IN THE SUPREME COURT OF NIGERIA
On Friday, the 21st day of November, 1975
Before Their Lordships
ATANDA FATAYI-WILLIAMS….. Justice, Supreme Court
CHUKWUNWEIKE IDIGBE….. Justice, Supreme Court
MAMMAN NASIR….. Justice, Supreme Court
….. Justice, Supreme Court
1. SOUTH-EASTERN STATE NEWSPAPER CORPORATION
2. SOUTH-EASTERN STATE PUBLIC SERVICE COMMISSION
EDET ASUQUO ANWARA
Bearing the provisions of the applicable rules in mind, it is our view that the proper procedure for tendering the letter is by referring to it specifically in a further affidavit as an “exhibit”. Of course, it may also be tendered either by exhibiting it with the further affidavit or by calling a witness to testify and tender it formally in court. As none of these procedures has been followed, we are of the opinion that the letter was wrongly admitted in evidence. As the decision to join the second defendant was based mainly on the contents of the letter which should not have been admitted in evidence, it follows that the learned trial Judge was in error in granting the application. The appeal therefore succeeds and it is allowed.
In the High Court of the South-Eastern State sitting in Calabar, the plaintiff claimed against the South-Eastern State Newspaper Corporation the sum of N150,000.00 as damages for the wrongful termination of his appointment as the defendants’ general manager on 7th August, 1973.
Pleadings were ordered on 24th September, 1973. On 18th October, 1973, before the pleadings were delivered, the plaintiff applied to the court for “an order to amend the writ of summons by joining the South-Eastern State Public Service Commission, for itself and as representing the South-Eastern State Statutory Corporations Service Commission, as the second defendants in the action.” Paragraphs 3 and 4 of the affidavit filed in support of the application read:-
“3. That at the time of filing the suit I had not placed all the documents relating to this action at the disposal of my counsel, O.A. Esin, Esq.
4. That upon studying all the relevant documents, my said Counsel has advised me, and I am convinced and verily believe, that it is right and necessary that the Public Service Commission of the South-Eastern State should be joined as the second defendant in this suit.”
At the hearing of the application on 13th November, 1973, learned counsel for the applicant applied orally to tender one of the documents referred to in paragraph 4 of the affidavit and conceded in the process that the document ought to have been annexed to the said affidavit at the time of filing the motion. Learned counsel for the defendant objected to the tendering of the letter in that manner, firstly because it was not specifically referred to in paragraph 4 of the affidavit and secondly because the document was only a copy of a letter addressed to the applicant.
Learned counsel argued further that since the original of the letter was with the applicant he should have tendered that and not the copy. The objection was upheld by the learned trial Judge and the application to tender the document was refused. At that stage, learned counsel for the applicant successfully asked for an adjournment to enable him to produce the original.
At the resumed hearing of the application on 15th November, 1973, learned counsel for the applicant applied orally again to tender the original letter of termination of appointment. Learned counsel for the respondent again opposed the application. The ground for the objection were recorded by the learned trial Judge as follows:
“In a case of this nature, the proper way of tendering such a document is by affidavit evidence or by oral evidence if the court exercises its discretion under Order XXXV rules 23 and 24. That no foundation has been laid in the affidavit sworn to by the applicant nor has the court allowed any oral evidence to be led to support the tendering of this document. He refers to rule 24. He submits that if even the Court was minded to call oral evidence, this would not be expedient because to do so would amount to assisting the applicant to the prejudice of the respondent.”
In reply, learned counsel urged the court to admit the letter in evidence and observed that at the previous hearing a copy was produced and was rejected whereupon he asked for adjournment in order to produce the original. He then referred to Order XXXV rule 24 and maintained that there is a discretion in the court to receive a document in evidence and that it is expedient to admit that particular document.
The learned trial Judge adjourned the hearing to 21st November, 1973 for a ruling. The objection was eventually over-ruled and the letter was admitted and marked as Exhibit 1. In his ruling on the motion to join the South-Eastern State Public Service Commission as the 2nd defendant which he delivered on 4th December, 1973, the learned trial Judge observed as follows:-
“I have considered the affidavit and arguments put forward by both counsel. The evidence on a motion is usually affidavit evidence. Order XXXV rule 4 of the High Court Rules requires that ‘There shall be filed with the motion paper all affidavit on which the person moving intends to reply. I take ‘reply’ as used in this context to mean rely.”
He thereupon granted the application to join the South-Eastern State Public Service Commission after observing further as follows:-
“During the hearing of arguments in this motion, I had allowed documentary evidence in addition to the affidavit by virtue of Order XXXV rule 24 of the High Court Rules which provides that – ‘In addition to or in lieu of affidavits the court may, if it thinks expedient, examine any witness viva voce, or receive documents in evidence, and may summon any person to attend to produce documents before it, to be examined or cross-examined before it in the like manner as at the hearing of a suit. A document was therefore tendered by counsel for the applicant as Exhibit 1. I have read Exhibit 1.
It is a letter of the termination of appointment of the applicant addressed to him by the South-Eastern State Public Service Commission. The counsel for the respondent had contended that the affidavit of the applicant should show what relationship existed or exists between the defendant on the writ and the defendant sought to be joined. It is my humble view that the motion paper itself has disclosed that relationship when it states,
‘The South-Eastern State Public Service Commission, for itself and as representating the South-Eastern Statutory Corporation Service Commission.’
The motion paper itself forms part of the proceedings. Even if my view is held to be untenable, I would still hold that the proceedings. Even if my view is held to be untenable, I would still hold that Exhibit 1, which speaks for itself, has by necessary implication if not expressly, disclosed some form of relationship between the defendants on the writ and the defendant sought to be joined. What I think is more important here is whether there is any form of relationship between the plaintiff and the defendant sought to be joined. I think there is. Exhibit 1 is clear on this.” (The underlining is ours.)
The two defendants – The South-Eastern State Newspaper Corporation and the South-Eastern State Public Service Commission – have now appealed against the ruling on the following ground:-
“The learned trial Judge erred in law in that:
(i) he admitted in evidence a document which was neither exhibited to the affidavit of the respondent/applicant nor tendered by the respondent/applicant through the oral evidence of a witness;
(ii) he allowed the said inadmissible evidence to operate upon his mind and so granted the order prayed for by the respondent/applicant;
(iii) he construed Order XXXV rule 24 of the High Court Rules of the former Eastern Nigeria to mean that it precludes the operation of the provisions of Order 41 rule 11(1) of the Rules of the Supreme Court of England which states that documents accompanying an affidavit must be exhibited to the affidavit.”
The arguments urged upon us in support of the appeal were more or less the same arguments put forward in the High Court in opposition to the admissibility of the document tendered and subsequently admitted in support of the application for joinder.
Learned counsel submitted further, however, that the document was wrongly admitted and as the order for the joinder of the second defendant was based upon it, the order was erroneous and should be set aside. In the course of the argument we were referred to Order XXXV rule 24 of the East Central State High Court Rules which is applicable in the South-Eastern State and to Order 41 rule 11 (1) of the Rules of the Supreme Court of England said to be applicable by virtue of the provisions of Section 16 of the High Court Law of the East Central State which is also applicable in the South-Eastern State.
For the respondent, it was submitted that the learned trial Judge has a discretion whether to admit the document with or without the formal procedure laid down by Rules of Court for the admission of documents in proceedings before the High Court. It was then contended that the learned trial Judge was not in error in admitting the document as he did and that the appeal should be dismissed.
This appeal turns on the interpretation of Order XXXV rule 24 of the High Court Rules applicable in the South-Eastern State. Another point to be considered, however, is whether Order 41 rule 11(1) of the Rules of the Supreme Court of England is also applicable in the State by virtue of the provisions of Section 16 of the applicable High Court Law. The provisions of Order XXXV rule 24 read:-
“24. In addition to or in lieu of affidavits, the court may, if it thinks it expedient, examine any witness viva voce, or receive documents in evidence, and may summon any person to attend to produce documents before it, or to be examined or cross-examined before it in like manner as at the hearing of a suit.”
In the present case, an affidavit was filed in support of the motion. Some documents were referred to but were not exhibited with the said affidavit. As no oral evidence was adduced at the hearing, the only part of the rule which, for the purpose of this appeal, needs consideration and clarification is that which provides that in addition to affidavits, the Court may, if it considers it expedient, receive documents in evidence.
The question is, how are such documents received in evidence in these circumstances? Clearly, there is no provision in the local Rules as to how such documents could be admitted at the hearing of the application for joinder. It will be necessary for us, therefore, to fall back on the appropriate rules, if any, in the Rules of the Supreme Court in England which, as we had said earlier, is applicable by virtue of Section 16 of the High Court Law which reads:-
“16. The jurisdiction vested in the High Court shall be exercised (as regards practice and procedure) in the manner provided by this law and in any other written law or by such rules and orders of Court as may be made pursuant to this Law or any other written law, and, in default there-of, in substantial conformity with the law and practice observed in England in the High Court of Justice, on the thirtieth of September, 1960.” (The underlining is ours.)
In view of the provisions of Section 16, we think that the relevant English rule applicable is not rule 11(1) of Order 41 of the Rules of the Supreme Court of England to which we were referred by learned counsel for the appellant. This is because that rule (that is, rule 11(1)) did not come into force until 1967. The appropriate English rules in force on 30th September, 1960 and which are therefore still applicable in the South-Eastern State to the case in hand, are rules 23 and 24 of Order 38 which, admittedly, have since been replaced in England by rule 11(1) of Order 41. The provisions of the two rules are as follows:-
“23. Accounts extracts from parish registers, particulars of creditors’ debts, and other documents referred to by affidavit, shall not be annexed to the affidavit, or referred to in the affidavit as annexed, but shall be referred to as exhibits.
24. Every certificate on an exhibit referred to in an affidavit signed by the commissioner or officer before whom the affidavit is sworn shall be marked with the short title on the cause or matter.”
(The underlining is ours.)
The next question is how were exhibits referred to in a motion supported by an affidavit received in evidence up till the time when the rules were altered in 1967? In Re Hinchliffe (1895) 1 Ch. 117, it was held that such an exhibit is part of the affidavit, and any person who is entitled to inspect the affidavit has a right to demand inspection of the exhibits referred to in it. In the view of Lord Herchell, L.C. at page 120-
“They form as much part of the affidavit as if they had been actually annexed to and filed with it.”
In the case in hand, however, the affidavit in support of the application for joinder did not refer to the particular document which the applicant sought to tender as an exhibit at the hearing. Vague references were only made to “documents relating to the action” in paragraph 3 of the affidavit and to “all the relevant documents” in paragraph 4 thereof.
That being the case, it seems to us that the facts in Re Hinchcliffe, (supra), where the relevant document was not only annexed to the affidavit but was also referred to therein as a particular exhibit, is distinguishable from the present case where the letter in question was not referred to at all. Therefore, in the absence of any consent by the respondent, we do not see how the learned trial Judge could have admitted the letter as an exhibit as he had done. Bearing the provisions of the applicable rules in mind, it is our view that the proper procedure for tendering the letter is by referring to it specifically in a further affidavit as an “exhibit”. Of course, it may also be tendered either by exhibiting it with the further affidavit or by calling a witness to testify and tender it formally in court. As none of these procedures has been followed, we are of the opinion that the letter was wrongly admitted in evidence.
As the decision to join the second defendant was based mainly on the contents of the letter which should not have been admitted in evidence, it follows that the learned trial Judge was in error in granting the application. The appeal therefore succeeds and it is allowed. The order of the learned trial Judge (Ecoma, J.) made in the High Court of the South-Eastern State in Calabar in Suit No. C/76/1973 on 4th December, 1973, is set aside. We order that the application for the joinder of the South-Eastern State Public Service Commission in the suit be dismissed and it is hereby dismissed with costs assessed at N100.
Mr. E.B. James, Senior State Counsel (South-Eastern State)…..For Appellant
Mr. S.A. Oshisanya…..For Respondent