Afribank Nigeria Plc V. Francis Shanu & Anor (1996)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

The applicant is one of the leading licensed commercial banks in the country with branches in many parts of the country. It is also the appellant in the substantive appeal in the present case now pending in this court. The respondents are also the respondents in the same appeal. The applicant has in this motion prayed the court for the following reliefs:- “1. pursuant to the court’s inherent jurisdiction granting it leave to raise and argue a point of law not raised in the court below, namely, the admissibility and use as evidence in the trial before Edokpayi J. of the testimonies of the 1st plaintiff and the defence witnesses taken before Obi J. in terms of ground 2 of the proposed grounds of appeal contained in the schedule hereto; 2. pursuant to Order 3 rules 2(5) and 16 of the Court of Appeal Rules hereinafter called “the Rules” granting it leave to amend the notice and grounds of appeal contained at pages 242 and 243 of the record of appeal by substituting the grounds of appeal therein with the proposed grounds of appeal contained in the said schedule; 3. Pursuant to section 16 of the Court of Appeal Act and the court’s inherent jurisdiction:- (a) directing that the original notes of Obi J. of the evidence of Henry Ama Ugoji who testified as DW 9 before Obi J. be produced before this Honourable Court; and (b) amending page 11230 – 32 of the record of appeal herein containing the evidence of DW 9 which reads:- “we have records in our book of account for the receipt of 25 million U.S dollars during the period connected with this case.” by substituting for that sentence, the sentence:- “we have no records in our book of account for the receipt of 25 million US dollars during the period connected with this case.” and 4. pursuant to Order 3 rule 4(1) of the Rules extending the time within which the appellant may file its brief of argument;” The motion was supported by two affidavits sworn to respectively by Ebun Olusegun Sofunde, SAN, learned Senior Counsel for the applicant, and Henry Ama Ugoji, a banker in the employment of the applicant. The fourth prayer of the motion was not opposed. Similarly prayer 2 was not opposed provided the amendment would not include ground 2. The other prayers were however, opposed. To that end a 13-paragraph affidavit sworn to by Chidi Nwuke, a legal practitioner, was filed. The facts relied on in support of the application are set out in the two affidavits filed in support of the motion. Mr. Sofunde SAN deposed, inter alia, as follows in paragraphs 2, 3, 4, 15, 17 and 18 of his afore-mentioned affidavit:- “2. I have read the record of proceedings herein and I am aware of the following as a result thereof:- (a) there was an application before the learned trial Judge brought by the plaintiffs to use the evidence led at the trial before Obi J, before the learned trial judge. The application is at page 119 and the supporting affidavit is at pages 120 to 122 of the record. (b) the application does not appear to have been opposed and it was granted. This is brought out by page 138 30-33 and page 204 8-18 of the record. 3. After perusing the record of appeal sequel to instructions to take over the conduct of the appeal on behalf of the Appellant I formed the view that based upon the material before the lower court and the state of the law the aforesaid application ought not to have been granted notwithstanding the non objection of the Appellant. 4. Accordingly, if this Honourable Court grants leave to do so, I intend to raise ground 2 of the grounds of appeal contained in the schedule to the motion in support of which the affidavit is sworn. 15. The Appellant’s contention is that what was said by DW 9 is what is quoted hereunder or words to the like effect, that is:- “We have no records in our book of account for the receipt of 25 million US dollars during the period connected with this case.” 17. I verily believe that it is in the interest of justice to call for the original notes of evidence taken before Obi J. for examination before this Honourable Court. 18. I also verily believe that it is in the interest of justice to allow the record of appeal to be amended.” In the second affidavit, Henry Ama Ugoji deposed, inter alia, as follows in paragraphs 1, 2, 4 and 5 of his said affidavit. “1. I am a banker with the Appellant Company who testified on behalf of the Appellant in Benin before Obi J. when the case herein was before the High Court of Bendel State. 2. It has been brought to my attention that the learned trial Judge who delivered judgment in this action said that on the occasion I gave testimony in this action I said:- “We have records in our book of account for the receipt of 25 million US dollars during the period connected with this case.” 4. I deny having given such evidence as contained in paragraph 2 foregoing. 5. What was said by me is what is quoted hereunder or words to the like effect, that is:- “We have no records in our book of account for the receipt of 25 million US dollars during the period connected with this case.” Paragraphs 1, 3, 6, 8 to 11 of the affidavit deposed to by Chidi Nwuke, in which the facts relied upon in opposing the motion, read as follows:- “1. That I am one of the counsel appearing for the respondents in this appeal and I have personal knowledge of the issues raised by the motion dated 17/2/95 and filed on 21/2/95. 3. That I have read through the motion papers and the affidavit served on the respondents in this appeal. 6. That no substantial question arises to be settled in the said ground 2 to the schedule as there was no opposition to the admission of the said testimonies taken before Obi, J. 8. That what was used before Edopkayi J. was the certified true copy of the proceedings before Obi, J. 9. That the appellants were represented by the same counsel who represented them before Obi, J. at the time the testimonies were admitted. 10. That the authenticity of the certified copy of the testimonies before Obi, J. represents the true testimony was never challenged by appellant’s counsel. 11. That the content of the certified true copy of the record of testimonies on record at the time the certified true copy was obtained.” Mr. Sofunde SAN, for the applicant, submitted in respect of the first prayer that leave would be given in a similar case where the issue involves substantial issue of law, substantial or procedural. He said further that no further evidence would be required on the point. He argued that substantial issue of procedure was raised in the proposed ground 2 of the grounds of appeal annexed to the motion as Exhibit A. He cited the decision in Akpene v. Barclays Bank Limited (1977)1 SC 47 in support of his above submission. He further submitted that once the piece of evidence was in-admissible, the point could be taken at any stage even though no objection was raised when the evidence was led. He relied on the following decisions in support of his submission. Oseni & Ors v. Dawodu (1994) 4 NWLR (Pt.339) 390 at 404; Owonyin v. Omotosho (1961) All NLR 304; (1961) 2 SCNLR 57 and Oredola Okeya Trading Co. Nigeria Limited v. Attorney General of Kwara State & Anor (1992)7 NWLR (Pt.254) 412 at 420 and 424. He contended that evidence in previous proceeding falls into the category of evidence which, not withstanding non-objection, can only be used unless it complies with section 34(1) of the Evidence Act 1990 and relied on Ikenye v. Ofune (1985) 2 NWLR (Pt.5) 1 at 6-8. The learned Senior Counsel submitted in respect of the third prayer that the error sought to be corrected is an omission which the court made in recording the proceeding. The witness discovered that what was recorded was not what he (the witness) told the court. This court is said to be capable of making the required amendment. Chief Ahamba, S.A.N., learned Senior Counsel for the respondents, submitted in reply to the submission made in respect of the first prayer that the point sought to be taken fresh was in fact taken at the trial court and a ruling was given by the court. He referred to the motion on pages 119 to 122 of the record of proceedings where one of the prayers which the plaintiffs (now respondents) prayed the court for was:- “Admitting in this suit a certified true copy of the evidence of plaintiffs and their witnesses and the evidence of defendants and their witnesses before Hon. Justice J. A. Obi in this suit.” According to pages 122A to 122B of the record of proceedings, the motion was not opposed by Mr. L. O. Akhidenor, learned counsel who appeared for the defendant/respondent when the motion came up for hearing before Edokpayi, J. on 1/12/92. The prayer was accordingly granted and the certified true copy of the record of proceedings before Obi, J. was accordingly admitted as Exhibit 19. Both the plaintiffs and the defendant immediately thereafter closed their case. The case was then adjourned for address. Chief Ahamba S.A.N. further submitted that for the applicant to be able to complain about the ruling on page 122B of the record of proceeding, it required leave to appeal. Since no application for leave to appeal against that ruling, any ground of appeal relating to the admissibility of the document, (Exhibit 19) would be fundamentally incompetent. The decision in Tijani v. Akinwumi (1990) 1 NWLR (Pt.125) 237 at 250-251 was cited in support of the submission. On the other hand, the learned Senior Counsel further submitted that the applicant lacked the locus standi to raise the issue since it could not successfully re-litigate the same issue. He argued that where the admissibility of a document was not illegal but predicated on certain condition, then non-objection amounted to a waiver. He cited Attorney General of Oyo State v. Fairlakes Hotels Limited (1989) 5 NWLR (Pt. 121) 255 at 273 He also referred to section 34(1) of the Evidence Act 1990 and submitted that evidence of a witness in a previous judicial proceeding is not by law an illegality in a subsequent proceeding. It is admissible only in certain conditions. He further submitted that where a party raised no objection at the time of the admission, such party would be precluded from later raising objection. The learned Senior Counsel cited the decision in Osakwe V. Governor of Imo State (1991)5 NWLR (Pt.191) 318 at 333 on the conditions for raising a new point of law not taken at the court below and submitted that the conditions stipulated in that case was not in the present case. On the definition of “substantial point of law” he referred to the definition given by the Federal Supreme Court in Olawoyin & Ors V. Commissioner of Police (1961) All NLR 622 at 625 (No.2) (1961) 2 SCNLR 278 and submitted that no substantial point of law was raised in the instant case. The learned Senior Counsel submitted in respect of the third relief that since Exhibit 19 was not a hand written record made by Obi, J., but a certified copy of document admitted before Edopkayi, J., this court therefore has no power to amend it. Even where the issue is one of amending the record, it is submitted that such is done in very rare cases and never done with the intention of getting into record evidence which a party would have liked. He submitted that the document in the instant case was admitted by consent of the parties and the parties used the said document at the trial. It is too late to now change its contents. Among the cases cited in support of the submission are Akinyede & Ors v. Opere & Ors (1967) 1 All NLR 302 at 305 and Enigwe v. Akaigwe (1992) 2 NWLR (Pt.225) 505 at 523. The point raised in the first prayer is leave to raise and argue a point of law not raised in the court below – namely the admissibility and use of proceeding before another Judge, (Obi, J.), in an earlier proceeding between the same parties, in the subsequent proceeding before Edokpayi, J. As already stated above, the proceeding in question was admitted as Exhibit 19 at the lower court after a motion for its admission had been taken and granted. The motion in question was supported by a 19-paragraph affidavit sworn to by Francis Shanu, the 1st plaintiff (now 1st respondent). The facts relied on in making the request for the admission of the document was set out in the affidavit. Paragraphs 5 to 13 of the said affidavit read as follows:- “5. That I was present in court when both Plaintiffs and Defendants witnesses testified in this case before another Judge. (Honourable Justice J. A. Obi) and were cross-examined by Counsel on both sides. 6. That both Plaintiffs’ and Defendants’ respective cases had closed in this Court then presided over by Honourable Justice Obi and the matter was ripe for address, which could not be delivered until the intervention of the recent creation of states exercise which split erstwhile Bendel State into Edo State and Delta State. 7. That I was informed by Kenneth Dele Alufe, Esq. of counsel and I verily believe him that Honourable Justice Obi who heard this case to address stage had to move over to Delta State where he hails from and now presiding over High Court 2, Warri. 8. That this case came up for the 1st time before this court presided over by new Judge on 20/11/91 and was thereafter adjourned to 17/2/92 and has since been adjourned to 3rd and 4th November, 1992 for hearing, de novo so I was informed by Kenneth Dele Alufe, Esq. of counsel and I verily believe him. 9. That Plaintiffs/Applicants’ witnesses are independent workers who are on contract basis move and/or shift from place to place in the course of carrying out their duties. 10. That I have not been successful in locating my witnesses despite vigorous attempts. 11. That it is now clear beyond any shadow of doubt that my witnesses will not be able to attend Court in view of the fact that they are independant workers who have not permanent job location. Even each Civil Servant’s whereabout is unknown. 12. That it would occasion great delay, hardship and expense on the plaintiffs/applicant to bring the aforesaid witnesses each of whom testified in this case to Court if they can be located at all. 13. That it will be in the overriding interest of justice to admit a certified true copy of the evidence of Plaintiffs and Defendants witnesses as an Exhibit in this case in view of the averment stated above. The motion was brought under section 34 of the Evidence Act 1990 and order 8 of the Bendel State (Civil Procedure) Rules 1988 applicable to Edo State. Section 34(1) of the Evidence Act 1990 provides as follows:- “34(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceedings, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable:- provided- (a) that the proceeding was between the same parties or their representatives in interest; (b) that the adverse party in the first proceeding had the right and opportunity to cross-examine; and (c) that the questions in issue were substantially the same in the first as in the second proceeding.” The motion for leave of the trial court to admit the certified copy of the proceeding before Obi, J. was not opposed and as no affidavit was filed in opposition, none of the averments deposed to in support of the motion was controverted. The averment that the plaintiffs’ witnesses could not easily be re-assembled and made available to testify all over as deposed to in paragraphs 9 to 12 of the affidavit already quoted above, satisfy the requirement of section 34(1) of the Evidence Act 1990. The proposed grounds of appeal set out in the schedule to the motion contain 4 grounds. The one dealing with the admission of the proceeding before Obi, J. is ground 2. It reads thus:- “Notwithstanding the non-objection of counsel, the learned trial Judge erred in law in admitting and treating as evidence the testimonies of the 1st Plaintiff and the defence witnesses taken before Obi, J. when it had not been shown that the said witnesses were unavailable as required by section 34(1) of the Evidence Act.” It was the contention of learned Senior Counsel for the applicant that the point had not been raised at the lower court. It is now trite that the general rule in appellate courts is that an appellant will not be allowed to raise on appeal a question which was not raised or tried or considered by the trial court unless the question involves substantial points of law, substantive or procedural, and it is plain that no further evidence could have been adduced which would affect the decision of them: See Shonekan v. Smith (1964) All NLR 168; Stool of Abinabina V. Chief Kojo Enyimadu (1953) A.C 207 at 215; 12 WACA. 171; Akpene v. Barclays Bank Nig. Limited & Anor. (1977) 1 SC 47 Osakwe v. Governor of Imo State & Others (1991)5 NWLR (Pt. 191) 318 at 333-334 and Fadiora v. Gbadebo (1978)3 S.C 219. Although learned Senior Counsel for the respondents contended that the points was raised and disposed of at the lower court, I believe that since the motion for the admission of the document was not opposed, the point now sought to be canvassed on appeal in this court was not raised or decided by the lower court. However, since it is a requirement for granting the request that it must be shown that the question involves substantial points of law, substantive or procedural, it is therefore necessary to define what that term means. The position now is that in order to be substantial, the point of law must be such that there may be some doubt or difference of opinion as to what the law is. When no such doubts exist, or the law is well established by a final Court of Appeal, or by an overwhelming consensus of judicial decisions, the mere application of it to a particular set of facts does not constitute a substantial question of law, however important the issue may be for the decision of the particular case. (See Olawoyin & Ors v. Commissioner of Police (No.2) (1961) 2 SCNLR 278; (1961) All NLR 622 at 652 where the Federal Supreme Court adopted similar definition given in that two Indian cases: Ohiara V. C.P. Syndicate (1949)4 DLR 20 (Bom); and Abdur Rahman v. Raghbir (1951) 6 D.L.R. 107 (Simla)) The relevant proposed ground of appeal, already quoted above, has no particulars. The two affidavits in support of the application fail to disclose the substantial question of law raised by the issue. Also as the reasons why the witnesses who gave evidence before Obi, J. could not be called to testify before Edopkayi J. had been adequately given in the affidavit in support of the motion for the admission of the proceeding in question, this court will not assume that a substantial question of law has been raised by the applicant merely in the ground of appeal that “when it had not been shown that the said witnesses were unavailable as required by section 34(1) of the Evidence Act.” It has been shown that the admission of the record of proceeding before Obi, J. was in accordance with the provision of section 34(1) of the Evidence Act 1990. The applicant has therefore failed to establish that the document was improperly received. The principle of law laid down in Owonyin V. Omotosho, (supra); Oseni v. Dawodu, (supra), and Oredola Okeya Trading Co. Nig. Limited vs. Attorney General of Kwara State, (supra), is inapplicable to the present case. I am satisfied therefore that the applicant has failed to show that substantial question of law has been raised to warrant granting the prayer. The first prayer of the motion therefore fails and the motion as relates to that prayer is dismissed. Since the respondents are not opposing the second prayer if the proposed second ground of appeal is excluded and having found that the applicant has failed to satisfy the condition for permitting the inclusion of that ground of appeal, the second prayer is therefore granted without the proposed second ground and the remaining grounds of appeal should accordingly be appropriately renumbered. Two requests are made in the third prayer. The first (prayer 3(a)) is an order directing that the original notes of Obi, J. of the evidence of Henry Ama Ugoji who testified before Obi, J. as D.W. 9 be produced before this court. The second (prayer 3(b)) is for an order amending a portion of the evidence of the said D.W 9 by inserting the word “no” to the present record which reads thus: “We have records in our book of account for the receipt of 25 million US dollars during the period connected with this case.” to read as follows:- “We have no records in our book of account for the receipt of 25 million US dollars during the period connected with this case.” The reason given by the applicant for making the request is that the error sought to be corrected is an omission which the court made in recording the proceeding as relates to D.W 9. The witness (D.W9) also denied in his affidavit, filed as 2nd affidavit in support of this motion, that what was credited to him in the record of proceeding was what he told the court. He confirmed therein that what he told the court was that his bank had no record of the receipt of the 25 million US dollars in their books during the period. But that averment was controverted in paragraph 11 of the affidavit of Chidi Nwuke, one of the counsel for the respondents in the case. He averred there that “the content of the certified true copy of the record of testimonies before Obi, J. represents the true testimony on record at the time the certified true copy was obtained.” The applicant’s request in prayer 3(b) boils down to an application to amend the record of proceeding of the court below. Although section 16 of the Court of Appeal Act 1976 confers on this court the power to “amend any defect or error in the record of appeal” in any appeal before it, such power is, however, exercised under laid down rules. Thus in Akinyede & Ors vs. Opere & Ors (1967) 1 All NLR 302, Ademola, CJN set out the principle to be followed in effecting such amendment as follows on pages 304 to 306 of the report:- “For the respondents, Mr. Oseni submitted that the application appeared to go beyond calling additional evidence; in the effect the court was being asked to amend the record before it. The court, he submitted, should be wary to add anything to the judge’s notes except there is very strong evidence in favour of it. It is not in doubt that the court has an inherent power to order the record of appeal of the trial to be amended so as to comply with facts proved and the decision given – see Thynee v. Thynne (1955) 3 WLR 466 referred to at page 1675 of 1966 White Book. That however, is not the case here. What we are called upon to do here is to reject the record made by the judge of the oral evidence of a witness on the ground that it does not represent what the witness said, and to take the evidence of the witness afresh … We feel it will be a very dangerous precedent for the court to accept these words as the evidence given by the witness. In exceptional cases as for instance where both parties are agreed, or where there is conclusive evidence to show that what was recorded by the trial Judge was not what the witness said, we shall be willing to consider exercising the inherent power of the court to amend the record.” See also Jessica Trading Co. Limited v. Bendel Insurance Co. Limited (1993) 1 NWLR (Pt.271) 538, at 547; Metal Construction (W.A) Limited v. Migliore (1976) 6-9 S.C 163; and Omole & Sons Limited v. Adeyemo & Ors. (1994)4 NWLR (Pt.336) 48. It is clear from the law as declared in the numerous decided cases on the matter that a request to amend a record of appeal will only be granted in exceptional cases such as cases where the parties agree that such amendment be made; or where there is conclusive evidence that what was recorded by the trial Judge was not what the witness said. The facts in support of the present application show that the parties did not agree on this court effecting the amendment. Similarly, there was no conclusive evidence that what Obi, J. recorded and which is now the content of the document, Exhibit 19, was contrary to what the witness told the court. This is apparent from the averment in paragraph 11 of the counter-affidavit sworn to by Chidi Nwuke, one of the counsels who appeared for the respondents in the case. There, the man averred that the content of the record now before the court represents the true testimony of what the witness in question told the court. The result, therefore, is that the applicant has failed to make out a case to warrant granting of its prayer 3(b). As regards prayer 3(a), which is for an order directing that the original notes of Obi, J. of the evidence of Henry Ama Ugoji (D.W9) be produced in this court, there is no doubt that this court can make the order. But before embarking on making such an order this court has to be satisfied of the purpose for which the notes would be used when transmitted to this court. There is definitely no doubt that the purpose for which the applicant wanted the said original notes is to see whether what was certified as what the notes contained was right or wrong. In other words, the purpose is to challenge or reopen the genuiness of the contents of Exhibit 19. Chief Ahamba was, however, opposed to this on the ground that that would amount to reopening the issue of admissibility of Exhibit 19 which the lower court made and which the applicant could not do in this court without first seeking leave to appeal against that interlocutory ruling admitting the document. I entirely agree with that submission and I therefore hold that since there is no prayer for leave to appeal against the relevant interlocutory ruling of the lower court, the request in the said prayer 3(a) cannot therefore be entertained. In the result and for the reasons set out above, the following orders are made:- i) Prayers 1 and 3 of the applicant’s motion are refused. The motion as relates to those prayers is accordingly dismissed. (ii) Prayer 2 which is for leave to amend the notice and grounds of appeal is granted subject to the exclusion of the proposed ground 2 of the grounds of appeal set out in the schedule to the motion. The applicant is accordingly granted 14 days from today within which to file the renumbered amended grounds of appeal permitted hereof; and (iii) The applicant is also granted 21 days extension of time from today within which to file the appellant’s brief of argument. The respondents are awarded N1, 000.00 costs.

Other Citations: (1996)LCN/0244(CA)