NASARAWA STATE GOVERNMENT & ORS v. J.M. TECHNOLOGIES LIMITED
(2019)LCN/13654(CA)
In The Court of Appeal of Nigeria
On Monday, the 15th day of July, 2019
CA/MK/41/2016
RATIO
EVIDENCE: DOCUMENT: PUBLIC DOCUMENT: MEANING AND DIFFERENCE FROM OFFICIAL DOCUMENTS
It is my humble view that the document is an official document and not a public document. It therefore does not require certification. In the case of Governor, Ekiti State V Ojo (2006) 17 NWLR (Pt. 1007) 95, 129 Abdullahi, JCA, stated that:
the hallmark of a public document is openness and that any one can go and demand that a certified copy be given to him on paying a prescribed fee.?
In Shyllon v University of Ibadan (2007) 1 NWLR (Pt. 1014) 1, 15 Augie, JCA, as he then was, in finding that letters addressed by the Registrar of a public University to two lecturers on a disciplinary matter were not public documents, opined that:
A public document must be brought into existence and preserved for public use on a public matter and must be open to public inspection ? In other words, for a document to be admissible as a public document, it should not only be available for public inspection, but should also have been brought into existence for the purpose.”
Surely, a memorandum from the Permanent Secretary (Admin) to the Commissioner of Finance conveying the Governor?s approval of payment cannot be classified as a public document as it is not open to public inspection and it is inconceivable that any member of the public can demand for a certified true copy of it upon payment of a fee. PER JOSEPH EYO EKANEM, J.C.A.
DOCUMENTS: WHEN A PUBLIC OR PRIVATE DOCUMENT CAN BE OBJECTED TO
It has been the law that a document, public or private, attached to an affidavit in support of a motion can not be objected to at that stage and that it can only be objected to at the stage of the trial. See Adejumo V Governor of Lagos State (1970) 1 All NLR183 and Nwosu V Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688, 735. PER JOSEPH EYO EKANEM, J.C.A.
DOCUMENTS: WHEN AN UNCERTIFIED PHOTOCOPY OF A PUBLIC DOCUMENT IS ATTACHED TO AN AFFIDAVIT
In British American Tobacco Nig Ltd V International Tobacco Company Plc (2013) 2 NWLR (Pt. 1339) 493, 520 ? 520, Mbaba, JCA, commenting on uncertified photocopies of public documents attached to an affidavit, stated as follows:
One cannot expect the applicant to have taken the document (photocopies) to the issuing registry for certification before using the same for this application. Only recently, we had cause to explain, in a well considered judgment, that public documents, exhibited as secondary copies in affidavit evidence cannot, necessarily, be certified true copies, and that documents exhibited to an affidavit is already an Exhibit before the Court, being part of the affidavit evidence which a Court is entitled to look at, and use.”
See also Jukok International Ltd V Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55, 110. PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. NASARAWA STATE GOVERNMENT
2. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, NASARAWA STATE
3. NASARAWA STATE MINISTRY OF LANDS, SURVEY AND TOWN PLANNING Appellant(s)
AND
J.M. TECHNOLOGIES LTD Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Nasarawa State, holden at Lafia (the trial Court) delivered in suit No. NSD/LF 68/2013 on 7/4/2014 in favour of the respondent against the appellants.
The 1st appellant awarded to the respondent a contract for the establishment of Nasarawa State Geographic Information System (NAGIS).
A written contract evidencing the contract was entered into between the 1st appellant and the respondent. The terms of the contract are set out in the written contract. The respondent was paid by the 1st appellant mobilization fee of N299,421,682.00 less 11% tax on 15/3/2010 pursuant to the contract. The respondent contended that it executed the contract up to the stage that it was entitled to the payment of 15% of the contract sum amounting to N74,855,420:48k. It therefore applied to the 3rd appellant for payment of the said sum of money to it. The respondent was paid the sum of N50,000,000:00 less 11% tax in November, 2010, leaving a balance of N24,855,420.48 outstanding. The respondent also contended that, while waiting for
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funds, it proceeded to engage in the capacity building or training of the shortlisted staff of the 3rd appellant which it completed in December, 2010. This, according to the respondent, qualified it for 10% payment amounting to N49,903,613.65k as agreed. This brought the total sum due to the respondent to N74,759,034.13. The respondent applied for payment of the outstanding amount and the release of the money was approved by the 1st appellant on 13/5/2011. Without paying the money inspite of several demands for payment, the 1st appellant terminated the contract.
Consequent upon the foregoing, the respondent took out a writ of summons accompanied by other required processes under the undefended list, seeking the following reliefs:
?1. The sum of N74,759,034.13k only to the plaintiff being the payment for the outstanding 15% payment after installations of hardware and software and 10% percent capacity building of the staff of Ministry of Lands, Survey and Town Planning.
2. 10% interest on the principal judgment sum from the date of judgment till the entire sum is wholly liquidated.
3. Cost of this action.”
The trial Court,
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based on the respondent?s ex ? parte motion, entered the suit on the undefended list.
Upon being served with the processes of Court, the appellants filed a memorandum of appearance, a notice of intention to defend coupled with an affidavit meant to disclose a defence on the merit (wrongly titled affidavit in support of motion on notice). The affidavit has one exhibit attached (Exhibit A) to it. The defence of the appellants as disclosed in the affidavit was that contrary to the terms of the contract, the respondent failed to train over fifty staff of the 3rd appellant, the desktop computers supplied were substandard and that the approval given for payment of the sum claimed was erroneously given. Exhibit A is the interim report of a panel said to have been set up to verify the contract.
The trial Court found that the notice of intention to defend together with the affidavit attached thereto did not disclose a defence on the merit. It therefore did not transfer the suit to the general cause list. Rather, the trial Court entered judgment in favour of the respondent in the sum of N74,759,034.13. The other reliefs were not granted.<br< p=””
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Aggrieved by the decision, the appellants have appealed against the same by means of a notice of appeal filed on 3/7/2014.
Pursuant to the rules of this Court, the appellants filed their brief of argument on 27/6/2016 and the same was deemed duly filed and served on 25/10/2018 by this Court. The respondent did not file its brief of argument and its motion for extension of time to do so was withdrawn and struck out.
At the hearing of the appeal on 22/5/2019, I.B. Gyado, Esq. (Assistant Director, Ministry of Justice, Nasarawa State) adopted and relied on appellants? brief of argument in urging the Court to dismiss the appeal.
In the appellants? brief of argument, two issues are formulated for the determination of the appeal. The issues are:
?1. Whether the Trial Court properly evaluated the evidence of the parties as per their argument and state of law before making its decision (distilled from grounds one, two and three).
2. Whether the Trial High Court was right in rejecting Exhibit ?A? (Interim Report of the Panel on Land Administration in Nasarawa State) of the Appellants but accepted Exhibit
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?9? (Conveyance of Approval (a mere photocopy) after refusing to consider and give effect to Exhibit ?2?, the Contract Agreement (which binds the parties together) (distilled from grounds four and five).
I adopt the issues above for the determination of this appeal.
It has already been stated that the respondent did not file its brief of argument. The implication is that the respondent is deemed to have conceded the truth of what is stated in appellants? brief of argument in so far as it is borne out by the record of appeal. Nevertheless, an appellant must succeed or fail on his brief of argument. It is not automatic that where the respondent fails to file a brief of argument in response to appellant?s brief of argument, the appellant must succeed. The Court still has the duty to resolve the issues raised based on the arguments of the appellant vis ? a ? vis the judgment appealed against, the facts of the case and the applicable law. See Okorie V State (2018) 11 NWLR (Pt. 1629) 1, 25. With this in mind, I shall proceed to consider the issues for the determination of the appeal.
?
I intend to start
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with issue 2 since it touches in part on the admissibility of Exhibit 9 and the discountenancing of Exhibit A before looking into issue one which deals with evaluation of evidence including Exhibits 9 and A.
Issue two
Whether the trial High Court was right in rejecting Exhibit ?A? (Interim Report of the Panel on Land Administration in Nasarawa State) of the Appellants but accepted Exhibit 9 (Conveyance of Approval ? a mere photocopy ? after refusing to consider and give effect to Exhibit 2, the Contract Agreement (which binds the parties together).
Appellants? counsel stated that that the complaint under this issue is against the trial Court?s acceptance of Exhibit 9, an uncertified public document. It was his contention that the trial court misdirected itself in holding that the appellants admitted the facts contained in Exhibit 9 when they did not do so. Rather, he stated, appellants challenged the respondent for not observing the terms of the contract by failing to train their staff and the trial Court failed to consider the various breaches by the respondent as set out in Exhibit A. He submitted that
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Exhibit 9 would not have been issued if the defects referred to in Exhibit A had been discovered earlier. He stressed that Exhibit 9 was not certified in accordance with Section 102 of the Evidence Act, 2011. He cited in support Minister of Lands, Western Nigeria V Azikiwe (1969) 1 All NLR 49, 59, among other cases.
Counsel lamented that the trial Court suo motu raised the issue of estoppel by conduct against the appellants and determined the case on it without hearing the appellants.
It is indeed the law as stated by appellants? counsel that the only admissible copy of a public document is a certified true copy of it. This is by virtue of Sections 89(e) and 90(1)(c) of the Evidence Act, 2011 (as amended). See also Minister of Lands, Western Nigeria V Azikiwe supra.
The contention of the appellants is that Exhibit 9 attached to the affidavit of the respondent is a photocopy of a public document which is uncertified and therefore the trial Court should not have considered it. It should be noted that Exhibit 9 is a photocopy of a memorandum or letter conveying the approval of the Executive Governor of Nasarawa State for the release of the sum
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of N74,759,034.13 (to the respondent). The letter is addressed to the Honourable Commissioner, Ministry of Finance and Economic Development and is signed by the Permanent Secretary (Admin). It is said to be from the Honourable Commissioner, Ministry of Lands, Survey and Town Planning, Nasarawa State. Attached to it is a copy of the memorandum for the approval addressed to the Executive Governor of Nasarawa State.
It is my humble view that the document is an official document and not a public document. It therefore does not require certification. In the case of Governor, Ekiti State V Ojo (2006) 17 NWLR (Pt. 1007) 95, 129 Abdullahi, JCA, stated that:
the hallmark of a public document is openness and that any one can go and demand that a certified copy be given to him on paying a prescribed fee.?
In Shyllon v University of Ibadan (2007) 1 NWLR (Pt. 1014) 1, 15 Augie, JCA, as he then was, in finding that letters addressed by the Registrar of a public University to two lecturers on a disciplinary matter were not public documents, opined that:
?A public document must be brought into existence and preserved for public
8
use on a public matter and must be open to public inspection ? In other words, for a document to be admissible as a public document, it should not only be available for public inspection, but should also have been brought into existence for the purpose.”
Surely, a memorandum from the Permanent Secretary (Admin) to the Commissioner of Finance conveying the Governor?s approval of payment cannot be classified as a public document as it is not open to public inspection and it is inconceivable that any member
