➥ CASE SUMMARY OF:
Kossen (Nig.) Limited & Anor v. Savannah Bank of Nig. Limited (1995) – SC
by Branham Chima (SAL).
➥ COURT:
Supreme Court – SC.209/89
➥ JUDGEMENT DELIVERED ON:
12 December 1995
➥ AREA(S) OF LAW
Non-compliance;
Inadmissible evidence;
Allegation of crime in civil proceeding.
➥ PRINCIPLES OF LAW
⦿ NONCOMPLIANCE IN RULES WILL NOT RESULT IN JUDGEMENT BEING SET ASIDE
It is trite to say that non-compliance with rules of court will not necessarily result in the judgment given in the case being set aside and it is also clear that once a step is taken in the proceedings by a party complaining about the breach of the rules of court he is said to have waived the breach. This was the decision of this court in the case of Jozebson Industries Co. v. R. Lauwers Import-Export (1988) All NLR 310 at 333; (1988) 3 NWLR (Pt.83) 429. — Mohammed, JSC.
⦿ COURT CAN ONLY ACT ON ADMISSIBLE EVIDENCE
There is no doubt, however, that a court is expected in all proceedings before it to admit and act only on evidence which is admissible in law (i.e. under the Evidence Act or any other law or enactment relevant in any particular case) and so if the court should inadvertently admit inadmissible evidence it has a duty generally not to act upon it. When, however, inadmissible evidence is tendered it is the duty of the opposite (or adverse) party or his counsel to object immediately to the admissibility of such evidence; although if the opposite party should fail to raise objection in such circumstances the court in civil cases may (and, in criminal case, must) reject such evidence ex proprio motu. On appeal, however, different considerations arise where a party failed to take objection to inadmissible evidence in the court of trial. It has frequently been stated (as, indeed, learned counsel for the appellant has done) that where a matter has been improperly received in evidence in the court below, even when no objection has been there raised, it is the duty of the court of appeal to reject it and to decide the case on legal evidence. — Ogundare, JSC.
⦿ TYPES OF INADMISSIBLE EVIDENCE (BY LAW OR BY FULFILLMENT OF CERTAIN CONDITIONS)
In a trial by a Judge alone, as in the case in hand, a distinction must be drawn between those cases where the evidence complained of is in no circumstances admissible in law and where the evidence complained of is admissible under certain conditions. In the former class of cases the evidence cannot be acted upon even if parties admitted it by consent and the court of appeal will entertain complaint on the admissibility of such evidence by the lower court (although the evidence was admitted in the lower court without objection); in the latter class of case, if the evidence was admitted in the lower court without objection or by consent of parties or was used by the opposite party (e.g. for the purpose of cross-examination) then it would be within the competence of the trial court to act on it and the court of appeal will not entertain any complaint on the admissibility of such evidence. — Ogundare, JSC.
⦿ WHERE ALLEGATION OF CRIME IS IN ISSUE IN CIVIL PROCEEDINGS
In the present case, the perpetration of criminal acts being directly in issue, the plaintiff/respondent, to succeed, must establish its case beyond all reasonable doubt. See Okuarume v. Obabokor (1966) NMLR 47, Benson Ikoku v. Enoch Oli (1962) All NLR 194, Nwobodo v. Onoh (1984) 1 S.C.N. LR. 1 and Anyah v. A.N.N. Ltd. (1992) 6 NWLR (Pt. 247) 319 at page 333. Both the trial court and the court below were satisfied that plaintiff/respondent’s case against the appellants was proved beyond all reasonable doubt. — Iguh, JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Mohammed, J.S.C.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Mr. Omohwo.
⦿ FOR THE RESPONDENT
Mr. Idowu.
➥ CASE FACT/HISTORY
The plaintiff, now respondent, is a commercial bank with a branch office at No. 21 Murtala Mohammed Way, Jos. In 1984, when it was observed that the account books of the respondent’s branch in Jos could not balance, the headquarters raised a task force of auditors and dispatched them to Jos on an assignment to reconcile the books of the respondent’s branch there. At the end of the reconciliation a fraud was discovered involving the operation of customers accounts Nos. 2808 and 1664. The matter was reported to the police.
Meanwhile, on 7th May, 1985, the respondent, as plaintiff, commenced proceedings in the Jos High Court against five defendants. The appellants, in this appeal, were the 2nd and 3rd defendants in the Suit. In the action the respondent claims the sum of N732.1 06.23 against the defendants jointly and severally being money had and received to the plaintiff’s use. In the alternative the respondent claims from the five defendants jointly and severally the sum of N732, 106.23 being money obtained by the defendants from the respondents by deceit.
In sum, after the learned trial Judge had meticulously considered all the evidence adduced by the parties, in this suit, he concluded his well considered judgment by finding in favour of the respondent and against the defendants jointly and severally in the sum of N729,003 .84. He also directed that interest shall be paid at the rate of 10% from the date of the judgment. Dissatisfied with the judgment, the 2nd and 3rd defendants appealed to the Court of Appeal. Jos Division. After making a considerable finding and analysing all the salient issues raised in that appeal the Court of Appeal found no merit in the appeal and dismissed it.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the trial is not a nullity in view of the fact that the suit was not commenced in accordance with the provisions of the Plateau State High Court Civil Procedure Rules; namely; by an application to the Registrar for Writ of Summons?
RULING: IN RESPONDENT’S FAVOUR.
A. THE APPELLANT DID NOT COMPLAIN OF IRREGULARITY UNTIL ON APPEAL
“In the case in hand the appellants did not complain about the alleged irregularity until the suit was on appeal to the Court of Appeal. They took part in all proceedings before the trial court and, in my view, it is too late in the day for them to complain about the non-compliance with Order 2 Rule 1 of High Court Civil Procedure Rules of Plateau State. For the above reasons I find no merit in the arguments in support of issues 1 and 2.”
.
.
II. Whether Exhibits 2-19 are inadmissible documents which ought to have been rejected, and whether their admissibility materially affected the outcome of the suit?
RULING: IN RESPONDENT’S FAVOUR.
A. APPELLANT RAISED NO OBJECTION ON THE TENDERING OF THE DOCUMENT IN THE TRIAL COURT
“I think the argument of the learned counsel for the appellants in respect of Exhibits 24 – 28 is very weak for the simple reason that those Exhibits are extracts from a bankers book. They are admissible if certain conditions have been fulfilled. That condition shall be the oral evidence showing that the Exhibits are extracts from a Bankers book, kept by the banker and that the figures copied out had been compared with the original and found correct. Since the appellants counsel had not raised any objection when the Exhibits were tendered this court will not entertain any complaint on their admissibility. In Raimi v. Akinfoye (1986) 3 NWLR (Pt.26) at page 97 this court held that where certain documents are admissible in evidence upon fulfillment of certain conditions or under certain circumstances, an appellant who fails to object to their admissibility in the trial court cannot do so in the Appeal Court.”
.
.
III. Whether the trial Court had jurisdiction to entertain Suit No. HJ/73/85 at a time when the respondent’s appeal against the ruling in suit No. HJ/4/85 was still pending in the Court of Appeal, Jos?
RULING: IN RESPONDENT’S FAVOUR.
A. THE EARLIER SUIT WAS NOT DECIDED ON MERIT
“It is quite plain that the argument of the appellants on this issue is untenable. It is elementary to state that a decision not on the merits could not qualify as a defence through the principle of Res Judicata. It is instructive to refer to the provisions of Section 53 of the Evidence Act in order to point out how a judgment could be a conclusive proof as against the parties and their privies. That Section reads: “Every judgment is conclusive proof, as against parties and privies of acts directly in issue in the case, actually decided by the court and appearing from the judgment itself to be the ground on which it was based, unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.” The appellants’ counsel in his brief submitted that Suit No. HJ/4/85 was preliminarily dismissed. This means that it was dismissed before the hearing on its merit. Such a decision is not a judgment for it to be cited for the defence of res judicata.”
.
.
IV. Whether the trial court properly relied on Exhibit 29 which it had marked “rejected” in entering judgment in favour of the respondent?
RULING: IN RESPONDENT’S FAVOUR.
A. WITNESSES AND OTHER EXHIBITS ESTABLISHED THE CASE
“I agree that there was enough evidence from the witnesses and other Exhibits tendered which established that the sum N723,106.23 was fraudulently paid into account No. 1664 belonging to Alhaji Mohammadu Kano. Exhibits 25 to 28 are Statements of Accounts for account No. 1664. I have held above in this judgment that those Exhibits were properly admitted in evidence. The owner of the account testified and told the trial court that he did not pay any money into his account and that the balance remained N 10,000.00. Therefore even without reference to Exhibit 29 the learned trial Judge would still come to the same conclusion over the payment of N723, 106.23 into account No. 1664.”
.
.
.
✓ DECISION:
“This appeal has no merit at all. All the technical issues raised are of no consequence. The appeal is dismissed. The judgment of the Court of Appeal which affirmed the decision of the trial High Court is hereby affirmed. I award N1,000.00 costs in favour of the respondent.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
Section 226(1) of the Evidence Act, reads: “The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.”
Section 53 of the Evidence Act, reads: “Every judgment is conclusive proof, as against parties and privies of acts directly in issue in the case, actually decided by the court and appearing from the judgment itself to be the ground on which it was based, unless evidence was admitted in the action in which the judgment was delivered which is excluded in the action in which that judgment is intended to be proved.”
➥ REFERENCED (CASE)
⦿ NOT EVERY IRREGULARITY WILL NULLIFY THE PROCEEDING
In the case of Chief Okumagba Eboh and Six ors. v. Ogbotemi Akpotu (1968) 1 All NLR 220 at 221 this court held: “It is not every irregularity that can nullify entire proceedings and it may well be open to a party claiming by virtue of an irregularity to contend that such irregularity does not materially affect the merits of the case or engender a miscarriage of justice or that in any case it was much too late for the other party to complain about such irregularity.”
⦿ FOR IRREGULARITY TO SUCCEED, MISCARRIAGE OF JUSTICE MUST BE SHOWN
Adebayo v. Johnson (1969) 1 All NLR 176 where at page 190 this Court observed: “Even if the procedure adopted by the applicant Adebayo were wrong, we think that it is now much too late in the day for the directors to complain about it. They failed to challenge the correctness of the procedure at the commencement of the proceedings or on their entry into the case and sought unsuccessfully to get the Statement of Delinquencies filed by the applicant Adebayo struck out. Clearly in those circumstances the adoption of a wrong procedure would be no more than an irregularity, and would not render the entire proceedings a nullity as was submitted by learned counsel for the director Kamson: so unless a miscarriage of justice is thereby alleged and proved, the proceedings would not be struck out. See in re Kellock (1887) 56 L.T.R. 887: also Allen v. Oakey (1890) 62 LT.R. 724.”
➥ REFERENCED (OTHERS)
