➥ CASE SUMMARY OF:
Musa Abubakar v. E.I. Chuks (SC.184/2003, 14 DEC 2007)
by Branham Chima.
➥ ISSUES RAISED
Admissibility of document;
➥ CASE FACT/HISTORY
The res in this litigation is No.2, Old Motor park, Dilimi, Jos. What is in dispute is the ownership of the property. Both the appellant and the respondent claim ownership of the property. The respondent as plaintiff sued at the High Court, Jos for a declaration of title to the property. He claimed that the appellant/defendant entered the property illegally shortly after the respondent left for his home town, Enugu, during the civil war. When he returned to Jos after the war, one Akanbi Badamasi was in occupation of the property. Akanbi Badamasi is now deceased. He died on 21st October, 1975. On enquiry, the respondent was told that the property was given to Akanbi Badamasi by Jos Local Government. The appellant/defendant has a different story. He averred in his statement of defence that the property was given to him by Akanbi Badamasi as a gift under Islamic Law. He averred that he will rely on the Islamic Law principle of Hauzi.
This appeal arose over admission by the trial Chief Judge of a document earlier tendered for identification. It was tendered and admitted as exhibit 7 through one Samuel Lawal (PW 3), a legal practitioner. An objection to the admission of the document was made by learned counsel for the defendant in the case on the ground that the witness who was to tender the document was from the chambers which had acted for the defence.
The notice of appeal against the ruling was filed as indicated above by Mr. Sangei, learned counsel for the defendant. The appeal was taken by the Court of Appeal and dismissed.
This is a further appeal to this Court.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether it was wrong and contrary to appellant’s legal professional privilege for Mr. Samuel Lawal Esq, former counsel to the appellant in the same dispute, to testify against the appellant and tender exhibit 7?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[EXHIBIT 7 IS PLEADED AND THUS CAN BE TENDERED
‘Exhibit 7 is the centre of the quarrel. It is a one-page letter from Amuka, Lawal and Co., solicitors and advocates to CTA. (B), Works/Lands and Survey Department, Jos North Local Government Council. Exhibit 7, written in the name and under the signature of B. B. S. Hassan on behalf of the appellant, did not dispute the claim by one Baba Aku as to ownership, but asked for the sum of N 21,255.00, being amount for guarding the premises for fourteen years at the rate of N 1,200 per year and repair done to the property.’
‘It is clear from the averment in paragraph 18 that exhibit 7 is duly pleaded. Considering the statement of defence, particularly paragraph 5 thereof, exhibit 7 is relevant. This court cannot, at this interlocutory stage, decide whether exhibit 7 has the strength to turn the table in favour of the case of the respondent. It may or may not. That is for the trial Judge to decide. But this court has enough evidence to decide on the issue of relevancy. On the authority of Oyetunji v. Akanni (supra), I am of the firm view that exhibit 7 which is duly pleaded in paragraph 18 of the further amended statement of claim is relevant in the adjudication of the issue of ownership of the property in dispute’
THE INFORMATION IN THE EXHIBIT IS NOT SUBJECT TO LAWYER-CLIENT PRIVILEGE AND THUS CAN BE TENDERED VIA MR. LAWAL
‘The operative and functional word in the section is “disclose”. The word means to make known, especially something that has been kept secret, publicly. Disclosure, the noun variant of the word “disclose” means the act of disclosing secret facts. A person can only disclose a fact which is not known to the public. In other words, a person can only disclose facts which are hidden from the public. And public here does act necessarily convey its general unguarded parlance of people in general or for the use of many persons. It could mean for the use of any person. It conveys the opposite meaning of “not private”. What is the position of exhibit 7 in terms of secrecy?’
‘None of the cases is relevant to the issue involved in this case involved the swearing of affidavit by counsel. There is no such issue in this appeal. The position of the English case of Alfred Cromption Amusement Machines Ltd. is quite different from this case. As the document was marked ID4, there was no privileged communication in view of the fact that the contents were already public property. The case of Elabanjo v. Tijani is against the appellant. I am surprised that counsel cited it. As this court held that counsel, who does not suffer any of the disabilities mentioned in section 154 (1) and (2) of the Evidence Act. is a competent witness, I did not expect counsel for the appellant to cite the case as authority in favour of the appellant.’]
‘In sum, the appeal fails and it is dismissed. I award N 10,000.00 costs in favour of the respondent.’
➥ FURTHER DICTA:
⦿ IN DETERMINING ADMISSIBILITY, IT IS RELEVANCY THAT MATTERS NOT CUSTODY
Admissibility is a rule of evidence and it is based on relevancy. See Sadau v. The State (1968) 1 All NLR 124: Ogonzee v. State (1997) 8 NWLR (Pt. 518) 566. In determining the admissibility of evidence, the court will not consider how it was obtained; rather the court will take into consideration whether what is admitted is relevant to the issues being tried. See Igbinovia v. The State (1981) 2 SC 5. In Elias v. Disu (1962) 1 SCNLR 361, (1962) 1 All NLR 214, this court held that in determining admissibility of evidence, “it is the relevancy of the evidence that is important and not how the evidence was obtained.” — N. Tobi JSC.
⦿ A DOCUMENT WHICH IS CONSISTENT WITH THE PLEADINGS IS ADMISSIBLE
A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. The converse position is also the law, and it is that a document which is irrelevant to the facts in issue is not admissible. Documents which are tendered to establish facts pleaded cannot be rejected on the ground of irrelevancy in so far as they confirm the facts pleaded. See Oyetunji v. Akaniji (1986) 5 NWLR (Pt. 42) 461. In other words, a document which is consistent with the pleadings is admissible, if the document is admissible in law. — N. Tobi JSC.
⦿ ADMISSIBILITY OF A DOCUMENT IS ONE THING; WEIGHT IS ANOTHER THING
The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the Court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence. — N. Tobi JSC.
⦿ RELEVANCY AND ADMISSIBILITY DISTINCTION
Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight. Relevancy, which propels admissibility, is invoked by the trial Judge immediately the document is tendered. At that stage, the Judge applies sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the Judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be. At that stage the Judge is involved in the evaluation or the evidence vis-a-vis the document admitted. While logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of facts. — N. Tobi JSC.
⦿ MEANING OF DISCLOSURE IN RESPECT TO LAWYER AND CLIENT PRIVILEGE
The operative and functional word in the section is “disclose”. The word means to make known, especially something that has been kept secret, publicly. Disclosure, the noun variant of the word “disclose” means the act of disclosing secret facts. A person can only disclose a fact which is not known to the public. In other words, a person can only disclose facts which are hidden from the public. And public here does act necessarily convey its general unguarded parlance of people in general or for the use of many persons. It could mean for the use of any person. It conveys the opposite meaning of “not private”. What is the position of exhibit 7 in terms of secrecy? — N. Tobi JSC.
⦿ RECOMMENDATION THAT INTERLOCUTORY APPEAL SHOULD STOP AT THE COURT OF APPEAL
Appeal on this matter was filed in the Court of Appeal on 3rd March, 2000. Today is 14th December, 2007. It has taken more than seven years to fight the admissibility of an exhibit, an issue which could have been taken at the end of the case after final judgment. In order to save litigation time and money of litigants, it is my view that all interlocutory appeals must stop at the Court of Appeal. This will involve the amendment of section 241 of the 1999 Constitution. I do not think it is out of place to recall that the Constitutional Debate Coordinating Committee, 1998, under my Chairmanship, which recommendations gave birth to the 1999 Constitution, recommend to the Provisional Ruling Council during the Military Regime of General Abdul Salami Abubakar, that all interlocutory appeals should stop at the Court of Appeal. The Council in its wisdom rejected the recommendation. In view of the fact that the Supreme Court is inundated with interlocutory appeals, which take so much of the time of the court, a situation which results in congestion of the court, it is hoped that the National Assembly will amend section 241 of the Constitution to make the Court of Appeal a final court in interlocutory appeals. That will save so much litigation time. That will save so much money for litigants. That will save the Supreme Court so much time to take final substantive and final appeals. As it is, seven long years are wasted for no reason. I say no more. — N. Tobi JSC.
⦿ THIS APPEAL IS UNNECESSARY AS IT DELAYED THE CONCLUSION OF THE MATTER BEFORE THE TRIAL COURT
The facts of this case once more bring to the front burner the vexed issue of interlocutory appeals making their way right up to, this court at the expense of speedy trials and determination of matters before the court. The present journey by the appellant to the Supreme Court is not only wasteful to both parties and the judicial system but totally avoidable particularly as the issue could be taken up in an appeal against the judgment at the conclusion of trial. The instant appeal is not only frivolous but vexatious – crafted to frustrate and continue to oppress the respondent in his efforts of attaining justice under the rule of law, which should not be encouraged at all by any right thinking judicial system. In conclusion, I agree with the reasoning and conclusion of my learned brother, Tobi, J.S.C that the appeal is totally without merit and deserves to be dismissed. I order accordingly and abide by other consequential orders contained in the said lead judgment including the order as to costs. — Onnoghen JSC.
⦿ WRONGFUL ADMISSION OF EVIDENCE MAY NOT BE A GROUND FOR THE REVERSAL OF THE TRIAL COURT’S DECISION
Thus, where such evidence is by error or otherwise admitted, then it is the duly of the trial court to expunge it in giving its judgment. If it fails to do so, the appeal court will reject such evidence and consider the case in the light of the legally admitted evidence See Owoniyi v. Omotoso (1961) 2 SCNLR 57, (1961) All NLR 304; Alase v. Ilu (1964) 1 All NLR 390. In any event, it is trite that wrongful admission of inadmissible evidence is not of itself a ground for the reversal of any decision. Similarly, the wrongful exclusion of admissible evidence is not of itself a ground for the reversal of any decision. All these are however dependent on the view held by the appeal court on whether the evidence wrongly admitted or wrongly excluded would have the effect of changing the decision even if admitted or excluded. — I.T. Muhammad JSC.
⦿ ONLY THE CLIENT CAN WAVE THE LAWYER-CLIENT PRIVILEGE; IT IS ABSOLUTE
It has now become a well-entrenched principle that no counsel or solicitor shall accept a brief where it is clear that the services to be rendered flow out of or are closely connected with the previous services he had rendered to the opposing side. So also is it that a solicitor is not permitted to disclose the contents or the condition of any document with which he has become acquainted in the course of and for the purpose of such employment. This privilege is that of the client and not of the legal practitioner and as such, it can only be waived by the client. The right of confidentiality guaranteed by this provision is absolute. This is so, because even the courts cannot generally, compel counsel to disclose information given to him by his client in confidence. — P.O. Aderemi JSC.
⦿ A JUDGE’S DISCRETION: WHAT IS FAIR AND JUST ACCORDING TO THE CIRCUMSTANCE OF THE CASE
I shall, in treating this issue, begin by saying that the line between a proper exercise of judicial discretion and an abuse of that discretion is not readily definable and it may be, that the term “abuse of discretion” means no more than that the decision below fell outside the permissible limits as viewed by the appellate court or that the Court of Appeal is of the opinion that the trial court should have decided otherwise. The resort of “discretion” at all times could turn to be an unruly horse. As Justice William Douglas in State of New York v. United States (1951) 342 US 822, opined at page 884 and I quote: “Absolute discretion, like corruption marks the beginning of the end of liberty.” Lord Simon of Glaisdale expressing the traditional view on the exercise of judicial discretion by a Judge said in D. v. NSPCC (1978) A.C 171 at page 239 and I quote:-. “And if it comes to the forensic crunch … it must be law, but discretion, which is in command.” Summing up the above dicta, in my words of definition, I will say an issue falls within a Judge’s discretion if, being governed by no rule of law, its resolution depends on the individual Judge’s assessment of what is fair and just to do in the particular case. A Judge has no discretion in making his findings of fact, he has no discretion in his rulings of the law. If a Judge, having made any necessary finding of fact and any necessary ruling on law, it seems to me clear that he has to choose between different causes of action, orders, penalties or remedies he then exercises a discretion. Let me reiterate that it is only when a trial Judge reaches a stage at which he asks himself, what is the fair and just thing to do or order in the instant case that he embarks on the exercise of a discretion. However, where the situation is governed by the rule of law, as in the instant case, which touches on admissibility of a document where the provisions of the Evidence Act come into play, although the court may have its own discretion, such discretion must be exercised according to the ordinary principles laid down in the Evidence Act as set out above. Its judicial discretion is founded upon those principles. And if a trial Judge refuses to do so, then the appellate court will set the matter right. See R. v. Stafford Justices (1940) 2 K.B. 33 at 43. — P.O. Aderemi JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
N. Tobi, J.S.C.
⦿ FOR THE APPELLANT(S)
Mr. A.A. Sangei.
⦿ FOR THE RESPONDENT(S)
Mr. Solomon Umoh.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ RECOMMENDATION FOR LITIGANTS TO LODGE INTERLOCUTORY ISSUES WHEN CASE IS FINALLY DECIDED – IT IS BETTER
Obaseki, JSC in International Agricultural Industries Ltd. and Anor v. Chika Brothers Ltd. (1990) 1 NWLR (Pt.124) 70 at 80-81. There he said as follows: “It is sad to observe that it was at the tail end of the proceedings in the High Court that this interlocutory decision to reject the document was made. It is even sadder to observe that the proceedings before the High Court had to be stayed to allow the pursuit of appeal proceedings against the decision. Although the hearing before the court did not take more than an hour to conclude, it took 8 years for the appeal to travel from High Court through Court of Appeal to this court. If the plaintiff had allowed the learned trial Judge to conclude the hearing and deliver his judgment, he could still have had the opportunity to raise the issue of admissibility in the appeal courts. He would have enjoyed the added advantage that if the point raised succeeded, the decision in the case could have been reversed in his favour and the rights of the parties in the matter determined finally. What is the position now? Although the point raised before us has been upheld and resolved in the appellant’s favour, the rights of the parties cannot be determined finally in this court as hearing before the High Court, Aba, had not been concluded. The case has to be remitted to the High Court for hearing to proceed. In the meantime, information has reached this court that the learned trial Judge conducting the trial is dead. That being the case, trial has to commence de novo before another Judge of the High Court of Imo State, Aba Judicial Division. It is therefore necessary to emphasize that parties should not throw to the wind the wisdom of leaving the prosecution of issues or points that can be taken advantageously after the final decision of the High Court, till the High Court has given its final decision and appeal against the decision lodged.”
⦿ THE RATIONALE FOR LAWYER-CLIENT PRIVILEGE
The general principle on which the above statutory provision is grounded is as stated by Holden J in the case of Iris Winifred Horn v. Robert Rickard (1963) NLR 67 at 68 or (1963) 2 All NLR 40 at 41 as follows: “Every client is entitled to feel safe when making disclosures to his solicitor or counsel, and there are cases establishing firmly that counsel cannot be called to give any evidence which would infringe the client’s privilege of secrecy.”
➥ REFERENCED (OTHERS)