A. B. Kotoye V. Mrs. F. M. Saraki & Anor (1995)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, J.S.C.

This is an application by the defendant/applicant seeking the following orders –

“(i) Extending the time within which to seek leave to appeal on the grounds of mixed law and fact against the Ruling of the Court of Appeal, Lagos Division (sic) dated the 2nd day of December, 1991, refusing stay of proceedings of the trial of the Consolidated Suit pending before Olusola Thomas, J., pending the determination of the appeal lodged against the Ruling of the High Court of Lagos delivered on the 30th and 31st of May, 1991;

(ii) Leave to appeal against the said Ruling;

(iii) Extension of time within which to appeal against the said Ruling;

(iv) Stay of proceedings in file Consolidated Suits Nos: LD/845/87 and LD/938/87 before the High Court of Lagos State (Coram Olusola Thomas, J.,) pending lie determination of the foregoing orders and thereafter provided a Notice of Appeal is filed within 7 days of the orders sought and granted, further stay of proceedings until the hearing and determination of the appeal to this Honourable Court;”

The following facts relating to the application are disclosed in the affidavit and further affidavit sworn to in support of the application by one Bolajoko Ajayi, of Ayanlaja, Adesanya & Co. Counsel to the applicant. Both the plaintiffs/respondents and the defendant/applicant brought cross actions in the High Court of Lagos State. These were Suit No. LD/845/87 and Suit No. LD/93/87 respectively. The actions were consolidated and were being heard together in the High Court. The plaintiffs/respondents adduced evidence and closed their case. The defendant/applicant opened his defence and was giving evidence-in-chief on the 30th day of May, 1991 when he sought to adduce evidence about the poor financial state of the clinic business of the 2nd plaintiff/respondent while in detention in 1984 and to show that the defendant/applicant gave financial assistance from his own resources to sustain the clinic, which did not generate money sufficiently to run itself. In addition, the defendant/applicant said that the 2nd plaintiff/respondent wrote him series of letters requesting for money from the account of the clinic, and that when he provided money from his resources, the 2nd plaintiff/respondent would write to him, thanking him for his kindness.

Counsel for the plaintiff/respondents in the High Court raised an objection on the admissibility of the aforesaid evidence on the ground that the evidence was not pleaded by the defendant/applicant. The learned trial Judge upheld the objection on the ground that issue was not joined on the fact. The learned trial Judge further held-

“I will for this reason ignore the evidence so far adduced and rule that as the pleadings stand the evidence tending to show that the defendant gave financial assistance to the plaintiff in the manner being proffered by the defendant is not admissible.”

The defendant/applicant then continued with his evidence-in-chief and was shown a letter by his counsel, which he identified. His counsel sought to tender the letter after it was identified by the defendant/applicant. Counsel for the plaintiffs/respondents raised objection on the admissibility of the letter, on the ground that the letter purported to give credence to the fact that the defendant gave financial assistance to the 1st plaintiff/respondent at the time the 2nd plaintiff/respondent was in detention. Counsel for the defendant/applicant argued that the letter was admissible. The learned trial Judge ruled as follows –

“in the first place, if the letter is being tendered for purported evidence to establish that the defendant gave financial assistance to the 2nd plaintiff, it is caught within my earlier ruling as no issue was joined on the facts in the pleadings.

In the second place, if the letter is now being tendered to negative the fact of the allegation that the defendant lived on the 2nd plaintiff’s charity, this new ground does not follow from the antecedent evidence of the witness. Learned counsel’s statement from the bar cannot be a substitute for the witness’s testimony. I therefore rule that the document tendered is not admissible. Unless it is being withdrawn, the document shall be marked tendered and rejected.”

The defendant/applicant appealed to the Court of Appeal against the two rulings of the learned Judge. He brought an application before the High Court for the stay of the proceedings before it and it was dismissed. The same application was brought in the Court of Appeal pending the determination of the appeal filed thereat. The Court of Appeal (Sulu-Gambari, Achike and Kalgo, J J.C.A.) delivered its ruling on the 2nd day of December, 1991 refusing to grant the application inter alia for the following reasons, per Achike, J.C.A., with whom Sulu-Gambari, and Kalgo, JJ.C.A. agreed:-

“In the present case, the crux of the controversy on appeal before this Court as already observed, borders on the question of admissibility of already admitted evidence. It is inconceivable that the success of this point will terminate the proceedings of the lower court. Indeed, Chief Williams had submitted, and rightly in my view, that any such wrongful exclusion of evidence would be remedied by the provisions of section 227(2) of the Evidence Act. That subsection states as follows:-