Okechukwu Uzoma V. Dr. Victor Asodike (2009)

LawGlobal-Hub Lead Judgment Report

EJEMBI EKO, J.C.A.

This is an interlocutory appeal against the Ruling of Imo State High Court in suit No. HOW/99/2002 before A.O.H Ukachukwu, J. One Dr [Mrs] Adaoha Okwusosa, a relation of the plaintiff/Appellant, was testifying for the plaintiff and in the course of her testimony a ceftified true copy of a certificate of occupancy, (C of O), pleaded by both parties was tendered for admission in evidence, after it was identified. The defence objected to admissibility of the said certified true copy of the C of O registered as No. 73 page 73 volume 90 at the Lands Registry, Owerri, Imo State. The said witness [PW.1] is the plaintiff’s eldest sister. The plaintiff/Appellant resides in the USA. She was not in court when the PW.1 was testifying.

The grounds for the objection by the defence counsel are that

1. Though a party to a suit can apply for certified copy or a document and tender it in evidence, the witness is not a party to the suit and therefore could not apply for the certification of the C of O and tender the certified true thereof.

2. The witness must account for proper custody of the original document, the C of O.

3. The purported certification of the c of o on a plain sheet of paper did not satisfy section 111[1] of the Evidence Act.

4. The purported certification was done during the pending of the action to comply with the numerous amendments by the plaintiff to accommodate the document.

In reply to the objection at the court below plaintiff’s Counsel contended that the defendant admitted the existence of the document by paragraph of the statement of defence, and that paragraph 4 of the amended statement of claim pleaded the said C of O. He further contended that the C of O being a public document by virtue of section 91(1) (e) of Evidence Act the plaintiff is entitled under Section 97(1)(e) and (f) of the said Act to lead secondary evidence with no duty at all to explain where the original document is. It was further the appellant’s contention at the trial court that no rule of law or practice requires a party to appear personally in court, nor is there any rule of law that requires that only a party in the suit can apply for certification of a pleaded document. It was further posited at the trial court that the certification of the C of O meets the requirement of Section 111[1] of Evidence Act and that the failure of the officer to certify at the foot of the document should not be visited on the plaintiff/Appellant.

In the reserved Ruling delivered on 11th April, 2005 the learned trial Judge upheld the objection, refused to admit the certified true copy of the C of O in evidence and marked it “Rejected”. He gave various reasons for the decision. They include the fact that it is an admitted fact the plaintiff who resides in the U.S.A. has custody of the original C of O; the witness must give account of the proper custody of the original C of O in order to tender the certified copy thereof; that since the certification was not at the foot of the document but on another sheet paper it did not meet the requirements of Section 111(1) of the Evidence Act.

Aggrieved by this Ruling the Plaintiff/Appellant promptly appealed on three grounds to this court. The notice of appeal was filed on 12th April, 2005. Briefs of argument have been exchanged and adopted. In the Appellant’s brief two issues were identified from the three grounds of appeal. They are as follows-

Issue One: whether the learned trial Judge was right in his construction of section 97 of the Evidence Act as it applies to the document sought to be tendered in this matter. (Deduced from Grounds one and two of the Grounds of Appeal).

Issue Two: whether the learned trial Judge was right in his construction of section 111(1) of the Evidence Act and application of the same to the facts and circumstances of this case. (Deduced from Ground three of the Grounds of Appeal).

For the Respondent only a single issue was distilled from the three grounds of appeal. The sole issue is-

Whether the learned trial judge properly construed sections 97(1) (e) and (f) and 111(1) of the Evidence Act, in rejecting the document sought to be tendered through the witness of the Plaintiff/Appellant.

As it is, the parties are ad idem that the resolution of this appeal turns on the proper construction or interpretation of sections 97 and 111[1] of the Evidence Act.

The parties are on common ground that the document sought to be tendered was pleaded by both of them. The relevancy of the document is not therefore in dispute. Paragraph 4 of the statement of defence avers that –

The defendant shall at the hearing rely on the certificate of occupancy exhibited by the plaintiff in the affidavit she filed in court to show that the land is the personal property of late R.I. Uzoma.

This certainly must be reference to the affidavit at pages 45 – 52 of the record. The C of O exhibited to the affidavit is at pages 50 – 52 of the record. The C of O sought to be tendered was not challenged on the ground of its being different in condition and content from the one, its existence is admitted by the defendant/respondent. Neither alteration nor falsification of the C of O was suggested.

Now, as preclude the appellant’s counsel rightly in my view, submitted that no rule of law or practice prescribes which particular party or witness can tender a piece of evidence, subject to the rule against hearsay and expert evidence. No rule of law also prescribes that a party in the proceeding must himself appear in person and testify or tender the document he relies on in proof of his case. See LAWAL v. UNION BANK (1995) 2 SCNJ 132 at 147, SHITTU v. FASHAWE [2005] 7 SCNJ 337 at 354.

It is submitted for the Appellant that the trial judge was clearly in error when he held that a witness wishing to tender a document in plaintiff’s custody should first plead and lead evidence to show how the plaintiff transferred such documents to him before the document can be admitted in evidence. The Respondent on this posited in his brief, as he did at the trial court, that on the day the certified C of O was sought to be tendered in evidence the plaintiff/Appellant did not bring the original documents that were in her possession to the court and did not also give any reason why she would not bring the original to the court. No rule of law or practice was cited as authority for this submission. I doubt if there is any. On the contrary it has been held in a number of cases that a duly certified public document would be admissible in evidence without laying foundation and that the issue of proper custody and related matters will not arise. See ANATOGU v. IWEKA II (1995) 2 SCNJ 1; AGAGU V. DAWODU [1990] 7 NWLR [pt.160] 56 CA. It can even be tendered from the bar by or through counsel who is not even a party in the case: see ISIBOR v. THE STATE (1970) 1 ALL MLR 248; MAGAJI v. NIGERIAN ARMY (2005) ALL FWLR [pt.257] 1511; OGBUNYINYA v. OKUDO (1979) 1 ANRR 10. In the similar vein a witness who is not a party to a public document can tender the duly certified true of the said public document. See MARANRO v. ADEBISI [2008] 26 WRN 182 at page 200; OKIKI II v. JAGUN [2000] 5 NWLR [Pt.655] 19 at 27 – 28.

A public document duly certified is presumed to be genuine. The presumption is though rebuttable, See ANYAOKORO v. OBIAKOR [1990] 2 NWLR [PT.130] 52 cited with approval in DAGGASH v. BULAMA [2004] ALL FWLR (pt.212) 1666 CA.

On section 97(1)(b) of the Evidence Act it is submitted for the Appellant that when the existence, conditions and contents of an original document has been admitted in writing by the person against whom it is sought to be proved, secondary evidence of the same is admissible in evidence. It is further submitted that since paragraph 4 of the statement of defence earlier reproduced admits the existence of the C of O being tendered the secondary evidence of the said C of O was admissible, and that the C of O being a public document by virtue of section 109[a] Evidence Act the secondary evidence of it will be the certified true copy of the same. The reply of the Respondent on this is that the trial judge was right in rejecting the document as it does come under the exceptions outlined in section 97 of the Evidence Act. The relevant portion of the Ruling appealed on this is at page 119 of the record where the learned trial judge stated:-

It will be observed that with the exception of cases as in d, e, f, g, h of S.97(1) of the Evidence Act where for reasons of bulkiness official and business demands the requirements of the original document are dispensed with, although their existence are known; the other provisions are predicated on the loss, destruction or adverse custody of the original document.

In this case, it is admitted by the witness that the original document is in the custody of the plaintiff who resides in the united states of America.

The Ruling did not address the issue made of section 97(1)(b) Evidence Act viz-a-viz the admission in paragraph 4 of statement of defence as to the existence of the C of O and the defendant’s avowed intention to rely on it. Section 97(1) of the Evidence Act

provides –

97(1) secondary evidence may be given of the existence, condition or contents of a document in the follows cases –

(a) when the original is shown or appears to be in the possession or Power

(i) of the person against whom the document is sought to be proved, or

(ii) of the person legally bound to produce it, and when after notice mentioned in section 98 of this Act such person does not produce it;

(b) when the existence, condition or contents of the original admitted in writing by the person whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost and in the latter case all possible search has been made for it;

(d) when the original is of such a nature as cannot be easily movable;

(e) when the originals is a document of whole a certified copy is permitted by this Act, or by any other law in force in Nigeria, to be given in evidence;

(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection;

(h) when the original is an entry in a baker’s book.

The C of O being a document forming the acts or records of public officers and public executives is clearly a public document by dint of section 109(b) of the Evidence Act. By the combined effect of sections 97(1) (e) and (2) (c), and 109 (b) of the Act, the secondary evidence admissible in respect of the original C of O is a certified true copy of the document. The learned trial judge was clearly in error when in his observation, at page 119, he listed a document which the original is a public document within the meaning of section 109 of the Evidence Act, among those documents “where for reasons of bulkiness, official or business demands the requirements of the original document are dispensed with”. It would appear that the mind of the learned trial judge was swayed by the fact that it has not been shown that the original C of O in custody of the plaintiff/appellant, who resides in the United state of America, had been lost or destroyed. That would come under section 97(1)(c) of the Evidence Act. He, however, did not make proper use of section 97(1)( c) of the Evidence Act read together with sections 97(2)(c) and 109 of

the same Act. Accordingly I resolve the first issue in the Appellant’s brief in favour of the Appellant.

On issue two, Appellant’s counsel submitted by way of a preamble, rightly in my view, that where the literal interpretation of word or words used in a statute will result in absurdity or injustice, it will be the duty of the court to consider the enactment as a whole with a view to ascertaining whether the language of the enactment is capable of any other fair interpretation or whether it may not be desirable to put a secondary meaning on such language, or even to adopt a construction which is not quite strictly grammatical: PDP v. INEC t19991 7 SCNJ 297 at 332. He further submitted, and I agree, that statutes are construed to promote the general purpose of the legislature, that judges ought not to go by the letter of the statute only but also by the spirit of the enactment: OMOIJAHE v. UMOR (1999) 5 SCNJ 280 at 287. And further that where the main object and intention of a statute are clear, it should not be reduced to nullity by a literal following of the language which may be due to want of skill or knowledge on the part of the draftsman’ unless such language is intractable: ADEWUNMI v. EKITI STATE(2002) 11 SCNJ 27 at 60.

The final reason the learned trial judge gave for rejecting the certified true copy of the C of O in evidence is that the certification was not done at the foot of the document in accordance with section 111[1] of the Evidence Act. He held at page 120 of the Record that there was enough space at the foot of the document for the certifying officer to at least start. He could in the event of insufficient space continue at the back or fresh sheet of paper. I hold that to start and end on a virgin piece of paper did not satisfy the requirements of section 111(1) Evidence Act.

The quarrel here is largely as to the form, and not the substance, of the certification. He rejected the pleas of the plaintiff’s counsel that the sins of the certifying officer should not be visited on the plaintiff. In the Brief of argument Appellant’s counsel submitted that the learned trial judge should not have punished the Appellant for no fault of his but for defect or error of the certifying officer. He urged liberal interpretation of the words “at the foot of such copy” in section 111(1) Evidence Act. Technicality should never be allowed to override the demands or interest of justice he submitted finally.

For the respondent it was submitted that the non-compliance with section 111 [1] Evidence Act was not a mere technicality, and that the interpretation of the “foot” to mean end of the document, as done by Appellant’s counsel, was rather strange. That the finding of the learned trial judge that there was enough space at the foot of the document for the certifying officer to endorse the certification was not appealed and therefore it remains extant.

Section 111 (1) of the Evidence Act provides –

111(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefore, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called certified copies.

This dispute is only in respect of the position on the document the certificate of certification was placed. The defendant/Respondent objected to the certification as the endorsement was on a plain sheet of paper, and not at the foot of the copy of the document certified. This clearly is an act of the certifying officer, It is not an act of the plaintiff or his representative. Judicial stance is shifting towards substantial justice as opposed to arcane or crass technicality. It is now settled that a wrongly certified or even an uncertified public document can be re-certified and re-tendered in evidence. See UMOGBAI v. AIYEMHOBA (2002) FWLR [Pt.132] 192 CA, (2002) 8 NWLR (Pt.770) 687, and also LAW OF EVIDENCE IN NIGERIA – S.T. Hon at page 287. Poor certification is generally treated as mere irregularity, and the court can order the document to be properly certified by curing the defect complained of. In this regard the mistake of the certifying officer ought not to have been and will not be visited on the litigant. See ARIBISALA v. OGUNYEMI (2001) FWLR [pt.31] 2807; OMABUWA v. OWHOFATSO [2006] ALL FWLR [PT.323] 1655 at L674.

The lower court was no doubt a court of law. It was also a court of justice where the rules of equity apply and are applied.

Equity, it is said, follows the law. Accordingly, where rigid or strict adherence to the letters of the statute will result in absurdity, unfairness or injustice the courts in their interpretative and equitable jurisdiction will yield to overriding interest of justice and allow substantial justice to prevail. One of the readily available tools in this regard is the principle of equity that looks at and upholds the substance and not the form. The learned trial judge in the instant case was more persuaded by the form, and not the substance of the certification. In so doing he held that if the certifying officer found that there was no space at the foot of the document for the certificate, he could have started at the foot of the document and continued either at the back or on a fresh sheet of paper instead of endorsing the certificate on a virgin page. This, in my opinion, is placing more emphasis on the style or form as opposed to substance. Equity looks at the substance and not the form or style. See STATE v. GWONTO [1983] 1 SCNLR 142 at page 160 wherein Eso, JSC stated:-

The court is more interested in the substance than mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice

This is a proper case equity would have intervened to save the day. At the very worst the learned trial judge would have ordered the re-certification in the interest of substantial justice. This court in UMOGBAI v. AIYEMHOBA [supra] to demonstrate the liberal approach, held [per Akaahs, JCA] that a public document “could still, after having been admitted, be certified before [it] can be used in judgment; otherwise [it] must be expunged from the records”. The statement of the law on this issue by my learned brother, Kekere-Ekun, JCA in ANPP & ANOR v. PDP & ORS [2006] 17 NWLR [pt.1009] 467 at 494 B – C supports the view that a certification endorsed at the back of the document, as opposed to “the foot” of the document, is sufficient to render the document a certified true copy of the original. My learned brother states –

The said document is duly dated and signed by the said officer with his name, and official title. The only complaint is that the certification was done at the back of the document. With respect to the learned Senior counsel, I am of the view that the fact that the document was certified at the back rather than on its face can not detract from the essence of the certification, which is confirmation by the said officer that the certified document is the true copy of the public document in his custody.

Certification, being a mere confirmation by the public officer, in whose custody the public document is, that the document certified is a true copy of the document in his custody could be at the back or elsewhere than at the foot of the document. I have had close look at the disputed document and its certification. The certification stapled to the photocopy of the C of O states –

NO 73 AT PAGE 73 IN VOLUME 90 STATUTORY CERTIFICATE OF OCCUPANCY THIS IS TO CERTIFY THAT THE WITHIN IS A TRUE COPY OF STATUTORY CERTIFICATE OF OCCUPANCY DATED THE 22-10-82 AND REGISTERED AS NO.73 AT PAGE 73 IN VOLUME 90 OF THE DEEDS REGISTRY OFFICE, OWERRI.

(SIGD)

B. EMENYONU

REGISTRAR OF DEEDS

LANDS REGISTRY

OWERRI, IMO STATE

DATED THIS 21ST DAY OF JULY, 2004

The certification has also the official stamp of Registrar of Deeds,. Imo state duly signed and stamped affixed therein. The photocopy of the c of o referred to as “THE WITHIN” in the certification is attached and on its face all the particulars tally with those in the certification. There is no dispute that the certifying officer is the Registrar of Deeds of Imo State that he purports to be. Unless the contrary is established the certifying officer is presumed to be the public officer, who has custody of the document, the facsimile of which is the certified true copy. This, however, is not the dispute.

On this issue, which I resolve in favour of the appellant, it is my view that the austere and arcane attitude the learned trial judge adopted in the interpretation of the provisions of section 111[1] of the Evidence Act had denied him an opportunity to do substantial justice to the issue. On the whole I allow the appeal on the two issues canvassed. The ruling of the lower court dated 11th April, 2005 rejecting in evidence and marking the certified C of O “Rejected” is hereby set aside. The document is hereby ordered to be admitted in evidence as it is relevant and material for the just determination of the dispute between the parties hereto.

The respondent shall bear the cost of this appeal assessed at N30,000.00.

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Other Citations: (2009)LCN/3134(CA)