MRS. ELIZABETH N. ANYAEBOSI V. R.T. BRISCOE (NIG.) LTD.

MRS. ELIZABETH N. ANYAEBOSI V. R.T. BRISCOE (NIG.) LTD.
CITATION: (1987) 7 iLAW/SC.169/1985
OTHER CITATIONS:
1 Anyaebosi v. R.T. Briscoe Nig. Ltd. (1987) NWLR (Pt. 59) 84
2 (1987) 6 S.C 15
Nigerian Coat of Arms
In The Supreme Court of Nigeria
On Friday, the 5th day of June, 1987
Suit No: SC.169/1985
Before Their Lordships
ANDREWS OTUTU OBASEKI
……. Justice of the Supreme Court
AUGUSTINE NNAMANI
……. Justice of the Supreme Court
MUHAMMADU LAWAL UWAIS
……. Justice of the Supreme Court
ADOLPHUS GODWIN KARIBI-WHYTE
……. Justice of the Supreme Court
SALIHU MODIBBO ALFA BELGORE
……. Justice of the Supreme Court
 Between
MRS. ELIZABETH N. ANYAEBOSI Appellants
 And
R.T. BRISCOE (NIG.) LTD. Respondents
RATIO DECIDENDI
1
APPEAL – INTERFERENCE WITH CONCURRENT FINDINGS OF FACT: Whether an appellate court will interfere with concurrent findings of fact of lower courts
“I think it needs to be stressed again that this Court as well as the West African Court of Appeal laid down, in plethora of cases, the principle that 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. See 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 SC.25 at 142; Okagbue v. Romaine, (1982) 5 S.C. 133 at p.170; Lokoyi v. Olojo, (1983) 8 S.C. 61 at 168; Ojomu v. Ajao, (1983) 9 S.C. 22 at 153; Overseas Construction (Nig.) Limited v. Creek Enterprises (Nigeria) Limited & Anor., (1985) 3 NWLR 407 at p. 413 and Onobruchere & Anor. v. Esegine & Anor., (1986) 1 NWLR 799 at p. 804. ” Per UWAIS, J.S.C. (P. 19, paras. A-E) – read in context
2
COURT – JUDGE: Whether a judge is entitled in his judgment to disregard an evidence erroneously admitted at the trial
“It is well settled that a Judge is perfectly entitled in his judgment to disregard an evidence erroneously admitted at the trial. See Alashe v. Ilu (1964)1 ALL NLR, 390, 397. Similarly where the inadmissibility is raised on appeal, such evidence must be rejected and expunged.) See Ajayi v Fisher (1956) 1 FSC 97; Esso West Africa Incorporated v. Alii (1968) NMLR 414, 428.” Per KARIBI-WHYTE, J.S.C (P. 45, paras. C-D) – read in context
3
EVIDENCE – DOCUMENTARY EVIDENCE: Exceptions to the rule on the admissibility of documentary evidence
“In general it is true that where a document, which is inadmissible in evidence, is admitted at trial, such document must be rejected on appeal – Ajayi v. Fisher, 1 F.S.C. 97, Esso West Africa Incorporated v. Alli, (1968) N.M.L.R. 414 at p.423 and Jacker v International Cable Co. Ltd. (1888) L.T.R. 13. 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 – see 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 and Alashe v. Ilu, (1964) 1 ALL N.L.R. 390 at p.397. 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 – see Chukwurah Ekunne v. Mathias Ekwunno & Ors., 14 W.A.C.A. 59; Yassin v Barclays Bank D.C.O., (supra) at p.179; and Alade v. Olukade, (supra) where this Court (per Idigbe, J.S.C.) observed as follows- “Dealing with the latter class of cases, however, this Court in Cavalotti Govianni v. Bonaso Luigi, SC.402/67 of 31/10/69, held that a document (a photocopy) which did not comply with section 96(1)(b) of the Evidence Act and which had been admitted without objection by the appellant was legal evidence upon which the Court could properly act. See also Chukwura Akunne v Mathias Ekwunno and Ors., (1952) 14 WACA 59. Accordingly, in those cases where the evidence complained of is not, by law, inadmissible in any event a party may, by his own conduct at the trial, be precluded from objecting to such evidence on appeal- see Gilbert v Endean, (1878) 9 Ch.D. 259 where Cotton, L.J. made the following observations-“But I must add this where in the Court below the evidence not being that on which the Court can properly act, if the person against whom it is read does not object, but treats it as admissible, then before the Court of Appeal, in my judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible. It is very clear that exhibit P.4, in the present case, was admissible under the provisions of section 96 subsections (1) and (2) of the Evidence Act. But the respondent did not lead evidence to show which of the conditions under section 96(1) applied to the exhibit. Appellant on the other hand did not object; he cannot therefore now complain that the exhibit is inadmissible because no evidence was led by the respondent at the trial to show which of the paragraphs in section 96(2) covered its admission.” Per UWAIS, J.S.C. (Pp. 22-24, paras. F-D) – read in context
4
EVIDENCE – SECTION 90(3) OF THE EVIDENCE ACT: whether Chief T. Ola Odukoya, the respondent’s Senior Accountant is a “person interested” within the meaning of Section 90(3) of the Evidence Act.
“The word “interested” has not been defined by the Evidence Act. Section 1 of the Evidence Act, 1938 of England is in pari materia with section 90 of the Evidence Act, Cap.62, subsection (3) of the former is word for word the same as subsection (3) of section 90. In construing the word “interested” in section 1(3) of the 1938 Act, Devlin L.J. made the following observation in Bearmans Ltd. & Anor. v. Metropolitan Police District Receiver, (1961) 1 W,L.R. 634 at p.655- “The word “interested” is not a word which has any well-defined meaning and any body who was asked what it meant would at once want to know the context in which it was used before he could venture an opinion. It may mean a direct financial interest on the one hand, or on the other hand it may mean nothing more than the ordinary human interest which everybody has in the out come of proceedings in which he is likely to be a witness. Just as in ordinary speech one would require to know the context, so in construing the word in an Act of Parliament it is essential-more necessary in this case than in most – to look at the scope and purpose of the Act, and I think that if one does that one will be led to the conclusion that section 1(3) is to be given a narrow rather than a broad meaning. ” I agree with the reasoning. Now giving the word “interested” in subsection 3 of section 90 of the Evidence Act, a narrow meaning; can Chief T. Ola Odukoya be said to be a person interested in the result of the proceedings brought by his employer? In general, an employee may be said to have interest in the outcome of a case if his skill or competence are involved, or his conduct in relation to the events which led to the litigation or when his association with the events is called to question. One other way of determining the interest of an employee in a case in the context of section 90(3) of the Evidence Act is to ask the question – is what is at stake in the proceedings the reputation of the maker of the statement, in the sense of his being directly responsible for the events being litigated? If the employee’s skill or competence is involved or his conduct or association with the events leading to the proceedings are in question or the question posed is answered in the affirmative, then’, in my opinion, the statement made by such employee would be caught by the provisions of subsection (3) of section 90, since the statement of the ’employee is likely to be tainted by the incentive to conceal or misrepresent facts. The position will, of course, be otherwise if none of such considerations were present. It was held in Kelleher v. T. Wall & Sons Ltd. (1958) 2 Q.B. 346 and Bearmans Ltd. & Anor. v. Metropolitan Police District Receiver (supra) that the mere fact that the maker of a statement tendered in evidence is in the employment of a party to the action does not by itself make him a “person interested” in proceedings within subsection (3) of section 1 of the Evidence Act, 1938. In the present case the only reason which learned counsel for the appellant gave for exhibit P4 to be regarded inadmissible is that its maker was likely to be blamed for any loss that the respondent could have suffered. This is no more than a surmise on the part of learned counsel, since Chief T. Ola Odukoya did not testify at the hearing of the case to say why he made exhibit P4 and the appellant did not call any evidence to support the allegation made by the appellant’s counsel. Throughout the trial there was no evidence adduced by either party to show what role Chief T. Olu Odukoya played in supplying the deceased with spare parts or accepting the deceased’s cheques which were dishonoured. It is therefore difficult to see how Chief Odukoya would feel that he would be blamed for any loss suffered by the respondent as a result of its transaction with the appellant. On the whole I see no substance in the appellant’s argument to lend weight to the contention that Exhibit P4 was made by a “person interested” or that Chief T. Olu Odukoya was “interested” in the proceedings.” Per UWAIS, JSC. (Pp. 27-29, paras. A-E) – read in context
5
EVIDENCE – ADMISSIBILITY: Category of evidences that are admissible and inadmissible
“For the purposes of admissibility, there is the category of evidence which are absolutely inadmissible on the grounds of statutory exclusionary provisions. This category of evidence remain legally inadmissible and cannot under any circumstance constitute evidence in the case at the trial or on appeal even where admitted by consent.) See Ikenye v. Ofunne (1985) 2 NWLR (pt.5) 1; Owoyin v. Omotosho (1961) 1 All NLR. 304, 308; Alashe v Ilu (1964) 1 ALL NLR 390, 397; Yashin v. Barclays Bank D.C.O. (1968) 1 All NLR 171, 177. There is the other category of inadmissible evidence rendered admissible on the fulfillment of certain conditions. This category of evidence are admissible if admitted without objection by the other party, and where the admission of the evidence did not affect the result of the case ) See Okeke v Obidife (1965) NMLR 113; Alade v Olukade (1976) 6 S.C. 183. In the last mentioned category, the other party is not entitled thereafter to complain where such evidence was admitted at the trial without objection. This principle of English common law was stated in the English case of Gilbert v Endean, (1878) 9 Ch. b. 259, and applied in this Court in Alade v. Olukade (1976) 6 SC.183. It is not applied to S.96 of the Evidence Act. In Gilbert v Endean (supra) Cotton L.J. said, “But I must add this where in the Court below the evidence not being that on which the Court can properly act, if the person against whom it is led does not object, but treats it as admissible, then before the Court of Appeal, in any judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.” In adopting this view Idigbe J.S.C. in Alade v Olukade (supra)relying on the unreported decision of this Court in Cavatotti Govianni v Bonaso Luigi SC.402/67 of 31/10/69, and the West African Court of Appeal In case of Akunne v Ekwuno & ors. (1952) 14 WACA. 59 on the non-compliance with section 96(1)(b) of the Evidence Act, Cap. 62, and where evidence was admitted without objection said,”…….in those cases where the evidence complained of is not, by law, inadmissible in any event a party may, by his own act at the trial, be precluded from objecting to such evidence on appeal … “The legal effect of the two categories of evidence as I have tried to show was stated lucidly in Yashin v. Barclays Bank D.C.A. (supra) at p. 179. It is important to state that a computerised account which Exhibit P4 was described to be, does not fall into the category of evidence absolutely inadmissible by law. In my opinion it falls within the category of evidence admissible on the fulfilment of the conditions prescribed in section 96(1) and (2) of the Evidence Act, Cap. 62.” Per KARIBI-WHTYE, JSC (Pp. 45-47, paras. E-C) – read in context
UWAIS, J.S.C. (Delivering the Leading Judgment): The parties to this case were originally the respondent (as plaintiff) and the late Innocent Ositadinma Anyaebosi (as defendant). The defendant (hereinafter referred to as “the deceased”) who was trading as “Ositadinma Trading Stores” applied by a letter dated 8th November, 1976, exhibit P1, to the plaintiff for appointment as a reseller of motors spare parts. The application was accepted by the plaintiff and the deceased was (as per exhibit P3) temporarily appointed as plaintiffs reseller for an initial period of 6 months. A number of conditions were attached to the appointment; and one of these was that- PAYMENTS:- All purchases must be on cash basis or by a certified bankers cheque. Deliveries of spare-parts and accessories will only be effected when payment has been received by the Company (i.e. plaintiff) or when it has received confirmation that its bank account has been credited, unless special arrangement has been established and confirmed by the Company in writing. It appears from the pleadings that the conditions contained in exhibits P3 were not strictly adhered to and were, by conduct, later varied by the parties. For example, the deceased’s appointment lasted up to October, 1978 instead of the 6 months given and payments to the plaintiff were not effected in the manner aforementioned. Now the plaintiff’s statement of claim, which is brief, reads thus-

1. The Plaintiff is a limited liability company registered under the laws of the Federal Republic of Nigeria and having offices throughout the Federation.

2. The Plaintiff among other things sells Vespa Motorcycles and their spare parts, Volvo cars and Toyota cars and their spare parts.

3. The Plaintiff upon the application of the defendant (i.e. deceased) dated 8th November, 1976 appointed the Defendant a reseller of its Toyota Spare Parts.

4. That as a result of the relationship between the Plaintiff and the Defendant referred to in paragraph 3 above, the Defendant between February and October, 1978 both months inclusive purchased on credit various spare parts to the tune of N60,935.10 and evidenced by various Invoices upon which the plaintiff shall rely at the trial of this suit.

5. That the Defendant kept account No. 534-121-0210 with the Plaintiff and the Plaintiff shall rely on the Defendant’s Statement of Account kept with the Plaintiff at the trial of this suit.

6. That towards liquidation of the sum outstanding on the account referred to in paragraph 5 above, the Defendant issued a Cooperative Bank of Eastern Nigeria cheque No. 8123668 dated 24th August, 1978 for the sum of N8,260.39 which cheque was dishonoured on presentation by the Plaintiff.

7. That the Defendant further issued three United Bank of Nigeria Limited, Idumagbo Branch, Lagos cheques dated 18th and 28th of September, 1978 for the sums of N1,899.70, N10,200.00 and N17,000.00 respectively in favour of the Plaintiff but which were dishonoured on presentation for payment by the Plaintiff. The Plaintiff gave notice to the Defendant that all the four cheques were dishonoured.

8. That the plaintiff and its Solicitors have made several repeated demands on the Defendant both personally and through correspondence but the Defendant has refused and or neglected to settle the outstanding account of N60,935. 10.

9. That the sum of N60,935.10 is owing and due from the Defendant to the Plaintiff.

10. That the Defendant has no defence to this action.

11. Whereof the Plaintiff claims against the Defendant the sum of N60,935.10 and interest at the rate of 10% up to the time of judgment and at 6% thereafter until judgment debt is fully paid.” Paragraphs 1 to 7 were admitted by the deceased in his statement of defence, wherein he averred that he paid the sum of N88,203.68 by personal cheques between the months of February and October in 1978. The deceased also alleged that various Receipts were given to him by the plaintiff in acknowledgement of the payments. Paragraphs 6,7,8,9,10 and 11 of the statement of defence read-

“6. In further answer to paragraphs 6 and 7 of the Statement of Claim the Defendant avers that when the said cheques for N8,260.39, N1,899.70, N10,200.00 and N17,000.00 were returned unpaid, the Defendant paid cash therefor whereupon the dishonoured cheques were returned to the Defendants.

7. The Defendant denied paragraph 8 of the Statement of Claim but admits that the Plaintiffs’ staff came on about three (3) occasions to demand payment of an alleged debt of N60,935.10.

8. The Defendant told the Plaintiffs’ staff that the said times they came to make the aforementioned demand as well as the Plaintiffs’ Mr. Onuoha that it is the Plaintiffs who are owing the Defendant and further demanded that a proper statement of the account of the dealings between the plaintiffs and the Defendant be made available to the Defendant but to no avail.

9. The Defendant denies paragraphs 9,10 and 11 of the Statement of Claim and states that he is not liable to the Plaintiff as alleged or at all.

COUNTER CLAIM

10. The Defendant repeats paragraphs 1 to 9 inclusive of the Statement of Defence.

11. By reason of the premises, the Defendant has suffered loss and damages.

PARTICULARS OF DAMAGE: Balance of the payment on account made by the Defendant to the Plaintiffs between February and October, 1978 i.e. N88,203.68 minus N60,935.10…=N27,268.58 And the Defendant counterclaims:1. Balance of payment on account … N27,268.58,    2.Damages,    3.Interests.”At the hearing before the trial Judge (Williams, J.), the plaintiff called only one witness – Mr. Edward Oladipo Aina, who was its Spare Parts Manager. The witness after testifying that the plaintiffs accounts were kept by computer, tendered a statement of account which the plaintiff kept in respect of its transactions with the deceased. The statement was admitted, without objection by the deceased’s counsel, as exhibit P4. This exhibit which is in a computer printed form was certified to be a true copy by one Chief T. Ola Odukoya, employed as Senior Accountant in the Respondent’s Motor Account Department. The exhibit was dated 31st December, 1980 and it showed a balance of N60,535.10 as outstanding against the deceased.The deceased gave evidence on his behalf. He denied owing the plaintiff the sum of N60,985.10 “between February, 1975 (sic) – October, 1978.” He tendered 10 receipts issued by the plaintiff in respect of the sum of N88,203.68 which he pleaded he paid to the plaintiff in 1978. These were admitted as exhibits “D-D9”. The deceased said that all the 4 cheques he issued to the plaintiff, which were dishonoured by his banks, were returned to him by the plaintiff and that he destroyed them. The photocopies of the cheques were earlier tendered in evidence by the plaintiffs witness and these were admitted as exhibits P5 to P8 inclusive. In support of his counter-claim, the deceased stated that he used to make payments to the plaintiff in advance so  that the spare parts could be reserved for him to collect later. The deceased said that it was the difference between the sums of N88,203.68 and N60.935.10 claimed by the plaintiff that his Counter-claim was based on. In a considered judgment, the learned trial Judge found that although it was agreed in exhibit P3 that the deceased would make payments to the Plaintiff by cash or certified banker’s cheques, the deceased was allowed to  issue his personal cheques for the payment of the purchases made by him. The learned trial Judge examined exhibits D to D9 and the entries in exhibit P4 and concluded as follows – “On the totality of the evidence, both oral and documentary, it is certainly not true that the defendant (i.e. deceased) paid cash to the plaintiff in respect of the dishonoured cheques. If he did, all those payments would have appeared on the statement of account, exhibits P4.The defendant said in his evidence that he paid cash for dishonoured cheques to one Mr. Onuorah, a Manager of the plaintiff who on such payment returned the dishonoured cheque to him. He even said half heartedly that he had such dealings with one Mr. Aina, another Manager of the plaintiff. If that were true, it would be the defendant’s duty to prove payment by calling credible evidence to prove payment because it is my opinion that in such a situation as this the burden of proof must shift to the defendant. He did not call such evidence. For these reasons I do believe and accept the statement of account between the parties and that the overall balance in that account is the amount which the defendant now owes the plaintiff. I find on the documentary and oral evidence as produced in this case that the plaintiff has proved its claim and is therefore entitled to judgment.(Italics mine)

With regard to the deceased’s counter-claim, the learned trial Judge said – “The defendant relied on the receipts Exhibits D – Exhibit D9 in proof of his counter-claim. His case was that the total sum on those receipts was more than the balance on the statement of account Exhibit P4. It has however been shown above that seven of ten receipts were shown in Exhibit P4 which meant that the amount shown on those seven receipts were duly received by the plaintiff. It is also clear on the evidence that the amounts on the 8 receipts Exhibit D7, Exhibit D8 and Exhibit D9 as tendered by the defendant were never received by the plaintiff because the cheques which he gave to the plaintiff for the sums on those three receipts were, on his admission, dishonoured. Furthermore the cheque Exhibit P5 which he admitted was not receipted was dishonoured by his bank. I have found that the defendant did not pay any cash for all his dishonoured cheques and since the defendant did not show any proof about the other payments which made up the other sums totalling N60,935.10 as claimed by the plaintiff,I find without any difficulty that the defendant’s counter-claim has not been proved, It should be dismissed and it is accordingly dismissed.(Italics mine)

In the result the learned trial Judge concluded his judgment as follows- “Judgment is hereby entered against the defendant and in favour of the plaintiff for the sum of N60, 935.10 with interest on the sum at the rate of 10% per annum from 30th March, 1981 up till today (i.e. 23rd April, 1982) and 6% per annum from today’s date until the judgment debt is fully paid.” The deceased appealed from the decision of the trial court to the Court of Appeal; but before the appeal could be heard by that Court, the deceased died on 27th April, 1982. His widow, Mrs. Elizabeth N. Anyaebosi, applied to be substituted for the deceased on behalf of herself and the rest of the deceased’s family. She was accordingly substituted as the Appellant before the Court of Appeal. It was argued before the Court of Appeal that exhibit P4 was inadmissible at the trial because it was prepared in anticipation of the litigation brought by the plaintiff. But the Court of Appeal (per Mohammed, J.C.A.) held-I have no hesitation in accepting that exhibit P4 was not made by a person interested in this proceedings and that the maker did not anticipate the litigation now pending in respect of the matter.” And on the contention that the deceased had paid to the plaintiff the sum of N88,203.68 as shown by exhibits D-D9, the learned Justice of the Court of Appeal said, before dismissing the appeal – “The learned trial judge considered all the receipts tendered by both parties and I am quite satisfied that he came to a correct conclusion that the overall balance in the statement of account is the amount which the appellant now owes the respondent.” In the further Appeal now before this Court, the appellant has, with the leave of the Court of Appeal, filed 12 grounds of appeal. Most of these grounds raise questions of either facts or mixed law and facts, on which there had been concurrent findings of fact by the lower courts. The ease with which the Court of Appeal, though differently constituted, granted to the Appellant the leave to appeal is therefore alarming. I think it needs to be stressed again that this Court as well as the West African Court of Appeal laid down, in plethora of cases, the principle that 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. See 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 SC.25 at 142; Okagbue v. Romaine, (1982) 5 S.C. 133 at p.170; Lokoyi v. Olojo, (1983) 8 S.C. 61 at 168; Ojomu v. Ajao, (1983) 9 S.C. 22 at 153; Overseas Construction (Nig.) Limited v. Creek Enterprises (Nigeria) Limited & Anor., (1985) 3 NWLR 407 at p. 413 and Onobruchere & Anor. v. Esegine & Anor., (1986) 1 NWLR 799 at p. 804.

No exceptional circumstance was prima facie shown by the appellant in his application to the Court of Appeal. The application was simply granted as a matter of course. This is obviously a negation of the principle which was repeatedly laid down in the cases cited above and ought to be deprecated. In Holman Bros. (Nigeria) Limited v. Kigo (Nig) Limited. & Anor., (1980) 8-11 S.C. 43 which approved the decision in Ex parte Gilchrist, In re Armstrong (1886-87) 17 Q.BD 521, Udoma, J.S.C. gave the following warning-“On the other hand, care should always be taken so as not to give the impression that leave to appeal would be granted as a matter of course – a mere routine. “In order not to render the Constitutional requirement under Section 123(3) of the 1979 Constitution otiose, the warning ought to be heeded whenever application for leave to appeal is being considered by the Court of Appeal.

“It is not necessary to set-out the grounds of appeal as it will suffice to say that the substance of appellant’s complaints falls under 3 heads, namely-

1. That exhibit P4, being secondary evidence, was admitted in evidence by the trial court contrary to the provisions of Section 90 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 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.

Arguing the first head, Mr. Okoli, learned counsel for the appellant in this Court (as well as the lower courts) submitted that since exhibit P4 was certified copy it was inadmissible under Sections 95, 96,108, 109 and 111 of Evidence Act, Cap.62 if read together. This argument detracts to some extent’ from the Appellant’s brief of argument which placed reliance on Section 96 subsection (2) of the Evidence Act only and cited Alade v. Olukade (1976) 2 F.N.R. 10; (1976) 1 ALL NLR 67, in support of the submission. Be that as it may, it is significant to point out that when exhibit P4 was tendered in evidence, learned counsel did not object to its admission nor did he point out to the trial judge that it was inadmissible under section 96(2) of the Evidence Act or any of the other sections of the Evidence Act, referred to in his argument. The question then is: can the appellant blow hot and cold in respect of the admission of exhibit P4? Section 95 of the Evidence Act provides that in court proceedings, documents must be proved by primary evidence except in the cases that fell under section 96 of the same Act. Section 96 subsection (1) sets out the various conditions under which secondary evidence of the contents of a document may be given. And subsection (2) of section 96 provides as follows- “(2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) is as follows:- (a) in paragraphs (a), (c) and (d) any secondary evidence of the contents of the document is admissible; (b) in paragraph (b) the written admission is admissible; (c) in paragraph (e) or (f) a certified copy of the document, but no other kind of secondary evidence, is admissible; (d) in paragraph (g) evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents; (e) in paragraph (h) the copies cannot be received as evidence unless it be first proved that the book in which the entries copied were made was at the time of making one of the ordinary books of the banks, and that the entry was made in the usual and ordinary course of business, and that the book is in the custody and control of the bank, which proof may be given orally or by affidavit by a partner or officer of the bank, and that the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry and may be given orally or by affidavit.” It is the non-compliance with any of these provisions, by the respondent, in tendering exhibit P4 in evidence that the appellant is canvassing. In general it is true that where a document, which is inadmissible in evidence, is admitted at trial, such document must be rejected on appeal – Ajayi v. Fisher, 1 F.S.C. 97, Esso West Africa Incorporated v. Alli, (1968) N.M.L.R. 414 at p.423 and Jacker v International Cable Co. Ltd. (1888) L.T.R. 13. 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 – see 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 and Alashe v. Ilu, (1964) 1 ALL N.L.R. 390 at p.397. 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 – seeChukwurah Ekunne v. Mathias Ekwunno & Ors., 14 W.A.C.A. 59; Yassin v Barclays Bank D.C.O., (supra) at p.179; and A lade v. Olukade, (supra) where this Court (per Idigbe, J.S.C.) observed as follows- “Dealing with the latter class of cases, however, this Court in Cavalotti Govianni v. Bonaso Luigi, SC.402/67 of 31/10/69, held that a document (a photocopy) which did not comply with section 96(1)(b) of the Evidence Act and which had been admitted without objection by the appellant was legal evidence upon which the Court could properly act. See also Chukwura Akunne v Mathias Ekwunno and Ors., (1952) 14 WACA 59. Accordingly, in those cases where the evidence complained of is not, by law, inadmissible in any event a party may, by his own conduct at the trial, be precluded from objecting to such evidence on appeal- see Gilbert v Endean, (1878) 9 Ch.D. 259 where Cotton, L.J. made the following observations-“But I must add this where in the Court below the evidence not being that on which the Court can properly act, if the person against whom it is read does not object, but treats it as admissible, then before the Court of Appeal, in my judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.” It is very clear that exhibit P.4, in the present case, was admissible under the provisions of section 96 subsections (1) and (2) of the Evidence Act. But the respondent did not lead evidence to show which of the conditions under section 96(1) applied to the exhibit. Appellant on the other hand did not object; he cannot therefore now complain that the exhibit is inadmissible because no evidence was led by the respondent at the trial to show which of the paragraphs in section 96(2) covered its admission. In Yassin v. Barclays Bank D.C. O. (supra) Lewis, J.S.C. stated at p.179, as follows- “We do not, in this judgment seek to derogate from what we said in Alashe v. Ilu in any way. That case was dealing with evidence absolutely inadmissible by virtue of the statutory provisions applicable there, but here the statement of account is expressly declared to be admissible under section 96 of the Evidence Act, if certain conditions are satisfied. If inadmissible evidence is not objected to and is admitted it must still be rejected on appeal but if the evidence can be interpreted as complying with the appropriate statutory requirement, then it is a matter to be taken into consideration when interpreting the evidence that it went in unchallenged. In other words, if the evidence can be treated as inadmissible because there is a possible other interpretation which would render it inadmissible when that possible other interpretation had not been tested by questions from the party who could have objected to the evidence being admitted.” italics mine.

I now turn to the second complaint of the appellant, that exhibit P4 was prepared by an interested person at a time when litigation was anticipated. Learned counsel for the appellant argued that Chief T. Ola Odukoya, who certified exhibit P4 as true copy must have been interested, as an employee of the respondent, in the respondent winning the case. His reason for urging so was that Chief Odukoya would be blamed for any loss that the respondent might suffer. In addition, learned counsel for the appellant referred to exhibits P.10, P.11 and P.12, which were letters sent by the respondents solicitors to the deceased demanding the settlement of the amount claimed in the writ of summons, and submitted that when exhibit P4 was prepared on the 31st December, 1980, litigation was being anticipated. In reply, Mr. Phillip, learned counsel for the respondent, argued on the authority of Holton v Holton, (1946) 2 All E.R. 534 at p.535, that unless Chief T. Ola Odukoya, had financial or other interest in the outcome of the case, he could not be said to be an interested person. He contended further that the fact that the maker of a document (in this case Chief T. Ola Odukoya) is an employee or servant does not make him an interested person; evidence of real likelihood of bias must be adduced before the employee or servant can become an interested person. Now section 90(1) of the Evidence Act provides that in any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall on the production of the original document be admissible of that fact, if certain conditions, which should not bother us here are satisfied. The provisions of the subsection are, however, qualified under subsection (3) of section 90 of the Act, which provides-(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.” Demand letters exhibits P10, P11 and P12 were written by the respondent’s solicitors on the 19th February, 1980, 26th February, 1980 and 8th March, 1980 respectively. Each of the three letters, which were sent to the deceased, ended with threat of legal proceedings if the demand made was not settled. Exhibit P4 was not prepared until the last day of the year that is the 31st December,  1980. The writ of summons was taken out against the deceased on the 20th March, 1981. From the foregoing facts, there can be no doubt that litigation was being anticipated when exhibit P4 was made on the 31st December, 1980. The only question that remains to be answered is whether Chief T. Ola Odukoya, the respondent’s Senior Accountant is a “person interested” within the meaning of Section 90(3) of the Evidence Act.The word “interested” has not been defined by the Evidence Act. Section 1 of the Evidence Act, 1938 of England is in pari materia with section 90 of the Evidence Act, Cap.62, subsection (3) of the former is word for word the same as subsection (3) of section 90. In construing the word “interested” in section 1(3) of the 1938 Act, Devlin L.J. made the following observation in Bearmans Ltd. & Anor. v. Metropolitan Police District Receiver, (1961) 1 W,L.R. 634 at p.655- “The word “interested” is not a word which has any well-defined meaning and any body who was asked what it meant would at once want to know the context in which it was used before he could venture an opinion. It may mean a direct financial interest on the one hand, or on the other hand it may mean nothing more than the ordinary human interest which everybody has in the out come of proceedings in which he is likely to be a witness. Just as in ordinary speech one would require to know the context, so in construing the word in an Act of Parliament it is essential-more necessary in this case than in most – to look at the scope and purpose of the Act, and I think that if one does that one will be led to the conclusion that section 1(3) is to be given a narrow rather than a broad meaning. “I agree with the reasoning. Now giving the word “interested” in subsection 3 of section 90 of the Evidence Act, a narrow meaning; can Chief T. Ola Odukoya be said to be a person interested in the result of the proceedings brought by his employer? In general, an employee may be said to have interest in the outcome of a case if his skill or competence are involved, or his conduct in relation to the events which led to the litigation or when his association with the events is called to question. One other way of determining the interest of an employee in a case in the context of section 90(3) of the Evidence Act is to ask the question – is what is at stake in the proceedings the reputation of the maker of the statement, in the sense of his being directly responsible for the events being litigated? If the employee’s skill or competence is involved or his conduct or association with the events leading to the proceedings are in question or the question posed is answered in the affirmative, then’, in my opinion, the statement made by such employee would be caught by the provisions of subsection (3) of section 90, since the statement of the ’employee is likely to be tainted by the incentive to conceal or misrepresent facts. The position will, of course, be otherwise if none of such considerations were present. It was held in Kelleher v. T. Wall & Sons Ltd. (1958) 2 Q.B. 346 and Bearmans Ltd. & Anor. v. Metropolitan Police District Receiver (supra) that the mere fact that the maker of a statement tendered in evidence is in the employment of a party to the action does not by itself make him a “person interested” in proceedings within subsection (3) of section 1 of the Evidence Act, 1938.In the present case the only reason which learned counsel for the appellant gave for exhibit P4 to be regarded inadmissible is that its maker was likely to be blamed for any loss that the respondent could have suffered. This is no more than a surmise on the part of learned counsel, since Chief T. Ola Odukoya did not testify at the hearing of the case to say why he made exhibit P4 and the appellant did not call any evidence to support the allegation made by the appellant’s counsel. Throughout the trial there was no evidence adduced by either party to show what role Chief T. Olu Odukoya played in supplying the deceased with spare parts or accepting the deceased’s cheques which were dishonoured. It is therefore difficult to see how Chief Odukoya would feel that he would be blamed for any loss suffered by the respondent as a result of its transaction with the appellant. On the whole I see no substance in the appellant’s argument to lend weight to the contention that Exhibit P4 was made by a “person interested” or that Chief T. Olu Odukoya was “interested” in the proceedings. With regard to the final point that there was discrepancy between the amount of N60,935.10 claimed by the respondent and the amount appearing on exhibit P4, learned counsel for the appellant canvassed that there was no proof of the amount claimed and exhibit P4 is not sufficient, in view of the provisions of section 37 of the Evidence Act, to prove that the appellant was owing the lesser amount of N60,535.10 established by the exhibit. Section 37 of the Evidence Act, Cap, 62 states-“Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.” Learned counsel for the respondent replied that the provisions of Section 37 of the Evidence Act are not applicable because exhibit P4 was not the only evidence adduced by the respondent in proving its claim. The finding made by the trial court was stated in the following words already quoted above -“For these reasons I do believe and accept the statement of account between the parties and that the overall balance in that account is the amount which the defendant now owes the plaintiff.”And yet the trial court gave judgment in the sum of N60,935.10 instead of N60,535.10 which was “the overall balance” in the statement of account Exhibit P 4.On the finding the Court of Appeal said, also as quoted above – “I am quite satisfied that he (learned trial Judge) came to a correct conclusion that the overall balance in the statement of account is the amount which the appellant now owes the respondent.” It is true that the figure N60,535.10 which appears in exhibit P4 is different from the amount claimed by the respondent. It is in fact less than the amount claimed by N400.00. By relying on exhibit P4 the amount proved by the respondent as owing is N60,535.10 and not the N60,935.10 claimed and ;or which judgment was given by the lower Courts. It follows, therefore, that judgment could only and should have been entered for the lesser amount. This notwithstanding, was there any evidence apart from the statement of account, exhibit P4, to establish the appellant’s liability in the sum of N60,535.10 to the respondent. I am satisfied that there was such evidence. For P.W.1 – Mr. Edward Olabode Aina, testified as follows-“After the (deceased) was appointed (reseller), he commenced to buy spare parts from the plaintiff. Defendant was one of them (resellers) who was allowed to buy by his personal cheque only operates an account with the plaintiff. He was one of the few to be given this facility. He operated an account. He operates a computerised system of account. This is the defendant’s statement of account from February 1978 to July, 1980. I produce it, no objection Okoli, admitted and marked Exhibit P4. The value of the trade between the plaintiff and defendant amounted to over N170,000. Defendant bought goods to that value from the plaintiff. He paid by his personal cheques. Receipts were issued for cheques paid. Four of the cheques were returned unpaid by their banks. The total sum in these returned cheques was over N37,000…………….The defendant has not settled his indebtedness. I want the court to compel the defendant to pay the amount on the cheques Exhibits P5-P8 and the outstanding amount all totaling over N60,000 ………..”In the light of this testimony it is clear that exhibit P4 was not the only evidence on which the appellant’s indebtedness to the respondent was proved. The proviso to section 37 of the Evidence Act, does not therefore apply to this case.For the foregoing reasons the appeal fails except on the question of the amount for which judgment should have been given to the respondent. Consequently, the judgment of the High Court entered for the respondent is varied to read as follows -“Judgment is hereby entered against the defendant and in favour of the plaintiff for the sum of N60, 535.10 with interest on the sum at the rate of 10% per annum from 30th March, 1981 up till today and 6% per annum from today’s date until the judgment debt is fully paid.The plaintiff shall have costs which are assessed and fixed at N175.00.”There will be no order as to costs in this Court. Each party is to bear its costs.

OBASEKI, J.S.C.: I have had the advantage of reading in advance the draft of the judgment just delivered by my learned brother, Uwais, J.S.C. I find that it fully expresses my opinion on the issues raised in this appeal and I adopt it as my own.This appeal deals with a claim for N60,935.10 for goods sold and delivered with interest at the rate of 10% to the time of judgment and 60% thereafter until judgment debt is fully paid. The amount represents the balance unpaid as disclosed in the account of the appellant kept with the respondent in respect of the transaction. It is common ground that there was business transaction between the parties wherein the respondent sold motor spare to the appellant on account and the appellant paid on account to liquidate the cost of the spares sold and delivered to him. It appears that as time passed, the appellant had financial problems and some of the cheques he issued in payment of the cost of spares could not be cashed. They were dishonoured and as the appellant was unable to pay the balance, cost price of the spares, the respondent discontinued the credit sales and appellant’s business ground to a halt. As he did not pay the balance despite several repeated demands, the respondent took out a writ of summons in the High Court claiming the balance from him with interest. It is common ground that the appellant had an account kept with the respondent in respect of the transactions between the parties. The respondent produced a certified true copy of the statement of account Exhibit P4 from the computer record. This was admitted in evidence in the High Court without objection. But both in the Court of Appeal and in this Court, serious objections have been raised to its admissibility. The Court of Appeal dealt with the objections before it and dismissed it. As there was no objection to the admissibility” of the document before the High Court, the learned trial judge admitted it and allowed the claim based on it. Paragraphs 5 & 8 of the statement of claim wherein the statement of account was pleaded reads:

“5. That the defendant kept account No. 534-121-0210 with the plaintiff and the plaintiff shall rely on the defendant’s statement of account kept with the plaintiff at the trial of this suit.

8. That the plaintiff and its solicitors have made several demands on the defendant both personally and through correspondent but the defendant has refused and or neglected to settle the outstanding account of N60,935.10.” The defendant admitted amongst others paragraph of the statement of claim but averred in his statement of defence and counter-claim that he paid deposit amounts to the plaintiff far in excess of the amount to cover the cost of spares and he claimed the excess payment of N27,638.58 He pleaded in paragraphs 7. 8 and 11 of the statement of defence and counter-claim as follows:

“7. The defendant denies paragraph H of the statement of claim hut admits that the plaintiff’s staff came on ahout three (3) occasions to demand payment of the alleged debt of N60,935.10;

8. The defendant told the plaintiff’s staff that the said times they came to make the aforementioned demand as well as the plaintiff’s Mr. Onuoba that it is the plaintiffs who are owing the defendant and further demanded that a proper statement of account of the dealings between the plaintiffs and the defendant be made available to the defendant but to no avail.” I think the most damaging admission made by the defendant was in respect of the facts pleaded in paragraph 4 of the statement of claim. This paragraph 4 of the statement of claim reads:

“4. That as a result of the relationship between the plaintiff and the defendant referred to in paragraph 3 above, the defendant between February and October, 1978 both months inclusive purchased on Credit various spares on credit to the tune of N60,935.10 and evidenced by various invoices upon which the plaintiff shall rely at the trial of this suit.” Having admitted the facts pleaded in this paragraph, the defendant has taken on the onus of proving that he paid the amount. This failure to discharge the onus of proof led the trial judge to hold as he did in his judgment thus: “I have found that the defendant did not pay any cash for all his dishonoured cheques and since the defendant did not show any proof about the other payments which made up the other sums totalling N60,935, 10 as claimed by the plaintiff. I find without any difficulty that the defendant counterclaim has not been proved.

Judgment is hereby entered against the defendant and in favour of the plaintiff for the sum of N60,935.10 with interest on the sum at the rate of 10% per annum from 30th March, 1981 up till today (i.e. 23rd April, 1982) and 6% per annum from today until the judgment debt is fully paid.” The defendant heing dissatisfied with the decision, went on appeal. At the Court of Appeal, counsel for the defendant/appellant concentrated his attack on Exhibit P4 in anticipation to show that it was inadmissible without success. The Court of Appeal rejected the submission that it was made by a person interested in anticipation of proceedings in court. The Court also rejected the contention that the defendant paid to the plaintiff the sum of N88,203.68 shown on Exhibits D, D1 to D9 and held that the learned trial judge came to a correct conclusion that the overall balance in the statement of account is the amount which the appellant now owes. The defendant was also not satisfied with the decision of the Court of Appeal and he brought this appeal to this Court. The grounds of appeal were all aimed at upsetting the concurrent findings of fact and in support, learned counsel for the appellant launched a scathing attack on Exhibit P4 submitting with all the force at his command that it was inadmissible.It is well settled that this Court does not disturb concurrent findings of fact arrived at by two or more courts below unless it is satisfied that there is an error on the face of the record occasioning a miscarriage of justice. See Lokoyi v. Olojo (1983) 8 SC.68 at 68; Overseas Construction (Nig.) Ltd. v. Creek Enterprises (Nigeria) Limited and Anor. (1985) 3 NWLR. 407 at 413 Onobruchere & Anor. v. Esegene & Anor. (1986) 1 NWLR, 799 at 804. The appellant has failed in this appeal to show any error occasioning a miscarriage of justice. Exhibit P4 is admissible under the provisions of Section 90(1) and (2) of the Evidence Act and the appellant did not object to the admission of the document at the trial. It was admitted with his consent and not being a document which is inadmissible in any event under the law, the appellant cannot now complain.Alade v. Olukade (1976) 1 ALL NLR, 67 Yassin v. Barclays Bank DCO. (1968) 1 All NLR, 171Chukwurah Ekwune v. Mathias Ekwuno 14 WACA 59 at 177It is not absoultely inadmissible as in Alashe v. Ilu (1964) 1 All NLR 390 at 397. On the issue of Exhibit P4 being prepared by someone with an interest, I find no substance in the Appellant’s argument. However, Exhibit P4 shows only a debit balance of N60,535.10. This is less than the amount claimed and the judgment will be varied to this amount. For the above reasons and the lucid reasons in the judgment just delivered by my learned brother, Uwais, J.S.C. I hereby also dismiss the appeal, subject to the variation that judgment shall be for the amount shown on Exhibit P4 as debit balance which is N60,535.10 The respondent shall have costs in this appeal fixed at N300.00.

NNAMANI, J.S.C.: I had a preview of the judgment just delivered by my learned brother, Uwais, J .S.C. and I entirely agree with his reasoning and conclusions. My comments are no more than of a concurring nature.The appellant was in this appeal facing an uphill task in the face of the concurrent findings of facts and judgments by the High Court and the Court of Appeal. This Court has in many decisions said it would not interfere with such decisions unless it be shown that there is such error in substantive or procedural law as may have led to a miscarriage of justice. See Enang v. Adu (1981) 11-12 S.C. 25. 42. Nevertheless, learned counsel to the appellant, Mr Okoli put up a brave and commendable effort both in his argument in this Court and in his well written and reasoned brief of argument. In that brief of argument, he set out the issues for determination on page 2 as including: “(1) Was the Court of Appeal right in its view that Exhibit P4 in this case was not made by a person interested when litigation was anticipated so as to make the said exhibit properly admissible in law?There is no doubt that Exhibit P4, which was the Statement of Account No.534-121-0210 of the appellant’s business dealings with the respondent, and which had been referred to in paragraph 5 of the Statement of Claim, is in the centre of this appeal since both the High Court and the Court of Appeal based their Judgments on it. Mr Okoli put all his cannon on it contending first that it was prepared in anticipation of litigation by a person interested. Second that it not being an original document and not being such a document a certified copy of which could be admitted it was inadmissible; and thirdly, even if it was admissible it was insufficient to sustain the claim of the respondent having regard to section 37 of the Evidence Act. As to the first issue Exhibit P4 was prepared by Chief T. Ola Odukoya. Although he was admittedly an employee of the respondent, much more than that was needed to make him an interested person in the result of the litigation within the accepted principles governing this aspect of the case. No evidence of any specific reason why an affirmative verdict in favour of the respondent would be in the interest of Chief Odukoya was given. As to Exhibit P4 being prepared in anticipation of litigation, Me Okoli is in my view on firmer ground. Exhibit p4 was prepared on 30th December, 1980 while the suit was filed, pursuant to demand letters Exhibits P9 – P12, on 20th March, 1981. That does not of course sort out the issue of admissibility. On this it is pertinent to add that Mr Okoli did not object when Exhibit P4 was tendered in evidence in the high Court. Notwithstanding this, he relies on Sections 95,96,108,109 and 111 of the Evidence Act and the case of Alade v. Olukade (1976) 2 F.N.R. 10. I am of the view that Mr Phillips, learned counsel to the Respondent was right in his submission that Exhibit P4 was properly admitted having regard to Sections 96(1) (g) and 96(2)(d) of the Evidence Act. As regards the fact that learned counsel for the appellant did not object when the exhibit was tendered, it is fairly settled that whether learned counsel in such cases can object to such documents in an appeal court would depend on whether the document was one that is inadmissible in any event due to some statutory reasons, or one which may be admissible on fulfillment of certain conditions. See Kasali Raimi v Alhaji Akintoye (1986) 3 NWLR (Part 26) p.97, Ikenye v Ofunne (1985) 2 NWLR (Pt.5) 1; Alashe v. Ilu (1964) 1 ALL NLR 390, 397.Exhibit P4 was not a document that was inadmissible in law in any event. Section 37 of the Evidence Act, the last assult on Exhibit P4, provides as follows:- “Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire but such Statements shall not alone be sufficient evidence to charge any person with liability” There was evidence beyond and outside this section on which the appellant’s liability as shown in Exhibit P4 was established. Exhibits D-D9 were receipts issued by the respondent to the appellant whenever he issued his personal cheques. Of these cheques, Exhibits P5-P8 were the 4 dishonoured cheques. It was in evidence that whenever the appellant paid cash for any of the dishonoured cheques, he was issued with a receipt for such payment, No receipts for 3 of the dishonoured cheques were produced by the appellant. In fact the appellant claimed that he paid cash and the dishonoured cheques were returned to him but they were lost in a fire. That the evidence by the respondent was correct is borne out by Exhibit P6, a dishonoured cheque for N1,599.70 reflected on Exhibit P4. The receipt Number issued for that cheque was reflected in Exhibit P4. Obviously following a later payment of cash, a new receipt number was reflected in Exhibit P4. Although the amount involved in the dishonoured cheques was only N37,000, the argument of Mr. Phillips that other cheques may have bounced and no receipts were tendered to show payment of cash to cover any such cheques seems sound. The liability of the appellant was in my view well established by the evidence accepted by the two lower Courts. As to the counter claim of N55,203.6S set up by the appellant in paragraphs 6, 10 and 11 of his Statement of Defence, it could not have been established in the face of so many dishonoured cheques. The appellant does not dispute that he collected goods from tlie respondent worth N60,935.10. I would in all these circumstances also dismiss this appeal. It is hereby dismissed. I abide by all the orders made by my learned brother, Uwais, J.S.C.

KARIBI-WHYTE, J.S.C.: I have had the privilege of reading in advance the judgment of my learned brother Uwais J .S.C. in this appeal. I agree entirely with his reasoning and the conclusion that this appeal be dismissed. I too will, and hereby dismiss the appeal. I only wish to add a few comments of my own in amplification of the views express6d by my learned brother Uwais, J.S.C. with regard to the question of the admissibility of Exhibit P4, the statement of account tendered by the Plaintiff Respondents at the trial, and admitted in evidence and acted upon by the learned trial Judge. The admissibility of Exhibit P4, on the grounds of interest and that it was made in anticipation of legal proceedings are grounds 2 & 5 of the grounds of appeal in the Court below. Both grounds of appeal were dismissed. The appeal against the judgment of the learned trial Judge was dismissed by the Court of Appeal. This is an appeal against the judgment of the Court of Appeal. Twelve grounds of appeal were filed before us. Grounds 1, 2, 3, 4, 5, 6, 7, 8 relate to the issue of the admissibility vel non of Exhibit 4. I have not considered it necessary to reproduce the relevant grounds of appeal since the substance of the grounds of appeal are adequately covered by the formulation of the issues to be determined in this appeal. Counsel to the Appellants in the brief of argument filed has formulated the issues for determination as follows:

“1. Was the Court of Appeal right in its view that Exhibit P4 in this case was not made by a person interested when litigation was anticipated so as to make the said exhibit properly admissible in law?

2. The trial Court having admitted Exhibit P5-P8 by virtue of Section 96(1)(c) of the Evidence Law, was he right on the evidence to hold that Appellant did not pay cash to the Respondent in respect of the originals of Exhibits P5-P8 and should not the Court of Appeal have reversed this finding?

3. Has there not been such misdirection by the Court of Appeal or are the reasons for its decision not so erroneous or unsatisfactory as to move this Court to examine all the evidence in this case and determine whether the Appellant has established her counterclaim? More tersely stated the issues raised are(a) Whether Exhibit P4 was rightly admitted in law, and Plaintiff established his claim thereby? (b) Whether Appellant has not proved her counter-claim? I shall limit this judgment to the question of the admissibility of Exhibit P4.

The facts of this appeal which have been more fully stated in the judgment of my learned brother Uwais, J.S.C., C.O.N. was given in favour of the Respondent as plaintiffs, against the Appellants as Defendants in the sum of N60,935.10 in the High Court. Appellant who had denied the claim, counter-claimed in the sum of N27,268.58. The counter-claim was dismissed on the ground that Appellants did not prove their claim. The main plank of the contention of Mr. Okoli, of Counsel to the Appellants both in the Court below, and in this Court was that, the statement of account Exhibit P4 relied upon by the Plaintiff/Respondents in the High Court to prove their claim was inadmissible, both on the ground that it was a document made in anticipation of legal proceedings and that it was made by “a person interested.” Counsel relied on his interpretation of section 96(2) of the Evidence Act, Cap. 62 and Alade v Olukade (1976) 6 SC. 183. It was submitted both in the brief of argument filed and orally before us that Exhibit P4 was prepared by a person interested and in anticipation of legal proceedings. Counsel argued that Exhibit P4 was not Defendant/Appellant’s statement of Account, but Respondent’s Statement of Account of their alleged transactions with the Appellant’s Counsel submitted that Exhibit P4 ought to have been expunged from the record of proceedings.It is pertinent to observe that Exhibit P4 alleged to be inadmissible by counsel to the Appellants is the Statement of account by the Respondents of the transaction between Appellant and Respondents. In paragraph 5 of the statement of claim which was admitted in paragraph 3 of the statement of defence, it was pleaded as follows-

“5. That the Defendant kept account No. 534-121-210 with the Plaintiff and the Plaintiff shall rely on the Defendants’ statement of Account kept with the Plaintiff at the trial of this suit.” It is this admitted statement of account that was certified by Chief T. Ola Odukoya, the Senior Accountant of the Respondent and is Exhibit P4. Chief Odukoya was described by Counsel to the Appellant as a party interested within the meaning of section 90(3) of the Evidence Act. Mr. Aduroja has in his brief of argument submitted that Exhibit P4, the Statement of Account, was rightly admitted. Under section 90(2) of the Evidence Act. It was submitted that Exhibit P4 was not made by a person interested within section 90(3) of the Evidence Act since Chief T. Ola Odukoya was Senior Accountant of the Respondent’s Company and by virtue of his office and in the ordinary course of duty, and had no personal financial interest in the result of the case. Counsel also rejected the contention that Exhibit P4 was made in anticipation of litigation. He referred to Exhibit P10, P11, and P12, letters of demand from Solicitors of the Respondent to the Appellant, and contended that Exhibit P4 was made not in anticipation of litigation but in the ordinary course of commercial transactions. Counsel referred to Bearmans Ltd. v Metropolitan Police District Receiver (1961) 1 WLR 634, Jarman v Lambert and Cooke (Contractors) Ltd. (1951) 2 ALL E.R. 255 at p.261.Without conceding the fact, but assuming that Exhibit P4 was wrongfully admitted, in evidence, counsel submitted that the decision having been upheld by the Court of Appeal, the judgment was saved by the provisions of section 226(1) of the Evidence Act. The dominant consideration is whether substantial justice has been done taking into account what has been properly proved – Counsel cited and relied on Alhadi v Allie (1951) 13W.A.C.A. 323; Owoyin v Omotosho (1961) 1 All NLR.304; Okirinta Ugbola & ors. v. Awo Okorie & Ors. (1972) 12 S.C. 1 at pp. 13-14.It is of primary and critical importance that a document used in litiga tion must not only be relevant, it should also be admissible. Section 96(1) sets out the circumstances where secondary evidence will be admissible. Counsel to the Appellant is contending that Exhibit P4, being a computer copy of the statement of account, does not fall within any of the conditions (a)-(h) set out in section 96(2). It is well settled that a Judge is perfectly entitled in his judgment to disregard an evidence erroneously admitted at the trial. See Alashe v. Ilu (1964)1 ALL NLR, 390, 397. Similarly where the inadmissibility is raised on appeal, such evidence must be rejected and expunged.) See Ajayi v Fisher (1956) 1 FSC 97; Esso West Africa Incorporated v. Alii (1968) NMLR 414, 428.

For the purposes of admissibility, there is the category of evidence which are absolutely inadmissible on the grounds of statutory exclusionary provisions. This category of evidence remain legally inadmissible and cannot under any circumstance constitute evidence in the case at the trial or on appeal even where admitted by consent.) See Ikenye v. Ofunne (1985) 2 NWLR (pt.5) 1; Owoyin v. Omotosho (1961) 1 All NLR. 304,308; Alashe v Ilu (1964) 1 ALL NLR 390, 397; Yashin v. Barclays Bank D.C.O. (1968) 1 All NLR 171, 177. There is the other category of inadmissible evidence rendered admissible on the fulfillment of certain conditions. This category of evidence are admissible if admitted without objection by the other party, and where the admission of the evidence did not affect the result of the case ) See Okeke v Obidife (1965) NMLR 113; Alade v Olukade (1976) 6 S.C. 183. In the last mentioned category, the other party is not entitled thereafter to complain where such evidence was admitted at the trial without objection. This principle of English common law was stated in the English case of Gilbert v Endean, (1878) 9 Ch. b. 259, and applied in this Court in Alade v. Olukade (1976) 6 SC.183. It is not applied to S.96 of the Evidence Act. In Gilbert v Endean (supra) Cotton L.J. said, “But I must add this where in the Court below the evidence not being that on which the Court can properly act, if the person against whom it is led does not object, but treats it as admissible, then before the Court of Appeal, in any judgment, he is not at liberty to complain of the order on the ground that the evidence was not admissible.” In adopting this view Idigbe J.S.C. in Alade v Olukade (supra) relying on the unreported decision of this Court in Cavatotti Govianni v Bonaso Luigi SC.402/67 of 31/10/69, and the West African Court of Appeal In case of Akunne v Ekwuno & ors. (1952) 14 WACA. 59 on the non-compliance with section 96(1)(b) of the Evidence Act, Cap. 62, and where evidence was admitted without objection said,”…….in those cases where the evidence complained of is not, by law, inadmissible in any event a party may, by his own act at the trial, be precluded from objecting to such evidence on appeal … “The legal effect of the two categories of evidence as I have tried to show was stated lucidly in Yashin v. Barclays Bank D.C.A. (supra) at p. 179. It is important to state that a computerised account which Exhibit P4 was described to be, does not fall into the category of evidence absolutely inadmissible by law. In my opinion it falls within the category of evidence admissible on the fulfilment of the conditions prescribed in section 96(1) and (2) of the Evidence Act, Cap. 62. Admittedly, there was no evidence in the trial court to explain the conditions under which Exhibit P4 was being tendered, and admitted, this Court has only recently inKate Enterprises Ltd. v Daewoo Nig. Ltd. (1985) 2 NWLR (pt. 5) 116, held that evidence by any servant or agent of a company is relevant and admissible to establish any transaction entered by that company. That decision went further to hold that the evidence tendered need not be that of the official who took part in the transaction. I do not think that a computerised account could not be brought within the category of documents, establishing the transaction between Appellants and Respondents as stated in Kate Enterprises Ltd. v Daewoo (Nig.) Ltd. (supra) .. The originals of this evidence are described in section 96(1)(d)(g). These are “(d) when the original is of such a nature as not to be easily movable.”

“(g) when the original consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.” However, since the basis of the admission of Exhibit P4 was not at the trial tested by cross-examination to determine whether it fell within either of these classes the validity of its admissibility is merely a matter to be taken into consideration. In the circumstances where Appellant was not at any stage disputing that there was an account with the Respondent company, and the proper officers of the company were at no time challenged, it is consistent with the provisions of section 96(2), that Exhibit P4 is secondary evidence in respect of the documents stated in section 96(1)(d) or (g) ) See section 96(2)(a)(d). The second allegation of inadmissibility of Exhibit P4 by Mr. Okoli was that Chief T. Ola Odukoya, who certified it as a true copy was a person interested being an employee of the Respondent Company. Counsel submitted that being an employee Chief Odukoya must have been interested in his employer winning the case. Counsel referred to Exhibits P10, P11, and P12, which were letters demanding settlement of the indebtedness and submitted too that at the time Exhibit P4 was prepared on 31st December, 1980 litigation was being anticipated.I do not think it can be seriously disputed that Exhibit P4 was made at a time when litigation was being contemplated against the Appellant. It is legitimate business practice to make a demand for the payment of debt owed, and where this is not paid to institute legal proceedings for recovery. It is however important for a proper understanding of the meaning of the expression to construe section 90(3) which states:

“(3) Nothing in this section shall render admissible as evidence any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish.”The dominant expressions in this sub-section are (i) “person interested” and(ii) “proceedings were pending or anticipated.”The general rule for the admissibility of statements under section 90 of the Evidence Act, Cap. 62, is that statements are not admissible if made by “persons interested or when proceedings are pending or anticipated.” Mr. Okoli’s contention that Chief Odukoya is a person interested within the meaning of section 90(3), would appear to render inadmissible all statements made by officials in the ordinary course of their duties in matters concerning and relating to their employers. That the word “interested” in its ordinary etymological meaning could refer to both a financial interest, or natural interest in the outcome of proceedings cannot be seriously disputed. But in my opinion the disqualifying interest referred to in section 90(3) of the Evidence Act, can only be a financial interest in the outcome of the proceedings. It seems to me too plain to dispute that that was not the interest of Chief Odukoya. Even if he had such an interest as remotely arising from his benefit as an employee; which is too remote to be worthy of consideration. Indeed, as was stated by Mr. Okoli, Chief Odukoya had an interest in his employer winning the case. Obviously this is natural and not unusual. It has not been contended that he had an interest to conceal wrong doings resulting from Exhibit P4, or that Exhibit P4 will promote other interests of Chief Odukoya. In such cases there will be the interest to protect himself. Section 90(3) must be given a narrow interpretation to ensure its effectiveness and permit the continuance of ordinary legitimate transactions. The suggestion that Chief Odukoya’s interest lies in protecting himself from blame by making the document Exhibit P4, seems to me surprising. Is it being suggested that the Respondent Company would not before that time have had a record of the appellants’ transaction with them, or that his statement of account with the Respondent would not have been raised?The condition that the statement was made when “proceedings were pending or anticipated” is one of some difficulty. I think the question of proceedings pending is not applicable to this case on the facts. I think it is a wrong use of the expression to hold that because the statement of account was prepared when letters of demand for indebtedness were being written to the Appellants Exhibit P4 was made where proceedings were anticipated. The indebtedness reflected in Exhibit P4 were not made when the letters of demand in Exhibit P10, P11 and P12 were written. They relate to a period much earlier as the letters themselves disclose. Exhibit P4 was not therefore made because proceedings were anticipated. It was made in the ordinary course of the transactions.

I agree with Counsel to the Respondents that Exhibit P4 was not made in anticipation of legal proceedings-Bearmans Ltd. v. Metropolitan Police District Receiver (1961) 1 WLR.694. At the time of the transactions there was no dispute to render anticipation of proceedings probable. It is however being naive to hold that proceedings were not likely. In all commercial transactions litigation is always ultimately likely and a possibility. If all statements and documents prepared in the course of business or other transactions were to be excluded from proceedings in Court on this ground, then a serious clog has been introduced into the wheel of legitimate transactions and the administration of justice. In my opinion and for the reasons given above Exhibit P4 is admissible for the purposes of this appeal, and the Court of Appeal was right in the view that it was too late to complain. I adopt the other reasons given by my learned brother Uwais J.S.C. in his judgment. There will be no order as to costs.

BELGORE, J.S.C.: I had read in advance the lead judgment of my learned brother, Uwais, J.S.C. with which I agree. I also dismiss the appeal but vary the judgment debt as made in the consequential order to the lead judgment. I also make no order as to costs. Appeal Dismissed

Appearances
K. C. Okoli For the Appelants
Mr. Phillips (with him T.O.S. Benson (Jnr.) For the Respondents