➥ CASE SUMMARY OF:
Tunde Oshunrinde V. Olufemi Akande (1996) – SC
by Branham-Paul C. Chima
➥ COURT:
Supreme Court – SC.110/1990
➥ JUDGEMENT DELIVERED ON:
Tuesday, the 18th day of June, 1996
➥ AREA(S) OF LAW
Privilege Communication
Concurrent findings
Relevancy
➥ PRINCIPLES OF LAW
⦿ RELEVANCY GOVERNS ADMISSION OF EVIDENCE
When it is a question of admission of evidence, strictly, it is not whether the method by which it is obtained is tortious but excusable, but whether what has been obtained is relevant to the issue being tried. See Kuruma v. R. (1955) AC 197. — Ogwuegbu JSC.
⦿ A DATE OF HEARING IS NOT PRIVILEGED COMMUNICATION
The above provision of the law is very clear and plain. In no circumstance can it be interpreted that the date of hearing endorsed in Exhibit “A2” which is a date fixed by the court for the hearing of the substantive case is a privileged communication between counsel and client. This provision of the law is enacted for the protection of the client and not of counsel and is based on the impossibility of conducting legal business without professional assistance, and on necessity, in order to render that assistance effectual, of securing free and unreserved intercourse between the two. See Jones v. Great Central Railing (1910) AC 5. Privilege should not be invoked to subvert the machinery of justice. — Ogwuegbu JSC.
➥ LEAD JUDGEMENT DELIVERED BY:
Mohammed, JSC.
➥ APPEARANCES
⦿ FOR THE APPELLANT
V.A. Olutona.
⦿ FOR THE RESPONDENT
Dr. E.O. Ometan.
➥ CASE FACT/HISTORY
The respondent who was plaintiff before the High Court of Lagos State sued the appellant, as defendant and claimed N210,218,04 as damages for breach of contract. The case which was originally filed on 22/7/80 suffered several adjournments, and on 11/11/83, when both counsel for the parties were present in court the case was fixed for hearing on 18/4/84. On the adjourned date neither the defendant nor his counsel appeared and the Court directed the counsel for the plaintiff to call evidence in proof of the plaintiff’s claim.
At the conclusion of the hearing the court adjourned and delivered its judgment on 4/7/84. Soon after Ayorinde J (as he then was) delivered his judgment, the appellant filed a motion and prayed for the following order, inter alia, “Setting aside the Judgment/Order obtained by the plaintiff in this matter on Friday, the 4th of July, 1984 in default of appearance of the defendant and his counsel at the trial”.
In his ruling, Ayorinde J (as he then was) disbelieved the argument of counsel for the appellant that they were not aware of the date on which the substantive claim was fixed for hearing and in consequence therefore the learned Judge refused all the prayers applied for in the motion.
Dissatisfied with that decision the appellant went before the Court of Appeal. He was not successful, because the Court of Appeal believed that the learned trial Judge exercised his discretion both judicially and judiciously. The appellant has finally come before us armed with twelve grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the Court of Appeal was right in refusing to interfere with the exercise of the learned trial Judge’s discretion as embodied in his Ruling or in holding that the learned trial Judge exercised his discretion improperly?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE FILE JACKET WAS RELEVANT TO THE PROCEEDINGS
“The Court of Appeal considered the submission of appellant’s counsel on the admission of the file jacket and quite rightly rejected it. I find the argument of counsel on this issue unconvincing as I believe that the trial Judge stumbled on the endorsement on the file jacket during the proceedings before him. The endorsement is very relevant to the proceedings before the Judge because it showed in a document that the counsel for the appellant was aware of 18/4/84, the date fixed for the hearing of the substantive claim. It is pertinent to reproduce the provisions of section 222 of the Evidence Act which permitted the use of such a document in evidence in order to discover or to obtain proper proof of relevant facts of the issues in dispute before the court.”
“I therefore entirely agree that the Court of Appeal was right in holding that the file jacket was rightly admitted in evidence and the entry thereon about the date of hearing of the substantive case was rightly used by the learned trial Judge being a relevant fact necessary for the determination of the issue being considered before the court.”
B. THAT THE ENDORSEMENT ON THE FILE JACKET IS NOT PRIVILEGE COMMUNICATION
“The Court of Appeal rightly rejected this submission in the following short but relevant finding: ‘To my mind this is stretching the doctrine of privilege between counsel and client too far. That entry of date was for the guidance of counsel and for the information of his client if he was proved to be absent from court on the day the case was adjourned. It can never, by any stretch of imagination, be considered correspondence between solicitor and client, let alone being privileged.’
It is crystal clear that the appellant has failed to establish any convincing argument which would invite the interference of the exercise of discretion made by the lower courts in this appeal. I hesitate to repeat what this court has said many times over that an appellate court will not interfere with the exercise of the discretion by a lower court so long as the exercise of the discretion by the lower court has not been found to be perverse, arbitrary and not judicial- Bank of Baroda v. Mercantile Bank of Nigeria Limited (supra) and Bakare v. African Continental Bank Ltd. (1986) 3 NWLR (Pt. 26) 47.”
.
.
II. Whether the appellant has led sufficient evidence to show that the concurrent findings of facts by the two lower courts are perverse as to justify the intervention of the Supreme Court?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE CONCURRENT FINDINGS CANNOT BE SET ASIDE
“This appeal becomes more difficult for the appellant having been brought against concurrent findings of two lower courts. Since the appellant has failed to show that any decision of the courts below has occasioned a miscarriage of justice, the rightful conclusion for me is to affirm those concurrent findings of the two lower courts.”
.
.
.
✓ DECISION:
“In the result, this appeal has failed and it is dismissed. The concurrent decisions of the two lower courts are hereby affirmed. The respondent is entitled to the costs of this appeal which I assess at N1,000.00.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)
