THE REGISTERED TRUSTEES OF THE PORT HARCOURT CHRISTIAN COUNCIL PROJECT. V. MR. SUNDAY G.O. AMADI & ORS
(2010)LCN/3708(CA)
In The Court of Appeal of Nigeria
On Thursday, the 15th day of April, 2010
CA/PH/37/2007
RATIO
APPEAL: WHETHER PARTIES ARE BOUND BY THEIR PLEADINGS
In determining this appeal, it is necessary to state that parties are bound by their pleadings. PER ISTIFANUS THOMAS, J.C.A.
EVIDENCE: WHAT IS POSITION OF THE LAW ON PROOF OF DOCUMENTS
The position of the law is that proof of documents must be by primary evidence except where the primary evidence is absent that the secondary evidence will come into force as stipulated in Section 97 of Evidence Act. Section 94 (1) of the Evidence Act says a primary evidence means the document itself produced for the inspection of the court. PER ISTIFANUS THOMAS, J.C.A.
JUSTICES
SULIMAN GALADIMA (OFR) Justice of The Court of Appeal of Nigeria
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
EJEMBA EKO Justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEE OF THE PORT HARCOURT CHRISTIAN COUNCIL PROJECT Appellant(s)
AND
1. MR. SUNDAY G.O. AMADI
2. MISS PRISCILIA AKAROLO
3. MRS. BEATRICE NYECHE (Themselves and as representing Amadi Women Meeting of Elekahia Community Rebisi) Respondent(s)
ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of Teetito, J. at Port Harcourt High Court, which was delivered on 21-2-2006 rejecting the original registered Deed of Conveyance sought to be tendered as an exhibit in the matter.
The appellant as plaintiff instituted the suit against the respondents/defendant claiming inter alia, the following reliefs:
“1. A declaration that the plaintiffs are the owners and entitled to the Statutory Right of Occupancy in respect of the piece or parcel of land formerly “called “UZO WAJA”, and now called “APA WEJA” lying and situate at Elekahia, village Rebisi within the jurisdiction of this court measuring approximately 6.780 Acres and more particularly delineated and verged blue on survey plan No.CJH171 – LD annexed to the statement of claim.
2. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendant…”
3. The sum of N950,000.00 only being damages… for trespass…”
During proceedings at the lower court, parties exchanged pleadings, and in the appellant’s pleadings, they averred in their paragraphs 4 as follows-
“4. The plaintiff/appellant are the beneficial owner in possession of all that piece or parcel of land know as and called UZO NWAJI covering an area of approximately 28.20 acres lying and situate at Elekahia Port Harcourt within the jurisdiction of this honourable court.”
In supporting their claim as stated in the above quoted paragraph 4, the appellant had pleaded their root of title to the aforesaid piece of land or parcel as follows:
“(i) By a Deed of conveyance dated the 17th day of September 1965 and registered as No. 35 at page 35 in volume 441 of the land Registry in the office formerly at Enugu, but now at Port Harcourt and made between and made between Shedrach Ogunka Aholu and 10 others all of Elekahia, Port Harcourt as Vendors of the one pan and the Registered Trustees of the Niger Delta Dioceses as Purchasers of the other part, the plaintiffs said piece or parcel of land was conveyed by the said vendors on behalf of the entire Elekahia community unto the Purchasers in fee simple.
(ii) By a further Deed of conveyance dated the 8th day of February, 1977, and made between the aforesaid Registered Trustees of the Niger Delta diocese as Vendors of The one part AND the Plaintiffs as Purchasers, of the Other part, the aforesaid piece or parcel of land was conveyed by the said Vendors unto the Plaintiffs in fee simple.
(iii) By a power of Attorney dated the 6th of February, 1978 and duly registered as No. 76 at page 76 in Volume 80 of the lands Registry in the office at Port Harcourt the aforesaid Registered Trustees of the Niger Delta Diocese, the predecessors-in-title of the plaintiffs, duly appointed the plaintiffs as their lawful Attorneys with irrevocable powers in respect of the aforesaid piece of or parcel of land. The Plaintiffs will at the trial rely on the originals or copies of the aforesaid two Deeds of Conveyance and the survey, plan No. TJ. E84 BAN /112/65 registered AS No. 35/35/441 – Enugu (now) Port Harcourt and the aforesaid Power of Attorney.”
(Underline is mine)
As earlier stated, the appellant tried to tender the aforesaid two Deeds of Conveyance being the registered documents at Enugu but now at Port Harcourt, but the respondents objected to it admissibility as an exhibit in the case. The trial judge in his ruling which was delivered on 21-02-2006, sustained the objection and rejected the two deeds of Conveyance on the ground that they were in admissible. At page 69 of the record, the learned Trial judge concluded as follows:
” The present document sought to be tendered is not a certified true copy. I am therefore of the humble opinion that it is inadmissible in evidence in its present state. I therefore uphold this objection and refuse its admissibility.”
It is against that ruling that the appellant filed the Notice of Appeal on 1st March, 2006 containing a single ground of appeal.
With its particulars, the single ground is as follows:
“1. The learned trial judge erred in law in rejecting the original of his duly registered deed of conveyance which the appellants had sought to tender as an exhibit in the case, and proof of this root of this title to their parcel of the land.”
PARTICULARS OF ERROR
(i) The document is primary evidence being the original of a document of title to land which is admissible under Section 94 (4) and 96 of the Evidence Act Cap E 14) Laws of Nigeria, 2004.
(ii) In the circumstances a consideration of its secondary evidence does not arise
(iii) Private and Public documents are provable by the production of their originals.
(iv) It is only in the absence of the original that its secondary evidence becomes relevant and admissible.
(v) A Certified True Copy of the plaintiffs/Appellants duly registered deed of conveyance is secondary evidence of the said registered deed of conveyance and can not…? the original registered deed of conveyance which is primary evidence, if produced for the inspection of court.”
Learned Senior Counsel for the appellant, duly filed the appellant brief of argument on 26-04-07 because the record of appeal was transmitted to court on 05-02-07. The appellant raised a single issue for determination that simply reads as follows:-
Whether the learned trial judge erred in law in rejecting the original of the duly registered deed of conveyance of the land in dispute as an exhibit in the case.
Learned Senior Counsel Chief Akparanta, SAN, on the hearing dated, adopted and relied on the brief as well as the reply brief which was filed on 15-11-07, and urged the court to allows the appeal and remit the case to the chief Judge of Rivers State and transfer same to another judge in Port Harcourt Division.
On the part of the respondents, their brief was filed on 13-06-07 in which a similar issue for determination is raised. It reads as follows:
Whether the learned trial judge was right in rejecting the original Deed of Conveyance as exhibit on the ground that it was not Certified True Copy.
Learned counsel for the respondents also adopted the brief and relied on same. Counsel for the respondent urged the court to dismiss the appeal on the ground that the relevant section of the Evidence Act make no provision for the original of a document to be admissiblein evidence, that rather, the provisions of the Evidence Act allows the admissibility of only a certified True Copy of original document.
Learned counsel for the respondents has argued that the provisions of section 93 and 94 of the evidence Act 1990 are not applicable to the public documents and that the Deeds of conveyance sought to be tendered by the appellant was registered and therefore a public document. That being a public document, its admissibility comes under section 97 (2) (c) of the Evidence Act, and referred to and relied on the cased Araka V. Egbue (2003) FWLR (Pt 175) 507, Sidi Yero Vs. Union Bank of Nig Plc (2000) 5 NWLR v. (Pt. 657) 470; Lawson v. Afani continental Co. (Nig) Ltd (2002) 2 NWLR (pt. 415) 547. In effect, the 1st respondent’s argument is that the deeds of conveyance sought to be tendered by the appellant, a public document, and that means it is only a secondary evidence which must be a certified true copy dully stamped by a qualified public officer.
In determining this appeal, it is necessary to state that parties are bound by their pleadings. In proving its root of title, the appellant pleaded in para 4 (iv) quoted above and relied on the “originals or copies of the aforesaid two Deeds of Conveyance and the survey Plan No. T.J.E 84 and BAN/112/65 and registered as No. 35/35/441-ENUGU (Now P.H. and the aforesaid Power of Attorney.”
In my considered view section 93 of the Evidence Act is very clear. It is Provided as follows
“S.93. The contents of documents proved may, be either by primary or secondary evidence.”
It is therefore not in dispute that by the combined effect of Sections 93, 96 and 96 of the Evidence Act there are two specific ways of proving the contents of what the appellant sought to be tendered at the lower court, namely, by primary evidence or by secondary evidence. The position of the law is that proof of documents must be by primary evidence except where the primary evidence is absent that the secondary evidence will come into force as stipulated in Section 97 of Evidence Act. Section 94 (1) of the Evidence Act says a primary evidence means the document itself produced for the inspection of the court.
In the instant appeal, the appellant’s pleadings relied upon, was the original or a copies of the Deeds of conveyance. Now since the appellant had tendered the original of the Deeds of conveyance, it was patently wrong for the trial judge, to say, that the original was inadmissible. What was the need for a certified true copy of the document since the original was available?. In the case of Okeke v. The Attorney-Gen of Anambra State (1993) 1 NWLR (Pt. 215) 60 at 80, the supreme court held that in the admissibility of documents, the court must in the first instance, be proved by producing either the original or in its absence, the secondary evidence of it. As argued by the Senior counsel, the Supreme court have never rejected the inadmissible of the original of even of a public document. I entirely agree that it is only in the absence of the original document which is the primary evidence, that secondary evidence duly certified will come in as an alternative or substitute. As earlier stated, by virtue of section 93 of the Evidence Act, 2004, primary evidence means the document itself, just as the appellants pleaded and tendered for the inspection of the trial court.
In the final analysis, the appellant’s original registered Deed of Conveyance and the survey plan No. T.J.E. 84 and BANI/112/65 and registered as No. 35/35 441 Enugu (but now PH) is admissible being primary evidence, and I so hold. I hereby, set aside the ruling of the learned trial court in which it rejected the primary document. The sole issue is resolved in favour of the appellant, and against the 1st respondent. The case is sent back to the Chambers of the chief Judge of Rivers State who will assign the case to another judge other than Justice E. Teetito. Costs of N50, 000.00 in favour of the appellant and against the 1st respondent
SULEIMAN GALADIMA, J.C.A.: I have had the privilege of reading the draft copy of the lead judgment of my learned Brother THOMAS JCA just delivered. I agree with his reasoning reading to the conclusion that the learned trial Judge erred in law when he held that the Deed of conveyance in this case was inadmissible. It is only in the absence of the original document which is primary evidence, that the Secondary evidence duly certified will be admitted as alternative or as a substitute. see Sections 93, 94, 96 and 97 of the Evidence Act (Cap. E. 14) 2004 and the following cases: ARAKA (J) V. DONEGBUE (J ) (2003) FWLR (Pt. 175) p.507; LAWSON V. AFANI CONTINENTAL CO. LTD. (2002) 2 NWLR (Pt.752) P.585 YERO V. UNION BANK OF NIG. LTD & ORS. (2000) 5 NWLR (pt. 657) 470- A – D and recent unreported case of this Division Appear No. CA/PH/227/2005 DELIVERED ON l5TH DAY OF March, 2010.
EJEMBI EKO, J.C.A.: My learned brother, ISTIFATIUS THOMAS, JCA, made available to me in advance the draft of the judgment just delivered. I agree with his analysis of, and the conclusion on, the issues. I have nothing further to add. I hereby adopt the judgment including all order therein.
Appearances
Chief C.A.B Akparanta SAN with Brown Boma and J. NwadawaFor Appellant
AND
A.R. George for the 1st Respondent 2nd & 3rd Respondents absent served on 12/1/2010For Respondent
