Edokpolo & Company Limited V. Sem-edo Wire Ind. Limited & Ors (1989)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.C.A.

The appellant in this interlocutory appeal was plaintiff in suit No.FHC/W/4/79 still pending in the Federal High Court, Benin. The appellant company had sued the respondents as defendants claiming various declarations and an order for specific performance. Pleadings having been filed and exchanged between the parties and, with leave of court,amended, the case proceeded to trial. In the course of the evidence of the 1st P.W., Bishop John Edokpolo, the Chairman/Managing Director of the appellant company,an attempt was made to tender a document referred to by the witness as a counter-part of the agreement between the appellant company and its foreign partner, Sem Nigerian Holdings G.M.B.H. & Co.,objection was taken to the admissibility of this document by learned Counsel for the defendants, on the ground that the document, although marked counterpart, was, in fact, a copy and being a copy sufficient foundation had not been laid for its admissibility. The learned trial Judge after listening to submissions by learned counsel for the parties, in a ruling he delivered the following day, upheld the objection raised by defence counsel and rejected the document as inadmissible in evidence.

The appellant company thereupon appealed to this Court against the said ruling on two grounds of appeal which read:-

1. The learned trial Judge erred in law when he held that the Agreement dated 27th day of October, 1975 between Edokpolo and Co. Ltd. and SEM Nigerian Holdings G.M.B.H. & Co. H.G. which was signed by both parties to the agreement is a counterpart and therefore secondary evidence as against the defendants who are not parties to the agreement and that proper foundation not having been laid by the plaintiff’s counsel before tendering the agreement, it is inadmissible.

PARTICULARS OF ERROR

1. Where an agreement has been executed in several parts with each part being signed by all the parties to the agreement,each part is primary evidence of the other.
2. It is unnecessary in law to lay any foundation before tendering documentary evidence as if it were a secondary documentary evidence.
3. The learned trial Judge erred in law in rejecting the said Agreement (described in ground 1 above) when he held as follows:-

“One of the ways in which proper foundation could be laid is by establishing the failure of the defendant to produce the original, having been duly served with the notice to produce under Ss.96(a) and 97 of the Evidence Act. Mr. Abudu counsel for the plaintiff submitted that they had once served the defendants with notice to produce, but could not say when and on who it was served. Record of the Court shows that the former counsel to the plaintiff, Mr. J. O. Obeahon served a notice to produce dated 28th February, 1980 as endorsement on Court file copy. “Counsel to counsel service” shows …..I therefore hold that the notice to produce is not availing to the plaintiff as it was not used as basis for the tendering of the Agreement. Objection the first ground is, I will hold, therefore well taken.”

PARTICULARS

1. Even if the document in question were secondary evidence, the Court ought not to shut its eyes to the Court’s record that notice to produce was issued and served on the Defendants’ counsel.
2. The laying of the foundation before tendering secondary evidence is to satisfy the Court that the provisions of the Evidence Act stipulating the conditions precedent to the tendering of such secondary evidence have been complied with.
3. The Court can be satisfied from either the unchallenged oral evidence of the witness or from the Court’s record.”

In accordance with the practice and procedure in this Court briefs of argument were filed and exchanged between the parties. In the appellant’s brief the following issues were set down as arising for determination in this appeal.

“1. Whether or not the Agreement dated 27th October, 1975 is a Counterpart in law.

2. Assuming that the Agreement referred to in 1. above is a counterpart, and it is necessary in law to lay proper foundation before it can be admitted in evidence, was the notice to produce issued on the respondents and to which the learned trial Judge adverted in his Ruling not proper or sufficient foundation for the purpose of its being received in evidence?
3. Whether or not the learned trial Judge was right to have ignored the notice to produce issued on the Respondents’ counsel on the ground that it was not used as a basis for tendering the document in question in this case i.e. the Agreement dated 27th October, 1975.”

The 1st to 3rd respondents filed a notice of preliminary objection to the effect that all the issues raised by the appellant in his first ground of appeal are incompetent. This preliminary objection which is also adopted by the 4th respondent necessitated the respondents including in their briefs the issue raised in the notice of preliminary objection. The appellant, for its part filed a reply brief relating principally to submissions on the preliminary objection. In my view, having regard to the preliminary objection and the grounds of appeal the questions for determination in this appeal are better set out in the brief of the 1st – 3rd respondents and I intend to adopt them in the consideration of my judgment. The questions are as set out hereunder, to wit:

“(i) Having not (either by their pleadings, or in their evidence, or in their counsel’s submissions) raised any issue in the lower court as to the admissibility of the Agreement dated 27/10/75 as primary evidence, (which proves itself by virtue of s.93(2) of the Evidence Act), is the Appellant entitled to raise that issue for the first time on appeal without leave to this Honourable Court first being sought and granted?

(ii) Even if such leave (to raise the issue referred to in (i) above) had ever been sought, (which it was not), could same properly have been granted by this Honourable court, bearing in mind the strict principles of law in operation in appellate courts that regulate the grant of leave to argue points not raised in the court below?

(iii) Since parties are bound by their pleadings, is the appellant entitled to argue in this court that the agreement dated 27.10.75 tendered and pleaded by them as a “Counter-part” is, in fact, not a “Counter-part”, but “primary evidence” of its original, which ought therefore have been received in evidence by the trial court as such “primary evidence”?

(iv) Having regard to the provisions of S. 94(d) of the Evidence Act, is the appellant’s contention that the Agreement dated 27.10.75 constitutes primary evidence as against the 1st-3rd respondents, (who did not execute the Agreement) sound?

(v) Recognition being had to the fact that the 1st 3rd respondents never executed the Agreement dated 27.10.75, and to the further fact that the said Agreement has not been admitted or proved to be in their possession, does the issue by the Appellant of “Notices to Produce” on them make secondary evidence of its contents admissible against them?