Onochie and Others v Odogwu and Others (SC 179/2001) [2006] NGSC 16 (16 February 2006)

(2006) 2 All N.L.R. 287

Ogbuagu, JSC (Delivered the Leading Judgment):- The main appeal is against the decision of the Court of Appeal, Benin Division delivered on 4 April 2001, allowing the appeal of the defendants/respondents from the decision of the High Court of Delta State sitting at Asaba delivered on 20 July 1998 by Odita, J. The respondents have also cross-appealed.

Dissatisfied with the said decision, while the appellants have appealed to this Court on three (3) grounds of appeal, the respondents' appeal is based on one lone ground of appeal.

The respondents have raised a preliminary objection and contend that grounds 2 and 3 of the Notice of Appeal, are incurably bad and incompetent. They urge the court to strike out the said grounds and any arguments founded on them. The ground of the objection is stated as follows:-

"1.    Non-compliance with Order 8, rules 2 and 4 of the Supreme Court Rules:-

(a)    Grounds 2 and 3 did not constitute or disclose any error in Law either on the main body and or with the particulars thereof. The particulars stated are mere factual arguments and not particulars of any error committed the learned Justices (sic) (meaning by) in the judgment complained of.

(b)    The complaints in the two grounds of appeal are in fact and in effect complaints of facts or mixed law and fact and plaintiffs did not obtain leave to appeal as required by the Constitution."

I note that at the hearing of this appeal, the learned Counsel for the respondents did not apply/seek leave of the Court before the hearing of the appeal, to move the said objection. The consequence is that the preliminary objection is deemed by the court, as having been abandoned. (See the cases of Nsirim v Nsirim (1990) 3 NWLR (Part 138) 285? (1990) 5 SCNJ 174? Salami v Mohammed (2000) 9 NWLR (Part 673) 469? (2000) 6 SCNJ 281 and recently, Tiza & another v Begha (2005) 5 SCNJ 168 at 178 just to mention but a few). The preliminary objection is accordingly struck out.

The facts of the case briefly stated, are that the appellants, were the plaintiffs in suit no. A/24/95 at the High Court in Asaba, Delta State. They sued in a representative capacity and claimed declarations that the land in dispute, is the communal land of both the plaintiffs and the defendants and therefore, that the two parties, are entitled to the statutory or customary right of occupancy over the said land. Pleadings were filed and exchanged. After hearing evidence and the addresses of the learned Counsel for the parties, in a considered judgment delivered on 20 July 1998, the learned trial Judge entered judgment in favour of the appellants in respect of the reliefs in Nos. 1, 2, 3 and 5 of their claims. He also made an order, setting aside as null and void, any sale, lease, mortgage, pledge, charge, exchange or any act touching the land in dispute. See pages 95-134 of the Records.

Dissatisfied with the said decisions, the defendants/respondents, appealed to the court below. The parties filed and exchanged their respective Brief of Argument. The parties also made oral submissions. The Court of Appeal, allowed the appeal and set aside the judgment of the trial court mainly on Issue No. 1 raised by the appellants in that court. See pages 238-253 of the Records. Both sides have appealed against the said judgment on different grounds.

The appellants have formulated one (1) lone issue for determination, namely,

"Whether the learned Justices of the court below were right in holding that Exhibits 1-4 are inadmissible in evidence for non-compliance with section 7 of the Public Archives Act."

At page 4 of the respondents'/cross-appellants' Brief, under "Part II", they have formulated their Issue No. 1, thus:-

"Whether the learned Justices were wrong in law in holding that Exhibits 1-4 did not comply with section 7 of the Public Archives Act and therefore, inadmissible in evidence?"

In order to determine the said issues of the parties which are the same in substance, but are couched differently, it will be pertinent to reproduce the provisions of the said section 7 of the said Act, (hereinafter called "the Act"). It reads thus:-

"The Director shall have an official seal which shall be judicially noticed. When any copy or reproduction of a document in the custody of the Director is certified to be a true copy by the Director or by any officer of the Department of Federal Archives authorised by him in that behalf and is authenticated by such official seal, such copy or reproduction shall be admitted in evidence as proof of the contents of the original document as if it were the original document."

Now, in the court below, Issue No. 1 of the respondents/cross-appellants is:-

"Was the learned trial Judge right in holding that Exhibits 1-4 complied with section 7 of the Public Archives Act so as to render them inadmissible in evidence as originals?"

The learned trial Judge had, after unequivocally stating that section 7 of the Act, is very clear and unambiguous, referred to the evidence of the PW1, who tendered the four (4) exhibits in question and at page 122 lines 12-24, he stated as follows:-

"I am firm that section 7 of the Public Archives Act quoted above was meticulously complied with by PW1. I therefore, hold that Exhibits 1-4 are now original documents following Section 7 of the Public archives Act quoted above. Consequently I do not agree with Mr Okonkwo. Sections 97(1) (e), 109(b), 111 and 114 of the Evidence Act do not prevent Exhibits 1-4 for (sic) (meaning from) being accepted as original documents. I accept them as such."

The court below, at page 247 lines 7-27, reproduced what it considered as the relevant portions of the evidence of the PW1 and related the same to the said section 7 of the Act. At pages 248 and 249 of the Records, it held [per Ba'aba, JCA,] as follows:-

"From a careful study of section 7 of the Public Archives Act, it is clear in my view on the literal meaning that the any copy (sic) or reproduction of a document in the custody of the Director must be certified to be a true copy by the Director or by any officer of the Department of the Federal Archives authorised by him in that behalf and is authenticated by such official seal.

It follows therefore, that the absence of the Director's authorisation to PW1 as well as the absence of authenticity by the Director's Seal is a clear non-compliance with the provisions of section 7 of the Public Archives Act. It is therefore, unsafe to assume that PW1 obtained the authorisation of the Director in the absence of any evidence to that effect. The absence of the Director's official seal, has certainly affected the authenticity of Exhibit 4, thereby rendering it inadmissible under section 7 of the said Act. I agree with the submission of the learned Senior Advocate of Nigeria for the appellants, that PW1

himself did not claim that he was authorised by the Director in his evidence nor did he claim that Exhibit 4 was authenticated by the Director's official seal. The impression I have from the evidence of PW1 is that he was directly contacted to tender the documents including Exhibit 4 and through his own efforts, traced the documents which he brought to the Court and tendered. It is interesting to note that PW1 in fact never mentioned the Director through out his evidence, giving an impression that as a Senior Archivist Assistant he is either unaware of the provision of section 7 of the Public Archives Act or decided to ignore the said provisions. With respect, to the learned Counsel for the respondents, I disagree with his Submission that since Exhibit 4 was tendered without objection, the appellants can not now complain. There is statutory provision providing for the admission in evidence of a copy of (sic) (meaning or) reproduction of a document in the custody of the Director of the Department of the Federal Archives which I believe must be complied with in the tendering of such documents like Exhibit 4 in the instant case. With the greatest respects to the learned trial Judge, who apparently did not address his mind to the vital issues, relating to the admissibility of the documents, I disagree that section 7 of the Public Archives Act, was meticulously complied with consequently. I hold that Exhibit 4 admitted without complying with the provisions of the said section 7, is inadmissible."

I agree.

It is noted by me and as rightly submitted by the learned Counsel for the respondents/cross-appellants in the Brief, that not only did the appellants and their learned Counsel, in any manner not fault the above pronouncements by the court below, at page 14 of their Brief, under their paragraph 608 after stating the "salient features of section 7", stated as follows:-

"Now, on each page of Exhibits 1-4, one can see the stamp of the Director of National Archives and the name, number and signature of PW1 showing that he signed each exhibit for and on behalf of the Director. So far, as can be visually ascertained from the record, no trace of the Director's seal (whether affixed or embossed) appears on any of the exhibits under consideration." (Underlining mine.)

After the above concession underlined by me, at paragraph 610 of their Brief, the following appear:-

"Since the court below was satisfied or, at least, impressed that Exhibits 1-4 emanated from the National Archives albeit through the personal efforts of PW1 who brought them to court, the crucial and pertinent question which arises is this: Are Exhibits 1-4 absolutely inadmissible in evidence in all circumstances or at all events in law or are they inadmissible because the Director did not himself certify them or authorize their certification or because of the absence of the Director's official seal?" (Underlining mine.)

It is then submitted that Exhibits 1-4 do not belong to the kindred or class of documents which are absolutely inadmissible in evidence in any event in law. That their admissibility is only dependent on or made subject to certain conditions. That since Exhibits 1-4 are not absolutely inadmissible in any event in law, but are admissible subject to certain conditions and since the same were admitted without any objection, the respondents are deemed to have waived their right to complain and that the court below could not properly reopen the question as to their admissibility. The cases of Salawu Jagun Olukade (not Salau Jagun Okulade) as stated in both Briefs of the parties) v Abolade Agboola Alade (1976) 1 All NLR (Part 1) 67 at 73-74 (it is also reported in (1976) 2 SC 183, 188-189) - per Idigbe, JSC? Bruno Etim & others v Okon Udo Ekpe & another (1983) 3 SC 12 at 36-37 (it is also reported in (1983) 1 SCNLR 120) - per Aniagolu, JSC, and Oguma Associated Companies (Nigeria) Ltd v International Bank for West Africa Ltd (1988) 1 NWLR (Part 73) 658 at 670 - per Agbaje, JSC (it is also reported in (1988) 3 SCNJ 13). Learned Counsel also cited and relied on the cases of Nathaniel Okeke v Akunkwe Obidife & others (1965) NMLR 113 at 115? Chukwura Akunne v Mathias Ekwuno & others (1952) 14 WACA 59 & 60 and Kossen (Nigeria) Ltd & another v Savannah Bank of Nigeria Ltd (1995) 9 NWLR (Part 420) 439 (it is also reported in (1995) 12 SCNJ 29). He stated that all the above authorities and more, were extensively reviewed in the recent case of Unity Life & Fire Ins. Co Ltd v International Bank of West Africa Ltd (2001) 7 NWLR (Part 713) 610 at 627 - per Iguh, JSC He finally, cited and relied on the case of Ibrahim Khalil Yassin v Barclays Bank DCO (1968) 1 All NLR 171 at 179 - per Lewis, JSC.

But with the greatest respect, the said cases are distinguishable to the admitted clear and unambiguous provision of section 7 of the Act which is mandatory. In the first place, in Olukade v Alade (supra), it is settled that where inadmissible evidence has been admitted, it is the duty of the court, not to act upon it. It is immaterial that its admission, was as a result of the consent of the opposite party or that party's default in failing to make objection at the proper time. That the Court of Appeal, has the power, to reject such evidence and decide the case on legal evidence. (See also Owonyin v Omotosho (1961) 1 All NLR (Part II) 304 at 305? (1961) 2 SCNLR 57 at 61 and Idowu Alashe & others v Olori Ilu & others (1965) NMLR 60 at 67? (both referred to by the court below)? Yassin v Barclays Bank D.C.O. (supra) and Jahanini v Saibu (1977) 2 SC 89 at 112-113 and many others).

I want to state straightway, that it is not true/correct, that there was no objection from the learned Counsel of the respondents/cross-appellants to the admissibility of the said exhibits. At pages 50-52 of the Records, I note that when the learned Counsel to the plaintiffs - Mr Anyaduba sought to tender Exhibit 1 through the PW1, the learned Counsel to the respondents/cross/appellants - Mr Okonkwo objected albeit on some other ground. He was overruled by the trial court, thus:-

". . . There is clear foundation was laid (sic). The document was pleaded. The document ought not to come from the trial court. How it got to the National Archives does not matter."

I am inclined to agree with the submission of the learned Counsel for the respondents/cross-appellants at page 12 of their Brief that in view of the stance of the learned trial Judge in respect of Exhibit 1, he was likely to overrule any subsequent objections to the admissibility of the other exhibits.

In order to show that I am in no way "speculating", since this Court is bound by the Records before it, I note that at page 118 lines 17-27 of the Records, the learned trial Judge stated as follows:-

". . . Mr E.E. Okonkwo learned Counsel for the defendants launched heavy attach (sic) (meaning attack) on Exhibits 1, 2, 3 and 4 tendered and relied upon in this case by the plaintiffs. He contended that Exhibits 1 to 4 are photocopies of Public Documents and that Sections 97(1)(e), 105(b) 111 and 114 of the Evidence Act put beyond doubt Exhibit 1-4 (sic) out of admissibility in this Court. He further contended that if his submission is accepted by the court, then this Court ought to dismiss the plaintiffs' claim . . . " (Underlining mine.)

Of course, Mr Okonkwo, in my respectful view, was right and entitled to "launch" an attack on the admissibility of the said exhibit in his address or even on appeal. This is because, in Olukade v Alade (supra), it was held firstly, that where inadmissible evidence, is tendered, that it is the duty of the opposite party or his Counsel, to object immediately. That if he fails to do so, that the trial court in civil cases, may and in criminal cases, must reject such evidence ex proprio motu.

Secondly, that where evidence is by law, inadmissible in any event, that it ought never be acted upon in Court (whether of first instance or of appeal) and that it is immaterial, that its admission in evidence, was as a result of consent of the opposite party or that party's default in failing to make objection at the proper time.

As a matter of fact, the principle of English Common Law as to the different categories relating to admissibility of documents in evidence which were stated in the case of Gilbert v Endean [1878] 9 Ch D 259 at 269 were applied in Olukade v Alade's case (supra). It is not applied to section 96 of the Evidence Act. Now, in the case of Elizabeth N. Anyaebosi v R.T. Briscoe (Nigeria) Ltd (1987) 6 SC 15 at 17, 21, 25, 43-52, 62-68, the different categories of evidence, were dealt with. See also recently, Shittu & 3 others v Otunba Fashawe (2005) 7 SC (Part II) 107? (2005) Vol. 12 MJSC 68 at 86-90 - per Musdapher, JSC. For instance:-

(a)    Document not one that is inadmissible in any event at page 63 - per Karibi-Whyte, JSC.

(b)    Category of evidence legally inadmissible and cannot under any circumstances, constitute evidence in the case at the trial or an appeal even where admitted by consent. (See Owonyin v Omotosho? Alashe v Ilu, Yassin v Barclays Bank D.C.O. (supra)? Ikenye v Ofunne (1985) 2 NWLR (Part 5) 1? Osho & another v Ape (1998) 6 SCNJ 139 at 152-153 and recently, Nwanji v Coastal Services (Nigeria) Ltd (2004) 6 SCNJ 146 at 160-161? (2004) 11 NWLR (Part 885) 552? (2004) 6-7 SC 38 (Lawbreed Ltd)).

(c)    Category of evidence which is admissible if admitted without objection by the other party and where the admission, did not affect the result of the case. (See Ajayi v Fisher (1956) 1 FSC 90 at 92? (1956) SCNLR 279? R v Thomas (1958) 3 FSC 8? Akadile v The State (1971) 1 All NLR 18? Idundun v Okumagba v Okumagba (1976) 9-10 SC 227 at 245 and Okeke v Obidife (supra) just to mention but a few. That is to say, that the other party, is not entitled thereafter, to complain where such evidence, was admitted at the trial without objection). (See also Dipo Ayinde & another v Salawu (1989) 3 NWLR (Part 109) 287? (1989) 5 SCNJ 133.)

I have stated that Mr Okonkwo was right and entitled to raise the objection not only during the address at the trial court, but the objection, could be raised on appeal. This again is because, and this is settled, that neither a trial court nor the parties, have the power to admit without objection, a document that is in no way or circumstance, admissible in law. (See Etim v Ekpe (supra)? Oba Oseni & 14 others v Dawodu & 2 others (1994) 4 NWLR (Part 339) 390 at 405-406? (1994) 4 SCNJ (Part II) 197 citing Alashe & others v Ilu & others and Olukade v Alade (supra) and recently, Alao v Akano & others (2005) 4 SC 25 at 32, (2005) 4 SCNJ 65 at 74? (2005) Vol. 10 MJSC (Monthly Judgments of the Supreme Court of Nigeria) 137 at 109).

It is firmly established, that if a document is wrongly received in evidence before the trial court, an Appellate Court, has the inherent jurisdiction, to exclude it although Counsel at the lower court, did not object to its going in. See also Mallam Yaya v Mogoga 12 WACA 132 at 133 and of course, Alashe v Ilu (supra), and Anyanwale & others v Atanda & another (1988) 1 SC 1 at 3? (1988) 1 SCNJ 1 at 20.)

Indeed, in the case of Osho & another v Michael Ape (1998) 6 SCNJ 139 at 152-153, Onu, JSC, stated as follows:-

"I am not oblivious of the facts that it is not the law that once a document is received in evidence without objection by a party then such a party is forever automatically estopped, even in the appellate court from raising the issue of its admissibility. Thus, if a document is unlawfully received in evidence, an Appellate Court has inherent jurisdiction to exclude and discountenance the document even though Counsel at the trial court did not object to its going into evidence."

The learned Jurist, continued thus:-

"Accordingly, although a document was unlawfully received in evidence without objection by or on behalf of an appellant, it would still be open to him in the Appellate Court, particularly where such an appellant has suffered injustice as a result, or a miscarriage of justice is thereby occasioned, to object to it since it is the duty of the appellate court to exclude inadmissible evidence which was erroneously received in evidence during the trial."

His Lordship cited or referred to several decided cases including those already cited and relied on by me hereinabove in this judgment. In Nwanji v Coastal Services (Nigeria) Ltd (supra), Uwaifo, JSC, stated that such evidence/document, must be discountenanced as it goes to no issue.

I note that the court below, also dealt with the effect of the admission of inadmissible document/evidence by a trial court. It referred to a number of cases - Union Bank of Nigeria Ltd v Professor Ozigi (1994) 3 NWLR (Part 332) 385, 402 (it is also reported in (1994) 3 SCNJ 42)? Udeze & 2 others v Chidebe & 4 others (1990) 1 NWLR (Part 125) 141 (it is also reported in (1990) 1 SCNJ 104)? Idundun v Okumagba (1976) 9-10 SC 227 (supra) and Oba Ipinlaiye II v Olukotun (1996) 6 NWLR (Part 453) 148, 167 - per Iguh, JSC, which it reproduced. (It is also reported in (1996) 6 SCNJ 74 and Okonji & others v Njokanma & others (1991) 7 NWLR (Part 202) 131, 146 (it is also reported in (1991) 9-10 SCNJ 27).

I have deliberately gone this far because, in the instant case, the PW1, did not say or even suggest firstly, that the Director's seal or official seal (which shall be judiciously noticed, was/appears on any of the said exhibits. I have noted/reproduced hereinabove in this judgment, that it is conceded by the appellants and their learned Counsel, that as far as can be . . . Visually ascertained from . . . record, there is no trace of the Director's seal (whether affixed or embossed) that appears on any of the exhibits under consideration - i.e. Exhibits 1-4.

Secondly, there is no iota of evidence by/from PW1, that he was ever/duly authorised by the Director in that behalf - i.e. when he, PW1 - a Senior Archivist Assistant, National Archives, Ibadan effected the said certification. The learned Counsel for the appellants under the said paragraph 6.08, stated that the certification of each of the said exhibits, was done/effected by the PW1 and "on behalf of the Director". But the PW1 did not say that before, during or after the said certification, he was so authorised to do so, by the Director on behalf of whom he signed the certification or that the Director, ever ratified such certification by him.

The court below, was therefore, right in my respectful view, when it held at the said page 248 of the Records, that the absence of the Director's authorisation to PW1 as well as the absence of authenticity by the Director's Seal, is a clear non-compliance with the provisions of section 7 of the Public Archives Act.

I also agree with the court below, that the absence of the Director's official seal, has certainly affected the authenticity of Exhibit 4, thereby, rendering it inadmissible under the said Act. The court below was right also, when it held that the error of law committed by the trial court, occasioned a substantial miscarriage of justice and that without the admission of Exhibit 4 in evidence, the decision of that court would have been otherwise.

With profound humility and respect, the submission in paragraph 6.19 of the appellants' Brief that there is a presumption in favour of PW1 that Exhibits 1-4 were certified substantially in accordance with the law relying on section 114(1) and (2) of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990, is completely misconceived.

It is further submitted in paragraph 6.20 of the said Brief, "that once a document (such as Exhibits 1-4) is found to be admissible in law, the court is obliged to presume, that a certified copy of such a document, is genuine and that it has been regularly certified as a true copy by the officer charged with the responsibility of doing so. That the maxim of "omnia praesumuntur rite esse acta", operates in favour of the PW1 that he was duly authorised by the Director to certify the said exhibits. The cases of Re Randle, Nelson & another v Akofiranmi (1962) 1 SCNLR 252? (1962) All NLR 130 and Obazee Ogiamien & another v Obahon Ogiamien (1967) NMLR 254? (1967) 1 All NLR 191, have been cited and relied on for this proposition.

Remarkably, the court below, and rightly in my view, never found the said exhibits to be admissible in law. Rather, the contrary was found and I agree. As rightly observed/noted by the court below, the PW1, did not claim that he was ever authorised by the Director to so certify nor did he claim that Exhibit 4 was authenticated by the Director's official Seal.

It is now firmly settled that in the interpretation of a statute, where its interpretation, will result in defeating its object, the court would not lend its weight to such an interpretation. The language of the statute, must not be stretched, (as has been done in the appellant's brief) to defeat the aim of the statute. (See Ansaldo Nigeria Ltd v National Provident Fund Management Board (1991) 2 NWLR (Part 74) 392 at 405? (1991) 3 SCNJ 22).

In other words, the interpretation which appears to defeat the intention of the Legislature, should be by-passed in favour of that which would further the object of the Act. See Hill v East & West Dock Co [1884] AC 488 at 456? Rein v Lane [1867] LR 22 QB 144 at 157 and Curtis v Stovin [1889] 22 QBD 513 (both per Bowen, LJ and in Curtis's case at 519 - per Fry, LJ)? Hansley v Clevening [1942] 2 KB 326 at 330 - per Lord Green, MR for our local cases, (see Savanah Bank (Nigeria) Ltd & another v Ajilo & another (1989) 1 NWLR (Part 97) 305 at 326: (1989) 1 SCNJ 169 - per Obaseki, JSC, citing Shanuon Realities Ltd v Ville de St. Michael [1924] AC 185? International Bank for West Africa Ltd v Imano (Nigeria) Ltd & another (1988) 2 NWLR 633 - per Wali, JSC).

This is why it is firmly settled that where the provisions of a statute are clear and unambiguous, the court, must give those provisions, their liberal and ordinary interpretation. (See Ojokolobo & others v Alamu & another (1987) 3 NWLR (Part 61) 377? (1987) 7 SCNJ 98? Mayaki & 2 others v The Registrar Yaba Magistrate Court 4 & 5 others (1990) 2 NWLR (Part 130) 43 CA just to mention but a few).

The provision of section 7 of the Act as I have noted hereinabove in this judgment and as held by the trial court, is so clear and unambiguous, that it needs no fanciful embellishments. Afterwards, the word "shall", was interpreted in the case of Ifezue v Mbadugha & another (1984) 5 SC 79? (1984) 1 SCNLR 427? (1984) 15 NSCC 314. Its use in a statute or Rules of Court, makes it mandatory that the rule or provision, must be observed. (See Mokelu v Federal Commissioner For Works & Housing (1976) 3 SC 35 and Madam Alake Aroyewun v Joseph Adenbanji (1976) 11 SC 33). In Longman Dictionary of the English Language, it is stated that "shall" is used to express a command or exhortation, or what is legally mandatory. (See also the case of Amokeodo v Inspector-General of Police & 2 others (1999) 5 SCNJ 71 at 81-82).

Now, in the case of Anyakora & 4 others v Obiakor & 8 others (1990) 2 NWLR (Part 130) 52 CA which also dealt with the duty of a court in the construction of a statute like a document in Public Archives, it was held that the reasons for authenticating Public Documents by a designated offic