COMMERCIAL BANK (CREDIT LYONNAIS) NIGERIA LIMITED & ANOR v. MRS JOKE ISHOLA & ANOR (2014)

COMMERCIAL BANK (CREDIT LYONNAIS) NIGERIA LIMITED & ANOR v. MRS JOKE ISHOLA & ANOR

(2014)LCN/7594(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of December, 2014

CA/L/58/04

RATIO

EVIDENCE: DOCUMENTARY EVIDENCE; TENDERING DOCUMENTS FOR IDENTIFICATION

The way I understand the principle of tendering documents for identification purposes is this: If counsel knows that the document he desires to tender at a particular stage of the hearing has a problem and that opposing counsel would raise objections to its admissibility, he would indicate that he is tendering the document for identification purposes only. This indication would put all objections at bay. The intention of counsel usually is to return back to the document and seek to tender it as an exhibit after he may have resolved whatever problem that impeded its admissibility as an exhibit initially. Let me take as an example the case in hand. At the time the relevant document was tendered for identification purposes through PW1, the proper foundation for its admissibility had not been laid. A photocopy was tendered because it was alleged that the original was in the custody of the Police. It was necessary to serve a subpoena on the Police for the original copy. If they fail to produce it then the photocopy becomes admissible in evidence. When the PW2 was called, questions must be put to him to lay the proper foundation to enable the document to now be admitted as an exhibit. It is therefore possible and indeed the usual practice for a document initially tendered for identification purposes to be later admitted in evidence as an exhibit. It is important to note that a document tendered and admitted for identification purposes is not rejected. That is why it is possible to later admit it as an exhibit. The appellant was consequently wrong to say that the document was rejected and marked for identification. In the case of Bello v Gov. Kogi State (1997) 9 NWLR (PT. 521) 496 @ 521 C cited by learned counsel for the appellant; the document was not rejected and marked for identification. It was rejected and marked rejected because the document was undated and the name and title of the certifying officer not shown as required by Section 111(1) of the Evidence Act. Later on in the proceedings the flaws were rectified and same document tendered in evidence and admitted as an exhibit without objection. In the course of writing the judgment the trial judge on discovering that it was the same document earlier rejected rightly expunged the exhibit in the following words:

“……..a document once rejected stands rejected as it is not for any of the parties to start perfecting any imperfection thereon thereby facilitating its easy acceptance as exhibit in the same proceedings.”

The above surely is not the case with documents marked for identification. In such cases, it can be later tendered in evidence as an exhibit. The document herein which was initially tendered and admitted for identification was later properly admitted as an exhibit. This issue is resolved against the appellant and in favour of the Respondent. per. CHINWE EUGENIA IYIZOBA, J.C.A

JUSTICES:

SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

ABIMBOLA O. OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

Between

1. COMMERCIAL BANK (CREDIT LYONNAIS) NIGERIA LIMITED
2. MRS BISI AYORINDE – Appellant(s)

AND

1. MRS JOKE ISHOLA
2. MR. DAUDA AZEEZ – Respondent(s)

CHINWE EUGENIA IYIZOBA, J.C.A (Delivering the Leading Judgment): This is an appeal against the Ruling of Ojikutu-Oshode J. of the High Court of Lagos State in Suit No. LD/52/2001 delivered on the 23rd day of October 2003. By a Writ of Summons and Statement of Claim both dated the 9th of January 2000, the Plaintiffs/Respondents sought the following reliefs at the lower court:

(a) The sum of N124,820.00 (One Hundred and Twenty-Four Thousand Eight Hundred and Twenty Naira) being the sum paid by the 2nd Plaintiff on behalf of the 1st Plaintiff into account number 070005061-1 which the Defendants have refused to credit with the said sum;

(b) Alternatively, an order compelling the Defendants to forthwith credit account number 070005061-1 with the sum of N124,820.00; and

(c) N500, 000.00 (Five Hundred Thousand Naira) as general and special damages for loss of business and inconvenience caused to the Plaintiffs.

On May 8, 2002, in the course of trial before the lower court, the Respondents called the 1st Respondent as witness and sought to tender a photocopy of a Bank Teller in evidence. Upon the objection of the Counsel for the Appellants, the Bank Teller was not admitted in evidence but was marked by Ojikutu-Oshode J. as “Exhibit ID 1”, that is, “Identification 1”. On October 23, 2003 during the continuation of examination – in – chief of the 1st Respondent, the Respondents sought to tender the document earlier marked as “Identification 1”. Despite the objection of Counsel for the Appellants, the same document was now admitted in evidence. The Ruling of the court admitting the document in evidence is on pages 15 – 17 of the Record. Dissatisfied with the Ruling, the Appellants filed a Notice of Appeal dated November 5, 2003 which was subsequently by leave of the court granted on 15/11/06 amended. The amended Notice of Appeal is on pages 35-36 of the Record. From the two grounds of appeal in the amended Notice of Appeal, the Appellants in their brief of argument formulated the following two issues:

1. Whether the trial Court was right when it subsequently admitted in evidence a document earlier refused in evidence but admitted for the purpose of identification as “Exhibit ID 1”?; and

2. Whether the trial Court was right when it admitted in evidence a photocopy of “Exhibit ID 1”, the proper foundation for the reception of the photocopy not having been laid?

In their brief settled by Clement Onwuenwunor Esq., the Respondents formulated the following two issues for determination:

i. Whether the learned trial Judge was right when he subsequently admitted in evidence a document earlier admitted for identification and marked as an ID1.

ii. Whether the learned trial judge was right when he admitted secondary evidence of the cash remittance voucher under the circumstance of this case.

The two issues formulated by each side are basically the same not withstanding the slight variation in the language used by the Respondents. The issues will be considered seriatim.

On issue 1, Whether the trial Court was right when it subsequently admitted in evidence a document earlier refused in evidence but admitted for the purpose of identification as “Exhibit ID 1; Learned counsel for the appellant, Fred Onuobia Esq., relying on Bello v Gov. Kogi State. (1997) 9 NWLR (PT. 521) 496 @ 521 C submitted that it is trite law that where a document has been tendered in evidence, rejected and marked “ID”, such a document cannot be re-tendered. Counsel submitted that the Respondents’ Cash Remittance Voucher was tendered, rejected and marked “ID” on May 8, 2002 due to the Respondents’ Counsel’s failure to lay proper foundation for the tendering of a photocopy of it. Learned counsel further submitted that a document marked “ID” that is, for identification purpose is not evidence before the Court and cannot be acted upon. Relying on the cases of Ijeonyenani v A. C. B. Ltd (1997) 6 NWLR (PT. 508) 340 @ 346; Cappa & D’Alberto Ltd v Akintilo. (2003) 9 NWLR (PT. 824) 49 @ 72 Counsel submitted that it has been held that it is wrong for a trial judge to give weight or make use of a document marked for “identification” only. On this issue, counsel finally submitted that having been rejected by the trial court the first time, “Exhibit ID 1” cannot be re-tendered and admitted in evidence for the determination of this suit.

On issue 2, whether the trial Court was right when it admitted in evidence a photocopy of “Exhibit ID 1”, the proper foundation for the reception of the photocopy not having been laid; learned counsel submitted that the Respondents had not laid proper foundation for the tendering and reception of “Exhibit ID 1” in evidence. Counsel relying on the cases of Stanley Odua (Alias Duru Idika) v The Federal Republic of Nigeria (2002) 5 NWLR (PT. 761) 615; Fasina v Ogunkayode (2005) 12 NWLR (938) 147 @ 165; Cappa & D’Alberto Ltd v Akintilo (2003) 9 NWLR (PT. 824) 49 @ 72; Fasina v Ogunkayode (2005) 12 NWLR (Supra) @ 165 to 166 submitted that the best evidence rule ordains that the best evidence is the original document tendered in Court; and that photocopies are generally inadmissible. Where the original cannot be tendered, secondary evidence can be tendered in respect of a document where proper foundation has been laid in accordance with sections 97(1) and (2) Evidence Act, Cap 112 Laws of the Federation, 1990.

Learned counsel submitted that the Cash Remittance Voucher constitutes an entry made in a Banker’s book to the extent that it is evidence of money received; and that consequently Section 97 (1) (h) and Section 97(2) (e) of the Evidence Act are applicable where the Respondents seek to tender a photocopy. Relying on the case of Aiyetoro Comm. Trad. Co. Ltd. v N. A. C. B. Ltd (2003) 12 NWLR (834) 346 @ 377 to 378 counsel submitted that the copy admitted in evidence by the learned trial judge had not been compared with the Bank’s books nor was it tendered by an officer of the Bank who had so compared it with the Bank’s books. Learned counsel further submitted that assuming but without conceding that section 97(1) (a) applies in this case, as contended by the Respondents, that a photocopy will only be admissible (i) where the original is in the possession of the person against whom it is sought to be proved or (ii) where it is in the possession of a person legally bound to produce it, and after that person has failed to produce the original upon being given notice to produce same. Olaogun v. S. J. & M. (1992) 4 NWLR (PT 938) 235 @ 361. Counsel argued that the Respondents did not assert that the original was in the possession of the Bank (against whom it is sought to be proved); on the contrary, the Respondents have severally stated that the original was in Police custody; which perhaps meant that it is the Police that is legally bound to produce it. Counsel argued that it is then incumbent on the Respondents to give the Police notice to produce the original document or issue a tesificandum duces ad tecum against the Police and wait for the Police to fail to produce it before tendering a photocopy and that this was not the position before the trial court. Counsel argued that since neither leg (i) or (ii) of section 97(1) (a) had been satisfied by the Respondents; the proper order the learned trial judge should have made is an order rejecting the document sought to be tendered in evidence.
Learned counsel urged the Court to allow this appeal in its entirety and set aside the ruling of the lower court dated October, 23, 2003.

Learned Counsel for the Respondents on issue 1 submitted that the cash remittance voucher, contrary to the argument of the appellant, was never rejected by the trial court when it was first tendered on 8th May, 2002 but was simply admitted for identification purpose and marked as ID1. It follows that same can subsequently be re-tendered and admitted in evidence as was done by the trial court on 23rd October, 2003. Learned counsel cited the case of Etiko v Aroyewun (1959) 4 F. SC 129 – 130 where Abbott, AG. C. J. F. said:

“When the plaintiff was giving evidence he tendered the plan which he had prepared of the land in dispute. There does not appear to have been any objection to the plan being received in evidence but the Judge marked it “A” for identification. It was thereafter referred to freely by the parties in the course of the trial, but was never fully received in evidence. Knowing that the plan was marked for identification only plaintiff’s Counsel should have taken steps to see that the plan was duly identified and received in evidence.”

Counsel submitted that it followed from the above that the respondents Counsel did the proper thing when he subsequently re-tendered the cash remittance voucher through PW2 having laid proper foundation on 25th June, 2003. Counsel finally submitted that though the cash remittance voucher was tendered for identification on 8th May, 2002, through PW1, the said document was properly admitted in evidence as an exhibit on 23rd October, 2003 when it was subsequently re-tendered through PW2.

On issue 2, learned counsel submitted that Secondary evidence of the cash remittance voucher was admissible because proper foundation had been laid by the respondents before re-tendering the cash remittance voucher. Counsel submitted that Subpoena duces tecum dated 12th December, 2002 had been issued and served on the Police to produce the original of the cash remittance voucher without avail. This was the circumstances under which the secondary evidence of the cash remittance voucher was tendered. Counsel submitted that the learned trial judge was right when she admitted in evidence secondary evidence of the cash remittance voucher. Counsel further submitted that the appellant suffered a deep misconception when it argued that the cash remittance voucher qualifies as an entry in a banker’s book under Section 97(1) (h) of the Evidence Act. Counsel argued that the cash remittance voucher at page 12 of the Record with the name of the 1st respondent written on it was issued by the appellant to the 2nd respondent upon payment or lodgement of money with the appellant on 20th March, 2000. The respondents had custody of the cash remittance voucher tendered in evidence and not the appellant. Although the original of the cash remittance voucher at the relevant time of tendering it was with the Police, the latter had been served with subpoena duces tecum, as alluded to by the trial judge in the ruling appealed against, but the Police refused to produce the original. In the circumstance, the cash remittance voucher fell squarely under section 97(1) (a)(ii) which provides that secondary evidence of a document can be given, if the original is in possession of a person legally bound to produce it and when after the notice mentioned in section 98 of the Evidence Act, such person does not produce it. Counsel submitted that this interlocutory appeal is unmeritorious and urged the Court to dismiss same.

The primary point in contention under issue No. 1 is whether it is possible for a Court to admit as an exhibit a document earlier tendered and admitted for identification purposes. It will appear that this matter of admitting a document for identification purposes is not covered by law but merely came to be as a matter of practice from frequent use. In Egwa v. Egwa (2007) 1 NWLR (Pt. 1014) 71 @ 94 Rhodes-Vivour JCA (as he then was) observed:

“During the trial, the site plan was admitted as ID1, that is identification 1, it was never admitted as an exhibit. I must say straightaway that admitting documents in evidence for identification purposes (ID) is unknown in the accusatorial system of jurisdiction practiced in Nigeria. The Evidence Act makes no provision for documents to be tendered for ‘ID’ or as ‘ID’. Documents are either tendered as Exhibits or not tendered at all.
A document tendered for ID purposes has no probative value whatsoever; it is as if nothing was tendered.”

As clearly stated above where a document is tendered for identification and ends up never being admitted as an exhibit, it is a completely useless exercise as the court cannot make any use of it. It is as if it was never tendered. Ijeonyenani v. A. C. B. Ltd (1997) 6 NWLR (PT. 508) 340 @ 346; Cappa & D’Alberto Ltd v. Akintilo. (2003) 9 NWLR (PT. 824) 49 @ 72.
The way I understand the principle of tendering documents for identification purposes is this: If counsel knows that the document he desires to tender at a particular stage of the hearing has a problem and that opposing counsel would raise objections to its admissibility, he would indicate that he is tendering the document for identification purposes only. This indication would put all objections at bay. The intention of counsel usually is to return back to the document and seek to tender it as an exhibit after he may have resolved whatever problem that impeded its admissibility as an exhibit initially. Let me take as an example the case in hand. At the time the relevant document was tendered for identification purposes through PW1, the proper foundation for its admissibility had not been laid. A photocopy was tendered because it was alleged that the original was in the custody of the Police. It was necessary to serve a subpoena on the Police for the original copy. If they fail to produce it then the photocopy becomes admissible in evidence. When the PW2 was called, questions must be put to him to lay the proper foundation to enable the document to now be admitted as an exhibit. It is therefore possible and indeed the usual practice for a document initially tendered for identification purposes to be later admitted in evidence as an exhibit. It is important to note that a document tendered and admitted for identification purposes is not rejected. That is why it is possible to later admit it as an exhibit. The appellant was consequently wrong to say that the document was rejected and marked for identification. In the case of Bello v Gov. Kogi State (1997) 9 NWLR (PT. 521) 496 @ 521 C cited by learned counsel for the appellant; the document was not rejected and marked for identification. It was rejected and marked rejected because the document was undated and the name and title of the certifying officer not shown as required by Section 111(1) of the Evidence Act. Later on in the proceedings the flaws were rectified and same document tendered in evidence and admitted as an exhibit without objection. In the course of writing the judgment the trial judge on discovering that it was the same document earlier rejected rightly expunged the exhibit in the following words:

Coming now to issue 2, was the proper foundation laid for the admission of the document ‘ID1’ as an exhibit? First I must dismiss right away the contention of the appellant that the cash remittance voucher constitutes an entry in a banker’s book subject to the provisions of Section 97(2) (e) of the Evidence Act. The section talks of a document which is an entry in a banker’s book. The cash remittance voucher is not an entry copied from a banker’s book. It is a document issued by the appellant to the 2nd Respondent upon lodgement of money with the appellant on 20/3/2000. The Respondent and not the appellant had custody of the cash remittance voucher. It cannot therefore be described as entry in a banker’s book. Learned counsel for the Respondent had contended which contention I totally agree with that generally banker’s book(s) do not include voucher and that the application of section 97(1) (h) of the Evidence Act cannot be extended to cover the exhibit at page 12 of Record of Appeal. Counsel referred to Encyclopedia of Evidence, Law & Practice by Sir, T. A. Nwamara at page 704 where the learned author observed:

“For the purpose of section 96(1)(a) – now section 97 (1)(A) – and section 37 of the Act, ‘bankers books’ and ‘books of account’ could include ‘ledger cards’ but will not include a mere voucher.”

In Yesufu v ACB LTD (1976) 4 SC 1 @ 12 – 13 Fatayi – Williams, JSC said:

“Although section 96 (1) (h) of the Act provides that secondary evidence may be given of the existence, condition or contents of a document where the document is an entry in a banker’s book. A ‘banker’s book’ is defined in section 2 of the Act as including ‘ledgers, days books, cash books, account books and all other books used in the ordinary business of a bank.
Admittedly, this definition is not restrictive and could therefore be extended to mean something else which it does not ordinarily mean. Therefore, while the phrase “a ledger card” although even this is far from clear, we do not think it could be extended to mean a ‘voucher’

I agree with counsel’s submission that the implication of the above case authority is that the cash remittance voucher is not an entry in a banker’s book. Rather, the document falls squarely under Section 97 (1) (a) (ii) of the Evidence Act. The Section allows secondary evidence of a document if the original is in the possession of a person legally bound to produce it and when after notice as in section 98 of the Evidence Act, such person does not produce it. The learned trial judge in her Ruling found as a fact that the Respondents served a subpoena on the Police who had the original document to produce the document. The Police having failed to produce the document, the Respondents were entitled to tender a photocopy. In other words, contrary to the contention of the appellant, the necessary foundation had been laid for the Respondents to tender secondary evidence of the document. This issue is again resolved against the appellants and in favour of the Respondents. Having resolved the two issues in this appeal against the appellant, I hold that the appeal lacks merit. It is hereby dismissed. I make no order as to costs.

SIDI DAUDA BAGE, J.C.A: I have had the privilege of reading in draft the Judgment just delivered by my learned brother CHINWE EUGENIA IYIZOBA JCA.
I agree with the reasoning and conclusion reached therein and have nothing extra to add.

Accordingly, I too join my learned brother in holding that this issue is again resolved against the Appellants and in favour of the Respondents. Having resolved the two issues in this appeal against the Appellant, I also hold that the appeal lacks merit. It is also hereby dismissed by me. I make no order as to costs.

ABIMBOLA OBASEKI – ADEJUMO, J.C.A: I have read in draft the judgment of my learned brother, HON. JUSTICE CHINWE EUGENIA IYIZOBA (JCA).
I agree with the reasoning and conclusions stated therein, I also agree that there is no substance in the appeal and dismiss this appeal.

Appearances

FRED ONUOBIA ESQ. with A. G. ANAFI ESQ. For Appellant

AND

CLEMENT ONWUENWUNOR ESQ. For Respondent