GLORYLUX ASS. IND. v N.P.F.M.B. (CA/B/257/90) [1993] NGCA 1 (11 March 1993)



JOSEPH DIEKOLA OGUNDERE                                JUSTICE, COURT OF APPEAL (Presided)
JAMES OGENYI OGEBE                                            JUSTICE, COURT OF APPEAL (Read the leading judgment)

GLORYLUX ASSOCIATED INDUSTRIES (NIG.) LTD                                             APPELLANT



OGEBE, J.C.A.(Delivering the Leading Judgment): Before the Federal High Court, Benin, the respondent sued the appellant claiming the sum of N 13,017.24k as outstanding arrears of contributions which the defendant/appellant as employer of labour within the meaning of the National Provident Fund Act, 1961 failed to pay to the Fund.

The respondent filed a statement of claim dated the 24th day of June, 1988 while the appellant filed a statement of defence in reply thereto on the 22nd day of August, 1988. The appellant filed an amended statement of defence on the 23rd H day of May, 1989 in substitution for his earlier statement of defence. Only one witness P.W.1 Christian   Amaefule Achionye, a Principal Compliance Inspector in the service of the respondent gave evidence on its behalf. He gave evidence from a file maintained in their office in respect of the appellant company. He was not responsible for inspecting the records of the appellant for the purpose of compiling the appellant's indebtedness to the respondent. That exercise was done by one Charles Akinbomi, a Principal Compliance Inspector of the respondent attached to its Warri Division who died in 1987 and was not available to testify during the trial. P.W. 1 tendered various documents to show that the appellant employed many workers for the period of March, 1980 to August, 1983 and paid them salaries but failed to pay their contributions to the National Provident Fund. He testified that' B from the record the appellant was owing the respondent a total sum of N 13,017.24k.

The appellant called one witness, its Managing Director, John Okemuete Aaron-Okenamurhie as D.W.I. He testified that the respondent's officers did not carry out any official inspection in his company, but a letter was sent to him about the intention of the respondent's officers to visit his company. Later he received Exhibit C demanding the payment of the sum claimed. He denied categorically that the appellant owed the amount claimed by the respondent.

The trial court reviewed the evidence and the documents tendered by both parties and found the appellant liable to the respondent in the sum of N 12,937 .08k.

The appellant was dissatisfied with the decision and appealed to this court on '6 grounds of appeal which I do not consider necessary to reproduce in this judgment. However, in accordance with the rules of this court, the parties exchanged briefs of argument. The learned counsel for the appellant in his brief of argument formulated four issues for determination as follows:-

"1.        Whether the plaintiff proved his case by preponderance of evidence.

2.         Whether on proper evaluation of the evidence tendered in the whole case, the case of plaintiff can succeed.

3.         Whether the stance of the learned trial Judge affected the outcome of the case.

4.         Whether the admission of inadmissible evidence did not affect the result of the case."

In the respondent's brief, five issues were formulated for determination as follows:-

"1.        Can the evidence of P.W.1 be considered as hearsay evidence having regard to the fact that evidence was given from the records and that the authorised person who could have given evidence had died; and again was Exhibit E not properly admitted into evidence through section 39 of the National Provident Fund Act. 1961?

2.         Considering the totality, quality and quantity of evidence put forward before the court, can it be rightly said that the plaintiff respondent did not prove its case by the preponderance of evidence?

3.           Could the trial court be rightly said not to have properly evaluated the evidence before it before accepting the case for the plaintiff respondent having regard to the totality of evidence before it and having regard to the many instances of evaluation done by the court and very apparent in the body of the judgment?

4.         Could the trial court be rightly said to have taken a stand that was prejudicial to the defendant/appellant having regard to certain inevitable observations made in the judgment?

5.         Could it be rightly said that there was the admission of inadmissible evidence and this affected the mind of the Court when indeed the documents admitted were so done under section 90ofthe Evidence Act and section 39 of the National Provident Fund Act, 1961?"

The argument advanced in support of the issues formulated in the appellant's brief can be summarised thus:- On the first issue, it is argued that the case of the respondent was predicated on an inspection said to have been carried out on the 4th of October, 1983 by an Officer of the respondent who did not testify in person. Instead the only witness who testified did so from the record and not from his personal knowledge of the event. It was submitted that since the inspection report was not tendered, the evidence given by P.W.1 was entirely hearsay and ought to have been rejected on the authority of the case of Shell BP Company Nigeria Limited v. H.H Pere Cole (1978) 3 SC. 183 at page 196. It was further submitted that Exhibit C which contained the amount demanded from the appellant was a mere letter and not the actual report of the inspection.

On the second issue, the argument is that the trial court did not properly assess and evaluate the evidence of both parties before giving judgment in favour of the respondent. The trial court was said to have treated the matter in a manner prejudicial to the appellant by making uncomplimentary remarks about its Managing Director D.W.1 with the result that there was a miscarriage of justice as the appellant's defence was not properly considered.

On issue three, it was submitted that the posture taken by the learned trial judge against D.W.1 deprived him of the opportunity of properly and impartially looking at the case of the appellant to enable him come to a just decision.

On the 4th issue, it was argued that even though the appellant amended its statement of defence, the trial court ignored that amended statement of defence and relied on the original statement of defence and admitted evidence in favour of the respondent. This error lead to a miscarriage of justice as inadmissible evidence was admitted. It was submitted that where a court made a serious slip in procedure that affects the decision appealed against, the Supreme Court regard such a slip as substantial misdirection which would result in upsetting the decision appealed against. The cases of Onojobi v. Olanipekun (1985) 11 SC. page 163 and Jude Ezeoke and Others v. Moses Nwagbo (1988) 1 NWLR (Pt. 72) 612, were relied upon

The learned counsel for the respondent offered argument in support of the five issues formulated in the respondent's brief quoted earlier in this judgment. On the first issue, it was submitted that the evidence of P.W.1 was not hearsay as it was clear from the record that Charles Akinbomi who carried out the inspection of the appellant's record had died and P.W.1 who was still in the employment of the respondent and had worked in its Warri office was competent to give evidence from the record available in their office by virtue of section 90(1)(2) of the Evidence Act. It was argued that Exhibits C and E conclusively established the claim of the respondent against the appellant. Even though the appellant received the original of Exhibit C he did not challenge it or reply to it.

On the second issue, it was submitted that on the totality of the evidence given by the respondent, the respondent proved its case on the preponderance of evidence. While the respondent gave concrete documentary evidence to establish H the claim, the appellant merely denied the claim without offering evidence in rebuttal.

On the third issue it was argued that the trial court did a thorough evaluation of the evidence offered by both parties before arriving at its judgment. It was submitted that the trial judge in making some remarks about D.W.1 was exercising his duty of watching the demeanour of witnesses before him and he did nothing prejudicial to the case of the appellant.

On the 4th issue, it was said that the stance of the trial judge was not against i the appellant as he was merely doing his duty to observe the witness to enable him determine his credibility and he drew the correct inference regarding the conduct of D.W.1 in the witness box.

On the 5th issue, the main argument is that the trial judge did not make use of inadmissible evidence by relying on the original statement of defence rather than the amended  statement of defence. It was argued that the trial court was right to have accepted the admission made by the appellant in the original statement of defence and that the court did so in the interest of justice. In spite of this, the trial court did not entirely ignore the amended statement of defence but considered it in the judgment. It was urged upon us that there was enough evidence before the trial court to arrive at the decision in favour of the respondent and that the reference to the original statement of defence did not and could not have made any difference to the decision of the trial court. We were referred to section 226 (1) of the Evidence Act which states that the wrongful admission of evidence shall not of itself be a ground for the reversal of any decision unless the Court of Appeal thinks otherwise.

Having reviewed all the issues formulated by the parties and the arguments advanced in support thereof, it appears to me that the central issue is whether or not the respondent established its claim on proper evidence before the trial court. It should be borne in mind that the case before the trial court was a simple claim of money due under the National Provident Fund Act. The respondent tendered before the trial court Exhibit C, which was a letter making a demand of the money claimed from the appellant. The appellant admitted receiving the original of that letter which was received in evidence as Exhibit J, tendered by the appellant. The appellant did not respond to that letter or challenge the contents in any way until the matter came to court. That letter was dated the 8th of October. 1983 and informed the appellant that as a result of an inspection carried out in the company the sum of N 13,017 .24k was owing to the respondent. Several reminders were sent to the appellant to pay this amount before the matter eventually went to court. During the course of the trial, the certificate of indebtedness of the appellant under Section 39 of the National Provident Fund Act, 1961 signed by the Director was tendered. Section 39 of the National Provident Fund Act reads:-

"39.      A copy of any entry in the accounts of the Fund or other extract from the records of the Fund shall, when certified by the Director or as the case may be by the deputy of the Director, be received in all courts as prima facie evidence of the truth of the contents thereof and, as the case may, of the debt due to the Fund by any person."

That section is very clear that the certificate of indebtedness signed by the Director or an Assistant Director as the case may be is prima facie evidence of the debt thereof. That shifted the burden on the appellant to establish that indeed no such debt accrued. On the evidence before the trial court, the appellant did not discharge that burden. It merely denied the claim without stating what amount was due to the respondent for the relevant period in dispute.

I am unable to accept the submission of the Learned counsel for the appellant that the evidence given by the P.W.I was entirely hearsay. There was clear evidence that the officer of the respondent who carried out the inspection of the appellant company Mr. C.O. Akinbomi was dead. P.W.1 who was a Principal A Compliance Inspector with the respondent and had worked in the same office with, the deceased was competent under section 90(1)(2) of the Evidence Act to testify , from the record available in their office.

As I said earlier in this judgment Exhibit C, which was signed by the deceased officer of the respondent first stated the indebtedness of the appellant. The appellant did not react to it at all by challenging its indebtedness or its contents.

The appellant's brief of argument complained that the trial judge took a stand which was prejudicial to the appellant's case by making remarks against D.W.1. In particular, attention was drawn to the remarks of the trial court at page 53 of the record which read as follows:- "Before I go into full consideration of the issues involved in this case, I should like to make some observations about my Impression of the defendant's only witness, He is a clever person but too clever for his evidence to be believed. He prevaricated and contradicted himself in his evidence. He approbated and reprobated at the same time. He was very evasive in his answers to question and on occasions hesitated before answering question as if he did not understand. For, example, he admitted receiving Exhibit C, Sand D T. Exhibits S and T written on different dates were left with his Secretary in his office. Yet he said no officer of the plaintiff ever visited them. Again, he said he received Exhibit C in which it was written that the defendant was owing, the plaintiff, yet he, as the Managing Director, could not remember the amount. When asked when the defendant started paying contributions, he said -"I am not quite sure, but I think it was about 1981".

It is the duty of the trial court to watch carefully everything that goes on in the court particularly the demeanour and conduct of witnesses to help him assess their credibility. The remarks made by the trial judge were made in aid of this duty that he had and cannot be said to have lead to any miscarriage of justice.

On the question of whether or not, the trial court properly ignored the amended statement of defence in preference for the original statement of defence, the law is without dispute that once a statement of defence has been amended, the amended statement of defence replaces the original and a trial court has no business choosing between that amended statement of defence and the original statement of defence. It is my humble view that the trial court fell into error in considering the original statement of defence when it had been amended. That notwithstanding it would appear that what offended the judge and led him to that error was understandable. In the original statement of defence, the inspection of the appellant company by officers of the respondent was admitted, but in the subsequent amendment, the inspection was denied. It appears unimaginable that the Managing  Director of the appellant could not tell from the word go whether or not an inspection was carried out to instruct his counsel properly on the pleadings.

It is not every error on the part of a trial court that leads to a reversal of its judgment. An Appeal Court will have to consider whether the error led to miscarriage of justice or not. The dominant question in such a case is the broad one of whether substantial justice has been done by looking at the pleadings as a whole and taking into account what has been properly proved and the conclusion arrived at by the trial court. See the cases of Famuroti v.Agbeke (1991)5 NWLR (Pt. 189) 1 at page 14 and Bankole v.Pelu (l991) 8 NWLR (Pt. 211) 523.

The evidence in proof of the case was entirely documentary, namely Exhibit C and E, the appellant did not counter this documentary evidence. It merely denied the fact that such a visit was carried out. Lf the appellant had reacted to Exhibit C which was written as far back as 1983 to say that no visit was carried out and the debt B containing in that document could not be true, it would have had a good case in rebuttal of the respondent's claim. On the state of the pleadings before the trial court and the evidence led, it is beyond doubt that the respondent's claim was properly proved before that court and the appellant had a very weak defence, if any at all.

For all the reasons given above, I see no merit whatsoever in the appellant's appeal and I hereby dismiss it with N500.00 costs against the appellant in favour of the respondent. OGUNDERE, J.C.A.: It is conceded that the learned trial judge was wrong to make use in his judgment of the appellant's admission of liability in statement of defence which had been superseded by a latter amended statement of defence. What then should be the attitude of the Court of Appeal in this regard. The locus classicus on this point is Ajayi v. Fisher (1956) SCNLR 496; (1956) 1 FSC, 90, 92. It was a decision of Jibowu Acting F.C.J; Nageon de Lestang and Hubbard F.J.J. on the construction of section 226 of the Evidence Act now section 227 Cap. 112 Evidence Act 1990 Laws of the Federation. The ratio decendendi could be and E was indeed summarised by Nageon de Lestang F.J., as follows:-

"(a)      The Court of Appeal will not interfere with the decision if it is of opinion that the inadmissible evidence cannot reasonably have affected the decision.

(b)       The court will interfere if it is of the opinion that without the inadmissible evidence the decision must have been different.

(c)       If, however, there is other evidence in the case, and although the Appeal Court  thinks that the inadmissible evidence must have influenced the decision, yet it is unable to say that without this evidence, that the decision would reasonably have been different, then the proper course is to order a re-trial".

Further, if inadmissible evidence was admitted in the High Court, it is the duty of a Court of Appeal to reject it and to decide the appeal on legal evidence, if a miscarriage of justice will not thereby be occasioned taking into account Ajayi v. Fisher opt cit. Yassin v. Barclays Bank DCO (1968) NMLR 380; (1968) I All NLR 171 at 178. However, when a company is alleged to be in default in its remittance of its staff contributions under National Provident Fund Act, Cap. 273 1990 Laws of the Federation as in this case, under section 38 thereof a prima facie case of the indebtedness is established if a copy of an entry in the accounts of the q fund or other extracts from the records of the fund duly certified by the Director or  his deputy is received in evidence in court. Such is Exhibit E in this case. Theappellant did not rebut the correctness of Exhibit E at the trial court. He was therefore deemed to have admitted the same; and the learned trial Judge was right to find so accordingly. The error of the learned trial Judge aforementioned therefore occasioned no miscarriage of justice in the face of the unrebutted A documentary evidence.

For the above reasons and those given by my, learned brother Ogebe, J.C.A. in his lead judgment, I hereby dismiss this appeal with N500 costs in favour of the respondent. EJIWUNMI,J.C.A.: I have read in advance the lead judgment just delivered by my learned brother, OGEBE, J.C.A., and I agree with the reasons given for dismissing this appeal. It is evident that the only point which is a bit troublesome in this appeal is the reference made by the learned trial Judge in the judgment to the original statement of claim when the appellant had filed with leave an amended statement of defence. It is trite law that once an amendment to a claim had been properly filed, it becomes the only pleading by which the issues before the court are to be considered. Rotimi v. Maegregor (1974) 11 SC 133. In this case, though the learned trial Judge adverted to the original statement of defence, it is clear that the issues raised before him in the light of the amended statement of defence, and the pleadings of the respondent remained the same.

The amended statement of defence which the learned trial Judge also D considered did not alter or effect the liability of the appellant to the respondent. And in so far as the respondent satisfactorily proved that the appellant owed the sum alleged upon documents which the appellant had not shown to be false. The appellant was properly found liable by the learned trial Judge, see Yassin v. Barclays Bank D.C.O. (1968) I All NLR 171, 178.

In the result for the above reasons and the fuller reasons given in the lead E judgment, this appeal is also dismissed by me and I abide with all the consequential orders made in the lead judgment.

Appeal dismissed


Chief P. Eruola Chimor -for the Appellant

M.M. Ayinla, Esq -for the Respondent.

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