BRILA ENERGY LTD v. FRN (2018) LPELR-43926(CA)
PRACTICE AREA: EVIDENCE
Since the coming into force of the Evidence Act, 2011 in which computer generated evidence became admissible, compliance with the requirement for certificate of authentication, as imposed by its section 84(4) thereof, has been one big hurdle.
According to the Act, the certificate is to, among other things, identify the document and describe the manner in which it was produced; give such particulars of any device involved in the production of that document.
The present appeal examines whether the certificate has to be tendered in evidence at all times for the relevant document(s) to be admissible in evidence.
While delivering the leading judgment, SANKEY, J.C.A., stated who can issue an authentication certificate. According to his Lordship, “If an authentication certificate is relied on, it should show on its face that it is signed by a person who, from his job description, can confidently be expected to be in a position to give reliable evidence about the operation of the computer.” He went further to say “From case law, this subsection [Section 84(4)]permits even non-experts to issue such a certificate, especially persons who, though not possessing the required professional qualifications may have acquired some practical knowledge and being in the position described in the subsection to bring him within the definition of an expert.”
On whether the certificate always has to be tendered, SANKEY, J.C.A. held that “where such certificate [certificate of trustworthiness of the computer used in printing the documents] is not produced, it has been held that oral evidence of a person familiar with the operation of the computer can be given of its reliability and functionality; and that such a person need not be a computer expert.”
The Honourable Justice SANKEY, J.C.A went further to hold that “There is no single approach to authentication applicable across board. Instead, the most appropriate form of authenticating electronic evidence will often depend on the nature of the evidence and the circumstances of each particular case. However, such evidence may be authenticated by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence or by circumstantial evidence.”
FACTS IN BRIEF
The Economic and Financial Crimes Commission (the EFCC), based on the Petitions sent to it by the then Minister of Petroleum Resources, Allison Madueke, and some Civil Society organisations investigated some companies, including the Appellant, for fraud subsidy on Premium Motor Spirit (PMS). Upon conclusion of investigation, the Appellant (as 2nd Defendant) and Rowaye Jubril, (the Managing Director and alter ego of the Appellant) as the 1st Defendant were arraigned for trial on a 13 count Charge for obtaining money by false pretences contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, Forgery contrary to Section 467(2) (k) of the Criminal Code Cap.C17, Laws of Lagos State, and Uttering contrary to Section 468 of the Criminal Code Cap. C17, Laws of Lagos State. Both defendants pleaded not guilty and the matter proceeded to trial.
The Respondent (as Prosecution) called twenty witnesses and tendered forty-three exhibits. At the close of the Respondent’s case, the Appellant and the 1st Defendant entered a “No Case Submission”. The no case submission was later overruled by the Trial Court after due consideration and the defendants were asked to enter their defence. Rather than enter defence, the defendants opted to rest their cases on that of the Respondent. In a well considered judgment delivered on March 16, 2017, the trial Court found both defendants guilty on all counts.
The 1st Defendant was accordingly sentenced to ten years imprisonment on the 1st count and eight years imprisonment on counts two to thirteen of the Charge, the terms of imprisonment to run concurrently. The Appellant , on the other hand, was ordered to refund to the Federal Government of Nigeria the sum of N963,796,199.85k (Nine Hundred and Sixty-Three Million, Seven Hundred and Ninety-Six Thousand, One Hundred and Nineteen Naira, Eighty-Five Kobo), being the amount found to have been fraudulently obtained.
The Appellant deprecated the decision of the trial Court thus, he filed this present appeal.
ISSUE(S) FOR DETERMINATION
The following issues were considered for the resolution of this Appeal:
(i) Whether the Learned trial Judge rightly admitted in evidence and relied on the internet print out copy of Lloyds List of Intelligence Report (Exhibit P23-25) as well as the hearsay testimony of PW9 who tendered same in evidence for the purpose of establishing the truth of prosecution’s allegations that the mother vessel, M/T LIMAR was not at the Port of loading and point of transshipment at the relevant times. (Grounds 3, 4 & 5)
(ii) Whether the learned trial Judge rightly or wrongly admitted in evidence and attributed probative value to Exhibit P41 series which were documents made in Greece in Greek language and purportedly translated to English language in order to establish the truth of the allegation of non importation and non STS transfer of the PMS from the mother vessel MT Overseas Limar to 1st daughter vessel Delphina. (Grounds 16, 17, 19 & 23)
(iii) Whether the learned trial Judge was right or wrong to have relied on the hearsay evidence of PW17 and Exhibit P7 to hold that the prosecution proved beyond reasonable doubt the offence of forgeries of 2 (two) Saybolt Concremat documents (pages 25 & 29 of Exhibit P1) against the Appellant (Grounds 10, 20 & 21)
(iv) Whether the learned trial Judge was right when she held that the prosecution proved beyond reasonable doubt the offence of forgeries of 4 Inspectorate Marine Services documents (Exhibit P8) against Appellant. (Ground 11)
(v) Whether the learned trial Judge was right when she held that the prosecution proved beyond reasonable doubt the offence of uttering 2 (two) Saybot Concremat documents (pages 26 & 29 of Exhibit P1) and 4 (four) Inspectorate Marine Services documents (Exhibit P8) against the Appellant. (Ground 12)
(vi) Whether the learned trial Judge rightly or wrongly held that the prosecution proved beyond reasonable doubt the offence of Advance Fee Fraud of N963, 796, 119.85 received as fuel subsidy by false pretence. (Grounds 7, 8, 9, 13, 14, 22 & 24)
(vii) Whether the material and unresolved contradictions in the evidence of the prosecution witnesses (PWs) were sufficient to cast doubt on the guilt of the Appellant. (Grounds 1, 2 & 15)
(viii) Whether the learned trial Judge rightly or wrongly admitted and acted on the irrelevant and highly prejudicial evidence of the Appellant’s Managing Director’s reputation/business relationship as Director and Shareholder of Interral Limited and Ports and Marine Cargo. (Ground 25)
(ix) Whether the failure of the learned trial Judge to consider the evidence of prosecution witnesses which is in favour of the innocence of the Appellant and cast doubt on the prosecution’s case because it elected not to testify in its defence, amounts to a breach of its fundamental right to fair hearing, and has occasioned a miscarriage of justice. (Ground 6)
(x) Whether in the circumstances of this case, the learned trial Judge was right to have ordered the Appellant to make restitution of the entire sum of N963, 796, 119.85 received as fuel subsidy. (Ground 18).
On the whole, having resolved all ten issues against the Appellant, the Appeal was said to be without merit and same was dismissed accordingly. The Judgment of the High Court of Justice, Lagos State, inclusive of the order for restitution of the sum of N963, 796, 19.85k (Nine Hundred and Sixty Three Million, Seven Hundred and Ninety-Six Thousand, One Hundred and Ninety-Nine Naira, Eighty-Five Kobo) to the Federal Government of Nigeria, in Charge No. ID/196c/3012 between The Federal Republic of Nigeria V Rowaye Jubril & Brila Energy Limited, delivered on 16th March, 2017 by Okunnu, J. was affirmed.
- EVIDENCE – ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility of computer generated documents
“It is also settled law that electronic evidence can be made in the ordinary course of business of establishments like banks and corporate bodies. The condition for the admissibility of this kind of evidence is that the maker must have made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely that the transaction was at the time still fresh in his memory. This is also the import of Section 41 of the Evidence Act.
The Appellant has also sought to impugn the integrity of Exhibit 7 contending that the Respondent failed to tender the certificate of trustworthiness of the computer used in printing the documents in compliance with Section 84(4) of the Evidence Act. However, where such certificate is not produced, it has been held that oral evidence of a person familiar with the operation of the computer can be given of its reliability and functionality; and that such a person need not be a computer expert. See R V Shephard (1993) AC 380, where Lord Griffiths on this issue held –
“… therefore answer the certified question by saying that Section 69(1) of the Police Criminal Evidence Act 1984 can be satisfied by the oral evidence of a person familiar with the operation of the computer who can give evidence of its reliability and such person need not be a Computer expert.”
Section 69(1) of the Police Criminal Evidence Act 1984 in the UK is the equivalent of Section of 84 of the Evidence Act, 2011. This condition was satisfied by the testimony of PW17 on oath when he explained the process of how he scanned the emails forwarding the report to him from Saybolt Concremat Brazil, printed them in colour and sent them to EFCC. I therefore have no reason to interfere with the finding of the trial Court in this regard.”Per SANKEY, J.C.A. (Pp. 62-64, Paras. E-B)
- EVIDENCE – ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility of computer generated documents
“It is indeed the law as provided under Section 83 of the Evidence Act, 2011 that in a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document to establish that fact shall only be admissible as evidence of that fact if the conditions contained in paragraphs (a) to (d) thereof are satisfied. Section 84(1) goes on to be more specific on the nature of evidence when it provides inter alia as follows –
“84(1) In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this section are satisfied in relation to the statement and the computer in question.”
By the opening chapeau of this provision, computer generated documents are caught by the admissibility requirements of this provision. The relevant phrase here is “a statement contained in a document produced by a computer.” The draftsman did not leave the meaning of the word “computer” to conjecture. In Section 258(1), the Act defines “computer”. to mean “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”. What this means is the Exhibits P23-25, being computer-generated documents, could only be admissible in evidence upon compliance with the requirements of Section 84 (supra), and not Section 83 (supra). Therefore, the learned trial Judge was right when she relied on the legal maxim – enumeratio unius est exclusio alterius, which means, the specification of one thing is an exclusion of the other. Thus, I also take the view that when it comes to computer-generated documents, the provision of Section 83 has been excluded.
By Section 84(2) of the Evidence Act, 2011, there are four conditions which are required to be satisfied in relation to the document and computer in question –
- That the statement sought to be tendered was produced by the computer during a period when it was in regular use;
- That during the period of regular use, information of the kind contained in the document or statement was supplied to the computer;
- That the computer was operating properly during that period of regular use; and
- That the information contained in the statement was supplied to the computer in the ordinary course of its normal use.
There is abundant evidence on record to show that PW9, in tendering Exhibits P23 to P25, satisfied these conditions. PW9 testified extensively before tendering the documents and laid the necessary foundation for their admission as e-documents under Section 84 of the Act. Thus, the requisite evidence in relation to the use of the computer was given and they sufficiently established the conditions set out in Section 84(2) of the Act.
Another condition for the admissibility of electronic evidence under Section 84(4) of the Act is the production of an authentication/trustworthiness certificate of the computer used in producing the documents. From case law, this subsection permits even non-experts to issue such a certificate, especially persons who, though not possessing the required professional qualifications may have acquired some practical knowledge and being in the position described in the subsection to bring him within the definition of an expert by the expanded definition of an expert in Oando Nig. Plc V Adijere W/A Ltd (2013) 5 NWLR (Pt. 1377) 374. Whether an expert is competent in his field is a matter for the Court to decide, applying the credibility test after hearing his oral testimony.
Section 84, which is similar to Section 69 of UK PACE 1984, does not require the prosecution to show that the statement contained in the document is likely to be true.
Whether it is likely to be true or not is a question of weight for the Court to decide. Instead, all it requires as a condition for the admissibility of a computer-generated statement/document is positive evidence that the computer processed, stored and reproduced whatever information it received. It is majorly concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. See DPP V Mckeown (1997) 1 All ER 737.
If an authentication certificate is relied on, it should show on its face that it is signed by a person who, from his job description, can confidently be expected to be in a position to give reliable evidence about the operation of the computer. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. See R V Shephard (1993) 2 WLR 102. There is no single approach to authentication applicable across board. Instead, the most appropriate form of authenticating electronic evidence will often depend on the nature of the evidence and the circumstances of each particular case. However, such evidence may be authenticated by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence or by circumstantial evidence.
In the instant case, PW9 tendered Exhibit P22 authenticating the computer she used in accessing the information on Lloyds’ Intelligence List Database and producing the print-outs of the Lloyds Intelligence List Report in the documents admitted in evidence as Exhibits P23-P25.
On the submission of learned Senior Counsel that Exhibit P22 did not satisfy the requirement on the certification of the computer/device in Section 84(2) of the Evidence Act, I beg to differ. From the comprehensive evidence given by PW9, which has already been well stated by the Respondent in his Brief, as well as in the Judgment of the trial Court, Exhibit 22 is a certificate authenticating the computer that was used to down-load and print out the information on the said database. For ease of reference, Exhibit 22 attested inter alia as follows –
“I Olanubi Tolulola of the Economic and Financial Crimes Commission, attached to the Special Team on Petroleum Subsidy (STPS)… to the best of my knowledge and belief state as follows:
- That Lloyds List Intelligence Vessel Movement reports marked as 1-6 was assessed from Lloyds website www.lloydslistintelligence.com between the 5th and 11th of June, 2012 and downloaded into an HP Laptop computer. The computer is regularly used to store and process information related to investigation activities of the Commission.
- Over the period when the document was produced, information of this kind was regularly supplied to the computer in the ordinary course of investigation activities and the said computer was operating properly over that period of time.
- I attest to the information produced as being a true and accurate record of what was produced by the said computer.”
I am of the opinion that this certification is in tandem with the production processes approved by the Supreme Court in Dickson V Sylva (2017) 8 NWLR (Pt. 1567) 167, wherein Galadima, JSC held inter alia thus –
“From the above provisions, it is crystal clear that it is only with respect to the computer that “produces” the document, in this case the DVD (Exhibit P42B) that ought to be certified.”
In addition, under Section 41 of the Evidence Act, 2011, there is an exception to the hearsay rule that relates to electronic evidence when it is a statement made in the ordinary course of business. Also, under the business record exception to the hearsay rule, Section 51 of the Act provides that electronic records regularly kept in the course of business are admissible whenever they refer to a matter before the Court. For ease of reference, the provisions are set out hereunder –
“41. A statement is admissible when made by a person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books, electronic device kept in the ordinary course of business, or in the discharge of a professional duty, or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind, or of a document used in commerce written or signed-by him, or of the date of a letter or other document usually dated, written or signed by him.”
“51, Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.”
It must however be noted that for a document to be admitted as a business record, there must be some evidence of a business duty to make and regularly maintain a record of that type. Such evidence was also adduced through the PW9.
It has also been canvassed by the Appellant that the PW9 was not the maker of the said document referred to as Lloyds’ List which was tendered through her. Again, from the totality of the evidence of the PW9, it is evident that the Lloyds’ List Intelligence report is a business record about the movement of ships worldwide kept by Lloyds and made available to business organizations or individuals who subscribe to it by the payment of prescribed fees. It is therefore admissible under Sections 41 and 51 of the Evidence Act, 2011. Consequently, such a record is an exception to the hearsay rule.
It is also the contention of the Appellant that the said Lloyds’ List is inadmissible in evidence because the PW9 had no personal knowledge of the facts contained in the print-out as she was not the person who uploaded the information on the website on the movement of M/T Overseas Limar, not being an employee and/or officer of Lloyds organization. However, the Lloyds’ Intelligence List, being a business record which is also computer-generated, it is not necessary that it should be tendered through the maker. See Abubakar V Chuks (2007) 18 NWLR (Pt. 1066) 386; Obembe V Ekene (2001) 10 NWLR (Pt.722) 677; & Torti V Ukpabi (1984) 1 SC 370.
Thus, I agree with the learned trial Judge that the Lloyds’ Intelligence List report falls within the category of a business record made in the ordinary course of business of the Lloyds’ organization, and that Exhibit 22 (the certificate of trustworthiness of the computer used by PW9 in producing the Lloyd’s Intelligence report satisfied the requirements in Section 84(2) and (4) of the Evidence Act.”Per SANKEY, J.C.A. (Pp. 20-29, Paras. A-B)
- CRIMINAL LAW AND PROCEDURE – OFFENCE OF FORGERY: Whether a person must be shown to have personally forged a document before he can be convicted for the offence of forgery
“It has also been argued that no evidence was adduced to prove that the Appellant forged the documents and that the signatories of the documents were also not produced. The law is that where a document was used as an intermediate step in the scheme of fraud in which the accused is involved, if it shown that such a document, was false and was presented or uttered by an accused person in order to gain an advantage, an irresistible inference exists that either the accused forged the document with his own hand or procured someone to commit the forgery. It is therefore immaterial who actually forged a document so long as an accused person is a party to the forgery. In Agwuna V AG Federation (1995) 5 NWLR (Pt.396) 418, the Supreme Court per Iguh, JSC held as follows –
“It is certainly not the law that it is only the person who manually writes or signs a forged document that may be convicted for forgery of the document. The position of the law is that all persons who are, participles criminis whether as principals in the first degree or as accessories before of after the fact to a crime are guilty of the offence and may be charged and convicted with [the] actual commission of the crime.”
See also on this Osondu V FRN (2000) 12 NWLR (Pt. 682) 483; & Hassan V Queen (1959) SCNR 520 at 522.”Per SANKEY, J.C.A. (Pp. 76-78, Paras. F-A)
OTHER JUDGMENTS FROM THE COURT
NNAMELE & ORS v. NJOKU & ORS (2018) LPELR-43987(CA)
- ACTION – LOCUS STANDI: Meaning of locus standi; what the court considers in determining whether a plaintiff has locus standi
“Locus standi was one of the issues reserved to be tried in the case as suggested by 9th and 10th Respondents. It was to be resolved at the trial. Locus standi simply denotes the legal standing or capacity of a person to initiate an action in Court to enforce/defend a right or obligation. It is automatically invoked upon locating right or sufficient interest in the subject matter of the litigation. In the case of Ojukwu Vs Ojukwu (2008) LPELR – 2401 SC, the Supreme Court held:
“Going by settled judicial authorities, the term locus standi denotes legal capacity to institute proceeding in a Court of Law. The fundamental aspect of locus standi is that it focuses on the party seeking to get his complaint laid before the Court.”See also Adefulu Vs Oyesile (1989) LPELR – 91 (SC).
And in determining locus standi, the Court must be guided by the Constitutional provisions of Section 6(6)(a) (b) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, as to the judicial powers of the Court to hear and determine disputes between persons or between governments or authorities and any person or body relating to rights and obligations. See Thomas & Ors Vs Olufosoye (1986) 1 NWLR (Pt.18) 669; (1986) LPELR – 3237 SC. And, in determining whether a person has locus standi to sue, as the parties agreed in this appeal, the Court is bound to look at the claims of the Plaintiff to locate his power/right to sue. See Odeneye Vs Efunuga (1990) NWLR (Pt.164) 618; (1990) LPELR – 2208 (SC); Disu Vs Ajilowura (2006) 14 NWLR (Pt.1000) 783; (2006) LPELR – 955 (SC).”Per MBABA, J.C.A. (Pp. 24-25, Paras. D-F)
- JUDGMENT AND ORDER – ORDER OF COURT: Proper order the court would make where the plaintiff lacks locus standi to institute an action
“…I cannot see any of the above, or any likely vice, that can support a claim of abuse of the Court process, in a claim wrongly initiated by a party, who acts in the honest belief that he has a claim to pursue in Court. Where he is adjudged to lack the requisite locus standi to sustain the action, I think the proper order to make, in such circumstance, is to strike out the Suit, not dismissal. See Emezi Vs Osuagwu (2005) 12 NWLR (Pt. 939) 340; Oloriode Vs Oyebi (1984) 1 SCNLR 390; Thomas Vs Olufosoye (1981) 1 NWLR (Pt.18) 669.
In the case of Bamisile Vs Osasuyi (2007) (Supra) the Supreme Court also said:
“Where the Court lacks jurisdiction, the proper order to make is an order of striking out. A dismissal given without hearing the merits of the case is in effect an order of striking out.”Per MBABA, J.C.A. (Pp. 37-38, Paras. D-B)
- JUDGMENT AND ORDER – AWARD OF COST: Principles of law as regards award of cost
“The Issue of award of costs of N200,000.00 and N100,000.00, to the 1st Respondent and 2nd to 8th Respondents, respectively, need not be discussed in full any longer, as the same would amount to academic, exercise, having held that the decision, that led to the imposition of those costs, was unlawful and wrong. The award of those costs was therefore wrongful and in fact excessive.
In the case of Nwawka Vs Adikamkwu (2014) LPELR – 22927 (CA), this Court held:
“…Award of cost, like general damages, is exclusively within the discretion of the trial Court, but the same must be exercised judicially and judiciously. Cost is to indemnify the successful party, and is not meant to be as punishment.”Per MBABA, J.C.A. (Pp. 38-39, Paras. E-C)
- PRACTICE AND PROCEDURE – PRE-TRIAL CONFERENCE: Essence of a pre-trial conference
“The essence of pre-trial is to identify and delineate the boundaries of issues to be tried, at the hearing of the Suit and how to approach the trial by the Court, and after agreeing on the issues to be tried and the direction of the trial, it appears improper, wrong and unfair, in my view, to abandon the hearing of the case of the Plaintiff (the aggrieved) and entertain a technical point, introduced amply by the defence, meant to truncate the hearing of the Plaintiff’s case, and to use it to determine the claim of the Plaintiff, without hearing him on his case! In the case of Adegbuyi Esq. & Anor Vs Mustapha & Ors (2010) LPELR – 3600 CA, the essence of frontloading and pre-hearing was stated – that:
“It affords the parties an opportunity… to object to certain documents at the earliest opportunity, to allow certain documents and/or to concede certain facts or issues, where appropriate.”
See also Onyedebelu Vs Nwaneri & Ors (2008) LPELR – 4793 (CA), where this Court per Saulawa JCA said (particularly in election petitions):
“It may be reiterated that the essence of a pre-hearing session cannot be over emphasized. The process… enables both the Court and parties to scale down the areas of dispute by consenting on the important issues that require full investigation and trial. The process also allows for summary disposal of matters…” See also Ali Vs NDIC (2014) LPELR – 22422 (CA) and Ikeyi Vs Crown Realities Plc (2010) 6 NWLR (Pt.1189) 144, where it was held that the pre-hearing, where successful, “reduces drastically a judges docket, thereby hopefully ensuring speedy conclusion of contested cases.”Per MBABA, J.C.A. (Pp. 22-24, Paras. F-C)
METROPOLITAN ESTATES v. UNION BANK (2018) LPELR-43989(CA)
- APPEAL – FORMULATION OF ISSUE(S) FOR DETERMINATION: Whether more than one issue can be formulated from a ground of appeal and vice versa
“I consider it expedient to resolve the appeal on the issues formulated by the Appellant as the Respondents would appear not to have a thorough understanding of the position of the law regarding issues formulated for the determination of an appeal; when having first distilled, its issue 1 from grounds 1 and 2 in the notice of appeal, again proceeded to distill its issue 2 from ground 2 in the notice of appeal. The position of the law in my considered view is settled to the effect that, while it is in order that an issue for the determination of an appeal can be formulated from one or more grounds of appeal, it is not permissible to formulate more than an issue from a ground of appeal.”Per LOKULO-SODIPE, J.C.A. (P. 11, Paras. A-E)
- APPEAL – RECORD OF APPEAL: Duty of an appellant in the compilation of record of appeal from the lower court
“The Appellant in my considered view would appear to have lost sight of the settled position of law to the effect that whether or not the record of appeal was compiled by him, he owed himself the duty to ensure that all materials necessary for the determination of his appeal are contained in the record of appeal or placed before this Court by way of additional record where any material he considered necessary or material for the determination of the appeal is not included in the record. See Order 8 of the 2016 Rules of this Court.”Per LOKULO-SODIPE, J.C.A. (Pp. 62-63, Paras. D-A)
- EVIDENCE – PROOF: What is the best way of proving payment of money into a bank account
“The law certainly is that the “ipsedixit” of a witness can hardly be sufficient proof of payment made to a bank, where the fact of the payment or sum paid is in issue.See in this regard, the case of ISHOLA V. SOCIETE GENERALE BANK (NIG) LTD (1997) LPELR – 1547 (SC) where the Supreme Court per Iguh, JSC; said thus: –
“Having alleged the said payment of N60,000.00 or N64,000.00 plus to the respondent bank, the onus was squarely on the appellant to establish this very material fact by admissible and credible evidence. Payment of money into an account may be proved either by the oral evidence of the person who actually made the payment personally to the bank or by the production of a bank teller or acknowledgement showing on the face of it that the bank had received the payment. This is because a bank teller, duly stamped with the official stamp of the bank and properly initialled by the cashier, constitutes prima facie proof of payment of the sum of money therein indicated and a customer after producing such a receipt needs not
prove more unless the payment is being seriously challenged. See Aeroflot v. U.B.A. (1986) 3 NWLR (Pt.27) 188 at 190.”
See also the case of SALEH V. BANK OF THE NORTH LTD (2006) LPELR – 2991(SC) where the Supreme Court per Musdapher, JSC; (as he then was) said thus: –
“The best way of proving payment of money into a bank account is by production of bank teller or an acknowledgment showing on the face of it that the bank has received the payment. A bank teller duly stamped with the official stamp of the bank and properly initialed by the cashier, constitute prima facie proof of payment of the sum therein indicated and a customer, after producing such a teller or receipts needs not prove more unless payment is being challenged, see Ishola v. S.G.B. (Nig.) supra and Aeroflot v. U.S.A. (1986) 3 NWLR (Pt. 27) 188.” Per LOKULO-SODIPE, J.C.A. (Pp. 80-82, Paras. E-C)
OPARA v. MORECAB FINANCE LTD & ANOR (2018) LPELR-43990(CA)
- APPEAL – UNAPPEALED FINDING(S)/DECISION(S): Whether an appellate Court can disturb a judgment not appealed against
“It is in my considered view however apparent that the Appellant in making some of his submissions has gone further to question the correctness of some of the rulings or orders made by the lower Court in proceedings in the course of the judgment appealed against. I am of the considered view that the correctness or otherwise of such rulings or orders do not properly arise for resolution in this appeal as there is actually no appeal in respect of any of such rulings or interlocutory order(s). The law is in my considered view settled that interlocutory appeals should be brought within a specified period after the decisions in the proceedings are made. Also, the law is settled as to how interlocutory appeals can be argued in a substantive appeal or together with a substantive appeal. Against this backdrop, I simply do not see any legal basis to make any pronouncement on the correctness or otherwise of the committal of counsel for the Appellant for contempt; the propriety of the procedure in recalling DW1 suo motu by the lower Court; the correctness of the decision of the lower Court in the rejection of documentary evidence in the form of the Diamond Bank Plc, cheque book; and the correctness of the exercise by the lower Court of its discretion to grant adjournment in the case it entertained, etc. The allegation of the breach of the Appellant’s right to fair hearing in my considered view must be examined against the backdrop of the presumed correctness of the various acts undertaken by the lower Court in the case it entertained. See the case of ISEZUO V. SANNI (2013) LPELR – 21974.(CA).
Hence, 12 facts stated above and which I consider to be very relevant in this appeal.”Per LOKULOSODIPE, J.C.A. (Pp. 43-45, Paras. F-D)
- CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING: Effect of breach of right to fair hearing
“Flowing from all that has been said hereinbefore, is that the appeal must succeed as I have found the lower Court to have violated the Appellant’s right to fair hearing. The other issues formulated for the determination of the appeal by the Appellant and which go to question the correctness of the decision of the lower Court on the merit, therefore go to nought as the proceedings and judgment of the lower Court in the instant case, must by force of law be declared nullities. In this regard see the cases of AFRO CONTINENTAL (NIG) LTD V CO-OPERATIVE ASSOCIATION OF PROFESSIONALS INC (supra) LPELR – 217(SC) and INOGHA MFA V. MFA INONGHA(2014) LPELR – 22010 (SC).”Per LOKULO-SODIPE, J.C.A. (P. 51, Paras. A-D)
- PRACTICE AND PROCEDURE – FINAL ADDRESS: Whether parties to Court proceedings have Constitutional right to address the Court before judgment is delivered in a matter and effect of breach thereof
“The lower Court by doing this in my considered view did not accord the giving of final addresses by parties, the primacy, or pre-eminence, or importance that has in recent times being accorded the same being a constitutional right. See in this regard the cases of OYEKAN V. AKINRINWA (1996) LPELR-2871(SC);ISEZUO V. SANNI (supra); GITTO COSTRUZIONI GENERALI NIGERIA LTD V. ETUK (2013) LPELR – 20817 (CA); and ADEGBOYE V. SALAWU (2013) LPELR-22140(CA) amongst many others. In the instant case, it is not obvious on the face of the record that the lower Court averted its mind at all to the fact that parties were constitutionally entitled to final addresses. The said Court if it had averted its mind to this, and actually appreciated the fact that final addresses by parties is another stage in the hearing of a case, ought to have adjourned for that purpose (given the fact that it proceeded to conclude the Respondents’ case in the absence of the Appellant and his counsel) and directed that hearing notice should issue on the Appellant. The bottom line from all that has been said above, is that irrespective of whether or not the lower Court remanded the Appellant’s counsel to prison for contempt in order to intimidate him and thereby make him lose proper grip of the Appellant’s case and or whether or not the lower Court descended into the arena as alleged by the Appellant, the lower Court has glaringly breached the Appellant’s right to fair hearing having not entertained and disposed of two pending motions (and which are thereby still live in the Court’s case file) and by not affording the Appellant any opportunity to deliver a final address in the case.”Per LOKULO-SODIPE, J.C.A. (Pp. 48-50, Paras. C-A)
Culled from LawPavilion
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