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MR. AZIAKPONO N. OBIRI v. MRS. NGOZI P. OBIRI (2019)

MR. AZIAKPONO N. OBIRI v. MRS. NGOZI P. OBIRI

(2019)LCN/13743(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 7th day of August, 2019

CA/PH/248/2018

 

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria

ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria

Between

Mr. AZIAKPONO N. OBIRI Appellant(s)

AND

MRS. NGOZI P. OBIRI Respondent(s)

RATIO

WHETHER OR NOT A COUNSEL CAN DISCLOSE COMMUNICATION MADE WITH THE CLIENTS

Now, relying on the testimony of A. A. Ahmed Esq. as CWA to refuse the second application for amendment of the statement of defence, can the evidence of A. A. Ahmed, Esq. be said to infringe the provisions of Section 192 (1),(2) and (3) of the Evidence Act 2011? The operative words in the section are disclosure of communication made with the client. In ABUBAKAR V. CHUKS (2007) LPELR 52 @ 15-16; TOBI, JSC (of blessed Memory) gave a meaning of the word ?disclose? in this way:-
“The operative and functional word in the section is ?disclose? the word means to make known, especially something that has been kept secret, publicly. Disclosure, the noun variant of the word ?disclose? means the act of disclosing secret facts. A person can only disclose a fact which is not known to public. In other words, a person can only disclose facts which are hidden from the public. And public here does act necessarily convey its general unguarded parlance of people in general or for use of many persons. It could mean for the use of any person. It conveys the opposite meaning of ?not? private?.?
From the above dicta, the issue is whether the communication in controversy can be regarded as a secret communication between a counsel and his client, or where documents are involved, where the contents there of are regarded as secret as between a counsel and a client. In such situation, a counsel cannot divulge the information or contents of the documents without the express consent of the client. PER LAMIDO, J.C.A.

ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Bayelsa State High Court, Yenagoa Judicial Division delivered on the 26th April 2018; Coram Y. E. OGOLA, J. the claim of the Claimant/Respondent against the Defendant/Appellant before the trial Court is as follows: –
(i) A DECLARATION that by virtue of the Statutory Marriage contracted on 4th October 1988 between Late Dr. Sampson Eyomaguvia Obibi of Oyede in Isoko North Local Government Area of Delta and the 1st Claimant herein who hails from Orodo in Mbitolu Local Government Area of Imo State, the relevant provisions of the Administration of Estate Law, Cap 1 Laws of Rivers State 1988 and the Marriage Act, upon the death of Dr. Sampson Eyomaguvia Obibi on 16th August 2011, govern the distribution of his intestate estate/properties and not customary law/Oyede Isoko native law and custom.
?(ii) A DECLARATION that any act or acts, distribution, sharing, partition, allotment, alienation, sale, disposition, transfer, conveyance, lease, assignment, conversion, appropriation, interference or dealing with the intestate

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estate/properties of the Late Dr. Sampson Eyomaguvia Obibi or any part therefore carried out, made or done by the Defendant whether by himself, his servant, privies, siblings, relatives, members of the extended Obibi Family of Oyede ?Isoko, Delta State and whosoever called since the death of Dr. Sampson Eyomaguvia Obibi on 16th August 2011 in any manner howsoever contrary to and or in contravention of and or without regard to the provisions of the Administration of Estate Law, Cap 1, Laws of Rivers State 1988 and the Marriage Act are illegal, null and void and of no effect whatsoever.
?(iii) AN ORDER of this Honourable Court setting aside any act or acts, distribution, sharing, partition, allotment, alienation sale, disposition, transfer, conveyance, lease, assignment, conversion, appropriation, interference or dealing with the intestate estate/properties of the Late Dr. Sampson Eyomaguvia Obibi or any part of thereof carried out, made or done by the Defendant whether by himself, his agents, servants, privies, siblings, relatives, members of the extended Obibi family of Oyede-Isoko, Delta State and whosoever called since the death of Dr. Sampson

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Eyomaguvia Obibi on 16th August 2011 in any manner howsoever contrary to and or in contravention of and or without regard to the provisions of the Administration of Estate Law, Cap 1, Laws of Rivers State 1988 and the Marriage Act.
(iv) An ORDER of this Hounourable Court aside the distribution, sharing, partition, allotment, interference or dealing whatsoever called or the purported distribution, sharing, partition, allotment, interference or dealing whatsoever called with the intestate estate/properties of the Late Dr. Sampson Eyomaguvia Obibi or any part of thereof carried out or done or purported to have been carried out or done on the 29th July 2012 by the Defendant by himself, his privies, siblings, relatives, members of the extended Obibi Family of Oyede-Isoko, Delta State and whosoever called contrary to and or in contravention of and or without regard to the provisions of the Administration of Estate Law, Cap 1, Laws of Rivers State 1988 and the Marriage Act.
(v) An order of this honourable Court directing the devolution and distribution of the intestate estate/ properties of the Late Dr. Sampson Eyomaguvia Obibi set forth in the Schedule

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hereunder provided in accordance with the provisions of the Administration of Estate Law, Cap 1, Laws of Rivers State 1988 and the Marriage Act.
(vi) An order of perpetual injunction restraining the Defendant whether by himself, his agents, servants, privies, siblings, relatives, members of the extended family of Oyede-Isoko, Delta State and whosoever called from distribution, sharing, partitioning, allotting alienating, selling, disposing of, transferring, conveying, leasing, assigning, converting, appropriating, interfering or dealing with or further distributing, sharing, partitioning, allotting, alienating, selling, disposing of, transferring, conveying, leasing, assigning, converting, appropriating, interfering or dealing with the intestate estate/properties of the late Dr. Sampson Eyomaguvia Obibi or any part thereof in any manner howsoever contrary to and or in contravention of and or without regard to the provisions of the administration of Estate Law. Cap 1, Laws of Rivers State 1988and the Marriage Act.

?Upon being served with the originating processes, the Defendant filed his statement of defence, and all other processes required to be

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filed along with the statement of defence and at the close of pleadings trial in the matter concluded. At the close of defence the Defendant/Appellant filed a motion seeking to amend the statement of defence with a view to call additional witnesses and to recall the claimant/Respondent again. The claimant/Respondent was agreeable to the motion for amendment and same was granted by the trial Court on 10/10/2017 and to be filed on or before the 17/10/17. The Defendant/Appellant was however not able to file the said amended statement of defence within the time stipulated and hence the motion of extension of time to file and serve the amended statement of defence. The claimant/Respondent objected to the grant of the second motion for extension of time and the learned trial judge in the course of hearing the application called for oral evidence to resolve the conflict, in the affidavit of parties. After taking oral evidence and in a considered ruling, the learned trial Judge held that the Defendant/Appellant failed to give cogent reason why the amended statement of defence/Counter claim was not filed in accordance with the order of the Court and thereafter refused and

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struck out the application.

It is against the said ruling of the trial Court, the Defendant/Appellant now appealed to this Court on a notice of Appeal filed on 10/05/2018. The said notice of appeal contained a single ground of appeal. The said ground is hereunder reproduced: –
GROUND 1
The learned trial judge erred in law in its consideration of the testimony of A. A. Ahmed, Esq. against his client (the appellant) without his express consent.
PARTICULARS OF ERROR
(i) The trial Court failed to realize that the witness to the Respondent/Claimant against the Appellant/Defendant (the client) is not permitted without this express consent of the Appellant (his client) to disclose any communication made to him in the course and for the purpose of his employment on behalf of the Appellant (his client).
(ii) Rather than ordering the witness to decline from testifying against the Appellant (his client), the learned trial Judge shot (SIC) his eyes and relied on his testimony.

In compliance with the rules of this Court, the Appellant filed his brief of argument on 21/03/2019.

?The Respondent filed her brief of

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argument on 02/04/2019. From the Appellant?s brief of argument, a single issue for determination was formulated and the issue is: –
Whether it is right and proper for a legal practitioner to disclose any communication made to him in the course and for the purpose of his employment in the absence of his client?s express consent.

The Respondent also formulated a lone issue for determination in her brief of argument. The issue is: –
Was the learned trial judge right in admitting and relying on the testimony/Evidence of CWA (A. A. Ahmed, Esq.) in resolving the conflicts in affidavit evidence of the parties.

I have noted the various issues for determination formulated by parties herein and though I considered the issue formulated by the respondent to be more in line with the lone ground of appeal, the Court will in the consideration of the two issues formulate same so as to be in tandem with the lone ground of appeal. The issue formulated is thus: –
Whether the learned trial judge was right in admitting and placing reliance on the evidence of counsel for a party A. A. Ahmed, Esq. to resolve the conflict in the

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affidavits of parties.

The learned counsel for the Appellant Kelechi O. Ogbonna, Esq. submitted that the law has been long settled that where the deposition in affidavits of contesting parties conflicts, the only course open for the Court in the resolution of the conflicts is for the Court to hear oral evidence. He referred to Section 116 of the Evidence Act 2011 and the CHAIRMAN NPC V. THE CHAIRMAN IKERE LOCAL GORVERNMENT & ORS (2001) 7SC (PT III) 90. He also stated that the resolution of conflict relates to only factual issues for where the conflict to be resolved is based on a ground of law, no evidence is needed to resolved same. He referred to GENERAL & AVIATION SERVICES LTD V. THAHAL (2004) 4SC (PT 1) 109.

Learned counsel for the Appellant stated further that A. A. Ahmed, Esq. who testified before the trial Court was the Appellant?s Counsel and he also acted for the Appellant when he was detained in a matter in which the Respondent has an interest. He then argued that the general rule governing fiduciary relationship of a legal practitioner and his client is provided for in Section 192 (1), (2) and (3) of the Evidence Act, 2011

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and it is regarded as a privileged communication between counsel and client. He urged the Court to allow the appeal.

In arguing this lone issue, learned counsel for the Respondent, Collins Boleigha, Esq. submitted that there were conflicts in the affidavits of parties and the conflicts are factual and not legal and the trial Court was right to have resolved the conflicts by calling witnesses. He referred to Section 116 of the Evidence Act, 2011; UKU V. OKUMAGBA (1974) 3 SC 35 and FALOBI V. FALOBI (1976) 9 -10 SC 1.

Learned counsel further argued that the provision of Section 192 (1), (2), and (3) of the Evidence Act relied upon by the appellant is inapplicable to the facts of this case as the conflict sought to be resolved centers on the fact that the Appellant averred that he was detained by the police in Abuja and his counsel K. O. Ogbonna, Esq. was there to effect his release; whereas the evidence of A. A. Ahmed, Esq. which was sought to be impugned was to disprove such facts. Therefore, the oral evidence of counsel did not violate the provisions of Section 192 (1), (2) and (3) of the Evidence Act. He referred to

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ABUBAKAR V.  CHUKS (2006-2011) SCJE and ONWUZURUIKE V. EDOZIEM (2016) 252 LRCN 163.

Learned counsel further stated that the basis of the application of Section 192 is hinged on secrecy and there is no element of secrecy in the material evidence of facts adduced which counsel testified to. Furthermore, he stated that the provision in Section 192 (1)(b) makes it an obligation on the counsel to disclose what he observed in the course of his employment showing that any crime or fraud has been committed and the evidence of A. A. Ahmed, Esq. was able to establish that the fact of arrest and detention of the Appellant as claimed by the Appellant in his affidavit in support of his motion for extension of time was not at the instigation of the Respondent and counsel to the Appellant K. O. Ogbonna, Esq. never went to Abuja to secure the bail of the Appellant.

Finally, learned counsel argued that even where the Court holds that the evidence of CWA (A. A. Ahmed, Esq.) is in admissible the trial Court is bound to arrive at the same conclusion bearing in mind the testimony CWB, the admission of the Appellant as DWA and the exhibits admitted. He referred to

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YONGBISH V.  BUTUS (1997) 2 NWLR (PT 489) 624 and OGBIMI V. NIGER CONSTRUCTION LTD (2000-2006) 6 SCJE 860. Finally, counsel urged the Court to dismiss this appeal.

It is the Appellant?s contravention that the trial Court was wrong in admitting the evidence of CWA (A. A. Ahmed, Esq.) who acted as counsel to the Appellant in express contention of Section 192 (1), (2) and (3) of the Evidence Act 2011. Learned counsel for the Respondent argued that the evidence of CWA WAS PERFECTLY in order as Section 192 of the Evidence Act did not bar the witness from testifying.
Section 192 of the Evidence Act 2011 provides that:
192(1) No legal practitioner shall at anytime be permitted, unless with his client?s express consent to disclose any communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf of his client, or to state the contents or contention of any document with which he has become acquainted in the course and for the purpose of his professional employment or to disclose any advice given by him to his client in the course and for the purpose of such employment; provided that nothing in

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this section shall protect from disclose:-
(A) Any such communication made in furtherance of any illegal purpose; or
(B) Any fact observed by any legal practitioner in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment.
(2) It is immaterial whether the attention of such legal practitioner was or was not directed to such fact by or on behalf of his client?
(3) The obligation stated in this section continues after the employment has ceased.
The above section bars a legal practitioner from disclosing any communication made to him by his client in the course of employment or to disclose the contents of a document of which he became acquainted with in the course of his employment or to disclose any advice he gave his client in the course of his employment. However, this principle of non disclosure does not extend to communication made in furtherance of any illegal act or purpose or any fact showing that a crime or fraud has been committed since the commencement of his employment.
?The appellant?s grouse is the testimony of A. A. Ahmed

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Esq. a legal practitioner. From his evidence as can be seen from PP 122-126 of the records of proceedings, A. A. Ahmed, Esq. as CWA testified that a lady by name Worgu called him on phone on 15/10/2017 and requested him to secure the bail of her friend who lives in Port Harcourt and another at the Force Headquarters Abuja. At the police station he was shown a petition written against the suspects Ext 001 and upon perusal of the said petition he requested that the police should allow the matter to be settled. They were released on bail and both the application for bail and the bail bond were admitted in evidence and marked as exhibits 003 and 004 respectively. He also stated that he was the surety to the two suspects and they were released on bail on 18/10/2017. He finally stated that K. O. Ogbonna was never at the police force Headquarters.
?Now the conflict sought to be resolved by the above evidence is the Appellant?s deposition that up to the time of filing the motion for amendment of the statement of defence the Defendant/Applicant was still in police custody at Abuja, hence, he could not sign his further witness deposition and also bring his

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additional witness deposition. Furthermore, his counsel K. O. Ogbonna, Esq. also travelled to Abuja so as to effect the release of the Defendant/Applicant on bail, whereof he was out of town within the period of time to file the amended statement defence. On the strength of the evidence adduced to resolve the conflict in the affidavit evidence of parties, the trial Court held at P142 of the record thus:-
?On 3rd January 2018, 1st witness A. A. Ahmed, Esq. called by the claimant/Respondent testified. During cross examination, it was clear to this Honourable Court that he was the one that secured the bail of the Defendant. His name and signature are boldly crested on the bail bond, furthermore, just to be able to exhibit this fact before this Honourable Court, CWA also wrote a letter to the Deputy Inspector General of Police and the Commissioner of Police Homicide section, Criminal Intel & Invest. Dept. (FCID) Abuja to obtain a CTC of the bail bond evidencing same.
Now, relying on the testimony of A. A. Ahmed Esq. as CWA to refuse the second application for amendment of the statement of defence, can the evidence of A. A. Ahmed, Esq. be

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said to infringe the provisions of Section 192 (1),(2) and (3) of the Evidence Act 2011? The operative words in the section are disclosure of communication made with the client. In ABUBAKAR V. CHUKS (2007) LPELR 52 @ 15-16; TOBI, JSC (of blessed Memory) gave a meaning of the word ?disclose? in this way:-
“The operative and functional word in the section is ?disclose? the word means to make known, especially something that has been kept secret, publicly. Disclosure, the noun variant of the word ?disclose? means the act of disclosing secret facts. A person can only disclose a fact which is not known to public. In other words, a person can only disclose facts which are hidden from the public. And public here does act necessarily convey its general unguarded parlance of people in general or for use of many persons. It could mean for the use of any person. It conveys the opposite meaning of ?not? private?.?
From the above dicta, the issue is whether the communication in controversy can be regarded as a secret communication between a counsel and his client, or where documents are involved,

15

where the contents there of are regarded as secret as between a counsel and a client. In such situation, a counsel cannot divulge the information or contents of the documents without the express consent of the client.
CWA in this case who is a legal practitioner acting for the Appellant disclosed what he did to the Appellant when he was detained by the police. The act performed by CWA was to apply for bail of the Appellant and that was evinced by Exhibits 003 and the bail bond as in Exhibit 004. He also testified that K. O. Ogbonna Esq. was never at the police Headquarters at the time he alleged to have been there. Are these facts secret communications to warrant invoking the provisions of Section 192 (1), (2) and (3) of the Evidence Act 2011? I think not. This is so because the fact that CWA (A. A. Ahmed, Esq.) was not the only person aware that he acted for and applied for a bail of the Appellant. This being the case then, Exhibits 003 and 004 can also not be regarded as secret documents that CWA cannot disclose in Court. The fact relating to matters CWA testified are not only known to him and the Appellant but to many people. Those facts cannot be

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said to be secret communication between a counsel and his client. See IYEKE V. ABU (2015) LPELR 25735 and MAINSTREET BANK REGISTRARS LTD V. AHAIWE (2019) LPELR 40757.
Appeal dismissed with N 100.000 cost to the Respondent.

ISAIAH OLUFEMI AKEJU, J.C.A.: I have had the opportunity of reading the Judgment of my brother, ABUBAKAR MUAZU LAMIDO JCA. I agree to the reasoning of my learned brother and the conclusion that there is no merit in the appeal which I also dismiss. I abide by the consequential order.

BITRUS GYARAZAMA SANGA, J.C.A.: I have the privilege of reading in draft the judgment just delivered by my learned brother, ABUBAKAR MUAZU LAMIDO JCA. I agree with and adopt the finding and conclusion by my learned brother in the lead judgment that this appeal lacks merit.
?I also dismiss same and abide by the order as to cost.

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Appearances:

M.A. Ichi, Esq. holding brief of K.O. Ogbonna, Esq.For Appellant(s)

N.O. Ehroma, Esq.For Respondent(s)

 

Appearances

M.A. Ichi, Esq. holding brief of K.O. Ogbonna, Esq.For Appellant

 

AND

N.O. Ehroma, Esq.For Respondent