Oba Gabriel Adekunle Aromolaran V. Dr. (Rev.) Roland Olapade Agoro (2014)
LAWGLOBAL HUB Lead Judgment Report
SULEIMAN GALADIMA, J.S.C.
This appeal is against the judgment of Court of Appeal, Ibadan Division, delivered on the 9th day of April, 2003, which confirmed the judgment of Oyo State High Court delivered on the 30th day of September, 1997.
The facts relevant to the case are simple. The respondent as plaintiff complained of a libelous publication against him by the appellant as defendant, in a letter dated 12th August, 1984 written and sent to the then Military Governor of Oyo State, Colonel Oladayo Popoola admitted as Exhibit “p7” at the trial, pleaded in paragraph 3 of the statement of claim dated 18th March, 1992. The pivot upon which the respondent rested his case reads thus:
“The certificate which he carries about now was forged and was not the certificate issued to him just as Olapade Agoro claims that he has B.Sc (Engineering) and MSc. (Engineering) when in actual fact he has never seen the inside of any university anywhere in the world. His academic credentials such as Certificate and Transcripts should be probed by the NSO and Interpol to establish their genuiness.”
Both parties pleaded the said Exhibit P.7 and sought reliance on it at the trial. The respondent herein caused a subpoena Duces Tecum Ad Testificandum to issue on the official of the Oyo State Ministry of Chieftaincy Affairs Governors’ office to come to court with a certified True copy of the Exhibit and also to give evidence on same. Strange enough the 2nd witness of the plaintiff came with a different version of Exhibit P.7 which the trial court admitted as “Exhibit P.1″. In view of the distasteful conduct of this witness, the respondent thought he was trying to suppress a vital documentary evidence which is germane and fundamental to his case. His counsel accordingly applied to the learned trial judge who gave his leave that the witness be treated as hostile under section 207 of the Evidence Act now Section 231 of the amended 2011 Evidence Act.
The appellant did not give evidence in support of his pleading at the trial. It should be noted however, that right from onset he pleaded specifically at page 17 of his Further Amended Statement of Defence that Exhibit P.7 was a forgery.
The respondent’s counsel proffered his address while the appellant’s counsel declined to address the Court on the matter. In his judgment the learned trial judge granted the claim and awarded N2,500,000 (Two Million, Five Hundred Thousand Naira) general damages to the respondent. He also granted the injunction sought by the Respondent.
Dissatisfied, the appellant appealed to the Court of Appeal Ibadan Division which dismissed the appeal with costs. Not satisfied with the judgment appellant has further appealed to this court.
His Further Amended Notice of Appeal containing 12 grounds was deemed filed on 30/9/2014. In his Further Amended brief of argument deemed filed on 30/9/2014, he distilled the following six issues for determination:
‘3.01. Whether the judgment of the Court of Appeal can be allowed to stand in the face of the obvious conflict with the decision of the Supreme Court in the case of ARAKA V. EGBUE reported in (2003) 17 N.W.L.R Part 843 and other decided cases where it has been held that only certified copy of a public document is admissible as secondary evidence as provided for by Section 97 (2) of Evidence Act of 1990. Covers Grounds 1, 2 & 3.
3.02. Whether the Court of Appeal is not in error by not allowing an expert to determine the genuineness of the signature on the two documents as required by Section 100 of the Evidence Act instead of resorting to a telephone directory which is inconclusive and the authenticity of the document is in the issue. Covers grounds 4, 5 and 6.
3.03. Whether the Lower Court was in error when it affirmed the hasty proceedings of the trial Court Cover ground 7.
3.04. Whether the Lower Court was right in holding that Exhibit P7, and uncertified photocopy of a public document, was admissible in evidence and based its decision on the document Covers grounds 8, 10, 11.
3.05. Whether the Lower Court was right in upholding the judgment of the Trial Court finding the Appellant liable in damages for libel notwithstanding the absence before the Court of the very document which they held could alone found action in defamation, Cover Ground 9.
3.06. Whether on the materials on the record of appeal the Lower Court was right in confirming the damages of N2, 500,000 awarded by the trial Court. Covers Ground 12.”
On his part the respondent submitted the following five issues for determination:
“(i) Whether or not Exhibit P.7 was properly admitted by the trial court as evidence of the document which the appellant on subpoena Duces Tecum and Ad Testificadum refused to produce as the publication of the libel complained of by the respondent in this case which decision the lower court affirmed and/or upheld
(Covers grounds 2, 8, 9, 10 and 11).
(ii) Whether the right of the appellant to fair hearing and fair trial in this case has been infringed upon by the decision in the judgment of the trial Court which was affirmed by the lower court (Covers ground 7).
(iii) Whether the burden of proof of publication with regards to defamation (the subject matter of this case) was not discharged by the Respondent Judging from the decision of the Lower Court (Covers ground 6).
(iv) Whether it is proper in law for the Lower Court in view of the quality and quantity of uncontroverted evidence in this case to uphold the findings of facts made by the Trial Court on the N2, 500,000.00 general damages awarded against the appellant (Covers ground 12).
(v) Whether the burden of proof placed on the respondent by law that Exhibit P1 was a forgery as pleaded by him was discharged in accordance with the decision of the Lower Court (Covers 1, 3, 4 & 5).”
In response to the appellant’s brief of argument the respondent filed his brief in which he raised a preliminary objection challenging the competence of grounds 1, 2, 3, 5, 7, 8, 9, 10, 11 of the Notice of Appeal.
The appellant on his part filed a Reply brief of argument drawing the attention of this court to some obvious flaws inherent in the respondent’s preliminary objection. Noticing this on 30/9/2014 when this appeal came up for hearing learned counsel for the respondent Adekola Olawoye Esq., sought to withdraw the preliminary objection argued in paragraphs 3.01 -3.12 of the brief.
Accordingly those paragraphs were struck out. That notwithstanding the appellant in his Reply brief deemed filed on 30/9/2014, addressed other issues raised by the respondent in his issues 1, 3 and 4.
At the hearing of this appeal learned counsel for the appellant and respondent both adopted their respective briefs of argument.
Without further amplifications on the issues, learned counsel for the appellant has urged us to allow the appeal. Whilst the learned counsel for the respondent urged otherwise; he urged that appeal be dismissed for lacking in merit.
I have carefully considered the issues formulated by the parties. Those issues distilled by the appellant are considered apt and can adequately resolve the appeal. However, their issues are unnecessarily proliferated and arguments on them boring and repetitive. Issues 1 and 4 can be considered together. These issues touch on what is germane or fundamental to the respondent’s case at the trial.
It is the submission of the learned counsel for the appellant that Section 97(1) (a) and (ii) of the Evidence Act, 2004 (now 90(1) (c), Evidence Act 2011) only provides for the admissibility of a public document when it is duly certified. It does not create any exception to the type of secondary evidence that is admissible. That the fact that the original has been lost or destroyed does not give the court power to admit a photocopy which is not certified. That the reasons advanced by the courts below for the admission of Exhibit P.7 are not in compliance with the provisions of evidence. Learned counsel for the respondent has noted that the pith and substance of the complaint of the appellant on this issue is the decision of lower court that although Exhibit P.7 is a public document, it is admissible without being certified in compliance with the said now Section 104 of the Evidence Act.
It is conceded that before a public document is admissible in any proceeding a copy of the documents must be certified. The learned counsel has however submitted that in the circumstance of this case the respondent was frustrated by the refusal of 2nd P.W. to produce the appellant’s actual letter which contained the libelous words against the respondent, upon which issues have been joined by both parties to this case; that the respondent had no other means provided by law through which he could obtain a Certified True Copy of the said letter than to tender the photocopy given him by the men of the then Nigerian Security organisation (NSO). It is his submission that having regard to the findings of the lower court on Exhibit 7 at pp.248 – 249 of the record it was practically impossible for the respondent to obtain the certified copy of the said Exhibit P7 from the office of the then Military Governor of Oyo State. It is further submitted that after the respondent had caused a Writ of Subpoena Duces Tecum and the Ad Testificandum to issue on both the office of the Military Governor and the Director of the Nigerian security Organisation, where the photocopy the respondent tendered was given to him, and both offices having failed to produce the certified copy, the respondent has satisfied the requirements of the law as far as obtaining the certified copy of Exhibit P.7 is concerned; therefore the decision of the Lower Court that under S.97(a) (i) and (ii) of the Evidence Act, Exhibit P.7 is admissible correct, equitable, sound and justifiable in law. That having regard to the facts and circumstances of this instant case, they are dissimilar and distinguishable from the facts in ARAKA v. EGBUE (2009) 17 NWLR (pt. 848) 1 at 18.
Learned counsel further relied on the case of AGHA v. IGP (1997) 10 NWLR (PT.527) 317 and submitted that the Court of Appeal gave approval to the admissibility of secondary evidence in a similar circumstance like the instant case. Relying further on the cases of FAWEHIMI v. NBA (No.2) (1989) 2 NWLR (pt. 105) 558 at 650, OGBE v. SADE (2009) 12 SC (pt. III) 37 at 71 and OKOTIE-EBO v. MANAGER (2005) ALL FWLR (pt. 241) 277 at 317, he submitted that in the resolution of disputes by courts every proposition must have factual base.
It is finally urged on this court to uphold the decision of the court below which is correct in the circumstance and not perverse and has not occasioned miscarriage of justice; that to decide otherwise would lead to injustice.
It is the contention of the appellant that the suit was fought on the basis that the original of Exhibit p.7 has been in existence and if it was uncertified photocopy that would be inadmissible in evidence.
In his Further Amended statement of Defence paragraph 15 the Appellant avers thus:
“15. The defendant avers that his letter dated 12-12-84 addressed and delivered to Governor of the then Oyo State form part of the official records of the state, defendant will rely on oral or documentary evidence to show that the letter is inadmissible in evidence.”
At page 248 of the records the court below held as follows:
“To further prove his point the plaintiff tendered Exhibit 7 which he claimed was only a photo copy of the original document given to him by security officials in the course of his interrogation and detention. It is not a Certified True Copy. Was it properly admitted in evidence. That is the key question. There are, in my view two reasons why I consider the document properly admitted. The first relates to the evidence that Exhibit 7 was the very document given to him by Government or Security Personnel. While it does not purport to be the very original document sent to, and received and acted upon by the Military Governor of Oyo State, it nevertheless is the exact document that was given to him by the security personnel from that perspective it is on original and therefore admissible. This was one of the grounds upon which the learned trial judge admitted the document and I think he was right to so hold.”
On this same page the court gave second reason as the document being the best documentary evidence, because it is the very letter presented to the Military Governor of Oyo State or a certified True copy of it while the court below correctly held at page 249 of the records that it is only Certified True Copy of public document that is admissible in evidence, it erred when it held that;
“But in this case it was practically impossible for the plaintiff to obtain a Certified True Copy of the document since the original appears to have been destroyed or lost or hidden by those in possession or control over it.”
The court below admitted Exhibit p.7 under s.97 (a) (i) and (ii) and (c) of the then Evidence Act as Secondary evidence of the existence and contents of actual defamatory letter received and acted upon by the then Military Governor of Oyo State.
Section 97 (i) (e) provides;
“(i). Secondary evidence may be given of the existence condition or contents of a document in the following cases.
(e). When the original is a public document within the meaning of section 109 of this Act.
Subsection 2(c) provides:
(2). The secondary evidence admissible in respect of original documents referred to in the several paragraphs of subsection (1) of this section is as follows:
(c). In paragraph (e) or (f) a certified copy of the document but no other kind of secondary evidence, is admissible.”
There is no exception provided in the kind of secondary evidence of a public document, admissible other than a Certified True Copy. The fact that the original has been lost or destroyed does not give the court any power to admit a photocopy, which is not certified. The plausible reasons advanced by the court below for the admission of Exhibit 7 are not in compliance with the relevant evidence law dealing with the matter.
I shall take time to explain the foregoing points in a number of decisions of this court. In ARAKA v. AGBUE (supra), relied upon by both parties, the appellant as plaintiff filed an action claiming the sum of 10 million as damages for libel against the respondent in a letter dated 10/9/1984, written by the respondent concerning the appellant and in the way of his office as Chief fudge of Anambra State.
By their pleadings the parties joined issues and the matter went to trial. Appellant opened his case by calling one K.N Udoh, a legal practitioner as his first witness. He testified that he was representing the principal secretary to the Governor of Enugu State who was subpoenaed to tender documents in court. After saying that the original letter dated 10/9/1984 addressed to Military Governor of Anambra State could not be found, witness tendered a photocopy of the letter through counsel for the appellant. Counsel for the respondent objected on the ground that the letter being a public document can only be admitted in evidence, if it is certified true copy of the original as required by Section 96 (i) (e) and (2) (c) of Evidence Act Cap 62 Laws of the Federation of Nigeria and Lagos, 1958 now Section 97 (i) (e) and 2(c) of the Evidence Cap 112 of the Evidence Act 1990.
The learned trial judge overruled the objection and held that the original of the letter dated 10/9/1984 having been lost, any secondary evidence of the lost document is admissible under Section 96(i) (c) and 96 (2) (a) of the Evidence Act.
Dissatisfied, the respondent, as appellant approached the Court of Appeal. That court reversed the decision of the learned trial Judge Uwaifo, JCA (as he then was) had this to say at pp. 170 and 171 of the report:
“I see nothing contrary to any canon of interpretation to insist on what the law says in Section 97 (2) (c) of the Evidence Act that as far as a public document is concerned, the secondary evidence is a certified copy of the document, but no other kind of secondary evidence. This is bound to be so from the plain language. Any other provision in the said Act which makes any secondary evidence of a lost document admissible must be interpreted not to include a public document so as not to derogate from its special provision.”
Further dissatisfied with this decision, the appellant filed the appeal to this court. The issue formulated for determination was as follows:
“Whether, in a case where the original of a public document is lost and cannot be found or where such document has been destroyed and is no longer in existence, any secondary evidence of such document (other than a Certified True Copy thereof) is admissible in evidence.”
Appellant formulated the following issue in the alternative:
“Whether the provision of Section 97(2) (c) is applicable in a case where the original of a public document is lost and cannot be found of where such document has been destroyed and is no longer in existence.”
It is noted that the contents of the two issues formulated by the appellant are similar. The second issue formulated in the alternative merely introduces the applicable section which makes it more exact. I think it is the Respondent’s issue in that case that is more direct. It runs thus.
“Whether the Court of Appeal was right in holding that under Section 97 (2) (2) (c) of the Evidence Act relating to tendering in evidence of a public document the only admissible evidence regarding such is the Certified Copy of such document and no other kind of secondary evidence.”
After careful consideration of the issue formulated for determination by the parties this court per TOBI JSC at page 18 of the report held as follows:
“It is clear from the provision of Section 97 (2) (c) that the only acceptable secondary evidence of a public document is a Certified Copy of document. The subsection has put the position precisely concisely and beyond speculation or conjecture by the words “but no other kind of secondary evidence is admissible.”
The foregoing provisions have been interpreted by the courts in so many decisions. In MINISTER OF LANDS WESTERN NIGERIA v. DR. AZIKIWE (1969) 1 ALL NLR 49, COKER JSC had this to say at page 59.
“We have already pointed out that the original of the document exhibit 2 is a public document and indeed it is so within the meaning of Section 108 of the Evidence Act Section 96(2) of the Evidence Act prescribes the type of secondary evidence which may be given in the several cases therein set out and section 96(2)(c) provides as follows:
’96(2) The secondary evidence admissible in respect of the original document referred to in the several paragraph of subsection (1) is as follows:
(d). in paragraph (e) or (f) certified copy of the document, but no other kind of secondary evidence, is admissible.
The combined effect of the subsections is that in the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and none other. The document now marked exhibit 2 is not a certified true copy but a Photostat copy and it is therefore inadmissible as secondary evidence of a public document which it purports to be.
There was no objection to its admissibility when it was produced but it is not within the competence of parties to a case to admit by consent or otherwise a document which by law, is inadmissible.”
In ONOBRUCHERE v. ESI GINE (1986) 1 NWLR (pt. 19), 799 the appellants challenged Exhibits E, E1 and E2, which were uncertified copies of the original documents of official Record (including judgments). This Court held that unless duly certified the Exhibits were inadmissible as they were copies official records.
In his leading judgment, OPUTA JSC (of blessed memory) said at page 808 thus:
“Exhibit E will be admissible under Section 93 (1) of Evidence Act if it is original. The court below did not admit exhibit E as an original document Exhibit E itself ex facie testifies to the existence of the original in court record book. Even if Exhibit E was admissible under Section 95(2) (c) it should be a certified copy of the original in court record book. Whether one proceeds under Section 96(2) (c) or Section 110 or 111 of the Evidence Act, exhibit E has to be certified to be admissible as secondary evidence. It was no so certified. Exhibit E was therefore wrongly admitted.
If these two judgments are to be tendered, Section 131(1) of the Evidence Act makes the record book itself the primary evidence. Failing to produce the primary evidence, a party relying on Exhibits E1 and E2 will at least tender admissible secondary evidence will necessarily be certified true copies. Exhibits E1 and E2 do not purport to be certified true copies. They were therefore wrongly admitted… Exhibits E, E1 and E2 were plainly inadmissible and the court below was in error in holding that they were rightly admitted.”
Similarly, in NZEKWU v. NZEKWU (1989) 2 NWLR (pt. 104) 373 this court held that a judgment of a court being a public document within the meaning of that expression of Section 108 of the Evidence Act and because of the combined effect of Section 96(1) (e) and (2) (c) of the Evidence Act 1958 the secondary evidence admissible in respect of the original document constituting the proceedings and Judgment of a court is a certified true copy of the document but no other kind of secondary evidence.
I have observed that the fulcrum of the submission of the learned counsel for the respondent herein, is that Section 97 (2) (c) (now Section 102 of the Evidence Act 2011) should be construed to accommodate a situation where the original of a public document is lost, and cannot be found or destroyed and is no longer in existence.
I must say that the duty of the court is to interprete the words contained in the statute and not to go outside the clear words in searching of an interpretation which is convenient to the court or to the parties in the process of interpretation. The court will not embark on a voyage of discovery. Where a statute is clear and unambiguous, as in this case. This court will follow literal rule of interpretation where the provision of the statute is clear and no more. In the case of ADEWUNMI v. A. G. EKITI STATE (2002) 2 NWLR (pt. 751) 474 WALI JSC said at page 512:
“In cases of statutory construction the court’s authority is limited. Where the statutory language and legislative intent are clear and plain, the judicial inquiry terminates there.
Under our jurisprudence the presumption is that ill-considered or unwise legislation will be corrected through democratic process. A court is not permitted to distort a statute’s meaning in order to make it confirm with Judge’s own views of sound social policy.”
See further GARBA v. FEDERAL CIVIL SERVICE COMMISSION (1988) 1 NWLR (pt. 71); NICER PROGRESS LTD v. N.E.L. CORP. (1989) 3 NWLR (pt. 107) 6s; OJOKOLOBO v. ALAMU (1987) 3 NWLR (pt. 61) 377; SAVANNAH BANK v. AJILO (1957) 2 NWLR (pt 57) 421 and ADISA OYINWOLA (2000) 10 NWLR (pt. 674) 116.
Looking carefully at the provisions of Section 97 (2) (c) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 1990 (now Section 90(1) (c) Evidence Act 2011) and the foregoing decisions of this court based on the provisions, it is abundantly clear that the law has left no room to admit secondary evidence of a public document other than by tendering as Certified Copy of Exhibit 7. The language used in the section is free and clear from ambiguity and it must be construed according to its expressed intention. This is what I have done here. In the circumstance, I resolve this issue in favour of the appellant.
Next to be considered is the appellant’s issue 2, which covers grounds 4, 5, and 6 of the grounds of appeal. This is Respondent’s issue No.5. The complaint of the appellant is that the court below failed to resolve which of the two letters was authentic; is it p.1 or p.7. At the trial one Lawrence Oyelade Oyeniran, a senior officer of the Military Administrator’s Office, Oshogbo who was 2 pw had been subpoened to tender the letter of 12/12/84, from the defendant to the Military Governor of Oyo State, tendered Exhibit p.1 in evidence. It is noted however, that in the writ of summons and in paragraph 3 of the statement of claim, the plaintiff/respondent herein pleaded the letter dated 12/12/84 allegedly written by the appellant to the Military Governor of Oyo State and it contained the defamatory matter in issue. In the statement of defence, the defendant admitted writing a letter but disputed contents of the said letter as set out in paragraph 3 of the statement of claim and that he would contest the genuiness of the contents of the letter on the ground that same was a forgery.
It is the contention of the appellant that the court below erred in law when it failed to reverse the ruling of the trial court on the role of 2nd PW who was summoned to produce the document not as a witness but was treated as a hostile one under Section 207, where there is nowhere on the record he made inconsistent statement.
However, the court below impeached 2nd PW’s credibility and opted/decided to rely on Exhibit p.7 which it held was admissible, a decision that I have resolved in the first issue against the respondent but in favour of the appellant, that in effect it was not admissible in law. Really whither this issue if I may ask. It serves no purpose. In any event once Exhibit 7 is expunged for being inadmissible the whole case of the Respondent’s case collapses.
Indeed it does, in view of my firm position on the issue of inadmissibility of Exhibit p.7.
Issues 5 and 6 are supposedly based on the respondent’s firm belief that the lower court was right in upholding the judgment of the trial court, which found the appellant liable for libel, notwithstanding the inadmissibility of the very document. (i.e. Exhibit p.7) which was held to be quite vital to found respondents action in defamation. Similarly the award of N2, 500,000 damages in this case would have been naturally the reward for respondent’s fruit of success in this case. Having not succeeded he cannot reap the fruit.
On the whole I hold that the appeal has merits and is accordingly allowed. The judgment of Court of Appeal delivered on 9th day of April, 2013 is hereby set aside. I make no order as to costs.