➥ CASE SUMMARY OF:
Alhaji Hali Aliyu v. Alhaji Bello Bulaki (2019) – CA
by “PipAr” Branham-Paul C. Chima.
Court of Appeal – CA/S/36/2018
➥ JUDGEMENT DELIVERED ON:
Tuesday, 8th January, 2019
➥ AREA(S) OF LAW
➥ PRINCIPLES OF LAW
⦿ MEANING OF AFFIDAVIT
Now, affidavit is simply a declaration on oath, a formal sworn statement of facts signed by the deponent and witnessed as to the veracity of the deposition’s signature by the taker of the oath such as the commissioner for oaths, notary public or even a magistrate. Thus, Affidavit evidence is a statement of fact which the deponent swears to be true to the best of his knowledge, information or belief. See Chief Chukwumeka Odumegu Ojukwu vs Miss Stella Onyeador (1991) 7 NWLR (pt 203) 286 at 317. A deposition literally means a formal, usually a written statement to be used in a law suit as evidence. — A.A. Wambai, JCA.
⦿ COURT CANNOT DEVIATE FROM THE APEX COURT DECISION BASED ON ARGUMENT OF TECHNICALITY
Unarguably, the hey days of technicalities are gone. However that dictum or should I say, that slogan has to be put and understood in its right perspective. Where a matter has been settled by the apex Court, on what ground will this Court or any subordinate Court stand to decide otherwise? This Court possesses not the power to depart from or ignore the position taken by the apex Court on the same or similar facts. Doing so will amount to gross judicial impertinence which this Court should not and cannot dare. — A.A. Wambai, JCA.
⦿ EVALUATION AND PERCEPTION OF EVIDENCE
In carrying out its sacrosanct function of evaluation of evidence, the trial judge begins by receiving into its record all relevant evidence on the case or the fact in issue, and this is perception of evidence. He then proceeds to weigh the evidence in the light of the surrounding circumstances; this is evaluation of evidence. The findings of fact by a trial Court involves both perception and evaluation. See ONI vs. JOHNSON (2015) LPELR (24545) 1 at 35-38. — A.A. Wambai, JCA.
⦿ SPECIAL DAMAGES DOES NOT SUCCEED ON ADMISSION BY OTHER PARTY – SPECIAL DAMAGES MUST BE STRICTLY PROVED
The paramount question that arises is whether a claim for special damages such as the Respondent’s claim in the instant appeal, will succeed on the defendant’s part admission of the claim. This was the question answered by the Supreme Court in the case of NNPC V CLIFCO NIG. LTD (2011) 4 MJSC 142 at 174 as follows: “A claim for special damages will not succeed simply because there is admission of claim, special damages are never inferred from the nature of the act complained of. They do not follow in the ordinary course as is the case with general damages. They are exceptional and so must be claimed specifically and proved strictly. See Incar v. Benson (1975) 3 SC 117; Odulaja V. Haddad (1973) 11 SC 357.” — A.A. Wambai, JCA.
⦿ SPECIAL DAMAGES CAN SUCCEED ONLY UPON CONCRETE PROOF
The trite position of the law as restated in these decisions of the apex Court is that a claim for special damages being exceptional and specific in nature, can succeed only upon concrete proof and not upon admission, either implied or express. Simply put because special damages are exceptional and specific in nature, they will not succeed and will not be granted as a matter of course upon admission, express or otherwise, even where it is specifically pleaded as required by the law. — A.A. Wambai, JCA.
⦿ CLAIMANT SHOULD ESTABLISH ENTITLEMENT TO SPECIAL DAMAGES
Whenever special damages are claimed, the party so claiming has an uphill task of a strict proof. In effect the rule requires anyone asking for special damages to prove strictly that he suffered such special damages as he claimed. Thus, the claimant should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he is indeed entitled to an award under that head. The general law of evidence as to proof by preponderance in civil cases operates in discharging such burden of proof. The Respondent failed to prove special damages. — H. Mukhtar, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Amina Audi Wambai, J.C.A.
⦿ FOR THE APPELLANT
Ibrahim Abdullahi Esq. (FRHD).
⦿ FOR THE RESPONDENT
A. Y. Abubakar Esq.
➥ CASE FACT/HISTORY
The Respondent’s (as Plaintiff) case is that in the month of August, 2014 the Appellant collected from him 120 belts of wax, each belt containing 100 pieces of wrapper at the cost of ₦110,000.00, making a total cost of ₦13,200,000.00, on credit basis. That the Appellant made some instalmental payments personally and also through one Bello liberty, and the Respondent’s Zenith Bank account, the last payment being the sum of ₦200,000.00 and the return of 5 belts of wrappers, on the 14/5/2015 leaving a balance of ₦7,232,000.00 remaining unpaid despite repeated demands, the reason for which the suit was instituted at the lower Court.
On the other hand, the Appellant’s case is that, he did not buy or collect any goods on credit from the Respondent but that the Respondent uses him as a front to distribute the goods to his customers on credit and when the monies are paid by the customers, he, the Appellant would then remit the monies to the Respondent. That there was no time limit within which the customers are to pay the money. Also, that all the payments made and referred to were the monies paid by the customers, maintaining that since no goods were given to him personally on credit basis, he is not personally indebted to the Respondent but the customers to whom the goods were distributed and are yet to liquidate their debts, are the Respondent’s debtors.
At the close of evidence, written addresses were ordered.
In his considered judgment, the learned trial judge concluded: “It is therefore the view of this Court that the plaintiff has proved his claim against the defendant by preponderance of evidence and therefore the claim of the plaintiff as par his statement of claim succeeds.”
Aggrieved by the said decision, the appellant commenced this appeal the Notice of which was filed on the 24th October, 2017.
➥ ISSUE(S) & RESOLUTION(S)
I. WHETHER THE LOWER COURT WAS RIGHT IN REFUSING TO EXPUNGE THE EVIDENCE OF PW1 AND TO PW2 AS WELL AS THE EXHIBITS TENDERED THROUGH THEM ON GROUND OF VIOLATING SECTIONS 112, 117 (4) AND SECTION 83(3) OF THE EVIDENCE ACT?
RULING: IN APPELLANT’S FAVOUR.
A. DEPOSITIONS MUST BE SIGNED BEFORE THE APPROPRIATE OFFICER AS PRESCRIBED BY LAW
“Reading the above provisions of the Evidence Act together with Section 19 of the Notaries Public Act, the clear message is that an affidavit sworn in the chambers of a legal practitioner appearing for a party in any proceedings or before a clerk in his chambers is inadmissible in evidence. This includes a witness written deposition on oath. This is so because a deponent’s legal practitioner is a person interested in the proceedings and therefore disqualified from Notarizing for his client. Though the legal practitioner in whose chambers the depositions were sworn is or may be a Notary public, being legal practitioner representing the Respondent in the suit, is precluded from notarizing any document for the Respondent for use in the case. Additionally oath taking goes beyond mere signing of the contents of the document before the person authorized to administer the oath … Therefore for any such deposition to be competent for use, it must be duly signed and sworn before the appropriate officer in accordance with the Evidence Act and the Oaths Act. It is the due swearing that gives life to the declaration on oath. Without the due swearing of the deposition in the presence of and by the proper officer authorized to take the oath, the statement on oath is a mere piece of paper and not a deposition or affidavit. See UDUSEGBE V SPDC (NIG) LTD (2008) 9 NWLR (Pt. 1093) 593, MARAYA PLASTICS LTD V INLAND BANK NIG. PLC (2002) 7 NWLR (Pt. 765) 109.”
“The learned respondent’s counsel has not made a case that the decision in the case of BUHARI V INEC (supra) has been overruled by a later decision of the same Court. He has not and cannot successfully make a case why I should depart from or disobey the decision in BUHARI V INEC and were such a case to be made by the learned counsel in the absence of any decision of the same apex Court to the contrary, I will, in obedience to the said decision in BUHARI’S case, gladly disobey the learned counsel. In the circumstance, I am bound by the decision in the BUHARI V INEC’S case (supra) and to act as was therein sanctioned. Accordingly, the written statements of PW1 and PW2 along with the exhibits tendered through them are hereby expunged from the record.”
B. EXHIBITS D & D1 WERE MADE AFTER PROCEEDINGS WERE INITIATED AND THUS INADMISSIBLE
“The reason for making Exhibits D & D1 cannot be anything but to enhance his claim against the Appellant. Surely, the Respondent is a person interested in the outcome of the action. From these admitted facts, there can be no difficulty in arriving at the conclusion that Exhibits D & D1 clearly were made when proceedings had begun involving the dispute between the Appellant and the Respondent respecting the Respondent’s claim in the pending suit. They were made for the purpose of proving the fact in issue. Clearly, Exhibits D & D1 offend Section 83 (3) of the Evidence Act and are inadmissible in evidence. The irresistible, conclusion therefore is that the issue is resolved in favour of the Appellant.”
II. WHETHER ON THE EVIDENCE BEFORE THE COURT, THE LOWER COURT WAS RIGHT IN ENTERING JUDGMENT FOR THE RESPONDENT IN TERMS OF HIS CLAIM AT PARAGRAPH 17 OF THIS STATEMENT OF CLAIM.
RULING: IN APPELLANT’S FAVOUR, IN PART.
A. THAT THE STATEMENT OF CLAIM WAS PROPERLY FILED – WRITTEN DEPOSITIONS ACCOMPANIED IT
“All that is required at the point of filing the statement of claim is that it is accompanied with the necessary processes including the deposition of witnesses. That was done in the present case. The question of the competence of these processes for use as evidence, which only comes into play at the next stage, is quite different from the requirement of attaching the processes. Whether the accompanying processes will be admissible in proof of the case is a different matter. With particular reference to the case at hand, whether the accompanying written deposition of the witnesses meet the requirement of the law for adoption as evidence in proof of the claim is entirely a different issue. This is the big difference which the learned appellant’s counsel has failed to realize or to draw. Therefore, for the purpose of meeting the requirement in paragraph (c) of Order 3 Rule 2 (1), the Respondent’s statement of claim as at the time of its filing is competent.”
B. PURSUANT TO ISSUE 1, THE WRITTEN DEPOSITIONS ARE INCOMPETENT
“On the competence of the written deposition of witnesses for adoption as evidence, as earlier stated, the witness deposition must be duly sworn before the appropriate person authorized to take oath in accordance with the law. Any defect in the swearing of the deposition, as hitherto held in this judgment, is intrinsic to the competence of the deposition and renders it incompetent. See BUHARI V INEC (Supra). This is why in my resolution of the first issue, the written statements on oath (deposition) of both PW1 & PW2 which by their own showing were sworn in the chambers of their legal practitioner and found to have violated the provisions of Sections 112, 117 (4) of the Evidence Act and Section 19 of the Notaries Public Act, were, on the authority of BUHARI V INEC (Supra), expunged from the record together with the exhibits tendered through the two witnesses. Consequent upon the foregoing, the question which the appellant’s submission throws up for consideration is the jurisdiction or the propriety of the trial Court in relying and acting on the said evidence of PW1 & Pw2 whose deposition were fundamentally defective. With the expunction of the written depositions of both PW1 & PW2 who were the Respondent’s only witnesses, the appellant’s question has to be answered in the negative, that is to say that the Court was without jurisdiction to rely on the evidence of PW1 & PW2. Put differently and clearly, by virtue of Order 33 Rule 1(1) & (2) of the same Rules, the only mode of adducing evidence and proving any fact, except as otherwise specifically provided, is by written deposition and oral examination of witnesses in Court. A witness shall only testify by adoption of his earlier written deposition which must be duly sworn in accordance with the Evidence Act. It is upon such duly sworn and adopted deposition that he shall be led in oral evidence in chief, be cross examined by the adverse party and reexamined by the party calling him if necessary. His evidence in chief shall be limited only to confirming his written deposition and tendering in evidence all documents or exhibits referred to in the deposition. Any evidence outside his deposition shall not be allowed. In other words, the only evidence the Court is entitled to receive into its record is the evidence contained in the duly sworn written depositions front loaded along with the pleadings, (be it the statement of claim or the statement of defence and) which deposition becomes evidence only upon adoption and subjugation to cross-examination. A written deposition that is not adopted or cannot legally be adopted is deemed abandoned and the deponent incapacitated from testifying. It follows that any evidence sourced from a fundamentally defective deposition, as in the case at hand, is equally fundamentally inadmissible and cannot be relied upon in proof of any fact. Such evidence goes to no issue because as the legal maxim goes “ex nihilio nihil fit” from nothing comes nothing, the evidence cannot be placed on nothing.”
C. HOWEVER, THE APPELLANT MADE ADMISSION OF COLLECTION OF BELTS FROM THE RESPONDENT
“The Respondent’s position is that there is in the appellant’s pleadings an admission that the appellant collected the 120 belts of wrappers from the Respondent and that some payments have been made leaving a balance of N7, 700.00 outstanding. It seems clear from paragraphs 6, 7 and 8 of the appellant’s statement of defence that issues were not joined on the facts that the Appellant collected the 120 belts of wrappers from the Respondent and that some payments have been made. These are admitted facts. It is now a settled position of law with statutory backing and a legion of decided authorities that what is admitted needs no further proof. By Section 123 of the Evidence Act, no fact needs to be proved in any civil proceeding which the parties to the proceeding or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings, provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. By these provisions, generally in civil proceedings, unless a Court deems it fit as provided for in the proviso to call for further evidence, what is admitted requires no further proof other than by such admission, as an admitted fact in pleadings requires no further proof, in civil proceedings. Where issues are not joined, proof is not required. This trite position of law is what was restated in the case of AKIBU v. ODUNTAN (1992) 2 NWLR (222) 210 at 226-7 “thus: Facts admitted need not be proved as proof presupposes disputed facts. Consequently where facts are not in dispute, the parties have not Joined issues which make proof unnecessary.” There are too many decided cases on this principle.”
D. SPECIAL DAMAGES WAS NOT PROVED BY THE RESPONDENT (ADMISSION MADE IRRESPECTIVE)
“In the instant case with the expunction of the evidence of PW1 & PW2 along with all the exhibits tendered through them and the appellant’s denial of the claim, the Respondent’s claim for special damages cannot by any stretch of imagination be said to have been proved. The result in that the Respondents claim for special damages cannot succeed.”
“Perhaps, the situation might have been different even with the expunction of the evidence of PW1 and PW2, if the respondent’s claim had not been for special damages. However perforce of law, entitlement to special damages must not only be specifically pleaded, it must also be strictly proved. Admission either on the basis of default of pleadings or on pleadings without evidence to show the claimant’s entitlement is not enough. The success of a claim in special damages depends on the strict prove of what is claimed. Where the claimant fails to prove his claim of special damages, he cannot rely on the defendant’s admission on pleadings and his case is bound to fail. In the circumstance, this issue as the first, must also be resolved in favour of the appellant.”
“Resultantly, I find the appeal meritorious. It is accordingly allowed. Parties shall bear their cost.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 112 of the Evidence Act 2011 provides: “An affidavit shall not be admitted which is proved to have been sworn before a person on whose behalf the same is offered, or before his legal practitioner, or before a partner or clerk of his legal practitioner.”
Section 19 of the Notaries Public Act Cap. N141 LFN 2004 comes into play. It provides: “No notary public shall exercise any of his powers as a notary in any proceedings or matter in which he is interested.”
➥ REFERENCED (CASE)
⦿ A DEFECT REGARDS SWEARING OF OATH IS NOT A MERE IRREGULARITY
DR MUHAMMAD IBRAHIM ONUJABE & ORS V FATIMA IDRIS (2011) LPELR – 4059 (CA) as follows: “The Oaths act is a general statute that deals with oaths. The provision under Evidence Act on affidavit places a condition precedent which ought to be fulfilled to render the affidavit competent. One fundamental condition is the swearing on oath before the commissioner for oath. It is on this vein that the provision under the oaths Act becomes relevant. That is why a defect as regards the swearing on oath is not a mere irregularity as to form but defect as to substance.”
➥ REFERENCED (OTHERS)