BASIL ANIKA v. DIAMOND BANK PLC
(2014)LCN/7061(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of March, 2014
CA/K/10/2006
RATIO
WHETHER THE CONTENTS OF A DOCUMENT MAY BE PROVEN PRIMARY OR BY SECONDARY EVIDENCE
Content of documents may be proved either by primary or by secondary evidence. The purport of the provision is to give a party the option or discretion to prove the contents of a document generally in judicial proceedings either by primary or secondary evidence thereof. See; Section 93 of the Evidence Act and the case of; Ogu Vs M.T & M.C.S. Ltd (2011) 8 NWLR (Pt.1249) 345 at 373. PER ABDU ABOKI, J.C.A.
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
BASIL ANIKA Appellant(s)
AND
DIAMOND BANK PLC Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Kano State High Court delivered on the 27th April, 2005 by M.S Mato J.
The Respondent was the Plaintiff at the lower Court, while the Appellant was the Defendant.
The Respondent commenced the action giving rise to this appeal under the undefended list procedure brought pursuant to Order 23 Rules 1 of the Kano State High Court (Civil procedure) Rules 1988. Where in he claims as per the statement of claim dated 3rd November, 2004 against the Appellant as follows;
a. The sum of N4,018,063.99k (Four Million Eighteen Thousand, Sixty Three Naira and Ninety Nine Kobo) and
b. Cost of this Action.
The Appellant at the trial Court was granted leave to file a notice of intention to defend the action, wherein he contended that he never applied for an overdraft facility whether secured or otherwise and was never granted such either directly or by way of an overdrawn account. The lower Court on 26th July, 2004 transferred the case to the general cause list for hearing. Parties filed and exchange their pleadings.
At the hearing of the matter on 27/04/2005, the Respondent as plaintiff through PW1 sought to tender a photocopy of a cheque and the statement of account of the Appellant, which was opposed by the Appellant on the ground that the two documents offend sections 91(1), 97 and Section 97(2)(e) of the Evidence Act respectively. The trial Court in its ruling on 27/04/2005 held as follows;
On the photocopy of the cheque;
“…At this stage, I do not think the objection raised can affect the admissibility of the document in evidence as the trend now is to carry out or consider substantial justice and minimize dealing on technical hitches. The copy of the cheque is admitted in evidence and marked exhibit 4”
And on the statement of account the Court held as follows;
“……I have considered the issue at stake i.e the computer print out statement of account sought to be tendered by the plaintiff. In this regard, the Supreme Court decision in Esso West Africa Vs T. Oyegbola 1969 1 NWLR 194 at 198 is relevant, where the Court held that the need to extend the horizon section 38 of the Evidence Act to include or cover computer which was virtually not in existence or a very rudimentary stage at that time is very appropriate.
The Supreme Court went further to hold that the law cannot be and is not ignorant of the modern times reproductions in inscriptions on ledgers or other document by mechanical process are common place.
This decision was echoed in the appeal Court in the case of Trade Bank Vs Chami (2004) All FWLR (Part 235) Pg.118 where the Court held that section 38 of the Evidence Act deals with entries in books of account regularly kept in the course of business and thus relevant. The section does not require the production of books of account but makes entries in such books relevant for admissibility. The Court is not obvious too or ignorant of modern business world and the technological advancement of the modern jet age.
On the above premise I hold that this Court has power to admit the statement of account and is hereby admitted and marked as exhibit 3”.
Dissatisfied with the rulings above the Appellants caused to be filed a notice of appeal dated 10/5/2005 against the said delivered on 27/04/2005.
In accordance with the rules of this Court Appellant filed their brief of argument. The Respondent has not filed any brief.
The Appellants from their two grounds of appeal distilled two issues for determination of this appeal. The issues are adumbrated as follows:
1. Whether in view of the provisions of section 91(1) & 97(1) of the Evidence Act the learned trial judge was right in admitting the photocopy of the cheque purportedly issued by the defendant into Evidence.
2. Whether in view of the provisions of section 97(2)(e) of the Evidence Ad the learned trial judge was right in admitting the purported statement of account belonging to the defendant into Evidence.
The issues as couched by the Appellant have captured the essence of the dispute between the parties. Same will be adopted for the determination of this appeal.
ISSUE ONE
Whether in view of the provisions of section 91(1) & 97(1) of the Evidence Act the learned trial judge was right in admitting the photocopy of the cheque purportedly issued by the defendant into Evidence.
The Appellant submitted that the nature of the document admitted in Evidence by the trial Court is a photocopy, in other words a secondary Evidence of the original. He contended that the question of whether or not a document is admissible in Evidence is governed by the Evidence Act. He referred the Court to sections 96 and 97(1) of the Evidence Act. He maintained that the cheque pleaded by the Respondent does not fall within the purview of section 97(1) as to permit its secondary Evidence to be admissible, because there was no Evidence before the trial Court as required by section 97(1) which shows any of the items contained in section 97(1) (a-h). He referred the Court to paragraph 3.4 of the Appellant’s brief of argument which is the Evidence in chief of P.W.1.
Learned counsel insisted that the photocopy of the cheque admitted in Evidence by the trial Court does not fall within the purview of section 97(1a-h) of the Evidence Act. He referred the Court to section 91(1)(a) and (b) of the Evidence Act, particularly the operative clause “shall, on production of the original document”. He contended that there is hardly any need for further consideration as per whether or not the trial Court satisfied itself as regard the fulfillment of the conditions stipulated in section 97(1)(a) i & ii (b) because the document admitted by the trial Court was not an original document as stipulated by section 91(1) but photocopy.
Learned Appellant’s counsel also contended section 91 (2 a-b) of the Evidence Act, gives the trial Court discretionary power to admit a statement mentioned in section 91(1) or a certified true copy in the circumstances of the case, if the Court is of the opinion that undue delay or expense would otherwise be caused. He referred the Court to the case of Igbodin Vs Obianke 1976 1 NWLR P.212. He submitted that the discretion must not preclude the other party from being heard, that is to dispense with the rule of natural justice of audi alteram partem. He referred the Court also to the case of Ogiogun Vs Idukpaye 1959 WRNLR 81.
He also cited the case of Daggash Vs Bulama (2004) ALL FWLR (Part 212) Pg.1666 at 1736. Where the Court held thus;
“where the original document is not produced but a photocopy, it is inadmissible as not in compliance with section 94, 95 and 96 of the Evidence Act, if the where about of the original was not explained”. (Underline mine for emphasis)
Learned counsel referred the Court to the testimony of PW1 as contained in paragraph 3.4 of the Appellant’s, the only explanation given for failure to produce the original is that the original is with the Zonal Police. He submitted that this explanation is insufficient in law under section 91(2) of the Evidence Act, as it neither contends that efforts have been made to get same and same proved futile nor was Evidence given to show that expenses would be incurred to get the original, this fact was not pleaded. He submitted that had the plaintiff pleaded this fact the defendant would have denied same.
Learned counsel argued further that since the plaintiff pleaded that the cheque shall be relied upon this presupposes that the original would be produced and not its photocopy. It is the contention of the learned counsel that parties are bound by their pleadings. Evidence upon facts not pleaded goes to no issue and the Court cannot rely on them. He referred the Court to the case of Hadisu Vs Goje (2001) All FWLR (Pt.228) 666.
He argued that in a trial by pleadings’ a party seeking to tender document and had already pleaded it in its form, only the document will be admissible in that form. He referred the Court to the cases of Okpara Vs Selobar (2003) FWLR (Pt.142) 1 and Hadisu Vs Goje (supra).
He urged the Court to resolve this issue in favour of the Appellant.
The contention of the learned Appellant’s counsel is that the photocopy of the cheque admitted by the trial Court does not fall within the purview of section 91(1) & 97(1) of the Evidence Act. The grounds of his contention is that the maker was not the party tendering same and no evidence to show that the original was lost, destroyed, not easily movable or in possession of the Appellant. Hence, the trial Court was wrong in admitting it.
Content of documents may be proved either by primary or by secondary evidence. The purport of the provision is to give a party the option or discretion to prove the contents of a document generally in judicial proceedings either by primary or secondary evidence thereof. See; Section 93 of the Evidence Act and the case of; Ogu Vs M.T & M.C.S. Ltd (2011) 8 NWLR (Pt.1249) 345 at 373.
The evidence act by virtue of section 97(1) (a-h) provides that secondary evidence relating to documents may be given in the following cases;
“Secondary evidence may be given of the existence, condition or Contents of a document in the following case;-
a. When the original is shown or appears to be in possession or power-
i. Of the person against whom the document is sought to be proved, or
ii. Of any person legally bound to produce it, and when after the notice mention in section 98 of this Act, such person has not produce it;
b. When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
c. When the original has been destroyed or lost and in the later case all possible search has been made for it;
d. When the original is of such a nature as not to be easily movable;
e. When the original is a public document within the meaning of section 109 of this Act;
f. when the original is a document of which a certified copy is permitted by the Act, or by any other law in force in Nigeria, to be given in evidence;
g. when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;
h. when the document is an entry in a banker’s book”. (Underline mine for emphasis).
The Respondent at the trial Court in paragraph 16 of its pleadings claim as follows;
“The said lawyer took up the matter from the criminal perspective which led the police to investigate the matter leading to the arrest of the defendant and the collection of some of the original cheques that form the basis of this claim” SEE; Page 11 of the printed record (underline mine for emphasis.)
In his defence the Appellant reply thus;
“The defendant admit paragraph 16 to the extent that upon a complaint lodged against him by the plaintiff to the Nigerian police force headquarters Bompai. He was arrested and detained for several days at the cell of the Nigerian police at Bompai, Kano” See; page 16 of the printed record (underline mine for emphasis.)
From the above facts the Respondent has laid proper foundation for the admissibility of the secondary evidence. Therefore, the Appellant cannot complain that he was not given fair hearing on the where about of the original cheque.
Section 91(2) of the Evidence Act vest a discretion in Courts to admit statement mentioned in section 91(1) of the Act, even when the original is not produce if the Court is of the opinion that undue delay or expenses would be caused. From the circumstance of this case undue delay would be caused if the trial Court decided to wait for the original cheque before proceeding with the matter. The admitted photocopy of the cheque falls under the exceptions provided under section 91(2) of the Evidence Act and admissible under section 97(1)(f) of the said act. Therefore, the trial Court was right in admitting it in evidence.
Less I am wrong in my finding as above; I take solace in the fact that the existence of the original has been admitted in writing by the Appellant. Hence, admissible under section 97(1)(b) of the Evidence Act. Where a document is rendered admissible on the fulfillment of certain conditions as in the instance case, it is admissible on fulfillment of those conditions or if admitted by the other party. See;
OKEKE VS OBIDIFE (1965) NMLR 113; RODERICK ONEH & ORS VS VERONICA OBI & ORS (1999) 7 NWLR (PT.611) PG.487.
In the instance case the Respondent as plaintiff at the trial Court in his affidavit in support of summons contended that the Appellant issued exhibit EO3 (the disputed cheque No. 02701027 dated 28/7/99) to it. See; page 67 of the printed record. The Appellant as defendant in his affidavits in support of notice of intention to defend admitted that he issued the said exhibit EO3 (the disputed cheque No. 02701027 dated 28/7/99) to the Respondent bank for payment. See; page 64 paragraphs 7 and page 18 paragraphs (i) of the printed record respectively. It is trite law that what is admitted need no further proof.
Therefore, the trial Court was right in admitting the cheque in evidence. As rightly observed by the trial Court the trend now is to consider substantial justice and minimized dealing on technicality.
This issue is resolved in favor of the Respondent.
ISSUE TWO
Whether in view of the provisions of section 97(2)(e) of the Evidence Act the learned trial judge was right in admitting the purported statement of account belonging to the defendant into Evidence.
Learned Appellant’s counsel submitted that the substance of this issue concerns the admissibility of secondary Evidence and it is trite that the Evidence Act Cap 112 governs the admissibility of secondary Evidence in all proceedings in the superior Courts of record in Nigeria.
On cases in which secondary Evidence relating to documents may be given learned counsel referred the Court to sections 97(1)(h), 97(2)(e) of the Evidence Act. He also referred the Court to the case of I.B.W.A Ltd Vs Imano Nig. Ltd (2001) FWLR (Pt.44) page 421 where the court interpret section 96(1)(b) and section 96(2)(e) of the Evidence Act Cap 62 laws of Nigeria 1958 which contend is pari material with section 97(2)(e) of the Present Evidence Act.
Learned counsel contended further that from the relevant testimony of PW1 in this case as supplied in paragraph 3.8 of the Appellant’s statement of facts there is no Evidence before the Court on the following;
1. The book in which the entries copied were made was at the time of making one of the ordinary books of the bank
2. That the entry was made in the usual and ordinary course off business
3. That the book is in the custody and control of the bank
4. That the copy was examined with the original entry and is correct
5. That PW1 is the one who examined the copy with the original entry and can testify it is correct.
Counsel submitted that it is trite law a party who pleads a document and wishes to rely thereon must lay evidential foundation to warrant the admissibility of that document. Where the requirements under the Evidence Act are not met the document so admitted in contravention of the Act must be expunged. He referred the Court to the case of Okonkwo Okonji Vs George Njokanma & Ors (1999) 11 & 12 SCNJ 259 at 279.
It is the learned counsel contention that the trial Court fell into grave error when it relied upon the case of Trade Bank Plc Vs Chaumi (2004) ALL FWLR (Pt.235) at 118, the case dealt with section 38, 91(3) and 91(5) of the Evidence Act and not section 97 thereof. He referred the Court to section 38 of the Evidence Act.
He submitted further that the admissibility of exhibit 3 being a statement of account does not fall within the purview of section 38 of the Evidence Act but section 97(2)(e) thereof and the test of admissibility of a relevant document must be satisfied. He referred the Court to the case of Okonkwo Okonji Vs George Njokanma & Ors (supra).
Counsel also referred the Court to the case of UBA Plc Vs Abacha Foundation (2003) FWLR (Pt.178) Page 978 at 997 para H-A. He submitted that the trial Court wrongly placed reliance upon the case of Esso West Africa Vs T. Oyegbola (Supra) as basis for admissibility of exhibit 3. He insisted that the trial Court ought to have relied on the non-compliance with section 97(2)(e) to reject the statement of account from being admitted in Evidence.
He argued that the widest extension of the horizon of section 38 of the Evidence Act to include computer as suggested in the trial Court’s decision can never be used as legal guidelines for the admissibility of a secondary Evidence of an entry in banker’s book.
Counsel insisted that the case of Esso West Africa Vs T. Oyegbola (Supra) and the instance case are distinguishable.
Finally, learned counsel to the Appellant submitted that based on the foregoing, this appeal has merit. He urged the Court to allow this appeal set aside the decision of the trial Court and direct this case to be heard by another judge.
By virtue of section 2(1) of the Evidence Act, document include computerized statement of account. See FRN Vs Fani-Kayode (2010) 14 NWLR (Pt.1214) 481.
It is trite law that the appropriate method used by banks to establish the indebtedness of its customer is through entries in its books. Because of the bulky nature of these books, the banker is allowed to prove these entries by secondary evidence. But this is regulated by section 97(1)(h) and 97(2)(e) of the Evidence Act. See; Akanmu Vs Co-Operative Bank Plc (2006) NWLR (Pt.963) Pg.86 at 100.
Therefore, by virtue of section 97(1)(h) of the Act, secondary evidence may be given of the existence, condition or contents of a document when the document is an entry in banker’s book subject to the conditions contained in section 97(2)(e) of the Act. See;
Akanmu Vs Co-Operative Bank Plc (supra) at 100.
Lufthansa German Airlines Vs Ballanye 2013 1 NWLR (Pt.1336) 527 at 549-550.
Section 97(2)(e) of the old Act now section 90(1)(e) of the new Act provides as follows;
“Secondary evidence admissible in respect of the original document referred to in the several paragraphs of subsection (1) of this section is as follows-
…………….
(e) – in paragraph (h) the copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary book of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank and that the copy was examined with the original entry and is correct, which proof must be given by some person who has examined the copy of the original entry and may be given orally or by affidavit.”
In determining the conditions for admissibility of secondary evidence of entry in a banker’s book as stated in section 97(2)(e) above, it is pertinent to reproduce the oral evidence of PW1 for ease of reference;
“My name is Yohanna Jebe, I work with the Lion Bank of Nigeria Plc. I am the development manager. I know the defendant He is our customer. On 2nd July, 1998, he opened a current account with our bank, Kano branch. He completed all necessary forms accordingly and cheque book was issued to him. Among the documen9 filed are the mandate forms and signature card. I can recognize the signature card through the photograph, signature and name of the defendant including his account number. He was issued a cheque book to enable him operate the account. The defendant did operate the account. He issued cheque to his customers who in turn presented the cheques to us through the central bank of Nigeria. His own account in most cases was not funded to accommodate those cheques he issued to his customers. In such cases, the defendant pleaded with us to honor such cheques which we did. By honoring the cheques. I mean we paid the cheques.
On 28th July, 1999, a cheque of N2.5Million was presented to us by Nasco Tex, a customer of the defendant who was issued a cheque by ne defendant on 15th July 1999 through the central bank. As usual he pleaded with us to pay even though the account was not funded. We paid the cheque. …… After that incidence, the account was in debt. He made some payments that were not enough to pay the indebtedness of account. The statement of account has details. I can identify the statement of account through the statement paper, the account number and the Account Name Basil C. Anika, the defendant’s name.”
It is not the length of evidence given in tendering a bank statement of account that matters but the substance of the evidence given. It is not a requirement of law that the precise words set out in section 97(2)(e) of the Act should be used by the witness in his evidence, it is enough that substantially the requirements of the section are observed. See;
Aiyetoro Comm. Trading Co. Ltd Vs N.A.C.B. LTD. (2003) 12 NWLR (Pt. 834) Pg.346 at 378.
I.B.W.A Limited Vs Imano (Nig) Ltd (2001) 3 SCNJ 160.
In Narindex Limited Vs N.I.M.B. Limited (2001) 4 SCJN 208. The Apex Court held, regarding the admissibility of a statement of account, that the person tendering it needed only to comply substantially with S.97(2)(e) of the Act now section 90(1)(e) of the Evidence Act 2011.
In the instance case the Respondent relies on Exhibit 3 – Statement of Account produced by the Manager from the custody of the bank. In situations where it is not possible to produce the banker’s books before the Court as in the instance case, a copy of the statement of account is sufficient evidence to establish that there is a book in existence from where copies were made. The production of Exhibit 3 by witness who is a Manager of the Respondent, presupposes that he has compared the copy he presents with the original. I find support in this opinion of mine in the case of Yesufu Vs A.C.B Ltd (1976) 4 SC 1.
I am satisfied from the evidence of PW1 which the defendant/Appellant has not deemed it appropriate to cross-examined him that the requirements of the provision of section 97(2)(e) of the Act on admissibility of the statement of account has been substantially complied with. The trial Court was correct in admitting Exhibit 3 in evidence.
This issue is also resolved in favor of the Respondent.
This appeal lacks merit and it is accordingly dismissed. There is no order as to costs.
ITA GEORGE MBABA, J.C.A.: I have had the privilege of reading, in draft, the lead judgment just delivered by my learned brother, Abdu Aboki, JCA, and I agree with him completely.
There was evidence that the original copy of the cheque in issue was in the custody of the Zonal Police and the case was being charged to Court and the lower Court clearly captured this in its short ruling admitting the certified true copy of the cheque, thus:
“The witness has already testified to the fact that the original is with the Zonal Police and the case was being charged to Court, hence in my view, the proper foundation has been laid to warrant admitting the photocopy and is hereby admitted in evidence and marked exhibit 2.”
That findings of the trial Court, that the original copy of the cheque was with the Zonal Police, was not challenged by the Appellant in this appeal and so it remained binding and conclusive (See Shukka vs. Abubakar 2012) 4 NWLR (Pt.1991) 497. Of course, that justified the tendering of a certified true copy of the cheque. After – all, that is what section 97(1)(a) of the Evidence Act, 2004, was meant to protect, to allow the tendering of a secondary copy:
“When the original is shown or appears to be in possession or power:
(i) of the person against – whom the document is sought to be proved or
(ii) of any person legally bound to produce it, and when after the notice… such person has not produced it.”
I think this appeal on this issue was ill-advised, as the certified true copy of the cheque was properly admitted in evidence.
In the case of Esso West African vs. T. Oyegbola (1969) 1 NMLR 194 at 198, the Supreme Court gave early warning that:
“… the law cannot be and is not ignorant of modern times reproduction in inscriptions on ledgers or other documents by mechanical process. ”
The learned trial Court had considered the above warning and other cases including Trade Bank vs. Chami (2004) All FWLR (Pt.235) 118 in the issue of computer generated documents, like statement of account. Of course, by section 51 and 52 of the Evidence Act, 2011, electronic records and computer generated documents are admissible in our Courts. In the case of Narindex Ltd vs. N.I.M.B. Ltd (2001) 4 SCNJ 208, the apex Court gave clear guide regarding admissibility of statement of accounts, electronically generated, that the persons tendering need only comply substantially with section 97(2)(e) of the Evidence Act (now 90(1)(e) of the 2011 Act). Judging by the evidence of PW1 leading to the tendering of the statement of account (Exhibit C), it was obvious the requirements of section 97(2)(e) of the Act were substantially complied with to justify the admission of the document.
I cannot therefore fault the discretion of the learned trial Court, and so resolve the issues against the Appellant.
I too dismiss the appeal and abide by the consequential orders in the lead judgment.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Abdu Aboki, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusions reached therein.
Appearances
Parties not in Court and unrepresented.For Appellant
AND
Parties not in Court and unrepresented.For Respondent
