International Bank Of West Africa Vs Imano Nigeria Ltd (2001)
LAWGLOBAL HUB Lead Judgment Report
ANTHONY I. IGUH, JSC.
In the Lagos Judicial Division of the High Court of Lagos State, the plaintiff instituted an action claiming, jointly and severally, against the defendants the sum of N238,203.27. This amount was said to be due and payable by the defendants to the plaintiff as at the 28th February, 1982 as per the plaintiff’s amended statement of claim. The said amount comprised the principal amount lent, interest at the rate of 111/2% and other bank charges outstanding against the 1st defendant as at the 25th February, 1982 as reflected in the 1st defendant’s statement of account with the plaintiff bank. The transaction was secured by a Deed of Guarantee executed by the 2nd defendant in favour of the plaintiff.
Pleadings were ordered in the suit and were duly settled, filed and exchanged.
The brief facts of the case are that the 1st defendant applied for and was granted some loan/overdraft facility by the plaintiff bank to the tune of N140, 000.00 with interest at the rate of 111/2% to purchase a Jetty at Warri. The 2nd defendant agreed to and duly guaranteed the overdraft extended by the plaintiff to the 1st defendant. The 1st defendant utilised the said facility and as at the 28th February 1982 became indebted to the plaintiff in the sum of N238, 203.27 as claimed. Both defendants having failed or neglected to liquidate the debt despite of repeated demands, the plaintiff was obliged to file this action.
The defendant’s position was a general denial of the plaintiff’s claim.
At the subsequent trial, one witness testified on behalf of the plaintiff and tendered several documentary exhibits. These included the 1st defendant’s statement of account with the plaintiff bank, exhibit 5, exhibit 5 was tendered by the plaintiff without any objection by both defendants and was accordingly admitted in evidence by consent.
At the close of the plaintiff’s case, both counsel for the defendants elected not to call any evidence. It must be pointed out that both defendants had earlier declined to cross examine the plaintiff’s sole witness even though his testimony was strictly in line with the averments in the plaintiff’s statement of claim. Accordingly, learned counsel for the plaintiff at the close of the case for both parties addressed the court.
In their reply, learned counsel for the defendants submitted that there was no proof of the amount claimed by the plaintiff as exhibit 5, the 1st defendant’s statement of account with the plaintiff was inadmissible in evidence for non-compliance with the provisions of section 96(1)(h) and 96(2)(e) of the Evidence Act, Cap.62, Laws of the Federation of Nigeria and Lagos, 1958. This contention found favour with the learned trial Chief Judge, Johnson, C. J. who was of the view that there was failure on the part of the plaintiff to establish that exhibit 5 was examined with the original entry in the plaintiff’s ledger. He therefore held that this lacuna in the evidence of the plaintiff rendered the document inadmissible. Said he:-
“There is in this case no evidence of the requisite examination of the copy made with the original and a confirmation of its correctness. This failure to my mind is fatal to the admission of Exhibit 5 which is hereby rejected.”
He however proceeded on the basis of the other documentary evidence before the court to hold that the plaintiff had established its claim against both defendants in the sum of N139, 351.39. Referring to the said documentary evidence, the learned Chief Judge commented:-
“The above correspondence in my considered view constitute an admission by both defendants of their indebtedness to the plaintiff, at least, in the sum of N139, 351.39. Exhibit 4, the guarantee executed by the 2nd defendant and not disputed or challenged in any way, covers the sum of N140,000.00 up to 24.8.81. The balance of N139, 351.39k represents the total indebtedness up to 11.6.81 as shown in the series of correspondence earlier referred to.
It is therefore my conclusion that there is enough admissible evidence establishing the indebtedness of both defendants to the plaintiff jointly and severally in the sum of N139, 351.39k. I hereby enter judgment in favour of the plaintiff jointly and severally against both defendants, in the sum of N139, 351.39k with costs to be assessed.”
No finding or award was made in respect of the plaintiff’s claim for interest and other bank charges.
Dissatisfied with the judgment of the trial court, both parties appealed against the same to the Court of Appeal, Lagos Judicial Division. On the 4th of July, 1989, the court below in an unanimous judgment dismissed the main appeal of the defendants but the plaintiff’s cross-appeal was allowed. The judgment of the learned trial Chief Judge was set aside and, in substitution thereof, judgment was entered for the plaintiff against the defendants jointly and severally in the sum of N238,2203.27 together with interest at the rate of 111/2% per annum from the 12th day of February, 1982 until the liquidation of the judgment debt.
Aggrieved by this decision of the Court of Appeal, the 2nd defendant has further appealed to this court. The plaintiff did also appeal against that part of the decision of the court below which dismissed its objection that there was no valid appeal filed by the defendants in the suit. I may, in passing, observe that the 1st defendant, the principal debtor, has not appealed against this decision of the Court of Appeal.
Five grounds of appeal were filed by the 2nd defendant against this decision of the Court of Appeal. The plaintiff, for its own part, filed three grounds of appeal against the same decision of the court below. It is unnecessary to reproduce them in this judgment. It suffices to state that the 2nd defendant pursuant to the Rules of this court filed its brief of argument in which five issues were identified for the determination of this court. These are framed thus:-
“(1) Whether the court below was not right in holding that there was a valid appeal before it.
(2) Whether in all the circumstances of this case the court below was right in treating the 2nd defendant/appellant’s amended statement of defence filed out of time with leave of court as void and thereby deemed all the averments in the amended statement of claim as admitted by the appellant entitling the plaintiff/respondent to judgment in terms of its said amended statement of Claim.
(3) Whether on all the facts and circumstances of this case the court below was right in holding that there was compliance with section 96(2)(e) of the Evidence Act and therefore that exhibit 5 in the proceedings (the respondent bank’s statement of account) was, in the first instance, rightly admitted in evidence at the trial but subsequently wrongly rejected, by the learned trial Chief Judge, in his judgment.
(4) Whether the court below was right in entering judgment against the 2nd defendant/appellant when no liability of the 1st defendant to the plaintiff/respondent for which the appellant was answerable was established by legal evidence
(5) Whether the court below was right in entering judgment against the appellant for N238, 203.27 together with interest thereon from 12/2/82, or at all, when by the relative guarantee, the amended statement of claim and other facts on the record, the appellant’s liability (if any) as specially endorsed on the said guarantee and claimed by the appellant was for a fixed and determined sum of N140, 000.00 and no more.”
The plaintiff, for its own part, similarly identified five issues for resolution in these appeals. These issues are set out in the 2nd respondent’s brief of argument as follows:-
“(1) Whether the Court of Appeal erred in law in discountenancing the amended statement of defence of the 4th day of October, 1985 filed on the 8th day of October 1985 (one year outside time and without any extension of time).
(2) Whether the Court of Appeal erred in law in over-ruling the decision of the High Court which in its judgment rejected the statement of the 1st defendant’s account with the plaintiff (exhibit 5) for non-compliance with section 96(2)(e) of the then Evidence Act, Cap 62, Laws of Nigeria, 1958 Edition which the High Court had earlier admitted in evidence without any objection by the two Defendants.
(3) Whether the Court of Appeal erred in holding that, even excluding the statement of account (exhibit 5), the plaintiff was entitled to judgment for the full amount of N238, 203.27 together with interest at 11.5% claimed based on (a) the pleadings and/or (b) the oral and documentary evidence adduced at the trial.
(4) Whether the Court of Appeal erred in law in giving judgment against the appellant in the sum of N238, 203.27 with interest considering the provisions of the Deed of Guarantee (exhibit 4) executed by the appellant in favour of the Respondent.
(5) In the event that the Honourable Court allows the appellant’s appeal, whether the Court of Appeal was right in setting aside the judgment for N139, 351.39 awarded by the High Court on the ground inter-alia that ‘there is nothing in exhibits 11 and 11A to justify the inference that the writer of the letters was making an admission of debt on behalf of anyone.”
At the oral hearing of the appeal on the 2nd day of December, 2000, learned counsel for the 2nd defendant/appellant, Chief T. A. Ezeobi adopted his brief of argument and proffered oral arguments in amplification of the submissions therein contained. He sought the leave of court to abandon the first two issues formulated in his brief of argument. The application not having been opposed was granted and the two issues were accordingly struck out. This left the appellant with only issues 3, 4 and 5.
A close study of the appellant’s remaining three issues reveals that they substantially correspond with issues 2, 3 and 4 in the respondent’s brief of argument. However, having regard to the grounds of appeal filed and the arguments of counsel in their respective briefs of argument, it seems to me that issues 2, 3 and 4 as formulated in the respondent’s brief of argument are more germane for my consideration of this appeal than the appellant’s issues 3, 4 and 5. I therefore propose in this judgment to adopt issues 2, 3 and 4 as formulated in the respondent’s brief of argument for my resolution of this appeal.
The main thrust of the submissions of learned counsel for the appellant under issue 2 is that with the 1st defendant’s statement of account, exhibit 5, being inadmissible in evidence under section 96(2)(e) of the Evidence Act, there is no other legal evidence on record to sustain any indebtedness on the part of the principal debtor, the said 1st defendant and that there is therefore no consequential liability on the part of the appellant. He stressed that in the absence of evidence that exhibit 5 was ‘examined’ and compared ‘with the original entry’ and found to be ‘correct’, the statement of account cannot be admissible in evidence. He invited this court to hold that exhibit 5 was therefore rightly rejected by the trial court and that the court below was in grave error to have interfered with this finding. On issues 4 and 5 which concern the question of liability, learned counsel contended that the award of N238,203.27 against the appellant with interest at the rate of 111/2% per annum from the 12th February, 1982 is outside the guarantee contract and beyond the claim of the respondent against the appellant which, although this was not conceded, did not exceed the fixed sum of N140,000.00.
Learned counsel for the respondent, Oyeabo C. Obi Esq in his pointed out that exhibit 5 was tendered by the plaintiff/respondent at the trial without any objection by the appellants. He submitted that exhibit 5 was properly admitted in evidence by the trial court and that there was sufficient evidence in compliance with the requirements prescribed under the provisions of section 96(2)(e) of the Evidence Act. He cited a number of decided cases to buttress his contention that in order to comply with the requirements of section 96(2)(e) of the Evidence Act, the words of the section need not be strictly adhered to. It is sufficient if the relevant conclusions can be inferred from proved facts. He referred to the decisions of this court in Ibrahim Yassin v. Barclays Bank D.C.O. (1968) 1. AII N.L.R. 171 and Abolade Alade v. Salawu Olukade (1976) 10 N.S.C.C. 34 and submitted that in-as-much-as exhibit 5 was admissible under certain conditions and not inadmissible in evidence in any event, and the same was tendered and admitted in evidence without objection at the trial, it was no longer open to the appellant to challenge its admissibility in the court below having regard to all the evidence led in respect thereto at the trial.
One witness testified for the plaintiff at the trial in this case. He is one Ademola Sunday Moronkeji who described himself as a banker and a Credit Officer with the plaintiff bank. His evidence with regard to exhibit 5 reads as follow:-
“Defendant has not repaid the outstanding sum. I have a prepared statement of account. It was prepared by me, copied out from the Ledger kept by the plaintiff’s bank. This is the account. Tendered. No objection by Sagoe. No objection by Akinosho. Admitted, marked exhibit 5. The balance outstanding as at February, 1982 is N238,203.27k’ (Underlinings supplied).
I will now examine the relevant section of the law under which the court below held that the statement of account, exhibit 5, was properly admitted in evidence by the trial court in compliance with the provisions of section 96(2)/(e) of the Evidence Act but wrongly rejected by the same trial court in its judgment.
Section 96(1) of the Evidence Act provides as follows:-
“96(1) Secondary evidence may be given of the existence, condition and contents of a document in the following cases…
(h) When the document is an entry in a banker’s book.”
There is then section 96(2) of the same Act which goes thus:-
“96(2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) is as follows:-
(e) in paragraph (h) the copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the bank, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry and may be given orally or by affidavit.”
It is indisputable that under section 96(1)(h) of the Evidence Act, secondary evidence may be given of the existence, condition and contents of a document when, inter-alia, the document is an entry in a banker’s book. Although that section of the law does not state what form of secondary evidence that is admissible thereunder, it is clear under section 96(2)(e) of that Act that it is a copy of an entry in a banker’s book that is admissible. Such a copy may not however be received as evidence of the entry in the relevant banker’s book unless it is first established:-
(i) that the book in which the entries copied were made was at the same of making one of the ordinary books of the bank;
(ii) that the entry was made in the usual and ordinary course of business;
(iii) that the book is in the custody and control of the bank; and
(iv) that the copy has been examined with the original entry and is correct.
It is, however, necessary to point out that it is not the length of evidence given in tendering a copy of entries in a banker’s book that determines its admissibility or otherwise under the said section 96(2)(e) of the Evidence Act. What matters is whether the substance of such evidence, broadly speaking, covers the requirements set out in that section of the relevant Act. In this regard, it ought to be pointed out that such evidence need not be in the precise language of section 96(2)(e) of the Evidence Act so long as it is in substance in compliance with the provision of the subsection. Provided the evidence adduced before the court substantially covers the requirements of subsection 2(e) of the relevant section of the Evidence Act, the secondary evidence in question will become admissible in proof of the existence, condition and contents of the entries in the banker’s book. See Ibrahim Yassin v. Barclays Bank D.C.O. (1968) AII N.L.R. 171; Festus Yesufu v. ACB Ltd. (1976) 1 N.M.L.R. 83; (1976) 4 S.C.1. It is also sufficient to satisfy the requirements of the said section 96(2)(e) if from the totality of the evidence tendered on the matter, necessary and natural inference can be made which would amount to compliance with the section. So, in Yassin’s case, the witness at the trial did not expressly or specifically testify that the books he examined were in the custody and control of the bank. It was urged on appeal that this constituted non-compliance with the provisions of section 96(2)(e) of the Evidence Act. Dismissing this contention, this court per Lewis, J.S.C. stated:-
“Finally, though we agreed that Mr. Perrit never specifically said the books he examined were in the custody and control of the bank, this was the only natural inference to be derived from his evidence as an officer of that bank……”
Learned counsel for the appellant has urged this court to hold in the present case that there was no evidence of the requisite examination of the copy made with the original and a confirmation of its correctness and that this failure is fatal to the admission of exhibit 5 in evidence by the court below.
It cannot be doubted that under section 96(2)(e) of the Evidence Act, secondary evidence of entries in a banker’s book may be given and received in any proceeding in proof thereof if the four requirement I have already set out above are complied with by one seeking to establish such facts. However, in resolving this submission of learned appellant’s counsel, it is pertinent to point out, in the first place, that the witness who tendered the statement of account, exhibit 5, and whose testimony in this regard I have already reproduced was not cross-examined at all by the appellant on any issue concerning its correctness or accuracy. This witness who is a banker and an officer of the plaintiff bank testified in clear terms that he copied the statement of account, exhibit 5, from the plaintiff’s ledger. By section 2 of the Evidence Act, a ledger is one of the ordinary books of the bank and it is from those original books of the bank that the witness copied exhibit 5. From the oral evidence of this witness, as confirmed by exhibit 5, the outstanding balance in respect of the 1st defendant’s account with the plaintiff as at February, 1982 was N238,203.24k. This is the amount claimed by the plaintiff against the defendants. As I have already stated, this witness was not cross-examined in any way on the accuracy of any of the entries in exhibit 5. I think I am inclined, in these circumstances, to agree with the court below that in the absence of issue having been joined on the question of the accuracy or correctness of the entries in exhibit 5 and in further absence of any evidence from the defendants to the contrary, it may reasonably be presumed that the entries in exhibit 5 were correctly copied from the original bank ledger.
In the second place, and certainly more importantly, it must be observed that no objection whatsoever was raised by either of the two learned counsel for the defendants to the admissibility of the statement of account, Exhibit 5, at the state it was tendered. In other words, it is right to say that the appellant, by implication, consented to the admissibility of exhibit 5 although the conditions precedent or the necessary requirements for its admissibility were not established.
It cannot be over-emphasised that a court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly where a trial court inadvertently admits evidence which absolutely is inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So, too, if a document is unlawfully received in evidence in the trial court, an appellate court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial court did not object to its admission in evidence. See Mallam Yaya v. Mogoga (197) 12 W.A. C. A 132 at 133. Although, therefore, a document is unlawfully received in evidence in the trial court without objection by or on behalf of an appellant, it would still be open to such appellant in the appellate court, particularly where a miscarriage of justice is thereby occasioned, to object to it since it is the duty of appellate court to exclude inadmissible evidence which was erroneously received in evidence during the trial. See Ajayi v. Fisher (1956) S.C.N.L.R. 279, Esso West Africa Incorporated v. Ali (1968) N.M.L.R. 414 at 423.
Where, however, a party to a civil proceeding consented to a procedure at the trial which procedure is neither unconstitutional nor amounts to a nullity but is merely wrong or irregular and he in fact suffered no injustice and no miscarriage of justice is thereby occasioned, it would be too late to complain on appeal about such wrong procedure having been adopted simply because that party lost the case in the trial court. See Oba Ipinlaiye II v. Chief Julius Olukotun (1996) 6 N.W.L.R. (Part 453) 148, Akhiwu v. The Principal Lotteries Officer Mid-Western State of Nigeria and another (1972) AII N.L.R (Part 1) 229 at 238, Ayanwale and others v. Atanda and Another (1988) 1 N.W.L.R (Part 68) 22, Okwechime v. Philip Igbinadolor (1964) N.M.L.R. 132. etc. This is because in the case of documentary evidence in a civil case, formal proof thereof can always be waived by a party to the proceeding where the document is not absolutely inadmissible in law for all purposes. See Okeke v. Obidife and others (1965) 4 N.S.C.C. 36.
Where, therefore, inadmissible evidence is tendered, it is the duty of the other party or counsel on his behalf to object immediately to the admissibility of such evidence. If, however, such other party fails to raise any objection as aforesaid or consents to the admissibility of such evidence, the trial court in civil cases may (and in criminal cases must) reject such evidence ex proprio motu. On appeal however, and provided the evidence complained of is one which by law is admissible all-be-it under certain conditions and the party complaining did not object to or conserved to its admissibility at the trial although the conditions precedent to its admissibility were not shown to have been satisfied, he cannot be allowed to raise any objection as to its admissibility in the appellate court. See Gilbert v. Endean (1978) 9 Ch. D. 259 at 269, Salau Olukade v. Abolade Alade (1976) AII N.L.R. 57 at 61-62, Chief Bruno Etim and others v. Chief Okon Udo Ekpe and Another (1983) 3 S.C.12; (1983) 1 S.C. N.L.R. 120.
A distinction must, however, be drawn between where the evidence complained of is one which by law is prima facie admissible all-be-it under stipulated conditions as against where such evidence is by law inadmissible in any event and in all circumstances. In the latter class of cases, such evidence ought never to be acted upon by any court of law whether, of first instance or, of appeal, and it is immaterial that its admission in evidence was by the default or consent of the party complaining in failing to raise the necessary objection at the appropriate time. In other words, where the evidence, complained of is by law inadmissible in any event and all circumstances, the evidence cannot be acted upon by any court of law even if the party complaining failed to raise any objection or consented to the admission of such evidence in the proceeding. The appellate court in such circumstance is duty bound to entertain complaint on the admissibility of such evidence by the trial court, reject it if it finds it absolutely inadmissible in any event and in all circumstances and decide the case on the legal evidence before the court. See Alashe v. Ilu (1964) 1 AII N.L.R. 390 at 397 and Jacker v. International Cable Co. Ltd. (1888) 5 T.L.R. 13. See too Salau Olukade v. Abolade (supra), Owoniyin v. Omotosho (1961) 2 S.C.N.L.R. 57, Yassin v. Barclays Bank D.C.O. (supra), Alashe v. Olori Ilu (1964) 1 AII N.L.R. 390 at 397.
In the present case, it is section 96(2)(e) of the Evidence Act, which governs the admissibility or otherwise of exhibit 5, a certified true copy of a bank’s statement of account which, pursuant to the said section of the law, is expressly declared to be admissible if certain conditions therein stipulated are satisfied. Exhibit 5 is not therefore a document which by law is absolutely inadmissible in all courts of law in any event and in all circumstances. That being so and the appellant and having objected to its admissibility in evidence at the time it was tendered but rather consented thereto and, therefore, waived formal proof thereof before the trial court, it may not now raise the question of the inadmissibility of the document before this court or in the court below. I think the appellant is estopped both in the court below and before this court from asserting that the said exhibit 5 was and remains inadmissible by virtue of the failure on the part of the plaintiff to testify that the document was examined with the original entries in the bank ledger and found to be correct.
So in Chukwura Akunne v. Matthias Ekwuno and others (1952) 14 W.A. C.A. 59. Foster Sutton, P. explained this proposition of law as follows:-
“Appellant’s counsel argued that the evidence of witnesses 5 and 6 for the defence was inadmissible. We declined to allow him to argue that point: The evidence was not objected to, it was cross-examined and its admissibility was not put in question at any stage of the trial. It was also argued that exhibits 4, 5, 6 and 8 were inadmissible, not being relevant to any issue in the case. As we pointed out to counsel for the appellants, no exception was taken to exhibits 5, 6 and 8 at the trial, but apart from the consideration, in my view, the evidence was clearly admissible under the provisions of sub-section (b) of section 12 of the Evidence Ordinance”. (Underlinings supplied)