DOMINIC v. FCDA (2022)

DOMINIC v. FCDA

(2022)LCN/16378(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, February 07, 2022

CA/A/398/2021

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

MR. OGBODO DOMINIC (Suing Through His Attorney Mr. Owo Theophilus) APPELANT(S)

And

FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)

RATIO:

POSITION OF LAW ON TENDERING A DOCUMENT IN EVIDENCE

It is trite that “where a document is tendered in evidence and it is intended in proof of a specific point, the duty on the party who want to relate an exhibit to an aspect of his case is to say so explicitly and not leave the Court to investigate the contents of the document. This is because the admitted documents useful as they could be, would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their import. See Alao v. Akano (2005) All FWLR (pt. 264) 799 at 812 – 813, Abi v. CBN & Ors., (2011) LPELR-4192 (CA), per Nwodo, JCA at pages 27-28, paras. E-B. STEPHEN JONAH ADAH, J.C.A.

MEANING OF POWER OF ATTORNEY

THE MEANING OF “HEARSAY”

The word “hearsay” is used in various senses. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else. STEPHEN JONAH ADAH, J.C.A.

THE MEANING OF “HEARSAY”

The position of the law is that hearsay evidence, which is the testimony by a witness of what others have said and not what he or she knew personally, is inadmissible. STEPHEN JONAH ADAH, J.C.A.

WETHER A POWER OF ATTORNEY TO REPRESENT A DONOR CONFER RIGHT TO GIVE HEARSAY EVIDENCE

The law is settled and certain that the mere fact that the appellant was given a power of attorney to represent the donor does not confer on him the right to give hearsay evidence. See the case of Mrs. Cecilia Majekodunmi v. Primera Africa Finance Group Ltd., (2018) LPELR-47020 (CA). STEPHEN JONAH ADAH, J.C.A.

POSITION OF LAW ON CONTENT OF AN AFFIDAVIT

Then by Section 115 of the Evidence Act, 2011, the law provides on the content of affidavit as follows:
115. (1) Every affidavit used in the Court shall contain only a statement of fact and circumstances to which the witness deposes, either of his own personal knowledge or from information which he believes to be true.
(2) An affidavit shall not contain extraneous matter, by way of objection, prayer or legal argument or conclusion.
(3) When a person deposes to his belief in any matter of fact, and his belief is derived from any source other than his own personal knowledge, he shall set forth explicitly the facts and circumstances forming the ground of his belief.
(4) When such belief is derived from information received from another person the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and the time, place and circumstance of the information. STEPHEN JONAH ADAH, J.C.A.

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on 10th November, 2020, in Suit No. FCT/HC/CV/01/2018.

The appellant as claimant instituted this action at the trial Court vide a Writ of Summons and claimed against the respondent as defendant all the sundry reliefs as per the Statement of Claim, thus: –
A) AN ORDER mandating the defendant to pay 20,000,000.00 (Twenty Million Naira) being the purchase price.
B) AN ORDER mandating the defendant to pay N5,000,000.00 (Five Million Naira) being the amount paid to Mr. Ibe in commission.
C) N10,000,000 in damages for negligence
D) N2,000,000 as cost of action
E) 20% of the judgment sum until liquidation

The defendant, now respondent denied the claim of the appellant vide a Statement of Defence filed on the 28th May, 2019. The Claimant, now appellant responded by filing a reply on the 14th October, 2019.

At the trial, the Claimant, now appellant called one witness who testified as PW 1 and tendered several documents in evidence. On the other hand, the defendant, now respondent called one witness, a staff of the respondent, testified as DW1 and closed its case.

After the close of evidence, both counsels for the respective sides adopted their final written addresses and in a considered judgment, the trial Court dismissed the case of the claimant. It is against that judgment that this appeal was lodged vide the Notice of Appeal dated 2nd February, 2021 but filed on the 3rd February, 2021 with 4 (Four) Grounds of Appeal.

The Record of Appeal was compiled and transmitted to this Court on the 5th July, 2021, Brief of Arguments were filed and exchanged in the following manner:
Appellant’s Brief of Argument dated 3rd August, 2021 was filed 9th August, 2021. Respondent’s Brief of Argument dated 17th August, 2021 was filed the same date. While Appellant’s Reply Brief of Argument was dated and filed on the 23rd August, 2021.

Counsel adopted their respective briefs of argument at the hearing of this appeal. The appellant in his brief of argument formulated three issues from grounds 1, 2, 3 and 4 of the Notice and Grounds of Appeal, thus:
1. Whether the oral evidence of a lawful attorney who tendered written Power of Attorney which was admitted in evidence can be regarded as hearsay evidence. (Distilled form Ground One)
2. Whether the Court is bound to rely on Oral Evidence in prove of a Documentary Evidence properly pleaded and tendered before it can arrive at its judgment? (Distilled from Ground Two)
3. Whether the trial Court was right when it failed to determine and make pronouncement on the issue of negligence and the losses suffered by the appellant as a result of the conduct of the respondent despite the material evidence placed and argued before it.

The respondent at page 4 of their Brief of Argument formulated a lone issue for the determination of this Appeal, thus:
Whether or not the learned trial Judge was correct when he discountenanced both the oral and documentary evidence adduced by the appellant and dismissed his case without determining other live issues in the case. (Culled from grounds one, two and three of the Notice and Grounds).

Having calmly considered the circumstances and facts of this case as contained in the record of appeal and the submissions of counsel to the parties, it would appear that the sole issue for determination as formulated by the Respondent counsel aptly represent the issues for determination raised by the appellant in this appeal and it is hereby adopted as the sole issue for determination in this appeal.

Issue One:
This issue is – whether or not the learned trial Judge was correct when he discountenanced both the oral and documentary evidence adduced by the appellant and dismissed his case without determining other live issues in the case?
Learned counsel for the appellant submitted that the trial Court admitted the Power of Attorney issued by the appellant to Mr. Owoh Theophilus dated 18/01/2018 as Exhibit PW1D that Mr. Owoh Theophilus rightly stepped into the shoes of the appellant and can represent and act in respect of all matters and affairs concerning Mr. Ogbodo Dominic and that this Court has so held, that a Donee can by virtue of a power of Attorney do all that the donor could have done in respect thereof. Counsel relied on Ude v. Nwara (1993) (Supra); Ukogu V. Mbanugo & Ors (2012) LPELR-14437 (CA).

Learned counsel for the appellant argued that the findings and conclusion of the trial Court which the learned trial Judge hinged on Section 126 of the Evidence Act fails too. This is because the trial Judge failed to take into cognizance Section 39 (d) and Section 41 of the Evidence Act, which provided clearly, the exceptions to the rule of hearsay. We humbly submit that an Attorney who is armed with a written Power of Attorney steps into the shoes of the donor and has the powers and all the rights conferred on him by the said power of Attorney and can rightly so act under the said powers until the said powers are revoked.

Learned counsel for the appellant submits that it is settled law that the Court has over the years laid down what governs and determines the issue of admissibility of evidence. The appellant’s case at the trial Court was premised on the fact that he tendered Exhibits PW1A, PW1B and PW1C which are pieces of documentary evidence which the trial Court had the powers to look at these exhibits especially since they are public documents in their original form. Counsel relied on PDP & Anor v. Kawuwa & Ors (2015) LPELR-26044 (CA); Haladu v. State (2015) LPELR-26002 (CA); Haruna v. A.G. Federation (2012) LPELR-7871 SC; Statoil Nig. Ltd v. Inducon (Nig.) Ltd. & Anor (2012) LPELR-7955 (CA); Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338 @ 395; Arije v. Arije & Ors (2018) LPELR-44193 (SC); Bunge v. Gov. Rivers State (2006) All FWLR (Pt. 325) 1; Egharevba v. Osagie (2009) 12 SC (Pt. III) 123; Gudusu v. Abubakar (2017) LPELR-43007 (CA); Chime & Ors v. Chime & Ors (2001) LPELR-24858 (SC); M.V. Cecile Maersk & Ors v. Winline Nig. Ltd (2015) LPELR-24582 (CA).

Learned counsel further argued that the trial Court was wrong when it failed to determine and make pronouncement on the issue of negligence properly canvassed before it. Counsel relied on C.N. Okpala & Sons Ltd v. NB Plc (2017) LPELR- 43826 (SC); Ikpekpe v. Warri Refinery & Petrochemical Co. Ltd & Anor (2018) LPELR-44471 (SC).

In response, learned counsel for the respondent submitted that the appellant is not saying that the evidence of PW1 is not hearsay. The appellant is clearly aware that the evidence of his sole witness is hearsay. However, his contention is that the evidence of the PW1 as an Attorney falls within the exceptions to hearsay rule. Counsel relied on Section 39 (d) and 41 of the Evidence Act, 2011; Section 126 of the Evidence Act, 2011.

Learned counsel for the respondent submitted that the law is settled that admitted documents, useful as they could be, will be of no assistance to a Court if there is no oral evidence to explain their purpose. Counsel relied on Alao v. Akano (2005) All FWLR (Pt. 264) 799 at 812-813; Zimit v. Mahmoud (1993) 1 NWLR (Pt. 267) 71; Adewale v. Olaifa (2012) 17 NWLR (Pt. 1330) 478, Ratio 8; Adike v. Obiareri (2002) 4 NWLR (Pt. 758) at 573; Abubakar v. INEC (2020) 12 NWLR (Pt. 1737) 37, Ratio 23; Maku v. Umaru Al-Makura (2016) 5 NWLR (Pt. 1505) 201; Macfoy v. UAC Ltd (1962) AC 150.

Learned counsel for the respondent further submitted that the cases of C.N Okpala & Sons Ltd v. NB Plc (2017) LPELR-43826 (SC); Ikpekpe v. Warri Refinery & Petrochemical Co. Ltd & Anor (2018) LPELR-44471 (SC) relied on by the appellant are not helpful to his case at all. The two cases merely stated the general principles without more. The fact of the two cited cases and the present case are poles apart. No two cases are the same. Counsel relied on Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129; Western Steel Works Ltd v. Iron & Steel Workers Union of Nigeria (1987) 1 NWLR (Pt. 49) 284; Nwankwo v. State (2020) 6 NWLR (Pt. 1720) 359, Ratio 9. Counsel urged the Court to dismiss the appeal.

Learned counsel for the appellant in his Reply Brief submitted that the contention and submission of the respondent in paragraphs 4.7 and 4.8 of their respondent’s Brief of Argument are at variance with the decisions of this Court and therefore ought to be discountenanced with as same is a wrong interpretation of the provision of the Evidence Act in respect of Sections 39 (1) and 41. Counsel relied on Jubril v. FRN (2018) LPELR-43993 (CA).

Learned counsel argued that the respondent in paragraphs 4.12 to 4.16 was in error when he mentioned that documents were dumped on the Court merely because they believe that exhibit PWID was wrongly admitted, and that evidence of PW1 was hearsay. Counsel relied on Agamu v. Mimiko (2010) 32 WRN 10; Aregbesola v. Oyinlola (2010) 1 WRN 33 at 149. Learned counsel for the appellant submitted that the case of Macfoy v. UAC Ltd (1962) AC 150 as cited in paragraph 4.18 of the Respondent’s Brief of Argument does not apply to this case as the evidence before the Court is that PW1 which falls under the exception in Section 41 of the Evidence Act. However, assuming but not conceding that the evidence of PW1 is a hearsay, the said ‘hearsay’ is cured by Section 41 of the Evidence Act. Counsel urged the Court to dismiss the argument of the respondent and allow the appeal.

In the instant case, the appellant who was the claimant at the trial Court sued the respondent through his attorney Mr. Owo Theophilus. This attorney filed the claimant’s witness statement on oath to back up the claim. the attorney testified on oath before the trial Court and was cross-examined. See pages 132 and 140 to 142 of the Record of Appeal. The learned trial Judge in his judgment held as follows:
“In the instant case, not only has the sole witness of the Claimant stated in his adopted witness statement on oath that all he said therein was what the Claimant told him on 20th November, 2017 at 6 pm at his home, he has also reconfirmed same under cross-examination.
Learned counsel for the Claimant has attempted to argue that since PW1 is the Claimant’s lawful attorney who had filed this suit on behalf of the Claimant, his oral evidence of what the Claimant told him is not hearsay. With due respect, I find this argument grossly misconceived, in view of the clear wordings of Section 126 of the Evidence Act, 2011 which mandates that except for the exceptions in Part III oral evidence must in all cases whatsoever be direct. The exceptions contained in Part III of the Act do not apply to this case. Hence, the oral evidence of PW1, is clearly hearsay.
It is in the light of the above that I find and hold that the entire oral evidence of PW as contained in his adopted witness statement on oath is hearsay and inadmissible. Accordingly, I hereby reject same. Being the sole oral evidence on which the claimant’s case is hinged, the documents (Exhibits PW1A to PW1H) cannot stand on their own as there is no oral testimony to relate same to the claimant’s case. It is trite that “where a document is tendered in evidence and it is intended in proof of a specific point, the duty on the party who want to relate an exhibit to an aspect of his case is to say so explicitly and not leave the Court to investigate the contents of the document. This is because the admitted documents useful as they could be, would not be of much assistance to the Court in the absence of admissible oral evidence by persons who can explain their import. See Alao v. Akano (2005) All FWLR (pt. 264) 799 at 812 – 813, Abi v. CBN & Ors., (2011) LPELR-4192 (CA), per Nwodo, JCA at pages 27-28, paras. E-B.
Having rejected the inadmissible hearsay oral evidence of the Claimant’s sole witness (PW1), Exhibits PW1A to PW1H, the documents tendered by the claimant remain unexplained and cannot therefore establish the claimant’s case. It is in the light of all the foregoing that I hereby resolve the second issue for determination in this case against the claimant and hold that the Claimant has NOT proved his case and is therefore, NOT entitled to the reliefs he seeks in this case.
Accordingly, I hereby dismiss the Claimant’s case for lack of merit.”

In the case of Vulcan Gases Ltd v. Gesells Chaft Industries Gasverweartung A.G.(GIV) 2001 LPELR-3465 (SC), the Supreme Court defined power of attorney to be a formal instrument by which one person empowers another to represent him, or act in his stead for certain purposes. It may confer general or particular powers. In this case, the power of attorney was not challenged in content or context. It is the contest that the appellant as holder of a power of attorney’s evidence of the transaction of the donor of the power is hearsay. The Evidence Act is so clear on what is hearsay evidence.
The word “hearsay” is used in various senses. Sometimes it means whatever a person is heard to say. Sometimes it means whatever a person declares on information given by someone else. The position of the law is that hearsay evidence, which is the testimony by a witness of what others have said and not what he or she knew personally, is inadmissible. It is not hearsay and is, therefore, admissible, if it is only intended to be used to shoe the fact that it was made. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness, who is himself not called to testify. It presupposes that if any fact is to be proved against anyone, it ought to be proved in his presence by the truth and testifying to facts within his personal knowledge, subject to recognized exceptions. In fact, hearsay evidence solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. If any such evidence is designed to prove the truth of the statement and not merely the fact that the statement was made, then it is hearsay and inadmissible. What a witness heard in the presence of an accused cannot be hearsay. The Evidence Act 2011, contains two substantive provisions dealing with hearsay evidence. Section 37 of the said Evidence Act provides that: Hearsay means a statement – (a) Oral or written made otherwise than by a witness in a proceeding: or nay record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. Section 38 of the said Evidence Act, 2011, further provides as follows – Hearsay evidence is not admissible except as provided in this part or by or under any other provision of this or any other Act. It is certain that when evidence of a statement, oral or written, by someone other than the witness testifying before a Court is inadmissible as hearsay evidence, depends on the purpose from which the evidence is given or tendered by the witness in Court. In effect, the focus is on the purpose or use of the statement rather than the mere fact that it was made by a person not called as a witness. If the only relevance of the statement is the truth it asserts, it is a hearsay statement, see FRN v. Usman (2012) 8 NWLR (Pt. 1301) 141 at 160. See – Sama’ila v. State (2021) LPELR – 53084 (SC).

In the instant case, the appellant donated a power of attorney to Mr. Owo Theophilus with full power of substitution to represent and act for him. The donor therefore, sued through him in this case. The donation of power of attorney was not contested in this case. The law is settled and certain that the mere fact that the appellant was given a power of attorney to represent the donor does not confer on him the right to give hearsay evidence. See the case of Mrs. Cecilia Majekodunmi v. Primera Africa Finance Group Ltd., (2018) LPELR-47020 (CA).

Under the Evidence Act Section 126, oral evidence shall in all cases be direct.

In the instant case, the appellant deposed to his statement of witness on oath as follows:
I, Mr. Theophilus Owo, business man, Nigerian of Kuje Abuja do hereby make oath on the following:
1. That the claimant donated to me a Power of Attorney to act on his behalf.
2. That the claimant on 20th day of November 2017 at 6 pm at my home told me the following:
3. That in the year 2015, by a letter dated 1st June 2015 the claimant engaged one Mr. Chigozie Ibe, an estate agent to conduct a search of Plot No. 726 Cadastral Zone No 1, Kubwa (File No. DT.20468 and C of O No: 402UW-12528-11 B15-B3BAU-CUR3) at the defendant.
4. That the defendant through its arm (Abuja Geographic Information System) issued a report dated 17-06-2015 in response to the search conducted following Mr. Ibe’s application.
5. That the report issued indicated the plot was without blemishes.
6. That following the report, the claimant bought the plot at N20m and paid N5m to Mr. Ibe in commission and was given the following documents:
(a) Deed of Sale
(b) Deed of Assignment
(c) Certificate of Occupancy of the plot
(d) Receipt by Mr. Ibe acknowledging payment.
7. That sometime later, the claimant got an offer to sell the plot. Another search was conducted through the same estate agent, Mr. Chibuike Ibe.
8. That the defendant issued another report dated 10-12-15 in response to the latest application by Mr. Ibe. The report reveals that the said plot was revoked months before the 1st search was conducted.
9. That I make this oath sincerely according to oath Act 2003.

The appellant testified and adopted this statement on oath as his testimony. He produced all the documents in his possession which were objected to by the learned counsel for the respondent. The learned trial Judge dismissed the objection midway and admitted the documents as follows:
“(1) Original C of O No. 402uw-12528-11615-63 bau cur3 with file No: DT 20468 is hereby admitted in evidence as Exhibit PW1A.
(2) Original Search Report Dated 17/06/15 is hereby admitted in evidence as Exhibit PW1B
(3) Original search report dated 10/12/15 is hereby admitted in evidence as Exhibit PW1C…
The Power of Attorney dated 18/01/18, the Deed of Assignment dated 30/06/15, the Deed of Sale dated 30/06/15, the Receipt for N5 Million dated 30/06/15 and the Request to conduct a search dated 01/06/15 and admitted the documents in that above order as Exhibits PW1D, PW1E, PW1F, PW1G and PW1H, respectively”.
(See the ruling of the trial Court at pages 134 to 138 of the Record of Appeal).

However, in his judgment, the learned trial Judge now turned to reject the evidence of the appellant and said it was hearsay and he also refused to consider the documents he had admitted as Exhibits in the case. The reason the learned trial Judge gave is that the documents cannot stand alone to prove the case of the appellant.

From the facts before us, can one truly say the statement of the appellant on oath was hearsay? There is absolutely no way the testimony can be said to be hearsay. The appellant did not in anyway give evidence without disclosing the source of the information. It is not only that he was appointed as the attorney of the donor. He stated in paragraph 5 of his statement on oath which he also adopted on oath before the Court that, “the claimant on 20th day of November, 2017 at 6pm in my home told me the following…” This signifies that all he deposed to before the Court are what he was directly told by the claimant who had mandated him to represent him as the attorney. He tendered the original documents which authenticity was not challenged in Court. To ignore the entire evidence inclusive of the prime documents tendered in the circumstances of the instant case has shot the appellant from being heard. Failure to consider the evidence of the appellant is a breach of his fundamental right to fair hearing. A breach of fair hearing is fatal to any decision of the Court. Once the fundamental right of the appellant to fair hearing under Section 36 of the 1999 Constitution is breached, there is a serious lapse. The import of the breach of the right of the appellant to fair hearing is a manifestation of failure of justice. Where there is failure to hear all necessary parties to a dispute before a decision is reached as in the case on appeal, or that the evidence of the party is unlawfully excluded, there is a breach of Section 36 (1) of ‘the Constitution as amended. The party affected by such a decision is entitled to have it set aside as such decision is null and void and without any legal effect. It is my firm view that allowing this decision to stand will be perpetuating injustice in this case. It is in this respect that I resolve the issue raised in favour of the appellant. The appeal in my candid view has merit. It is hereby allowed.

Since the evidence placed before the trial Court was not accessed and evaluated in this case, the proper order to make is to remit this case to the lower Court for retrial before a different Judge of the Court.
The parties are to bear their respective costs.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, STEPHEN JONAH ADAH, JCA.

I equally agree with the reasoning and the conclusion that the appeal has merit. I accordingly allow the appeal and abide by the consequential orders as made in the lead judgment.

KENNETH IKECHUKWU AMADI, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, STEPHEN JONAH ADAH, JCA. I agree with the reasoning therein and the conclusion reached. The judgment of the lower Court is also set aside by me. This case shall be remitted back to the lower Court for retrial by another Judge. This appeal is allowed.

Appearances:

Chinedu Obienu, Esq., with him, O. Adenikinju, Esq. For Appellant(s)

Chidi Nwankwo, Esq. For Respondent(s)