CORAM

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KARIBI–WHYTE

ADOLPHUS GODWIN KARIBI-WHYTE, JUSTICE, SUPREME COURT

AUGUSTINE NNAMANI, JUSTICE, SUPREME COURT

SALIHU MODIBBO ALFA BELGORE, JUSTICE, SUPREME COURT

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PARTIES

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MRS. ELIZABETH N. ANYAEBOSI APPELLANTS

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R. T. BRISCOE (NIG.) LTD RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The respondent (though substituted) sued the Defendant for sums of money owed, and the appellant counter-claimed. The court found for the respondent and dismissed the counter-claim. An appeal to the court of appeal was dismissed, hence this present appeal.

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HELD

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Dismissing the appeal

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ISSUES

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1. That exhibit P4, being secondary evidence, was admitted in evidence by the trial court contrary to the provisions of section 96 subsection (2) of the Evidence Act. It therefore ought to have been rejected in the judgments of the trial court and the Court of Appeal.

2. That assuming that exhibit P4 was rightly admitted in evidence; it should have been considered inadmissible, later in the proceedings, by virtue of the fact that it was prepared by an interested person in anticipation of the litigation between the respondent and the deceased

3. That the sum of N60,535.10 shown in exhibit P4 as the amount outstanding against the appellant is at variance with the sum of N60,935.10 claimed by the respondent in both its writ of summons and the statement of claim. Judgment should, therefore, have been entered for respondent for the lesser sum of N60,535.10 and not the sum of N60,935.10 it claimed.

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RATIONES DECIDENDI

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ADMISSION OF INADMISSIBLE EVIDENCE

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Where a document, which is inadmissible in evidence, is admitted at trial, such document must be rejected on appeal. However, this rule is not without exception. Certain class of evidence is absolutely inadmissible by virtue of some statutory provisions; while another class is made admissible under certain conditions. In the case of the former class the evidence cannot be acted upon whether it was admitted by consent of the parties or otherwise; and the evidence will be rejected on appeal if it was admitted in the trial court. With regard to the latter class if the conditions laid down for the admission of the evidence are not absolute, as in the former class, then such inadmissible evidence if admitted without objection, the appellant cannot complain against the admission. Per Uwais JSC

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CONCURRENT FINDINGS OF FACTS

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When concurrent findings of facts are made by lower courts such findings will not be disturbed on further appeal to this court unless there are exceptional circumstances to justify doing so. Per Uwais JSC

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CASES CITED

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Kofi v Kofi; 1 WACA 284;

The Stool of Abinabina v Chief Kojo Enyimadu, 12 WACA 171 at p.173;

Enang v Adu; (1981) 11-12 S.C.25 at p.42;

Okagbue v Romaine, (1982) 5 S.C. 133 at p.170;

Lokoyi v Olojo, (1983)8 S.C.61 at p.68;

Ojomu v Ajao, (1983) 9 S.C. 22 at p.53;

Overseas Construction (Nig.) Limited v Creek Enterprises (Nigeria) Limited & Anor., (1985) 3 NWLR 407 at p.413

Onobruchere & Anor. v Esegine & Anor., (1986) 1 NWLR 799 at p.804.

Holman Bros. (Nigeria) Limited v Kojo (Nig.) Limited. & Anor., (1980) 8-11 S.C. 43

re Armstrong (1886-87) 17 Q.BD 521

Ex parte Gilchrist

Ajayi v Fisher, I F.S.C. 97,

Esso West Africa Incorporated v Alli, (1968) N.M.L.R. 414 at p.423

Jacker v International Cable Co. Ltd. (1888) L.T.R. 13

Owonyin v Omotosho (1961) 1 All N.L.R. 304 at p.308;

Yassin v Barclays Bank D.C.O. (1968) 1 All N.L.R. 171 at p.177

Alashe v Ilu (1964) 1 All N.L.R. 390 at p.397

Chukwurah Ekunne v Mathias Ekwunno & Ors. 14 W.A.C.A. 59

Bearmans Ltd. & Anor. v Metropolitan Police District Receiver, (1961)1 W.L.R. 634 at p.655

Kelleher v T. Wall & Sons Ltd. (198) 2 Q.B. 34

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STATUTES REFERRED TO

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1979 Constitution

Evidence Act

Evidence Act, 1938 of England

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