CHEVRON v. EDWARD ADEKUNLE

CHEVRON NIGERIA LIMITED V. EDWARD ADEKUNLE ADERIBIGBE

           

In The Court of Appeal of Nigeria

On Monday, the 28th day of February, 2011

Before Their Lordships

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

CHEVRON NIGERIA LIMITED

Appellant(s)

AND

EDWARD ADEKUNLE ADERIBIGBE

Respondent(s)

RATIO DECIDENDI

1. EVIDENCE -  ADMISSIBILITY: Whether every relevant fact which has been pleaded is admissible

"In civil proceedings every fact which is pleaded and is relevant to the case of either of the parties ought to be admitted in evidence. The denial of making the document by the respondent ought to affect weight not admissibility. In the instant case, the trial court considered the weight to be attached to the document instead of its relevance which ought to have been considered at that stage of the proceedings when the document was tendered. See Ogunbiade v. Sasegbon (1968) NMLR 233. Thanni v. Saibu (1977) 2 SC 89 @ 116. Monier Construction co. Ltd v. Azubuike (1990) 3 NWLR (Pt. 136) 74. Fadlallah v. Arewa Textiles Ltd (supra)" Per JAURO, J.C.A.

2. EVIDENCE -  DOCUMENTARY EVIDENCE: Factors that govern the admissibility of a document in evidence

" A good starting point is to state the three main criteria that govern the admissibility of a document in evidence, namely:- (1) Is the document pleaded? (2) Is it relevant to the inquiry being tried by the court? and (3) Is it admissible in law? See Okonji v. Njokanma (1999) 11 - 12 SCNJ 259 @ 273 where Achike JSC stated thus: "The position of the law in relation to the question of admissibility of a document in evidence is that admissibility is one thing while the probative value that may be placed thereon is another. Generally, three main criteria govern the admissibility of a document in evidence, namely: (1) is the document pleaded? (2) is it relevant to the inquiry being tried by the court? and (3) is it admissible in law? The test for admissibility therefore is relevance, the source by which the document has been obtained is immaterial. A document is admissible in evidence if it is relevant to the facts in issue and admissible in law. "Per JAURO, J.C.A.

3. ACTION -  PLEADINGS: What is the essence of pleadings

"The essence of pleadings is to narrow down the issues in controversy and serves as a notice to the other party which is intended to alert him on what the party filing it intends to rely on to prove his case or to defend a cause. A party to an action is expected to plead material facts only. Pleadings therefore is never meant to substitute evidence required to prove the facts unless such facts are admitted by the other party. See Adegbite v. Ogunfaotu (1990) 4 NWLR (Pt. 146) 578. Okafor v. UBN Plc (2000) 3 NWLR (Pt. 647) 42" Per JAURO, J.C.A.

4. EVIDENCE -  RELEVANCY/WEIGHT OF A DOCUMENTARY EVIDENCE: Distinction between the relevancy of a document and the weight to be attached to it

"It has to be noted also that admissibility of a document is one thing, and the weight that court will attach to it is another. Relevancy and weight are in quite distinct apartments in the law of evidence. Relevancy which propels admissibility is invoked by the trial court immediately a document is tendered to determine the relevancy or otherwise of the document tendered. If the document is relevant the court admits it. Weight on the other hand, comes after admission of a document at the stage of writing the judgment. The two therefore ought not to be confused. See Dunniya v. Jomoh (1994) 3 NWLR (Pt. 334) 609 @ 617. Sadan v. State (1968) 1 All NLR 124. Dalek (Nig) Ltd v. OMPADEC (2007) 7 NWLR (Pt. 1033) 402. Abubakar v. Chuks (2001 18 NWLR (Pt. 1066) 386. Torti v. Uknabi (1984) 1 SC 370. Avong v. KRPC Ltd (2002) 14 NWLR (Pt. 788) 508. ACB Ltd v. Gwaswada (1994) 5 NWLR (Pt. 342) 25."Per JAURO, J.C.A.

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the Lagos State High Court, coram Shitta-Bey J, delivered on 22nd April 1999 in suit No. LD/3772/95. In the said ruling, the lower court rejected a document sought to be tendered in evidence by the defendant now appellant.

 Simply put and briefly stated, the background facts giving rise to this appeal are as follows: The respondent as plaintiff instituted the action at the lower court for damages and declarative reliefs that his dismissal from the appellant's employment was unconstitutional, null and void. The suit was commenced in 1995 at the Lagos division of the High Court of Lagos State. Trial commenced in earnest and the respondent was led in evidence by his counsel. In the course of cross examination on 18th February, 1998 the respondent was confronted with a document dated 29th September 1993, alleged to have been made by him. The respondent denied making the statement in the document, though he stated that the signature on it looked like his own. The document was then withdrawn by the appellant's counsel.

 On opening their defence, the appellant sought to tender the same document dated 29th September, 1993 which it confronted the respondent with during cross examination through DW1 Micheal Nwaka, the appellant's security manager. As a prelude to the tendering of the document, DW1 identified the document as the statement made by the respondent and handed over to him by the same respondent. An objection was raised as to the admissibility of the document.

 At this juncture and for a clearer appreciation, I deem it necessary to reproduce what transpired in court at pages 55 to 56 of the record of proceedings:-

 "Defence Witness Evidence in Chief Witness reminded of his Oath and states further -

 After investigation at this matter, he made a second statement, after the 1st confessional statement on the 28th September, 1993.

 I saw the statement because he brought it himself to my office.

 Yes, this is the document - the 2nd statement the Plaintiff brought to my office. Yes, it is the original of the document.

 Mr. Soetan - I seek to tender the document.

 Mr. Bello - I object to the admissibility of this document. The Plaintiff has deemed (sic) denied making the statement, and it was not pleaded.

 There is nothing in the document to show that it was made in the course of investigation.

 This could not be the statement referred to in paragraph 9 of the amended statement of defence.

 I urge your Lordship to reject the statement.

 Mr. Soetan - We pleaded the Statement in paragraph 9 of the Further Amended Statement of Defence. My Learned friend is miscounting the words "Statement" and "investigation".

 We submit that this statement was made during investigation by the Plaintiff. I humbly urge your Lordship to admit the statement.

 Mr. Bello - The witness is not the matter (sic) maker of the document and it was not made in his presence.

 There is no endorsement by an investigator on the document.

 Ruling.

 Court - I have considered carefully the objection of learned counsel for the plaintiff as well as those of the Learned Counsel for the Defendant on the admissibility of the document sought to be tendered by this witness. I must say that the document was not made by the witness who is seeking to tender it, neither was it made in his presence. It was allegedly brought to him after it was made. But the plaintiff has denied making the statement did (sic) there is nothing on the face of the document to verify this.

 In view of the above, the said statement is hereby rejected."

 Aggrieved and dissatisfied with the aforementioned ruling, the defendant now appellant filed an appeal against same. The notice of appeal dated and filed on 3rd May, 1999 was anchored on a single ground of appeal and the ground shorn of its particulars is hereby reproduced thus:

 "The learned trial judge erred in law in applying the provisions of section 91(1) of the Evidence Act to reject as inadmissible the document dated 29/9/93 sought to be tendered by the defendant's witness when all the witness wanted to show at that stage was that the document was brought and given to him by the plaintiff."

 In line with the Rules of Court, the parties to this appeal filed and exchanged their respective briefs of argument.

 On the date the appeal was argued, the appellant adopted and relied on the appellant's amended brief of argument dated 8th October, 2008 and filed on 9th October, 2008 in urging this court to allow the appeal. The respondent on the other hand, adopted and relied on the respondent's amended brief of argument dated and filed on 8th April, 2009 in urging the court to dismiss the appeal. The appellant distilled a single issue for determination from the lone ground of appeal, namely:

 "Whether the lower court was right in rejecting the statement dated 29th September 1993 as inadmissible (on the grounds either that the maker of the document had denied making it or that it has not been made by or in the presence of the person seeking to tender it) even though the said document had been pleaded by the appellant and was only intended at the time of tendering to show the fact of its existence and not the truth of its contents.

 The respondent also nominated one issue for determination, and is hereby reproduced thus:

 "Whether the document sought to be tendered by the appellant and properly rejected by the learned trial judge is admissible in any circumstance known to law at all."

 The two issues for determination reproduced above will be blended together, modified into one issue and adopted for the resolution of this appeal as follows:

 "Whether the document dated 29th September, 1993 sought to be tendered by the appellant is admissible in evidence and therefore wrongly rejected by the trial court."

 The learned counsel for the appellant flagged off his argument by reference to Section 6 of the Evidence Act, to the effect that whether a piece of evidence is admissible or not is dependant on whether the fact to be established is relevant to the fact in issue. In support of his contention, reference was made to the case of Avong v. Kaduna Refiner and Petrochemical Co. Ltd (2002) 14 NWLR (Pt. 788) 508 at 530. Learned counsel submitted that the document had been specifically pleaded in paragraph 9 of the amended statement of defence and the relevance of the document has also been shown by the appellant. Learned counsel stated that the respondent had earlier admitted making the statement in his reply to the statement of the defendant but later expunged the admissions in his amended reply. Learned counsel argued that by its failure to admit the document the lower court had denied itself the opportunity of adjudicating fairly and effectively between the parties. Learned counsel contended that the crux of the defence put by the appellant was the admission of guilt by the respondent after due investigation by the appellant. Learned counsel further submitted that it is trite that only facts need to be pleaded and the evidence by which these facts were to be established need not be pleaded. In support of the submission, reference was made to the following cases: Okafor v. UBN Plc (2000) 3 NWLR (Pt. 647) 42 at 48. Adeniran v. NEPA (2002) 14 NWLR (Pt. 786) 30: Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) 641: Allied Bank of Nigeria Ltd v. Akubueze (1997) 6 NWLR (Pt. 509) 374.

 Learned counsel contended that the lower court did not properly consider the provisions of Section 77 of the Evidence Act and misapplied Section 91(1) of the Evidence Act, in rejecting the document as inadmissible. Learned counsel argued that the purport of tendering the document at the stage it was tendered was not to prove its contents, but the fact that it was made by the respondent and brought to the office of DW1. In support of this submission, reference was made to the case of Comptoir Commercial & Ind. S.P.R. Ltd v. Ogun State Water Corporation (2002) 9 NWLR (Pt. 773) 629 @ 655. Learned counsel submitted that the document is admissible by virtue of Section 77(1)(a) and (c). Learned counsel further submitted that relevancy is the paramount consideration in admissibility, while the weight to be attached a different thing. Learned counsel further posited that lower court erred in rejecting the document, merely because the maker of the document denied having made same. In support, reference was made to the case of Nsofor v. State (2002) 10 NWLR (Pt. 775) 274 @ 289. In concluding learned counsel urged the court to allow the appeal.

 Learned counsel for the respondent started by stating the position of the law to the effect that a party relying on a document in proof of his case must relate the specific area of his case in respect of which the document is being tendered. In support, reference was made to the case of Jalineo v. Nvame (1992) 3 NWLR (Pt. 231) 538. Learned counsel further stated the trite position of the law, that parties are bound by their pleadings and evidence on facts not pleaded goes to no issue. In support, reference made to the following cases: Georgq & Ors. V. Dominion Flour Mills Ltd (1963) 1 All NLR 11 @ 77. National Investment & Properties Co. Ltd y. Thompson Organization

 Ltd & Ors (1969) NMLR 99 @, 104 and Kalu Nioku & Ors v. Ukwu Eme & Ors (1973) 5 SC 293 @ 300 - 303. Learned counsel submitted that the case of the respondent is that he was dismissed from the service of the appellant without any reason stated in the letter of dismissal and reference was made to paragraphs 6 and 7 of the 1st amended statement of claim. Learned counsel argued that the appellant did not deny the dismissal without giving reason but proceeded under paragraph 11 of the further amended statement of defence to state that the dismissal was made after investigation and hearing the respondent's version on the unauthorized investments. Learned counsel therefore posited that the document is not relevant. In support, reference was made to Aiide v. Kelani (1985) 3 NWLR (Pt. 12) 248.

 On the claim that the document is a confessional statement, learned counsel contended that extra judicial statement however credible cannot be admitted in evidence unless authenticated by the maker. In support reference was made to State v. John Oebubunio & Anor (2001) 2 NWLR (Pt. 698) 576. Learned counsel posited that the document is an ordinary paper that did not fit into the pleading in paragraph 9 of the further amended statement of deference and therefore properly rejected. In support reference was made to the case of Kurfi v. Mohammed (1993) 2 NWLR (Pt. 277) 602. The document in question not having been tendered through the respondent, learned counsel contended that the decision of the learned trial judge is covered by Section 91(1) of the Evidence Act. Learned counsel submitted that the purported confessional statement sought to be tendered in evidence is not relevant to the fact in issue in this case. Learned counsel argued that by virtue of Sections 6, 7 and 8 of the Evidence Act, irrelevant evidence is not admissible as it cannot advance the case of the party seeking to tender it. In support reference was made to the following case: ACB Ltd v. Gwaewada (1994) 4 SCNJ (Pt. 11) 268, Okgnii v. Niokanma (1999) 11 & 12 SCNJ 259, Fadlallah v. Arewa Textiles Ltd (1997) 8 NWLR (Pt. 518) 546. Torti v. Ukpabi (1984) I SCNJ 214. Kuruma v. R (195$ AC 197 @ 203. On Section 77 of the Evidence Act, learned counsel argued that the section is essentially on oral not documentary evidence and it cannot be over stretched to accommodate the document sought to be tendered. In concluding, learned counsel urged the court to resolve the issue in favour of the respondent and dismiss the appeal.'

 The narrow compass within which this appeal oscillates is on the propriety of the rejection in evidence of a document dated 29th September, 1993, said to be a confessional statement made by the respondent in the course of investigating him by the appellant. A good starting point is to state the three main criteria that govern the admissibility of a document in evidence, namely:-

 (1) Is the document pleaded?

 (2) Is it relevant to the inquiry being tried by the court? and

 (3) Is it admissible in law?

 See Okonji v. Njokanma (1999) 11 - 12 SCNJ 259 @ 273 where Achike JSC stated thus:

 "The position of the law in relation to the question of admissibility of a document in evidence is that admissibility is one thing while the probative value that may be placed thereon is another. Generally, three main criteria govern the admissibility of a document in evidence, namely:

 (1) is the document pleaded?

 (2) is it relevant to the inquiry being tried by the court? and

 (3) is it admissible in law?"

 The test for admissibility therefore is relevance, the source by which the document has been obtained is immaterial. A document is admissible in evidence if it is relevant to the facts in issue and admissible in law.

It has to be noted also that admissibility of a document is one thing, and the weight that court will attach to it is another. Relevancy and weight are in quite distinct apartments in the law of evidence. Relevancy which propels admissibility is invoked by the trial court immediately a document is tendered to determine the relevancy or otherwise of the document tendered. If the document is relevant the court admits it. Weight on the other hand, comes after admission of a document at the stage of writing the judgment. The two therefore ought not to be confused. See Dunniya v. Jomoh (1994) 3 NWLR (Pt. 334) 609 @ 617. Sadan v. State (1968) 1 All NLR 124. Dalek (Nig) Ltd v. OMPADEC (2007) 7 NWLR (Pt. 1033) 402. Abubakar v. Chuks (2001 18 NWLR (Pt. 1066) 386. Torti v. Uknabi (1984) 1 SC 370. Avong v. KRPC Ltd (2002) 14 NWLR (Pt. 788) 508. ACB Ltd v. Gwaswada (1994) 5 NWLR (Pt. 342) 25.

 Now coming back to the case at hand, was the said document dated 19th September, 1993 pleaded. The essence of pleadings is to narrow down the issues in controversy and serves as a notice to the other party which is intended to alert him on what the party filing it intends to rely on to prove his case or to defend a cause. A party to an action is expected to plead material facts only. Pleadings therefore is never meant to substitute evidence required to prove the facts unless such facts are admitted by the other party. See Adegbite v. Ogunfaotu (1990) 4 NWLR (Pt. 146) 578. Okafoi v. UBN Plc (2000) 3 NWLR (Pt. 647) 42.

 What transpired in court when the ruling was delivered had been reproduced earlier in this judgment. When the objection as to the admissibility of the document was made, the appellant responded that it was pleaded in paragraph 9 of the further amended statement of defence. The said paragraph is hereby reproduced.

 "The defendant avers that upon investigation by the Defendant the Plaintiff confessed to having disregarded the Defendant's guidelines, rules and policy. The Defendant further avers that the Plaintiff confessed to having received monetary gratification for the unauthorized investments and expressed regret that he had let down both his immediate supervisor and the Defendant. The Defendant shall at the trial of this action rely on the Plaintiff's written statements dated 28th September 1993 and 29th September 1993 made during the Defendant's investigations."

 It is clear from the above paragraph that the said document was duly pleaded.

 The next thing to be considered is whether the document is relevant to the fact in issue or relevant facts towards resolving the dispute between the parties. The issue of relevance has to be considered along the peculiar circumstances of each case. The main issue in contention in the court below is that of wrongful dismissal and closely related to that, the respondent alleged that he was not given fair hearing before the dismissal. The appellant on the other hand contended that they investigated the matter and gave the plaintiff a hearing. See paragraph 9 of the 1st amended statement of claim and 11 of the further amended statement of defence. To the extent of this two contending views, the document to my mind is relevant.

 The contention of the appellant is that the document was not being tendered to establish the truth of its contents but only to establish that it was made and handed to DW1. I wish to state at this stage, that Section 77 of the Evidence Act relates to oral evidence and not documentary evidence and is therefore inapplicable to the case at hand. The respondent has denied making the document in contention. In civil proceedings every fact which is pleaded and is relevant to the case of either of the parties ought to be admitted in evidence. The denial of making the document by the respondent ought to affect weight not admissibility. In the instant case, the trial court considered the weight to be attached to the document instead of its relevance which ought to have been considered at that stage of the proceedings when the document was tendered. See Ogunbiade v. Sasegbon (1968) NMLR 233. Thanni v. Saibu (1977) 2 SC 89 @ 116. Monier Construction co. Ltd v. Azubuike (1990) 3 NWLR (Pt. 136) 74. Fadlallah v. Arewa Textiles Ltd (supra).

 In view of the foregoing, the document dated 29th September 1993 having passed the three criteria for admissibility of documents, ought to have been admitted by the lower court. Consequently the ruling of the lower court dated 22nd April, 1999 rejecting the said document is hereby set aside. The document dated 29th September, 1993 is admitted in evidence and marked Exhibit CN 1. There will be no order as costs.