➥ CASE SUMMARY OF:
BUA Int’l Ltd V. Saima (Nig) Ltd (CA/LAG/CV/881/2019, 27 Jan 2023)
by Branham Chima (LL.B.)
➥ ISSUES RAISED
Computer generated document;
Commercial contract;
Dumping of documents on court.
➥ CASE FACT/HISTORY
The summary of the facts of the case now on appeal is that, sometimes in 2012, the Respondent entered into a contractual relationship with the Appellant for the provision of logistics services in respect of the transportation of equipment to the Appellant’s cement factory at Okpella, Edo State. The contract was not in writing but oral. The Respondent commenced the provision of the logistics services to the Appellant in October, 2012 and concluded on 09/04/2015. The contract sum was N1,500,000,000.00. (One Billion Five Hundred Million Naira). Both parties are agreed on the above stated facts. Now the areas of disagreement of the parties as to facts are: According to the Respondent, under the terms of the contract the Respondent was to, on behalf of the Appellant, incur all payments and expenses incidental to the clearing of the Appellant’s equipment from the Tin can Island and Apapa Ports and thereafter transport all said equipment to the Defendant’s factory in Okpella, Edo State. That the Appellant was to reimburse the Respondent for all expenses incurred for and on its behalf, as well as the transportation fee. In addition to the above, it was also agreed that the Respondent would be entitled to charge 5 percent (5%) as administrative fees in respect of the costs incurred in respect of levies, charges and statutory fees paid by it on behalf of the Appellant.
The Appellant, on the other hand, stated that by the terms of the unwritten contract, the Appellant was to make advanced payment of the agreed sum to the Respondent for each of the phases of its trip to the factory and upon receipt and confirmation of payment, the Respondent would transport the equipment to the Appellant’s factory. The Appellant also stated that it directly cleared all its equipment from the Tin Can and Apapa Ports and effected all payments in respect of same, contrary to the Respondent’s claim. That the term of the contract does not include the Respondent acting as a clearing agent for the Appellant.
By a Writ of Summons sealed on 23/06/2017, filed along with Statement of Claim and other originating processes before the High Court of Lagos State (the lower Court), the Respondent, as Claimant, sought against the Appellant, as Defendant, the reliefs listed hereunder: a. The sum of N95,292,343.40 (Ninety-Five Million, Two Hundred and Ninety-Two Thousand, Three Hundred and Forty-Three Naira and Forty Kobo) being the outstanding sum owed to the Claimant, by the Defendant. b. Interest at the rate of 19 percent (being 14 percent, Central Bank of Nigeria’s rate, plus the additional 5 percent interest rate as stipulated in the invoices issued to the Defendant) per annum on the outstanding sum of N95,292,343.40 (Ninety Five Million, Two Hundred and Ninety-Two Thousand, Three Hundred and Forty Three Naira and Forty Kobo) from 16th September 2014 till judgment is delivered and thereafter at the rate of 10 percent per annum from judgment until final liquidation. c. The cost of this action being the sum of N10,000,000.00 (Ten Million Naira).
By a Statement of Defence filed on 24/11/2017, the Defendant, now Appellant, while admitting that there was an oral contract between it and the Respondent for the logistics service of transportation of equipment to its cement factory at Okpella, Edo State, denied being indebted to the Respondent in the sum claimed or any sum at all. At the trial, both parties called a sole witness each and the Respondent tendered documents.
In a considered judgment delivered on 16/05/2019, the lower Court, presided over by Hon. Justice I.O. Akinkugbe (Mrs.), entered judgment in favour of the Claimant/Respondent, in the following terms: i. The Defendant is ordered to pay the sum of N95,292,343.40 (Ninety-Five Million, Two Hundred and Ninety-Two Thousand, Three Hundred and Forty-Three Naira and Forty Kobo) being the outstanding sum owed to the Claimant by the Defendant. ii. Post-judgment interest at the rate of 10 percent is to be paid by the Defendant to the Claimant from the date of this judgment until final liquidation. iii. Costs are awarded in the sum of N500,000.00 (Five Hundred Thousand Naira).
Dissatisfied with this verdict, the Appellant approached this Court with a Notice of Appeal filed on 23/05/2019, predicated on three grounds of appeal.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]
↪️ I. Whether the Respondent (Claimant at the lower Court) discharged the burden of proof required in the case to entitle it to the grant of its principal claim in the action before the lower Court in the sum of N95,292,343.40?
RESOLUTION: IN APPELLANT’S FAVOUR.
[THE RESPONDENT DID NOT MAKE AVAILABLE TO THE COURT A COMPREHENSIVE REPORT ON PAYMENTS MADE BY THE APPELLANT
‘Another worrying aspect of this case is that both parties are agreed that the contract started in August, 2012 and ended in April 2015 and that the amount involved was N1,500,000,000.00. While the Respondent insisted that the Appellant is still owing it N95,292,343.40 of the total sum, the Appellant maintained that it has liquidated the entire contract amount with nothing outstanding. One would have expected that in trying to establish the outstanding indebtedness against the Appellant, the Respondent will tabulate and tender a comprehensive list of logistics services provided; the date it was provided; amount for each of the services provided; payments made, as well as outstanding debt, from the date of commencement of the contract to the date it ended. This will enable the Court, upon a glance of the comprehensive statement of account, to determine the total services provided, the total amount for each of the services, total payments made and what is outstanding against the Appellant, if any. For reasons best known to the Respondent, however, it refused to give a complete list of services rendered and payments made with dates from the beginning to the end of the contract. What the Respondent did was to prepare the statement of account of the alleged indebtedness only, from 21st October, 2014 to 13th April, 2015. What happened since the commencement of the Contract in August, 2012 to September, 2014 was hidden from the Court. How much money was paid to the Respondent by the Appellant since the inception of the contract in 2012 to its termination in 2015, was not made available either to the Appellant or to the Court. Furthermore, a comprehensive statement of account dealing with services rendered and payments made from the inception of the contract up to the end of it, will indicate whether or not payments for the logistics services provided were made in advance, as per the term of the contract, or in arrears, in violation of the term of the contract. All these necessary and relevant materials were not brought before the Court. In such circumstance, it is legally impossible to ascertain the correct outstanding indebtedness, if any, against the Appellant. The lower Court was therefore wrong when it adjudged the Appellant liable to the Respondent in the sum of N95,292,343.40.’
RESPONDENTS DUMPED DOCUMENTS ON THE COURT
‘These two large bundles of documents, covering over 1000 pages were tendered and admitted as Exhibits SN1 and SN2, respectively. In his written statement on oath which he adopted as his evidence before the lower Court, CW1 made a table under paragraph 11 thereof which, according to him, illustrates the basis of the Appellant’s indebtedness to the Respondent. The table occupies pages 185 – 191 of the Record. The table in itself is not self-explanatory. Evidence is required to explain it, but no further explanation was made as regards the entries in the table in the entire witness deposition of CW1. When CW1 was administered oath to testify before the lower Court, he merely adopted his written depositions and identified the bundles of document. After they were admitted as Exhibits SN1 and SN2, CW1 was not led to speak to the documents, he did not expatiate on them, especially the statement of account and the invoices which form the nucleus of the Respondent’s claim. Counsel who led CW1 in evidence did not ask him any question concerning the table in paragraph 11 of his evidence or the bundles of documents tendered by him in evidence, neither did CW1 himself volunteer any oral evidence to explain the purport of the bundle of documents tendered through him. The net result is that the documents marked as Exhibits SN1 and SN2 were dumped on the Court. Recently, I had course to restate the law on dumping of documents on Court in the case of Dayo Famoroti v. Federal Republic of Nigeria (2022) LPELR-57786 (CA) @ 59-60, thus: “Dumping of document simply means that the document was tendered without leading oral evidence to identify and tie it to the specific aspect of a party’s case. The law is that it is not the duty of a Court to conduct secret investigation on a document that is dumped on a Court when the party that tenders it fail to demonstrate its purport in open Court. See PDP v. Alechenu (2019) LPELR-49199 (CA), APGA v. Al-Makura (2016) LPELR-47053 (SC).”’
‘Even where documents are tendered by consent or without objection by the adversary, the necessity of leading oral evidence to explain the purport of the documents and tying them to the case of the party tendering, cannot be obviated. It is not the duty of the Court to link documents tendered to specific areas of the party’s case, when the party himself has failed to do that in open Court. See APGA v. AL-Makura (supra). The Respondent, having failed to demonstrate and tie Exhibits SN1 and SN2 to specific aspect of its case through CW1 and explained in clear terms how the Appellant’s debt balance was arrived at, could not be said to have proved its case. The decision of the lower Court entering judgment for the Respondent is therefore wrong and perverse. On this score, the judgment of the lower Court cannot stand.’
THE STATEMENT OF ACCOUNT TENDERED BY THE RESPONDENT WAS PREPARED IN ANTICIPATION OF PROCEEDING
‘On whether the statement of account, invoices and dispatch notes unilaterally prepared by the Respondent was made available to the Appellant, Respondent’s witness said that some of the invoices and dispatch notes were physically transmitted to the Appellant’s office but when the Appellant later started getting hostile, the Respondent continued to send them via email. The Appellant denied receiving any statement of account, invoices or dispatch notes from the Respondent via email and CW1 was not able to produce evidence of receipt by the Appellant of the statement of account, invoices and dispatch notes sent via email. Secondly, CW1 did not demonstrate and particularize before the trial Court the volume and/or number of the invoices and dispatch notes sent physically to the Appellant and those sent via email. In the face of denial by the Appellant, it is not the duty of the Court to screen through the invoices and bifurcate those sent via hard copies and those transmitted through email. The end result is that the Respondent has failed to prove that the statement of account, invoices and dispatch notes, unilaterally prepared by it, were all brought to the notice of the Appellant before the institution of the action at the lower Court. Further to this, the statement of account contained entries dating back to 21st October, 2014, but was not prepared until 22nd March, 2016. In the meantime, the Respondent averred at paragraph 14 of the statement of claim that as at 29/02/2016, the Appellant’s indebtedness to the Respondent stood at N107,735,736.82. How does the Respondent determine the amount of the indebtedness of the Appellant as at 29/02/2016 when, even by its own showing, the statement of account of 22nd March, 2016, was yet to be prepared? There is inconsistency in the case of the Respondent as regards the statement of account. From the pleading and evidence adduced by the Respondent, the Appellant’s non-payment for logistics services rendered to it allegedly started from October, 2014 and ended in April, 2015. Between April, 2015, when the contract ended, to March, 2016, the Respondent did not deem it necessary to prepare a statement of account until when the alleged Appellant’s refusal to offset the outstanding balance against it persisted. This lend credence to the Appellant’s submission that the statement of account was prepared by the Respondent in anticipation of using it in a proceeding to be instituted against the Appellant.’
‘This section of the Evidence Act prohibits the admission of a document made by an interested person at a time when proceeding is pending or anticipated. Therefore, for a statement to be inadmissible under Section 83 (3) of the Evidence Act, it must be shown that; (i) the statement was made by a party interested in a Court proceeding; (ii) the statement was made at a time when the proceeding was pending or anticipated: (iii) the statement tends to establish a fact which is in dispute in the proceeding. That the Respondent is interested in this proceeding is not in doubt. That the statement of account tendered by the Respondent as part of exhibit SN1 was intended to establish the fact that the Appellant was indebted to the Respondent, is also not in doubt. The only area of dispute is whether the statement of account was prepared in anticipation of or preparatory to filing a legal proceeding in Court. In determining this question, one has to examine the circumstance in which the statement of account was prepared. The Appellant’s indebtedness to the Respondent, as per the Statement of account, started becoming due on 21st October, 2014 and came to an end in April, 2015. Without preparing a statement of account and transmitting same to the Appellant, the Respondent wrote a letter to the Appellant on 29/02/2016, thanking it for making a payment of N10,000,000.00, and reminding it of its outstanding indebtedness of N107,735,736.82, less the said N10,000,000.00 paid by the Appellant. Since the Respondent was aware of the alleged outstanding balance against the Appellant and even communicated same to the Appellant vide the letter of 29/02/2016, there was no basis for unilaterally preparing a separate statement of account afterwards in March, 2016, some eleven good months after the contract came to and end in April, 2015, if the intention was not to use it in a likely future proceeding to prove the Appellant’s indebtedness. The Respondent has foreseen that litigation may be inevitable, hence its decision to prepare a formal statement of account to use it to establish the Appellant’s indebtedness to it. In the circumstance, I hold that the statement of account was wrongly admitted in evidence as same is inadmissible by virtue of Section 83 (3) of the Evidence Act, and is accordingly expunged.’]
.
.
.
✓ DECISION:
‘Notwithstanding my last immediate finding above, the resultant effect of the totality of my findings and legal analysis is that this appeal has merit and ought to be, and is hereby allowed. Judgment of the High Court of Lagos State delivered by Justice I.O. Akinkugbe on 16/05/2019, is hereby set aside. In its place, I make an Order dismissing the Respondent’s suit at the lower Court. I make no order as to costs.’
➥ FURTHER DICTA:
⦿ BURDEN OF PROOF LIES ON THE CLAIMANT FIRST
Therefore, the first duty of proving that the Appellant was indebted to the Respondent in the sum of N95,292,343.40 and how that amount was arrived at, squarely rest on the Claimant/Respondent. It is only when that has been proved to the satisfaction of the Court, that the Defendant/Appellant would be required to lead evidence in rebuttal or in proof of his opposing position. Until the onus of proof cast on the Claimant by law is discharged, the onus does not shift. In other words, it is after a Claimant has proved his case that the burden of proof will shift to the Defendant. See Buhari v. Obasanjo (2005) 2 NWLR (Pt.910) 241; CPC v. INEC and Ors (2011) LPELR-8257 (SC); Ohochukwu v. A.G. Rivers State and Ors (2012) LPELR-7849 (SC); Mbanefo v. Agbu and Anor (2014) LPELR-22147 (SC); Okoye and Ors v. Nwankwo (2014) LPELR-23172 (SC). — M.I. Sirajo JCA.
⦿ DOCUMENT MADE IN ANTICIPATION OF PROCEEDING PENDING
Now Section 83 (3) of the Evidence Act provides: ‘Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.’ This section of the Evidence Act prohibits the admission of a document made by an interested person at a time when proceeding is pending or anticipated. Therefore, for a statement to be inadmissible under Section 83 (3) of the Evidence Act, it must be shown that; (i) the statement was made by a party interested in a Court proceeding; (ii) the statement was made at a time when the proceeding was pending or anticipated: (iii) the statement tends to establish a fact which is in dispute in the proceeding. — M.I. Sirajo JCA.
⦿ SIMPLE DOCUMENTS MADE FROM COMPUTERS ARE NOT COMPUTER-GENERATED DOCUMENTS TO SATISFY SECTION 84
The law is settled that for any evidence generated by a computer to be admissible in evidence, it has to comply with the provisions of Section 84 (2) of the Evidence Act. See Dickson v. Sylva and Ors (2016) LPELR-41257 (SC). Exhibits SN1 and SN2 comprises of statement of account, invoices for services rendered and dispatch notes. These are documents that were produced from a computer, but do they qualify as computer-generated documents simply because the tool used in their production is a computer? The answer is an emphatic No. Simple documents made from a computer which do not have to go through complicated data processing and online communication with another or other computing device(s), such as letters, reports, affidavits, Court processes, etcetera, are not computer-generated evidence that must satisfy the conditions stipulated in Section 84 (2) of the Evidence Act before they are admitted in evidence. Therefore, the invoices, dispatch notes and statement of account are not computer-generated evidence that must satisfy the conditions in Section 84 (2) before they can be admissible. I am fortified on this view by the recent decision of the Supreme Court in Attorney-General of the Federation v. Anuebunwa (2022) LPELR-57750 (SC), where the Court held: “These documents are three original letters and one original affidavit. These are not computer-generated documents. The wordings of Section 84 of the Evidence Act 2011 do not contemplate that before an original official letter is tendered and admitted in evidence, the party tendering same must satisfy the conditions in the provision. Neither does the provision envisage same where the admissibility of an original affidavit is in issue. It would be ridiculous to assume that a document which was typed using a computer is a computer-generated document. For example, it is the algorithm or data imputed by a Bank Officer into the bank’s database that generates the various information on the statement of account of a customer. That Bank Statement is a computer-generated document which has to be certified by the officer to ensure that no one illegally or without authorization tampered with the source data as officially imputed in the computer. Also, the certification must include that the computer was operational or in good working order when the document was generated.” — M.I. Sirajo JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Muhammad Ibrahim Sirajo, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
Dr. S.A. Adesanya with Olanrewaju Awe.
⦿ FOR THE RESPONDENT(S)
Wande Esan Esq.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ MEANING OF DUMPING OF DOCUMENTS
Dayo Famoroti v. Federal Republic of Nigeria (2022) LPELR-57786 (CA) @ 59-60, thus: “Dumping of document simply means that the document was tendered without leading oral evidence to identify and tie it to the specific aspect of a party’s case. The law is that it is not the duty of a Court to conduct secret investigation on a document that is dumped on a Court when the party that tenders it fail to demonstrate its purport in open Court. See PDP v. Alechenu (2019) LPELR-49199 (CA), APGA v. Al-Makura (2016) LPELR-47053 (SC).”
➥ REFERENCED (OTHERS)