NORTHWEST ENERGY NIGERIA LIMITED & ANOR v. IBAFON OIL LIMITED (2014)

NORTHWEST ENERGY NIGERIA LIMITED & ANOR v. IBAFON OIL LIMITED

(2014)LCN/7572(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of November, 2014

CA/L/707/13

RATIO

EVIDENCE: DOCUMENTARY EVIDENCE; THE KIND OF SECONDARY EVIDENCE OF PUBLIC DOCUMENT THAT ARE ADMISSIBLE AND THE DOCUMENTS THAT ARE PUBLIC DOCUMENT
That being the case, it falls under Public documents envisaged by Section 102 of Evidence Act 2011. Section 89 (e) provides that secondary evidence may be given of such documents under section 102.
The Exhibits under contention were tendered as photocopies. Section 88 of the Evidence Act provides that except as otherwise stipulated by the Act, documents must be proved by primary evidence while Section 89 has stipulated the conditions under which secondary evidence may be given. Section 90 (1) stipulates the kind of Secondary evidence of public document that are admissible. Section 90(1)(c) provides that secondary evidence admissible in respect to the original documents referred to the several paragraphs of Section 89 as it relates to paragraph (e) or (f), a certified copy of the document, but no other secondary evidence is admissible.
Section 89(d) of the Evidence Act, 2011 provides to the effect that:
Secondary evidence may be given to the existence, condition or contents of a document when-
a. ….
b. ….
c. ….
d. ….
e. the original is a public document within the meaning of section 102.

Section 102 defined documents that are public document and it state thus:
the following documents are public documents –
a. documents forming the official acts or records of (i) the sovereign authority, (ii) official bodies and tribunals; or (iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
b. public records kept in Nigeria of private documents.
Section 102 (a) i-iii of the Act refers to documents executed in official capacities. See KWARA STATE WATER CORP. v. AIC (NIG) LTD (2009) ALL FWLR (Pt. 485) 1738 AT 1758;

In ADEKDA v. AILERA (2011) ALL FWLR (Pt. 572) 1696, it was held that a public document is made by a public officer for the purposes of the public making use of it and being able to make reference to it or a document of public interest issued or published by a political body or otherwise connected with public business.
Classification of Public document stands on two conditions which must co-exist – a) its availability must be for public inspection, and; b) the fact that it was made or brought into existence for that purpose. See LIKANA v. C.O.P. (1995) 8 NWLR (Pt. 416) 206; BISCHI TIN CO. LTD v. C.O.P. (1963) ALL NLR 476; NITEOG WHILE v. OTNO (2001) 6 SCNJ 231 AT 256; AYENI v. DADA (1978) 3 SC 35; OKOH v. IGUESI (2009) ALL FWLR (Pt. 264) 891.

The purpose of the document qualifies it as a public or a private document. As itemized above, the documents in issue in this case form records of activity of the said company (PPMC) from whom petroleum products were purchased. Therefore, such records are available for public inspection.
Only a certified copy of such public document shall be tendered and admitted in evidence. See ARAKA v. EGBUE (2003) FWLR (Pt. 175) 507 SC. In ONOBRUCHEE v. ESEGINE (1986) 1 NWLR (Pt. 19) 799 AT 808 SC, the Supreme Court held that even if a document is signed, as far as it is merely photocopies and not certified, it is inadmissible. per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

EVIDENCE: INADMISSIBLE OF EVIDENCE; HOW THE COURT SHOULD TREAT INADMISSIBLE EVIDENCE

In IKENNA v. BOSAH (1997) 3 NWLR (Pt. 439) @ 452, ACHIKE, JCA as he then was said inter alia:
“… where a court inadvertently acknowledges inadmissibility evidence in law, it has a duty generally not to act on it because it is not legal evidence. It should either disallow it or expunge it. If it fails to do so, an Appellate court should do so. It is immaterial that the opposing party did not take objection to the admissibility of the document or evidence that is legally inadmissible. The responsibility of the court to disallow such evidence remains inchoate…” per. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

1. NORTHWEST ENERGY NIG. LTD
2. MRS. WINIFRED AKPANI Appellant(s)

AND

IBAFON OIL LIMITED Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the Hon. Justice Grace Onyeabo of the High Court of Lagos State delivered on 17th May 2013. Judgment was entered in the sum of N104,047,330.60 as special damages in favour of the Respondent in respect of 20,000 tons of Petroleum Product lifted by the Appellants contrary to the terms of Exhibit B(the partnership Agreement/Joint Venture Agreement) between the 1st Appellant and the Respondent and the sum of N50,000 as costs in favour of the Claimant/Respondent.

Summary of the Facts are that, the Claimant entered into a partnership agreement with the Respondent for obtaining/securing the Petroleum Products from the NNPC/PPMC. By the agreement, the 1st Respondent was to use its goodwill to secure the importation/Exportation of the product in the name of ASODYKE.
It was further agreed that the parties would share the product to allocated on 60/40 ratio but the Claimant taking the bulk share. The Defendant was obligated not to use the name Asodyke as the documents provided for any purpose.

Claimant alleged for Defendants breached the Agreement by using the name Asodyke for purposes other than what was agreed resulting in damages the claimant. The Claimant is therefore making a claim for the sum of N211,180,250.60 for breach of contract.
Dissatisfied with the judgment, the Appellants / Defendants appealed vide a notice of Appeal dated 24th of March 2013 on 3(three) grounds, thus:

i. Whether the Lower Court was correct to have accepted, relied and acted on Exhibit C, D1, D2, F and F1 in arriving at her decision? (Ground One of Notice of Appeal)
ii. Whether the Respondent discharged the burden of proving that the Appellants breached Exhibit B – The Joint Venture Agreement/Partnership Agreement in view of the evidence produced by the Respondent? (Ground Two of Notice of Appeal).
iii. Whether the ipse dixit evidence of CW was sufficient to support the Court’s decision in respect of the special damages awarded against the Appellants? (Ground Three of Notice of Appeal).
Appellants’ Brief of Argument is dated and filed 23/10/13 but deemed properly filed on 16/1/14 and a reply brief dated and filed on 23/9/2014 but deemed filed on 25/9/14 and settled by M. A. Kazeem. While, the Respondent’s Brief of Argument was dated and filed on 3/4/14 was deemed properly filed on 25/9/14 and settled by I. P. Dick, Esq.

The Respondent formulated a sole issue for determination, which encompasses the 3 grounds of Appeal thus:
“Whether the judgment of the Honourable Court below was based on legal, credible and/or reliable evidence?”

For the purpose of determining this appeal, I shall adopt the Appellants’ issues which are specific complaints of the judgment.
Issues 1 and 2 are formed from ground one of the Notice of Appeal and flows from the same source, therefore they shall be taken together. It complains of the admissibility of Exhibits C, D1, D2, F and F1, and the reliance thereon by the lower court in arriving at her decision.
Appellants submitted that from the extracts of the trial judge’s judgment at Page 311 of the record of appeal, the Learned Trial Judge relied heavily on the above Exhibits in arriving at the conclusion that the Defendants breached the agreement. Appellants’ counsel further submitted that Section 1 of the Nigeria National Petroleum Commission Act establishes the Nigeria National Petroleum Commission while Sections 6 & 7 empowered it to create subsidiaries and keep records of its activities and the transactions respectively. Counsel further argued that the Pipelines and Products Marketing Company Limited (PPMC) is one of such subsidiaries as confirmed by the Respondent in its Statement of claim and other processes and as a result, the documents emanating from this body (PPMC) is such contemplated by Section 102 of the Evidence Act 2011 as public documents.

Kazeem, Esq. as counsel to the Appellants further contends that, Exhibits C, D1, D2, F and F1 are documents emanating from PPMC and are therefore public document purportedly originating from a public body. He referred to Section 85, 88(c) and 90 of the Evidence Act and MINISTER OF LANDS, WESTERN NIGERIA v. DR. AZIKIWE (1969) 1 ANLR 49 and submitted that only a Certified True Copy is admissible of any public document.

Counsel to the Appellants also cited OKOCHA & CO v. INEC (2010) LPELR-CA/B/EPI/34/05; ARAKA v. EGBUE (2003) 17 NWLR (Pt. 484) 18; IKERRA & ANOR v. BOSAH & ORS (1987) 3 NWLR (Pt. 494) AT 542-453; OLANLOYE v. FATUNBI (1999) 8 NWLR (Pt. 614) 203 at 230; CHIEF VALENTINA JOHNSON NWOKO v. PASTOR FELIX ILOKA OJENI ENUSAH (1978) LPELR-12807(CA) 103; OSHO v. APE (1998) 8 NWLR (Pt. 562) 492; MALSHEA & ORS v. ILORI ILU & ORS (1965) NMLR 66 AT 71; OKEREKE v. STATE (1998) 3 NWLR (Pt. 540) 75 AT 85-87; UMOGBA v. AIYEMOGBA (2002) 8 NWLR (Pt. 770) 657 @ 694 and argued that the Trial Court should not have admitted photocopies of public documents and even if it admits same, it ought not to have relied on it in its judgment. Counsel submitted that a court cannot admit inadmissible evidence, even where parties did not object. Counsel further contended that once a document is not admissible, then it must be excluded either by the trial judge or the Court on Appeal.
Finally, he urged that the Exhibits be expunged.
The second point is on whether the Respondent discharged the burden of proving that the Appellants breached Exhibit B – (the Joint Venture Agreement/Partnership Agreement) – in view of the evidence produced by the Respondent?

Appellants’ counsel contended that the burden of proof lay on the Respondent pursuant to Section 131 of Evidence Act 2011 and that in an attempt to discharge this burden, the Respondent relied on Exhibit C, D1, D2, F and F1 and the Appellants, having argued that these are public documents, ought to have certified them, failure of which they are rendered inadmissible. Counsel further submitted that if this argument is upheld, it would be clear that the Respondent failed to adduce credible and convincing evidence that the Appellants breached the agreement. Counsel relied on the following cases: A-G OYO STATE v. FAIR LAKES HOTEL NO. 2 (1989) 5 NWLR (Pt. 121) 255 AT 285; OLAWERE v. OLANREWAJU (1993) 1 NWLR (Pt. 534) 436; OKAFOR v. IGWILO (1997) 11 NWLR (Pt. 527) 36 @ 50; A.A.B. CHANCHANGI & SONS LTD v. NRC (1996) 5 NWLR (Pt. 446) AT 56 and argued to the effect that where a documentary evidence is absolutely inadmissible on the grounds of statutory exclusionary provisions, such documentary evidence remains legally inadmissible and cannot under any circumstance constitute evidence in the case at the trial or an appeal, even where counsel failed to object to its admissibility.

He urged the court to allow the appeal. In his brief, Respondent’s counsel submitted that Exhibit B is legal, credible and reliable evidence and that this is a common ground between the parties. He placed reliance on Clause 11 and submitted that the evidence of Claimants Witness Statement on Oaths in paragraph 12 was sufficient to the effect that the claimant was prevented from participating in thbe total Assignment of 28,000 metric tons of AGO and therefore exposed the Appellant to special damages. Counsel contended that the Appellants had a burden to prove that he did not use the name of Asodyke Limited for any transaction or that if it did, it did not unlawfully use the name.
Respondent’s counsel further submitted that the Appellants did not deny the evidence of Respondent in paragraphs 7, 8, 9, 10 and 11 of the evidence-in-chief of the DW1 and that the Appellants did not deny lifting the products in Exhibit C without Respondent’s participation.
Counsel argued that the judgment of the Trial Court was based on 2 planks:

a. Uncontroverted oral evidence of Claimant/Respondent at the lower court (which amounted to admission of facts by the Defendant/Appellant); and

b. Documentary evidence (Exhibits C, D, D1, D2, D3, D4, 5, 6, 7 and 8).

Counsel further submitted that the judgment was largely based on the uncontroverted evidence of Respondent’s witness at the lower court. Counsel relied on ARABIAMBI v. A.B.I. LTD (2006) 3 MJSC 51 AT 96. Counsel submitted that nothing in the judgment indicates that the admission of the Respondent witness’ testimony by the Appellants’ witness was not enough to firmly ground the decision of the court below. He relied on A-G ANAMBRA STATE v. A-G OF THE FEDERATION (2005) ALL FWLR (Pt. 268) 1565; HARUNA v. UNIVERSITY OF AGRICULTURE MARKUDI (2006) ALL FWR (Pt. 304) 439; OLAGUNYI v. OIYENIRAN (1996) 6 NWLR (Pt. 453) 127; AGBANELO v. UNION BANK OF NTGERIA (2000) 4 SC (Pt. 1) 233.

Appellants’ counsel in his reply brief submitted that in order to tilt the imaginary scale of justice in favour of a party, a court must be satisfied that the party has placed qualitative and credible evidence before it. Counsel cited OGUNDARE & ORS v. ALAO (2013) LPELR-21845 (CA) and submitted further that it was Exhibit C, D – F1 that tilted the scale in favour of the Respondent as found by the Lower Court and this is totally inadmissible.

Counsel relied on AIC LTD v. NNPC (2005) 22 NSCQLR 903 AT 925 and submitted that from pages 388 -389 of the record, it is clear that the judge relied on Exhibit C in reaching his decision.
On oral evidence of CW1, Counsel submitted that the evidence is deemed, totally dependent, rooted and based on Exhibit C-F2 and therefore if Exhibit C is expunged, the testimony of CW1 cannot exist. He relied on KATE ENTERPRISES LTD v. DAEWOO (1989) 21 NWLR (Pt. 9) 116.
Appellants’ counsel contended that CW1’S evidence is hearsay evidence having being employed after the events complained of. He relied on KELI & ANOR v. AGLER (2014) LPELR-22653 CA; YADIS (NIG) LTD v. GCIN (2007) 14 NWR (Pt. 1059) 584. Counsel also referred to Section 128 of the Evidence Act and submitted that no evidence may be given of contents of documents except the document itself or secondary evidence of its contents in cases which secondary evidence is admissible under the Act and that parole evidence is not admissible in proof or add to in contradiction of a written document. Counsel placed reliance on the case of A-G BENDEI STATE v. UBA (1989) 4 NWLR (Pt. 37) 547.
This issue appears to be the bedrock of this appeal. It questions the admissibility of Exhibit C, D1, D2, F and F1.

Exhibit C – is an NNPC /PPMC document headed “Delivery to Petroleum Product to Ibafor/Apapa 2012-2013.
Exhibit D1, D2 and D are documents emanating from NNPC/PPMC showing allocation of the products to Aso Dyke Limited.
Exhibit F is NNPC/PPMC Proforma Invoice dated 25th April 2003.
Exhibit F1 – Oceanic bank cheque dated 28th March 2003.

A good point to start is the status of “PPMC” – the Pipelines and Products Marketing Company Limited. It is one of the subsidiaries of NNPC – Nigerian National Petroleum Corporation and created pursuant to Section 6 & 7 of the Nigerian National Petroleum Corporation Act 2004 – which gives NNPC powers to establish subsidiaries and keep records of its activities and business/transactions. Exhibit C, D1, D2 and F1 all are ordinary documents/records kept by NNPC/PPMC and therefore originates from them.
That being the case, it falls under Public documents envisaged by Section 102 of Evidence Act 2011. Section 89 (e) provides that secondary evidence may be given of such documents under section 102.
The Exhibits under contention were tendered as photocopies. Section 88 of the Evidence Act provides that except as otherwise stipulated by the Act, documents must be proved by primary evidence while Section 89 has stipulated the conditions under which secondary evidence may be given. Section 90 (1) stipulates the kind of Secondary evidence of public document that are admissible. Section 90(1)(c) provides that secondary evidence admissible in respect to the original documents referred to the several paragraphs of Section 89 as it relates to paragraph (e) or (f), a certified copy of the document, but no other secondary evidence is admissible.
Section 89(d) of the Evidence Act, 2011 provides to the effect that:
Secondary evidence may be given to the existence, condition or contents of a document when-
a. ….
b. ….
c. ….
d. ….
e. the original is a public document within the meaning of section 102.

In ONOBRUCHEE v. ESEGINE (1986) 1 NWLR (Pt. 19) 799 AT 808 SC, the Supreme Court held that even if a document is signed, as far as it is merely photocopies and not certified, it is inadmissible.

In the light of the above, it is trite that even though these Exhibits were tendered without objection from counsel on the other side, the fulfillment of the statutory provision on their certification cannot be waived nor can parties confer admissibility upon documents. Even if admitted, it could be expunged by the court at judgment stage. These documents are inadmissible in law and are expunged.
A step further is whether the exclusion of the exhibits would affect the outcome of the judgment?
The trial judge at page 388 of the Records of Appeal stated in its judgment as follows:
“Claimant’s witness at cross-examination testified that products were purchased by Proforma Invoice – Exhibit E is one of such invoice and the witness agreed that the 1st Defendants name was not reflected on Exhibit E. The claimant by the evidence is relying principally on Exhibit C to establish the fact that the defendant was involved in the transaction in respect of 28,000 tons of the products…”(underlining mine)

On Exhibits C, Asodyke is featured in No 1.8 therein with the 1st defendants name inserted within a bracket and 10,000 as the total quantity of AGO product. Exhibit C is titled “DELIVERY OF PETROLEUM TO IBAFON/APAPA ON 20/2/2005”. Asodyke featured 4times on Exhibit C. It is apparent that Exhibit C seems to be the anchor of the claimant’s case at the trial and as it is not certified in accordance with the provisions of Section 104 of the Evidence Act. It was wrongly admitted by the court along with the documents in that category that should have been rejected.
Respondent’s counsel contended that the judgment was in two planks – The Exhibits and the evidence of CW1. I have seen Paragraph 7 of further amended Claim, which states as follows:
“6. The Claimant avers that it complied entirely with its own obligation under the agreement as aforesaid.
7. The Claimant avers that the Defendant in total disregard of the terms and conditions of the agreement took the following steps:
(i) In the year 2003 for Automotive Gas Oil (AGO) the claimant participated in only 8,000 metric tons out of an 18,000 metric tons consignment lifted for Aso Dyke Ltd under the agreement whereby the 1st Defendant lifted 10,000 metric tons under AsoDyke Ltd without the consent and/or participation of Claimant.
(ii) Also in the year aforesaid, the 1st Defendant Aso Dyke Ltd lifted another 10,000 metric ton of Dual purpose Kerosene (DPK) which the claimant was not notified.
8. During the aforementioned 2003, the claimant lifted tonnage of 9,600 metric tons and made a (Gross) profit of N83,200,000 (Eighty three million, Two hundred thousand naira only) for its own purchase using strong it ration the, 1st Defendant made N171,412,217,7 (One hundred and seventy one million, four and twelve thousand, two hundred and seventeen naira, seven kobo) for 2003 purchase 60% of which is N104,047,330.6 (One Hundred and Four Million forty-seven Thousand, Three Hundred and Thirty Naira and Six Kobo only). A document showing direct delivery of Petroleum Product to Ibafon/Apapa for the year 2002-2003 (as prepared by Mrs. Edwina Egwuanumkwu, a staff of NNPC/PPMC Lagos) is attached and marked Annexture B hereto and shall be relied upon at the hearing of the suit.
9. The Claimant shall at the hearing of this suit further rely on other documents showing product receipt from Pipeline and Products Marketing Company/Nigerian National Petroleum Company in 2003 and stored in Ibachem Storage Tanks. Income statements are both Dual Purpose Kerosene and Automotive Gas Oil sales for the year 2003 (as ascertained from Ibafon Oil Ltd records) and they are hereby attached and marked Annexure C1-C9 respectively.”

Meanwhile, a perusal of the pleadings of the defendant reveals that there was no clear admission on the part of the Defendants as to whether they carried out any act that constituted a breach of the agreement between the parties. Witness statement of Defendants’ witness, Collins OGBU was very evasive in paragraph 18 and 19 at page 218 of the records on this point.

In the judgment at page 391 of the record, the lower court held:
It has been held that the defendant breached the agreement EXHBIT B as shown on claimant’s EXHIBIT C. See also EXH D1, D2, F & F1. As stated earlier, the defendants had a duty to show by credible evidence that the Claimant participated in the transaction represented in the documents exhibits C, D, D2, F & F1,
From the pleadings especially at paragraph 7 of the statement of claim, the Respondent placed heavy reliance on the Exhibits under contention: Exhibits C, D, D1, D2, F, F1 & F.
Furthermore, in the evidence of CW1, he also relied on Exhibit C as proof of his claim. The Judge also placed credence on the exhibit C to arrive at his conclusion that there was a breach of the agreement entered into by the parties.

I resolve issue 1 & 2 in favour of the Appellants.

ISSUE 3
Following the resolution of issues 1 & 2, it is conclusive that the evidence of CW1 was not sufficient to supports the decision on the award of special damages which by law must be strictly proved.
The proof of total tonnage allegedly lifted by Defendants and profit made having been expunged, there is no basis for the award, and it cannot stand. It is set aside accordingly. See GARBA v. KUR (2005) 11 NWLR (Pt. 831) 291.

I resolve this issue in favour of the appellant.

I resolve the three issues above in favour of the Appellant. The Appeal is allowed. The judgment of G. M. ONYEABO J delivered on 17th May, 2013 is here by set aside. Parties are to bear their own cost.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Abimbola Osarugue Obaseki-Adejumo, JCA. I agree with the reasoning and conclusion contained in the lead judgment. I abide by all the orders contained therein.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A., which I had the benefit of reading in advance. The court below should not have based its judgment on legally inadmissible evidence. The judgment of the court below cannot, therefore, stand. I too would allow the appeal and abide by the consequential order(s) contained in the lead judgment.

Appearances

M. A. Kazeem, Esq.For Appellant

AND

I. P. Dick, Esq.For Respondent