In The Court of Appeal

(Kaduna Judicial Division)

On Friday, the 10th day of May, 2013

Suit No: CA/K/179/2001

Before Their Lordships

 Between

 And

THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kaduna State High Court delivered on the 9th July, 1998 in suit No. KDH/284/86. The appeal is squared on three grounds of appeal as shown in the Appellant's Amended Notice of Appeal filed on 26/11/2002.

The Plaintiff, now the Respondent in this appeal commenced an action against the 1st Defendant i.e. the Appellant and one other on the 3rd November, 1986. By his statement of claim dated 3/12/87, the Respondent claimed against the Appellant and the other Defendant jointly and severally the following reliefs:

"(a) A declaration that the Plaintiff is entitled to the possession of the piece of land measuring 0.27 acres lying and situate along Zaria-Jos Road and covered by Certificate of Occupancy No. 8051 of 9/11/82.

(b) An order for the possession of the said plot of land for the use and benefit of the Plaintiff.

(c) An injunction restraining the Defendants, their agents, assigns and/or successors and otherwise from further acts of trespass on the said Plot of land.

(d) Fifty Thousand Naira only being special and general damages for trespass.

PARTICULARS

(i) Payment of ground rent at N600.00 yearly from 1983 - 1987 = N3, 240.00

(ii) N40, 000.00 being the cost of the shops demolished by the Defendants.

(iii) N6, 760.00 being rent for the use of the shops.

ALTERNATIVELY

  (e) An order for payment of adequate compensation by Defendant for Acts of trespass.

(f) Any other reliefs the court may deem fit to make in the circumstances."

The Appellant filed his statement of Defence dated 11th April, 1994 on the 14th April, 1994, while the former 2nd Appellant filed his own statement of Defence dated 21/12/87 on the same day.

Hearing was conducted by the trial High Court in the proceeding. The parties called their respective witnesses, at the end of which judgment was entered in favour of the plaintiff in terms of his first three prayers. The Defendants therein, were irked by the pronouncement of the lower court that they lodged an appeal on 14/7/98 against the same attacking it on three grounds of appeal. However, by the order of this court made on 10/12/01, the original Respondent, then deceased, was substituted with his son, the present Respondent, while the then 2nd Appellant, equally deceased, was struck off the appeal, then leaving the original 1st Appellant as the only appellant on record. After compilation and transmission of the record of appeal, the parties filed and exchanged their Briefs of Argument in accordance with the Rules of this court.

Three issues were raised in the Appellant's Brief of Argument for consideration by this Court. They are:

"1. Whether having ordered the parties to file written final addresses, the learned trial Chief Judge was right in refusing out rightly at judgment stage to consider the Appellant's written address and whether in the circumstances of this appeal, doing so denied the Appellant his constitutional right to a fair hearing.

2. Whether the trial court acted in contravention of the Appellant's fundamental right to a fair hearing when the court failed or neglected to ensure that the Appellant was properly served with Hearing Notice of the date fixed for the adoption of final written addresses and/or the making of further oral submissions in this action.

3. Whether being a public document, only a duly Certified True copy of the statutory certificate of occupancy, Exhibit 1, and not the original copy of it is admissible in evidence under the relevant mandatory provisions of the Evidence Act, Cap. 112, LFN; 1990."

The Respondent did not formulate any divergent issues for determination. He simply responded to the Appellant's counsel's address on the issues presented on behalf of the Appellant.

Submitting in respect of issue No. 1, the learned senior counsel for the Appellant, Emmanuel J. J. Toro, Esq; S.A.N., drew the attention of this Court to the remarks or observation of the learned trial Chief Judge of Kaduna State at page 106 of the record and contended that the learned trial chief Judge ought to have bent over backwards and adopted a more liberal and accommodating approach rather than the strict yardstick she used in the treatment of the Appellant's final address. He cited Lawson vs. Afani Cont. Co. Ltd (2000) 2 NWLR Part 752 page 585 and Atake v. Afejuku (1994) 9 NWLR Part 358 page 379 and stressed that the language of the court is English language and that the Appellant's right to conduct his case in person or through Counsel of his choice is guaranteed by the constitution. The learned senior counsel highlighted the importance of final addresses in our justice system as was demonstrated in the cases of Forcados Ovo Obodo vs. Stafford Olomu & Anor (1987) 3 NWLR Part 59 page 111 or (1987) 5 SNCJ 72, per Belgore, J.S.C.; Oyekan v. Akinrinwa (1995) 7 NWLR Part 459 page 128 at 150 paragraphs E-F, per Onu, J.S.C.; Obodo vs. Olomu (supra); Mains Ventures Ltd vs. Petroplast Ind. Ltd (2000) 4 NWLR Part 651 page 151 at 166 paragraphs B-C, per Nzeako, J.C.A., and stressed that the Appellant dealt with the fundamental issues in controversy between him and the Respondent in the matter, such as the identity of the land in question and its nexus with the Certificate of Occupancy, Exhibit 1, and the equitable defences of laches and acquiescence. He touched on the claim for trespass and possession and the Respondent's entitlement to an award of any damages for trespass, and, therefore, urged this Court to resolve issue No. 1, in favour of the Appellant by holding that the refusal of the learned trial Chief Judge to consider the Appellant's address denied him of his Constitutional right to fair hearing.

Regarding issue No. 2, the learned Senior Counsel adopted his submissions in respect of issue No. 1 and further contended that no hearing notice was served on the Appellant intimating him of the proceedings of 13/6/95 when the Respondent's counsel adopted his written address and made further submissions. He made reference to the cases of Scott - Emuakpor vs. Ukavbe & ors (1975) NSCC 435, per Bello, J.S.C., (as he then was) at page 438; Mbadinuju v. Ezuka (1994) 8 NWLR Part 364 page 535, per Onu, J.S.C., at page 555 paragraphs D-F; credit Alliance Financial Services Ltd vs. Antoine Mall (1998) 10 NWLR Part 569 341 at page 349 paragraphs F-G, page 350 paragraphs G-H & page 350 - 351 paragraphs H-A.; Skenconsult (Nig) Ltd & anor v. Godwin Sekondy Ukey (1981) 1 S.C 6 at page 26 and submitted that serving hearing notice on parties to an action is crucial to the exercise of the jurisdiction of the Court, so also, due service of process which is a condition sine qua non to the hearing of any suit. He argued that the lower court ought not to have relied on the mere ipse dixit of the Court Registrar that the Appellant visited the Court and collected the date of adjournment. He further invited this court to answer the question posed therein in the negative.

On issue No. 3 which tackled the trial Court's decision to admit the original copy of the Respondent's Certificate of Occupancy No. NC 8051 dated 9/11/87 as Exhibit 1, the learned Senior Counsel placed reliance on the decision of this Court in Lawson vs. Afani Const. Co. Ltd (2000) 2 NWLR part 782 page 585 in which it was held that only certified copies of public documents are admissible and not original. The cases of Sidi Yero vs. Union Bank of Nigeria (2000) 5 NWLR Part 687 page 470 at 478, Okeke vs. Attorney-General & Commissioner for Justice Anambra State (supra), per Uwaifo, J.C.A.; Obadina Family & Executors of Chief J. A. Ajao vs. Ambrose Family & others (1969) 1 NWLR 25, 30, per Coker, J.S.C., Owoniyin vs. Omotosho (2), Alashe vs. Olori-Ilu (3) and Yassin v. Barclays Bank DCO (4); Chief Philip Anatogu & others vs. Igwe Iweka (Eze Obasi) (1995) 8 NWLR Part 415 page 547 at 572, per Uwasi, J.S.C.; Ogbunyiya vs. Okudo (1979) 6-9 SC 32 at page 43, were referred to and Relied upon therein. The learned Senior Counsel also called the attention of this Court to the provisions of sections 96, 97 (1)(e), (f), (2) (c), 109 and 111 of the Evidence Act, Cap . 112. LFN, 1990 and strongly urged this Court to expunge the said Exhibit 1 from the record because it ought not to have been admitted in evidence.

Also, relying on the provisions of section 227 of the Evidence Act, the learned Senior Counsel asserted that the wrong admission of the said Exhibit 1 occasioned a substantial miscarriage of justice to the Appellant. He contended that without the offensive Exhibit 1, the entire claim will collapse. The learned Senior Counsel then urged this Court to allow the appeal on the 3rd ground.

In response to the submissions of the learned Senior Counsel for the Appellant, on issue No. 1, the learned Counsel for the Respondent, Hussain Audu Esq., contended that by virtue of Section 2 of the illiterate Protection Law, Cap 74, Kaduna State, the written address of the Appellant cannot be treated as being equivalent to a statement for the Court to consider since it contained no name and address of the writer nor did it comply with the provisions of section 2(b) of the illiterate protection Law as regards to reading over and explaining to the Appellant to his understanding before his signing the same.

On the contention that a miscarriage of justice was occasioned, learned Counsel referred to Idakwo vs. Ejiga (2002) 13 NWLR Part 783 page 156 at 165 paragraphs E - H, where it was remarked that the question of the fairness of a proceeding is quite separate from the question of the merit of the trial Court's decision and submitted that the judgment of the trial court was based on the evidence placed before it, and, that the Appellant was accorded the right to address the Court.

Then, dealing with the question posed in issue No. 2, learned Counsel equally adopted his submissions in respect of issue No. 1, and, too placed reliance on the information given to the trial Court on 13/6/95 by the Registrar of the lower Court that the Appellant was in Court and had taken the adjourned date of 13/6/96. He stressed that the Appellant was personally in Court and took the date of 13/6/96.

Turning to issue No. 3 learned Counsel submitted that the basic condition for admissibility is relevancy. He contended that so long as no miscarriage of justice was occasioned by admitting a document, its admissibility cannot be a ground for setting aside a decision. He submitted that the decision of the lower Court in this matter was based on the credible and oral evidence procured by the Respondent via his witnesses and not necessarily on the said document. He then urged this Court to dismiss this appeal.

In considering issue No. 1, I am mindful of the established principles of law that address of Counsel or a party is not a substitute for evidence, and, that denial of a party's Counsel or a party of the opportunity of addressing the Court is not mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing thereby rendering the proceedings a nullity as stated in Obodo vs. Olomu (supra) cited by the Appellant's Counsel. The complaint of the Appellant herein is not based on total denial of opportunity to address the Court, but, on failure of the trial court to countenance his address in the course of writing its judgment.

Before dwelling on the substance of the argument in respect of issue No. 1, it is necessary to recognize that the issue whether one is literate or illiterate is an issue of fact which cannot be presumed. It must be established by evidence. The fact that a person signed or wrote his name on a document or thumb-printed on it does not translate to the person being literate or illiterate. Situations do arise where even educated persons are required to thumbprint on certain documents where thumbprints are required. See U.B.A. Plc vs. Mustapha (2004) 1 NWLR Part 855 page 443 where it was further stated that there is nothing in law which prevents a literate person from affixing his thumb impression to or on a document, and that the onus is on the person who object to a document to prove that the maker was an illiterate person. I think cognizance should be taken of the fact that due to the quest for being literate, some illiterate persons labour seriously to learn how to simply write their names at the end of a document to prove authenticity. The moment they learn how to write their names, that is sufficient for them. It is also imperative to note that the fact that a witness opted to testify in his native language, is not a conclusive evidence that he is an illiterate. He may choose to do so because he feels much comfortable expressing himself in his mother-tongue, and not because he did not know how to write or read. In Oyebode vs. Oloyede (1999) 2 NWLR Part 592 page 523, the present Chief Justice of Nigeria, Mukhtar, CJN, when she was in the Court of Appeal had this to say:

"Agreed that he gave evidence in Yoruba, but the question is, is that sufficient to assure that he could not read or understand English, or that he is illiterate? It may well be that he found it easier to testify in Yoruba, in open court and so elected to speak in his native language."

Further, it is pertinent to emphasize that it does not behove any other person to protest under the illiterate Protection Law or Act. It is trite that the illiterate protection Law was made for the protection of illiterate persons. It is the illiterate person that requires protection and he is the one who may seek the protection given by the law by complaining that the document prepared at his request and which was signed with his signature or his mark was not, prior to its being so signed, read over and explained to him. The Act is a law to protect and safeguard the illiterates from being exploited. It is not a law to penalize them.

In the instant appeal, it was never established by any concrete fact before the lower court that the Appellant was an illiterate. The only thing suggestive of that was his requests for the assistance of an interpreter to enable him testify in Hausa Language. To my mind, that is not a conclusive evidence of his purported illiteracy. If there is any person entitled under the illiterates Protection Law to protest about any exploitation or fraud or misrepresentation in the said written address, it is the Appellant whose alleged signature was appended on the said written address placed before the rower court on his behalf that ought to have done that. He ought to have done so. I must state it was never the duty of the trial Court to plunge into that.

Be that as it may, it seems to me that the remark made by the learned trial Chief Judge about the presumed illiteracy of the Appellant was made in passing. It was a mere observation signifying her dismay over the possibility of a person she presumed an illiterate to have written such an address. The Constitution recognizes the right of a litigant to represent himself or by a counsel. I find myself unable to accede to the proposition by the Appellant's learned Senior Counsel that the remark formed the basis for the lower court's decision not to countenance the said written address presented before it by the Appellant. In the body of the lower Court's judgment, the trial Chief Judge kept observing that the address was "windy and bordered on issues either not pleaded or not even before the Court," indicating she had a thorough scrutiny of the same.

For the court to have formed the opinion that the said Appellant's address was windy and relate to unpleaded facts and issues not canvassed before the court, it portrays that the learned trial Chief Judge gave a due consideration to the address and found it unsupported by facts before the court, since address, it is said, cannot substitute for evidence. If the trial court had not perused and considered the said written submission of the 1st Defendant, i.e. the Appellant, it would not have held that it touched on unpleaded facts. I must observe I could not perceive any case of denial of the 1st Defendant of his right to address the trial court. The trial court simply did not attach any weight to the issues raised by the Appellant because of its view that the issues canvassed therein were not supported by the pleadings before it. Therefore, I resolve issue No. 1 against the Appellant.

Regarding issue No. 2, I will firstly avert my mind to the pronouncement of the Supreme Court in Ogundayin vs. Adeyemi (2001) 13 NWLR Part 730 page 403 where it was stated that a hearing can only be fair when all the parties in dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing. Each party to a dispute before a Court of law or any other tribunal must be given fair hearing not only to allow each to state his own case in Court or before a tribunal but also to give each party notice of the date of hearing and place of hearing which is the principle of audi alteram partem. This principle arises from the rule of natural justice. Fair hearing is also a rule of natural justice.

However, Galadima, J.C.A., (as he then was) in Mirchandani v. Pinheiro (2001) 3 NWLR part 701 page 557 at 572, opined that the practice of Courts ordering hearing notices cannot be insisted upon in all cases nor be considered an absolute requirement in legal system. He held as follows:

"It is not in all cases that the absence of it will automatically vitiate trials in the context of section 36 of the 1999, Constitution. A hearing notice is not therefore a mandatory judicial process that must be issued and served in all cases. 

In Akin Folorunso v. Shaloub (1994) 3 NWLR Part 333 page 413 at 430, "a hearing notice" was defined thus:

"As a process of the court by which a party to the proceedings is notified of the date the case has been fixed in court where he is not otherwise aware of such a date."

By the above definition, it stands to reason that a hearing notice ought not to be issued or served on parties and/or their counsel who already know or are reasonably expected to know of the date when the matter is to come up for consideration. It will amount to an over indulgence for courts to go out of their way to issue and serve hearing notices on parties or their counsel who were in court or aware of the next date of adjournment. Courts will not adopt this position; as it will amount to unwittingly promoting indolence, nonchalance in the conduct of cases, without taking into consideration the provision of section 36(4) of 1999 Constitution which requires hearing of a suit within a "reasonable time."

In Jonason Triangles Ltd vs. C. M. P. Ltd (2002) 15 NWLR Part 789 page 176, the Supreme Court held that the best notification to parties to an action is the one communicated to them personally in the open Court. Thus, where parties by their conduct voluntarily opt out of the trial although they had adequate information of the hearing date and the venue of the trial, they cannot turn round to complain of fair hearing as a result of non-issuance of hearing notice. 

In Ndu vs. The State (1990) Part 164 page 550, the Supreme Court held that:

"The right of address given to a party or his counsel does not confer on him the right to do so at his pleasure. A party or counsel may forget or be taken to waive his right of address if he fails to address when called upon by the Court to do so at the close of evidence. It was further held that there are however occasions when addresses from Counsel are a matter of formality. They may not diminish or add to the strength or weakness in a party's case. The facts and the law applicable in such cases speak loudly for themselves to require address."

It was in this light that this Court per Oputa, J.S.C., in Niger Construction limited vs. Okugbeni (1987) 4 NWLR Part 67 pages 787 at page 792;

"Addresses are designed to assist the Court. When, as in this case, the facts are straightforward and in the main not in dispute, the trial Judge would be free to dispense with final addresses. Cases are normally not decided on addresses but on credible evidence. No amount of brilliance in a final speech can make up for the lack of evidence to prove and establish or else disprove and demolish points in issue."

Also, in Dalyop vs. Oradiegwu (2000) 8 NWLR Part 669 page 421, this Court, per Akpabio, J.C.A, said:

"Section 258(1) of the 1979 Nigerian Constitution (as amended) which appellant said gave him "a constitutional right to address the court before judgment is delivered" did not give him any such right. Rather it restricted the period within which every court must deliver its judgment to a period of "not later than 3 months after the conclusion of evidence and final addresses."

I should also mention that the submission of learned counsel for the appellant that:

"failure to entertain or consider the written address of the Appellant by the trial Judge infringes on the doctrine of "audi alteram partem" and therefore "vitiates the trial" or renders it "null and void," is not the correct position of the law. I have looked at the two cases of Adamu vs. Sadi (1997) 5 NWLR Part 504 page 205 at 216 and Obodo vs. Olomu (1987) 3 NWLR Part 59 111 at 120, which were cited and heavily relied upon by the learned counsel for the appellant, and find that none of those cases were on all fours with our instant case. The first named case - Adamu v. Sadi (supra) was a case of failure by the court to consider a Notice of Intention to defend, and the affidavit in support in a case placed under the undefended List. The case of Obodo vs. Olomu (supra) also turned out on entirely different facts and cannot therefore apply to the case in hand. I have done my own independent research and find that the correct position of the law as regards the effect or consequence of failure by a trial court to either take or consider counsel's address or addresses are as stated in the following cases: In the case of Michika Local Government vs. National Population commission (1998)11 NWLR Part 573 page 201, decided by the Court of Appeal (Jos Division), the question for determination was inter alia:

Whether the failure of the Census Tribunal to call on the appellant's Counsel to address the Tribunal before delivering its judgment, amounted to a breach of fair hearing."

The Court of Appeal, per Edozie, J.C.A. had this to say at page 212 paragraphs E - G and ratio 5.

"On Relevance of addresses of Counsel, addresses of counsel are designed to assist the court. Cases are normally not decided on addresses but on credible evidence. Thus, no amount of brilliance in a final address can make up for the lack of evidence to prove and establish or to disprove and demolish points in issue. 

When, therefore, facts are straight forward and in the main not in dispute, the trial court could be free to dispense with final address. In the instant case, no miscarriage of justice was occasioned as the respondent did not address the tribunal. Also, the factual issue before the tribunal can be effectually determined without addresses of counsel. The appellant's complaint about denial of fair hearing is not well founded.

Niger Construction Ltd. vs. Okugbeni (1987) 4 NWLR Part 67 page 787 referred to page 212 paragraphs E- G." 

Also in the earlier case of R.E.A.N. Ltd. vs. Aswani Textiles Industries Ltd. (1991) 2 NWLR Part 176 page 639 delivered by Court of Appeal (Lagos Division) on similar facts, Babalakin, J.C.A (as he then was) had the following to say:

"On the complaint about failure of counsel for the appellant to be afforded an opportunity to reply to the address of the respondent's counsel, the nature of addresses at the close of cases is described by the Supreme Court in the case of Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR Part 67 page 787 at 792 per Oputa, J.S.C. thus: "Addresses are designed to assist the Court. When, as in this case, the facts are straightforward and in the main not in dispute, the trial Judge would be free to dispense with final addresses. Cases are normally not decided on addresses but on credible evidence. No amount of brilliance in a final speech can makeup for the lack of evidence to prove and establish or else disprove and demolish points in issue."

See also the case of Oruboko vs. Oruene (1996) 7 NWLR Part 462 page 55 and Dimlong v. Dimlong (1998) 2 NWLR Part 538 page 38. On the totality of the foregoing I have no doubt in my mind in coming to the conclusion that failure to have considered appellant's counsel's written address (if any was filed) did not cause an unfair hearing nor occasioned any miscarriage of justice."

In the instant appeal, the agitation of the Appellant is that the trial court ought not to have relied on the ipse dixit of the court Registrar who informed the trial Court that the Defendants, personally, came after the date the lower Court did not sit and collected the date of adjournment. It is common knowledge in our judicial system, that if a court did not sit on a date a matter was fixed for hearing for one reason or the other, it is usually the registrars or clerks of the said court who adjourn matters off the record of proceedings since the entries in the record of proceedings are strictly made by the Judge presiding over the matters in the court, and, then, give the next adjourned dates to the parties.

A proper examination of the record of this appeal, reveals that it was the same Registrar of the lower court who informed the court on 13/6/98 that the Appellant came personally and he gave him the date of next adjournment, that had been informing the court, since the inception of the case, about the parties' attendance, non-attendance, service and non service of hearing notices on them, when needed in the matter. These information's were all recorded by the lower Court and, the Court, on those occasions, acted on such information's. By arguing now that such informations given by the Registrar of the lower court should not have been countenanced, counsel, by implication, is urging that our courts shall, from today, stop countenancing any statement made by the court's Registrars on issue of physical communication of any adjourned dates to the parties in a suit, particularly, on the dates the Courts did not sit. If the Courts start distrusting the Registrars now, it means the Registrars are no longer credible and are, therefore, unfit to act as court Registrars. I think, by the level of trust that exists between the Courts and the courts, Registrar, the learned trial Chief Judge was right in relying on the information passed on the Court by its Registrar on the said issue of communication of the date of hearing physically by him to the Appellant after the Appellant absented himself from the court. It is clear in the record that after communication of the said date, the Appellant failed to attend the Court on the date in question to offer his reply to the address of Counsel to the Plaintiffs. The law is, he cannot now turn round to complain about breach of his right to fair hearing having been given the opportunity by communication of the date of adjournment to him by the Court Registrar. The trial Chief Judge believed her court Registrar who had, on previous occasions, informed her of the dates there were no proof of service of hearing notices on the 1st Defendant i.e., the Appellant. Therefore, I do not accede to the contention of the Appellant's learned senior counsel that a miscarriage of justice was occasioned to the Appellant. Accordingly I resolve issue No. 2 against the Appellant.

Regarding issue No. 3, there is no doubt that the determinant of the admissibility of any evidence is the Law of Evidence itself. Consequently, before documents could be considered for admission under the Rules of Court, they must first qualify for admission under the Law of Evidence. Thus, any inadmissible evidence under the Evidence Act cannot be rendered admissible simply because it is properly pleaded. The fact that it is pleaded by the party is irrelevant and immaterial. Also, in considering whether or not a document should be admitted in evidence or refused, a trial court must make a distinction between documents which are admissible under certain circumstances, that is, where conditions are to be satisfied before the document can be admitted, and, document which are in any case not admissible. See the cases of Yero vs. Union Bank of Nig. Ltd (2000) 5 NWLR Part 657 page 470, and Salau Jagun Okulade vs. Abolade Agboola Alade (1976) 2 SC 183 or (1976) ALL NLR Page 56.

It is certain that the document in question i.e. Exhibit 1, entitled "Certificate of Occupancy" No. 8051 dated the 9th November, 1982 and signed by the Governor of Kaduna State qualifies as a public document by virtue of the provisions of section 109 of the Evidence Act. The said Exhibit 1, entitled "certificate of occupancy" No. 8051 dated the 9th November, 1982 and signed by the Governor of Kaduna State was issued to the Respondent as the original copy of the document covering his interest in the said land in question. The focal point of dispute in the instant appeal regarding the said Certificate of Occupancy is that it was the original copy of the same issued to the Respondent that was tendered and admitted before the lower Court. The document tendered was not a secondary copy of the said Certificate but, the original copy of the same issued to the Respondent. The learned Senior Counsel for the Appellant strongly contended that the original copy of the said Certificate of Occupancy ought not to have been admitted, it is only a certified true copy of the original that is admissible under the Evidence Act. He anchored his argument solely on the decision of this Court, per Salami, J.C.A., (as he then was) in Lawson v. Afani Continental Co. Ltd supra.

It is instructive to note that after the decision in Lawson vs. Afani Continental Co. Ltd in 2002, this Court was confronted with similar issue in the case of Daggash vs. Bulama (2004) 14 NWLR Part 892 page 144. This Court thoroughly dissected the principle expressed in Lawson vs. Afani continental co. Ltd and opined at pages 205-208, per Obadina J.C.A., thus:

"The tribunal relied on the case of Lawson vs. Afani Continental Co. (Nig) Ltd. (2002) 2 NWLR Part 752 page 585, (2002) FWLR Part 109 page 1736 at 1757 - 1759, where Salami, J.C.A stated as follows:-

"This takes me to the question of admissibility of statutory right of occupancy, Exhibit 3, the Plan, Exhibit 4, and the Customary Certificate of Occupancy, issued by Chikun Local Government. The three documents qualify as acts of public officers within the contemplation of section 109 of the Evidence Act, Cap. 112 at the Laws of the Federation of Nigeria, 1990. In the result only certified copies thereof are admissible and not original."

With the greatest respect possible to my Lord, Salami, JCA, I do not agree with the view expressed by His Lordship that only certified copies of public documents are admissible. My Lord, Salami, JCA, seems to have relied on the case of Obadina family and Executors of Chief J.A. Ajao vs. Ambrose Family & ors. (1969) 1 NMLR 25 at 30, where the Supreme Court, per Coker, J.S.C. stated as follows:

"The combined effect of the subsection 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 "2" is not a certified copy but a Photostat copy and it is therefore inadmissible as secondary evidence of a public document which it purports to be. There was no objection to its admissibility when it was produced but it is not within the competence of parties to a case to admit by consent or otherwise a document which, by law, is inadmissible."

A critical examination of that case shows that what His Lordship, Coker, J.S.C. was considering was the admissibility of various types of secondary evidence and in particular a certified copy and a photocopy came to the conclusion that among the various types of secondary evidence of a public document, the only type that is in admissible is a certified true copy thereof. The consideration was not between the original i.e. primary and secondary evidence of a public document. The phrase "the only type of secondary evidence" does not seem to me to exclude primary evidence from being admissible.

Section 93 of the Evidence Act, provides that:-

"the contents of documents may be proved either by primary or secondary evidence."

Section 94(1) defines primary evidence as "the document itself". Section 96 of the Evidence Act provides that "documents must be proved by primary evidence," except in the Cases to be mentioned later. There is no section of the Evidence Act that provides that no primary evidence of a public document is admissible. Section 112 of the Act allows certified true copy to be produced in proof of the contents of public document or part of public document. I do not think the provision of section 112 of the Act renders the primary evidence of public document inadmissible in evidence.

In my view, the net effect of sections 91(1)(a), 93, 94(1), 95, 97(1)(e) and 112 of the evidence is that the contents of public documents such as the report and the white paper in question may be proved by producing the originals themselves for the court to inspect as primary evidence. If the maker of the statement, as in this case had personal knowledge of the matter dealt with by the statement i.e. DW1, or prove by the production of their certified true copies as secondary evidence, the two documents being public documents. By virtue of section 96 of the Evidence Act, it is my view that public documents are provable by their originals. It says:-

"Documents must be proved by primary evidence except in the cases herein after mentioned."

Although section 112 allows certified true copies thereof to be used as well. It does not make original inadmissible. These sections of the Evidence Act in summary lay down that in proving the contents of documents; the emphasis is on the production of their originals i.e. their primary evidence. They however go on to provide that if the contents are to be proved by secondary evidence, a restricted type of secondary evidence only may be accepted i.e. certified copies in the case of public documents.

In Anatogu & ors vs. Igwe Iweka II & ors. (1995) 8 NWLR Part 415 page 547 at 572, The Supreme Court, per Uwais, J.S.C. (as he then was) talking on the mode for tendering public documents in Court stated inter alia, as follows:-

"In my opinion, the documents could only be admitted in evidence if they satisfied the provisions of section 90 subsection 1 or section 112 of the Evidence Act quoted above. The latter section allowes for certified copies of the documents to be produced, but even then what were sought to be tendered in this case were not certified copies but the original public documents. Had the procedure under sections 110 and 111 been adhered to by the Respondents, the certified copies of the documents would have automatically become admitted in evidence by the trial Judge without P.W.1 giving evidence of them.

In other words, the documents would have been directly admissible without any foundation being laid."

It should be noted that sections 90 and 111 being referred to above are now sections 91 and 112 of the Evidence Act, Cap. 112 of the Laws of the Federation, 1990.

What the Lord Chief Justice of Nigeria is saying as quoted above is that public documents could be admitted in evidence either under section 91(1) or section 112 of the Evidence Act. If a party intends to tender under section 91(1) he must comply with the procedure under section 91(1) by producing the original document, provided the maker of the statement therein who had personal knowledge of the matters dealt with by the statement is called; or by complying with the provisions section 111 by producing a certified true copy of the document and tender it under section 112 of the Evidence Act. It seems to me in the circumstance that the authority i.e. the case of Lawson v. Afani Continental Co. (Nig.) Ltd (supra) relied upon by the tribunal is very much incogrous and inconsistent with the two cases of the Supreme Court, namely:-

Obadina family and Executors of Chief J.A. Ajiao v. Ambrose family & 7 ors (supra) and Philip Antagu vs. Igwe Iweka II (supra).

In the instant case on appeal, the Appellant as 1st Respondent at the trial tribunal, call DW1 as witness.

DW1 was the Chairman of the Administrative Panel of Inquiry set up by the Borno State Government to investigate Revenue Generation and Utilization of the Maiduguri Metropolitan Council. He gave unchallenged evidence that he was the Chairman of the Panel of Inquiry set by the Borno State Government. He gave the names of all the members of the panel and stated how they carried out the assignment given to them. Indeed, he laid very good foundation for tendering of both the report of the panel and the Government white paper thereon accepting some of the recommendations of the panel. He has complied with guidelines for tendering original public documents contained in the case of Philip Anatogu & ors, vs. Igwe Iweka II & ors. (supra). In that regard, I am of the view that both original report of the panel and original Government white paper thereon are admissible and majority members of the tribunal were in grave error when they rejected the two documents."

It is evident that this Court in Daggash. V. Bulama (supra) overruled itself meaning therefore, that its earlier decision in Lawson v. Afani Continental Co. Ltd (supra) cannot take precedence over the latter decision of the Court.

Section 97 sub-section (1) paragraphs (e) and (f) provide thus:

"97 (1) Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-

(e) when the original is a public document within the meaning of section 109 of this Act;

(f) when the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria to be given in evidence."

In dealing with similar provisions of the Evidence Act, the Supreme Court in Araka vs. Egbue (2003) 17 NWLR Part 848 page 1 at 18-21, per Tobi, J.S.C., expressed its opinion thus:

"Exhibit 1, being a public document, the applicable provision in the first instance is section 97(1)(e) and (2)(c) of the Act. In the second instance, section 97(1) (c) and (2)(a) will also be examined in the light of the facts of the case and submission of counsel.

It is clear from the provision of section 97(2) (c) that the only acceptable secondary evidence of a public document is a certified copy of the document. The subsection has put the position precisely concisely and beyond speculation or conjecture by words "but no other kind of secondary evidence is admissible". This provision is clearly in contradistinction to the provision of section 97(2) (a) of the Act which admits any secondary evidence of the contents of the document. In my humble view, section 97(2) (a) anticipates private documents within the very vague meaning of section 110 of the Act. In other words, while section 97(2)(a) provides for public documents, section 97(2)(a) provides for private documents, which section 110 simply defines as all other documents which are not public documents.

As indicated above, section 97(2) (c) contains the words "but no other kind of secondary evidence is admissible". The word "but" in the context, as a conjunction, means "against what might be expected; in spite of this" and the word is followed by the specific negative expression "no other kind of secondary evidence is admissible."

Can this Court give another interpretation to very clear words in section 97(2)(c)? I think not.

It is merely saying the obvious that section 97(1)(c) comes before section 97(1)(e). This obvious statement is made to score less obvious point and it is that the draftsman was clearly conscious of section 97(1)(c) before he added section 97(1)(e)".

There is also the related issue and it is that where a Court of law is exposed to two provisions; one general and the other specific, the Court will fall upon the specific provision, in the event of an apparent conflict. This principle of interpretation may not even apply here because there is no conflict between the provisions of sections 97(1)(c) and 97(1)(e).

The provisions have been interpreted by the courts.

I can take a few of the decisions. In Minister of Lands Western Nigeria vs. Dr. Azikwe (1969) 1 All NLR 49, Coker, J.S.C. said at Page 59: 

"We have already pointed out that the original of the document exhibit 2 is a public document and indeed it is so within the meaning of section 108 of the Evidence Act. Section 96(2) of the Evidence Act prescribes the type of secondary evidence which may be given in the several cases herein set out and section 96(2)(c) provides as follows...

"96(2) The secondary evidence admissible in respect of the original document referred to in the several paragraph of subsection (1) is as follows:

(d) in paragraph (e) or (f) certified copy of the document, but no other kind of secondary evidence, is admissible... 

The combined effect of the subsections 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 2 is not a certified true copy but a Photostat copy and it is therefore inadmissible as a secondary evidence of a public document which it purports to be. There was no objection to its admissibility when it was produced but it is not within the competence of parties to a case to admit by consent or otherwise a document which, by law, is inadmissible."

In Onobruchere vs. Esegine (1986) 1 NWLR Part 19 page 799, the Appellants challenged the admissibility of Exhibits E; E1 and E2, which were uncertified copies of original documents of Official Record (including judgments). This Court held that unless duly certified, exhibits E, E1 and E2 are inadmissible as they are copies of official records (Exhibits E1 and E2 being judgments). Failure to produce the primary evidence, a party relying on secondary evidence of them must tender certified true copies. In his leading judgment, Oputa, JSC said at page 808:

"Exhibit E will be admissible under section 93(1) of the Evidence Act if it is the original. The court below did not admit Exhibit E as an original document. Exhibit E itself ex facie testifies to the existence of the original in court record book. Even if exhibit E was admissible under section 96(2)(c) it should be a certified copy of the original in Court record book... Whether one proceeds under section 96(2)(c) or section 110 or 111 of the Evidence Act, Exhibit E has to be certified to be admissible as secondary evidence. It was not so certified. Exhibit E was therefore wrongly admitted. Exhibits 1 and exhibit 2 ex facie purport to be judgments... if these two judgments are to be tendered, section 131(1) of the Evidence Act makes the record book itself the primary evidence. Failing to produce the primary evidence, a party relying on Exhibits E1 and E2 will at least tender admissible secondary evidence of these two judgments. Such secondary evidence will necessarily be certified true copies. Exhibits E1 and E2 do not purport to be certified true copies. They were therefore wrongly admitted... Exhibits E, E1 and E2 were plainly inadmissible and the Court below was in error in holding that they were rightly admitted."

Similarly, in Nzekwu vs. Nzekwu (1989) 2 NWLR Part 104 page 373, this Court held that a judgment of a Court being public document within the meaning of that expression in section 108 of the Evidence Act and because of the combined effect of section 96(1)(e) and (2)(c) of the Evidence Act, 1958 the secondary evidence admissible in respect of the original document constituting the proceedings and judgment of a Court is a certified true copy of the document but no other kind of secondary evidence.

One main objective behind section 97(2)(c) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the original. This is in addition to the need for the preservation of public documents. In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of section 97(2)(a) could be tutored and therefore not the authentic. Photo tricks could be applied in the process of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The Court has not the eyes of an eagle to detect such tricks."

Section 97 (1) (e) clearly stated that when the original of a document is a public document within the meaning of section 109, secondary evidence of it may be given, and, by virtue of section 97 (2) (c), the only secondary evidence required is a certified copy and no other copy is admissible. By the aforestated cases of the Supreme Court, it is clear that original copy of a public document can be tendered in a proceeding. I would further, have recourse to the case of Goodwill & Trust Investment Ltd & anor vs. Witt & Bush Ltd (2011) 8 NWLR Part 1250 page 500 at 533, where Onnoghen, J.S.C. at page 533 stated thus: 

"it is settled law that contents of a document can be proved in a proceeding by tendering the original documents or where the original is unavailable by a certified true copy of the said original as secondary evidence of the contents of the said original."

In the leading judgment of the apex Court, Mukhtar, J.S.C. (as she then was) stated thus:

"It is on record that the Plaintiffs tendered a photocopy of a document which was certified by the registrar of the High Court of Lagos State, Ikeja, when in fact, if the 2nd plaintiff was desirous of tendering only a copy of the registration document, it should have been certified by an official of the Corporate Affairs office, the document being a public document that is subject to the provisions of Sections 109 - 112 of the Evidence Act supra. But then one should be mindful of the fact that the original copy of the Certificate of Incorporation was stated to be in possession of the plaintiffs in this case as is contained in the record of proceedings vide the evidence of the 2nd plaintiff which has been reproduced above.

The pertinent question to ask here, is, if they had the original certificate and actually brought it to court on the day of hearing, why did the witness not tender it? I am inclined to subscribe to the argument of the Respondent that perhaps the Plaintiffs did not possess the original certificate of Incorporation. If they didn't there was nothing that prevented them from tendering the copy, as permitted by sections 93 and 95 of Evidence Act supra, but then it has to be done properly according to the dictates of the provisions of sections 109 - 112 supra, which the Plaintiffs failed to do in this case. Authorities abound that the content of documents may be admitted as secondary evidence, once they have been properly certified."

Here, we are dealing with the original copy of the Certificate of Occupancy given to the Respondent by the Kaduna State Government as an authentic proof of his ownership of the land in dispute. See, also, the Supreme Court case of Anamelechi Iteogu, Esq, vs. The Legal Practitioners Disciplinary Committee, where it held that the only secondary evidence of a public document admissible in evidence is a certified true copy. The synergy of the decisions in Daggash vs. Bulama (supra) and the aforementioned cases of the Apex Court is that the original copy of any public document issued to a person which is in the custody of that person, if tendered is admissible under the Evidence Act. 

The person would only encounter problem or experience turbulence when he produces or attempts to tender at the hearing of a proceeding a photocopy or secondary copy of the said original of the public document in his possession without certification. At that point the Evidence Act mandates him to produce a certified true copy of the said original copy to prove its authenticity and originality. It is clear that the opinion expressed by Salami, J.C.A., (as he then was) in Lawson vs. Afani Continental Co. Ltd. (supra) is now obsolete, having been obscured and overruled by latter decisions of this Court and, in particular, the Supreme Court decisions which are binding on this Court by the doctrine of stare decisis. Therefore, it is, my humble opinion that failure to tender the certified true copy of the original Certificate of Occupancy No. 8051, where the original itself has been produced and tendered is immaterial and not fatal to the Respondent's case.

It is, also, imperative to recognise the quality of the evidence proffered by the Respondent via his witnesses and upon which the trial Court based its findings. It is clear in the evidence adduced by the parties at the lower Court that the Plaintiff, i.e., the Respondent in this appeal was the first in time on the said land in dispute. There was no evidence that the said land allocated to him in 1981 by the same Kaduna Authority was revoked before the same Authority apparently re-allocated the said land to the Appellant. P.W.2 - P.W.5 identified the said land as land allocated by their authority. The evidence tendered by the Appellants themselves would have warranted that a visit to locus in quo be made by the trial Court, but that it failed to do. However, I must remark that it is at the discretion of the trial Court to conduct a visit to the locus in quo. In any case, it was the case of the Plaintiff, i.e., the Respondent, and, he called cogent and credible witnesses from the Department of Lands and Survey, Kaduna and Zaria Local Government to establish that he applied for allocation of the said land in 1981 and the same was allocated to him in 1982, about two years before the said land was purportedly allocated to the Appellant by the same authority. There was no proof of revocation of the said allocation made to the Respondent in 1981 before the lower court.

In view of the reasons I have given in this judgment, I find no reason and could locate no landing ground upon which this court can interfere with the judgment of the lower court. Accordingly, this appeal is lacking in merit and I hereby dismiss the same, and, affirm the decision of the lower Court. I make no order as to costs.

ABDU ABOKI, J.C.A.: I have had the privilege of reading in daft the judgment of my learned brother Theresa Ngolika Orji-Abadua, JCA, just delivered. I agree with his reasons and conclusion that this appeal lacks merit and should be dismissed and also affirm the decision of the Kaduna State High Court delivered on the 9th July, 1998.

I make no orders as to costs.

ITA G. MBABA, J.C.A.: I have had the privilege of reading a copy of the lead judgment delivered by my Lord, ORJI-ABADUA, JCA and I agree with her reasoning and conclusion.

Accordingly, I too dismiss the appeal and abide by the consequential Orders in the lead judgment.

     Appearances