ZAMTRAC (MGT) & CITY INVESTMENT LTD v. FRN & ANOR
(2021)LCN/15843(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, March 03, 2021
CA/ABJ/CR/982/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Peter Olabisi Ige Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Between
ZAMTRAC MANAGEMENT AND CITY INVESTMENT LTD APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. JOSEPH IDAKWO RESPONDENT(S)
RATIO:
DEFINITION OF PUBLIC DOCUMENTS
Under our laws, particularly Section 102 of the Evidence Act, Public documents are listed. These are:
(a) documents forming the official acts or records of the official acts of –
(i) the sovereign authority,
(ii) official bodies and tribunals, or
(iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) public records kept in Nigeria of private documents. Public documents are to be certified as required by the Evidence Act before they can be admitted in any proceeding. PER STEPHEN JONAH ADAH, J.C.A.
WHO MAY TENDER THE CERTIFIED TRUE COPY OF A PUBLIC DOCUMENT?
It is therefore well settled that any person who has a Certified True Copy of a document in his possession can tender it. The party may tender the document even though he was not a party to it. It is even trite law now that a counsel may tender a certified true copy of a document from the Bar. See the cases of: Anyakora v. Obiakor (1990) 2 NWLR Pt. 130 Pg. 52; Agagu v. Dawodu (1990) 7 All NLR 248; Okiki II v. Jagun (2000) 5 NWLR Pt. 655 Pg. 19 at 27 – 28, Paul Ordia v. Piedmont (1995) 2 SCNJ 175. In the instant case, the lower Court rejected a Certified True Copy of the ruling of a Magistrate tendered in favour of the appellant. Since no one has raised any other issues with the validity of the certification, the lower Court misinterpreted the law by rejecting the document because the witness was not a party or the maker of the document. The Certified True Copy of the ruling of a Magistrate Court is a public document and can only be placed before the lower Court if it was duly certified. Since it is duly certified, the lower Court was in error for not admitting it in evidence. PER STEPHEN JONAH ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja, in Charge No. FCT/HC/CR/9/2019, delivered on the 22nd June, 2020 and 24th September, 2020, Coram: D. Z. Senchi, J. Wherein the trial Court rejected the admission in evidence of the certified true copy of the ruling of the Magistrate Court, Wuse II and also refused to consider, and determine the Appellant’s Motion No. M/8687/2020.
The charge against the appellant was dated the 16th October, 2019 and filed on the 17th October, 2019.
The five count charges under which the appellant together with his co-accused were arraigned, are reproduced hereunder as follows:
Count 1:
That you, JOSEPH IDAKWO and ZAMTRAC MANAGEMENT AND CITY INVESTMENT LTD sometime in October, 2017 in Abuja within the jurisdiction of this Honorable Court entrusted with dominion over the landed property at plot 2398 A06 Cadastral Zone Maitama District, Abuja committed criminal breach of trust in respect of the said property when you sold part of the property to Suleiman Mohammed Chiroma in violation of paragraph3.2.6 of the Property Development Agreement made on 20th January, 2017 between Hajiya Halima Babangida and Zamtrac Management and City Investment Ltd and you thereby committed an offence contrary to and punishable under Section 312 of the Penal Code Law.
Count 2:
That you, JOSEPH IDAKWO sometime in October, 2017 in Abuja within the jurisdiction of this Honorable Court with intent to cause Suleiman Mohammed Chiroma to enter into contract with Zamtrac Management and City Investment Ltd for the sale of 1 unit of 4 Bedroom Luxury Terrace Duplex with Boys Quarters at 9 Yobe Close Maitama Abuja forged the signature of Aliyu Dasuki who is a director of Zamtrac Management and City Investment Ltd and purporting the signature to have been signed by Aliyu Dasuki and you thereby committed and offence contrary to Section 363 of the Penal Code Law and punishable under Section 364 of the same Law.
Count 3:
That you, JOSEPH IDAKWO sometime in October, 2017 in Abuja within the jurisdiction of this Honorable Court dishonestly used as a genuine a certain document titled: SALES AGREEMENT BETWEEN ZAMTRAC MANAGEMENT AND CITY INVESTMENT LTD AND SULEIMANM. CHIROMA which you knew to be a forged document and you thereby committed an offence punishable under Section 366 of the Penal Code Law.
Count 4:
That you, JOSEPH IDAKWO sometime in October, 2017 in Abuja within the jurisdiction of this Honorable Court with intent to cause Suleiman Mohammed Chiroma to enter into contract with Zamtrac Management and City Investment Ltd for the sale of 1 unit of 4 Bedroom Luxury Terrace Duplex with Boys Quarters at 9 Yobe close Maitama Abuja forged the signature of Hajiya Halima Babangida and you thereby committed an offence contrary to Section 363 of the Penal Code Law and punishable under Section 364 of the same Law.
Count 5:
That you, JOSEPH IDAKWO sometime in October, 2017 in Abuja within the jurisdiction of this Honorable Court dishonestly used as genuine a certain document bearing the forged signature of Hajiya Halima Babangida and also signed by Suleima M. Chiroma which document you knew to be forged and you thereby committed an offence punishable under Section 366 of the Penal Code Law. The appellant together with his co-accused entered a not guilty plea when the charges were read to them. Thereafter the matter went into full trial. In the course of the trial, the 1st Respondent amended its charge from five counts to six counts.
However, while cross examining PW1, the learned counsel for the appellant and 2nd Respondent sought to tender a Ruling of the Magistrate Court wherein the appellant was discharged and acquitted by the said Court following a No-Case Submission. Respondents counsel objected to the admissibility of the said Ruling and the same was upheld and the document was marked as Rejected.
Dissatisfied with the Ruling of the trial Court, the appellant appealed to this Court vide a Three Ground Notice of Appeal filed on the 13th November, 2020. The record of appeal was transmitted to this Court on the 16th November, 2020. On the 19th November, 2020 the appellant filed a Motion seeking for an order to stay proceedings of the trial High Court on Charge No. CH/ABJ/CR/982/2020: Federal Republic of Nigeria v. Joseph Idakwo& Anor.
In line with the rules of this Court, parties filed and exchanged their respective briefs of argument. Counsel for the appellant distilled three issues in the Appellant’s Brief of Argument dated and filed 16th November, 2020, thus:
1. Whether in view of the materials placed before the learned trial Judge, he was justified in rejecting a Certified True Copy of the Magistrate Court Ruling delivered on 21st February, 2020, on the ground that PW1 through whom it was sought to be tendered was not the maker. (Ground one of the Notice of Appeal)
2. Whether the learned trial Judge was right in deferring consideration and determination of the Motion on Notice No: M/8687/2020 to the conclusion of the proceedings in line with the provisions of SECTION 396(2) of the Administration of Criminal Justice Act, 2015, notwithstanding the mandatory provision of SECTION 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and SECTION 238 of the Administration of Criminal Justice Act, 2015. (Ground Two of the Notice of Appeal)
3. Whether deliberate refusal by the learned trial Judge to consider and determine one way or other, the Motion on Notice No: M/8687/2020 immediately same was entertained by him and his decision for the trial to proceed does not amount to double jeopardy within themeaning of SECTION 36 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), SECTIONS 238 and 277 of the Administration of Criminal Justice Act, 2015 which the said Motion sought to prevent. (Ground Three of the Grounds of Appeal)
In response, counsel for the 1st Respondent formulated two issues for the determination of this appeal in his 1st Respondent’s Brief of Argument dated and filed on the 4th December, 2020 and also deemed on the same date.
I shall adopt the issues as submitted by the appellant in considering this appeal. I now start with issue one.
Issue One:
This issue is – whether in view of the materials placed before the learned trial judge, he was justified in rejecting a Certified True Copy of the Magistrate Court’s Ruling delivered on 21st February, 2020, on the ground that PW1 through whom it was sought to be tendered was not the maker.
Learned counsel for the appellant while canvassing this issue submitted that by virtue of Section 6 of the Evidence Act, 2004 what governs admissibility of a document is its relevance to the case. Counsel relied on Ochuba v. Lagos State Agricultural Development Authority (2018) LPELR-45828 (CA).
Learned Counsel for the appellant further submitted contrary to the learned trial Judge’s position that the witness was not the proper person through whom the Ruling could be tendered Section 105 of the Evidence Act, 2004, provides that mere production of a certified True Copy of Public Document is admissible and it need not to be tendered through the maker. Counsel relied on Agagu v. Dawodu (1990) 7 NWLR Part 160, PAGE 56 particularly at page 69 Paras F-G.
In response, counsel for the 1st Respondent submitted that it is settled that evidence must be relevant before it is admissible. But a relevant evidence can nevertheless be excluded if it is inadmissible by operation of the law. Counsel relied on Kekong v. State (2017) 18 NWLR (Pt. 1598) P. 108; Isheno v. Julius Berger (Nig.) Plc (2008) LPELR-1544 (SC); Section 223 of the Evidence Act.
Learned counsel for the 1st Respondent further submitted that permitting such procedure of admitting a document for the purpose of cross examining a witness who knows next to nothing about the same is not only prejudicial but very unfair. The Rules of evidence do not allow a party to spring surprise or adopt unfair procedure against the opponent. The worst he said, is that PW1 did not make any input as witness in the trial that resulted in the ruling of the Magistrate Court. It was not as if PW1’s testimony had previously been disbelieved as she neither testified in the proceeding at the Magistrate Court nor was she shown to have held a different opinion on the evidence adduced at that trial. At best, she was a stranger to that document. As a stranger, we submit the Ruling constitutes a hearsay evidence against her for the purpose of cross examination and it is patently inadmissible. Counsel relied on Section 38 of the Evidence Act 2011; Section 14 and 15 Evidence Act 2011.
Under our laws, particularly Section 102 of the Evidence Act, Public documents are listed. These are:
(a) documents forming the official acts or records of the official acts of –
(i) the sovereign authority,
(ii) official bodies and tribunals, or
(iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) public records kept in Nigeria of private documents. Public documents are to be certified as required by the Evidence Act before they can be admitted in any proceeding. Sections104 and 105 of the Evidence Act clearly state as follows:
104. (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in Subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be scaled, whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called certified copies.
(3) An officer who by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
105. Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.The law makes it easy therefore, for a person who wants to tender in evidence a public document to so do upon the certification of the document. In the case of Kawu v. Minister FCT &Ors. (2016) LPELR – 41142 (CA), this Court per Mustapha, J.C.A., put the position of the law clearly as follows:
“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 Copy 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) 5NWLR 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.”
It is therefore well settled that any person who has a Certified True Copy of a document in his possession can tender it. The party may tender the document even though he was not a party to it. It is even trite law now that a counsel may tender a certified true copy of a document from the Bar. See the cases of: Anyakora v. Obiakor (1990) 2 NWLR Pt. 130 Pg. 52; Agagu v. Dawodu (1990) 7 All NLR 248;Okiki II v. Jagun (2000) 5 NWLR Pt. 655 Pg. 19 at 27 – 28, Paul Ordia v. Piedmont (1995) 2 SCNJ 175.In the instant case, the lower Court rejected a Certified True Copy of the ruling of a Magistrate tendered in favour of the appellant. Since no one has raised any other issues with the validity of the certification, the lower Court misinterpreted the law by rejecting the document because the witness was not a party or the maker of the document. The Certified True Copy of the ruling of a Magistrate Court is a public document and can only be placed before the lower Court if it was duly certified. Since it is duly certified, the lower Court was in error for not admitting it in evidence. This issue is therefore, resolved in favour of the appellant.
Issues Two and Three:
These issues are – whether the learned trial Judge was right in deferring consideration and determination of the Motion on Notice No: M/8687/2020 to the conclusion of the proceedings in line with the provisions of SECTION 396 (2) of the Administration of Criminal Justice Act, 2015, notwithstanding the mandatory provision of SECTION 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) and SECTION 238 of the Administration of Criminal Justice Act, 2015; and
Whether deliberate refusal by the learned trial Judge to consider and determine one way or other, the Motion on Notice No: M/8687/2020 immediately same was entertained by him and his decision for the trial to proceed does not amount to double jeopardy within the meaning of SECTION 36 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended), SECTIONS 238 and 277 of the Administration of Criminal Justice Act, 2015 which the said Motion sought to prevent.
Counsel for the appellant while canvasing these issues submitted that the learned trial Judge was under a legal duty as a judicial officer to determine the said Motion immediately after hearing of same instead of deferring his Ruling thereon to when the Criminal Proceedings is completed on the platform of SECTION 396 (2) of the Administration of Criminal Justice Act, 2015. He further submitted that by the decision of the learned trial judge deferring his Ruling on Motion No.: M/8687/2020, to later date, relying on the provision of the Administration of Criminal Justice Act, 2015, shows clearly that he relegated provision of SECTION 36 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to the background. Counsel relied on A.G. Abia State v. A. G. Federation (2002) 6 NWLR Part 763 at page 264 at page 479 Para. G. He further submitted that what the Section 36(9) FRCN 1999 (As Amended) seeks to prevent, is another trial of any person who has been tried and acquitted/convicted. Double jeopardy, therefore, starts from the moment an accused person is made to stand subsequent trial after he had been tried and convicted/acquitted over the same offences by a Court of competent jurisdiction. It is not until the accused person is subsequently convicted over the same offences that he has suffered double jeopardy but from the moment he is made to stand another trial. Consequently, once such a person has shown that he has been tried, and acquitted/convicted/pardoned. The Court before whom the issues are raised or shown to have risen must immediately determine the Motion raise such issues one way or the other before proceeding with the second trial.
Counsel prays this Honourable Court, for an order declaring and/or striking down SECTION 396 (2) of the Administration of Criminal Justice Act, 2015 as unconstitutional, null and void to the extent of its inconsistency with the provisions of Section 36 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). He argued that Section 396 (2) of the Administration of Criminal Justice Act, 2015 is an impediment to the Constitutional provisions of right against double jeopardy as provided in SECTION 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended). He relied on A. G. Abia State v. A. G. Federation (supra) @ page 479 Paras D-G. Learned counsel urged your lordship to allow the appeal and all the reliefs contained in the Notice of Appeal be granted as prayed.
In response, learned counsel for the 1st Respondent submitted that the lower Court predicted its decision to defer ruling on the appellant’s Motion on Notice to quash charge on SECTION 396(2) of the ACJA 2015 and the provision is part of the conscious innovations designed to promote the efficient management of criminal justice administration in Nigeria. Counsel relied on Destra Investment Ltd v. FRN (2018) 8 NWLR (1621) P. 335; Salik v. Idris (2015) All FWLR (Pt. 790) 1307 SC; Dalhatu v. Turaki & Ors (2003) LPELR-917 (SC).
Learned Counsel finally submitted that the lower Court acted pursuant to and enabling Act which is Section 396(2) of ACJA. The decision to defer ruling was not made arbitrarily but one which the lower Court acted based on a mandatory provision of the law. It is submitted that the allegation of dereliction duty cannot be levelled against the lower Court in the circumstances of this case. And we further submit that the invitation made to this Honourable Court to invoke Section 15 of the Court of Appeal Act, 2004, on the basis of the lower Court complying with the provision of an enabling legislation- ACJA is therefore without foundation. Counsel urged this Court to dismiss the appeal.
This is a sister case to the earlier case No: CA/A/CR/981/2020 and the issues raised are the same. The same consideration as in the first case applies to this case.
The appeal in this case based on the said consideration is hereby allowed. The orders as earlier made in the said sister case equally apply to this appeal.
For the avoidance of doubt, the Orders are as follows:
(a) The Ruling of the trial High Court delivered on the 22nd of June, 2020, which rejected the evidence the Certified True Copy of the Ruling of the Magistrate Court in Charge No: CR/10/2019, dated 21st February, 2020, by His Worship, E. D. Ebiwari, discharging and acquitting the 1st Appellant is hereby set aside.
(b) That the lower Court shall admit into evidence, the Certified True Copy of the Ruling of the Magistrates Court in Charge No: CR/10/2019 dated 21st February, 2020.
(c) The decision of the trial High Court of 24th September, 2020 which refused to consider and determine the Appellant’s Motion No: M/8687/2020 until the time of delivery of final judgment purportedly in line with Section 396(2) of the Administration of Criminal Justice Act, 2015, is hereby set aside.
(d) The lower Court is hereby ordered to consider and deliver Ruling in respect of Motion No: M/8989/2020, before taking further steps in the proceeding.
PETER OLABISI IGE, J.C.A.: I agree.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, STEPHEN JONAH ADAH, J.C.A. and I am in agreement with his reasoning and conclusion arrived at therein.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the advantage of a preview of the lead judgment delivered by my learned brother, STEPHEN JONAH ADAH, J.C.A.
I agree entirely with the reasoning and conclusion reached and abide by the orders made therein.
I make no order as to costs.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, STEPHEN JONAH ADAH, J.C.A.
The reasoning and conclusion reached in the lead judgment by my noble lord are agreed firmly by me with nothing useful to add thereto. I too found the appeal with merit and it is allowed. The decision of the trial Court is hereby set aside. I abide by the grant of the reliefs contained in the lead judgment and adopt the orders therein as mine.
Appearances:
O. A. Dada, Esq. For Appellant(s)
Benjamin Manji Esq.- for 1st Respondent
Y. C. Maikyau, SAN, with him, H. A. Matunji Esq. and O.O. Amadi Esq.- for 2nd Respondent. For Respondent(s)