Kwara State Water Corporation & Ors V. Aic Nig. Ltd & Anor (2008)

LawGlobal-Hub Lead Judgment Report

CHIMA CENTUS NWEZE, J.C.A.

The first respondent here-in [plaintiff at the lower court] took out a writ of summons at the Federal High Court holden at Ilorin against the appellants [defendants at the lower court] claiming certain declaratory and injunctive reliefs.

Sequel to the settlement of pleadings, the first respondent [as plaintiff] beseeched the court with an application for an order of stay of proceedings and a reference to arbitration.

The lower court [coram Olayiwola J] granted the reliefs prayed for: it entered an order staying the proceedings. In consequence, it granted the parties the indulgence to explore a resolution of their differences through arbitration. The defendants were dissatisfied with the outcome of that application, hence this appeal. They formulated three issues for the determination of this court.

The first respondent greeted the Notice of Appeal with a preliminary objection, praying for:

An order striking out grounds (sic) the Appellants’ Notice of Appeal dated 1/3/07 on the ground of incompetence for non-compliance with Section 242 of the Constitution of the Federal Republic of Nigeria 1999.

The objection was erected on four grounds, namely:

(a) The decision of the Federal High Court delivered on the 14th (sic, 18th) of February, 2005 was interlocutory in nature.

(b) Grounds 3, 4 and 5 of the Appellants’ Notice of Appeal dated 1st March, 2005 do not raise questions of Law and are on the contrary grounds of facts or at best mixed law and fact.

(c) An appeal against the interlocutory decision of the Federal High Court on grounds other than error of law does not lie as of right.

(d) The Appellants did not obtain the leave of either the Federal High Court or this Honourable Court before filing grounds 3, 4 and 5 of their Notice of appeal dated 1st March, 2007.

When the appeal came up for hearing on October 22, 2008, counsel for the first respondent adopted the brief deemed properly filed on June 18, 2008.

Before proceeding with the determination of this appeal, it is only meet and proper that I dispose of the issues raised in the said objection. I will, therefore, deal with it now.

THE PRELIMINARY OBJECTION

As already shown above, the objection was erected on four grounds. We shall deal with them seriatim.

(a) THE INTERLOCUTORY NATURE OF THE SAID RULING

Counsel observed that for a proper determination of the preliminary objection, the nature of the order which the lower court made on 18/2/05 must be considered. In his view, if the order was interlocutory in nature, then any ground of appeal challenging it must be with the leave of either the High Court or of this court, except where it is a ground of law.

He pointed that that although there are two tests for determining whether an order of court is interlocutory or final: the nature of the application made to the court and the nature of the order made, the courts have adopted the “nature of the order made” test, citing Alor v. Ngene (2007) 17 NWLR (pt. 1062) 163, 178-179 paragraph D.

Emboldened by the principles enunciated in that case, he characterised the order under appeal as interlocutory for the following reasons:

(a) it stayed the proceedings to enable the parties resort to arbitration.

(b) the court, by the order, did not decline jurisdiction to entertain the matter. It merely directed the parties to a different forum for a determination of the issues in dispute between them.

(c) Since it did not dabble into the substantive case, it did not determine the rights of the parties to the litigation.

(e) By the provisions of section 7 of the Arbitration and Conciliation Act Cap A18 Laws of the Federation of Nigeria 2004, the parties can still have recourse to the court in the appointment of the arbitrators in certain circumstances.

Counsel cited and relied on the authority of Halsbury’s Laws of England, (Fourth edition) page 287 paragraph 557 for the proposition that where an appeal lies from a judge direct to the Court of Appeal with leave of the judge or of the Court of Appeal, then the order is interlocutory. He submitted that the said order of stay of proceedings was interlocutory in nature.

He turned to the next ground. He observed that since the said order was interlocutory in nature, any ground of appeal challenging it other than a ground complaining of an error of law must be with leave of court.

Citing and relying on sections 241 and 242 of the Constitution, he submitted that an appeal can only lie with leave of either the trial court or the Court of Appeal against the interlocutory decision of the High Court.

He further submitted that as the order of 18/2/05 was interlocutory in nature, the appellants’ Notice of Appeal dated March 1, 2005 ought to have been filed pursuant to the leave of court, except if it was only predicated on grounds of law, section 241 (1) (b) of the Constitution. The leave envisaged is one under Section 242(1) of the Constitution.

Counsel pointed out the appellants filed five grounds of appeal against the said decision of the lower court. He submitted that grounds 1, 3, 4 and 5 raise either issues of fact or, at best, grounds of mixed law and fact. As such, they could only have been filed with the leave of court. Since no leave was obtained, they are liable to be struck out.

He took the view that the approach which the appellants adopted notwithstanding, the court has a duty to examine the said grounds with a view to ascertaining whether they really qualify as grounds of law or not, Obatoyinbo v Oshatoba (1996) 5 NWLR (pt. 450) 531, 547-548 paragraphs G-A; Ogbechi v. Onochie (1988) 2 NWLR (PT. 74) at page 491.

Against the background of these cases, he characterised a ground of law as one that:

(a) complains about or reveals the lower court’s misunderstanding of the law

(b) involves the misapplication of the law by the lower court to facts already proved or admitted.

On the other hand, he described a ground of mixed law and fact as one that would require the appellate court’s questioning the lower court’s evaluation of facts before application of the Law.

On the basis of these typologies, he ranked grounds 1, 3, 4 as grounds of mixed law and fact. He took the grounds seriatim.

On ground 1, he noted that it was a direct result of the finding of the learned court [page 80 of the record] that the documents attached to the affidavit in support of the application are not public documents for the purpose of the first respondent and that they were admissible under section 95 of the Evidence Act.

Counsel explained that the said finding arose out of the fact that the documents under reference were written by the appellants to the first respondents. In his view, section 95 of the Evidence Act deals with the factual basis which makes a document a secondary evidence of the other.

He submitted that the real controversy under Issue 1 is not whether the documents are copies of a public document. The real issue is the circumstances that brought the documents into existence (which circumstances are undoubtedly factual) and whether the said circumstances make the documents admissible under section 95 of the Evidence Act. He submitted that this is clearly one of mixed Law and fact.

Counsel pointed out that ground three complains that the lower court was in error when it held that the interest of justice would not be served by the exclusion of the exhibits attached to the first respondent’s application for stay of proceedings. In his view, the appellants are, in effect, contending that the failure of the court to exclude the documents did not serve the cause of justice.

He contended that this ground is one of mixed law and facts since it involves the consideration of the entire facts of the case. What is more, it is the facts of each case that will determine whether the decision of a court meets the justice of the case, Obatoyinbo v. Oshatoba (supra) at page 549 paragraphs C- D.

Furthermore, counsel observed that ground four complains about the holding of the learned trial Judge that a consideration of the issue whether there was an agreement between the parties would prejudice the substantive case. In order to consider this ground, counsel maintained, the court would have to examine the pleadings and claims of the parties in the substantive case and the facts submitted to the court in the application giving rise to this appeal. That, in his view, is the only way of determining if the lower court was right or not. The ground is, therefore, one of mixed law and fact.

He took the view that ground five is directed at the order of stay of proceedings granted by the lower court. In the first place, the particulars made reference to the fact that there was no consultancy agreement or an arbitration clause binding on the appellant. These are clearly questions of fact. Above all, the decision of the trial judge on this point was made after a consideration of the facts: for the determination of the question of the existence of a consultancy agreement, recourse must be had to the facts.

Counsel urged the court to strike out grounds 1, 3, 4 and 5 of the Notice of Appeal and issues 2 and 3 formulated from them.

Above all, as Issue one in the appellant’s brief was distilled from Issues (sic) 1 and 2, he submitted that Issue one should be struck out as the court cannot embark on a surgical exercise to separate arguments canvassed on a competent issue from arguments canvassed on an incompetent one. This fate should befall ground two which, though competent, has been argued with an incompetent ground, citing Kadzi International Limited v Kano Tannery Co. Limited (2004) 4 NWLR (pt. 864) 545, 563 paragraphs C-G

In their reply brief, the appellants joined issues with the objector’s preliminary objection. In the first place, it was submitted that the above objection is unmeritorious. It was conceded that the said decision was interlocutory being a decision that stayed the proceedings to enable parties resort to arbitration. The decision neither delved into the substantive claim nor did it finally determine the dispute between the parties. It only settled the question of reference to arbitration.

It was explained that the appellants [defendants before the trial court] contended that there was no agreement whatsoever between the parties that could allow them have recourse to arbitration in the event of any dispute. It was actually the first respondent [the plaintiff at the lower court] who sought to establish the existence of an arbitral agreement between the parties. In furtherance of this aim, it exhibited some documents which included some correspondences between the parties and an unsigned/unexecuted consultancy agreement.

Counsel observed that the documents which the first respondent exhibited were secondary evidence of public documents within the context of the Evidence Act. They ought to have been certified before their being tendered. In counsel’s view, it did not matter whether the uncertified documents were tendered in the substantive case or in an interlocutory application: if they were not certified, they remained inadmissible in all proceedings at all times.

It was observed that the documents in question were not certified. That notwithstanding, the learned trial judge admitted them in evidence. He made use of them in arriving at an erroneous conclusion that the interest of justice would be better served if parties approached an arbitrator to resolve their disputes. Counsel submitted that all the five grounds of appeal relate to the erroneous admission of the exhibits tendered at the lower court. He contended that the complaint of the appellants against the trial court’s decision is that it not only misunderstood the law pertaining to admissibility of public documents, it also misapplied the law on same, Ogbechi v Onochie (1986) 1 NWLR (pt. 70) 370. The court, in the process, came to the erroneous decision that there was an arbitral agreement between the parties.

It was submitted further that no ground of fact or mixed law and facts is contained in the appellants’ grounds 1, 3, 4 and 5 or any other grounds: indeed, the crux of the appellants’ complaint is the wrongful admission of the unexecuted agreement and the use the court made of them in holding that a clause therein must operate and bind the parties.

Counsel submitted that this court need not go into the facts of the substantive case to determine which documents are admissible since the law is very clear and settled on the condition (s) for the admissibility of documents: public documents and unsigned/unexecuted agreement inclusive. The appellants’ submission, in effect, is that the admissibility of secondary evidence is regulated by section 95 of the Evidence Act, Okeke v Petermag Nig Ltd (2005) ALL FWLR (pt. 263) 760; Jinadu v Esurombi-Aro (2005) ALL FWLR (pt. 251) 349; Aiki v Idowu (2006) ALL FWLR (pt. 293) 361.

What is more, the admission of uncertified documents whether in the main case or at the interlocutory stage is also regulated by law, Fawehinmi v IGP (2000) 7 NWLR (pt. 665) 481. Thus, a complaint about a wrongful application of such a law cannot be misconstrued as a ground complaining about facts and there is no mixture of fact and law in respect of same.

Counsel urged the court to hold that the complaint of the appellants in all the grounds of appeal pertain to issues of law and the application of the law relating to admissibility of documents. Consequently, all the arguments and submissions canvassed by the first respondent are totally irrelevant to this case. Equally, the authorities cited in the respondent’s amended brief are all inapposite to this case.

He prayed the court to discountenance the first respondent’s objection and to hold that all the appellants’ grounds of appeal are competent and purely grounds of law that require no leave of court, section 241 (1) (b) Constitution of the Federal Republic of Nigeria 1999; Onabiyi v I.O.N. PETROLEUM LTD (2005) ALL FWLR (pt. 291) 1787. He prayed the court to consider this appeal on its merit.

Now, the ruling of the lower court, the subject of this appeal, was delivered on February 18, 2005. We invite His Lordship to repeat the findings which provoked the appeal herein. At 80, His Lordship said:

I would start with the issue of non-certification of the documents exhibited by the plaintiff/applicant. The documents referred to are exhibit a- letter from Ministry of Justice, (sic) the Chairman of the plaintiff company. Exhibit B1- letter from the Ministry of Justice to the General Manager of Plaintiff Company, exhibit C the agreement and exhibit D letter from plaintiff’s solicitor to the Ministry of Justice on arbitration.

The question I pose is, are exhibits A and B which are letters from the Ministry to the plaintiff company strictly speaking public documents.(sic) I agree that they are public documents to the Ministry, but are they public documents to the recipient of the documents and who has custody of them? Has the custodian got any duty to take the document (sic) to the Ministry again for certification before they can be used in affidavit evidence? I would say no. The same goes for the copy of the agreement and letter from the plaintiffs solicitor to the defendant.

In my opinion these documents are admissible under section 95 of the Evidence Act which provides for admissibility of secondary as the documents are photocopies of the original documents in the custody of the applicant. Furthermore this is an interlocutory application and not at the final stage of the process. See the case of Adejumo v Gov. Lagos State (1970) 1 ALL NLR 183 at 187 on the point.

That was the reasoning and conclusion that led to this interlocutory appeal. In all, the appellants filed five grounds of appeal. However, only grounds 1, 3, 4 and 5 are being challenged on the ground they are grounds of mixed law and fact. They were couched thus:

(A) GROUND I

GROUND ONE

The learned trial judge erred in law when he held that Exhibit A – F attached to the Applicant/Respondent’s Affidavit in support of motion for stay pending arbitration are admissible under Section 95 of Evidence Act.

PARTICULARS

1. The Plaintiff as applicant in the lower court attached Exhibits A.F to its Affidavit in support of motion for stay pending arbitration.
2. The attached exhibits are all photocopies of public documents
3. The attached photocopies are not certified as required by law.
4. Under the law it is only certified copies of secondary evidence of public documents that are admissible.

(B) GROUND 3

GROUND THREE

The learned trial judge erred in law when he held that the end of justice will not be served by excluding the documents which serve to bring the issue of arbitration into focus.

PARTICULARS

1. The Applicant at the lower court attached uncertified copies of public documents to pray the court for stay pending arbitration.
2. The documents so attached are not admissible as they are not certified.
3. The court below ought to have excluded the documents and treated them as worthless papers.
4. There was no such arbitration clause that could be made to operate between the parties.

(C) GROUND 4

GROUND FOUR

The learned trial judge erred in law by holding that to consider whether there was an agreement or not, at the interlocutory stage, will prejudice the substantive case.

PARTICULARS

1. Stay of proceedings was granted by the trial court to pave way for arbitration as provided by Exhibit C.
2. Exhibit C was not a document signed sealed and delivered in line with the decision in Sanyina v. African Int. Bank (2001) 4 NWLR (PT. 703)

(D) GROUND 5

GROUND FIVE

The learned trial judge erred in law when it ordered the proceedings in the case to be stayed pending arbitration.

PARTICULARS

I. There was no consultancy agreement between the parties.

2. There was no arbitration clause that the parties have subscribed to be bound in case of dispute.

GROUND ONE: INTERLOCUTORY RULING

As noted above, the preliminary objection was erected on four grounds. However, both parties are ad idem on the status of the said order of February 18, 2005 as an interlocutory order. There is no point, therefore, belabouring the first ground of the objection. Suffice it to say that I am in agreement with the parties that the order in question was an interlocutory order. Decided cases on this point are legion: they are so many that the point has, indeed, become trite, Olatunde v OAU (1998) 4 KLR (pt. 61) 741; Iwueke v I.B.C (2005) 17 NWLR (pt. 955)447; Western Steel Works v Iron and Steel Workers Union (1986) 3 NWLR (pt. 30) 617. The first ground is, therefore, well-taken that the order of February 18, 2005 was interlocutory in nature.

Furthermore, it is also a correct postulation to say that while appeals as of right are exercisable in the manner consecrated in section 241 of the Constitution of the Federal Republic of Nigeria, 1999, section 242 of the Constitution prescribes the mode of exercising appeals with the leave of the Federal High Court or of a High Court or of the Court of Appeal.

(b)SECOND GROUND OF OBJECTION: GROUNDS OF MIXED LAW AND FACT

It was contended that grounds I, 3, 4 and 5 do not raise questions of law but rather are grounds of fact or at best grounds of mixed law and fact. We shall take them seriatim. First: ground 1. For ease of reference, we shall reproduce the ground again:

GROUND ONE

The learned trial judge erred in law when he held that Exhibit A – F attached to the Applicant/Respondent’s Affidavit in support of motion for stay pending arbitration arc admissible under Section 95 of Evidence Act.

PARTICULARS

5. The Plaintiff as applicant in the lower coul1 attached Exhibits A-F to its Affidavit in support of motion for stay pending arbitration.
6. The attached exhibits are all photocopies of public documents
7. The attached photocopies are not certified as required by law.
8. Under the law it is only certified copies of secondary evidence of public documents that are admissible.

We shall set this ground in the context of the ruling of the lower court. At page 80, the court ruled:

The documents referred to are exhibits (a) – letter from Ministry of Justice, (sic) the Chairman of the Plaintiff Company. Exhibit B1- letter from the Ministry of Justice to the General Manager of Plaintiff Company, exhibit C the agreement and exhibit D letter from plaintiffs solicitor to the Ministry of Justice on arbitration. The question I pose is, are exhibits A and B which are letters from the Ministry to the plaintiff company strictly speaking public documents. (sic)

I agree that they are public documents to the Ministry, but are they public documents to the recipient of the documents and who has custody of them? Has the custodian got any duty to take the document (sic) to the Ministry again for certification before they can be used in affidavit evidence? I would say no. The same goes for the copy of the agreement and letter from the plaintiffs solicitor to the defendant. In my opinion these documents are admissible under section 95 of the Evidence Act which provides for admissibility of secondary as the documents are photocopies of the original documents in the custody of the applicant. Furthermore this is an interlocutory application and not at the final stage of the process. Sec the case of Adejumo v Gov. Lagos State (1970) 1 ALL NLR 183 at 187 on the point.

The first respondent contended that the above ground (ground 1) did not raise a ground of law.

The courts have very often confessed the difficulty in distinguishing a ground of law from a ground of mixed law and fact, Ogbechie v Onochie (1986) 1 NWLR (pt. 70) 370 (where Eso JSC approvingly adopted the scintillating expose on the subject by C. T. Emery and Professor B. Smythe in their article titled, “Error of Law in Administrative Law”, in Law Quarterly Review Vol. 100 (October 1984); UBA Ltd v Stahlbau Gmbh & Co (1989) 3 NWLR (110) 374, 391-392; Obatoyinbo v Oshatoba (1996) 5 NWLR (pt. 450) 531, 548; MDPDTv Okonkwo (2001) 3 KLR (pt.117) 739 etc.

This handicap, notwithstanding, they have ingeniously fashioned out formulae for navigating through the nuances of the characterisation of the grounds. The first formula aims at facilitating the ascertainment of what constitutes a ground of appeal. It comes to this: a court has a duty to do a thorough examination of the grounds of appeal filed.

The main purpose of the examination will be to find out whether – if from the grounds of appeal, it is evident that the lower court misunderstood the law or whether the said court misapplied the law to the facts which are already proved or admitted. In any of these two instances, the ground will qualify as a ground of law.

On the other hand, if the ground complains of the manner in which the lower court evaluated the facts before applying the law, the ground is of mixed law and fact. The determination of grounds of fact is much easier.

Put in very simple terms, this formula simply means that it is the essence of the ground; the main grouse: that is, the reality of the complaint embedded in that name that determines what any particular ground involves, Abidoye v Alawode (2001) 3 KLR (pt. 118) 917, 919; NEPA v Eze (2001) 3 NWLR (pt. 709) 606; Ezeobi v Abang (2000) 9 NWLR (pt. 672) 230; Ojukwu v Kaine (2000) 15 NWLR (pt. 691) 516. In effect, it is neither its cognomen nor its designation as “Error of Law” that determines the essence of a ground of appeal, Abidoye v Alawode (supra) 927; UBA Ltd v Stahlbau Gmbh & Co (1989) 3 NWLR (110) 374, 377; Ojemen v Momodu (1983) 3 SC 173.

Against this background, we are under a duty to consider the above ground again. In my humble view, the crux of the appellants’ complaint in this ground is that the exhibits in question are photocopies of public documents, photocopies of public documents which were not certified as prescribed by law. Their response to the approach of the trial court is that in law only certified true copies of secondary evidence of public documents are admissible.

With due respect, I do not see how this ground can be interpreted to mean a ground of facts or of mixed law and facts. On the contrary, they are grounds of law within the meaning of the above formula. From the above excerpt, it is not in doubt that the error of the lower court embraced the two instances above: the Judge misunderstood the law (section 109 Evidence Act) which defines public documents and misapplied section 97(2) (c) of the Evidence Act to the uncertified photocopies of the public documents.

In effect, the ground challenged the conclusion of the lower court for deviating from the established principles of law guiding the admissibility of secondary evidence of public documents (in this case, uncertified photocopies of public documents).

The complaint was against the failure of the trial court to apply the principles laid down by the superior courts. The ground raises an issue of law based on accepted grounds of law, E.S. & C.S. Ltd. v N.M.B. Ltd (2005) 7 NWLR (pt. 924) 215; Maigoro v Garba (1999) 10 NWLR (pt. 624) 555. Above all, it is even trite that a ground of appeal which complains that a lower court admitted and acted on inadmissible evidence is a ground of law, Olarenwaju v Ogunleye (1997) 1 KLR (pt. 47) 225, 232. The objection against this ground, therefore, fails.

As shown above, Ground three complains thus:

The learned trial judge erred in law when he held that the end of justice will not be served by excluding the documents which serve to bring the issue of arbitration into focus.

PARTICULARS

1. The Applicant at the lower court attached uncertified copies of public documents to pray the court for stay pending arbitration.
2. The documents so attached are not admissible as they are not certified.
3. The court below ought to have excluded the documents and treated them as worthless papers.
4. There was no such arbitration clause that could be made to operate between the parties.

The preliminary objection equally challenged this ground. It is settled that in determining the nature of a ground of appeal, the ground and its particulars must be read together. The reason for this formulation is simple: it is only by reading the ground as a whole that it can be determined what the appellant is complaining about in the judgment. Thus, the body of the ground is not to be considered in isolation of its particulars, Orakasim v Menkiti (2001) 5 KLR (pt. 121) 1397, 1407.

Now, from the way the fourth particular was couched, it is not in doubt that we are being invited to investigate the subsistence or otherwise of an arbitration clause in the documents in question. This, in my humble view, is an invitation to investigate the existence of certain facts [in this case, whether the said documents contain any arbitration clause]. This invitation [to consider the documents to ascertain whether they contain an arbitration clause] renders, what ordinarily would have been a ground of law complaining about the admissibility of uncertified copies of public documents, a ground of mixed law and fact, Yamusa v Okolo (2001) 18 WRN 164.

I, therefore, agree with the first respondent that leave ought to have been obtained with respect to this ground. I hold that this ground is incompetent since no leave was sought and obtained before filing it, Ogbonnaya Godwin v The Christ Apostolic Church (1998) 12 KLR (pt. 73) 2465, 2478.

With respect to ground four, it was submitted that the court would have to examine the pleadings and claims of the parties in the substantive case and the facts submitted to the court in the application giving rise to this appeal. That, in counsel’s view is the only way of determining if the lower court was right or not.

There is considerable force in the contention that this is a ground of mixed law and fact. A judicial prescription, which has long matured into a principle of law, is that in interlocutory applications, a court must endeavour not to make any pronouncement that is capable of prejudicing the substantive suit, Guaranty Trust Bank Plc v Fadco Industries Ltd. (2005) All FWLR (pt. 287) 913. In this case, the determination of the question whether there was an agreement between the parties, is not only a factual question requiring the leave of court, it will, actually, involve the examination of the pleadings and other documents.

Ground five complained that the learned trial judge erred in law when he ordered the proceedings in the case to be stayed pending arbitration.

The particulars were given thus

(1) There was no consultancy agreement between the parties.

(2) There was no arbitration clause that the parties have subscribed to be bound in case of dispute.

This ground undoubtedly challenges the trial court’s exercise of discretion in granting an application by the first respondent for stay of the proceedings. This being so, the objection to its validity is well-taken. A ground of appeal which challenges a trial court’s exercise of discretion in granting an application is a ground of mixed law and fact. This ground required the leave of either the lower court or of this court. Since no leave was obtained, I declare it incompetent, Williams v Mokwe (2005) 14 NWLR (pt. 945) 249, 261.

In all then, the objection to the competence of grounds three, four and five succeeds. These grounds are hereby struck out. Issues two and three formulated from them are also struck out. So, only the first Issue will be considered in the main appeal.

ARGUMENTS ON THE MAIN APPEAL: ISSUE ONE

Having regard to the above conclusions on the incompetence of the above-cited grounds and issues two and three, only issue one as formulated by the appellants [concreted from grounds one and two] will suffice to dispose of the main appeal. It was couched thus:

1. Whether the learned trial judge was right to have admitted Exhibits which are not certified as required by the Evidence Act and rely on same as basis for his ruling.

(Grounds 1 & 2).

Counsel for the appellants urged the court to answer this issue in the negative. He submitted that the only admissible secondary evidence of a public document is the certified copy, section 97 (1) (e) and (2) (c) of the Evidence Act; Shogo v Adebayo (2000) 14 NWLR (pt. 686) 121.

He submitted that the exhibits attached to the said application for stay of proceeding pending arbitration are all public documents under section 109 of the Evidence Act. It was further submitted that the documents are not originals but photocopies. In effect they are secondary evidence of public documents requiring certification before they become admissible. It was pointed out that none of the documents referred to was certified as required by the law. It was, therefore, submitted that the learned trial judge, was wrong to have admitted them on the ground that the end of justice would not be served when the documents were excluded.

It was further submitted that the lower court was in error when it held that the uncertified secondary public documents were admissible in an interlocutory application, relying on the case Adejumo v Gov. Lagos State (1970) 1 ALL NLR 183,187.

Counsel took the position that uncertified secondary evidence of public documents remains inadmissible at all times. For this purpose, it is immaterial whether they were tendered at the interlocutory application stage or in the substantive action, Fawehinmi v IGP (2000) 7 NWLR (pt. 665) 481, 525 and 532.

It was observed that Adejumo v Gov. Lagos State (supra) is inapposite. Counsel urged the court to hold that the lower court was wrong to have used the uncertified secondary documents to arrive at a decision, which was perverse, Fawehinmi v IGP. He urged the court to resolve this issue in favour of the appellant.

On its part, the first respondent’s main contention is that the said documents do not qualify as public documents, citing section 109 of the Evidence Act.

It was contended that the letters do not amount to public documents in the circumstances in which they were relied upon by the first respondent. This is so for the documents were either addressed to them or emanated from them, citing Governor Ekiti State v. Ojo (2006) 17 NWLR (pt. 1007) 95, 129 paragraphs B-F

It was further submitted that the appellants have not denied the fact that the letters were written by them to the first respondent. It was pointed out that the appellants’ contention is that the first respondent should have certified the copies of the letters before they could be admissible in evidence against them. Counsel referred to paragraph 25 of the Statement of Defence [at page 21 of the Record). There, the appellants stated that the agreement (Exhibit C) was prepared by the first respondent and sent to the appellants for execution.

It was equally submitted that the objection in respect of exhibit C is even self-contradictory. He explained: the appellants claim on the one hand not to have executed the agreement. On the other hand, however, they claim that it is a public document. Counsel wondered how exhibit C could constitute a public document if it had not been executed by the appellants. Again, it was noted that the appellants’ assertion that they had not executed the agreement is an assertion that the document or agreement was yet to come into existence or that it exists only in draft. Counsel wondered how the first respondent was expected to produce a certified true copy of a non-existent agreement.

It was equally argued that the appellants failed to show how the wrongful admission of the exhibits affected the decision of the court. Counsel further contended that the wrongful admission of evidence by a trial court cannot by itself without more be a ground for the reversal of the decision of the Court on appeal. It must be shown that the admission of such inadmissible evidence occasioned a miscarriage of justice, citing section 227(1) of the Evidence Act.

Counsel took the view that even if the trial court wrongly relied on the exhibits attached to the application for stay of proceedings, the appellants had the onus to demonstrate that without the error, the ruling of the court would have been different, citing Umoh v I. T G. C (2001) 4 NWLR (pt.703) 281, 299.

Counsel urged the court to hold that the documents attached to the exhibit are not public documents within the provisions of section 109 of the Evidence Act.

In their reply brief, the appellants submitted that the first respondent made heavy weather of the documents under reference as being acts of public bodies addressed to the first respondent. Counsel explained that the contention of the first respondent is that those documents were either addressed to it or emanated from it. Hence, they are not public documents. It was submitted that this line of argument and the authorities cited in support thereof are untenable in law, citing Bayo v Njidda (2004) FWLR (pt. 192) 10, 62.

Counsel further observed that the documents exhibited by the first respondent before the lower court were not the primary evidence of the said public documents. Rather, they were all secondary evidence of the documents, Okoh v Igwesi (2005) ALL FWLR (pt. 264) 891. He urged the court to hold that at all times, it is only the certified copies of secondary evidence of public documents that are admissible.

It is not clear why the first applicant elided any reference to the observation of the trial court on the status of exhibits A and B. For the avoidance of doubt, we shall set out the reasoning of the lower court again to underscore the main grouse of the appellants:

The question I pose is, are exhibits A and B which are letters from the Ministry to the plaintiff company strictly speaking public documents. (sic)

I agree that they are public documents to the Ministry, but are they public documents to the recipient of the documents and who has custody of them?

Has the custodian got any duty to take the document (sic) to the Ministry again for certification before they can be used in affidavit evidence? I would say no.

From the above excerpt, it is clear that the learned trial judge was not in doubt as to the character of the documents in question. According to him, exhibits A and B are letters from the Ministry of Justice to the first respondent.

Learned counsel for the appellants, as shown above, had contended that the decision in Adejumo v Gov. Lagos State (supra) is inapposite. I entirely agree. Section 109 of the Evidence Act defines public documents for the purposes of the Act. It provides that:

109. The following documents are public documents-
110. documents forming the acts or records of the acts-

a. of the sovereign authority,

b. of official bodies and tribunals, and

c. of public officers, legislative, judicial and executive, whether of Nigeria or elsewhere: public record kept in Nigeria of private documents.

The finding that exhibits A and B “are public documents to the Ministry [of Justice]” simply put was a concession by the lower court that these exhibits were caught by the above provision of the Act (section 109). If this is so, his position that the first respondent [had no] “duty to take the document (sic) to the Ministry again for certification before they can be used in affidavit evidence” is unsupportable.

Under section 97 (2) (c) of the Evidence Act, the only secondary evidence admissible in respect of a public document is “a certified copy of the document, but no other kind of secondary evidence”. This section has been given judicial interpretation in several cases. For instance, in Onubruchere and Anor v Esegine (1986) I NSCC 343 at 350, Oputa JSC (as he then was) interpreted section 96 (2) (c) [now section section 97 (2) (c)] of the Evidence Act. One of the documents in that case was a public document. It was neither the original nor a certified copy. According to the distinguished jurist:

The court below did not admit Exhibit E as an original document. … Even if [the said document] were admissible under section 96 (2) (c) [now section 97 (2) (c )] it should be a certified copy of the ‘original in court record book’ …. Failing to produce the primary evidence, a party relying on [the documents] will at least tender admissible secondary evidence of [these documents). Such secondary evidence will necessarily be certified true copies- [These exhibits] do not purport to be certified true copies. They were, therefore, wrongly admitted [page 350]

Again in Minister of Lands, Western Nigeria v Azikiwe (1969) ANLR (reprint) 48, the above section fell for interpretation. At page 57, the indefatigable Coker JSC (of the Blessed Memory) held that:

The combined effect of the subsection [now section 97 (2) (c)] is that in the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and none other. The document now marked exhibit [] is not a certified true copy but a Photostat copy and is therefore inadmissible as secondary evidence of a public document which it purports to be.

See, also, the illuminating decision of Tobi JSC in Araka v Egbue (2003) 33 WRN 1. The appellants were, therefore, right in their contention that the said exhibits A and B [photocopies of public documents] were inadmissible in evidence.

The appellants, equally, faulted the lower court’s reliance on Adejumo v Gov. Lagos State (supra). From the ruling of the lower court set out earlier, the impression was created that the nature of the proceedings determines the admissibility of documents. For instance, the court below would appear to have concluded that the documents were admissible [because] “this is an interlocutory application and not at the final stage of the process. See the case of Adejumo v Gov. Lagos State (1970) I ALL NLR 183 at 187 on the point.”

Counsel for the appellants, as already shown above, took the position that uncertified secondary evidence of public documents remains inadmissible at all times. For this purpose, it is immaterial whether they were tendered at the interlocutory application stage or in the substantive action, Fawehinmi v IGP (2000) 7 NWLR (pt. 665) 481.

True, indeed, the contention of counsel finds solid anchorage on the respected opinions of distinguished jurists. In Fawehinmi v IGP (2000) 7 NWLR (pt. 665) 481,525 and 532, Oguntade and Aderemi, JJCA (as they then were) foreclosed the possibility of the admissibility of inadmissible secondary evidence at any stage. As Aderemi JCA (as he then) put it, such documents “are inadmissible in evidence either in an interlocutory application or in a substantive suit.” I, therefore, endorse the submission of the appellants’ counsel on this point.

What is more, the lower court would appear to have cited Adejumo v Gov. Lagos State (supra) out of context. In that case, Ademola CJN (of the Blessed Memory) had to interpret section 8 of Decree No. 41 of 1966, Tribunals of Inquiry Decree (now Act). According to the section:

Evidence taken under this Decree shall be inadmissible against any person in any civil or criminal proceedings whatever, except in the case of a person charged with giving false evidence before the members

At page 191, His Lordship explained that:

Section 8 speaks on (sic) on the admissibility of the evidence against any person, it does not say that the evidence is not admissible for any other purpose. It is inadmissible only if it is to be used as evidence against any person in civil or criminal proceeding (italics supplied)

He then posed the question:

But whether or not counsel’s address is evidence the question remains, at what stage should counsel object to the document being made use of in the case? Is it proper to object to a paragraph of an affidavit, or a document exhibited in an affidavit, before the substantive action is heard or before it is known to what use (sic) document would be put? We think not. In our view objection should be taken when at the facts are put before the court and not at the preliminary stage (italics supplied)

From the italicised portions of the above opinion of Ademola CJN, it is evident that His Lordship was not making a prescription of universal application on the question of the impropriety of raising objections to the admissibility of inadmissible secondary evidence during an interlocutory application. His opinion was dictated by the express requirement of section 8 of the above Act which fell for interpretation. It is, therefore, not an authority for the proposition that objections to the admissibility of documents cannot properly be raised in interlocutory applications.

As noted above, where public documents are involved, the only admissible secondary evidence is a certified copy thereof. Thus, in the absence of the primary evidence of the document [that is, the original copy], Onubruchere and Anor v Esegine (supra) 350, by virtue of section 97 (2) (c ) (supra), the only admissible copy is “a certified copy of the document, but no other kind of secondary evidence”. This provision does not exempt documents tendered during interlocutory proceedings. The answer, therefore, is that it was immaterial that the said exhibits A and B were tendered in the course of the application for stay of proceedings.

In all, I hold that the lower court wrongly admitted exhibits A and B [photocopies of public documents]. I allow the appeal in respect of Issue One only. I hereby enter an order vacating lower court’s order dated February 18, 2005.

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Other Citations: (2008)LCN/3002(CA)