An Analysis of the Admissibility of the Evidence of a Power of Attorney Holder in Civil Suits in Nigeria

An increasing trend in Nigeria is the practice of people donating a Power of Attorney to another (the Donee) to institute or defend civil lawsuits on the Donor’s behalf. But what is the implication when the Attorney gives evidence over matters not within his immediate or personal knowledge? An examination of our laws regulating the admissibility of evidence of a witness leads us to the conclusion that the mere donation of a Power of Attorney by a party to another to institute or defend a civil suit on the Donor’s behalf does not exempt the evidence of the Donee from the rules of hearsay evidence and the general principles of law guiding the admissibility of evidence.  Our courts should therefore ensure that Donees of Power of Attorney give evidence only on matters they are competent to give evidence within the rules of admissibility under the Evidence Act 2011. 

*Obinna Akpuchukwu, Partner at Allen & Marylebone (Law Firm), No 9 Tasia Road Onitsha, Anambra State. 08035105706; Email: o.akpuchukwu@allen-marylebone.com; innocent.obinna14@gmail.com

Key Terms: Power of Attorney, Oral Evidence, Documentary Evidence, Relevance, Admissibility, Judicial, Litigation, Testimony.

1.1 Introduction

The hectic activities of the businessmen and industrialists have made the execution of Power of Attorney an inevitable and indispensable adjust of their modus operandi. Many important steps and actions can be taken through the attorney, saving considerable time and energy in the process, as far as these benefits are derived from the execution of Power of Attorney. The extent of the delegated power and authority of the agent will be clearly delineated, making it easy to fix responsibility for actions taken. On account of this and other factors, the use of Power of Attorney has come to stay. A Power of Attorney authorizes the person to act for another, who will be liable to third parties if the Power of Attorney holder acts within the scope of his authority.

It is now a regular practice for individuals and corporate entities to donate a Power of Attorney to another to commence or defend civil lawsuits on their behalf. However, there are evidential implications for prosecuting or defending a suit via a Power of Attorney, especially where the Donor does not intend to testify in court. What is the extent of the evidence that the attorney (the done) can give in support of the case of his principal? Can the attorney give legally admissible evidence as if such evidence was given by his principal, simply on the basis of being the attorney of the principal? We shall heretofore contend that the attorney cannot give legally admissible evidence on a matter in which only his principal has direct personal knowledge. We shall further contend that the requirement that the maker of the document must be called as a witness cannot be said to have been satisfied if the document is tendered through the attorney of the maker instead of the maker being the witness in person. An important point which we shall maintain is that the Power of Attorney holder remains a competent witness who can give admissible evidence within the bounds of the Evidence Act.     

 2.0 The Fundamental Concept of Judicial Evidence

Judicial evidence according to renowned author Phipson means “the testimony whether oral, documentary or real, which may be legally received to prove or disprove some facts in dispute.” The Apex court in Akintola vs, Solano observed that judicial evidence “is the means by which any matter of fact the truth of which is submitted to investigation may be established or disproved. Evidence therefore is necessary to prove or disprove an issue of fact.” The reason for defining judicial evidence is to enable us to better appreciate the importance of the process of tendering evidence before the court. In Onya vs, Ogbuji per Salauwa JCA, the term evidence has been aptly described as any specie of proof or probative matter legally presented at the trial of any issue by the parties and through the medium of witnesses, records, documents, exhibits, concrete objects, etc, for the purpose of inducing belief in the mind of the court or jury as to their contentions. In tendering evidence whether oral or documentary before the court, recourse will always be paid to the twin concepts of relevancy and admissibility, and in so doing only what is relevant and admissible will be allowed or admitted in evidence. Flip the coin and there we also have situations in which a relevant and admissible piece of evidence is made inadmissible, regardless of the essential nature of the document or oral testimony, just because a particular enactment or provision excludes it or a particular rule of evidence excludes it.  Relevancy and admissibility are the hallmarks of credible judicial evidence.

2.1. The Concept of Admissibility of Evidence

Admissibility of evidence is the eligibility of particular pieces of evidence for reception as part of the evidence in a case. Admissibility means the character or quality which makes a piece of evidence whether oral or documentary accepted and allowed to be presented or introduced as evidence in court. The Black’s Law Dictionary defines admissibility to mean the quality, state or condition of being allowed to be entered into evidence in a hearing, trial or other official proceeding. By section 1 of the Evidence Act 2011, admissibility of evidence (oral or documentary) is dependent on relevancy. In other words, a document which is irrelevant in a particular proceeding will be inadmissible. Consequently, even though a document is relevant it may nonetheless be rejected as inadmissible if not pleaded or if it fails to satisfy the conditions for its admissibility as provided for in Section 89 of the Evidence Act 2011. Overtime, from the judicial authorities, it has been established that for evidence to be admissible, the evidence must meet certain criteria or requirements such as; the evidence must be relevant, the evidence must be pleaded and thirdly necessary foundation must be laid if it is a photocopy, also that the evidence is not disallowed or excluded by the Evidence Act or any other law and finally that it complies with the requirements of the law for its admissibility. Failure to meet the aforestated conditions may render a document inadmissible or it may reduce the probative value attached to it. In Torti vs, Ukpabi the Supreme Court held that a document will not be held inadmissible simply because it was not produced from proper custody. Also, it is important to restate the cardinal rule that an unsigned document has no probative or little probative value if it is admitted, this was the position of the court in A.G Kwara State & Anor vs, Chief Alao & Anor. Finally on the issue of admissibility parties cannot by consent admit a document which offends the provisions of the Evidence Act. What then happens if a document by hook or by crook is admitted without the other party objecting or opposing it when it offends the Evidence Act 2011? The Supreme Court has held in Buhari vs, INEC & Ors that where a court admits the evidence because the opposing counsel did not object to its admissibility; the court is bound to expunge it at the point of writing its judgment or ruling. According to Tony Ukam, the admissibility of evidence is founded on relevancy. On the yardstick of admissibility of evidence, the author opines that one of the signposts of our system of dispensing justice is that the courts act on only legally admissible and relevant evidence which is also at the same time credible. According to the author, admissibility of a document can also be based on relevancy. Again, admissibility is one thing while the probative value that may be placed thereon is another. Thus, generally, three main criteria govern admissibility of a document in evidence namely; is the document pleaded? Is it relevant to the enquiry being tried by the court? Is it admissible in Law? The author then making reference to the dictum of Achike J.S.C in Okonkwo Okonji vs, George Njokanma goes on to concede that no document shall be admissible unless pleaded.

2.1.1 Documentary Evidence

In the case of R vs, Daye the judge, Darling J, defined a document as ‘any written thing capable of being evidence and it is immaterial on what the writing may be inscribed’. This is a much-simplified definition but a bit vague. Section 258 of the Evidence Act elaborately defines document in an all-encompassing and inclusive manner when it provides as follows;

“Document” includes –  

(a)  books, maps, plans, graphs, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter;  

(b)  any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it,   

(c) any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and (d) any device by means of which information is recorded, stored or retrievable including computer output 

Documentary evidence being a major means of proof is of great utility in the probative process, reliance on documentary evidence is often worthwhile as it is regarded as having greater weight than oral evidence. Although documentary evidence may not be shaken upon cross-examination, there are other ways of attacking the probative value of documentary evidence such as by adducing superior documents or showing that the document is tainted by fraud or unsigned. It has been held in several cases such as Chevron (Nig) Ltd vs, Aderibigbe and Okoye vs, Obiaso that before a document is admissible in evidence, three main conditions must be satisfied viz; it must be pleaded, it must be relevant to the inquiry before the court, and it must be in an admissible form. Documentary evidence is quite crucial and the Evidence Act recognizes this, hence the dedication of Sections 83-120 of the Act to the subject of tendering and admissibility of documentary evidence. Documentary evidence is classified into public documents and private documents and may be admitted as primary evidence or secondary evidence. 

2.1.2 Oral evidence 

It should be pointed out that there is no definition given to the term “oral” under the Evidence Act, 2011. Therefore, ordinary definitions should be taken into account. According to the Black’s Law Dictionary, it means “spoken or uttered; not expressed in writing”. Generally, oral evidence refers to statements or testimony given by witnesses or parties involved in the case through spoken words. Oral evidence, mainly in the form of testimonies, is a personal experience, or information of the presenting person. And since it is related to memory, it can be distorted over time; it can be subject to imperfect recollection, leading to inconsistencies or inaccuracies in their statements. As a result of imperfect recollection and perception of the memory, witnesses can make different statements over time. That is one of the main reasons why impeachment for inconsistencies with prior statements made by witnesses exists in legislation. One of the main advantages of oral evidence is the verbal presentation of the evidence in front of the court. Judges and parties have a chance for clarification and follow-up questions when needed. Questioning, especially cross-examination, helps to see and clearly highlight the inconsistencies or inaccuracies in the statements and the general veracity of the evidence through the body language of the person. This body language includes some cues such as tone of voice, eye movements, etc. which cannot be found in the written evidence.

3.0 Use of Power of Attorney in Civil Litigation in Nigeria: Evidential Implications

A Power of Attorney is a document by which a person (the principal) gives power to another (the agent) so that the agent acts on behalf of the principal in respect of specific matters including prosecution of civil suits, such as recovery of debt, recovery of premises, breach of contract, disputes over title to land, etc or to bring a representative action mostly over property and possibly over a Class action. A Power of Attorney is an instrument (a document in writing) usually but not necessarily a deed, by which the principal called “Donor” appoints an agent called “Donee” and confers authority on him to perform certain specified acts or kinds of acts on his behalf. A Power of Attorney mirrors an agency relationship but it is sui generis and differs from other commercial agencies because its main aim is to satisfy third parties that the agent has the authority of the Donor to deal with a subject matter, rather than regulating only the relationship between the principal and the agent.  As it relates to Real Property Law, it was held by the Supreme Court in Ude v Nwara that it is a document, usually but not always necessarily under seal, whereby a person seized of an estate in land (the Donor) authorizes another person (the Donee), who is called his attorney to do in the stead of the Donor anything which the Donor can lawfully do, usually spelt out in the Power of Attorney. A Power of Attorney may not always be in writing. It could also be given orally. Our focus here is on Power of Attorney as a document authorizing the Donee to file, prosecute, or defend an action on behalf of the Donor. In such a situation, the Donee seems to take on the responsibility to act as claimant or defendant in all respects including giving oral testimony and tendering documentary evidence too. The issue is that in the course of giving oral testimony the holder of the Power of Attorney (done) may go on to derogate from the rule against hearsay evidence and opinion evidence all in a bid to act as if he has full firsthand knowledge of the facts of the case which is not the whole truth.

Procedurally, the use of Power of Attorney to prosecute or defend civil suits appears to have been sanctioned by the civil procedure rules of the various high courts in Nigeria. Order 11 Rule 34 provides that:

“Where by these rules any act may be done by any party in any proceedings, such act may be done by the party in person, or by his Legal Practitioner, or by his agent (unless an agent is expressly barred under these rules).”

Although the above provisions of the High Court Rules empower a party to institute or defend an action through an agent (usually via a Power of Attorney), it cannot be rightly argued that the Rules empower the Power of Attorney holder to testify on matters within the exclusive knowledge of the principal and on which the attorney ordinarily has no competence to testify. The rules of the court do not regulate admissibility of evidence as evidence is within the exclusive legislative list and can only be legislated by the National Assembly. 

According to section 37 of the Evidence Act 2011, hearsay means a statement whether oral or written made otherwise than by a witness in a proceeding; or a statement contained or recorded in a book, document, or any record whatever, proof of which is not admissible under any provision of the Evidence Act 2011, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. Section 38 goes on to provide that hearsay evidence is not admissible except as provided in the Evidence Act or by or under any provision of any other law. The exceptions basically include where the maker of the statement cannot be called as a witness because they are dead, cannot be found, or have become incapable of giving evidence; or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the court unreasonable, are admissible under section 40 to 50 of the Evidence Act 2011. 

3.1.0 Competency of Power-of-Attorney Holder as Witness and the Admissibility of his evidence in the Light of the Hearsay Rule

The competence of a person to testify as a witness is governed by section 175(1) of the Evidence Act, 2011. It provides that:

“All persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to those questions by reason of tender years, extreme old age, whether of body or mind or any other cause of the same kind.”

“All persons” here include those who are even interested in the matter.In Yusuf vs, N.T.C. Ltd the Supreme Court held that it was wrong for the learned trial judge to reject the evidence of the two witnesses called by the defendant merely because they were officials of the defendant and therefore interested parties or in the case of murder, that they were related to the deceased.

 Giving evidence before a Court of law is an act within the meaning of the said provision.  Everyone is entitled or competent to give evidence as a witness before a Court unless one is disqualified by any of the criteria envisaged in section 175(1) of the Evidence Act. There is no express bar made in the provisions of high court civil procedure rules to debar the Power-of-Attorney Holder to testify as a witness for any of the parties he represents in the proceedings. The Power-of-Attorney holder is a competent witness and is entitled to appear as such. His evidence cannot be refused to be taken into consideration on the ground that the parties to the suit i.e., plaintiff or defendant did not choose to appear as a witness in the witness box. The question of whether the Power-of-Attorney Holder of a party can be a competent witness on behalf of the party has to be answered in the light of section 175(1) of the Evidence Act. The Power-of-Attorney Holder of a party, only on the ground that he holds the power-of-attorney, cannot be said to be in the category of persons who are incapable of being witnesses as provided by section 175 of the Evidence Act. Whether such power-of-attorney Holder has personal knowledge about the matters in controversy, may be a question which can be thrashed out by cross-examining him and if it is found that the Power-of-Attorney Holder has no personal knowledge about the facts in controversy, the evidentiary value of his deposition may be determined, but that has nothing to do with the competence of such a Power-of-Attorney Holder to depose before a Court or a Judicial Tribunal as a competent witness.

Section 126 of the Evidence Act, 2011 provides that oral evidence must be direct and it aims at the rejection of evidence which is not direct, that is what is known as hearsay evidence. It is a fundamental rule of evidence that hearsay is not admissible. Oral evidence must be direct, i.e., if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to the fact which could be heard, it must be the evidence of a witness who heard it; if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by the sense or in that manner; if it refers to opinion or to the grounds on which that opinion is held, it must be the evidence of the person who hold that opinion on those grounds.  As opposed to this direct evidence, we have what is known as indirect evidence, i.e., transmitted, second hand, or hearsay, something which a witness before the Court says that he heard from a third party who is not called as a witness and the statement of that witness is inadmissible to prove the truth of the facts stated. This is the most common form of hearsay. The term hearsay was defined in section 37 as follows:

Hearsay means a statement-

1. Oral or written made otherwise than by a witness in a proceeding; or
2. Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it. 

Section 38 of the same Evidence Act 2011 went further to state that hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act. Hearsay may be defined to be that which a witness does not say of his own knowledge but says another has said or signified to him. Hearsay is therefore properly speaking secondary evidence of any oral statement. Hearsay is not confined to oral statement. It includes what is done or written as well as what is spoken, i.e., all evidence reported whether orally or in writing. Conduct may also be hearsay-like statements. The reasons advanced for the rejection of hearsay are numerous. The two principal reasons however appeared to be the lack of an oath and the absence of an opportunity to cross-examine the originator.  

The law of evidence requires a party to prove their case by calling the best evidence available. This is what is referred to as the Best Evidence Rule in the Law of Evidence.  In view of the rule that best evidence is required to be produced by the party to support its case in a suit, if the Power of Attorney Holder has personal knowledge of the acts done, he or she can certainly step into the witness box to depose as to the commission of such acts, else the Principal cannot withhold himself from deposing in respect of the acts done by him or which are within his knowledge; in other words, for such act done by him for which he is required to step into the witness box and must offer himself to be cross-examined. The Power of Attorney holder can depose as a witness to the extent he or she knows about the case and not for the acts personally done by the Principal of which he alone can have personal knowledge. 

It must be restated that a Power of Attorney Holder can appear as a witness, only in his personal capacity. But he cannot appear as a witness on behalf of the Plaintiff/Defendant in the capacity of Plaintiff/Defendant. Thus, a Power-of-Attorney Holder cannot give evidence on behalf of the principal. In the case of Shambhu Dutt Shastri vs, State of Rajasthan, the court held that the general power-of-attorney holder can appear, plead, and act on behalf of the party, but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in a witness box on behalf of himself. To appear in a witness box is altogether a different act. A Power-of-Attorney holder cannot be allowed to appear as a witness on behalf of the Plaintiff in the capacity of the Plaintiff.

As earlier submitted, under Order11 rule 34, a Power-of-Attorney holder can appear, apply, or act in any court but such act cannot be extended to testifying in the witness box as if he were the Plaintiff. Moreover, deposing in a witness box and being cross-examined is a personal act and cannot be done through an agent/Power-of-Attorney holder. In the case of Janki Vashdeo Bhojwani vs, Indusind Bank Ltd, it was held that a Power-of-Attorney holder was not acting as a witness on behalf of the principal but he was representing the principal.  The Power-of-Attorney holder did not have the personal knowledge of the matter of the appellants and therefore he could neither depose on his knowledge nor could be cross-examined on those facts, which are to the personal knowledge of the principal. The Power-of-Attorney is not a substitute for a party, he cannot speak about the facts which are exclusively within the knowledge of his principal. 

Furthermore, with respect to the tendering of documentary evidence through the Power of Attorney Holder, the Evidence Act requires that for a document to be admissible, the maker must be called as a witness, provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable effort to find him has been made without success. The first and second proviso cannot apply where a document is sought to be tendered through a Power of Attorney holder because a Power of Attorney terminates upon the death or incapacity of the Donor. The third and last provisos may be applicable in appropriate circumstances. However, the admissibility of a document is entirely different from the probative value which the court will attach to the piece of evidence. A document may be admitted in evidence yet the court will attach no probative value to it due to the failure to call the maker as a witness to be cross examined on the content of the document. 

It is therefore imperative that the court scrutinizes the evidence of a Power of Attorney holder in other to expunge those aspects of his evidence which are inadmissible for violating the hearsay rule or any other provision of the Evidence Act which renders any part of his evidence inadmissible. The Court enjoys an inherent power to expunge from its records all wrongly admitted inadmissible evidence with or without an objection by the opposing party. 

4.0 Conclusion

In considering this all-important issue regarding the parameters allowed a holder of a Power of Attorney in giving evidence before the court, we started by laying a proper foundation in considering the meaning of judicial evidence, documentary evidence, oral evidence, and even hearsay evidence. We further considered the utility of a Power of Attorney and its continued relevance in legal practice in Nigeria today. The rules of evidence especially regarding admissibility are not negotiable; parties cannot by intention or omission set about to confer admissibility powers on matters that offend the rules of admissibility. Consequently, the adjudicators whether at the High or Lower bench must be alert enough to guard against loopholes while the holder of a Power of Attorney is giving evidence. Furthermore, counsel who are seen as ministers in the temple of justice must also have their headlights on to raise objection to any attempt by a holder of Power of Attorney to give hearsay evidence. It is our job to assist the court to uphold the rules of evidence thus we must not treat the issue with levity at all.