P. D. HALLMARK CONTRACTORS NIGERIA LIMITED & ANOR v. GLORIA KANROTMWA GOMWALK (2015)

P. D. HALLMARK CONTRACTORS NIGERIA LIMITED & ANOR v. GLORIA KANROTMWA GOMWALK

(2015)LCN/7785(CA)

(2015) LPELR-24462(CA)

In The Court of Appeal of Nigeria

On Friday, the 13th day of February, 2015

CA/J/206/2013

RATIO

LAND LAW: LEASE AGREEMENT; THE DEFINITION OF A LEASE AGREEMENT AND THE APPROPRIATE OFFICE WHERE REGISTRATION OF ALL INSTRUMENTS SHOULD BE CARRIED OUT

EVIDENCE: DOCUMENTARY EVIDENCE: HOW TO TENDER A DOCUMENT TO FALL UNDER AN INSTRUMENT WITHIN THE MEANING OF THE LAND REGISTRATION ORDINANCE, 192

The objection by the learned Counsel for the respondent that the lease agreement bore “Certified True Copy” hence it should not be admitted in evidence went not to admissibility but to the weight to attach to the document after it had been cross-examined upon. The learned trial Judge ought not to have upheld the objection but to have admitted and marked the agreement as an exhibit.
In Elkali & Anor. vs. Fawaz (1946) 6 WACA 212 the West African Court of Appeal held at pages 214 that what the plaintiff sought to tender as being an agreement for a lease of a shop should have been rejected when tendered in evidence for the following reasons:
“If it were an agreement between natives (when of course the Government authorities) there can be no question but that, upon the authority of Abdallah Jammal vs. Namih Saidi and Yesufu Fetuga (11 NIR 86) – with which we see no reason to differ – it would be an instrument within the meaning of the Land Registration Ordinance, 1924 (No.36 of 1924). We cannot subscribe to the view of the learned trial Judge that it was possible for the defendant to have the use of a shop under a sub-lease “without any interest or right in the land being conveyed.” It may, however, be argued that in view of the inclusion of the “subject to approval” clause the document would not become an “instrument” within the meaning of the Ordinance unless and until the necessary approval were given. However, this may be, it was tendered in evidence as the document upon which the claim was founded, i.e as a document which had conformed on the plaintiffs (and therefore necessarily on the defendant) a right to claim specific performance by execution of a lease and in the alternative to claim damages for breach. If it is such a document as the party tendering it held it out to be when tendering it, then it is clearly an instrument within the meaning of the Land Registration Ordinance, 1924, and it was tendered as affecting land. This being so, the objection to its admission was, in our view, sound and should have been upheld and the document rejected.” However in Yaya vs. Magoga (1947) 12 WACA 132 a receipt for purchase of No.38 Ajishomo Street, Lagos in the sum of one hundred and sixty pounds sterling which the vendor clearly stated that it is the “full purchase money paid to me for a dwelling house situate lying and being at Agege via Ebute Metta” was held not to confer or transfer any right, title, or interest in the land. The West African Court of Appeal explained at page 133 that:
“…All this document can be is evidence of an agreement between the parties to transfer certain property in future and an acknowledgement that the purchase price has been paid. Would any future purchaser accept Exhibit “G” as a title? …Can it be seriously suggested that such a receipt must be registered as coming within the definition of ‘instrument'”… Can these two receipts be said to transfer any right or title? We think not. All they are (as it Exhibit “G”) is evidence that there was an agreement for sale and that the transaction for such sale has been paid by the purchaser. If we are correct in finding then all that Exhibit “G” can do is to prove an agreement for sale and the payment of the purchase price. If this is so then Regulation 5 of the Land Registration (Agreement Exemption No.2) Regulations, 1944, clearly applies.”
See also Amankra vs. Zankley (1963) 1 All NLR 304 at 307. In Nwabuoku vs. Ottih (1961) All NLR 487 the document was titled “An Agreement”. The Supreme Court however, found that it was an acknowledgement of a past loan and therefore held that it was not registrable. per. JOSEPH TINE TUR, J.C.A.

EVIDENCE: DOCUMENTARY EVIDENCE; WHETHER A DOCUMENT CAN ONLY BE TENDERED THROUGH ITS MAKER

EVIDENCE: DOCUMENTARY EVIDENCE: THE DIFFERENCE BETWEEN A DOCUMENT AND A COPY OF A DOCUMENT
The Evidence Act, 2011 distinguishes between a “copy of a document” and a “document”. Photographs and films are classified as “documents” under Section 258(1)(a) of the Evidence Act (supra). A photograph, a film and a master card do not come under the tag a “copy of a document.” In my humble opinion, if there is a “copy of a document”, there has to be an “original” document. A “copy of a document” has been defined by the legislature using the word “includes” for a definite purpose, namely, to widen the scope of the concepts covered by the term a “copy of a document” and a “document” in Section 258(1) of the Evidence Act (supra). See Rabiu Nafiu vs. Kano State (1980) FNLR 509 at 524 and Okesuji vs. Lawal (1991) 2 SCNJ 1 at 13.
A “film” also includes “a microfilm.”
The legislature has therefore distinguished between a “document” and a “copy of a document”. In Udoh & Ors. vs. Orthopaedic Hospitals Management Board & Anor. (1993) 7 SCNJ (Pt.2) 436, Karibi-Whyte, JSC held at page 443 that:
“It is well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. Expressio unius est exclusion alterius. See A-G. of Bendel State vs. Aideyan (1989) 4 NWLR 646. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue – See Ogbunyiya vs. Okudo (1979) 6-9 SC 32; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280.”
On the authority of Udoh vs. Othopaedic Hospital Management & Anor. (supra) at page 443 I hold that photographs and films do not constitute a “copy of a document” but comes within what is a “document” under Section 258(1) of the Evidence Act, 2011. What then is a photograph?
A photograph is “a picture obtained by using a camera and film that is sensitive to light” writes the authors of Longman Dictionary of Contemporary English, 2007 edition, page 1231. In Oxford Advanced Learner’s Dictionary, 8th edition, page 1100 a “photograph” is defined as “a picture that is made by using a camera that has a film sensitive to light inside it.” A camera and a film are needed to produce a photograph. They are bed-fellows. Without a camera and a film there can be no photograph; and where there is no film in a camera no camera will be snapped to produce a photograph.
The practice before the enactment of the Evidence Act, 2011 was to tender the film as primary evidence and the printed photograph as secondary evidence.
What then is “photography”?
Photography is “the art, process or job of taking photographs or filming something”, writes the authors of Oxford Advanced Learner’s Dictionary (supra) page 1100. In Cambridge Advanced Learner’s Dictionary (supra) page 931, it is “(the activity or job of taking) photographs or films.” Section 86(1)-(4) of the Evidence Act, 2011 provides as follows:
“86(1) Primary evidence means the document itself produced for the inspection of the Court.
(2) Where a document has been executed in several parts, each part shall be primary evidence of the document.
(3) Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it.
(4) Where a number of documents have all been made by one uniform process, as in the case of printing lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest, but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.”
Photographs and films are “documents” which have “been made by one uniform process as in the case of… photography, computer or other electronic or mechanical process.” Therefore a photograph and the film, “each shall be primary evidence of the contents of the rest…” of one another. See Section 84(4) of the Evidence Act, 2011. Photographs are no longer secondary evidence and films primary evidence. Both constitute primary evidence of the contents of the rest. This is a complete departure from the law before the coming into effect of the Evidence Act, 2011. See Section 258(1) of the Act (supra).
Secondary evidence is defined under Section 87(a)-(e) of the Evidence Act (supra) as follows:
“87. Secondary evidence includes:-
(a) Certified copies given under the provisions hereafter contained in this Act;
(b) Copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(c) Copies made from or compared with the original;
(d) Counterparts of documents as against the parties who did not execute them;
(e) Oral accounts of the contents of a document given by some person who has himself seen it.”
If it is intended to tender secondary evidence of the condition or contents of a document the party has to comply with the provisions of Section 83(1)-(5) read together with Sections 89(a)-91(a)-(c) of the Act as follows:
“Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power:
(i) of the person against whom the document is sought to be proved, or
(ii) of any person legally bound to produce it, and when after the notice mentioned in section 91 such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in written by the person against whom it is proved or by his representative in interest;
(c) When the original bas been destroyed or lost and in the later case all possible search has been made for it;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of section 102;
(f) When the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;
(h) When the document is an entry in a banker’s book.
90(1) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of Section 89 is as follows:
(a) In paragraphs (a), (c) and (d) any secondary evidence of the contents of the document is admissible;
(b) In paragraph (b), the written admission is admissible;
(c) In paragraph (e) or (f), a certified copy of the document, but no other secondary evidence is admissible;
(d) In paragraph (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents;
(e) In paragraph (h), the copies cannot be received as evidence unless it is first be proved that:
(i) The book in which the entries copied were made was at the time of making one of the ordinary books of the bank;
(ii) The entry was made in the usual and ordinary course of business,
(iii) The book is in the control and custody of the bank, which proof may be given orally or by affidavit by an officer of the bank, and
(iv) The copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit.
(2) When a seaman sues for his wages he may give secondary evidence of the ship’s articles and of any agreement supporting his case, without notice to produce the originals.
91. Secondary evidence of the contents of the documents referred to in paragraph (a) of Section 89 shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produced it as is prescribed by law, and if no notice to produce is prescribed by law then such notice as the Court considers reasonable in the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:
(a) When the document to be proved is itself a notice;
(b) When, from the nature of the case, the adverse party must know that he will be required to produce it;
(c) When it appears or is proved that the adverse party has obtained possession of the original by fraud or force.”
But if the evidence to be adduced was produced by a computer Section 84(1)-(3) of the Act provides as follows:
“(1) In any proceedings a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.
(2) The conditions referred to in subsection (1) of this section are:
(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities or of the kind from which the information so contained is derived;
(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of it contents; and
(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
(3) Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in subsection (2):
(a) of this section was regularly performed by computers, whether
(b) by a combination of computers operating over that period; or
(c) by different computers operating in succession over that period, or
(d) by different combinations of computers operating in succession over that period; or
(e) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in accordingly.”

The foundation or procedure to be laid for tendering a computer-generated or processed statement in evidence is set out in Sections 84(4)-(5) of the Evidence Act (supra) as follows:
“(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say:
(a) Identifying the document containing the statement and describing the manner in which it was produced;
(b) Giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by a computer;
(c) Dealing with any of the matters to which the conditions mentioned in subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section:
(a) Information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) Where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities.
(c) A document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.”
Therefore, “…a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section (Section 84(1)-(5)) are satisfied in relation to the statement and computer in question.” Words in bracket are mine for emphasis. This is the requirement, “In any proceedings…” See Section 84(1) of the Evidence Act. Therefore, a party who seeks to tender documentary evidence in Court to prove or disprove a fact in issue has to plead whether such document was processed or generated by “one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process,” for “each shall be primary evidence of the contents of the rest” of the document. See Section 84(4) of the Act (supra). per. JOSEPH TINE TUR, J.C.A.

Justice

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU Justice of The Court of Appeal of Nigeria

Between

P. D. HALLMARK CONTRACTORS NIGERIA LIMITED
2. DAVID MOSES PWASPO – Appellant(s)

AND

GLORIA KANROTMWA GOMWALK – Respondent(s)

JOSEPH TINE TUR, J.C.A.(Delivering The Leading Judgment): The learned Counsel adopted their respective briefs of argument on 11th November, 2014. The ninety days for delivery of judgment was 11th February, 2015. JUSUN strike commenced on 2nd January, 2015 hence the judgment could not be delivered. I am delivering it today (13th February, 2015).

P.D. Hallmark Contractors (Nig.) Ltd. and David Moses Pwaspo hereinafter called “the appellants” took out a writ of summons against Gloria Kanrotmwa Gomwalk (“the respondent”) on 26th April, 2013 before the High Court of Justice, Plateau State holden at Jos. Pleadings were filed and exchanged. The matter proceeded to hearing. At a point in time the parties indicated their intention to settle the controversy out of Court. The Court was however informed on 25th June, 2013 that negotiated settlement had failed hence Pw1 proceeded to testify. A number of documents were tendered through Pw1, objection was raised by the respondent’s Counsel and upheld by the learned trial Judge. They were marked “tendered and rejected” without assigning any Roman or alphabetical figures to them. Some documents were however admitted and marked as exhibits. Thereafter the matter was adjourned to 10th July, 2013 for cross-examination. Aggrieved with the rulings that rejected certain documents, the appellants filed this appeal on 3rd July, 2013. Learned Counsel to the appellant relied on an Amended Brief of Argument filed on 8th January, 2014 but deemed properly filed on 22nd January, 2014 and served on the respondent. The following issues distilled for determination were couched as follows:

“(a) Whether the lease agreement Exhibit “1” tendered by the appellants which did not transfer nor extinguished any title to land to the appellants, but was tendered simply to prove that the appellants were in exclusive possession as lessee, must be registered for it to be admissible in evidence.
(b) Whether tendering of a certified true copy of a public document is not sufficient proof of the document and admissible in evidence without more.
(c) Whether the “die is cast” that a maker of a document must be called as a witness to tender original documents in possession of the appellants meant to prove publication, libel and defamation against the same maker who is also the respondent, sued by the appellants for a defamation, libel and trespass to land; when the maker falsely claims interest on the subject matter of the suit against the appellants that she is the owner and the landlady of the property, subject matter of dispute.
(d) Whether pictures pleaded and tendered along with the Memory Card, as the evidence by which the pleaded pictures are to be proved by the appellants are not admissible in evidence because the Memory Card was not specifically pleaded.”

The respondent’s brief filed on 21st February, 2014 set out the following lone issue for determination:

“1. Whether the applicants’ grounds of appeal are not incompetent in that the grounds of appeal together with this particulars are not narrative argumentative and a “brief of argument on its own”?”

When the appeal came up for hearing on 11th November, 2014 Counsel adopted their respective briefs of argument. My humble view is that it is the party aggrieved with a ruling or decision of a trial Court that usually appeals and, in the brief, sets out what issues he considers to arise in the judgment and the grounds of appeal which, if determined will result in his favour. The duty of a respondent who did not cross-appeal nor file a Respondent’s Notice is to answer only the material points raised in the appellant’s brief showing why the appeal should be dismissed, or conceding to points or argument raised by the appellant as the case may be. See Order 18 rules 2 and 3(1) and 4(1) and (2) of the Court of Appeal Rules, 2011. In the absence of a cross-appeal nor Respondent’s Notice, I do not see the authority a respondent has to formulate different issues for consideration rather than adopting the appellant’s issues if the Rules of this Court are to be obeyed. The lone issue formulated by the respondent is irrelevant to the determination of this appeal.

I shall confine myself to the issues formulated by the appellants for determination. Parties/Counsel are to bear in mind that I have read the briefs which I shall consider in conjunction with the oral and documentary evidence emanating from the Court below. See Order 18 rules 3(2) and (3) of the Rules (supra). I shall however merge some of the issues for the sake of convenience as some do overlap. See Anie vs. Uzorka (1993) 8 NWLR (Pt.309) 1 a 16.

The crux of the complaints evolves around the rejection of (a) the lease agreement marked “certified true copy” (Issues one and two) (b) the letter headed “To whom it may concern” (c) whether the failure of the appellants to call the publisher of certain documents to testify as a witness and to tender same was fatal and (d) rejection of the notification letter and the fifteen pictures and memory card (issues three, four and five). The real question in controversy is whether the learned trial Judge erred to have rejected these documents for the reasons he gave in his rulings of 25th June, 2013.

I shall consider these issues as follow:

ISSUES “A” AND “B”:

Learned Counsel’s submission is that the lease agreement even if not registered under Section 3 and 15 of the Land Registration Law (supra) was admissible in evidence for certain purposes: Okoye vs. Dumez (Nig.) Ltd. (1985) 1 NWLR (Pt.4) 783 at 790; Dr. S.U. Isitor vs. Mrs. Margaret Fakarode (2008) 1 NWLR (Pt.1069) 612 at 607; Monkom vs. Odili (2010) 2 NWLR (Pt.1179) 419 at 426 and Obiajoru vs. Ozims (1985) 2 NWLR (Pt.6) 167 at 169. Such purposes included proving equitable title or the purchase price of the land, etc. The lease agreement, certified as True Copy was pleaded in paragraph 3 of the statement of claim. The same lease was admitted in paragraphs 5(b)-(h) and 6 of the respondent’s statement of defence. Reference was made to Sections 14, 85 and 87(a) and 90(1)(c) of the Evidence Act, 2011. Learned Counsel’s contention was that the lease agreement, sufficiently pleaded, ought to have been admitted at the hearing as an exhibit: Bob-Manuel vs. Woji (2010) 8 NWLR (Pt.1196) 260 at 263; Kubor vs. Dickson (2013) 4 NWLR (Pt.1345) 534 at 579; House of Rep. vs. S.P.D.C.N. (2010) 11 NWLR (Pt.1205) 313 at 253 paragraphs “F”-“H” and page 254 paragraphs “C”-“D” and Felix Anyakora vs. Nwafor Obiakor (1990) 2 NWLR (Pt.130) 52 at 67 was cited to show why public documents are usually authenticated, namely, (a) to obviate the necessity of calling officials to testify to the genuiness of copies made from original documents or records of public officials and (b) to preserve those original documents or records from being removed from their proper custody through requests that they be tendered in Court. That on the authority of Felix Anyakora vs. Nwafor Obiakor (supra) it is unnecessary to call the maker of a certified True Copy of a document or to call the person who compared the copy with the original to testify as a witness before it could be admitted in evidence. A fortiori it is not acceptable to press that the original document be tendered in evidence.

The learned Counsel further argued that admissibility of evidence is to be determined under Section 6 of the Evidence Act, 2011, citing Okoye vs. Obiaso (2010) 8 NWLR (Pt.1195)145 at 149 and 168-169 paragraphs “E”-“B”. The learned trial Judge therefore erred to have rejected these documents on the ground that its maker was not called to testify when the respondent was the author of the document in question. Learned Counsel again referred to Chief Archibong & Ors. vs. Chief Ita & Ors. (2004) 1 SCNJ 141 at 160 and Section 131(1) of the Evidence Act, 2011.

Attention was also drawn to the libelous and defamatory letter of 11th January, 2013 titled “TO WHOM IT MAY CONCERN” authored by the respondent. Counsel argued that under Section 98(1) of the Evidence Act, 2011 the appellants were not bound to call the respondent to testify so as to put the letter in evidence, citing Sections 83(1), (2) and 83(2)(a) of the Evidence Act, 2011. That for the appellants to call the respondent as a witness to tender the letter she had authored was unreasonable. In libel cases, argued leaned Counsel, the document pertaining the libel has to be pleaded and proved at the trial: Sky Bank Plc vs. Akinpelu (2010) 9 NWLR (Pt.1198) 179 at 185 and Chief Emmanuel Ogunbadejo vs. Otumba Owoyemi (1993) 1 NWLR (Pt.271) 517 at 528. Courts should not allow technicalities to defeat the course of Justice: Amadi vs. Chinda (2009) 10 NWLR (Pt.1148) 107 at 114 and Oloruntoba-Oju vs. Abdul-Raheem (2009) 5-6 SC (Pt.11) 1. Learned Counsel further took exception to marking the poster tilted “Dear Tenants: “Notification Letter” tendered and rejected when it was published, signed and pasted conspicuously on 32 places on the walls of the property in possession of the appellants by the respondent because she was not called to testify and tender them as exhibit.
Counsel referred to Section 83(1), (2) and 83(1) and (2)(a) of the Evidence Act, 2011. Appellants also complained that the 15 pictures and memory card should have been admitted as exhibits for similar reasons. Counsel urged that issues one and two should be resolved in favour of the appellants.

The learned Counsel to the respondent replied that the lease agreement was not admissible in evidence because it had not been registered under Sections 2, 3 and 15 of the Land Registration Laws of Northern States of Nigeria, 1963. Reference was made to W.A. Cotton Ltd. vs. Haruna (2008) All FWLR (Pt.416) 1942 at 1958 paragraphs “F”-“G” and Savannah Bank Plc vs. Ibrahim (2000) 6 NWLR (Pt.662) 585 at 603 paragraph “A”. Counsel submitted that parties are bound by their pleadings: Ajide vs. Kelani (1985) 3 NWLR (Pt.12) 248 at 269. The argument on appeal was canvassed at the trial. The learned Counsel to the appellant ought not to change the character of the case canvassed at the trial on appeal: Commissioner for Works vs. D.D.C. Ltd. (1988) 7 SCNJ 1 at 11 and Registered Trustees, N.A.C.H.P.N. vs. M.H.W.U.N. (2008) All FWLR (Pt.412) 1013 at 1056 paragraph “D”. It was further submitted that the ruling of the learned trial Judge was based on the argument before him hence should not be upset on appeal: Yero vs. UBN Ltd. (2000) 5 NWLR (Pt.657) 470 at 478 paragraphs “A”-“C”. The lease was a private document yet bore “certified true copy” thereby converting same to a public document when it was a fact that it was not registered in the appropriate office, argued learned Counsel. That Sections 6, 83(1) and (2) of the Evidence Act, 2011 was correctly applied by the learned trial Judge. Counsel further argued that the fifteen pictures and memory card were rightly rejected by the learned trial Judge as they constituted secondary evidence under Section 87(b) of the Evidence Act, 2011. Besides, the memory card was not pleaded unlike the fifteen photographs: Kubor vs. Dickson (2013) 4 NWLR (Pt.1345) 534 at 577-578 paragraphs “C”-“E”. Learned Counsel referred to Section 84(1) of the Evidence Act, 2011 to submit that a party that intends to use as evidence a computer generated document needs to do more than just tender same from the Bar. Evidence in relation to the use of the computer must be called to establish the fact, citing Kubor vs. Dickson (supra) at pages 577-578 paragraphs “D”-“A” as held by the Supreme Court.

Learned Counsel urged that these issues should be resolved against the appellants and the appeal should be dismissed.

Let me begin by stating that the parties contested this case on pleadings. Pleadings constitute notice of what each party intends to canvass at the trial. See Obmiami Brick & Stones Nig. Ltd. vs. ACB Ltd. (1992) 3 SCNJ 1 where Olatawura, JSC held at page 35 that:
“It must be appreciated that there cannot be a better notice of the case a party intends to make than his pleadings. It is a mere notice and can never be a substitute for the evidence required in proof of the facts pleaded; subject however to an admission made by the other party. Unless a party through skillful cross-examination discredits the case of the other party, he is still bound to lead evidence in support of his own pleading. Once the evidence led is admissible, relevant and uncontradicted and not discredited by cross-examination a Court can legally rely on it.”
See also Uwegba vs. Attorney-General of Bendel State (1986) 1 NWLR (Pt.16) 303 at 317.

Paragraph 3 of the appellants’ pleading reads as follows:

“3. The 1st plaintiff avers that it solely financed and constructed the shopping Plaza known as Seyil Plaza (Herein called “The Plaza”) situated at No.42 Ahmadu Bello Way, Jos within the jurisdiction of this honourable Court by virtue of lease agreement 1st plaintiff executed with the Plateau State statutory Right holder, Jonathan Dechi Gomwalk on the 22nd July, 2010. The certified true copy of the lease agreement is hereby pleaded.”

What emerges from the above pleading is that the appellants notified the respondent that at the trial a “certified true copy” of the lease agreement shall be put in evidence as the authority upon which the appellants solely financed and constructed the shopping plaza situate at No.42 Ahmadu Bello Way, Jos. The appellants actually embarked on construction of the Plaza by virtue of the lease agreement executed with Jonathan Dechi Gomwalk on the 22nd July, 2010. No where is it pleaded that the lease agreement would transfer the title, right, or interest on which the property is built, or the plaza itself to the appellants. The respondent reacted to the above pleadings in her statement of defence as follows:

“5. In further answer, the defendant avers as follows:
(a) That all that property known and called No.42 Ahmadu Bello Way, Jos also known as Seyil Plaza originally belonged to Jonathan Dechi Gomwalk (Deceased).
(b) Upon his death, the property devolved on his children Gloria Kanrotmwa Gomwalk and Danlami Gomwalk.
(c) On or about July, 2010, the 2nd plaintiff approached the defendant aforesaid to be allowed to develop the property into a shopping complex of (90) ninety shops, 45 shops downstairs and 45 shops upstairs.
(d) The defendant agreed subject to terms and conditions that would be spelt out in lease agreement between the parties.
(e) It was agreed that the lease would be for a ten year period beginning from the day of the execution of the lease, being the 22nd of July, 2010.
(f) The lease rent was assessed at N25,000.000.00 (Twenty Five Million Naira) for the first 5 years which the parties jointly called ground rent.
(g) N5,000,000.00 (Five Million Naira) of the said rent (first 5 years) was to be paid upon the execution of the lease agreement and thereafter the remaining N20,000,000.00 (Twenty Million Naira) would be paid in bulk i.e. 1st August, 2011, after one year grace.
(h) The agreed completion period was 9 months.
6. The defendant admits paragraphs 4 and 5 of the statement of claims only to the extent that the plaintiffs build only 90 shops (with the assistance of the prospective tenants) to whom he lent the 90 shops. At the trial, the defendant shall rely on the lease agreement and evidence to show that the plaintiffs did not solely construct the 90 shops as agreed in the lease.”

Thus the respondent agreed that the terms and conditions upon which the appellants would enter upon the land and embark on its development was embodied in a lease agreement executed by the parties. The respondent gave notice to also “rely on the lease agreement and evidence to show that the plaintiffs did not solely construct the 90 shops as agreed in the lease.” See paragraph 6 of the statement of defence.

In my humble opinion, the appellants and the respondent merely reduced their oral agreement into writing so as to contain the conditions and terms upon which the appellants would enter the land and embark on the development of the Plaza. This is what the parties called a “Lease Agreement”. But a “lease” is more than that.

A lease is defined in Black’s Law Dictionary, 9th edition page, 970 interalia as “5. A contract by which the rightful possessor of personal property conveys the right to use that property in exchange for consideration.” In this case, the right conferred by the respondent on the appellants was only to enter and develop the land by building a plaza on a consideration. Should the so-called “Lease Agreement” be registered with the Land Registry before it could have been pleaded and tendered in evidence as exhibit as argued by the learned Counsel representing the respondent? The answer lies in Section 6 of the Land Registration Law Cap.58, Laws of Northern States of Nigeria, 1963 which stipulates that, “subject to the provisions of this Law, every instrument executed after the commencement of this Law shall be registered.” Section 3 of the Law (supra) describes the kind of “instruments” that shall be registered as, “…a document affecting land in Northern Nigeria whereby one party (hereinafter called the grantor) confers, transfers, limits, charges or extinguishes in favour of another party (hereinafter called the grantee) any right or title to), or interest in land in Northern Nigeria, and includes a Certificate of purchase and a power of attorney under which any instrument may be executed, but does not include a will”. The Law directs the appropriate office where registration of all instruments should be carried out as follows:
“3(1) There shall be in Northern Nigeria a land registry with an office or offices at such place or places as the Ministry may from time to time direct.
(2) The registry shall be the proper office for registration of all instruments including powers of attorney affecting land in Northern Nigeria.
4(1) The Minister shall appoint such number of registrars, deputy registrars and assistant registrars as he may think fit for the purpose of this Law.
(2) Subject to the directions of the registrar, a deputy registrar or an assistant registrar may do anything which by this Law is required or authorized to be done by the registrar.
5(1) There shall be kept at each office such registers books and files as may be prescribed and a registrar shall, subject to the provisions of the Law, register therein in the prescribed manner all instruments required to be registered and delivered to him for registration, and shall file all local judgments and Privy Council judgments required or permitted to be filed and delivered to him for filing.
(2) All registers kept in the offices of the land registry immediately before the commencement of this Law shall form part of the register under this Law.”
Had the lease agreement being registered in the appropriate registry a copy would have been produced from the books or files kept by any of the registrars of the Land Registry, in which case, the copy would have been signed by the registrar, dated and stamped as a “Certified True Copy” of the original kept in the Land Registry. But in this case, the evidence showed that the purported lease was not registered in the appropriate office. So how was it stamped as a “Certified True Copy” and pleaded that it shall be relied on at the trial? I do not know. However, I am of the firm view that the “lease agreement” was not a registrable instrument since it did not confer, transfer, limit, charged or extinguished the rights, title or interest of the holder of the statutory right of occupancy, namely, Jonathan Dechi Gomwalk to the appellants.
The learned Counsel to the respondent should have allowed the appellants’ learned Counsel to tender the document and thereafter cross-examine Pw1 to discredit or disparage his evidence. The learned trial Judge would have thereafter determined the weight to attach to the so-called lease agreement. The reason is that admissibility of evidence, be it oral, or documentary, is governed by relevance. See Torti vs. Ukpabi (1984) 1 SC 370 at 392-393; Ogbunyiya Ukudo (1980) 1 PLR 173 at 179. See Musa Sadau vs. The State (1968) 1 All NLR 124 at 129; Agunbiade vs. Sasegbon (1968) NMLR 223 at 226 and ACB Ltd. vs. Gwagwada (1994) 4 SCNJ (Pt.2) 268 at 277. If it is intended to impeach the credit of a witness or the documents a party relies on, the proper time of doing so is when he is testifying in the witness box. See Nwobodo vs. Onoh (1984) 1 SC 1. Admissibility is different from the weight to attach to evidence, be it oral or documentary. See Ayeni vs. Dada (1978) 2 SC 35 at 61; Attorney-General of Oyo State vs. Fairlakes Hotel Ltd. (1989) 12 SCNJ 1 at 20-21 and Omega Bank Nig. Plc vs. O.B.C. Ltd. (2005) 1 SC 150 at 179. The objection by the learned Counsel for the respondent that the lease agreement bore “Certified True Copy” hence it should not be admitted in evidence went not to admissibility but to the weight to attach to the document after it had been cross-examined upon. The learned trial Judge ought not to have upheld the objection but to have admitted and marked the agreement as an exhibit.
In Elkali & Anor. vs. Fawaz (1946) 6 WACA 212 the West African Court of Appeal held at pages 214 that what the plaintiff sought to tender as being an agreement for a lease of a shop should have been rejected when tendered in evidence for the following reasons:
“If it were an agreement between natives (when of course the Government authorities) there can be no question but that, upon the authority of Abdallah Jammal vs. Namih Saidi and Yesufu Fetuga (11 NIR 86) – with which we see no reason to differ – it would be an instrument within the meaning of the Land Registration Ordinance, 1924 (No.36 of 1924). We cannot subscribe to the view of the learned trial Judge that it was possible for the defendant to have the use of a shop under a sub-lease “without any interest or right in the land being conveyed.” It may, however, be argued that in view of the inclusion of the “subject to approval” clause the document would not become an “instrument” within the meaning of the Ordinance unless and until the necessary approval were given. However, this may be, it was tendered in evidence as the document upon which the claim was founded, i.e as a document which had conformed on the plaintiffs (and therefore necessarily on the defendant) a right to claim specific performance by execution of a lease and in the alternative to claim damages for breach. If it is such a document as the party tendering it held it out to be when tendering it, then it is clearly an instrument within the meaning of the Land Registration Ordinance, 1924, and it was tendered as affecting land. This being so, the objection to its admission was, in our view, sound and should have been upheld and the document rejected.”

However in Yaya vs. Magoga (1947) 12 WACA 132 a receipt for purchase of No.38 Ajishomo Street, Lagos in the sum of one hundred and sixty pounds sterling which the vendor clearly stated that it is the “full purchase money paid to me for a dwelling house situate lying and being at Agege via Ebute Metta” was held not to confer or transfer any right, title, or interest in the land. The West African Court of Appeal explained at page 133 that:
“…All this document can be is evidence of an agreement between the parties to transfer certain property in future and an acknowledgement that the purchase price has been paid. Would any future purchaser accept Exhibit “G” as a title? …Can it be seriously suggested that such a receipt must be registered as coming within the definition of ‘instrument'”… Can these two receipts be said to transfer any right or title? We think not. All they are (as it Exhibit “G”) is evidence that there was an agreement for sale and that the transaction for such sale has been paid by the purchaser. If we are correct in finding then all that Exhibit “G” can do is to prove an agreement for sale and the payment of the purchase price. If this is so then Regulation 5 of the Land Registration (Agreement Exemption No.2) Regulations, 1944, clearly applies.”
See also Amankra vs. Zankley (1963) 1 All NLR 304 at 307. In Nwabuoku vs. Ottih (1961) All NLR 487 the document was titled “An Agreement”. The Supreme Court however, found that it was an acknowledgement of a past loan and therefore held that it was not registrable.

I resolve issues (a) and (b) in favour of the appellants.

ISSUE “C”:

There is no disputing the fact that the document captioned “To whom it may concern” and the “Notification Letter” were all authored by the respondent. Both were pleaded by the parties. In Agwurema vs. Eze (1990) 3 NWLR (Pt.137) 242 Onu, JCA (as he then was) held at page 254 that:
“It is settled law that documentary evidence can only be tendered through its maker. See Opolo vs. The State (1977) 11 SC 6; Okpara vs Federal Republic of Nigeria (1977) 4 SC 53. See also Section 90(1)(a) of the Evidence Act.”
Again in Ojukwu vs. Governor of Lagos State (1985) 2 NWLR (Pt.10) 806 at 818, Nnaemeka-Agu, JCA (as he then was) held that:
“Now as the writer of the above letter never testified or swore to the correctness of the contents it was inadmissible in evidence in view of Section 90(i)(a) and (b) of the Evidence Act…”
In Omega Bank Nigeria Plc vs. OBC Ltd. (2005) 1 SCNJ 150 the Supreme Court explained why it was necessary to call the author of a document as a witness at pages 176-177 per Niki-Tobi, JSC as follows:
“Assuming I am wrong, (and I do not think so.), let me take the issue of non-maker of the document tendering it. It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law; (1) The maker is dead. (2) The maker can only be procured by involving the party in so many expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer question on it, the non-maker of it is not in such a position. In the latter situation, a court of law will not attach any probative value to the document and a document that a court does not attach any probative value is as good as the mere paper on which it is made. After all probative value is the root of admissibility of evidence. I should not be understood as saying that documentary evidence cannot be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker. See Igbodim v. Obianke (1976) 9-10 SC 179. After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document admitted are two different things. See Ayeni v. Dada (1978) 3 SC 35.
As a matter of law, I regard exhibit P6 as hearsay as it relates or affects PW1 who tendered it. It could not have been hearsay if it was tendered by either of the two makers or writers. In Uwa Printers (Nig.) Limited v. Investment Trust Company Ltd. (1988) 5 NWLR (Pt.92) 110, the trial Judge admitted exhibit 29, the Auditors Report on profits the plaintiff would have earned for a certain period, without the input of the Federal Ministry of Justice. The Court of Appeal rejected the exhibit. On further appeal, the Supreme Court held that Exhibit “29” which was prepared by an expert was based on hearsay evidence reduced into writing as the projected figures of pupils of both primary and post primary schools for the years 1978/79 by the Federal Ministry of Education Lagos, as no one was called from the Ministry who was concerned in the production of the figures to prove the truth of those facts. Exhibit “29” was therefore inadmissible, the Supreme Court held in a majority decision.”
In Z.O. Obolo vs. Rev. J.D. Aluko & Ors. (1976) 1 NMLR 334 the issue was whether a defendant was competent and could be compelled to testify on behalf of the plaintiff. The learned trial Judge held that the defendant was competent if he was willing to do so. In reversing the judgment of the learned trial Judge the Supreme Court held at page 335 per Alexander, C.J.N. as follows:
“In the case of Elias vs. Disu it was held that in a civil action a party is competent to give evidence not only upon his own application, but also upon that of his opponent; and the fact that no subpoena had been issued is immaterial to the question of competency. In the circumstances of the case on appeal a subpoena had been issued and served on the defendant who attended the trial in obedience to such subpoena. Mr. Omakwu conceded that the defendant is a competent witness under Section 154 of the Evidence Law and that he does not fall within any of the exceptions as regards “compellability” specified in the succeeding sections of the Evidence Law. We are ourselves firmly of this view and we also regard the authority of Elias vs. Disu as having placed the matter beyond doubt, especially when read in conjunction with Section 154 and succeeding sections of the Evidence Law.
We have no hesitation in allowing this appeal. The appeal is accordingly allowed and the decision of the learned trial Judge reversed. We hold that the defendant is both competent and compellable to testify on behalf of the plaintiff, especially as the defendant concerned has already been served with a subpoena for the purpose.”
In this the learned Counsel could have issued a subpoena to the respondent who authored the document titled “To whom it may concern” and the “Notification Letter” and posters to testify as a witness on behalf of the appellants. Even without a subpoena Counsel could have issued the respondent a witness summons by invoking the provisions of Section 175(1) and (2) to 178 of the Evidence Act, 2011 which provides as follows:
“175(1) All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, any other cause of the same kind.
(2) A person of unsound mind is not incompetent to testify unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them.
176(1) A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court.
(2) Evidence so given shall be deemed to be oral evidence.
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178. Subject to the exception applicable to virtue of Section 1-65 of this Act, in all civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses.”
The respondent was a competent witness and if called by the appellants to testify but refused, she could be compelled by an order of Court to do so. The learned Counsel to the appellants did not take advantage of these statutory provisions hence he cannot be heard to complain on appeal what he should have done at the trial. I resolve issue (c) against the appellants.

ISSUE “D”:

The complaint on issue (d) involves the 15 photographs and memory card that were rejected by the learned trial Judge. Section 258(1) of the Evidence Act, 2011 provides that:
“In this Act, unless where the con Justice otherwise requires…
“Copy of a document includes:-
(a) in the case of a document falling within paragraph
(b) but not (c) of the definition of “document” in this subsection, a transcript of the sounds or other data embodied in it;
(c) in the case of a document falling within paragraph (b) but not (c) of that definition, a reproduction or still reproduction of the image or images embodied in it whether enlarged or not;
(d) in the case of a document falling within both those paragraphs, such a transcript together with such a still reproduction; and
(e) in the case of a document not falling within the said paragraph (c) of which a visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged or not, and any reference to a copy of the material part of a document shall be construed accordingly;
“Computer” means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it by calculation, comparison or any other process;
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“Document” includes:-
(a) books, maps, plans, graphs, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter;
(b) any disc, tape, sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, and
(c) any film, negative, tape or other device in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it;
(d) in the case of a document not falling within the said paragraph (c) of which the visual image is embodied in a document falling within that paragraph, a reproduction of that image, whether enlarged or not, and any reference to a copy of the material part of a document shall be construed accordingly.”
The Evidence Act, 2011 distinguishes between a “copy of a document” and a “document”. Photographs and films are classified as “documents” under Section 258(1)(a) of the Evidence Act (supra). A photograph, a film and a master card do not come under the tag a “copy of a document.” In my humble opinion, if there is a “copy of a document”, there has to be an “original” document. A “copy of a document” has been defined by the legislature using the word “includes” for a definite purpose, namely, to widen the scope of the concepts covered by the term a “copy of a document” and a “document” in Section 258(1) of the Evidence Act (supra). See Rabiu Nafiu vs. Kano State (1980) FNLR 509 at 524 and Okesuji vs. Lawal (1991) 2 SCNJ 1 at 13.
A “film” also includes “a microfilm.”
The legislature has therefore distinguished between a “document” and a “copy of a document”. In Udoh & Ors. vs. Orthopaedic Hospitals Management Board & Anor. (1993) 7 SCNJ (Pt.2) 436, Karibi-Whyte, JSC held at page 443 that:
“It is well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. Expressio unius est exclusion alterius. See A-G. of Bendel State vs. Aideyan (1989) 4 NWLR 646. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue – See Ogbunyiya vs. Okudo (1979) 6-9 SC 32; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280.”
On the authority of Udoh vs. Othopaedic Hospital Management & Anor. (supra) at page 443 I hold that photographs and films do not constitute a “copy of a document” but comes within what is a “document” under Section 258(1) of the Evidence Act, 2011. What then is a photograph?
A photograph is “a picture obtained by using a camera and film that is sensitive to light” writes the authors of Longman Dictionary of Contemporary English, 2007 edition, page 1231. In Oxford Advanced Learner’s Dictionary, 8th edition, page 1100 a “photograph” is defined as “a picture that is made by using a camera that has a film sensitive to light inside it.” A camera and a film are needed to produce a photograph. They are bed-fellows. Without a camera and a film there can be no photograph; and where there is no film in a camera no camera will be snapped to produce a photograph.
The practice before the enactment of the Evidence Act, 2011 was to tender the film as primary evidence and the printed photograph as secondary evidence.
What then is “photography”?
Photography is “the art, process or job of taking photographs or filming something”, writes the authors of Oxford Advanced Learner’s Dictionary (supra) page 1100. In Cambridge Advanced Learner’s Dictionary (supra) page 931, it is “(the activity or job of taking) photographs or films.” Section 86(1)-(4) of the Evidence Act, 2011 provides as follows:
“86(1) Primary evidence means the document itself produced for the inspection of the Court.
(2) Where a document has been executed in several parts, each part shall be primary evidence of the document.
(3) Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it.
(4) Where a number of documents have all been made by one uniform process, as in the case of printing lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest, but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.”
Photographs and films are “documents” which have “been made by one uniform process as in the case of… photography, computer or other electronic or mechanical process.” Therefore a photograph and the film, “each shall be primary evidence of the contents of the rest…” of one another. See Section 84(4) of the Evidence Act, 2011. Photographs are no longer secondary evidence and films primary evidence. Both constitute primary evidence of the contents of the rest. This is a complete departure from the law before the coming into effect of the Evidence Act, 2011. See Section 258(1) of the Act (supra).
Secondary evidence is defined under Section 87(a)-(e) of the Evidence Act (supra) as follows:
“87. Secondary evidence includes:-
(a) Certified copies given under the provisions hereafter contained in this Act;
(b) Copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(c) Copies made from or compared with the original;
(d) Counterparts of documents as against the parties who did not execute them;
(e) Oral accounts of the contents of a document given by some person who has himself seen it.”
If it is intended to tender secondary evidence of the condition or contents of a document the party has to comply with the provisions of Section 83(1)-(5) read together with Sections 89(a)-91(a)-(c) of the Act as follows:
“Secondary evidence may be given of the existence, condition or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power:
(i) of the person against whom the document is sought to be proved, or
(ii) of any person legally bound to produce it, and when after the notice mentioned in section 91 such person does not produce it;
(b) When the existence, condition or contents of the original have been proved to be admitted in written by the person against whom it is proved or by his representative in interest;
(c) When the original bas been destroyed or lost and in the later case all possible search has been made for it;
(d) When the original is of such a nature as not to be easily movable;
(e) When the original is a public document within the meaning of section 102;
(f) When the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence;
(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;
(h) When the document is an entry in a banker’s book.
90(1) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of Section 89 is as follows:
(a) In paragraphs (a), (c) and (d) any secondary evidence of the contents of the document is admissible;
(b) In paragraph (b), the written admission is admissible;
(c) In paragraph (e) or (f), a certified copy of the document, but no other secondary evidence is admissible;
(d) In paragraph (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents;
(e) In paragraph (h), the copies cannot be received as evidence unless it is first be proved that:
(i) The book in which the entries copied were made was at the time of making one of the ordinary books of the bank;
(ii) The entry was made in the usual and ordinary course of business,
(iii) The book is in the control and custody of the bank, which proof may be given orally or by affidavit by an officer of the bank, and
(iv) The copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit.
(2) When a seaman sues for his wages he may give secondary evidence of the ship’s articles and of any agreement supporting his case, without notice to produce the originals.
91. Secondary evidence of the contents of the documents referred to in paragraph (a) of Section 89 shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produced it as is prescribed by law, and if no notice to produce is prescribed by law then such notice as the Court considers reasonable in the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:
(a) When the document to be proved is itself a notice;
(b) When, from the nature of the case, the adverse party must know that he will be required to produce it;
(c) When it appears or is proved that the adverse party has obtained possession of the original by fraud or force.”
But if the evidence to be adduced was produced by a computer Section 84(1)-(3) of the Act provides as follows:
“(1) In any proceedings a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in subsection (2) of this section are satisfied in relation to the statement and computer in question.
(2) The conditions referred to in subsection (1) of this section are:
(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;
(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities or of the kind from which the information so contained is derived;
(c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of it contents; and
(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.
(3) Where over a period the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in subsection (2):
(a) of this section was regularly performed by computers, whether
(b) by a combination of computers operating over that period; or
(c) by different computers operating in succession over that period, or
(d) by different combinations of computers operating in succession over that period; or
(e) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in accordingly.”

Paragraphs 16 and 20 of the statement of claim pleads as follows:

“16. The plaintiffs aver that 2nd plaintiff was able to remove one of the posters pasted and also snapped the plaza with camera and obtained pictures to show how, and that the posters were actually pasted on the plaza walls. The copy of the removed posters and pictures are hereby pleaded.
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20. The plaintiffs aver that the defendant’s various publications strategically and conspicuously pasted on the plaza walls and distributed to 1st plaintiff’s tenants are calculated to dent and ruin their hard earned reputation built over the years.”

The respondent pleaded in paragraph 27 of the statement of defence as follows:

“27. The defendant denies paragraphs 16 and 17 of the statement of claim and puts the plaintiff to the strictest proof.”

It is not enough to plead that the defendant is not in a position to admit or deny a material or essential fact that has been specifically pleaded. The general traverse is insufficient to meet important and specific allegations. See Ajani vs. Okusaga (1976) 1 FNLR 188 at 193; Benson vs. Otubor (1975) 1 All NLR (Pt.1) 43 and Lewis & Peat vs. Akhemeni (1976) 7 SC 157. The effect of a general denial or traverse was further explained in Afolagbe vs. Shorun (1985) 4 SC 250 where Obaseki, JSC held at page 253 that:
“Unless a specific allegation of facts is traversed specifically, a pleading that the “the defendant is not in a position to admit or deny” is likely to be construed as placing no burden of proof on the plaintiff unless by implication from the other paragraphs of the statement of defence the averment can be taken as having been denied.”
At page 265 of the judgment, Coker, JSC also held as follows:
“The primary function of pleadings is to define and delimit with clarity and precision the real matters in controversy between the parties upon which they can prepare and present their respective cases and upon which the Court will be called to adjudicate between them. It is designed to bring the parties to an issue on which alone the Court will adjudicate between them. The law reports are replete with decisions dating very many years back, that a party is bound by his pleading and cannot go outside it to lead evidence or rely on facts which are extraneous to those pleaded.”
No issue was joined on the question of photographs since the respondent did not traverse same. Therefore where a respondent did not specifically deny a specific fact pleaded by a plaintiff in the statement of claim, it is no longer an issue for trial by the trial Judge. This was held by Coker, JSC at pages 269-270 and 271-273 of Afolagbe vs. Shorun (supra) as follows:
“The statement of defence did not specifically or by necessary implication say that the plot of land granted to the plaintiff in 1963 was different from that granted to him and in dispute in this case. It was therefore not an issue for trial by the trial Judge. See Jacob Ibanga & Ors. vs. Chief Edet Usanga (1982) 5 SC 103 pages 124-125. Yakassai vs. Incar Mortor (Nig.) Ltd. (1975) 1 All NLR (Pt.1) 287 at page 291 is authority for the proposition that it is wrong for the Judge to base his decision on an issue which was never raised in the pleadings. Throughout, the statement of defence spoke of the land in dispute referred to in the statement of claim. The defence was that the relationship between the plaintiff and the defendants landlord had been determined by the Ojora Chieftaincy family and the plaintiff had been lawfully ejected from the said plot previously granted to him in 1963, and that the said landlord had lawfully regained possession before he, the defendant, was put in possession of the said plot at Ezeagwu Street in dispute.
In this connection, I recall the words of Idigbe, JSC, in Lewis & Peat (N.I.R.) Ltd. vs. Akhimien (1976) 1 All NLR 460 where he stated the law as follows at page 465 from lines 23:
“In order to raise an issue of fact in these circumstances there must be a proper traverse; and a traverse must be made either by a denial or non-admission either expressly or by necessary implication. So that if a defendant refuses to admit a particular allegation in the statement of claim, he must state so specifically; and he does not do this satisfactorily by pleading thus: defendant is not in a position to admit or deny (the particular allegation in the statement of claim) and will at the trial put the plaintiff to proof. As was held in Harris vs. Gamble (1878) Ch.D. 877; defendants put plaintiff to proof amounts to insufficient denial; equally a plea that the defendant does not admit correctness (of a particular allegation in the statement of claim) is also an insufficient denial – See Rutter vs. Tregant (1879) 12 Ch.D. 758. We are of course, not unmindful of the first paragraph of the statement of defence. Nowadays almost every statement of defence contains such a general denial (See Warner vs. Sampson (1959) 1 Q.B. 287 at 310-311). However in respect of essential and material allegations such a general denial ought not be adopted; essential allegations should be specifically traversed (See Wallerstein vs. Moir (1974) 1 WLR 991 at 1002 per Lord Denning, L.R.).”
The underlinings are mine for emphasis. The point in that case was that the plaintiffs in the statement of claim averred in paragraph 1 that they “were a trading Company registered in Nigeria” and in paragraph 3 of the statement of defence it was pleaded that “the defendant was not in a position to admit or deny paragraphs 1 and 2…”
The trial Judge dismissed the plaintiffs’ claims on the ground that they failed to prove the Company was not registered because the certificate of registration was not produced in evidence at the trial. The trial Judge was of the view that the averment in paragraph 3 of the statement of defence was an implied denial of the averment in paragraph 1 and therefore raised an issue that must be proved by production of the certificate of registration. The Supreme Court, reversing the decision of the trial Court, held the view that the averment in the statement of defence did not raise the issue that the plaintiffs were a registered company. The Court held that the denial must be specific and clear in order to raise the issue whether the plaintiffs were a registered company. The rule is that pleadings are not to be considered as a game of skill between the advocates. They ought to be so framed as not only to assist the party in the statement of his case but the Court in its investigation of the truth between the litigants. Bairamian, JSC in George & Ors. vs. Dominic Flour Mills Ltd. (1963) 1 All NLR 71 said at page 77:
“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard, but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met, which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings, and saves either side from being taken by surprise… The plaintiff will and indeed must confine his evidence to those issues; but the cardinal point is the avoidance of surprise.”
See also T. Lawal Owosho & Ors. vs. Michael Adebowale Bada (1984) 7 SC 149 page 149, page 164 where Aniagolu, JSC, said that “the rules of pleadings do not allow a defendant to be hedgy and evasive in his answers to the facts averred by the plaintiff. Once he refuses to meet the facts directly – either by admitting or denying them… he is taken to have admitted them.”
I am of the humble opinion that there was no denial of the photographs pleaded in paragraph 16 of the statement of claim. What is not specifically denied in the pleadings is to be admitted in evidence. No one sets out to prove that which had not being specifically denied. See Andony vs. Ayi II & Ors. (2004) All FWLR (Pt.227) 444 at 482; Elendu vs. Ekwoaba (1995) 3 NWLR (Pt.386) 704 at 747; Ebueku vs. Amola (1988) 3 SCNJ (Pt.2) 207 at 224 and Olale vs. Ekwelendu (1989) 7 SCNJ (Pt.2) 62 at 102.
The respondent gave notice to the appellants that they will not oppose the photographs being admitted as exhibits at the trial by not specifically denying paragraph 16 of the statement of claim. To thereafter challenge their admissibility at the trial that the pictures are secondary evidence and inadmissible as argued by the learned Counsel to the respondent is to take the appellants unawares. The learned Counsel to the respondent had ambushed the appellants at that stage of the proceedings. See George & Ors. vs. Dominion Flour Mills Ltd. (1963) 1 All NLR 71 at 77 where Bairamian, JSC held that the fairness of a trial is to plead facts which will enable the opposite party to prepare his evidence and denfence based upon the issues raised in the pleadings.
I am of the humble opinion that the learned trial Judge erred in law to have rejected the 15 photographs and to have marked them “rejected.”
The memory card was not pleaded by the appellants. It was rightly rejected by the learned trial Judge. Before I conclude this judgment I wish to draw attention to Orders 24 and 27 of the High Court (Civil Procedure) Rules, 1987 of Plateau State which provides as follows:
“1. No demurrer shall be allowed.
2. Any party shall be entitled to raise by his pleading any point of law and any points so raised shall be disposed of by the Judge who tries the cause at or after trial.
Provided that by consent of the parties, or by order of the Court or a Judge on the application of either party, the same may be set down for hearing and disposed of at any time before the trial.
3. If, in the opinion of the Court or a Judge the decision of such point of law substantially disposes of the whole action of any distinct cause of action, ground of defence, set-off counter-claim, or reply therein the Court or Judge may thereupon dismiss the action or make such other order therein as may be just.
4. The Court or a Judge may order any pleading to be struckout on the ground that it discloses no reasonable cause of action or answer, and in any such case or in case of the action or defence being shown by the pleadings to be frivolous, or vexatiou, the Court, or Judge may order the action to be stayed or dismissed, or judgment to be entered accordingly, as may be just.
5. No action or proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether any consequential reliefs is or could be claimed or not.
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27(1) If the plaintiff, being bound by these rules or an order of Court or a Judge in Chambers to file a statement of claim, does not file it within the time allowed for that purpose, the defendant may, at the expiration of that time, apply to the Court or a Judge in Chambers to dismiss the action with costs, for want of prosecution; if no statement of claim shall have been filed, order the action to be dismissed accordingly, or may make such other order on such terms as the Court or Judge shall think just.
2(1) If the plaintiff’s claim be only for a debt or liquidated demand, and defendant does not, within the time allowed by these rules or an order of Court or a Judge in Chambers for that purpose, file a defence, the plaintiff may, at the expiration of such time, apply for final judgment for the amount claimed, with costs.
(2) In actions by a money-lender or an assignee for the recovery of money lent by a money-lender or the enforcement or any agreement or security relating to any such money, judgment shall not be entered in default of defence except in accordance with the provisions of Order 14 rule 9.”

The tendered but rejected exhibits were not numbered serially by the Court clerk perhaps because the learned trial Judge did not direct how or with what letters the exhibits should have been numbered. The documents put in whether admitted as exhibits or rejected should be marked with letters and serially indicating by whom it was proved. It is mandatory for the Registry of the Lower Court to transmit the exhibits, admitted or rejected to the Court of Appeal if the matter proceeds on appeal. All these requirements the Court below did not follow. The Rules of Practice and Procedure should be followed by trial Judges and officers of the Court. They ensure quick or speedy trial and the disposal of appeals when the matter comes on appeal.

Having said so I make the following orders:

1. I resolve issue (a) in favour of the appellants by holding that it was not a registered instrument that had transferred the title, rights or interest of the statutory right of occupancy of the holder to the appellants hence it was rightly pleaded and ought to have been admitted in evidence as an exhibit.

2. I resolve issue (b) against the appellants. The “Lease Agreement” had not been registered in the appropriate Land Registry hence no registrar of the Registry stamped and marked it certified true copy. However, it could have been admitted and marked as an exhibit. The witness could have been cross-examined to discredit it so that the Court would not attach any weight to it. It was a private but not an official document which did not warrant its being marked as a “certified true copy” of an original.

3. I resolve issue (c) against the appellants. The appellants had the statutory right under the Evidence Act, 2011 to have called the respondent to testify on their behalf which they did not do.

4. I resolve issue (d) in favour of the appellants. The photographs were rejected for wrong reasons. The memory card was not pleaded hence it was rightly rejected.

On the whole the appeal partly succeeds on issues (a), (b) and (d). I hereby allow the appeal. I order that the learned Chief Judge of Plateau State shall transfer and re-assign this case to another Judge of the High Court of Justice for retrial de novo. Parties to bear their respective costs.

IBRAHIM SHATA BDLIYA, J.C.A.: I have read before now, in draft, the judgment delivered by my learned brother, TUR, JCA. I agree entirely with it. For the reasons he has given, I also do hereby allow the appeal and set aside the judgment of the Lower Court. I abide by the orders made in the lead judgment, inclusive of that in respect of costs.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of reading the draft of the lead judgment by my learned brother, JOSEPH TINE TUR, JCA and I agree entirely with the reasoning and conclusions therein.

Consequently, I equally find that the appeal partly succeeds and abide by the orders made therein.
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Appearances

Luke I. Mvonanu, Esq.For Appellant

AND

For Respondent