Chief Philip O. Anatogu & Ors. V. H.R.H. Igwe Iweka Ii & Ors. (1995)
LAWGLOBAL HUB Lead Judgment Report
UWAIS, J.S.C.
In this appeal a motion on notice was filed by the respondents on the direction of this Court praying for:-
“(a) AN ORDER for restraining of CHIEF F.R.A. WILLIAMS from appearing or further appearing or acting or further acting as counsel for the appellants, having appeared for the opposing side (i.e. the respondents/applicants) in an earlier chapter of the subject matter of this appeal.
(b) For such further order or other orders as this Honourable Court may deem fit to make in the circumstances.”
When the motion came before this court on the 27th day of February, 1995 it was adjourned to the 3rd day of July, 1995 for hearing and the parties were directed to file briefs of argument in respect of the application. This was done. As the appeal was also adjourned for hearing on the same day as the motion, we heard both and decided that the ruling on the application and the judgment in the appeal would be delivered today. I intend to dispose of the ruling on the motion first.
Chief Williams, learned Senior Advocate, against whom the motion is directed did not appear in person in respect of the motion but he filed a brief of argument in his private capacity in reply to that filed on behalf of the respondents herein. It is pertinent to say that the appellants were not represented at the hearing of the appeal by Chief Williams nor did he prepare the appellants’ brief of argument in the appeal. All that was done by Mr. Balonwu, learned Senior Advocate.
In moving the motion on notice, Chief Ikeazor, learned Senior Advocate, for the respondents, indicated that it has been brought pursuant to rules 10 and 22 of the Rules of Professional Conduct in the Legal Profession which were made by the General Council of the Bar in 1967 and were amended by the Council on the 15th of January, 1979. The Rules were published in the Federal Republic of Nigeria Official Gazette No.5 of 18th January, 1980 Volume 67. Rules 10 and 22 thereof provide-
“10. ADVERSE INFLUENCES AND CONFLICTING INTERESTS
(a) It is the duty of a lawyer at the time of retainer to disclose to the client all the circumstances of his relations to the parties, and any interest in or connection with controversy which might influence the client in the selection of counsel.
(b) It is unprofessional conduct to represent conflicting interests, except by express consent of all concerned given after a full disclosure of facts. Within the meaning of this rule, a lawyer represents conflicting interests when in respect of client for whom he presently contends the interests of that client touch or concern confidences of another client to whom the lawyer, at the same time, owes a duty of service.”
“22 JUSTIFIABLE AND UNJUSTIFIABLE LITIGATIONS
The lawyer must decline to conduct a civil cause or to make a defence when convinced that it is intended merely to harass or to injure the opposite party or to insist upon the judgment of the Court as to the legal merits of his client’s claim. His appearance in Court should be deemed equivalent to an assertion on his honour that in his opinion his client’s case is one proper for judicial determination.”
Chief Ikeazor contends that on the 5th of May, 1982, the respondents herein brought an application in the High Court of Anambra State sitting at Onistsha, asking for an order of the court – “restraining the defendants/respondents from briefing, hiring, consulting and/or further briefing, hiring or consulting Chief F.R.A. Williams from further acting for the said defendants/respondents as their solicitor or appearing in this Honourable Court on their behalves having appeared for the opposing side that is to say the plaintiffs/applicants in an earlier chapter of the subject-matter of this suit………….”
The Court (Chukwuani J.), in its ruling delivered on 10th June, 1982, ordered as prayed, thereby barring Chief Williams from appearing in the case for the defendants. There was no appeal against the ruling. Learned Senior Advocate states that in the meanwhile Chief Williams filed an originating summons on the 1st day of June, 1982 against the respondents’ people. The originating summons was heard by Umezinwa J. on 17th September, 1982. In the present case Chief Williams together with Mr. Balonwu, learned Senior Advocate for the appellants, jointly signed the Statement of defence filed by the appellants on the 26th March, 1982, hence the application by the respondents for Chief Wiliams to be restrained from further appearing or acting as counsel for the appellants.
In his brief of argument Chief Williams contends that the application by the respondents should be dismissed because Umezinwa J. dealt with the issue in his ruling given on 17th September, 1982 and that he had the jurisdiction to do so. There was no appeal against his ruling allowing Chief Williams to appear for the appellants.
It is significant that the appellants’ brief of argument before us was prepared by Mr. Balonwu alone and nowhere is Chief Williams being mentioned or shown as counsel for the appellants. Furthermore, Chief Williams has not put up appearance before us to argue the appeal on behalf of the appellants. Nor did he sign or prepare the notice of appeal. In the circumstance I consider this application to be merely academic and an exercise in futility since there is no any other role for Chief Williams to perform in the case as it concerns this court.
Accordingly, the application is hereby dismissed.
I will now turn to the appeal. In the High Court, the respondents brought an action against the appellants in which they claimed as follows, as per their Further Amended Statement of Claim;-
“(a) A review of the judgment of the Onitsha High Court in suit No. 0/3/49 Philip Akunne Anatogu and Anor v. Chief J. M. Kodilinye & Ors.
(b) An order setting aside the said judgment of the Onitsha High Court in suit No. 0/3/49.
(c) A declaration confirming the plaintiff’s (sic) entitlement to the statutory and/or customary rights of occupancy under the Land Use Act and to possession of the said disputed land.
(d) Any, and all compensation received by the defendants from the Government in respect of the disputed property.
(e) Mense profits and/or damages.
(f) Costs.
(g) Such further or other relief as may be just.”
The appellants filed a Further Amended Statement of defence. When the trial began before Nwazota, J. (as he then was) on 25th May, 1989 the respondents called their first witness, one Mr. Olatunji Adeyemi, who was an Assistant Investigation Officer, in the Land Registry of Lagos State. The witness testified that he was served with a subpoena to produce some documents in his custody, namely, volumes 1 and 2 of Niger Lands Agreement and Volumes 2 and 3 of Treaty of Cession. The documents were tendered for admission in evidence. Mr. Balonwu, learned Senior Advocate, who was for the appellants, as defendants at the trial raised objection to the documents being admitted in evidence. In his ruling, upholding the objection the learned trial Judge stated thus:-
“I have heard and considered the points raised in the objections of P.O. Balonwu, Esq, SAN, opposing the admission as evidence of the documents listed in the statement of Chief C. Ikeazor, Esq., SAN, in reply to these objections. I am very mindful of the age old statements of the law in various Court of the land……….as to the conditions in which a party seeking to adduce fresh evidence in court must satisfy before such evidence can be received, and it is my considered view that on the strength of the statements made by P.W.1, I cannot reasonably hold that the plaintiffs have satisfied any or all those conditions as are aptly stated in the various authorities cited by P. O. Balonwu, Esq., SAN. of Counsel in support of his objections…………. I am satisfied that the objections taken are sound in law and well taken, and do, in the absence of further materials being placed before me by the learned Senior Advocate for the plaintiffs to justify my acceding to them as right in law. Accordingly, I rule that the documents now sought to be tendered as Evidence for the plaintiffs cannot without more be admitted at this stage as it is my considered view that the plaintiffs have failed to satisfy me that they constitute Fresh Evidence within the meaning and intendment of the phrase in law. It is my considered judgment that issue of Fresh Evidence in Court must be determined and disposed of before the Court can be in a firm position to determine whether or not fraud as alleged in the pleadings of the plaintiffs can be discovered in the Listed Documents now sought to be tendered as Evidence having regard to the state of the pleadings of the Parties. I accordingly sustain the objection……………..and rule that the listed documents as contained in the statements of P.W.1 cannot be received in Evidence at this stage. Listed Documents produced, tendered and rejected as marked accordingly.”
The respondents felt aggrieved and therefore appealed against the ruling to the Court of Appeal. In its judgment allowing the appeal, that Court (Katsina-Alu, Oguntade and Uwaifo, JJ.C.A.) stated as follows as per Oguntade, J.C.A. :” The lower court in its ruling reproduced earlier in this judgment was of the view that the plaintiffs ought first to show why the documents which were sought to be tendered had not been tendered in the previous case before they could be tendered in the current one. With respect, that approach betrays a misconception on the part of the lower court about the true nature of plaintiffs’ suit…………………………..
It seems to me however that the better guide to the court on a matter as this are the pleadings of the parties. The plaintiffs pleaded that the judgment was obtained by fraud; the defendants deny this. The parties having joined issues on the point, the matter fell to be determined by evidence. And it would not be justice if the plaintiffs were to be stopped from leading evidence in proof of the fraud which they alleged…………………………
Whichever way one looks at the matter, the conclusion is inescapable that the lower court had been, in error to have rejected the documents produced by the plaintiffs’ for no other reason than that the plaintiffs had not first shown why the documents were not tendered in the previous suit. The approach of lower court is wrong and the decision of the court must do a, grave injustice to the plaintiffs.” In their appeal before us the appellants have raised the following 5 issues for determination in their brief of argument – .
“(i) Whether the documents sought to be tendered in evidence as fresh evidence satisfied the conditions precedent to the admission of such evidence as laid down by law.
(ii) Is the Court of Appeal right to have held that fresh evidence sought to be adduced on appeal is different from the instant case where fresh evidence is sought to be adduced in a fresh or new matter but which had been litigated before by the same parties
(iii) Was the Court below right in holding that since the parties had joined issues on fraud and discovery of fresh evidence, it was not necessary for the plaintiffs/respondents to explain why the documents sought to be tendered as fresh evidence were not tendered in the former trial.
(iv) Whether the issue of fraud as set out in the pleadings could be determined in a review case by merely admitting documents in evidence without the court first of all deciding or determining whether the said documents pleaded as “fresh evidence” is admissible in law.
(v) Whether the issue of P.W.1 giving his evidence without being sworn was a substantial issue of procedure; if the answer is in the affirmative, whether there was a miscarriage of justice in the Court of Appeal” because it failed to determine the said issue.”
and the respondents formulated 4 issues for determination, as follows:-
1(a) Whether the rules governing the admission of fresh evidence on appeal would apply to regulate the production and/or reception of evidence (in an original action of review of an earlier judgment on grounds of fraud and/or fresh evidence) when the High Court is sitting as a court of first instance
If the answer to (a) above is in the negative, then;
(b) Whether the Court of Appeal was right when it set aside the decision of the trial court which was informed by its (i.e trial court’s) reliance on rules governing the admission of fresh evidence on appeal .
- Does a plaintiff in a case for a review of a previous judgment on grounds of fraud and/or undue influence need to firstly prove or establish that the documents (which he has pleaded and intends to rely on) constitute fresh evidence before the said documents could be admitted in evidence
- Whether the (alleged) failure of the Court of Appeal to make a decision on the issue whether or not the documents which form the subject-matter of this appeal could be tendered through the P.W.1 (an unsworn witness who was merely subpoened to produce documents) had occasioned such a grave miscarriage of justice as to warrant its judgment being set aside when that said issue does not flow from the decision of the trial court which did not base its decision thereon”
I think the simple issue here to be determined is whether the Court of Appeal was right when it set aside the ruling made by the learned trial Judge rejecting the admission of the public documents tendered by the respondent through their first witness.
The thrust of the appellants’ case is that P.W.1 was summoned to produce the public documents in his possession in accordance with the provisions of section 191 and 192 of the Evidence Act, (now sections 192 and 193 respectively of Cap. 112 of the Laws of the Federation of Nigeria, 1990) and not to testify as a witness. If even he was properly called as a witness, his evidence was vitiated by his failure to take oath at the beginning of his testimony as mandatorily required by section 179 (now section 180) of the Evidence Act. It is argued further that the respondents’ action; being a review case by nature, foundation must be laid to show that the evidence, to be adduced, was not available to the party in need of it and it could not be produced with reasonable diligence during the hearing of the previous case either at trial or appeal level.
The laying of the foundation is a condition precedent without which a trial court in the review case cannot satisfy itself that the evidence being sought to be adduced amounts to fresh evidence. This requirement cannot be dispensed with on the ground that the evidence to be adduced had been pleaded in the pleadings of the parties to the case. The learned trial Judge was right to have relied on the cases cited to him by the appellants in reaching its decision. The cases are as follows. Ojo v. Abadie, (1955) 15 WACA 54; Birch v. Birch, (1902) p. 62; Ladd v. Marshall, (1954) 3 All E.R. 745; Regina v. Medical Appeal Tribunal (North Midland Region) ex parte Humble’, (1959) 3 All E.R. 40 at p. 47; Obasi v. Onwuka, (1987) 3 NWLR (Pt. 61) 364 at p. 370 and Turnbull v. Duval, (1902) A.C. 429.
In addition the case of Brown v. Dean & Anor (191O) A.C. 373 was cited to us. That where fraud or forgery of a document is alleged in a review case, the nature of the fresh evidence to be adduced is the same as that which could be adduced when the same issues of fraud and forgery are raised in a case on appeal. That is, that the condition precedent must be satisfied for the fresh evidence to be admissible. A review case is not a new action, like any fresh case; for if this were otherwise, a plea of res judicata can apply to stultify the review case. It is then concluded that the Court of Appeal failed to advert in its judgment to the fact that the testimony given by P.W; 1 was not given on oath and that had given rise to a miscarriage of justice.
The case for the respondents is as follows. Relying on the judgment of the Court of Appeal and an article reported in the Law Quartely Review Volume 77, published in July, 1961, it is submitted that a review case is different from a case on appeal; and that a review case is always brought in the trial court that gave the first judgment to be reviewed. Thus there is a difference between a case on appeal and a review case and the learned trial Judge failed to understand this. The res in a review case is the judgment in the 1949 case, whereas the res in the 1949 case was the land in dispute then. The new evidence; to be produced in the review case to prove fraud, will have to be received by the High Court so long as they come from proper custody. It is after that that the trial Judge can look at the new evidence produced to determine whether there is fraud or not. Since the review case happens to be a fresh case, the roles of admissibility of evidence in a fresh case apply. It is submitted that all the authorities cited before the trial court (supra) were not directly relevant to the issue before it. This is because the cases of Ladd and Obasi dealt with and considered conditions in which fresh evidence or additional evidence can be adduced on appeal.
The case of Regina v. Medical Appeal Tribunal etc, was also a case on appeal and the decision therein turned on the meaning of the phrase “fresh evidence” in the con of section 40(i)of the National Insurance (Insurance Injuries) Act, 1964 of England which is not statute of general application, to apply to Nigeria. The case of 0jo decided the issue of res judicata only. Therefore, the High Court, in the present case, based its decision on conditions laid down by authorities which were not relevant to the case before it.
The authorities in question cited imported into the present case practice and procedure which regulate the admission of fresh evidence on appeal. The learned trial Judge was therefore wrong to follow them since he was not sitting on appeal. The case of Tojumade A. Clement v. Bridget J. Iwuanyanwu (1989) 3 NWLR (Pt. 107) 39 at p. 51, per Oputa J.S.C. was cited in support. A party in a case does not first prove a point in issue to the satisfaction of a trial Judge before the evidence in support of the case is produced.
In the present case it would be futile for the respondents to have led evidence on why the documents, sought to be produced in evidence, were not tendered in the 1949 case, without first placing the documents before the trial court. The nature of the documents, their contents and the circumstances were all matters that the trial court must consider in its judgment, and not ruling, before it could arrive at a conclusion whether or not the documents constitute fresh evidence.
On whether P.W.1 was sworn before he testified, it is argued that the ruling of the trial court was not based on the point. The trial court did not consider the provisions of section 197 (now section 198) of the Evidence Act, on which the appellants based their submission that P.W.1, who was merely subpoened to produce the documents could not, after producing them, seek to tender them in evidence. The reason on which the ruling was based was that the respondents had not established that the documents constitute fresh evidence in law. This, it is argued, was the principle and major issue on which the ruling of the trial court revolved. This is why the Court of Appeal failed to consider the fact that P.W.1 was not sworn before he testified.
Therefore the failure, if even it was necessary for the Court of Appeal to do so, has not occasioned any miscarriage of justice, since the point was not an issue before it, Reliance is placed on the case of Udeze v. Chidebe, (1990) 1 NWLR (Pt. 125) 141 which decided that it is not every slip made by a court that will result in its judgment being over-turned by the Supreme Court. It is only slips or mistakes which strike at the root of the matter that are material. It is contended that the omission to administer oath on P.W.1 does not strike at the root of the judgment of Court of Appeal.
It is clear from the foregoing that the parties in this case predicated their cases in both lower courts on the promise that this case is a review case and therefore the evidence which was not adduced in the 1949 case and is to be adduced in the present case must be produced in a special manner. The lower courts also considered the issues involved in that light. With respect, this is not right. The parties have not succeeded in showing that there is a special, or express or an extraordinary procedure of putting documents in evidence which is peculiar or applicable to cases on review. The procedure which in fact applies is to be found in the provisions of the Evidence Act, Cap. 112 (which was formerly Cap. 62 of the Laws, of the Federation of Nigeria, 1963). Section 39 thereof provides:-
“39. An entry in any public or other official book, register or record, stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.”
These provisions have the effect of making public documents relevant where a party intends to reply on them by pleading them. “Public documents” have been defined by Section 108 (now section 109) of the Evidence Act to include “(b) Public records kept in Nigeria of private documents.” The documents which were intended to be put in evidence in the present case seem to fall under this definition. The manner in which “public documents” are to be proved are stated in sections 110, 111 and 112 (now sections 111, 112 and 113) of the Evidence Act. The provisions of section 112 (now section 113) are not applicable to this case. However the other section provide as follows:-
“110(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.
(2) Any officer who, by ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
- Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”
This is not the procedure followed by the respondents. Instead they called for the public registers in their original form to be produced. There is no provision of the Evidence Act which specifically applies to the production of the original copies of public documents. However, section 90 (now section 91) of the Evidence Act provides:-
“90(1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:-
(a) if the maker of the statement either –
(i) had personal knowledge of the matters dealt with by the statement; or
(ii) Where the document is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had or might reasonably be supposed to have personal knowledge of those matters; and
(b) if the maker of the statement is called as a witness in the proceedings: Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.
(2) ………………….
(3) ………………….
(4) …………………..
(5) …………………..
Now if the documents, which the respondents intended to put in evidence, fall under section 90( 1), it is clear from the provisions thereof that foundation must be laid before they could be admitted in evidence – See Ogunsanya v. Taiwo (1970) 1 All NLR 147 at p. 151, and Alhaji Etiko v. Aroyewun. (1959) 4 F.S.C. 129 at p. 130 (1959) SCNLR 308. No such foundation was established in the trial court to facilitate the admission of the documents before they were tendered for admission.
In my opinion, the documents could only be admitted in evidence if they satisfied the provisions of section 90 subsection (1) or section 111 of the Evidence Act, quoted above. The latter section allows for the certified copies of the documents to be produced; , but even then, what were sought to be tendered in this case were not certified copies but the original public documents. Had the procedure under section 110 and 111 been adhered to by the respondents, the certified copies of the documents would have automatically become admitted in evidence by the trial Judge without P.W.1 giving evidence of them. In other words, the documents would have been directly admissible without any foundation being laid – See Ogbunyiya v. Okudo. (1979) 6-9 S.C. 32 at p. 43.
There is another dimension to the attempt made by the respondents to put the documents in evidence. By section 191 (now section 192) of the Evidence Act:”
Any person whether a party or not, in a cause may be summoned to produce a document without being summoned to give evidence and if he cause such document to be produced in court the court may dispense with his personal attendance.”
P.W.1, by the nature of the subpoena served upon him, falls under the provisions of this section, the respondents could have asked the trial court to release him on bringing to the Court the documents he was summoned to produce. For section 192 (now section 193) of the Evidence Act provides:-
“192. A person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined until he is called as a witness.”
However, it appears from the record of appeal that the respondents confused the role of P.W.1 and had wanted him to testify as a witness. This contradicts the provisions of section 192. Now suppose the step so taken were even right, which is not, section 197 (now section 180) of the Evidence Act requires that P.W.1 should testify on oath or affirmation. The section states:-
“179. Save as otherwise provided in sections 181 and 182 all evidence given in any proceedings must be given upon oath or affirmation administered in accordance with the provisions of the Oaths and Affirmation Act.”
Again this condition was not complied with. The word “must” in the section is, in ordinary usage, imperative. What then is the consequence of the failure to administer oath or affirmation on a witness before a court The answer is given by section 4 subsection (3) of the Oaths Act, 1963, No. 63 of 1963, which provides:-
“(3) The failure to take an oath or make an affirmation, and any irregularity as to form of oath affirmation shall in no case be construed to affect the liability of a witness to state the truth.”
Since by these provisions, the evidence of P.W.1 is to be taken to have been given as if under oath; in other words as if he had been sworn, then, no miscarriage of justice had been occasioned by the omission to administer the oath or affirmation.
Chief Ikeazor, learned Senior Advocate argued that the omission to administer oath or affirmation on the witness was neither raised by the appellants in the lower courts nor considered by the Court of Appeal and, therefore, should not have been raised in this Court. It is true that the point was not raised in the lower courts and was not considered by the courts. But it is now settled that if the issue raised by such point is fundamental in nature, this Court is disposed to give leave for it to be raised and will hear it for that reason – see Akpene v. Barclays days Bank of Nigeria Ltd. (1977) 1 S.C. 47; Diukpan v. Orovuyovbe & Anor (1967) 1 All NLR 134; Ejiofodomi v. Okonkwo (1982) 11 S.C. 74; Salati v. Shehu (1986) 1 NWLR (Pt. 15) D 198; Raimi v. Akintoye (1986) 3 NWLR (Pt. 26) 97; Plateau Publishing Co. Ltd. v. Adophy (1986) 4 NWLR (Pt. 34) 205 and Dweye v. Iyomahan. (1983) 2 SCNLR 135.
There is no doubt that a difference exists between a review on appeal and an action for review instituted at first instance. In the former the review can only, come up by way of application or as aground of appeal. In which case, the fresh evidence to be adduced may be deposed in an affidavit since it is not usually the practice of appellate courts to conduct proceedings in which oral evidence is given by witnesses. In the latter case the proceedings are invariably commenced with the issuance of a writ of summons, followed, in the normal course, by pleadings in which issues in controversy are joined between the parties. In that case it is mostly necessary to adduce oral evidence, by calling witnesses to testify and be cross-examined, in proof of the issues in contention. The rules of evidence must be observed in accordance with the provisions of section I subsection (2) of the Evidence Act, Cap. 112 which states:-
“(2) This Act shall apply to all judicial proceedings in or before any court established in the Federal Republic of Nigeria…….”
As to whether the evidence so adduced is “fresh evidence” is of no significance for the purpose of the trial since every evidence before trial the court is supposed to be new to it. It is the decision of the trial court at the end of the proceedings that will determine if such evidence is either “new”, “fresh” or “additional” to the evidence adduced in the previous proceedings. I think the dicta of James L.J. In Flower v. Llody (No.1). (1877) 6 Ch. D. 297 at p. 301 describes succinctly the course to be followed in a review case, when he said of a review for fraud:-
“I agree with what has been said by the Master of the Rolls that in the case of a decree (or judgment as we call it now) being obtained by fraud there always was power, and there still is power, in the Courts of Law in this country to give adequate relief. But that must be done by a proceeding putting in issue that fraud, and that fraud only. You cannot go to your adversary and say, ‘You obtained the judgment by fraud, and I will have a rehearing of the whole case until that fraud is established. The thing must be tried as a distinct and positive issue; ‘You’ the defendant ‘Of ‘you’ the plaintiff “obtained that judgment or decree in your favour by fraud; you bribed the witnesses, you bribed my counsel, you committed some fraud or other of that kind, and I ask to have the judgment set aside, on the ground of fraud.’ That would be tried like anything else by evidence properly taken directed to that issue, and wholly free from and unembarrassed by any of the matters originally tried.” (Italics mine).
From all the foregoing the learned trial Judge was right in his ruling that no proper foundation had been laid to enable him admit the documents sought to be put in evidence. However, he was wrong in holding that his refusal to admit the documents was based on the nature of the case being a review case. Also for the reasons aforementioned, the Court of Appeal was wrong to have held that the documents were admissible at the stage they were tendered.
In the result, the appeal succeeds and it is hereby allowed with N1,000.00 costs to the appellants. The case is hereby remitted to the High Court of Anambra State holden at Onitsha for the proceedings to continue.
SC.192/1991
