiya International Ltd) to defraud the Plaintiff to the tune of N1,260,000 (One Million, Two Hundred and Sixty Thousand Naira).
Particulars of Fraud and/or Negligence.
(a) The Defendant, one of the leading and highly reputed banking institution in Nigeria, knew or ought to know that the purported company- Turiya International Ltd was not duly incorporated with the Corporate Affairs Commission.
(b) Without proper verification and/or documentary evidence of identity from the Corporate Affairs Commission, the Defendant opened and/or maintained account number 0279003000049 for a non incorporated body- Turiya International Ltd.
(c) The Defendant also went ahead to issue Cheque Booklet to the non-incorporated body – Turiya International Ltd.
(d) The Defendant knew or ought to know that the purported company – Turiya International Ltd will use the cheque to transact with unsuspecting public who may rely on the cheque as authenticating the corporate existence of the said company – Turiya International Ltd.
(e) There is nothing on the face of the Defendant’s said Cheque No. 38291591 to warn the general public on the non-existence of the purported company – Turiya International Ltd.
13. The Plaintiff avers that the Defendant was fraudulent and/or negligent in not only opening and/or maintaining account number 02790030000849 for a non-incorporated company Turiya International Ltd, but also in going ahead to issue a cheque to it without any warning sign to the public.
14. The Plaintiff avers that on 1st September, 2016 the Plaintiff instructed its solicitors Messrs. A. E. Igomu & Co. to issue a letter of demand for damages on the Defendant. The solicitors’ letter of even date with Red Star Express’s Waybill/Tracking Number 16127295 and proof of delivery are hereby pleaded and copies attached and marked as Annexures 3, 4 and 5 respectively.
15. The plaintiff avers further that till date the Defendant has not responded to the Plaintiff’s solicitors’ said letter dated 1st September, 2016 nor meet up with the Plaintiff’s demand.
16. The Plaintiff avers that it obtained bank loan to build the said Plaza and the refusal of the said Turiya International Ltd to pay meet its obligation to the Plaintiff fraudulently and/or negligently aided by the Defendant is a major reason the Plaintiff was unable to pay back its said loan thereby occasioning ever accumulating interest charges from its (the Plaintiff’s) bankers.
17. WHEREOF the Plaintiff claims against the Defendant as follows:
A. A DECLARATION that the Defendant’s acts of opening and/or maintaining account number and/or issuing cheque book to a non-incorporated company- Turiya International Ltd in the circumstance of this case is amount to fraudulent misrepresentation and/or negligent breach of duty of care on the part of the Defendant.
B. AN ORDER directing the Defendant to immediately pay to the Plaintiff the sum of N945,000 (Nine Hundred and Forty-Five Thousand Naira) as special damages being the outstanding rental obligation of the purported company – Turiya International Ltd to the plaintiff for the period of 1 year and 6 months (i.e. January, 2010 to June, 2011).
C. AN ORDER directing the Defendant to immediately pay to the Plaintiff the sum of N4,000,000 (Four Million Naira) only as compensation and/or general damages for financial loss, distress, emotional and psychological trauma/pain suffered by the Plaintiff as a result of the Defendant’s wrongful conduct.
D. AN ORDER directing the Defendant to apologise to the Plaintiff in writing which apology must be published in at least two National Daily Newspapers.
E. The cost of this suit.”
The trial Court held that “the case of the plaintiff is that of negligence on the part of the defendant when it failed to verify the existence of Turiya International Ltd before issuing the said cheque.” There is no ground of this appeal complaining against this holding. By not appealing against it, the parties herein accept it as correct, conclusive and binding upon them. SeeIyoho v. Effiong (2007) 4 SC (Pt.iii) 90 and Dabup V Kolo (1993) 12 SCNJ 1.
I will now consider if the subject matter of the claim in this case comes within the subject matter jurisdiction of this Court as prescribed in S.251(1) of the 1999 Constitution as follows-
“251(1)- Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other Court in civil cases and matters.“
It is obvious from the clear words of the above provision particularly subsection (1)(d) that a civil case or matter by a third party against a bank for negligent maintenance of the account of its customer is within the subject matter jurisdiction of the Federal High Court being a civil case or matter connected with or pertaining to banking or to a bank. I do not agree with the submission of Learned Counsel for the appellant that this case is not connected with or pertaining to banking and bank. That submission is defeated by her correct submission that the phrase “Connected with or pertaining to banking and bank” in subsection (1)(d) connotes disputes that arise out of banking practices/business. The suit by the respondent who is not a customer of the appellant challenges the banking practice of opening and maintaining a bank account for an allegedly registered or incorporated company without first carrying out a due diligence search about its status and identity and ensuring that it is actually incorporated or registered by the Corporate Affairs Commission and the practice of issuing a cheque book to the said company with its name printed thereon as an incorporated company, holding it out to the public as an incorporated company. Every civil case concerning a bank’s practice and business or transaction as a bank is within the subject matter jurisdiction of the Federal High Court given to it by Section 251(1)(d) of the 1999 Constitution. This is so, irrespective of whether the claimant is a third party or its customer. SeeN.D.I.C vs Okem Enterprises Ltd & Anor (2004) 10 NWLR (Pt 880) 107 (SC), ITPP Ltd vs. UBN Plc(2006) 12 NWLR (Pt 995) 485 @ 503 (SC) andNdaba Nig. Ltd & Anor vs. UBN (2012) 4 Banking and Financial Law Reports 214 (CA).
In the light of the foregoing, issue No. 1 is resolved in favour of the respondent.
Let me now determine issue No. 2 which asks “Whether the Respondent had the Locus Standi to maintain the suit before the Trial Court in its name having regard to the fact that the Cheque on which the case is founded was issued to one P.Y Okala.“
I have carefully read and considered the arguments of both sides on this issue.
The cause for this action as stated in paragraphs 4 to 11 of the statement of claim already reproduced in pages 4 to 10 of this judgment is that the appellant rented its property at Plot 2027, Dalaba Street, Zone 5, Wuse, Abuja to one Turiya International Ltd because the UBA post dated cheque No. 3829191 for the sum of N1,260,000.00 issued by Turiya International Ltd to one P.Y Okala, said to be respondent’s Managing Director as rents for the period of January 2010 to January 2012 had the name of Turiya International Ltd printed on it and thereby convinced the respondent that Turiya International Ltd is an incorporated company, that the respondent presented the cheque to the appellant twice for payment, it was returned unpaid and endorsed thereon that drawer’s attention required, that on going to the premises of Turiya International Ltd to inform it of the fact that its cheque could not be paid, the respondent discovered that Turiya International Ltd had secretly moved out of the premises the previous week to an unknown destination without paying the arrears of rent and leaving the respondent with a dud cheque, that the respondent searched everywhere in vain for the owners or promoters of Turiya International Ltd, that following the search at the Corporate Affairs Commission on the corporate status of Turiya International Ltd, the Corporate Affairs Commission wrote a letter dated 25-8-2016 stating that there is no company registered with it as Turiya International Ltd.
The appellant in paragraphs 1 to 12 of its statement of defence denied the said averments in the respondent’s statement of claim thus-
“1. The Defendant denies paragraph 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 of the Plaintiff’s Statement of Claim and states that all the averments contained therein are facts exclusively within the Plaintiff’s personal knowledge as the Defendant was never in the know of some nor a party to the purported transaction.
2. The Defendant admits paragraph 2 of the Plaintiff’s Statement of Claim.
3. In specific denial to paragraphs 3 and 4 of the Statement of Claim, the Defendant states emphatically that the Defendant was neither a party to the renting out of a Suit/Office space in the property situate and known as Peb 04 Plaza situate at Plot 2027, Dalaba Street, Zone 5, Wuse, Abuja to one Turiya International Ltd; nor was the Defendant consulted, briefed, notified or involved directly or indirectly in the course of the said transaction and shall in the course of the trial puts the plaintiff to strictest proof on the averments contained therein.
4. For the purposes of putting the records straight, the Defendants states further to the above that it is apparent that she was not privy to the purported tenancy agreement made or entered by the Plaintiff with the said Turiya International Ltd and she was not aware nor her input/advice sort for before creating any tenancy relationship howsoever. The Defendant puts plaintiff to strictest proof on the exact way and manner the purported tenancy agreement was entered and whether she was privy to the said agreement (if any).
5. In furtherance to the above, the Defendant strenuously denies the averment in paragraph 4 of the Statement of Claim and states in answer that it is not part of the schedule of duties of the Defendant to authenticate any contract between parties. The Defendant will contend at the trial of this case that she is not privy to the purported contract between the plaintiff and the said Turiya International Ltd.
6. The Defendant denies in toto the allegation of facts as contained in paragraph 5, as the purported tenancy relationship between plaintiff and the said Turiya International Ltd is further shrouded with doubts and clear uncertainties. It is proximate to establish that the issuance of Cheque No. 3829191 in favour of Barr. P. Y. Okala purports that a different transaction did transpire between the said Turiya International Ltd and Barr. P. Y. Okala, over which the plaintiff lacks locus to delve into for want of evidence to show privity of contract. Plaintiff is hereby put to strictest proof thereon.
7. In specific denial of the averment contained in Paragraph 6 of the Statement of Claim, the Defendant contends that the averment therein is incredulous as same is a hoax as the Defendant’s branch where Barr. Okala purportedly presented the cheque is only in existent within the knowledge of the plaintiff. Again, it is inconceivable that a cheque covering a period of 2 years which ended in 2012, was presented for payment in June 2016 (6 years after). The Defendant shall rely on the Plaintiff’s paragraph 6 of the Statement of Claim.
8. In specific denial of the averments contained in paragraphs 9, 10 and 11 of the Statement of claim, the defendant states in answer that as at 25th August, 2016 when the Commission issued a letter addressed to the Plaintiff’s Solicitors, the Commission clearly established that the report was not final; the Commission gave room and opportunity for the Plaintiff to furnish her with further and better information that will enable her investigate more and issue a final report, but the Plaintiff in promoting its ulterior motive blatantly ignored the Commission’s advice and went to town. The Defendant shall rely on the “STATUS REPORT” from the Corporate Affairs Commission sent to the Plaintiff’s Solicitor dated 25th August, 2016 in the course of the trial.
9. In further proof of the litany of falsehood surrounding the allegation of facts as contained in the Plaintiff’s Statement of Claim, the Defendant engaged the services of a competent law firm – Messrs Haliru Mahe Haliru & Co., to conduct a search on the said Turiya International Ltd and report from the said search reveals that Turiya International Ltd was duly incorporated on 28th November 1990 with RC Number 159222. The said search report dated 1st August, 2017 and addressed to the Defendant via its General Counsel is hereby pleaded and shall be relied upon in the course of the trial.
10. In reaction to paragraphs 12(a – e), 13, 14, 15, 16 and 17 of the Statement of Claim, the Defendant vehemently deny her involvement in the purported fraud and/or negligence and states that such never existed, but rather a figment of only the plaintiff’s imagination. The Defendant puts the plaintiff to the strictest proof thereof.
11. The Defendant avers that the Plaintiff is on a gold-digging venture as the Defendant is a reputable financial institution from which the Plaintiff stands to rip off if the relief sought by the Plaintiff from this Honourable Court against the Defendant is granted.
12. The Plaintiff having not shown the veracity of its Claims nor averred the Defendant’s complicity in the flurry of events purportedly contained in the Statement of Claim has embarked on a fruitless and gold-digging expedition with a desperate ploy to tarnishing the image of the Defendant who is a trustworthy financial institution in the country.”
It is obvious from the state of the pleadings of both sides that the respondent’s right to bring this action was put in issue. The respondent had the legal burden to elicit evidence to establish the facts forming the cause for his action and showing his right to sue.
Where the assertion of the existence of the fact that a person is the Managing Director of an incorporated company is disputed, the existence of that fact has to be proved by the person that made the assertion. The only legal evidence of the existence of that fact is the Certified True Copy of the FORM C07 (Particulars of Director) of that company from the Corporate Affairs Commission. The existence of such a fact cannot be assumed from the disputed oral testimony of a witness.
Also where the assertion of the existence of a lease transaction between an incorporated company and another person or an incorporated company is disputed, the existence of such a transaction must be proven by evidence, preferably the written agreement or the documents or series of documents that show the existence of such a transaction. In this case, beyond the disputed testimony of DW1 that such a transaction existed between the respondent and one Turiya International Ltd, there is no documentary evidence of the existence of such a transaction.
Before Section 63(1) and Section 65 of the Companies and Allied Matters Act can be invoked to presume that a payment to a person vide a cheque in his personal name is a payment to him on behalf of an incorporated company, there must be evidence of the existence of the transaction between that company and the drawer of the cheque in respect of which the payment is made and there must be evidence that the payment is connected with the transaction. Where, as in this case, there is no such evidence, it cannot be presumed from the fact that the cheque is in the personal name of a person alleged to be the Managing Director of an incorporated company that the said payment to him is on behalf of the company, when there is nothing on the cheque suggesting so.
The Turiya International Ltd. UBA cheque that is the basis for the respondent’s suit against the appellant is issued in the name of one P. Y. Okala. There is nothing on the cheque showing that the cheque was issued to P. Y. Okala as payment to the respondent for any transaction between it and Turiya International Ltd. Beyond the oral testimony of PW1, there is no documentary evidence of the relationship between P. Y. Okala and the respondent. There is no documentary evidence of any tenancy agreement between the respondent and Turiya International Ltd. Since the facts relied on by the respondent to bring the suit against the appellant were disputed, the respondent should have tendered the tenancy agreement between it and Turiya International Ltd and the certified true copy of the particulars of Directors of the respondent from the Corporate Affairs Commission showing that P. Y. Okala is a director of the respondent so as to establish its right to bring an action on the basis of the UBA cheque issued in the name of P. Y. Okala by Turiya International Ltd. I agree with the submission of Learned Counsel for the appellant that the Tenancy Agreement would have proven that there is such a relationship between the Respondent and Turiya International Ltd for which reason the Cheque of N945,000.00 (Nine Hundred and Forty-Five Thousand Naira only) was issued, that the Form CO7 would have resolved the issue as to whether P. Y. Okala is a Director in the company is not in evidence, there is no evidence that Turiya International Ltd issued the cheque in his favour for and on behalf of the company, why should a property be rented out by a company and a cheque is issued in the name of another who is not proven to be associated with the company, that this position is fundamental given the fact that he issuer of the Cheque; Turiya International Ltd is not a party to the suit or available to confirm issuing of the said cheque for payment of rent for a property owned by the Respondent, that does the Respondent not have an account for which the cheque could have been written in its name, that it is curious and therefore affects the capacity of the Respondent to maintain this action.
It is curious that Turiya International Ltd that issued the cheque and P. Y. Okala in whose name it was issued and to whom the payment was made were not made parties to the suit that was brought on the basis of the said cheque. Rather it is the respondent that is not the payee on the cheque and who has not been shown to have any relationship with the payee on the cheque and any purpose for the payment in the cheque that is suing on the cheque. It is the appellant who did not make the payment on the cheque and who has not been shown to have any relationship with or any obligation to the respondent that is being sued as defendant by the respondent on the basis of the cheque. The respondent has no legal right to sue as the payee of a cheque not issued in its name. The trial Court misdirected itself that the issue is one of P. Y. Okala not being a party to the suit and that the suit cannot be defeated for the non joinder of P.Y. Okala, as P.Y. Okala acted as an agent of the respondent and there is no evidence to suggest otherwise. The decision of the trial Court that P. Y. Okala is an agent of the respondent is perverse. There is no evidence to show that the cheque was issued in his name as agent of the respondent.
The lack of locus standi of the respondent to bring the suit on the cheque robs the Court of the jurisdiction to entertain and determine the suit. The situation cannot be cured by treating it as one of non joinder of P. Y. Okala who had the right to bring the action on the cheque. The material facts established by the evidence do not give the respondent a legal right to sue on the cheque.
As it is, the action is liable to be struck out as the trial Court lacked the jurisdiction to entertain it. It is hereby struck out.
Issue No. 2 is resolved in favour of the appellant.
Let me now consider issue 3 which asks “Whether the learned Trial Judge was right in law to expunge Exhibit F under the guise of Section 83(3) of the Evidence Act, 2011.”
I have carefully read and considered the arguments of both sides on this issue.
Section 83(3) of the Evidence Act 2011 provides that-
“(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.“
By virtue of the clear words of this provision, a statement made by a person interested at a time when proceedings were pending or anticipated, involving a dispute as to any fact which the statement might tend to establish is legally inadmissible.
The trial Court correctly found as a fact that exhibit F, the letter from the law firm of Haliru Mahe Haliru & Co, was made on 1-8-2017 during pendence of the proceedings in this case. The trial Court expunged it from the evidence during its judgment on the ground that it was made on 1-8-2017 during the pendence of proceedings in the suit commenced on 8-12-2016. It did not consider if it was made by a person interested. The Trial Court was wrong to have relied only on the fact that the letter was written during the pendence of proceedings to invoke Section 83(3) of the Evidence Act to expunge it from the evidence. By virtue of the clear words of Section 83(3) of the Evidence Act, a statement made during the pendence of proceedings remains admissible evidence if it is not made by a person interested and if it is not intended to establish the existence of a fact in issue. So the trial Court erred in law by relying only on the fact that it was made during the pendence of proceedings without considering the other requirements for the invocation of Section 83(3) of the Evidence Act, namely, it is made by a person interested and it tends to establish a fact in issue in the case.
Let me now consider if the error occasioned a substantial miscarriage of justice in the sense that the trial Court would not have expunged exhibit F but not for that error.
Learned Counsel for the appellant has argued that Haliru Mahe Haliru & Co is not a person interested as it is an independent firm of experts that is neither an employee of the appellant, nor did its conduct bring about the litigation and its reputation is not in issue in the case and that it had no temptation to depart from the truth.
Learned Counsel for the respondent argued in reply that Exhibit G (Exhibit F or Purported Search Report from one Haliru Mahe Haliru and (Co.) is plagued with too many defects that render it completely inadmissible, that first, it is a photocopy and no foundation was laid as to the whereabouts of its original, secondly, it is a document purportedly authored by a private person who was not called as a witness in a circumstance that makes his/her attendance for cross-examination imperative, that no explanation whatsoever was given as to why the maker could not be called, that the maker was not acting in line with his/her official duties, that consequently, the Exhibit failed to meet the conditionalities for admission under Section 83(1) and (2) of the Evidence Act, that the Exhibit was made at a time when proceeding was already long pending in Court, that there is no iota of evidence to show if the maker of the documents is interested in the proceedings or not, that it is possible that the maker is a shareholder or related to a shareholder in the Defendant/Appellant, that there is no evidence before the Court to enable the Court determine if the maker is a person who has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest but completely detached, judicial, impartial and independent, that Exhibit G (Exhibit F or Purported Search Report from one Haliru Mahe Haliru and Co.) when juxtaposed with Exhibit D (Letter from the Corporate Affairs Commission) cannot have any evidential value at all, that the Corporate Affairs Commission, a public institution, by law is the custodian of records of companies and the only authority in Nigeria with the legal power to confirm the incorporation or otherwise of a company, that a private law firm has no such power in law, that the Appellant failed to produce any credible evidence from the Corporate Affairs Commission to counter Exhibit D – not even a single document of incorporation, that the Learned Trial Judge was right in expunging Exhibit G (exhibit F or Purported Search Report from one Haliru Mahe Haliru and Co.) from the record of the Court and/or refusing to ascribe probative value to the said document.
Let me now determine the merits of the above arguments of both sides.
Exhibit F is a solicitor’s letter containing a report of the search conducted at the Corporate Affairs Commission on the status of Turiya International Ltd on the instruction of the appellant. It is obvious that the search was meant to find out if Turiya International Ltd is an incorporated company or not, against the background of the respondent’s case that it was not an incorporated company. By commissioning the firm of solicitors to conduct the search, the appellant wanted to know the exact corporate status of Turiya International Ltd. So, the firm of Lawyers was merely to carry out its professional search in the Corporate Affairs Commission and report its findings to its client, the appellant. It is obvious from the nature of the brief, that the firm had no interest in the outcome of the pending proceedings and the search was not aimed at establishing a certain fact situation, but to find out what the fact was and so the firm has no temptation not to report the results of its findings objectively and correctly. The firm of Haliru Mahe Haliru & Co. who have never participated in the prosecution of this case at any stage on behalf of the appellant and who was engaged to only carry out the search on the corporate status of Turiya International Ltd at the Corporate Affairs Commission cannot be regarded a person interested in the outcome of the pending proceedings.
The Supreme Court in Anyaebosi v. R.T. Briscoe (Nig) Ltd (1987) LPELR- 506 (SC) restated the law on how to determine if the maker of a document made during the pendence of a proceedings and to be used in that proceedings is a person interested in the outcome of the proceedings thusly- “The word “interested” has not been defined by the Evidence Act. Section 1 of the Evidence Act, 1938 of England is in pari materia with Section 90 of the Evidence Act, Cap. 62, subsection (3) of the former is word for word the same as subsection (3) of Section 90. In construing the word “interested” in Section 1(3) of the 1938 Act, Delvin LJ. made the following observation in Bearmans Limited & Anor vs Metropolitan Police District Receiver (1961) 1 WLR 634 at 655, the word ‘interested’ is not a word which has any well-defend meaning and anybody who was asked what it meant would at once want to know the context in which it was used before he could venture an opinion. It may mean a direct financial interest on the one hand, or on the other hand it may mean nothing more than the ordinary human interest which everybody has in the outcome of proceedings in which he is likely to be a witness. Just as an ordinary speech, one would require to know the context, so in construing the word in an Act of Parliament, it is essential; more necessary in this case than in most; to look at the scope and purpose of the Act, and I think that if one does that one will be led to the conclusion that Section 1(3) is to be given a narrow rather than a broad meaning. ‘I agree with the reasoning’. Now given the word ‘interest’ in Section (3) of Section 90 a narrow meaning; can Chief T. Ola Odukoya be said to be a person interested in the result general, an employee may be said to have interest in the outcome of a case if his skill or competence are involved or his conduct in relation to the events which led to the litigation or when his association with the events is called to question. One other way of determining the interest of an employee in a case in the context of Section 90(3) of the Evidence Act is to ask the question-is what is at stake in the proceedings the reputation of the maker of the statement, in the sense of his being directly responsible for the events being litigated? If the employees skill or competence is involved or his conduct or association with the event leading to the proceedings are in question or the question posed is answered in the affirmative then, in my opinion the statement made by such employee would be caught by the provision of subsection (3) of Section 90, since the statement of the employee is likely to be tainted by the inventive to conceal or misrepresent facts. The position will of course, be otherwise if none of such consideration were present…”
This Court inApena v. Aiyetobi (1989) 1 NWLR (Pt 95) 85 at 94 held that “A surveyor who prepares a survey Plan in respect of land in dispute in a pending case and tenders it in evidence is not a person ‘interested’ within the context of Section 90(3) of the Evidence Act. A surveyor or any Expert in any field of knowledge who makes a statement in any form in respect of a matter in Court at any stage of the proceedings is generally regarded as a person who has no temptation to depart from the truth as he sees it likelihood of bias before a person making a statement can be said to be a ‘person interested’ see also decision of the Anyaebosi v. R.T. Briscoe (Nig) Ltd (1987) 6 SC 15.”
In Abdullahi v. Maitsidau & Ors (2011) 3 NWLR (Pt 1233) 55 at 71-72 this Court again held that “in other to ascertain or determine whether the maker of a document sought to be tendered is a person interested in the litigation under Section 91(3) of the Evidence Act, the circumstances surrounding the making of the document and whether the maker can be said to have an interest of a personal nature, must be examined and ascertained. A person who is not personally interested in the result of litigation cannot be described as one interested in the proceedings. A person under official benefit from the outcome of the litigation cannot be said to be a person interested under Section 91(3) of the Evidence Act…” It is clear that the maker of Exhibit F in view of the definition of ‘maker of the Statement’ contemplated by Section 83(3) of the Evidence Act, 2011 is the PW2. It is clear that Section 83(3) has been enacted to render any statement made in a document inadmissible, where such is prepared by an interested party for the purpose of defeating the course of justice. This is because, a maker of a document who knows about the pendency of a dispute or anticipate that a dispute might arise may be tempted to depart from the truth by reason of the interest he has in the matter… To determine whether or not the maker of a document is a person interest, the Court would consider the nature of the duty performed so as to know if he had a temptation to depart from the truth on one side or the other; or whether he was swayed by person interest, or was detached judicially, impartially and independently. Thus, in the case of Apena v. Aiyetobi (1989) 1 NWLR (pt.59) p. 85 at 94, the Court held that any expert in his field of knowledge who makes a statement in any stage of the proceeding is generally regarded as a person who has no temptation to depart from the truth as he sees it from his professional expertise.“
This Court in Abe & Anor v. Damawa (2011) LPELR – 5007 adopted the holding of the English Court in Evan v. Noble (1949) 1 KB 222 at 225 that-
“A person not interested in the outcome of an action was described to include a person who has no temptation to depart from the truth on one side or the other, a person not swayed by personal interest, but completely detached, impartial and independent.“
This Court inMamah & Anor v. Agbo (CA/E/EPT/24/2015 on 7-12-2015) adopted the holding of the English House of Lords inWhite House v. Jordan (1981) 1 All ER 267 that-
“…it is necessary that expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation. To the extent that is not, the evidence is likely to be not only incorrect but self defeating.“
Haliru Mahe Haliru & Co that made exhibit F is not a person interested in the outcome of the pending proceedings in which it is being relied on. But it is obvious that it is not legally admissible evidence for the reason that it is hearsay evidence. It is not a search report issued by the custodian of all the documents and records concerning the existence of incorporated companies in Nigeria, the Corporate Affairs Commission. The firm of Haliru Mahe Haliru & Co. should have paid the statutory fees for the Corporate Affairs Commission (CAC) official search report on Turiya International Ltd and forwarded same with its letter to its Client. A statement in the firm’s solicitor’s letter (exhibit F) reporting its search finding is hearsay. A certified true copy of the official report written by the Corporate Affairs Commission (CAC) is the legal evidence that should have been elicited by the appellant.
Learned Counsel for the respondent has correctly observed that exhibit F is a photocopy of the solicitor’s letter, that it was tendered through a person who was not the maker, that no explanation was made for the failure to call the maker as a witness. So, it cannot enjoy any exceptions to the admissibility of hearsay evidence prescribed in Sections 38 to 83 of the Evidence Act 2011. As hearsay evidence it is legally inadmissible evidence by virtue of Sections 37 and 38 of the Evidence Act 2011 which provides thusly-
“37. Hearsay means a statement –
(a) Oral or written made otherwise than by a witness in a proceedings; or
(b) Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
38. Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.“
Being legally inadmissible evidence, that has been inadvertently admitted as evidence, the trial Court can suo motu expunge it from the evidence during its judgment. See Anyaebosi v. R.T Briscoe Nig Ltd (supra). So the error of the trial Court in expunging exhibit F from the evidence on the ground that it was made during pendency of the proceedings in this case did not occasion a miscarriage of justice, as it remained legally inadmissible evidence even without the said error and was liable to be expunged from the evidence at any stage of the case.
In the light of the foregoing issue No. 3 is resolved in favour of the respondent.
Let me now determine issue No. 4 which asks- “Whether or not the Lower Court misdirected itself in law by refusing to ascribe probative value to Exhibit F.“
I have carefully read and considered the arguments of both sides on this issue.
Whereas issue No. 4 as couched complains about the failure of the trial Court to ascribe probative value to exhibit F, the appellant’s arguments of that issue complain about the failure of the trial Court to properly evaluate or properly ascribe probative value to exhibit D.
Exhibit D is a letter from the Corporate Affairs Commission (CAC) dated 25-8-2016 on the corporate status of Turiya International Ltd. Exhibit F is the letter from Haliru Mahe Haliru & Co. So while issue No.4 as couched complains about how the trial Court dealt with Exhibit F, the arguments of that issue addressed a different subject matter, to wit, that the trial Court did not properly evaluate exhibit D and drew the wrong conclusions therefrom.
The arguments are incompetent as they do not deal with the subject of the issue under which they were made. Arguments of an issue in a brief in an appeal must address the subject matter of the issue and not deal with a subject matter not raised for determination in that issue. Arguments that are not consistent with the issue under which they are argued are incompetent and liable to be struck out. Therefore, the arguments under issue No.4 in the appellant’s brief are hereby struck out.
Since the issue No.4 as couched is not argued, it is deemed abandoned and is hereby struck out.
On the whole this appeal succeeds in part. The respondent lacked the locus standi to sue. Therefore, the trial Court lacked the jurisdiction to entertain and determine the suit. The purported exercise of jurisdiction is a nullity. The entire proceedings and judgment of the trial Court is a nullity. Accordingly the proceedings and judgment of the trial Court delivered on 14-3-2019 by A.I. Chikere J. in suit No. FHC/ABJ/CS/998/2016 is hereby set aside and struck out.
The respondent shall pay costs of N400,000.00 to the appellant.
PETER OLABISI IGE, J.C.A.: I agree.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the opportunity of previewing in draft the Judgment just delivered by learned brother, EMMANUEL AKOMAYE AGIM, JCA and I agree with his reasoning and resolution of all the issues in the Appeal.
I have nothing more to add and I also allow the Appeal and abide by the other orders made in the lead Judgment.
Appearances:
PAULYN O. ABHULIMEN, ESQ., with him, A. N. OTTAH, ESQ. For Appellant(s)
AMOS ENEMALI IGOMU, ESQ. For Respondent(s)
