CHIEF JAMES ONYEWUKE v. MODU SULE (2011)

CHIEF JAMES ONYEWUKE v. MODU SULE

(2011)LCN/4709(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 13th day of July, 2011

CA/K/189/2003

RATIO

PLEADINGS: REASON WHY ALL MATERIAL FACTS TO BE CANVASSED AT THE TRIAL ARE TO BE PLEADED AND PROVED

Pleadings constitute notice of the case a party intends to canvass at the trial. For that reason all material facts to be canvassed at the trial are to be pleaded and proved. See Obmiami Bricks and stones Nig. Ltd vs ACB (1992) 3 SCNJ 1 at 35; Uwegba vs Attorney-General of Bendel State (19S6) 1 NWLR (Pt.16) 303 at 317. PER JOSEPH TINE TUR, J.C.A.

DOCUMENT: WHAT A “DOCUMENT” ENTAILS

A “document” “includes books, maps, plans, drawings, photographs and also includes any matters expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter.” see section 2(1) of the Evidence Act, 1990. A document is a fact” which term “includes (a) any thing, state of things or relation of things, capable of being perceived by the senses; any mental condition of which any person is conscious.” See again section 2(1) of the Evidence Act, 1990. PER JOSEPH TINE TUR, J.C.A.

STATEMENT OF CLAIM: WHETHER FOR A PARTY TO MAKE USE OF THE CONTENT OF A DOCUMENT AT THE HEARING OF HIS CASE HE MUST HAVE SET OUT CLEARLY, ITS MATERIAL FACT IN HIS STATEMENT OF CLAIM

If the Respondent intended to make use of the contents of Exhibit “1” at the hearing of his case that material fact must be set out clearly in the Statement of Claim. This is because the oral evidence given at the trial constitutes the “facts in issue” which term “include any fact from which either by itself or in connection with other facts the existence, non-existence, of asserted or denied in any follows.” See Section 2(1) any right, liability or disability suit or proceedings necessarily of the Evidence Act, 1990. The pleadings ought to at least give notice that document exist to support the pleaded facts. Exhibit “1” will then be tendered at the trial to prove the transaction that occurred in Maiduguri leading to its making. The Courts have held time and time again that facts have to be pleaded to support documentary evidence. See Matori vs Bauchi (2004) All FWLR (Pt.197) 1010; Andony vs Ayi (2004) All FWLR (Pt.227) 444 at 483; Oyediran vs Alebiosu II (1992)5 NWLR (Pt.249) 555. PER JOSEPH TINE TUR, J.C.A.

PLEADINGS: WHETHER A PARTY WHO PLEADED FACTS STILL NEEDS TO RECITE THE TIME HALLOWED PHRASE THAT “THE DOCUMENTS SHALL BE RELIED UPON AT THE TRIAL”, FOR IT TO BE RENDERED ADMISSIBLE

JUSTICES

THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

OBANDE OGUINYA Justice of The Court of Appeal of Nigeria

Between

CHIEF JAMES ONYEWUKE Appellant(s)

AND

MODU SULE Respondent(s)

JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of P. A. Mahmoud J., of the Kano State High Court, delivered on 4th day of April, 2002. The Notice of Appeal was filed on 05-04-2002 with four grounds challenging the judgment of the learned trial Judge delivered in favour of the plaintiff/Respondent in the sum of One hundred and twenty-five thousand two hundred and ten Naira as the unpaid balance of N145,210 being money for the supply of 719 bottles of CSM Vaccines at the request of the appellant/defendant on 19th February, 1995. The learned trial Judge awarded 10% interest at the Court rate from the date of judgment until the final liquidation of the judgment.
ISSUES FOR DETERMINATION
The appellant sought and was granted leave to file brief of argument on 31-10-2006 setting forth the following issues for determination:
“1. Whether Exhibit I relied upon by the Court in the judgment was pleaded or not in the plaintiff’s statement of claim and whether same form part of the evidence on what transpired in Maiduguri, expunged by the lower court in the lower court’s judgment.
2. Whether the lower Court was right to have made comments on Exhibits 3 and 4 when the Court was not sitting on Appeal.
3. Whether the trial Court was right in resorting to proviso to section 132 Evidence Act when fraud, illegality or mistakes was not pleaded or canvassed at the trial.
4. Whether this judgment delivered more than 3 months after the final address breaches Section 294(1) 1999 Nigerian Constitution.”
The learned Counsel to the Respondent identified the following as issues for determination:
“(i) Whether, having pleaded facts relating to Exhibit 1 the lower Court was right to have relied on Exhibit 1 in coming to the conclusion it reached notwithstanding that fraud, illegality or mistakes were not specifically pleaded? (GROUNDS 1 & 3). 5.
(ii) Whether, it was proper for the lower Court to have assessed and placed reliance on Exhibits 3 and 4 while considering the respondent’s case at the trial Court before it came to the conclusion it reached? (GROUND 2).
(iii)Whether, notwithstanding that judgment was delivered on 6th March, 2002, that is 3 months and 11 days after the conclusion of addresses by the Counsel, the Appellant suffered any miscarriage of justice (GROUND 4).”
FACTS IN DISPUTE
The Appellant and the Respondent sell drugs in Sabon Gari Market in Kano. The Appellant supplies drugs to hospitals. The Respondent’s case is that sometime in March, 1995 he sold on credit 719 (Seven hundred and nineteen bottles of CSM Vaccines at a unit price of N270.00 (two hundred and seventy Naira) and another four (4) bottles at the total cost of One thousand eighty Naira (N1,080.00) to the appellant at his request with a promise to pay within a week’s time. The appellant made part payment of N50,000.00 (fifty thousand Naira) but failed or refused to pay the balance despite repeated demands. This resulted into the prosecution and conviction of the appellant for criminal breach of trust by a Senior Magistrate Court in Kano. The Appellant was sentenced to a term of two years or one thousand Naira (N1,000.00) fine in default of payment. At the senior Magistrate court the appellant made a N20,000.00 (twenty thousand Naira) payment. The outstanding balance is N125,210.00 (one hundred and twenty-five thousand two hundred and ten Naira) hence the suit before the High Court of Justice in Kano, Kano State.
At the trial the Appellant denied each and every story told by the Respondent. The Appellant said that they do supply drugs to buyers at Maiduguri. They went to Maiduguri for the purpose. The Respondent’s suppliers paid him N50,000.00 for what he had supplied. Neither would the Appellant admit he was convicted for criminal breach of trust by the Senior Magistrate Court in Kano nor did he pay the Respondent N20,000.00 (twenty thousand Naira) on arraignment before that Court. The Appellant therefore denied there was any contract of sale of drugs between him and the Respondent. There was no objection from the defense Counsel when Exhibit “1” and “3” were tendered through the Respondent who testified as PW1. Though objection was taken to Exhibit “2” it was admitted by the learned trial Judge. Exhibit “4” was tendered by the Appellant at the trial Court when he testified as Dw1.
PRELIMINARY OBJECTION
Learned Counsel to the Respondent filed a Notice of Preliminary Objection on 26-09-2007 that there is no ground of appeal filed to support issue No.4 in the Appellant’s Brief of Argument- Ground 4 of the Notice of Appeal reads as follows:
“The trial Judge was wrong in law to have delivered the judgment more than 3 moths after the conclusion of evidences and addresses by the parties.”
Counsel cited a plethora of decisions of Superior Courts in support of his argument. I do not however consider it necessary to them since I am satisfied that the learned Counsel to the Appellant raised the issue for determination in Ground “IV” of the Notice of Appeal but delved into extraneous issues not supported by the said ground of appeal. I shall therefore refrain from commenting on the extraneous issues raised in relation to Ground IV of the appeal. There is only partial substance in this preliminary objection. I shall restrict the consideration of Ground IV to the issues covered by Ground IV of the appeal.
APPELLANT’S ISSUE ONE:
Learned Counsel submitted that the learned trial Judge erred to have relied on Exhibit “I” to enter judgment for the appellant when same was never pleaded in the Statement of Claim, citing Udengwu vs Uzuegbu (2003) FWLR (Pt.179) 1173 at 1177; Mohammed vs Klargester Nig. Ltd (2002) FWLR (Pt.127) 1078 at 1080. Counsel contended that material facts were not pleaded to render Exhibit “1” admissible in evidence. Counsel referred to the Statement of Claim, urging this Court to expunge same from the records, citing Okobia vs Ajanya (1988) 6 NWLR (Pt.554) 446 at 460.
Learned Counsel to the Respondent replied that having pleaded facts relating to Exhibit “1”, the lower Court was right to have relied on it in coming to the conclusion that the Appellant was liable notwithstanding that fraud, illegality or mistakes were not specifically pleaded. That only material facts are to be pleaded and not the evidence by which such material facts are to be established, citing order 25 rule 4(1) of the Kano State High Court (Civil Procedure) Rules, 1988; Pioneer Milting Co. Ltd. Vs Nansing (2003) FWLR (Pt.151) 1820 at 1823 and Thanni vs Saibu (1977) 2 SC 89. Learned Counsel referred to paragraph 6 of the Statement of Claim as showing that the Respondent pleaded material facts to warrant the tendering of Exhibit “1” in evidence’ Counsel cited Adewole vs Adesanoye (No.2) (2004) All FWLR (Pt.231) 1397 at 1401; Allied Bank Nig. Ltd vs Akubueze (1997) 6 NWLR (Pt.509) 3741; Otuo vs Nteogwuile (1996) 6 NWLR; Ipinlaiye vs Olukolun (1996) 6 NWLR (Pt.453) 148. Counsel argued that Exhibit “I” being a document need not to be pleaded since it is evidence in support of pleaded facts. It was further contended that while the Appellant signed Exhibit “I” as “seller” the Respondent signed as “customer” That the Respondent’s claim had nothing to do with fraud, illegality and mistake. Lastly, the Respondent explained in his evidence how Exhibit “I” came into being. Learned Counsel urged that issue one should be discountenanced by this Court.
REASONS
Pleadings constitute notice of the case a party intends to canvass at the trial. For that reason all material facts to be canvassed at the trial are to be pleaded and proved. See Obmiami Bricks and stones Nig. Ltd vs ACB (1992) 3 SCNJ 1 at 35; Uwegba vs Attorney-General of Bendel State (19S6) 1 NWLR (Pt.16) 303 at 317. Under pleadings a reference to a document brings into the pleading the whole contents of that document. Abel Bros vs Niger Insurance (1974) 4 UILR 317 at 327; Lawal vs GB Ollivant (1972) 3 SC 124 at 130 but not another. see Thanni vs Lemonu (1977) 2 SC 89 at 115-116; Consolidated Breweries Plc vs. Aisowieren (2002) FWLR (Pt.116) 955. Exhibit “1” is a document. A “document” “includes books, maps, plans, drawings, photographs and also includes any matters expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter.” see section 2(1) of the Evidence Act, 1990. A document is a fact” which term “includes (a) any thing, state of things or relation of things, capable of being perceived by the senses; any mental condition of which any person is conscious.” See again section 2(1) of the Evidence Act, 1990.

If the Respondent intended to make use of the contents of Exhibit “1” at the hearing of his case that material fact must be set out clearly in the Statement of Claim. This is because the oral evidence given at the trial constitutes the “facts in issue” which term “include any fact from which either by itself or in connection with other facts the existence, non-existence, of asserted or denied in any follows.” See Section 2(1) any right, liability or disability suit or proceedings necessarily of the Evidence Act, 1990.
The pleadings ought to at least give notice that document exist to support the pleaded facts. Exhibit “1” will then be tendered at the trial to prove the transaction that occurred in Maiduguri leading to its making. The Courts have held time and time again that facts have to be pleaded to support documentary evidence. See Matori vs Bauchi (2004) All FWLR (Pt.197) 1010; Andony vs Ayi (2004) All FWLR (Pt.227) 444 at 483; Oyediran vs Alebiosu II (1992)5 NWLR (Pt.249) 555.

A party who pleaded facts need not recite the time hallowed phrase that “the documents shall he relied upon at the trial” to render them admissible. See Orthopaedic Hospital Management Board vs B.B. Apugo & Sons Ltd (1995) 8 NWLR (Pt.416) 750 at 760; Monier Construction Co. Ltd vs Azubuike (1990) 3 NWLR (Pt.136) 74 and Agu vs Ikaribe (1991) 3 NWLR (Pt.180) 385. In Wayne (W.A) Ltd vs Ekwunife (1939) 12 SCNJ 99 Nnaemeka-Agu, JSC, held at page 110 lines 20-36 that:
“…Pleading has long ceased to be technical in term:
facts are only required to be stated in a summary and concise matter in order to reflect a party’s case.”
Order 25 rule 1 of the Kano State High Court (Civil Procedure) Rules, 1988 provides that:
“4(1) Every pleading shall contain and contain only a statement in summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to he Prove…”
Learned Counsel to the Respondent referred this Court to paragraph 6 of the Statement of Claim which reads as follows:
“6. That the plaintiff will aver at the hearing that the Defendant made a part payment of N50,000.00 (fifty thousand Naira). ”
The averments in paragraph 6 of the statement of claim do not contain a statement in summary form of the material facts in Maiduguri that led to the emergence of Exhibit “I”
To admit Exhibit “I” the respondent testified at the hearing as follows:
“By that time I did not go with my invoice so I told the defendant that since he has given me N50,000 I would write an agreement on a piece of paper for both of us to sign showing what he has given me and the balance. The defendant who went with his invoice wrote the agreement on his own invoice and both of us signed. The invoice showed what the defendant paid me and the balance, I made photocopies of this invoice and had the original at home. However, we had a fire incidence in our house sometime back which burnt the original. I can identify the copy because it bears the name of the defendant and the signature of both of us and the defendant’s handwriting with which I am familiar. I see this document. It is the one I am talking about.”
See page 11 lines 10-24 of the printed record.
One does not need a microscope or a telescope to see that what transpired at Maiduguri that culminated into the making and signing of an agreement were material facts that should have been pleaded as the foundation for reducing their oral discussion into a written document such as Exhibit “I”. These material facts having not been pleaded no foundation was laid for the admissibility of Exhibit “I”. No reference is made in the whole statement of claim as to how Exhibit “I” came into existence. In Adewole vs Adesanoye (No.2) (2004) All FWLR (Pt.231) 1397 cited by learned Counsel to the Respondent the Court of Appeal held at page 1401 that:
“Documentary evidence need not be specifically pleaded before it can be properly accepted in evidence. Once the facts leading to the identity of the documents were in place as a legal foundation, then the Court will readily consider the documents as admitted”
In Ekretsu vs Oyobebere & Ors (1992) 11-12 SCNJ (Pt.2) 189 the planting of plantain, banana trees, etc, were covered when the planting of rubber and other crops was pleaded. I have scrutinized the entire statement of claim, word by word. I am of the humble opinion that the learned trial Judge erred in law and in fact by holding that:
“In the first place what is borne out of evidence is the fact that Exh.1 merely represents the payment i.e. what has been paid and what is left of the agreed contract sum. In order words, it is clear from the evidence of the Plaintiff that Exh. I is not the terms and condition of the agreement between him and the Defendant. The parties clearly did not intend the document to be the final and complete statement of the whole of the transaction between them. It is also clear from the evidence before the Court that Exh.1 was not intended to have legal effect as o contract but rather only as a documentary memorandum of the transaction between the Plaintiff and Defendant- This
means Exh.1 did not spell out all the terms and conditions of the agreement between the parties. It was only meant to state the remaining balance of payment. The submission of learned Counsel to the Defendant to the effect that the Plaintiff cannot give oral evidence of the transaction between him and the Defendant therefore lacks merit. It is hereby discountenanced. From the combined effects of Section 132(1) (b) and (3) I find and I hold that this is a proper situation in which oral evidence can be given of the transaction between the Plaintiff and the Defendant. Such evidence is not in any way offensive of Section 132 of the Evidence Act. The evidence given by the Plaintiff in respect of the transaction between him and the Defendant is therefore properly given and admitted.”
See page 52 lines 21 to page 53 lines 1-13 of the printed record. If Exhibit “I” was not intended to have legal effect as a contract but rather as a documentary memorandum of the transaction between the Appellant and the Respondent according to the learned trial Judge, it follows that the learned trial Judge overstretched her judicial powers to make a case for the Respondent. But the learned trial Judge was however bound by the pleadings. See African Continental Seaways Ltd vs Nigeria Dredging Road & General Works Ltd (1977) 5 SC 235 at 250 and Temco Engineering & Co. Ltd vs S.B.N. Ltd (1995) 5 NWLR (Pt.397) 607. The effect is that the Court made use of an un-pleaded document (Exhibit “1”) to support un-pleaded facts. That is a grave error. See Ogunsina vs Matanmi (2001) 4 SC (Pt.1) 84 at 89-90; Otumbari vs Iwuala (2000) FWLR (Pt.17) 32. I resolve issue one in favour of the appellant.
ISSUE TWO
The learned Counsel to the appellant’s argument is that the learned trial Judge was not sitting on appeal hence ought not to have made comments on Exhibit “3” and “4” in the judgment, citing Jikantoro vs Dantoro (2004) Alt FWLR (Pt.390) 216 at 390 and 398. This was so as the judgments commented upon were valid until set aside. Learned Counsel to the Respondent replied, drawing this Court’s attention to the comments of the learned trial Judge as showing that this was to enable His Lordship determine what weight to attach to the case of the parties, taking into consideration the contents of Exhibits 2, 3, and 4. That it was upon an examination of these exhibits that the learned trial Judge drew the proper inferences from the oral and documentary exhibits tendered at the trial. Counsel referred to the case of Fanami vs Bukar (2004) All FWLR (Pt.198) 12l0 at 1225 and Wulgo vs Bukar (1999) 3 NWLR (Pt.596) 539. Counsel urged that the Court should resolve issue two in favour of the Respondent.
REASONS
Exhibit “3” was tendered through the Respondent (PW1). It is a certified true copy of the judgment in suit No.KA/57C6/95 viz Commissioner of Police vs Chief James Onyewueke put in to prove that the appellant was convicted and sentenced to a fine of N1,000.00 (one thousand Naira) by the Senior Magistrate court No.4 Gyadi-Gyadi Kano on 05-05-1995 for criminal breach of trust. Exhibit “4” is a certified true copy of the record of proceedings of the High Court of Justice sitting and exercising appellate jurisdiction, discharging and acquitting the appellant who was really convicted by the Senior Magistrate Court, 6 Gyadi-Gyadi, Kano, in Kano State. The learned trial Judge held that, “In determining this claim I have considered Exhibits 1, 2, 3 and 4 tendered in this proceedings as well as all the surrounding circumstances of this case…” See p.55 lines 6 of the printed record.
At page 56 lines 7-24 of the printed record the learned trial Judge held as follows:
“It is correct that Exh. 4 quashed the conviction of the Defendant in Exh.3. This is however on technical grounds that the facts disclosed therein did not support the ingredient for the offence of cheating. The finding of the High court on appeal was that the FIR to which the Defendant’s plea was made did not disclose the essential elements of cheating. That the conviction and sentence (emphasis mine) of the Magistrate Court 6 Gyadi-Gyadi was set aside and the Defendant was discharged. This was the prayer of the Defendant’s Counsel on appeal. It is instructive that the Defendant was not acquitted and the trial was not declared a nullity. Only the conviction and sentence were set aside. Technically therefore what this means is that the remaining part of the judgment in Exh.3 apart from the conviction and sentence remain intact and can be used.
By Section 54 of the Evidence Act, every judgment is conclusive of facts forming ground of judgment. From Exh.3, the testimony of the plaintiff is essential the same with his testimony in these proceedings. The Defendant change his plea in Exh.3. Technically this was found to be irrelevant since the ingredients of cheating for which he was charged were not disclosed in the FIR. It does however lead credence to the validity of Exh.2 and the weight I attach to the evidence of either side when I put them on the imaginary scale.”
Whether the discharge of the appellant was on technical grounds or not, the sentence and conviction by the Senior Magistrate sitting in Court 6, Gyadi-Gyadi in Kano, Kano State, was in fact set aside including the findings, and the appellant was discharged. Any method by which a legal duty is extinguished, especially the payment of a debt or fine or the satisfaction of some obligation, example, the canceling or vacating of a Court order, sentence or conviction, etc, constitutes a discharge. See Black’s Law Dictionary, 8th edition, p.495. The learned trial Judge could have taken judicial notice that the Appellant was once convicted and sentenced to terms of imprisonment in Exhibit “3” but was discharged by the High Court sitting on appeal in Exhibit “4”. The proceedings in Exhibit “3” had been nullified in Exhibit “4”. See Osafile vs Odi (1990) 5 SCNJ 118. The learned trial Judge wrongly applied the provisions of section 54 of the Evidence Act, 1990 which reads as follows:
“54 Every judgment is conclusive proof as against parties and privies, of facts directly in issue in the case actually decided by the court and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”
The findings of the Senior Magistrate Court 6, Gyadi-Gyadi in Exhibit “3” having been set aside by the High Court of Justice exercising her appellate jurisdiction in Exhibit “4” makes the judgment inadmissible in determining the issues raised by the parties in the Court of trial. There was no conclusive judgment of the Senior Magistrate Court 6 upon which the learned trial Judge could anchor a decision in favour of the Respondent. The purpose of the Respondent’s tendering of Exhibit “3” was to show that the appellant was an ex-convict. But the Appellant put in Exhibit “4” to show he was not, having been discharged and Exhibit “3” quashed by the High Court of Justice, Kano. In Ishola vs UBN Ltd (2005) All FWLR (Pt.25 6) 1202 it was held by the Supreme Court at page 1213 paragraph “G” that:
“The Court can only use a document properly admitted before it for the purpose intended by the parties as pleaded unless the attention of the Court is drawn by any of the parties before it to do so. And even in that case, the Court must invite all the parties before it to address it on the point before making a decision on it” Per Kalgo JSC.
The wrongful use of Exhibit “3” and “4” constitutes one of the general circumstances which led the learned trial Judge to come to the following conclusion, “…I find and hold that the Defendant signed Exhibit 1 and 2”. See page 57 lines 5 of the printed record. The wrongful use of Exhibits “3” and “4” has had a devastating effect on the judgment of the learned trial Judge. See Section 227(1) of the Evidence Act, 1990 and Obidiozo vs The State (1937) 11-12 SCNJ 103; Alade vs Olukade (1976) 2 FNLR 10. I resolve issue two in favour of the appellant.
ISSUE THREE
Learned Counsel’s argument is that facts before the lower Court the Respondent testified that he signed Exhibit “3” as a “customer” while the appellant signed as the “seller”. But under cross-examination, the respondent admitted signing the exhibit as a “customer”. The respondent explained that a “customer” is a “buyer”. These facts not having been pleaded the learned trial Judge ought not to have invoked the provisions of Section 132 of the Evidence Act, 1990 in favour of the respondent. There is no reply from learned Counsel to the Respondent regarding this complaint in the Respondent’s Brief of argument.
Learned trial Judge’s record reads as follows:
“In respect to the plaintiff’s trip to Maiduguri with the Defendant Mr. Malami conceded that the trip to Maiduguri was not specifically pleaded. He however, contended that recourse should not be made to technicalities to defend (sic) the ends of justice. He relied on NLDB vs. S. S. Briggs (1992) 5 NWLR P.v 242, 481 (sic). He urged the court to enter judgment for the plaintiff”
See page 51 lines 3-7 of the printed record.
Learned counsel to the Respondent having conceded in his address that what transpired at Maiduguri was not pleaded, that admission should have entitled the Appellant to an order expunging Exhibit “1” and the oral testimony from the record. No body sets out to prove what has been admitted by a party or his Counsel and what is not denied is deemed admitted. see section 75 of the Evidence Act, 1990; Olale vs Ekwelendu (1989) 7 SCNJ 181. It is part of an honourable counsel, being an officer in the temple of justice, to admit mistakes he made in the course of settling pleadings. See Agu vs Odofin (1992) 3 SCNJ 161 at 179. The preparation of processes or settlement of pleadings is the responsibility of Counsel. See Long-John vs Black (1993) 5 SC 68. Counsel may be careless or make mistakes in preparing pleadings. See Ojukwu vs Ojukwu (2001) FWLR (Pt.41) 1948 at 1972-3 paragraph “H”. Therefore, it is not the business of the learned trial Judge to ignore this concession by learned Counsel that facts necessary to tender Exhibit “I” were not pleaded. The learned trial Judge should not have embarked on a voyage seeking to repair the damage caused by learned Counsel to the Respondent in failing to plead material facts necessary for the Respondent to obtain judgment in the temple of justice. Courts are not carpenter’s workshops to toil where Judges to mend defects in pleadings. I am of the humble view that the learned trial Judge erred in invoking the provisions of Section 132(1) (b) and (2) of the Evidence Act, 1990 to enter judgment for the Respondent. I resolve this issue in favour of the appellant.
ISSUE FOUR
The learned Counsel appearing in the trial Court concluded their oral addresses on 23-11-2001 and judgment was fixed for 28-01-2002 but delivered on 04-04-2002. The ninety days period within which the judgment should have been delivered by virtue of Section 294(1) of the constitution of the Federal Republic of Nigeria, 1999 as altered would have expired around 24-02-2002. There is no explanation on record why the learned trial Judge delivered the judgment on 04-04-2002. However section 294(5) of the Constitution supra is authority that a decision of a Court shall not be set aside or treated as a nullity solely on the ground that it was not delivered within the ninety day period prescribed by the Constitution unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. There was, in my humble opinion no miscarriage of justice in this circumstance. See Ojokobolo & ors vs Alamu & Anor (1937) 218 NSCC (Pt.2) 991 cited with approval in Savannah Bank of (Nig.) Ltd vs Starite Industries Overseas Corporation (2009) NMLR 331 at 335. I resolve this issue in favour of the Respondent.
On the whole this appeal is allowed. The judgment of Hon. Justice P.A. Mahmoud J., of the High Court of Justice is set aside. In its stead, the suit of the Respondent/plaintiff before that Court is hereby dismissed with N20,000.00 costs to the appellant.

THERASA NGOLIKA ORJI-ABADUA, J.C.A.: I had read the leading judgment of my learned brother, Joseph Tine Tur, J.C.A, I agree with the reasoning and conclusion reached therein. I abide by all the consequential orders made in the leading judgment.

OBANDE OGBUINYA, J.C.A.: I have had the opportunity of reading, in draft, the leading judgment delivered by my learned brother, J. T. Tur. JCA, and I agree with his reasons and conclusions. The facts, the issues and the arguments in this appeal had been clearly set out in the leading judgment. It is, therefore, pointless to recapitulate them. I will just consolidate my learned brother’s opinions on issue two.
The appellant’s principal grouse on issue two was that the lower court, not being an appellate court, ought not to have commented or used exhibits 3 and 4 in its judgment. Exhibit 3 was the judgment of a Senior Magistrate’s Court, Kano wherein the appellant was convicted of the offence of criminal breach of trust. Exhibit 4 was the judgment of the High Court of Kano State in which the appellant was discharged and acquitted of that offence. Put differently, exhibit 4 set aside exhibit 3. In a nutshell, both exhibits, 3 and 4, were criminal proceedings in the Magistrate’s Court and High Court respectively.
Being criminal proceedings in those courts, the law seriously frowns upon their admission in evidence in the civil proceedings in the lower court, a fortiori their utilization as template for reaching a decision in its judgment. In other words, the lower court ought not to have received them, exhibits 3 and 4, in evidence since the law has branded them as inherently inadmissible. The fact that those exhibits were admitted without any modicum of protestation from the appellant does not cut ice with this fixed position of the law. Where an inherently inadmissible documentary evidence is, intentionally or inadvertently, counted in as evidence, as in the case in hand, an appellate court has the mandate of the law to weed out such evidence and decide the appeal on legally admissible evidence. For these hallowed principles of law, I am amply swayed by the case of Abubakar V. Joseph (2008) 13 NWLR (pt.1104) 307 at 353-354. In that case, Ogbuagu, JSC, succinctly intoned:
“…Again, because the 1st respondent, was the convicted in the Magistrate’s Court, and the 2nd appellant, was discharged, so the proceedings in the said magistrate’s court, was tendered as exhibit D…I have no doubt in my mind, that this affected and influenced the learned trial Judge’s mind in outrightly, dismissing the counterclaim of the respondents and also finding in favour of the appellants.
I will pause here to state on the decided authorities, that the admission of the said (exhibit D)- the Criminal Proceedings in a civil trial or Proceedings, was wrong. Such proceedings, was certainly inadmissible in any event. In other words, record of proceedings in a criminal proceedings, should not be admitted in evidence in a civil proceeding. See the cases of Oyewole v. Kelani (1945) 12 WACA 327 Okunoren v. U.A.C. Ltd 20 NLR 25 at 27; Nwakcukwu v. Egbuchu (1990) 3 NWLR (pt.139) 435 at 44. CA; Gabriel Agu v. Nwakanmo Atuegwu 21 NLR 83 at 84 and Hohington v. Hewthorn & Co. Ltd. (1943) 1 K B. 587, (1943) 2 A.E.R 35 just to mention but a few.
That exhibit D was admitted in evidence without objection is was of no moment. This is because and this is also settled in a line of decided authorities, that where inadmissible evidence has been admitted, it is the day of the court, not to act upon it. It is immaterial that its admission, was as a result of consent of the opposite party or that party’s default in failing to take an objection at the proper time. An appellate court, has the power to reject such evidence and decided the case on legal evidence. See the cases of Owonyin v. Omotosho (1961) 1 ALL NLR 304 at 395; Ajase & Ors v. Olori Ilu & Ors (1965) NMLR 66 at 671 Yassin v. Barclays Bank DCO (1968) 1 ALL NLR 171, 177; Olukade v. Alade (1976)2 SC 183 at 188-189; (1976) 1 ANLR 67; Jahanmi v. Saibu (1977) 2 SC 89 at 112-113 and Ikenye v. Ofune (1985) 2 NWLR (pt.5) I just to mention but a few”.
On the premise of this binding pronouncement, I will not hesitate to expunge exhibits 3 and 4 wrongly factored into the evidence in the lower court. Having removed them, it becomes apparent that issue two must necessarily being resolved in favour of the appellant. And I so resolve.
It is for this reason, coupled with more detailed reasons advanced in the leading judgment, that I, too, allow the appeal. I abide by the orders made in the leading judgment.

Appearances

C.O Ndumnego Esq.For Appellant

AND

Abdulazeez Ibrahim & W. S Bissallah (Miss) Esq.For Respondent