➥ CASE SUMMARY OF:
Impact Solutions Limited & Anor v. International Breweries Plc (2018) – CA
by “PipAr” Branham-Paul C. Chima.
Court of Appeal – CA/AK/122/2016
➥ JUDGEMENT DELIVERED ON:
Friday, the 4th day of May, 2018
➥ AREA(S) OF LAW
Email as electronic document;
Balance of probability.
➥ PRINCIPLES OF LAW
⦿ COURT OF APPEAL CAN EVALUATE DOCUMENTARY EVIDENCE
By way of prefatory remarks, I must place on record, that documentary evidence form the corpus and integral part of the case. Interestingly, the law, in order to remedy and expel injustice from proceedings, donates concurrent jurisdiction to this Court and the lower Court in evaluation of documentary evidence, see Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634; Olagunju v. Adesoye(2009) 9 NWLR (Pt. 1146) 225; Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Eyiboh v. Abia (2012) 16 NWLR (Pt. 1325) 51; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1354); CPC v. Ombugadu (2013) 18 NWLR (Pt. 1385) 66; UTC (Nig) Plc v. Lawal (2014) 5 NWLR (Pt. 1400) 221; Ogundalu v. Macjob (2015) 8 NWLR (Pt. 1460) 96; Onwuzuruike v. Edoziem (2016) 6 NWLR (Pt. 1508) 215; Ezechukwu v. Onwuka (2016) 5 NWLR (Pt. 1506) 529; C.K. & W.M.C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487. — O.F. Ogbuinya, JCA.
⦿ INHERENTLY INADMISSIBLE EVIDENCE CAN BE EXPUNGED AT ANYTIME
Incontestably, if a party fails to register an objection to the admissibility of a document in the bowel of a trial Court, he is estopped from opposing its admission on appeal. This hallowed principle of procedural law is elastic. It admits of an exception. Where a document is inherently inadmissible, as in the instant case, the rule becomes lame. The law grants a trial Court the unbridled licence to expunge admitted inadmissible evidence at the judgment stage. An appellate Court enjoys the same right so far as the document is inherently inadmissible. The wisdom behind these is plain. A Court of law is drained of the jurisdiction to act on an inadmissible evidence in reaching a decision, see Alade v. Olukade (1976) 2 SC 183; IBWA v. Imano Ltd. (2001) 3 SCNJ 160; Durosaro v Ayorinde (2005) 8 NWLR (pt. 927) 407; Namsoh v. State (1993) 5 NWLR (Pt. 292) 129; Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307; Abubakar v Chuks (2007) 18 NWLR (pt. 1066) 389; Phillips v. E.D.C. & Ind. Co. Ltd. (2013) 1 NWLR (pt. 1336) 618; Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117. — O.F. Ogbuinya, JCA.
⦿ MEANING OF JUDGEMENT AGAINST WEIGHT OF EVIDENCE
A castigation of a decision on the premise that a judgment is against the weight of evidence, invariably couched as an omnibus ground, connotes that the decision of the trial Court cannot be supported by the weight of evidence advanced by the successful party which the Court either wrongly accepted or that the inference it drew or conclusion it reached, based on the accepted evidence, is unjustifiable in law. Also, it implies that there is no evidence, which if accepted, will buttress the finding of the trial Court. Furthermore, it denotes that when the evidence adduced by the complaining appellant is weighed against that given by the respondent, the judgment rendered to the respondent is against the totality of the evidence placed before the trial Court. In ascertaining the weight of evidence, the trial Court is enjoined, by law, to consider whether the evidence is admissible, relevant, credible, conclusive or more probable than that given by the other party, see Mogaji v. Odofin (1978) 3 SC 91; Anyaoke v. Adi (1986) 2 NSCC, Vol. 17, 799 at 806/(1986) 3 NWLR (Pt. 31) 731; Nwokidu v. Okanu (supra) (2010)3 NWLR (Pt. 1181)362; Akinlagun v. Oshoboja (2006) 12 NWLR (Pt. 993) 60; Gov. Lagos State v. Adeyiga (2012) 5 NWLR (Pt. 1293) 291; Oyewole v. Akande (2009) 15 NWLR (Pt. 1163) 11; Agala v. Okusin (2010) 10 NWLR (Pt. 1202) 412. — O.F. Ogbuinya, JCA.
⦿ HOW COURT SHOULD EVALUATE EVIDENCE – CONCEPT OF FACT FINDING
The law has saddled a trial Court, like the lower Court herein, with the primary duty to evaluate relevant and material evidence, both oral and documentary, after hearing and watching the demeanour of witnesses called by the parties in any proceedings having regard to their pleadings. To discharge that bounden duty, a trial Court must show how and why it arrived at its findings of fact and final determination of the issues before it. It has to be cautious and understand the distinction between summary or restatement of evidence and evaluation of evidence which means assessment of evidence and giving them probative value. It appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale. Then, it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies, see Mogaji v. Odofin (supra); Olagunju v. Adesoye (2009) 9 NWLR (Pt. 1146) 225; Oyewole v. Akande (supra); Ayuya v. Yonrin (2011) 10 NWLR (Pt. 1254) 135; Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534; Odutola v. Mabogunje (2013) 7 NWLR (Pt. 1356) 522; Ndulue v. Ojiakor (2013) 8 NWLR (Pt. 1356) 311. — O.F. Ogbuinya, JCA.
⦿ HEARSAY EVIDENCE IS TO HELP COURT AS TO WHAT ANOTHER SAID, BUT NOT ESTABLISH THE TRUTH
One of the remnants of the appellants grouses is against the evidence proffered by PW1. They branded it as inadmissible hearsay. In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In the view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not establish the truth of an event, see Section 37, 38 and 126 of the Evidence Act, 2011; (former Section 77 of the Evidence Act, 2004); Kasa v. State (1994) 5 NWLR (Pt. 344) 269; FRN v. Usman (2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Opara v A. G. Fed. (2017) 9 NWLR (Pt. 1569) 61. — O.F. Ogbuinya, JCA.
⦿ COURTS AND PARTIES ARE BOUND BY THE RECORDS
It is trite, that the Courts and the parties are bound by the record. An appellate Court is not vested with the vires to factor into a record what is not there nor read out of it what is in it. In other words, it must construe the record in its exact content devoid of interpolation or subtraction. — O.F. Ogbuinya, JCA.
⦿ A REGISTERED COMPANY ACTS THROUGH AGENTS
The magisterial pronouncements in these ex cathedra authorizes, with due respect, expose the poverty of the alluring submission of the appellants counsel on the stubborn point. PW1 described himself as the chairman of the board of directors of the respondent. The respondent is a duly incorporated company under the Nigerian Companies and Allied Matters Act. By the registration, it is a persona ficta, a juristic personality which can only act through an alter ego such as its agents or servants, directors, managers, see Kate Enterprise Ltd v. Daewoo (Nig.) Ltd. (supra); Interdrill (Nig.) Ltd. v. UBA Plc. (supra). To label the PW1s evidence as hearsay, as pontificated by the appellants, will be antithetical to the corporate personality of the respondent, a legal abstraction, devoid of blood, flesh, brain and other human features. — O.F. Ogbuinya, JCA.
⦿ IMPORTANCE OF CROSS-EXAMINATION
The appellants, on the footing of their contention ignored the imperativeness of cross-examination in our adversarial system of adjudication. Cross-examination has been described as the noble art which constitutes a lethal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party, Oforlete v. State (2000) 3 NSCQR 243 at 268, per Achike, JSC. Cross-examination if rightly employed, is potent tool for perforating falsehood, Ayan v. State (2013) 15 NWLR (Pt. 1376) 34 at 36, per Fabiyi, JSC. These pieces of evidence, elicited under the cross-fire of cross-examination, are potent and run pari Passau with the ones from evidence-in-chief, see Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583; Akomolafe v. Guardian Press Ltd. (2010) 3 NWLR (Pt. 1181) 338. They belong to the respondent, see Omisore v. Aregbesola (2015) 15 NWLR (pt. 1482) 205. As a matter of fact, the law views evidence procured from the heat of cross examination as more reliable and compelling than the ones oozing out of examination-in-chief, see Adeosun v. Gov., Ekiti State (2012) 9 NWLR (Pt. 1291) 581; Okuleye v. Adesanya (2014) 12 NWLR (Pt. 1422) 321. — O.F. Ogbuinya, JCA.
⦿ MEANING OF ADMISSION IN LAW
In law, admission: is a concession or voluntary acknowledgement made by a party of the existence of certain facts; a statement made by a party of the existence of a fact which is relevant to the cause of his adversary; a voluntary acknowledgment made by a party of the existence of the truth of certain facts which are inconsistent with his claims in an action. — O.F. Ogbuinya, JCA.
⦿ NATURE OF COUNTER-CLAIM
A counter-claim connotes a claim for relief asserted against an opposing party after an original claim has been made, that is a defendants claim in opposition to or as a set-off against the plaintiffs claim, see Maobison Inter-Link Ltd. v. U.T.C. (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 197 at 209, per Ariwoola, JSC. It is settled law, beyond any per adventure of doubt, that a counter-claim is an independent and separate action triable with the main claim for reason of convenience. Like the main claim, it must be proved by the counter-claimant in order to earn the favour of the Court, see Ogbonna v. A.G., Imo State (1992) 1 NWLR (Pt. 220) 647; Nsefik & Ors. V. Muna & Ors. (2013) vol. 12 MJSC (Pt. 1) 116; Anwoyi v. Shodeke (2006) 13 NWLR (Pt. 996) 34; Bilante Intl Ltd v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152. — O.F. Ogbuinya, JCA.
⦿ FAILURE TO FILE A DEFENCE TO A COUNTER-CLAIM MAY NOT BE DAMAGING
Besides, the lower Court declared the respondent victorious in its main claim. In the sight of the law, failure of a plaintiff to file a defence to a counter-claim may not be damaging or disastrous if he succeeds in his claim. The success may afterall render useless the counter-claim, Maobison Inter-Link Ltd. v. U.T.C. (Nig.) Plc. (supra), at 209, per Ariwoola JSC. This, to all intents and purposes, punctures the appellants seemingly dazzling argument on the issue.
➥ LEAD JUDGEMENT DELIVERED BY:
Obande Festus Ogbuinya, J.C.A.
⦿ FOR THE APPELLANT
A. O. Olatunji, Esq.
⦿ FOR THE RESPONDENT
Y. Buenyen, Esq.
➥ CASE FACT/HISTORY
The facts of the case, which transfigured into the appeal, are submissive to brevity and simplicity. In respondents bid to get an alternative source of water supply for its production business, it engaged, through its foreign technical partners BRGM Services France, the service of borehole drilling engineer in France, Mr. Lallier Serge, to provide technical specifications as the base for drilling its borehole. The technical information and data provided by the appellants tallied with those generated by Mr. Lallier Serge who recommended them for the drilling of the respondent’s boreholes. The respondent, after several correspondence between the parties, awarded the contract of drilling two boreholes, located at Oke Ana Ijesha via lwarajo, Osun State, for the sum of N8, 611, 000.00 (Eight Million, Six Hundred and Eleven Thousand Naira) only. The respondent paid to the appellants 60% of the contract sum which was N5, 166, 000 (Five Million, One Hundred and Sixty Six Thousand Naira) on 11th June, 2009 by cheque. The respondent claimed that when the appellants mobilised their equipment to drilling site, in the presence of Mr. Lallier Serge, their machines could not perform the task of drilling the boreholes and completely broke down. Consequently, the respondent terminated the contract. The respondent made several demands for the refund of the sum N5, 166, 000 (Five Million, One Hundred and Sixty Six Thousand Naira) only from the appellants for failure to perform the contract, but to no avail. Sequel to the appellants refusal to repay the sum, the respondent, via a writ of summons filed on 13th January, 2010, beseeched the lower Court.
This appeal is an offshoot of the decision of the High Court of Osun State, sitting at Ilesa (hereinafter referred to as the lower Court), coram judice: W. O. Akanbi. J, in Suit No. HIL/6/2010, delivered on 29th February, 2016. Before the lower Court, the appellants and the respondent were the defendants and the claimant respectively.
At the closure of evidence, the parties, qua counsel, addressed the lower Court. In a considered judgment, delivered on 29th February, 2016, found at pages 97-113 of the record, the lower Court granted the respondents claim of N5, 166, 000 (Five Million, One Hundred and Sixty – Six Thousand Naira) only and dismissed the appellants counter-claim. The appellants were dissatisfied with the decision.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether the trial Court was right to have overruled the objection raised to the admissibility of Exhibits A, B, C, D, E, E1 and E2 in the Appellants Final Written Address in view of the provision of Section 84 (1) (2) (4) of the Evidence Act 2011?
RULING: No – IN APPELLANT’S FAVOUR.
A. THAT THE SAID EXHIBITS WHICH ARE EMAIL EXTRACTS ARE COMPUTER GENERATED DOCUMENTS
“In total loyalty to the dictate of the law, I have given a microscopic examination to exhibits A, B, C, D, E, E1, E2 and G sought to be expelled by the appellants. They are e-mail correspondence/messages exchanged inter parties. They fall, squarely, within the wide definition of document as ordained in Section 258 of the Evidence Act, 2011 because their contents are expressed or described upon any substance by means of letters, figures or marks. They were procured from computer which, according to the definition prescription of Section 258 of the Evidence Act, 2011, denotes any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process, see Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. It stems from these, that the exhibits, in question, are classic exemplification of internet/computer-generated documents.”
B. THAT THE DOCUMENTS DID NOT SATISFY SECTION 84
“Contrariwise, the feuding parties, qua witnesses that tendered them, starved the lower Court of any certificate of authentication of these documents, or the device whence they germinated from, as decreed by the sacrosanct provision of Section 84 (2) and (4) of the Evidence Act, 2011 displayed above.”
“Curiously, the witnesses of the parties, failed in their viva voce evidence/testimonies, wrapped in their statements on oath, failed to comply with the mandatory requirements of Section 84(2) and (4) of the Evidence Act, 2011. The raison d’tre for the satisfaction of the requirements of the sacred provision is to ensure the authenticity of the document and the integrity of the procedure used to bring it into being, Dickson v. Sylva (supra), at 233, per Kekere-Ekun, JSC. The parties flagrant defilement of this inviolable provision is fraught with far-reaching consequence. It renders the documents, wholly, inadmissible. Put simply, their admission by the lower Court is offensive to the adjectival law. It is of no moment that their admission was not greeted with any opposition.”
II. Whether from the evidence before the trial Court, the trial Court was right to have held that the Appellants were the ones who breached the contract for the drilling of the boreholes?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT THE FINDING OF THE LOWER COURT ON THE EVIDENCE IS IMPEACHABLE
“For the purpose of completeness, the lower Court devoted substantial part of its judgment, pages 106-108 of the record, to assessing the evidence of the parties on who, between the contending parties, breached the contract. Its appraisal of the evidence and conclusion, that the appellants breached/violated the contract, are in tandem with the law and, ipso facto, unimpeachable. The lower Court, to my mind, carried out a meticulous and thorough analyses of the evidence, oral and documentary, professed by the feuding parties after assigning them to their respective pans in the imaginary scale of justice. It attached deserving probative weight to the respective evidence offered by the parties. It found that the respondents pan in the imaginary scale of justice hosted more admissible, credible and conclusive evidence. A piece of evidence is credible when it is worthy of belief, seeAgbi v. Ogbeh (2006) 11 NWLR (Pt. 990) 1; Dim v. Enemuo (2009) 10 NWLR (Pt. 1149) 353; Eta v. Dazie (2013) 9 NWLR (Pt. 1359) 248; A. J. Inv. Ltd. v. Afribank (Nig.) Plc. (2013) 9 NWLR (Pt. 1359) 380; Emeka v. Chuba-Ikpeazu (2017) 15 NWLR (Pt. 1589) 345. At once, a piece of evidence is conclusive if it leads to a definite result, see Nruamah v. Ebuzoeme (2013) 13 NWLR (Pt. 1372) 474. The lower Court found that the evidence of the respondent, based on their qualitative nature, preponderated over those of the appellants. I am in total agreement with the unbiased evaluation of evidence conducted by the lower Court. The law does not give this Court the license to tinker with properly evaluated evidence.”
III. Whether the trial Court was right to have dismissed the Appellants Counter-Claim which was not opposed by the Respondent?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT THE APPELLANT DID NOT PLEAD ANY FACT IN HIS COUNTERCLAIM
“Now, the appellants, in the twilight of their statement of defence encased between pages 26-30 of the record, displayed and appended their counter-claim to the main claim. This does not offend the law. In fact, in practice, it is the accepted mode of presentation of counter-claim. Nevertheless, the appellants pleaded no facts before itemizing their reliefs in the counter-claim. Nor did they adopt the ones in the main claim by incorporation. They merely, presented their reliefs therein. In the glaring absence of those facts, which were desiderata for institution of counter-claim, there was nothing for the respondent to file a defence to. In effect, the appellants could not have been deemed as having admitted the counter-claim.”
“On the whole, having resolved issues two and three, the foci of the appeal, against the appellants, the fortune of the appeal is plain. It is bereft of any tinge of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. For the avoidance of doubt, I affirm the decision of the lower Court, delivered on 29th February, 2016, wherein it granted the respondents claim and dismissed the appellants counter-claim. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
⦿ HEARSAY RULE EXCEPTED IN TESTIMONY GIVEN BY ANY COMPANY EMPLOYEE
In Ishola v. Societe Generale Bank Ltd. (1997) 2 NWLR (Pt. 488) 405, the apex Court held: it cannot be over emphasized that a company being a legal person or a juristic person can only act through its agents or servants and any agent or servant of a company can therefore give evidence to establish any transaction entered into by that company. Where the official giving the evidence is not the one, who actually took part in the transaction on, behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence. The fact that such official did not personally participate in the transaction on which he has given evidence may in appropriate cases, however, affect the weight to be attached to such evidence, Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd.  2 NWLR (Pt. 5) 116; Anyaebosi v. R. T. Briscoe (Nig) Ltd.  3 NWLR (Pt. 59) 84; Chief Igbodim and Ors. V. Chief Ugbede Obianke (1976) 9-10 SC 178, 187 etc.
➥ REFERENCED (OTHERS)