MALLAM DAUDA ALHAJI AHMADU SABON FEGI BIYE v. ALHAJI SALEH IBRAHIM BIYE
(2014)LCN/7212(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 21st day of May, 2014
CA/K/145/2008
RATIO
APPEAL: CONDITIONS TO BE ESTABLISHED FOR A CLAIM OF RES JUDICATA TO SUCCESS
In considering this appeal I need to restate the law that where a party set up res-judicata as a bar to the other party’s claim, for him to succeed the following ingredients must be established;
1. There must be a judicial decision;
2. The Court that delivered the decision must have had jurisdiction over the parties and the subject matter;
3. The decision must be final and on the merit;
4. The decision must determine the same question as that raised in the later litigation; and
5. The parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.
See; the case of; Dakolo Vs Rewane-Dakolo (2011) NWLR (Pt.1272) Page 22 at 27.
One of the conditions for the operation of the doctrine of res judicata is that the Court that heard the first suit must be a Court of competent jurisdiction. See the cases of;
Ekpe Vs Antai (1944) 10 WACA 19.
Madukolu Vs Nkemdilim (1962) 1 ALL NLR 586 at 785. per ABDU ABOKI, J.C.A.
EVIDENCE: WHETHER THE ADMISSIBILITY OF AN ALREADY ADMITTED DOCUMENT CAN BE CHALLENGED
It is settled law that where a document is legally admissible but on the fulfillment of certain conditions and it is admitted in evidence without objection from the other party, even without the fulfillment of the said conditions, that other party cannot later complain on the admissibility of the document and the court cannot expunge it and must consider it in its deliberations – Etim Vs Elge (1983) 1 SCNLR 120, Omega Bank (Nig) Plc Vs OBC Ltd (2005) 8 NWLR (Pt.928) 547, Nigerian Bottling Co. Plc Vs Ubani (2009) 3 NWLR (Pt.1129) 512. Additionally, not having raised the issue of non-pleading of the documents in the trial Court, the Appellant cannot raise it before this Court without having first sought for and obtained the leave of this Court to do so. No such leave was sought for and obtained and the Appellant cannot thus raise it – Nidocco Ltd Vs Gbajabiamila (2013) 14 NWLR (Pt.1374) 350, Nigerian Bottling Company Plc Vs Ubani (2014) 4 NWLR (Pt.1398) 421 and Society Bic SA Vs Charzin Industries Ltd (2014) 4 NWLR (Pt 1398) 497. per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
APPEAL: WHETHER A COURT MUST CONFINE ITSELF TO THE ISSUES RAISED IN APPEAL.
It is well settled that a court must confine itself to issues raised on appeal. Where an issue is not placed before a court, such court has no business whatsoever to deal with it as decisions of a court of law must not be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before it – Iyayi Vs Eyigebe (1987) 3 NWLR (Pt 61) 523, Kraus Thompson Organization Ltd Vs University of Calabar (2004) 9 NWLR (Pt.879) 631, Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt.1957) 218. per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A
JUSTICES
ABDU ABOKI Justice of The Court of Appeal of Nigeria
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
Between
MALLAM DAUDA ALHAJI AHMADU SABON FEGI BIYE
(Suing on his own behalf and on behalf of the family of Alhaji Ahmadu Abdu) Appellant(s)
AND
ALHAJI SALEH IBRAHIM BIYE Respondent(s)
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court of Justice sitting in Zaria, delivered on 19th April, 2007 by Binta F. Isah J. The Appellant was the Plaintiff at the Lower Court while the Respondent was the Defendant.
By a writ of summons dated 6th November, 2004 the Appellant instituted an action against the Respondent claiming the following reliefs;
1. “A declaration of title over a large piece of farmland situate to the eastern part of Biye by Ahmadu Bello University Teaching Hospital, Shika which the plaintiff’s father had purchased from Ahmadu Hassan.
2. An order of perpetual injunction restraining the defendant by himself, his agents, servants, privies or any person acting on his behalf, howsoever from entering and or trespassing into the said farmland.
3. General damages in the sum of N100,000.00 for trespass.
4. Any other relief(s) the Hon. Court may consider appropriate to grant in the circumstance.”
The case of the Appellant was that he is the first son of Alhaji Ahmadu Biye who is now very old. The Appellant’s father purchases the disputed farmland situated at Biye by Ahmadu Bello University Teaching Hospital Shika near Zaria from one Mal. Ahmadu Hassan on 3/5/1977, the transaction was documented and receipt evidencing payment of the purchase price was given to him.
The Appellant’s father had a number of cases with the Respondent over the disputed farmland and the results of these cases were that the Respondent was declared the owner of the disputed farmland.
Before issues were joined, the Respondent by motion on notice dated 14/07/2004 filed a notice of preliminary objection seeking for an order striking out the suit for being incompetence and lack of jurisdiction on the grounds that the Appellant has no locus standi to sue, no leave was obtained to sue in a representative capacity, the claim was Res judicata and statute barred.
After hearing the arguments of counsels the trial Court on 19/05/2005 refused the application and held inter alia as follows;
“I do not think the plaintiff lacks the locus standi to sue.
The reasons so stated in paragraph 3 of statement of claim vest the right to sue on the plaintiff The fad that no leave was sought for and granted can be seen as mere irregularities, which do not touch on the substance of this case. ….. It is not in dispute by both parties that the case was litigated before the various Area and Upper Area Courts; the question is, were (sic) those Courts competent to have tried those previous suits? The applicants counsel only pleaded previous litigations and no more. She did not in any way either accompany previous record of proceedings, copy of judgments etc to buttress her plea. …….Since the plea of Res judicata raised by the Applicant’s counsel has not satisfied one of the requirements of the second objection, it has failed too…”
Issues were joined and witnesses were taken on both sides, the Appellant called 4 witnesses, while the Respondent called one witness.
On 27/09/2006 DW1 the Assistant Chief Registrar of High Court of Justice Kaduna state, sought to tender records of proceedings of the Area Court, Upper Area Court and certificate of judgment of the HIGH COURT (the lower sitting on Appeal against the decision of the upper Area Court) in evidence, which were objected to by the Appellant’s counsel on the ground that the documents did not comply with the requirements of section 111 of the Evidence Act and were not certified by the proper officer. The trial Court overruled the Appellant’s counsel objections, and held that the documents strictly complied with the provision of section 111 (2) and 112 of the Evidence Act. The Respondent closed his case on 14/11/2006.
The trial Court delivered a considered judgment on 19th April, 2007 in favour of the Respondent, where in it held inter alia as follows;
“…On issue of wrongly admitting exhibit A, B and C which counsel asked me to expunge from the record of this Court again by simple reply is I stand by my earlier ruling of 27 September, 2006 concerning these issues. In totality, the plaintiff claim has failed, it being caught up by the doctrine of estoppel RES JUDICATA. Consequently, all the plaintiff’s claim have failed in totality while the suit is accordingly dismisses, and I hereby so dismissed same.”
Dissatisfied with the said judgment the Appellant filed a notice of appeal containing two (2) grounds of appeal. The two grounds of appeal without their particulars are identical and they both read as follows;
“The learned trial judge erred in law when she refused to expunge inadmissible documentary evidence even when urged”.
In accordance with the rules of this court, the Appellant filed his brief of argument dated 22 September, 2008. The Respondent did not file any brief and was not represented at the hearing of this appeal. Leave of this court was later sought for and obtained on 30th April, 2013 for the Appeal to be heard and determined on the Appellant’s brief alone.
In his brief of arguments the Appellant withdraw ground one of the grounds of appeal and apply that it be struck out. He raised a lone issue for the determination of the Appeal which is adumbrated as follows;
1. Whether the documents tendered by the Respondent and admitted are admissible and could be relied upon to constitute res-judicata in this case?
This lone issue is adopted for the determination of this appeal.
Learned Appellant counsel submitted that “Exhibit A” (Record of proceeding of Area Court 1 Sabon Gari, Zaria) and “Exhibit B” (Record of proceeding of Upper Area Court GRA, Zaria) were admitted in evidence by the trial Court notwithstanding objection raised as to their admissibility and the Court relied on them to hold that they constitute Res-Judicata and dismissed the Appellant suit.
Learned counsel contended that proceedings in Area Courts are taken in the local language spoken in the area and the local language spoken in Zaria is Hausa language. DW1 agreed that he translated the Hausa version of the record of proceedings into English language, but the Hausa version of the record of proceeding were not tendered in evidence. He argued that the original copy of exhibit A and B are in Hausa language, it was not indicated in either exhibit A or B that it was translated copy from the original copy, therefore they have no origin and are not admissible in evidence.
Learned counsel contended that a look at exhibits A and B will show there is stamp of the High Court, the word certified true copy, signature and date, but there is nothing to show on each of the exhibits that legal fees was paid for the certification. He submitted that exhibits A and B were not properly certified in accordance with section 111 (1) of the Evidence Act to be admitted in evidence. He referred the Court to the cases of;
PDP Vs Sidi Ali & 4 others (2004) ALL FWLR (Pt.220) page 1371 at 1384-1385.
Nwabuoku & 5 others Vs Onwordi & 3 others (2006) ALL FWLR (Pt.331) page 1236 at 1251-1252.
He further submitted that parties are bound by their pleadings and any evidence elicited outside the pleadings goes to no issue. He referred the Court to the cases of;
Sosanya Vs Onadeko & 5 others (2005) ALL FWLR (Pt.255) page 1000 at 1027.
Emegokwe Vs Okadigbo (1973) 4 SC 113 at 117.
He argued that in paragraph 5 of the Respondent’s statement of defence dated 22nd September, 2005 the record of proceedings of Area Court Giwa was pleaded, which the decision of Upper Area Court Zaria was said to have confirmed, but Exhibit A tendered and admitted was the record of proceeding of Area Court 1 Sabon Gari, Zaria and not Area Court Giwa. He submitted therefore, that Exhibit A which was wrongly admitted was not pleaded.
Learned counsel insisted that from the foregoing, the trial Court wrongly admitted exhibit A and B in evidence, and that though it has the power to expunge them but it fail to do so. This Court was invited to expunge them from the record and cited in support in the cases of;
United Bank for Africa Plc Vs Ayinke (2000) ALL FWLR (Pt.663) page 83 at 100,
Alhaja Shittu & 3 others Vs Fashawe & 1 other (2005) ALL FWLR (Pt 278) page 1017 at 1032.
He contended that the decision of the trial Court was founded on exhibits A, B and C as constituting estoppels per rem judicata. He submitted that if they are expunged, the only remaining documentary evidence is exhibit C which alone cannot constitute res-judicata, since it is not a record of proceeding but ceftificate of judgment.
He submitted further that exhibit C was not pleaded, therefore it goes to no issue and even if it was pleaded it is not sufficient to constitute res-judicata. He referred the Court to page 14-15 of the printed record and the case of;
Abubakar vs Federal Mortgage Bank Ltd & 4 others (2003) FWLR (Pt.151) page 1918 at 1928.
Learned counsel urged the Court to hold that exhibits A, B and C are not admissible to sustain res-judicata, and to allow this appeal.
In considering this appeal I need to restate the law that where a party set up res-judicata as a bar to the other party’s claim, for him to succeed the following ingredients must be established;
1. There must be a judicial decision;
2. The Court that delivered the decision must have had jurisdiction over the parties and the subject matter;
3. The decision must be final and on the merit;
4. The decision must determine the same question as that raised in the later litigation; and
5. The parties to the later litigation were either parties to the earlier litigation or their privies, or the earlier decision was in rem.
See; the case of; Dakolo Vs Rewane-Dakolo (2011) NWLR (Pt.1272) Page 22 at 27.
One of the conditions for the operation of the doctrine of res judicata is that the Court that heard the first suit must be a Court of competent jurisdiction. See the cases of;
Ekpe Vs Antai (1944) 10 WACA 19.
Madukolu Vs Nkemdilim (1962) 1 ALL NLR 586 at 785.
On the issue of whether the Area Court and upper Area Court were competent to tried the suit the trial Court held in its ruling delivered on 19th May, 2005 at page 67, paragraph 2 of the printed record in favour of the Appellant as follows;
“…I cannot ad on a vacuum; my hands are tied to hold otherwise the assertion of the Respondents counsel (sic) that the various Area Courts and Upper Area Courts acted without jurisdiction….(sic). Since the plea of Res judicata raised by the Applicant’s counsel has not satisfied one of the requirements of the second objection, it has failed too,”
The claim of the Appellant in the Area Court and Upper Area Court is for declaration of title over a piece of land in urban area. Now, can it be said that those Courts have jurisdiction to entertain the suit? I do not think so. By virtue of section 39(1) of the Land Use Act Vol.XI Cap 202 LFN 1990, the State High Courts have exclusive original jurisdiction in respect of proceedings for a declaration of title to Land/Right of occupancy.
In Gabriel Madukolu & Ors Vs Johnson Nkemdilim 1 ALL N.L.R (Pt.4) Page 587 at 595; Bairamian J.S.C held a Court is competent when;
1. “It is properly constituted as regards numbers and qualifications of the members and no member is disqualified;
2. The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevent the Court from exercising its jurisdiction;
3. The case comes before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.”
The claim of ownership of a land in urban area is not within the jurisdiction of the Area Court or Upper Area Court. Therefore, the decision of the decision of Upper Area Court Zaria which was conducted without jurisdiction is null and void. There is no any previous decision by a Court of competent jurisdiction establish, to satisfy the ingredients stated in the case of Dakolo Vs Rewane-Dakolo (Supra) at 27. Hence, the decision of the Lower Court (sitting on appeal) upholding it cannot stand and the Appellant’s claim at the Lower Court cannot be said to be caught up by the doctrine of estoppels by res-judicata. The maxim is “You cannot put something on nothing and expect it to stand”.
This lone is resolved in favour of the Appellant.
This appeal succeeds. The Judgment of the Kaduna State High Court sitting at Zaria delivered in suit No. KDH/Z/4/04 on 19/04/2007 by Binta F. Isah J. is hereby set aside. In its stead the matter is remitted back to the Chief Judge of the Kaduna State High Court to be heard denovo by another judge. I make no order as to costs.
THERESA NGOLIKA ORJI-ABADUA J.C.A.: I agree.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading the lead judgment delivered by my learned brother, Abdu Aboki, JCA. I agree with the conclusion reached therein that there is merit in the appeal and as well as with the orders made. I, however, differ on the reasoning for the judgment.
The Appellant commenced the action in the Lower Court as plaintiff against the Respondent as defendant and his claims were for a declaration of title to a large piece of farmland situate in the eastern part of Biye by Ahmadu Bello University Teaching Hospital, Shika which his father purchased from one Ahmadu Hassan, an order of perpetual injunction and damages for trespass. The Respondent raised the defence of estoppel by res judicata. The records of appeal show that in the course of the trial, the Respondent sought to tender the records of proceedings of the Area Court and of the Upper Area Court as well as a certificate of judgment of the High Court sitting on appeal against the decision of the Upper Area Court. The records show that the Counsel to the Appellant objected to the tendering of the documents on the grounds that they were not properly certified in compliance with the provisions of section 111 of the Evidence Act in that they did not show that a fee was paid for the certification and they were translated copies of the original proceedings which were conducted in Hausa language in the Area Courts and the Hausa versions were not produced and that the person who certified them was not clear. The Lower Court overruled the objections and stated that the documents strictly complied with the provisions of section 111, and 112 of the Evidence Act and it admitted the documents as Exhibits A, B and C respectively.
At the conclusion of trial, Counsel to the Appellant again urged the Lower Court in his written address to expunge and discountenance the said Exhibits A, B and C and not rely on them because they were not properly certified in accordance with the provisions of section 111 of the Evidence Act. In a considered judgment delivered on the 19th of April, 2007, the Lower Court again rejected the submission of Counsel to the Appellant on the three documents and it relied on the three exhibits to find that the Respondent had made out a case of estoppel by res judicata and it dismissed the claims of the Appellant on that basis.
The Appellant was dissatisfied with the judgment and he filed a notice of appeal dated the 14th of May, 2007 and it contained two grounds of appeal. The complaint of the Appellant in the two grounds of appeal was that the Lower Court was in error when it refused to expunge the three documents and when it relied on them to find in favour of the Respondent. In compliance with the rules of this Court, Counsel to the Appellant filed a brief of arguments dated the 22nd of September, 2008. The Respondent did not file any brief of arguments in response and he did not participate in the appeal. On the 30th of April, 2013, this Court made an order for the hearing of the appeal only on the brief of arguments of the Appellant.
In arguing the appeal, Counsel to the Appellant withdrew the just ground of appeal and prayed that it should be struck out and he formulated one issue for determination from the second ground of appeal. This was – whether the documents tendered by the Respondent were admissible and could be relied upon to constitute res judicata in this case.
On the issue for determination, Counsel to the Appellant stated that the proceedings in the Area Courts, Area Court 1, Sabon Gan, Zana and Upper Area Court, Zana, whose proceedings were tendered as Exhibits A and B, were conducted in Hausa Language and that though the defence witness testified that he translated the Hausa version of the proceedings into English, the Hausa versions of the proceedings were not tendered and there was no indication on either Exhibit A or Exhibit B that they were translated copies. Counsel stated that looking at the certification done on both exhibits, there was no evidence that legal fees were paid for the certification and that as such the certifications were not in compliance with the provisions of section 111 of Evidence Act and ought not to have been admitted in evidence and he referred to the cases of PDP Vs Sidi Ali & 4 Ors (2004) All FWLR (Pt.220) 1371 and Nwabuoku & 5 Ors Vs Onwordi & 3 Ors (2006) All FWLR (Pt 331) 1236.
Counsel stated further that the record of proceeding pleaded by the Respondent in the statement of defence was that of the Area Court in Giwa and it was the decision of this Area Court that the Upper Shariah Court Zana was said to have affirmed but that what was tendered as Exhibit A was the record of proceedings of the Area Court 1, Sabon Gari. Counsel stated that parties were bound by their pleadings and that any evidence elicited outside the pleadings goes to no issue and he referred to the cases of Sosanya Vs Onadeko (2005) All FWLR (Pt.255) 1000 and Emegokwe Vs Okadigbo (1973) 4 SC 113 and he stated that Exhibit A was thus wrongly admitted. Counsel stated that the Lower Court relied on the three exhibits to find for the Respondent on estoppel per rem judicata and that if Exhibits A and B are expunged, Exhibit C alone cannot sustain the plea of estoppel per rem judicata as it is not a record of proceeding and that Exhibit C itself was also not pleaded. Counsel urged this Court to hold that Exhibits A, B and C were inadmissible and to allow this appeal.
The sole ground upon which the Appellant has contested this appeal is on the admissibility of Exhibits A” B and C, and on no other ground. This Court’s duty in this appeal is thus confined to assessing the decision of the Lower Court and determining whether the decision is in accord with the law and the dictates of justice only on this ground. It is well settled that a court must confine itself to issues raised on appeal. Where an issue is not placed before a court, such court has no business whatsoever to deal with it as decisions of a court of law must not be founded on any ground in respect of which it has neither received argument from or on behalf of the parties before it – Iyayi Vs Eyigebe (1987) 3 NWLR (Pt 61) 523, Kraus Thompson Organization Ltd Vs University of Calabar (2004) 9 NWLR (Pt.879) 631, Ogunyade Vs Oshunkeye (2007) 15 NWLR (Pt.1957) 218.
The Appellant has challenged the admissibility and the reliance placed on Exhibits A, B and C on two grounds – that they were not pleaded and that they were not properly certified as required by law. Reading through the records of proceedings, it shows that the Counsel to the Appellant did not oppose or challenge the admissibility of the exhibits on the ground that they were not pleaded when the Counsel to the Respondent sought to tender them through the sole defence witness in the course of trial. It is settled law that where a document is legally admissible but on the fulfillment of certain conditions and it is admitted in evidence without objection from the other party, even without the fulfillment of the said conditions, that other party cannot later complain on the admissibility of the document and the court cannot expunge it and must consider it in its deliberations – Etim Vs Elge (1983) 1 SCNLR 120, Omega Bank (Nig) Plc Vs OBC Ltd (2005) 8 NWLR (Pt.928) 547, Nigerian Bottling Co. Plc Vs Ubani (2009) 3 NWLR (Pt.1129) 512. Additionally, not having raised the issue of non-pleading of the documents in the trial Court, the Appellant cannot raise it before this Court without having first sought for and obtained the leave of this Court to do so. No such leave was sought for and obtained and the Appellant cannot thus raise it – Nidocco Ltd Vs Gbajabiamila (2013) 14 NWLR (Pt.1374) 350, Nigerian Bottling Company Plc Vs Ubani (2014) 4 NWLR (Pt.1398) 421 and Society Bic SA Vs Charzin Industries Ltd (2014) 4 NWLR (Pt 1398) 497. This Court will thus discountenance the arguments of the Counsel to the Appellant on the issue of non-pleading of the documents.
On certification, it is not in contest that the documents tendered as Exhibits A, B and C are public documents and the law is that for them to be legally admissible evidence, they must be certified – Araka Vs Egbue (2003) 17 NWLR (Pt 848) 1, Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1.
Section 111 (1) of the Evidence Act, Cap E14, Laws of Federation 1990, the law in effect at the times material to this appeal, (but now section 104 of the Evidence Act 2011) deals with certification of public documents and it reads:
“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 legal fees therefor together with a certificate 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.”
This provision has been interpreted by the Courts to mean that before a public document can be regarded as a certified copy – (a) legal fees must be paid where payable; (b) there must be a certificate at the foot of such a document that it is a certified copy of the original or part thereof; (c) it must be dated; (d) it must be subscribed by the officers issuing the document with name and title of office; (e) it must be sealed. The Courts say that the word used in the provision is “shall” which is mandatory and that as such each of these conditions must be met before a public document is admitted in evidence – Ndayako Vs Mohammed (2006) 17 NWLR (Pt.10009) 676, Tabik Investment Ltd Vs Guaranty Trust Bank Plc (2011) LPELR- 3131 (SC).
Looking at the documents admitted as Exhibits A, B and C, they carry all the requirements for certification save evidence of payment of legal fees. The witness who tendered the documents was the Assistant Chief Registrar of the High Court of Kaduna State and it was not his evidence that legal fees were not payable for the certification of these documents. In Tabik Investment Ltd Vs Guaranty Trust Bank Plc supra, the Supreme Court stated emphatically that payment of legal fees and evidence of same was an integral part of the certification process and it cannot be waived and none can be exempted from paying the legal fees. Mukhtar, JSC (as she then was) made the point thus:
“The fact that it sets out conditions that must be satisfied before a public document is admitted in evidence, requires that such conditions must be met. The argument that the payment of legal fee required in Section 111 (1) of the Evidence Act … would be by private or members of the public who are applying for such certified true copies of the public document, and not payable by government departments as in this case, holds no water. None of the appellants belongs to any government department, so such concession cannot be arrogated to them. The tendering of the documents (exhibits A, 81, 82 and 83) was at the instance of the appellants, as litigants seeking reliefs in the learned trial court. They are neither government officials, government agencies nor government department, so they cannot be perceived as falling within any exemption, if at all there is any such. That is to say that the provision of Section 111 (1) of the Evidence Act has left no room for any exemption, for if the legislature intended or contemplated that there would be any such exemption it would have specifically stated. In this regard the court below was on firm ground when it observed and found as follows:
‘It is clear that the Section has not made any exemption from the payment of legal fees by any person who requires to secure a certified true copy of any public document in custody of a public officer including members of the police force. If there are exemptions, the section or any section related thereto should have specifically provided for such exemption.”‘
The Respondent not having paid legal fees for the certification of the three documents, Exhibits A, B and C, the certification process was not complete and the documents did not yet qualify as certified copies at the time they were admitted by the Lower Court. What the Lower Court ought to have done was to have directed the Respondent to go and make the payment of the legal fees before admitting the documents in evidence. The documents were not legally admissible evidence at the point they were admitted by the Lower Court. They ought not to have been admitted as they were by the Lower Court.
Reading through the judgment appealed against, it is very apparent that the Lower Court placed sole reliance on the documents admitted as Exhibits A, B and C in finding for the Respondent on estoppel per rem judicatam and it was on this basis that it dismissed the claim of the Appellant. It is settled that where the reliance place on inadmissible evidence indeed influenced the decision of the Lower Court, the appellate Court must interfere to set aside the judgment – Ajayi Vs Fisher (1956) NSCC 82 and Zenith Bank Plc Vs Ekereuwem (2011) LPELR-5121 (CA).
It is for these reasons that I find merit in this appeal. I hereby allow the appeal and I too set aside the judgment of the High Court of Kaduna State in Suit No KDH/Z/4/2004 delivered Honorable Bina F. Isah on the 19th of April, 2007. I abide the consequential orders and the order on costs contained in the lead judgment.
Appearances
Miss M. A. Okpe Esq.For Appellant
AND
No appearance for the Respondent.For Respondent
