Legal Nuggets (69): Documentary Evidence.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

"A party cannot rely or take the benefits of the contents of a document and at the same time turn round to question the legality of the same document...It is a doctrine of justice and equity that it would be unjust and inequitable to blow hot and cold."
UNITED BANK FOR AFRICA PLC vs. SALMAN(2018)LPELR-45698(CA)     
                                                       
ISSUE: DOCUMENTARY EVIDENCE-Whether a party who took benefit of a document can challenge the validity of same
                                             
PRINCIPLE:
"Under issue four, the appellant challenged the trial Court's reliance on Exhibit D7 in that it was not executed and that the trial Court ought not to have relied on
it. It is worthy of note that the appellant pleaded Exhibit D7 in paragraph 2 of its Amended Statement of Defence which was tendered through the appellant's sole witness as a document relevant and in support of its case. Exhibit D7 is the loan agreement between the appellant and the respondent to ensure that the loan is repaid. Exhibit D7 is the appellant's document and it is the duty of the appellant to ensure that it is properly executed as rightly argued by the learned counsel to the respondent. The execution of Exhibit D7 is one of the terms of the loan granted to the respondent, clause 5 in Exhibit D5. The failure to execute Exhibit D7 is the default of the Appellant who tendered it to back up its case, as the agreement that binds the parties in respect of the loan. The non-execution of the document should be blamed on the Appellant.

Therefore, the appellant cannot turn around to challenge the utilization by the trial Court of the same document it failed to ensure its execution. I hold that the
appellant who tendered Exhibit D7 in proof of its case ought not to question the validity or legality of the document. In A-G, RIVERS STATE VS. A-G, AKWA IBOM
STATE (2011) 8 NWLR (PT. 1248) at 186 - 187 PARAS. E - A, the Apex Court on whether a party can rely on a document and question the legality of same
document held thus:

"A party cannot rely or take the benefits of the contents of a document and at the same time turn round to question the legality of the same document. It is the rule of equity that one cannot approbate and reprobate. FAKOREDE VS. A-G, WESTERN STATE 1972 1 ALLNLR (PT. 1) PG. 178; AGIDIGBI VS. AGIDIGBI (1992) 2 NWLR (PT. 221) PG. 98 LADEGA VS. DUROSIMI (1978) 3 SC 91.

It is a doctrine of justice and equity that it would be unjust and inequitable to blow hot and cold - this principle finds expression in the Latin maxim "Allegans
Contraria Non Est Audiendus." TIKA-TORE PRESS LTD. VS. ABINA & ORS. (1973) 1 ALL NLR (PT. 11) 244; UDE VS. OSUJI (1998) 13 NWLR (PT. 580) PAGE 1;
AMAVO LTD. VS. BTM LTD. (1991) 8 NWLR (PT. 207) PG. 37; IGA VS. AMAKIRI (1976) 11 SC 1; OKONKWO VS. KPAJIE (1992) NSCC (PT. 1) PG. 349; (1992) 2 NWLR
(PT. 226) 633; ADEYEMO VS. IDA & ORS (1998) 4 NWLR (PT. 546) PG. 504; RAVAFRIC & FAR EASTERN LTD. VS. JOHN CHIEF ANTENAKE & ORS. (1958) WRNLR PG.
92; OYEYEMI VS. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE (1992) 2 NWLR (PT. 226) PG. 661; WAEC VS. AKINKUNMI (2002) 7 NWLR (PT. 766)
PAGE 327; ILOABACHIE VS. ILOABACHIE (2000) 5 NWLR (PT. 656) PG. 178."
The Appellant at the trial tendered Exhibit D7 in support of its case but, turned around to argue that the trial Court ought not to have utilized the same Exhibit
because it was not executed, which is clearly blowing hot and cold. It is trite that the Courts would not allow a person to benefit from his own wrong. In the case of
TERIBA VS. ADEYEMO (2010) 11 NWLR (PT. 1211) 242 at 263 - 264 PARAGRAPHS F - A His Lordship, Tabai, JSC, in this respect held that:
"A person cannot benefit from his own wrong. In its adjudicatory functions, the Court has a duty to prevent injustice in any given circumstance and avoid
rendering a decision which enables a party to escape from his obligation under a contract by his own wrongful act or otherwise profit by his own wrongful act. In
support of this, I rely on: EKANEM VS. AKPAN (1991) 8 NWLR (PT. 211) 616; ADEDEJI VS. NATIONAL BANK (NIG) LTD (1989) 1 NWLR (PT. 96) 212; IBEKWE VS.
MADUKA (1995) 4 NWLR (PT. 392) 716; FBN PLC VS. MAY MED CLINICS (1996) 9 NWLR (PT. 471) 195; SERIKI VS. ARE (1999) 3 NWLR (PT. 595) 469."
Exhibit D7 was tendered by the DW1 on behalf of the appellant as defendant as a document that defined the rights of the defendant and the obligations of the claimant (respondent) in respect of the loan. The appellant is wrong to turn around to fault the utilization of Exhibit D7 by the trial Court and terming same as illegal not having been executed. On the other hand, the evidence of the DW1 was clear to the effect that the collateral for the loan granted to the respondent are the two vehicles, the spare keys with the appellant and the salary account of the respondent. The appellant did not counter this as the evidence came from the appellant as defendant." Per UWA, JCA.(Pp.35-39,Paras.A-A)