MR. ELIE FADOUL & ANOR v. MR. OKUNGBOWA I. A. IGBINEVWO
(2018)LCN/11813(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of June, 2018
CA/B/70/2012
RATIO
EVIDENCE : ADMISSION OF EVIDENCE
“The admission of evidence in a subsequent given by a witness in a previous proceeding trial is governed by Section 34(1) of the Evidence Act, CAP E14, Laws of the Federation of Nigeria 2004, which provides thus: “Evidence given by a witness in a judicial proceedings, or before any person authorized by law to take it, is relevant for the purpose of providing, in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the fact which it states when the witness is dead or cannot be found, or is capable of giving evidence or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances the Court considers unreasonable.”” PER HUSSEIN MUKHTAR, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. MR. ELIE FADOUL
2. COURDEAU NIGERIA LIMITED – Appellant(s)
AND
MR. OKUNGBOWA I. A. IGBINEVWO – Respondent(s)
HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Delta State, corum; Honourable Justice P. O. Onajite-Kuejubola sitting at the Warri Division delivered on 22nd January 2007.
The respondent?s claim of four reliefs before the lower Court as contained in his 2nd amended statement of claim dated 12/01/2006 is as follows:
(a) A declaration that the purported dismissal of the plaintiff from the employment of the 2nd defendant was unlawful, null and void and of no effect whatsoever.
(b) A declaration that the plaintiff is still in the employment of the 2nd defendant.
(c) The sum of N5 Million being special damages and or general damages for the unlawful dismissal of the plaintiff from the employment of the 2nd defendant.
(d) Any other suitable relief this Honourable Court may deem fit and just to grant. (See p 63 of the Record).
The appellants filed a statement of defence and the trial commenced on 15/11/2004. The respondent tendered exhibit A which is the certified true copy of his evidence given in another suit in earlier proceedings in 1997. (See pages 76 to 88 of the record).
The summary of the respondent’s case was that he was employed by the 2nd appellant in December 1995. On 3rd May 1996, he had a fight with a co-employee named Alex Ogodobiri and he was thereafter dismissed by the 2nd appellant. His complaint to the lower trial Court was that he was not given a hearing before he was dismissed. The 2nd appellant’s answer was that since the fight took place in the presence of its management officials, there was absolutely no need to conduct a hearing to ascertain what happened before the respondent was dismissed.
At the end of proceedings and address by Counsel, the learned trial judge delivered judgment in favour of the respondent and granted reliefs (a) and (b) annulling the dismissal of the respondent and a declaration that the respondent was still in the employment of the 2nd appellant. The learned trial judge in her judgement also granted the sum of N2,000,000.00 (Two Million Naira) as general damages for the unlawful dismissal. The Appellants were not happy with that judgment and therefore appealed against it vide Notice of Appeal dated 28/2/2007 predicated upon the following seven grounds:
1. The learned trial Judge erred in law and thereby came to a wrong decision when she held at page 10 thereof that: –
“The law Is that damages for more than his monthly salary is usually required in cases of this nature. In that light I award the sum of N2 million to plaintiff for unlawful dismissal from the employment of 2nd defendant against defendant Jointly and severally.”
PARTICULARS
(i) The contract was an ordinary master and servant relationship.
(ii) There was nothing in the pleadings and evidence before Court to give the contract any special status or flavour which would take it outside the operation of the laws governing a master and a servant relationship
(iii) General damages are not awardable for wrongful dismissal of an employee.
(iv) The learned trial judge’s assertion of the state of the law is not correct find completely ignores or disobeys the long line of judicial authorities even to the Supreme Court on the rules governing award damages for wrongful dismissal of servant in an ordinary master and servant relationship.
2. The learned trial judge erred in law when she held at page 9 thereof as follows:
“What then is the quantum of damages recoverable by a party for wrongful termination of employment. This will depend largely on whether the wrongful termination was as a result of failure to give the required notice or as a result of an alleged malpractice.
The law is that if wrongful termination is as a result of failure to give required notice or as a result of an alleged malpractice. The law is that wrongful termination is as a result of the former, the quantum of damages recoverable may be the employee’s salary for the period of the required notice. But if it is due to the latter, i.e. malpractice then, such a termination carries with it some stigma on the character of the employee for which he shall be entitled to substantial damages for beyond his salary for the period is the notice required.
PARTICULARS
(i) This is a completely erroneous statement of the law.
(ii) An employer is always entitled at any time to dismiss an employee for misconduct.
(iii) The respondent misconducted himself by fighting in the premises of the 2nd defendant and in the presence of Senior staff of the 2nd respondent
3. The learned trial judge misdirected herself when she held at page 11 thereof as follows:
“Consequently therefore, the plaintiff having proved his case upon a balance of probabilities is thus entitled to the Judgment of this honourable Court
PARTICULARS
(i) The evidence led by the respondent falls far short of the evidence required to grant the declarative reliefs and damages claimed.
(ii) Under the common law and as confirmed by judicial interpretation in Nigeria, a master possesses the right to dismiss his servant from his employment without notice.
(iii) Where a master has purported to dismiss the servant, even though not in accordance with the laid down procedures in the contract, the servant cannot treat the contract as still subsisting.
(iv) Even where a dismissal of an employee is found to be unlawful, the law does not prescribe award of general damages as was claimed and awarded by the learned trial judge
4. The learned trial judge erred in law when he held at page 10 and 11 as follows:
“In determining this suit and arriving at a decision thereon I must not fail to mention the Exhibit A, the CTC of previous record of proceeding upon which plaintiff relied was properly admitted and marked as Exhibit A in the present proceedings.
Learned counsel to defendant would have objected to its admissibility at the stage it was so admitted and not at the address stage. Be that as it may, the Exhibit A is properly before Court and is relied upon in the proceedings.”
PARTICULARS
(I) Exhibit A is the record of the plaintiff’s testimony in earlier proceedings in the suit.
(II) Exhibit A was tendered and admitted in disobedience of the provisions of Section 34(1) of the Evidence Act. And the Supreme Court decision in Shanu V. Afribank 2003 FWLR pt. 136
(III) The plaintiff was in Court to testify and there was no evidence of anything making him incapable of giving evidence and Exhibit “A” was in fact tendered through him.
(IV) The issue of the inadmissibility of Exhibit “A” having been raised at the address stage, the learned trial judge ought to have expunged Exhibit “A” from the record and discountenance same in her Judgment.
5. The learned trial judge misdirected herself when she held at page at 10 thereof that-
“In the instant case, the Exhibit ”B” is the contract between SPDC and Defendant Company which plaintiff say is still subsisting and pleaded in their statement of claim as amended yet was not denied or controverted by Defendant in any way whatsoever. It is therefore believed and accepted that the contract of Defendant with SPDC is still subsisting for which plaintiff was employed as a butcher.”
PAUTICULARS
(i) A proper reading and perusal of Exhibit “B” will reveal that by Clause 5 or Exhibit ?B” defendant’s contract with SPDC expired on 31st May, 1996
(ii) It was wrong for the learned trial judge to prefer the wild, bare assertion of respondent to the clear documentary evidence demonstrated in clause 5 of Exhibit “B”
6. The learned trial judge misdirected herself and thereby came in a wrong decision when she failed to hold that respondent was guilty of misconduct and 2nd appellant was justified in summarily dismissing him.
PARTICULARS.
(i) The DW1 who is the representative of the company testified that respondent fought in the presence of Senior Management staff of 2nd appellant who thus had first-hand evidence of respondents misconduct.
(ii) 2nd appellant being a corporation, D.W.1 was thus eminently qualified to testify as to facts which look place even before he was employed in the company.
(iii) Respondent in his testimony substantially admitted evidence or DW 1 that there was an incidence of assault involving him,
(iv) 2nd appellant had sufficient reason to summarily dismiss respondent.
7. The decision is against the weight of evidence.
The Learned Counsel for the Appellant distilled twin issues for determination in this appeal from the forgoing grounds of appeal as follows:
1. Whether in all the circumstances of the case, the learned trial judge was justified in granting the reliefs sought by the respondent in the suit before the trial Court and/or granting the sum of N2,000,000.00 (Two Million Naira) as general damages for the summary dismissal of the respondent by the 2nd appellant.
2. Whether the learned trial judge was right when she held that having not opposed the tendering of Exhibit A in evidence the appellants were precluded from raising the issue of admissibility of Exhibit A during the address stage.”
The Respondent however raised the following three issues for determination:
A) Whether in all the circumstances of this case, the Trial Judge was not right to have admitted Exhibit “A” which the Respondents adopted as his evidence in this matter.
B) Whether the Respondent was not entitled to be heard before his dismissal.
C) Whether the Appellant having suspended the Respondent as per Exhibit “C” as contained at page 91 of the Records of the Lower Court, the Appellant was not wrong to have dismissed the Respondent within the one-week duration of the suspension by which the Respondent was suspended from work.
The Respondent’s three issues, apart from subsuming the Appellants twin issues, are more apt to the grounds supporting this appeal and will more or less decide the critical issues involved in this appeal. The Respondent’s three issues are therefore adopted for the determination of this appeal.
Issue One:
Whether in all the circumstances of this case, the Trial Judge was not right to have admitted Exhibit “A” which the Respondents adopted as his evidence in this matter.
This issue is covered by the Appellants? issue number 2. The Learned Counsel for the Appellants reiterated that the trial in this suit commenced before the lower Court on 15/11/2004. The respondent was the sole witness. After stating his name and address, he tendered Exhibit A, which is certified copy of his testimony in a previous suit reproduced thus:
“A Christian/sworn on Holy Bible/states in English Language/my names are Isaac Amifuen okocuwe (sic. Okungbowa). I live at 26 Agba Street, Warri. I am unemployed. I have testified before in this case before this Court. I was also cross-examined by defendant counsel. The defendants have also testified and cross examined before the matter reached address- stage. I have proof, i.e. a certified true copy of proceedings which I can identify. The certified copy (is exhibit A).”
Exhibit A was testimony which the respondent had given in the suit in 1997. The respondent was in Court but did not testify.
The Learned Counsel for the Appellant urged the Court to discountenance Exhibit A.
The admission of evidence in a subsequent given by a witness in a previous proceeding trial is governed by Section 34(1) of the Evidence Act, CAP E14, Laws of the Federation of Nigeria 2004, which provides thus:
“Evidence given by a witness in a judicial proceedings, or before any person authorized by law to take it, is relevant for the purpose of providing, in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the fact which it states when the witness is dead or cannot be found, or is capable of giving evidence or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances the Court considers unreasonable.”
The respondent did not fulfil any of these conditions before his previous testimony was admitted, without objection, as Exhibit A and relied upon heavily by the learned trial judge.
The Appellants’ counsel subsequently raised the issue of inadmissibility of Exhibit A during final address and urged the Court to expunge it from the record and/or discountenance it.
However, the learned trial judge (at pages 111 and 112 of the record) stated as follows:
“I must not fail to mention the Exhibit A, the CTC of previous record of proceeding upon which plaintiff relied was properly admitted and marked as Exhibit A in the present proceedings.
Learned counsel to defendant would have objected to its admissibility at the stage it was so admitted and not at the address stage. Be that as, it may, the Exhibit A is properly before Court and is relied upon in the proceedings.
It was submitted that even though appellants counsel did not object to the tendering of Exhibit A, it did not thereby preclude him from raising the issue of the inadmissibility of Exhibit A during address. This is the correct position of the law as stated in SHANU V. AFRIBANK NIGERIA PLC (2003) FWLR (PT. 136) 823. See also NATIONAL INVESTMENT AND PROPERTIES CO. LTD V. THE THOMPSON ORGANIZATION LTD 1969 1 ALL NLR 138 at 142 – 143 where the Supreme Court observed as follows;
“It is of course the duty of counsel to object to inadmissible evidence and the duty of the trial judge to reject such inadmissible evidence, but if not withstanding this, evidence is through oversight or
12
otherwise admitted, then it is the duty of the Court when it comes to giving judgment to treat the inadmissible evidence as if it had never been admitted.”
The Supreme Court in the Shanu case (supra) held per Uwaifo, JSC (as he then was) at page 862 paras B – C as follows:
“When Section 34(1) of the Evidence Act is not complied with, such evidence in an earlier trial is inadmissible to evidence the fact that in truth such evidence was given and represents what was said by the witness in question. Unless the conditions laid down in Section 34(1) are met, parties cannot by consent get the evidence admitted. It is a statutory provision meant to be observed in the course of the trial of a case. It cannot be compromised.?
Again, Uwaifo JSC (as he then was) In Shanus case (supra) at page 852 para. D – F held as follows:
Issue estoppel, however, does not apply against a Court which rules that a piece of oral evidence or a document is inadmissible but later finds that in law or procedure, it is not. The duty of the Court to decide on legally admissible evidence is an exception to the rule that once a Court takes a decision on a matter it cannot reverse itself on it, and is considered, I think, a stronger element of justice than issue estoppel that might have precluded it from later rejecting inadmissible evidence. If he admits the oral or documentary evidence, he may at the stage of writing his final judgment discover that it is not legal evidence at all. It cannot be considered a valid argument that because he gave a ruling to admit the evidence, he is bound to stick with his error. He has a duty to expunge the evidence and decide on legally admissible evidence even at the stage of judgment and this extends to the matter at appeal stage.”
It was further submitted, for the Appellant, that the Court below was wrong when it accorded full weight to Exhibit A, which was inadmissible and consequently ought to have been rejected and expunged in the judgment.
The learned trial judge had a duty, if inadmissible evidence such as Exhibit A had been received with or without objection, to reject it in the judgment.
The law as provided in Section 34(1) of the Evidence Act requires that evidence given by a witness before any judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proof in a subsequent judicial proceeding or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found or is incapable of giving evidence or is kept out of the way by the adverse party, or when his presence cannot be obtained without an undue delay and expenses which, in the circumstances of the case, the Court considers unreasonable.
In the instant case, the conditions for admitting evidence given in previous proceedings was not met. There was therefore no base for admitting such evidence. The Learned trial judge was in error by admitting Exhibit A in the circumstances of this case where conditions for its admissibility were totally non-existent.
This issue must be and is hereby resolved in favour of the Appellant. It renders other two issues academic. The appeal succeeds on this score and is hereby allowed. The judgment of the Court below delivered on 22nd January, 2007 is hereby set aside.
The Respondents case stands unsupported by evidence before the lower Court.
In those circumstances, the lower Court had but only one duty to perform and that was to dismiss Respondent’s case for want of evidence. Having failed to perform such duty, the appellate Court has the necessary power to dismiss the Respondent’s claim and I hereby so dismiss it pursuant to Section 15 of the Court of Appeal Act 2004 (as Amended) The parties shall bear their respective costs.
MUHAMMED LAWAL SHU’AIBU, J.C.A.: I had a preview of the lead judgment of my learned brother, Hussein Mukhtar, JCA, just delivered. I agree entirely with the reasons contained in the lead judgment which I adopt as mine to allow the appeal.
FREDERICK OZIAKPONO OHO, J.C.A.: I had a preview of the Judgment of my Learned Brother, HUSSEIN MUKHTAR, JCA just delivered and I am in agreement that the appeal succeeds perforce and I abide by all the consequential orders made in the lead Judgment.
Appearances:
N. O. Ohre, Esq.For Appellant(s)
F. O. Otobrise, EsqFor Respondent(s)
