(2018) LPELR-44010(CA)

Transcription

1 LAFFERI (NIG) LTD v. HON. MIN OF FCT & ORS CITATION: In the Court of Appeal In the Abuja Judicial Division Holden at Abuja ABUBAKAR DATTI YAHAYA TANI YUSUF HASSAN MOHAMMED MUSTAPHA ON TUESDAY, 6TH FEBRUARY, 2018 Suit No: CA/A/185/2014 Before Their Lordships: Between Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal LAFFERI NIGERIA LIMITED - Appellant(s) And 1. HON. MINISTER OF FEDERAL CAPITAL TERRITORY 2. FEDERAL CAPITAL DEVELOPMENT AUTHORITY 3. DEVELOPMENT CONTROL DEPARTMENT, FCDA RATIO DECIDENDI - Respondent(s) 1. APPEAL - GROUND(S) OF APPEAL: Effect of ground of appeal and/or issue for determination not derived from the judgment appealed against "A cursory look at ground 4 of the Notice of Appeal shows the appellant's complaint was on long possession of the plot. The complaint in ground 5 is that the respondents did not lead evidence in the case, while the complaint in grounds 6 and 7 relates to the expunged documents, Exhibits 6-12 as private documents against public documents. However these grounds do not flow from the decision appealed against. Grounds of appeal can only be sustainable if they flow from the judgment/ruling appealed. Grounds 4, 5, 6 and 7 are therefore incompetent. Issues 3, 4 and 5 distilled from those grounds are also incompetent having been formulated from invalid grounds of appeal, as they have no relation with the decision of the court. Issues 3, 4 and 5 are therefore struck out."per HASSAN, J.C.A. (Pp. 6-7, Paras. C-A) - read in context

2 2. EVIDENCE - PUBLIC DOCUMENT: Whether the original copy of public documents ought to be certified to make them admissible in Court "The contention of the appellant is that exhibits 6, 7, 8, 9 and 11 the letter of offer, site plan, conveyance of approval, settlement of Building plan and approval for setting out, respectively are original documents issued to the appellant by the respondents and were therefore properly tendered by the appellant without the necessity of subjecting them to certification. That the exhibits are admissible even if they are public documents since they are original copies. What constitute public documents are provided by Section 102 of the Evidence Act, Section 102 makes the following documents public documents: a) Documents forming the official acts or records of the official acts: i) Of the sovereign authority; ii) Of official bodies and tribunals; iii) Of public officers legislative, judicial and executive whether of Nigeria or elsewhere; and b) public records kept in Nigeria of private documents. Exhibits 6, 7, 8, 9 and 11, the subjects of this issue were the original documents from the 1st and 2nd respondents to the appellant. The documents were in custody of the appellant up to the point they were tendered. The Supreme Court in the case of PDP V. INEC (2014) 17 NWLR (Pt.1437) 525 at 539 held that, the only categories of public documents that are admissible are either the original document itself or in the absence of such original, certified copies and no other. In the instant case, it is my view that in line with the above decision of the Supreme Court there was no need to certify the original copies of the documents even though they were issued to the appellant by a public officer. In Abdullahi Vs F.R.N. (2016) 10 NWLR (part 1521) 475; Nweze JSC at pages was of the view that the contention that public documents which were uncertified, ought to have been discountenanced, is a misconception of the admissibility requirements of public documents as it does not represent the position of the law. His Lordship referred to Section 90(1) (c) of the Evidence Act, 2011 which provides thus: 1. The secondary evidence admissible in respect of the original document referred to in several paragraphs of Section 89 is as follows: a)... b)... c) In paragraph (e) of (f) a certified copy of the document, but no other secondary evidence is admissible.?he went further to say that the judicial interpretation of the nuances of the above provisions is that the only pieces of secondary evidence of public documents that are admissible in respect of the original documents are the certified copies thereof but no other secondary evidence and of course the original document themselves are admissible. In other words, in the absence of the original documents themselves only such properly certified copies are admissible as secondary copies of public documents "but no other kind of secondary evidence". SeeG. & T. I Ltd & Anor Vs Witt & Bush Ltd (2011) LPELR 1333 (SC) 43; Tabik Investment Ltd & Anor Vs Guarantee Trust Bank Plc (2011) 6 MJSC (part 1) 121; Iteogu Vs L.P.D.C (2009) 17 NWLR (part 1171) 614, 634, Onobruchere & anor Vs Esegine (1986) 1 NSCC 343 at 350 and Minister of Lands W/N vs Azikwe (1969) 1 All NLR 49. In the instant case, exhibits 6, 7, 8, 9 and 11 are original documents issued to the appellant by the 1st and 2nd respondents. They were tendered and admitted at trial without objection. The trial Court in its judgment relying on the Supreme Court cases of Anatogu Vs Iweka II & Ors (1995) 8 NWLR (part 415) 547 and Ogidi Vs Egba (1999) 10 NWLR (Part 621) 42 expunged the said exhibits as inadmissible evidence being primary evidence of public documents that were not certified. In Fire Ins. Co. Ltd Vs I.B.W.A. (2001) NWLR (part 713) 610 paragraphs D - F Iguh JSC observed: "It cannot be over-emphasized that a Court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly, where a trial Court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So too, if a document is unlawfully received in evidence in the trial Court, an appellate Court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence". Section 90(1) (c) of the Evidence Act 2011 provides the circumstances under which any secondary evidence of contents of the document is admissible. Therefore considering the later decisions of the Supreme Court in P.D.P Vs INEC (supra) and Abdullahi Vs. F.R.N (supra), the original copies of public documents tendered by the appellant would have satisfied the requirements of the law. The lower Court erred in declaring the said exhibits, 6, 7, 8, 9 and 11 as inadmissible and expunged same. Contrary to the conclusion reached by the Court below, it is my respectful view, that exhibits 6, 7, 8, 9 and 11 being original public documents are admissible in law."per HASSAN, J.C.A. (Pp. 8-13, Paras. F-A) - read in context

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4 TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Federal Capital Territory delivered on the 14th day of November, 2012 in Suit No. FCT/HC/CV/945/2011, by Hon. Justice A. M. Talba. The appellant as plaintiff at the Lower Court, by an Amended statement of claim dated 20th day of February, 2011, claims against the respondents as defendants therein as follows: a) A declaration that by virtue of the offer of term of Grant/ Conveyance of approval dated 9/3/1994 issued by the 1st Defendant to the plaintiff, plaintiff is entitled to the Right of Occupancy in and over plot No. 668 now No. 1072, situated and lying within Cadastral Zone B03, Wuse District Abuja more particularly delineated by survey Beacons No. PB 3474, P8 3475, PB 2274 and PB b) A declaration that by virtue of the conveyance of Approval for Development plan with reference No. FCDA/RSD/CID/PD/67 issued by the Defendants and conveyed to the plaintiff he is entitled to the possession and right to carry on development on plot No. 668 now No. 1072, Cadastral Zone B03, Wuse District Abuja 1

5 specified in the Approved building plan. c) A declaration that the demolition of plaintiff's development on the said land amount to trespass. d) A perpetual injunction restraining the Defendants from approving any building plan in respect of plot No. 668 now 1072, situated and lying within Cadastral Zone 803, Wuse District Abuja to any person in respect of the property. e) A claim of the sum of four hundred and fifty million naira (N450,000,000.00) only from the Defendants being the value of the plaintiff's development on the property that was demolished by the Defendants after the commencement of this matter. f) A Declaration that the Defendants by virtue of the approval, conveyance of building plan approval, setting out approval and receipt of various payments from the plaintiff are estopped from denying the validity of the plaintiff s action in respect of plot No. 668 now No. 1072, situated and laying with Cadastral Zone 803, Wuse District Abuja. The respondents (as defendants therein) by an order of Court on 6/4/2011 extending time within which to file their statement of defence filed same, dated the 28th of February, 2

6 2011. At the close of the case for the plaintiff/appellant, the defendants/respondents did not call any witness but rested their case on that of the plaintiff/appellant. The trial Court in its judgment dismissed the totality of the appellant's claim. Dissatisfied, the appellant appealed to this Court. The Amended Notice of Appeal filed on 15/5/2016 and deemed properly filed on 8/3/2017 has seven grounds of appeal with their particulars and reliefs sought. The grounds shorn of their particulars are as follows: GROUND 1 "The learned trial judge erred in law when he held that only certified true copies of public document that is admissible in law as against the original/primary copies of the document. GROUND 2 That the learned trial judge erred in law when he held that primary evidence of public documents are not admissible under the Evidence Act and expunged same from the Appellant s evidence. GROUND 3 "That the learned trial judge erred in law when he expunged exhibits 6-12 from the record on the ground that the primary documents were not certified notwithstanding the fact that the

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8 Respondents did not oppose to their admissibility during trial. GROUND 4 "That the learned trial judge erred in law when he dismissed the Appellant s case when there was evidence of appellant s long possession of the plot. GROUND 5 "That the learned trial judge erred in law when he dismissed the Appellant's case when the Respondents did not lead evidence and relied on the Appellant s case". GROUND 6 "That the learned trial judge erred in law when he expunged Exhibits 6-12 from the record on the ground that they were public documents whereas they are private documents which do not require certification for their admissibility during the trial". GROUND 7 "The learned trial judge erred in law when he expunged Exhibits 6-12 and other titled documents from the record on the ground that they were public documents whereas they were private documents solely by the Respondents for the interest of the appellant and not for the general public. The appellant's brief dated 9th March, 2017 was filed on the 10th of March, The brief settled by Emmanuel Esene Esq has five issues

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10 distilled for determination as follows: ISSUE ONE "Whether it is only the certified true copies of public documents that are admissible as against their original/primary copies (Grounds 1 and 2). ISSUE TWO "Whether it was legal for the Lower Court to expunge Exhibits 6, 7, 8, 9 and 11 from the record on the ground that they were not certified notwithstanding the fact that they were original copies and the respondents did not oppose to their admissibility. (Ground 3). ISSUE THREE "Whether it was proper for the Lower Court to dismiss the Appellants case notwitstanding the uncontradicted evidence of long possession of the subject matter (Ground 4). ISSUE FOUR "Whether it was proper for the Lower Court to dismiss the Appellant s suit when the respondents did not adduce evidence to contradict the appellant s case" (Ground 5). ISSUE FIVE "Whether it was proper for the Lower Court to expunge Exhibits 6, 7, 8, & 9 and 11 from its record when they were correspondences between the Appellant and the Respondents that do not require certification being private documents"

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12 (Ground 6 and 7). The respondents did not file any brief. The appellant by a motion on Notice dated and filed on 26/5/2017 prayed this Court for an order directing the appeal to be heard on the appellant s brief alone, the respondents having failed to file their brief of argument. The application was heard and granted on 1/6/2017. The respondents' counsel P. O. Asa indicated to the Court on the date of the hearing of the appeal that they do not intend to file a brief. A cursory look at ground 4 of the Notice of Appeal shows the appellant's complaint was on long possession of the plot. The complaint in ground 5 is that the respondents did not lead evidence in the case, while the complaint in grounds 6 and 7 relates to the expunged documents, Exhibits 6 12 as private documents against public documents. However these grounds do not flow from the decision appealed against. Grounds of appeal can only be sustainable if they flow from the judgment/ruling appealed. Grounds 4, 5, 6 and 7 are therefore incompetent. Issues 3, 4 and 5 distilled from those grounds are also incompetent having been formulated from invalid grounds of 6

13 appeal, as they have no relation with the decision of the court. Issues 3, 4 and 5 are therefore struck out. It is apparent that issues 1 and 2 of the appellant's issues can safely be said to be the fulcrum of this appeal and the appeal shall be determined on these two remaining issues. ISSUE ONE "Whether it is only the certified true copies of public document that are admissible as against their original/primary copies. The submission of the appellant's counsel on this issue is that by virtue of Sections 85, 86(1) and 93 of the Evidence Act, 2011 documents are proved by primary or secondary evidence. Referring to Sections 93 and 94(1) of the Evidence Act, it is submitted that primary evidence is the original document which is the best evidence of the content of a document. The Court was referred to the decisions of this Court in Ogu Vs M. T. & M.C.S. Nig. (2011) 8 NWLR (part 1249) 345 at 373; Abolarin Vs Ogundele (2012) 10 NWLR (part 1308) 253 at 275 and Ali Vs Obande (1999) 9 NWLR (part 620) 563 at 574 among others, where the Court held that by the provisions of Section 93 of the Evidence Act the contents of document 7

14 are proved by primary evidence or secondary evidence. The appellant argued that since exhibits 6, 7, 8, 9 and 11 are original documents, the trial Court was wrong to have expunged them as inadmissible public documents having not been certified. The learned counsel for the appellant referred to the Supreme Court case of Anatogu vs Iweka II (1995) 8 NWLR (part 415) 547 where the Supreme Court held that only certified true copies of public document are admissible, but pointed out that the recent decision of the Supreme Court in the case ofpdp Vs INEC (2014) 17 NWLR (part 1437) 525 at 563 is to the effect that original copy of a public document need not be certified to be admissible in evidence. He urged us to uphold the decision in PDP Vs INEC (supra) being the later decision which should prevail over the earlier one. That Exhibits 6, 7, 8, 9, and 11 are admissible even if they are public documents. We are urged to resolve in favour of the appellant. The contention of the appellant is that exhibits 6, 7, 8, 9 and 11 the letter of offer, site plan, conveyance of approval, settlement of Building plan and approval for setting out,

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16 respectively are original documents issued to the appellant by the respondents and were therefore properly tendered by the appellant without the necessity of subjecting them to certification. That the exhibits are admissible even if they are public documents since they are original copies. What constitute public documents are provided by Section 102 of the Evidence Act, Section 102 makes the following documents public documents: a) Documents forming the official acts or records of the official acts: i) Of the sovereign authority; ii) Of official bodies and tribunals; iii) Of public officers legislative, judicial and executive whether of Nigeria or elsewhere; and b) public records kept in Nigeria of private documents. Exhibits 6, 7, 8, 9 and 11, the subjects of this issue were the original documents from the 1st and 2nd respondents to the appellant. The documents were in custody of the appellant up to the point they were tendered. The Supreme Court in the case of PDP V. INEC (2014) 17 NWLR (Pt.1437) 525 at 539 held that, that only categories of public documents that are admissible are either the original document 9

17 itself or in the absence of such original, certified copies and no other. In the instant case, it is my view that in line with the above decision of the Supreme Court there was no need to certify the original copies of the documents even though they were issued to the appellant by a public officer. In Abdullahi Vs F.R.N. (2016) 10 NWLR (part 1521) 475; Nweze JSC at pages was of the view that the contention that public documents which were uncertified, ought to have been discountenanced, is a misconception of the admissibility requirements of public documents as it does not represent the position of the law. His Lordship referred to Section 90(1) (c) of the Evidence Act, 2011 which provides thus: 1. The secondary evidence admissible in respect of the original document referred to in several paragraphs of Section 89 is as follows: a)... b)... c) In paragraph (e) of (f) a certified copy of the document, but no other secondary evidence is admissible. He went further to say that the judicial interpretation of the nuances of the above provisions is that the only pieces of secondary evidence of 10

18 public documents that are admissible in respect of the original documents are the certified copies thereof but no other secondary evidence and of course the original document themselves are admissible. In other words, in the absence of the original documents themselves only such properly certified copies are admissible as secondary copies of public documents "but no other kind of secondary evidence. SeeG. & T. I Ltd & Anor Vs Witt & Bush Ltd (2011) LPELR 1333 (SC) 43; Tabik Investment Ltd & Anor Vs Guarantee Trust Bank Plc (2011) 6 MJSC (part 1) 121; Iteogu Vs L.P.D.C (2009) 17 NWLR (part 1171) 614, 634, Onobruchere & anor Vs Esegine (1986) 1 NSCC 343 at 350 and Minister of Lands W/N vs Azikwe (1969) 1 All NLR 49. In the instant case, exhibits 6, 7, 8, 9 and 11 are original documents issued to the appellant by the 1st and 2nd respondents. They were tendered and admitted at trial without objection. The trial Court in its judgment relying on the Supreme Court cases of Anatogu Vs Iweka II & Ors (1995) 8 NWLR (part 415) 547 and Ogidi Vs Egba (1999) 10 NWLR (Part 621) 42 expunged the said exhibits as inadmissible 11

19 evidence being primary evidence of public documents that were not certified. In Fire Ins. Co. Ltd Vs I.B.W.A. (2001) NWLR (part 713) 610 paragraphs D - F Iguh JSC observed: "It cannot be over-emphasized that a Court of law is expected in all proceedings before it to admit and act only on legal evidence. Accordingly, where a trial Court inadvertently admits evidence which is absolutely inadmissible, it has a duty generally not to act upon it but rather to discountenance it. So too, if a document is unlawfully received in evidence in the trial Court, an appellate Court has inherent jurisdiction to exclude and discountenance the document even though learned counsel at the trial did not object to its admission in evidence. Section 90(1) (c) of the Evidence Act 2011 provides the circumstances under which any secondary evidence of contents of the document is admissible. Therefore considering the later decisions of the Supreme Court in P.D.P Vs INEC (supra) and Abdullahi Vs. F.R.N (supra), the original copies of public documents tendered by the appellant would have satisfied the requirements of the law. The lower Court erred in declaring the said 12

20 exhibits, 6, 7, 8, 9 and 11 as inadmissible and expunged same. Contrary to the conclusion reached by the Court below, it is my respectful view, that exhibits 6, 7, 8, 9 and 11 being original public documents are admissible in law. Issue one is resolved in favour of the appellant against the respondents. ISSUE TWO "Whether it was legal for the Lower Court to expunge Exhibit 6, 7, 8, 9 and 11 from the record on the ground that they were not certified notwithstanding the fact that they were original copies and the respondents did not oppose to their admissibility. The appellant submitted on this issue that since the documents were admitted without objection, it was not proper for the Lower Court to expunge same as being inadmissible. That exhibits 6, 7, 8, 9 and 11 tendered and admitted by the Lower Court were original copies, which ordinarily are admissible without certification. Relying on the cases of Lambest Vs Nigeria Navy (2000) 7 NWLR (part 980) 514 at 545; Dagaci of Dere Vs Dagaci of Ebwa (2006) 7 NWLR (part 979) 382 at 427 and Nigeria Maritime services Ltd vs Alhaji B. Afolabi (1978) 2 SC 98 among others, it is 13

21 submitted that the exhibits rejected by the Lower Court were the original copies. That they were pleaded and the respondents did not object to their admissibility during trial. That the Court ought to act on them and not to expunge them from the record. The Court is urged to hold that the exhibits were wrongly expunged. Based on the way and manner issue two is couched by the appellant, I believe I have answered the pertinent question raised therein. It will amount to an academic exercise and unnecessary repetition to go into this issue. All that is left to be said is that the issue is also resolved in favour of the appellant. The appeal is meritorious and it is allowed. The judgment of the trial Court delivered on 14th November, 2012 in Suit No. FCT/HC/CV/945/11 is hereby set aside. Parties to bear their costs. ABUBAKAR DATTI YAHAYA, J.C.A.: I have read in draft, the leading judgment just delivered by my learned brother Hassan JCA. I agree that this appeal has no merit and I dismiss it. I abide by the Order as to costs. MOHAMMED MUSTAPHA, J.C.A.: I read a draft 14

22 of the judgment just delivered by my learned brother, Tani Yusuf Hassan, JCA. I agree with the reasons advanced and the conclusion reached therein that this appeal has merit and deserves to be allowed. I adopt the said judgment as mine. I allow the appeal and abide by the order as to costs. 15

23 Appearances: E. I. Esene with him, Ijeoma Madu For Appellant(s) P. O. Asa with him, K. J. Omang For Respondent(s)