HAJIYA BINTA KURAYE v. FEDERAL REPUBLIC OF NIGERIA (2014)

HAJIYA BINTA KURAYE v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7446(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of November, 2014

CA/A/256C/2013

RATIO

EVIDENCE: DOCUMENTARY EVIDENCE; THE CRITERIA FOR THE ADMISSIBILITY OF DOCUMENTS IN EVIDENCE AND HOW TO TENDER A DOCUMENT IN EVIDENCE

The criteria for the admissibility of documents in evidence, are –
(a) whether the document has been pleaded;
(b) whether it is relevant to the issue in dispute; and
(c) whether it is legally admissible. See OKONJI VS. NJOKANMA (1999) 14 NWLR (Pt. 638) 250 and FBN VS. JIBO (2006) 9 NWLR (Pt. 985) 261. It is the law, that a court is entitled to admit and act only on evidence admissible in law – See SAWA OLUKADE VS. ALADE (1976) LPELR – 257 (SC).

When a party intends to tender a document in evidence, the witness through whom the document would be tendered, lays a foundation for its admission. He is then shown the document to enable him identify it, before an application is made to tender it. The documents to be relied upon at the trial, are front-loaded and served on the opposing party. This enables him to see and scrutinise the documents that would be relied upon, and their admission in evidence is normally a formality, unless there are other factors that would stand on the way of their admission in evidence. per. ABUBAKAR DATTI YAHAYA, J.C.A.

COURT: DUTY OF COURTS; THE DUTY OF THE COURT TO AVOID THE SHACKLES OF TECHNICALITY

The objection to the admissibility of the documents, is nothing but mere legalism, a roving into intricacies in pursuit of technical justice. This is not a posture that would be met with any sympathy in the Court of Appeal. Our attitude is that concern for justice, must be the overriding factor and for that reason, all courts of law should avoid the shackles of technicality which would render them slaves to a procedure which will serve no useful purpose, but which would certainly, defeat justice. See AMAKA VS. STATE (1995) 6 NWLR (Pt. 399) 11 and OLUJIMI VS. ASSEMBLY (2009) 11 NWLR (Pt. 1153) 464. per. ABUBAKAR DATTI YAHAYA, J.C.A.

JUSTICE

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria

MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria

Between

HAJIYA BINTA KURAYE Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): The appellants were arraigned before the High Court of the Federal Capital Territory Abuja on two count charges, by the Economic and Financial Crimes Commission. The charges are:-
COUNT ONE
“That you Hajiya Binta Kuraye and Umita Construction and Supply Company Ltd on or about the 22nd of March 2012, in Abuja within the jurisdiction of the High Court of the Federal Capital Territory with intent to defraud did issue a GTBank cheque No. 00000090 dated the 22nd March 2012 for the sum of N9,000,000.00 to one Claire Uzoamaka Arinze which cheque on presentation was dishonoured for lack of sufficient funds in the account and thereby committed an offence contrary to section 1(1)(b) of the Dishonoured Cheques (Offences) Act Cap D11 Laws of the Federation of Nigeria 2004 and punishable under section 1(1)(i) of the same Act.
COUNT TWO
That you Hajiya Binta Kuraye and Umita Construction and supply Company Ltd on or about the 22nd of March 2012 in Abuja within the jurisdiction of the High Court of the Federal Capital Territory with intent to defraud did issue a GTBank cheque No. 00000091 dated the 22nd March 2012 for the sum of N8,500,000 to one Claire Uzoamaka Arinze which cheque on presentation was dishonoured for lack of sufficient funds in the account and thereby committed an offence contrary to section 1(1)(b) of the Dishonoured Cheques (Offences) Act Cap D11 Laws of the Federation of Nigeria 2004 and punishable under section 1(1)(i) of the same Act.

Trial of the appellants as the accused persons, commenced and on the 25th of December 2013, Jantiku Ijudigal Mamza as the 1st prosecution witness, was called and he began to testify. He informed the trial court that a Petition was written on behalf of Claire Arinze and sent to the EFCC. The petition was dated 30/05/11 he said, and that it had cheques dated 22/03/11 attached to it. The petition and the cheques were sought to be tendered in evidence but the defence objected to their admissibility, because the dates were not correct. It turned out that the petition was dated 30/05/12, and not 30/05/11 as the witness had said in his oral evidence. Again, the cheques were actually dated 22/03/12 and not 22/03/11 as stated by the witness. The trial court heard both sides on it and in its Ruling, held that the documents were relevant and admissible, and despite the wrong dates stated in the oral evidence, it admitted them in evidence as Exhibits A – A6. It was this Ruling admitting the documents in evidence, that gave birth to this appeal vide the Notice of appeal filed on the 20/3/13.

Parties have filed their briefs. The appellant’s brief was settled by her counsel, Mr. Y. Mamman and filed on 23/1/14 but deemed filed on the 27/2/14. In it, a lone issue for determination was identified and it is –
Whether the learned trial judge was right to have admitted the document which the witness gave a different date in evidence at the trial?

The respondent’s brief was settled by Mr. C. O. Ugwu and was filed on the 20/2/14, but was deemed filed on 27/2/14. It also identified one issue thus-
Whether the learned trial judge was right in admitting the documents in evidence vis-a-vis the oral evidence of PW1.

As the issue identified by the appellant is similar to the one identified by the respondent, I shall utilise the issue raised by the appellant in resolving this appeal.

LONE ISSUE
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT IN ADMITTING THE DOCUMENTS IN EVIDENCE VIS-A-VIS THE ORAL EVIDENCE OF PW1.

Mr. Mamman submitted that when PW1 gave oral evidence and stated that the documents sought to be tendered were made or dated in 2012, whereas they were dated 2011, he was referring to different documents entirely and “oral evidence cannot substitute for written document.” He referred to section 157 of the Evidence Act 2011 and the case of “EDISON AUTOMOTIVE INDUSTRIES LTD VS. N.E.R.F.U.N.D. (2009) (Pt.477) PG. 124 R.12 C.A.” He then argued that there is a difference between relevancy and admissibility of documents and it is relevancy that determines admissibility. He referred to AGUNBIADE VS. SASEGBON (1968) NMLR 223 at 226 and PROGRESSIVE ACTION CONGRESS VS. INEC (2009) ALL FWLR (Pt.478) 271, on criteria governing admissibility of documents. He argued that by not stating the correct dates of the documents, PW1 had omitted the most vital of all the criteria, which is whether the documents are admissible in law.

In his argument on the issue, Mr. Ugwu for the respondent, submitted that the documents are admissible and have been rightly admitted by the trial judge. The evidence of PW1 was not aimed at varying the contents of the documents, but was given to show that the documents were received by the EFCC, thus creating a legal relationship between EFCC and the complaint. He cited ODUNSI VS. BAMGBALA (1995) 4 NWLR (Pt.597) 8 at 17.

At any rate he argued, by referring to page 86 line 16 of the record, when the documents were shown to PW1, he physically identified them as the ones he was referring to in his oral evidence, thus curing the mistakes he made as to the dates on them.

Counsel argued that the objection to the admissibility of the documents is a mere technicality aimed at defeating justice, which has been jettisoned by the courts – COLITO (NIG) LTD VS. JUSTICE TITI DAIBU (2010) 2 NWLR (Pt. 1178) 213 at 222; STATE VS. GWONTO (1983) 1 SCNLR 142 and MRS. ESTHER ORJI VS. DORJI TEXTILES MILLS (NIG) LTD SUIT NO. SC.62/2003 of 18th December 2009.

Since the documents were front-loaded (pages 17 – 19) and (23 – 24) of the record, they suffer no inherent feature and are relevant. They are admissible by sections 5 and 6 of the Evidence Act 2011, he argued. He urged us to dismiss the appeal.

There is no dispute about what happened at the trial court. On an application dated the 17th of October, 2012, the legal and prosecution unit of the EFCC, applied for leave to prefer a criminal charge against the respondents, who were the accused persons. The application had as attachments, the following –
1. A Copy of the charge;
2. A verifying affidavit;
3. Names and addresses of prosecution witnesses;
4. Statements of witnesses and the accused persons; and
5. Proof of Evidence.

The two count charges are to be found at page 2 of the record, and they are for the offences of issuing cheques to Claire Uzoamaka Arinze, when there were no sufficient funds in the account, and it was with intent to defraud. The amounts in the cheques and the dates of the cheques were stated in the charges.

The petition to the EFCC, which necessitated the EFCC to file the charges and prosecute the respondents, was written by Forte Solicitors on behalf of Claire U. Arinze, on the 30th of May 2012. The dates of the two ‘dud’ cheques were provided in the Petition as 22/3/12 (see page 18 of the record). Photo-copies of the said dud cheques are at pages 23 and 24 of the record. All these documents had been front-loaded and served on the appellants and so had knowledge of same as at the time their trial commenced.

When the trial commenced, Jantiku Ijudigal Mamza, an operative of the EFCC began his evidence as PW1. He stated that a petition was sent to the EFCC dated the 30/5/11, by the solicitors to Mr. Claire Uzoamaka Arinze, complaining that the respondents had refused to pay him his share of a commercial transaction and had issued him with two cheques dated 22/3/11 which bounced, i.e. were dishonoured on presentation, because there was no sufficient funds to meet the commitments. An application was made to tender the documents – the petition and the dud cheques. The counsel for the appellants objected to the admissibility of the documents on the ground that the witness said that the petition was dated 30/5/11 and the cheques on 22/3/11, whereas the documents that were sought to be tendered, were bearing 30/5/2 and 22/3/12 respectively. He argued that the PW1 was therefore referring to different documents entirely. See pages 85 to 86 of the record.

The trial judge, after listening to the counsel for the parties, overruled the objection for being technical in nature.

PW1 did not seek to vary by oral evidence, the contents of exhibits A1 – A6. If it were so, it would have been caught by section 128 of the Evidence Act 2011. Far from it. The witness was laying a foundation for the tendering of the documents – the Petition and the dud cheques – and in the course of doing just that, made a misstatement in respect of the year the documents were made, but he correctly stated the days and the months.
When considering whether such misstatement is crucial to the extent that an objection to the tendering of the documents should be upheld, the court, in my view, should determine whether the misstatement had misled the appellant and whether there was a miscarriage of justice or not.

In the instant appeal, the appellants had, before the commencement of leading evidence at the trial, been furnished with the documents in question, since they had been frontloaded. They were thus not at all taken by surprise or misled as to what documents would be tendered in evidence. The witness in his evidence, was simply laying foundation as to the documents and everything he stated was thus correct except the slip as to the year the documents were made. He also physically and clearly identified the said documents as the ones sent to the EFCC and were the ones he was referring to. The slip he made as to the year, but not the days and the months, could not conceivably, militate against the admission of the petition and the attachments to it.

The documents are relevant to the case and the trial judge was clearly in order, when he admitted them.

Learned counsel for the appellant has referred to the case of AJIKANDE VS. YUSUF (SUPRA) to submit that evidence led in respect of any unpleaded facts, does not avail a claimant. He has not made the point here, that the documents were not pleaded. Suffice it to say that the appellants had been furnished with the charge, the names of prosecution witnesses, their statements and the Proof of evidence, before PW1 began his evidence. They were therefore in the know, that the documents were made in 2012.

In the result, the lone issue for determination is resolved against the appellants. The appeal is adjudged totally unmeritorious and it is dismissed with N30,000 costs to the respondent against the appellants.

JOSEPH E. EKANEM, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, YAHAYA, JCA. I agree with my Lord’s reasoning and conclusion therein.

The documents sought to be tendered were relevant and admissible. Relevance is the soul of admissibility. At best the objection only went to the weight to be attached to the documents and not their admissibility. At worse the objection was an adventure in technicality which now belongs to the museum of legal history.

I also dismiss the appeal.

MOHAMMED MUSTAPHA, J.C.A.: I read before now the judgment just delivered by my learned brother Abubakar Datti Yahaya, JCA.

I cannot agree more with my learned brother’s conclusions; technical justice is no justice at all, OLORUNTOBA OJU V ABDUL-RAHEEM (2009) 13 NWLR Part 1157 at 83 SC. This court sees through efforts designed to frustrate substantive justice, relevant documents were rightly admitted by the trial court, OKOYE V OBIASO (2010) 8 NIYLR Part 1195 at 145.

I also dismiss the appeal for lack of merit and abide by the N30,000.00 cost awarded to the respondent.
>

Appearances

Mr. W. Y. MammanFor Appellant

AND

Mr. C. O. UgwuFor Respondent