MOSES ADEMOLA AGBAJE v. ADEMOLA COKER
(2016)LCN/8248(CA)
In The Court of Appeal of Nigeria
On Friday, the 4th day of March, 2016
CA/AK/73/2014
RATIO
EVIDENCE: DOCUMENTARY EVIDENCE; WHEN IS A PUBLIC DOCUMENT SAID TO BE CERTIFIED
Before a public document can be tendered and accepted by the Court it must be certified. A public document is certified if:
1) It was paid for
2) There is an endorsement/certificate that it is a true copy of the document in question
3) The endorsement/certificate must be dated and signed by the officer responsible for certification with his name and official title.
See Tabik Investment Ltd and Anor v. G. T. Bank PLC (2011) LPELR – 3131. In Okechukwu Uzoma v. Dr. Victor Asodike (2009) LPELR 8421 this Court per Eko JCA stated as follows:
“Certification being mere confirmation by the public officer in whose custody the public document is that the document certified is a true copy of the document in his custody could be at the back or elsewhere than at the foot of the document.” per. JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES:
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
Between
MOSES ADEMOLA AGBAJE – Appellant(s)
AND
ADEMOLA COKER – Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 26th November, 2013 in the Customary Court of Appeal, Osun State Holden at Osogbo. The Appellant was Respondent in the Customary Court of Appeal. The Respondent was the Appellant in the Customer Court of Appeal.
Chief Lisagbe got judgment in his favour against Coker Fadare on 19th April 1974 in suit No C 79/69 in the Customary Court of Western State of Nigeria in the Ilesha, Divisional Grade “A” Customary Court.Chief Lisagbe died before executing the judgment.
It is this judgment that the son of Chief Lisagbe, the Appellant sought to execute against the son of Coker Fadare.
The action commenced in the District Customary Court, Ikinyinwa District Osun State holden at Ikinyinwa wherein the Appellant by motion on notice prayed for the following:
(a) Leave of the Court for extension of time within which to issue processes of enforcement of the judgment in suit No: C/79/69.
(b) Leave of the Court to issue enforcement processes in the name of the Applicant or his nominees or agents against the Estates of the late Coker Fadare.
The District Customary Court (hereinafter referred to as the trial Court) granted the application of the Appellant after considering affidavit evidence and addresses of learned counsel for the parties. The Respondent was dissatisfied and appealed to the Customary Court of Appeal (hereinafter referred to as the lower Court). The lower Court in its judgment delivered on 26th November 2013 set aside the ruling of the trial Court.
The Appellant has himself approached this Court by notice of appeal dated and filed 31st January, 2014 challenging the judgment of the lower Court. The notice of appeal contains six grounds of appeal. The Appellant presented the following issues for determination:
1. Whether the lower Court was right to have held that Exhibit A was a legal inadmissible evidence because “it was not certified in accordance with the provisions of Section 111 of the Evidence Act 2004 ?”.
2. Whether the Appellant and the Respondent herein were properly substituted for the original parties in Suit No. C.79 169 of 19th April, 1974 for purposes of enforcement of the judgment.
3. Whether the allegation of fraud and forgery made by the Respondent herein were justified or proved.
4. Whether the learned lead Justice of the lead judgment in the Court below was justified in describing the counsel to the Appellant herein as RUDE, RECKLESS and UNCOUTH.
5. Whether the Order for Extension of Time granted by the trial Court but annulled by the Court below was inoperative by virtue of Osun State Limitation Law.
6. Whether the cost in the Suit at the trial Court was awarded against a non-existing party.
Although the Respondent raised a preliminary objection, he nevertheless adopted four out of the six issues formulated by the Appellant should the preliminary objection be overruled.
The appeal was argued on the following briefs:
1. Brief of Argument of Appellant dated and filed on 12th May 2014 settled by Folarin Popoola Esq.
2. Respondent’s Brief of Argument dated and filed on 22nd April, 2015 settled by Kanmi Ajibola Esq.
Arguing the appeal, learned counsel for the Appellant on issue 1 referred the Court to page 7-13 of the record of appeal containing the document alleged to be improperly certified. It was contended that one Mr. Ademola Adewale, Senior Court Registrar, Customary Court Ogburu Ilesa who had custody and signed (i.e. to say subscribed) the last page of the document, wrote his name and rank and dated it as 04/05/2011. That he also endorsed the receipt number of the fees paid. In addition, he stamped every page of the document but did not sign on every page.
The certifying officer, it was argued, did not (sign) subscribe to the first page of Exhibit A because Section 111 (1) of the Evidence Act did not so prescribe. That the signature on the first page was that of the Senior Registrar of the trial Court when accepting the document for filing as an Exhibit on 3/4/11. It was submitted that the name “Ademola Adewale” and his signature appeared only at the last page of the document which is the foot of the document. It is not every page, it was submitted, that must be (signed) subscribed. The foot of the document it was submitted, should not be interpreted to read the foot of every page which is an addition to the provision of Section 111(i) of the Evidence Act. The Court, it was submitted, is not permitted to add to the provisions of an Act words that are not there in the first instance. We were referred to AG Abia State v. AG Fed. (2005) WRN 37 at 1 and Shettima v. Goni (2011) 10 SCNJ 66 at 98.
On issue 2, it was submitted by learned counsel for the Appellant that both the Appellant and Respondent herein were properly substituted for their respective fathers as original plaintiffs and defendants in suit No C.79/69 for purposes of enforcement of the judgment in accordance with Order IV Rules 2, 8(1) 2 and 9 (1) a of the Sheriffs And Civil Process Act 1990.
On issue 3, learned counsel for the Appellant merely reproduced argument of learned counsel for the Appellant in the Court below and concluded that the lower Court glossed over grievous allegations of fraud and forgery.
On issue 4, learned counsel for the Appellant complained about the Court’s use of offensive words against him by describing him as “unguarded and unbridled, rude, uncouth and reckless.” He submitted that the Courts have a duty to be restrained in dealing with counsel, parties and members of the public who appear in Court.
On issue 5, learned counsel for the Appellants argued that the Limitation Law of Osun State was not applicable to the matter but the Sheriffs and Civil Process Act Order IV Rule 2 (8) (1) and (2) and 9(1) (a) which provide for extension of time to issue enforcement processes.
On issue 6, learned counsel for the Appellants submitted that Courts have shifted away from doing technical justice to doing substantial justice.
The preliminary objection of the Respondent is on the ground that the grounds of appeal are in contravention of Section 245 of 1999 Constitution FRN and therefore this Court lacks jurisdiction to entertain the appeal. It was submitted that none of the grounds of appeal bothers on any question relating to Customary Law and as such is in contravention of S. 245 the Constitution.
It was submitted that there has been no Act of the National Assembly in respect of appeals from the Customary Court of Appeal of a State. We were referred to Pam v. Gwon (2000) FWLR (Pt 1) 1.
In the light of the foregoing, the Court was asked to dismiss the appeal.
On the merit or otherwise of the appeal, learned counsel for the Respondent submitted that appellant’s issue (c) which is on whether the allegations of fraud and forgery made by the Respondent herein were justified or proved is not relevant because it was decided by the lower Court in favour of the Appellant. Therefore, he cannot appeal against an issue decided in his favour.
It was also submitted that issue (d) which is on whether the lower Court was justified in describing Appellant’s counsel as rude, reckless and uncouth was a comment of the lower Court on the attitude of learned counsel for the Appellant and not a decision of the Court below. The issue, it was submitted, was not relevant.
On whether Exhibit A was certified and therefore admissible, it was submitted by learned counsel for the Respondent that the document was inadmissible because it was not certified in accordance with the provision of Section 111 of the Evidence Act 2004.
Learned counsel for the Respondent contended that there was no stamp of the cashier acknowledging payment for the certification and the amount paid. Therefore the requirement of the Evidence Act as regards payment of prescribed fees was not met.
Learned Counsel for the Respondent further contended that all the pages of the document have no certification as required by the Evidence Act. Apart from this, it was argued, not all the pages of the document are dated. Also all the pages of the document do not contain the name of the officer that gave the certified copies as required by the (law) Evidence Act. The Court was referred to Agbai v. I.N.E.C. (2009) ALL FWLR page 594. The Court was urged to affirm the decision of the Lower Court on this issue.
On issue 2, it was submitted by learned counsel for the Respondent that the Appellant and the Respondent were not properly substituted for the original parties in suit No C. 79/69 of 19th April, 1974 for the purpose of enforcing the judgment.
The parties to the Application at the Lower Court, it was pointed out, were Chief Lisagbe as Plaintiff and Coker Fadare as Defendant but that both of them died soon after the delivery of the judgment Exhibit A in 1974. This, it was submitted, is evident from paragraph XII of the affidavit of Moses Ademola Agbaje.
Learned Counsel for the Respondent wondered if Moses Ademola Agbaje could be an applicant without the leave of the Court on a clear application to the Court and same being granted. Also in the circumstances of this case, was there a Respondent to the motion at the trial Court? The answer, it was submitted is no. It was submitted that the parties before the trial Court were dead parties that did not have the litigating right.
It was submitted that by the motion on notice dated 3rd November 2011 on the instruction of Moses Ademola Agbaje, it was filed to execute the judgment of the Court to which he (Moses Ademola Agbaje) was not a party. The parties to the judgment were Late Chief Lisagbe and Late Coker Fadare.
It was submitted that by virtue of Order IV Rule 2 of the Judgment (Enforcement) Rules before a Court can exercise its discretion in granting leave to a person who was not originally a party to a suit, an application must have been made and granted for the substitution of the former judgment creditor’s name for the new judgment creditor’s name.
This condition precedent was not met in the instant case, it was submitted. It was submitted that unless the condition was met, the trial Court would not be able to grant leave the way it did in this case. It was submitted that the record nowhere shows that there was an application for the substitution of the parties. It was submitted that there were no parties known to law before the Court.
On issue (5), that is, whether the Order for extension of time granted by the trial Court but annulled by the Lower Court was inoperative by virtue of Osun State Limitation Law, it was submitted that the trial Court granted an extension of time against the operation of the Osun State Limitation Law. The Lower Court was correct when it decided that the application dated 3rd November 2011 was statute barred, it was submitted.
The judgment sought to be enforced, it was pointed out was delivered on 19th April 1974. The application for leave to enforce the judgment, it was pointed out, was filed on 3rd November 2011. By computation of time therefore, that application for leave to enforce the judgment was brought thirty-eight (38) years after the delivery of the judgment.
Learned Counsel for the Respondent referred the Court to Section 15 of Limitation Law of Osun State which provides for an action for the enforcement of judgment to be brought within ten years and Order IV Rule 8(1) of the Judgment (Enforcement) Rules which provides for two years after which leave has to be sought to enforce the judgment.
It was submitted that the motion brought on 3rd November 2011 was statute barred. We were referred to Aminu v. Alasade (2011) ALL FWLR (Pt 595) 230 at 259 and Al-Dawood Shipping Lines Ltd v. G.E.C.A. Ltd. (2012) ALL FWLR (Pt 619) 1205 at 1213.
On issue (6), it was submitted that the Lower Court was right in holding that the trial Court awarded costs against a non-existing party in that an application for the substitution of a dead party for a living party was not made at the trial Court.
Section 245(1) of the 1999 Constitution FRN (as amended) reads thus:
“245(1) An appeal shall lie from decisions of a Customary Court of Appeal to the Court of Appeal as of right in any civil proceedings before the Customary Court of Appeal with respect to any question of Customary Law and such other matters as may be prescribed by an Act of the National Assembly.”
Apart from the jurisdiction spelt out in the above Section of the Constitution, that is Section 245(1) of the 1999 Constitution FRN no other matter or matters have been prescribed by the National Assembly in line with Section 245(1) of the 1999 Constitution.
I have taken a second look at the entire grounds of appeal and I agree entirely with learned counsel for the Respondent that none of the grounds of appeal borders on any question relating to Customary Law. Therefore the appeal to this Court was in my view filed without regards to the provision of Section 245 (1) of the 1999 Constitution FRN (as amended) .
The Appellant did not file a reply to the preliminary objection to dispute arguments of learned counsel for the Respondent on the preliminary objection. The Appellant must therefore be deemed to have conceded the Constitutional issue raised in the preliminary objection. See Order 18 Rule 10 of the Court of Appeal Rules 2011 which provides in part as follows:
“Where an Appellant fails to file a reply brief within the time specified in Rule 5 , he shall be deemed to have conceded all the new points or issues arising from the Respondent’s brief.”
The grounds of appeal in my view are in contravention of Section 245 (1) of the 1999 Constitution and this Court ought not entertain the appeal.
From the foregoing, the preliminary objection raised by the Appellant succeeds and should be upheld by this Court.
However for the reason that I may be wrong, I will proceed to consider the arguments canvassed by both learned counsel in the main appeal.
Section 111 of the Evidence Act 2004 relevant to this appeal reproduced immediately hereunder reads thus:
“111 (1) Every Public Officer having custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certification written at the foot of such copy that it is a true copy of such document or part thereof as the case may be and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.”
Before a public document can be tendered and accepted by the Court it must be certified.
A public document is certified if:
1) It was paid for
2) There is an endorsement/certificate that it is a true copy of the document in question
3) The endorsement/certificate must be dated and signed by the officer responsible for certification with his name and official title.
See Tabik Investment Ltd and Anor v. G. T. Bank PLC (2011) LPELR – 3131.
In Okechukwu Uzoma v. Dr. Victor Asodike (2009) LPELR 8421 this Court per Eko JCA stated as follows:
“Certification being mere confirmation by the public officer in whose custody the public document is that the document certified is a true copy of the document in his custody could be at the back or elsewhere than at the foot of the document.”
From the above decision of this Court, it is not difficult for me to reject the argument of Learned Counsel for the Respondent that every page of Exhibit A had to be certified. I do not also agree with the argument of Learned Counsel for the Respondent that the only evidence of payment is an official stamp of the Court’s cashier acknowledging the receipt of money or the amount of money paid. Any evidence of payment in my view is enough. It is enough if payment is shown on the document.
At the bottom of the last page of Exhibit A by the right is a stamp of Senior Registrar, Customary Court Ogboru, Ilesa with the signature of Mr. Ademola Adewale, Senior Registrar dated 4/0/2011. On the left side of the same page at the bottom is written “fees paid on CR No 466701 of 4/0/2011.”
In my view Exhibit A was paid for. There is a certificate that it is a certified true copy, the endorsement/certificate is dated 4/0/2011, it is signed by the officer responsible for the certification with his name and official title.
It therefore met the requirements of Section 111(1) of the Evidence Act. The Lower Court therefore was wrong in coming to the conclusion that the said Exhibit A was not certified as required by law.
The case of Agbai v. I. N. E. C. (supra) relied upon by Learned Counsel for the Respondent is not helpful to his case as the document rejected by this Court in that case only bore “certified true copy” without indicating the name, title or designation of the officer who made the certification and even the date thereof.
In this case, the trial Court rightly found that the document Exhibit A was certified as required by Section 111(1) of the Evidence. The Lower Court which heard the appeal from the trial Court wrongly held that the document was not certified as required by Section 111(1) of the Evidence Act. Issue 1 is therefore resolved in favour of the Appellant.
Order IV Rule 2, the Judgment (Enforcement) Rules provides as follows:
“Execution may issue on behalf of any person not a party to the suit by leave of Court upon proof of his title to the benefit of the judgment and upon such substitution of the name of the new judgment creditor together with a statement of his derivative title for that of the former judgment creditor.”
It is common ground between the parties that Chief Lisagbe and Coker Fadare were the parties in suit No C.79/69 in which judgment was delivered in April 1974 and that both parties died not long after the judgment. It is therefore clear that their children were not parties to the case. The Lower Court after reproducing Order IV Rule 2 of the Judgment (Enforcement) Rules stated as follows:
“The implication of the above is that an application must be made (which may be made ex-parte) in the first instance for substitution of the name of the new judgment creditor unless and until this is done the Respondent cannot successfully maintain an action for enforcement of Exhibit A. Perhaps this explains why the deceased parties continued to appear on the face of the motion paper.
I agree completely with the learned counsel for the Appellant that before a Court can exercise its discretion in granting leave to a person who was not a party to the suit, an application must have been made and granted for substitution of the former judgment creditor.”
See page 238-239 of the record of appeal.
Learned Counsel for the Appellant in his address said that both parties were properly substituted for their respective fathers in suit No C. 79/69 for purposes of enforcement of the judgment. He did not say when they were substituted. The Lower Court found that the failure to make the substitution made the Application for leave to enforce the judgment defective. Learned Counsel for the Respondent submitted that nowhere in the record of appeal is it shown that the application for substitution was made. Inspite of the finding of the Court that no such application was made and the submission of Learned Counsel for the Respondents that no such application was made, it was not enough for Learned Counsel for the Appellant to merely state that the parties were properly substituted without saying how and when.
In my view, there is no evidence that any application was made for the substitution of the name of the new judgment creditor for the old. Therefore the Lower Court rightly found that the application at the trial Court dated 3/11/2011 for (a) leave of Court extension of time within which to issue processes of enforcement of the judgment in suit No: C. 79/69 and (b) leave of the Court to issue enforcement processes in the name of the Applicant or his nominees or agents against the Estates of the Late Coker Fadare was defective and deprived the Court of jurisdiction to entertain the application.
Issue 2 is therefore resolved in favour or the Respondent.
I agree entirely with Learned Counsel for the Respondent that the issue of fraud and forgery was decided by the Lower Court in favour of the Appellant. See 253 – 256 of the record of appeal. At page 255 – 256 for example, the Lower Court stated as follows:
“The issue of fraud/forgery was never canvassed at the lower Court.
It must be emphasized that it is not enough to assert that Exhibit A was forged. The Appellant must go a step further to adduce sufficient evidence.”
The Respondent was the Appellant at the Lower Court.
An appeal is an invitation to a higher Court to review the decision of the Lower Court in order to find out whether on proper consideration of the facts placed before it and the applicable law, the Lower Court arrived at a correct decision. See Oredoyin v. Arowolo (1989) 4 NWLR (Pt 114) 172.
It appears to me that Learned Counsel for the Appellant’s complaint is that the allegation of fraud was glossed over. I do not agree with him. As I pointed out earlier, the Lower Court at page 253-256 dealt with the issue of fraud and forgery which the Respondent raised at address stage and resolved it in favour of the Appellant.
The Appellant as rightly pointed out by Learned Counsel for the Respondent has not shown why he is appealing against an issue resolved in his favour. Issue 3 is therefore resolved in favour of the Respondent.
On issue 4, Learned Counsel for the Appellant is complaining about the description of Appellant’s Counsel as “unguarded and unbridled, rude, uncouth and reckless” because of appellants counsel’s use of words like “to fathom the crime” and “sniffing insane delusion.” As shown earlier in this judgment, an appeal is an invitation to a higher Court to review the decision of the Lower Court.
I agree entirely with Learned Counsel for the Respondent that the description of the Learned Counsel by the Court as unguarded, unbridled, uncouth and reckless was not a decision of the Court. It was only a comment though a very harsh one at that I do not think it is appealable.
Issue 4 is also resolved in favour of the Respondent.
Section 15 (1) and (2) of the Limitation Law Cap 70 Laws of Osun State of Nigeria provides as follows:
“15(1) An action shall not be brought upon any judgment or on the interest of any judgment debt after the expiration of ten years from the date on which the judgment becomes enforceable, or the interest becomes due, as the case may be.
(2) For the purpose of Subsection (1) of this Section the term “judgment” shall apply to any final judgment for payment of any specific sum of money whether at law or in equity and shall include a judgment on a charge on land”
It is the contention of the Appellant both at the Lower Court and in this Court that it is the Sheriff and Civil Process Act that is applicable in this case and not the Limitation Law of Osun State. The Respondent’s argument both at the Lower Court and in this Court is that it is the Limitation Law of Osun State that is applicable.
In Etim v. I.C.P. (2000) FWLR (Pt 21) 676 at 773 this Court per Mahmud Mohammed, JCA (as he then was now CJN) held that the provisions of the Limitation Edict Cap 89 Laws Kaduna State was applicable even to the Federal High Court sitting in Kaduna. That it applies to any action filed in any Court operating within the territorial area of Kaduna State without any regard to who the parties in the action are.
It is clear from the foregoing that the argument of Learned Counsel for the Appellant that the Sheriffs and Civil Process Act being a Federal Law will apply is not good law. The correct position of the law is as stated by Learned Counsel for the Respondent. I agree entirely with Learned Counsel for the Respondent that the Lower Court was correct when it held that the application dated 3rd November 2011 was statute barred. The judgment sought to be executed was delivered on 17th April 1974. The application for leave to enforce the judgment was brought on 3rd November 2011. That was about thirty-eight (38) years after judgment contrary to Section 15 of Limitation Law of Osun State which provides for only ten years within which to bring such action.
Issue 5 is also resolved in favour of the Respondent.
As no application was made for the substitution of a judgment creditor with a living party in the trial Court, the costs were awarded to a non-existing party.
Issue 6 is also resolved in favour of the Respondent.
Issues 2-6 having been resolved in favour of the Respondent, this appeal should have been dismissed but for my finding on the preliminary objection.
In the circumstances, the appeal is hereby struck out.
MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree.
Appearances
FOLARIN POPOOLA, ESQ. For Appellant
AND
KANMI AJIBOLA, ESQ. For Respondent
