Musa Abubakar V E.I. Chuks (2007)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C

The res in this litigation is No.2, Old Motor park, Dilimi, Jos. What is in dispute is the ownership of the property. Both the appellant and the respondent claim ownership of the property. The respondent as plaintiff sued at the High Court, Jos for a declaration of title to the property. He claimed that the appellant/defendant entered the property illegally shortly after the respondent left for his home town, Enugu, during the civil war. When he returned to Jos after the war, one Akanbi Badamasi was in occupation of the property. Akanbi Badamasi is now deceased. He died on 21st October, 1975. On enquiry, the respondent was told that the property was given to Akanbi Badamasi by Jos Local Government. The appellant/defendant has a different story. He averred in his statement of defence that the property was given to him by Akanbi Badamasi as a gift under Islamic Law. He averred that he will rely on the Islamic Law principle of Hauzi. During the trial, the respondent called Mr. Samuel Lawai as PW 3, His counsel, Mr. Umoh, tendered ID4 through the witness.

Counsel for the appellant raised an objection. I think I should state here verbatim et literatim the relevant proceedings at pages 13 and 14 of the record:

“PW 3 (continues). I live at No.11 Jingir Road, Jos. I am a legal practitioner of 12 years standing. In 1992 I was in the service of a firm of legal practitioners of Amuka Lawai & Co. I know the defendant in this case. Our firm worked for the defendant. I have seen ID4; it emanated from our firm.

Mr Umo: I seek to tender ID4 in evidence.

Mr. Sangei: I object to tendering of ID4 through this witness. The witness said that he knew the defendant when they worked for him. This document was written in the course of that employment. To tender this document through this witness will offend the provisions of section 170(1) of the Evidence Act, I rely on the case of Horn v. Rickard (1963) NNLR 67 at 68. I submit that this witness cannot tender ID4 in evidence. Mr. Umoh: The objection is misconceived. This witness should not disclose anything contained in ID4 that is what the law enjoins him not to do. Court. I have looked at the document sought to be tendered in evidence; I have also listened to the evidence of this witness. The document sought to be tendered is dated 30/6/92, it emanated from the firm of solicitors of Amuka, Lawal & Co. This witness was a solicitor in that firm. One B. B, Hassan, Esq was the author of the document sought to be tendered. The document has already been tendered for identification purpose only. Under the provisions of section 170(1) of the Evidence Act this witness is not allowed to:

‘disclose any communication made to him in the course and for the purpose of his employment as such legal practitioner by or on behalf’ of his client, or to state the contents or condition of any document with which he has become acquainted …’

As I observed earlier, the document sought to be tendered is already before the court but not in evidence. This witness is not being asked to disclose the contents of the document or to state its contents, It was not written by him. These facts take the document out of the contemplation of the provision of sect. 170(1) of the Evidence Act. The witness can tender the document formally but cannot state its contents on the basis of this reasoning I hereby accept this document in evidence. It shall be marked as exh. 7 (taken as read).

SGD

Chief Judge

24/2/2000.”

Dissatisfied, the appellant went to the Court of Appeal. The court dismissed the appeal. Mangaji, J.C.A, in his judgment said at pages 41 to 43 of the record, and I quote him in some detail:

“The first arm of learned counsel for the appellant’s argument is built around the perceived misconduct of PW3 who was said to have breached professional ethics in accepting to appear in court to tender a document which he identified as one which was prepared in the Chambers in which he was employed at the time relevant to its preparation. Of course he was not the author of the letter and there is no evidence that he knew the contents of the document as same was prepared by a different counsel who took the brief and received instructions from the appellant. It is beyond doubt that independent of tendering exhibit 7, PW3 did not say anything which showed that he was disclosing any communication made to him by the appellant in the course and for the purpose of his employment as a legal practitioner. Neither did he state the contents of exhibit 7. Indeed there is no evidence that PW3 is acquainted with the contents of the exhibit beyond identifying that that document came from the Chambers in which he was employed at the time relevant to the drafting of it. Since PW3 did not participate in the making of exhibit 7 and the appellant neither briefed him in person nor ever had any dealing with him in his professional capacity, section 170 of the Evidence Act, 1990 is inapplicable … I do not think that section 170 of the Evidence Act is meant to shield a client from adverse consequences when communication and instruction made by him to his solicitor turns out to be unfavourable to him. Of course where the communication is made to a particular solicitor, that solicitor is debarred from disclosing same without the express consent of his client. But for another counsel in the Chamber to be subpoenaed to appear in court and identify whether a particular document emanated from the Chambers in which he is employed, nothing would appear to work to render him disqualified to lead such evidence. In my view exhibit 7 was rightly tendered through PW3 and the learned trial Chief Judge was right to have dismissed appellant’s objection on that score.”

Still dissatisfied, the appellant has appealed to this court. Briefs were duly filed and exchanged. The appellant formulated the following single issue for determination: