➥ CASE SUMMARY OF:
Alhaji Ahmadu Kubau v. Mallam Shehu Rilwanu (2013) – CA
by PipAr Chima
Court of Appeal – CA/K/179/2001
➥ JUDGEMENT DELIVERED ON:
Friday, the 10th day of May, 2013
➥ AREA(S) OF LAW
Certified true copy.
➥ NOTABLE DICTA.
⦿ ILLITERACY IS AN ISSUE OF FACT
It is necessary to recognize that the issue whether one is literate or illiterate is an issue of fact which cannot be presumed. It must be established by evidence. – T.N. Orji-Abadua, JCA.
⦿ TESTIFYING IN NATIVE LANGUAGE IS NOT PROOF OF ILLITERACY
It is also imperative to note that the fact that a witness opted to testify in his native language, is not a conclusive evidence that he is an illiterate. He may choose to do so because he feels much comfortable expressing himself in his mother-tongue, and not because he did not know how to write or read. – T.N. Orji-Abadua, JCA.
⦿ NOTHING PROHIBITS A LITERATE FROM AFFIXING HIS THUMB
See U.B.A. Plc vs. Mustapha (2004) 1 NWLR Part 855 page 443 where it was further stated that there is nothing in law which prevents a literate person from affixing his thumb impression to or on a document, and that the onus is on the person who object to a document to prove that the maker was an illiterate person. I think cognizance should be taken of the fact that due to the quest for being literate, some illiterate persons labour seriously to learn how to simply write their names at the end of a document to prove authenticity. The moment they learn how to write their names, that is sufficient for them. – T.N. Orji-Abadua, JCA.
⦿ THE ILLITERATE IS THE ONE TO PROTEST UNDER THE ILLITERATE PROTECTION LAW
Further, it is pertinent to emphasize that it does not behove any other person to protest under the illiterate Protection Law or Act. It is trite that the illiterate protection Law was made for the protection of illiterate persons. It is the illiterate person that requires protection and he is the one who may seek the protection given by the law by complaining that the document prepared at his request and which was signed with his signature or his mark was not, prior to its being so signed, read over and explained to him. The Act is a law to protect and safeguard the illiterates from being exploited. It is not a law to penalize them. – T.N. Orji-Abadua, JCA.
⦿ PRIMARY EVIDENCE OF PUBLIC DOCUMENT IS ADMISSIBLE
Section 93 of the Evidence Act, provides that:- “the contents of documents may be proved either by primary or secondary evidence.” Section 94(1) defines primary evidence as “the document itself”. Section 96 of the Evidence Act provides that “documents must be proved by primary evidence,” except in the Cases to be mentioned later. There is no section of the Evidence Act that provides that no primary evidence of a public document is admissible. Section 112 of the Act allows certified true copy to be produced in proof of the contents of public document or part of public document. I do not think the provision of section 112 of the Act renders the primary evidence of public document inadmissible in evidence. – T.N. Orji-Abadua, JCA.
⦿ PUBLIC DOCUMENTS ARE PROVEABLE BY THEIR ORIGINALS
In my view, the net effect of sections 91(1)(a), 93, 94(1), 95, 97(1)(e) and 112 of the evidence is that the contents of public documents such as the report and the white paper in question may be proved by producing the originals themselves for the court to inspect as primary evidence. If the maker of the statement, as in this case had personal knowledge of the matter dealt with by the statement i.e. DW1, or prove by the production of their certified true copies as secondary evidence, the two documents being public documents. By virtue of section 96 of the Evidence Act, it is my view that public documents are provable by their originals. It says:- “Documents must be proved by primary evidence except in the cases herein after mentioned.” Although section 112 allows certified true copies thereof to be used as well. It does not make original inadmissible. These sections of the Evidence Act in summary lay down that in proving the contents of documents; the emphasis is on the production of their originals i.e. their primary evidence. They however go on to provide that if the contents are to be proved by secondary evidence, a restricted type of secondary evidence only may be accepted i.e. certified copies in the case of public documents. – T.N. Orji-Abadua, JCA.
⦿ GENERAL PROVISION VS SPECIFIC PROVISION: SPECIFIC TAKES PRECEDENCE
There is also the related issue and it is that where a Court of law is exposed to two provisions; one general and the other specific, the Court will fall upon the specific provision, in the event of an apparent conflict. – T.N. Orji-Abadua, JCA.
⦿ RATIONALE FOR CERTIFIED TRUE COPY
One main objective behind section 97(2)(c) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of section 97(2)(a) could be tutored and therefore not the authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The Court has not the eyes of an eagle to detect such tricks.” Section 97 (1) (e) clearly stated that when the original of a document is a public document within the meaning of section 109, secondary evidence of it may be given, and, by virtue of section 97 (2) (c), the only secondary evidence required is a certified copy and no other copy is admissible. By the aforestated cases of the Supreme Court, it is clear that original copy of a public document can be tendered in a proceeding. – T.N. Orji-Abadua, JCA.
Alhaji Ahmadu Kubau
Mallam Shehu Rilwanu (substituted his deceased father Alh. Rilwanu Jumare by order of Court made on 10:12:01).
➥ LEAD JUDGEMENT DELIVERED BY:
Theresa Ngolika Orji-Abadua, J.C.A.
⦿ FOR THE APPELLANT
Emmanuel J. J. Toro, Esq.
⦿ FOR THE RESPONDENT
Hussain Audu Esq.
➥ CASE HISTORY
The Plaintiff, now the Respondent in this appeal, commenced an action against the 1st Defendant i.e. the Appellant and one other on the 3rd November, 1986. By his statement of claim dated 3/12/87, the Respondent claimed against the Appellant and the other Defendant jointly and severally the following reliefs, inter alia: (a) A declaration that the Plaintiff is entitled to the possession of the piece of land measuring 0.27 acres lying and situate along Zaria-Jos Road and covered by Certificate of Occupancy No. 8051 of 9/11/82.
The Appellants filed their statement of defence.
Hearing was conducted by the trial High Court in the proceeding. The parties called their respective witnesses, at the end of which judgment was entered in favour of the plaintiff in terms of his first three prayers.
The Defendants therein, were irked by the pronouncement of the lower court that they lodged an appeal here on 14/7/98 against the same attacking it.
➥ ISSUE(S) & RESOLUTION
I. Whether having ordered the parties to file written final addresses, the learned trial Chief Judge was right in refusing outrightly at judgment stage to consider the Appellant’s written address and whether in the circumstances of this appeal, doing so denied the Appellant his constitutional right to a fair hearing.
RULING: IN RESPONDENT’S FAVOUR.
For the court to have formed the opinion that the said Appellant’s address was windy and relate to unpleaded facts and issues not canvassed before the court, it portrays that the learned trial Chief Judge gave a due consideration to the address and found it unsupported by facts before the court, since address, it is said, cannot substitute for evidence. If the trial court had not perused and considered the said written submission of the 1st Defendant, i.e. the Appellant, it would not have held that it touched on unpleaded facts. I must observe I could not perceive any case of denial of the 1st Defendant of his right to address the trial court. The trial court simply did not attach any weight to the issues raised by the Appellant because of its view that the issues canvassed therein were not supported by the pleadings before it.
II. Whether the trial court acted in contravention of the Appellant’s fundamental right to a fair hearing when the court failed or neglected to ensure that the Appellant was properly served with Hearing Notice of the date fixed for the adoption of final written addresses and/or the making of further oral submissions in this action.
RULING: IN RESPONDENT’S FAVOUR.
II.A. By the definition, it stands to reason that a hearing notice ought not to be issued or served on parties and/or their counsel who already know or are reasonably expected to know of the date when the matter is to come up for consideration. It will amount to an over indulgence for courts to go out of their way to issue and serve hearing notices on parties or their counsel who were in court or aware of the next date of adjournment. Courts will not adopt this position; as it will amount to unwittingly promoting indolence, nonchalance in the conduct of cases, without taking into consideration the provision of section 36(4) of 1999 Constitution which requires hearing of a suit within a “reasonable time.” In Jonason Triangles Ltd vs. C. M. P. Ltd (2002) 15 NWLR Part 789 page 176, the Supreme Court held that the best notification to parties to an action is the one communicated to them personally in the open Court. Thus, where parties by their conduct voluntarily opt out of the trial although they had adequate information of the hearing date and the venue of the trial, they cannot turn round to complain of fair hearing as a result of non-issuance of hearing notice.
II.B. In the instant appeal, the agitation of the Appellant is that the trial court ought not to have relied on the ipse dixit of the court Registrar who informed the trial Court that the Defendants, personally, came after the date the lower Court did not sit and collected the date of adjournment. It is common knowledge in our judicial system, that if a court did not sit on a date a matter was fixed for hearing for one reason or the other, it is usually the registrars or clerks of the said court who adjourn matters off the record of proceedings since the entries in the record of proceedings are strictly made by the Judge presiding over the matters in the court, and, then, give the next adjourned dates to the parties.
A proper examination of the record of this appeal, reveals that it was the same Registrar of the lower court who informed the court on 13/6/98 that the Appellant came personally and he gave him the date of next adjournment, that had been informing the court, since the inception of the case, about the parties’ attendance, non-attendance, service and non service of hearing notices on them, when needed in the matter. These information were all recorded by the lower Court and, the Court, on those occasions, acted on such information’s.
By arguing now that such informations given by the Registrar of the lower court should not have been countenanced, counsel, by implication, is urging that our courts shall, from today, stop countenancing any statement made by the court’s Registrars on issue of physical communication of any adjourned dates to the parties in a suit, particularly, on the dates the Courts did not sit. If the Courts start distrusting the Registrars now, it means the Registrars are no longer credible and are, therefore, unfit to act as court Registrars.
I think, by the level of trust that exists between the Courts and the courts Registrar, the learned trial Chief Judge was right in relying on the information passed on the Court by its Registrar on the said issue of communication of the date of hearing physically by him to the Appellant after the Appellant absented himself from the court. It is clear in the record that after communication of the said date, the Appellant failed to attend the Court on the date in question to offer his reply to the address of Counsel to the Plaintiffs.
The law is, he cannot now turn round to complain about breach of his right to fair hearing having been given the opportunity by communication of the date of adjournment to him by the Court Registrar. The trial Chief Judge believed her court Registrar who had, on previous occasions, informed her of the dates there were no proof of service of hearing notices on the 1st Defendant i.e., the Appellant. Therefore, I do not accede to the contention of the Appellant’s learned senior counsel that a miscarriage of justice was occasioned to the Appellant.
III. Whether being a public document, only a duly Certified True copy of the statutory certificate of occupancy, Exhibit 1, and not the original copy of it is admissible in evidence under the relevant mandatory provisions of the Evidence Act, Cap. 112, LFN; 1990.
RULING: IN RESPONDENT’S FAVOUR.
III.A. Here, we are dealing with the original copy of the Certificate of Occupancy given to the Respondent by the Kaduna State Government as an authentic proof of his ownership of the land in dispute. See, also, the Supreme Court case of Anamelechi Iteogu, Esq, vs. The Legal Practitioners Disciplinary Committee, where it held that the only secondary evidence of a public document admissible in evidence is a certified true copy. The synergy of the decisions in Daggash vs. Bulama (supra) and the aforementioned cases of the Apex Court is that the original copy of any public document issued to a person which is in the custody of that person, if tendered is admissible under the Evidence Act. The person would only encounter problem or experience turbulence when he produces or attempts to tender at the hearing of a proceeding a photocopy or secondary copy of the said original of the public document in his possession without certification. At that point the Evidence Act mandates him to produce a certified true copy of the said original copy to prove its authenticity and originality. It is clear that the opinion expressed by Salami, J.C.A., (as he then was) in Lawson vs. Afani Continental Co. Ltd. (supra) is now obsolete, having been obscured and overruled by latter decisions of this Court and, in particular, the Supreme Court decisions which are binding on this Court by the doctrine of stare decisis.
III.B. Therefore, it is, my humble opinion that failure to tender the certified true copy of the original Certificate of Occupancy No. 8051, where the original itself has been produced and tendered is immaterial and not fatal to the Respondent’s case.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 94, 96, Evidence Act 2011.
➥ REFERENCED (CASE)
⦿ TESTIFYING IN NATIVE LANGUAGE IS NOT PROOF OF ILLITERACY
In Oyebode vs. Oloyede (1999) 2 NWLR Part 592 page 523, the present Chief Justice of Nigeria, Mukhtar, CJN, when she was in the Court of Appeal had this to say: “Agreed that he gave evidence in Yoruba, but the question is, is that sufficient to assure that he could not read or understand English, or that he is illiterate? It may well be that he found it easier to testify in Yoruba, in open court and so elected to speak in his native language.”
⦿ DEFINITION OF A HEARING NOTICE
In Akin Folorunso v. Shaloub (1994) 3 NWLR Part 333 page 413 at 430, “a hearing notice” was defined thus: “As a process of the court by which a party to the proceedings is notified of the date the case has been fixed in court where he is not otherwise aware of such a date.”
⦿ HOW CONTENTS OF A DOCUMENT MAY BE PROVED
Goodwill & Trust Investment Ltd & Anor. vs. Witt & Bush Ltd (2011) 8 NWLR Part 1250 page 500 at 533, where Onnoghen, J.S.C. at page 533 stated thus: “it is settled law that contents of a document can be proved in a proceeding by tendering the original documents or where the original is unavailable by a certified true copy of the said original as secondary evidence of the contents of the said original.”
➥ REFERENCED (OTHERS)