Achimi Ali V. Amodu Omale Audu (2005)

LawGlobal-Hub Lead Judgment Report

T. MUHAMMAD, J.C.A.

The appellant herein as Plaintiff at the High Court of Justice of Kogi State holden at Ayangba (the lower court) took out a Writ of Summons against the Respondent as defendant. The claims endorsed in the Writ which were affirmed in Paragraph 14 of the Statement of Claim read as follows –

“WHEREOF the Plaintiff claims against the Defendant:

1. A declaration that Ali Achimi the Plaintiff in this matter is the valid, legitimate, recognized and for all purposes, the only person entitled to the office of Imamship at Egume Centrol Mosque which offices he now occupy (sic) to the satisfaction and enjoyment of all dominant Muslims within and outside the Egume Muslim Community.
2. A declaration that the ascension to the office of Imamship by the Plaintiff is in accordance with settle (sic) customs, convention, tradition and relevant rules governing the appointment and selection of person to the vacant stool of Imamship of Egume Central Mosque/Jumat Mosque or Mesalanci Jumat.
3. An order af injection (sic) to restrain abdul Emokoji, Mamodu Yunusa (who called themselves as the Noyabis to the Defendant) from holding out Amodu Omale Audu as the Imam of Egume Central Masque, or parading him as the person occupying and therefore enjoying the prerequisites of the office of Imam of Egume.
4. An order of perpetual injection (sic) to restrain Amodu Omafe Audu as holding himself out or the Imam of Egume, or carry out any of the customary and tradition functions attaching to the cherished (sic) office of Imam as recognized in the practice of Imamship in Islamic faith.
5. An order of court that the plaintiff is eligible, entitled and qualified to be an Imam having regard to the re-requisite (sic) qualification as prescribed in the Islamic Code within Dekina Local Government Council regarding the office of Imamship.”

On being served with the Writ of Summons and the Statement of Claim, the defendant entered conditional appearance and filed his Statement of Defence. He also set up a Counter-Claim to the action. No defence was filed by the Plaintiff to the counter-claim. The Plaintiff testified in his own behalf and called 4 other witnesses, He tendered three exhibits. The defendant on his side, testified in his own behalf and called three witnesses. Addresses by learned counsel for the respective parties were taken by the lower court at the end of which it delivered its judgment, dismissing the main action and granting all the reliefs claimed in the counter-claim.

It is against that judgment the appellant filed his Notice of Appeal containing three grounds of appeal.

In this court, the parties filed and exchanged briefs of argument in compliance with Order 6 Rules 2 and 4 of the Court of Appeal Rules, 2002.

In his amended brief of argument which was deemed filed on 12/5/03, the learned counsel for the appellant distilled the following three issues for our consideration:

1. Whether the learned trial Judge was right in ignoring Exhibit P2 on the ground that it was Interpreted by the Appellant from the Arabic Language to English, the Language of the Court.
2. Whether Exhibit D2 being a public document was admissible in Law.
3. Whether the Appellant proved his claims before the lower court.

Learned counsel for the Respondent, whose amended brief was deemed filed, adopted the issues formulated by the appellant.

Learned counsel for the appellant contended on issue one that when Exhibit P2 was admitted (18/9/97) the learned trial, Judge indicated that the language with which the document was expressed is immaterial. English, he stated, and not Arabic is the Language of the courts in this country and the learned trial judge could have ordered appellant or his counsel or seek the assistance of court Clerks versed in the Arabic Language, to interpret Exhibit P2, It was erroneous for the learned trial Judge to hold that Exhibit P2 lacked evidential value merely because it was not interpreted to him and that occasioned a grave miscarriage of justice against the appellant. He cited and relied on MILITARY GOVERNOR OF IMO STATE & ANR. V. CHIEF B. A. NWAUWA (1997) 2 SCNJ 60 at p.188; OLUMESAN V. OGUNDEPO (1996) 2 SCNJ; 172 at p.188; OGBONI & 2 ORS. V. OJOH & 5 ORS (1996) 6 SCNJ 140 at 156. These cases are cited in support of the court’s attitude nowadays to shift away from narrow technical approach to justice in preference to substantial justice. Learned counsel urged us to answer issue One in the negative.

In his second issue, learned counsel for the appellant submits that Exhibit D2 is a public document by virtue of Section 109 of the Evidence Act. To be admitted in evidence, Exhibit D2 ought to be certified as a true copy as required by Section 111 (i) of the Evidence Act, and as the said Exhibit was not so certified it did not meet the requirement of Section 97(2)(c) of the Act. Learned counsel conceded that Exhibit D2 was admitted without any objection from the learned counsel for the appellant.

He however insisted that Exhibit D2 as a public document is inadmissible in any event with or without objection from the appellant’s counsel. Thus, he argued further, the failure of the appellant’s counsel to object to the admissibility of Exhibit D2 is immaterial. He relied on the case of OSENI & ORS v. DAWODU& ORS (1994) 4 SCNJ 197: ANLOGU V. IWEKA II (1995) 9 SCNJ 1 at p.17. Learned counsel urged this court to expunge Exhibit D2 and answer issue two in the negative.

On issue three, learned counsel for the appellant submits that based on the totality of the evidence adduced at the trial court the case of the appellant preponderates that of the respondent and the learned trial judge was wrong in dismissing the appellant’s claim for extraneous reasons. Exhibit P3 was not pronounced upon by the learned trial Judge. He did not also consider the entire contents of Exhibit P1 which clearly showed that appellant was recognized as the Imam of Egume Central Mosque by the Ata Igala and that was the only dispute mediated by the Ata Igala. It was wrong of the learned trial judge to hold that the Ata Igala only recognized the appellant as the Imam of Aloko Egbe.

Learned counsel for the appellant urged this court to allow the appeal and order a retrial of the suit.

Learned counsel for the respondent submitted on issue No. 1 that the issue of Exhibit P2 (written in Arabic Language) when tendered was that of admission and not weight to be attached to it. The document was original and thereby a primary evidence. It ought to have been rejected as not relevant to the proceedings. He relied on ARIBISALA & ORS. V. OGUNYEMI & 2 ORS (2001) FWL (Pt.31) at 2867 particularly at p.2874 E. The learned trial Judge was right in holding that it has no evidential value.

On issue No.2, learned counsel for the respondent submitted that the Attah of Igala being a Traditional ruler of Igala and a first class Chief in Kogi State qualifies as a public officer. The panel set up by the Attah of Igolo would appear to be exercising or carrying out a public duty and Exhibit D2 which is the report of the second Panel is a public document pursuant to Section 109 of the Evidence Act, Exhibit D2 is an original copy of the Panel report and was so tendered as a primary evidence under Sections 93 and 94 of the Evidence Act, It did not require certification under Section 211 of the Evidence Act, The appellant did not raise objection to the admissibility of Exhibit D2, the exhibit ought to be admitted in evidence and the appellant cannot be heard to complain about its admission. ALADE V. OLULEADE (1976) 2 SC 183 at pp. 188-189; IPINLAIYE V. OLUKOTUN (1996) 6 NWLR (Pt.453) 148 of pp.167-168 referred to in support. Learned counsel argued that Exhibit P1 was written to the appellant by the Attah of Igala. The same exhibit made reference to exhibit D2. Exhibits P1 and D2 are tied together by implication. Reliance was made on the case of IPINLAIYE V. OLUKOTUN (supra).

Issue No.3 is on proof of the claim before the lower court. It is the submission of learned counsel for the respondent that from the totality of the evidence adduced at the trial court the appellant did not discharge the evidential duty of proof placed on him by law. Exhibit P1 recognized the appellant as the Imam of his sector and that the averment in paragraph 7 of the Statement of Claim and the contents of Exhibit P1 showed that Egume Central Mosque was a sector. There was no evidence to show what constituted the custom and practice of the Egume Muslim Community on the appointment of Imam of the Central Mosque. It was further submitted that the evidence adduced by the respondent outweighed that of the appellant on the mode of succession to the position of Imam of Central Mosque Egume. HUNARE V. NANA (1996) 1 NWLR (Pt. 425) 318 at 389-390 referred to. Finally, respondent’s counsel argued that the appellant failed to file a defence to the respondent’s counter-claim and he is deemed to have admitted some, N.H.D.S. V.MUMUNI (1977) 2 SC 55; EYIBA GBE V. EYIBA GBE (1996) 1 NWLR (Pt.425) 408 at 416 relied on. He urged this court to dismiss the appeal with substantial costs.

In considering issue No.1, it is pertinent to cast a glance at Exhibit P2, It is a document purely written in the Arabic Language. The finding and conclusion arrived at by the learned trial Judge on Exhibit P2 read as follows:

“The other documents on point are those marked as Exhibits P1 and P2. Let me observe briefly that Exhibit P2 is written and expressed in Arabic Language, the contents of which are not translated to the language of the court. The plaintiff or his counsel did not make efforts to have Exhibit P2 translated to the understanding of the court. To that extent Exhibit P2 locks evidential value hence the same cannot be relied upon by me in support of plaintiff’s contention to his nomination, selection, appointment or even recognition as the Imam of the Central Mosque, Egume.”

It is common knowledge that proceedings are conducted in the High Courts in this country in the English Language. English Language is the officially recognized language of such courts. Any document sought to be relied upon by a party which otherwise is not written in the English Language MUST be translated by the party seeking to rely upon it in evidence into the English Language. It is entirely the responsibility of the party that intends to rely an such documents in this case the appellant, to translate that document from the Arabic Language to the language of the Court, i.e. English Language. The trial court cannot call for its translation or interpretation suo motu as to do that will amount to making a case for the appellant which is not the duty of the court. See: ONIBUDU & ORS V. AKIBU & ORS (1982) All NLR 207 at 219. The learned trial Judge was quite right in my view in not ascribing any probative value to Exhibit P2 as he could understand nothing from it. It therefore adds nothing to the evidence of the appellant. To cap it all, the Supreme Court in the case of OJENGBEDE V. ESAN (Loja-Oke) (2001) 18 NWLR (Pt. 746) 771 at page 790 A-D, held-

“There can be no doubt that the officio/language of the superior court of record in Nigeria is English and that if documents written in any language other than English are tendered and properly used in evidence, they must be duly translated into English either by a competent witness called by the party to the proceedings who needs them to prove his case or by the official interpreter of the court. A judge cannot on his own engage in the translation or interpretation of a document written in a language other than English since he is precluded from performing the role of witness and an orbiter at the same time in the some proceedings. It is not in dispute that the learned trial Judge before wham Exhibit J was tendered is Yoruba and must have made use of his private and personal knowledge of the Language to translate the said Exhibit J. This exercise however, he was not entitled in law to engage in. I am therefore in total agreement with the court below that as Exhibit J was not written in the language of the court and there being no translation of it into English in the course of the proceedings, the learned trial Judge was in definite error to have taken any Notice of it in his judgment.”

“See further: ODUWOLE & ANR. V. SONIBARE AINA (2001) 17 NWLR (Pt.741)1 at p.22 E-F; AKINTOLA V. BALOGUN (2000) 1 NWLR (Pt.642) 532 AT p.553 D-E DARMA V. BATAGARAWA (2002) 17 NWLR (Pt.796) 243 at pp.243 & 259 B-D: LAWSON V. AFANI CONTINENTAL Co. NIG. LTD. & ANR. (2002) 2 NWLR (Pt. 752) 585 at p.612 D-H; ARIBISALA V. OGUNYEMI (2001) F.W.L.R. (Pt.31) 2867.

When the plaintiff/appellant testified that document written in Arabic Language was tendered in evidence. (See page 23 of the Record of Appeal). Learned counsel for the defendant/respondent objected to the admissibility of the said document. These were his words:

“I also object to the document written in Arabic Language for the following reasons: J. The document written in Arabic Language is not relevant to this action in so far as the content is unknown and strange to the language of this court. There is nothing to show that this document is addressed to the plaintiff. Refer to section 91(1) (a) (4) of Evidence Act.”

In his ruling on the admissibility of this document (Exhibit P2) the learned trial Judge stated, inter alia-

“Court:

In the case in hand, counsel’s objection relates to two documents i.e the one written in Arabic and the other is the document authored by 13 Imam of various places. It must be stated that the admissibility of a document does not depend upon the language with which that document is written. Once a statement (in whatever language) has been expressed in documentary form. possess the requirement under sections 91, 93, 94 and 96 Evidence Act, I believe such document admissible in evidence. The language with which the document was expressed is immaterial. In So far as the document written in Arabic was not attached as net original or as primary evidence, if is my view that the same is admissible.

On the other document which is the letter addressed to the Onu Egume, also of the view that the same is admissible in so far as it is not an extract of minutes and no reference is made as to the existence of the Minute. The argument that this document is copy of Extract of the minute of that meeting is intended. Hence the same is also admitted and documents shall be marked as follows –

1. x x x x x x
2. The document written in Arabic as Exhibit P2”

The above decision of the learned trial Judge is in direct conflict with what this court held in the case of LAWSON v. AFANI CONTINENTAL CO. NIG. LTD & ANR. (supra)-

“A document written in a language other than English needs to be translated into English which is the Language of the court, before the court can take full advantage of its contents. Before the court can properly use such a document, its translation ought to be produced in evidence along with the document or a witness could be put in the witness box to do the translation where such document is not translated and it is used by the court, the use will be improper as the court would have combined its role as adjudicator with that of a translator who ordinarily ought to be called to testify in chief, cross-examined and if need be re-examined where such document is left untranslated. The only course left to the court is to discountenance it. In the instant case, Exhibit ‘1’ was written in Hausa. The document was produced in evidence but was not translated into English. The trial court was wrong to have admitted it in evidence. This is because by so doing, the court abandoned its toga of impartiality and descended into the arena in favour of the party who produced the document that required translation but failed to do so.”

Thus, Exhibit P2 should not have been admitted in evidence without it being translated to the language of the court. It should be discountenanced. The position of the law as expounded by the Supreme Court is that if a document is unlawfully received in evidence in the trial court an appellate court has inherent jurisdiction to exclude and discountenance the document. See: IPINLAIYE II V. OLUKOTUN (1996) 6 NWLR (Pt. 453) 148 at p.167 paras E-F. See also MALLAM YAYA V. MOGOGA (1947) 12 WACA 132 at 133; AJAYI V. FISHER (1956) (SC) NLR 279; 1 FSC 97; ESSO WEST AFRICA INCORPORATED V. ALLI (1968) NMLR 414 at 423. Even though the learned trial Judge has not given any evidential value to Exhibit P2, he ought to have expunged it from his record. And not having done so, Exhibit P2 is hereby expunged from the record of the lower court.

The 2nd issue is on Exhibit D2. This was admitted in evidence through DW2 – Mutari Mohammed who was then a student of the Community Comprehensive Secondary School Egume. He happened to be the Secretary to both Panels set up to resolve the Imamship dispute. Exhibit two was the Minutes of the Meeting of the 2nd Panel, which was sought to be tendered in evidence. “Learned counsel for the plaintiff/appellant stated that he had no objection. The lower court admitted the minutes in evidence as “D2”. This stance was affirmed by the learned counsel in this court in the appellant’s brief where he stated –

“It is concede(d) that Exhibit D2 was admitted without any objection from the Appellant’s counsel, but it is submitted that Exhibit D2 being a public document is inadmissible in any event with or without objection of Appellant’s counsel, since it did comply with the mandatory provisions of the Evidence Act. And so, it is contended for the Appellants that the failure of learned counsel to object to the admissibility of Exhibit D2 is immaterial”

With respectful deference to the learned counsel for the appellant, the position of the law on the issue of non-raising of objection to the admissibility of a document during a trial is that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is tendered in evidence of course barring some exceptions where by law, certain documents are rendered inadmissible for failing to satisfy some conditions or criteria. This rule still remains inviolate that where objection has not been raised by the opposing party to the admissibility of a document, the document will be admitted in evidence and the opposing party cannot afterward be heard to complain so long as it is not a document inadmissible in law. See: ALADE V. OLUKADE (1976) 2 SC 183 at pp.188-189; SEISMOGRAPH SERVICES (NIG) LTD V. EVANFE (1976) 9 & 10 SC 135; EKPE V. FAGBEMI (1978) All NLR 107 AT P.111;

IPINLAIYE II V.OLUKOTUN (supra).The other issue related to Exhibit “D2” is whether it was a public document. A public document is defined by the Evidence Act to mean:

(a) documents forming the acts or records of the acts –

(i) of the sovereign authority,

(ii) of the official bodies and tribunals, and

(iii) of public officers, legislative, judicial and executive whether of Nigeria or elsewhere;

(b) public records kept in Nigeria of private documents.

Exhibit D2, as found by the learned trial Judge emanated from a panel (2nd Panel) set up by the Attah of Igala to look into the Imamship crisis. It is agreed by both parties that the Attah of Igala is a paramount Ruler within his domain. It is common knowledge that such a ruler is a public officer as his salaries/benefits are paid by government. Thus, where a public document emanates from such a Ruler from the custody of his council, can, subject to satisfaction of condition for admissibility of public documents, be admitted in evidence. By necessary extension, documents authored by a Panel or committee set up by such a ruler can be a public document and admissible in evidence subject to satisfaction of same conditions required by Evidence Act. See: ETIM V. EKPE (1983) 3 SC 12 at p.30 (1 SCNLR, 20).

In any event, when Exhibit D2 was tendered in evidence before the lower court, the appellant did not object to its admission. The position of the law as stated earlier from the Supreme Court’s decision in the case of IPINLAIYE II V. OLUKOTUN (supra)-

“It ought to be emphasized that Exhibit A, A1 was tendered in evidence by the respondent without any objection by the appellant. In general, where a party in civil proceeding has consented to procedure at the trial which is neither unconstitutional nor a nullity but merely wrong or irregular and in fact suffers no injustice and no miscarriage of justices hereby occasioned, it would be too late to complain on appeal that the wrong procedure was adopted simply because he lost the case in the trial court. see; AKHIWU V. THE PRINCIPAL LOTTERIES OFFICER, MID-WESTERN STATE OF NIGERIA AND ANOTHER (1972) All NLR (pt.1) 229 at 238: AYANWALE AND OTHERS V. ATANDA & ANR. (1988); (1988) 1 NWLR (pt. 68) 22. 1 NSCC at 9-10, (1988) 1 NWLR (Pt.68)22: OKWECHIME V. PHILIP IGBINADOLOR (1964) NMLR 132. In the present case, Exhibit A, A1 when it was tendered was not objected to by the Appellant, it was fully cross-examined upon and its admissibility was not put in issue at any stage of the trial. The document itself does not belong to the category which by law, is inadmissible in any court of law and in all circumstances.”

I find no merit in issue 2 and same is resolved in favour of the respondents.

It is pertinent to reiterate the position of the law with regards to issue No.3 that the Evidence law has set a standard which must be attained by any person making a claim or claims which he will want the court to grant him. Thus, the burden of proof in civil matters is always on the plaintiff. See: ADEGOKE V. ADIBI (1992) 2 NWLR (Pt. 223) 305; AMODU V. AMODE (1990) 5 NWLR (Pt. 150) 356. The standard of proof is based on preponderance of evidence and unless this is attained the legal onus is not discharged. See Section 137 of the Evidence Act.The learned trial Judge found that the plaintiff/appellant had failed to discharge the evidential burden of proof placed on him by the law to entitle him to his claim. I cannot agree more. And in matters of evaluation of evidence, the learned trial Judge is always in a better position to do so. Unless where it is clearly apparent that he has failed to discharge his duties or where miscarriage has been caused as a result of wrong evaluation, an appellate court does not interfere with his evaluation. In this appeal, I find no compelling reason to make me tamper with the learned trial Judge’s evaluation of the evidence placed before him.

In conclusion, I find no merit in this appeal. The appeal is hereby dismissed. I affirm the decision of the lower court. The respondent is entitled to N10,000.00 costs from the appellant.

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Other Citations: (2005)LCN/1707(CA)