LUFTHANSA GERMAN AIRLINES V. WILLIAM BALLANYNE
(2019)LCN/12977(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of June, 2012
CA/L/98/2011
RATIO
EVIDENCE: DUTY OF A PARTY WHO RELIES ON THE CONTENTS OF A DOCUMENT TO ESTABLISH HIS CASE
It is a trite general principle, that a party that relies on the contents of a document to establish his case, has a duty to produce the original of the document before the court. See R. VS, ROBSON (1972) 2 ALL ER 699 at 701. Where many copies of a document (e.g. contract, agreement etc) are made by the process of typing with carbon papers, each copy thereof, including the carbon copies, is primary evidence of the document; provided they are signed or executed by all the parties to the agreement. See FORBES VS. SAMUEL (1913) 3 KB 705.PER I.M.M. SAULAWA, J.C.A.
SECONDARY EVIDENCE IN RELATION TO THE CONTENTS OF A BANKER’S BOOK
Under section 97(1)(a) of the Evidence Act, secondary evidence may be given of the existence, conditions or contents of a document when the document in question is an entry in a banker’s book. However, the applicability of subsection (1) (h) is subject to the condition stipulated under subsection (2) of section 97 of the Evidence Act (supra).PER I.M.M. SAULAWA, J.C.A.
Justice
IBRAHIM MOHAMMED MUSA SAULAWA Juctice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Juctice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Juctice of The Court of Appeal of Nigeria
Between
LUFTHANSA GERMAN AIRLINESAppellant(s)
AND
WILLIAM BALLANYNERespondent(s)
I.M.M. SAULAWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Lagos State High Court, Lagos Judicial Division, which was delivered by the Hon. Juctice A. Olateru-Olagbegi on December 15, 2009 in Suit No. LD/4585/95. By the said judgment, the lower court dismissed reliefs 1 & 3 and awarded relief 2 of the Respondent’s Amended Statement of Claim. The lower court accordingly awarded the sum of FF35,990.00 as special damages in favour of the Respondent, against the Appellant.
Not unnaturally, the Appellant was dissatisfied with the said judgment. Thus, with the leave of this court, duly granted on December 7, 2010, the Appellant filed the notice of appeal thereof on December 8, 2010, which was predicated upon three grounds of appeal.
FACTS AND CIRCUMSTANCES SURROUNDING THE APPEAL:
The circumstances leading to this appeal could be gleaned from pleadings of the respective parties vis-a-vis the judgment, as contained in records of appeal.
On 08/11/95, the Respondent filed both a writ of summons and statement of claim in the lower court seeking a declaratory relief and special damages against the Appellant. However, by the amended statement of claim thereof, filed on 19/12/97, the Respondent claimed against the Appellant the following reliefs:
(i) A declaration that it is unlawful for the Defendant to charge the Plaintiffs Bankers who in turn debited the Plaintiffs current account with payments on mandate forms which were manifestly a misrepresentation as it did not bear the Plaintiff’s Secret Code Number, or Tickets purporting to bear Plaintiffs signatures and dated.
(ii) Payment by the Defendant to the Plaintiff of the sum of FF35,990.00 being the amount standing in the plaintiffs credit balance as at 5th day of September, 1993, which the plaintiffs Bank converted in partial settlement of plaintiffs Debit standing of FF70,000.00 as result of the Defendants wrongly Negligent acts of issuing tickets with plaintiffs VISA Card which was reported lost in Transit to the Defendant with 4% interest until full and final Payment
(iii) The sum of $60,000.00 (US Dollars) being general and special damages for the Defendants wrongful
Negligent Act in allowing the fraudulent usage of the plaintiff VISA CREDIT CARD
PARTICULARS OF SPECIAL DAMAGES
(i) Occasioning great embarrassment, disappointment distress, disgrace and mental agony on the plaintiff
(ii) Bringing the plaintiff into financial and professional Disrepute as a result of the refusal of Royal Scotland Bonk Plc of the United Kingdom in opening an account for the plaintiff.
On the other hand, by the amended statement of defence thereof, the Appellant vehemently denied any liability to the Respondent on the grounds that-
(i) it is not unlawful for it to charge the debit card company VISA with the cost of tickets validly issued on mandate forms which were duty drawn up and based on the sale of air tickets to the Claimant and his agents which tickets were duly utilized
(ii) that the Claimant has not suffered any damage in part or at all attributable to purported act of negligence on the part of the Defendant or his agents.
(iii) in the alternative, whatever loses, damages and embarrassment that may have been suffered by the Claimant which is denied was completely because of his negligence.
(iv) the Defendant owes no duty of care to the Claimant and as such cannot be held liable for the loss purportedly suffered by the Claimant.
(v) that this suit is speculative and gold digging and afterthought and frivolous and should be dismissed with substantial costs.
The pleadings of the respective parties having been filed and served, the case eventually proceeded to trial. The Respondent and one other person, the exhibit keeper, testified for the claimant, as CW1 & CW2. On the other hand, one Mrs. Damilola Ajala, the Appellant’s customer Relationship officer, was the sole witness for the Appellant.
The judgment of the lower court was to the following conclusive effect:
In the circumstances, the claims for general damages of $60,000.00 fails and is hereby dismissed.
In conclusion, judgment be and is hereby entered in favour of the claimant against the defendant in the sum of FF35,990.00 in consequence of special damages suffered by the claimant as a result of the proven negligence of the defendant. (Page 539, Record).
As alluded heretofore, it was in consequence of the judgment in question that the Appellant filed a notice of appeal thereof upon the leave of this court, granted thereto on 07/12/10.
The record of appeal was evidently served on the Appellant on 04/02/2011. The Appellant’s brief of argument was filed on 22/3/11. The Respondent’s brief was filed on 13/4/11.
On 15/3/12, when the appeal last came up for hearing, both the learned counsel adopted the argument contained in their respective briefs. Thus, resulting in reserving the appeal for judgment.
In the brief thereof, the Appellant has raised a total of three issues for determination, to wit:
(i) Whether or not the Respondent has established a case of negligence against the Appellant in respect of the use of his debit card.
(ii) Whether or not the losses purportedly suffered by the Respondent were due to the Respondent’s negligence; and
(iii) Whether exhibits G-G1, H-H1 J-J1 and K- K1 are legally admissible in evidence, notwithstanding that the Respondent failed to lay proper foundation for their admissibility.
From the outset of the submission thereof, the Appellant’s learned counsel cited and replied upon the Supreme Court authorities in UTB (NIG) VS. OZOEMENA (2007) 3 NWLR (Pt.1022) 448 and ORHE VS. NEPA (1998) 7 NWLR (Pt.557) 187 regarding the three conditions that can sustain an action in negligence –
(i) the duty of care to the plaintiff; (ii) breach of that duty; and (iii)damages arising there from. It was submitted by learned counsel, that based on the totality of the evidence adduced before the lower court, the Respondent did not make out a case of negligence against the Appellant.
It was contended, that the lower court has misdirected itself by placing reliance on the signatures on exhibit E (at pages 4 & 6), rather than on the approval code obtained by the Appellant from VISA. That, what’s required was to obtain a prior approval from VISA; which approval is confirmed by the issuance of an approval code. That, the passport was required by Appellant for the purchase of travel tickets, and not for payment with VISA card.
It was argued, that the duty of care required of the Appellant is similar to that of a paying banker. See COMMISSIONER OF TAXATION VS. ENGLISH, SCOTTISH AND AUSTRALIAN BANK (1920) AC 683 at 688 per Lord Dundin, LLOYDS BANK LTD. V. CHARTERED BANK OF INDIA, AUSTRALIA & CHINA (1925) 1 KB 40.
It was further contended that the lower court failed to consider whether or not the Appellant had knowledge of the Respondent’s credit limit in respect of the transactions with the VISA Card. Otherwise, it would have reached a different decision, by exonerating the Appellant from the allegation of negligence. That, by virtue of section 137 of the Evidence Act, the Respondent has the burden to prove that the Appellant was aware of the credit limit of the (VISA) Card. See paragraphs 11, 12 & 13 Amended statement of defence; See AJAERO VS. UGORJI (1999) 10 NWLR (Pt. 621) 1 at 19 – 20 per Kalgo- JSC.
The lower court also allegedly failed to consider the oral complaint to the Appellant’s staff, one Mrs. Simone-Menne, by the Respondent regarding the loss of the VISA Card loss, and the fact that the sale of tickets took place after that complaint. See paragraph 11(ii) of the Amended Statement of Claim and paragraph 2 of Exhibit B, at pages 325 to 328 of the Record; paragraphs 5, 6, 7, 8 & 9 of CW1’s deposition and; paragraph 7 of Exhibit A, respectively. It was further contended, that the lower court ought not to have made a finding of negligence against the Appellant.
Regarding damages, it was submitted that the lower court has erred, when it failed to properly evaluate the evidence presented before it regarding the amount of damages payable to the Respondent, as a result of the alleged breach of duty of care by the Appellant.
Concluding on issue No. 1, it was contended that the lower court ought to have held that the Respondent failed to prove that his VISA Card was used in purchasing the Appellant’s flight tickets worth FF70,000.00.
On issue No. 2, it was submitted that the lower court ought to have held that the negligence (if any) were attributable to the Respondent himself and not the Appellant. See Exhibits A1 & A2.
On the issue of reimbursement of the Respondent by the Appellant, it was contended that exhibit Z (an entry in a bankers book) does not comply with section 97(2)(e) of the Evidence Act, thus should be expunged from the records. See THOMPSON VS. AROWOLO (2003) 7 NWLR (PT.818) 163 at 204; OLAYINKA VS. THE STATE (2007) 9 NWLR (Pt.1040) 561 at 577.
It was argued, that exhibit L has not disclosed the source of the alleged reimbursement. The Respondent failed to establish its source on a preponderance of evidence.
Issue No. 3 on the other hand, raises the question of whether exhibits G – G1, H – H1, H-J1 & K-K1 are legally admissible. It was submitted, that the exhibits in question are secondary evidence of entries in a banker’s accounts, thus inadmissible for failing to comply with section 97(2)(e) of the Evidence Act (supra). See section 2 of the Evidence Act: AIYETORO COMM. TRADING CO. LTD. VS. NACB LTD. (2003) 12 NWLR (Pt.834) 346; THOMPSON VS. AROWOLO (supra) at 204; ABUBAKAR VS. JOSEPH (2008) 13 NWLR (Pt.1104) 307 at 354; OMEGA BATIK (NIG.) PLC. VS. OBC LTD. (2005) 8 NWLR (Pt.928) 547; GARRHA VS. KWARA INV. CO. LTD. (2005) 5 NWLR (Pt.917) 160 at 176, respectively.
In conclusion, the court has been urged upon to allow the appeal, and accordingly set aside the decision of the lower court in question.
On the other hand, thereof, the Respondent has adopted the three issues raised by the Appellant in the brief thereof. In a nutshell, the submission of the Respondent on issue No. 1 is that the DW1 has in paragraph 4(iii) of the written deposition thereof admitted that credit limit verification ought to have been carried out before the sale of a ticket to any person on the strength of VISA CARD. See also CW1’s deposition on Oath (exhibits A and K at pages 467 & 468). However, it was argued that the issue of tickets purchase is US Dollars, raised by the Appellant’s learned counsel, is a fresh issue which was not raised at the lower court. And no leave has been sought to raise same on appeal. See CORNELIUS ANJORIN LEBILE VS. THE REGISTERED TRUSTEES OF CHERUBUM & SERAPHIM CHURCH OF ZION OF NIG. UGBONLA & 3 ORS. (2003) 1 SC (Pt.1) 33; AGU VS. IKEWIBE (1991) NWLR (Pt.780) 385
On issue No. 2, it was submitted inter alia, that exhibits F & F1 (dated 18/01/93) were the first in time before exhibits A1 & A2. That, the Respondent cannot be held (responsible) for the negligence of the Appellant. It was contended, that exhibit L is admissible.
Regarding issue No. 3, it was submitted that the said exhibits G – G1, H – H1, J -J1 & K – K1 are legally in-admissible. The exhibits do not come within the class of documents which are (in) admissible in evidence. However, they are admissible under section 92(2)(e) of the Evidence Act (supra) under certain conditions. See BOLADE AGBOOIA ALADE VS. SALAWU JAGUN OLUKADE (1975) 2 SC 83 – 88; CAVOLLOTTI GOVIANNI, BONASO LUIGI; SC 402/67 of 31/10/69; HALSBURYS LAWS OF ENGLAND., 4th Edition volume 3 (1), page 173 paragraph 204.
Thus, the court has been urged to hold, that a bank statement of account of a customer prepared by a bank official is not a copy or secondary but a primary evidence, being part and parcel of what constitutes a banker’s book. See OGUNTONADE VS. POLICE (1959) WRNLR at 289.
It was equally argued, that the said exhibits having been admitted without objection, the Appellant is forever precluded from raising objection as to their admissibility. See ANYAEBOSI VS. RT BRISCOE LTD. (1987) 3 NWLR (Pt.59) 84 at 96 – 97; NEW NIG. BANK VS. LEGEMAH (1986) 2 NWLR (Pt.25) 790.
On the whole, the court has been urged to uphold the lower court’s judgment, delivered on 15/12/09, and dismiss the appeal with substantial cost.
I have accorded an ample regard upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel, contained in the respective briefs thereof vis-a-vis the record of appeal, as a whole. I have appreciated the very fact that the three issues raised in the Appellant’s brief of argument (adopted by the Respondent) were each distilled from the three grounds of the notice of appeal. Thus, I have deemed it expedient to determine the appeal on the basis of the Appellant’s three issues.
ISSUE NOS. 1 & 2
As alluded to above, issue No. 1 raises the vexed question of whether or not the Respondent had established a case of negligence against the Appellant in respect of the use of his debit card. The issue No. 1 is distilled from ground No.1 of the notice of appeal. The issue No. 2 raises the question of whether or not the losses purportedly suffered by the Respondent were due to the Respondent’s negligence. It is distilled from ground 2 of the Notice of appeal.
Invariably, the term negligence connotes a failure to exercise the standard of care that a reasonably prudent person would have exercised in a [given] similar situation. The term also denotes any conduct [or act] that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others’ rights. The term equally denotes culpable carelessness. Under the Roman Law, negligence is known as CULPA & NEGLIGENTIA, as contrasted with DOLU (wrongful intention). See BLACK’S LAW DICTIONARY, 9th edition 2009 at 1133 thus
“Negligence in law ranges from inadvertence that is hardly more than occidental to sinful disregard of the safety of others.” Patrick Devlin, The enforcement of morals 36 (1968)” It’s a trite general principle, that for negligence to be actionable, the complainant has an onus of establishing that –
(a) the defendant owes a duty of care thereto;
(b) the duty of care has been breached by the defendant; and
(c) in consequence of the breach of the duty of care in question, damages has been occasioned to the complainant. See UTB (NIG) VS. OZOEMENA (2007) ORHUE VS. NEPA (1998) 7 NWLR (Pt. 557) 187.
In the case of UTB (NIG) VS. OZOEMENA’S case (supra), the apex court was recorded to have held, inter alia, that –
“What amounts to negligence is a question of fact not law, and each case must be decided in the tight of its own facts and circumstances.” per Kalgo, JSC, at 465 D – E & 475 F – G, respectively. See also KALLA VS. JARMAKANL TRANSPORT LTD (1961) ALL NLR 747: NGILARI VS. MOTTERCAT LTD (1999) 13 NWLR (Pt. 636) 626.
Undoubtedly, the lower court arrived at the decision thereof, to the effect that the Appellant was liable for negligence, solely on the comparison made between the signatures on the passport and VISA Card of the Respondent. Thus, the lower court thereby made the following findings:
(1) The signatures on the passport are all in capital letters whereas regards the signature on the VISA Card, only letters ‘W’ and “B” are in capitals.
(2) The letter “i” is not dotted in the passport; it’s dotted in the VISA card.
(g) The letters in the passport ore liberally spaced out but they are clustered together in the VISA card.
(4) The Signature in the passport stands erect; that in the VISA card decidedly slants to the right.
(5) The signature in the passport appears to be deliberately scripted; that in the VISA card looks impulsive and routine.
The lower court accordingly held the view that –
Were both signatures to be the subject of a “spot the difference” exercise any school boy of average intelligence will easily detect the aforesaid differences.
My view is that adult officials of the defendant are trained to exercise a good sense of judgment not extra ordinary sense of judgment in dealing with these matters.
That not a single one of the differences identified above was spotted by the defendant’s official is bewildering, incredible and shocking…
I have no hesitation whatsoever in answering the question in the affirmative – Yes they were.
Had the defendant’s officials exhibited minimum diligence and the care of a reasonable person’ they would have spotted the differences in that two signatures and would have been put on inquiry as to the genuinely of the transaction and of the true identity of the character flaunting the passport and vis-a-vis his.
The negligence resulted in the sale of 4 tickets which cost FF77,000.00 and was wrongly charged to the account of the claimant.
The sum is clearly recoverable from the defendant as special damages. See pages 536 -537 of the Record.
The trite general doctrine is that the trial court has the onerous duty to appraise and evaluate evidence adduced by parties in a case before it, and make appropriate findings thereupon. However, where the trial court evidently fails to properly appraise and evaluate the evidence adduced at the trial, the appellate court may reappraise such evidence and make appropriate findings thereupon from the records of appeal. See SALAKO VS. DOSUNMU (1997) 8 NWLR (Pt. 517) 371; UMESIE VS.ONUAGU LUCHI (1995) 9 NWLR (Pt.421) 515; MOGAJI VS. ODOFIN (1978) 4 SC 91; OGUNDULU VS. PHILIPS (1973) 1 NWLR 267; OKOLO VS. UZOKA (1978) 4 SC 77; ASEYEYE VS. AJIBOYE (1987) 3 NWLR (Pt.61) 432; NZEKWU VS. NZEKWU (1989) 2 NWLR (Pt.104) 373.
In the instant case, the lower court has placed reliance upon the signatures in Exhibit E (pages 4 & 6) in determining whether the procedure was properly followed. I think, the above findings of the lower court are cogent and rather unassailable.
It was postulated by the Appellant’s learned counsel at page 8 paragraph 4.1.4 of the brief thereof that –
The passport was required by the Appellant for the purchase of travel tickets and not for the purpose of payment with the VISA Card . . .
We submit further that it is not easy to detect the differences between the signatures on the passport and that on the VISA Card. A careful took at the passport and the VISA Card reveals that both documents are signed as “Williams B” and we believe this is the most crucial. There is nothing out of the ordinary in the said signatures that ought to have caused doubts in the minds of the officials of the Appellant to cause them to make an enquiry.
I am unable to appreciate, let alone uphold the above submission of the Appellant’s learned counsel. By virtue of the evidence available at the trial, especially exhibit E (pages 4 & 6) in question, there is every cogent reason for me to believe that the Appellant’s submission in question is baseless and rather a sheer afterthought. In my view, if indeed “the passport was required by the Appellant for the purchase of travel tickets” (as contended by the Appellant), then it goes without saying that the signature of the holder of that passport must strictly correspond with the signature on the VISA Card, as well.
Indeed it’s trite, that a credit card is an identification card used to obtain goods or items on credit (loan) usually on a revolving basis. The term credit card crime (scam) denotes the offense of using a credit card in order to purchase goods or items with knowledge that (i) the credit card is stolen or forged; (ii) the card has been revoked, cancelled or invalidated; or (iii) the cards use is unauthorized or illegal. See BLACK’S LAW DICTIONARY, 9th Edition (supra) at 424.
The statement on oath of Mrs. Tonia Mozie (DW1) is contained at pages 178- 183 of the Record. The testimony of the said DW1 is contained at page 475 of the Record. In paragraph 11(i) of the statement thereof, the DW1 stated, inter alia, that –
11. As regards the allegation of negligence levied against the Defendant by the Claimant, it is the Defendant’s contention that:
(i) It exercised the degree of care required if it under transactions for purchase of air tickets based on Credit Card and followed all normal procedure to ascertain the validity of the Credit Card to wit: demanding and obtaining identification from the holder of the Credit Card; comparing the signature on the identification with that on the Credit Card; confirming the validity of the Credit Card and the extent of the credit limit thereon from VISA before honoring the Credit Card; and demanding and obtaining approval Code for cash transaction from VISA signifying the availability of credit to the Credit Card holder before granting credit to the cord holder.
However, inspite of the above deposition, the DW1 at page 475 of the Record stated under Cross examination that she did not know whether the signatures in Exhibit E (pages 4 & 6) were similar. That, she did not know that the approval and verification on Exhibit E was carried out.
As rightly found by the lower court, there is every cogent reason to believe that the Appellant failed to strictly verify the VISA Card in question before issuing out the air tickets, thereby debiting the costs of the air tickets against the Respondent’s account in question.
It was submitted by the Appellant in paragraph 4.1.12, at page 10 of the brief thereof that –
“… by virtue of Section 137 of the Evidence Act, the burden is on the Respondent to prove that the Appellant was aware of the credit limit of the Card.”
However, in paragraph 3 of DW1’s statement, it was averred that enquiries were made by the Appellant to confirm from VISA the genuineness of the Respondent’s Credit Card before it was honoured which showed that –
“The card had not been invalidated and approved for the grant of credit was duly sought and obtained from VISA before same was utilized for the purchase of air tickets from the defendant”,
By virtue of exhibit K, it was shown that the last time the Appellant issued an air ticket was on 05/12/93, after it had actually become aware of the Respondent’s complaint to the police (exhibit E). Nonetheless, exhibit K, being an entry in a bankers book (section 97(i) (h) & 97(2)(e) Evidence Act) cannot safely be relied upon in view of the fact that it was neither certified nor tendered through a competent Bank official. Thus, in the light of foregoing postulations, I am satisfied that both issues 1 & 2 ought to be answered in the affirmative, and they are both hereby resolved against the Appellant.
ISSUE NO. 3:
The third issue raises the question of whether exhibits G – G1, H – H1, J – J1 and K – K1 are legally admissible in evidence, notwithstanding that the Respondent allegedly failed to lay proper foundation for the admissibility thereof. The said third issue is distilled from ground three of the notice of appeal. The exhibits in question were tendered and admitted at the trial in proof of damages allegedly suffered by the Respondent as a result of the Appellant’s negligence.
It was submitted by the Appellant’s learned counsel, that the said exhibits fall within the meaning of secondary evidence -of entries in a banker’s book. Thus, they are inadmissible for failing to comply with the provision of Section 97(2)(a) of the Evidence Act. See Section 2 of the Evidence Act; AIYETORO COMM. TRADING CO. LTD VS. NACB LTD (2003) 12 NWLR (Pt.834) 346.
As further submitted by the learned counsel, the conditions set out in Section 97(2)(e) of the Evidence Act were not complied by the Respondent in the instant case. And the fact that the Appellant did not object to the admissibility of the said exhibits at the trial, does not make them admissible. See THOMPSON VS. AROWOLO (2003) 7 NWLR (Pt.818) 163 at 204; ABUBAKAR VS. JOSEPH (2008) 13 NWLR (Pt.1104) 307; OLAYINKA VS. THE STATE (2007) 9 NWLR (Pt.1040) 561 at 577.
It is a trite general principle, that a party that relies on the contents of a document to establish his case, has a duty to produce the original of the document before the court. See R. VS, ROBSON (1972) 2 ALL ER 699 at 701. Where many copies of a document (e.g. contract, agreement etc) are made by the process of typing with carbon papers, each copy thereof, including the carbon copies, is primary evidence of the document; provided they are signed or executed by all the parties to the agreement. See FORBES VS. SAMUEL (1913) 3 KB 705. Under section 97(1)(a) of the Evidence Act, secondary evidence may be given of the existence, conditions or contents of a document when the document in question is an entry in a banker’s book. However, the applicability of subsection (1) (h) is subject to the condition stipulated under subsection (2) of section 97 of the Evidence Act (supra).
In the instant case, exhibits G – G1, H – H1, J – J1, K – K1 & 1 – L1 in question are evidently unsigned. What’s more, there is nothing to show that they were certified as true and authentic copies of the original thereof.The Respondent’s learned counsel has stated at pages 7 – 8 of the brief thereof that –
The said exhibits for the avoidance of doubt were prepared by the Claimant bank and presented to him as the statement of affairs of his account with him.
6.03. We urge Lordships to hold that a bank statement of account of a customer prepared by d bank official is therefore not a copy or secondary. Evidence within the meaning of the act, it is in fact primary evidence being part and parcel of what constitute bankers book, see the case of OGUNTONADE VS. POLICE (1959) WRNLR at 289.
Ironically, however, the purported bank official “that allegedly” prepared the exhibits in question still remains shrouded in mystery. Such a person was never called to testify at the trial of the case. And yet, the position of the law is very clear on that issue! Recently, this court made this point very clear in the case of FEDERAL REPUBLIC OF NIGEBIA VS. FEMI FANI-KAYODE (2010) 14 NWLR (Pt. 1214) 481 at 506 paragraphs E – H thus:
“In the instant case, it is rather inarguable, that the certified true copy of the computer generated bank statement of account of the respondent domiciled with the First Inland Bank at Wharf Road meets all the requirements of being admitted as an exhibit at the trial. In my view, that document does not fall within the category of evidence made completely inadmissible by the law. Rather, it certainly falls within the category of evidence admissible upon the fulfillment of the conditions duly prescribed under section 97(1) and (2) of the Evidence Act (supra). See ANYAEBOSI VS. R.T. BRISCOE LTD. (1987) 3 NWLR (Pt. 59) 108, where the apex court, aptly held, inter alia thus:
“It is important to state that a computerized account which Exhibit P4 was described to be does not fall into the category of evidence absolutely inadmissible by law. In my opinion, it falls within the category of evidence admissible on the fulfillment of the conditions prescribed in section 96(1) and (2) of the Evidence Act.” Per Saulawa, JCA
See also TRADE BANK PLC VS. CHAMI (2003) 13 NWLR (Pt. 836) 216 per Salami, JCA (as he then was); ESSO WEST AFRICA INC. VS. OYEGBOLA (1969) NMLR 194 at 198, respectively.
I again made it emphatically clear in FRN VS. FANI-KAYODE’S case (supra) at page 507 paragraphs D – E (supra) that –
As alluded to above, the computer printout of the Bank Statement of the respondent sought to be tendered vide the PW1 was duly certified. It was produced by the very person in custody of the document i.e. the PW1 who was the branch Manager of the Bank at the material time in question. That being the therefore, the document in question is absolutely admissible under the Evidence Act.
Alas! The same cannot be said of the present exhibits G – G1, H – H1, J – J1 & K – K1 in question. As pointed out above, the said exhibits (with possible exception of exhibit K) were neither signed nor certified. What’s more, there were not tendered vide the bank official who prepared them or (was) in custody thereof.
Instructively, under section 2(1) of the Evidence Act, the term “Bankers books” has been defined” as –
“Legers, day books, cash books, account books and all other books used in ordinary business of a bank.”
Thus, as aptly held by this court in FRN VS. FANI-KAYODE (supra) –
“… the definition of the term document in section 2(1) of the Evidence Act includes “computerized statement of accounts. Undoubtedly, the provisions of the Evidence Act and, and indeed, most of the Nigerian Statutes, including the Grundnorm itself; the Constitution of the Federal Republic of Nigeria, 1999, need to be generally overhauled to meet the exigencies of the modern computer age. However, the above contention notwithstanding, I would want to believe that by virtue of the provision of section 2(1) of the Evidence Act (supra), the definition of the word ‘document, undoubtedly encompasses the computerized bank statement of accounts”.
Per Saulawa, JCA at 506 paragraphs C – D.
In the instant, case the Appellant had opted to rely on exhibits G – GL, H – H1, J – J1, & K – K1 knowing fully well that they were neither signed, nor certified. And that the custody thereof could not be ascertained. Most curiously, the lower court obliged him by admitting and relying upon the said exhibits, when it’s so obvious that they did not meet the conditions precedent set out under section 97(2)(a) & (e) of the Evidence Act (supra). Most especially, the provision of section 97(2)(e) of the Evidence Act (supra), is to the effect thus:
(e) in paragraph (h) the copies cannot be received as evidence unless it be first proved that the book in which the copies were made was of the time of making one of the ordinary books 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 o partner or officer of the bank, and that the copy has been 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.’
Thus, having failed to comply with the well set out provisions of section 97(2)(a) & (e) of the Evidence Act, there is no doubt that the said exhibits GG1,, H – H1, J -J1, K-K1 & L- L1, are not admissible. That being the case, therefore, the lower court ought not to have admitted them in evidence. The said exhibits ought to thus be expunged from the records even at this stage in time.
The law is well settled on that point, in that where, as in the instant case, an evidence has been wrongly admitted at the trial, the appellate court has the power and duty to discountenance and expunge them from the records. See OLAYINKA VS. THE STATE (2007) 9 NWLR (Pt. 1040) 561 wherein the apex court aptly and rather authoritatively held, inter alia, thus:
“When evidence has been wrongly admitted, it is not a legal evidence and the court has a duty to expunge it from the record such. Such evidence should be regarded as if it had not been tendered and admitted. The court cannot rely on it in reaching its ultimate decision. And any finding or decision based on such inadmissible evidence would be perverse and an appellate court faced with such a situation has a duty to intervene.”
Per Tabal, JSC at 577.
In the circumstance, there is every cogent reason for me to uphold the argument of the Appellant on issue 3, to the effect that exhibits G – G1, H – H1, J – J1 & K – K1 in question are inadmissible and ought not to have been admitted by the lower court. Thus, issue No. 3 is answered in the negative, and accordingly resolved in favour of the Appellant.
I would want to observe, at this stage in time, that ‘am not, to say the least, impressed with the manner in which the lower court treated with levity the well set out provisions of section 97(1) & (2) of the Evidence Act (supra) in admitting the exhibits G – G1, H – H1, J – J1 & K – K1 in question. The court below has a duty to critically consider the implication of admitting the exhibits, which are obviously inadmissible in law. The fact that the Respondent is an honourable and learned member of the legal profession, notwithstanding. More often than not, I have had the privilege of echoing the trite fundamental truism, that Juctice is avowedly naturally immune to parochialism, nepotism and sentimental disposition. Indeed, Juctice is grossly impervious to friendship, party, kindred, favouritism, nay corruption, in all the ramifications thereof. I think, it was Lord Denning, MR, the foremost indomitable jurist of all time who once aptly stated in the notorious philosophical and rather erudite characteristics, thereof that –
:”It is all very well to point Juctice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth; and the less dust there is about the better.”
See JONES VS. NATIONAL COAL BOARD (1957) 2QB 55 at 64: BRITISH AIRWAYS VS. ATOYEBI (2010) 14 NWLR (Pt. 1214) 561 at 610 – 611 paragraphs H – A. per Saulawa, JCA.
Undoubtedly, it behoves upon judges, (nay counsel) to stand out staunchly for Juctice, even though it [may] be against them, their parents or relatives; be they rich or poor. Thus, they must by all means endeavour to shun the lusts of their hearts, lest they distort or pervert Juctice.
Hence, having resolved both issues 1 & 2 in favour of the Respondent, and issue 3 in favour of the Appellant, there is no gainsaying the fact that the appeal succeeds in part. The appeal is accordingly hereby allowed by me in part.
CONSEQUENTIAL ORDERS:
Having allowed the appeal in part, the Juctice of the case demands some consequential orders be made as follows:
2. The finding of the lower court to the effect that “The negligence resulted in the sale of 4 tickets which cost FF77,000.00 and was wrongly charged to the account of the claimant”, is hereby set aside.
3. The decision of the lower court thereby awarding to the Respondent the sum of FF35,990.00 against the Appellant is hereby set aside.
4. The finding of the lower court to the effect that the Respondent had established a case of negligence against the Appellant, is hereby affirmed.
5. That the Appellant shall be liable to pay the sum of USD 7,278.00 being the total cost of the four air tickets duly established to have been purchased with the Respondent’s VISA Card on 12th, 21st & 25th June and 30th July 1993 respectively.
6. There shall be no order as to costs.
RITA NOSAKHARE PEMU, J.C.A: I have been privileged to read in draft, before now, the lead
Judgment of my learned brother I.M.M. Saulawa, JCA.
I agree with his opinion and conclusions that the appeal be allowed in part.
I also abide by the consequential order made that there shall be no order as to costs.
Appearances
Adedapo Tunde-Olowu Esq.
Moyosoluwa Olumoroti Esq.For Appellant
AND
Peter H. Mallong Esq.For Respondent
