ALATISHE v. ADEGUNWA
(2022)LCN/16178(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Tuesday, June 28, 2022
CA/IB/16/2021
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
OBA ADETOYE MOJEED ALATISHE APPELANT(S)
And
ALHAJI SULAIMON ADEGBOLA ADEGUNWA RESPONDENT(S)
RATIO
THE POSITION OF LAW WHERE A REPLY BRIEF IS DEEMED NECESSARY
Upon a careful study of the Briefs filed by the parties, I find it needful to reiterate the settled principle of law that a Reply Brief is only necessary when new issues of law are raised in the Respondent’s Brief. A Reply Brief should be limited to answering new points that arise from the Respondent’s Brief. It is not proper to use a Reply Brief to extend the scope of the Appellant’s Brief or use it to further expatiate on arguments canvassed in the main Brief. An Appellant should not under the guise of filing a reply have a second bite at the cherry. Where a Reply Brief is used for this purpose, it would be discountenanced by the Court. See ABDULKADIR VS. MOHAMMED (2019) 12 NWLR (PT. 1687)450, MAINSTREET BANK LIMITED VS. BINNA (2016) 12 NWLR (PT. 1526)316; CAMEROON AIRLINES VS. OTUTUIZU (2011) 4 NWLR (PT. 1238)512 AND LONGE VS. FIRST BANK OF NIGERIA PLC (2010) 6 NWLR (PT. 1189)1. PER OJO, J.C.A.
WHETHER OR NOT THE COURT CAN REFORMULATE THE ISSUES FORMULATED BY PARTIES BEFORE IT
The law is settled that a Court may reformulate the issues formulated by the parties to narrow the issue(s) in controversy in the interest of accuracy, clarity and brevity. See ONYEKWULUJE VS. ANIMASHAUN (2019) 4 NWLR (PT. 1662)242; REPTICO S.A. GENEVA VS. AFRIBANK NIGERIA PLC (2013) 14 NWLR (PT. 1373)172; MUSA SHA (JNR) VS. DA RAP KWAN (2000) 8 NWLR (PT. 670)685. PER OJO, J.C.A.
QUESTIONS THAT CAN BE ASKED TO A WITNESS IN A CROSS-EXAMINATION
Section 223 of the Evidence Act 2011 provides as follows:
“When a witness is cross-examined, he may, in addition to the question referred to in preceding Sections of this part, be asked any question which tend to –
a) Test his accuracy, veracity or credibility or
b) Discover who he is and what is his position in life; or
c) Shake his credit by injuring his character.”
It is trite that by virtue of the foregoing, Counsel to an adverse party may put questions to a witness under cross-examination for the purpose of testing the accuracy, veracity and/or credibility of evidence given by him in his examination-in-chief. The questions put to a witness under cross-examination may be directed at discovering who the witness is, and what his position is in life or for the purpose of shaking his credit or to injure his character.
Cross-examination is a lethal weapon in the hands of the adversary which is usually used to demolish the case of the opposing party. See OMISORE VS. AREGBESOLA (2015) 15 NWLR (PT. 1482)205; OKULEYE VS. ADESANYA (2014) 12 NWLR (PT. 1422)521; OFORLETE VS. STATE (2000) 12 NWLR (PT. 681)415 AND IMPACT SOLUTIONS LIMITED VS. INTERNATIONAL BREWERIES PLC (2018) 16 NWLR (PT. 1645)377. PER OJO, J.C.A.
WHETHER OR NOT EVIDENCE ELICITED FROM A PARTY OR HIS WITNESS UNDER CROSS-EXAMINATION CAN BE RELIED UPON AS EVIDENCE IN SUPPORT OF HIS CASE
The law is further settled that evidence elicited from a party or his witness under cross-examination which goes to support the case or defence of that party can be relied upon as evidence in support of his case. In other words, evidence given under cross-examination is as valid and authentic as evidence given under examination in chief. This is why whenever a party is deprived the opportunity of cross-examining a witness without any legal reason, such deprivation amounts to gross violation of his constitutional right to fair hearing as provided for under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See TYONEX NIGERIA LIMITED VS. PFIZER LIMITED (2020) 1 NWLR (PT.1714)25; MTN NIGERIA COMMUNICATIONS LTD. VS. CORPORATE COMMUNICATION INVESTMENT LIMITED (2019) 9 NWLR (PT. 1678)427; ADEOSUN VS. GOVERNOR, EKITI STATE (2012) 4 NWLR (PT. 1291)581 AND AKOMOLAFE VS. GUARDIAN PRESS LIMITED (2010) 3 NWLR (PT. 1181)338. PER OJO, J.C.A.
WHETHER OR NOT WHERE A PARTY MAKES AN ADMISSION IN THE COURSE OF A MEETING HELD TO SETTLE DISPUTES, SUCH ADMISSION IS RELEVANT AND ADMISSIBLE IN EVIDENCE IN AN ACTION FILED TO DETERMINE THE RIGHT OF THE PARTIES
Section 26 of the Evidence Act 2011 provides as follows:
“In Civil cases, no admission is relevant if it is made either upon an express condition that evidence of it is not to be given or in the circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.”
It follows therefore that where a party makes an admission in the course of a meeting held to settle disputes, such admission is irrelevant and inadmissible in evidence in an action filed to determine the right of the parties. This is because when parties act bona fide to settle a dispute between them they should be able to speak freely without the fear that whatever is said would be used against them in Court. In other words, settlement of disputes should be conducted in a free environment without any inhibitions. In fact, where during a peace meeting, negotiations are reduced to writing, such documents are marked “Without Prejudice” and they are inadmissible against the parties or any of them. The fact that a document made in the course of a peace meeting is not expressly marked “Without Prejudice” would not make it inadmissible. See ASHAKA CEM PLC. VS. ASHARATUL MUBASHURUN INVESTMENT LIMITED (2019) 5 NWLR (PT. 1666)447; ASHIBUOGWU VS. A. G. BENDEL STATE (1988) 1 NWLR (PT. 69)138; AKANBI VS. ALATEDE NIGERIA LTD. (2000) 1 NWLR (PT. 639)125 AND FAWEHINMI VS. NIGERIAN BAR ASSOCIATION (NO.2) (1989) 2 NWLR (PT. 105)558.
In WILLIAMS VS. ADOLD/STAMM INTERNATIONAL NIGERIA LIMITED (2022) 5 NWLR (PT. 1822)23 AT 90 PARAGRAPHS A-C, the Supreme Court per PETER-ODILI JSC held as follows:-
“It is the policy of the law that disputes should be amicably settled where possible, and it would be unwise for parties to enter into negotiations of Statements made during such negotiations were admissible in evidence at trial in the event that the attempt to settle was not successful. Where such a negotiation is by letter, the words “Without Prejudice” protects subsequent and even previous correspondence and admissions made during “a bona fide attempt to settle a dispute”. As such any correspondence made along the line of “bona fide” settlement of a dispute even if not expressly marked so is inadmissible”. PER OJO, J.C.A.
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant Respondent as Claimant instituted an action at the lower Court wherein by his Amended Statement of Claim sought the following Reliefs against the Appellant as Defendant:
i. A Declaration that the words employed by the Defendant in his letter of 15th January 2019 and his publication and republication in the City People Magazine Edition of 7th August, 2019 Volume 44, No. 16 at pages 15 and 24 of the Obanta Newsday of August 2019, Volume 27, No. 8 at Page 6 constitutes libel against the Claimant.
ii. An Order of this Honourable Court directing the Defendant to publish and (sic) apology in the Punch, The Nation and This Day Newspapers as well as the City People Magazine and Obanta Newsday.
iii. The sum of N5,000,000,000.00 (Five Billion Naira) being exemplary damages for libel committed by the Defendant against the Claimant.
iv. An Order of perpetual injunction restraining the Defendant from further perpetrating or carrying out any disparaging/libelous publication against the Claimant.
v. The costs of this action.
Parties joined issues and the case proceeded to trial. In the course of cross-examining CW4 at the proceedings before the trial Court on the 15th of December, 2020 learned Senior Counsel to the Appellant Otunba Kunle Kalejaiye SAN put a question to him which learned senior counsel to the Respondent objected. He objected to the line of cross-examination. His objection was sustained by the learned trial Judge. Dissatisfied with the ruling sustaining the objection to the line of cross-examination, the Appellant filed the instant appeal.
The Notice of Appeal which contains five grounds of Appeal was filed on the 24th of December 2020. The Record of Appeal was transmitted to the Registry of this Court on the 18th of January, 2021. A supplementary Record of Appeal was transmitted on the 29th of October, 2021.
Parties filed and exchanged their respective Briefs of Argument as follows:
1) Appellant’s Brief of Argument settled by Otunba Kunle Kalejaiye SAN was filed on the 25th February 2021.
2) Respondent’s Brief of Argument settled by O. O. Ojutalayo SAN was filed on the 15th of June, 2021.
3) Appellant’s Reply Brief settled by Samuel Oyadoyin Esq. was filed on the 1st of July, 2021.
Upon a careful study of the Briefs filed by the parties, I find it needful to reiterate the settled principle of law that a Reply Brief is only necessary when new issues of law are raised in the Respondent’s Brief. A Reply Brief should be limited to answering new points that arise from the Respondent’s Brief. It is not proper to use a Reply Brief to extend the scope of the Appellant’s Brief or use it to further expatiate on arguments canvassed in the main Brief. An Appellant should not under the guise of filing a reply have a second bite at the cherry. Where a Reply Brief is used for this purpose, it would be discountenanced by the Court. See ABDULKADIR VS. MOHAMMED (2019) 12 NWLR (PT. 1687)450, MAINSTREET BANK LIMITED VS. BINNA (2016) 12 NWLR (PT. 1526)316; CAMEROON AIRLINES VS. OTUTUIZU (2011) 4 NWLR (PT. 1238)512 AND LONGE VS. FIRST BANK OF NIGERIA PLC (2010) 6 NWLR (PT. 1189)1.
In the instant appeal, the Respondent’s Brief does not contain any new issue of law which calls for a Reply from the Appellant. The Reply Brief filed by the Appellant is an attempt to expatiate on the issues already canvassed in the Appellant’s main Brief of Argument. It follows therefore that the submission in the Appellant’s Reply Brief of Argument falls short of the requirements of a Reply Brief and should be discountenanced. The Arguments in the Appellant’s Reply Brief are hereby discountenanced.
Learned Senior Counsel to the Appellant distilled the following four issues for determination on behalf of the Appellant:
1) Whether the lower Court’s holding that the contents of the meeting held on 23rd January, 2019 cannot be used to cross-examine the Claimant at any stage of the proceedings is not unfairly prejudicial to the Appellant’s case.
2) Whether there is any legal justification for disallowing the cross-examination question in question, it being crucial to the Defendant’s defence of justification.
3) Whether, having regard to the circumstances of this case, there has not been an infringement of the Appellant’s constitutional right to fair hearing.
4) Whether the lower Court was not wrong in finding that the meeting held on 23rd January, 2019 was held for the purpose of an amicable settlement within the context of Section 26 of the Evidence Act.
For his part, learned Senior Counsel for the Respondent identified two issues for determination as follows:
1) From the facts contained in the respective pleadings of the parties, whether the meeting of 23rd January 2019 was not a peace meeting convened for the purpose of achieving an amicable settlement of issues between the parties.
2) Having regard to the state of the law, whether the trial Judge was not right when he held that the contents of the peace or settlement meeting held by the Appellant and the Respondent on 23rd January 2019 (relating to an alleged admission by the Respondent) was inadmissible at trial.
On the 4th of April, 2022 when this appeal was argued Learned Senior Counsel for the parties adopted their respective Briefs of Argument and urged us to allow and/or dismiss the appeal.
The law is settled that a Court may reformulate the issues formulated by the parties to narrow the issue(s) in controversy in the interest of accuracy, clarity and brevity. See ONYEKWULUJE VS. ANIMASHAUN (2019) 4 NWLR (PT. 1662)242; REPTICO S.A. GENEVA VS. AFRIBANK NIGERIA PLC (2013) 14 NWLR (PT. 1373)172; MUSA SHA (JNR) VS. DA RAP KWAN (2000) 8 NWLR (PT. 670)685.
Having given a careful consideration to the Issues formulated on behalf of the parties and the grounds of appeal filed, I am of the view a sole issue would suffice in the determination of this appeal.
The sole issue which I formulate for the determination of this appeal is as follows:
“Whether upon a consideration of the relevant law, the learned trial Judge was right when he sustained the objection raised against a question put to CW4 by the Appellant’s Counsel under cross-examination at the proceedings of 15th December 2020”.
I have given due consideration to the submissions of learned Senior Counsel on both sides in the respective Briefs of Argument filed on behalf of the parties. The complaint of the Appellant in the main is that the learned trial Judge erred when he disallowed a question put to the Respondent who testified as CW4 while being cross-examined by learned Senior Counsel to the Appellant.
At the proceedings before the lower Court on 15th December 2020, learned Senior Counsel to the Appellant while cross examining the Respondent who testified as CW4, put the following poser to him:
“At that meeting, the defendant challenged you that you wanted to demolish Gbegande Market and turn it to a Palace. And that you wanted to turn the Palace into a town hall; an allegation which you admitted.”
Learned senior counsel for the Respondent (Claimant) objected and stated as follows:
“I object to the line of question. Such question cannot be asked because this question emanated from a meeting of settlement between the parties. The silk is trying to extract an admission from the witness. I commend to the Court, Sections 1 and 26 of the Evidence Act 2011. I refer specifically to Section 1(b), I submit that the evidence could not be given because the Claimant is disentitled to prove what the Silk is seeking to prove by virtue of Section 26 ….”
See pages 232 – 233 of the Record.
After parties joined issues on the objection, the learned trial Judge delivered a considered ruling wherein he upheld the objection. The said ruling is the subject of this appeal. The germane issue remains whether the learned trial Judge was right when he upheld the objection of the learned Senior Counsel to the Respondent and disallowed CW4 from responding to the poser put to him by the Appellant’s Counsel.
Section 223 of the Evidence Act 2011 provides as follows:
“When a witness is cross-examined, he may, in addition to the question referred to in preceding Sections of this part, be asked any question which tend to –
a) Test his accuracy, veracity or credibility or
b) Discover who he is and what is his position in life; or
c) Shake his credit by injuring his character.”
It is trite that by virtue of the foregoing, Counsel to an adverse party may put questions to a witness under cross-examination for the purpose of testing the accuracy, veracity and/or credibility of evidence given by him in his examination-in-chief. The questions put to a witness under cross-examination may be directed at discovering who the witness is, and what his position is in life or for the purpose of shaking his credit or to injure his character.
Cross-examination is a lethal weapon in the hands of the adversary which is usually used to demolish the case of the opposing party. See OMISORE VS. AREGBESOLA (2015) 15 NWLR (PT. 1482)205; OKULEYE VS. ADESANYA (2014) 12 NWLR (PT. 1422)521; OFORLETE VS. STATE (2000) 12 NWLR (PT. 681)415 AND IMPACT SOLUTIONS LIMITED VS. INTERNATIONAL BREWERIES PLC (2018) 16 NWLR (PT. 1645)377.
The law is further settled that evidence elicited from a party or his witness under cross-examination which goes to support the case or defence of that party can be relied upon as evidence in support of his case. In other words, evidence given under cross-examination is as valid and authentic as evidence given under examination in chief. This is why whenever a party is deprived the opportunity of cross-examining a witness without any legal reason, such deprivation amounts to gross violation of his constitutional right to fair hearing as provided for under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See TYONEX NIGERIA LIMITED VS. PFIZER LIMITED (2020) 1 NWLR (PT.1714)25; MTN NIGERIA COMMUNICATIONS LTD. VS. CORPORATE COMMUNICATION INVESTMENT LIMITED (2019) 9 NWLR (PT. 1678)427; ADEOSUN VS. GOVERNOR, EKITI STATE (2012) 4 NWLR (PT. 1291)581 AND AKOMOLAFE VS. GUARDIAN PRESS LIMITED (2010) 3 NWLR (PT. 1181)338.
All I have been laboring to say is that cross-examination is a vital tool in our adversarial system of jurisprudence. The question which now begs for an answer is whether there is any legal justification to deny Appellant’s Counsel from asking the question put to CW4 under cross-examination.
The case of the Respondent who was the Claimant at the lower Court is that between January and August 2019 the Appellant maliciously composed and caused to be published certain words concerning him in a letter dated 15th January 2019 to the Governor of Ogun State and copied to the Ogun State Commissioner for Local Government and Chieftaincy Affairs, Ogun State Commissioner for Urban and Physical Planning, Special Adviser for Urban and Commissioner of Police, Ogun State as well as the Chairman, Odogbolu Local government. It is further his case that the said offensive publication was published in the City People Magazine Edition of 7th August, 2019 Volume 44, No. 16 and Volume 27, No. 8 Edition of Obanta Newsday of August 2019. (See Paragraphs 8 to 12 of the Amended Statement of Claim).
The Appellant as Defendant joined issues with the Respondent. He relied on the defence of justification and qualified privilege. He averred further that on receiving the Petition, the then governor of Ogun State advised both parties to meet and resolve the issues between them and that sequel to the Governor’s advise, a meeting was held between the parties on the 23rd of January, 2019.
The issues were not amicably settled hence the action at the lower Court. At the proceedings in the lower Court on 19th December 2020 while the Respondent who testified as CW4 was being cross-examined, learned Senior Counsel to the Appellant put it to him as follows:
“At that meeting the defendant challenged you that you wanted to demolish Gbegande Market and turn it into a Palace. And that you wanted to turn the Palace into a town hall, an allegation which you admitted.”
Learned Senior Counsel to the Respondent objected to the line of questioning. Counsel on both sides joined issues on the objection and the learned trial Judge in a considered Ruling sustained the objection and did not allow CW4 to respond to the question.
The ground of objection of Respondent in the main is that the question asked by the Appellant’s Counsel emanated from a settlement meeting between the parties. He relied on the provisions of Section 1 and 26 of the Evidence Act, 2011 to submit that the question should not be allowed.
The Appellant has contended that the meeting between the parties which his Counsel referred to is not a settlement meeting. It is therefore pertinent to first resolve the issue of the status of the meeting.
The Appellant in paragraphs 24-27 of his Further Amended Statement of Defence at pages 163-164 of the Record averred thus:
“24. In any event, the Defendant deny vehemently that the Petition or any part thereof when read in the context of the above stated facts, portrayed the Claimant as a felon, saboteur, unreliable individual, instigator of discord, influence peddler, father of thugs, unstatesman like or a divisive person at all.
25. The Governor or whoever the Petition dated 15th January, 2019 was published/copied did not view the letter as a libelous material capable of lowering the esteem of the Claimant or disparage him in the estimation of the public to whom the letter was not published.
26. The Governor in fact acted promptly and advised both parties to meet and resolve the issues to ensuring that lasting peaceful co-existence is achieved in Ososa while the Local Government promptly erected signposts indicating that the Oba Gbegande Market is Government property. The Defendant will at trial found on the photograph pictures showing the signposts promptly erected at the resuscitated Oba Gbegande Market site.
27. On Wednesday, 23rd January, 2019, the Defendant was with the Claimant in his house after 8 years of lack of interaction in accordance with advise of the Governor.”
It is clear from the averments contained in the Appellant’s own pleadings that the meeting of Wednesday, 23rd January, 2019 was held to ensure that lasting peaceful co-existence is achieved in Ososa and also for the parties to talk after eight years of lack of interaction. This fact was not denied by the Respondent. I find paragraph 18 of his Claimant’s Reply to the Defendant’s Further Amended Statement of Defence at page 212 of the printed Record relevant and it is reproduced hereunder.
“18. The Claimant denies all the particulars given subsequent to Paragraph 31 of the Further Amended Statement of Defence except that he gave the Defendant audience in his (Claimant) home briefly on 23rd of January 2019 for the purpose of amicable reconciliation after the Defendant had already published the disparaging publication complained of in his Suit.”
The law is trite that parties are bound by their pleadings and any evidence given on facts not pleaded go to no issue. And where such evidence is erroneously admitted in evidence it should be discountenanced. The aim of pleadings is to bring to the fore the dispute between the parties and give notice of what issues would be contended at the trial. It is to avoid parties springing surprises at each other. See MBANEFO VS. MOLOKWU (2014) 6 NWLR (PT. 1403)377; OSUJI VS. EKEOCHA (2009) 16 NWLR (PT. 1166) 81; AREMU VS. ADETORO (2007) 16 NWLR (PT. 1060)244 AND NSIRIM VS. ONUMA CONSTRUCTION COMPANY NIGERIA LIMITED (2001) 7 NWLR (PT. 713)742.
To my mind, it is evident from the pleadings of both parties that the meeting held between them on 23rd of January 2019 was aimed at a peaceful resolution of the animosity between them to ensure lasting peace in Ososa Community. The fact that the meeting was for amicable reconciliation of the parties was not denied by any of them. It was not a fact in issue. The law is settled that facts admitted need no further proof. See CENTRAL BANK OF NIGERIA VS. DINNEH (2021) 15 NWLR (PT. 1798)91; COLE VS. JIBUNOH (2016) 4 NWLR (PT. 1503)499; AJIBULU VS. AJAYI (2014) 2 NWLR (PT. 1392)483 AND ATANDA VS. ILIASU (2013) 6 NWLR (PT.1351)529.
Parties having agreed that the purpose of the meeting of 23rd January 2019 between them was aimed at a peaceful resolution, any evidence to the contrary whether in chief or under cross-examination would be inadmissible. From the pleadings of parties, I find and hold that the meeting in issue was a settlement meeting.
Section 26 of the Evidence Act 2011 provides as follows:
“In Civil cases, no admission is relevant if it is made either upon an express condition that evidence of it is not to be given or in the circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given.”
It follows therefore that where a party makes an admission in the course of a meeting held to settle disputes, such admission is irrelevant and inadmissible in evidence in an action filed to determine the right of the parties. This is because when parties act bona fide to settle a dispute between them they should be able to speak freely without the fear that whatever is said would be used against them in Court. In other words, settlement of disputes should be conducted in a free environment without any inhibitions. In fact, where during a peace meeting, negotiations are reduced to writing, such documents are marked “Without Prejudice” and they are inadmissible against the parties or any of them. The fact that a document made in the course of a peace meeting is not expressly marked “Without Prejudice” would not make it inadmissible. See ASHAKA CEM PLC. VS. ASHARATUL MUBASHURUN INVESTMENT LIMITED (2019) 5 NWLR (PT. 1666)447; ASHIBUOGWU VS. A. G. BENDEL STATE (1988) 1 NWLR (PT. 69)138; AKANBI VS. ALATEDE NIGERIA LTD. (2000) 1 NWLR (PT. 639)125 AND FAWEHINMI VS. NIGERIAN BAR ASSOCIATION (NO.2) (1989) 2 NWLR (PT. 105)558.
In WILLIAMS VS. ADOLD/STAMM INTERNATIONAL NIGERIA LIMITED (2022) 5 NWLR (PT. 1822)23 AT 90 PARAGRAPHS A-C, the Supreme Court per PETER-ODILI JSC held as follows:-
“It is the policy of the law that disputes should be amicably settled where possible, and it would be unwise for parties to enter into negotiations of Statements made during such negotiations were admissible in evidence at trial in the event that the attempt to settle was not successful. Where such a negotiation is by letter, the words “Without Prejudice” protects subsequent and even previous correspondence and admissions made during “a bona fide attempt to settle a dispute”. As such any correspondence made along the line of “bona fide” settlement of a dispute even if not expressly marked so is inadmissible”.
The law is therefore settled that when parties meet to settle matters amicably any admission made in the course of the meeting is inadmissible in any subsequent litigation. Even where there is no express agreement amongst the parties, the Court may draw an inference of such agreement from circumstances surrounding the meeting.
In Paragraph 20 of the Claimant’s Reply to the Defendant’s Further Amended Statement of Defence he averred as follows:
“Further to Paragraphs 18 and 19 above, the Claimant was not aware, did not consent to the recording and is amazed that the Defendant recorded the amicable reconciliation meeting held by the parties on 23rd of January 2019”.
As I stated earlier, the meeting of 23rd January 2019 was convened to drive both parties to reconcile their differences and ensure lasting peaceful co-existence in their Community. It is only reasonable for one to expect that such a meeting was held in an environment where parties could bare out their minds without any fear that anything said at that meeting would be used against either of them. This is what should be the situation hence the Claimant (Respondent herein) was surprised that the Appellant secretly recorded the discussions they had and now seeks to bring in the evidence of what transpired at that meeting under cross-examination. This is not permissible. It is therefore my considered view that from the entire circumstances the meeting of 23rd January 2019 was held with the belief that evidence of what is discussed will not be used in subsequent litigation and I so hold.
I have earlier on in this judgment reproduced the question put to CW4 by learned Senior Counsel to the Appellant. I shall for ease of reference reproduce same.
It is as follows:-
“At that meeting the Defendant challenged you that you wanted to demolish Gbegande Market and turn it to a Palace. And that you wanted to turn the Palace into a town hall, an allegation which you admitted”.
The above was direct to the point and driven towards making CW4 admit part of what he said at the meeting of 23rd January 2019 and any answer given to the question is not in the circumstance admissible in evidence and I so hold. The learned trial Judge was therefore right when he sustained the objection of learned Senior Counsel to the Respondent.
Before I close, I wish to state the general rule that questions put to Witness(es) under cross-examination need not relate to facts which were given in evidence by him in his examination-in-chief. The law however remains that questions asked under cross-examination must relate to relevant facts. See Section 215(2) of the Evidence Act which provides as follows:
“The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief”.
Furthermore, in ISHENO VS. JULIUS BERGER NIGERIA PLC. (2008) 6 NWLR (PT. 1084)582 AT 602-603 PARAGRAPHS H–B, the Supreme Court per TOBI JSC held as follows:-
“There is still one aspect. It is the evidence procured under cross-examination. The cliché or aphorism that the sky is the limit of cross-examination is not good law.
This is not because (to put it lightly) the lawyer is not an astronomist or astronomer, but because there is no such law. The discipline of law is one which is characterized by limitations here and there and cross-examination cannot occupy such a tall and enviable place in our law of procedure. And here I should say that relevancy is a limitation in all the three types of examination, including cross-examination. After all, relevancy is the cynosure or heartbeat of the Law of Evidence. See Sections 6, 7 and 8 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria 1990”.
The Questions put to a witness under cross-examination must relate to relevant facts. By virtue of Section 1 (b) of the Evidence Act, 2011, any person shall not be made to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force.
Any admission made at the meeting of 23rd January 2019 are not to be given in evidence in any subsequent litigation, it follows that any question relating to it cannot be put to CW4 or any other witness under the guise of cross-examination. The question put to CW4 by learned Senior Counsel to the Claimant at the trial is not relevant and I so hold.
Learned Senior Counsel to the Appellant submitted that he (Appellant) was denied fair hearing by the lower Court when the question put to CW4 by his Counsel was disallowed.
It is trite that a trial should be conducted in such a way that justice is done to all parties. See Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The trial must be concluded in accordance with the relevant Laws, Rules of Court and the Principle of Natural Justice. See ARDO VS. INDEPENDENT NATIONAL ELECTORAL COMMISSION (2017) 13 NWLR (PT. 1538)450; DUKE VS. GOVERNMENT OF CROSS RIVERS STATE (2013) 8 NWLR (PT. 1356)347; PAM VS. MOHAMMED (2008) 16 NWLR (PT. 1112) 1; NTUKIDEM VS. OKO (1986) 5 NWLR (PT. 45)909 AND UNION BANK OF NIGERIA LTD. VS. NWAOKOLO (1995) 6 NWLR (PT. 400)127.
The Proceedings at the lower Court of 15th December 2020 wherein the subject matter of this appeal arose is at pages 231 to 235 of the Record. The ruling is at pages 236 to 243 thereof. I am of the firm view that the lower Court followed all relevant legal norms in ensuring that justice is done to all parties in the conduct of the proceeding and its ruling. Both parties were given the opportunity to present their case before the Court. The trial Judge had a legal justification to disallow CW4 from confirming an alleged admission made at the peace meeting of 23rd January 2019.
I do not see how the Appellant’s right to fair hearing was violated. I have no reason whatsoever to interfere with the conclusion reached by the trial Judge. The sole issue formulated for the determination of this appeal is therefore resolved in favour of the Respondent and against the Appellant.
Having resolved the sole issue in favour of the Respondent, it follows that this appeal fails and it is accordingly dismissed. The ruling of the High Court of Justice of Ogun State, Ijebu-Ode Judicial Division in Suit No. HCJ/205/2019 BETWEEN: ALHAJI SULAIMON ADEBOLA ADEGUNWA VS. OBA ADETOYE MOJEED ALATISHE delivered on 15th of December 2020 is hereby affirmed.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother, FOLASADE AYODEJI OJO, JCA.
This appeal is unnecessary and a mere waste of time of the parties and their valuable resources, because the question posed to the CW4 was of no utilitarian value to the case irrespective of the answer(s) that the witness could have given, as such answer(s) would go to no issue having regard to the facts and circumstances of the case, especially when the parties’ pleadings are taken into consideration.
It is for the foregoing reason and the very comprehensive reasons advanced by my learned brother that I also agree that the lone issue in the appeal, should be resolved against the Appellant and the appeal dismissed, accordingly.
I abide by the orders in the leading judgment affirming the decision of the trial Court.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege to read in advance, the ruling of my learned brother, FOLASADE AYODEJI OJO, JCA. He analysed the facts and evidence carefully and concluded that the application has no merit and I am in agreement with the lucid reasoning and resonating conclusions which I adopt as mine. It is settled law that the purpose of cross-examination is to elicit favourable facts from the witness or to impeach the credibility of the testifying witness to lessen the weight of unfavourable testimony and a question asked in cross-examination tends to test his accuracy, veracity or credibility, or discover who he is and what is his position in life, or shake his credit, by injuring his character. See Section 223 of the Evidence Act, 2011, TYONEX NIGERIA LIMITED & ANOR V. PFIZER LIMITED (2019) LPELR-49520(SC) and TERSOO JOSEPH V. THE STATE (2018) LPELR-44599(CA).
In the instant matter, the Applicant put a question to CW4 during cross-examination which was objected to by the Respondent and trial Court sustained the objection on the grounds that the question violates Section 1I(b) of the Evidence Act, 2011, subsequently, the Applicant filed this application and submitted that he was denied right to fair hearing. It is trite that a question put to a witness under cross-examination must relate to facts in issue, see Section 215(2) of the Evidence Act, 2011 and the case of ISHENO V. JULIUS BERGER NIGERIA PLC (2008) 6 NWLR (PT. 1084) 582. Where the question tends to deviate from its main objective the trial Court is permitted to disallow it because trials must be conducted in accordance with the relevant laws and rules of Court. See UNION BANK OF NIGERIA LTD V. NWAOKOLO (1995) 6 NWLR (PT. 400) 127.
In conclusion, I agree with the reasoning and conclusion of my learned brother, and I therefore abide by the consequential orders contained in the said ruling.
Appearances:
Otunba Kunle Kalejaye SAN with him Samuel Oyadoyin For Appellant(s)
O. O. Ojutalayo SAN with him A. A. Isiolaotan, B.R. Kuyebi and O. A. Aka For Respondent(s)
