Suleiman Bolakale Salami V. Alhaji Abdulrahaman Sule Ajadi (2007)

LawGlobal-Hub Lead Judgment Report

HELEN MORONKEJI OGUNWUMIJU, J.C.A.

This is an interlocutory appeal by the Appellant – who was the Defendant at the lower court against two rulings of Hon. Justice J. F. Gbadeyan of the Kwara State High Court sitting at Ilorin delivered on 14th March, 2005. The facts which led to this appeal are as follows:

The Respondent as Plaintiff in the lower trial court claimed against the Appellant as Defendant in his amended Statement of Claim filed on 21/01/2003 as follows:

“1. A DECLARATION that the Defendant, not being a member of the Plaintiff’s Baale family of Sapati-Ile is not entitled to aspire to be or be installed/appointed as the Baale of Sapati-Ile, Asa Local Government Area of Kwara State.

2. A DECLARATION that the stool of Baale Sapati-Ile is not vacant as the Plaintiff is the valid and subsisting baale of Sapati-Ile.
3. AN ORDER of perpetual injunction restraining the Defendant from parading or holding himself out as the Baale of Sapati-Ile or purporting to perform the functions of the Baale of Sapati-Ile.”

Pleadings were filed, issues joined and the trial commenced. After calling four witnesses, the Respondent closed his case on 1/6/2004. From the pleadings and evidence before the court, the parties joined issues on the person entitled to ascend the stool of Baale of Sapati-Ile and whose appointment was approved by the Ilorin Emirate Council. The Appellant opened his defence on 13/7/2004 and sought to tender through D.W.3 two documents (a) Photocopy of Minutes of Meeting of Ilorin Emirate Council held on 25/10/94. (b) Original copy of a letter dated 21/2/2005 written by Asa Local Government to the Appellant.

The Respondent objected to the admissibility of the photocopy of the minutes of Ilorin Emirates Council on the ground that it ought to have been certified by the Ilorin Emirate Council who has custody of the original copy. He also objected to the admissibility of the original copy of the letter written by Asa Local Government on the ground that it was made during the pendency of the suit and not covered by the pleadings of either party. These objections were upheld by the court and both documents were rejected in evidence and so marked.

Under cross-examination, D.W.3 stated that the signatories to Exhibit 9 put the names of their compounds in the same; and that there were no Easa, Ikolaba, Elemoso and Baba Egbe compounds on Exhibit 9.

After the conclusion of cross-examination, the Appellant’s counsel sought to ask whether there was any difference between compound and title to which the Respondent’s counsel objected on the ground that the issue does not arise from the cross-examination and there was nothing to clear by way of re-examination. The court also upheld the objection and disallowed the question. The Appellant’s counsel thereafter filed notice and grounds of appeal against these interlocutory rulings of the lower court. Briefs were filed and thereafter adopted by counsel on 3/10/2007.

The Appellant’s counsel identified two issues for determination which I will also adopt in the consideration of this appeal. They are set out below:

“1. Whether or not the learned trial judge was right in rejecting the evidence the Certified True Copy of the Minutes of Meeting of the Ilorin Emirate Council of 26/ 10/94 and the original copy of the letter dated 21/3/2005 from Asa Local Government Area to the Appellant both sought to be tendered through D.W.3.

2. Whether or not the learned trial judge was right in refusing to allow the Appellant’s counsel to re-examine D.W.3 on issues raised by the Respondent’s counsel during his cross-examination of D.W.3.”

Issue One

Issue One is whether the trial judge was right to have rejected the documents sought to be tendered by D.W.3. Learned Appellant’s counsel Mr. Salman Jawondo submitted that the learned trial judge was wrong to have rejected the Certified True Copy (C.T.C.) of the Minutes of Meeting of the Emirate Council of 26/10/94 on the ground that the document was not Certified by the proper authority and the document could not be tendered through D.W.3 as he is a stranger to the document. He also argued that the learned trial judge was also wrong to have rejected the original copy of the letter dated 21/2/2005 from Asa Local Government Area to the Defendant/Appellant in his capacity as the Baale of Sapati-Ile on the grounds that the letter was not pleaded and was made during the pendency of this suit with the aim of buttressing the case of the Appellant.

Learned Appellant’s counsel argued that the minutes of the meeting of the Ilorin Emirate Council which is a public institution is a public document secondary evidence of which requires certification to be admissible in court. He submitted that by the combined effects of S.39, 109, 111 and 112 of the Evidence Act not only the institution which makes the document has monopoly of certification.

Learned Appellant’s counsel argued further that Exh. D18 which was rejected was forwarded to Asa Local Government Area by the Ilorin Emirate Council. The document having been received and kept in its records by Asa Local Government it forms part of the records of the Asa Local Government. Thus both the Ilorin Emirate Council which originated the minutes and Asa Local Government which maintains and keeps a copy of the minutes in their records in the course of their official interactions can issue a Certified True Copy of the minute by the combined effect of S.39, 109, 111 and 112 of the Evidence Act. Learned counsel cited Daggah v. Ibrahim (2004) FWLR Pt. 212 Pg. 106 at 1701 and 1710. He also argued that D.W.3 though a stanger to Exh. D18 is competent to tender the minutes of the meeting of the Ilorin Emirate Council as custody goes only to the weight to be attached to the document and not its admissibility. He cited Torti v. Ukpabi (1984) 1 SC at 392; Agagu v. Dawodu (1990) 7 NWLR Pt. 160 Pg. 56; Okiki v. Togun (2000) 5 NWLR Pt. 655; Anatogu v. HRH Igwe Eweka II (2004) 47 WRN 1 at 24. In his argument against the above proposition of learned Appellant’s counsel, Mr. K.B.A. Badmus the Respondent’s counsel argued that even though Exh. D18 (rejected) was pleaded and relevant to the inquiry before the court, its production was not done by the Secretary of the Ilorin Emirate Council. Also for it to be admissible under S.111 of the Evidence Act, there must be evidence on the face of the document that legal fees had been paid for it to be certified as a copy of the original and the official title of the person who subscribed to the certification must be shown on the face of the document.