EDOKPOLO & COMPANY LIMITED v. SEM-EDO WIRE IND. LIMITED & ORS
In The Court of Appeal of Nigeria
Friday, the 12th day of May, 1989
Case Number: CA/B/278/87
MICHAEL EKUNDAYO OGUNDARE Justice of The Court of Appeal of Nigeria
EMMANUEL TAKON NDOMA-EGBA Justice of The Court of Appeal of Nigeria
ISA AYO SALAMI Justice of The Court of Appeal of Nigeria
EDOKPOLO & COMPANY LIMITED Appellant(s)
- SEM-EDO WIRE IND. LTD.
2. KAYODE OGUNMAKAN
3. T. BELLO-OSAGIE
4. SOLOMON ASEMOTA Respondent(s)
BRINGING UP FRESH MATTERSON APPEAL
“In Uor v. Loko (1988) 2 N.W.L.R. (Pt.77) 430, Wali, J.S.C. delivering the lead judgment of the Supreme Court said, at page 437: “It is now firmly established through many decided cases that no substantial point that has not been taken and argued in the courts below will be allowed to be raised for the first time before this court except special circumstances are shown -See Ejiofodomi v. Okonkwo (1982) II S.C. 74 at 93-98; Djukpan v. Orovuyovbe (1967) 1 All N.L.R. 134; Abinabina v. Enyimadu 12 W.A.C.A.171 and John Ikinbor Dweye & 2 Ors. v. Joseph Iyomahan & 3 Ors. (1983) 8 S.C. 76. It is not in dispute that the issue of the applicability of Section 36 of the Land Use Act. 1978 was not raised either in the trial court or in any of the courts below. The parties fought the case all through on question of ownership according to the customary law applicable in the area.”
OGUNDARE, J.C.A. (Delivering the Leading Judgment): The appellant in this interlocutory appeal was plaintiff in suit No.FHC/W/4/79 still pending in the Federal High Court, Benin. The appellant company had sued the respondents as defendants claiming various declarations and an order for specific performance. Pleadings having been filed and exchanged between the parties and, with leave of court,amended, the case proceeded to trial. In the course of the evidence of the 1st P.W., Bishop John Edokpolo, the Chairman/Managing Director of the appellant company,an attempt was made to tender a document referred to by the witness as a counter-part of the agreement between the appellant company and its foreign partner, Sem Nigerian Holdings G.M.B.H. & Co.,objection was taken to the admissibility of this document by learned Counsel for the defendants, on the ground that the document, although marked counterpart, was, in fact, a copy and being a copy sufficient foundation had not been laid for its admissibility. The learned trial Judge after listening to submissions by learned counsel for the parties, in a ruling he delivered the following day, upheld the objection raised by defence counsel and rejected the document as inadmissible in evidence.
The appellant company thereupon appealed to this Court against the said ruling on two grounds of appeal which read:-
1. The learned trial Judge erred in law when he held that the Agreement dated 27th day of October, 1975 between Edokpolo and Co. Ltd. and SEM Nigerian Holdings G.M.B.H. & Co. H.G. which was signed by both parties to the agreement is a counterpart and therefore secondary evidence as against the defendants who are not parties to the agreement and that proper foundation not having been laid by the plaintiff’s counsel before tendering the agreement, it is inadmissible.
PARTICULARS OF ERROR
1. Where an agreement has been executed in several parts with each part being signed by all the parties to the agreement,each part is primary evidence of the other.
2. It is unnecessary in law to lay any foundation before tendering documentary evidence as if it were a secondary documentary evidence.
2. The learned trial Judge erred in law in rejecting the said Agreement (described in ground 1 above) when he held as follows:-
“One of the ways in which proper foundation could be laid is by establishing the failure of the defendant to produce the original, having been duly served with the notice to produce under Ss.96(a) and 97 of the Evidence Act. Mr. Abudu counsel for the plaintiff submitted that they had once served the defendants with notice to produce, but could not say when and on who it was served. Record of the Court shows that the former counsel to the plaintiff, Mr. J. O. Obeahon served a notice to produce dated 28th February, 1980 as endorsement on Court file copy. “Counsel to counsel service” shows …..I therefore hold that the notice to produce is not availing to the plaintiff as it was not used as basis for the tendering of the Agreement. Objection the first ground is, I will hold, therefore well taken.”
1. Even if the document in question were secondary evidence, the Court ought not to shut its eyes to the Court’s record that notice to produce was issued and served on the Defendants’ counsel.
2. The laying of the foundation before tendering secondary evidence is to satisfy the Court that the provisions of the Evidence Act stipulating the conditions precedent to the tendering of such secondary evidence have been complied with.
3. The Court can be satisfied from either the unchallenged oral evidence of the witness or from the Court’s record.”
In accordance with the practice and procedure in this Court briefs of argument were filed and exchanged between the parties. In the appellant’s brief the following issues were set down as arising for determination in this appeal.
“1. Whether or not the Agreement dated 27th October, 1975 is a Counterpart in law.
2. Assuming that the Agreement referred to in 1. above is a counterpart, and it is necessary in law to lay proper foundation before it can be admitted in evidence, was the notice to produce issued on the respondents and to which the learned trial Judge adverted in his Ruling not proper or sufficient foundation for the purpose of its being received in evidence?
3. Whether or not the learned trial Judge was right to have ignored the notice to produce issued on the Respondents’ counsel on the ground that it was not used as a basis for tendering the document in question in this case i.e. the Agreement dated 27th October, 1975.”
The 1st to 3rd respondents filed a notice of preliminary objection to the effect that all the issues raised by the appellant in his first ground of appeal are incompetent. This preliminary objection which is also adopted by the 4th respondent necessitated the respondents including in their briefs the issue raised in the notice of preliminary objection. The appellant, for its part filed a reply brief relating principally to submissions on the preliminary objection. In my view, having regard to the preliminary objection and the grounds of appeal the questions for determination in this appeal are better set out in the brief of the 1st – 3rd respondents and I intend to adopt them in the consideration of my judgment. The questions are as set out hereunder, to wit:
“(i) Having not (either by their pleadings, or in their evidence, or in their counsel’s submissions) raised any issue in the lower court as to the admissibility of the Agreement dated 27/10/75 as primary evidence, (which proves itself by virtue of s.93(2) of the Evidence Act), is the Appellant entitled to raise that issue for the first time on appeal without leave to this Honourable Court first being sought and granted?
(ii) Even if such leave (to raise the issue referred to in (i) above) had ever been sought, (which it was not), could same properly have been granted by this Honourable court, bearing in mind the strict principles of law in operation in appellate courts that regulate the grant of leave to argue points not raised in the court below?
(iii) Since parties are bound by their pleadings, is the appellant entitled to argue in this court that the agreement dated 27.10.75 tendered and pleaded by them as a “Counter-part” is, in fact, not a “Counter-part”, but “primary evidence” of its original, which ought therefore have been received in evidence by the trial court as such “primary evidence”?
(iv) Having regard to the provisions of S. 94(d) of the Evidence Act, is the appellant’s contention that the Agreement dated 27.10.75 constitutes primary evidence as against the 1st-3rd respondents, (who did not execute the Agreement) sound?
(v) Recognition being had to the fact that the 1st 3rd respondents never executed the Agreement dated 27.10.75, and to the further fact that the said Agreement has not been admitted or proved to be in their possession, does the issue by the Appellant of “Notices to Produce” on them make secondary evidence of its contents admissible against them?
At the hearing of this appeal Mr. Kupolati for the appellant, adopted and relied on his brief and reply brief. He submitted that the question whether a particular document is a counterpart is a matter of law which need not be pleaded. He therefore urged the Court to ignore the fact that the document in issue in this appeal was pleaded as a counterpart in the appellant’s statement of claim. Learned Counsel further argued that the fact that the document was referred to in the statement of claim as a counterpart would not make it so unless it possesses the characteristic of a counterpart document in law.
In an apparent reaction to the preliminary objection raised by learned Counsel for the respondents Mr. Kupolati submitted that what is appealed against is the decision of the court below and not the submission of counsel. He referred to Uor & 2 others v. Loko (1988) 2 N.W.L.R. 430, 441 (Pt.77) and Fawehinmi v. Akilu (1987) 4 N.W.L. R. 797, 843 (Pt.67). He submitted that the appellant could argue before this Court that the disputed document was not a counterpart but a primary document even though this argument ran counter to the argument in the Court below. He cited in support SSNL. v. Eyuafe (1976) 9-10 S.C. 135, 145-156. Learned Counsel argued that when P.W.1 referred to the disputed document in his evidence as a counterpart, he was not competent to say this as it was a matter of law what document is a counterpart. He urged the court to hold that when P.W.1 spoke of counterpart in his evidence he was using colloquial language. Learned Counsel submitted that there is a great chasm between the word ‘counterpart’ as used in the sense of ordinary English expression and the same word as used in the sense of a technical legal usage. He concluded that the word as used in the first sense could never cross the chasm to the word as used in the second sense.
On the nature of the disputed document, learned Counsel referred to Section 93(2) of the Evidence Act as to the definition of primary documentary evidence and Section 93(3) which refers to a counterpart document. Learned Counsel then submitted that the disputed document is primary evidence under Section 93(2) and that it is relevant to the fact in issue in that it is relevant to declaration (1) sought in the writ of summons. Learned Counsel relied on Agunbiade v. Sasegbon (1968) N.M.L.R. 223,226 and Edokpolo & Co., Ltd. v. Sem-Edo Wire Ind. Ltd. (1984)7 S.C. 119, 124. Learned Counsel finally urged the court to allow the appeal and admit the document in evidence.
Mr. Aluko, learned Counsel for the 1st to 3rd respondents adopted and relied on his brief and the notice of preliminary objection. He urged the court to dismiss the appeal on the basis of that objection. He submitted that the disputed document has a character of secondary evidence as defined in Section 93(3) and Section 94(d) of the Evidence Act. He referred to paragraphs 7 and 11 of the statement of claim on pages 25 and 26 of the record of appeal and submitted that the disputed document is not crucial to appellant’s case. He urged the court to dismiss the appeal.
Mr. Mozia for the 4th respondent, adopted and relied on his brief. He submitted that even if the court holds that the disputed document is not a counterpart, it will still not be admissible because it is a carbon-copy as, by the pleadings of the appellant, the original was taken away by the German company. Learned Counsel submitted that the disputed document is not relevant having regard to paragraph 11 of the statement of claim. He further submitted that the respondents are not duty bound to produce the original on the notice to produce as the necessary foundation has not been laid. Learned Counsel observed that on appellant’s showing, the original of the disputed document is with the German company. He urged the court to dismiss the appeal.
I will start with questions (i)-(iii) taken together. When learned Counsel sought to tender in evidence through P.W.1, the disputed document, Mr. Mozia for the 4th respondent objected to its admissibility arguing:-
“This document is a copy. Although it is marked “Counterpart”, but a cursory look at the character of the types in the body and the written counterpart shows clearly that it is a copy not a counterpart. Being a copy, no sufficient foundation had been laid for its admissibility. Besides, this is an agreement between Edokpolo & Co. Ltd. and Sem Nigerian Holdings G.M.B.H. & Co. which is an alien party to this action. There is no nexus between this company and the parties in this case. Furthermore being an agreement it can only be received in evidence if it is stamped. There is no such stamp duty paid on this document. Fourthly, a document can only be properly executed if the seal of the company is affixed to the document and witnessed by a Director or the Secretary. That is the usual form. Urges that the document be rejected.”
Mr. Aluko, of counsel for the 1st-3rd respondents associated himself with the submissions of Mr. Mozia. Mr. Abudu, of counsel for the appellant submitted that the document was admissible. He went on to argue as follows:-
“As to the submission against affixing of the seal, refers to Sec. 126 Evidence Act. Since the document had been properly executed it is presumed that the seal had been affixed. The document being a counter-part is also admissible under S.93 of the Evidence Act. It is not for any party to say that a document is a counterpart. The Law itself provides for what a counterpart is. It is the Court that can decide whether a document is a copy or a counterpart whether “Counterpart” is typed or not would not make the document a counterpart unless the document itself is really a counterpart. The position of the defendants is that it has nothing to do with them. That position is synonymous with saying that if ever the document is admissible, it goes to no weight as far as they are concerned. They are, based on this representation estopped from denying that the document is admissible. Relies on S.150. On the stage of the pleadings the defendants know that the plaintiff is going to rely on this agreement. Besides, we have sent notice to produce to them. Confronted as to when the notice to produce was issued and on whom served, he could not remember and submits that if the court finds that there was no notice to produce, the state of the pleadings is such that the defendant should be aware that they would be required to produce the document – Relies on paragraphs 5, 6, 9, 11 and of the Amended Statement of Defence of the 1st – 3rd defendants Urges the Court to hold that under S. 97(b) of the Evidence Act, from the nature of the case, the defendants ought to know that they should produce the document as that is the crux of the whole case..”
Mr. Aluko, on point of law, submitted that “under Section 94(d) of the Evidence Act, the document is a secondary evidence which is not admissible in this case. It is a counterpart of a document not executed by any of the defendants. Refers also to S.130 which requires companies seal to be affixed in the presence of the directors or secretary. The learned trial Judge, in his ruling, summarised the submissions of learned Counsel in these words:
“Counsel for the 1st – 3rd defendants while associating himself with the objection raised by Counsel to the 4th defendant and the grounds pointed out that under S.94(b) of the Evidence Act the document is a secondary evidence which is not admissible in this case as there was no proper foundation laid for its admissibility. He finally refers to Section 130 of the Evidence Act which requires the seal of the Company to be affixed in the presence of a director or the Secretary.”
He considered the submissions made on each ground of objection. In respect of the first ground of objection, the learned Judge held that the document was a counter-part and as the respondents were not parties to it, it was secondary evidence. Perhaps it is better to set out this part of the ruling as it is relevant to the questions now under consideration. The learned Judge said:
“The first ground of objection is that the document is a copy notwithstanding that “counterpart” is written on top. It was submitted that comparison of the character of the typing on the body of the document with the “Counterpart” written at the top will show this. I do not accept this submission because the body of the document shows that it is an original and not a carbon copy. The counterpart written at the top is nothing but an affirmation of the true nature of the document. But as a counterpart is it admissible as primary evidence? Section 93 of the Evidence Act provides for what a primary evidence is while S.94 provides for secondary evidence. It reads:
94 – Secondary evidence includes
(d) Counterparts of documents as against the parties who did not execute them”
In this case, the defendants are not parties to the Agreement and as such they did not execute the Agreement. Thus, as far as they are concerned, the Agreement is a secondary evidence. It therefore cannot be tendered in evidence unless a proper foundation had been laid for the non-production of the original. This the plaintiff has failed to do in this case. One of the ways in which proper foundation could be laid is by establishing the failure of the defendant to produce the original, having been duly served with the notice to produce. Under Sections 96(a) and 97 of the Evidence Act, Mr. Abudu, counsel for the plaintiff submitted that they had once served the defendants with notice to produce, but could not say when and on whom it was served. Record of the Court shows that the former Counsel to the plaintiff, Mr. J. O. C. Obeahon served a notice to produce dated 28th February, 1980 on Counsel to the 2nd and 3rd defendants on 29th February, 1980, as endorsement on Court file copy, “Counsel to counsel service”, shows. There is also an application for subpoena to the Registrar of the Court dated 14th March, 1980and another to the Registrar of Companies dated 26th March, 1980. There is however no record that the subpoenas were served. This situations were not brought to the attention of the Court both before and after the tendering of the document had been sought and the objection thereto had been raised. I therefore hold that the notice to produce is not availing to the plaintiff as it was not used as basis for the tendering of the Agreement. Objection on the first ground is, I will hold, therefore well taken.”
The argument of learned Counsel for the appellant in the Court below was to the effect that the disputed document was a counterpart document. This is in line with paragraph 8 of the further amended statement of claim. Paragraphs 7 & 8 of the said further amended statement of claim read:-
“7. By Agreements dated 27th October, 1975 and 27th February, 1976, the plaintiff as the 1st party entered into agreements respectively with Sem Nigerian Holdings G.M.B.H. and Company, Hamburg, as the second party whereby they agreed to carry on business as Sem-Edo Wire Industries Limited.
8. By the said agreements the first party was to subscribe a maximum of 40% of the shares and the second party was to subscribe a maximum of 60% of the shares of the said Sem-Edo Wire Industries Limited. The original of the said agreement of 1975 was duly stamped and removed by the Foreign Partners Sem Nigerian Holdings G.M.B.H. whose Attorney is Solomon Asemota Esq. A counterpart of the said Agreement duly executed was also handed over to the Managing Director of the plaintiff Company. The said original Agreement or counterpart thereof will be relied upon at the trial.”
and the evidence of P.W.1 wherein when tendering the disputed document he said:
“This is the Counterpart of the Agreement.”
If the document was a counterpart it would be secondary evidence as between the appellant and the respondents since the latter were not parties to nor did they execute it – See: Section 94(d) Evidence Act. If, on the other hand, the document was a document executed in several parts, it being a part would be primary evidence – See: Section 93(2) of the Evidence Act, and, if relevant, would be admissible in evidence.
The learned trial Judge found it was a counterpart as contended before im by appellant’s counsel and not a copy as contended by respondents’ counsel. The appellant has now attacked this finding in its ground (1) of appeal. It is this new stand that has sparked the preliminary objection now raised by the respondents. Learned Counsel had argued in their briefs (1) that appellant could not raise a fresh issue in this Court without the leave of this Court; (2) that even if such leave was sought it could not be granted having regard to the strict principles regulating the grant of such leave and (3) that as the appellant pleaded the document as a counterpart, he is not now entitled to argue that it is primary evidence. It was forcefully argued’ in the respondents briefs that Mr. Abudu, for the appellant in the court below, having argued that the disputed document was a counterpart, appellant’s counsel in this Court is not now entitled to put forward what they (by way of a afterthought) may well consider to be a more fashionable or attractive argument for its admissibility, predicated upon S. 93(2) of the Evidence Act.” (See p.7 of 1st-3rd respondents’ Brief). Learned Counsel for the 4th Respondent had, in his brief, argued thus:
“Therefore, in the pleadings, evidence and submissions of Counsel, the appellant consistently maintained that the copy of the Agreement in question is a Counterpart. It was also on that premise that the Judge of the lower court considered and expressed his opinion on the issue of its admissibility as stated in his ruling appealed against.”
Later in the brief, learned counsel had argued further:
“Contrary to the views canvassed in the appellants Issue Number 1 which flows directly from its first ground of Appeal, the rejected document was not tendered as an original or a copy thereof and its admissibility was consequently not considered on that basis. There was also no evidence led to show that “the agreement was made unto several parts. Each party held one but only one part thereof was stamped and sealed by the parties” as alleged by the appellant in its brief.”
Reliance is placed on the Supreme Court decisions in Uor & Ors. v. Loko (1988) 2 N.W.L.R. 430, 441 (Pt.77); Yoye vs. Olubode & 4 Ors (1974) 10 S.C. 209, 215; Ogunade & 3 Ors. v. Ogunade (1965) N.M.L.R. 136, 138/9 and Djukpan v. Orovuyovbe & Anor. (1967) 1 All N.L.R. 134, 136-139. Reliance is also placed on Order 6, rule 3(a) of the Rules of this Court which provides:
“The brief, which may be settled by counsel, shall contain an address or addresses for service and shall contain what are, in the appellant’s view, the issues arising in the appeal as well as any points taken in the court below which the appellant wishes to abandon and any point not taken in the court which he intends to seek leave of the court to argue at the hearing of the appeal.”
It is also contended by the Ist-3rd respondents’ counsel that, as there was no evidence on record that the agreement sought to be tendered in evidence was made in several parts, that each party to the agreement held one, that only one part thereof was stamped and sealed by the parties, that no exchange of the agreement was involved, or that the several parts in their executed forms were held by each of the parties, and never later delivered or exchanged, additional evidence would be needed to be called in this Court by the appellant to establish these points. In such a situation, argued learned counsel. In the brief, leave to raise such points on appeal would never be granted. The following cases are cited in support: Dweye v. Iyomahan & 3 Ors. (1983) 8 S.C. 76; Mogaji v. Cadbury (1985) 7 S.C.S9, 88; Akpene v. Barclays Bank (1977) 1 S.C. 47.
Learned Counsel further submitted in the brief that no special or exceptional circumstances had been shown why ground (1), of the grounds of appeal should be allowed, nor did it disclose a substantial point of law, and that the justice of the circumstances would have dictated that leave to argue the ground be refused. Learned Counsel relied on Abinabina v. Enyimadu, 12. W.A.C.A. 171and Ejiofodomi v. Okonkwo (1982) 11 S.C. 74, in support of these further submissions.
Lastly, on this point, learned Counsel for the 1st-3rd respondents, in his brief, submitted that the new argument being raised by appellant’s counsel in this court would be a departure from the case set up in appellant’s pleadings and P.W.1’s evidence to the effect that the disputed document was a counterpart; it is not the practice of the courts to permit a party to set up, either in the trial court or in the appellate court, a case different from his pleadings. Counsel cited Nkanu v. Orun (1977) 5 S.C. 13, 22; George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All N.L.R. 73, 77; Amida v. Oshoboja (1984) 7 S.C. 68, 88& 107 and Enang v. Adu (1981) 11-12 S.C. 25. Mr. Kupolati, for the appellant, in reply to respondents’ counsel’s submissions on the preliminary objection to ground (1) of the grounds of appeal, submitted, in his brief, as follows:-
1. Where a party to any proceeding or his counsel describes a document or transaction either in the pleadings or addresses in such a manner as to suggest that such document or transaction carries a known legal quality and, in substance, such description or expressed epithet was no more used than in a colloquial or ordinary sense and it was clear that such document or transaction carries no such known legal quality, the mere use of such description or expressed epithet cannot and will never confer such known legal quality on such document or transaction.
2. That the trial Judge has a great, sacred responsibility to make legal conclusion as to the legal nature of the document tendered for the purpose of its being admitted. The trial Judge is never bound and must never be bound to hold that because a party to a proceeding has used a certain expression to define or qualify a document, he is equally obligated to use and hold that such document is what it has been described to be without attempting to find if such document possesses the appropriate legal features arrogated to it.
He relies on the dictum of Eso, J.S.C. in Fawehinmi v. Akilu & Anor. (1987) 4 N.W.L.R. 797, 843 (Pt.67) in support.
3. That the mere fact that the appellant and his counsel have described the Agreement of 27th October, 1975 as a counterpart in the Statemnet of Claim, oral evidence and addresses at the court of trial did not excuse the trial Judge from appropriately finding whether or not the said Agreement is a Counterpart in law.
4. That there is a great chasm between a Counterpart used in the sense of ordinary English expression and a counterpart document used in the sense of technical legal usage. The counterpart document in the first sense can never cross the chasm between it and a Counterpart document used in the second sense.
5. That by every sound sense of the law, no sheer label or attachment of an emblem can ever enhance the legal quality or legal advantage of any document which by relevant legal usage or understanding does not belong to any such defined legal category and that, therefore it is of first necessity for the trial judge to have found whether or not the Agreement dated 27th October, 1978 is a counterpart document in law and further that the fact that the appellant used the expression counterpart did not excuse him from that duty.
6. That the legal position is that the subject-matter of the present appeal and indeed of the Ruling of the court below is the admissibility or otherwise of the Agreement dated 27th October, 1975; and in respect of which the learned trial judge reached a conclusion of law. The trial judge ruled that the said Agreement was inadmissible being a counterpart. This is a conclusion of law. And the vortex of this appeal.
7. That an appellant who desires that the decision refusing that the Agreement in question be admitted to set aside is entitled to canvass all legal arguments including those not canvassed in the trial court in order to persuade the Court of Appeal in setting aside the trial Court’s decision. Learned counsel cites, in support, Misa v. Currie (1875 – 76) 1 AC 554, 559; Banbury v. Bank of Montreal (1978) AC 626.
8. That Uor & Ors v. Loko (supra) relied on by respondents’ countersel is distinguishable from the present appeal on hand in that in the former case appellants sought to rely at the Supreme Court, on the Land Use Act, 1978, a point never taken in all the three courts below but in the instant appeal, no new point of law is being raised; all that the appellant seeks to do is to raise new legal arguments of which he is perfectly permitted in law to do. He relies on Misa v. Currie.
9. That the expression “grounds not canvassed in the Court below” as used in Uor v. Loko must be confined to Grounds of Appeal and must not be extended to new legal arguments put forward in the Court of Appeal in respect of the matter before the trial court and which incidentally is the subject matter of an Appeal i.e. the admissibility or otherwise of the Agreement dated 27th October, 1975 in this case. Otherwise, a strange foreclosure of the right to have legal arguments fairly submitted for the purpose of achieving justice would emerge.
10. That estoppel is an equitable relief and the factual circumstances necessary for the application of this equitable remedy must be clear. The right of address by counsel is a legal right. And this legal right can only be limited by the scope of the subject-matter of an action. In this case, all the arguments submitted in the appellant’s Brief are all pinned on the admissibility of the Agreement of 27th October, 1975. It will therefore be preposterous to suggest that the appellant’s counsel is estopped by his failure to put forward these legal arguments in the trial court from putting them forward in the Court of Appeal. Counsel cites the case of S.S.NL v. Eyuafe (1976) 9-10 S.C- 135, 155-156.
11. That the Law has always fixed itself to the principle that parties to a proceeding ought never to plead points of law in their pleadings. Where, therefore, the plaintiff/appellant herein has pleaded that the document in question in this case was a counter-part, a point of law, the trial Judge ought to have discountenanced the point of law expressed on the pleading. And proceeded to make a legal finding thereon.
12. That error in description of any material or document in the pleading of any party to any proceeding is not to occasion necessarily the failure of such case. The rationale is that the law looks at the substance rather than the form. A document misdescribed or wrongly described as such will qualify or be regarded to be what it purports to be only if it contains the requisite legal characteristics
Having set above the submissions made by learned Counsel on the preliminary objection. I now proceed to consider the issues raised. It is not in dispute –
(a) that what was pleaded in paragraphs 7 & 8 of the further amended statement of claim are the Agreements dated 17th October, 1975 and 27th February, 1976 made between the appellant company and the German company whereby 1st respondent company asset up.
(b) that in paragraph 8, the copy 01 the Agreement dated 17th October, 1975 in the possession of the appellant company was described as a “Counterpart”
(c) that in tendering the appellant company’s copy of the Agreement dated 17th October, 1975, P.W.1 (Bishop Edokpolo) described it as Counterpart.”
(d) that Mr. Abudu for the plaintiff, in his address on the objection raised by defence counsel to the admissibility of the document, also described it as a “counterpart.”
(e) that the learned trial Judge found, in his ruling, that the document, was a counterpart and rejected it in evidence because, as against the respondents who were not parties to it, it was secondary evidence and proper foundation had not been laid for its admissibility. It is thus clear that the basis upon which learned Counsel for the appellant argued for the admissibility of the disputed document in the court below is that it was a counterpart. Can learned Counsel now contend in this Court, without leave, that the document is, in law, not a counterpart but a part of a document executed in several parts?
In Djukpan v. Orovuyovbe & Anor, (supra), the question arose whether the appellant could be allowed to argue some grounds of appeal he sought leave to argue before the Supreme Court. Counsel for the respondents had objected to the grounds being argued for the reason that they were either never raised in either of the appeals to the Court below or at any rate they were not argued on appeal to the Warri High Court. The Supreme Court, per Lewis, J.S.C., said on the point:
“We agree with Dr. Odje that this Court has a discretion whether to allow grounds of appeal to be argued which had not been argued in the High Court, but in our view when this is the position the burden is on the appellant to satisfy us that there will be no injustice by allowing them to be argued here on the material before us. If there are special circumstances and they involve substantial points of law then as the Privy Council did in Abinabina v. Enyimadu 12 W.A.C.A. 171 leave may be granted or as in the Commissioner of Lands v. Arah 14 W.A.C.A. 510 where the new points sought to be raised went to the existence of the action then leave may be granted.”
The Court approved the practice as set out in the dictum of Lord Hodson in United Marketing Co. v. Kara (1963) 1 W.L.R. 523, 524 PC wherein the learned and noble Lord said:
“Their Lordships are of opinion that the appellants should not be allowed to take this point at this stage. In the first place, the point could have been met by evidence that if the claim had been made against the company under a subsisting policy the company would not rely on the breach of the condition or possibly by some other evidence. Their Lordships would not depart from their practice of refusing to allow a point not taken before to be argued unless satisfied that the evidence upon which they are asked to decide establishes beyond doubt that the facts, if fully investigated, would have supported the new plea: Connecticut Fire Insurance Co. v. Kavanagh (1892) A.C. 473, 480; and Archambault v. Archambault (1902) A.C. 575.
Even if the facts were beyond dispute and no further investigation of fact were required, their Lordships would not readily allow afresh point of law to be argued without the benefit of the judgments of the Judges in the court below. In this case the appellants have relied in support of their submission that there was a breach of condition on two South African cases, Lewis Ltd. v. Norwich Union Fire Insurance Co. Ltd. (1916) S.A.L.R., App.D. 509 and Sacks v. Western Assurance Co. (1907) Tr.H.C. 257 which on similar facts support their submission, but their Lordships are not prepared to say that the point is too plain for argument to be required upon it. The arguments and judgments in these two cases indicate that at any rate in the United States of America there are conflicting decisions on this topic, and no direct authority in this country was available so far as the researches of the appellants were able to show. Accordingly, their Lordships, would not, even if the question were a bare question of law, entertain the submission that the respondent’s claim is to be defeated by reason of his breach of a condition of his contract of insurance with the Jubilee Co., and they would follow the guidance given by Lord Birkenhead, L.C. in North Staffordshire Railway Co. v. Edge (1920) A.C. 254, 263. When he said, “The efficiency and the authority of a Court of Appeal, and especially of a final Court of Appeal, are increased and strengthened by the opinions of learned Judges who have considered these matters below. To acquiesce in such an attempt as the appellants have made in this case is in effect to undertake decisions which may be of the highest importance without having received any assistance at all from the Judges in the courts below.’ The Lord Chancellor went on to say that there might be very exceptional cases where new matters might be considered, but their Lordships do not regard this case as requiring such exceptional treatment.” (Italics mine)
The Court concluded on the point at page 138 thus:
“Moreover, there may, for instance, be cases where subsequent decisions of this Court are contrary to what was decided in the High Court so that they were not known at the time in that court or there may be special circumstances where the lower court is bound by a decision, when the higher court is not, which would warrant leave being granted though even then in the latter instance it is desirable for the point to be taken at the earliest opportunity even if it has in fact then only to be reserved for argument in a later appellate court.”
In Abinabina v. Enyimadu, 12 W.A.C.A. 171, 173 referred to in the judgment of the Supreme Court, the Privy Council, per Lord Cohen, had said:
“From this decision the appellants appealed to her Majesty in Council. Mr. Dingle Foot, on their behalf, attacked the judgments in the West African Courts on two grounds:-
(1) That the tria1 Judge was wrong in holding that sufficient and frequent positive and numerous acts within living memory were necessary to establish title and, inferentially, that such title could not be supported by traditional evidence alone; and
(2) that the trial Judge was not justified in finding that the plaintiff was lying on the ground of discrepancies between his evidence at the trial in September, 1946, and evidence given (a) by him at the abortive trial in May, 1946, and (b) by his predecessor in title in the 1902 action.
Neither of these points was taken in the West African Courts. They could not, of course, have been taken before Jackson, J., since they only emerged from his judgment. They could have been taken before the West African Court of Appeal but their Lordships consider that as they involve substantial points of law, substantive or procedural, and it is plain that no further evidence could have been adduced which would affect the decision of them, the appellants should be allowed to raise them before this Board.”
I now come to the latest decision on the point. In Uor v. Loko (1988) 2 N.W.L.R. (Pt.77) 430, Wali, J.S.C. delivering the lead judgment of the Supreme Court said, at page 437:
“It is now firmly established through many decided cases that no substantial point that has not been taken and argued in the courts below will be allowed to be raised for the first time before this court except special circumstances are shown -See Ejiofodomi v. Okonkwo (1982) II S.C. 74 at 93-98; Djukpan v. Orovuyovbe (1967) 1 All N.L.R. 134; Abinabina v. Enyimadu 12 W.A.C.A.171 and John Ikinbor Dweye & 2 Ors. v. Joseph Iyomahan & 3 Ors. (1983) 8 S.C. 76. It is not in dispute that the issue of the applicability of Section 36 of the Land Use Act. 1978 was not raised either in the trial court or in any of the courts below. The parties fought the case all through on question of ownership according to the customary law applicable in the area. The evidence adduced in the trial court was evaluated and findings of fact were made in favour of the Respondent which were subsequently confirmed by both the High Court,Benue State and the Court of Appeal, Jos Division.”
After referring to United Marketing v. Kara (supra) the learned Justice went on to say, at page 438:
“A point not taken in the trial court but raised for the first time in the Court of Appeal should be most jealously guarded. At the discretion of the Court, a party may be debarred from raising a point which was not raised in the trial court or in the courts below. To allow the Appellants at this stage to raise the issue of applicability of the Land Use Act, will be tantamount to affording them an opportunity of arguing a case inconsistent with and contradictory to the case previously argued, even though the evidence in the trial court may support the new issue raised – Ex parte Reddish. In re Walton (1887) 5 Ch.D. 882. Also in Ejiofodomi v. Okonkwo (1982) II S.C. 74, deliberating on the same issue, Aniagolu, J.S.C., said at pages 96 and 97 –
“I am in no doubt whatever that this Court possesses unfettered discretion to allow or refuse to be argued a point of law. on appeal, not raised in the court below and that in so far as one can call it a feller, the only inhibition is that the discretion has to be exercised in accordance with principles and practice laid down by law an/or recognised by judicial precedents.
x x x x x x x x x x x x x x x x x x x x x x x x
x x x x x x x x x x x x x x x x x x x x x x x x
An appellant’s right of appeal as of right does not confer on him an unlimited right to argue any ground of appeal filed in exercise of that right. This Court has the discretion, and indeed, the duty, to refuse an Appellant leave, where the justice of the circumstances so dictates, to argue a ground of appeal filed.”
For these reasons, I am of the opinion that the appellants have failed to show any special circumstance why their application should be granted. It is therefore refused.”
Obaseki. J.S.C. in his own contribution, said at pages 439 – 440:
“In appeal to this Court, i.e. the Supreme Court, an Appellant cannot, as of right, raise new points which were not taken before the court or courts below without leave of this Court. See Order 6, rule 5(1) Rules of the Supreme Court 1985. He must seek the leave of this Court and satisfy this Court on the facts and the law that he is entitled to the leave before this Court can exercise its discretion in his favour, the paramount consideration being the interest of justice. There is a long line of judicial authority on this law and practice. See:
Abinabina v. Enyimade 12 W.A.C.A. 171 at 173
Djukpan v. Orovuyovbe (1967) 1 All N.L.R. 134 at 137
Akpene v. Barclays Bank of Nigeria (1977) 1 S.C. 47
Fadiora v. Gbadebo (1978) 3 S.C. 219 at 248
Ejiofodomi v. Okonkwo (1982) 11 S.C. 74 at 93
John Ikinbo Dweye & 2 Ors. v. Joseph Iyomahan & 3 Ors. (1983) 8 S.C. 76
Mogaji & Ors. v. Cadbury Nigeria Ltd. (1985) 7 S.C. 59 at 88.
Where the new points will give a totally different character to the case put forward by the appellant in the courts below, leave will be refused as this court will not allow an appellant to put forward a different case in each court and more so where the new points involve the calling of additional evidence: See John Ikinbo Dweye & 2 Ors. v. Joseph Iyomahan & 3 Ors. (supra); Mogaji & Ors. v. Cadbury Nigeria Ltd. & Ors. (supra)
The points the Appellant now seeks to raise were not taken in the area Court; they were not taken in the High Court; and they were not taken in the Court of Appeal. The issues that will be raised by these points can only be resolved by additional evidence. Where issues that arise from the new points cannot be resolved without additional evidence the application for leave must be refused.”
And Karibi-Whyte, J.S.C., in his own judgment at pages 440-441 said:
“This Court has stated it clearly in many cases that a point of law taken for the first time in this Court will not easily be considered unless such point of law is substantial and special circumstances are shown – See Abinabina v. Enyimadu 12 W.A.C.A. 171; Ejiofodomi v. Okonkwo (1982) 11 S.C. 74; Dweye & Ors. Iyomahan & Ors. (1983) 8 S.C. 76; Awote v. Owodunni (1986) 5 N.W.L.R. (Pt46) 941.
Mr. Babalakin, for the applicant has conceded that the point has been raised for first time in this court, but contends that since no fresh evidence was required, no prejudice would be done to the respondents. This cannot be true as it is essential to adduce the crucial evidence required to bring the applicant within the facts necessary in deciding the appeal on the provisions of section 36 of the Land Use Act. For instance applicants must establish that at the commencement of the Land Use Act; they were in occupation of the land in dispute for agricultural purposes.
An appeal is against the judgment of the Court below and a challenge of its correctness on the grounds of law, mixed law and facts or on facts simpliciter as the case may be. Before a pronouncement can be properly made on the judgment on any of these grounds, Appellant must show in the judgment sought to be reversed that the views expressed by the Court below is wrong. It is only on such consideration that an appellate court can examine in the light of the grounds of appeal whether the judgment appealed from is wrong or right. The appellate court is entitled to have the benefit of the opinions of the Judges in the judgments of the court below. It is the opinion appealed against, which is affirmed or reversed. Hence without the benefit of such opinion an appellate court will be extremely reluctant to interfere. Indeed any judgment of an appellate court founded on grounds not canvassed in the court below and not adverted to and pronounced upon in the judgment appealed against ideally is not an appeal against such a judgment. Since an appellant’s right of appeal is circumscribed within the parameters of the judgment appealed against, this court will not lightly permit impugning the judgment on grounds of error other than are contained therein.”
Finally, Nnaemeka-Agu, J.S.C. had this to say at pages 442-443:
“The question is whether, in the above circumstances, leave should be granted to raise the ground now. In my opinion, it should not be granted, for a variety of reasons. In the first place, the Appellants ought not be allowed to jettison in this Court the case they had pursued in the three lower courts, to wit: that they were the owners in possession of the land in dispute and now base their case on the fact that they are occupiers of the land for agricultural purposes. See Ejiofodomi v. Okonkwo (1982) 11 S.C. 74, at p.116. The learned Senior Advocate for the respondent was right therefore when he contended that to grant the application is to allow the Appellants to change the basis on which their case had been fought all through. Secondly, it is an invariable rule that an appellate court will not allow a point not taken in the court below to be taken before it on appeal unless it is satisfied that the evidence upon which it is required to decide the point is on record; that such evidence on record is sufficient to sustain the new point; and that the respondent could not have called evidence in rebuttal if the point were raised in time. See Akpene v. Barclays Bank of Nigeria Ltd. & Anor. (1977) 1 S.C. 47; Shonekan v. Smith (1964) All N.L.R. 168, at p.173. In the instant case not only did the Appellants need to call evidence to establish the right under which they were in occupation of the land, but also, under Section 36 of the Land Use Act, 1978, upon which they rely, they had to establish that at the commencement of the Act on March, 29th, 1978, it was being used for agricultural purposes on a right which would have entitled them to a customary right of occupancy. All this evidence is lacking in this case. Thirdly even if the facts upon which the point could be raised are beyond dispute, – but as I have held the factual bases are lacking – I would still have hesitated to grant leave because of the unexplored nature of many issues connected with the Land Use Act, including the real implications of section 36 thereof. I would have preferred to have first the benefit of the opinions of the lower courts on the point: See Debesi Djukpan v. Rhorhadjor Orovuyovbe & Anor. (1967) 1 All N.L.R. 134, at pp.137-8. I say so bearing in mind the opinion of Lord Birkenhead, L. C., in the case of North Staffordshire Railway Co. v. Edge (1920) A.C. 254, where he said at p.263:
“The Appellate system in this country is conducted in relation to certain well-known principles and by familiar methods….In the course of the argument it is the invariable practice of appellate tribunals to require that the judgments of the Judges in the courts below be read. The efficiency and the authority of the Court of Appeal, and especially of the final Court of Appeal, are increased and strengthened by the opinions of learned Judges who have considered these matters below. To acquiesce in such an attempt as the Appellants have made in this case is in effect to undertake decisions which may be of the highest importance without having received any assistance at all from the Judges of the Courts below.”
So I should say in this case. So, even though in certain circum stances which have been carefully outlined in Akpene’s case (supra) new points not taken in the court or courts below may be entertained in this Court, yet I have come to the conclusion that, for the reasons given above, this is not a proper case to grant such leave.”
It is manifest from all these authorities that a party will not be allowed to raise on appeal any fresh point not raised in the court below unless with leave of the appellate court which leave will only be granted subject to special circumstances being shown and where fresh evidence will not be necessary to be adduced before the fresh point can be raised. It is the contention of learned Counsel for the respondents that the ground (1) sought to be argued in the instant appeal falls within this rule of practice and as leave of this Court has not been sought and obtained and as fresh evidence would have to be led to show that the Agreement of 17th October, 1975 was executed in parts of which the disputed document is a part, it could not be argued. Learned Counsel for the appellant, on the other hand, had sought to show that the issue arising in this appeal was distinguishable from the facts in Uor v. Loko (supra). He submitted that unlike in Uor v. Loko, no new point of law was being raised. All that the appellant seeks to do, argues Mr. Kupolati, is to raise new legal arguments. Learned Counsel relies on three legal authorities which I shall examine presently.
In Misa v. Currie (supra) the question was whether appellant could raise in the House of Lords argument in the nature of a document then in dispute, different from the argument raised in the Court of Exchequer and before Judges of the Exchequer Chamber. The House, in limine, allowed the argument to proceed. The ruling of the House on it is at p. 559 of the Report and it is rather short. It reads:
“As this was a point which had not been argued in the Court below, the objection was taken that it could not be introduced here. But it was answered that no new matter was proposed to be now introduced into the case, that the objection arose upon matter which was before the Court below, though this particular argument upon that matter was not there presented for consideration, and that consequently it might properly be discussed here; and the cases of Withy v. Mangles (1), Basi v. Whitehaven Railway Company (2), Marquis of Bristol v. Robsinson (3), and Fitzmaurice v. Bayley (4), were referred to. The argument was allowed to proceed.”
I now come to another House of Lords case – Banbury v. Bank of Montreal (1918) A.C. 626. In this case, the House by a majority of 3 to 2, held that the omission of the defendant in a jury action to ask the trial Judge to non-suit the plaintiff or to direct a verdict for the defendant on the ground that there was no evidence upon which the jury could reasonably find for the plaintiff does not preclude the Court of Appeal on a motion for a new trial from entertaining the question of no evidence. Lord Finlay, L. C. in a powerful dissenting judgment (to which Lord Shaw of Dunfermline agreed) said at pages 658 – 659:
“The one point on which he made reservation, while admitting that the claim for negligence in advising may have to go to the jury, is obviously the point as to Lord Tenterden’s Act, so that not merely was there an entire omission to raise the point now sought to be made, but there was an admission that, subject to the question of Lord Tenterden’s Act, the question of negligence might have to go to the jury. Your Lordships have to deal not merely with the failure to raise the point now made, but with the express admission to which I have just called attention. But in truth the conduct of a case speaks as clearly as words. The question is not one of any technicality, but of consistency between the line taken at the trial and that in the Court of Appeal. The position of the respondents upon this point seems to he as hopeless as that of a defendant who at the trial, in the belief it might help him to get a verdict, stated that he did not raise any objection in point of law to the sufficiency of the evidence, and wished to take the opinion of the jury, and then tried to argue in the Court of Appeal that he should have judgment as the evidence was not sufficient in law.”
In the course of his judgment, the Lord Chancellor referred with approval to Graham Y. Huddersfield Corporation 12 Times, L.R. 36, 37 where a contractor brought an action against the corporation to recover payment for sewerage works done. Although the plaintiff had not received any certificate under the contract, the jury never-the-less gave him a verdict on an alleged parol contract with the health committee on behalf of the corporation. After the verdict counsel for the corporation moved the trial Judge that judgment should be entered for them on the grounds that the contract was not under seal, and therefore not binding on the corporation, and that under section 200 of the Public Health Act, 1875, the committee had no power to bind the corporation by any such contract. The trial Judge refused the application on the ground that the point had not been taken before the verdict. The corporation appealed to the Court of Appeal (Lord Esher, M.R. Lopes and Kay, L.J.J.). Lord Esher, in his judgment, said:
“…that the objection that the defendants had taken their point too late must prevail. Whether they could have waived the point before they came into Court it was not necessary to determine. But they had waived the point in Court during the trial by allowing the case to proceed till verdict on the basis that the only issue was whether there had been a promise in fact to pay for this work. In his opinion it was not open to them to take the point now, and the application must be dismissed.”
The majority decision of Lords Atkinson, Parker of Waddington and Wrenbury dealt more with the interpretation of various rules of Court, although they did also hold, and I agree with them, that the rule under consideration in the instant appeal is a rule of practice relating to the appellate court’s discretion rather than to its jurisdiction. Lord Parker said at pages 705-706 thus:-
“My Lords, the above considerations would be sufficient to dispose of the main question which arises on this appeal but for a preliminary point taken and pressed by counsel for the appellant. It was contended that, inasmuch as the matter was left no the jury without objection on behalf of the respondent bank, it was not open to the Court of Appeal to inquire whether there was evidence which could justify the jury, as reasonable men, in finding as they did. This contention does not appear to have been raised in the Court of Appeal. The fact that the respondent bank had not objected to the matter being left to the jury was no doubt mentioned but rather as showing that there must have been evidence for the jury to consider than as excluding the jurisdiction of the Court. It would perhaps be enough to say that the point, not having been taken in the Court of Appeal, must be treated as waived and is not open before your Lordships’ House. But in my opinion the point, if taken in the Court of Appeal, must have been overruled. There are no doubt cases in which the Court of Appeal have refused to allow points of law not taken in the Court of first instance to be raised on appeal. But those cases do not go to jurisdiction, but to discretion. It may be that if a point of law had been taken below further evidence would have been adduced, or a further or different question left to the jury. In such cases it would be manifestly unfair and unjust to allow the point to be raised for the first time in the Court of Appeal. In the present case there is no such element of unfairness or injustice. It is not suggested that had the point been taken below any further evidence could have been adduced, or any further or different question left to the jury. Why, then, should not the Court of Appeal have felt itself at liberty to do complete justice between the parties on the evidence before them? I can see no reason at all. It was suggested that, having regard to the nature of the point of law in this particular case, the old nisi prius procedure was of some materiality, and showed that the point, if taken at all, must be taken at the trial. I cannot agree. The difference between there being no evidence to go to the jury and the jury’s verdict being against the weight of evidence was no doubt of more importance then than it is now. It may be that the former point had to be taken by asking a direction from the trial Judge, but clearly the latter point could not be taken at the trial. It could only be raised on motion for a new trial. It must, therefore, have always been open in the Court which had jurisdiction to grant a new trial. That Court is now the court of Appeal. But the Court of Appeal have certain further powers under the Rules of the Supreme Court, Order LVIII. Instead of granting a new trial, they can, in a proper case, direct judgment to be entered for the defendant. They ought, in my opinion, to exercise this power whenever such a course will, in their opinion, do complete justice between the parties-for example, when they have all the available evidence before them, and there is no chance of a new trial bringing to light other material facts. It appears to me that this is precisely that case. See Millar v. Toulmin. (1)” (Italics mine)
The third case to which our attention was drawn by appellant’s counsel is Seismograph Services (Nigeria) Ltd. v. Chief Eyuafe (1976) 9-10 S.C. 135, 154-156; (1976) 1 F.N.R. 162, 170. The Supreme Court cited with approval Misa v. Currie and Banbury v. Bank of Montreal. Idigbe, J.S.C. delivering the judgment of the Court had this to say:-
“With reference to the contention of counsel to the respondent that the appellants cannot now take a point which was not taken by them in the court below, meaning, of course, that appellants cannot now raise any argument outside the issue relating to the quantum of damages, his contention stems from his erroneous view that on the face of Exhibits C and E there was enough evidence to justify the findings of the trial court. We consider this contention erroneous for although it was open to counsel in the lower court to contend that there was not enough evidence to support the claim of the respondent (or that there was not enough evidence to go to the jury), it is always open to him to contend in this court that the overall evidence before the lower court does not justify the findings of that court. Put in another way, the court of Appeal will not normally allow a party to raise for the first time a point which was not taken in the court below but it will certainly allow a party to put forward a new argument on a matter which was, or upon facts which were, before the court below. (See Manuel Misa vs Raikos Currie and Others: (House of Lords) – (1876) App. case 554 at 559) and also Banbury vs. Bank of Montreal (1918) A.C. 626 H. L. (in which case judgment was entered for the defendant on the ground that there was no evidence to support the finding of the jury, although the point was not taken at the trial). It is, we think, desirable and relevant to refer to parts of the speech of Lord Parker of Waddington in Banbury’s case (supra) and they read:-
“My Lords the above consideration would be sufficient to dispose of the main question which arises in this appeal but for a preliminary point taken and pressed by counsel for the appellant. It was contended that in as much as the matter was left to the jury without objection on behalf of the respondent bank, it was not open to the Court of Appeal to inquire whether there was evidence which could justify the jury, as reasonable men, in finding as they did……. There are no doubt cases in which the Court of Appeal have refused to allow points of law not taken in the court of first instance to be raised on appeal. But these cases do not go to jurisdiction, but to discretion…… The difference between there being no evidence to go to the jury and the jury’s verdict being against the weight of evidence was no doubt of more importance then (i.e. at the trial) than it is now. It may that the former point had to be taken by asking a direction from the trial Judge, but clearly the latter point could not be taken at the trial. It must, therefore, have always been open in the court which had jurisdiction to grant a new trial. That Court is now the Court of Appeal…”
(brackets and Italics supplied)
(See Banbury vs Bank of Montreal (1918) A.C. 626 at 705-706).
There is therefore no doubt that the point now taken by the appellants can, in the circumstances and upon the facts of this case, properly be raised in this court.”
After a careful reading of the case of Banbury v. Bank of Montreal and S.S.N.L. v. Chief Eyuafe. I am of the view that those cases are not apposite to the instant appeal. In those cases the question that arose was whether there was evidence to support the trial court’s verdict of whether the decision appealed against was against the weight of evidence. But in the appeal on hand what the appellant now seeks to do is to take a position inconsistent with its earlier position in the court below. In that court, the basis upon which it fought the admissibility of the disputed document was that that document was a counterpart. This stand was in line with its pleading and the evidence of P.W.1. But in this Court, it now attempts to shift its position by adopting the line that the disputed document is a part of a document executed in several parts and, therefore, admissible as primary evidence. This was not the issue before the Court below and on which the learned trial Judge pronounced. The weight of judicial opinion both in this Country and in England, seems to favour the principle laid down in such cases as Uor v. Loko. No leave has been sought in this Court as required by the authorities of Uor v. Loko (supra) and similar cases, to take this new line. And there being no leave obtained I agree with learned counsel for the respondents that ground (1) is incompetent and it is accordingly struck out by me. This disposes of the preliminary objection.
Finally on ground (1), I need point out that it is doubtful if the appellant could be heard to complain on that ground. Both by its pleadings, the evidence of its witness and the submission of its learned Counsel in the Court below, it was appellant’s case the disputed document was a counterpart. The defence contended to the contrary. The learned trial Judge found for the appellant on the nature of the document, although on the state of the law – the Evidence Act, he rejected it in evidence. Can the appellant now be heard to argue that the learned trial Judge erred in law when he held that the Agreement dated 27th day of October, 1975 between Edokpolo and Co. Ltd. and SEM Nigerian Holdings G.M.B.H. & Co. H. G. (that is the disputed document) which was signed by both parties to the agreement is a counterpart……..” (brackets mine). Surely the appellant cannot be an aggrieved party in respect of that finding. Indeed, going by the particulars of error, the ground is an attack on the learned Judge’s finding on the nature of the document.
As this point was not taken before us, I say no more on it. I shall now proceed to question (4). If, as contended by the appellant in the court below and as found by the learned trial Judge, the disputed document was a counterpart, on the state of the pleadings and evidence of P. W.1 the document would not be primary evidence as against the respondents as none of them has been shown to execute same. Section 94(d) of the Evidence Act provides –
“94. Secondary evidence includes-
(a) x x x x x x x x x x x x x x x x x x x x x x x x
(b) x x x x x x x x x x x x x x x x x x x x x x x x
(c) x x x x x x x x x x x x x x x x x x x x x x x x
(d) x x x x x x x x x x x x x x x x x x x x x x x x
(e) x x x x x x x x x x x x x x x x x x x x x x x x
I now turn to question (5). It is contended by appellant’s counsel that as notices to produce the original of the disputed document were served on the respondents the appellant was entitled to produce the document in evidence on the respondents’ failure to produce the original at the trial. I have considered the submissions made by appellant’s counsel in his brief. With the utmost respect, I cannot accept the contention that service of notice to produce on any or all of the respondents satisfies the requirements of the law.
Sections 96(1)(a) and 97 of the Evidence Act provide:
“96.(1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(a) When the original is shown or appears to be in the possession or power-
(i) of the person against whom the document is sought to be proved: or
(ii) of any person legally bound to produce it; and when, after the notice mentioned in section 97, such person does not produce it;
97. Secondary evidence of the contents of the documents referred to in paragraph (a) of subsection (1) of Section 96, shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the court considers reasonable in the circumstances of the case. Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it:-
(a) when the document to be proved is itself a notice;
(b) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(d) when the adverse party or his agent has the original in court;
(e) when the adverse party or his agent has admitted the loss of the document.” (Italics mine)
By paragraph 8 of the amended statement of claim the appellant’s foreign partner and with whom he executed the Agreement of 17th October, 1975, took away the original of the said Agreement. There is nothing in the said amended statement of claim nor in the evidence of P.W.1 to suggest that the original of the said Agreement once taken away by the foreign partner ever found its way back into the possession of any or all of the respondents. In the circumstance, it cannot be said that any of the requirements of Section 97 is established as to make the disputed document admissible as secondary evidence under Section 96(1).
In conclusion, all the questions raised in this appeal must have to be answered in the negative and, therefore, are resolved in favour of the respondents. This appeal fails and it is hereby dismissed by me with N300 costsÂ Â in favour of each set of respondents.
NDOMA-EGBA, J.C.A.: The one question to be resolved in this interlocutory appeal turns on whether or not a pre-incorporation agreement excluded from the proceedings on the objection of the defendants, herein the respondents, at the hearing of the substantive suit, No.FHC/E/4/79, is, by statutory definition, a counter-part. Thereafter, the quality and admissibility of the document either as primary or secondary evidence become relevant. The facts of the case upon which the issue is predicated are straight-forward and undisputed. In the actual suit commenced by a petition, the plaintiff company hereafter referred to as the appellant, claimed (1) a declaration that it was entitled to 40% of the shares in the 1st respondent’s company limited. (2) That the share certificate issued to the 2nd respondent as evidence of his share holding in SEM-EDO Wire Industries is null and void in that the transaction was without its knowledge and or consent of the plaintiff (appellant) who is the Sale Nigerian partner and owner of 40% of the shares in the 1st respondent company. (3) An order for specific performance of 1st respondent obligations in the decisions of the Board of Directors of the company at the Board meeting of 30th of June, 1978.
Having filed and exchanged pleadings, and after all pre-trial applications had been considered and settled, the real case proceeded to trial before Ojutalayo, J. at the Benin Federal High Court, Bendel State, in the course of which learned counsel for the appellant, Dayo Abudu Esq. sought to tender a copy, described as counterpart, of a pre-incorporation agreement between the appellant and the 1st respondent company, on record. K. Mosia Esq: of counsel for the 4th respondent, opposed it. In a considered Ruling the learned trial Judge refused the application. He held:
“The sum total of all I am saying in the final analysis is that the agreement, as a counterpart, is a secondary evidence under section 94(d) of the Evidence Act. Proper foundation for its admission having not been laid, the document cannot be received in evidence.
It is therefore hereby rejected.”
Hitherto, the learned trial Judge had commented:
“In this case, the defendants are not parties to the agreement and as such they did not execute the agreement. Thus, as far they are concerned, the agreement is a secondary evidence. It therefore cannot be tendered in evidence unless a proper foundation had been laid for the non-production of the original. This the plaintiff has failed to do in this case. One of the ways in which a proper foundation could be laid is by establishing the failure of the defendant to produce the original, having been duly served with the notice to produce.”
See Sections 96(a) and 97 of the Evidence Act.
It may be noted that of the two previous interlocutory applications refused, one was, among other prayers, for a further amendment of an amended statement of claim. The other was for the court to appoint an Auditor to examine the Accounts of the 1st respondent company. The 2nd, 3rd and 4th respondents were not involved in the said applications. There was also a motion on notice to join the First Bank of Nigeria Limited as defendant which was also disallowed.
Being dissatisfied with the ruling, aforementioned, the appellant company appealed to this court on two original grounds indorsed in the Notice of Appeal. They read:
“The learned trial Judge erred in law when he held that the agreement dated 27th day of October, 1975 between Edokpolo and Co. Ltd. and Sem Nigerian Holdings G.M.B.H. and Co. H.G. which was signed by both parties to the agreement is a counterpart and therefore secondary evidence as against the defendants who are not parties to the agreement and that the proper foundation not having been laid by plaintiffs counsel before tendering the Agreement. It is inadmissible.”
2. “The learned trial Judge erred in law in rejecting the said agreement (described in ground 1 above)…”
The particulars of each of the two grounds of appeal were elaborately reproduced and appended to the notice of appeal. These are on record and need not be recast here.
As required by the Rules of Court, all the parties filed and exchanged their respective briefs of argument.
The issues formulated and set out by the appellant’s company for determination revolve on the crucial question aforesaid. For purposes of record and to explain the main question for decision, earlier mentioned, the issues identified by the appellant are reproduced hereunder:
“1. Whether or not the Agreement dated 27th October, 1975 is a counterpart in Law.
2. Assuming that the agreement referred to in 3.1 above is a counter part, and it is necessary in law to lay proper foundation before it can be admitted as evidence, was the notice to produce issued on the respondents and to which the learned trial Judge adverted in his ruling not proper or sufficient foundation for the purpose of its being received in evidence?
3. Whether or not the learned trial Judge was right to have ignored the notice to produce issued on the respondent’s counsel on the ground that it was not used as a basis for tendering the document in question in this case i.e. the agreement dated 27th October, 1975.”
These propositions will be examined in greater detail later.
The 1st to the 3rd respondents filed a joint brief of argument wherein they expressed the questions for resolution as follows:
“(i) Having not (either by their pleadings, or in their evidence, or in their counsel’s submissions) raised any issue in the lower court as to the admissibility of the agreement dated 27/10/75 as primary evidence, (which proves itself by virtue of s.93(2) of the Evidence Act), is the appellant entitled to raise that issue for the first time on appeal without leave of this Honourable Court first being sought and granted?
(ii) Even if such leave (to raise the issue referred to in (1) above) had ever been sought, (which it was not), could same properly have been granted by this Honourable Court, bearing in mind the strict principles of law in operation in appellate courts that regulate the grant of leave to argue points not raised in the court below?
(iii) Since parties are bound by their pleadings, is the appellant entitled to argue in this court that the agreement dated 27/10/75 tendered and pleaded by them as a “Counter-part” is, in fact not a “Counter-part”, but “primary evidence” of its original, which ought therefore have been received in evidence by the trial court as such “primary evidence”?
(iv) Having regard to the provisions of s.94(d) of the Evidence Act, is the appellant’s contention that the Agreement dated 27/10/75 constitutes primary evidence as against/he 1st-3rd respondents, (who did not execute the agreement) sound?
(v) Recognition being had to the fact that the 1st-3rd respondents never executed the agreement dated 27/10/75, and to the further fact that the said agreement has not been admitted or proved to be in their possession, does the issue by the appellant of “Notices to Produce” on them make secondary evidence of its contents admissible against them?”
In a separate brief of argument, the 4th respondent raised the following issues for determination:
“(1) Whether the appellant can put up a case for the admissibility of the rejected document before the Court of Appeal different from one advanced before the lower court in pleadings, oral evidence and submissions of counsel on the basis of which the said considered the issue and gave the ruling. Assuming a notice to produce was duly filed and served on the respondents, would it authorize the appellant who has stated that the original of the document is in possession of a complete stranger to the case to adduce secondary evidence of same.”
These two issues are, I must say, precise and comprehensive. Issue No.1 in the appellant’s brief is also pertinent to the overriding question for determination in this appeal. All the issues raised in the briefs could suitably, be considered together.
Presenting the appeal, learned Counsel for the appellant, Taiwo Kupolati Esq., addressed the court fully and cited some legal authorities which i find stimulating and generally helpful. He was especially critical of the ruling on the point he,himself, raised that the learned trial Judge did not consider whether the agreement is, in fact, a counterpart, notwithstanding that it was so described in the document itself and in the further amended statement of claim. Relying on the decision in Fawehinmi v. Akilu & Anor. (1987) 4 N.W.L.R. 797 at 843, he contended that the learned trial Judge did not exercise his responsibility to make the necessary legal conclusions on the legal nature of the agreement sought to be made part of the proceedings at the trial court. Counsel did not expatiate on the bearing of the case cited to the appeal in hand. It was however, recognised that the decisive question to be determined in this appeal is the admissibility of the said document. Learned Counsel then submitted that it was not a counterpart. He stated:
“Counsel is entitled to canvass all legal argument including those not canvassed in the trial court in order to persuade the Court of appeal in setting aside the trial courts decision.”
This right is assured to all counsel and cannot be controverted. What is relevant, with due respect, is the consistency in the presentation of a case before a court of law and justice. That is what concerns this court in the consideration of the instant appeal.
It is implied and it was indeed confirmed in the oral submission of Learned Counsel for the appellant in amplification of his brief of argument that this court should ignore the admission in the appellant’s final pleadings. For this proposition, counsel relied on the decision of Misa v. Currie (1875-1876) 1 A.C. 554 at 559. He argued that the judgment of the Supreme Court in Uor v. Loko (1988) 2 N.W.L.R. (Pt.77) 430 at 441 was distinguishable from the facts of the present appeal but he did not, with sufficient respect, point out the distinguishing features.
In reply, Bankole Aluko Esq. for the 1st, 2nd and 3rd respondents adopted their joint brief of argument and urged the court to dismiss the appeal.
He referred to Sections 93(3) and 94(d) of the Evidence Act and submitted that the purported agreement is secondary evidence. Abridged, the main submissions of Mr. Aluko in opposing the appeal is that the appellant, having not raised the issue of the admissibility of the agreement at the court below as primary evidence, it was not entitled to raise it for the first time on appeal without leave being duly granted. In any case this court cannot, he contended, grant any such leave, having regard to the strict principles of law governing the procedure in an Appellate Court. He cited Order 6, rule 3(a) of the Court of Appeal Rules, 1977 and submitted further that, on the authority of Nkanu v. Orua (1977) 5 S.C. 13 at 22, the appellant will not be permitted to set up a case different from his pleadings either in the High Court or in this court on appeal.
In view of the established principles that parties are bound by their pleadings, the appellant cannot argue against its admissions in the relevant pleadings that the agreement is a counterpart. Continuing, counsel referred to Section 94(d) of the Evidence Act and said that it was unsound in law to argue that the agreement constituted primary evidence, since the 1st to 3rd respondents did not execute it. Learned Counsel emphasised that as the original agreement was not proved by the appellant to be in possession or power of the respondents, the issue of “notices to produce” at the instance of the appellant does not render secondary evidence of its contents admissible against them.
Mr. Aluko had earlier indicated his intention to raise a preliminary objection in this court on the competence of ground 1 of the appeal. It is however, unnecessary to do so now, having argued extensively, urging this court to dismiss the appeal. Moreover, it was indicated above that all the issues will be examined together. Finally, counsel adopted the submissions made on behalf of the 4th respondent in his brief of argument with which Mr. Aluko expressed complete agreement.
On the omission to obtain leave of this court to argue the new points which could only be established by additional evidence learned Counsel cited a number of legal authorities, including Dweye v. Iyomahan & 3 ors. (1983) 5 S.C. 76; Mogaji v. Cadbury (1985) 7 SC. 59 at 78 and Akpene v. Barclays Bank (1977) 1 S.C. 47. On the incompetence of the 1st ground of appeal, he referred respectively, to the cases of Ejiofodomi v. Okonkwo (1982) 11 S.C. 2074 and Abinabina v. Enyimadu 12 WACA 171.
Opposing the appeal for the 4th respondent on record, K. E. Mozia Esq. relied on the 4th respondent’s brief of argument wherein he succinctly stated the background of the case. He referred to paragraphs 7 and 8 of the Further Amended Statement of Claim and submitted that the appellant had admitted that the agreement was a counter-part. This was confirmed by the appellant he pointed out, in his evidence in chief and supported by his counsel. Mr. Abudu. The letter, he continued, conceded that it was admissible under Section 93 of the Evidence Act. It was on this premise, Mr. Mozia contended, that the learned trial Judge rested his conclusions. Counsel relied on the decision in Udze Uor & Ors. v. Paul Loko (1988) 2 N.W.L.R. (Pt.77) 430 at 441.
He stressed that the rejected document was not tendered as an original or a copy thereof nor was there any evidence led to show that the agreement was made “with several parts. Each party held one but only one part thereof was stamped and sealed by the “parties” as alleged by the appellant in its brief. Mr. Mozia cited the case of Salnu Yovo v. Olubode & 4 Ors. (1974) 10 S.C. 209 at 215, and submitted that averments in pleadings and submissions of counsel are not evidence and cannot be substituted for same. He contended that all arguments based on the said “facts” go to no issue.
On issue No.2 in the brief, it was argued that the “notice to produce” the original of the agreement was not issued and directed to persons who, admittedly, are parties to the case. It cannot be presumed that the respondents are in possession of the original. He referred to the decision of Titus Odionye v. Ayansi & Brunton Ltd. & Ors. (1963) 2 A.N.L.R. 44 and submitted further that on careful examination of the rejected document, it was clear that none of the respondents on record executed the document as required by section 93(3) of the Evidence Act.
The submissions of counsel will now be considered.
In paragraph 7 of the final amended statement of claim, the appellant stated:
“By Agreements dated 27th October, 1975 and 27th February, 1976, the plaintiff as the party entered into agreements respectively with Sem Nigerian Holdings C.M.B.N. and Company Hamburg as the second party whereby they agreed to carryon business as Sem-Edo Wire Industries Limited.”
The Italics mine.
It is abundantly clear from the foregoing that none of the respondents on record was privy to any of the two agreements averred, neither was any of them a party to the substantive suit. The notice to produce claimed to have been filed and served can only apply to a party or parties to the suit. It is clear as said earlier that none of the respondents is party to the proceeding. “Notice to produce”, if filed and issued at all, is totally irrelevant to them.
Section 97 of the Evidence Act says:
“Secondary evidence of the contents of the documents referred to in paragraph (a) of subsection (1) of section 96 shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to a legal practitioner employed by such party, such notice co produce it as is prescribed by law…”
I made the italics.
The appellant has not also shown that the agreements were “in possession” of any of the respondents nor were the conditions precedent to giving secondary evidence within the contemplation of section 97, satisfied in this case. There was no evidence, affidavit or otherwise, to show which of the respondents the “notice to produce” was directed and which of them was in “possession of the document.”
It was also not proved that the notice was actually served directly or through any of the accredited representatives or agents of the respondents. In Sharpe v. Lamb & Anor.(1840) 11 Ad & EI 805 (volume 113 English Reports p. 620) it was held:
“…that this did not authorise the giving in evidence such copy without further proof of the original, though notice had been given to produce, it not being proved that plaintiff had the original,”
See also Titus Odionye v. Anyansi & Brunton Ltd & Ors. (1963) 2 A.N.L.R. 44. This is further reinforced in Halsburys Laws of England, 4th Edition, volume 17, page 105 paragraph 142:
“A party who has served a notice to produce a document will not be entitled to give secondary evidence of it unless he establishes at the trial that it was, at the time of the service of the notice, in the possession of the person on whom the notice was served or of some agent or other person over whom the person served had some authority and from whom he could have obtained the document.”
As learned Counsel for the 4th respondent emphasised, there was no evidence that any of the respondents was in custody of the original of the relevant agreement sought to be tendered, or had any control or authority over the foreign partners. Moreover, it was not shown that the respondents executed the agreement as stipulated in Section 93(3) of the Evidence Act which reads:
“where a document has been executed in counterpart each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against parties executing it.”
The facts of the present appeal do not fit in. As observed earlier, none of the respondents subscribed to the rejected agreement. They are not parties to the substantive case, either. As far as the respondents on record are concerned, the question of “primary” or “secondary” evidence does not arise. It can only have bearing to the parties who are privies to the re-incorporation contract, if the filing and service of the notice to produce is established. I therefore strongly endorse the conclusion of the learned trial Judge that the original of the agreement sought to be tendered was not reasonably accounted for. There was therefore no foundation laid for admitting a copy of it in evidence, it being a counter-part. By his own admission, the appellant knew at the inception of the proceedings in this case that the original of the said document was in the possession of its foreign partners who are privy to the pre-incorporation contract. It was not lost and could be retrieved if the appellant made any serious effort to secure it. There is also an irresistible impression that the several pre-trial applications were calculated to prolong the early determination of the main suit.
Mr. Kupolati had recourse to the definition of “counter-part” expressed in standard law dictionaries. This is consistent with the definition in Section 94(d) of the Evidence Act.
“Secondary evidence includes counterparts of documents as against the parties who did not execute them.”
This provision is clear and precise and do not admit of any other meaning. By the ejusdem generis rule of construction, the definition applies to the agreement excluded from the proceedings in the appeal in hand. The onus, as contended by learned counsel for the 4th respondent, is on the appellant to prove that the document was not a counter-part in law, that is to say that it is not covered by the definition in 94(d), supra. It is not an issue of fact under Section 2 of the Evidence Act as contended by learned Counsel for the appellant and like in all other statutory definitions, counter-part or not is a matter of interpretation.
Generally primary evidence means the document itself “produced for the inspection of the court. See Section 93 of the Evidence Act. Under Section 92 of the Evidence Act, a document may be proved by “primary or secondary evidence.” The former is preferred. The latter, only when the conditions stipulated are satisfied. The absence of the original must be satisfactorily explained as a condition – precedent to admitting a copy or counter-part. That is the view taken by the learned trial Judge which I support. See Sharpe v. Lamb & Anor. (1840) 11 Ad-E180S (English Reports).
I do not see any contradictions in the ruling, the subject of this appeal. I think learned Counsel for the appellant wrongly interpreted some hypothetical questions posed in the ruling as findings.
It has been observed that the mainstay of the appellant’s contention in this appeal is that of the agreement. He had significantly shifted position from the earlier categorical admissions in the final statement of claim, in the agreement itself and the argument of counsel on the appellant’s behalf, that the document is a counter part. It is completely out of place for him to urge this court to ignore the admissions aforesaid and hold that the said document is not a counter-part. Pleadings are indispensable aspect of civil litigation and when ordered in appropriate cases, they are binding on the parties. They are precluded from withdrawing from the averments therein unless the procedure of amendment is employed. The necessity for pleadings can only be waived by the parties in actions not commenced by writs of summons. In Udza Uor & Others v. Paul Loko (1988) 2 N.W.L.R. (Pt. 77) 430 at 441, Karibi- Whyte aptly observed:
“The appellate court is entitled to have the benefit of the opinion of the Judges in the judgments of the court below. It is the opinion appealed against, which is affirmed or reversed. Hence without the benefit of such opinion, the appellate court will be extremely reluctant to interfere. Indeed, any judgment of an appellate court founded on grounds not canvassed in the court below and not adverted to or pronounced upon in the judgment appealed against, ideally is not an appeal against such judgment. ”
The Italics is mine.
The foregoing supports the respondent’s position in the appeal. It is an acknowledgment that parties cannot raise new matters on appeal which were not in issue at the court of first instance, without leave sought in a motion on notice. It is totally untenable for this court, exercising its appellate jurisdiction, to ignore, as learned Counsel for the appellant urged, the admissions in the pleadings, any more than it could disregard concessions made by counsel on behalf of their clients in the course of their addresses, unless in very exceptional circumstances where it would be grossly unreasonable and inconsistent with substantial justice to hold a party on to his admissions. Having regard to the long line of cases decided over the years that parties are bound by their pleadings, it would be revolutionary to overlook “admissions” unequivocally made in the pleadings. The examination of the contents of the agreement itself confirm the admission by the appellant that it is a counter-part. 1am therefore firmly in support of the conclusions reached by the learned trial Judge that the necessary foundation was not laid for its reception in evidence.
With respect, this appeal lacks merit. It cannot succeed. It is accordingly dismissed with costs at N150.00 to each of the respondents on record. It is further ordered that the hearing of the substantive suit be resumed immediately on receipt of this order, the decision having been hereby upheld.
SALAMI, J.C.A.: I have had the advantage of reading a copy of the judgment in this appeal just delivered by my learned brother, OGUNDARE, J. C.A., and agree with the admirable reasoning and the conclusions therein. I agree that the appeal lacks merit and should be dismissed with N300.00 costs to each set of respondents.
Taiwo Kupolati, Esq. For Appellant
Bankole Aluko – for the 1st-3rd Respondents.
K. E. Mozia – for the 4th Respondents. For Respondent