The Hon. Justice E. O. Araka V. The Hon. Justice Don Egbue (2003)

LAWGLOBAL HUB Lead Judgment Report

TOBI, J.S.C.

This appeal involves a fairly narrow area of our adjectival law. It has to do with the interpretation or construction of section 97(2)(c) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990.

The facts of the case are not in controversy. They are very well set out in the appellant’s brief. It is an action on libel. The appellant, as plaintiff, filed an action claiming the sum of N10 million as damages for libel against the respondent in a letter dated 10th September, 1984, written by the respondent concerning the appellant and in the way of his office as Chief Judge of Anambra State.

By their pleadings the parties joined issues and the matter went to trial. Appellant opened his case on 9th October, 1992 by calling Kingsley Ngwu Udoh, a legal practitioner, as his first witness. The witness testified that he was representing the Principal Secretary to the Executive Governor of Enugu State who was subpoenaed to tender documents in the court. After saying that the original letter dated 10th September, 1984 addressed to the Military Governor of Anambra State could not be found, witness tendered a photocopy of the letter through counsel for the appellant. Counsel for the respondent objected on the ground that the letter being a public document can only be admitted in evidence if it is a certified true copy of the original as required by section 96(1)(e) and 96(2)(c) of the Evidence Act, Cap. 62, Laws of the Federation of Nigeria and Lagos, 1958, now section 97(1)(e) and (2)(c) of Cap. 112 of the Evidence Act, 1990.

The learned trial Judge, Omotosho, J. of blessed memory overruled the objection and held that the original of the letter dated 10th September, 1984, having been lost, any secondary evidence of the lost document is admissible under section 96(1)(c) and section 96(2)(a) of the Evidence Act. The document was thereafter admitted as exhibit 1. Omotosho, J. said at pages 58 and 59 of the Record:

“The situation here is that the original of the public document which has been lost cannot be certified and therefore, since by the combined effect of the provision of sections 96(1)(c) and 96(2)(a), a lost document may be proved by any secondary evidence, that provision should avail … I am satisfied that the latter sought to be tendered is from proper custody, that the proper foundation has been laid, that the original of the letter- public document has been lost. On the reasoning which I have expounded, the original, having been lost, it is not possible to certify a copy of it and therefore any secondary evidence of the lost document is admissible under sections 96(1)(c) and 96(2)(a) of the Evidence Act.”

Dissatisfied, the respondent as appellant went to the Court of Appeal. That court reversed the decision of the learned trial Judge. Uwaifo, JCA (as he then was) said at pages 170 and 171 of the record:

“I see nothing contrary to any canon of interpretation to insist on what the law says in section 97(2)(c) of the Evidence Act that as far as a public document is concerned, the secondary evidence admissible is a certified copy of the document, but no other kind of secondary evidence. This is bound to be so from the plain language. Any other provision in the said Act which makes any secondary evidence of a lost document admissible must be interpreted not to include “a public document so as not to derogate from its special provision.”

Dissatisfied, the appellant filed this appeal at the Supreme Court.

Briefs were filed and exchanged. The appellant formulated the following issue for determination:

“Whether, in a case where the original of a public document is lost and cannot be found or where such document has been destroyed and is no longer in existence, any secondary evidence of such document (other than a certified true copy thereof) is admissible in evidence.”

Appellant formulated the following issue in the alternative:

“Whether the provision of section 97(2)(c) is applicable in a case where the original of a public document is lost and cannot be found or where such document has been destroyed and is no longer in existence.”

The contents of the two issues formulated in the alterative are the same. The second one merely introduces the applicable section, which makes it more exact.