African Continental Bank Limited V. Alhaji Umoru Gwagwada (1989)
LawGlobal-Hub Lead Judgment Report
YEKINNI OLAYIWOLA ADIO, J.C.A.
The appellant’s claim against the respondent in the lower court was for the sum of N5,377,574.20 being money payable by the respondent to the appellant for money lent by the appellant to the respondent and for credit facilities granted by the appellant, as bankers, to the respondent at his request and for interest. The action was brought under the undefended list. The respondent filed a notice of intention to defend the action and served a copy thereof on the appellant. As a result, the lower court ordered the parties to file pleadings and pleadings were duly filed and exchanged. The appellant filed a Statement of Claim which is at pages 45-46 and the respondent filed a Statement of Defence which is at pages 47-51 of the record of proceedings.
The hearing of the case commenced and, at one stage during the hearing, the appellant’s counsel wanted or applied to tender the copy of the notice of intention to defend the action together with the affidavit and the documents attached to it, through one of its witnesses. The copy of the notice of intention to defend, the affidavit, and the documents attached to it (affidavit) are at pages 1, 2-5, and 6-42 respectively. The appellant wanted to tender it as an admission (by the respondent). An objection was raised to the admissibility of the documents (notice of intention to defend, affidavit and the documents attached to it) by the learned counsel for the respondent and they were rejected by the lower court on the ground that as the documents included an affidavit the relevant provisions of Section 34(1) of the Evidence Act had to be complied with. Dissatisfied with ruling of the lower court, the appellant has appealed to this court. The Notice of Appeal and the ground of appeal are at pages 65 and 66 of the record of proceedings. The ground of appeal and its particulars are as follows:-
“The learned trial Judge misdirected himself and erred in law by holding that Section 34 of the Evidence Act, precluded the plaintiff/appellant (from) tendering the rejected documents through their witness, P.W.1 – John Irukwu.
PARTICULARS OF MISDIRECTION
(a) The defendant/respondent is not a witness within the meaning of Section 34(1) of the Evidence Act.
(b) The learned trial Judge misconstructed (sic) the purport and effect of Section 34 of the Evidence Act.”
The parties, in accordance with the Rules of this court, filed and exchanged briefs. The appellant’s counsel filed appellant’s brief and the respondent’s counsel filed respondent’s brief. The appellant’s counsel filed a Reply brief for the appellant. There was only one issue framed for determination in the appellant’s brief and there was also one issue framed for determination in the respondent’s brief. I have, for reasons given elsewhere in this judgment, expressed the view that the affidavit in support of the notice of intention to defend, to which some other documents were attached, was necessary for the purpose for which the appellant wanted to tender the documents which the lower court rejected and that it was not a mere coincidence that the said affidavit was attached to the notice of intention to defend the action in the lower court.
For this reason, the issue formulated for determination in the respondent’s brief is preferable for the purpose of the determination of this appeal. The aforesaid issue for determination is as follows:-
“Whether the affidavit together with the annexures thereto sought to be tendered by the plaintiff at the lower court constitute ‘evidence in previous proceeding’ within the meaning of that expression in Section 34(1) of the Evidence Act and if the answer is in the affirmative whether the conditions prescribed by that Section were complied with to render the evidence admissible, in law.”
It was stated at page 3 of the appellant’s brief, that what the plaintiff wanted to tender was the copy of the notice of intention to defend the action together with the attachments and not necessarily the affidavit and that it was by mere coincidence that the notice had an affidavit as one of its attachments. The submission in the appellant’s brief and by its learned counsel was that the appellant was free, in law, to make use in any proceeding any document filed by the respondent in court which was served on the appellant. Eyifomi v. Ismail (1987) 2 N.W.L.R. (Pt.57) 459; Pritchard v. Bagshawe (1851) 138 E.R. 551; Richard v. Morgan (1853) 122 E.R. 600; Seismograph Service (Nig.) Ltd. v. Eyuafe (1976) 9-10 S.C. 135 at 146; Iga & Ors. v. Amakiri & Ors. (1976) 11 S.C. 1; Sanyaolu v. Coker (1983) 3 S.C. 124; and El-Khalil v. Oredein (1985) 3 N.W.L.R. (Pt.12) 37; at p.578 were cited.
The submission in the respondent’s brief and the oral submission of his learned counsel was that the affidavit together with the annexures sought to be tendered by the appellant constituted evidence given in an earlier stage of judicial proceedings and that by virtue of Section 34(1) of the Evidence Act they were inadmissible through the appellant’s witness. Practically all the cases cited by the appellant’s counsel were also cited in the brief of the respondent and/or by his learned counsel in addition to Ajao v. Owoseni (1986) 5 N. W.L. R. (Pt.45) 578 at 584 and Ajide v. Kelani (1985) 3 N.W.L.R. (Pt.12) 248.
It has to be pointed out straightaway that it is not correct to say that what the appellant wanted to tender was the copy of notice of intention to defend with attachments and not necessarily the affidavit in support of the notice and that it was by mere coincidence that the affidavit was one of the attachments to the notice. Indeed, the Reply brief of the appellant made it clear that the notice of intention to defend together with the documents attached to the affidavit alone would be meaningless and would not serve the purpose of the appellant. After setting out, in paragraph 1.6 at page 2 of the Reply brief, paragraph 17 of the Statement of Claim in which it was averred that the respondent opened Current Accounts Nos. 1372 arid 12540 and paragraph 16 of the Statement of Defence in which the respondent denied that he opened the said accounts, the learned counsel for the appellant stated, inter alia, in the Reply brief as follows:
“In effect the respondent categorically denied ever opening any accounts with the appellant numbered 1372 and 12540. Nevertheless, in the affidavit supporting his notice of intention to defend, the respondent himself deposed:
“That subsequent to the said Exhibit ‘A’, I have made various lodgments into my various accounts with the defendant Bank far in excess of the sum of N100,000 facilities. A breakdown of some of the said lodgments is as follows:-
The respondent then went on to give details of 36 lodgments, all of which were supported by exhibited copies of bank pay-in slip. Of these 36 lodgments, 21 were made into account number 1372, and 9 into account number 12540. How could the respondent have made lodgments into accounts which, according to him he……….never at any time proposed or authorised the opening of the accounts (See pages 3-4 of the Record of Proceedings).
In the light of these, the notice of intention to defend, its affidavit in support, and attached exhibits cannot be anything but admissions made by the respondent against his own interest; and the appellant has every right in law to seek their adduction as such.”
Apart from the relevant portion of the record of proceedings (page 8 of the record) which clearly showed that the documents which the learned counsel for the appellant tendered included the said affidavit, the foregoing portion of the Reply brief quoted above showed that the admission allegedly made by the respondent upon which the appellant would want to rely, for the purpose of contending that the respondent was estopped from denying that he opened or authorised the opening of current accounts numbers 1372 and 12540, could not be established or proved without the fact deposed to in paragraph 6 of the affidavit in support of the notice of intention to defend, which fact has also been quoted above. It was therefore, not by mere coincidence that the said affidavit was included in the documents attached to the notice of intention to defend which the appellants tendered in the lower court. The appellant needed the admission of the affidavit for the purpose of establishing the alleged admissions of the respondent.
What the respondent intended paragraph 6 of his affidavit (quoted above) to show was the fact that he had made various lodgments into his various accounts with the appellant far in excess of the sum of N100,000 facilities. Certainly, the portion of the Reply brief of the appellant, which I have quoted above, showed that the fact which the respondent used the affidavit, particularly paragraph 6 thereof, to establish, was not the same fact that the appellant wanted to use paragraph 6 of the said affidavit to establish. What the appellant wanted to use the alleged admission in paragraph 6 of the respondent’s affidavit to establish was that the respondent was estopped from denying that he opened or authorised the opening of current accounts numbers 1372 and 12540. In the circumstance Pritchard’s case and Richard’s case (supra) cited by the learned counsel for the appellant could not help the appellant’s case because the principle established in those cases is that affidavits or documents which a party has expressly caused to be made or used as true, in a judicial proceeding, for the purpose of proving a particular fact, are evidence against him in subsequent proceedings to prove the same fact, even on behalf of strangers. The principle was applied by this court in Eyifomi’s case (supra) in which Pritchard’s case and Richard’s case (supra) were cited with approval.
Assuming, for the purpose of argument, that the affidavit in question together with the documents attached thereto constituted evidence in a previous suit, the question is what are the legal principles governing or applying to the admission of such evidence in subsequent judicial proceeding? The Supreme Court in Ajide’s case (supra) reiterated the authorities and categorised them. Bello, J.S.C. (as he then was) stated, inter alia, at p.260, as follows:-
“The authorities may be categorised as follows:-
(1) Under section 34 of the Evidence Act, evidence given by a witness in a previous judicial proceeding, whether the witness was a party or not to the previous proceeding, is admissible in a subsequent judicial proceeding to prove the truth of the facts it states when the conditions specified by the section have been satisfied: Nahman v. Odutola (1953) 14 W.A.C.A. 381 at page 384 and Sanyaolu v. Coker (1983) 3 S.C 124 at page 155. Section 34 is not in issue in this appeal.
(2) Though admissions are not conclusive proof of the matters admitted, an admission of any fact in issue or relevant fact by a party or his agent, whether the admission was made in a previous judicial proceeding or not, is admissible in judicial proceeding against or on behalf of the maker under sections 19 to 26 inclusive of the Evidence Act: Joe Iga & Ors. v. Chief Amakiri (1976) 11 S.C. 1 at page 12 and Ojeigbe & Ors. v. Okwaranya & Ors. (1962) 1 All N.L.R. (Part 4) 605 at page 610.
It must be noted that if an admission is relied on as an estoppel, then it must be pleaded; K. Chellaram & Sons v. G. B. Olivant Ltd. (1944) 10 W.A.CA. 77; Ajayi v. Briscoe (Nig.) Ltd. (1964) 3 All N.L.R. 556 at pages 559-560 and Chukwura v. Ofachebe (1972) 1 All N.L.R. (Part 2) 514.
(3) Under section 198 of the Evidence Act evidence given by a witness in a previous judicial proceeding is admissible in a subsequent judicial proceeding to discredit the witness provided that the condition prescribed by the section have been satisfied: Nahman v. Odutola (supra) and Alade v. Aborishade (supra). ”
The appellant did not adopt the procedure prescribed under section 198 of the Evidence Act mentioned as the third category in the statement of Bello, J.S.C. (as he then was) quoted above because the appellant was not sure whether the respondent would testify during the proceedings in the case in the lower court. Evidence given in previous proceedings by a witness who is called in the present case can be used to impeach his credit under sections 207 and 209 of the Evidence Act but the evidence in the previous proceedings does not become evidence in the present case. If the two testimonies are inconsistent it shows that the witness is not credible. Olujinle’s case (supra). Having regard to the fear of the appellant that it was not sure whether the respondent would testify during the hearing of the case in the lower court, the foregoing procedure would not appear to be suitable from the point of view of the appellant. What one can say, however, is that the question whether the respondent would testify on his own behalf during the hearing of the case to enable the appellant to take advantage of the provisions of sections 198, 207 and 209 of the Evidence Act would not have become very important if it was realised that a plaintiff may call a defendant in the same case as his (plaintiffs) witness. See Obolo v. Aluko (1976) 3 S.C. 105. If a defendant called as a witness by the plaintiff, in the same case, without reasonable cause, becomes hostile as a witness, the law can take adequate care of that sort of situation.
As has been stated above, an admission of any fact in issue or relevant fact by a party, whether the admission was made in a judicial proceeding or not is admissible against the maker under sections 19-26 inclusive of the Evidence Act. Joe Iga’s case (supra). However, if an admission is relied upon as an estoppel, it must be pleaded. In this case, the affidavit and the documents attached to it were tendered not for the purpose of discrediting the respondent under section 198 of the Evidence Act or to impeach his credit under sections 207 and 209 of the Act but for the purpose of stopping him to assert that he did not at any time propose or authorise the opening of current accounts number 1372 and 12540.
In the circumstance, the appellant had invoked estoppel and, for that reason, estoppel ought to have been pleaded in the Statement of Claim otherwise the documents (affidavit and the documents attached to it) would not be admissible. See Ajide’s case (supra) at pp.260-262. There was no averment in the appellant’s Statement of Claim relating to the alleged admission or to the said affidavit and the documents attached to it.
With reference to the application of section 34(1) of the Evidence Act, as what the appellant wanted to do at the lower court did not fall within the second or the third category of evidence in previous judicial proceeding which is admissible in subsequent judicial proceeding mentioned above by Bello, J.S.C. (as he then was) and as sections 207 and 209 of the Evidence Act and the principle in Pritchard’s case and Richard’s case (supra) did not apply, the only conceivable provision of the Evidence Act, of any real significance, which comes to mind, in the circumstances of this case, is the provision of section 34(1) of the Act. I have no doubt in my mind that the affidavit in question together with the documents attached thereto constituted evidence given by a witness in a previous judicial proceeding which, subject to certain conditions, is admissible in subsequent judicial proceeding. Even in that case, the contention of the learned counsel for the respondent, with which I agree, was that the provisions of section 34(1) had not been complied with and, for that reason, the affidavit and the documents attached to it were not admissible. The answer to the question raised in the issue for determination above is that the affidavit together with the annexures thereto sought to be tendered in the lower court constituted “evidence given by a witness in a previous judicial proceeding” within the meaning of that expression in section 34(1) of the Evidence Act. The aforesaid evidence was not legally admissible as the conditions prescribed in the section were not complied with.
The appeal does not succeed. The ruling of the lower court rejecting the affidavit and the documents attached to it is affirmed. Case is remitted to the lower court for the hearing and determination of the case. I award N150 costs to the respondent.
Other Citations: (1989)LCN/0095(CA)
