CHIEF ARIKPO USANI OMINI v. CHIEF UBI ENO

Before Their Lordships

N.S. NGWUTA Justice of The Court of Appeal of Nigeria

JEAN OMOKRI Justice of The Court of Appeal of Nigeria

THERESA N. ORJI-ABADUA Justice of The Court of Appeal of Nigeria

Between

CHIEF ARIKPO USANI OMINI Appellant

AND

CHIEF UBI ENO Respondent

……………………………A……………………………

THERESA NGOLIKA ORJI-ABADUA, JCA: This is an appeal against the ruling delivered on the 20th June, 2005 by Ikpeme J, sitting at the Ugep Judicial Division of the High Court of Cross River State. The facts of this case are that following the demise of Ofem J., who had previously conducted hearing in Suit No. HUG/48/97 between the parties in this appeal and in respect of the same subject matter, and, due largely to the frailty and old age of the 1st Plaintiff, the 1st Plaintiff then presented an application before, Akon B. Ikpeme J., and before whom the said suit commenced de novo and thereupon prayed the Court for an order that the evidence given in the proceedings in the same suit, being commenced de novo, by the Plaintiff/Applicant as P.W.1 in the earlier stage of the proceeding be taken as the truth of the facts which it states, and be taken as the evidence of the said P.W.1 at the new stage of the proceedings now commenced de novo.

After considering the submissions of learned Counsel for the parties, the learned trial Judge declined the Appellant’s application, hence this appeal which was founded on three grounds.

In compliance with the Rules of this Court, the parties filed and exchanged their Briefs of Argument including the Reply Brief filed by the Appellant.

In the Appellant’s Brief of argument, two issues were distilled for determination. They are:-

“(1) Whether the learned trial judge did not exercise his discretion judicially and judiciously when he refused the application to admit the evidence of P.W.1 in the previous stage of the proceeding as his evidence in the current stage, relying, as he did suo motu, on section 91 (3) of the Evidence Act, when both parties contested the application on section 92 (1) of the Act. (This issue emanates from ground 1, and the alternative in that ground).

(2) Whether the admissibility of Exhibit A1 comes within; the exception to the rule in section 91 (3) of the Evidence Act precluding the admission of documents during the pendency of proceedings, and if so, whether there is sufficient evidence before the court to grant the application; as prayed. (This issue emanates from grounds 1 and 2 of the grounds of appeal)”.

It is apparent from the foregoing, that no issue whatsoever was propounded from ground NO.3, and as such, it is hereby deemed abandoned.

……………………………B……………………………

In respect of issue NO.1, learned Counsel for the Appellant, O.U. Oka Esq, explained that the application at the lower Court was made in pursuance of section 34 (1) of the Evidence Act, to admit the evidence tendered by P.W.1 in the proceedings before the former Court, as his evidence in the later proceedings which started de novo before Ikpeme J. In the affidavit in support of the application, particularly at paragraphs 12-16, P.W.1 averred how old age and physical infirmity arising from ill health had made: it impossible for him to testify for the second time before the new Court. He was always incoherent, had impaired hearing, his state of health terribly deteriorated, and it would be a trauma subjecting him to the rigours. Counsel stressed that the affidavit evidence of the Appellant, which was never debunked, satisfied the requirements of section 34 (1) of the Act. He submitted that after his testimony in chief, he was fully cross-examined by the adverse party, that the proceedings were between the same parties and the subject matter of the suit same. Counsel stated that the Appellant furnished Exhibit A1 being the medical report and clearly explained his actual state of health. He had severe osteoarthritis and cardiac failure with associated swollen feet and was confined within his premises. He stated that section 34 (1) of the Evidence Act was an exception to the Best Evidence Rule. He cited the cases of Sanyolu vs. Coker (1983) 3 S.C 124 at 154-155, 157, Shanu vs. Afri Bank Plc (2003) FWLR (Pt. 136) 823 at 835, and then pages 52, lines 3-13 and 53 lines 2-4 of the records of appeal and submitted that the learned trial Judge declined to admit Exhibit A1 on wrong principles of law and misapprehension of the facts of the case.

He contended that the trial Court suo motu decided that Exhibit A1 came within the purview of section 91 (3) of the Evidence Act, without calling on Counsel on both sides to address it on it, since section 91 (3) of the Evidence Act was never in contention but section 92 (1) of the Act. He stated that the Court further held that the making of Exhibit A was not contemporaneous within the Applicant’s illness.

Learned Counsel in his submission referred to the New Webster’s Dictionary of the English Language, International Edition, page 210 where the word, “contemporaneous” was defined as “Living, happening at the same time, covering the same period of time”. He stated that it was after the Principal Medical Officer Grade I, in charge of the General Hospital Ugep, examined P.W.1 and noting his state of health, that he issued Exhibit Al. Counsel submitted that since the report on the illness of P.W.1 was made when he was still ill and the illness was continuing, the report would be accurate and, it ought to have had much weight attached to it as envisaged by section 92 (1) of the Evidence Act except there was any concealment or misrepresentation of facts. Section 92 (1) of the Evidence Act deals with the weight to be attached to such document and not its admissibility. He stated that the two terms have different legal connotations and will not be used interchangeably as the trial Court appeared to have done. Learned Counsel submitted that the said Exhibit A1 is an exception to the rule in section 91 (3) of the Evidence Act because it was never alleged to have been made by a person interested at the time when proceedings were pending or anticipated, and it was never so made. He cited the case of Susano Pharmaceutical Co. Ltd vs. Sol Pharmaceutical Ltd (2000) FWLR (Pt.l0) 1595 at 1598 ratios 7 and 8 and argued that Exhibit A1 is therefore admissible. He then urged the Court to resolve issue No. 1 in favour of the Appellant.

……………………………C……………………………

With regard issue No.2, Counsel contended that the trial Court ought to have considered the provisions of section 91 (4) of the Evidence Act since Exhibit A1 was not made by P.W.1. He argued that it was wrong for the trial Court to have held that P.W.1 made Exhibit Al and then based on it to exclude its admissibility. He stated that Exhibit A1 was made by a person who was not personally interested in the outcome of the proceedings and was therefore admissible by virtue of the decision in Susano Pharmaceutical Co. Ltd vs. Sol Pharmaceutical Ltd (supra). He finally submitted that there was sufficient evidence for the lower Court to have granted the application and ordered that all exhibits admitted through P.W.1 by both parties be admitted with his previous evidence as his evidence in the current proceedings., He then urged the Court to allow the appeal or order the admission of Exhibit A with all the Exhibits admitted through P.W.1.

The Respondent for his part distilled only one issue for determination thus:

“Whether on the totality of the affidavit evidence before the lower Court, the refusal by that Court of the application to take the evidence of PW1, Chief Square Ofem Omini, then a life, and healthy, given in an earlier stage of the proceedings before another Judge, as the truth of the facts stated in the later stage of the proceedings, taken de novo would be said to amount Or constitute an improper exercise of judicial discretion”.

The learned Counsel for the Respondent, Eno 1. Ebri Esq, in his submissions, stated that in considering an application under section 34 (1) of the Evidence Act, the Court must consider whether the witness is dead, or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party or his presence cannot be obtained without an mount of delay or expense which in the circumstance of the case is unreasonable. He contended that the Appellant did not satisfy the requirements of section 34 (1) of the Evidence Act and that by the authority of Shanu vs. Afri Bank Nig. Plc (2003) FWLR P. 836 holding 15, such evidence of P.W.1 is inadmissible.

He stated that the learned trial Judge exercised his discretion judicially and judiciously in refusing the Applicant’s application. He argued that the Applicant failed to satisfy the Court that the witness was incapable of giving evidence. He further stated that the argument of Counsel for the Appellant that both Counsel ought to have been given the opportunity to address the court on the provisions of section 91 (3) of the Evidence Act is totally misconceived in that the Court is legally at liberty to apply any law, both case law and statute law besides those cited by the parties to resolve issues raised before it. He said that Exhibit A1 falls within the scope of section 91 (4), therefore, it was made when the Appellant’s application was pending at the law Court and thereby runs contrary to section 91 (3) of the Evidence Act. He further cited the cases of Magnusson vs. Koiki (1993) 12 SCNJ p. 114 at 118, University of Lagos vs. Aigoro (1985) 1 SC p. 265 at 271- 273, Bank of the North ltd vs. Adegoke (2007) 29 WRN p. 55 at 271 holding 2 and Ola vs. Williams (2002) 4 WRN p. 77 at 78 holding 1 and submitted that if judicial discretion is properly exercised, the appellate Court will not interfere with it.

……………………………D……………………………

I have also noted the points made in the Appellants’ Reply Brief.

It is pertinent to note that under section 34 (1) of the Evidence Act, evidence given by a witness in a judicial proceeding or before any person authorized by law to take evidence may be relevant for the purpose of proving in subsequent judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts it states if any of the following circumstances exists;

(i) if the witness is dead, or

(ii) cannot be found, or

(iii) is incapable of giving evidence, or

(iv) is kept out of the way by the adverse party, or

(v) when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable.

However, for the proceeding to be admitted, the following conditions must be fulfilled;

(a) that the proceeding was between the same parties or their representatives in interest.

(b) that the adverse party in the first proceeding had the right and opportunity to cross-examine, and

(c) that the questions in issue were substantially the same in the first as in the second proceeding.

In Shanu vs. Afri Bank (Nig.) Plc (supra) or (2002) 17 NWLR Part 795 p. 185, it was stated that in the case of a witness who is not dead, apart from compliance with the conditions stated in (i), (ii) and (iii) above, it must be clear that the Court considers unreasonable the amount of delay or expense in obtaining his presence. The three conditions are not disjunctive and must be complied with strictly before admission into evidence.

It should be noted that unlike the situation in Shanu vs. Afri Bank (Nig.) Plc (supra), where the Applicant swore personally to the affidavit in support of the motion for admitting the evidence of the Plaintiffs and their witnesses including that of himself and the Defendants and their witnesses, the affidavit in support of the motion filed at the lower Court in respect of this matter was deposed to by Otu Uket Oka Esq, the Plaintiff’s Solicitor.

In Shanu’s case, the 1st Plaintiff/1st Appellant who testified before the previous Court in the previous proceeding before Obi J., was alive and present in the subsequent Court before Edokpayi J. It was then held that such evidence will not be allowed where the witness is alive and present in Court.

In the instant appeal, it was averred at paragraphs 12, 14 and 15 of the affidavit in support of the motion thus:

“12. That the Applicant, by virtue of his old age and physical infirmity brought about by ill-health is incapable of giving evidence again.

14. That the thoughts of the Applicant in answering questions are no longer coherent as before, his hearing greatly impaired and his speech completely inaudible and inarticulate.

……………………………E……………………………

15. That to bring him here and expect him to give evidence again: in this matter would cause undue amount of delay and avoidable expense in that the Court may find it necessary to install an

electronic audio system each time the trial commences for witness to be heard or for him to hear”.

Then the Defendant at paragraphs 7 and 8 of his Counter-affidavit debunked the said facts thus;

“7. That paragraphs 11, 12, 13, 14 and 15 of the affidavit in support of the motion on notice are vehemently denied. That the Plaintiff holds and addresses meetings almost on daily basis at Aneja

Community and Ugep in general.

8. That there would be no need to install an electronic audio system as the Plaintiff is fit to attend Court and speak clearly and audibly.

That there would be no delay by hearing the matter de novo”.

Following the Defendant’s rebuttal, a further and better affidavit was filed on behalf of the Applicant then furnishing a medical report attached as Exhibit Al in support of their assertions earlier made.

The learned trial Judge in his ruling remarked thus:

“Exhibit A1 was not even made contemporaneously with the illness as stated. It was made after the facts averred to were countered.

That being so, the circumstances bring the issue of the admissibility of Exhibit Al under the purview of section 91 (3) of the Evidence Act.

On or before the 28th October, 2004 when the first affidavit in support was filed, I would have attached more weight to it because then there was no dispute…………Having stated that no weight can be attached to Exhibit Al in the circumstances of this case, I hold that the Applicant has failed to satisfy this Court that the witness is incapable of giving evidence”

It is clear as crystal that Exhibit A1 was not personally made by the Applicant nor authenticated by him but, by a Principal Medical Officer I in the Cross River State Government, Ministry of Health, General Hospital Ugep.

What the Court was invited to do by the Applicant’s application was to decide whether the Applicant’s indisposition would have caused an unreasonable amount of delay in obtaining his presence.

It seems that rather than embracing the correct procedure and considering the admissibility of the evidence given in previous proceedings squarely under the provisions of section 34 (1) of the Evidence Act as envisaged by the law, and applying the right principles of law in the exercise of her discretion, the learned trial Judge deviated and dangled her thoughts around the provisions of section 91 (3) of the Evidence Act and held that A1 which was the medical report made by a different person, was inadmissible because it was not contemporaneously made within the period of the Applicant’s illness.

Common sense dictates that good health is not static and not permanent.

Everybody is not particularly lucky with having good health at all times particularly the elderly. Some beings may be hale and hearty in the morning but wither in the evening or develop serious medical conditions few hours later. No single life or health is guaranteed at anytime in this world, and for, this, I find the learned trial Judge’s reasoning as to the period Exhibit A1 was made extremely absurd and insensitive to the realities of human life on earth.

The learned trial Judge doubted the medical condition of the Applicant, ironically, he is said to be deceased now.

The learned trial Judge in her ruling did not state whether the averments at paragraphs 12, 14 and 15 of the main affidavit in support of the Applicant’s Motion on Notice, which were made before Exhibit A1 was issued, were false.

The Court did not determine those facts, but, rather dissipated her energy on considering the admissibility of the said evidence indirectly under section 91 (3) of the Evidence Act. It did not ask itself whether any of those conditions for the admissibility of that type of evidence under section 34 (1) had been fulfilled by the Applicant.

For the purposes of section 34 (1) of the Evidence Act, a witness is regarded as incapable of being called when he is either;

(1) Dead. The death must be proved, or evidence given, of unsuccessful inquiries, or lapse of time sufficient to raise that presumption.

(2) Insane- If the evidence was taken shortly before the second trial, it is unnecessary to show that the witness was sane when it was taken.

……………………………F……………………………

(3) Seriously ill. If the illness is such that there is no probability of the witness ever being able to attend, the evidence is of course, admissible, so, probably, if it is such as to prevent his attendance within a reasonable time, but, if the indisposition be merely temporary, the proper course is not to admit the evidence but to postpone it.

There was no finding by the trial Court whether indeed the Applicant’s illness was such that rendered him incapable of attending Court within a reasonable time and being incoherent in his speech and not being able to articulate properly.

It is trite law that judicial discretion must be exercised according to common sense and according to justice and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appeal Court to review it.

I may, possibly, mention with regard to argument of learned Counsel for the Appellant that the Court invoked the provision of section 91 (3) of the Evidence Act suo motu without inviting Counsel on both sides to address it on it, that by virtue of section 74 of the Evidence Act, the Court has power in the course of writing judgments or making any decision, to take judicial notice, of all the Statute and Case Laws in Nigeria aside the ones cited by the Counsel, and apply them to the same. Therefore, argument of Counsel in this respect is most unfounded.

I am therefore, of the profound view that the discretion exercised by the learned trial Judge was not judiciously and judicially done, the admissibility of the evidence of the said P.W.1, now deceased was rejected on a wrong principle of law. Accordingly, the issues presented by the parties for determination in this appeal are hereby resolved in favour of the Appellant.

This appeal therefore succeeds. The Ruling of the learned trial Judge is hereby set aside. It is ordered that the evidence of P.W.1 given in an earlier stage of the proceedings now being commenced de novo between the same parties or their representatives in interests and upon which the said P.W.1 was then cross-examined by the Defendant, and, which was in respect of the same subject matter, be admitted as the evidence of the said P.W.1 with all the Exhibits tendered and admitted through him in that proceeding.

I see no reason for ordering that the matter be transferred to another Judge of the High Court of Cross-River State for it to start afresh.

I make no order as to costs.

NWALI SYLVESTER NGWUTA, JCA: I read in advance the lead judgment just delivered by my learned brother, Orji-Abadua, JCA

The witness, whose testimony in the previous proceedings was sought to be tendered in the trial de novo was as a result of old age and failing health, incapable of being called as a witness in the trial de novo within the context of Section 34 of the Evidence Act. The trial court ought to have so decided. I also allow the appeal and adopt the consequential order in the lead judgment.

JEAN OMOKRI ,JCA I had the privilege of reading in draft the judgment just delivered by my learned brother Theresa Ngolika Orji-Abadua, JCAand I entirely agree with the reason and conclusion reached, I agree that the trial judge did not exercise his discretion judicially and judiciously discretion must be exercised according to common sense and according to justice and if there is any miscarriage of justice in the exercise of such discretion, it is within the competence of the Court of Appeal to have it reversed. See Eshenake vs. Gbinije (2006) NWLR (Pt. (61) 228 at 252.

From the averment in paragraphs 12 and 16 of the supporting affidavit in the application brought under Section 34(1) of the Evidence Act, PW1, averred how old age and physical infirmity had made it impossible for him to testify for the second time before the Court presided over by Ikpeme J.

Furthermore there was a medical report, Exhibit “A1” from the Principal Medical Officer in charge of the General Hospital Ugep, who examined PW1, which confirmed that he was ill. There was no good reason to refuse the application for the reception of the evidence of PW1 in a previous proceeding pursuant to the provisions of Section 34 (1) of the Evidence Act. Regard being had to the facts in the instant appeal, the learned trial Judge acted on wrong principles in rejecting the evidence of PW1. There is merit in the appeal and it deserves to be allowed. I also allow the appeal and abide with the consequential orders made in the lead judgment.