A. C. Agonsi V. Chief Don Okwu (2016) LLJR-CA
LawGlobal-Hub Lead Judgment Report
FREDERICK OZIAKPONO OHO, J.C.A.
In Suit No: HOG/68/2007 the Plaintiff’s Statement of Claim at Paragraphs 9 (1), (i) was endorsed with the Plaintiffs Claims as follows:
“Plaintiff further claims that the publication of the unfounded and sweeping allegations, words or expressions of fraud, wickedness, dishonesty, immorality, self enrichment and or outright stealing, of and concerning him, he (Plaintiff) has been greatly injured in his character, repute and estimation in the eyes of right thinking people of the world in that the Plaintiff has been exposed to public ridicule, reproach, opprobrium, odium and contempt and these defamatory words and expressions have no doubt embarrassed not only the Plaintiff but members of his family, friends and business associates irredeemably.
1. WHEREFORE the Plaintiff claims against the Defendant as follows;
(i) The sum of Fifty Million (N50,000,000.00) Naira being general damages for libel contained in the Defendant’s letter to the Panel investigating the non-payment of worker’s salaries at Adapalm (Nigeria) Limited, Ohaji on the
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Plaintiff.
(ii) A perpetual injunction restraining the Defendant by himself, his agents or privies from ever writing, publishing or circulating such libelous matter of and concerning him.
Pleadings were ordered and duly filed by both parties. The facts of the case as disclosed by the pleadings may be summarized from the view point of the Appellant as follow:
The Claimant commenced this action against the Defendant for an alleged libel contained in a document, a memorandum submitted to the panel set up by the Government of Imo State to investigate the non-payment of staff salaries of Adapalm; a parastatal of the Government of Imo State. When the trial of the suit commenced before IKPEAMA, J the Claimant sought to tender a photocopy of the said memorandum when the Defendant, who is Appellant in this Appeal, raised an objection to the admissibility of the document. That remained the position until the trial Judge was transferred to another Judicial Division from the Oguta Judicial Division. The suit eventually commenced de novo before a newly transferred Judge, ANUNIHU, J after amendments had been made to the pleadings of the parties. See pages
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110-125 of the Records of Appeal. Hearing of the matter resumed once again on the 25th day of June, 2012, when the Claimant called one Polycarp Attah as CW1 and the same photocopy of the memorandum was sought, once again to be tendered through the said witness. Learned Defense Counsel as he did before, objected to the admissibility of the document on the ground that the document sought to be tendered was a photocopy with no foundations having been laid for its admissibility. In addition, that even if such foundation was laid, that as a Public Document only a certified true copy of the original was admissible. The Learned Trial Judge in a considered Ruling on the 25-6-2012 dismissed the objection raised by Defendant and proceeded to admit the document as Exhibit A.
Dissatisfied with the decision of the learned trial Court, the Defendant, who is hereinafter referred to as the Appellant has appealed to this Court, vide his Notice of Appeal 25-7-2012. There are two (2) Grounds of Appeal which are hereby reproduced here as follows:
GROUNDS OF APPEAL:
1. ERROR IN LAW:
The Learned Trial Judge erred in law when he held as follows:
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I am of the understanding that the document written by the Defendant on 31/8/2007 is a personal memorandum written by him to the committee investigating the non-payment of workers salary in Adapalm unless and until the said document is submitted to the addressee, it remains a private document. It is only when it comes into the custody of the said committee that it becomes a public document and it is the copy delivered or deposited with the committee that constitutes the public document.
PARTICULARS OF ERROR;
(a) The document in question was a photocopy of the alleged memorandum submitted by the Appellant to the committee investigating non-payment of workers salary in Adapalm.
(b) The document was a public document for all purposes.
(c) The holding is perverse and occasioned a miscarriage of justice.
2. ERROR IN LAW;
The Learned Trial Judge erred in Law when he held as follows:
Paragraph 8 of the extant Statement of Claim in this Suit avers that the offending document was circulated and given to this witness. The witness in question in his evidence stated that he received a copy of the said document from
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the Defendant. Whether the Defendant actually gave a copy of the document to CW1 as the witness claimed is not yet the issue. The fact is that the document received or purportedly received by CW1 was adequately pleaded and is relevant to this suit. I think it is admissible for that reason. I cannot in the wildest imagination presume that the same copy of the document given to the committee is the copy given to the other people to whom the document was circulated. Circulation of a document in my view entails reproducing copies of same and distributing to people. At this juncture, I have no reason to doubt that the document sought to be tendered by CW1 is the document allegedly circulated to him by the Defendant. I also agree with the Claimants Counsel that since the document sought to be tendered is the one belonging to CW1 as given to him, and CW1 being Claimants witness, there was no need for issuance of Notice to produce. Even if there was notice, it will be to CW1 and not necessarily to the knowledge of the Defendant or his Counsel.
PARTICULARS OF ERROR;
(a) The document sought to be tendered was a photocopy and no account was given as
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to its original.
(b) A document which is relevant, must meet the conditions for admissibility to the admitted in evidence.
(c) The Learned Trial Judge left the issue joined by the parties in the pleadings and went into speculation.
(d) The holding is perverse and occasioned a miscarriage of justice.
There were two (2) issues nominated by learned Appellants Counsel for the determination of this Appeal as follows:
(a) Whether Exhibit A, a photocopy was admissible in evidence in the circumstances?
(b) Whether the Learned Trial Judge was not wrong when he held that Exhibit A was not public document.
The issues were however, argued together. There was, however a sole issue nominated by the Respondent for the determination of Court as follows;
Whether a copy of a letter given to an individual directly by the writer is not primary evidence of what was given.
On the 2-3-2016, the day of the hearing of the Appeal, learned Counsel for the parties adopted their respective Briefs of argument, citing a plethora of decided case and urged the Court to resolve the Appeal in favour of the clients. The
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Appellants Brief of argument is settled by DECLAN OBIOMA MADU ESQ., while the Respondents Brief of argument is settled by E. N. ICHIE ESQ. This Appeal shall however be determined on the basis of the issues nominated by the Appellant, all issues identified by the parties, practically the same except for reason of semantics.
ARGUMENTS OF APPELLANTS COUNSEL;
ISSUES ONE & TWO;
(a) Whether Exhibit A, a photocopy was admissible in evidence in the Circumstances?
And
(b) Whether the learned trial judge was not wrong when he held that Exhibit A was not public document?
Learned Appellants Counsel opened his arguments by informing Court that the clear and unambiguous language of the pleading in Paragraph 8 of the Further Amended Statement of Claim is the very same memorandum submitted to the Government committee, investigating the non-payment of salaries at Adapalm and the same document that was published and circulated to other persons including the present CW1. The word, the as used in the said paragraph 8, he said particularized the document spoken of, namely the memorandum submitted by
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the Defendant to the investigating committee. See Blacks Law Dictionary Sixth Edition page 1147. It was contended by Counsel that the Claimant did not plead any photocopy of the original memorandum and was therefore bound to produce the original memorandum or to tender the photocopy after complying with the provisions of Section 89 of the Evidence Act, 2011. Counsel said that the Claimant did not meet any of the conditions in the above Section which is commonly said to be the act of laying foundation, before attempting to tender an Exhibit.
Counsel further said that in the words of the witness through whom the Exhibit was to be tendered, is that the Exhibit was not the document allegedly sent to him but a copy thereof when he said this at page 127 of the printed records as follows;
This is a copy of the defamatory (sic) document sent to me by the Defendant in (Sic) capacity as the Chairman of Adapalm landlors (Sic) Association. I seek to tender it.
Counsel further argued that the learned trial Judges observation on the issue at page 129 of the records, not only ran contrary to the Claimants pleadings on the
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issue, but also the evidence of the CW1 at page 127 of the records earlier on referred to when the Court held as follows:
“I cannot in the wildest imagination presume that the same copy of the document given to the committee is the copy given to the other people to whom the document was circulated. Circulation of a document in my view entails reproducing copies of same and distributing to people.”
He added that the clear evidence of the CW1 quoted above debunked the conclusion subsequently reached by the learned trial Judge when at the same page he held:
“I have no reason to doubt that the document sought to be tendered by CW1 is the document allegedly circulated to him by the Defendant.”
It was contended by Counsel that the witness did not say so and at best that the learned trial Judge speculated on that point contrary to the hard facts presented before the Court. It was further contended by Counsel that the unequivocal evidence of the CW1 as quoted above is that Exhibit A is a copy he made from the document allegedly sent to him by the Defendant. And that having not given any explanations as to what happened to
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the original document, Exhibit A being a photocopy was not admissible. Counsel cited the cases of ODUA vs. FEDERAL REPUBLIC OF NIGERIA (2002) 5 NWLR (PT. 761) 615 AT 634; FASINA vs. OGUNKAYODE (2005) 12 NWLR (PT. 938) 147 AT 165; and ANYAEBOSI vs. R. T. BRISCOE (NIG.) LTD (1987) 3 NWLR (PT. 59) 84.
Against the backdrop of the above, Counsel argued that Exhibit A ought to have been rejected as inadmissible. Counsel also brought to the attention of Court the fact that the document sought to be tendered, above all else is a public document as defined in Section 102(a)(ii) of the Evidence Act, 2011. He reminded Court that the document as shown in the Claimant’s pleading is a memorandum submitted to an official investigative body set up by the Government of Imo State on the non-payment of salaries in its parastatal, Adapalm. It was therefore argued that the document a public document and that the only secondary evidence admissible thereof is the certified true copy. Counsel referred to Section 90(1)(c) of the Evidence Act, 2011 and also the case of ARAKA vs. EGBUE (2003) 17 NWLR (Pt. 848) 18 AT 21.
Counsel also told Court that the Claimant was fully
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conscious of the necessity to obtain a certified copy of the document from the Committee when he said at page 102 of the Records of Appeal as follows:
“I got this photocopy from one Polycarp Atta Chairman Landlords Association of Adapalm. The original document is with the Chairman of the Committee investigating the non-payment of Staff Salaries. I tried to get original copy but they refused to give me.”
It was contended by Counsel that the Claimant did not comply with the provisions of Section 104(1) of the Evidence Act, 2011, namely that he applied and paid the prescribed legal fees and that having not so complied, he was he was not entitled to the certified true copy of the document as payment for the document is a condition precedent. Counsel cited the case TABIK INVEST. LTD vs. G.T.B PLC (2011) 17 NWLR (Pt. 1276) 240 AT 258. Counsel urged the Court to resolve the two issues in favour of the Appellant.
ARGUMENTS OF LEARNED RESPONDENT’S COUNSEL;
Learned Counsel contended that the single issue in this Appeal is about the admissibility of Exhibit A the letter written by the Appellant and addressed to the
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committee investigating the non-payment of workers salaries at Adapalm (Nig.) Ltd, Ohaji and which was also sent to the CW1, Polycarp Attah, who at the time the letter was written was the Chairman of Adapalm Landlords Association. He drew attention to the fact that these facts were pleaded at paragraph 8 of the further amended statement of claim, copied at page 108 of the record.
It was therefore submitted by Counsel that in civil proceedings, for a document to be admitted in evidence it must be relevant and it must also be pleaded by the party who is seeking the tender it. He cited the cases of OYEDIRAN vs. ALEBIOSU 11 (1992) 6 NWLR (PT. 249) 550 AT 559; AGBAHOMOVO vs. EDUYEGBE (1999) 3 NWLR (PT. 594) 170 AT 183; and TORTI vs. UKPABI (1984) 1 SC 214. Counsel laid emphasis on the fact that the issue of relevance is clearly the touch-stone of admissibility. He contended that admissible evidence, like the letter (Exhibit A), under the Evidence Act is evidence which is relevant in the determination of the case. Counsel cited the case of AGUNBIADE vs. SASEGBON (1968) NSCC, VOL 5 147 AT 150, Paragraph 40 and AGBAHOMOVO vs. EDUYEGBE
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(supra). According to learned Counsel Exhibit A is the document containing the libelous words about which the Respondent is complaining and that the Supreme Court in the case of OGBE vs. ASADE (2009) 18 NWLR (PT. 1172) 106 AT 138, paragraph A held as follows;
It is now firmly settled that in determining admissibility of evidence, it is the relevance of the evidence such as a document, that is important and now how it was obtained.
It was therefore the submission of Counsel that this document being the major document in the case is relevant and was rightly admitted by the Lower Court.
On the question of the document being a Public Document and the Appellants contention that only a certified copy of it is admissible in evidence, Counsel began his arguments on the issue by referring Court to Section 102 of the Evidence Act, on which are referred to as Public Documents under the Evidence Act as follows;
(a) Document forming the Official Acts or records of the Official Acts as listed in (i), (ii) and (iii).
(b) Public records kept in Nigeria of private document.
He said that Official Acts as used in
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sub-section(a) of Section 102 of the Evidence Act is the operative words in the section and it is defined by Blacks Law Dictionary (Fifth Edition) page 978 as; one done by an officer in his official capacity under color and by virtue of his office. He further said that the same dictionary also defined ‘Public Record’ at its page 1107, as; ‘those records which a government unit is required by law to keep.’ Counsel said that Public documents are further qualified by Section 104(1) of the Evidence Act as that type which persons have the right to inspect. From these definitions, learned Counsel queried whether it can be said that a copy of a memorandum written by a private person (not under any government employment) to an investigative panel copy of which was sent to another private person, can be said to qualify as a Public Document which the public has a right to inspect?
It was argued by Counsel, that what the witness said was given to him was never brought from any official custody and what was in public custody was the submitted original copy and not the un-submitted copy. Counsel referred Court to the case
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of GOV. KWARA STATE vs. LAWAL (2007) 13 NWLR (PT. 1051) 347 AT 381, PARAS A-B where this question was adequately answered this as follows;
“There is no doubt in my mind that Exhibit A letter dated 13/4/2004 addressed to the 3rd Appellant by Falana and Falana Chambers, Exhibit C medical report by Dr. Stephen Jenkins dated Appellant are not public documents. These are correspondences of a private nature.”
Counsel explained that Exhibit A in the cited case was a letter (as stated in that judgment) written by a law firm and addressed to the 3rd Appellant in that Appeal, which was a Judicial Commission of Enquiry into the Activities of certain public institutions and officers in Kwara State set up by the Governor the 1st Appellant. He contended that the facts of case supra are all fours with the instant case. It was submitted by Counsel that a copy of the personal letter (Exhibit A) written by the Appellant to the Investigating panel and sent to the CW1 in the instant appeal is no more than a personal letter, and cannot, be elevated to the position of public document. He cited
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the case of SHYLLON vs. UNIVERSITY OF IBADAN (2007) 1 NWLR (PT. 1014) 1 AT 15-16, F-C. See also ABUUL vs. BENSU (2003) 16 NWLR (PT. 845) 59 AT 76-77, paras H-E, where this Court of Appeal held;
“The big question, I or one may ask is, are Exhibits K, L, N, O, P, Q, R, S, and T public documents? From the evidence of the PW1 Exhibit K is a letter, Exhibit L is also a letter reply to Exhibit K, Exhibit N is also a letter of officials of NASU of which the Plaintiffs were members Exhibit O is also a letter, Exhibit P is a letter from NASU, Exhibit Q is a letter from the 1st Respondent, to the Chairman of SSANU and NASU of which the Plaintiffs were members. Exhibit R and S are also letters addressed to the same two bodies, Exhibit I is also a letter from Enugu State University of Science and Technology to the 1st Respondent. It is to be noted that all these said Exhibits were in the custody of the Plaintiffs who filed them and are all contained in Exhibit A. PW1 who produced and tendered them, had
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proper custody of them. So, they were admissible in law. They are all documents produced from proper custody. See Penn-Texas Corporation vs. Murat Anstalt & Ors (1964) 1QB40 at 68 surely and certainly, all the said Exhibits, in my respectful view could not be documents made for the purpose of public making use of them and ones to which the public has access. In other words, they cannot be said to be documents made by public officers for purpose of the public making use of them and being able to refer to them. See the State vs. Arbagrou & 3 Ors (1972) 2 ECSLR 462 AT 466 and Ukana vs. Comm. Of Police (1995) 8 NWLR (Pt. 416) 705 cited and relied on by the learned counsel for the Appellants. I therefore hold that they are not public documents. At best they are correspondence or internal documents.
It was contended by Counsel that the CW1 in the instant case just like the above quoted case, told the trial Court that the Appellant sent the libelous letter (memorandum) to him as the Chairman of the Adapalm Landlords Association. See page 127 of the record. And that the copy (Exhibit A) is the one in his custody and cannot be accessed
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by the public for the purposes of making use of them, as provided under Section 104(1) of the Evidence Act, 2011, and so not a public document. Counsel said that the Appellant relied heavily on the case of ARAKA vs. EGBUE (supra) to contend that Exhibit A was a public document and ought to have been certified and that in furtherance of his arguments on that point, he quoted the Respondents statement in the Court below; which proceeding was conducted under Hon. Justice P. C. Ikpeama, on 22/9/2010 who was the erstwhile Judge in the previous proceeding. He told Court that the matter had to commence afresh and that the Appeal herein is challenging the ruling of Hon. Justice Goddy I. Anunihu. He said Moreover the Respondent who was quoted in the Appellants brief is yet to give his evidence in this case.
Counsel argued that the case having started de novo everything done in the previous proceeding cannot be used for or against any of the parties in the present proceedings without due compliance with Section 46(1) of the Evidence Act, 2011. As a result of this, Counsel urged this Court to disregard every argument proffered by the
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Appellant in paragraph 4.10 of the Appellant brief of Argument, as the statement credited to the Respondent in the previous proceeding is irrelevant in the proceedings before Hon. Justice Goddy I., which is subject of this appeal. Counsel further argued that the cases of ARAKA vs. EGBUE (supra) and TABIK INVEST. LTD vs. G.T.B PLC (supra) cited by the Appellant are distinguishable from the facts and circumstances of the appeal herein and therefore inapplicable to this case.
He said that in that case, it was not in doubt between the parties that the document in question was a public document, but that what was in contention was whether the secondary evidence of the document can be tendered in evidence, considering the existing circumstances.
On the question of failure to lay proper foundation before tendering the said evidence on the part of the Respondent, Counsel told Court that the issue as raised by Appellants is misconceived and in response to the argument of the Appellant, learned Counsel referred to some relevant portions of the evidence of CW1 and the related pleadings on record. He said that the witness (CW1) prior to the tendering of the
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letter, at page 127 of the record said;
This is a copy of the defamatory document sent to me by the Defendant in capacity as the Chairman of Adapalm Landlords Association.
According to Counsel, the facts relating to the circulation of the memorandum letter by the Appellant are contained at Paragraph 8 of the further amended statement of claim copied at page 108 of the record thus; the Defendant published and circulated the document to several and diverse persons including members of Imo State House of Assembly Committee on Agriculture Staff of Adapalm Limited, Polycap Attah and other Associations that are Associated with Adapalm.
Learned Counsel quickly explained that POLYCAP ATTAH is the CW1 referred to in this case and that from his evidence as quoted above, before he sought to tender what he received from the Appellant, whether the copy of the letter (Exhibit A) handed over to him by the Appellant as a photocopy or not, cannot be an issue; the witness having said that the copy he was about to tender was the copy given to him by the Appellant. It was therefore submitted by Counsel
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that the said photocopy is for all intents and purposes primary evidence of what was given to the witness. Counsel further said that the evidence of the facts of who gave him the letter and the type of copy he received can only be challenged during cross examination and would be material if the very existence of the document was in issue. This is despite the fact that the Appellant in his pleading did not deny writing the memorandum letter. Learned Counsel finally submitted on this matter that Exhibit A being a copy of the document given to the witness (CW1) by the Appellant is original of what he received from the Appellant, and the witness is at liberty to tender it as primary evidence. Counsel urged this Court to dismiss the Appeal.
RESOLUTION OF APPEAL
The facts of the case are not in controversy. They are very well set out in the Appellant’s brief. It is an action on libel. The Respondent, as Claimant, filed an action claiming the sum of N50 million as damages for libel against the Appellant in a memorandum dated 31st of August, 2007 written by the Appellant concerning the Respondent to the committee investigating the
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non-payment of workers salary in Adapalm, a Government parastatal in Imo State. By their pleadings the parties joined issues and the matter went to trial. When the trial of the suit commenced before IKPEAMA, J the Claimant sought to tender his copy of the said memorandum when the Defendant, raised an objection to the admissibility of the document. That remained the position until the trial Judge was transferred to another Judicial Division from the Oguta Judicial Division. The suit eventually commenced de novo before a newly transferred Judge, ANUNIHU, J. Hearing of the matter resumed on the 25th day of June, 2012, when the Claimant one Polycarp Attah as CW1 and the same copy of the memorandum was sought, once again to be tendered. Learned Defense Counsel as he did before, objected to the admissibility of the document on the ground that the document sought to be tendered was a copy with no foundations having been laid for its admissibility. In addition, that even if a foundation was laid, that as a Public Document only a certified true copy of the original was admissible. The Learned Trial Judge in a considered Ruling on the 25-6-2012 dismissed the objection
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and proceeded to admit the document as Exhibit A.
The fulcrum of all the issues in this Appeal is in first having to identify the nature of Exhibit A. In other words; is Exhibit A a public or private document? Of course the avowed position of the Appellant in this case is that the said Exhibit is a Public Document. In addition, in learned Counsel’s conjecture, when the Respondent as Claimant pleaded the document in its Statement of Claim at Paragraph 8, what was pleaded was not a copy of the original of the said document and that to make matters worse at the time it was to tendered in evidence, no foundation as prescribed by Section 89 of the Evidence Act, 2011 was laid. Hence, the decision to go on Appeal to this Court when Counsel was overruled by the learned trial Judge who went ahead and admitted the document in evidence as Exhibit A before continuing with the resolution of this Appeal, there may however first be the need to condemn the attitude of learned Appellant’s Counsel and all other Counsel who have made it a habit of running to the Court of Appeal for every conceivable
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disagreement they may have with the slightest legal or factual issue at the Lower Court of trial rather than proceeding with the trial to the end to save time and cost. Nothing stops learned Counsel if at the delivery of the judgment they still feel aggrieved, to include the initial grievance along with other grounds comprehensively in their Notice of Appeal to ventilate all their grievances on all issues once and for all. The Supreme Court in the case of CAPTAIN E. C.C. AMADI vs. NNPC (2000) 6 SCNJ at p. 20 per UWAIS, CJN (As he then was) seriously frowned this practice when the Court said;
“The ruling of the High Court was delivered on the 20th day of June, 1988. The appeal against the ruling was delivered by the Court of Appeal on the 16th day of February, 1989. The final judgment on the interlocutory appeal is delivered today by this Court. It has thus taken thirteen years for the case to reach this stage. With the success of the plaintiff’s appeal before us, the case is to be sent back to the High Court to be determined, hopefully, on its merits after a delay of 13 years. Surely, this could have been avoided had it been that the point was
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taken in the course of the proceedings in the substantive claim to enable any aggrieved party to appeal on both the issue of jurisdiction and the judgment on the merit in the proceedings as the case might be. I believe that counsel owe it, as a duty, to the Court to help reduce the period of delay in determining cases in our Courts by avoiding unnecessary preliminary objections as the one here; so that the adage ‘justice delayed is justice denied’ may cease to apply to the proceedings in our Courts.”
However, on the part of the learned Respondent’s Counsel, he contended that Exhibit A could not have been a Public document, it being a private memorandum written by a private person not under public employment or any other official position of Government. In addition he said that the document was also relevant having been pleaded in evidence. It may be necessary to continue here by stating that the mantra of admissibility under the law of Evidence is the question of relevance. In the case of OMEGA BANK NIGERIA PLC vs. O.B.C. LTD (2005) LPELR-2636 (SC) the Supreme Court per TOBI, JSC (As he then was) had this to say on the
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issue;
After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it. That is the point I am making. Basically, admissibility and weight to be attached to the document admitted are two different things. See AYENI vs. DADA (1978) 3 SC 35.The contentious Exhibit A, it would be recalled, was pleaded at paragraph 8 of the Respondents Statement of Claim filed at the Lower Court. This therefore puts it beyond contestation that the said document in Exhibit A is relevant to this matter. See the Observation of this Court in the case of DONLI vs. ABDULAHI & ORS where this Court per AKOMOLAFE-WILSON, JCA, had this to say;
Relevance is the hallmark of admissibility of documents. Once it is relevant and pleaded and ordinarily admissible under the Evidence Act, then such a document ought to be admitted. The issue of photocopy or custody would be immaterial. It will only go to the probative value to be attached to such documents. See AYENI vs. DADA (1978) NSCC 147 AT 159;
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DR. TORTI vs. UKPABI & ORS (1984) 1 SCNLR 214 AT 227.
It would be recalled that Exhibit A in this action is the document purportedly containing the libelous words about which the Respondent as Claimant had gone before the Lower Court to seek redress. There is therefore no gainsaying the fact that the said Exhibit is pivotal to the resolution of this matter. But the lingering question yet to be resolved is whether the said Exhibit A is a public document or not? It may be necessary to closely take a look at the classical position in which LORD BLACKBURN in the case of STURIA vs. PRECIA (1880) A.C. 623 defined a Public Document as one made by a Public Officer for the purpose of the public making use of it and being able to refer to it especially where there is a judicial or quasi-judicial duty to inquire into it. See also the cases of NZEKWU vs. NZEKWU (1989) 2 NWLR (PT. 104) 373 AT 404; C.C.B. (NIG.) LTD vs. ODOGWU (1990) 3 NWLR (PT. 140) 646.
As for purposes of the Evidence Act, Public Documents have been defined by Section 109 of the Evidence Act to include documents forming the Official Acts or
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records of the Official Acts as listed in the Act and public records kept in Nigeria of private records.
It would be reasonable to argue in line with the submissions of learned Respondent’s Counsel, that the phrase ‘Official Acts’ as used in sub-section (a) of Section 109 of the Evidence Act are the operative words in the Section and it is defined by Blacks Law Dictionary (Fifth Edition) at page 978 as;
“One done by an officer in his official capacity under colour and by virtue of his office.”
Furthermore in line with the arguments of learned Respondent’s Counsel, the phrase, ‘Public Record’ as defined by Black’s Law Dictionary at page 1107 are;
“Those records which a Government unit is required by law to keep.”
Having taken a careful but calm view of the aforementioned definitions and going by the clear facts of this case, the question that should be addressed here is whether it can be said that a copy of a memorandum which was written by the Appellant herein who is in every way of the word, a private person, not being under any Government or Official
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position; and which memorandum was sent to an investigative panel and a copy also sent to another private person, be said to qualify as a Public Document which the public has a right to inspect? In considering another matter with similar facts, this Court in the case of GOV. KWARA STATE vs. LAWAL (2007) 13 NWLR (PT. 1051) 347 AT 381, PARAS A-B per SANKEY, JCA had the following to say on the issue;
“There is no doubt in my mind that Exhibit A letter dated 13/4/2004 addressed to the 3rd Appellant by Falana and Falana Chambers, Exhibit C medical report by Dr. Stephen Jenkins dated Appellant are not public documents. These are correspondences of a private nature.”
What came before this Court for its consideration was whether an Exhibit A a letter written by a law firm and addressed to the 3rd Appellant, which was a Judicial Commission of Enquiry into the Activities of certain Public Institutions and Officers in Kwara State set up by the Governor who was 1st Appellant qualified to be referred to as a Public document. It was submitted by learned Counsel for the Respondent and I have no cause
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to disagree here that a copy of the personal letter in Exhibit A written by the Appellant to the Investigating Panel and sent to the CW1 in the instant appeal is nothing but a personal and private letter which cannot be elevated to the position of a Public document. See also the case of SHYLLON vs. UNIVERSITY OF IBADAN (2007) 1 NWLR (PT. 1014) 1 AT 15-16, F-C. See also ABUUL vs. BENSU (2003) 16 NWLR (PT. 845) 59 AT 76-77, paras H-E also cited by learned Respondent’s Counsel.
In all practical terms, the document written by the Defendant, who is Appellant in this Appeal on 31-8-2007 is a personal memorandum written by him to the committee investigating the non-payment of workers salary in Adapalm. The document only becomes a public document when it comes into the custody of the said committee. Paragraph 8 of the Respondent’s Statement of Claim in this Suit avers that the offending document was circulated and given to this witness, i.e., the CW1 who is the Respondent’s witness at the Lower Court. The said witness in his evidence stated that he received a copy of the said document from the Appellant as Defendant,
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presumably when copies were widely circulated by him. There is no gainsaying the fact that the document received by the CW1 was adequately pleaded and is of course relevant to the suit and therefore admissible in evidence. In agreement with the lower trial Court on the issue, it would be absurd in the least to assume that the same copy of the document given to the committee is the copy given to the other people to whom the document was circulated including the CW1 who had sought to tender it in evidence in the course of trial. It would also be utterly uncalled for, to have asked for a certified true copy when the copy in the custody of the CW1 was the copy circulated to him.
In the final analysis this Appeal fails and it accordingly dismissed. The Ruling of the learned trial Judge, Imo State High Court of Justice sitting at the Oguta Judicial Division and delivered on the 25-6-2012 is hereby affirmed. There shall be cost of N100,000.00 against the Appellant.
Other Citations: (2016)LCN/8669(CA)
