Okechukwu Uzoma V. Dr. Victor Asodike (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

This is an interlocutory appeal against the Ruling of Imo State High Court in suit No. HOW/99/2002 before A.O.H Ukachukwu, J. One Dr [Mrs] Adaoha Okwusosa, a relation of the plaintiff/Appellant, was testifying for the plaintiff and in the course of her testimony a ceftified true copy of a certificate of occupancy, (C of O), pleaded by both parties was tendered for admission in evidence, after it was identified. The defence objected to admissibility of the said certified true copy of the C of O registered as No. 73 page 73 volume 90 at the Lands Registry, Owerri, Imo State. The said witness [PW.1] is the plaintiff’s eldest sister. The plaintiff/Appellant resides in the USA. She was not in court when the PW.1 was testifying.

The grounds for the objection by the defence counsel are that

1. Though a party to a suit can apply for certified copy or a document and tender it in evidence, the witness is not a party to the suit and therefore could not apply for the certification of the C of O and tender the certified true thereof.

2. The witness must account for proper custody of the original document, the C of O.

3. The purported certification of the c of o on a plain sheet of paper did not satisfy section 111[1] of the Evidence Act.

4. The purported certification was done during the pending of the action to comply with the numerous amendments by the plaintiff to accommodate the document.

In reply to the objection at the court below plaintiff’s Counsel contended that the defendant admitted the existence of the document by paragraph of the statement of defence, and that paragraph 4 of the amended statement of claim pleaded the said C of O. He further contended that the C of O being a public document by virtue of section 91(1) (e) of Evidence Act the plaintiff is entitled under Section 97(1)(e) and (f) of the said Act to lead secondary evidence with no duty at all to explain where the original document is. It was further the appellant’s contention at the trial court that no rule of law or practice requires a party to appear personally in court, nor is there any rule of law that requires that only a party in the suit can apply for certification of a pleaded document. It was further posited at the trial court that the certification of the C of O meets the requirement of Section 111[1] of Evidence Act and that the failure of the officer to certify at the foot of the document should not be visited on the plaintiff/Appellant.

In the reserved Ruling delivered on 11th April, 2005 the learned trial Judge upheld the objection, refused to admit the certified true copy of the C of O in evidence and marked it “Rejected”. He gave various reasons for the decision. They include the fact that it is an admitted fact the plaintiff who resides in the U.S.A. has custody of the original C of O; the witness must give account of the proper custody of the original C of O in order to tender the certified copy thereof; that since the certification was not at the foot of the document but on another sheet paper it did not meet the requirements of Section 111(1) of the Evidence Act.

Aggrieved by this Ruling the Plaintiff/Appellant promptly appealed on three grounds to this court. The notice of appeal was filed on 12th April, 2005. Briefs of argument have been exchanged and adopted. In the Appellant’s brief two issues were identified from the three grounds of appeal. They are as follows-

Issue One: whether the learned trial Judge was right in his construction of section 97 of the Evidence Act as it applies to the document sought to be tendered in this matter. (Deduced from Grounds one and two of the Grounds of Appeal).

Issue Two: whether the learned trial Judge was right in his construction of section 111(1) of the Evidence Act and application of the same to the facts and circumstances of this case. (Deduced from Ground three of the Grounds of Appeal).

For the Respondent only a single issue was distilled from the three grounds of appeal. The sole issue is-

Whether the learned trial judge properly construed sections 97(1) (e) and (f) and 111(1) of the Evidence Act, in rejecting the document sought to be tendered through the witness of the Plaintiff/Appellant.