- JAMES NWANNUKWU KERRI v. EZUNAKA BROTHERS ENTERPRISES LIMITED & ORS. (2003)LCN/1352(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of March, 2003
IGNATIUS CHUKWUDI PATS ACHOLONU Justice of The Court of Appeal of Nigeria
JOHN AFOLABI FABIYI Justice of The Court of Appeal of Nigeria
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
- JAMES NWANNUKWU KERRI Appellant(s)
- EZUNAKA BROTHERS ENTERPRISES LTD.
2. NIGERIAN DEPOSIT INSURANCE CORPORATION
3. O. M. SALAIMAN
4. E. O. EZE
5. CHIEF LEO MEZUE
(Trading as Mezue Associates)
JOHN AFOLABI FABIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling handed out by Nwizu, J., sitting at the High Court of Justice, Onitsha in Anambra State of Nigeria on 6th March, 2002. In the said ruling, the learned trial Judge sustained the admissibility of the photocopy of a certified true copy of a registered Deed of Conveyance tendered on behalf of the 1st Respondent as plaintiff at the lower Court.
At the on-set, the 1st Respondent herein, as plaintiff at the lower court, initiated an action against the 2nd, 3rd, 4th and 5th defendants/respondents. The Appellant applied to be joined along with his brothers – Philip Chukwuka Kerri and Francis Kerri as co-defendants. The application was granted by the Trial Court on 25th January, 2000. Thereafter, the Appellant filed a statement of defence cum counter claim wherein he appears to be contending the disposition of their family property situate at No.32 New Market Road, Onitsha to the 1st Respondent prior to their incorporation by his elder brothers alienated the said property without his consent, knowledge and/or information. He said he has been living and still lives outside Nigeria.
Upon completion of pleadings, hearing commenced in earnest on 5-2-2002. Mr. G.E. Ezeuko, SAN, Senior Counsel for the Plaintiff, attempted to put in evidence the photocopy of a Certified true copy of a Deed of Conveyance which had been pleaded by both parties. P.W.1. at the lower Court said he looked for the original of the document to no avail. Mr. Nnamdi Ibegbu, SAN, raised serious objection to the admissibility of the stated document. The learned trial Judge was variously addressed by both senior counsel at will.
In his reserved ruling handed out on 6-3-2002, the learned trial Judge over-ruled the objection and admitted the photocopy of the certified true copy of a Deed of Conveyance – a public document as Exhibit ‘B’. The stance taken by the learned trial Judge riled the Appellant who has, as a result, appealed to this Court regarding ‘the whole decision’. One ground of appeal accompanied the Notice of Appeal.
As it should be, the lone issue for determination formulated on behalf of the Appellant reads as follows:
“Is the photocopy of a certified true copy of a public document admissible?”
I shall right away reproduce the issue for determination as couched on behalf of the Plaintiff/Respondent as clearly manifest on page 2 of the Respondent’s Brief of Argument. It reads thus:
“Whether a photocopy of a certified true copy of a Deed of Conveyance can be admitted in evidence as exhibit since the original certified copy of the said Deed of Conveyance could not be found”.
Arguing the sole issue formulated on behalf of the Appellant, Senior counsel, at the on-set, observed that there is no provision in the Evidence Act for the admissibility of secondary evidence of a certified true copy of a public document. He referred to the cases of Egbue v. Araka (1996) 2 NWLR (Pt.433) 688 at 703; Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799 at 808; and lastly Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.373) 404 which Senior counsel strongly feels over-ruled the decision in Daily Time of Nigeria v. F.R.A. Williams (1986) 4 NWLR (Pt.36) 526 at 528.
Senior counsel opined that the learned trial Judge was wrong to have admitted a photocopy of a certified true copy of the Deed of Conveyance as Exhibit ‘B’. He strongly contended that the fact that the Appellant relied upon it in his pleadings is no reason to admit an inadmissible document in evidence. He observed that parties by consent cannot make an inadmissible document admissible. He urged that Exhibit ‘B’ be declared inadmissible and should be marked ‘rejected’ accordingly.
On behalf of the Respondent, learned counsel maintained that the issue before the Supreme Court in the cases of Nzekwu v. Nzekwu and Onobruchere v. Esegine cited by the Appellant is distinguishable from the instant appeal which concerns the admissibility of a photocopy; not merely of a copy of a public document but that of a certified true copy. The copy sought to be tendered is a photocopy of an already certified true copy of a Deed of Conveyance with all the requisite endorsements thereon. He relied on the decisions in Daily Times of Nigeria v. F.R.A. Williams (supra); Raymond Iheonu v. Simon Obiukwu (1994) 1 NWLR (Pt.322) 594. He urged that the appeal be dismissed. He felt that necessary foundation was laid before Exhibit ‘B’ was tendered and admitted.
In reply, Appellant’s counsel felt that the circumstances in the case of Iheonu v. Obiukwu are not on all fours with those in the instant appeal. He attempted to make a distinction between a certified copy of a court process which he felt the court might have taken judicial notice vide Section 74(1)(e) and (i) of the Evidence Act and certified true copy of a registered Deed of Conveyance.
Learned counsel further submitted that no Law permits the laying of any foundation in order to tender a photocopy of a certified true copy of the Deed of Conveyance as Exhibit ‘B’. He referred to Anatogu v. Iweka II (1995) 8 NWLR (Pt.415) 547 at 572; Ogbunyiya. v. Okudo (1979) 6-9 S.C. 32 at 43; Section 97(1) (e) and (f) Evidence Act, 1990.
Learned counsel observed that general rule of interpretation page 702; Barrel v. Fordree (1932) A.C. 676 at 682; International Bank for West Africa Ltd v. Imano (Nig.) Ltd. (1988) 3 NWLR (Pt.85) 633.
It is also of moment to mention here that in order to achieve a satisfactory result, the words of the relevant section of the statute in question must be read as a whole. Refer to Salami v. Chairman LEDB (1989) 5 NWLR (Pt.123) 539 at 550-551; Agua Ltd. v. Ondo State Sports Council (1988) 4 NWLR (Pt.91) 622 at 641.
If section 97 of the Act is given an adequate bird’s eye view, it can be seen that sub-section (1) makes general provisions as to how secondary evidence of documents may be adduced. Sub-section (2) makes special provisions regarding what type of secondary evidence of particular documents must be led. It should be noted that general things do not derogate from special things. Refer to Martin Schroder & Co. v. Major & Co. Nigeria Ltd. (1989) 2 NWLR (Pt.101) 1 at 13.
In this appeal, we are concerned with the admissibility of a photocopy of a certified true copy of a Deed of Conveyance. Parties are ad idem that it is a public document vide Section 109 of the Evidence Act. The name of the Registrar of Deeds, his signature as well as the seal of the Registry of Deeds with date of certification are all manifest and indeed extant on page 26 of the record of appeal. To say it categorically, all these are not in contention. The poise of the appellant is that the provisions of Section 97 of the Act do not permit the tendering of a photocopy of a certified public document nor the laying of foundation before tendering same. I am afraid; with due respect, I do not agree with the stand point of the Appellant on his postulate. And I shall give my reasons.
On behalf of the Appellant, the cases of Onobruchere v. Esegine (supra); Nzekwu v. Nzekwu (supra); Egbue v. Araka (supra) were all cited with glee. In Onobruchere v. Esegine, the Supreme Court held that on failure to produce primary evidence of a court’s judgments, certified true copies of same must be tendered. In Nzekwu v. Nzekwu (supra) at page 404 it was clearly pronounced that a judgment of a Court being a public document within the meaning of the expression in Section 108 of the Evidence Act (now Section 109) and because of the combined effect of Section 96(1) (e) and (2)(c) of the Act (now Section 97) the secondary evidence admissible in respect of original document constituting the proceedings and judgment of a Court is a certified true copy of the document but no other kind of secondary evidence. In Egbue v. Araka (supra) a photostat copy of a public document, not certified, was sought to be admitted and same was found inadmissible by the Lagos Division of this Court. Such was well made as it tallied with the earlier considered authorities discussed above. Again in Abdul Ojo v. Primate Adejobi & Ors. (1978) 3 S.C. 65 at 73, the Supreme Court held that a photocopy of a copy of a Deed of Conveyance which was not certified was inadmissible in evidence. See also Victoria Okotie-Eboh & Ors. v. Adolo Okotie-Eboh (No.1 (1986) 1 S.C. 479; (1985) 2 NWLR (Pt.10) 909.
It must be stated without any atom of hesitation that the above cases are clearly distinguishable from the one under consideration in the instant appeal which concerns admissibility of a photocopy not merely of a copy of a document but of a certified true copy of a public document. Refer to Daily Times of Nigeria Ltd. v. Williams (supra), Raymond Iheonu & Anor. v. Simon Obiukwu & Ors. (supra) at 602.
Exhibit ‘B’ is a photographic reproduction of the certified copy of a public document within Section 109 of the Evidence Act. Section 97(2) (c) specially provides that a certified copy of the document, and no other kind of secondary evidence, is admissible. There are no degrees of secondary evidence. Once a public document on its face is duly certified, any further certification after same has been properly certified will be a waste of time, energy and resources. In short, there is no necessity for certification to the second degree. Due certification which is manifest on the face of Exhibit ‘B’ clearly complies with the dictates of Section 97(2)(c) of the Act. The Act did not provide for multiple certification. See Ojo v. Primate Adejobi (supra) at page 73; R v. Collins (1960) 44 Cr. App. R. 170.
Three reasons have been proffered for allowing the tendering of certified true copies of public documents as exhibits. I need to restate them to show the futility of the stance posed by the appellant herein. They are -(1) to obviate the necessity of calling the appropriate officials to court to testify from time to time as to the genuineness of copies of original public documents (as demanded by common law);
(2) to preserve those original documents from being removed from their proper place of custody through requests that they be produced in court, and (3) to ensure the authenticity of copies admitted as secondary evidence when certified. A clear view of Exhibit ‘B’ shows that its authenticity is assured. See Anyakora v. Obiakor (1990) 2 NWLR (Pt.130) 52 at 63, 67; Egbue v. Araka (supra) at page 707.
I must comment, in passing on the rather ingenious distinction which the Senior Counsel for the Appellant tried to make between a judgment of a court as a public document and other species of public documents such as a Deed of Conveyance. No distinction is made by Section 109 of the Evidence Act. The surmised distinction is one without a difference. Others may refer to same as one between six and half a dozen. All public documents fall in the same category and Section 97(2)(c) of the Act specially provides that a certified copy; and no other kind of secondary evidence, is admissible. Exhibit ‘B’ is in order.
I come to the unalloyed conclusion that the appeal lacks merit. It is hereby dismissed. The Ruling of the learned trial Judge handed out on 6th March, 2002 is hereby affirmed. Exhibit ‘B’ was rightly admitted in evidence. Further hearing of the suit at the lower Court should continue unabated. The Appellant shall pay N5,000 costs to the 1st Respondent in the appeal
IGNATIUS CHUKWUDI PATS ACHOLONU, J.C.A.: I have read in draft the judgment of my learned brother FABIYI, JCA and with the state of the law I agree with him on the admissibility of a photocopy of a certified copy of a deed, as at the moment obviously there is no quibbling about it. However, I must hasten to add as I have variously advocated in various position papers that the Evidence Act we have now which lays stress on the production of mechanical process for a copy to be admitted was made at a time when electronic production of a document did not exist. I wonder whether in the spirit of liberalising the law and giving the statute a flexible and elastic interpretation by enlarging the phrasing ”Mechanical Production” to include electronically produced document.
I believe that for a wider interpretation to be given to this sort of matter i.e. on the admissibility of such a document, the Supreme Court is to my mind the only body to extend it if it considers it desirable so to do and widen the scope of such interpretation. I however abide by the orders in the lead judgment.
CLARA BATA OGUNBIYI, J.C.A.: The issue for determination in this appeal was whether or not a photocopy of a certified true copy of a deed of conveyance which had been pleaded by both parties could be admissible in evidence.
The document is a certified copy. By certified copy it means:-
“A copy of a document or record, signed and certified as a true copy by the officer to whose custody the original is intrusted.” This is the definition per Blacks’ Law Dictionary fifth Edition, at P. 207. The Evidence Act at section 97(2) prescribes secondary evidence admissible and by subsection (c), only certified copy is to be admissible in the case of a public document. On the authority of Egbue Vs. Araka (1996) 2 NWLR part 433 p. 688 at 703 cited by the appellant’s counsel in his brief of arguments the document in that case was a Photostat and not a certified copy. It was therefore in-admissible as a secondary evidence of public document.
Furthermore in the Supreme Courts’ authority of Onobruchere Vs. Ezegine (1986) 1 NWLR part 19 p.799 their Lordships held against copies of official records as inadmissible, in the absence of due certification. The same Supreme Court in a further authority of Nzekwu Vs. Nzekwu (1989) 2 NWLR part 373 p. 404 held copies of official records inadmissible unless duly certified.
It is significant to restate that each case should be taken in the circumstance of its informed facts. Again the Supreme Court’s authority of Adegoke Motors Ltd. Vs. Adesanya (1989) 3 NWLR part 109 p. 250 at 265-266 is in point. It follows in my humble view therefore that generality may not always be appropriate especially where it runs the risk of placing the justice of the case in jeopardy. For instance where the original of a document as in this appeal cannot be found and it is of vital importance, there is the risk of sacrificing justice on the failure to produce same, on account of technicality and thus putting the case at stake.
With reference to the Supreme Court cases cited by the appellants supra, same are all distinguishable with the one at hand because while they can all be rectified by certification, the convenience of the one at hand is that which cannot be easily surmountable.
In the authority of Onabruchere Vs. Ezegine under reference supra, a further consideration was whether an uncertified copy of a Court’s judgment is admissible in evidence, that is to say a mere photocopy. This serves a remarkable distinction with the case in issue.
What is before us is the issue of admissibility of a photocopy not merely of a public document but that of a certified true copy of a Deed of conveyance with all the requisite endorsements thereon.
The case of Daily Times Nigeria Ltd v. F.R.A. Williams (1986) 4 NWLR (Pt. 36) P. 526 cited by the respondents’ Counsel is in point where a photocopy of an authentic document with all the endorsements on it as that having been certified from the original as a true copy was held to be admissible.
It is significant to re-iterate that a mere photocopy and a copy of a certified true copy of a public document are not the same but distinguishable.
In a further authority of Egbue Vs. Araka under reference supra, the document admitted was a photocopy of a public document which was not certified. The Court held that such a mere photocopy is inadmissible. This also is distinguishable from the case under consideration. The authority of Raymond Iheonu Vs. Simon Obiukwu (1994) 1 NWLR (Pt. 322) P. 594 cited by the respondent is on all fours with this appeal and is also in line with the Daily Times Nigeria Ltd. Vs. Williams under reference supra.
From all indications and that before us in this appeal, I subscribe to the reasonings and conclusions reached by my learned brother John Afolabi Fabiyi (JCA) in the lead judgment to the effect that this appeal lacks merit and it is also dismissed. I also uphold and affirm the ruling of the learned trial judge reached on the 6th March, 2002. The suit before the lower court should be continued for hearing and I also abide by the order as to costs.
Mr. N. Ibegbu, SAN, with A. Obi Esq.For Appellant
Mr. N. Okwuosa, for 1st RespondentFor Respondent