African Continental Bank Ltd. V. Umaru Gwagwada (1994)
LawGlobal-Hub Lead Judgment Report
OLATAWURA, J.S.C.
This appeal arose out of the ruling by Puusu. J. when the learned trial Judge on 10th February, 1988 ordered certain documents sought to be tendered by the appellant (hereinafter referred to as the plaintiff) on the objection raised by the respondent (hereinafter referred to as the defendant) be marked “tendered and rejected”.
Any document so marked in the course of any proceedings can neither be tendered again nor relied upon either in the course of address by counsel nor commented upon by the trial judge. The importance or relevance of such a document marked “tendered and rejected” invariably gave rise to the appeal to the Court of Appeal.
In order to appreciate the issue involved, I will set hereunder the relevant and short history of this case. The claim which was for the sum of N5,377,374.20 being the principal and interest due on the money allegedly lent to the defendant by the plaintiff at 7% interest was first put on the undefended list by virtue of Order 3 Rule 8 of High Court of Benue state (Civil Procedure) Rules 1978. The defendant through his counsel and in accordance with Order 3 Rule 10 of the same Rules filed a notice of Intention to Defend the suit. The Notice was dated 17th August, 1987. It was served on the plaintiff. There was an affidavit in support.
According to the affidavit the defendant deposed he was reliably informed by officials of the plaintiff/Bank at Idumota branch Lagos and the manager of the Plaintiff/Bank at Makurdi that the plaintiff had instituted an action against him for the said sum of N5,377,374.20 being money allegedly lent to him by the plaintiff. He denied the indebtedness and gave a breakdown of his various lodgments in the branches of the plaintiff/Bank in Makurdi, Idumota and Kaduna and specifically deposed in paragraph 7 of the said affidavit as follows:-
“7. That apart from the lodgments referred to in paragraph 6 above. I have made more lodgments into my various accounts with the plaintiff/bank but I have not been presently able to gather together all the relevant pay-in slips.”
To this affidavit he attached a letter and many pay-in-slips.
The record of appeal forwarded to this court shows that pleadings were filed. I believe this must have been ordered after the case was taken out of the undefended list and leave to defend was granted. In the Statement of Claim the Plaintiff averred in paragraph 3 as follows:-
“3. In the course of his business and in operating his accounts with the plaintiffs the defendant used the names ALHAJI GWAGWADA UMARU, GWAGWADA UMARU ALHAJI, A. U. GWAGWADA & SONS LIMITED and ALHAJI UMARU GWAGWADA & SONS LIMITED interchangeable with Alhaji Umaru Gwagwada and held these names out as his other names and the plaintiffs treated these names as defendant’s business names or aliases. These business names were not incorporated.”
Thereafter all the various account numbers operated by the defendants were mentioned and the plaintiffs specially averred in paragraphs 17 and 23 thus:-
“17. The following accounts were opened by the plaintiffs on 2nd December, 1980 as per the defendant’s instructions:-
(a) Loan Account in the name of A.U. Gwagwada Lines & Sons Limited.
(b) A Current Account in the name of Alhaji Umaru Gwagwada & Sons Limited numbered 1372.
(c) A Sinking Fund Account in the name of Alhaji Umaru Gwagwada and Sons Limited numbered 1373.
(d) A Current Account in the name of A. U. Gwagwada & Sons Limited numbered 12540.
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(23) WHEREOF the plaintiffs claim against the defendant N5,377,374.20 (five million, three hundred and seventy seven thousand three hundred and seventy-four Naira twenty kobo) being money payable by the defendant to the plaintiffs for money lent by the plaintiffs to the defendant and/or for credit facilities granted and for interest at seven percent (7% per annum agreed to be paid upon the amount due from the defendant to the plaintiffs. Principal and interest due as at 26th February, 1987 N5,377,374.20. And the plaintiffs claim the said sum and interest thereon at the agreed rate of interest of 7 per cent per annum until judgment and at the rate of six per cent from date of judgment until payment is fully made.”
The defendant filed a defence to the action and specifically denied paragraph 17 of the Statement of Claim set out above through his paragraph 16 of the Statement of Defence to wit:-
“16. The defendant further avers that he never at any time proposed or authorised the opening of the accounts stated in paragraphs 17(a),(b),(c) and (d) of the Statement of Claim”
By this denial issue as to whether the accounts were opened on the instruction of the defendant was joined.
The trial started before Puusu, J. on the 9th February, 1988. The opening speeches by counsel gave foreboding of the subsequent trial. The first witness for the plaintiff was one John Irukwu. Part of his evidence is as follows:
“…..The defendant operates various accounts with the plaintiff at various branches of the plaintiffs bank. He (sic) has various branches at Kaduna, Jos, Enugu, Idumota Lagos and Makurdi…”
In continuation of his evidence, the mandate and signature card dated June 22nd, 1976 was tendered and admitted as Exhibit 1. After a preliminary objection which was over-ruled, the defendant’s Statement of Account No.1023 was tendered and admitted as Exhibit 2. Consolidation of Accounts was also admitted as Exhibit 3. Instruction by the General Manager of the plaintiff/bank to the Makurdi Branch was admitted as Exhibit 4. The witness. i.e Mr. Irukwu also gave evidence that the defendant operated three accounts. I had earlier mentioned that the defendant filed a notice of intention to defend the action which was put on the undefended list. I have set out also paragraph 7 of the affidavit in support of the said notice. It was at the stage the Notice to defend together with the attachments was about to be tendered that an objection was raised on the tendering of the documents by the learned counsel for the defendant on the ground that there was no compliance with the provisions of section 34(1) (b) of the Evidence Act. The learned counsel for the plaintiff replied to the objection and after a consideration of the submissions the learned trial Judge ruled thus:-
“I accept all the submissions made by the learned counsel for the defendant that the documents sought to be tendered are inadmissible and they are rejected. The notice of intention to defend. The affidavit and annextures are B1-36. Letter dated 9.1.81 are all marked rejected.”
The learned counsel for the plaintiff gave oral notice of appeal and sought leave to appeal. The appeal was heard. On 16th March, 1989, the Court of Appeal Jos, dismissed the appeal. It is against that judgment that the plaintiff filed Notice of appeal to this court on the following grounds:-
“(1) The learned Justices of the Court of Appeal erred in law by holding the section 34(1) of the Evidence Act precluded the plaintiff/appellant from tendering the rejected documents through their witness P.W.1 John Irukwu.
PARTICULARS OF ERROR
(a) The defendant/respondent is not a witness within the meaning and effect of section 34(1) of the Evidence Act
(b) The learned Justices in the court below misconstrued the meaning and effect of section 34(1) of the Evidence Act.
(2) The learned Justices of the Court of Appeal erred in law by holding that the principles enunciated in the English cases of Pritchard v Bagshave (1881) 138 E.R. 551 and Richard. v. Morgan (1865) 122 E.R. 600 and applied in Seismorgraph Services Nig Ltd v. Chief Keke Eyuafe (1976) 9-10 S.C.135 to the effect that a document or affidavit made in one proceeding is admissible in evidence in a subsequent proceedings as proof of the facts stated therein against the party who made such affidavit or against the party on whose behalf it was made, on it being shown that he knowingly made use of it is not applicable in the case.
PARTICULAR OF ERROR
(a) The plaintiff/appellant wanted to tender the Notice of Intention to defend and its attachments as documents filed and served on them and used by the defendant/respondent in the court.
(b) The plaintiff/appellant wanted to tender the Notice of Intention to defend as admission made by the defendant/ respondent and not as estoppel.
Briefs were filed by both parties. The plaintiff also filed a reply brief. The issues for determination by the appellant are two:-
“(a) Whether having regard to the fact of this case, section 34(1) Evidence Act is applicable to an adverse party who seeks to tender a deponent’s previous affidavit when that affidavit was used by the other party to the dispute;
(b) Whether having regard to the facts of this case, the court below ought not to have held that the affidavit in question and its annexures amounted to an admission under section 19. Evidence Act.”
The defendant has also raised one issue for determination, It reads:-
“From the foregoing the issue to be decided by the Supreme Court is 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 Section 34(1) of the Evidence Act and if the answer is in the affirmative, whether the conditions prescribed by that subsection were complied with to render the evidence admissible in law.”
In his oral submissions Mr. Ekpo, the learned counsel for the plaintiff relied on his brief and cited Sanyaolu v. Coker (1983) Vol.14 NSCC 119/126: (1983) 1 SCNLR 168. He pointed to paragraph 17 of the plaintiffs pleading where the documents sought to be tendered were denied by the defendant in the Statement of Defence and submitted that the Notice sought to be tendered does not amount to “evidence” in previous proceeding as the deponent was not a witness within the con of section 34 of the Evidence Act. Learned counsel described him as a deponent to an affidavit as there was no opportunity to cross-examine him. He again cited: Seismograph Services (Nig) Ltd v. Eyuafe (1976) NSCC. 9-10 S.C. 135434/439-441, Learned counsel then submitted that the lower courts misconceived the nature of the Notice of Intention to Defend. With regard to the respondent’s brief, learned counsel submitted that the issue as to whether the Notice to Defend amounted to evidence in previous proceedings does not arise and referred to the Notice of appeal filed: El khali Oredein (1985) 3 NWLR (Pt.12) 371/378; Ajao v. Awoseni (1986) 5 NWLR (Pt. 43) 578-584. He finally urged that the appeal be allowed.
In his own oral submission, Mr. Olanrewaju, learned counsel for the defendant adopted his brief and pointed to the reply brief where the plaintiff conceded that the affidavit and its annexures in support for the Notice of Intention to Defend may constitute “evidence in a previous proceeding”, he however conceded that what the plaintiff sought to tender was evidence in respect of the same proceeding and not evidence in “previous proceeding”, Learned counsel referred to Black’s Law Dictionary 5th Ed, for the meaning of the words “deponent and witness”, He relied on two cases: Ajide v. Kelani (1985) 3 NWLR (Pt.12) 248 and Sanyaolu v. Coker and finally urged that the appeal be dismissed.
Mr. Ekpo in reply referred to pages 126-7 of Sanayaolu’s case (Supra) and again submitted that s.34 of the Evidence Act does not apply as the plaintiff could not have cross-examined the deponent when he deposed to the affidavit in support of the Notice of Intention to Defend.
The issues formulated by both parties can conveniently be reduced into one:- Does section 34(1) of the Evidence Act apply to the matter before the courts
It is with this view in mind that a reproduction of the said section 34(1) of the Evidence Act will be of assistance bearing in mind the pleadings filed by both parties, evidence led, before the objection was raised and the burden of proof.
Section 34(1) of the Evidence Act provides:-
“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 proceeding, 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 or (sic) 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 elementary rule of pleading is that a party shall plead facts which he propose to rely upon in order to establish his own case. It is now trite law that a party will not be allowed to lead evidence in respect of facts not pleaded; or to lead evidence contrary to his pleading. The sole purpose of pleading is to ensure that the parties to the case know the case they will meet at the trial, to obviate element of surprise. Pleading saves time and brings out clearly the issues in the case. On the above principles see:-
(i) Total (Nig) Limited & Anor. v. Nwako & Anor.(1978) 5 S.C. 1
(ii) George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR 71; (1963) 1 SCNLR 117
(iii) Okagbue & Ors v. Romaine (1982) 5 S.C. 133
(iv) James v. Midmotors Nigeria Co. Ltd. (1978) 11 & 12 S.C. 31
(v) Emegokwue v. Okadigbo (1973) NSCC 220; (1973) 4 S.C. 113; All NLR (Pt.1) 379
(vi) The National Investment & Project Co. Ltd. v. The Thompson Organisation Ltd. & Ors. (1969) NMLR 99
The plaintiff has averred in paragraph 17 of its pleading already set out above that accounts Nos.1372 and 12540 were opened at the defendant’s instructions. He denied. Sections 135(1) and 136 of the Evidence Act show clearly that unless evidence is led in respect of paragraph 17 of the Statement of Claim, the plaintiff will fail in respect of those facts pleaded. Before considering admissibility of any evidence or document in support of a party’s case, it must be shown that the evidence sought to be led is relevant. Even if the evidence is admissible and it is not relevant. The admission of such evidence does not advance the case of the party See sections 6,7 and 8 of the Evidence Act.
The defendant in paragraph 4.2 of his brief has submitted that “for the” purpose of admissibility under the law of evidence, every document sought to be tendered in evidence must pass the test of admissibility laid down by the Evidence Act. This submission is however subject to the issue of relevance already referred to above.
What is the significance of the Notice of Intention to Defend filed by the defendant I will remind myself once again that the case was originally put on the undefended list. The significance of the Notice to defend is borne out by the affidavit accompanying the Notice that the grounds for asking to be heard in defence are not frivolous, vague or designed to delay the trial of the action and must show that there is a dispute between the parties: Olubusola stores. Standard Bank Nigeria Ltd. (1975) NSCC. 137, (1975) 4 S.C. 51; John Holt & Co (Liverpool) Ltd. v. Fajemirokun (1961) All NLR. 513. When the Judge is satisfied that there is a prima facie defence then leave is granted to defend and then pleadings may be ordered. Paragraph 6 of the affidavit in support of the Notice to defend not only disputed the debt but that he had an excess of over N100,000.00 facilities in his two accounts. The paragraph states:
‘That subsequent to the said Exhibit A I have made various lodgments into my various accounts with the defendant (sic) Bank far in excess of the sum of N100,000.00 facilities. A breakdown of some of the said lodgments is as follows …….”
An averment in a pleading that the other party is indebted to the plaintiff for a specific amount and an affidavit to the contrary by the other party is not only material but admissible to enable the court know which party should be believed. Certainly, without the affidavit attached to the Notice, leave to defend would not have been granted.
I now come to section 34(1) of the Evidence Act already reproduced above. It appears to me that the Court of Appeal did not advert its mind properly to the rule of pleadings, some of the principles of which are already set out above. The lead judgment of the court per Adio, J.C.A. (as he then was) on issue of admission which is as follows:-
“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 in Judicial proceeding 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 numbers 1372 and 12540….
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.”
Overlooks the simple rule of pleading that facts, and not evidence, are to be pleaded. An admission as defined under s. 19 of the Evidence Act is “a statement, oral, or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons ….” does not cease to be an admission on the ground that it is not pleaded. If however the party relying on it wishes to rely on it as an estoppel, the issue of pleading will be relevant. At the stage the Notice of intention to defend and all its annexures were about to be tendered, it was to establish paragraphs 17(b) and (d) of the Statement of Claim. I find it difficult how the lower court accepted the relevance of section 34(1) of the Evidence Act to the issue before the court at that stage of the trial. It was quite irrelevant. It was a technical manoeuvre to confuse the court at that stage. Anxiety of the defendant in respect of the documents should have been allayed if counsel had adverted to section 26 of the Evidence Act:-
“Admissions are not conclusive proof of the matters admitted but they may operate as estoppel….”
I agree with the plaintiff’s counsel where in his brief he said:-
“4.9 The appellants submit that the question of estoppel was wrongly imported by the court below into this case. Estoppel does not, in any manner whatsoever, come into play here. All the appellants sought to do was prove that the respondent knew about, and indeed authorised the opening of, current accounts numbers 12540 and 1372, just as it had pleaded in paragraph 17 of the Statement of Claim.”
I fail to see why s.34(1) of the Evidence Act was invoked and accepted by the Court of Appeal. I may repeat that an admission does not necessarily mean proof of what is contained therein. An admission relied upon by any party is not ipso facto accepted to be the truth by the court once it is not in accordance with the truth of the case. It is the duty of the court to decide the case in accordance with the facts pleaded and proved to be true. In sum, I will allow this appeal, set aside the judgment of the lower court dated 16th day of March, 1989 which confirmed the ruling of the High Court dated 10th February, 1988. I hereby order that the Notice of Intention to defend together with all its annexures be admitted as Exhibit in the trial. Costs of this appeal against the respondent are assessed at N150.00 in the lower court and N1,000.00 in this court.
Other Citation: (1994) LCN/2638(SC)
