JOHN EROMOSELE DARLINTON v. SKYE BANK PLC & ORS
(2017)LCN/10570(CA)
In The Court of Appeal of Nigeria
On Monday, the 10th day of July, 2017
CA/L/354/2008
RATIO
EVIDENCE – ADMISSIBILITY OF EVIDENCE: WHETHER RELEVANCE IS THE ONLY BASIS FOR DETERMINING THE ADMISSIBILITY OF A PIECE OF EVIDENCE
It is a settled principle of law that relevance is a vital prerequisite for the admissibility of documentary evidence in Nigeria. This was reiterated by this Court in the case of KHAMOFU v. STANDARD CHARTERED BANK (NIG) LTD (2016) LPELR-41497(CA), Per HASSAN, J.C.A. at page 28, Paras. C-E, thus:
?The test of admissibility is relevance. What the Court considers is the purpose for which the document is sought to be tendered or its relevance to the subject in issue -Statoil (Nig.) Ltd Vs Inducon (Nig.) Ltd (2014) 9 NWLR (part 1411) 43 at 55. See also Daggash Vs Bulama (2004) 14 NWLR (part 892) 144 and Okonji Vs Njokanma (1999) 14 NWLR (part 638) 250.”
?Notwithstanding the above, it must be clearly stated that relevance is not the only basis for determining whether a piece of evidence, including documents, may be admitted into evidence. This is the fine point of law which the Apex Court was expatiating on, when in the case of KEKONG v. STATE (2017) LPELR-42343(SC), Per EKO, J.S.C. at page 9-10, paras. E-A, it held thus:
“Section 1 of the Evidence Act is to the effect that evidence may be given of the facts in issue and relevant fact. Proviso (b) thereto is categorical that the Section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force. There is no doubt that by virtue of Section 2 of the Evidence Act that a piece of evidence excluded either by the Act itself or any other legislation validly in force in Nigeria cannot be admissible in evidence. It is therefore, not only relevancy that governs admissibility. A piece of evidence may be relevant and yet could, by operation of law, be inadmissible.” PER JAMILU YAMMAMA TUKUR, J.C.A.
EVIDENCE: CONDITION FOR THE ADMISSION OF DOCUMENTARY EVIDENCE
It is settled principle of law that where a law provides a condition for the admission of evidence, where such condition is not met, that evidence would become inadmissible. Order 6 of the Federal High Court (Civil Procedure) Rules 2000, which was the law governing the institution of actions in the lower Court as at the time the ruling was made, provides that copies of documents meant to be relied on at trial, must accompany the originating process.
The implication of the above, is that in order for a document to be admitted at trial as evidence, as far as the lower Court is concerned, a copy of the document must be attached to the originating processes. I agree with learned counsel for the Respondent that Rules of Court are meant to be obeyed. See: G.M.O. NWORAH & SONS COMPANY LTD v. AKPUTA (2010) LPELR-1296(SC); FIRST BANK OF NIGERIA PLC. v. T.S.A. INDUSTRIES LIMITED. (2010) LPELR-1283(SC); and MUSTAPHA V. ABUBAKAR & ANOR. (2010) LPELR-4567(CA). PER JAMILU YAMMAMA TUKUR, J.C.A.
Before Their Lordships
JOSEPH SHAGBAOR IKYEGHJustice of The Court of Appeal of Nigeria
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKURJustice of The Court of Appeal of Nigeria
Between
JOHN EROMOSELE DARLINTONAppellant(s)
AND
1. SKYE BANK PLC
2. CHIEF FEMI SOMOLU
3. ABIMBOLA IZU
4. ALHAJI IBRAHIM IDA
5. MR. COLLINS CHIKELUBA
6. MR. OLATUNDE AYENI
7. MR. ADEKUNLE OSIBOLURespondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the Federal High Court Lagos Division in Suit No. FHC/L/CS/1151/2005 delivered on 30th October, 2007, by Honourable Justice I.N Auta in favour of the Respondents.
The material facts of the case culminating in this appeal is rendered thus:
The Appellant acting on the belief that he was unlawfully suspended as Managing Director of the 1st Respondent, instituted an action in the lower Court, wherein he sought certain reliefs. During hearing of the matter on 30th October, 2007, the Appellant as P.W.1 sought to tender the Minutes of the Board meetings of the 1st Respondent. The Respondents? counsel raised an objection to the admission of the Minutes and the trial Court held the Minutes inadmissible on the grounds that the document was in breach of the Rules of Court and were not pleaded. The trial Court sustained the objection and rejected the said document.
Dissatisfied with the Ruling, the Appellant appealed to this Court via a Notice of Appeal dated and filed 9th November, 2007, with two Grounds of Appeal. The
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Appellant?s Brief settled by Omohafe Theresa Opara of Messrs Rickey Tarfa and Co., is dated and filed on 17th March, 2016. Appellant?s counsel formulated two issues from the two Grounds of appeal for determination thus:
1. Whether the trial Court was right when it sustained the objection of the Respondents as to the admissibility of the Minutes of the Board meetings? (Ground one)
2. Whether the non attachment of the Minutes of the Board meetings to the Amended Statement of Claim makes them inadmissible as evidence?
On the other hand, the Respondents? Brief settled by Olabode Olanipekun of Wole Olanipekun and Co., is dated 13th May, 2016 and filed 16th May, 2016. The Respondents? counsel formulated one issue for determination to wit:
1. Having regard to the pleadings of parties vis–vis the state of the law on the admissibility of evidence, whether the lower Court was not right when it rejected the documents sought to be tendered by the Appellant. (Grounds 1 and 2)
?
A comparison of the issues raised by counsel of both parties reveal that they are substantially the same. Determination of either of the
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parties? issues will fully resolve what both parties have in mind in the formulation of their issues. I therefore adopt the Respondents? issue for the purpose of convenience in determining this appeal.
ISSUE:
HAVING REGARD TO THE PLEADINGS OF PARTIES VIS–VIS THE STATE OF THE LAW ON THE ADMISSIBILITY OF EVIDENCE, WHETHER THE LOWER COURT WAS NOT RIGHT WHEN IT REJECTED THE DOCUMENTS SOUGHT TO BE TENDERED BY THE APPELLANT. (GROUNDS 1 AND 2)
Learned counsel for the Appellant argued that the Minutes of the Board meetings is admissible because it is relevant and it is related to facts pleaded before the lower Court, thus fulfilling the requirements of the law on admissibility of evidence.
He relied on the following cases:
Okoye v. Obiaso (2010) 8 NWLR (Pt.1195) 145; Abubakar v. Chuks (2008) WRN (Vol.20) 27 at 31-32, P.43, lines 10-45; and Torti v. Ukpabi (1984) NSCC VOL 15, 141 at 149.
Learned counsel based his contention on the fact that the said Minutes of Board meetings would help to establish the fact that the Appellant was carrying out his duties as pleaded, particularly in paragraphs 7 and 8 of his Amended
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Statement of Claim.
He relied on the following:
Order 26 Rule 4(1) of the Federal High Court (Civil Procedure) Rules 2000; Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt.453) 14 P.166 paras A-B; E.O Amodu v. Dr. J.O Amode and Anor (1990) NWLR (Pt.150) 356 P.371 paras C-E; and Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) 170, P.183 paras B-E.
Counsel also argued that the non-attachment of the Minutes of the Board meetings to the Amended Statement of Claim does not make them inadmissible in evidence, as there is no requirement for such attachment in the rules that govern amendment of processes, and the crucial requirement for admission of a document remains relevancy.
He relied on the following:
Order 27 Rules 1-3, Order 3 Rule 1(1), and Order 6 Rule 8 of the Federal High Court (Civil Procedure) Rules 2000.
Learned counsel then argued that even if the attachment of the Minutes was required, the objection raised should be regarded as a mere technicality and should not be held to nullify the successful tendering of the documents.
He relied on the cases of Oloruntoba-Oju v. Abdul-Raheem (2009) 13 NWLR (Pt.1157) 83 P.122 paras C-E;
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and Agbahomovo v. Eduyegbe (supra).
On the other hand, learned counsel for the Respondents argued that the Minutes in question did not meet the fundamental criteria for determining whether a document is admissible in evidence, as it is not relevant to the issues being tried at the trial Court and was not pleaded.
He relied on the following:
Section 1 Evidence Act 2011; Okonji v, Njokanma (1991) 11 and 12 SCNJ, 259 at 275; Dunniya v. Jimoh (1994) 3 NWLR (Pt.334) 609 at 617; Udoro v. Governor of Akwa-Ibom State (2010) 11 NWLR (Pt.1205) 322 at 328; Ogu v. M.T.&M.C.S. Ltd (2011) 8 NWLR (Pt.1249) 345 at 371.
Counsel based his contention regarding lack of relevance, on the pedestal that the Minutes in question have nothing to do with the basis of the Appellant?s claim at the trial Court which is breach of contract of service and nowhere in the Amended Statement of Claim, including paragraphs 7 and 8 thereof, were the duties of the Appellant referred to.
He relied on the case of Amodu v. Amode and Anor (1990) 5 NWLR (Pt.150) 356 at 373.
?
Learned counsel then submitted that the Appellant?s counsel could not validly hinge the
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admissibility of the said documents on the examination-in-chief of the Appellant, as evidence cannot be led in vacuum, but must be based on facts in issue.
See: Ogbeide v. Osula (2000) 2 NWLR (Pt.886) 86 at 132-133; Jadacom Limited v. Ogun Electrical (2004) 3 NWLR (Pt.589); and Archibong v. State (2006) 14 NWLR (Pt.1000) 349 at 377.
Learned counsel also argued that the failure of the Appellant to plead and attach the Minutes to both the original and Amended Statement of Claim, constitutes a breach of mandatory provisions of the law and the Rules of the lower Court, which cannot be cured by Order 3 Rule 1(1) of the said rules.
He relied on the following:
Order 6 Rule 7 of the Federal High Court (Civil Procedure) Rules 2000; A.C.B. Plc v. Nwodika (1996) 4 NWLR (Pt.443) 470 at 488; Ojukwu v. Yar?adua (2009) 12 NWLR (Pt.1154) 50 at 125 to 126 G-A; and Hashidu v. Goje (2003) 15 NWLR (Pt.843) 352 at 383 para B.
Learned counsel then submitted that rules of Court are meant to be obeyed and even have the same force of law as the Constitution.
He relied on the following:
Sections 36 and 254 of the Constitution of the Federal
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Republic of Nigeria, 1999 (as amended); Order 54 of the Federal High Court (Civil Procedure) Rules 2000; Akanbi v. Alao (1989) 3 NWLR (Pt.108) 118 at 137; Attorney General of Kwara State v. Abolaji (2009) 7 NWLR (Pt.1139) P.199 at 219; J.C.C. Inter Ltd. v. N.G.I. Ltd. (2002) 4 WRN 91, 104; Asika v. Atuanya (2013) 14 NWLR (Pt.1375) 510 at 530 paras F-G; and 7-UP Bottling Company Limited v. Abiola and Sons Ltd. (1995) 3 NWLR (Pt.383) 257 at 284.
RESOLUTION
It is a settled principle of law that relevance is a vital prerequisite for the admissibility of documentary evidence in Nigeria. This was reiterated by this Court in the case of KHAMOFU v. STANDARD CHARTERED BANK (NIG) LTD (2016) LPELR-41497(CA), Per HASSAN, J.C.A. at page 28, Paras. C-E, thus:
?The test of admissibility is relevance. What the Court considers is the purpose for which the document is sought to be tendered or its relevance to the subject in issue -Statoil (Nig.) Ltd Vs Inducon (Nig.) Ltd (2014) 9 NWLR (part 1411) 43 at 55. See also Daggash Vs Bulama (2004) 14 NWLR (part 892) 144 and Okonji Vs Njokanma (1999) 14 NWLR (part 638) 250.”
?Notwithstanding the above, it must
7
be clearly stated that relevance is not the only basis for determining whether a piece of evidence, including documents, may be admitted into evidence. This is the fine point of law which the Apex Court was expatiating on, when in the case of KEKONG v. STATE (2017) LPELR-42343(SC), Per EKO, J.S.C. at page 9-10, paras. E-A, it held thus:
“Section 1 of the Evidence Act is to the effect that evidence may be given of the facts in issue and relevant fact. Proviso (b) thereto is categorical that the Section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force. There is no doubt that by virtue of Section 2 of the Evidence Act that a piece of evidence excluded either by the Act itself or any other legislation validly in force in Nigeria cannot be admissible in evidence. It is therefore, not only relevancy that governs admissibility. A piece of evidence may be relevant and yet could, by operation of law, be inadmissible.”
?
In applying the above stated principles of law to the facts of this appeal, the question that must be answered, is whether the piece of evidence, that
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is the Minutes of the Board meetings, which was rejected by the trial Court, was relevant to the matter before it and whether the said Minutes met with the requirements of the law for its admission as evidence.
Learned counsel for the Respondent has argued that the Minutes of the Board meetings is not relevant because it is not related to the facts in issue of breach of contract of employment, which according to him, is the basis of the Appeal.
A dispassionate look at the facts before the lower Court as contained in the Record of Appeal, reveals that the foregoing is not correct. This is so because the facts that emerge from the Record, is to the effect that the Appellant was suspended based on his activities as the Managing Director of the 1st Respondent. It cannot therefore be rightly said that evidence which relate to the carrying out of such duties, which have to do with the basis for his suspension, is irrelevant.
See: Sections 1-7 of the Evidence Act; IFARAMOYE v. STATE (2017) LPELR-42031(SC); OJIOGU v. OJIOGU & ANOR. (2010) LPELR-2377(SC); and ILESANMI v. OGUNLEYE & ANOR (2016) LPELR-41348(CA).
As I have stated earlier in this
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judgment, relevance is not the only hurdle a piece of evidence is required to scale before it would be properly admitted by the Court.
It is settled principle of law that where a law provides a condition for the admission of evidence, where such condition is not met, that evidence would become inadmissible. Order 6 of the Federal High Court (Civil Procedure) Rules 2000, which was the law governing the institution of actions in the lower Court as at the time the ruling was made, provides that copies of documents meant to be relied on at trial, must accompany the originating process.
The implication of the above, is that in order for a document to be admitted at trial as evidence, as far as the lower Court is concerned, a copy of the document must be attached to the originating processes. I agree with learned counsel for the Respondent that Rules of Court are meant to be obeyed.
See: G.M.O. NWORAH & SONS COMPANY LTD v. AKPUTA (2010) LPELR-1296(SC); FIRST BANK OF NIGERIA PLC. v. T.S.A. INDUSTRIES LIMITED. (2010) LPELR-1283(SC); and MUSTAPHA V. ABUBAKAR & ANOR. (2010) LPELR-4567(CA).
?The arguments of counsel for the Appellant, that the
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above mentioned provision does not apply to the Amended Writ of Summons dated 5th of April, 2007 and the Amended Statement of Claim dated 20th March, 2007, is misconceived as an amended originating process, is not considered an independent process but flows from and is regarded as the only originating process, hence the rules concerning the originating processes, apply to it.
See: ONYEME & ANOR v. ONUMAEGBU & ANOR (2016) LPELR-41092(CA); OGWUDIRE v. OBIGWE & ANOR (2014) LPELR-23635(CA); and ESENE & ORS. v. THE SPEAKER, EDO STATE HOUSE OF ASSEMBLY & ORS. (2012) LPELR-19775(CA).
It is this correct position of the law that the trial Court aptly applied when it held in page 258 of the Records of Appeal thus:
?The rules of this Court are meant to be obeyed, and it is meant to facilitate easy flow of cases. A party is mandatorily required to attach documents they intend to use as exhibit to their applications before the Court, or else they cannot use them.?
It is against this background that I resolved the issue in favour of the Respondent. In summation the Appeal fails and same is hereby dismissed.
?
The Ruling
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of the lower Court delivered on 30th October, 2007 in Suit No:FHC/L/CS/1151/2005 is hereby affirmed.
Parties to bear their costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the judgment prepared by my learned brother, Jamilu Yamma Tukur, J.C.A., which I had the benefit of reading in draft.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before now the elaborate leading judgment prepared and rendered by my learned brother JAMILU YAMMAMA TUKUR, JCA. I agree with the entire reasoning and conclusion and adopt the judgment as my own with nothing extra to add.
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Appearances:
O.T. OparaFor Appellant(s)
Olabode Olanipekun with him,Faith AdarighofuaFor Respondent(s)
Appearances
O.T. OparaFor Appellant
AND
Olabode Olanipekun with him,Faith AdarighofuaFor Respondent
