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AGETU v. COP (2020)

AGETU v. COP

(2020)LCN/14376(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, June 24, 2020

CA/L/350C/2017

Before Our Lordships:

Mohammed Lawal Garba Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

NDUBUISI AGETU APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

 RATIO

WHETHER OR NOT A DOCUMENT PRODUCED BEFORE THE COURT IN THE COURSE OF PROCEEDINGS AUTOMATICALLY BECOME EVIDENCE BEFORE THE COURT BY MERE PRODUCTION

A document produced before a Court in the course of proceedings either on the order to produce, by parties or the Court, does not automatically become evidence before the Court by its mere production, but only when tendered and admitted in evidence by the Court. Until that takes place, the document, though produced, would not become and be part of the material evidence to be considered in the determination of a case. In the case of Abacha vs. Fawehinmi (2000) 4 SC (Pt. II) 1, (2000) ALL NLR, 151, (2000) 6 NWLR (Pt. 660) 228, it was stated by Uwaifo, JSC that: –
“When a document is produced before a Court, for the purpose that it be used in the proceedings, the proper procedure is to tender it formally. If it is admissible, it is admitted as an exhibit in its original form. But if it is a document that cannot be parted with by the person in whose custody it is, or the original is not available, a copy or certified copy as secondary evidence in appropriate cases will meet the occasion.”
See also FBN, Plc vs. Tsokwa (2004) 5 NWLR (Pt. 866) 271, Bilbis vs. Tsafe (1999) 4 NWLR (Pt. 597) 1, Adegoke Motors Limited vs. Adesanya (1989) 5 SCNJ, 80 @ 88, Asuquo vs. Eyo (2013) LPELR-20199 (CA). PER GARBA, J.C.A.

WHETHER OR NOT A LEGAL PRACTITIONER CAN BE COMPELLED IN LAW WITHOUT THE CONSENT OF THE CLIENT TO DISCLOSE ANY INFORMATION IN THE COURSE OF THEIR RELATIONSHIP

These provisions essentially provide protection to a client who engages or employs the professional services of a legal practitioner for any particular or general purpose, by way of privilege, from disclosure of any communication or information between him and the legal practitioner in the course of their relationship, except he (the client) consents to the disclosure. The legal practitioner cannot be compelled in law, without the consent of the client, to disclose any such communication or information to a third party, even by a Court of law. The salient point to be noted is that the consent to be sought and obtained for the disclosure of the communication or information, is that of the client and not the legal practitioner. In Horn vs. Richard (1963) ALLNLR, 486 @ 487-8, Holden, J stated the rationale for the privilege at common law thus: –
“First comes the question of privilege. Every client is entitled to feel safe when making disclosure to his solicitor or counsel, and there are cases establishing firmly that counsel cannot be called to give any evidence which would infringe the client’s privilege of secrecy. Note also the privilege is the client’s and not counsel’s. The second question is the importance of counsel remaining detached and impersonal in his attitude to the case, so that his judgment of it will not be clouded by personal feelings. For this reason, it has generally been held that counsel engaged in a case should not put himself in a position where he may be subjected to cross-examination or in any way enter personally into dispute, as distinct from representing and speaking for his client in his professional capacity. There would thus appear to be no objection on principle to the fact of counsel swearing an affidavit, providing it does not by reason of its subject matter offend against either of the above requirements.”
See also Three Rivers DC vs. Bank of England (No. 6) (2004) AB, 206, NSITFMB vs. Adeyemo (2008) FWLR (Pt. 157) 1040 @ 1048. PER GARBA, J.C.A.

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): The Appellant and one Juliet Odimbu were arraigned and tried before a Magistrate Court, Ikotun in the Lagos Magisterial District on a four (4) counts charge No. G/60A/2011 for offences of conspiracy and forgery of signature on land documents contrary to the provisions of Section 54 and 467 of the Criminal Code, Cap C17, Vol. II, Laws of Lagos State 2003.

In the cause of the trial, photocopies of some documents (receipts) were admitted in evidence and marked as Exhibits B, B1 and B2 in spite of the attempt to withdraw them by the prosecution and objection by the defence to their admissibility. Subsequently, on the oral application by the prosecution, the Magistrate ordered the Appellant to produce the originals of the documents admitted as Exhibits B, B2 and dissatisfied with the order, the Appellant appealed to the Lagos State High Court (Lower Court hereafter) against same.

​The four (4) grounds of the appeal contained on the Amended Notice of Appeal dated 3rd June, 2015 are to the effect that there was no evidence that the documents were/are in the possession of the Appellant,

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that the Magistrate Court had no jurisdiction to make the order since copies were admitted in evidence and that the Appellant cannot be compelled to disclose privileged communication between him and his client.

After a consideration of the cases presented by the parties to the appeal, the Lower Court, in the judgement delivered on the 10th November, 2016, dismissed the appeal.

This appeal is against that decision and is premised on four (4) grounds set out on the Notice of Appeal dated 19th December, 2016.

In the Appellant’s brief filed on the 25th April, 2017, two (2) issues are submitted for decision by the Court, as follows: –
“1. Whether the learned appellate High Court Judge was right to hold that the learned Magistrate could order the production of documents of which the photocopies had earlier been admitted on evidence despite the objection of Counsel. (Grounds 1, 2 and 3)
2. Whether the learned appellate High Court Judge was right to hold that the learned Magistrate Court admit in evidence original documents of which the photocopies had been admitted in the same proceedings in the circumstances of this case. (Ground 4)”

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Although the Affidavit of Service shows that the Respondent was duly served with the Appellant’s brief since the 17th June, 2017, there is no record that he filed a brief of argument in response or reaction thereto for the determination of the appeal. In addition, the Respondent was not represented at the oral hearing on the 27th May, 2020 after he was served with Hearing Notice on 20th May, 2020 through Counsel; Mr. A.O. Fadipe, via phone call and SMS.
The appeal is, in the circumstances, unchallenged, uncontested and to be considered and determined on the Appellant brief alone in the absence of a brief of argument from the Respondent to answer or meet the submissions in the Appellant brief.
The law deems the Respondent to have conceded to all the points raised and argued in the Appellant brief in the support of the appeal. See: Okongwu vs. NNPC (1989) 4 NWLR (Pt. 115) 296, Fregene vs. A.C. Nigeria Limited (1997) 3 NWLR (Pt. 493) 359, Obike International Nigeria Limited vs. Ayi Electronics (2005) ALL FWLR (Pt. 256) 1369, Ugboaja vs. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278), (2008) 10 MJSC.
The position notwithstanding,

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the appeal is to be determined on its merit and can only succeed on the sustainability in law of the issues canvassed by the Appellant and not merely on the absence of the Respondent’s answers to them in a brief of argument. See John Holt Ventures vs. Oputa (1996) 9 NWLR (Pt. 470) 101, Para-Koyi (2001) 13 NWLR (Pt. 731) 602, Ebe vs. Ebe (2004) 3 NWLR (Pt. 860) 215, Echere vs. Ezirike (2006) ALL FWLR (Pt. 323) 1597) Shona-Jason Limited vs. Omega Air (2006) 1 NWLR (Pt. 960) 1.
I intend to consider the Appellant’s arguments on the two issues together.

After setting out a portion of a ruling by the Magistrate Court that the originals of the Exhibits B1 and B2 were in possession of Augustine who died last year, learned Counsel for the Appellant submits that it was a clear misdirection by the Lower Court to say that the Magistrate Court acted on the evidence before it in ordering the Appellant to produce the said documents. Section 242(1) of the Evidence Act, 2011 is referred to and it is argued that an order for the production of a document by a party can only be validly made if the party is shown by evidence before a Court, to be in possession

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of the document.

It is maintained that the Lower Court was wrong in law to have affirmed the order by the Magistrate Court for the Appellant to produce the documents in the absence of evidence showing that they were in his possession or custody. Learned Counsel says the order for the Appellant to produce documents not in his possession, was in vain, citingMakinde vs. Akinwale (1995) 6 NWLR (Pt. 399) 1 @ 9 and Geosite Survey Nigeria Limited vs. Nwagbara (2007) ALL FWLR (Pt. 336) 742 @ 762 on the duty of a Court not to make an order in vain.

On issue 2, it is submitted that the Lower Court erred in law to have held that Magistrate Court has jurisdiction to order for the production of documents, copies of which had earlier been admitted in evidence by it in the proceedings. According to learned counsel, the Magistrate Court was functus officio in relation to Exhibits B, B1 and B2 and cannot make another order related to the Exhibits, relying on Shuaibu vs. Muazu (2014) 8 NWLR (Pt. 409) 207 @ 299, Alechenu vs. University of Jos (2015) 1 NWLR (Pt. 1440) 333 @ 372-4, Ngere vs. Okuruket XIV (2017) 5 NWLR (Pt. 1559) 440 @ 449, among other cases.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Resolution:
The subject of the appeal, i.e. the Ruling by the Magistrate Court dated the 13th February, 2014 by which the Appellant was ordered to procure the original of a document, copy of which was admitted in evidence, is at pages 43-4 of the Record of Appeal. It is as follows: –
“This is an application by the prosecuting Counsel that the Honourable Court should direct the 2nd Defendant to produce a particular document in Court for the use of the Court in the trial of this case pursuance to Section 89 and 91 of the Evidence Act. This is the Original document or primary evidence of an earlier tendered photocopy document which was rejected. The Defendant’s counsel objected on the ground that the documents in question is a privilege document which a lawyer can not release to anybody except the owner consented and cited the case of Abubakar vs. Chuks (2007) 16 NWLR (Pt. 1066) 386 at 414 – 415 paragraphs F-A where the Court held that “By virtue of Section 170 of the Evidence Act a legal practitioner is by law not permitted to disclose any communication made to him in the course and for the purpose of his employment by his

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client or to state or disclose the contents or condition of any document with which he had become acquainted or disclose any advice given to his client all in the course of and for the purpose of his said professional engagement, except with the express consent of his client, the employer” exception here are: “any communication made in furtherance if any illegal purpose or any fact observed by him in the course of his employment as such showing that.
But there is exception to this rule, in the earlier cited case: Abubakar vs. Chuks (supra) at 13 – 414 paragraphs E-A. The combination of the two pronouncement of Judges or Supreme Court is to the effect that the document in question is a document that is needed in a trial of this case for the interest of Justice without the consent of the owner the 2nd Defendant is therefore the next adjournment for the use of the Court in the trial.”

The Ruling speaks for itself and it can easily be observed that the order by the Magistrate Court was for the Appellant, as second Defendant in the case, to produce the original of an unnamed document which is said to be needed in the trial for the

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interest of justice. It is also clear from the Ruling that the application for the production of the said document was made by the Respondent (the prosecution) pursuant to the provisions of Section 89 and 91 of the Evidence Act, 2011. As stated by the learned counsel for the Appellant, the application was made orally.

Now, Sections 89 and 91 of the Evidence Act, 2011, deal with the admissibility of secondary evidence of the existence, condition or contents of a document, in judicial proceedings of a Court of law, as proof of a material fact asserted or alleged by a party. By the provisions of Section 87 of the Evidence Act, secondary evidence of documents include copies, counter parts and oral accounts of the contents of a document given by some person who has himself seen the document. Secondary evidence of a document is therefore not the original document itself, but copies or other counter parts as against the parties who did not execute therein. The original of a document, is defined in Section 86 of the Evidence Act, as the primary evidence of the document and by the provisions of Section 85 of the Act, the contents of a document may be proved either

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by the production of the original document itself, as primary evidence, for the inspection of the Court or by means of secondary evidence of the original document under the provisions of Sections 89 and 91 of the Act.
Since the document ordered by the Magistrate Court to be produced by the Appellant is the original of the document in question, Sections 89 and 91 of the Act which deal with the admissibility of secondary evidence of a document, are not relevant and material for the purpose of the order to produce or the power of the Magistrate Court to make it. The production of a document before a Court and the admissibility of such a document are two different things that are governed by different considerations or factors regulated by rules of procedure and/or the Evidence Act.
Admissibility of any category of documents in evidence as proof of a fact, is regulated, generally, by the relevant provisions of the Evidence Act.

The pith of the complaint by the Appellant in the appeal before the Lower Court and this Court is that the Magistrate Court had no power to order him to produce the original of the document in question. Until the document was

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produced before the Magistrate Court as ordered, the issue or question of its admissibility in evidence or any objection thereto on any ground would be premature and not arise. In this regard, whether the document to be produced by the Appellant is in law admissible or not in evidence in view of the fact that photocopies thereof were earlier admitted by the trial Magistrate Court, did not arise from and was in fact not decided or determined in the Ruling of 13th February, 2014 by that Court.
A document produced before a Court in the course of proceedings either on the order to produce, by parties or the Court, does not automatically become evidence before the Court by its mere production, but only when tendered and admitted in evidence by the Court. Until that takes place, the document, though produced, would not become and be part of the material evidence to be considered in the determination of a case. In the case of Abacha vs. Fawehinmi (2000) 4 SC (Pt. II) 1, (2000) ALL NLR, 151, (2000) 6 NWLR (Pt. 660) 228, it was stated by Uwaifo, JSC that: –
“When a document is produced before a Court, for the purpose that it be used in the proceedings, the

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proper procedure is to tender it formally. If it is admissible, it is admitted as an exhibit in its original form. But if it is a document that cannot be parted with by the person in whose custody it is, or the original is not available, a copy or certified copy as secondary evidence in appropriate cases will meet the occasion.”
See also FBN, Plc vs. Tsokwa (2004) 5 NWLR (Pt. 866) 271, Bilbis vs. Tsafe (1999) 4 NWLR (Pt. 597) 1, Adegoke Motors Limited vs. Adesanya (1989) 5 SCNJ, 80 @ 88, Asuquo vs. Eyo (2013) LPELR-20199 (CA).

It may be recalled that the Magistrate Court cited and relied on the Supreme Court case ofAbubakar vs. Chuks (supra) for the exception to the privileged communication between a legal practitioner and his client, to make the order for the Appellant to produce the document in question. Even though the Ruling does not contain the information or state that the Appellant who was ordered to produce the document received it in his professional capacity as the legal representative/practitioner of any of the parties to the case, since the objection to the production by Counsel for the Appellant (as a Defendant in the case) was

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based on such legal practitioner/client relationship, it is clear there was such a relationship, as stated by the Appellant’s Counsel in the Appellant brief.

In the Appellant’s brief, it is said that the Appellant, a legal practitioner, had represented the 1st Defendant in the case as counsel when she was initially charged alone in the charge No. G/81/2010 for the same offences before the Magistrate Court before the charge was substituted to include him as the 2nd Defendant. In the course of their trial, PW1, who was the complainant in the case, gave evidence, inter alia, as follows: –
“In 1995/96, I saw the receipt of the land Augustine bought for me. The signatory to the receipt are Alhaji Alade, Alhaji Modupe Bello, Baba Kwara and Augustine himself. The name I saw on the receipt is Augustine Nnaoma instead of Augustine Unoma Onohia, showing that the Augustine joined our names together to make the name on the receipt. I can identify this receipt if I see it. The original of this receipt is with Augustine, I was told that Augustine is dead and this was last year.”

Outside of or apart from this piece of evidence from the

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witness, there is no other evidence on who had possession or custody of the original receipts for the land bought by the late Augustine after his death. In particular, there is no piece of evidence, whatsoever, to show or even suggest that the original receipts in question which were in possession of the late Augustine were ever given to and in possession or custody of the Appellant in his capacity as the 1st Defendant’s Counsel in the charge against her or in his position as the 2nd Defendant in the charge against the two (2) of them. There is no record of the oral application by the Respondent made to the Magistrate Court for the order on the Appellant to produce the originals of the Exhibits B, B1 and B2 in order to see how the said documents got to the possession or custody of the Appellant in any capacity; i.e. as counsel for the 1st Defendant or as 2nd Defendant in the case. In the absence of any piece of evidence to show and clearly establish that in fact and deed, the said original receipts were in actual possession or custody of the Appellant, it is curious for the prosecution to orally apply for and absurd for the Magistrate Court to have made

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the order for the Appellant to produce them for its use in the case.

Since the Appellant did not admit possession or custody of the said original receipts and there was no evidence at all at the trial to show and establish that they are in his possession or custody at the material time or that they are in possession or custody of his privy or other person over whom he had some control or could have obtained them, the order made by the Magistrate Court, I agree with the learned counsel for the Appellant, was in vain since the Appellant could not and would not be expected to produce what has not been shown or established to be in his possession, custody or control, howsoever. See Odionye vs. Ayansi (1963) 2 ALLNLR, 44, Section 246(3) of the Evidence Act.
In any case, Section 185 of the Evidence Act provides that: –
“No one shall be compelled to produce documents in its possession which any other person would be entitled to refuse to produce if they were in his possession, unless such last mentioned person consents to their production.”
By these provisions, although a Court may have the inherent power and authority to, in deserving

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cases, order the production of any material and relevant document, for instance under Section 246(1) of the Evidence Act, in the course of proceedings, no person or party shall be compelled to produce such document if the person through who or by whom he had possession thereof did not consent to the production.
In addition, there is Section 195 of the Act which provides that: –
“No one shall be compelled to disclose to the Court any confidential communication which has taken place between him and a legal practitioner consulted by him, unless he offers himself as witness in which case he may be compelled to disclose any such communication with as may appear to the court necessary to be known, in order to explain to the court necessary to be known, in order to explain any evidence which he has given, but no others.”
By these provisions, the Appellant, as a legal practitioner, shall not and so cannot validly, be compelled by the Magistrate Court to disclose any confidential communication between him and his client who consulted him for his professional services. See Uwagba vs. Federal Republic of Nigeria (2000) 13 NWLR (Pt. 684) 242,

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Re D (a child) (2011) 4 ALLER, 434. So even if the Appellant was said to be in possession of the original receipts in question in his capacity as Counsel to the 1st Defendant, he could not be compelled by the Magistrate Court to produce them without the consent of the 1st Defendant who is entitled on refuse to produce them. In his position as a Defendant in the case, the Appellant was entitled to refuse to produce the original receipts in question even if given notice to produce by the prosecution pursuant to the provisions of Section 91 of the Evidence Act, and so cannot be compelled by order of the Magistrate Court to do so under the above provisions.
The only consequence of failure to produce under the provisions of Section 91 is that the prosecution would be entitled to and at liberty to tender secondary evidence of the receipts in evidence in the case. See Buhari vs. Obasanjo (2005) 13 NWLR (Pt. 941) 1, Gbadamosi vs. Kabo Travels Limited (2000) 8 NWLR (Pt. 668) 243, Nnamdi Azikiwe University vs. Nwafor (1999) 1 NWLR (Pt. 585) 116, Agha vs. IGP (1997) 10 NWLR (Pt. 524) 317, Ukachukwu vs. Uzodinma (2007) 9 NWLR (Pt. 1038) 167, Adetoro vs. UBN, Plc (2008)

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13 NWLR (Pt. 1104) 255, Udeagha vs. Omegara (2010) 11 NWLR (Pt. 1204) 168.
In the above premises, the Lower Court was wrong in affirming the order by the Magistrate Court for the Appellant to produce the original of the receipts which were not shown to be in his possession or custody either as counsel to the 1st Defendant in the charge against her or as a Defendant in the case. Like I stated earlier, the question or issue of the admissibility of the original receipts in evidence after the admission of the Exhibits B, B1 and B2 was/is premature at the stage of the order to produce.
The above position as it is, the provisions of Section 192(1) of the Evidence Act on the privilege of communication between or information obtained by a legal practitioner in the professional capacity of Counsel/client relationship is restricted to non-disclose of the communication on the contents of condition of any document or any document or any advice given by him to his client. The provisions of the section are thus: –
“(1) No legal practitioner shall at any time be permitted unless with his client’s express consent, to disclose any communication made

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to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment.
Provided that nothing in this section shall protect from disclosure:
(a) Any such communication made in furtherance of any illegal purpose;
(b) Any fact observed by any legal practitioner in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.”
These provisions essentially provide protection to a client who engages or employs the professional services of a legal practitioner for any particular or general purpose, by way of privilege, from disclosure of any communication or information between him and the legal practitioner in the course of their relationship, except he (the client) consents to the disclosure. The legal practitioner cannot be compelled in law, without the consent of the

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client, to disclose any such communication or information to a third party, even by a Court of law. The salient point to be noted is that the consent to be sought and obtained for the disclosure of the communication or information, is that of the client and not the legal practitioner. In Horn vs. Richard (1963) ALLNLR, 486 @ 487-8, Holden, J stated the rationale for the privilege at common law thus: –
“First comes the question of privilege. Every client is entitled to feel safe when making disclosure to his solicitor or counsel, and there are cases establishing firmly that counsel cannot be called to give any evidence which would infringe the client’s privilege of secrecy. Note also the privilege is the client’s and not counsel’s. The second question is the importance of counsel remaining detached and impersonal in his attitude to the case, so that his judgment of it will not be clouded by personal feelings. For this reason, it has generally been held that counsel engaged in a case should not put himself in a position where he may be subjected to cross-examination or in any way enter personally into dispute, as distinct from

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representing and speaking for his client in his professional capacity. There would thus appear to be no objection on principle to the fact of counsel swearing an affidavit, providing it does not by reason of its subject matter offend against either of the above requirements.”
See also Three Rivers DC vs. Bank of England (No. 6) (2004) AB, 206, NSITFMB vs. Adeyemo (2008) FWLR (Pt. 157) 1040 @ 1048.
For the privilege provided by the provisions of Section 192 to avail and apply, it must be shown that: –
(a) The person sought to be compelled to disclose any communication or information, must be legal practitioner as defined under Section 24 of the Legal Practitioner Act.
(b) The communication or information in question must have been made or obtained by the legal practitioner in his professional capacity.
(c) That communication or information must be made or given in the course of and for the purpose of the counsel/client relationship.
(d) The communication or information may be oral or in writing (documentary),
(e) The communication or information is on facts to which the legal practitioner’s attention was

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specifically drawn to by the client or which he comes across in the course of his engagement with the client under legal practitioner.
(f) The obligation of the legal practitioner not to disclose such communication or information shall continue even after his engagement by the client cases, under Sub-section 2.
However, since to every general rule, there may exist an exception or exceptions, the privilege provided for in the section does not apply and would avail in the circumstances set out in the proviso thereto. They are:-
(i) Where or when the communication or information was made or given in furtherance of any illegal or unlawful purpose and
(ii) Where or when the legal practitioner observed facts in the course of his counsel/client relationship, in directing that a crime or criminal act such as fraud, has been committed.
See BBGP Managing General Partner Limited vs. B&B Global Partners (2011) 2 ALLNLR, 297, R vs. Seaton (2011) 1 ALLER, 232 (CA).

In the premises of all I have demonstrated above, the Lower Court erred in law to have affirmed the erroneous order by the trial Magistrate Court compelling the Appellant to

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produce the original copies of the Exhibits B1 and B2 which were now shown to be in his possession or custody either as a legal practitioner/counsel to the 1st Defendant or as a Defendant in the case.

In the peculiar circumstances of the appeal, the issue of whether the Magistrate Court has the jurisdiction to order the production of original of photocopies of documents already admitted in evidence in the trial of the case and whether such original copies were admissible in evidence are misplaced, misconceived and non-sequitur in the determination of the real complaint of the Appellant as embodied in the grounds of appeal. The Court, as I have done, is entitled to ignore and disregard any or all issues framed by the parties in their briefs if such issues would only obscure, and not lead to the proper determination of the real issues in an appeal, in such a situation. See Sha vs. Kwan (2000) 8 NWLR (Pt. 670) 685 @ 700, Onochie vs. Odogwu (2006) 6 NWLR (Pt. 975) 65, NDP vs. INEC (2012) 12 MJSC (Pt. III) 67, Kayode vs. State (2016) 7 NWLR (Pt. 1511) 199, Governor, Ekiti State vs. Olubunmo (2017) 3 NWLR (Pt. 1551) 1 @ 23.

In consequence wherefore, I find

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merit in the appeal which I allow. Accordingly, the decision by the Lower Court dated the 10th November, 2010, affirming the order by the trial Magistrate Court for the Appellant to produce the original of the named documents is hereby set aside.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in advance, the erudite leading judgment delivered by my learned brother: Mohammed Lawal Garba, JCA. I endorse, in toto, the reasoning and conclusion in it.  l too allow the appeal in the terms decreed in the leading judgment.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother MOHAMMED LAWAL GARBA JCA afforded me the opportunity of reading in draft before today the Judgment just delivered and I agree with the reasoning and conclusion contained therein, adopt the Judgment as mine with nothing further to add.

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Appearances:

Nasiru Tijani and T. Tijani For Appellant(s)

…For Respondent(s)