NWABUZOR & ORS v. UDECHUKWU (2020)

NWABUZOR & ORS v. UDECHUKWU

(2020)LCN/14708(CA)

In The Court Of Appeal

(AWKA JUDICIAL DIVISION)

On Thursday, November 19, 2020

CA/AW/146/2008

RATIO

EVIDENCE: RULE OF EVIDENCE ON THE ISSUE OF SECONDARY EVIDENCE

On the issue of secondary evidence in our law, the provision of Section 88 of the Evidence Act 2011 is apt. It states thus: “Documents shall be proved by primary evidence except in the case mentioned in this Act.
ARAKA V EGBUE (2003) LPELR532 SC
Section 89 of the Evidence Act 2011
Secondary evidence may be given of the existence, condition or contents of a document.
Subsections (e) and (f) are instructive
(e) The original is a public document within the meaning of Section 102.
(f) The original is a document of which a certified copy by this Act, or by any other law, in force in Nigeria, to be given in evidence.
Section 102 of the Evidence Act enumerate, “PUBLIC DOCUMENTS” They include (a) Documents forming the official acts or records of the official acts of “(a) The sovereign authority
(b) Official bodies and Tribunal or
(c) Public officers, legislature, Judicial and Executive whether of Nigeria or elsewhere”
Sections 104 & 105 of the Evidence Act 2011 make provisions for certification of public documents and proof of documents by production of certified true copies. PER PEMU, J.C.A.
EVIDENCE: PRESUMPTION AS TO GENUINESS OF CERTIFIED TRUE COPIES

Section 146 of the Evidence Act 2011 has this to say on presumption as to genuineness of certified true copies. I hereby reproduce the provisions verbatim:
“The Court shall presume every document purporting to be a certificate, certified copy or other document which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer in Nigeria who is duly authorized to be genuine, provided that such document is substantially in the form and purport to be executed in the manner directed by law in that behalf” PER PEMU, J.C.A.

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Rita Nosakhare Pemu Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

FRANCIS UNWABUZOR 2. JOSEPH OFORDILE 3. MICHAEL UWACHUKWU 4. EMEKA OKWUKOGU 5. EMENIKE NDIANAEFO APPELANT(S)

And

CHIBUEZE UDECHUKWU (Substituting Late Okwuchukwu Udechukwu By Order Of Court Dated 6th December 2016.) RESPONDENT(S)

RITA NOSAKHARE PEMU, J.C.A. (Delivering The Leading Judgment): This is an appeal against the Judgment of the High Court of Anambra State, sitting in Nnewi in Suit No. HN/4/2006, delivered on the 13th of March, 2006.

FACTS OF THE CASE
The Plaintiff Kenneth Udechukwu was substituted with Okwuchukwu Udechukwu by Order of Court dated 6th of December 2016, and had claimed against the defendants vide a Writ of Summons dated 11th of January 1991.

In paragraph 30 of the further amended Statement of Claim filed on the 17th of March 2002, he claims against the Defendants (Appellants in the present appeal) the following:
1) A declaration that the Plaintiff is entitled to the right of occupancy over all that piece or parcel of land known as Akwu-Diada otherwise called Akabo-Udechukwu, situate at Egbu Umuenem, Otolo Nnewi, in the Nnewi Local Government Area which parcel of land is delineated and shown on Plan NO MU/D58/91, with annual value of ₦100.00(One hundred naira)
2) possession of the said parcel of land shown in the aforementioned Plan MU/D58/91
3) Perpetual Injunction restraining the

defendants by themselves, privies, agents, and assigns from in any ways interfering with the plaintiff possessory rights.

The story of the plaintiff is that the land, the subject matter of this appeal originally belonged to Ezeaniekwe who exercised acts of possession on the land. He begat Nwankpi and Olisakwe.

During the life time of Olisakwe, Ibenma who is from the 1st Defendants’ family Okafor his son succeeded him. Upon the death of Okafor his son unori or Unoshi succeeded him. He was the great grandfather of the plaintiff. It was during his life time that Ibenma died and the portion which he occupied was re-occupied by his son Nwabuzor.

Nwabuzor permitted one Dala ubabuko to make use of the land at his death. Nwabuzor gave the land to Ejimonyeaka the 1st defendants’ uncle.
Udechukwu inherited the land of Unori at his death and made representation to Ejimonyeaka to leave the land. He refused but demanded two goats from Udechukwu in order to revert the land to him.

Udechukwu gave Nwabuzor who was Ejimonyeaka’s brother the land, returned to Nnewi in 1931 and started laying claims on the land.
He brought an

action against Udechukwu in the Native Court of Nnewi. The Court gave Judgment in his favour and Udechukwu appealed for review on the 6th of April in 1932. The Judgment of the native Court was reversed but was later endorsed by O. P. J O’Connor A D. years after the defendants’ father (Francis Nwabuzor) announced that he obtained judgment for the land in the High Court of Onitsha in suit No 0/7/32 delivered by Hon. Justice Graham Paul in 1934.

Udechukwu was ejected in execution of the judgment and left the land. 56 years later, his son instituted this action.
At the end of the hearing, the Court below found for the Plaintiff/Respondent in the present appeal.

The Appellants are dissatisfied and filed a Notice of Appeal on the 8th of May 2006 –pages 259-262 of the Record of Appeal. The Appellants filed their amended brief of argument on the 7th of December 2016. It is settled by C. E Onwuelo Esq. The Record of Appeal was deemed transmitted to the Court of Appeal on the 22nd of October 2012.

There is also an additional Record of Appeal received by the Registry of this Honourable Court on the 28th of March

2013.
On the 7th of September 2020, this Court granted a prayer for an order to hear this Appeal on the Appellants’ brief of argument because the Respondent, though served with processes including the Appellants’ brief of argument had failed and/or refused to file his brief of argument.

I shall therefore consider this appeal on the Appellants brief alone.
The Appellants’ distilled three (3) issues for determination from their brief of argument.
They are:
1) WHETHER THE PLAINTIFF/RESPONDENT DISCHARGED THE BURDEN ON HIM ESTABLISHING THAT EXHIBIT L (CERTIFIED TRUE COPY OF JUDGMENT OF HIS HONOUR GEORGE GRAHAM PAUL IN SUIT NO 7 OF 1932 FRANCIS NWABUZOR REPRESENTING UMUEZELEM OTOLO VERSUS UDECHUKWU UNORI OF NNEWI-OTOLO) IS NOT AUTHENTIC BY TENDERING EXHIBITS B AND G.
2) WHETHER THE JUDGMENT IN SUIT NO 7 OF 1932 FRANCIS NWABUZOR REPRESENTING UMUEZELEM OTOLO VERSUS UDECHUKWU UNORI OF NNEWI-OTOLO WAS PROVED BY THE DEFENDANTS/APPELLANTS BY TENDERING A CERTIFIED TRUE COPY OF IT (EXHIBIT L)
3) WHETHER THE DEFENDANTS/APPELLANTS ARE REQUIRED BY LAW TO TENDER BOTH THE CERTIFIED TRUE COPY OF THE JUDGMENT (EXHIBIT L)

AND ITS ORIGINAL AND IF NOT WHETHER THERE WAS NO INORDINATE AND UNLAWFUL DELAY BY THE PLAINTIFF/RESPONDENT IN CHALLENGING THE JUDGMENT (EXHIBIT L) DELIVERED ON THE 5TH DAY OF MARCH 1934, OVER 54 YEARS AFTER IT WAS DELIVERED AND EXECUTED AGAINST THE PLAINTIFF’S GRANDFATHER.

ISSUE NO 1.
The Appellants submit that the Plaintiff/Respondent had challenged the existence of the judgment of His Honour George Graham Paul in Suit No 7 of 1932-FRANCIS NWABUZOR VERSUS UDECHUKWU UNORI. That he had alleged that Exhibit L is a fraud. That it is trite law that once a crime has been alleged in a civil action, same must be specifically pleaded and particulars of the crime given — referring to the provisions of Order 9 rules 14 and 16 of the High Court of Anambra State 1988, and the provision of Order 16 Rule 3 (1) of the High Court of Anambra State (Civil Procedure) Rules 2006.

Submits that by the provisions of Order 15 Rule 7(2) of the High Court of Anambra State (Civil Procedure) Rules 2006, it states thus: “where a party raises any ground which makes a transaction void or voidable or such matter as fraud, limitation law, release, payment,

performance, facts showing insufficiency in contract or illegality either by any enactment or by common law he shall specifically plead same”

Submits that the Respondent failed to plead or give particulars of fraud regarding Exhibit “L”.
That no fraud was pleaded therefore the Respondent cannot be heard to challenge exhibit “L”

Submits that Exhibit “B” is a handwritten document emanating from Ajah Godian who did not indicate his position in the High Court Onitsha. That Exhibit “B” has no indication of payment neither is there evidence that it went through due process in that there is nothing to show that there was a search in the archives which was paid for referring to the 2nd Schedule of the High Court Anambra State Rules 1988—paragraph 38 there is therefore nothing to show that there was a search in the Court Archives which should have attracted a fee. There is nothing to show that the Court Archives was searched and that Exhibit “L” was not found when the requirement for search was not met.

They submit that

no evidence was led as to whether the signature on the document was that of the Acting Registrar as at 1934 at the High Court Onitsha (the Supreme Court of Nigeria as it then was) that there is nothing to show whether the payment made on Exhibit L was a proper due payment after assessment on such certification. There is nothing to indicate whether the stamp on the document was that of the Count.

They submit that the burden to prove the commission of fraud beyond reasonable doubt rests on the Respondent.
That the Court below observed that Exhibit “B” was not endorsed with office or position of the writer but it still acted on it after commenting that the document deserves a better treatment. That the Court did not observe the nonpayment for search.

Submits that Exhibit “G” – Letter from the National Archive Enugu did not discharge the burden on the Respondent that the Original of Exhibit L did not exist. That it only indicated that it was not found in the National Archives Enugu.
Submits that the Respondent woke up late to challenge Exhibit L. it took him 54 years to institute this action. He should

have challenged the Court Judgment timeously and on grounds that exist.

ISSUE NO 2: Referring to the provisions of Section 14 of the Evidence Act 1851, he submits that a certified copy is admissible even under the Evidence Act of 1938 (Section 1 (2) thereof).
Submits that Exhibit L satisfied all the statory requirement for certified copies.
Submits that the Appellants had proved the 1934 Judgment of His Honour George Graham Paul in suit No 7 of 1932 – Francis Nwabuzor representing Umezelem Otolo VS Udechukwu Unori of Nnewi Otolo by tendering Exhibit L.

ISSUES NO 3: Submits that the Judgment of any Court in Nigeria can either be proved by the production of the primary document or a secondary document which are copies made in compliance with the statutory requirements referring to Section 93 of the Evidence Act 1990.
Submits that the Appellants tendered Exhibit L (a certified true copy thereof) and same was admitted by the trial Judge. That the only evidence by the Respondent challenging the lack of genuineness of Exhibit L were Exhibit B and G. Submits that both documents are not conclusive proof that the

original of Exhibit “L” never existed.

RESOLUTION OF ISSUES
I shall consider Issues 1 & 2 together.

ISSUES NOS 1 & 2
Exhibit “B” is a letter tendered through PW2 Chief Isaac Okoli U. Nwosu who was subpoenaed.
It reads
“This is to certify that all frantic efforts I have so far made to trace records in re: suit N. 0/7/32 which was assigned to me on 26/9/88 proved abortive. There was nowhere in this Registry where the record was seen.
Yours Faithfully
(Sgd)

Exhibit B was addressed to the High Court of Justice Onitsha and dated 4th October 1988.
Exhibit “G” is a reply from National Archive. It a addressed to Chuba Ikpeazu & Co. 46 Oguta Road, Onitsha. It reads thus:
“Dear Sir,
RE: SEARCH FOR JUDGMENT OF HIGH COURT ONITSHA Francis Nwabuzor Vs Udechukwu
I am directed to refer to your letter of 19th July, 1988 on the above subject matter and to inform you that we have gone through our holding but could not find records relating to the case in question.
(Sgd) U. C. Olehi

(Mrs)
For: Chief Archivist.

A Judgment No 326 dated 25/4/32 was delivered on the 27/11/21 in favour of Francis Nwabuzor. Udechukwu appealed the judgment to the ADC. C. W. Jones Lloyd, who reviewed the Judgment of the Native Court and delivered judgment on the 6th of August 1932 in favour of Udechukwu. Exhibit “G” is the certified True Copy of this Judgment.
Exhibit B and G were tendered by the Respondent.
Exhibit “L” was pleaded by the Defendants/Appellants in paragraph 25 of their amended Statement of Defence.
In paragraphs 20 to 30 at pages 90 and paragraphs 5-10 in page 91 of the Record of Appeal, the Defendants pleaded the facts leading to Exhibit – L.
In a further amended reply to Amended Statement of Defence dated 16th June 1996, – paragraph 3 (b) (ii). In its reply it constitute the fact that the review by the Assistance District officer and District Officer respectively of the Judgment of 25th April 1932 constitutes res judicata and/or cause of action estoppel and therefore the new trial was a nullity as well as abuse of processes.
Curiously they did not

object to jurisdiction at the time the Judgement was delivered. It was a Supreme Court judgment as at the time Judgment was delivered on 5/3/34. They are therefore caught by equitable doctrine of laches and acquiescence.

Official bodies and Tribunal or
(c) Public officers, legislature, Judicial and Executive whether of Nigeria or elsewhere”
Sections 104 & 105 of the Evidence Act 2011 make provisions for certification of public documents and proof of documents by production of certified true copies.
A painstaking perusal of Exhibit L show that the document was certified and the relevant fees paid.
Section 146 of the Evidence Act 2011 has this to say on presumption as to genuineness of certified true copies. I hereby reproduce the provisions verbatim:
“The Court shall presume every document purporting to be a certificate, certified copy or other document which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer in Nigeria who is duly authorized to be genuine, provided that such document is substantially in the form and purport to be executed in the manner directed by law in that behalf”
It is my view that Exhibit L substantially complies with the provision on certification in FORM.
Exhibit “L” was headed <br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“IN THE SUPREME COURT OF NIGERIA” MONDAY 5TH OF MARCH 1934. BEFORE HIS HONOUR GEORGE GRAHAM PAUL-JUDGE. M/154/SUIT NO 7 OF 1932”
The parties indicated on Exhibit L are FRANCIS NWABUZOR (representing Umuezelem Otolo) Vs UDECHUKWU UNORI of Nnewi Otolo – same parties whose judgment was reviewed.
The introductory part Exhibit L states as follows:
“This suit was brought in the provincial Court of Onitsha, and was transferred to this Court for trial …”
After a painstaking perusal of Exhibits B and G, I observe the following features inherent therein viz.
Exhibit B shows that the office of the signatory on it is not stated. The Exhibit is a purported letter written on a plain sheet of paper.
It is not typewritten.
Exhibit F is a letter written by the plaintiff (Respondent in this Appeal) counsel to the National Archives requesting for record of proceedings. Exhibit G is a reply to Exhibit “F”.
Exhibit “L” raises a presumption that the original is in existence. That presumption is rebutted by Exhibit “B” and

“G”. The onus is on the Appellants to prove that the original (of which Exhibit L is a copy) – assert exists. Appellants assert the existence of the original— the presumption raised by Exhibit L having been rebutted. Exhibits B and G are not enough to rebut this presumption. They are frugal and indeed fragile attempts to rebut the presumption of genuineness of Exhibit L.
I am of the view that, from the provisions of the Evidence Act just reproduced, as long as a certified true copy of a public document is tendered, that suffices. It satisfies the principle of relevancy and admissibility.
While the answer to Issue No 1 is in the negative, the answer to Issue No 2 is in the affirmative. These issues are resolved in favour of the Appellants and against the Respondent.

ISSUE NO 3: The law does not provide that the original and certified true copies of public documents be tendered in respect of a document. This is because the law demands either of them as proof of a public record.
There is unchallenged evidence of execution of Exhibit L in 1934. It is apparent that the Respondents’ father and

grandfather did nothing from 1934 to 1985 (a period of 54 years after).

The fact that Udechukwu Unori the grandfather of the
Plaintiff/Respondent applied for the review of the Native Court case Exhibit “D” shows that he was not ignorant, neither was he a poor man as claimed by the Respondent.
The cause of action accrued in 1934.
It is too late in the day for the Respondent to challenge the suit, the subject matter of this Appeal, because the action was instituted in 1997 –63years after the Judgment of 1934. The equitable doctrine of laches and acquiescence clearly catches up with the Respondent in the circumstances of this case.

The totality is that the Appeal succeeds and same is hereby allowed. The Judgment of the High Court Anambra State sitting in Nnewi in Suit No HN/4/91 delivered on the 15th of March 2006 is hereby set aside.
N100,000 costs in favour of the Appellants.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have had a preview of the Judgment just delivered by my learned brother R. N. PEMU, JCA.
I agree that the appeal be allowed and the Judgment of the trial

Court set aside for the more detailed reasons contained in the lead Judgment.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

E. ONWUELO ESQ. For Appellant(s)

…For Respondent(s)