Ezenwa Onwuzuruike V Damian Edoziem & Ors (2016)
LAWGLOBAL HUB Lead Judgment Report
WALTER SAMUEL NKANU ONNOGHEN, J.S.C.
On the 22nd day of August, 1997, appellant, as plaintiff caused a writ of summons to be issued against the respondents in which was endorsed the fallowing PARTICULARS OF CLAIM:
“(1) By a letter signed and addressed to the Area Commander Nigerian Police Owerri, Imo State dated 23/6/47, the Defendants published as concerning the plaintiff and his son as fallows:-
“These young criminals led by Uchenna take off for operation from Ezenwa compound. They also share their boom in the same place. Ezenwa also see to their release whenever they are caught. He often threatens to kill anybody who might have a hand in the death of his criminal son. He is also highly involved in Court practice…… Upon return from Police custody Ezenwa ordered his son to kill a number of persons of Umulede suspected by him to have petitioned for his arrest…”
Photostat copy of the said letter is exhibited as Exhibit “D”.
(2) The meaning of the above cited passage is that the plaintiff is a criminal to wit; a conspirator conspiring with others who engage in robber (sic), thereby aiding and abetting robbery, compounding the felony of
1 robbery by assuring the release of robbery suspects, threatening lives and plotting the murder of eminent persons in his community, and being a member of secret cult which they the society abhoves
(3) By the aforesaid publication, the Defendants have maliciously, falsely and deliberately defamed and disparaged our client, in a calculated attempt to ridicule the plaintiff and cast aspersion on him in order to debase, cast aspersion on him and lower his estimation and substance in the eyes of right thinking Nigerians and more precisely the Area Commander N.P.F. Owerri and his officers.
(4) That fallowing the above stated libelous publication, the Area Commander NPF Owerri, arrested and detained the plaintiff at Area Commander’s Office for seven hours and was later released on bail.
(5) WHEREFORE the plaintiff claims against the Defendants jointly and severally as follows:-
(a) An unqualified apology
(b) A retraction of the said publication
(c) Two million naira (N2m) general damages for the libelous publication unlawful arrest and unlawful detention of the plaintiff for seven hours at the Area Commander’s Office.”
Pleadings were duly filed and exchanged by the parties and
2 the matter proceeded to hearing.
At the trial and during the testimony of the investigating Police Officer, PW2, who investigated the petition in question, the appellant’s counsel sought to tender the petition by the defendants to which counsel for defendants objected on the ground that same was a photocopy and therefore inadmissible as same was not duly certified. Consequently, the document was withdrawn.
Learned counsel for plaintiff then sought to tender what he describes as the original of the petition in question and was objected to on the same grounds as the first attempt.
The learned trial judge overruled the objection holding that the document sought to be tendered was not a public document so as to require certification and admitted same as exhibit “C”. The petition dated 7/7/97 in which some kindred of the parties disassociated themselves with exhibit ‘C’ was also admitted and marked exhibit “D”.
It was the admission of exhibit “C” that resulted in the appeal to the Lower Court, Port Harcourt Division in appeal No. CA/PH/86/2000. In a judgment delivered by that Court on the 15th day of November, 2004, the appeal was allowed resulting in the instant
3further appeal.
In the appellant brief deemed filed on 4/12/13 learned counsel for appellant, CHIEF IKENNA EGBUNA submitted the following two issues the determination of the appeal. These are:
“1. WHETHER THE LEARNED JUSTICES OF THE COURT OF APPEAL WERE RIGHT WHEN THEY HELD THAT EXHIBIT “C” A PETITION WRITTEN TO THE POLICE BY A PRIVATE CITIZEN HAD TRANSFORMED TO A PUBLIC DOCUMENT AND THEREBY REJECTED THE DOCUMENT.
(SEE GROUND 1 IN THE NOTICE OF APPEAL)
- WHETHER THE LEARNED JUSTICES OF THE COURT OF APPEAL WERE RIGHT WHEN THEY HELD THAT EXHIBIT “D” ADMITTED BY THE TRIAL COURT WITHOUT OBJECTION IS INADMISSIBLE. (SEE GROUND 2 OF THE NOTICE OF APPEAL)”
In arguing issue 1, learned counsel referred to Section 102 of the Evidence Act, 2011 on what constitutes public documents as well as Blacks Law Dictionary, 9th edition, pages 1348 for the definition of the word “PUBLIC” and 555 for the definition of “PUBLIC DOCUMENT vis-a-vis the definition of “PRIVATE” at page 1315 supra and submits that a consideration of the definitions in the light of the decisions of the Lower Court clearly shows that the Court of Appeal is in error in holding that exhibit ‘C’ is a public
4 document; that a petition written by a private individual to a Police Area Commander cannot form the acts or records of official acts of official bodies etc; that exhibit “C” was tendered from proper custody by the IPO and was duly admitted by the respondents in their pleadings and that by the provisions of Section 123 of the Evidence Act, 2011, what is admitted needs no further proof. Learned counsel further cited and relied on Reynolds Construction Co. Nigeria Ltd v. Rock Onoh Properties Co. Ltd (2005) 10 NWLR (pt. 934) 615 at 628; Mrs Ethel O.D. Orji v. Dorji iles Mils (Nig) Ltd & ors (2009) 18 NWLR (pt. 1173) 467 at 500; Allan J. Salawu & ors v. Mallam A. A. Yusuf & ors {2007) 12 NWLR (pt. 1049) 707 at 734 and Ezemba v. Ibeneme & ors (2004) 14 NWLR (pt.894) 617 at 690. Finally learned counsel urged the Court to resolve the issue in favour of appellant.
On his part, learned counsel for the respondents, F.A. ONUZULIKE, ESQ referred to the provisions of Section 109 of the Evidence Act, 2011 and submitted that exhibit ‘C’, being a letter from the respondents to the police became part of the record of the police upon receipt; that the document
5 sought to be tendered was therefore from the police record; that the IPO was required to tender the original petition as primary evidence under the provisions of Section 94(1) of the Evidence Act, 2004 or a certified true copy of the petition as secondary evidence in accordance with Section 97(2) (c) of the Evidence Act. 2004: that the trial Court based its decision to admit exhibit “C” on the ground that it was a private document addressed to the police and therefore not a public document; that there is no doubt that exhibit “C” is a photocopy; that the Court should also look at the document and evaluate same relying on Tabik Investment Ltd v. G.T.B. (2011)All FWLR (pt. 602) 1592 at 1607, and urged the Court to resolve the issue against appellant.
There is no doubt whatsoever that exhibit “C’ is a photocopy of the petition written by the respondents to the Area Police Commander, Owerri. The dispute, however is whether the said document as a private document or a public document within the law so as to require certification for it to be admissible in evidence. It is the view of the trial Court, as expressed at page 87 of the record that exhibit “C’ is a private
6 document and as such it does not need certification. The Court held, inter alia, thus:
“A petition addressed to the police case (sic) by a private citizen does not thereby become a public document within the meaning of S. 109 of the Evidence Act. The document sought to be tendered, is therefore not a public document as to require certification.”
It should be noted that the issue as to whether a document needs certification relates to admissibility of secondary evidence of the original document Under the provisions of Section 94(1) of the Evidence Act the original of a document is what is known as primary evidence while a copy of the original document is known as secondary evidence of the original – see Section 97(1) supra.It is settled law that documents must be proved by primary evidence except in certain circumstances provided under Section 97 of the Evidence Act. The exceptions where secondary evidence may be given and admitted of the existence, condition or contents of the original document (a) the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person legally bound to
7 produce it and does not produce it despite being served with notice as stated in Section 98 of the Act or the original is a public document within the meaning of Section 109 of the Evidence Act, supra, in which case the secondary evidence admissible is a certified true copy.
In the instant case, both counsel are in agreement that only a certified true copy of a public document is admissible in evidence as secondary evidence. The dispute, however is whether exhibit “C” is a private document or a public document. Whereas appellant contends that it is a private document which needs no certification, the respondents argue that it is a public document which needs certification. The trial Court agreed with appellant while the lower Court agreed with the respondents. The issue, therefore, is which of the contending views is correct To determine the issue, we have to know what a public document is and whether exhibit ‘C’ falls within that purview.
Section 109 of the Evidence Act, Cap 112, Laws of the Federation of Nigeria (now Section 102 of the Evidence Act, 2011) provides, inter alia, as
“The following documents are public documents:-
(a) Documents forming the
8official Acts or records of official acts –
(i) of the sovereign authority,
(ii) of official bodies and tribunals
(iii) of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere.
(b) Public records kept in Nigeria of private documents.”
In reversing the decision of the trial Court on admissibility of exhibit “C’, the Lower Court held, inter alia,
“Exhibit ‘C’ a letter dated 25th June, 1997 captioned “PROTEST AGAINST THREAT TO OUR LIVES” which contains the alleged defamatory words was addressed to, the Commissioner of Police, Owerri Imo State. The paragraph of the said Exhibit contains a plea to the police, to save their souls from Ezenwa (the plaintiff/respondent) and his groups. The addressee – the Commissioner of police is a public officer charged under the Constitution of the land, for the maintenance of law and order. Exhibit ‘C’ in my humble view, It has become part of the official records of the police. In writing Exhibit ‘C’ and forwarding it to no other person than the Commissioner of Police, the writers, again in my view, intended that it (Exhibit C) be given official treatment, thus acquiring official coloration. The
9 Nigeria Police is a public institution carrying official tag. So, documents though private in nature, when sent to the Nigeria Police requesting it to discharge its Constitutional duties, upon their receipt by the Nigeria Police became public records kept by then of private document. From the foregoing, Exhibit ‘C’ comes within the category of documents defined in Section 109 (b) of the Evidence Act. To hold otherwise is to accord Section 109 (b) strained interpretation
It is far all I have said supra that I hold that exhibit C is a public document. That being the case, since exhibit ‘C’ was not certified the learned trial Judge was wrong in law to have admitted it in evidence. In therefore answering the question posed by issue No. 4 on the appellants’ brief, I say that the petition is not a private document rather it is a public document. Similarly, I answer issue No. 1 on the respondents in the affirmative. Exhibit ‘C’ is a public document
Is the Lower Court correct in so holding supra
In the case of Tabik Investment Ltd v. G.T.B (2011) All FWLR (pt 602) 1592 at 1607 this Court held that a private petition sent to the police, as in the instant case, formed
10 part of the record of the police and consequently a public document within the provisions of Section 109 of the Evidence Act. The Court held as fallows:-
“By the provision of Section 318(b) of the Constitution of the Federal Republic of Nigeria 1999 and Section 18(1) of the interpretation Act, a police officer is a public officer and so all documents from the custody of the police, especially documents to be used in Court are public documents.”
Finally, in the recent case of Aromolaran v. Agoro (2014) 18 NWLR (pt. 1438) 153 this Court held that a letter written to the Governor of a State in his official capacity by a person who is not a government official, is public document because it is a public record kept in Nigeria of a private document which comes under the provisions of Section 109(b) of the Evidence Act, Cap. 112 of the Lagos of the Federation of Nigeria, 1990 (now Section 102 of the Evidence Act, 2011.
In that case, exhibit P7 was adjudged a public document and that there ought to have been a certification that it was a true copy of the original to make it admissible in evidence. In the circumstance and having regard to the state of the law, I find no
11 merit in issue 1 and consequently resolve same against appellant.
On issue 2, learned counsel submitted that the Lower Court was in error in holding that exhibit ‘D’ was inadmissible when same was admitted without objection at the trial Court; that the document was admitted by the appellants when they failed to join issues with the appellants in their pleading; that the document was pleaded in paragraph 7 of the statement of claim but no issue was joined thereon by the respondents in their statement of Defence, that the respondents are deemed to have admitted the documents and the Lower Court was in error in holding that exhibit ‘D’ was inadmissible and urged the Court to resolve the issue in favour of appellant and allow the appeal.
On his part, it is the submission of learned counsel for the respondents that a Court can expunge from record a document wrongly admitted in evidence even at the point of writing the judgment, or on appeal; that exhibit ‘D’ was tendered by PW2 – the IPO; that when PW2 sought to tender exhibit C, counsel for the respondents raised an objection to its admissibility; that the second time exhibit ‘C’ was sought to be tendered, counsel
12 for the defence pointed out that the document was accompanied by several other documents, after which the trial Court delivered its ruling admitting the petition as exhibit ‘C’ and one other accompanying document as exhibit ‘D’, that exhibit ‘D’ is one of the other documents counsel for appellant sought to tender along with exhibit ‘C’ which was objected to; that the Lower Court was right in rejecting exhibit ‘D’ and urged the Court to resolve the issue against appellant and dismiss the appeal.
I have carefully gone through the record of proceedings in the trial Court and have found nothing to contradict the finding by the Lower Court at page 92 of the record leading to the rejection of exhibit ‘D’. The findings
“As quoted supra, the leaned trial Judge in his ruling admitting exhibit ‘C’ had said that another group wrote petition dated 7/7/97 disassociating them from the petition written by the defendants which they addressed to the Area Commander. He further said that there was no objection to its admissibility by counsel for the appellants. This is contrary to what the learned trial Judge recorded that there was an objection as regarded supra. What more,
13 there is nothing on record to show that the witness manifested any intention to tender another petition dated 7/7/97 said to have been written by another group; yet the learned trial Judge admitted it as exhibit ‘D’. This is grossly wrong in Law.”
As stated earlier, the above finding cannot be faulted having regard to the record. I therefore have no reason to disturb same. I agree entirely with the Lower Court on this issue and consequently resolve the issue against appellant.
It has to be observed that this is yet another interlocutory appeal all the way to the Supreme Court while the substantive matter pends at the trial Court. It has taken some years before the issue is resolved at the expense of expeditious disposal of the case. With the final resolution of the issue, the parties have to return to the Court of trial for the hearing to either continue or start de novo depending on the circumstances. This is very sad indeed.In conclusion however, I find no merit whatsoever in this appeal which is accordingly dismissed with two hundred and fifty thousand naira (N250,000:00) costs against the appellant, in favour of the respondents.
Appeal dismissed.
SC.293/2005
