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:
“3.01 Whether it was wrong and contrary to appellant’s legal professional privilege for Mr. Samuel Lawal Esq, former counsel to the appellant in the same dispute, to testify against the appellant and tender exhibit 7.”
The respondent formulated two issues for determination:
“2.2. Whether exhibit 7 that was tendered through PW3 is admissible in evidence having regard to the provisions of S. 170(1) of the Evidence Act, Cap. 112, Laws of Federation Nigeria 1990, same having been pleaded.
2.2. Whether the trial Judge in admitting exhibit “7” had exercised his discretion judiciously and judicially.”
Learned counsel for the appellant, Mr. A. A. Sangei, submitted on the lone issue that the Court of Appeal was wrong in admitting exhibit 7. Relying on sections 170 and 171 of the Evidence Act, learned counsel submitted that the evidence of PW3 and exhibit 7 were inadmissible as PW3 was a partner in the law firm of Amuka, Lawal and Co. He cited Horn v. Richard (1963) NNLR 67 at 68; Alfred Cromption Amusement Machines Ltd. v. Customs & Excise Commissioners (No. 2) (1972) 2 QBD 102 at 131 to 132 and Elabanjo v. Tijani (1986) 5 NWLR (Pt. 46) 952.
Learned counsel urged the court to allow the appeal and expunge the evidence of PW3 and exhibit 7 from the record of the trial court. Learned counsel for the respondent, Mr. Solomon Umoh, submitted on issue No.1 that the test for admissibility is relevancy and that it is the surrounding circumstances that will determine the relevancy of a fact. Citing Okonji v. Njokanma (1999) 14 NWLR (Pt. 638) 250 at 267, counsel pointed out that exhibit 7 was extensively pleaded in paragraph 18 of the further amended statement of claim, a paragraph that was never denied in the statement of defence. Relying on Joshua v. State (2000) 5 NWLR (Pt. 658) 591, Utteh v. State (1992) 2 NWLR (Pt. 223) 257 and section 170 of the Evidence Act, counsel submitted that the evidence of PW3 did not violate section 170.
On Issue No.2, learned counsel submitted that the learned trial Judge exercised his discretion judiciously and judicially in admitting exhibit 7 as the evidence passed the test of purpose and relevance. Assuming, but without conceding, that the trial Judge was wrong in admitting exhibit 7, learned counsel submitted that by section 227 of the Evidence Act, the wrongful admission of the exhibit cannot constitute a ground of appeal. He cited Yongbish v. Bulus (1997) 2 NWLR (Pt. 489) 621. He contended that the appeal, to say the least, is academic, speculative, mischievous and only intended to engender delay and frustrate the proceedings at the lower court. He cited N.I.D.B. v. Fembo (Nig.) Ltd. (1997) 2 NWLR (Pt. 489) 543. He urged the court to dismiss the appeal.
I agree with learned counsel for the respondent that what determines admissibility is relevancy. Section 6 of the Evidence Act provides in part.
“Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others ..,”
Sections 7 and 8 go further to expand and illustrate the requirements of relevancy in section 6, They are “facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction” (section 7) and “facts which are the occasion cause or effect immediate or otherwise, of relevant fact or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction” (section 8). Admissibility is a rule of evidence and it is based on relevancy. See Sadau v. The State (1968) 1 All NLR 124: Ogonzee v. State (1997) 8 NWLR (Pt. 518) 566. In determining the admissibility of evidence, the court will not consider how it was obtained; rather the court will take into consideration whether what is admitted is relevant to the issues being tried. See Igbinovia v. The State (1981) 2 SC 5. In Elias v. Disu (1962) 1 SCNLR 361, (1962) 1 All NLR 214, this court held that in determining admissibility of evidence, “it is the relevancy of the evidence that is important and not how the evidence was obtained.”
A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. The converse position is also the law, and it is that a document which is irrelevant to the facts in issue is not admissible. Documents which are tendered to establish facts pleaded cannot be rejected on the ground of irrelevancy in so far as they confirm the facts pleaded. See Oyetunji v. Akaniji (1986) 5 NWLR (Pt. 42) 461. In other words, a document which is consistent with the pleadings is admissible, if the document is admissible in law.
The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial Judge. It is not automatic. Admissibility of a document is one thing and the weight the court will attach to it is another. The weight the Court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence.
Relevancy and weight are in quite distinct compartments in our law of evidence. They convey two separate meanings in our adjectival law and not in any form of dovetail. In the order of human action or activity, in the area of the law of evidence, relevancy comes before weight. Relevancy, which propels admissibility, is invoked by the trial Judge immediately the document is tendered. At that stage, the Judge applies sections 6, 7, 8 and other relevant provisions of the Evidence Act to determine the relevance or otherwise of the document tendered. If the document is relevant, the Judge admits it, if all other aspects of our adjectival law are in favour of such admission. If the document is irrelevant, it is rejected with little or no ado. Weight comes in after the document has been admitted. This is at the stage of writing the judgment or ruling as the case may be. At that stage the Judge is involved in the evaluation or the evidence vis-a-vis the document admitted. While logic is the determinant of admissibility and relevancy, weight is a matter of law with some taint of facts. I think I have talked enough law to accommodate the factual situation in this appeal. Exhibit 7 is the centre of the quarrel. It is a one-page letter from Amuka, Lawal and Co., solicitors and advocates to CTA. (B), Works/Lands and Survey Department, Jos North Local Government Council. Exhibit 7, written in the name and under the signature of B. B. S. Hassan on behalf of the appellant, did not dispute the claim by one Baba Aku as to ownership, but asked for the sum of N 21,255.00, being amount for guarding the premises for fourteen years at the rate of N 1,200 per year and repair done to the property.
On the issue of relevancy, I should read paragraph 18 of the further amended Statement of claim:
“18. The plaintiff avers that the defendant herein has never challenged his title to the property but rather has only been insisting that he should be paid some amount of money which he spent on the property. The plaintiff shall rely on the letter issuing from the office of Amuka, Lawal & Co. who acted as defendant’s solicitors when the local government directed the defendant to vacate the plaintiff’s premises. The letter which was copied to the plaintiff by the defendant’s solicitor is hereby pleaded.”
It is clear from the averment in paragraph 18 that exhibit 7 is duly pleaded. Considering the statement of defence, particularly paragraph 5 thereof, exhibit 7 is relevant. This court cannot, at this interlocutory stage, decide whether exhibit 7 has the strength to turn the table in favour of the case of the respondent. It may or may not. That is for the trial Judge to decide. But this court has enough evidence to decide on the issue of relevancy. On the authority of Oyetunji v. Akanni (supra), I am of the firm view that exhibit 7 which is duly pleaded in paragraph 18 of the further amended statement of claim is relevant in the adjudication of the issue of ownership of the property in dispute. I move to the second issue and it is whether PW3, Samuel Lawal. a Legal practitioner from the Chambers of Amuka, Lawal and Co. can tender the exhibit.
Learned counsel for the appellant submitted that he cannot do so in the light of section 170 of the Evidence Act, 1900. The section provides in part:
“(1) No legal practitioner shall at any time be permitted, unless with his client’s express consent, 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 in the course and for the purpose of his professional employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment…”
The operative and functional word in the section is “disclose”. The word means to make known, especially something that has been kept secret, publicly. Disclosure, the noun variant of the word “disclose” means the act of disclosing secret facts. A person can only disclose a fact which is not known to the public. In other words, a person can only disclose facts which are hidden from the public. And public here does act necessarily convey its general unguarded parlance of people in general or for the use of many persons. It could mean for the use of any person. It conveys the opposite meaning of “not private”. What is the position of exhibit 7 in terms of secrecy
Had it the content or quality of secrecy only known to PW3 at the time it was tendered through him
If the answer to the question is in the affirmative, then exhibit 7 is caught by section 170 of the Evidence Act, as PW3, a legal practitioner cannot disclose the contents. It is clear from the proceedings that exhibit 7 was already identified as ID4 in the court. Can there be a better example of a public place than a court of law I think not. PW3 was led to tender ID4 as an exhibit, which he did, and so exhibit 7 came to being. And what is more, PW3 was on subpoena. Let me examine the cases cited by learned counsel for the appellant. I will take them in the order he cited them. The first one is Horn v. Richard (supra). The issue before the court was whether a legal practitioner can swear an affidavit in respect of his client’s case while he is representing the client. Mr. Murray, counsel for the defendant swore an affidavit in respect of security of costs. Counsel for the plaintiff, Mr. Rickett, raised a preliminary objection to the affidavit of Mr. Murray. Holden, J. held that an affidavit sworn by counsel representing a party to the proceedings is unobjectionable in principle provided that it does not by reason of its subject matter offend against the rule that a client’s communications to his counsel are privileged, or the requirement that counsel should not put himself in a position where he may be subjected to cross-examination or in any way enter personally into the dispute. The Judge held per incuriam that the swearing of affidavit by members of the Bar is in the main an undesirable practice and that if counsel alone has the knowledge necessary to swear the affidavit, and the facts to which he is to swear are likely to be in dispute, he should for the purpose of the application withdraw from the case and brief another counsel. In Alfred Cromption Amusement Machines Ltd. v. Customs & Excise Commissioners (1972) 2 Q.B.D. 102, the issue before the court was whether communications between the defendants and their solicitor to obtain advice and in anticipation of litigation to provide evidence and information for arbitration were privileged. Forbes, J. held that the communications were privileged.
In Elabanjo v. Tijani (supra), the plaintiff tendered Ex. C a public notice posted by the defendant on the land in dispute. It was an admission by the defendant that she sold the land in dispute to the plaintiff. It was written by her solicitors, Coker and Coker. The issue before the court was whether Mr. Otukoya, who appeared for the plaintiff, was a competent witness. This court held that all persons are competent to testify, unless the court considers that they are prevented from understanding the question put to them or from giving rational answers to those questions by reason of tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind as provided for in section 154(1) and (2) of the Evidence Act. As counsel to the case did not suffer from any of the disabilities mentioned in section 154 (1) and (2) of the Evidence Act, he was legally a competent witness.
None of the cases is relevant to the issue involved in this case. involved the swearing of affidavit by counsel. There is no such issue in this appeal. The position of the English case of Alfred Cromption Amusement Machines Ltd. is quite different from this case. As the document was marked ID4, there was no privileged communication in view of the fact that the contents were already public property. The case of Elabanjo v. Tijani is against the appellant. I am surprised that counsel cited it. As this court held that counsel, who does not suffer any of the disabilities mentioned in section 154 (1) and (2) of the Evidence Act. is a competent witness, I did not expect counsel for the appellant to cite the case as authority in favour of the appellant.
This is yet another interlocutory appeal which, on a sober and good judgment on the part of counsel, ought to have been avoided and taken after the judgment, if the judgment goes against the appellant. Unfortunately, it is not so as the appeal has come all the way to this court because of the admission of exhibit 7. I cannot blame counsel because the Constitution gives his client the right to appeal and he is perfectly in order to exercise the constitutional right.
Appeal on this matter was filed in the Court of Appeal on 3rd March, 2000. Today is 14th December, 2007. It has taken more than seven years to fight the admissibility of an exhibit, an issue which could have been taken at the end of the case after final judgment. In order to save litigation time and money of litigants, it is my view that all interlocutory appeals must stop at the Court of Appeal. This will involve the amendment of section 241 of the 1999 Constitution. I do not think it is out of place to recall that the Constitutional Debate Coordinating Committee, 1998, under my Chairmanship, which recommendations gave birth to the 1999 Constitution, recommend to the Provisional Ruling Council during the Military Regime of General Abdul Salami Abubakar, that all interlocutory appeals should stop at the Court of Appeal. The Council in its wisdom rejected the recommendation. In view of the fact that the Supreme Court is inundated with interlocutory appeals, which take so much of the time of the court, a situation which results in congestion of the court, it is hoped that the National Assembly will amend section 241 of the Constitution to make the Court of Appeal a final court in interlocutory appeals. That will save so much litigation time. That will save so much money for litigants. That will save the Supreme Court so much time to take final substantive and final appeals. As it is, seven long years are wasted for no reason. I say no more.
In sum, the appeal fails and it is dismissed. I award N 10,000.00 costs in favour of the respondent.
SC.184/2003