Chief Arikpo Usani Omini V. Chief Ubi Eno (2009)

LawGlobal-Hub Lead Judgment Report

THERESA NGOLIKA ORJI-ABADUA, J.C.A.

This is an appeal against the ruling delivered on the 20th June, 2005 by Ikpeme J, sitting at the Ugep Judicial Division of the High Court of Cross River State. The facts of this case are that following the demise of Ofem J., who had previously conducted hearing in Suit No. HUG/48/97 between the parties in this appeal and in respect of the same subject matter, and, due largely to the frailty and old age of the 1st Plaintiff, the 1st Plaintiff then presented an application before, Akon B. Ikpeme J., and before whom the said suit commenced de novo and thereupon prayed the Court for an order that the evidence given in the proceedings in the same suit, being commenced de novo, by the Plaintiff/Applicant as P.W.1 in the earlier stage of the proceeding be taken as the truth of the facts which it states, and be taken as the evidence of the said P.W.1 at the new stage of the proceedings now commenced de novo.

After considering the submissions of learned Counsel for the parties, the learned trial Judge declined the Appellant’s application, hence this appeal which was founded on three grounds.

In compliance with the Rules of this Court, the parties filed and exchanged their Briefs of Argument including the Reply Brief filed by the Appellant.

In the Appellant’s Brief of argument, two issues were distilled for determination. They are:-

“(1) Whether the learned trial judge did not exercise his discretion judicially and judiciously when he refused the application to admit the evidence of P.W.1 in the previous stage of the proceeding as his evidence in the current stage, relying, as he did suo motu, on section 91 (3) of the Evidence Act, when both parties contested the application on section 92 (1) of the Act. (This issue emanates from ground 1, and the alternative in that ground).

(2) Whether the admissibility of Exhibit A1 comes within; the exception to the rule in section 91 (3) of the Evidence Act precluding the admission of documents during the pendency of proceedings, and if so, whether there is sufficient evidence before the court to grant the application; as prayed. (This issue emanates from grounds 1 and 2 of the grounds of appeal)”.

It is apparent from the foregoing, that no issue whatsoever was propounded from ground NO.3, and as such, it is hereby deemed abandoned.

In respect of issue NO.1, learned Counsel for the Appellant, O.U. Oka Esq, explained that the application at the lower Court was made in pursuance of section 34 (1) of the Evidence Act, to admit the evidence tendered by P.W.1 in the proceedings before the former Court, as his evidence in the later proceedings which started de novo before Ikpeme J. In the affidavit in support of the application, particularly at paragraphs 12-16, P.W.1 averred how old age and physical infirmity arising from ill health had made: it impossible for him to testify for the second time before the new Court. He was always incoherent, had impaired hearing, his state of health terribly deteriorated, and it would be a trauma subjecting him to the rigours. Counsel stressed that the affidavit evidence of the Appellant, which was never debunked, satisfied the requirements of section 34 (1) of the Act. He submitted that after his testimony in chief, he was fully cross-examined by the adverse party, that the proceedings were between the same parties and the subject matter of the suit same. Counsel stated that the Appellant furnished Exhibit A1 being the medical report and clearly explained his actual state of health. He had severe osteoarthritis and cardiac failure with associated swollen feet and was confined within his premises. He stated that section 34 (1) of the Evidence Act was an exception to the Best Evidence Rule. He cited the cases of Sanyolu vs. Coker (1983) 3 S.C 124 at 154-155, 157, Shanu vs. Afri Bank Plc (2003) FWLR (Pt. 136) 823 at 835, and then pages 52, lines 3-13 and 53 lines 2-4 of the records of appeal and submitted that the learned trial Judge declined to admit Exhibit A1 on wrong principles of law and misapprehension of the facts of the case.

He contended that the trial Court suo motu decided that Exhibit A1 came within the purview of section 91 (3) of the Evidence Act, without calling on Counsel on both sides to address it on it, since section 91 (3) of the Evidence Act was never in contention but section 92 (1) of the Act. He stated that the Court further held that the making of Exhibit A was not contemporaneous within the Applicant’s illness.

Learned Counsel in his submission referred to the New Webster’s Dictionary of the English Language, International Edition, page 210 where the word, “contemporaneous” was defined as “Living, happening at the same time, covering the same period of time”. He stated that it was after the Principal Medical Officer Grade I, in charge of the General Hospital Ugep, examined P.W.1 and noting his state of health, that he issued Exhibit Al. Counsel submitted that since the report on the illness of P.W.1 was made when he was still ill and the illness was continuing, the report would be accurate and, it ought to have had much weight attached to it as envisaged by section 92 (1) of the Evidence Act except there was any concealment or misrepresentation of facts. Section 92 (1) of the Evidence Act deals with the weight to be attached to such document and not its admissibility. He stated that the two terms have different legal connotations and will not be used interchangeably as the trial Court appeared to have done. Learned Counsel submitted that the said Exhibit A1 is an exception to the rule in section 91 (3) of the Evidence Act because it was never alleged to have been made by a person interested at the time when proceedings were pending or anticipated, and it was never so made. He cited the case of Susano Pharmaceutical Co. Ltd vs. Sol Pharmaceutical Ltd (2000) FWLR (Pt.l0) 1595 at 1598 ratios 7 and 8 and argued that Exhibit A1 is therefore admissible. He then urged the Court to resolve issue No. 1 in favour of the Appellant.

With regard issue No.2, Counsel contended that the trial Court ought to have considered the provisions of section 91 (4) of the Evidence Act since Exhibit A1 was not made by P.W.1. He argued that it was wrong for the trial Court to have held that P.W.1 made Exhibit Al and then based on it to exclude its admissibility. He stated that Exhibit A1 was made by a person who was not personally interested in the outcome of the proceedings and was therefore admissible by virtue of the decision in Susano Pharmaceutical Co. Ltd vs. Sol Pharmaceutical Ltd (supra). He finally submitted that there was sufficient evidence for the lower Court to have granted the application and ordered that all exhibits admitted through P.W.1 by both parties be admitted with his previous evidence as his evidence in the current proceedings., He then urged the Court to allow the appeal or order the admission of Exhibit A with all the Exhibits admitted through P.W.1.

The Respondent for his part distilled only one issue for determination thus:

“Whether on the totality of the affidavit evidence before the lower Court, the refusal by that Court of the application to take the evidence of PW1, Chief Square Ofem Omini, then a life, and healthy, given in an earlier stage of the proceedings before another Judge, as the truth of the facts stated in the later stage of the proceedings, taken de novo would be said to amount Or constitute an improper exercise of judicial discretion”.