ALHAJI HALI ALIYU v. ALHAJI BELLO BULAKI
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of January, 2019
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
ALHAJI HALI ALIYU Appellant(s)
ALHAJI BELLO BULAKI Respondent(s)
AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): This appeal before us which arose from the decision of Hon. Justice M. U. Dogon Daji of the Sokoto State High Court delivered on 24/8/2018, is in respect of a business transaction between the respondent and the appellant. The respondent whose office address is situate at Mafara Dan – Baba Road, Old Market Area Sokoto, is a business man who deals in all types of women wrappers, and has been doing so for over 30 years. He sells the wares to some of his customers on cash and carry basis but on credit basis to others. The appellant is also a business man who deals in ile materials. The dispute is over the payment of outstanding balance of the sum of ?7,232,000.00 from the total sum of ?13,200,000.00 being the cost of the 120 belts of wax the appellant collected from the respondent which sum the respondent claimed as special damages at paragraph 17 of his statement of claim.
The Respondent?s case is that in the month of August, 2014 the Appellant collected from him 120 belts of wax, each belt containing 100 pieces of wrapper at the cost of ?110,000.00, making a
total cost of ?13,200,000.00, on credit basis. That the Appellant made some instalmental payments personally and also through one Bello liberty, and the Respondent?s Zenith Bank account, the last payment being the sum of ?200,000.00 and the return of 5 belts of wrappers, on the 14/5/2015 leaving a balance of ?7,232,000.00 remaining unpaid despite repeated demands, the reason for which the suit was instituted at the lower Court.
On the other hand, the Appellant?s case is that, he did not buy or collect any goods on credit from the Respondent but that the Respondent uses him as a front to distribute the goods to his customers on credit and when the monies are paid by the customers, he, the Appellant would then remit the monies to the Respondent. That there was no time limit within which the customers are to pay the money. Also, that all the payments made and referred to were the monies paid by the customers, maintaining that since no goods were given to him personally on credit basis, he is not personally indebted to the Respondent but the customers to whom the goods were distributed and are yet to liquidate their debts, are the Respondent?s debtors.
After the Pre-trial conference, the matter went to trial and in proof of his case, the Respondent as plaintiff called his store officer, Usman Aliyu Dangande who adopted his written statement on oath as PW1 while the Respondent also as PW2, adopted his written statement on oath. Several exhibits were tendered. On his part, the Appellant as the defendant and the sole witness for the defence, adopted his statement on oath but tendered no Exhibit. At the close of evidence, written addresses were ordered. In his considered judgment, the learned trial judge concluded:
?It is therefore the view of this Court that the plaintiff has proved his claim against the defendant by preponderance of evidence and therefore the claim of the plaintiff as par his statement of claim succeeds.?
Aggrieved by the said decision, the appellant commenced this appeal the Notice of which was filed on the 24th October, 2017 predicated upon 5 grounds from which the learned Appellant?s counsel Ibrahim Abdullahi Esq, (FRHD), who settled the Appellant?s brief of argument filed on 30th May, 2018 distilled 4 issues, to wit:
(i) Was the Court below correct in law when it acted upon and refused to expunge the evidence of PW1 & PW2 as well as all the Exhibits tendered by the Respondent from its records on the grounds that there was no violation of Section 112 and 117(4) of the Evidence Act? (Decoded from ground 5 of the grounds of appeal).
(ii) Were Exhibits D & D1 with documents made during the pendency of the substantive suit before the trial Court so as render them inadmissible and liable to be expunged from the records of the Court below? (Decoded from ground 6 of the grounds of appeal).
(iii) Did the Court below properly evaluate the evidence adduced before entering judgment in favour of the Respondent? (Decoded from ground 3 of the amended grounds of Appeal).
(iv) Was the decision of the Court below in granting all the reliefs of the Respondent correct in law? (Decoded from grounds 1, 2 & 4 of the grounds of Appeal).
These issues were adopted by the Respondent?s learned counsel, A.Y. Abubakar, Esq., in the Respondent?s brief of argument filed on 19/6/2018. The Appellant filed a reply brief on 29/6/2018.
It is apparent, from the four issues distilled for determination and the argument of counsel, that only two (2) issues are germane to determine this appeal as formulated infra:
(1) WHETHER THE LOWER COURT WAS RIGHT IN REFUSING TO EXPUNGE THE EVIDENCE OF PW1 AND TO PW2 AS WELL AS THE EXHIBITS TENDERED THROUGH THEM ON GROUND OF VIOLATING SECTIONS 112, 117 (4) AND SECTION 83(3) OF THE EVIDENCE ACT.
(2) WHETHER ON THE EVIDENCE BEFORE THE COURT, THE LOWER COURT WAS RIGHT IN ENTERING JUDGMENT FOR THE RESPONDENT IN TERMS OF HIS CLAIM AT PARAGRAPH 17 OF THIS STATEMENT OF CLAIM.
In arguing the first arm of the issue, our attention was drawn to the evidence of PW1 & PW2 at pages 47 lines 10 – 13 and 51 lines 13 – 14 of the record where they admitted that their statements on oath were signed at their lawyer?s office, to which admission, learned counsel submitted that by virtue of Sections 112 and 117 (4) of the Evidence Act, 2011, the provisions of which he reproduced, their written statements on oath ought not to have been adopted and the exhibits tendered through them ought not have been admitted for violating the said provisions. He referred to the cases of
CHIDUBEM V EKENNA & 12 ORS (2008) LPELR 3913, also cited as (2009) ALL FWLR (Pt. 455) 1692, EROKWU V EROKWU (2016) LPELR 41515 (CA) and the Supreme Court case of BUHARI V INEC (2008) 12 SCNJ at 91 – where the implication of such signing of witness statement (depositions) rather than before an officer authorized to take oaths, have been judicially rendered to the effect that a witness written statement signed in a lawyers chambers in contravention of Section 112 of the Evidence Act and Section 19 of the Notaries Public Act, is not a mere irregularity that can be cured but one that calls for the striking out of the witnesses statement. He submitted that the case of UDUMA V ARUNSI & ORS (2010) LPELR – 9133 CA relied upon by the learned trial judge in drawing a distinction between ?signing? a deposition and ?swearing an affidavit? to the effect that a defect in the signing of a statement could be cured by a subsequent oral oath taking in Court before adopting the statement, is no longer the law.
In urging us to comply with the decision in the case of BUHARI V INEC (Supra) by striking out the incompetent statements on
oath of PW1 & PW2 as well as the exhibits tendered through them, again, our attention was drawn, this time to the case of OKONJO V DR MUDIAGA ODJE & ORS where the apex Court handed down a stern warning to all Courts in the hierarchy of Courts, to come to terms with the principle of stare – decisis.
On the 2nd arm, learned counsel referred to page 51 lines 17 – 18 of the record where the Respondent in cross-examination admitted that Exhibits D & D1 which were not signed by the Appellant, were made by him after filing the action at the lower Court, which admission he argued, is an admission against interest and binding on the Respondent, as held in the cases of OBIOYE V LAWAL (2007) ALL FWLR (Pt. 350) 1376, at 1385 D -E ratio 5, KIMDEY V GOV. GONGOLA STATE (1988) 5 SCNJ 281.
It was submitted that the Respondent being the author of the two documents, is by virtue of the reliefs he claimed, a person personally interested in the outcome or the result of the litigation, citing in support the cases of ALH. MUS YA’U V MACLEAN D.M DIKWA (2001) 8 NWLR (Pt 714) 127, APENA V AIYETOBI (1989) 1 NWLR (Pt 95) 85, H.M.S LTD V F.C.B LTD (1991)1
NWLR (Pt. 167) 210, ANYAEBOSI V R.T. BRISCOE NIG. LTD (1987) 3 NWLR (Pt. 59) 84.
It was thus submitted that the Respondent being such an interested person and Exhibits D & D1 having been made when proceedings were pending and after pleadings had been filed, the two exhibits, as he argued in his written address before the lower Court, were admitted in contravention of Section 83 (3) of the Evidence Act and ought not to have been relied upon as they amount to stealing a match against the Appellant. For this he cited the cases of APENA V AIYETOBI (1989) 1 NWLR (Pt. 95) 85, GBADAMOSI V KABO TRAVELS LTD (2000) 8 NWLR (Pt 817) 496, TIMOTHY & ANOR V OKPEIN & ORS (2018) LPELR 44812(CA) and OLOMO V APE (2013) LPELR 22327 (CA).
The lower Court, it was submitted, erred in not expunging same from its records even when called upon to do so. He was urged to resolve the issue in favour of the Appellant.
Responding to the 1st arm of the issue, learned Respondent?s counsel drew our attention to the distinction between an Affidavit and a written statement an oath for which reason, they are governed by different rules with
respect to any defect that may arise. He referred to the case of MAJEKODUNMI V OGUNSEYE (2017) LPELR – 42547 (CA) P 40 – 45 D – C where Tsanmani JCA relying on the case of UDUMA V ARUNSI (Supra) per Ogunwumiju JCA stated that while Affidavit evidence is admissible in evidence if no objection is raised, a written statement on oath does not become evidence unless it is adopted on oath by the maker and subjected to cross-examination, thus whatever defect exists in the original oath in respect of the signing of the statement, is cured by the second oath made in the Court before the judex prior to the adaption by the maker and his subsequent cross-examination.
He argued that where the statement on oath is admitted in evidence without objection, the defendant cannot later challenge the competence of the statement. It was submitted that the reasoning of the Court in the said case and several other cases cited, is to strengthen the need for Court to do substantial justice at the expense of technicalities, whose days are over, citing the case of WAMINI – EMI V IGALI & ORS (2008) 11 NWLR (Pt. 1097) 123 Per Saulawa JCA in aid of his position urging us to hold
that the statement on oath of PW1 & PW2 had been cured by the subsequent oath taking before their adoption in Court.
On the 2nd arm, it was submitted that the fact which Exhibits D & D1 were tendered to prove, that is, that the Appellant paid the sum of N1,500,000.00 to the Respondent through Alhaji Bello Liberty is an admitted fact by paragraph 7 of the appellant?s statement of Defence and also his evidence in cross-examination at p. 54 of the record, thence by Section 123 of the Evidence Act, requires no further proof. He argued that the said Exhibits D & D1 were tendered only to fortify the Respondents case and that with or without the exhibits, the fact which the exhibits seek to prove is an established fact, thus the appellant?s counsel is only beating a dead horse. He cited in support the case of OGUNDIPE V MINISTER FCT AND ORS (2014) LPELR – 22717(CA) and submitted that the absence of Exhibits D & D1 cannot have any debilitating impact on the Respondent?s case, the Appellant having both at his pleadings and evidence admitted the fact. We were urged to discountenance the appellant?s argument.
In his reply brief, the learned appellant?s counsel submitted that the decision of the Court of Appeal in the cases of MAJEKODUNMI V OGUNSEYE (Supra), UDUMA V ARUNSI (Supra) and WAMINI – EMI V IGALI & ORS (Supra) relied upon in support of the respondent?s position that a subsequent 2nd oath and adoption of a witness statement on oath which was signed in his counsel?s chambers cures the initial defect, cannot stand in view of the Supreme Court decision in the case of BUHARI V. INEC & ORS (Supra) which remains a binding precedent in the absence of any other Supreme Court decision to the contrary. He also reiterated the need for this Court to be bound by the decision of the Supreme Court as held in OKONJO V DR MUDIAGA ODJE (Supra). He argued that the fact that the Court in the decision relied upon by the Appellant might not have the opportunity of being availed the position of the Supreme Court in the BUHARI V. INEC?S case, does not excuse this Court to depart from the said decision.
It was further submitted that failure to comply with the provisions of the Evidence Act cannot, contrary to the respondent?s submission,
be regarded as a mere technicality, for if it were, the Supreme Court would not have struck out the witnesses statements deposed to before persons not duly authorized by law in the BUHARI V INEC?S case (Supra).
Therefore, the respondent he argued, cannot hide under the canopy of technicalities to render admissible what is grossly inadmissible in evidence.
From the foregoing submissions of both counsel, it is clear that what is in issue is the correctness of the decision of the lower Court in refusing to expunge from the record, the written statements on oath of PW1 and PW2 despite the submission of the learned Appellant?s counsel in his final written address urging the Court to do so. There is no contention that the depositions of both PW1 and PW2 were sworn in the office of their counsel. As recorded at page 47 lines 10-13 PW1 said:
. It is correct that I signed my witness statement on oath at my lawyer’s office. I went together with the plaintiff to my lawyer’s office where I signed my witness statement on oath. The Plaintiff also signed his witness statement on oath in his lawyer’s office in my presence …”
Similarly, at page 51 lines 13 – 14 of the records, PW2 stated thus:
“…It is correct that I signed my witness statement on oath at my lawyer’s office …”
The appellant?s learned counsel had argued at the lower Court that the two depositions be expunged. However, the learned trial judge in his wisdom refused to expunge the depositions and held inter alia:
…Be that as it may, it is the view of this Court since the witnesses for the Plaintiff i.e. PW1 and the plaintiff himself took an oath before adoption of their written statement on oath and their subsequent cross-examination, any defect in the original oath have been cured and their subsequent cross-examination, any defect in the original oath have been cured by the subsequent oath taken before this Court before the adoption of the written statement on oath.
Therefore, this Court is of the view that the written statement on oath of the Plaintiff and that of PW1 are in order and could be used by this Court in the determination of this case.?
In coming to this conclusion, the trial judge relied on the case of UDUMA VS ARUNSI & ORS (2010) LPELR – 9133 CA. In the said case, this Court per Ogunwumiju, JCA said:
?I am minded to go a step further and to make a distinction between Affidavit evidence in procedure begun by Originating Summons as against Statement of Witnesses on Oath at an election proceeding or proceeding began by Writ and to say that in respect of the latter scenario, where the Written Statement is to be adopted again on Oath by the maker before his Cross-Examination on it, whatever defect in the Original Oath in respect of the witness statement has been cured by the second Oath made in Court before the judex prior to the adoption of the witness statement by the maker and his subsequent Cross-Examination.?
Therein, the Court drew a distinction between an affidavit as applied to proceedings begun by Originating Summons vis-a-vis written statements on oath for adoption by witnesses in election petition proceedings in relation to any defect in their signing or swearing.?
Now, affidavit is simply a declaration on oath, a formal sworn statement of facts signed by the deponent and witnessed as to the veracity of the deposition?s signature by the taker of
the oath such as the commissioner for oaths, notary public or even a magistrate. Thus, Affidavit evidence is a statement of fact which the deponent swears to be true to the best of his knowledge, information or belief. See Chief Chukwumeka Odumegu Ojukwu vs Miss Stella Onyeador (1991) 7 NWLR (pt 203) 286 at 317.
A deposition literally means a formal, usually a written statement to be used in a law suit as evidence. See Oxford Advanced Learner’s Dictionary, Oxford University Press, 7th impression, 2000, at page 312. See also BLACK’S LAW DICTIONARY, 7th Edition at page 451. It is usually written outside the Court as witness?s evidence reduced into writing that would be used subsequently in Court. It is referred to as a witness’s out of Court written testimony for later use in Court. A deponent is a person who swears to a written statement or one who swears to an affidavit under the Evidence Act. In BUHARI V INEC (supra) TOBI JSC stated thus:
“…a person who swears to a written statement under Paragraph 1(1)(b) of the Practice Directions or one who swears to an affidavit under the Evidence Act is known as a deponent; a person who testifies by deposition.”
Therefore a Deposition simply means a statement of a witness made under oath out of Court. In either case, to make the affidavit, the written statement under oath acceptable for use, they must be sworn before the person duly authorised to take oaths.
Section 112 of the Evidence Act provides:
“An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner.”
By this provision, an affidavit will not be admitted or acceptable for use in any of the four mentioned instances namely, where it is sworn before: (a) a person on whose behalf the same is offered; (b) his legal practitioner; (c) a partner; (d) a clerk of his legal practitioner.
Further to the requirement of swearing to the affidavit by a deponent and the exclusion of any affidavit or deposition shown to have been sworn before any of the four classes of persons mentioned in Section 112, a further requirement to authenticate an affidavit sworn before a person duly authorised to take oaths is provided in Section 117 (4) as follows;
“An Affidavit when sworn shall be signed by the deponent or if he cannot write or is blind, marked by him personally with his mark in the presence of the person before whom it is taken.”
The combined effect of Sections 112 and 117 (4) is that for an affidavit to be admitted in evidence or allowed to be used as evidence, it must not only be sworn before a person so authorized to administer the oath such as the commissioner for oaths or a Notary Public, it must also be signed in the presence of such an officer. In the case of a Notary Public to which legal practitioner belongs, Section 19 of the Notaries Public Act Cap. N141 LFN 2004 comes into play. It provides:
“No notary public shall exercise any of his powers as a notary in any proceedings or matter in which he is interested.?
Reading the above provisions of the Evidence Act together with Section 19 of the Notaries Public Act, the clear message is that an affidavit sworn in the chambers of a legal practitioner appearing for a party in any proceedings or before a clerk in his chambers is inadmissible in evidence. This includes a witness written deposition on oath.
This is so because a deponent?s legal practitioner is a person interested in the proceedings and therefore disqualified from Notarizing for his client. Though the legal practitioner in whose chambers the depositions were sworn is or may be a Notary public, being legal practitioner representing the Respondent in the suit, is precluded from notarizing any document for the Respondent for use in the case. Additionally oath taking goes beyond mere signing of the contents of the document before the person authorized to administer the oath.
It includes most importantly, compliance with Section 5 (1) (a) &(b) of the Oaths Act which requires the person taking the oath if a Muslim, to place both hands on a copy of the Holy Qur?an, if a Christian, to hold in his right hand a copy of the Holy Bible or of the New Testament and if a Jew, to hold in his uplifted hand a copy of the Old Testament and to then repeat after the person administering the oath, the prescribed words. It is after this has taken place, that the commissioner for Oaths verifies the contents and then confirms that same was signed in his presence by endorsing his own signature to that effect. ?
Therefore for any such deposition to be competent for use, it must be duly signed and sworn before the appropriate officer in accordance with the Evidence Act and the Oaths Act. It is the due swearing that gives life to the declaration on oath. Without the due swearing of the deposition in the presence of and by the proper officer authorized to take the oath, the statement on oath is a mere piece of paper and not a deposition or affidavit. See UDUSEGBE V SPDC (NIG) LTD (2008) 9 NWLR (Pt. 1093) 593, MARAYA PLASTICS LTD V INLAND BANK NIG. PLC (2002) 7 NWLR (Pt. 765) 109.
The conditions necessary to make an affidavit competent were stated in the case of DR MUHAMMAD IBRAHIM ONUJABE & ORS V FATIMA IDRIS (2011) LPELR – 4059 (CA) as follows:
?The Oaths act is a general statute that deals with oaths. The provision under Evidence Act on affidavit places a condition precedent which ought to be fulfilled to render the affidavit competent. One fundamental condition is the swearing on oath before the commissioner for oath. It is on this vein that the provision under the oaths Act becomes relevant.
That is why a defect as regards the swearing on oath is not a mere irregularity as to form but defect as to substance.”
Therefore, the distinction drawn between the effect of a defect in swearing an affidavit and the effect of a defect in signing a written deposition of a witness on the ground that in the case of the latter the subsequent oral oath in Court before adoption of the deposition cures any defect in the original oath as decided in the cases of UDUMA V ARUNSI (supra) and FABIAN OKPA V CHIEF ALEX IREK & ANOR (2012) LPELR 8033 (CA) and several other cases cited by the learned respondent?s counsel, no longer exists in the light of the later decisions of this same Court and of course, the Supreme Court decision in the case of MUHAMMADU BUHARI V INEC (Supra). This explains why in the latter case of EROKWU VS EROKWU (2016) LPELR 41515 (CA), where as in this appeal the respondent?s counsel argued, strenuously, that it is not necessary for a deponent to sign the deposition before the oath taker and that all that was necessary is that it was sworn before an authorized oath taker, the Court considered that submission as totally misguided. It gave its reasons as:<br< p=””
The concept of oath taking involves:
i. The Deponent making a statement in writing,
ii. The document is taken to a commissioner for oath or a person duly authorized to take the oaths,
iii. The Commissioner for oath requires the deponent to swear on a holy book particular to the deponent’s faith or a mere declaration for a deponent whose faith forbids him to swear,
iv. The commissioner for oath then makes the deponent to verify what has been stated,
v. He deponent afterwards signs in the presence of the Commissioner for oath who witnesses that the affidavit was sworn to in his presence.
This explains the phrase “Before Me” usually signed by the Commissioner for oaths.?
In the light of all these, I consider any distinction drawn or attempted to be drawn between the effect of a defect in signing a deposition and swearing an affidavit a mere red herring. It is little wonder therefore that the Court per OGUNWUNMIJU JCA held thus:
I had hitherto been of the view that where the witness statement of the Respondent at the trial Court was not sworn to before a person duly authorized to take oaths in contravention of
Section 112 of the Evidence Act 2011, the subsequent adoption of the written deposition after he had been sworn in open Court to give oral evidence regularizes the deposition. I was of the view that the witnesses statements of which are adopted during oral evidence on oath are different from mere affidavit evidence which stand on their own without any oral backup and which are subjected to cross examination. That it is such affidavit evidence which does not meet the requirement of Section 112 of the Evidence Act that are intrinsically inadmissible.
However, that previous way of thinking must perforce give way to the opinion of the Supreme Court in BUHARI VS INEC (2008) 12 SCNJ 1 AT 91. In that case, the Supreme Court agreed with the Court of appeal decision to strike out witnesses deposition sworn before a notary Public who was also counsel in the chambers of the senior counsel to the appellant which was in violation of Section 19 of the Notaries Public Act and 83 of the Evidence Act now (section 112).
In the said case of BUHARI V INEC (Supra), Tobi JSC who read the lead judgment commenting on Section 83 of the then Evidence Act now Section 112 had this to say:
?The provision is clear and unambiguous and appears to me that the word “shall” is clearly mandatory. These depositions were made in favour of the petitioner, General Muhammadu Buhari. Mr. Ikeonu is no doubt a Notary Public, but he is also a legal practitioner representing General Muhammadu Buhari in this petition. He is, therefore, precluded from taking depositions which are in fact, affidavit evidence in this petition. Also Section 19 of the Notaries Public Act, Cap. 331, LFN 1996 provides as follows: ‘No Notary shall exercise any of his powers as a notary in any proceedings or matter in which he is interested.’ The combined effect of these two provisions is that Val. I Ikeonu being a petitioner’s counsel lacked the competence to notarise any document used in the petition.” (Pp. 88-89, paras. D-B)
On the interest of the Notary Public meant in Section 19 of the Act the great jurist stated:
“The expression, “interest” in Section 19 is professional interest. The professional interest in Section 19, in my view, is involvement in the case in the sense of participation as counsel qua legal practitioner. And so, Section 19 of the Notaries Public Act vindicates Section 83 of the Evidence Act.”
In a similar and clear tone on the effect of violation of the provisions of Sections 112, 117 (4) of the Evidence Act and 19 of the Notaries Public Act, MUKHTAR JSC as he then was held;
?It is settled law that an affidavit that is bereft of the requirements of the law, it is expected to meet, (most especially not a mere defect in the format that can be admitted with the leave of Court) will not be accommodated, (because, as it is in this case the error is fundamental) but must be rejected, and if already admitted must be expunged.?
Therefore, as it was in the Buhari? s case, so must it be in this appeal where the PW1 and PW2 by their own showing, rebutted the presumption in favour of their written statements on oath and rendered same fundamentally defective the depositions having been signed in the chambers of the respondent?s counsel.
The end result, sadly, is that the respondent has to swallow the bitter pill, for this Court is bound to do what the apex Court sanctioned with respect to the written statements of those witnesses taken by Mr. Ikeonu a counsel
in the chambers of the senior counsel representing General Muhammadu Buhari.
The learned respondent?s counsel has strenuously argued that in view of the overwhelming admission made by the Appellant of the claim against him, appellant should not be allowed to seek escape route through technicality and that the need for substantial justice should always override the urge for technicality. He cited the decision of this Court in the case of WAMINI-EMI VS. IGALI & ORS (2008) 11 NWLR (Pt. 1097) 123 per Saulawa, JCA where it was held as follows:
“I have deemed it expedient to reiterate, for the avoidance of doubt, that, the hey days of the law so called technical justice are now over. This is so, because the trend in the Nigeria Court has shifted. Most cherishingly, undue reliance on technicalities to do substantial justice evenhandedly to the parties. See Egolum vs. Obasanjo & Ors (1999) 7 NWLR (PT. 61) 355 AT 423 per ACHIKE, JSC (of blessed memory).”
Unarguably, the hey days of technicalities are gone. However that dictum or should I say, that slogan has to be put and understood in its right perspective. Where a matter has been settled
by the apex Court, on what ground will this Court or any subordinate Court stand to decide otherwise? This Court possesses not the power to depart from or ignore the position taken by the apex Court on the same or similar facts. Doing so will amount to gross judicial impertinence which this Court should not and cannot dare.
The learned respondent?s counsel has not made a case that the decision in the case of BUHARI V INEC (supra) has been overruled by a later decision of the same Court. He has not and cannot successfully make a case why I should depart from or disobey the decision in BUHARI V INEC and were such a case to be made by the learned counsel in the absence of any decision of the same apex Court to the contrary, I will, in obedience to the said decision in BUHARI?S case, gladly disobey the learned counsel. In the circumstance, I am bound by the decision in the BUHARI V INEC?S case (supra) and to act as was therein sanctioned. Accordingly, the written statements of PW1 and PW2 along with the exhibits tendered through them are hereby expunged from the record.
On the 2nd arm that Exhibits D & D1 were admitted in contravention of Section 83 (3) of the Evidence Act, the Respondent?s learned counsel does not dispute the fact that the two documents were made after the institution of the action. His position is that the exhibits were only tendered to fortify the Respondent?s case otherwise, with or without the two exhibits, the fact which they seek to prove, the payment of the sum of N1.5M having been admitted by the Appellant, requires no further proof.
Now, Section 83 (3) prohibits the admissibility of any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.
The Respondent by his evidence in cross-examination admitted that it was when he filed the case that he wrote Exhibit D. There is no dispute that the institution of the suit predates the making of Exhibits D & D1. The purpose of making Exhibits D & D1, as per his reliefs, is for the recovery of the claimed monies inclusive of the amount stated in Exhibits D & D1. These exhibits, he admitted were not signed by the Appellant.
The reason for making Exhibits D & D1 cannot be anything but to enhance his claim against the Appellant. Surely, the Respondent is a person interested in the outcome of the action. From these admitted facts, there can be no difficulty in arriving at the conclusion that Exhibits D & D1 clearly were made when proceedings had begun involving the dispute between the Appellant and the Respondent respecting the Respondent?s claim in the pending suit. They were made for the purpose of proving the fact in issue.
Clearly, Exhibits D & D1 offend Section 83 (3) of the Evidence Act and are inadmissible in evidence.
The irresistible, conclusion therefore is that the issue is resolved in favour of the Appellant.
I now proceed to consider the 2nd issue which pertains essentially, to the question of evaluation of evidence and the propriety of the trial judge entering judgment for the Respondent.
On this issue, learned counsel for the Appellant referred to Sections 131(1) and 134 of the Evidence Act and a few cases to restate the trite position of law that the burden of proof rests squarely on the Respondent. That if the written statements on oath of PW1 & PW2 as well as
the exhibits are expunged, then the Respondent?s statement of claim would be rendered incompetent by virtue of Order 3 Rule 2 (1) of the SOKOTO STATE HIGH COURT RULES, 2015 which requires the writ to be accompanied by depositions of witnesses and the Court would also lack jurisdiction to act on the pieces of evidence drawn from the evidence of PW1 & PW2, citing in support the case of GUNDIRI V NYAKO (2012) NSCQLR (Pt 1) 26, which was reinstated in the case of OKOBIEMEN V URN JALINGO BRANCH, TARABA STATE, LPELR (2017) 43633 (CA) from which he quoted extensively to drive home his submission that accompanying the statement of claim with witnesses deposition is a condition precedent without which the witness cannot testify nor can the Court be vested with jurisdiction to act on the evidence, as the defect in the swearing of the depositions is a fundamental and irredeemable one.
Learned counsel then urged upon us to so hold and to strike out the statement of claim for being incompetent or to consider the pleadings as unsupported by evidence.
However, in the very unlikely event according to him, that the Court disagrees with his submission, the
judgment of the lower Court will still not stand as same is a mere recital and restatement of the evidence of the witnesses and restatement of the counsel?s submission without any evaluation and assessment of evidence carried out by the judge. That the learned trial judge did not evaluate and assess the evidence of PW1 especially that of PW2 in cross – examination wherein it was admitted that the Appellant was one of those who assisted him in selling the goods vis–vis that of DW1 in denial of the Respondent?s claim, before coming to the conclusion that the goods were bought on credit and the appellant indebted to the Respondent. Such a finding, he argued, is perverse which this Court is obliged to interfere with.
In response, it was submitted for the Respondent that the Appellant?s argument that the statement of claim is incompetent for not being accompanied with written deposition does not flow from grounds 1, 2 & 3 of the grounds of appeal, and same should be struck out, citing the cases ofHUSSEIN V MUHAMMAD (2018) 6 NWLR (Pt. 1445) 100, at 111 and NSIRIM V AMADI (2016) 5 NWLR (Pt 1504) 42 SC.
In the unlikely event that this Court declines to agree with him on this submission, learned counsel restated his argument in issue number 1 that the written depositions were regular and in accordance with the law. Learned counsel submitted that the Respondent discharged the onus placed on him and proved his case by credible evidence at the lower Court. That his evidence as PW1 and that of his store keeper as PW2, was not shaken in cross – examination; that the 6 exhibits he tendered chronicled the payments made by the Appellant in offsetting this indebtedness, which payment the Appellant did not deny making except that it was in furtherance of offsetting his indebtedness.
He referred to Appellant?s evidence in cross – examination that he collected the goods from the Respondent and is responsible to collect the money from the people and in turn for him to pay to the Respondent, as an admission that Appellant was not used as a front by the Respondent. Learned counsel urged us to discountenance the appellant?s submission based on technicalities as an escape route. He referred us to the case of NASIRU IBRAHIM V ABDULKADIR YAHAYA (2016) LPELR -14810 at p. 60 –
61 paras C – C and urged us to hold that the Appellant who has the privity of contract with those people must pay the outstanding balance.
In his reply brief, the appellant?s learned counsel refuted the Respondent?s contention that the argument on the statement of claim being incompetent did not arise from any ground of appeal as being misconceived considering the fact that the Appellant?s complaints of lack of proper evaluation in grounds 2 & 3 cannot be done without reference to the pleadings and the written deposition of witnesses nor can credibility be apportioned to evidence without considering the testimonies of witnesses. In addition, ground 4 which is the omnibus ground implies not only that the judgment cannot be supported by the weight of evidence but also implies that there was no evidence which if accepted would support the findings of the trial judge, thus, the argument flows from the grounds of appeal.
On the appellant?s submission that respondent admitted the claim, it was submitted that no such admission was made and that the totality of the pleadings must be considered.
It is apt to first address the call made on behalf of the respondent for the striking out of the appellant?s submission that the statement of claim is incompetent on the ground that such argument does not arise from any ground of appeal.
I must observe, straight away, that this argument is not well rested on the strong pillars of the facts on record bearing in mind that in addition to grounds 1, 2 and 3 which essentially complain of lack of proper evaluation of evidence, ground 4 which is the omnibus ground implies among others, that there is no evidence which if accepted would support the findings of the trial Judge.
In carrying out its sacrosanct function of evaluation of evidence, the trial judge begins by receiving into its record all relevant evidence on the case or the fact in issue, and this is perception of evidence. He then proceeds to weigh the evidence in the light of the surrounding circumstances; this is evaluation of evidence.
The findings of fact by a trial Court involves both perception and evaluation. See ONI vs. JOHNSON (2015) LPELR (24545) 1 at 35-38 or (2015) 4 C.A. R273 at 297-299 OLUFOSOYE v. OLORUNFEMI (1989) 1 SC (PT 1) 29 or
(1989) LPELR (2615) 1 at 9, GUARDIAN NEWSPAPER LTD v. AJEH (2011) 10 NWLR (PT. 1255) 574 at 592 and WACHUKWU v. OWUNWANNE (2011) LPELR (3466) 1.
In the receipt of relevant evidence, pleadings play an important role in determining what constitutes relevant evidence, as any evidence on unpleaded fact goes to no issue. Such evidence for the purpose of evaluation of relevant evidence will have no space on the scale of probative value. It follows as rightly submitted by the appellant?s counsel that evaluation of evidence, the lack of which the appellant complains against, cannot be done without considering the pleadings and the evidence. By Order 3 Rule 2(1) (c) of the Sokoto State High Court Civil Procedure Rules 2015 written depositions of witnesses must form part of the pleadings without which the pleadings will be incomplete and incompetent.
I therefore find favour in the appellant? submission that his argument on the incompetence of the statement of claim, is covered by the grounds of appeal.
Furthermore, the respondent?s argument is mellowed down greatly by his adoption of the issues formulated by the appellant?s counsel and
without raising any preliminary objection or arguing the point as a preliminary objection in the respondent?s brief of argument.
Now, to this second issue proper, the learned appellant?s counsel has asked us, following his call under issue NO. 1 to expunge the evidence of PWI and PW2 and the Exhibits tendered through them, to now strike out the statement of claim and to hold that the Court ought not to have relied on their evidence to find for the respondent.
This argument will be better appreciated by having a recourse to the relevant provisions.
Order 3 Rule 2(1) (c) provides:
“All Proceedings commenced by writ of summons shall be accompanied by: (c) Depositions of witnesses.?
By the reproduced provisions of Order 3 Rule 2(1) (c), a witness deposition must accompany the statement of claim at the time of filing. This, unarguably, is a basic requirement and it is a condition precedent without which the statement of claim will be incomplete and defective, nay, incompetent. Undeniably, this condition was fulfilled as at the filing of the statement of claim. The statement of claim as required by paragraph (c) of
Order 3 Rule 2 of the Rules of the lower Court, was accompanied with the Respondent?s written deposition as well as that of his store keeper, Usman Dangande at pages 7 – 9 and 10 – 11 of the record.
All that is required at the point of filing the statement of claim is that it is accompanied with the necessary processes including the deposition of witnesses. That was done in the present case. The question of the competence of these processes for use as evidence, which only comes into play at the next stage, is quite different from the requirement of attaching the processes. Whether the accompanying processes will be admissible in proof of the case is a different matter. With particular reference to the case at hand, whether the accompanying written deposition of the witnesses meet the requirement of the law for adoption as evidence in proof of the claim is entirely a different issue. This is the big difference which the learned appellant?s counsel has failed to realize or to draw. Therefore, for the purpose of meeting the requirement in paragraph (c) of Order 3 Rule 2 (1), the Respondent?s statement of claim as at the time of its
filing is competent. I therefore discountenance the appellant?s submission that the statement of claim is incompetent and hold that same was competently filed.
On the competence of the written deposition of witnesses for adoption as evidence, as earlier stated, the witness deposition must be duly sworn before the appropriate person authorized to take oath in accordance with the law. Any defect in the swearing of the deposition, as hitherto held in this judgment, is intrinsic to the competence of the deposition and renders it incompetent. See BUHARI V INEC (Supra). This is why in my resolution of the first issue, the written statements on oath (deposition) of both PW1 & PW2 which by their own showing were sworn in the chambers of their legal practitioner and found to have violated the provisions of Sections 112, 117 (4) of the Evidence Act and Section 19 of the Notaries Public Act, were, on the authority ofBUHARI V INEC (Supra), expunged from the record together with the exhibits tendered through the two witnesses.
Consequent upon the foregoing, the question which the appellant?s submission throws up for consideration is the
jurisdiction or the propriety of the trial Court in relying and acting on the said evidence of PW1 & Pw2 whose deposition were fundamentally defective.
With the expunction of the written depositions of both PW1 & PW2 who were the Respondent?s only witnesses, the appellant?s question has to be answered in the negative, that is to say that the Court was without jurisdiction to rely on the evidence of PW1 & PW2. Put differently and clearly, by virtue of Order 33 Rule 1(1) & (2) of the same Rules, the only mode of adducing evidence and proving any fact, except as otherwise specifically provided, is by written deposition and oral examination of witnesses in Court.
A witness shall only testify by adoption of his earlier written deposition which must be duly sworn in accordance with the Evidence Act. It is upon such duly sworn and adopted deposition that he shall be led in oral evidence in chief, be cross – examined by the adverse party and re-examined by the party calling him if necessary. His evidence in chief shall be limited only to confirming his written deposition and tendering in evidence all documents or exhibits
referred to in the deposition. Any evidence outside his deposition shall not be allowed. In other words, the only evidence the Court is entitled to receive into its record is the evidence contained in the duly sworn written depositions front loaded along with the pleadings, (be it the statement of claim or the statement of defence and) which deposition becomes evidence only upon adoption and subjugation to cross-examination. A written deposition that is not adopted or cannot legally be adopted is deemed abandoned and the deponent incapacitated from testifying.
It follows that any evidence sourced from a fundamentally defective deposition, as in the case at hand, is equally fundamentally inadmissible and cannot be relied upon in proof of any fact. Such evidence goes to no issue because as the legal maxim goes ?ex nihilio nihil fit? from nothing comes nothing, the evidence cannot be placed on nothing. As expressed in the very famous case of UAC V MACFOY (1962) AC 152, something cannot be placed on nothing and be expected to stand. It will collapse and crumble. So will any evidence, oral or documentary derived from or through PW1
& PW2 in this appeal, collapse and crumble having no base to rest upon. See GUNDIRI V NYAKO (Supra) OKOBIEMEN V URN (JALINGO BRANCH, TARABA STATE) (Supra).
What remains to be considered is whether the Respondent?s claim can otherwise be sustained outside the evidence of PW1 & PW2. The Respondent?s position is that there is in the appellant?s pleadings an admission that the appellant collected the 120 belts of wrappers from the Respondent and that some payments have been made leaving a balance of N7, 700.00 outstanding.
It seems clear from paragraphs 6, 7 and 8 of the appellant?s statement of defence that issues were not joined on the facts that the Appellant collected the 120 belts of wrappers from the Respondent and that some payments have been made. These are admitted facts.
It is now a settled position of law with statutory backing and a legion of decided authorities that what is admitted needs no further proof. By Section 123 of the Evidence Act, no fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, ?
they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings, provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.
By these provisions, generally in civil proceedings, unless a Court deems it fit as provided for in the proviso to call for further evidence, what is admitted requires no further proof other than by such admission, as an admitted fact in pleadings requires no further proof, in civil proceedings.
Where issues are not joined, proof is not required. This trite position of law is what was restated in the case of AKIBU v. ODUNTAN (1992) 2 NWLR (222) 210 at 226-7
“thus: – Facts admitted need not be proved as proof presupposes disputed facts. Consequently where facts are not in dispute, the parties have not Joined issues which make proof unnecessary.”
There are too many decided cases on this principle. See Akinlagun v. Oshoboja (2006) LPELR 348 @ p. 33; (2006) 12 NWLR (PT. 993) 60; (2006) 5 S.C. (PT11) 100] the Supreme Court per Ogbuagu J.S.C.
Alhaji Ndayako v. Alhaji Dantoro & 6 Ors (2004) 5 SCNJ 152 @ 172, (2004) 13 NWLR (PT. 889) 189, DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD. (1990) 3 NWLR (139) 392 at 405.
In the light of this, no further proof is required on the part of the Respondent to prove that the Appellant collected 120 belts of wrappers from the Respondent and that some payments have been made.
Now, the Respondent?s claim as endorsed at paragraphs 17 of the statement of claim is as follows:
Whereof, plaintiff claims against the Defendant the sum of N7,232,000.00 only being special damages arising from the sale of 120 Belts of Women Wrappers to the Defendant plus the cost of the action.
Special damages – 120 Belts of wax
Cost N13, 200, 000=00
Paid N5, 968, 000=00
Balance N7, 232, 000=00.
The paramount question that arises is whether a claim for special damages such as the Respondent?s claim in the instant appeal, will succeed on the defendant?s part admission of the claim.
This was the question answered by the Supreme Court in the case of NNPC V CLIFCO NIG. LTD (2011) 4 MJSC 142 at 174 as follows:<br< p=””
“A claim for special damages will not succeed simply because there is admission of claim, special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specifically and proved strictly. See Incar v. Benson (1975) 3 SC 117; Odulaja V. Haddad (1973) 11 SC 357.”
Stressing further on the need to strictly prove special damages, the same Court in the case of NEKA BBB MANUFACTURING CO. LTD V AFRICAN CONTINENTAL BANK LTD (2004) 1 SC (Pt 1) 32 held:
?Where the claimant specifically alleges that he suffered special damages, he must perforce prove it. The method of proof is to lay before the Court concrete evidence demonstrating in no uncertain terms easily cognizable so that the opposing party and the Court will see and appreciate the nature of special damages suffered and being claimed.”
The trite position of the law as restated in these decisions of the apex Court is that a claim for special damages being exceptional and specific in nature, can succeed only upon concrete proof and not upon admission, either implied or express.
Simply put because special damages are exceptional and specific in nature, they will not succeed and will not be granted as a matter of course upon admission, express or otherwise, even where it is specifically pleaded as required by the law.
In the instant case with the expunction of the evidence of PW1 & PW2 along with all the exhibits tendered through them and the appellant?s denial of the claim, the Respondent?s claim for special damages cannot by any stretch of imagination be said to have been proved. The result in that the Respondents claim for special damages cannot succeed.
Perhaps, the situation might have been different even with the expunction of the evidence of PW1 and PW2, if the respondent?s claim had not been for special damages. However perforce of law, entitlement to special damages must not only be specifically pleaded, it must also be strictly proved. Admission either on the basis of default of pleadings or on pleadings without evidence to show the claimant?s entitlement is not enough. The success of a claim in special damages depends on the strict prove of
what is claimed. Where the claimant fails to prove his claim of special damages, he cannot rely on the defendant?s admission on pleadings and his case is bound to fail. In the circumstance, this issue as the first, must also be resolved in favour of the appellant. Resultantly, I find the appeal meritorious. It is accordingly allowed. Parties shall bear their cost.
HUSSEIN MUKHTAR, J.C.A.: I have read in advance the judgment just rendered by my Learned Brother, Amina Audi Wambai, JCA. I am in total agreement that the appeal has merit and is bound to succeed.
Suffice it to add that parties must succeed or fail on the strength of their case as presented before the trial Court. The Respondent at the Court below claimed for special damages in respect of balance of ile materials given to the Appellant, which the latter gave out to some customers on credit. However, the claim for special damages makes it subject to fulfilment of conditions for award of special damages. That was tantamount to mere chasing shadows.
?It is a well-established principle of law that special damages claimed by a party must be strictly proved.
See Dumez v. Ogboli (1972) 3 SC 196 and Agunwa v. Onukwue (1962) 1 All NLR 537.
?Whenever special damages are claimed, the party so claiming has an uphill task of a strict proof. In effect the rule requires anyone asking for special damages to prove strictly that he suffered such special damages as he claimed. Thus, the claimant should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he is indeed entitled to an award under that head. The general law of evidence as to proof by preponderance in civil cases operates in discharging such burden of proof. The Respondent failed to prove special damages.
Though the Respondent’s case was apparently initiated by due process of the law as required by the Rules of Court, the failure to strictly prove special damages by qualitative and credible evidence renders the claim for special damages liable to be dismissed. Since there is no other claim, the Court below was left with nothing else to consider. The Court could neither make out a case for any of the parties nor could it grant any unclaimed relief.
For foregoing appraisal and the more detailed reasons in the leading judgment, the appeal is meritorious and is hereby allowed. I subscribe to the consequential orders made in the judgment.
FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment of my learned Brother AMINA AUDI WAMBAI, JCA just delivered and I am in agreement with his reasoning and conclusions in allowing the Appeal as meritorious. I abide by all consequential orders made thereto.
Ibrahim Abdullahi Esq. (FRHD)For Appellant(s)
A. Y. Abubakar Esq.For Respondent(s)
Ibrahim Abdullahi Esq. (FRHD)For Appellant
A. Y. Abubakar Esq.For Respondent