Suleiman Bolakale Salami V. Alhaji Abdulrahaman Sule Ajadi (2007)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A.
This is an interlocutory appeal by the Appellant – who was the Defendant at the lower court against two rulings of Hon. Justice J. F. Gbadeyan of the Kwara State High Court sitting at Ilorin delivered on 14th March, 2005. The facts which led to this appeal are as follows:
The Respondent as Plaintiff in the lower trial court claimed against the Appellant as Defendant in his amended Statement of Claim filed on 21/01/2003 as follows:
“1. A DECLARATION that the Defendant, not being a member of the Plaintiff’s Baale family of Sapati-Ile is not entitled to aspire to be or be installed/appointed as the Baale of Sapati-Ile, Asa Local Government Area of Kwara State.
- A DECLARATION that the stool of Baale Sapati-Ile is not vacant as the Plaintiff is the valid and subsisting baale of Sapati-Ile.
- AN ORDER of perpetual injunction restraining the Defendant from parading or holding himself out as the Baale of Sapati-Ile or purporting to perform the functions of the Baale of Sapati-Ile.”
Pleadings were filed, issues joined and the trial commenced. After calling four witnesses, the Respondent closed his case on 1/6/2004. From the pleadings and evidence before the court, the parties joined issues on the person entitled to ascend the stool of Baale of Sapati-Ile and whose appointment was approved by the Ilorin Emirate Council. The Appellant opened his defence on 13/7/2004 and sought to tender through D.W.3 two documents (a) Photocopy of Minutes of Meeting of Ilorin Emirate Council held on 25/10/94. (b) Original copy of a letter dated 21/2/2005 written by Asa Local Government to the Appellant.
The Respondent objected to the admissibility of the photocopy of the minutes of Ilorin Emirates Council on the ground that it ought to have been certified by the Ilorin Emirate Council who has custody of the original copy. He also objected to the admissibility of the original copy of the letter written by Asa Local Government on the ground that it was made during the pendency of the suit and not covered by the pleadings of either party. These objections were upheld by the court and both documents were rejected in evidence and so marked.
Under cross-examination, D.W.3 stated that the signatories to Exhibit 9 put the names of their compounds in the same; and that there were no Easa, Ikolaba, Elemoso and Baba Egbe compounds on Exhibit 9.
After the conclusion of cross-examination, the Appellant’s counsel sought to ask whether there was any difference between compound and title to which the Respondent’s counsel objected on the ground that the issue does not arise from the cross-examination and there was nothing to clear by way of re-examination. The court also upheld the objection and disallowed the question. The Appellant’s counsel thereafter filed notice and grounds of appeal against these interlocutory rulings of the lower court. Briefs were filed and thereafter adopted by counsel on 3/10/2007.
The Appellant’s counsel identified two issues for determination which I will also adopt in the consideration of this appeal. They are set out below:
“1. Whether or not the learned trial judge was right in rejecting the evidence the Certified True Copy of the Minutes of Meeting of the Ilorin Emirate Council of 26/ 10/94 and the original copy of the letter dated 21/3/2005 from Asa Local Government Area to the Appellant both sought to be tendered through D.W.3.
- Whether or not the learned trial judge was right in refusing to allow the Appellant’s counsel to re-examine D.W.3 on issues raised by the Respondent’s counsel during his cross-examination of D.W.3.”
Issue One
Issue One is whether the trial judge was right to have rejected the documents sought to be tendered by D.W.3. Learned Appellant’s counsel Mr. Salman Jawondo submitted that the learned trial judge was wrong to have rejected the Certified True Copy (C.T.C.) of the Minutes of Meeting of the Emirate Council of 26/10/94 on the ground that the document was not Certified by the proper authority and the document could not be tendered through D.W.3 as he is a stranger to the document. He also argued that the learned trial judge was also wrong to have rejected the original copy of the letter dated 21/2/2005 from Asa Local Government Area to the Defendant/Appellant in his capacity as the Baale of Sapati-Ile on the grounds that the letter was not pleaded and was made during the pendency of this suit with the aim of buttressing the case of the Appellant.
Learned Appellant’s counsel argued that the minutes of the meeting of the Ilorin Emirate Council which is a public institution is a public document secondary evidence of which requires certification to be admissible in court. He submitted that by the combined effects of S.39, 109, 111 and 112 of the Evidence Act not only the institution which makes the document has monopoly of certification.
Learned Appellant’s counsel argued further that Exh. D18 which was rejected was forwarded to Asa Local Government Area by the Ilorin Emirate Council. The document having been received and kept in its records by Asa Local Government it forms part of the records of the Asa Local Government. Thus both the Ilorin Emirate Council which originated the minutes and Asa Local Government which maintains and keeps a copy of the minutes in their records in the course of their official interactions can issue a Certified True Copy of the minute by the combined effect of S.39, 109, 111 and 112 of the Evidence Act. Learned counsel cited Daggah v. Ibrahim (2004) FWLR Pt. 212 Pg. 106 at 1701 and 1710. He also argued that D.W.3 though a stanger to Exh. D18 is competent to tender the minutes of the meeting of the Ilorin Emirate Council as custody goes only to the weight to be attached to the document and not its admissibility. He cited Torti v. Ukpabi (1984) 1 SC at 392; Agagu v. Dawodu (1990) 7 NWLR Pt. 160 Pg. 56; Okiki v. Togun (2000) 5 NWLR Pt. 655; Anatogu v. HRH Igwe Eweka II (2004) 47 WRN 1 at 24. In his argument against the above proposition of learned Appellant’s counsel, Mr. K.B.A. Badmus the Respondent’s counsel argued that even though Exh. D18 (rejected) was pleaded and relevant to the inquiry before the court, its production was not done by the Secretary of the Ilorin Emirate Council. Also for it to be admissible under S.111 of the Evidence Act, there must be evidence on the face of the document that legal fees had been paid for it to be certified as a copy of the original and the official title of the person who subscribed to the certification must be shown on the face of the document.
On this point, My Lords, the learned trial judge in a reserved ruling on this point in relation to this document held as follows on page 76 of the Records.
“I am unable to agree that there is proper Certification of the minute of the meeting in this case. I agree that the proper certifying authority is the Ilorin Emirate Council. Because there is no proper certification of the public document and the witness is not in a position to tender it as he is neither the maker nor is he in any way connected with the meeting, I reject it in evidence and it shall be marked ‘Exhibit 18 Rejected’.”
In the first instance the issue of whether there was proper certification by way of payment of proper fee for such was not argued in the court below and was not the basis of the decision of the learned trial judge. The court below ruled on the basis that the only proper certifying authority is the Ilorin Emirate Council. I am inclined to agree with the learned Appellant’s counsel that the position of the law is that by virtue of S.109(a) (ii) of the Evidence Act, documents forming the acts or records of the acts of official bodies and of public officers are public documents. The meeting of the Ilorin Emirate Council of 25/10/94 was an ‘act’ of the council which is an “official body” while the minutes of the said meeting is a record of the act of the council under S.109 (a)(ii) of the Evidence Act.
Asa Local Government Area is a creation of Section 3 (6) and Part I of the First Schedule of the Constitution of the Federal Republic of Nigeria 1999 and is an official body under Section 109 (a)(ii) of the Evidence Act.
In the instant case Exh.D18 (rejected) generated by the Secretary of the Ilorin Emirate Council is a public document. The said document was forwarded to the Asa Local Government by the Ilorin Emirate Council. The document being received and kept in the custody of the Asa Local Government forms part of its records. I agree that a Certified True Copy of the document can be generated either from the Ilorin Emirate Council where the document originated or the Asa Local Government who received it in the course of official transactions.
Secondly, a person including a party to the proceedings who has in his possession a duly certified public document can dispense with the appearance or presence of the public officer who has proper custody or his designated officer. The party may tender the document even though he was not a party to it or even his counsel may tender same from the bar. See Anyakora v. Obiakor (1990) 2 NWLR Pt. 130 Pg. 52; Agagu v. Dawodu (1990) 7 NWLR Pt. 160 Pg. 56; Isibor v. The State (1970) 1 All NLR 248; Okiki II v. Jagun (2000) 5 NWLR Pt. 655 Pg. 19 at 27-28, Paul Ordia v. Piedmont (1995) 2 SCNJ 175.
Respondent’s counsel raised the issue of non payment of fees for the certification for the first time in this court. That is a matter of fact that should have been brought to the attention of the lower court. How could it have been certified if no fees were paid for such? However it has been decided that fee paying is merely a condition precedent to certification and does not affect the status of the document as a certified true copy. See Daggash v. Bulama (2004) 14 NWLR Pt. 892 Pg. 144 at 187. Also custody goes to the weight to be attached to a document rather than its relevance and admissibility. See Dr. Torti v. Ukpabi 6: 2 Ors. (1984) 1 SC 370, Adeoye v. Gardner (1977) NNLR 136; Fawehinmi v. N.B.A (No.2) (1989) 2 NWLR Pt. 105 Pg. 558 at 622. In the circumstances, Exh. D18 (rejected) should have been admitted.
In respect of the letter dated 21/2/2005 from Asa Local Government to the Appellant, the learned Appellant’s counsel submitted that the learned trial judge erred in law to have rejected the original copy of the letter dated 21/2/2005 from Asa Local Government to the Defendant/Appellant in his capacity as the Baale of Sapati-Ile on the grounds that the document is not pleaded and that it was made during the pendency of the suit.
On the issue of want of pleading, he submitted that since the letter is evidence, it needs not be pleaded as parties are only to plead facts and facts only and not evidence in proof of the facts pleaded.
The Appellant’s counsel submitted that the facts relating to correspondences between the Defendant/Appellant and Asa Local Government in his capacity as Baale of Sapati-Ile are pleaded in paragraph 9 of the Amended Statement of Defence and Counter-claim on page 31 of the Record. He therefore submitted that the letter of 21/2/2005 (Exhibit D19 rejected) came within the ambit of the facts pleaded in paragraph 9 of the Defendant/Appellant’s Amended Statement of Defence and Counter-claim.
On the issue of the fact that the letter dated 21/2/2005 was made during the pendency of the suit, Appellant’s counsel argued that S.91(2) of the Evidence Act include the fact that it must be made by a person interested. He argued that in the circumstances of this case, Asa Local Government is not an interested person and therefore the document is not caught by the provisions of S.91(3) of the Evidence Act. He cited Anyabosi v. R.T. Brisco (1987) 6 SC Pg. 15 at 24.
On this issue, learned Respondent’s counsel conceded that the maker of the document – Asa Local Government could not be described as a person interested in the suit. However, Respondent’s counsel submitted that the averments contained in paragraph 9 of the Amended Statement of Defence and Counter-Claim and Order 27 Rule 2, Kwara State High Court (Civil Procedure) Rules, 2005 do not cover ‘Exhibit 19 rejected’. He submitted that it is trite that pleadings relate to existing or previous state of facts and not to future occurrences. However, he argued that the suit which is the subject-matter of this appeal was filed on 30/10/2002. By 14/1/2004 pleadings in the case had been concluded. Hearing commenced on 5/2/2004 and the Plaintiff/Respondent closed his case on 1/6/2004, while the Defendant/Appellant opened his defence on 13/7/2004.
From the foregoing he argued, that “Exhibit 19 rejected” does not come within the contemplation of paragraph 9 of the Amended Statement of Defence and that it amounted to springing a surprise on the Plaintiff/Respondent and was rightly rejected by the trial court.
My Lords, the learned trial judge on this issue held thus at page 76 of the Record:
“As for the letter it is not pleaded. If it is relevant it would have been pleaded. Being unpleaded it is inadmissible moreso as the letter was written years after the hearing of the suit had progressed to the defence stage.
It is obvious that it is written to buttress the defence case.
The application fails. The letter is hereby marked ‘Exhibit 19 Rejected’.”
The learned trial judge’s basis for rejecting the letter in evidence is that it was not pleaded. I have examined closely paragraph 9 of the Amended Statement of Defence. In the original paragraph 9 of the Statement of Defence dated 21/10/2003 the Defendant/Appellant pleaded “the letters of approval of his appointment by the Ilorin Emirate Council and Asa Local Government”.
The criteria for admissibility of documents are pleading, relevance and admissibility in law. The court has a duty to reject inadmissible documents arising from its duty to act only on legal evidence. Thus documents relating to unpleaded facts cannot be used. See Okonji v. Njokanma (1999) 12 SCNJ 295; IBWA v. Imano (2001) 3 SCNJ 160; Bank of the North v. Baba Yau (2001) 5 SCNJ 168.
We must remember that the motion on notice to amend the Statement of Defence dated 6/5/2004 and filed on 7/5/2004 was not opposed by the Plaintiff/Respondent’s counsel when it came up on 17/5/2004 on Pg. 31 of the Records. In the amended paragraph 9, the pleading included the following: “The Defendant pleads the letters of approval of his appointment by the Ilorin Emirate Council and Asa Local Government and all official correspondents in his capacity as the Baale of Sapati-Ile between the Defendant and the Ilorin Emirate Council and the Asa Local Government and letter of approval of appointment of late Kolawole Balogun”. Specific documents to prove a fact pleaded need not be pleaded. They are evidence of facts pleaded. See Adediran v. NEPA (2002) 13 NWLR Pt. 786 Pg. 30. The pleading was specific as regards the purpose and contents of the letters pleaded and the facts the Defendants wants to prove therefrom. It is where the party pleads unspecified documents that it can be held that the other party was taken by surprise.
See N.M.B. v. Aiyedun (1998) 2 NWLR Pt. 537 Pg. 221 at 234. It is obvious, at least to me, that various letters to support the fact of the correspondence between the Defendant/Appellant and the authorities were pleaded right from the start. It is speculative to say that the pleading did not anticipate the letter of the Local Government during the pendency of the suit, since the letter did not establish a current event but a past one. I do not think the Respondent was taken by surprise.
I am of the view that the document was pleaded, did not take the Respondent by surprise and that particular letter was not made by an interested party to buttress the position of any party in the suit. The document should have been admitted in evidence.
Issue Two
Issue Two is whether or not the learned trial judge was right in refusing to allow the Appellant’s counsel to re-examine D.W.3 on issues raised by the Respondent’s counsel during his cross-examination of D.W.3.
The Appellant submitted that the learned trial judge erred in law in disallowing the Appellant’s counsel from re-examining DW3 on the points raised by the Respondent’s counsel in his cross-examination of D.W.3 on the ground that no ambiguity arose from the cross-examination of D.W.3 on the absence of names of some compounds in Exhibit 9. He argued that from the combined effects of the provisions of Section 188(2) & (3) and 189 (1) & (3) of the Evidence Act, it is clear that the party calling a witness has the right to re-examine the witness provided the reexamination is directed to the explanation of matters referred to in cross examination. He further argued that apart from the fact that Exhibit 9 was tendered by the Respondent, it is clear from lines 22-24 of page 77 of the Record that the questions relating to the absence of Esa, Ikolaba, Elemosho and Baba Egbe Compounds on Exhibit 9 were elicited from D.W.3 in cross-examination by the Respondent’s counsel. He also opined that it is also clear that the explanations of D.W.3 that Esa, Ikolaba, Elemosho and Baba Egbe are names of titles and not compounds and that the names of the compounds entitled to the titles are contained in Exhibit 9 are not recorded in the record by the learned trial judge. With this situation, he argued that by virtue of the provisions of Section 189 (3) of the Evidence Act, the Appellant is entitled to re-examine D.W.3 on the issue of the absence of Esa, Ikolaba, Elemosho and Baba Egbe Compounds in Exhibit 9. He submitted that the learned trial judge therefore erred in disallowing the Appellant’s counsel from re-examining D.W. 3 on this point.
On the other hand, learned Respondent’s counsel argued that under cross-examination, D.W.3 was asked whether there were Esa, Ikolaba, Elemosho and Baba Egbe compounds on Exhibit 9 which was tendered through him. To which he answered in the negative. The question was put to the witness after he had admitted being one of the writers of Exhibit 9 and that each signatory put the name of his compound on the document. He opined that the purpose of re-examination under Section 189 (3) of the Evidence Act is to allow explanation of matters referred to in cross-examination. It is not meant to afford the party who had called the witness and examined him in-chief to have a second bite at the cherry by trying to reconstruct his case.
The questions put to the witness (D.W.3) were simple and straightforward, and he gave clear and straight answers to them. There was therefore nothing to explain under re-examination and the trial judge rightly disallowed the re-examination question put by the Appellant’s counsel.
The learned trial judge on this issue ruled on 14/3/2004 as contained on Pg.78 of the Record as follows –
“The D.W.3 testified in his examination-in-chief showing that he as well as his great grand-father held and still hold the Esa title although they are of Madi. Under cross-examination he was clearly asked the questions that Esa, Elemoso, Ikolaba, etc compounds do not appear on Exhibit 09 and he answered in the affirmative.
Re-examination is to clarify issue whenever the point arises needing to be cleared and not another examination in chief. In the instant case Mr. Jawondo has formulated the question he wants answered being his argument on S.189 (3) of the Evidence Act.
Mr. KBA Badmus for the Plaintiff has submitted that the questions do not arise as there is nothing to clear.
I am in perfect agreement with the learned Counsel’s submission that S. 189 (3) does not entitle the Defence counsel to be at large to ask just any question.
There is no AMBIGUITY IN THE EVIDENCE GIVEN under cross-examination and as such there is nothing to clear.
The objection is hereby sustained.”
My Lords, we are bound by S.189 of the Evidence Act which states as follows –
“189.(1) Witnesses shall be first examined-in-chief, then, if any other party so desires, cross-examined, then, if the party calling him so desire, re-examined.
(2) The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
(3) The re-examination shall be directed to the explanation of matters referred to in cross examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.” In this case, the Appellant’s counsel gave an explanation to the learned trial judge to indicate the area he wanted the witness to elaborate in “the explanation of matters referred to in cross examination.”
What the Evidence Act clearly anticipated in my humble view is a situation where an explanation or elaboration of a particular fact which the counsel feels should be better explained is allowed to be explained to the court by the witness. In the circumstances of this case, what harm could it have done if the witness explained the difference between compound and title for the Judge’s better understanding of Exhibit 9? Even S.189 (3) provides for instances where a new matter can be introduced under re-examination subject to the adverse party’s counsel’s right to be further heard.
One heartily wishes that trial judges do not complicate simple trial procedure. It is clear that the Evidence Act is not a rigid legislation and that what it intends to achieve is the ends of justice which can only be attained by the adjudicator having a clear picture of the case of both parties. Courts of trial must not lose sight of that fact. For reasons given above, I am of the view that in the circumstances of this case, this appeal succeeds. It is hereby ordered that the case be sent back for trial de novo before another trial judge.
Appeal allowed. No order as to costs.
Other Citations: (2007)LCN/2552(CA)
