➥ CASE SUMMARY OF:
Enwerem v. Abubakar and Another (CA/A/351/2013, 18 April 2016)
by Branham Chima (LL.B.)
➥ SUBJECT MATTER(S)
Waiver;
Illegally admitted evidence.
➥ CASE FACT/HISTORY
This is an appeal against the decision of Honorable Justice Husseini Yusuf, of the High Court of the Federal Capital Territory, Abuja, delivered on the 18tn of February, 2013, dismissing suit number FCT/HC/CV/1596/09. The plaintiff/appellant claimed against the respondents jointly and severally the following, inter alia: a. An Order declaring null and void any revocation by the 2nd Defendant of the property to Plaintiff.
➥ ISSUE(S)
I. Whether the trial court was right in expunging Exhibit P2, for being extraneous to the contract?
II. Whether the trial court correctly applied the principles of the doctrine of waiver in dismissing the suit?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[THE DOCUMENT IS A DOCUMENTARY HEARSAY AND CANNOT BE ADMITTED
‘It appears to this court that Exhibit P2 was expunged by the trial court for the following reasons, at pages 321 to 322 of the record of proceedings: “…it is clear that the purported endorsement..- does not form part of the contract between the plaintiff and the 2nd defendant..- the disputed endorsement does not take the form of a document under seal and neither was it signed by recognized parties…finally and more importantly on this point the handwritten endorsement on the letter of offer was wrongly admitted. Since the endorsement was not made by the plaintiff, she owes a duty to prove the maker. According to her, it was made by agents of the plaintiff apart from a possible lack of authority on the person who purportedly made it; there is the need to identify the real person. This was not done and nobody wrote to the court to adopt the statement as his own. Under the foregoing provision, the statement becomes inadmissible.’ This finding by the trial court cannot be faulted because this piece of evidence was clearly admitted wrongly in the first place, against the spirited objection of the respondents, see page 302 of the record of appeal.’
ILLEGALLY ADMITTED EVIDENCE CAN STILL BE EXPUNGED
‘Now in view of the foregoing it therefore follows that a wrongfully admitted piece of evidence is not sacrosanct; it is still subject to scrutiny by an appellate court. The appellate court is clearly under a duty to scrutinize, and if need be expunge any evidence that is wrongfully admitted, see OKONJI V. NJIKANMA (1999) LPELR-2477-SC Inadmissible evidence ought not be admitted even by mistake, where it is admitted, as in this case and the trial court failed to expunge the said exhibit, this court ought to expunge same, or better still consider the case on the basis of legally admissible evidence only, see ABUBAKAR V. CHUKS (2007) VOL MJ5C 190 at 217, where the Supreme Court held: “Where evidence is admitted in error then it is the duty of the trial Court to expunge it in giving its judgment. If it fails to do so, the appellate Court will reject such evidence and consider the case in the light of the legally admitted evidence. See also, OWONIYI V. OMOTOSHO (1961) ALL NLR 304; ALASE V. ILU (1964) 1 ALL NLR 39.’’
THE EXHIBIT IS EXTRANEOUS TO THE AGREEMENT
‘In the circumstances therefore Exhibit P2 is extraneous to the contract agreement, and the trial court properly expunged same; accordingly this issue is resolved in favour of the respondents, against the appellant.’]
.
.
↪️ ISSUE 2: IN RESPONDENT’S FAVOUR.
[THERE WAS NO WAIVER OF RIGHT
‘From the foregoing it is the considered opinion of this court that the trial court was right in holding that the principles of waiver did not apply to defeat the interest of the 2nd respondent; especially when it is taken into account that even though the appellant claimed to have paid the amount due in 2007, after ostensibly obtaining approval, though the 2rd respondent denied giving such approval; this is more so in view of the fact that the offer lapsed the moment the appellant failed to meet the terms of the agreement in time. In response to the contention of learned counsel to the appellant that the 2nd respondent should have written to reject the payment the moment it was credited into its account, I can’t help but agree that even though the relationship is that of banker and customer, the 2nd respondent cannot in the circumstances be expected to know about the payment immediately it was made, especially when both the bank and the appellant had every reason to know that time was of the essence, and the time allowed had elapsed; and more so when the 2nd respondent wrote to reject the payment vide Exhibit Dl, immediately it got to know about the payment. This court fails to see any reason to suggest that the 2nd respondent waived its rights, when the balance of payment was made, after the agreed 194 days had elapsed, accordingly this issue too is resolved in favour of the respondents,, against the appellant.’]
.
.
.
✓ DECISION:
‘Having resolved all the three issues for determination in favour of the respondent against the appellant the appeal now fails, and it is accordingly dismissed, judgment of the trial court is hereby affirmed. Parties to bear their respective costs.’
➥ FURTHER DICTA:
⦿ COURT OF LAW CAN EXPUNGE ILLEGALLY ADMITTED EVIDENCE
As earlier pointed out the respondents did object to the admissibility of Exhibit P2, but even if they didn’t, It is trite law that the admissibility of documents without objection does not foreclose the power of the court to expunge them from its record as exhibits, or discountenance same in its judgment; See the case of OKAFOR v. OKPALA (1995) 1 NWLR (Pt. 374) 749 at 758, where this court held: “It is a matter of common sense and good practice, for a trial judge who had wrongly admitted certain evidence and on further consideration of the controversial evidence to expunge it in line from the record where he is properly addressed on the issue, if he is satisfied that such evidence was erroneously admitted,” The clear provision of the law in this case is that a court of law can only determine an issue on legally admissible evidence, not on evidence made inadmissible by provisions of the Evidence Act. It is for this reason that the Supreme Court held in I.B.W.A. vs. IMANO LTD, (2001) 3 SCNJ 160 at 177 that: “It cannot be over-emphasized that a court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly where a trial court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So, too if a document is unlawfully received in evidence in the trial court, an appellate court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence”. — M. Mustapha JCA.
⦿ THE EVALUATION OF EVIDENCE IS PRIMARILY THE FUNCTION OF THE TRIAL JUDGE
It is very important from the onset to appreciate the trite and tested position of the law that the evaluation of evidence is essentially a function of the trial Judge who does not share this jurisdiction with the appellate Court, See ONUOHA v. THE STATE (1998) 5 NWLR (PL548) 118; where the trial Judge has unquestionably evaluated the evidence before him, and ascribed to them probative value by his own assessment, it is not the business of the appellate Court to disturb such findings of facts; the appellate court rarely substitutes such findings with its own, it only does so where such findings are found to be perverse. See WOLUCHEM v. GUDI (1981) 5 SC 291. — M. Mustapha JCA.
⦿ MEANING OF WAIVER IN LAW
Waiver in-law-means that the person in whose favour a benefit or right exists is aware of those rights or benefits, but chooses freely not to take advantage of those right or benefits. Such person must as a matter of fact be under no disability of whatever nature, to take advantage of those rights. When such a person, fails to take advantage of those rights, then he cannot be heard to complain thereafter, that he was denied the advantage of benefiting from those benefits and rights. Such a person in law is presumed to have waived his rights or benefits, and is as a consequence estopped from later seeking those advantages he had voluntarily waived. — M. Mustapha JCA.
⦿ INGREDIENTS OF WAIVER
The trial court came to this conclusion relying on the authority of OLATUNDE V. O.A.U (1998) 4 SC 91, where the Supreme Court stated the two requirements for the establishment of waiver as: 1. The party against whom the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes a waiver. 2. He must do some unequivocal act adopting or recognizing the act or omission. — M. Mustapha JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Mohemmed Mustapha JCA.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Dr. E. West Idahosa Esq.
⦿ FOR THE RESPONDENT(S)
Mrs. F.C Anaechebe.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)