Mrs. Elizabeth N. Anyaebosi V. R.t. Briscoe (Nig.) Ltd. (1987)

LawGlobal-Hub Lead Judgment Report

UWAIS, J.S.C.

The parties to this case were originally the respondent (as plaintiff) and the late Innocent Ositadinma Anyaebosi (as defendant). The defendant (hereinafter referred to as “the deceased”) who was trading as “Ositadinma Trading Stores” applied by a letter dated 8th November, 1976, exhibit P1, to the plaintiff for appointment as a reseller of motors spare parts. The application was accepted by the plaintiff and the deceased was (as per exhibit P3) temporarily appointed as plaintiffs reseller for an initial period of 6 months.

A number of conditions were attached to the appointment; and one of these was that- PAYMENTS:- All purchases must be on cash basis or by a certified bankers cheque. Deliveries of spare-parts and accessories will only be effected when payment has been received by the Company (i.e. plaintiff) or when it has received confirmation that its bank account has been credited, unless special arrangement has been established and confirmed by the Company in writing.

It appears from the pleadings that the conditions contained in exhibits P3 were not strictly adhered to and were, by conduct, later varied by the parties. For example, the deceased’s appointment lasted up to October, 1978 instead of the 6 months given and payments to the plaintiff were not effected in the manner aforementioned. Now the plaintiff’s statement of claim, which is brief, reads thus-

1. The Plaintiff is a limited liability company registered under the laws of the Federal Republic of Nigeria and having offices throughout the Federation.
2. The Plaintiff among other things sells Vespa Motorcycles and their spare parts, Volvo cars and Toyota cars and their spare parts.
3. The Plaintiff upon the application of the defendant (i.e. deceased) dated 8th November, 1976 appointed the Defendant a reseller of its Toyota Spare Parts.
4. That as a result of the relationship between the Plaintiff and the Defendant referred to in paragraph 3 above, the Defendant between February and October, 1978 both months inclusive purchased on credit various spare parts to the tune of N60,935.10 and evidenced by various Invoices upon which the plaintiff shall rely at the trial of this suit.
5. That the Defendant kept account No. 534-121-0210 with the Plaintiff and the Plaintiff shall rely on the Defendant’s Statement of Account kept with the Plaintiff at the trial of this suit.
6. That towards liquidation of the sum outstanding on the account referred to in paragraph 5 above, the Defendant issued a Cooperative Bank of Eastern Nigeria cheque No. 8123668 dated 24th August, 1978 for the sum of N8,260.39 which cheque was dishonoured on presentation by the Plaintiff.
7. That the Defendant further issued three United Bank of Nigeria Limited, Idumagbo Branch, Lagos cheques dated 18th and 28th of September, 1978 for the sums of N1,899.70, N10,200.00 and N17,000.00 respectively in favour of the Plaintiff but which were dishonoured on presentation for payment by the Plaintiff. The Plaintiff gave notice to the Defendant that all the four cheques were dishonoured.
8. That the plaintiff and its Solicitors have made several repeated demands on the Defendant both personally and through correspondence but the Defendant has refused and or neglected to settle the outstanding account of N60,935. 10.
9. That the sum of N60,935.10 is owing and due from the Defendant to the Plaintiff.
10. That the Defendant has no defence to this action.
11. Whereof the Plaintiff claims against the Defendant the sum of N60,935.10 and interest at the rate of 10% up to the time of judgment and at 6% thereafter until judgment debt is fully paid.” Paragraphs 1 to 7 were admitted by the deceased in his statement of defence, wherein he averred that he paid the sum of N88,203.68 by personal cheques between the months of February and October in 1978. The deceased also alleged that various Receipts were given to him by the plaintiff in acknowledgement of the payments. Paragraphs 6,7,8,9,10 and 11 of the statement of defence read-

“6. In further answer to paragraphs 6 and 7 of the Statement of Claim the Defendant avers that when the said cheques for N8,260.39, N1,899.70, N10,200.00 and N17,000.00 were returned unpaid, the Defendant paid cash therefor whereupon the dishonoured cheques were returned to the Defendants.

7. The Defendant denied paragraph 8 of the Statement of Claim but admits that the Plaintiffs’ staff came on about three (3) occasions to demand payment of an alleged debt of N60,935.10.
8. The Defendant told the Plaintiffs’ staff that the said times they came to make the aforementioned demand as well as the Plaintiffs’ Mr. Onuoha that it is the Plaintiffs who are owing the Defendant and further demanded that a proper statement of the account of the dealings between the plaintiffs and the Defendant be made available to the Defendant but to no avail.
9. The Defendant denies paragraphs 9,10 and 11 of the Statement of Claim and states that he is not liable to the Plaintiff as alleged or at all.

COUNTER CLAIM

10. The Defendant repeats paragraphs 1 to 9 inclusive of the Statement of Defence.
11. By reason of the premises, the Defendant has suffered loss and damages.

PARTICULARS OF DAMAGE: Balance of the payment on account made by the Defendant to the Plaintiffs between February and October, 1978 i.e. N88,203.68 minus N60,935.10…=N27,268.58 And the Defendant counterclaims:1. Balance of payment on account … N27,268.58, 2.Damages, 3.Interests.”At the hearing before the trial Judge (Williams, J.), the plaintiff called only one witness – Mr. Edward Oladipo Aina, who was its Spare Parts Manager. The witness after testifying that the plaintiffs accounts were kept by computer, tendered a statement of account which the plaintiff kept in respect of its transactions with the deceased. The statement was admitted, without objection by the deceased’s counsel, as exhibit P4. This exhibit which is in a computer printed form was certified to be a true copy by one Chief T. Ola Odukoya, employed as Senior Accountant in the Respondent’s Motor Account Department. The exhibit was dated 31st December, 1980 and it showed a balance of N60,535.10 as outstanding against the deceased.The deceased gave evidence on his behalf. He denied owing the plaintiff the sum of N60,985.10 “between February, 1975 (sic) – October, 1978.” He tendered 10 receipts issued by the plaintiff in respect of the sum of N88,203.68 which he pleaded he paid to the plaintiff in 1978. These were admitted as exhibits “D-D9”. The deceased said that all the 4 cheques he issued to the plaintiff, which were dishonoured by his banks, were returned to him by the plaintiff and that he destroyed them. The photocopies of the cheques were earlier tendered in evidence by the plaintiffs witness and these were admitted as exhibits P5 to P8 inclusive. In support of his counter-claim, the deceased stated that he used to make payments to the plaintiff in advance so that the spare parts could be reserved for him to collect later. The deceased said that it was the difference between the sums of N88,203.68 and N60.935.10 claimed by the plaintiff that his Counter-claim was based on. In a considered judgment, the learned trial Judge found that although it was agreed in exhibit P3 that the deceased would make payments to the Plaintiff by cash or certified banker’s cheques, the deceased was allowed to issue his personal cheques for the payment of the purchases made by him. The learned trial Judge examined exhibits D to D9 and the entries in exhibit P4 and concluded as follows – “On the totality of the evidence, both oral and documentary, it is certainly not true that the defendant (i.e. deceased) paid cash to the plaintiff in respect of the dishonoured cheques. If he did, all those payments would have appeared on the statement of account, exhibits P4.The defendant said in his evidence that he paid cash for dishonoured cheques to one Mr. Onuorah, a Manager of the plaintiff who on such payment returned the dishonoured cheque to him. He even said half heartedly that he had such dealings with one Mr. Aina, another Manager of the plaintiff. If that were true, it would be the defendant’s duty to prove payment by calling credible evidence to prove payment because it is my opinion that in such a situation as this the burden of proof must shift to the defendant. He did not call such evidence. For these reasons I do believe and accept the statement of account between the parties and that the overall balance in that account is the amount which the defendant now owes the plaintiff. I find on the documentary and oral evidence as produced in this case that the plaintiff has proved its claim and is therefore entitled to judgment.(Italics mine)

With regard to the deceased’s counter-claim, the learned trial Judge said – “The defendant relied on the receipts Exhibits D – Exhibit D9 in proof of his counter-claim. His case was that the total sum on those receipts was more than the balance on the statement of account Exhibit P4. It has however been shown above that seven of ten receipts were shown in Exhibit P4 which meant that the amount shown on those seven receipts were duly received by the plaintiff. It is also clear on the evidence that the amounts on the 8 receipts Exhibit D7, Exhibit D8 and Exhibit D9 as tendered by the defendant were never received by the plaintiff because the cheques which he gave to the plaintiff for the sums on those three receipts were, on his admission, dishonoured. Furthermore the cheque Exhibit P5 which he admitted was not receipted was dishonoured by his bank. I have found that the defendant did not pay any cash for all his dishonoured cheques and since the defendant did not show any proof about the other payments which made up the other sums totalling N60,935.10 as claimed by the plaintiff,I find without any difficulty that the defendant’s counter-claim has not been proved, It should be dismissed and it is accordingly dismissed.(Italics mine)

In the result the learned trial Judge concluded his judgment as follows- “Judgment is hereby entered against the defendant and in favour of the plaintiff for the sum of N60, 935.10 with interest on the sum at the rate of 10% per annum from 30th March, 1981 up till today (i.e. 23rd April, 1982) and 6% per annum from today’s date until the judgment debt is fully paid.” The deceased appealed from the decision of the trial court to the Court of Appeal; but before the appeal could be heard by that Court, the deceased died on 27th April, 1982.

His widow, Mrs. Elizabeth N. Anyaebosi, applied to be substituted for the deceased on behalf of herself and the rest of the deceased’s family. She was accordingly substituted as the Appellant before the Court of Appeal. It was argued before the Court of Appeal that exhibit P4 was inadmissible at the trial because it was prepared in anticipation of the litigation brought by the plaintiff.

But the Court of Appeal (per Mohammed, J.C.A.) held-I have no hesitation in accepting that exhibit P4 was not made by a person interested in this proceedings and that the maker did not anticipate the litigation now pending in respect of the matter.” And on the contention that the deceased had paid to the plaintiff the sum of N88,203.68 as shown by exhibits D-D9, the learned Justice of the Court of Appeal said, before dismissing the appeal – “The learned trial judge considered all the receipts tendered by both parties and I am quite satisfied that he came to a correct conclusion that the overall balance in the statement of account is the amount which the appellant now owes the respondent.” In the further Appeal now before this Court, the appellant has, with the leave of the Court of Appeal, filed 12 grounds of appeal.

Most of these grounds raise questions of either facts or mixed law and facts, on which there had been concurrent findings of fact by the lower courts. The ease with which the Court of Appeal, though differently constituted, granted to the Appellant the leave to appeal is therefore alarming. I think it needs to be stressed again that this Court as well as the West African Court of Appeal laid down, in plethora of cases, the principle that when concurrent findings of facts are made by lower courts such findings will not be disturbed on further appeal to this court unless there are exceptional circumstances to justify doing so. See Kofi v. Kofi; 1 WACA 284; The Stool of Abinabina v. Chief Kojo Enyimadu, 12 WACA 171 at p. 173; Enang v. Adu; (1981) 11-12 SC.25 at 142; Okagbue v. Romaine, (1982) 5 S.C. 133 at p.170; Lokoyi v. Olojo, (1983) 8 S.C. 61 at 168; Ojomu v. Ajao, (1983) 9 S.C. 22 at 153; Overseas Construction (Nig.) Limited v. Creek Enterprises (Nigeria) Limited & Anor., (1985) 3 NWLR 407 at p. 413 and Onobruchere & Anor. v. Esegine & Anor., (1986) 1 NWLR 799 at p. 804.

No exceptional circumstance was prima facie shown by the appellant in his application to the Court of Appeal. The application was simply granted as a matter of course. This is obviously a negation of the principle which was repeatedly laid down in the cases cited above and ought to be deprecated. In Holman Bros. (Nigeria) Limited v. Kigo (Nig) Limited. & Anor., (1980) 8-11 S.C. 43 which approved the decision in Ex parte Gilchrist, In re Armstrong (1886-87) 17 Q.BD 521, Udoma, J.S.C. gave the following warning-

“On the other hand, care should always be taken so as not to give the impression that leave to appeal would be granted as a matter of course – a mere routine. “In order not to render the Constitutional requirement under Section 123(3) of the 1979 Constitution otiose, the warning ought to be heeded whenever application for leave to appeal is being considered by the Court of Appeal.

“It is not necessary to set-out the grounds of appeal as it will suffice to say that the substance of appellant’s complaints falls under 3 heads, namely-

1. That exhibit P4, being secondary evidence, was admitted in evidence by the trial court contrary to the provisions of Section 90 subsection (2) of the Evidence Act. It therefore ought to have been rejected in the judgments of the trial court and the Court of Appeal.
2. That assuming that exhibit P4 was rightly admitted in evidence; it should have been considered inadmissible, later in the proceedings, by virtue of the fact that it was prepared by an interested person in anticipation of the litigation between the respondent and the deceased.
3. That the sum of N60,535.10 shown in exhibit P4 as the amount outstanding against the appellant is at variance with the sum of N60,935.10 claimed by the statement of claim. Judgment should, therefore, have been entered for respondent for the lesser sum of N60,535.10 and not the sum of N60,935.10 it claimed.

Arguing the first head, Mr. Okoli, learned counsel for the appellant in this Court (as well as the lower courts) submitted that since exhibit P4 was certified copy it was inadmissible under Sections 95, 96,108, 109 and 111 of Evidence Act, Cap.62 if read together. This argument detracts to some extent’ from the Appellant’s brief of argument which placed reliance on Section 96 subsection (2) of the Evidence Act only and cited Alade v. Olukade (1976) 2 F.N.R. 10; (1976) 1 ALL NLR 67, in support of the submission. Be that as it may, it is significant to point out that when exhibit P4 was tendered in evidence, learned counsel did not object to its admission nor did he point out to the trial judge that it was inadmissible under section 96(2) of the Evidence Act or any of the other sections of the Evidence Act, referred to in his argument.

The question then is: can the appellant blow hot and cold in respect of the admission of exhibit P4 Section 95 of the Evidence Act provides that in court proceedings, documents must be proved by primary evidence except in the cases that fell under section 96 of the same Act. Section 96 subsection (1) sets out the various conditions under which secondary evidence of the contents of a document may be given. And subsection (2) of section 96 provides as follows-

“(2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) is as follows:- (a) in paragraphs (a), (c) and (d) any secondary evidence of the contents of the document is admissible; (b) in paragraph (b) the written admission is admissible; (c) in paragraph (e) or (f) a certified copy of the document, but no other kind of secondary evidence, is admissible; (d) in paragraph (g) evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents; (e) in paragraph (h) the copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the banks, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry and may be given orally or by affidavit.”

It is the non-compliance with any of these provisions, by the respondent, in tendering exhibit P4 in evidence that the appellant is canvassing. In general it is true that where a document, which is inadmissible in evidence, is admitted at trial, such document must be rejected on appeal – Ajayi v. Fisher, 1 F.S.C. 97, Esso West Africa Incorporated v. Alli, (1968) N.M.L.R. 414 at p.423 and Jacker v International Cable Co. Ltd. (1888) L.T.R. 13.

However this rule is not without exception. Certain class of evidence is absolutely inadmissible by virtue of some statutory provisions; while another class is made admissible under certain conditions. In the case of the former class the evidence cannot be acted upon whether it was admitted by consent of the parties or otherwise; and the evidence will be rejected on appeal if it was admitted in the trial court – see Owonyin v. Omotosho, (1961) 1 ALL N.L.R. 304 at p.308; Yassin v Barclays Bank D.C.O. (1968) 1 ALL N.L.R. 171 at p.177 and Alashe v. Ilu, (1964) 1 ALL N.L.R. 390 at p.397.

With regard to the latter class if the conditions laid down for the admission of the evidence are not absolute, as in the former class, then such inadmissible evidence if admitted without objection, the appellant cannot complain against the admission – see Chukwurah Ekunne v. Mathias Ekwunno & Ors., 14 W.A.C.A. 59; Yassin v Barclays Bank D.C.O., (supra) at p.179; and A lade v. Olukade, (supra) where this Court (per Idigbe, J.S.C.) observed as follows- “Dealing with the latter class of cases, however, this Court in Cavalotti Govianni v. Bonaso Luigi, SC.402/67 of 31/10/69, held that a document (a photocopy) which did not comply with section 96(1)(b) of the Evidence Act and which had been admitted without objection by the appellant was legal evidence upon which the Court could properly act. See also Chukwura Akunne v Mathias Ekwunno and Ors., (1952) 14 WACA 59.

Accordingly, in those cases where the evidence complained of is not, by law, inadmissible in any event a party may, by his own conduct at the trial, be precluded from objecting to such evidence on appeal- see Gilbert v Endean, (1878) 9 Ch.D. 259 where Cotton, L.J. made the following observations-“But I must add this where in the Court below the evidence not being that on which the Court can properly act, if the person against whom it is read does not object, but treats it as admissible, then before the Court of Appeal, in my judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.”

It is very clear that exhibit P.4, in the present case, was admissible under the provisions of section 96 subsections (1) and (2) of the Evidence Act. But the respondent did not lead evidence to show which of the conditions under section 96(1) applied to the exhibit. Appellant on the other hand did not object; he cannot therefore now complain that the exhibit is inadmissible because no evidence was led by the respondent at the trial to show which of the paragraphs in section 96(2) covered its admission.

In Yassin v. Barclays Bank D.C. O. (supra) Lewis, J.S.C. stated at p.179, as follows- “We do not, in this judgment seek to derogate from what we said in Alashe v. Ilu in any way. That case was dealing with evidence absolutely inadmissible by virtue of the statutory provisions applicable there, but here the statement of account is expressly declared to be admissible under section 96 of the Evidence Act, if certain conditions are satisfied.

If inadmissible evidence is not objected to and is admitted it must still be rejected on appeal but if the evidence can be interpreted as complying with the appropriate statutory requirement, then it is a matter to be taken into consideration when interpreting the evidence that it went in unchallenged. In other words, if the evidence can be treated as inadmissible because there is a possible other interpretation which would render it inadmissible when that possible other interpretation had not been tested by questions from the party who could have objected to the evidence being admitted.” italics mine.

I now turn to the second complaint of the appellant, that exhibit P4 was prepared by an interested person at a time when litigation was anticipated. Learned counsel for the appellant argued that Chief T. Ola Odukoya, who certified exhibit P4 as true copy must have been interested, as an employee of the respondent, in the respondent winning the case.

His reason for urging so was that Chief Odukoya would be blamed for any loss that the respondent might suffer. In addition, learned counsel for the appellant referred to exhibits P.10, P.11 and P.12, which were letters sent by the respondents solicitors to the deceased demanding the settlement of the amount claimed in the writ of summons, and submitted that when exhibit P4 was prepared on the 31st December, 1980, litigation was being anticipated.

In reply, Mr. Phillip, learned counsel for the respondent, argued on the authority of Holton v Holton, (1946) 2 All E.R. 534 at p.535, that unless Chief T. Ola Odukoya, had financial or other interest in the outcome of the case, he could not be said to be an interested person. He contended further that the fact that the maker of a document (in this case Chief T. Ola Odukoya) is an employee or servant does not make him an interested person; evidence of real likelihood of bias must be adduced before the employee or servant can become an interested person.

Now section 90(1) of the Evidence Act provides that 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 the production of the original document be admissible of that fact, if certain conditions, which should not bother us here are satisfied. The provisions of the subsection are, however, qualified under subsection (3) of section 90 of the Act, which provides-(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”

Demand letters exhibits P10, P11 and P12 were written by the respondent’s solicitors on the 19th February, 1980, 26th February, 1980 and 8th March, 1980 respectively. Each of the three letters, which were sent to the deceased, ended with threat of legal proceedings if the demand made was not settled. Exhibit P4 was not prepared until the last day of the year that is the 31st December, 1980. The writ of summons was taken out against the deceased on the 20th March, 1981. From the foregoing facts, there can be no doubt that litigation was being anticipated when exhibit P4 was made on the 31st December, 1980. The only question that remains to be answered is whether Chief T. Ola Odukoya, the respondent’s Senior Accountant is a “person interested” within the meaning of Section 90(3) of the Evidence Act.The word “interested” has not been defined by the Evidence Act. Section 1 of the Evidence Act, 1938 of England is in pari materia with section 90 of the Evidence Act, Cap.62, subsection (3) of the former is word for word the same as subsection (3) of section 90. In construing the word “interested” in section 1(3) of the 1938 Act, Devlin L.J. made the following observation in Bearmans Ltd. & Anor. v. Metropolitan Police District Receiver, (1961) 1 W,L.R. 634 at p.655- “The word “interested” is not a word which has any well-defined meaning and any body who was asked what it meant would at once want to know the con in which it was used before he could venture an opinion. It may mean a direct financial interest on the one hand, or on the other hand it may mean nothing more than the ordinary human interest which everybody has in the out come of proceedings in which he is likely to be a witness.

Just as in ordinary speech one would require to know the con, so in construing the word in an Act of Parliament it is essential-more necessary in this case than in most – to look at the scope and purpose of the Act, and I think that if one does that one will be led to the conclusion that section 1(3) is to be given a narrow rather than a broad meaning. “I agree with the reasoning. Now giving the word “interested” in subsection 3 of section 90 of the Evidence Act, a narrow meaning; can Chief T. Ola Odukoya be said to be a person interested in the result of the proceedings brought by his employer In general, an employee may be said to have interest in the outcome of a case if his skill or competence are involved, or his conduct in relation to the events which led to the litigation or when his association with the events is called to question.

One other way of determining the interest of an employee in a case in the con of section 90(3) of the Evidence Act is to ask the question – is what is at stake in the proceedings the reputation of the maker of the statement, in the sense of his being directly responsible for the events being litigated If the employee’s skill or competence is involved or his conduct or association with the events leading to the proceedings are in question or the question posed is answered in the affirmative, then’, in my opinion, the statement made by such employee would be caught by the provisions of subsection (3) of section 90, since the statement of the ’employee is likely to be tainted by the incentive to conceal or misrepresent facts.

The position will, of course, be otherwise if none of such considerations were present. It was held in Kelleher v. T. Wall & Sons Ltd. (1958) 2 Q.B. 346 and Bearmans Ltd. & Anor. v. Metropolitan Police District Receiver (supra) that the mere fact that the maker of a statement tendered in evidence is in the employment of a party to the action does not by itself make him a “person interested” in proceedings within subsection (3) of section 1 of the Evidence Act, 1938.

In the present case the only reason which learned counsel for the appellant gave for exhibit P4 to be regarded inadmissible is that its maker was likely to be blamed for any loss that the respondent could have suffered. This is no more than a surmise on the part of learned counsel, since Chief T. Ola Odukoya did not testify at the hearing of the case to say why he made exhibit P4 and the appellant did not call any evidence to support the allegation made by the appellant’s counsel. Throughout the trial there was no evidence adduced by either party to show what role Chief T. Olu Odukoya played in supplying the deceased with spare parts or accepting the deceased’s cheques which were dishonoured. It is therefore difficult to see how Chief Odukoya would feel that he would be blamed for any loss suffered by the respondent as a result of its transaction with the appellant.

On the whole I see no substance in the appellant’s argument to lend weight to the contention that Exhibit P4 was made by a “person interested” or that Chief T. Olu Odukoya was “interested” in the proceedings. With regard to the final point that there was discrepancy between the amount of N60,935.10 claimed by the respondent and the amount appearing on exhibit P4, learned counsel for the appellant canvassed that there was no proof of the amount claimed and exhibit P4 is not sufficient, in view of the provisions of section 37 of the Evidence Act, to prove that the appellant was owing the lesser amount of N60,535.10 established by the exhibit. Section 37 of the Evidence Act, Cap, 62 states-“Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.”

Learned counsel for the respondent replied that the provisions of Section 37 of the Evidence Act are not applicable because exhibit P4 was not the only evidence adduced by the respondent in proving its claim. The finding made by the trial court was stated in the following words already quoted above –

“For these reasons I do believe and accept the statement of account between the parties and that the overall balance in that account is the amount which the defendant now owes the plaintiff.” And yet the trial court gave judgment in the sum of N60,935.10 instead of N60,535.10 which was “the overall balance” in the statement of account Exhibit P 4.On the finding the Court of Appeal said, also as quoted above – “I am quite satisfied that he (learned trial Judge) came to a correct conclusion that the overall balance in the statement of account is the amount which the appellant now owes the respondent.”

It is true that the figure N60,535.10 which appears in exhibit P4 is different from the amount claimed by the respondent. It is in fact less than the amount claimed by N400.00. By relying on exhibit P4 the amount proved by the respondent as owing is N60,535.10 and not the N60,935.10 claimed and ;or which judgment was given by the lower Courts. It follows, therefore, that judgment could only and should have been entered for the lesser amount.

This notwithstanding, was there any evidence apart from the statement of account, exhibit P4, to establish the appellant’s liability in the sum of N60,535.10 to the respondent. I am satisfied that there was such evidence. For P.W.1 – Mr. Edward Olabode Aina, testified as follows-“After the (deceased) was appointed (reseller), he commenced to buy spare parts from the plaintiff. Defendant was one of them (resellers) who was allowed to buy by his personal cheque only operates an account with the plaintiff. He was one of the few to be given this facility. He operated an account. He operates a computerised system of account.

This is the defendant’s statement of account from February 1978 to July, 1980. I produce it, no objection Okoli, admitted and marked Exhibit P4. The value of the trade between the plaintiff and defendant amounted to over N170,000. Defendant bought goods to that value from the plaintiff. He paid by his personal cheques. Receipts were issued for cheques paid. Four of the cheques were returned unpaid by their banks.

The total sum in these returned cheques was over N37,000…………….The defendant has not settled his indebtedness. I want the court to compel the defendant to pay the amount on the cheques Exhibits P5-P8 and the outstanding amount all totaling over N60,000 ………..”In the light of this testimony it is clear that exhibit P4 was not the only evidence on which the appellant’s indebtedness to the respondent was proved.

The proviso to section 37 of the Evidence Act, does not therefore apply to this case.For the foregoing reasons the appeal fails except on the question of the amount for which judgment should have been given to the respondent.

Consequently, the judgment of the High Court entered for the respondent is varied to read as follows -“Judgment is hereby entered against the defendant and in favour of the plaintiff for the sum of N60, 535.10 with interest on the sum at the rate of 10% per annum from 30th March, 1981 up till today and 6% per annum from today’s date until the judgment debt is fully paid.

The plaintiff shall have costs which are assessed and fixed at N175.00.”There will be no order as to costs in this Court. Each party is to bear its costs.

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SC.169/1985