IMPACT SOLUTIONS LIMITED & ANOR V INTERNATIONAL BREWERIES PLC

IMPACT SOLUTIONS LIMITED & ANOR V INTERNATIONAL BREWERIES PLC


IN THE COURT OF APPEAL
IN THE AKURE JUDICIAL DIVISION
HOLDEN AT AKURE

ON FRIDAY, 4TH MAY, 2018


Suit No: CA/AK/122/2016

CITATION:

Before Their Lordships:

UZO IFEYINWA NDUKWE-ANYANWU, JCA

MOHAMMED AMBI-USI DANJUMA, JCA

OBANDE FESTUS OGBUINYA, JCA


BETWEEN

IMPACT SOLUTIONS LIMITED
MR. ADEBOWALE WAHAB
(APPELLANTS)

AND

INTERNATIONAL BREWERIES PLC
(RESPONDENT)


PRONOUNCEMENT


A. ACTION
1. Counter-Claim – The position of the law on counter-claim

Lastly, I will proceed to treat issue three. The issue falls within a very narrow compass. It decries the lower Court’s failure to grant the Appellants’ counter-claim. The gravamen of the Appellants’ stance is that since the Respondent filed no defence to their counter-claim, the lower Court ought to have granted it. A counter-claim connotes “a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s 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 Int’l Ltd v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152.

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.

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. Per OGBUINYA, JCA. read in context

B. APPEAL
2. Omnibus Ground of Appeal – What an omnibus ground of appeal connotes

The Appellants chastised the lower Court’s evaluation of evidence in the suit. Put starkly, the Appellants accused the lower Court of improper evaluation of evidence because the judgment was against the 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. Per OGBUINYA, JCA. read in context

3. Interference with Evaluation Of Evidence – Instances it would be a sacrilege for the Appellate court to interfere with evaluation of evidence carried out by the Trial Court

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 Respondent’s 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, see Agbi 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 licence to tinker with properly evaluated evidence.

Against the backdrop of these legal expositions, all the strictures, which the Appellants rained on the lower Court’s evaluation of the evidence, peter into insignificance. It will smell of judicial sacrilege to tamper with an evidential evaluation that is not hostile to the law. Per OGBUINYA, JCA. read in context

C. EVIDENCE
4. Admissibility of Electronic Documents – The position of the law on the forms of evidence that are admissible

To this end, I will kick off with the treatment of issue 1. The kernel of the issue is simple. It quarrels the lower Court’s finding that exhibits A, B, C, D, E, E1, and E2 were admissible in evidence. The Appellants’ chief grievance, that those exhibits including exhibit G, tendered by them, are inadmissible is pegged on the violation of the provision of Section 84 (1) (2) and (4) of Evidence Act, 2011. For this reason, I will, at the expense of verbosity but borne out of necessity, pluck out the provision, where it is ingrained in the statute book, ipsissima verba, thus:

(1) In any proceedings 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 the section are satisfied in relation to the statement and computer in question.

(2) The conditions referred to in Subsection (1) of this section are-

(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say –

(a) Identifying the document containing the statement and describing the manner in which it was produced;

(b) Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;

(c) Dealing with any of the matters to which the conditions mentioned in Subsection (2) above relate, and purporting to signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be state to the best of the knowledge and belief of the person stating it.

Although the extracted provision is wordy, it is, nonetheless, obedient to comprehension. In this wise, the law mandates this Court to employ the literal canon of interpretation of statute, id est, to accord the provision its plain and ordinary meaning without any embellishments by resort to external aids, see Ugwuanyi v. Nicon Ins. Ltd. (2013) 11 NWLR (Pt. 366) 546; Comm. Edu. Imo State v. Amadi (2013) 13 NWLR (Pt. 1370) 133; Amobi v. Nzegwu (2014) 2 NWLR (Pt. 1392) 510; Reg. Trustees, A – O. N. v. Nama (2014) 8 NWLR (Pt. 1408) 1; Saraki v. FRN (2016) NWLR (Pt. 1500). I will pay due obeisance to this legal commandment so as not to fracture the law.

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 (200 ) 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. I will reap from this co-ordinate jurisdiction in the appraisal of the tons of documentary evidence in this appeal.

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. The exhibits have certified true copy embossed on them. In the first place, they are, totally, divorced from being secondary evidence of public documents that require certification, see Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534. 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. In Dickson v. Sylva (2 17) 8 NWLR (Pt. 1567) 167 at 203, the oracular jurist, Nweze, JSC, incisively, stated:

In actual fact, Section 84 (Supra) consecrates two methods of proof, either by oral evidence under Section 84(1) and (2) or by a certificate under Section 84 (4). In either case, the conditions stipulated in Section 84(2) must be satisfied.
See also, Kubor v. Dickson (Supra); Omisore v. Aregbesola (Supra). 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. 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. In the light of this brief juridical survey, done in due consultation with the law, the lower Court, with all due reverence to it, insulted the adjectival law when it overruled the Appellants’ objection to the admissibility of those documents. Indubitably, all the defences, erected by the Respondent to infuse validity into them, fly in the face of the law. In due fidelity to the law, I will ostracize those documents from the appeal. Consequently, exhibits A, B, C, D, E, E1, E2 and G, wrongly received in evidence by the lower Court, are discountenanced. Per OGBUINYA, JCA. read in context

5. Evaluation of Evidence – The primary duty of evaluation of evidence placed on the trial Court and how to discharge the burden

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. Per OGBUINYA, JCA. read in context

6. Hearsay Evidence – How the evidence of a corporate personality cannot be labeled hearsay evidence

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.
The Appellants’ assertion is that since the PW1 was not present at the venue of drilling the boreholes, his evidence is inadmissible hearsay. I have consulted the record, the bedrock of the appeal, particularly at the residence of PW1’s evidence-in-chief and cross-examination which colonize pages 9-12 and 84-88 thereof respectively. I have perused them with the finery of a toothcomb. Admirably, they do not harbour any ambiguity. I am unable to locate, even with the eagle eye of a Court, where it is recorded that the PW1 was absent from the locus contractus/delicti. 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, see Orugbo V. Una (2002) 16 NWLR (Pt. 792) 175; Ogidi V. State (2005) 5 NWLR Pt. 918) 286; O. O. M. F. V. N. A. C. B. Ltd. (2008) 12 NWLR (pt. 1098) 412; Ekpemupolo V. Edremoda (2009) 8 NWLR (pt. 1142) 166; International Bank Plc. V. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo V. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Akanbi V. Oyewale (2009) ALL FWLR (Pt. 456) 1922; Offor V. State (2012) 18 NWLR (Pt. 1333) 421; Adegbuyi V. APC (2015) 2 NWLR (Pt. 1442) 1, Brittania – U (Nig.) Ltd. V. Seplat Pet Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; PDP V. Umana (No.2) (2016) 12 NWLR (Pt. 1526) 307. This constitutes a serious coup de grace in the Appellants’ view point.

That is not all. In the eyes of the law, PW1’s evidence cannot be categorized as hearsay. 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. [1985] 2 NW R (Pt. 5) 116; Anyaebosi v. R. T. Briscoe (Nig.) Ltd. [1987] 3 NWLR (Pt. 59) 84; Chief Igbodim and Ors. V. Chief Ugbede Obianke (1976) 9-10 SC 178, 187 etc.

See also Kate Enterprise Ltd v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116; Saleh v. Bank of the North (2006) 6 NWLR (Pt. 976) 13 NWLR (Pt. 1581) 52, Interdrill (Nig.) Ltd. v UBA Plc (2017) 13 NWLR (pt. 1581) 52. 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 PW1’s 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. Flowing from the foregoing, I dishonour the Appellants’ enticing invitation to crucify PW1’s evidence on the undeserved altar/shrine of evidential hearsay for want of legal justification. Per OGBUINYA, JCA. read in context

7. Cross-Examination – Admitted facts don’t need any proof

Another grouse invented by the Appellants against the decision borders on the functionality of their equipment for performance of the contract. Their standpoint is clear: that they never supplied information to the Respondent on the strength of their machinery. In this wise, I am propelled to revisit the record: the bible of the appeal. At page 93, lines 27-31, DW1, under the crucible of cross-examination, responded:

I replied Mr. Senge e-mail and gave him the impression that I understand (sic) all the technical details he stated in his correspondence. Mr. Senge was specific about whether I had the requisite equipment to carry out the borehole work. I assured him that I had the equipments. 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.

These responses, garnered from DW1, the Appellants’ star and only witness, are deeply rooted in the province of admission. 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”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. By dint of this undiluted admission, the Appellants, by their own ipse dixit, agreed, in toto, that they possessed appropriate machinery for doing the job. In the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Al-Hassan v. Ishaku (Supra); Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 542; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499. The lower Court, acting ex debito justitiae, merely endorsed the admission which binds the Appellant in law. In effect, the Respondent proved that the Appellants made undertakings that they owned viable equipment to execute the contract. The lower Court’s finding on this point is unassailable. Per OGBUINYA, JCA. read in context


LEAD JUDGMENT DELIVERED BY OGBUINYA, JCA


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.

The facts of the case, which transfigured into the appeal, are submissive to brevity and simplicity. In Respondent’s 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 and tabled against the Appellants, jointly and severally, the following reliefs.

1. Five Million, One Hundred and Sixty – Six Thousand Naira (N5, 166, 000.00) being the sum paid by the Claimant to the Defendants as 60% cost for the drilling of two boreholes which the Defendants have proved unable to do.

2. Seven Hundred and Fifty Thousand Naira (N750,000.00) being solicitors fees paid by the Claimant to its solicitors for the conduct of these proceedings on its behalf.

3. Cost of this action assessed at (Two Hundred and Fifty Thousand Naira (N250, 000.00)

As expected, the Appellants joined issues with the Respondent and denied liability. They asserted that they had functional machines to perform the task, but the Respondent did not allow them to work and cancelled the contract. They claimed to have made expenses before the termination of the contract. As a result, they counter-claimed as follows:

1. A declaration that the claimant breached the contract of borehole drilling project against the contractual right of the Defendants;

2. N10 Million damages in lieu of the breach of the said contract;

3. N2 Million as cost of the action at defending the suit brought against the Defendants.

Following the rival claims, the lower Court had a full-scale determination of the case. In proof of its case, the Respondent fielded one witness and tendered documentary evidence: exhibits A-F1. In disproof of their case, the Appellants called a witness and tendered documentary evidence: Exhibits G and H. 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 Respondent’s 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. Hence, on 4th March, 2016, they lodged 2-ground notice of appeal seen at pages 114 and 115 of the record. Subsequently, the Appellants, with the leave of Court, filed an 8-ground amended notice of appeal on 29th July, 2016 and which was deemed properly filed on 18th January, 2017, and prayed the Court for: “An order setting aside the judgment of the lower Court dated 29th February, 2016 and substituting thereof an order dismissing the Claimant’s suit against the Defendants.” Thereafter, the parties filed and exchanged their briefs of argument in line with the rules governing the hearing of civil appeals in this Court. The appeal was heard on 19th March, 2018.

During its hearing, learned counsel for the Appellants, A. O. Olatunji, Esq., adopted the Appellants’ brief of argument, filed on 18th January,2017, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the Respondent, Y. Buenyen, Esq., adopted the Respondent’s brief of argument, filed on 2nd February, 2017, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the Appellants’ brief of argument, they crafted three issues for determination to wit:

1. 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.

2. 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.

3. Whether the trial Court was right to have dismissed the Appellants Counter-Claim which was not opposed by the Respondent.

Admirably, the Respondent adopted the issues distilled by the Appellants.

Arguments on the issues.

Issue one.

Learned counsel for the Appellants submitted that exhibits A, B, C, D, E, E1, E2 and G, certified three copies of e-mail messages, were tendered by the parties without verifying certificate as provided by Section 84 of the Evidence Act, 2011. He posited that a Court had a duty to expunge inadmissible evidence from its record. He relied on Orji v. Ugochukwu (2009) 14 NWLR (Pt. 1161) 230; Nwabuoku v. Onwordi (2002) 3 NWLR (Pt. 755) 558; Thompson v. Arowolo (2003) 7 NWLR (Pt. 818) 163; Yaya v. Mogoga (1947) 12 WACA 32. He stated that the lower Court wrongly ruled that those computer-generated evidence were admitted without objection. He referred to Anyaebosi v. R.T. Briscoe (Nig.) Ltd. (1987) 3 NWLR (Pt. 59) 84. He insisted that those exhibits did not meet the conditions in Section 84 of the Evidence Act, 2011 to be admissible. He noted that an appellate Court had the duty to expunge inadmissible evidence admitted without objection in the trial Court because a Court would only act on legal evidence. He cited Yaya v. Mogoga (1947) 12 WACA 32; Ajayi v. Fisher (1956) SCNLR 279; Ipinlaiye II v. Olukotun (1996) 6 NWLR (Pt. 453) 148; Osho v. Ape (1998) 8 NWLR (Pt. 562) 492; Agbaje v. Adigun (1993) 1 NWLR (Pt. 269) 261; Ikenna v. Bosah (1997) 3 NWLR (Pt. 494) 439; Alashe v. Ilu (1965) NMLR 66.

For the Respondent, learned counsel contended that the issue was never raised in the lower Court, but smuggled in the written address. He, in the alternative, stated that those exhibits were all e-mails. He described the meaning and features of e-mails as noted in Wikipedia – an internet encyclopedia. He reasoned that e-mails were not produced by computer and the messages stored on the server not on personal computer. He observed that e-mails would go through immediate e-mail sever before reaching its destination which would make it impossible to access it through personal computer to satisfy the requirement of Section 84 of the Evidence Act, 2011. He asserted that e-mails were not mentioned in Section 84 of the Evidence Act, 2011 and that the doctrine of express mention of one thing excludes the other applied. He maintained that the exhibits were not computer generated evidence. He took the view that the exhibits were admissible under Section 83 (l) (a) of the Evidence Act, 2011.

Issue two.

Learned counsel for the Appellants submitted that an appellate Court would not interfere with a trial Court’s findings except where they were not supported by evidence. He relied on Obisanya v. Nwoko (1974) 6 SC 53; Abubakar v. Nana (1974) 5 SC 83; Ayaa v. Adasu (1992) 3 NWLR (Pt. 231) 598; Kimdey v. Mil. Gov., Gongola State (1988) 2 NWLR (Pt. 77) 445. He noted the lower Court wrongly found that the Appellants did provide information about equipment to be used for the project. He analysed exhibit C and concluded that the Appellants did. He described the finding as perverse. He relied further on exhibit D. He stated that the Respondent’s evidence on the point was at variance with exhibit D. He stated that documentary evidence always served as hanger to resolve conflicting evidence. He cited Fashanu v. Adekoya (1974) 1 NWLR (Pt. 1) 35; Awote v. Owodunni (No. 2) (1987) 2 NWLR (Pt. 57) 366; Bunge v. Gov., Rivers State (2006) 12 NWLR (Pt. 995) 573; Akinbisade v. State (2006) 17 NWLR (Pt. 2007) (sic) 184. He claimed that a party would be bound by a document tendered by him. He referred to Onwudinjo v. Dimobi (2006) 1 NWLR (Pt. 961) 318. He added that admitted fact needed no proof. He cited Okparaeke v. Egbuonu (1941) 7 WACA 53. He persisted that the lower Court’s evaluation of evidence was wrong and should be set aside. He relied on Umar v. Bayero University (1988) 4 NWLR (Pt. 86) 85. He enumerated what a Court should consider in evaluating evidence as noted in Adekunle v. Aremu (1998) 1 NWLR (Pt. 535) 203. He said that evidence of fact not pleaded went to no issue as decided in Emegokwue v. Okadigbo (1973) SC 113. He described the evidence on failure of the Appellants’ vehicle to lift the drilling machine as unpleaded. He stated that, pleadings not traversed needed no proof. He referred to Makanjuola v. Ajilore (2001) 12 NWLR (Pt. 727) 416 and non-traversed pleading in paragraph 16 of the statement of defence. He described paragraphs 23-25 of the Respondent’s witness statement on oath as inadmissible hearsay evidence. He relied onManagement Enterprise Ltd. v. Olusanya (1987) 1 NWLR (Pt. 55) 179;

Section 126 of the Evidence Act, 2011. He concluded that no specific equipment was agreed to be used in the project and the parties were bound by their contract. He cited Evbuomwan v. Elema (1994) 6 NWLR (Pt. 353) 638.

For the Respondent, learned counsel argued, per contra, that the Appellants provided, in exhibit C, the method to be used in drilling the boreholes and not the equipment to be used so that the lower Court was right in its finding. He stated, in the alternative, that even if they provided information on the equipment, those that they mobilised to the site could not perform the task. He explained that the point about equipment was not given in evidence but provided in the address of counsel which could not constitute evidence. He referred to Ucha v. Elechi (2012) 28 WRN 1. He asserted that the parties joined issues on whether the equipment could function enough to perform the task. He noted that the evidence on non-functional equipment was obtained under cross-examination and admissible. He cited Omisore v. Aregbesola (2015) 5-6 SC (Pt. III) 1. He reasoned that the finding of the lower Court on what happened at the site was based on the evidence of what he heard and watched witnesses give and so not perverse. He cited FRN v. Dairo (2015) 1-2 SC 1. He maintained that the parties joined issues on the events that took place at the site. He referred to the pleadings of the parties.

Learned counsel countered the Appellants’ view that the evidence of PW1 was an admissible hearsay because: he was the managing director and chief executive of the Respondent who had authority to speak on its affairs and he was closely involved in transactions. He observed that there was nothing on record to show that he was not at the site on 25th June, 2010.

Issue three.

Learned counsel for the Appellants enumerated the features of a counter-claim. He stated that the lower Court wrongly dismissed the counter-claim because the Appellants’ defence to the claim failed when no defence was filed against it. He posited that the facts and evidence for the claim and counter-claim were interwoven so that there was evidence to consider the latter. He cited Dabup v. Kolo (1993) 12 SCNJ 1. He claimed that the Respondent breached the contract so that the counter-claim should be deemed established as no defence was filed by the Respondent. He relied on Nigeria Housing Development Society Ltd. v. Yaya Mumuni (1977) 2 SC 57. He noted that facts not admitted needed no further proof. He cited Section 123 of the Evidence Act, 2011; Onobruchere v. Esegine (1989) 1 NWLR (Pt. 19) 799; Achimugu v. Minister of FCT (1998) 11 NWLR (Ptt. 574) 467.

On the part of the Respondent, learned counsel submitted that the Appellants did not plead facts nor adopt those in their defence in support of the counter-claim and could not complain of failure to file a defence to the counter-claim. He postulated, in the alternative, that where the statement of claim traversed the counter claim, there would be no need to file a defence against it. He cited Unipetrol v. Bukar (1997) 2 NWLR (Pt. 488) 472. He took the view that the facts of the case represented that situation. He asserted that the counter-claim failed because the main claim succeeded since both were founded on the same set of facts. He referred to Asansike v. Akinleye (2014) 16 WRN 107.

Resolution of the issues.

For the sake of orderliness, I will attend to the issues in their numerical sequence of presentation by the parties. To this end, I will kick off with the treatment of issue 1. The kernel of the issue is simple. It quarrels the lower Court’s finding that exhibits A, B, C, D, E, E1, and E2 were admissible in evidence. The Appellants’ chief grievance, that those exhibits including exhibit G, tendered by them, are inadmissible is pegged on the violation of the provision of Section 84 (1) (2) and (4) of Evidence Act, 2011. For this reason, I will, at the expense of verbosity but borne out of necessity, pluck out the provision, where it is ingrained in the statute book, ipsissima verba, thus:

(1) In any proceedings 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 the section are satisfied in relation to the statement and computer in question.

(2) The conditions referred to in Subsection (1) of this section are-

(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived;

(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say –

(a) Identifying the document containing the statement and describing the manner in which it was produced;

(b) Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;

(c) Dealing with any of the matters to which the conditions mentioned in Subsection (2) above relate, and purporting to signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate; and for the purpose of this subsection it shall be sufficient for a matter to be state to the best of the knowledge and belief of the person stating it.

Although the extracted provision is wordy, it is, nonetheless, obedient to comprehension. In this wise, the law mandates this Court to employ the literal canon of interpretation of statute, id est, to accord the provision its plain and ordinary meaning without any embellishments by resort to external aids, see Ugwuanyi v. Nicon Ins. Ltd. (2013) 11 NWLR (Pt. 1366) 546; Comm. Edu. Imo State v. Amadi (2013) 13 NWLR (Pt. 1370) 133; Amobi v. Nzegwu (2014) 2 NWLR (Pt. 1392) 510; Reg. Trustees, A – O. N. v. Nama (2014) 8 NWLR (Pt. 1408) 1; Saraki v. FRN (2016) NWLR (Pt. 1500). I will pay due obeisance to this legal commandment so as not to fracture the law.

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. 125 ) 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. 460) 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. I will reap from this co-ordinate jurisdiction in the appraisal of the tons of documentary evidence in this appeal.

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. The exhibits have certified true copy embossed on them. In the first place, they are, totally, divorced from being secondary evidence of public documents that require certification, see Kubor v. Dickson (2013) 4 NWLR (Pt. 1345) 534. 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. In Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167 at 203, the oracular jurist, Nweze, JSC, incisively, stated:

In actual fact, Section 84 (Supra) consecrates two methods of proof, either by oral evidence under Section 84(1) and (2) or by a certificate under Section 84(4). In either case, the conditions stipulated in Section 84(2) must be satisfied.

See also, Kubor v. Dickson (Supra); Omisore v. Aregbesola (Supra). 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. 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.

In the light of this brief juridical survey, done in due consultation with the law, the lower Court, with all due reverence to it, insulted the adjectival law when it overruled the Appellants’ objection to the admissibility of those documents. Indubitably, all the defences, erected by the Respondent to infuse validity into them, fly in the face of the law. In due fidelity to the law, I will ostracize those documents from the appeal. Consequently, exhibits A, B, C, D, E, E1, E2 and G, wrongly received in evidence by the lower Court, are discountenanced. In effect, I have no option than to resolve issue one in favour of the Appellants and against the Respondent.

Having dispensed with issue one, I will proceed to settle issue two. The meat of the issue is obvious. The Appellants chastised the lower Court’s evaluation of evidence in the suit. Put starkly, the Appellants accused the lower Court of improper evaluation of evidence because the judgment was against the 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.

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. I have married the decision of the lower Court with the positions of law displayed above with a view to deciphering their infractions or compliance.

It is germane to recall that I had, with the aid of the law, found and declared exhibits A, B, C, D, E, E1,E2 and G inadmissible and excised them from the appeal. There are no extenuating circumstances, availed this Court, that will compel and stimulate me to disturb the solemn finding. The dire consequence of the finding is that those documentary evidence are rendered idle and unusable by this Court. On this score, all the arguments weaved around them come to naught. In effect, they will be disregarded.

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 NW R (Pt. 1513) 38; Opara v A. –G. Fed. (2017) 9 NWLR (Pt. 1569) 61.

The Appellants’ assertion is that since the PW1 was not present at the venue of drilling the boreholes, his evidence is inadmissible hearsay. I have consulted the record, the bedrock of the appeal, particularly at the residence of PW1’s evidence-in-chief and cross-examination which colonise pages 9-12 and 84-88 thereof respectively. I have perused them with the finery of a toothcomb. Admirably, they do not harbour any ambiguity. I am unable to locate, even with the eagle eye of a Court, where it is recorded that the PW1 was absent from the locus contractus/delicti. 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, seeOrugbo V. Una (2002) 16 NWLR (Pt. 792) 175; Ogidi V. State (2005) 5 NWLR (Pt. 918) 286; O. O. M. F. V. N. A. C. B. Ltd. (2008) 12 NWLR (pt. 1098) 412; Ekpemupolo V. Edremoda (2009) 8 NWLR (pt. 1142) 166; International Bank Plc. V. Onwuka (2009) 8 NWLR (Pt. 44) 462; Sapo V. Sunmonu (2010) 11 NWLR (Pt. 1205) 374; Akanbi V. Oyewale (2009) ALL FWLR (Pt. 456) 1922; Offor V. State (2012) 18 NWLR (Pt. 1333) 421; Adegbuyi V. APC (2015) 2 NWLR (Pt. 1442) 1, Brittania – U (Nig.) Ltd. V. Seplat Pet Dev. Co. Ltd. (2016) 4 NWLR (Pt. 1503) 541; PDP V. Umana (No.2) (2016) 12 NWLR (Pt. 1526) 307. This constitutes a serious coup de grace in the Appellants’ view point.

That is not all. In the eyes of the law, PW1’s evidence cannot be categorized as hearsay. 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. [1985] 2 NWLR (Pt. 5) 116; Anyaebosi v. R. T. Briscoe (Nig) Ltd. [1987] 3 NWLR (Pt. 59) 84; Chief Igbodim and Ors. V. Chief Ugbede Obianke (1976) 9-10 SC 178, 187 etc. See also Kate Enterprise Ltd v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116; Saleh v. Bank of the North (2006) 6 NWLR (Pt. 976) 13 NWLR (Pt. 1581) 52, Interdrill (Nig.) Ltd. v UBA Plc (2017) 13 NWLR (pt. 1581) 52. 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 PW1’s 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.

Flowing from the foregoing, I dishonour the Appellants’ enticing invitation to crucify PW1’s evidence on the undeserved altar/shrine of evidential hearsay for want of legal justification.

Another grouse invented by the Appellants against the decision borders on the functionality of their equipment for performance of the contract. Their standpoint is clear: that they never supplied information to the Respondent on the strength of their machinery. In this wise, I am propelled to revisit the record: the bible of the appeal. At page 93, lines 27-31, DW1, under the crucible of cross-examination, responded:

I replied Mr. Senge e mail and gave him the impression that I understand (sic) all the technical details he stated in his correspondence. Mr. Senge was specific about whether I had the requisite equipment to carry out the borehole work. I assured him that I had the equipments.

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.

These responses, garnered from DW1, the Appellants’ star and only witness, are deeply rooted in the province of admission. 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”, see Adusei v. Adebayo (2012) 3 NWLR (Pt. 1288) 534 at 558 per Fabiyi, JSC; UBA v. Jargaba (2007) 31 NSCQR 144; Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205; Al-Hassan v. Ishaku (2016) 10 NWLR (Pt. 1520) 230. By dint of this undiluted admission, the Appellants, by their own ipse dixit, agreed, in toto, that they possessed appropriate machinery for doing the job. In the view of the law, an admitted fact does not need any proof, see Our Line v. S.C.C. Nig. Ltd. (2009) 7 SCNJ 358; Jolasun v. Bamgboye (2010) 18 NWLR (Pt. 1225) 285; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; Al-Hassan v. Ishaku (Supra); Jitte v. Okpulor (2016) 2 NWLR (Pt. 1497) 54 ; Cole v. Jibunoh (2016) 4 NWLR (Pt. 1503) 499. The lower Court, acting ex debito justitiae, merely endorsed the admission which binds the Appellant in law. In effect, the Respondent proved that the Appellants made undertakings that they owned viable equipment to execute the contract. The lower Court’s finding on this point is unassailable.

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 Respondent’s 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, see Agbi 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.

Against the backdrop of these legal expositions, all the strictures, which the Appellants rained on the lower Court’s evaluation of the evidence, peter into insignificance. It will smell of judicial sacrilege to tamper with an evidential evaluation that is not hostile to the law. As a result, I will not hesitate to resolve issue two against the Appellant and in favour of the Respondent.

Lastly, I will proceed to treat issue three. The issue falls within a very narrow compass. It decries the lower Court’s failure to grant the Appellants’ counter-claim. The gravamen of the Appellants’ stance is that since the Respondent filed no defence to their counter-claim, the lower Court ought to have granted it.

A counter-claim connotes “a claim for relief asserted against an opposing party after an original claim has been made, that is a defendant’s claim in opposition to or as a set-off against the plaintiff’s 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 Int’l Ltd v. NDIC (2011) 15 NWLR (Pt. 1270) 407; Kolade v. Ogundokun (2017) 18 NWLR (Pt. 1596) 152.

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.

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.

In sum, I resolve issue three against the Appellants and in favour of the Respondent.

It remains to assemble/couple the divergent resolutions of the issues. I resolved issue one in favour of the Appellants and issues two and three against them and vice versa. I am afraid, the Appellants merely scored an empty victory in issue one resolved in their favour. The reason is not far-fetched. Issues two and three, resolved in favour of the Respondent, constitute the keystone of the appeal and, de jure, will define its destiny.

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 Respondent’s 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.

NDUKWE-ANYANWU, JCA

I had the privilege of reading in draft form, the judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA. I agree with his reasoning and final conclusions. I have nothing more to add.

I also dismiss this appeal and abide by all the consequential orders contained in the lead judgment.

DANJUMA, JCA

My lord, Obande Festus Ogbuinya, (JCA), had obliged me a preview of the lead judgment just rendered by him.

A perusal of the said lead judgment, after a thorough study of the record of Appeal and the respective Briefs of Argument filed and exchanged in this appeal, leads me to no destination other than the part of unequivocal and unwavering concurrence with the lead judgment.

The 3 (three) issues posed for determination have been aptly treated and resolved such that I can add nothing more useful than the bit that the wrongful admission of evidence, in this case the inadmissible evidence in the nature of the Exhibits A, B, C, D, E, E2, and G being computer or internet generated evidence that were not authenticated by a certificate under the hand of an expert pursuant to Section 84 (1) (2) and (4) of the Evidence Act 2011 and therefore, its consequential expurgation has not affected the Justice of the decision arrived at the lower Court.

The available evidence on the record of appeal and its proper evaluation and ascription of weight on same was such that, on the balance of probability still tilted the scale of justice in favour of the Respondent/Plaintiff.

Accordingly, the decision appealed against is affirmed and the appeal against it is also dismissed by me.

Appearances:

A. A. Olatunji, Esq. For Appellant(s)

Y. Buenyen, Esq. For Respondent(s)