ALHAJI AHMED USMAN V. MAINASARA YUSUF (2015)

Background

The respondent commenced an action at the High Court of Kaduna State seeking the refund of N2,075,000.00 which he had advanced to the appellant and other persons. The money was allegedly provided in instalments for the clearance of goods at the Niamey Airport in Niger Republic, on the understanding that it would be repaid after the goods were cleared and sold. The respondent later discovered that there were no goods to be cleared and that the money had been obtained without any genuine intention to repay it.

Following a complaint to the police and the Economic and Financial Crimes Commission, the appellant and some of the other persons involved were prosecuted and convicted in a criminal proceeding. In the subsequent civil action, the respondent relied on his oral testimony, the appellant’s confessional statement made during the earlier investigation, and the judgment in the criminal case. These documents were admitted as exhibits 1 and 2 without objection. The appellant denied receiving the money, denied making a voluntary confession, and alleged that any confession attributed to him had been obtained through torture and inhuman treatment.

The original action was filed against four defendants. The respondent later discontinued the action against the second, third and fourth defendants, leaving the appellant as the only defendant. The High Court nevertheless entered judgment against the appellant for the full sum claimed. The appellant appealed to the Court of Appeal, arguing that the evidence had not been properly evaluated, that the documents were inadmissible hearsay, and that the action was no longer properly constituted after the other defendants had been struck out.

Issues

1. Whether the trial judge was justified in entering judgment for the respondent on the balance of probabilities having regard to the oral evidence and exhibits 1 and 2.
2. Whether the suit remained properly constituted and capable of supporting a valid judgment against the appellant after the other defendants had been removed from the action.

Ratio Decidendi

The Court of Appeal held that the burden in a civil case rests on the party who asserts a fact. The respondent therefore had the initial duty to prove that he gave the appellant the money and that the consideration for which it was advanced had failed. The applicable standard was the balance of probabilities or preponderance of evidence.

The court distinguished between evidence given by a witness in an earlier proceeding and a judgment of a competent court. Under sections 39 and 46 of the Evidence Act, 2011, evidence from an earlier judicial proceeding is generally admissible in a later proceeding only where the statutory conditions are satisfied, including the death, unavailability or incapacity of the witness. Evidence from a previous proceeding is ordinarily irrelevant in a subsequent case except, among other limited uses, for impeaching the credibility of a witness.

However, section 63 of the Evidence Act, 2011 gives a judgment convicting a person of a criminal offence relevance in a subsequent civil proceeding. A subsisting criminal judgment is admissible and conclusive as to the facts it decided, subject to the qualification that the judgment must not have been overturned or quashed on appeal. Since the appellant had not appealed against the criminal conviction, he could not properly dispute the facts conclusively determined by that judgment in the civil action.

Court Findings

The court observed that exhibits 1 and 2 were certified copies of public documents. By virtue of section 105 of the Evidence Act, certified true copies of public documents may be admitted on production and need not necessarily be tendered by their maker. The respondent was therefore competent to tender the documents. Although the trial judge may have relied too broadly on the confessional statement and the earlier proceedings, the Court of Appeal held that the criminal judgment independently established that the appellant had received N2,075,000.00 from the respondent for the stated purpose.

The respondent’s pleadings and oral testimony were consistent with the claim for repayment. Once the appellant’s denial was displaced by the subsisting criminal judgment, the respondent’s evidence on the material facts remained unchallenged and uncontroverted. Such evidence, where cogent and credible, may be accepted by a court, particularly where there is no competing evidence capable of tipping the evidential balance in the opposing party’s favour.

On pleadings, the court restated that pleadings define the issues for trial and bind both the parties and the court. No party may raise an issue or lead evidence outside the pleadings. Nevertheless, the appellant had participated fully in the trial after the other defendants had been struck out and was aware of the case he had to meet. Under Order 24 of the Kaduna State High Court (Civil Procedure) Rules, a plaintiff may discontinue against some defendants and proceed against the remaining defendant. The court could not compel the respondent to continue against parties he no longer wished to sue. The action was accordingly properly constituted.

Conclusion

The Court of Appeal dismissed the appeal and affirmed the judgment of the High Court of Kaduna State, which ordered the appellant to pay N2,075,000.00 to the respondent. The appellant was also ordered to pay costs of N30,000.00. The panel unanimously agreed that no miscarriage of justice had occurred and that any error in the trial judge’s treatment of the exhibits was not sufficient to invalidate an otherwise supportable judgment.

Significance

The decision is important for its treatment of the relationship between criminal and civil proceedings. It confirms that while testimony from an earlier proceeding cannot ordinarily be transferred wholesale into a later case, a subsisting criminal conviction may be relied upon under section 63 of the Evidence Act as conclusive proof of the facts determined by that conviction. The case also reinforces the principle that certified public documents may be tendered by a person with lawful access to them, the rule that unchallenged credible evidence may be accepted, and the plaintiff’s procedural freedom to discontinue against selected defendants without rendering the remaining action incompetent.