THE REGISTERED TRUSTEES OF ABOSSO APOSTOLIC FAITH CHURCH OF JESUS CHRIST v. BRO SUNDAY NNA & ORS
(2014)LCN/7056(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of March, 2014
CA/OW/97/2009
RATIO
CRITERIA GOVERNING THE ADMISSIBILITY OF A DOCUMENT IN EVIDENCE
It is trite law that the criteria which govern the admissibility of a document in evidence are: (a) is the document pleaded; (b) is it relevant: (c) is it admissible in law? See OLUYEMI V. ASAOLU (2010) ALL FWLR (Pt.522) 1682 at 1725 paras. E – F, where the case of OKONJI v. NJOKANMA (1999) 14 NWLR (pt. 638) 250 was referred to. PER PHILOMENA MBUA EKPE, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEES OF ABOSSO APOSTOLIC FAITH CHURCH OF JESUS CHRIST Appellant(s)
AND
1. BRO SUNDAY NNA
2. ELDER SAMUEL ANYANWUOCHA
3. BRO SAMPSON ONYEBUCHI
4. BRO SAMUEL ECHEWENDU
5. ELDER CHRISTOPHER IBE
6. EVANG. MOSES IBEJI
7. SISTER GRACE ANYANWOUCHA
8. SISTER THERESA AKAM
9. MOSES NWAUZO
10. C. G. CHUKWU
11. LUCKY ORIORJI
12. EDWIN ONUOHA
13. IKECHUKWU UKO Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This interlocutory Appeal emanated from the ruling of Hon. Justice Z. B. Abubakar of the Federal High Court Umuahia Division, delivered on 22/6/2009 wherein His Lordship rejected the document dated 15/10/98 sought to be tendered by the Appellant who are also plaintiff at the lower court.
SUMMARY OF FACTS
The Appellant who are the Registered Trustees of Abosso Apostolic Faith Church of Jesus Christ sued the defendants claiming some declaratory and injunctive reliefs to wit:
i. A declaration that the defendants have since the 9th of November, 1998 seized to be members of the churches Aba 1 Branch committee, the old committee to which they belong having been dissolved.
ii. An order compelling the defendants to hand over all documents records, properties and monies belonging to the ABOSSO APOSTOLIC FAITH CHURCH OF JESUS CHRIST, now in their possession to the present church committee of the No.25 Lagos Street, branch of the church, validly constituted and recognized by the NATIONAL EXECUTIVE COUNCIL (NEC) OF THE CHURCH.
iii. An order compelling the defendants to render account of all monies and properties that came into their possession as members of the dissolved church committee of No.25 Lagos Street Branch Aba, from the period they came into office until the said committee was validly dissolved, and thereafter all such monies and properties obtained while unlawfully holding themselves out as still members of the church committee and to hand over all such monies and properties to the church committee aforesaid.
iv. An order of perpetual injunction restraining the defendants either by themselves or agents from further interfering interrupting, intermeddling and or in whatever way disrupting the legitimate activities of the 25 Lagos street Aba, branch of the church or any other branch for that matter, including the wrongful use of the police or thugs to assault, intimidate arrest and or harass, law-abiding, ministers, officials and members of the Plaintiff’s church.
v. An order compelling the defendants to pay to the plaintiff the sum of EIGHTY MILLION NAIRA (N80M) representing special and general damages suffered by the plaintiffs church as a result of defendants gross misconduct in the affairs of plaintiff’s church aforesaid.
In the course of the evidence of Elder J. I. Igwe (PW1) the Appellants sought to tender the letter dated 15th day of October 1988 with which the 1st Respondent was allegedly suspended. The counsel for the Respondents objected to the admissibility of the document on the grounds that it is a photocopy and no notice was given to the Respondents to produce the original. The learned judge after taking arguments from both sides ruled and rejected the document. It is against the said ruling that the Appellants brought this interlocutory Appeal.
GROUNDS OF APPEAL
By a Notice of Appeal dated 1st of July, 2009 the appellants raised the following grounds of appeal without their particulars:
GROUND ONE:
The learned trial judge erred in law by rejecting the Plaintiffs/Appellants secondary documentary evidence on the 22nd day of June 2009, tendered in the course of hearing on the grounds that it did not comply with provisions of Section 98 of the Evidence Act.
GROUND TWO:
The learned trial judge erred in law by not admitting the said document which by the state of pleadings was relevant.
ISSUES FOR DETERMINATION:
From the Grounds of Appeal reproduced above, the Appellants distilled two issues for determination thus:
ISSUE NO. ONE:
Whether the provisions of sections 98 and/or 97 of the Evidence act, Laws of the Federation 2004, operate to exclude or reject in evidence copies of a secondary private document which have been duly pleaded as copies thereof and evidence or foundation was led in line with the pleading at the hearing and it was not alleged either in the pleading or oral evidence, that the original was in possession of the defendants?
ISSUE NO. TWO:
whether by the state of pleadings of the parties the document sought to be tendered but rejected was not relevant and therefore admissible to establish the issues in controversy?
On their part, the Respondents distilled a lone issue which they couched thus: whether the lower court was right in law in rejecting the document sought to be tendered on the ground that the provisions of the Evidence Act were not complied with by the Appellant.
For purposes of clarity, I will first summarize the argument of the Appellant on the two issues which he raised before recapping the argument of the respondents on their sole issue.
ARGUMENT:
In arguing the first issue, the Appellant referred to Section 97(1) (a) and 98 of the Evidence Act and submitted that by these provisions the need for notice to produce arises only when the original is alleged to be in the possession of the adverse party. Counsel also made reference to the book: Law and Practice of Evidence by Afe Babalola at page 207 paragraph 2, and contended that in the instant case there was neither pleading nor evidence suggesting that the original of the document was in the defendants possession, hence there was no need to give them notice to produce.
Counsel further contended, that where is no need for notice to produce as in the instant case, all that is required is for the document to be pleaded and proper foundation laid for its admissibility. He cited the cases of NIGERIAN PORTS PLC. V. BEECHAM PHAM LTD (2005) 24 WRN 38 at 100 and FASINA V. OGUNKAYODE (2005) 31 WLR 192 LINES 10 – 20 to buttress this point. Learned counsel opined that by paragraph 30 of the Amended Statement of Claim and the oral evidence of PW1 the letter of suspension was properly pleaded as it was never alleged that the letter was addressed to the defendants but to the branches of the Appellants church. He submitted that proper foundation has been laid for the admission of the said letter.
Issue two
In arguing this issue, learned counsel cited ANPP V. PDP (2006) 31 WRN 37 at 69 LINES 30 – 40 and AGBAHOMOVO & ORS. VS. EDUYEGBE & ORS. (1999) S SCNJ 54 to contend that what governs admissibility of documents is its relevance. He contended that by the Appellant’s pleadings and the response of the Respondents in their Statement of Defence, the Respondents admitted the existence of the letter of suspension but only challenged the powers of the Appellants through the Bishop to act thus. Counsel contended that from this state of pleadings, the suspension letter and all other documents having any bearing on the suspension are relevant and therefore admissible. Learned counsel concluded by urging the court to allow the appeal.
Respondent’s argument on their sole issue is that contrary to the submission of Appellant’s counsel it is not only relevancy that governs admissibility of document. According to counsel a document will first pass the test contained in Section 97 and 98 of the Evidence Act before the issue of its relevance will be considered. He cited CHIEF GANI FAWEHINMI V. I.G.P. & ORS. (2000) 7 NWLR (Pt. 665) at 524 – 525 in support. He opined that to satisfy Section 97 and 98 of the Evidence Act the party must not only show that the document is in the custody of the adverse party but that he had notice but refused to provide the document. Counsel cited OLOGUN ENTERPRISES LTD v. SABEY JERNSTOBERI & MASKINFABRIC (1992) 4 NWLR (Pt. 235) 361 at 383. B. He further contended that by Section 96 of the Evidence Act every document must be proved by primary evidence and where it is not available, then the steps stated in Section 97 (1)(a)(i) and 98 of the Evidence Act must be followed. Counsel concluded by urging this court to dismiss the suit.
Having considered the issues raised by the Appellant and Respondents, in my view, this appeal can be determined on the sole issue raised by the Respondents. It is trite law that the criteria which govern the admissibility of a document in evidence are: (a) is the document pleaded; (b) is it relevant: (c) is it admissible in law? See OLUYEMI V. ASAOLU (2010) ALL FWLR (Pt.522) 1682 at 1725 paras. E – F, where the case of OKONJI v. NJOKANMA (1999) 14 NWLR (pt. 638) 250 was referred to. In the instant case there is no doubt that the document sought to be tendered was pleaded and that it is relevant; the question is whether it is admissible in law.
Learned counsel for the Respondents had argued vigorously that for secondary evidence of a document to be admissible in evidence there must be proof that notice to produce the original was given to the adverse party. The learned trial judge also in her ruling towed this line of reasoning. However, I do not subscribe to that line of thought.
I am fortified in this regard by the provision of Section 91 of the Evidence Act, 2011 where instances when notice can be dispensed with were aptly stated. Specifically, subsection b of Section 91 clearly provides: “when from the nature of the case, the adverse party must know that he will be required to produce it.”
In the instant case, the existence or contents of the letter of suspension is not in dispute. From the pleadings the Respondents are only disputing the powers of the Appellant through the bishop to suspend them. In essence, the Respondents are merely disputing their suspension which came into effect via copies of the letters sent to them. The Respondents are well aware that they were never served with any original of the suspension letters, only copies. It is therefore obvious that where the original of the secondary document is not alleged or believed to be in custody of the adverse party as in this case, then notice to produce same cannot be given to them as it would serve no useful purpose since the Respondents obviously cannot produce what they do not have. Under the circumstance, notice to produce can safely be dispensed with since proper foundation had already been laid for its admissibility.
Moreover, the PW1 had testified that the document he sought to tender was what he got when same was circulated. The Supreme Court has held that a document which is what was got from a source can be tendered and there is no need to account for the original of the document before same is admitted, see THE STATE V. OKECHUKWU (1994) 12 SCNJ 62 at 79. From the above view, I am of the opinion that the issue raised by the Respondent should be answered in the negative.
This appeal therefore has merit and ought to succeed. However, I wish to add that this Interlocutory Appeal is not of absolute necessity. The Appellant ought to have waited for the trial court to deliver its judgment before rushing to this court. The disposition of this court in recent times is against interlocutory appeals as it wastes the precious time of this court considering the volume of appeals pending in this court. Nonetheless, this appeal is considered by me to be meritorious and is therefore allowed. The Ruling of the learned trial judge delivered on the 22nd day of June, 2009 is hereby set aside. I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I agree.
PETER OLABISI IGE, J.C.A.: I have read in advance the judgment of my Lord PHILOMENA MBUA EKPE, JCA, which he just delivered.
I agree with the said judgment. I have nothing to add.
Appearances
Ogbo Enekwa, EsqFor Appellant
AND
C. A. N. Nwokeukwu, Esq.For Respondent
