CHIEF SYLVANUS UDENKWO & ORS v. SEBASTINE NWOSU & ORS
(2014)LCN/7488(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of October, 2014
CA/OW/54/2010
RATIO
EVIDENCE: DOCUMENTARY EVIDENCE; THE PURPOSE OF SECTION 97(1) ON TENDERING SECONDARY EVIDENCE OF A DOCUMENT
In carrying out this court’s analysis on the issue, it may be appropriate to begin first by reproducing Section 97(1)(c) (now Section 89(c) of the Evidence Act 2011 for the avoidance of any doubt.
SECTION 97(1):
“… Secondary Evidence may be given of the existence condition or contents of a documents;
(a) …
(b) …
(c) When the original has been destroyed or lost and in the latter case all possible search has been made for it.”
The purpose of Section 97(1)(c) of the Evidence Act is to enable a party tender secondary evidence of a document where the original is said to be destroyed or lost and where all possible search for its whereabouts have been made, to no avail. per. FREDERICK O. OHO, J.C.A.
EVIDENCE: DOCUMENTARY EVIDENCE: WHETHER DOCUMENTS MUST BE PROVED BY PRIMARY EVIDENCE, THE DUTY OF THE COURT TO REJECT INADMISSIBLE EVIDENCE AND THE FOUNDATION REQUIRED TO ELEVATE THE STATUS OF A PIECE OF SECONDARY EVIDENCE TOT EH LEVEL WHERE IT WOULD BE ADMISSIBLE BY COURT
It is important to note the requirement always that documents must be proved by primary evidence being the original document itself and that the Court generally is imbued with the duty to reject inadmissible evidence arising from its responsibility to act judicially in doing justice between feuding parties. To therefore, elevate the status of a piece of secondary evidence to the level where it would be admissible by court, without any iota of compunctions requires adequate foundation to be laid for its admissibility. And in the case where the piece of secondary evidence is said to be lost, Sub-Section (c) of Section 97(1) of the Evidence Act specifically provides an added requirement on the part of the witness to sufficiently demonstrate that the document is lost and in addition, that all possible search for it has been made to no avail. Anything short of this may be interpreted to suggest that proper foundation as required by the law has not been laid in accordance with the provision of Section 97(1)(c) of the Evidence Act. per. FREDERICK O. OHO, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
FREDERICK O. OHO Justice of The Court of Appeal of Nigeria
Between
1. CHIEF SYLVANUS UDENKWO
2. MR. GODFREY ONONUJU
3. DEACON STEPHEN EZIRIM
4. HUMPHREY AJONUMA
(For themselves and on behalf
of members of Ofeiyi village,
Umudi in Nkwerre Local Government Area) – Appellant(s)
AND
1. SEBASTINE NWOSU
2. BENJAMIN ANOKWURU
3. CHARLES ADIBE
4. STEPHEN NWORGU
5. GABRIEL UCHEAGWU
6. STEPHEN NWAKAMMA (For themselves and on behalf of members of Umuezeala Village, Umudi and Umuduruimo Village, Umudi in Nkwerre Local Government Area)
7. FRANCIS EBONINE
8. EDWIN NWOSU – Respondent(s)
FREDERICK O. OHO, J.C.A. (Delivering the Leading Judgment): The issue between the parties and by virtue of which they brought themselves to the Court of Appeal since 2008 is the issue of admissibility of a document and the objection taken by the Defendants who are of the view that in tendering the said documentary evidence, the provision of Section 97(1)(C) of the Evidence Act was not strictly adhered to. The attitude of this Court to matters of this nature which are experiencing unnecessary delays due to attitude of the parties and their Counsel is one of utter disappointment and outright condemnation. The position of this Court to matters of this nature is in agreement with the admonition of UWAIS, CJN (as he then was) in the case of CAPTAIN E.C.C. AMADI VS. N.N.P.C. (2000) 6 SCNJ at p. 20 where the erudite jurist was rather terse, when he said;
“…the ruling of the High Court was delivered on the 20th day of June, 1988. The Judgment in the Appeal against the ruling was delivered by the Court of Appeal on the 16th day of February, 1989. The final Judgment on the interlocutory appeal is delivered today by this court. It has thus taken thirteen years for the case to reach this stage. With the success of the plaintiffs appeal before us the case is to be sent back to the High Court to be determined, hopefully, on its merits, after a delay of 13 years. Surely, this could have been avoided had it been that the point was taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on the merit in the proceedings as the case might be. I believe that Counsel owe it, as a duty, to the Court to help reduce the period of delay in determining cases in our Courts by avoiding unnecessary preliminary objections as the one here so that the adage; justice delayed is justice denied may cease to apply to the proceedings in our Courts.”
The implication for the parties in this appeal is that whichever way the Court’s judgment on the matter goes, it would still have to go before the High Court which is currently seised of the substantive matter. Already, a number of years have been lost on both sides when the parties decided on pursuing the issue of non-admissibility of a single document at the expense of a speedy trial and early conclusion of the substantive matter. It is hoped that wise counseling shall prevail presumably at the end of this judgment.
That having been said, the Appellants were Plaintiffs at the High Court of Imo State, holding at Nkwerre in Suit No. HON/8/2008 in which they claimed the following reliefs against the Respondents who were then the Defendants:
“(a) A Declaration that the Plaintiffs were entitled to the right of occupancy over the land situate and being at Ofeiyi Village, Umudi in Nkwerre Local Government Area shown verged blue on Plan No. GIKS/IMDO3/2008 attached to the statement of claim.
(b) N10,000,000.00 (Ten Million Naira) General damages for trespass against the 1st to 6th and 8th Defendants.
(c) An order of injunction restraining the 7th Defendant from alienating in any manner whatsoever the land in dispute or any part thereto either alone or in conjunction with anyone whatsoever inclusive of the 1st to 7th Defendants without the written consent of the plaintiffs.
(d) An order of perpetual injunction restraining the 1st and 6th Defendants and the 8th Defendant, their servants, agents, privies and otherwise from trespassing on the land in dispute.
The action was instituted and prosecuted in a representative capacity up to a point, this being an interlocutory appeal. The land in dispute is called:
“Okpulo Ofeiyi”, otherwise known as “Ala Okpulo” by the Appellants and is said to stretch from Onu Nwankwo to Onugbugo which forms the boundary between Ofeiyi and Dikenafai in Ideato South Local Government Area of Imo State. The Appellants claim to have inherited this stretch of land from their ancestors from time immemorial in accordance with Umudi native laws and customs.
In the course of the evidence of S. L. Onyeaka (PW3) the Appellants sought to tender a photocopy of a document containing the decisions reached between the parties pursuant to a customary arbitration executed on the 26th day of March, 1961. Learned counsel for the Respondents objected to the admissibility of the document on the grounds that the document is a photocopy and that the original had not been adequately accounted for to warrant the admission in evidence of secondary evidence in the nature of a photocopy. The learned trial judge after taking argument from learned counsel to the parties, ruled, rejected the document and marked it rejected. It is against this ruling that the Appellants have brought this interlocutory appeal.
There is only one Ground of Appeal filed with an unusually six (6) lengthy particulars of error. The sole Ground of Appeal is set out here-under, albeit without its particulars as follows:
GROUND OF APPEAL
ERROR IN LAW:
“The learned trial Judge erred in Law by holding that before a secondary evidence (that is the photocopy) of the document sought to be tendered through the PW3, S. L. Onyeaka, could be admitted under Section 97(1)(c) of the Evidence Act, the evidentiary foundation to wit that the original of the document is lost and could not be found, must be pleaded in addition to pleading the document itself before the photocopy thereof can be admitted and thereby rejected the document and marked same as rejected.”
As it is the usual practice in this court, parties filed and exchanged their briefs of argument. The Appellants brief dated the 23rd day of April, 2012, was filed the same date and settled by Chukwuemeka Nebo, Esq. Only one issue was distilled for the court’s determination, thus:
“whether the foundation required under Section 97(1)(c) of the Evidence Act for the tendering of a secondary Evidence of a document to wit: That the original is lost and could not be found, ought to be pleaded before such secondary Evidence of same (i.e. photocopy can be admitted in Evidence.”
The Respondents’ brief of argument is dated 17th August, 2012 but filed the 9th day of October, 2012 and deemed properly filed and served on the 24th day of September, 2014. The brief was settled by S. C. Ifeakor, Esq. who also nominated a sole issue for the court’s determination as follows:
“whether the Appellants satisfied the full requirement of the provision of Section 97(1)(c) of the Evidence Act to make the photocopy of the Akpam Herbalist Association Document admissible in law.”
At the hearing of the appeal on the 24th day of September, 2014, learned counsel for the Appellant, Chukwuemeka Nebo, Esq. adopted and relied on Appellant’s brief of argument dated and filed on 23rd day of April, 2012 and urged the court to allow the appeal. No reply brief was filed by the Appellants.
The Respondents’ counsel S. C. Ifeakor, Esq. adopted and relied on the Respondent’s brief of argument deemed properly filed and served on the 24th day of September, 2014 and urged the court to dismiss the appeal. I have carefully considered the two issues formulated by the learned Appellants’ Counsel and that of the Respondent and both appear to be the same in con. I will however adopt the issue formulated by the Respondents which is better worded and direct to the point.
In arguing the sole issue, learned counsel for the Appellant, reiterated the state of the law requiring that pleadings shall contain no more than statements of material facts upon which the party pleading intends to rely and not evidence by which the facts are intended to be proved. For this, Counsel referred court to the cases of ARABAMBI vs. ADVANCE BEVERAGES IND. LTD (2005) 19 NWLR (PT. 959) 1 AT 30; NWANJI vs. COASTAL SERVTCES (NIG.) LTD (1999) 11 NWLR (PT. 628) 641 AT 652-653. Counsel stated that at paragraphs 28, 29, 30, 31 and 32 of the Appellant’s statement of claim and other paragraphs of their pleadings, the Appellants clearly pleaded that there was a Customary arbitration between the parties over the parcel of land in dispute and that the resolution of the matter between the parties was contained in a document executed on 26-3-1961.
According to Appellant’s counsel, having pleaded the arbitration and the document containing the decision reached between the parties, the Appellants were entitled to tender Secondary Evidence of the document to wit: photocopy of it as the Appellants as Plaintiffs before the lower court had sought to do without necessarily pleading that the original of the document is at large, and that they will be relying on a photocopy, instead. Counsel added that all the Appellants as Plaintiffs before the lower court needed to have done was to simply lay necessary foundations in Evidence during trial as to the where about of the original document in accordance with the provision of Section 97(1)(c) of the Evidence Act.
In support of this position, learned counsel referred court to the case of NGIGE vs. OBI (2009) 14 NWLR (PT. 999) 1 AT 169. Learned counsel further referred to the case of NWANJI VS. COASTAL SERVICES (NIG,) LTD (1999) 11 NWLR (PT. 628) 641 AT 654 also in support.
It was the contention also of counsel that the PW3, the said S. L. Onyeaka through whom the document was sought to be tendered in his statement on oath dated 17-4-2009 at paragraph 11; and in his additional statement on oath dated 19-1-2009 both of which he adopted before the lower court as his evidence in the case, was emphatic that the original document containing the decision of the arbitrators got lost, but not without his having made a photocopy of it. Learned Appellant’s counsel also contended that the said PW3, whilst giving his evidence in chief told court that the original of the document got lost during the civil war and could no longer be found, but that he made a copy of it before the loss.
As far as learned Appellant’s counsel is concerned, the Appellants through the PW3 had laid the proper foundation required by law for the photocopy of the document offered in Evidence to be admitted. Learned counsel urge the court to set aside the ruling of the trial court delivered on 19-10-2009 and order the admission of the said document as an Exhibit.
In his response, learned counsel for the Respondent submitted that Section 97(1)(c) (now Section 89(1)(c) of the Evidence Act has two essential elements which must be given in Evidence as foundation before secondary evidence of a document may be admitted in evidence. The one is that: (1) the original document is destroyed or lost and the other; (2) that if lost, all possible searches have been made without results.
Counsel submitted that a photocopy of a document, being secondary evidence of the contents of the original is inadmissible by virtue of Section 94, 95 and 96 of the Evidence Act save where the whereabouts of the original is explained. Counsel referred court to the case of DAGGASH vs. BULAMA (2004) 14 NWLR (PT. 892) 144 AT 228; and also ALADE vs. OLUKADE (1976) 2 SC 183 AT 187. Learned counsel also said that proper foundation must be laid essentially with regards to the whereabouts of the original prior to its being admitted. Counsel referred to the case of OGUNBADEJO vs. OWOYEMI (1993) 1 SCNJ 148 in this connection.
It was Respondent counsel’s further contention, that secondary evidence is not admitted as a matter of course and that where a document is said to be lost, the witness must give evidence that possible search for it had been made. He added that a party seeking to tender secondary documentary evidence must lay proper foundation and not simply state that he has such secondary evidence which he is willing to tender and that the original is lost. Counsel said that the failure to lay proper foundation that all possible searches had been made for it, would make the secondary evidence inadmissible, Counsel referred once again to the case of OGUNBADEJO vs. OWOYEMI (Supra) and also case of JACOB vs. A.G. AKWA- IBOM STATE (2002) 7 NWLR (PT. 765) 18.
Learned Respondents’ counsel told court that in tendering the photocopy of the Akpam Herbalists Association Arbitration, the PW3 merely stated that the original document was lost without giving any evidence of due diligence to establish that possible searches were made for it to no avail. Counsel said, that Section 97(1)(c) of the Evidence Act is a mandatory requirement of the law prescribing that before secondary copy of a lost document is admitted into evidence, evidence must be laid to prove that all possible searches have been made to recover the original and that the efforts have been fruitless. He said that is only where the witness has satisfied this provision of the law that the secondary copy of the lost document is admitted into evidence. Counsel further referred court to the case of ONOCHIE vs. IKEM (1989) 4 NWLR (PT.116) 458 AT 465. Counsel finally urged the court to hold that the Appellants did not lay proper foundation for the admissibility of the secondary copy of the Akpam Herbalist Association Arbitration and to dismiss this appeal.
The central issue in this Appeal is whether the Appellants’ witness i.e. the PW3 at the trial before the High Court adequately complied with Section 97(1)(c) (now Sec. 89(c) of the Evidence Act in tendering secondary evidence of the Akpam Herbalist Association Arbitration document whose original was said to be lost at the time of tendering it in court. In carrying out this court’s analysis on the issue, it may be appropriate to begin first by reproducing Section 97(1)(c) (now Section 89(c) of the Evidence Act 2011 for the avoidance of any doubt.
SECTION 97(1):
“… Secondary Evidence may be given of the existence condition or contents of a documents;
(a) …
(b) …
(c) When the original has been destroyed or lost and in the latter case all possible search has been made for it.”
The purpose of Section 97(1)(c) of the Evidence Act is to enable a party tender secondary evidence of a document where the original is said to be destroyed or lost and where all possible search for its whereabouts have been made, to no avail. But the question to address here is simple; what must a party do who is faced with the prospects of tendering secondary evidence in place of its original which is lost and no longer capable of found? That of course represents the whole dilemma in this matter, which has already so far taken a number of years in court.
The contention of learned Respondent’s counsel in this Appeal is straight forward. He is of the view that Section 97(1)(c) of the Evidence Act is a mandatory requirement of the law which must be complied with if a party is to have a hitch-free ride in its journey towards tendering before court, secondary evidence of a document whose original is said to be lost. What the Sub-section (c) of Section 97(1) of the Evidence Act specifically requires in the case where the document is said to be lost, is the added requirement to sufficiently demonstrate before court, as part of its efforts at laying a foundation, that the original is not only lost, but also that “all possible search for it has been made,” and proved abortive. See the case of ONOCHIE vs. IKEM (1989) 4 NWLR (PT. 116) 458 AT 465.
It is important to note the requirement always that documents must be proved by primary evidence being the original document itself and that the Court generally is imbued with the duty to reject inadmissible evidence arising from its responsibility to act judicially in doing justice between feuding parties.
To therefore, elevate the status of a piece of secondary evidence to the level where it would be admissible by court, without any iota of compunctions requires adequate foundation to be laid for its admissibility. And in the case where the piece of secondary evidence is said to be lost, Sub-Section (c) of Section 97(1) of the Evidence Act specifically provides an added requirement on the part of the witness to sufficiently demonstrate that the document is lost and in addition, that all possible search for it has been made to no avail. Anything short of this may be interpreted to suggest that proper foundation as required by the law has not been laid in accordance with the provision of Section 97(1)(c) of the Evidence Act.
From the facts of the case under consideration, the Appellants as Plaintiffs before the lower Court pleaded the existence of a document; the result of a Customary Arbitration reduced into writing, in their paragraphs 28, 29, 30, 31, 32 and 33 of the Statement of Claim and paragraphs 5 and 5a of the Plaintiffs’ Reply to Statement of Defense. In addition to these, the PW3, one S. L. Onyeaka, in his front-loaded Statement on Oath dated 17-4-2009 at paragraph 11, and also at paragraph 3 of his additional Statement of Oath dated 19-10-2009, stated that the said document containing the decision of the Arbitrators got lost during the Nigerian civil war, but that before it got lost, he made a photocopy of it. The contention of learned Respondents’ counsel and which I believe is misconceived is that the expression; “all possible search for it” as used in the sub-section (c) of Section 97(1) of the Evidence Act, connotes that evidence must be given of all efforts carried out in the possible search for a document which is said to be lost. As far as this Court is concerned, if that were to be the position, then it will amount to carrying the argument unnecessarily too far. A document said to be lost is lost and in reaching the conclusion that it is lost, what that necessarily means is that it must have been searched for without results before it is declared lost. This Court per. JEGA, JCA, in the case of ISITOR vs. FAKOREDE (2008) 1 NWLR (pt.1069) 602, has this say on the subject;
“… the Appellant raised the issue of proper foundation in line with the admission in evidence of exhibits 1 and 1A, it is clear that the word ‘misplaced’ used by the respondent in her testimony before the Court sufficiently explained the facts that the original could not be found after searches. What is required for the purpose of laying proper foundation for the admission of secondary evidence is an explanation to the satisfaction of the Court to enable the admissibility of the secondary evidence and not a justification…”
This appeal therefore has merit and ought to succeed. But I would once again draw attention to the disposition of this Court towards interlocutory appeals on inconsequential issues which have in recent times become unnecessary and time wasting encounters. It would have been prudent use and management of time on the part of the Appellant if he had waited until the end of the substantive matter before coming to this Court. In the final analysis the Appeal hereby succeeds and the ruling of the learned trial judge delivered on the 19-10-2009 is set aside.
IGNATIUS IGWE AGUBE, J.C.A.: I have read in advance the lead judgment just delivered by my learned brother F.O. Oho, JCA. I agree completely that the appeal is meritorious and accordingly succeeds. I also set aside the Ruling of the Learned Trial Judge delivered on the 19/10/2009.
ITA G. MBABA, J.C.A.: I had the privilege of reading, in draft, the lead judgment just delivered by my learned brother, F.O. Oho JCA. I agree with his reasoning and conclusions, completely.
Only recently, in the case of Chief Benson Ajonuma & Ors Vs Sebastine Nwosu & Ors: CA/PH/64/2009, delivered on 17/10/14, we held, depricating the condemnable attempt by parties to frustrate the trial of a suit they took out at the Lower Court, by reason of holding on to premature appeal on interlocutory ruling, meant only to delay or frustrate the trial of the substantive matter.
Where Appellant who filed a suit is the one using the interlocutory appeal to stall the hearing of his case at the trial Court, it is more strange, and absurd abuse of the system. See Salihu & Ors Vs RTEAN & Ors (2013) LPELR 21820 (CA) where it was held:
“Such actions that seek to frustrate the trial of substantive case at the Lower Court by use of interlocutory appeals is an affront to the principles of sound adjudication and it borders on abuse of the Court process. Nwana Vs UBN PLC (2013) LPELR – 21823 (CA).
In this appeal, the Appellants were the plaintiffs at the Lower Court. Though there is merit in this appeal, as the trial Court was wrong to have refused to admit the document, it does not appear the Appellants would have suffered any serious deprivation, if the hearing of the substantive case had continued and the complaint raised at the final appeal, (if the Appellant still lost) at the final determination of the case on the merits.
With this and other reasons in the lead judgment I too allow the appeal and abide by the consequential orders in the lead judgment.
Appearances
E. O. Ibegbu Esq.For Appellant
AND
S. C. Ifeakor Esq.For Respondent
