BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Shanu v. Afribank Nig. Plc
  • 136
  • 2003-01-06
  • ₦ 200
  • Buy Now

Shanu v. Afribank Nig. Plc

FRANCIS SHANU

NIGERWOLF ORGANISATION LIMITED

V

AFRIBANK NIGERIA PLC

SUPREME COURT OF NIGERIA

SALIHU MODIBBO ALFA BELGORE, JSC ( Presided )

EMANUEL OBIOMA OGWUEGBU, JSC

UTHMAN MOHAMMED, JSC

SAMSON ODEMWINGIE UWAIFO, JSC ( Read the Lead Judgment )

AKINTOLA OLUFEMI EJIWUNMI, JSC

SC. 169/1997

FRIDAY, 21ST JUNE, 2002

ACTION - Cause of action - Issues raised therein - When parties are prevented from fighting same all over again in the same or subsequent proceedings

APPEAL - Appellate court - Errors of court below - Duty of appellate court when considering same

APPEAL - Ground of appeal - Particulars of - Purpose thereof

APPEAL - Ground of appeal - When incomprehensible

APPEAL - Issue - Statutory provision for admitting evidence in a judicial proceeding - Failure to comply therewith - Whether raises question of law

COURT - Appellate court - Errors of court below - Duty of appellate court when considering same

COURT - Court of Appeal - Evidence improperly received by the court below- Duty of Court of Appeal to reject same

COURT - Duty of to do substantial justice

COURT - Inadmissible evidence wrongly admitted thereby - Discretion of to exclude

COURT - Trial Judge - Adjudicatory duty thereof

COURT - Trial Judge - Facts before same  - Determination of

COURT -Trial Judge - Where wrongly received inadmissible evidence Duty thereof to reject same when giving judgment

ESTOPPEL - Issue estoppel - Decision taken by court on an issue in the same process - Whether the court can reverse itself thereon

ESTOPPEL - Issue estoppel - Estoppel per rem judicatam - Bindingness of both on parties and court

ESTOPPEL - Issue estoppel - Exception to the rule thereof

EVIDENCE - Evidence Act, section 34(1) - Application of - Condition precedent thereto

EVIDENCE - Evidence Act, section 34(1) - Conditions thereunder - Compliance with - Onus of proof of

EVIDENCE - Evidence Act, section 34(1) - Purpose of

EVIDENCE - Evidence given by a witness in a judicial proceeding - When relevant in subsequent judicial proceedings - Evidence Act, section 34(1)

EVIDENCE - Evidence given in an earlier proceeding - Where parties are in contravention of section 34(1) of Evidence Act - Whether same can be admitted by consent of parties

EVIDENCE - Evidence improperly received by the court below - Duty of Court of Appeal to reject same

EVIDENCE - Evidence of a witness in a previous proceeding - When same is tendered in a subsequent or at a later stage of the same proceedings

- Statutory requirements for admitting same - Section 34(1) of Evidence Act

EVIDENCE - Evidence of a witness in one judicial proceeding - Whether may be deemed relevant in a subsequent proceeding

EVIDENCE - Evidence taken before another adjudicator - Whether a second adjudicator can act thereupon

EVIDENCE - Inadmissible evidence - Where wrongly admitted by a Judge -  Discretion thereof to exclude

EVIDENCE - Inadmissible evidence - Where wrongly received by trial Judge -  Duty of to reject same when giving judgment

EVIDENCE - Statutory provision for admitting evidence in a judicial proceeding - Failure to comply therewith - Whether raises question of law

EVIDENCE - Witness - Credibility thereof - What determines

PRACTICE AND PROCEDURE - Cause of action - Issues raised therein When parties are prevented from fighting same all over again in the same or subsequent proceedings 

STATUTE - Evidence Act, section 34(1) - Purpose of

Issues:

1.            Whether the Court of Appeal’s decision on the admissibility of exhibit 19 in its final judgment is sustainable.

2.            Whether the Court of Appeal failed to consider several of the complaints of the respondent relating to the evaluation of evidence and if so whether this occasioned a miscarriage of justice.

3.            Whether the Court of Appeal was correct in refusing the respondent leave to raise the issue of admissibility of the previous evidence of the 1st appellant and the defence witnesses having regard to the material before the court and the submissions made to it.

Facts:

The plaintiffs/appellants alleged as per their statement of claim that they imported the sum of US$25,000,000 in 100 dollar bills making 250,000 such bills, on a tanker vessel called MV Botony Trinity which berthed at

Warri Port on or about 29 June, 1983. According to them, the money was paid into the respondent bank [Afribank Nigeria Plc., Warri branch] upon an agreement with the bank to pay the plaintiffs the naira equivalent of N2 per dollar, making a total of N50,000,000. The plaintiffs subsequently, opened a current account into which the sum of N40,000,000 was credited in exchange for US$20 million.  The balance of N10,000,000 was to be credited at a later date “due to insufficient funds” at the time.  The said balance was later said to have been credited.  It turned out that the defendant/ respondent denied any knowledge of the lodgement of 25 million dollars with them.  Consequently, the plaintiffs filed this action against them at the High Court, Benin. Both parties testified, called witnesses and rendered documents at the trial.

On splitting of Bendel State into Edo and Delta States, the trial Judge moved to Delta State and the case was to start de novo before another Judge (Edokpayi, J.)  As Edokpayi was about to start de novo, the plaintiffs/ appellants moved the court in the absence of the defendant and its counsel praying the court inter alia to admit a certified true copy of evidence of plaintiffs and their witnesses and evidence of defendants and their witnesses ( given) before Justice Obi in this suit. The reasons deposed to in the affidavit sworn to by the 1st plaintiff were that Obi, J. had moved to Delta State at the close of evidence of both parties; that the plaintiff’s witnesses were independent workers who were on contract basis and moved from place to place in the cause of their duties and that their whereabouts were unknown and great delay and hardship and expense would be occasioned to bring them to testify again in court. The prayers were granted, the certified true copy of the evidence was admitted in evidence as exhibit 19.

At the conclusion of address by counsel, the trial court found for the plaintiff as claimed and awarded interest on the judgment debt. Dissatisfied the defendant appealed to the Court of Appeal. The Court of Appeal allowed the appeal (with a majority decision of 2 to 1) on the ground that the conditions laid down in section 34(1) of the Evidence Act were not complied with before the admission of exhibit ‘19’ in evidence.

Aggrieved, the plaintiffs/appellants appealed to the Supreme Court. The Supreme Court considered the conditions set out in section 34(1) of the Evidence Act which provides:

34(1)  Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when 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 when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable provided:-

(a)           that the proceedings was between the same parties or their representative 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.”