NA ALLAH v. KOFAR KADE (NIG) LTD (2020)

NA ALLAH v. KOFAR KADE (NIG) LTD

(2020)LCN/13979(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Friday, March 20, 2020

CA/S/30/2019

Before Our Lordships:

Ahmad Olarewaju Belgore Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Between

ALH. ABUBAKAR NA ALLAH APPELANT(S)

And

KOFAR KADE NIGERIA LIMITED RESPONDENT(S)

RATIO

WHETHER OR NOT EVALUATION OF EVIDENCE IS WITHIN THE DOMAIN OF THE TRIAL COURT

It is now a common verse and a legal truism that the evaluation of evidence and the ascription of probative value to such evidence is primarily within the precinct or domain of the trial Court which heard, saw and observed the demeanor of the witnesses as they testified in the witness box. See Okoye & Anr vs. Obiaso & Ors (2010) 8 NWLR (Pt. 1195) 145; Lasisi vs. The State (2013) 9 NWLR (Pt. 1358) 74, Yadis Ltd vs. Ginic Ltd (2007) 30 INSCQR 495 at 518 – 519, and where this is evidently done by the trial Court, the Appellate Court which only deals with the cold record will be loath to interfere with the findings or disturb same even where it would have reached a different conclusion, if the decision of the trial Court is supported by evidence on record and is not perverse. See Nguma vs. A. G. Imo State (2014) 7 NWLR (Pt. 1405) 119, Gbileve vs. Addingi(2014) 16 NWLR (Pt. 1433) 394, Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 547.
​Therefore, in dealing with a complaint of non-evaluation of evidence by the trial Court, what the Appellate Court concerns itself with is whether “ex facie”, the trial Court performed its sacrosanct duty of assessing the evidence and correctly ascribing probative value to the evidence and not whether it (the appellate Court) would have arrived at a different conclusion, provided that the evidence on record supports the findings of the trial Court. See Ebba vs. Ogodo (1984) 5 SC 291, at 326. PER WAMBAI, J.C.A.

CIRCUMSTANCES WHERE THE APPELLATE COURT CAN INTERFERE WITH THE EVALUATION OF EVIDENCE OF THE TRIAL COURT

In other words, where evaluation of evidence is borne out from the evidence on record, the Appellate Court should not, in the absence of a perverse finding or conclusion, interfere with the evaluation even if it comes to the conclusion that it would have evaluated the evidence differently.
It is only where and when the trial Court fails to evaluate the evidence at all or properly that a Court of Appeal can intervene and evaluate or re-evaluate such evidence. See Golday Co. Ltd vs. CDB Plc (2003) 5 NWLR (Pt. 814) 586, Ebba vs. Ogodo (supra), Iwuoha vs. NIPOST (2003) 110 LRCN 1622. Consequently, an appellate Court interferes with the evaluation of evidence by the trial Court only where it is shown that the trial Court failed to evaluate the evidence at all or properly; where it made wrong inferences from the evidence or where the decision reached cannot be supported by the evidence or is perverse. See Odutola vs. Mabogunje (2013) 7 NWLR (Pt. 1354) 522.
​Then and only then can an appellate Court intervene to right the wrong and avert a miscarriage of justice. See Imah vs. Okogbe (1993) 9 NWLR (Pt. 316) 159, Amaremor vs. The State (2014) 10 NWLR (Pt. 1414) 1. See also the case of Mil. Govt. Lagos State vs. Adeyiga (supra) cited by the Appellant’s counsel. PER WAMBAI, J.C.A.

THE REQUIREMENT FOR TENDERING AN EXTRAJUDICIAL STATEMENT

The requirement of tendering an extra judicial statement through its maker is the same in civil proceedings as it is in a criminal trial. The police officer who recorded the statement or was a party to the recording of the statement must testify to tender the statement in evidence, and where the statement was recorded through an interpreter, both the officer who recorded the statement in English Language and the interpreter who interpreted the statement from and to the maker in the local dialect spoken and understood by the accused person, must also testify to attest to same and narrate how the interpretation was done. The evidence of both the recorder of the statement in English Language and the interpreter is vital if the statement is tendered to establish the truth of its contents. Unless this is done, the statement is hearsay and is inadmissible in evidence. It cannot be relied upon. SeeIfaramoye vs. The State (2017) 4 SCM, FRN vs. Usman & Anr (supra) as well as the cases of R vs. Ogbuewe (1949) 12 WACA 483, R vs. Sakwakwa (1960) 5 FSC 12, among others cited with approval in the FRN vs. Usman’s case per Rhodes Vivour JSC. PER WAMBAI, J.C.A.

WHETHER OR NOT THE RIGHT TO CROSS-EXAMINE THE RECORDER OF A STATEMENT BEFORE ANY PROBABTIVE VALUE IS PLACED ON IT IS PART OF AN APPELLANTS FUNDAMENTAL RIGHT TO HEAR HEARING

It is trite that any piece of evidence which the adversary has a right to cross-examine upon but is denied or otherwise deprived of such a right cannot be ascribed any probative value. The right to cross examine the recorder of the statement before any probative value could be placed on it is an integral part of the Appellant’s fundamental right to fair hearing. Ogolo vs. Fubara (2003) 11 NWLR (Pt. 831) 231, 262 B – C, Eze vs. FRN (2017) LPELR-42097 (SC). PER WAMBAI, J.C.A.

WHETHER OR NOT THE POLICE HAS THE POWER TO ACT AS A DEBT COLLECTOR OR SETTLE CIVIL DISPUTES

The question whether the police have the power to act as debt collectors or to settle civil disputes has severally been pronounced upon and settled. The police have no business and indeed no legal right to get involved in the settlement of civil disputes between parties or to act as debt recovery agents or collectors. The settlement of civil disputes or arrangement between two or more persons is not a matter for the police. Authorities in support of this statement, both of this Court and of the Supreme Court abound. We at this Court and indeed the apex Court have consistently and severally pronounced that the police are not and should not be used as debt collectors or agents, or in the resolution of civil disputes between private citizens. I shall cite only a few viz: Ibiyeye & Anr vs. Gold & Ors (2012) All FWLR (Pt. 669) 1074, Shitta-Bey vs. Fed. Civil Service Commission (1981) 1 SC (Reprint) 26 at 38, CBN & Anr vs. Igwillo (2007) 4 – 5 SC 154 at 174, Nkpa vs Nkume (2001) 6 NWLR (pt 710) 543 and Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 227 at 307.
I think this position has been stated and restated almost to the point of being over flogged. The constitutional duties of the police do not extend to the settlement of civil disputes or debt recovery. The functions of the police are as spelt out in Section 4 of the Police Act. It provides:
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties within or outside Nigeria as may be required of them by, or under the authority of this or any other Act”.
The above provision is clear. There is nothing in the provisions or in any law known to me that empowers the police to meddle in the settlement of civil disputes or to arbitrate between parties for recovery of debts or loans arising from or based on contractual or other civil transactions. The primary function of the police is for the prevention of crime, investigation and detection of crime as well as the prosecution of offenders. See Mclaren vs. Jennings (2003) 3 NWLR (Pt. 808) 470, Umoera vs. COP (1977) LPELR 3371 (SC). These functions from my scrutiny and understanding of the provisions do not include the enforcement of contracts, arbitration, debt collection or recovery. Such powers to handle or settle civil matters between private citizens or to act as debt collectors or agents are outside the powers donated to the police. Speaking earlier in the same tune through Iyizoba JCA, in Nwadiugwu vs. IGP & Ors (2015) LPELR-26027 (CA), this Court held (inter alia) “… the 1st to 5th Respondents are neither debt collectors nor Arbitrators and Section 24 of the Police Act does not list settlement of disputes or collection of debts among the duties of the police.” See also CBN & Anr vs. Igwillo (2007) 4 – 5 SC 154 at 174.
This is why the Courts have for long in a plethora of cases deprecated the resort by parties to the police for recovery of debts arising from contractual, commercial or other similar relationships and have also exhorted the police to desist from dabbling into such settlement of disputes. See for examples the cases of Abah vs. Union Bank of Nigeria Plc. & Ors (2015) LPELR – 24758 (CA), Oceanic Securities International Ltd vs. Balogun & Ors (2013) All FWLR (Pt. 677) 653 & Okafor vs. AIG Police Zone 11 Onikan & Ors (2019) LPELR-46505 (CA)and in particular, the recent decision of the Apex Court in the case of EFCC vs. Diamond Bank Plc & Ors (supra) where the Court reiterated that the EFCC is not a debt recovery agency and should refrain from being used as such. His lordship, Sidi Dauda Bage JSC (now HRH) who read the lead judgment pontificated as follows:
“I say this now and again, our security agencies, particularly the police, is not debt recovery agencies.” Obviously, for the police to coerce a citizen to make or being a party to the making of an undertaking to pay off money or debt to another is outside the functions of the police. It is an aberration and an usurpation of the function of the Court. It follows that any undertaking extracted by the police from any person for the payment of any money based on breaches of contract or other civil disputes between private citizens is ultra vires the powers of the police and is unenforceable. PER WAMBAI, J.C.A.

AMINA AUDI WAMBAI, J.C.A. (Delivering the Leading Judgment): The judgment of Hon. Justice Bello Duwale of the Sokoto State High Court delivered on 12/03/2018 which dismissed the Appellant`s counter claim and entered judgment in favour of the Respondent gave rise to this Appeal.

The Appeal is in respect of a business transaction initially between Alhaji Mu`azu Jodi as an individual and the Appellant, and upon incorporation as a private limited liability company, between the Respondent (Alhaji Mu’azu Jodi being its alter ego), and the Appellant. The transaction was for the sale of assorted goods, essentially building materials, which lasted for about 42 years before it broke down in 2016. The dispute is over the shortfall, in 2016, of the stocks under the care and management of the Appellant which prompted the Respondent, upon the Appellant`s failure to account for the said goods or their monetary value, to approach the lower Court where it claimed the sum of ₦37,006,722.00 (thirty seven million, six thousand, seven hundred and twenty-two naira) only being the balance of the value of goods entrusted to the defendants (Appellant) for sale in the

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normal course of trading which proceeds the Appellants failed, refused or neglected to hand over or account for to the plaintiff (Respondent). It also claimed 10% interest of the said sum.

In denial of the claim, the Appellant filed a statement of defence and also counter-claimed against the Respondent the sum of ₦42,000,000.00 (forty-two million Naira) only being his entitlement for the profits realized in the transaction over the 42 years period on an annual profit of ₦1,000,000.00 (one million Naira) a claim which the Respondent denied in the defence to the counter claim. The Respondent called 3 witnesses who adopted their written statements on oath and tendered several Exhibits. Similarly, in support of the counter-claim, the Appellants also called 3 witnesses but tendered no exhibit. Judgment was entered for the Respondent and the Appellant’s counter claim was dismissed.

Aggrieved by the decision, the appellant commenced this appeal, the notice of which was filed on 25th April, 2018 upon six (6) grounds of appeal from which Sanusi Garba Esq who settled the Appellant`s brief of argument filed on 29/3/2019 crafted 3 issues for

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determination namely;
1. Whether the lower Court properly evaluated all the oral and documentary evidence before it with regards to the extant pleadings before the Court, before arriving at the decision.
2. Whether the lower Court was right to have dismissed the appellant’s claim before it.
3. Whether the lower Court was right to have to have granted the respondent’s claim against the appellant which was centered on an allegation of crime which has not been proved beyond reasonable doubt.

On the part of the Respondent whose brief of argument filed on 14/8/2019 was settled by B.M Jodi Esq, 3 issues substantially the same with those of the Appellants were nominated for determination, to wit:
1. Whether the lower Court properly evaluate the evidence led by the parties before the Court and arrived at the right conclusion. (This issue is distilled from ground 1, 2, 4 and 5 of the ground of appeal.)
2. Whether the lower Court was right to have dismissed the Appellant`s claim before it. (This issue is distilled from ground 3 of the ground of appeal.)
3. Whether the Respondent had discharged the burden of proof on it

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and was entitled to the judgment entered in its favour by the lower Court. (This issue is distilled from ground 6 of the ground of appeal.)

Reading through the issues submitted by both parties and viewed passionately, it is my view that the 1st issue formulated by the Appellant’s counsel is sufficient to determine this appeal which for succinctness is reframed as follows: –
WHETHER THE LOWER COURT PROPERLY EVALUATED THE EVIDENCE WHEN IT ENTERED JUDGMENT IN FAVOUR OF THE RESPONDENT AND DISMISSED THE APPELLANT`S COUNTERCLAIM.

The contention of the learned Appellant`s counsel on his first & 3rd issues is that exhibits A, B, & B1, C & C1, D & D1, E & E1, F, G & G1 and G2 and H upon which the judgment was predicted ought not to have been accorded any probative value having not been properly admitted.

For exhibit A, which is the purported undertaking made by the Appellant to pay the sum of ₦27,000,000.00, it was submitted if properly evaluated, neither aids the respondent`s case nor impose any liability on or enforceable against the appellant in favour of the Respondent as it is only an undertaking to pay the said

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sum to the office of the Assistant Inspector General of police (A.I.G.) to which no oral evidence should, by virtue of Section 128 (1) of the Evidence Act, be allowed to contradict or vary as held in the cases of N.I.D.B VS OLALOMI LTD (2002) 5 NWLR (PT 761) 532, 555 AND UBN VS OZIGI (1994) 3 NWLR (PT 333), 385, thus, he contended that the learned trial judge was wrong to have linked its contents to the Appellant and to have held that oral evidence could be used to determine the meaning of the contents of a document.

Furthermore, it was submitted that exhibit A is null, void and unenforceable against the appellant since it is not connected to any crime or criminal complaint and the police or any security agency not being a debt collector. The enforcement of the contents of Exhibit A he argued, amounts to an infringement of the fundamental right of the Appellant, citing in support the cases of OSIL VS BALOGUN (2002) 38 W.R.N. 143 @ 150 and E.F.C.C VS DIAMOND BANK PLC & ORS (2018) LPELR 44217 (SC).

For exhibits B, B1, C & C1, D & D1, E & E1 which represent the purported inventory or stock taking, it was contended that in addition to their

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improper admission in evidence having not been attached to the amended statement of claim as required by law but to the defence to the Appellant`s counter-claim which was overtaken by the subsequent joint Amended Statement of Defence and Counter-claim filed by the Appellants, same have no origin or link to the Appellant and ought not to have been ascribed any probative value or weight though admitted without objection. The cases of A.C.B. LTD VS. ALH. UMARU GWAGWADA (1994) 5 NWLR (PT 342) 25, & BELGORE VS AHMED (2012) 27 WRN 68 @ 77 were cited.

As for exhibits F, G, G1, G2 and H, the contention is that the said exhibits being extra-judicial statements of the Appellant and the 2nd and 3rd defendants at the lower Court, they are inadmissible and no weight ought to have been attached to them having not being tendered through their makers or recorders but through counsel from the bar, FRN VS MOHAMMED USMAN & 10 ORS (2012) 3 SC (PT 1) 128 @ 136- 137. Moreover, he argued even if properly admitted, the Appellant having not admitted liability in respect of the Respondent`s claim, the contents do not impose any liability on the Appellant.

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Learned counsel then urged us to interfere with the perverse finding and decision arrived at by the lower Court occasioned by the said improper evaluation of evidence and to hold that the Respondent did not prove its case to entitle it to the reliefs claimed, more so that the Respondent`s claim is hinged on an allegation of crime which must be proved beyond reasonable doubt but which the Respondent failed to do, citing the case of OTUKPO VS JOHN (2012) 38 WRN 1 @ 6 in further urging us to resolve the issue in favour of the Appellant.

On his issue No. 2, it was submitted that the Appellant proved the counter-claim but the Lower Court wrongly reckoned with and relied on the earlier reply filed by the Respondent which had been overtaken by the subsequent amendment to the statement of defence and counterclaim and thereby erroneously dismissed the counter-claim. He contended that the Respondent having failed to file a defence to the Amended Joint Statement of Defence and Counter-claim filed on 31/7/2017, he was deemed to have admitted same since the earlier defence filed to the statement of defence and counter-claim had been overtaken by the amended joint statement of

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defence and counterclaim.

In urging us to resolve the issue in favour of the Appellant ,allow the appeal and set aside the judgment of the Lower Court, we were also urged to grant the Appellant`s counter-claim.

On the part of the Respondent, it was submitted on its issues 1 and 3 that the said exhibits A to H and the evidence of PW1, PW2 and PW3 which are legally admissible evidence in support of the pleaded facts in paragraphs 4-10, 14-17 of the amended statement of claim, were properly evaluated by the learned trial judge before entering judgment in favour of the Respondent. To demonstrate a thorough evaluation of the evidence by the Lower Court, our attention was drawn to pages 292-300 in particular where the Court found that the said exhibits and the oral evidence of the witnesses are relevant to the pleaded facts that the Appellant was placed in charge of the goods worth ₦53,000,000.00 in 2015 which had depleted to ₦16M by the inventory taken in the year 2016. That Appellant admitted the stock taking in 2013, 2014, 2015 and 2016 which findings he argued, is corroborated by the Appellant himself as DW3 in cross-examination as well as by

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DW1 and DW2 and is thus conclusive & binding having not been appealed against.

On the Appellant`s submission that the Lower Court ought not to have relied on the evidence elicited from PW1, PW2, PW3, DW1, DW2 and DW3 to link the exhibits A-E1 to the Respondent, it was submitted that the Court below rightly relied on the evidence to draw the inference that the said exhibits relate to the Respondent’s claim. Reference was made to the provisions ofSections 4, 5, 7(e), 9(b) & 129 (4), (7), (8) and (9) of the Evidence Actwhich permit the admissibility of facts which are so connected with a fact in issue or fact which are the occasion, cause or effect of relevant facts as well as the admission of oral evidence in such circumstances to ascertain the relationship of words of a document to facts to which such words refer or are probably intended to refer. It was thus contended that the reliance placed by the Lower Court on the evidence of the said witnesses to relate the contents of exhibit A to the Respondent as the person meant to whom the sum of ₦27M was to be paid and the Appellant as the person on whose authority exhibits B, B1, C, C1, D, D1, E

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and E1 were made, is only to show the circumstances, or occasion and the person for whose benefit the undertaking was made as analyzed by the Court, which in his opinion, does not amount to relying on oral evidence to vary the contents of a document prohibited by Section 128 of the Evidence Act.

Similarly, on the submission that the Respondent`s claim being anchored on a criminal allegation must be proved beyond reasonable doubt, our attention was drawn to pages 298 line 1-3 where the learned trial judge evaluated the evidence of the Respondent`s witnesses as well as the Appellant`s evidence as DW3 in cross examination, applied the said criminal standard of proof, and found that the Appellant did not dispute the shortfall in the said sum of ₦37M which made him to write the undertaking in Exhibit A and thus found the Respondent`s case proved beyond reasonable doubt.

Having so evaluated the evidence on the correct standard of proof, it was submitted that it would be improper for this Court to intervene in the matter, evaluation of evidence being the primary function of the trial Court which it had properly discharged. The case of GOV. OF LAGOS STATE v.VS ADEYIGA (2012) 30 WRN 1 @ 13 -14

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was cited in support.

On his issue No 2 which deals with the Appellant`s counter-claim, it is also the contention of the learned Respondent’s counsel that the lower Court rightly dismissed same for want of proof by the Appellant.

On the non-filing of defence to the amended statement of defence and counter-claim which the learned Appellant`s counsel hinged his submission on to contend that the respondent is deemed to have admitted the counter-claim, learned counsel argued, is of no moment as there is no legal obligation on a party to file an amended process simply because his adversary has effected an amendment to his process even where such amendment has not introduced any new fact, the Respondent having earlier filed a defence to the initial statement of defence and counter-claim to which no new facts were introduced by the amendment, nor is the Court precluded from reckoning with the extant valid process before it (the defence to statement of defence and counter-claim) provided they are not withdrawn by the party.

It was further submitted that even on the merit of the counterclaim, the Appellant adduced

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no direct, clear, positive and cogent evidence to sustain the assertion to entitle him to judgment, just as the amount of ₦42M claimed stands against reason, urging us to resolve the issue against the Appellant and in favour of the Respondent to dismiss the Appeal.

RESOLUTION OF APPEAL
The Appellant’s main complaint in this appeal is that of improper evaluation of evidence by the learned trial Judge resulting in his perverse finding and conclusion adjudging the Appellant to pay the sum of ₦37,000,000.00 to the Respondent while dismissing the Appellant’s counter-claim of ₦42,000,000.00 against the Respondent. The Appellant has thus sought our interference with the said finding and conclusion and the setting aside of the judgment.

On his part, the Respondent in defence of the judgment, applauded the evaluation of the evidence by the lower Court and beseeched us not to intervene but to allow the judgment stand.

It is now a common verse and a legal truism that the evaluation of evidence and the ascription of probative value to such evidence is primarily within the precinct or domain of the trial Court which heard, saw and

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observed the demeanor of the witnesses as they testified in the witness box. See Okoye & Anr vs. Obiaso & Ors (2010) 8 NWLR (Pt. 1195) 145; Lasisi vs. The State (2013) 9 NWLR (Pt. 1358) 74, Yadis Ltd vs. Ginic Ltd (2007) 30 INSCQR 495 at 518 – 519, and where this is evidently done by the trial Court, the Appellate Court which only deals with the cold record will be loath to interfere with the findings or disturb same even where it would have reached a different conclusion, if the decision of the trial Court is supported by evidence on record and is not perverse. See Nguma vs. A. G. Imo State (2014) 7 NWLR (Pt. 1405) 119, Gbileve vs. Addingi(2014) 16 NWLR (Pt. 1433) 394, Hassan vs. Aliyu (2010) 17 NWLR (Pt. 1223) 547.
​Therefore, in dealing with a complaint of non-evaluation of evidence by the trial Court, what the Appellate Court concerns itself with is whether “ex facie”, the trial Court performed its sacrosanct duty of assessing the evidence and correctly ascribing probative value to the evidence and not whether it (the appellate Court) would have arrived at a different conclusion, provided that the evidence on record

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supports the findings of the trial Court. See Ebba vs. Ogodo (1984) 5 SC 291, at 326. In other words, where evaluation of evidence is borne out from the evidence on record, the Appellate Court should not, in the absence of a perverse finding or conclusion, interfere with the evaluation even if it comes to the conclusion that it would have evaluated the evidence differently.
It is only where and when the trial Court fails to evaluate the evidence at all or properly that a Court of Appeal can intervene and evaluate or re-evaluate such evidence. See Golday Co. Ltd vs. CDB Plc (2003) 5 NWLR (Pt. 814) 586, Ebba vs. Ogodo (supra), Iwuoha vs. NIPOST (2003) 110 LRCN 1622. Consequently, an appellate Court interferes with the evaluation of evidence by the trial Court only where it is shown that the trial Court failed to evaluate the evidence at all or properly; where it made wrong inferences from the evidence or where the decision reached cannot be supported by the evidence or is perverse. See Odutola vs. Mabogunje (2013) 7 NWLR (Pt. 1354) 522.
​Then and only then can an appellate Court intervene to right the wrong and avert a miscarriage of justice. See

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Imah vs. Okogbe (1993) 9 NWLR (Pt. 316) 159, Amaremor vs. The State (2014) 10 NWLR (Pt. 1414) 1. See also the case of Mil. Govt. Lagos State vs. Adeyiga (supra) cited by the Appellant’s counsel.

Now, it behooves on a party like the Appellant who complaints of improper or non-evaluation of evidence and seeks the reversal of the judgment on that ground, to identify in detail the piece or pieces of evidence not evaluated or improperly evaluated and in addition, to show convincingly that if the said evidence had been evaluated or properly evaluated, the conclusion reached would have been different and in his favour. See Igago vs. State (1999) LPELR 1442 (SC).

The Appellant has raised specific complaints in relation to the evaluation of the evidence by the lower Court, to wit, that –
(i) the documents, Exhibits A, B – E1, F – H which the learned trial Judge heavily relied upon to arrive at its findings and conclusion were not properly admitted in evidence;
(ii) they are not connected to the case of the Respondent or linked to the Appellant;
(iii) they do not prove the Respondent’s claim against the ​Appellant;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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(iv) the defence to counter-claim and its attachments dated 25/4/2017 ought not to have been relied upon to dismiss the counter-claim, same having been overtaken by the subsequent amendment to the statement of defence and counter-claim filed on 31/7/2017.

It is clear from the judgment of the lower Court that the two key documents relied upon by the learned trial Judge in finding for the Respondent, other than the documents relating to the stock taking/inventory, exhibits B – E1, are exhibits A and F. Exhibit A is the undertaking purportedly made by the Appellant to pay the sum of ₦27,000,000.00. (₦27m) and Exhibit F is the extra judicial statement of the Appellant made to the police at the office of the A.I.G. of Police Zone 10 Sokoto.
I will start with Exhibit F. Exhibit F was made by the Appellant and recorded by a police officer in the course of investigating a complaint lodged against the Appellant by the Respondent.​
As conceded by the learned Respondent’s counsel, exhibit F was tendered from the bar, which he contends is proper, the extra judicial statement being a certified true copy of a public document and the

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proceedings in which it was tendered being civil in nature. The trial Court in taking the same position and discountenancing the submission of the Appellant’s counsel, in admitting the statement, held at page 297 of the record, as follows:-
“Mr Sanusi said the extra judicial statement of the defendants to the police exhibits F – H is only admissible through the maker. He therefore urged the Court to expunge the exhibits because they were not tendered through the maker. He referred the Court to the case of FRN vs. MOHD USMAN & 1 OR (2012) 3 SC (Pt. 1) 128 AT 136 – 137. Exhibits F – H being certified true copies of public documents they are admissible from the bar in the civil proceeding as in the instant case. It is only in criminal cases that they are only admissible through the maker or a member of the investigation team in the absence of the maker. I therefore hold that the exhibits were properly admitted in evidence.”
Let me straightaway, with respect, state emphatically that the learned trial Judge got it all wrong. His position is not supported by law. The correct position of the law is that an

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extra judicial statement tendered in a criminal or civil trial to establish the guilt of the maker or the claim against him to be admissible in evidence and relied upon, must be tendered through the police officer who recorded the statement or a member of the investigation team who witnessed the recording of the statement. See Oguno vs. State (2013) 15 NWLR (Pt.1376) 1 It cannot be tendered from the bar.
The requirement of tendering an extra judicial statement through its maker is the same in civil proceedings as it is in a criminal trial. The police officer who recorded the statement or was a party to the recording of the statement must testify to tender the statement in evidence, and where the statement was recorded through an interpreter, both the officer who recorded the statement in English Language and the interpreter who interpreted the statement from and to the maker in the local dialect spoken and understood by the accused person, must also testify to attest to same and narrate how the interpretation was done. The evidence of both the recorder of the statement in English Language and the interpreter is vital if the statement is tendered to establish

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the truth of its contents. Unless this is done, the statement is hearsay and is inadmissible in evidence. It cannot be relied upon. SeeIfaramoye vs. The State (2017) 4 SCM, FRN vs. Usman & Anr (supra) as well as the cases of R vs. Ogbuewe (1949) 12 WACA 483, R vs. Sakwakwa (1960) 5 FSC 12, among others cited with approval in the FRN vs. Usman’s case per Rhodes Vivour JSC.
Surely, the law cannot be as propounded by the learned trial Judge that a certified true copy of an extra judicial statement can be tendered from the bar in a civil proceeding. Doing so would deprive the person against whom it is tendered the opportunity of cross-examining on it. Undoubtedly, that cannot be the law.
The right of the Appellant to cross-examine the recorder and the interpreter of exhibit F is both statutory and constitutional. See Sections 214(2), 215(1), and 223 etc., of the Evidence Act and Section 35(6)(d) of the 1999 Constitution (as amended). Innocent vs. State (2013) LPELR 21200 (CA). Such a right cannot be taken away on the ground that the proceedings in which it was tendered is civil in nature. In so far as the purpose of tendering exhibit F

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was to support the Respondent’s case, it is immaterial that it was tendered in a civil suit. What matters is that it was tendered to establish the Respondent’s case, and was evidently relied upon by the Court in arriving at its findings and conclusion.​
It is trite that any piece of evidence which the adversary has a right to cross-examine upon but is denied or otherwise deprived of such a right cannot be ascribed any probative value. The right to cross examine the recorder of the statement before any probative value could be placed on it is an integral part of the Appellant’s fundamental right to fair hearing. Ogolo vs. Fubara (2003) 11 NWLR (Pt. 831) 231, 262 B – C, Eze vs. FRN (2017) LPELR-42097 (SC). Alas, the learned trial Judge jettisoned this right by the erroneous position held by him that the extra judicial statement could be tendered from the bar thereby depriving the Appellant of the right and opportunity to cross-examine on the statement. This renders exhibit F irrelevant and of no probative value, more so that the Appellant whom the Respondent’s witnesses admit does not understand English Language, maintains that

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he did not volunteer any statement in English Language to the police. (See paragraph 15 of the amended statement of defence at page 206 of the record). Surely, the reliance placed on exhibit F by the Court is a violation of the Appellant’s right to fair hearing. See P.H.M.B vs. Edosa (2001) 5 NWLR (Pt. 707) 612, Ogolo vs. Fubara (supra). Consequently, I cannot but agree with the learned Appellant’s counsel that exhibit F ought not to have been admitted from the bar and having been wrongly admitted, ought not to have been relied upon in finding for the Respondent.

On exhibit A which the lower Court relied upon to hold that the Appellant undertook to pay the Respondent the sum of ₦27,000,000.00, counsel’s grouse is that the said exhibit also being an extra judicial statement ought not to have been admitted from the bar but through its maker; that not based on any crime or criminal allegation against the Appellant nor refers to the Respondent or imposes any liability on the Appellant to pay the said sum to the Respondent, the learned trial Judge ought not to have admitted any oral or extrinsic evidence to link its contents to the

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Respondent. Further, that since the police is not a debt collector, exhibit A is unenforceable and its enforcement against the Appellant infringes on his fundamental right.

The aspect of tendering in evidence an extra judicial statement not through its maker, which Exhibit A also is, has been dealt with and settled with respect to Exhibit F. The reasoning and conclusion therein abides exhibit A with equal force notwithstanding that exhibit A was tendered through the Respondent’s alter ego (Alhaji Mu’azu Jodi).

The other aspect of the grouse worth considering next is that of the enforceability of exhibit A being an undertaking purportedly made to the police with respect to a contractual transaction between the parties. Exhibit A reads:-
“Today being Wednesday 05/10/2016 at about 11.30hrs, I Alhaji Abubakar Gidan Igwai Area, Sokoto voluntarily undertake that I promise to bring the sum of twenty-seven million naira ₦27,000,000.00k to this office of the Assistant Inspector General of Police which I will start from the month of October and I will ended in the month of November. I will not fail, if I fail the authority

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will take the legal action against me.”
The undisputed facts are that the Respondent lodged a complaint at the office of Assistant Inspector General of Police (A.I.G.) Zone 10 Sokoto. Pursuant to the said report, the Appellant and his two sons, the 2nd and 3rd defendants, were arrested, detained and exhibit A was made. Exhibit A though signed by the Appellant was written by the police in English language which the Appellant maintains he does not understand.
At paragraph 14 of the Appellant’s amended statement on oath at page 205 of the record, the Appellant averred:-
“14. That instead of rewarding me for long years of service, the Plaintiff and Alh. Muazu Jodi reported me and my children to the police at AIG Zone 10 office Sokoto, where we were detained for days despite the fact that the transaction between me and the said Alh. Muazu Jodi is civil in nature.”
​This evidence was not challenged in cross-examination. In fact, the entire record and argument of both counsel support the fact that the transaction between the parties is civil in nature yet the Appellant and his two sons were detained and exhibit A made on 5/10/2016

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after his extra-judicial statement, exhibit F, was made on 26/9/2016. There has been no criminal proceedings against the Appellant in respect of the complaint.
It is obvious that Exhibit A was made after the police deemed it inexpedient or not feasible to proceed with the criminal investigation and prosecution of the Appellant. At that stage, what the police ought to have done was to advise the Respondent to follow up its civil claim against the Appellant and his two children in a civil Court rather than asking them to execute exhibit A. It was not for the police to act as a debt collector or an institution for settling civil disputes.​
The question whether the police have the power to act as debt collectors or to settle civil disputes has severally been pronounced upon and settled. The police have no business and indeed no legal right to get involved in the settlement of civil disputes between parties or to act as debt recovery agents or collectors. The settlement of civil disputes or arrangement between two or more persons is not a matter for the police. Authorities in support of this statement, both of this Court and of the Supreme Court

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abound. We at this Court and indeed the apex Court have consistently and severally pronounced that the police are not and should not be used as debt collectors or agents, or in the resolution of civil disputes between private citizens. I shall cite only a few viz: Ibiyeye & Anr vs. Gold & Ors (2012) All FWLR (Pt. 669) 1074, Shitta-Bey vs. Fed. Civil Service Commission (1981) 1 SC (Reprint) 26 at 38, CBN & Anr vs. Igwillo (2007) 4 – 5 SC 154 at 174, Nkpa vs Nkume (2001) 6 NWLR (pt 710) 543 and Amaechi vs. INEC (2008) 5 NWLR (Pt. 1080) 227 at 307.
I think this position has been stated and restated almost to the point of being over flogged. The constitutional duties of the police do not extend to the settlement of civil disputes or debt recovery. The functions of the police are as spelt out in Section 4 of the Police Act. It provides:
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform such military duties

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within or outside Nigeria as may be required of them by, or under the authority of this or any other Act”.
The above provision is clear. There is nothing in the provisions or in any law known to me that empowers the police to meddle in the settlement of civil disputes or to arbitrate between parties for recovery of debts or loans arising from or based on contractual or other civil transactions. The primary function of the police is for the prevention of crime, investigation and detection of crime as well as the prosecution of offenders. See Mclaren vs. Jennings (2003) 3 NWLR (Pt. 808) 470, Umoera vs. COP (1977) LPELR 3371 (SC). These functions from my scrutiny and understanding of the provisions do not include the enforcement of contracts, arbitration, debt collection or recovery. Such powers to handle or settle civil matters between private citizens or to act as debt collectors or agents are outside the powers donated to the police. Speaking earlier in the same tune through Iyizoba JCA, in Nwadiugwu vs. IGP & Ors (2015) LPELR-26027 (CA), this Court held (inter alia) “… the 1st to 5th Respondents are neither debt collectors nor

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Arbitrators and Section 24 of the Police Act does not list settlement of disputes or collection of debts among the duties of the police.” See also CBN & Anr vs. Igwillo (2007) 4 – 5 SC 154 at 174.
This is why the Courts have for long in a plethora of cases deprecated the resort by parties to the police for recovery of debts arising from contractual, commercial or other similar relationships and have also exhorted the police to desist from dabbling into such settlement of disputes. See for examples the cases of Abah vs. Union Bank of Nigeria Plc. & Ors (2015) LPELR – 24758 (CA), Oceanic Securities International Ltd vs. Balogun & Ors (2013) All FWLR (Pt. 677) 653 & Okafor vs. AIG Police Zone 11 Onikan & Ors (2019) LPELR-46505 (CA)and in particular, the recent decision of the Apex Court in the case of EFCC vs. Diamond Bank Plc & Ors (supra) where the Court reiterated that the EFCC is not a debt recovery agency and should refrain from being used as such. His lordship, Sidi Dauda Bage JSC (now HRH) who read the lead judgment pontificated as follows:
“I say this now and again, our security agencies, particularly the police, is not debt recovery agencies.”

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Obviously, for the police to coerce a citizen to make or being a party to the making of an undertaking to pay off money or debt to another is outside the functions of the police. It is an aberration and an usurpation of the function of the Court. It follows that any undertaking extracted by the police from any person for the payment of any money based on breaches of contract or other civil disputes between private citizens is ultra vires the powers of the police and is unenforceable.
Indeed, as pointed out in the case of Bernard Anogwie & Ors vs. Ebere Odom & Ors (2016) LPELR 40214 per Oho JCA, any invitation to the police to intervene in a matter that is purely civil in nature cannot be justified and I will add, cannot be allowed, under any circumstance. It therefore behooves on the police and other law enforcement agents to properly scrutinize all complaints no matter how crafted by the complainants and be bold enough, where appropriate, to advise complainants to seek appropriate civil redress in resolving their disputes. It is only by turning down invitations or entreaties by complainants to

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recover debts or loans arising from simple contracts or purely civil transactions that the police can focus their attention on their constitutionally assigned duties. See EFCC vs. Diamond Bank Plc. (supra), Skye Bank Plc vs. NJoku (2016) LPELR-40447 (CA).

All said and done I cannot but agree with the submission by the learned Appellant’s counsel that reliance on and weight ascribed to exhibit A as well as exhibit F by the learned trial Judge in arriving at his findings and conclusion, constitutes an infringement on the Appellant’s right to fair hearing. In other words, the decision of the lower Court predicated essentially on exhibits A and F is in breach of the Appellant’s right to fair hearing.
The effect of this decision that the lower Court breached the Appellant’s right to fair hearing is that the entire proceedings before it howsoever meritorious it would otherwise have been, is null and void. It is trite that any decision reached in breach of the right to fair hearing will not be allowed to stand on appeal irrespective of the merit of the case. See F.B.N. Plc vs. T.S.A. Industries Ltd (2010) 15 NWLR (Pt. 1216) 247.

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It would therefore, amount to an exercise in futility to proceed further with the other aspects of this appeal. What is left is to formally declare the entire proceedings in suit No. SS/27/2017 leading to this appeal a nullity and it is so declared.

In effect the issue is resolved in favour of the Appellant. The result is that the appeal succeeds and is allowed. Consequently, the matter is remitted to the Hon. Chief Judge of Sokoto State for trial de novo by a Judge other than Hon. Justice Bello Duwale.

Parties shall bear their costs. These shall be the orders of this Court.

AHMAD OLAREWAJU BELGORE, J.C.A.: I had the privilege of reading in draft, the judgment just delivered by my learned brother, AMINA AUDI WAMBAI, JCA.

I agree entirely with his reasoning and conclusion which I adopt as mine. I also adopt the consequential orders contained in the lead judgment including the orders as to cost.

FREDERICK O. OHO, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, AMINA A. WAMBAI, JCA and I am in agreement with the

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reasoning and conclusion reached in adjudging the appeal as meritorious and in remitting the matter to the Hon. Chief judge of Sokoto State for reassignment to another Judge for purposes of hearing the suit de novo. Parties are to bear their respective costs.

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Appearances:

Sanusi Garba, Esq. For Appellant(s)

B.M. Jodi, Esq. For Respondent(s)