YUSUF SARKI KAWU v. THE MINISTER, FEDERAL CAPITAL TERRITORY & ORS
(2019)LCN/12685(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of May, 2016
CA/A/42/2013
RATIO
EVIDENCE: WHETHER PUBLIC DOCUMENT CAN BE GIVEN IN EVIDENCE AS CERTIFIED TRUE COPY
“The basis for public documents to be proved by certified true copies is not only because originals of such documents cannot be moved from where they are kept, contrary to the contention of learned counsel for the appellant, if that were the only reason or basis a Certificate of Occupancy may by that token not be proved by the production of the original for the Court to respect as primary evidence, but certificates of occupancy are indeed public documents and can very well be produced as primary evidence before a Court, see EDOBOR V. OLOTU & ANR (2012) LPELR-9288-CA where it was held: The combined effects of Sections 91(1)(a), 93, 94(1), 97(1)(e) and 112 of the Evidence Act is that public documents such as Certificate of Occupancy may be proved by the production of the originals themselves for the Court to inspect as primary evidence. See EBU V. OBUN SUPRA, DAGGASH V. BULAMA AND ANATOGU V. IWEKA II (1995) 8 NWLR part 415 at 547.” PER MOHAMMED MUSTAPHA, J.C.A.
INTERPRETATION: MEANING OF ‘PUBLIC DOCUMENT’
“Public documents are easy to identify, they are defined by Section 102 of the Evidence Act, 2011:
‘The following documents are public documents: (a) Documents forming the official Acts or records of official acts -(i) of the sovereign authority, (ii) of official bodies and Tribunals(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere. (b) Public records kept in Nigeria of private documents.'” PER MOHAMMED MUSTAPHA, J.C.A.
INTERPRETATION: MEANING OF ‘CERTIFIED TRUE COPY’
“It is worth noting that in law a Certified True Copy of a document is as good as the original and is presumed under the Evidence Act to be regular until the contrary is proved, see OKIKIADE & ORS V. ALALADE (2012) LPELR-7967-CA; and a Certified True Copy of a document is admissible without proof, seeODUBEKO V. FOWLER (1993) 7 NWLR (PT.308) 637. It is desirable generally speaking to lay foundation before tendering a document as evidence but this does not apply as a matter of necessity to a Certified True Copy of a public document the argument therefore that a foundation has to be laid before a Certified True Topy of a public document can be admitted in evidence in the considered opinion of this Court amounts to turning both law and logic on their heads, because once a public document is certified it is admissible; as a matter of fact a party can tender the Certified True Copy of a public document even though he was not a party to it; see MARANRO V. ADEBISI (2007) LPELR-4663-CA; and counsel may even do so from the Bar; see DAGGASH V. BULAMA (2004) 14 NWLR PT. 892 PG. 144 AT 187 and OKIKI II V. JAGUN (2000) 5 NWLR PT.655 PG. 19 AT PG.27-28.” PER MOHAMMED MUSTAPHA, J.C.A.
JUSTICE
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
MOHAMMED MUSTAPHA Justice of The Court of Appeal of Nigeria
Between
YUSUF SARKI KAWU
(Suing Through his Attorney Wax Ride Technologies Limited)Appellant(s)
AND
1. THE MINISTER FEDERAL CAPITAL TERRITORY
2. THE FEDERAL CAPITAL DEVELOPMENT AUTHORITY
3. JOSEPH OJOMARespondent(s)
MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the ruling of the High Court of the Federal Capital Territory Abuja Coram Honourable Justice Salisu Garba, delivered on the 27th of November, 2012, by a notice of appeal dated the 27th of November, 2012 and filed on the 27th of November 2012 on the following ground:
GROUND ONE:
The Hon. Court erred in law for refusing to admit the Certified True Copy of the Plaintiffs Letter of Offer (instrument of grant christened Re: Application for Statutory Right of Occupancy within the Federal Capital Territory Abuja in the name of the Plaintiff/Appellant to Plot 1249 Maitama District Abuja) on the solitary ground that the Plaintiff did not lay the foundation to show what happened to the original for seeking to tender a Certified True Copy of the secondary document.
The plaintiff/appellant claimed the following reliefs at the trial:
a. A DECLARATION OF COURT that the purported revocation of the Plaintiff’s title in Plot 1249 Maitama District, Cadastral Zone A05, Abuja is null, void and of no effect whatsoever and that the Statutory Right of Occupancy of the Plaintiff is still valid and subsisting.
b. A DECLARATION OF COURT that the allocation to the 3rd Defendant is null, void and of no effect whatsoever as same was already a located to the Plaintiff and there was nothing to be allocated to the 3rd Defendant.
c. AN ORDER OF COURT directing the 1st and 2nd Defendants whether by themselves or through their agents of agencies known as the Abuja Geographical Information System (AGIS), the Federal Capital Territory Administration, the Abuja Metropolitan Management Agency however known to accord to the plaintiff all land rights known to law including but not limited to issuing the Plaintiff with a Certificate of Occupancy and stopping all trespass on the land.
d. AN ORDER OF COURT directing the 1st and 2nd Defendants to register the Power of Attorney submitted by the Plaintiffs Attorney, approve the proposed building plan submitted by the Plaintiffs Attorney and revert back all the right appertaining to Plot 1249 within Maitama District to the Plaintiff.
e. AN ORDER OF COURT restraining the 3rd Defendant his agents and privies from inferring with the Plaintiff’s title, peaceful possession and or parading himself/herself as the allottee of Plot 1249 Maitama District Cadastral Zone A05, FCT, Abuja.
f. Cost of the suit.
The plaintiff/appellant sought at the trial to tender a Certified True Copy of the letter of offer of Statutory Right of Occupancy to Plot 1249, Maitama Abuja which the trial Court rejected following an objection by defendants/respondents, on the ground that the appellant failed to lay foundation as to the whereabouts of the original copy of the letter; this necessitated this appeal.
A sole issue for determination was formulated from the lone ground of appeal in the brief settled by F.M Oduma Esq., filed on the 23rd of September, 2013 and deemed properly filed on the 14th of May, 2014 as follows:
Whether the Honourable Trial Judge was right in holding that a Certified True Copy of a public document cannot be accepted in evidence without laying the foundation as to the whereabouts of the original.
The 1st and 2nd respondents in their joint brief settled by Abari, Jonah O. Esq., formulated a sole issue for determination, the issue is fundamentally the same with the issue formulated for the appellant in all respects; the 3rd respondent’s brief settled by F.S.S. Ojealaro Esq., formulated three issues for determination by the Court, and the issues are:
1. Whether a letter of offer of allocation of right of occupancy purportedly issued by the 1st and 2nd defendants/respondents over a piece of land constitutes a public document.
2. Whether the Certified True Copy of the document sought to be tendered was made from the original copy.
3. Whether the Honourable Trial Judge erred in holding that a certified copy of a document not proved to be a public document cannot be accepted in evidence without lying of the requisite evidentiary foundation.
This appeal is based on only one ground of appeal filed by the appellant, as a result it s wrong for the 3rd respondent to formulate more issues than there are grounds; it has long been settled that an issue for determination may encompass more than one ground of appeal, but one ground of appeal cannot support more than one issue. It is therefore inconceivable for the 3rd respondent to formulate three issues for determination from a single ground of appeal; consequently the last two issues are not only incompetent but surplus, and are hereby struck out; See OKONOBOR & 9 ORS V. D. EDEGBE & SONS TRANSP. CO. LTD. & ANOR (2010) 2 NMLR 284 AT 289, FRN V. IBRAHIM & ANR (2013) LPELR-24231-CA, YIS NIG. LTD V. TRADE BANK PLC (2013) LPELR-20087-SC, AGBETOLA V. THE LAGOS STATE EXECUTIVE COUNCIL & ORS 1990 6 SCNJ PT.1 P.12 and TANEREWA NIG. LTD V. PLASTIFARM LTD 2003 14 NWLR PT.840 P.369.
Having said that this appeal will be determined on the sole issue formulated for the appellant not only for reasons of brevity and clarity, but also because it encompasses the 1st issue formulated for the 3rd respondent and now his only issue left.
It is submitted for the appellant that there is no law prescribing that a foundation be aid first by a party seeking to tender the photocopy of a pubic document, explaining the whereabouts of the original; learned counsel referred the Court toDAGGASH V. BULAMA (2004) 14 NWLR part 892 page 144 at 231.
That the trial Court was in error to treat the secondary evidence of a public document as if it were the secondary copy of a private document; earned counsel referred the Court to GANI FAWEHINMI V. I.G.P (2000) 1 WRN P.98 AT 105, ARAKA V. EGBUE (2003) 33 WRN P.1 and Sections 104 (1) and 105 of the Evidence Act 2011.
Learned counsel further submitted that once the conditions set in Section 104(1) of the Evidence Act are met a Certified True Copy of a pubic document can be tendered without more, to prove the contents of the original as provided in Section 105 of the Evidence Act 2011.
It is submitted for the 1st and 2nd respondents that Section 82 of the Evidence Act makes it mandatory to tender the primary evidence, especially as that is the best evidence, except under exceptions provided under Section 89 (a-h) of the Evidence Act; learned counsel referred the Court to EDAKPOLO V. SAMEDOR WIRES (1989) 4 NWLR part 1165.
That the law does not allow a party to choose whether to rely on primary evidence or secondary evidence as a matter of choice and the burden of the party who seeks to rely on secondary evidence is heaver if he is the custodian of the primary evidence.
That also the document is not admissible in the form it is sought to be used unless and until primary evidence of it is accounted for because of the state of pleadings
Learned counsel further submitted it is not about custody, but need for the plaintiff to convince the Court as to why he is resorting to the use of secondary evidence of what is with him.
It is submitted for the 3rd respondent while referring to Section 102 of the Evidence Act that the basis for public documents to be proved by certified true copies is because by their nature the originals cannot be moved from where they are kept, he referred to ARAKA V. EGBUE (2003) 17 NWLR part 48 pg.1
That Originals of Certificates of Occupancy WAEC Certificates or other proficiency certificates are not public documents because the originals are usually with the intended beneficiaries of their content; he referred the Court to IOANNMOU V. DEMETRIOU (1952) 1 AER 197 and SHYLLON V. UNIVERISITY OF IBADAN (2007) 1 NWLR part 1 pp4 and 5.
That a notification letter of offer of allocation of land cannot be regarded as a public document under Section 102 of the Evidence Act, especially as the only original is in private custody of the plaintiff at all points in time.
The basis for public documents to be proved by certified true copies is not only because originals of such documents cannot be moved from where they are kept, contrary to the contention of learned counsel for the appellant, if that were the only reason or basis a Certificate of Occupancy may by that token not be proved by the production of the original for the Court to respect as primary evidence, but certificates of occupancy are indeed public documents and can very well be produced as primary evidence before a Court, see EDOBOR V. OLOTU & ANR (2012) LPELR-9288-CA where it was held:
“The combined effects of Sections 91(1)(a), 93, 94(1), 97(1)(e) and 112 of the Evidence Act is that public documents such as Certificate of Occupancy may be proved by the production of the originals themselves for the Court to inspect as primary evidence. See EBU V. OBUN SUPRA, DAGGASH V. BULAMA AND ANATOGU V. IWEKA II (1995) 8 NWLR part 415 at 547.
Public documents are easy to identify, they are defined by Section 102 of the Evidence Act, 2011:
“The following documents are public documents:
(a) Documents forming the official Acts or records of official acts -(i) of the sovereign authority, (ii) of official bodies and Tribunals(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere. (b) Public records kept in Nigeria of private documents.”
Clearly from the foregoing a Certificate of Occupancy is a public document but so also a letter of allocation of a Statutory Right of Occupancy, and once certified as true copy such document can be tendered and admitted in evidence like any public document that being so, IOANNMOU V. DEMETRIOU (1952) 1 AER 197 and SHYLLON V. UNIVERISITY OF IBADAN (2007) 1 NWLR part 1 pp4 and 5 cited are not helpful in this regard to say the least.
It is worth noting that in law a Certified True Copy of a document is as good as the original and is presumed under the Evidence Act to be regular until the contrary is proved, see OKIKIADE & ORS V. ALALADE (2012) LPELR-7967-CA; and a Certified True Copy of a document is admissible without proof, seeODUBEKO V. FOWLER (1993) 7 NWLR (PT.308) 637.
It is desirable generally speaking to lay foundation before tendering a document as evidence but this does not apply as a matter of necessity to a Certified True Copy of a public document the argument therefore that a foundation has to be laid before a Certified True Topy of a public document can be admitted in evidence in the considered opinion of this Court amounts to turning both law and logic on their heads, because once a public document is certified it is admissible; as a matter of fact a party can tender the Certified True Copy of a public document even though he was not a party to it; see MARANRO V. ADEBISI (2007) LPELR-4663-CA; and counsel may even do so from the Bar; see DAGGASH V. BULAMA (2004) 14 NWLR PT. 892 PG. 144 AT 187 and OKIKI II V. JAGUN (2000) 5 NWLR PT.655 PG. 19 AT PG.27-28.
The Certified True Copy of a public document is indeed unlike any other document in this regard, there is no need for foundation to be laid before it is tendered and admitted in evidence, the plaintiff has an option as it is, to tender the Certified True Copy, even if he had the original right there with him. Nothing compels him to tender the original, it is simply a matter of choice or convenience as the case may be:
“Certified copies are by statute deemed to be originals. Where there is no certification the presumption of regularity will not be ascribed to it, so it ought to be certified in order that the Court is left with no alternative but to accept the authenticity of its contents.” Per Rhodes-Vivour, J.S.C. in TABIK INVESTMENT LTD & ANR V. GTB PLC (2011) LPELR-3131-SC.
In the circumstances, this Court cannot help but agree with learned counsel to the appellant that the requirement of laying foundation which is the basis of the rejection of the document by the trial Court does not apply to this case, because what was tendered for admission is a Certified True Copy of a public document. The trial Court was in the considered opinion of this Court, in error, to treat the secondary evidence of a public document as if it were the secondary evidence of a private document, see UKANA V. C.O.P (1995) 8 NWLR part 416 at 717.
There is no known law requiring the laying of foundation to establish the whereabouts of the original of a public document before such document can be admitted in evidence, the trial Court was clearly in error to hold otherwise; accordingly the sole issue for determination is accordingly resolved in favour of the appellant, against the respondents.
Having resolved the only issue for determination in favour of the appellant, against the respondents the appeal succeeds per force, it is accordingly allowed The ruling of the trial Court of the 27th clay of November, 2012 is hereby set aside: in its place, the Certified True Copy of the Offer of Statutory Right of Occupancy to Plot 1249 Maitama District, Abuja tendered and rejected by the trial Court is hereby admitted as an Exhibit.
Cost of N20, 000.00 is awarded in favour of the appellant, against the respondents.
TANI YUSUF HASSAN, J.C.A.: I read before now the judgment just delivered by my learned brother Mohammed Mustapha, JCA.
I also allow the appeal because Supreme Court held that Certified True Copy of public document is admissible in law, see: Araka Vs. Egbue (2003) 17 NWLR (pt 484) 1 at 4 -6, Okotie-Ebo Vs. Okotie-Ebo (No. 1) (1986) 1 SC 479 and Onabruchere vs. Esegine (1986) 1 NWLR (pt. 19) 799. The Ruling of the trial Court is hereby set aside.
I abide by the order as to costs.
JOSEPH EYOEKANEM,J.C.A.: I agree with my Lord, Mustapha, JCA, that there is no law that requires that foundation must be laid before a certified true copy of a public document can be tendered in evidence.
On account of the above and the more comprehensive reasons contained in the lead judgment of my learned brother, Mustapha, JCA, I also allow the appeal and order that the document which was rejected by the trial Court be admitted in evidence as an exhibit and be so marked.
I abide by the order as to cost contained in the judgment.
Appearances
O.J. Aboje, Esq . with him, F.M. Oduma, Esq.For Appellant
AND
H.O. Odigbo, Esq. with him, J.O Abari, Esq. for 1st and 2nd Respondents.
F.S.S. Ojealaro, Esq. for 3rd RespondentFor Respondent
