Chukwu-ogor Nigeria Limited & Anor V. Nnaemeka Chukwuogor (2009)

LawGlobal-Hub Lead Judgment Report

AMIRU SANUSI, J.C.A.

This is an appeal against the Ruling of the Federal High Court (the lower court) sitting in Enugu (Coram A.O. Faji J.) delivered on 23rd of January 2007. At the lower court, the two appellants herein were plaintiffs/applicants who sued the defendant now respondent.

The 1st Plaintiff/Appellant is a company incorporated by the father of the 2nd plaintiff/appellant. Upon the incorporation of the 1st plaintiff company, the 2nd plaintiff/appellant and the defendant now respondent and other male siblings were made directors and shareholders of the 1st plaintiff/appellant company until 1991 when the defendant/respondent and one other were removed as directors of the company by a resolution of the 1st plaintiff company.

Some times in 1994, the father of the 2nd plaintiff (now 2nd appellant) who was the promoter and who in fact incorporated the 1st plaintiff company changed the structure of the shareholding of the company and made himself as chairman and the 2nd appellant as the only shareholder of the appellant company. On the demise of the promoter and chairman of the 1st appellant company, the defendant/respondent then started claiming to be the chairman of the 1st appellant company and started to intervene, or dabble with the affairs of the 1st plaintiff/appellant company. This action of the defendant/respondent angered the 2nd appellant hence he instituted this action against the defendant initially at Calabar division of the lower court before the action was later transferred to the Enugu Division of the lower court.

Pleadings were ordered, filed and exchanged. On 23/1/2007, hearing of the case commenced in earnest before the lower court. On that day the 2nd plaintiff commenced his testimony. In the course of his testimony, he sought to tender a certified true copy of the resolution of the 1st plaintiff company in evidence through his counsel wherein the defendant now respondent was removed as director. The learned counsel for the defendant then raised objection to the admissibility of the said document on the ground that the name of the certifying officer of the document was not stated.

On seeing that, the plaintiffs’ counsel applied to withdraw his application tendering the document but the learned counsel for the defendant objected to that. In its considered bench ruling, the trial lower court decided that the said document having already been tendered by the plaintiff and objection taken to its admissibility, such document could no longer be withdrawn by the plaintiff. It rejected the document and marked it REJECTED exhibit. It is this ruling that made the plaintiffs aggrieved hence they appealed to this court. They then filed a Notice of Appeal containing 3 grounds of appeal on 1st February but merely raising one issue for the determination of this appeal in their Appellants’ Brief of Argument filed 10/9/07. The lone issue raised by the appellants reads thus:

“Whether the learned trial judge was right in rejecting the Resolution of the 1st appellant and marking same as ‘REJECTED” and whether the said rejection did not occasioned (sic) a miscarriage of justice.”

On his part, the respondent also filed his Respondent’s Brief on 14/7/2008 dated 10/7/08. The only issue raised therein is:

“Whether the trial court was right in rejecting Appellants’ application to withdraw the document.”

When arguing the appeal in their Brief of Argument the appellants’ counsel submitted on their sole issue for determination, that from the record of proceedings it could be seen that immediately after the defendant’s counsel raised objection, the plaintiffs’ counsel applied to withdraw the document. The court thereupon did not call on the plaintiffs’ counsel to reply, but it simply proceeded to write and deliver its ruling rejecting the document and ordered same to be marked “REJECTED”. He argued that the plaintiffs’ right of fair hearing was breached or denied and this occasioned them a gross miscarriage of justice. See United Bank for Africa Plc vs. Ujor (2001) 10 NWLR (Pt. 722) 589. Otapo vs. Sunmonu (1987) 2 NWLR (Pt.58 587 at 606; Olagunju vs. Oyediran (1996) 6 NWLR (Pt.453) 127) at 146.

He further submitted that the learned trial judge was wrong to have refused the plaintiffs’ application to withdraw the document they tendered and have proceeded to reject same even before allowing the plaintiffs’ counsel to reply, adding that by so doing, the trial judge breached the plaintiffs’ right of fair hearing since with the rejection of the said exhibit they could no longer tender the document again possibly after the omission of the name of the certifier is corrected by the Corporate Affairs Commission. See Adelaja vs. Oguntayo (2001) 6 NWLR (Pt. 710 593 at 616/617.

As stated above, the respondent filed his Brief of Argument and formulated one issue which though slightly differs in wording with that raised by the appellant, but is very much similar to it. In his argument on the issue, the respondent also simply relied on the decision of Adelaja vs. Oguntayo (supra) which was also relied on by the appellants and submitted that going by the said decided authority, a party tendering a document at a trial can apply to withdraw such document after objection is raised to its admissibility without replying to the objection. In actual fact when the appeal was argued before us by learned counsel for the parties on 18th May 2009, the respondent’s counsel simply submitted that he conceded to the appeal and urged us to allow the same and also informed this court that he had nothing more to add.

I think without much ado or dissipation of energy, the circumstance in the decision of Adelaja vs. Oguntayo is very much similar to that in the instant appeal. In the former case like in this instance case, the trial court in the course of the hearing of that suit the plaintiff/appellant also applied to tender a certain document, namely previous proceedings in another case.

That was objected to by the defendant’s/respondent’s counsel because there was no compliance with the provisions of Section 34 of the Evidence Act.

Before the appellant’s counsel replied to the objection of the respondent’s counsel the plaintiff/appellant’s counsel also sought to withdraw the document but the trial court proceeded to declare the said document tendered and rejected. At the end of the proceeding the trial court dismissed the case of the appellant. On appeal, this court held, inter alia, that when a party gives reasons for objecting to the admissibility of a document, it is necessary on the trial court to hear the other party’s counsel’s address on it.

Coming to this instant case, I feel the trial court had a duty to make sure that it heard both parties in order to do justice to all and also to ensure that justice prevails. By its hasty decision to “write and deliver its ruling rejecting the exhibit despite the appellants’ application to withdraw the document and without allowing them to respond to the respondent’s objection, it had deprived them their opportunity of being heard before rejecting the said document.

That, in my opinion, it must have occasioned miscarriage of justice to them. I am therefore of the view that the trial court had wrongfully rejected the document sought to be tendered by the plaintiffs and such rejection as I said above had occasioned miscarriage of justice.

It is trite law, that where it is found that trial court wrongfully rejected a vital document an appeal court would in such circumstance order a retrial.

See Okonkwo vs. Udo (supra).

In conclusion I must take this opportunity to commend the learned counsel for the respondent for without much ado and without wasting the precious time of this court conceded to the appeal. He, by so doing, portrayed himself as a true minister in the temple of justice who showed no interest in attempting to circumvent the true position of the law by advancing unnecessary, porous and untenable submissions only in an effort to impress his lay client. How I wish all learned counsel practicing law will emulate this exemplary behaviour of the learned respondent’s counsel and always be ever ready and willing to concede to any point of law raised by their opponents which are clear and well settled principle of law without unnecessary arguments.

In the result, I hold that the appeal is meritorious. It is therefore allowed by me. The decision of the lower court in suit No. FHC/EN/CS/102/2002 rejecting the document tendered by the plaintiffs/appellants delivered on 23rd January 2007 is hereby set aside. I must say this is a clear example of a case which an order of retrial should be handed out. I therefore order the remittance of the suit to the lower court for it to be retried by any judge of the same court other than Faji J.

I decline to make any order on costs, so parties should bear their own costs

Other Citations: (2009)LCN/3349(CA)