James Nwannukwu Kerri V. Ezunaka Brothers Enterprises Limited & Ors. (2003)

LawGlobal-Hub Lead Judgment Report

JOHN AFOLABI FABIYI, J.C.A.

This is an appeal against the ruling handed out by Nwizu, J., sitting at the High Court of Justice, Onitsha in Anambra State of Nigeria on 6th March, 2002. In the said ruling, the learned trial Judge sustained the admissibility of the photocopy of a certified true copy of a registered Deed of Conveyance tendered on behalf of the 1st Respondent as plaintiff at the lower Court.

At the on-set, the 1st Respondent herein, as plaintiff at the lower court, initiated an action against the 2nd, 3rd, 4th and 5th defendants/respondents. The Appellant applied to be joined along with his brothers – Philip Chukwuka Kerri and Francis Kerri as co-defendants. The application was granted by the Trial Court on 25th January, 2000. Thereafter, the Appellant filed a statement of defence cum counter claim wherein he appears to be contending the disposition of their family property situate at No.32 New Market Road, Onitsha to the 1st Respondent prior to their incorporation by his elder brothers alienated the said property without his consent, knowledge and/or information. He said he has been living and still lives outside Nigeria.

Upon completion of pleadings, hearing commenced in earnest on 5-2-2002. Mr. G.E. Ezeuko, SAN, Senior Counsel for the Plaintiff, attempted to put in evidence the photocopy of a Certified true copy of a Deed of Conveyance which had been pleaded by both parties. P.W.1. at the lower Court said he looked for the original of the document to no avail. Mr. Nnamdi Ibegbu, SAN, raised serious objection to the admissibility of the stated document. The learned trial Judge was variously addressed by both senior counsel at will.

In his reserved ruling handed out on 6-3-2002, the learned trial Judge over-ruled the objection and admitted the photocopy of the certified true copy of a Deed of Conveyance – a public document as Exhibit ‘B’. The stance taken by the learned trial Judge riled the Appellant who has, as a result, appealed to this Court regarding ‘the whole decision’. One ground of appeal accompanied the Notice of Appeal.

As it should be, the lone issue for determination formulated on behalf of the Appellant reads as follows:

“Is the photocopy of a certified true copy of a public document admissible?”

I shall right away reproduce the issue for determination as couched on behalf of the Plaintiff/Respondent as clearly manifest on page 2 of the Respondent’s Brief of Argument. It reads thus:

“Whether a photocopy of a certified true copy of a Deed of Conveyance can be admitted in evidence as exhibit since the original certified copy of the said Deed of Conveyance could not be found”.

Arguing the sole issue formulated on behalf of the Appellant, Senior counsel, at the on-set, observed that there is no provision in the Evidence Act for the admissibility of secondary evidence of a certified true copy of a public document. He referred to the cases of Egbue v. Araka (1996) 2 NWLR (Pt.433) 688 at 703; Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799 at 808; and lastly Nzekwu v. Nzekwu (1989) 2 NWLR (Pt.373) 404 which Senior counsel strongly feels over-ruled the decision in Daily Time of Nigeria v. F.R.A. Williams (1986) 4 NWLR (Pt.36) 526 at 528.

Senior counsel opined that the learned trial Judge was wrong to have admitted a photocopy of a certified true copy of the Deed of Conveyance as Exhibit ‘B’. He strongly contended that the fact that the Appellant relied upon it in his pleadings is no reason to admit an inadmissible document in evidence. He observed that parties by consent cannot make an inadmissible document admissible. He urged that Exhibit ‘B’ be declared inadmissible and should be marked ‘rejected’ accordingly.

On behalf of the Respondent, learned counsel maintained that the issue before the Supreme Court in the cases of Nzekwu v. Nzekwu and Onobruchere v. Esegine cited by the Appellant is distinguishable from the instant appeal which concerns the admissibility of a photocopy; not merely of a copy of a public document but that of a certified true copy. The copy sought to be tendered is a photocopy of an already certified true copy of a Deed of Conveyance with all the requisite endorsements thereon. He relied on the decisions in Daily Times of Nigeria v. F.R.A. Williams (supra); Raymond Iheonu v. Simon Obiukwu (1994) 1 NWLR (Pt.322) 594. He urged that the appeal be dismissed. He felt that necessary foundation was laid before Exhibit ‘B’ was tendered and admitted.

In reply, Appellant’s counsel felt that the circumstances in the case of Iheonu v. Obiukwu are not on all fours with those in the instant appeal. He attempted to make a distinction between a certified copy of a court process which he felt the court might have taken judicial notice vide Section 74(1)(e) and (i) of the Evidence Act and certified true copy of a registered Deed of Conveyance.

Learned counsel further submitted that no Law permits the laying of any foundation in order to tender a photocopy of a certified true copy of the Deed of Conveyance as Exhibit ‘B’. He referred to Anatogu v. Iweka II (1995) 8 NWLR (Pt.415) 547 at 572; Ogbunyiya. v. Okudo (1979) 6-9 S.C. 32 at 43; Section 97(1) (e) and (f) Evidence Act, 1990.