PASTOR MATHEW ALABI BANKOLE v. MRS VICTORIA ANIKE BANKOLE
(2012)LCN/5349(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of May, 2012
CA/I/211/2006
RATIO
EVIDENCE: WHETHER THE ORIGINAL MARRIAGE CERTIFICATE IS PRIMARY EVIDENCE
The original document is surely and certainly, the best evidence. The original marriage certificate is primary evidence and not secondary evidence. Sections 93 and 94 of the Evidence Act make it imperative that proof of documents could be either by primary or secondary evidence. The original marriage certificate being a public document is admissible in evidence as primary evidence, This court had cause to pronounce on the issue of admissibility of original copy of public document in Dagaash vs, Bulama (2004) 14 NWLR (Pt.892) 744 at 206 wherein Obadina J.C.A had this to say:
“There is no section of the Evidence Act that provides that no primary evidence of a public document is admissible. Section 112 of the Act allows certified true copy to be produced in proof of the contents of public documents, I do not think the provision of section 112 of the Act renders the primary evidence of public document inadmissible in evidence.
In my view the net effect of sections 91(1)(a), 93, 94(1), 95, 97(1)(e) and 112 of the Evidence Act is that the contents of public documents such as the report and the white paper in question may be proved by producing the originals themselves for the court to inspect as primary evidence”. PER ADZIRA GANA MSHELIA, J.C.A.
JUDGMENT: CIRCUMSTANCES AN ORDER OF RETRIAL WOULD BE MADE
I am satisfied, that this is a proper case to give the appellant another opportunity to relitigate the matter afresh. It is important to note that the principles guiding the courts in making an order of retrial of an action have been stated in a number of decided cases as being dependent on the facts and circumstances of the particular case. In Ayoola vs. Adebayo (7969) 1 All NLR 159 it was held thus:-
“An order of retrial inevitably implies that one of the parties, usually the plaintiff, is being given another opportunity to relitigate the same matter and certainly before deciding to make such an order we think that an appellate Tribunal should satisfy itself that the other party is not thereby being wronged to such an extent that there would appropriate where it is manifest that the plaintiff’s case has failed in toto and that no irregularity of a substantial nature is apparent on the record or shown to the court.”
See also Okomalu vs. Akinbode (2006) 4 SC (pt.7) 19; Igwe vs. Kalu (2002) 5 NWLR (pt.761) 678 at 732 paras. A-D; Ogedengbe vs. Balogun (2007) 9 NWLR (pt.1039) 380; Sanusi v. Aneyogun (1992) 4 NWLR (Pt.231) 527 and Okoye v. Kpajie (1973) 6 SC 17. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
PASTOR MATHEW ALABI BANKOLE Appellant(s)
AND
MRS VICTORIA ANIKE BANKOLE Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Majekodunmi J, of the High Court of Justice Sagamu, Ogun State delivered on the 9th day of March 2006.
The facts leading to this appeal are that the petitioner/appellant instituted divorce proceedings against the respondent at the High Court of Sagamu Ogun State on the ground that the marriage has broken down irretrievably. At the expiration of 28 days allowed to the respondent to file her answers to the petition, the petitioner brought an application to have the suit set down for hearing as an undefended suit. Hearing commenced on 1st February 2006, when petitioner gave evidence on his own behalf, It was later adjourned to enable the petitioner tender his marriage certificate, as the one tendered was according to the court a photocopy. At the resumed hearing on the 9th of March, 2006, petitioner tendered the original certificate which the court rejected on the ground that being a public document only the certified true copy was admissible. The court there and then dismissed the petition. Dissatisfied with the judgment, petitioner appealed to this court vide his notice of appeal dated 29/3/2006 and filed on 31/3/2006 containing three grounds of appeal.
The Grounds of Appeal read as follows:-
“The learned trial judge erred in law when he arbitrarily and in a high handed manner dismissed the petitioner’s case even though the petitioner was yet to close his case thereby occasioning a miscarriage of Justice.
PARTICULARS
(a) An order of dismissal is appropriately made only where a cause is decided on its merit with all the necessary parties before the court and the plaintiff fails to prove his case.
(b) An order of dismissal presupposes that this point of litis contestatio had been reached and there was divergence of the evidence led from the facts which were a fundamental issue.
(c) Although petitioner had led evidence up to the point of tendering of document which was rejected by the judge did not consider the evidence led vis a vis the facts before erroneously dismissing the suit in a rage of fury and high handed manner.
(d) Where the merit of a case has not been determined by the trial court, an order of dismissal is not only a total aberration but also perfidious.
2. The learned trial judgment (sic) erred in law by refusing to admit in evidence the original copy of the marriage certificate tendered by the petitioner on the ground that it was not certified.
PARTICULARS
(a) Petitioner tendered in evidence the original of the marriage certificate issued to him at the marriage registry at the time the marriage was contracted.
(b) Under the Evidence Act documents must be proved by primary evidence except in certain cases where the original is not available.
(c) By insisting on Certified True Copy when the original marriage certificate was available and tendered by the appellant, the learned trial judge displayed a pulpable and outrageous misunderstanding of S.93 and 96 of the Evidence Act to the detriment of the appellant.
3. The learned trial judgment (sic) erred in law when he failed to properly evaluate the adduced evidence before him which failure occasioned a miscarriage of justice.
PARTICULARS
(a) The petitioner adduced evidence that the respondent had for the past six years refused to consummate the marriage and had behaved in a way that he the petitioner could not reasonably be expected to tolerate her any longer.
(b) Petitioner’s evidence that the marriage was broken down irretrievably was not challenged at all and was not evaluated at all before the learned trial judge arbitrarily dismissed the suit.
(c) Where a petitioner is able to show that the respondent has refused to consummate the marriage the position of the matrimonial Causes Act is that the court shall hold that the marriage has broken down irretrievably.
(d) The learned trial judge by dismissing the suit in spite of the unchallenged and credible evidence before him showed that he allowed extraneous matter to weight in his mind”.
Appellant’s brief dated 3rd November, 2006 was filed on same date but deemed properly filed on 12/6/08. Respondent who was served through substituted means did not file respondent’s brief of argument. By an application dated 20/8/2008 and filed on same date appellant was granted an order to determine the appeal solely on the appellant’s brief alone.
When the appeal came up for hearing appellant’s counsel Mr. Akahator Esq. adopted the appellant’s brief of argument and urged the court to allow the appeal.
Appellant formulated two issues for determination as follows:-
(1) Whether it was proper for the learned trial judge to insist on certified true copy of the marriage certificate when its original was available and actually tendered by the appellant in court.
(2) Did the learned trial Judge act Judicially and Judiciously when be dismissed the appellant’s petition in spite of the uncontroverted evidence led by the petitioner and despite the fact that the petitioner had not closed his case?
The appeal will be determined on the two issues filed by the appellant, The two issues will be treated together.
The contention of appellants’ counsel under issue 1 is that by virtue of S.96 of the Evidence Act, documents must be proved by primary evidence except in the cases specifically mentioned in the said Act. Learned counsel referred to the definition of Primary Evidence as stated under S.94 of the Evidence Act. It was submitted that the best admissible evidence is primary evidence, which in another word means the document itself. That the only conditions upon which secondary evidence become admissible are clearly spelt out in S.97(1) of the Evidence Act, one of which is that when the original is destroyed or lost and it is difficult to find it. In the instant case, the document tendered was the original marriage certificate in line with the provision of S.26 of the Marriage Act. It was further submitted that by virtue of S.32 of the Marriage Act the marriage certificate is admissible as evidence of the marriage to which it relates in any court of Justice or before any person having by law or consent of parties, authority to hear, receive, and examine evidence. It was argued that the learned trial judge was in palpable error when he rejected the original certificate tendered by the petitioner because it is admissible as evidence of the marriage of petitioner to the respondent. That the findings of the learned trial judge that any public document to be admissible in evidence must be certified only holds water where the original of the public document itself cannot be produced. Learned counsel also argued that the certified copy which the learned trial judge insisted upon is a variant of secondary evidence by virtue of S.95(a) of Evidence Act which would only have been necessary if the petitioner had not been able to produce the original.
The marriage certificate sought to be tendered by the appellant is an original copy. The original document is surely and certainly, the best evidence. The original marriage certificate is primary evidence and not secondary evidence. Sections 93 and 94 of the Evidence Act make it imperative that proof of documents could be either by primary or secondary evidence. The original marriage certificate being a public document is admissible in evidence as primary evidence, This court had cause to pronounce on the issue of admissibility of original copy of public document in Dagaash vs, Bulama (2004) 14 NWLR (Pt.892) 744 at 206 wherein Obadina J.C.A had this to say:
“There is no section of the Evidence Act that provides that no primary evidence of a public document is admissible. Section 112 of the Act allows certified true copy to be produced in proof of the contents of public documents, I do not think the provision of section 112 of the Act renders the primary evidence of public document inadmissible in evidence.
In my view the net effect of sections 91(1)(a), 93, 94(1), 95, 97(1)(e) and 112 of the Evidence Act is that the contents of public documents such as the report and the white paper in question may be proved by producing the originals themselves for the court to inspect as primary evidence”.
In the instant case Appellant was a signatory to the certificate sought to be tendered as he had personal knowledge of the matter dealt with by the statement. The learned trial Judge wrongly rejected the original marriage certificate as exhibit as proper foundation was laid for its admissibility in evidence as exhibit. It is relevant and admissible evidence as proof of marriage under the Act.
The contention of the Appellant in respect of issue 2 is that the learned trial Judge failed to exercise its discretion judicially and judiciously when he dismissed the appellant’s petition inspite of the uncontroverted evidence led by him before the court. It was contended that dismissal is made after a case has been heard on the merit and the plaintiff or the petitioner has not been able to prove his case. See:- Ogar v. James (2001) FWLR (Pt.67) 930 at 945.
Learned counsel argued that appellant led uncontroverted evidence in proof of his averments that the marriage had broken down irretrievably. That there was no basis for the learned trial Judge to dismiss the petition. Learned counsel further submitted that appellant ought to have been given a second chance since the suit was not defended and the fact that the dismissal was based on technical ground. Reliance was placed on Oyekan vs. B. P Nigeria Ltd. (1972) 1 All NLR (pt.1) 45.
The proceedings of the trial court reveal that after the trial court’s ruling rejecting the original certificate of marriage as exhibit, the appellant’s counsel Fadipe Esq. sought to withdraw the case. For clarity I will reproduce the relevant proceedings appearing at page 16 lines 5-20 of the record. This is what transpired:
“Fadipe:- With the ruling of the court we cannot make any progress because what clothes the court with jurisdiction is the document that has been rejected, In the circumstances I am really confused and I hereby apply that the witness be discharged and I want to withdraw the case.
JUDGMENT
“I agree with the learned counsel to the petitioner that without a valid marriage certificate in evidence before the court, this suit cannot be determined on its merits. It is unfortunate that inspite of the hints of the court, the petitioner has twice attempted to tender an uncertified copy of the marriage certificate. I wonder why this should be so. In the circumstances this suit is hereby dismissed”.
It is clear from the proceedings reproduced supra that the case was part heard when the learned trial judge dismissed it. Appellant did not complete his testimony as such his case was yet to be closed. The possibility of him calling witnesses in support of his claim cannot also be ruled out. As earlier resolved under issue No.1, the learned trial judge wrongly rejected the original certificate of marriage as exhibit in the case as such the dismissal cannot be allowed to stand. Appellant’s counsel had urged us to set aside the judgment and in its place hold that the marriage of petitioner to the respondent has broken down irretrievably. As noted earlier the Petitioner/Appellant was yet to close his case when same was dismissed by the trial court. It is my humble view that since appellant did not close his case before the dismissal this court is not in a position to invoke its powers under S.15 of the Court of Appeal Act 2004 (as amended) and determine the claim of the appellant before the trial court. Had it been the case was properly concluded we would have admitted the marriage certificate as exhibit and evaluate the evidence adduced to see whether the appellant had proved his claim or petition before the trial court. As it is this court cannot interfere, because appellant may call witnesses to testify in support of his claim.
I am satisfied, that this is a proper case to give the appellant another opportunity to relitigate the matter afresh. It is important to note that the principles guiding the courts in making an order of retrial of an action have been stated in a number of decided cases as being dependent on the facts and circumstances of the particular case. In Ayoola vs. Adebayo (7969) 1 All NLR 159 it was held thus:-
“An order of retrial inevitably implies that one of the parties, usually the plaintiff, is being given another opportunity to relitigate the same matter and certainly before deciding to make such an order we think that an appellate Tribunal should satisfy itself that the other party is not thereby being wronged to such an extent that there would appropriate where it is manifest that the plaintiff’s case has failed in toto and that no irregularity of a substantial nature is apparent on the record or shown to the court.”
See also Okomalu vs. Akinbode (2006) 4 SC (pt.7) 19; Igwe vs. Kalu (2002) 5 NWLR (pt.761) 678 at 732 paras. A-D; Ogedengbe vs. Balogun (2007) 9 NWLR (pt.1039) 380; Sanusi v. Aneyogun (1992) 4 NWLR (Pt.231) 527 and Okoye v. Kpajie (1973) 6 SC 17. In the instant case it cannot be said that appellant’s case has failed in toto since the case was not determined on the merit, The failure of the learned trial judge to admit the original certificate of marriage is also a good reason for this court to order retrial, considering the fact this court cannot invoke its powers and evaluate the case being a part heard matter. For the reasons stated I will resolve issues 1 and 2 in favour of the appellant.
In the result I hold that the appeal is meritorious and succeeds. Appeal is allowed. The judgment of the High Court of Justice, Sagamu, Ogun State, delivered by Majekodunmi J on the 9th day of March 2006 is hereby set aside. The case is remitted back to the Chief Judge, Ogun State Judiciary for re-assignment to another Judge, other than Majekodunmi J. for a fresh hearing.
STANLEY SHENKO ALAGOA, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Mshelia (J.C.A.). I agree with the reasoning and conclusion reached that the appeal has merit and should be allowed. I allow same and remit the case back to the Chief Judge, Ogun State Judiciary to be tried before another judge other than Majekodunmi, J.
MODUPE FASANMI, J.C.A.: I have read in draft the judgment delivered by my learned brother A. G. MSHELIA J.C.A.
I am in agreement with the reasoning and conclusion reached that the appeal is meritorious and succeeds. I too allow the appeal and abide by the consequential orders contained therein.
Appearances
J. O. AkahatorFor Appellant
AND
Respondent absent but served by substituted means i.e pasting.For Respondent
