Commercial Bank (Credit Lyonnais) Nigeria Limited & Anor V. Mrs Joke Ishola & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A (Delivering the Leading Judgment)

This is an appeal against the Ruling of Ojikutu-Oshode J. of the High Court of Lagos State in Suit No. LD/52/2001 delivered on the 23rd day of October 2003. By a Writ of Summons and Statement of Claim both dated the 9th of January 2000, the Plaintiffs/Respondents sought the following reliefs at the lower court:

(a) The sum of N124,820.00 (One Hundred and Twenty-Four Thousand Eight Hundred and Twenty Naira) being the sum paid by the 2nd Plaintiff on behalf of the 1st Plaintiff into account number 070005061-1 which the Defendants have refused to credit with the said sum;

(b) Alternatively, an order compelling the Defendants to forthwith credit account number 070005061-1 with the sum of N124,820.00; and

(c) N500, 000.00 (Five Hundred Thousand Naira) as general and special damages for loss of business and inconvenience caused to the Plaintiffs.

On May 8, 2002, in the course of trial before the lower court, the Respondents called the 1st Respondent as witness and sought to tender a photocopy of a Bank Teller in evidence. Upon the objection of the Counsel for the Appellants, the Bank Teller was not admitted in evidence but was marked by Ojikutu-Oshode J. as “Exhibit ID 1”, that is, “Identification 1”. On October 23, 2003 during the continuation of examination – in – chief of the 1st Respondent, the Respondents sought to tender the document earlier marked as “Identification 1”.

Despite the objection of Counsel for the Appellants, the same document was now admitted in evidence. The Ruling of the court admitting the document in evidence is on pages 15 – 17 of the Record. Dissatisfied with the Ruling, the Appellants filed a Notice of Appeal dated November 5, 2003 which was subsequently by leave of the court granted on 15/11/06 amended.

The amended Notice of Appeal is on pages 35-36 of the Record. From the two grounds of appeal in the amended Notice of Appeal, the Appellants in their brief of argument formulated the following two issues:

1. Whether the trial Court was right when it subsequently admitted in evidence a document earlier refused in evidence but admitted for the purpose of identification as “Exhibit ID 1”?; and
2. Whether the trial Court was right when it admitted in evidence a photocopy of “Exhibit ID 1”, the proper foundation for the reception of the photocopy not having been laid?

In their brief settled by Clement Onwuenwunor Esq., the Respondents formulated the following two issues for determination:

i. Whether the learned trial Judge was right when he subsequently admitted in evidence a document earlier admitted for identification and marked as an ID1.

ii. Whether the learned trial judge was right when he admitted secondary evidence of the cash remittance voucher under the circumstance of this case.

The two issues formulated by each side are basically the same not withstanding the slight variation in the language used by the Respondents. The issues will be considered seriatim.

On issue 1, Whether the trial Court was right when it subsequently admitted in evidence a document earlier refused in evidence but admitted for the purpose of identification as “Exhibit ID 1; Learned counsel for the appellant, Fred Onuobia Esq., relying on Bello v Gov. Kogi State. (1997) 9 NWLR (PT. 521) 496 @ 521 C submitted that it is trite law that where a document has been tendered in evidence, rejected and marked “ID”, such a document cannot be re-tendered.

Counsel submitted that the Respondents’ Cash Remittance Voucher was tendered, rejected and marked “ID” on May 8, 2002 due to the Respondents’ Counsel’s failure to lay proper foundation for the tendering of a photocopy of it. Learned counsel further submitted that a document marked “ID” that is, for identification purpose is not evidence before the Court and cannot be acted upon.