SHETTIMA & ORS v. CUSTOMS
(2021)LCN/15585(CA)
In The Court of Appeal
(GOMBE JUDICIAL DIVISION)
On Thursday, November 25, 2021
CA/G/424/2019
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
1. MUSTAPHA SHETTIMA 2. UMAR IMAM GANA 3. HAJJA BINTU U.K. 4. BABA GANA SHETTIMA APPELANT(S)
And
ALHAJI BUKAR CUSTOMS RESPONDENT(S)
RATIO DECIDENDI
PUBLIC DOCUMENTS
They are defined by Section 102 of the Evidence Act, 2011 as follows –
“102. The following 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 JUMMAI HANNATU SANKEY, J.C.A.
ADMISSIBILITY OF PUBLIC DOCUMENTS
Thus, once a document has been shown to be the original of a public document or a certified true copy of a public document, it is admissible in evidence. In fact, a party can tender a certified true copy of a public document although he was not a party to it; also Counsel can tender it even from the Bar -Maranro V Adebisi (2007) LPELR-4663(CA); Daggash V Bulama (2004) 14 NWLR (Pt. 892) 144, 187; Okiki II V Jagun (2000) 5 NWLR (Pt. 655) 19, 27-28.
The conditions precedent to the admissibility of public documents are set out in Section 104 of the Evidence Act, 2011. It provides –
104. (1) Every public officer having custody of a public document which any person has a right to inspect shall give that person on demand a copy of it 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 official title, and shall be sealed, 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 custody of such documents within the meaning of this section.” PER JUMMAI HANNATU SANKEY, J.C.A.
TENDERING OF PUBLIC DOCUMENTS
The law is settled that, public document must not necessarily be tendered by the maker as it can be tendered from the bar and the original of a public document can be tendered as the primary evidence of the public document. See Abdullahi vs FRN (2016) LPELR- 40101 (SC); Kassim vsThe State (2018) 4 NWLR (pt 1608) 20. PER EBIOWEI TOBI, J.C.A.
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Borno State High Court in Suit No. BOHC/MG/CV/47/2009 delivered on September 16, 2019 by B. Karumi, J.
The Appellants, as Claimants before the trial Court, claimed jointly and severally for a declaration of title to four separate plots of land belonging to each of the Claimants, known as Plots 857, 858, 859 and 860, covered by four separate Grants of Rights of Occupancy Nos: BO/42771/4; BO/42772/4; BO42773/5; and BO/42774/5, all dated January 30, 2001.
The 1st Appellant as 1st Claimant, testified as CW1 on 16-09-19. During the course of his testimony on behalf of the 2nd to 4th Claimants (who are his siblings) and himself, adopted his witness statement of oath which was admitted as his oral evidence in Court. Thereafter, he referred to certain paragraphs of the statement relating to the four letters of Grants of Rights of Occupancy. The said documents had been duly front-loaded. At that point, Counsel tendered the documents in evidence in proof of the Claimants’ title.
Counsel for the Respondent, then Defendant, opposed the application principally on the ground that the Claimant was not the maker of the Certificates of Occupancy of the 2nd to 4th Claimants and therefore he could not be cross-examined on the documents. He also argued that the 1st Appellant, as a party interested, the documents could not be tendered through him pursuant to Section 83(1) (a) of the Evidence Act, 2011.
The learned trial Judge agreed with the Respondent and ruled, upholding the objection and rejecting the application to admit the letters of Grant of Rights of Occupancy of the 2nd to 4th Claimants in evidence. His reasons were as follows (page 89 of the Record of Appeal):
“I have considered the objection as well as the reply. What is apt, that the document sought to be tendered is relevant or not; or that whether it is pleaded or not. It is my view that though the document sought to be tendered is relevant, but the witness through whom the document sought to be tendered needs to state why the other holders cannot do that. As such proper foundations need to be led as to their whereabout. Accordingly, I agree with the defendant’s counsel and sustain the objection. I admit the “Approval for the grant of a Right of Occupancy” bearing the name of Mustapha Shettima bearing Nos. BO/42771/4 in evidence and marked (sic) it as Exhibit “A”. While certificates Nos. BO/42772/5 of (Babagana Shettima), BO/42773/5 of Hajja Bintu UK, BO/42773/4 of Umar Imam Gana are rejected and so it should be so marked.”
Sorely aggrieved by this Ruling, the Appellants sought the leave of the lower Court to file an appeal, which leave was duly granted on 30-09-19. They proceeded to file their Notice of Appeal on the same date wherein they complained on two grounds as contained in the Notice of Appeal. They thereafter sought the following reliefs from this Court:
a) “An Order setting aside the ruling of the lower Court delivered on 16th September, 2019 which refused to admit the statutory grants of Right of Occupancy of the 2nd, 3rd and 4th Appellants (BO/42772/4, BO/42773/5 and BO/42774/5.
b) An order that the original grants of the Right of Occupancy belonging to the 2nd, 3rd and 4th Claimants/Appellants be admitted in evidence as Exhibits in the matter.”
Briefs of argument were duly filed and exchanged by the Appellants and the Respondent in line with the Rules of this Court, with the Appellants’ Brief settled by Marcel Oru, Esq., and the Respondent’s Brief settled by G. Yunusa Esq. The Appeal was heard on October 27, 2021 with learned Counsel for the respective parties adopting the submissions in their respective Briefs of argument and urging the Court in line with the prayers stated therein.
Learned Counsel for the Appellants framed one issue for the determination of the Appeal, thus:
“Whether in the circumstances of this case the learned trial Judge was right not to admit the 2nd 3rd and 4th Appellants letters of grant of the right of occupancy in evidence. (Grounds 1 and 2)”
The Respondent readily adopted this issue for the determination of the Appeal. It is therefore equally adopted by the Court in determining the Appeal.
ARGUMENTS
In arguing the Appeal, learned Counsel for the Appellants submits that there is a difference between the admissibility of a document and the weight to be attached to it. Different principles of law are also applicable to the consideration of each case. He argues that whereas the weight to be attached to a document deals with the probative effect of the document, admissibility deals with the power which the Court has to receive the document. Reliance is placed on Olowolaramo V Umechukwu (2003) 2 NWLR (Pt. 805) 537, 554, A-D; Int. Merchant Bank (Nig) Ltd V Dabiri (1998) 1 NWLR (Pt. 533) 284, 295.
Counsel submits that the documents sought to be tendered were original copies of public documents which are admissible in evidence. He relies on Okeke V AG Anambra State (1992) 1 NWLR (Pt. 215) 60, 80; Kassim V State (2018) All FWLR (932) 733, 758-760; 762-763. The documents were duly signed and certified and so this obviated the necessity of calling witnesses to prove custody or to verify the documents – Agagu V Mimiko (2009) All FWLR (Pt. 462) 112.
Counsel submits that the two categories of public documents admissible in evidence are the original document (without the need for certification), and the certified true copy of the document. He also relied on a host of decided cases to submit that primary evidence of a public document is not only admissible in evidence, it is indeed the best admissible evidence of the document: PDP V INEC (2014) 17 NWLR (Pt. 1437) 525; Haladu V State (2015) LPELR-26002(CA) 1, 12.
Finally, reliance is placed on Ahmadu V Solomon (2010) LPELR-3658(CA) 1, 10-12, C-E, specifically on the admissibility of a Certificate of Occupancy.
In addition, Counsel submits that what governs admissibility is relevance and pleadings – Fadlallah V Arewa Textiles Ltd (1997) 7 SCNJ 202, 217. He argues that the documents were pleaded and relevant, and were issued to the Appellants in respect of the land in dispute. They can therefore be tendered through the 1st Appellant who is suing jointly and severally with the other Appellants. Counsel finally urged the Court to allow the Appeal, set aside the Ruling and admit the documents in evidence.
In response, learned Counsel for the Respondent submits that the law is that documents tendered in evidence by a witness who is not the maker and may not be able to answer questions thereon, will be expunged. He argues that the decision to reject the documents in evidence on the ground that the 1st Appellant is not the maker, is correct because admitting them in evidence will prejudice the right of the Respondent to cross-examine the holders of the Rights of Occupancy. Where the documents are not the subject of a cross-examination, they will have no probative value – Buhari V INEC (2008) 19 NWLR (Pt. 1120) 246, 415, A-B.
Counsel further submits that the objection to the admissibility of the documents was rested on Section 83(3) of the Evidence Act, 2011 on the ground that the 1st Appellant is an interested party. He relies on Ladoja V Ajimobi (2016) 10 NWLR (Pt. 1519) 87, 140, A-E, for the definition of an interested person and contends that the 1st Appellant has a personal interest in the outcome of the case and so the documents were rightly rejected. Finally Counsel urged the Court to dismiss the Appeal.
In a brief Reply on point of law, learned Counsel for the Appellants addressed the issues of law in respect of whether the documents could be tendered through the 1st Appellant who was not the maker; the admissibility of public documents; and the right of cross-examination of the CW1. Counsel also distinguished the facts of this case from those in Buhari V INEC (supra).
In respect of Section 83(3) of the Evidence Act (supra), Counsel submits that it is not applicable to the instant case as the conditions for its applicability are absent. Counsel further submits that the case of Ladoja V Ajimobi (supra) is not applicable to the facts of this case as it is in respect of the admissibility of documents made by a ‘person interested’ when proceedings were pending or anticipated.
FINDINGS
The documents sought to be tendered in evidence which were rejected, are admittedly public documents. They are the original copies of letters of Grant of Rights of Occupancy to the Appellants. There is no dispute on this. Public documents are easily identifiable. They are defined by Section 102 of the Evidence Act, 2011 as follows –
“102. The following 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 Grant of a Right of Occupancy is a public document. Thus, its original copy is admissible in evidence without condition. However, a copy of the original, made via a mechanical process such as a photocopier, can only be tendered and admitted in evidence where it is duly certified as a true copy of the original.
It is noteworthy that, in law, a certified true copy is as good as the original and is presumed under the Evidence Act to be regular until the contrary is proved. Also, a certified copy is admissible without proof – Okikiade V Alalade (LPELR-7967(CA); Odubeko V Fowler (1993) 7 NWLR (Pt. 308) 637.
While it is generally desirable to lay a foundation before tendering a document in evidence, this does not apply as a matter of necessity to an original copy of a public document or the certified true copy of a public document. The argument therefore that no proper foundation was laid and that the document was not tendered through its maker which by the way is the public official who issued the document, does not accord with the law. Thus, once a document has been shown to be the original of a public document or a certified true copy of a public document, it is admissible in evidence. In fact, a party can tender a certified true copy of a public document although he was not a party to it; also Counsel can tender it even from the Bar -Maranro V Adebisi (2007) LPELR-4663(CA); Daggash V Bulama (2004) 14 NWLR (Pt. 892) 144, 187; Okiki II V Jagun (2000) 5 NWLR (Pt. 655) 19, 27-28.
The conditions precedent to the admissibility of public documents are set out in Section 104 of the Evidence Act, 2011. It provides –
104. (1) Every public officer having custody of a public document which any person has a right to inspect shall give that person on demand a copy of it 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 official title, and shall be sealed, 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 custody of such documents within the meaning of this section.”
In Emeka V Chuba-Ikpeazu (2017) LPELR-41920(SC) 61-65, F-C, the Supreme Court, per Nweze, JSC, held:
“The whole essence of the Court’s insistence on the scrupulous adherence to the above certification requirement of public documents is to vouchsafe their authenticity vis-a-vis the original copies, to third parties… That explains why, in the absence of the original document, only such properly certified copies are admissible as secondary copies of public documents but no other kind of secondary evidence….
Thus, although the original copies of public documents themselves are admissible, … the only pieces of secondary evidence in respect of the original of such public documents that are admissible are the certified copies thereof but no other secondary evidence… Put differently, in the absence of the original documents themselves, only such properly certified copies are admissible as secondary copies of such public documents “but no other kind of secondary evidence.” (Emphasis supplied)
In the circumstances, this Court cannot help but agree that the requirement of laying a foundation and for the Grants of Rights of occupancy to be tendered through their makers, which is the basis for the rejection of the documents, is a strange one that is alien to the law. It does not apply to the facts of this case since the documents sought to be tendered were original copies of public documents themselves. The trial Court was therefore in error when it rejected the documents which had been duly pleaded and evidence led thereon in paragraphs 5 and 6 of the witness statement on oath. The trial Court was also in error when it treated the public documents as if they were private documents. The documents were both relevant and admissible in evidence, relevance being the hallmark of admissibility.
The applicable provision in respect of the facts of this case are Sections 85 and 86 of the Evidence Act. For ease of reference, they provide –
“85. The contents of documents may be proved either by primary or by secondary evidence.
86. (1) Primary evidence means the document itself produced for the inspection of the Court.” (Emphasis supplied)
Thus, the original copies of the Grants of Rights of occupancy, being public documents under Section 102 of the Evidence Act, 2011 were admissible in evidence. They are documents prepared by public officers who issued same to the Appellants. It is therefore not a requirement of the law that their makers should be the proper persons through whom the documents can be tendered. All that the law requires is that such public documents be tendered in their original form or through the certified copies of same. This can be done even by Counsel from the Bar by consent or through any witness. This is the purport of the decided authorities on the subject.
See the case of Uzoma V Asodike (2009) LPELR-8421(CA) 12, B-F, where Eko, JCA (now JSC) held:
“On the contrary, it has been held in a number of cases that a duly certified public document would be admissible in evidence without laying foundation and the issue of proper custody and related matters will not arise. See Anatogu V Iweka II (1995) 2 SCNJ 1; Agagu V Dawodu (1990) 7 NWLR (Pt. 160) 56 (CA). It can even be tendered from the Bar by or through Counsel who is not even a party in the case. Isibor V The State (1970) 1 All NLR 248; Magaji V Nigerian Army (2005) All FWLR (Pt. 257) 1511; Ogbunyinya V Okudo (1979) 1 ANLR 10. In the similar vein a witness who is not a party to a public document can tender the duly certified true copy of the said public document. SeeMaranro V Adebisi (2008) 26 WRN 182, 200; Okiki II V Jagun (2000) 5 NWLR (Pt. 655) 19, 27-28. (Emphasis supplied)
See also Maranro V Adebisi (2007) LPELR-4663(CA); Anatogu V Iweka II (1995) 8 NWLR (Pt. 415) 547, 572.
The law in relation to the question of the admissibility of a document in evidence is that admissibility is different from the weight or probative value that may be placed on the document. Generally therefore, three main criteria govern the admissibility of a document in evidence, namely:
1. Is the document pleaded?
2. Is it relevant to the inquiry being tried to the Court?
3. Is it admissible in law?
See Abo V Aanyam (2017) LPELR-42453(CA) 7, B-E; Ekiti State Gov. V Abe (2016) LPELR-40152(CA) 29, A-F; PDP V Usman (2015) LPELR-26032(CA); UTC (Nig) Plc V Lawal (2013) LPELR-23002(SC) 31, D-F; Okonji V Njokanma (1999) LPELR-2477(SC) 14, C-F.
Documentary evidence can be admitted in evidence in the case of a public document through any witness and from the Bar; and even a private document by the consent of the parties without the presence of the makers of the document. Thus, the original of a public document or a certified true copy of a public document need not be tendered by the maker of the document. Once it is original or once certified and from proper custody (in the case of a copy), it can be called in or tendered by any body – Akpan V Etim (2017) LPELR-43728(CA); Onjeh V Mark (2015) LPELR-25974(CA) 42-43, A-B.
In this regard, the Supreme Court inKassim V State (2017) LPELR-42586(SC) 35, A-E per Kekere-Ekun, JSC held:
“With regard to the admissibility of Exhibits 1, 2 & 3 and the contention of learned Counsel for the appellant that only certified true copies of public documents are admissible in evidence and therefore the original documents tendered in this case are inadmissible. I adopt as mine, the exhaustive analysis of the relevant provisions of the Evidence Act, 2011 carried out by my learned brother, Ejembi Eko, JSC in the lead Judgment. In addition, I refer to a similar exercise carried out by me in the recent case of Uwua Udo V The State (2016) 2-3 SC (Pt. III) 29 @ 47-54 wherein I held that a public document tendered in its original form is admissible in evidence by virtue of Sections 85 and 86(1) of the Evidence Act, 2011. I therefore hold Exhibits 1, 2 & 3 were properly admitted in evidence in this case.” (Emphasis supplied)
Based on the above, I find that the learned trial Judge was in error when it rejected the Letters of Grants of Rights of Occupancy of the 2nd, 3rd and 4th Appellants in evidence and ordered them to be so marked.
Accordingly, I resolve the issue for determination in favour of the Appellants and against the Respondent.
Having so held as above, the Appeal per force succeeds. It is allowed.
Accordingly, the Ruling of the Borno State High Court delivered on September 16, 2019 is hereby set aside.
In its place, the originals of the Certificates of occupancy Nos: BO/42774/5 in the name of Babagana Shettima; BO/42773/5 in the name of Hajja Bintu UK, and BO/42772/5 in the name of Umar Imam Gana, which were tendered and rejected, are hereby admitted in evidence and marked Exhibits ‘B’, ‘C’ and ‘D’ respectively.
I award costs in the sum of N100,000.00 in favour of the Appellants and against the Respondent.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading before now the draft of the judgment just delivered by my learned brother JUMMAI HANNATU SANKEY JCA. I fully agree with the reasoning and conclusion therein. My learned brothers exposition of the law on admissibility of public documents under the Evidence Act 2011 is unassailable. I have nothing more to add.
I agree that the ruling of Borno State High Court delivered on 16/9/2016 should be set aside. I abide by the consequential orders in the leading judgment.
EBIOWEI TOBI, J.C.A.: My learned brother afforded me the privilege of reading in draft the lead judgment just delivered. I agree absolutely with the reasoning and the conclusion reached therein. The main thrust of the appeal is on whether the lower Court was right in rejecting the originals of the certificate of occupancy of the 2nd, 3rd and 4th Appellants. The lower Court in my opinion did not appreciate the fact which has been established beyond all doubt that, public document as distinct from private document must not necessarily be tendered by the maker. Private documents within the definition of the law is defined as contrast to Public document. Section 103 of the Evidence Act defined private documents as any document which does not fall within the definition of public document. All the requirement for the maker to tender private document is understandable as private documents are private to the maker and therefore it stands to reason that only the maker of the document would be in a position to tender same and be cross examined on it. The name private is reflective of the peculiar nature of same.
Public documents on the other hand as distinct from private are documents which are open to the public. The Evidence in Section 102 defined public documents as documents that forms the official act or records of the official act the sovereign authority, official bodies and tribunal, public officers whether in Nigeria or elsewhere. Then definition also include public record kept of private documents. See Onyekwuluje & Anor vs Benue State Govt & Ors (2015) LPELR-24780 (SC); Onwuzurike vs Edoziem & Ors (2016) 1-2 S.C. (pt iv) 25; PDP vs INEC & Ors (2014) LPELR-23808 (SC). The documents that the lower Court rejected were all public documents to all intent and purpose. The Certificate of Occupancy is a public document as it is the official act of official bodies and indeed the sovereign. This is a document issued by the Government or its agency that gives title of a land to a person. If this is not a public document, I wonder what it is.
Having established that the Certificate of Occupancy Nos: BO/42774/5, BO/42773/5 and BO/42772/5 are public documents, the next question is whether, they must be tendered by the makers. The law is settled that, public document must not necessarily be tendered by the maker as it can be tendered from the bar and the original of a public document can be tendered as the primary evidence of the public document. See Abdullahi vs FRN (2016) LPELR- 40101 (SC); Kassim vsThe State (2018) 4 NWLR (pt 1608) 20.
The lower Court was wrong therefore to have rejected the certificate of Occupancy of the 2nd, 3rd and 4th Appellants. This appeal is allowed and I join my learned brother J. H. Sankey, JCA in making the rejected documents exhibits ‘B’, ‘C’ and ‘D’.
I abide by the order of cost.
Appearances:
S.A. Mustapha, Esq. holding the brief of M.E. Oru, Esq. For Appellant(s)
S.M. Gimba, Esq. holding the brief of G. Yunusa, Esq. For Respondent(s)
