CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
The appellant, as plaintiff, instituted an action at the trial court claiming the sum of N10 million as damages for libel against the respondent. The claim arose from a letter dated 10th September, 1984, written by the respondent concerning the appellant in the way of his office as Chief Judge of Anambra State.
At the trial, the appellant opened his case on 9th October, 1992 by calling a legal practitioner as his first witness. The witness testified that he represented the Principal Secretary to the Executive Governor of Enugu State, who had been subpoenaed to tender documents. After stating that the original letter dated 10th September, 1984 addressed to the Military Governor of Anambra State could not be found, the witness sought to tender a photocopy of the letter through counsel for the appellant.
Counsel for the respondent objected to the admissibility of the document on the ground that the letter, being a public document, could only be admitted in evidence if it was a certified true copy of the original as required by section 96(1)(e) and 96(2)(c) of the Evidence Act, Cap. 62, Laws of the Federation of Nigeria and Lagos, 1958, now section 97(1)(e) and (2)(c) of Cap. 112 of the Evidence Act, 1990. The learned trial Judge, Omotosho, J., overruled the objection and held that the original of the letter having been lost, any secondary evidence of the lost document was admissible under section 96(1)(c) and section 96(2)(a) of the Evidence Act. The document was admitted as exhibit 1.
Dissatisfied with the ruling, the respondent appealed to the Court of Appeal. That court reversed the decision of the learned trial Judge, holding that under section 97(2)(c) of the Evidence Act, the only secondary evidence admissible in respect of a public document is a certified copy of the document and no other kind of secondary evidence. The appellant, being dissatisfied with the judgment of the Court of Appeal, appealed to the Supreme Court.
Issues for Determination
ISSUE 1:Â Whether, in a case where the original of a public document is lost and cannot be found or where such document has been destroyed and is no longer in existence, any secondary evidence of such document (other than a certified true copy thereof) is admissible in evidence.
ISSUE 2:Â Whether the provision of section 97(2)(c) of the Evidence Act is applicable in a case where the original of a public document is lost and cannot be found or where such document has been destroyed and is no longer in existence.
Decision / Holding
Appeal dismissed. The Supreme Court affirmed the decision of the Court of Appeal and held that under section 97(2)(c) of the Evidence Act, the only secondary evidence admissible in respect of a public document is a certified true copy of the document and no other kind of secondary evidence. The case was remitted to the Chief Judge of Lagos State to be tried de novo by another Judge.
Ratio Decidendi / Principles
EVIDENCE LAW — Documentary Evidence — Secondary Evidence of Public Document Must Be Certified True Copy “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 the 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.” Per Tobi, JSC, in Araka v. Egbue (2003) NLC-1671999(SC) at pp. 8–9; Paras E–A.
EVIDENCE LAW — Documentary Evidence — Distinction Between Public and Private Documents for Secondary Evidence Purposes “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)(c) 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.” Per Tobi, JSC, in Araka v. Egbue (2003) NLC-1671999(SC) at p. 9; Paras B–C.
EVIDENCE LAW — Documentary Evidence — Rationale for Certified Copy Requirement for Public Documents “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 authentic.” Per Tobi, JSC, in Araka v. Egbue (2003) NLC-1671999(SC) at p. 12; Paras C–D.
JUDICIAL PRECEDENT — Stare Decisis — Foreign Decisions Cannot Supplant Correctly Decided Domestic Case Law “Foreign authorities of the greatest learning cannot supplant our case law which is rightly decided on issues coming before this court. … Foreign decisions will continue to be useful in the expansion of the frontiers of our jurisprudence but this court cannot invoke such decisions where it thinks they are contrary to the judgments of the court which are correctly decided.” Per Tobi, JSC, in Araka v. Egbue (2003) NLC-1671999(SC) at p. 14; Paras C–E.
STATUTORY INTERPRETATION — Literal Rule — Court Cannot Rewrite Clear and Unambiguous Statute “The duty of the court is to interpret the words contained in the statute and not go outside the words in search of an interpretation which is convenient to the court or to the parties or one of the parties. Even where the provisions of a statute are hard in the sense that they will do some inconvenience to the parties, the court is bound to interpret the provisions once they are clear and unambiguous.” Per Tobi, JSC, in Araka v. Egbue (2003) NLC-1671999(SC) at pp. 12–13; Paras E–A.
STATUTORY INTERPRETATION — Separation of Powers — Judicial Legislation Prohibited “The moment a court of law intends to rewrite a statute or really rewrites a statute, the intention of the lawmaker is thrown overboard and the court changes place with the lawmaker. In view of the fact that that will be against the doctrine of separation of powers entrenched in the Constitution, a court of law will not embark on such an unconstitutional act.” Per Tobi, JSC, in Araka v. Egbue (2003) NLC-1671999(SC) at p. 13; Paras A–B.
Obiter Dicta
“This appeal has once again brought to the fore the filing of appeals of an interlocutory nature. While the parties have exercised their constitutional right of appeal, not much could have been lost if the issue before us was taken at the end of the case together with any other ground or grounds of appeal, if the respondent lost out at the end. The action was filed in October, 1985 and we are still on an interlocutory appeal, about eighteen years after. I am not saying that the respondent was wrong in exercising his constitutional right of appeal. I cannot say that. But the point I am making is that a little discretion would have taken this matter lesser period in the courts.”
Per Tobi, JSC, in Araka v. Egbue (2003) NLC-1671999(SC) at p. 15; Paras B–C.
Orders of Court
- The appeal is dismissed.
- The judgment of the Court of Appeal is hereby affirmed.
- The case is remitted to the Chief Judge of Lagos State to be tried de novo by another Judge.
- Costs of N10,000.00 awarded to the respondent.
APPEARANCES
Counsel for the Appellant(s)
F. R. A. Williams (Jnr.), Esq. (with him, F. Gambari-Mohammed [Mrs])
Counsel for the Respondent(s)
Dr. Gbolahan Elias
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY NIKI TOBI, J.S.C. (DELIVERING THE LEAD JUDGMENT): )
This appeal involves a fairly narrow area of our adjectival law. It has to do with the interpretation or construction of section 97(2)(c) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990.
The facts of the case are not in controversy. They are very well set out in the appellant’s brief. It is an action on libel. The appellant, as plaintiff, filed an action claiming the sum of N10 million as damages for libel against the respondent in a letter dated 10th September, 1984, written by the respondent concerning the appellant and in the way of his office as Chief Judge of Anambra State.
By their pleadings the parties joined issues and the matter went to trial. Appellant opened his case on 9th October, 1992 by calling Kingsley Ngwu Udoh, a legal practitioner, as his first witness. The witness testified that he was representing the Principal Secretary to the Executive Governor of Enugu State who was subpoenaed to tender documents in the court. After saying that the original letter dated 10th September, 1984 addressed to the Military Governor of Anambra State could not be found, witness tendered a photocopy of the letter through counsel for the appellant. Counsel for the respondent objected on the ground that the letter being a public document can only be admitted in evidence if it is a certified true copy of the original as required by section 96(1)(e) and 96(2)(c) of the Evidence Act, Cap. 62, Laws of the Federation of Nigeria and Lagos, 1958, now section 97(1)(e) and (2)(c) of Cap. 112 of the Evidence Act, 1990.
P.1
The learned trial Judge, Omotosho, J. of blessed memory overruled the objection and held that the original of the letter dated 10th September, 1984, having been lost, any secondary evidence of the lost document is admissible under section 96(1)(c) and section 96(2)(a) o
Concurring Opinion(s)
— MOHAMMED, J.S.C.:
 I entirely agree. The case of the appellant hinges on the interpretation of the provisions of section 97 subsection (1)(e) and (f) and subsection (2)(c) of the Evidence Act, laws of the Federation of Nigeria, Cap. 112, 1990 which read as follows:
P.15
’97(1) Secondary evidence may be given of the existence, condition or contents of a document in the following case: …
(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; …
(2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of this subsection (1) of this section is as follows: …
(c) In paragraph (e) or (f) a certified copy of the document, but no other kind of secondary evidence, is admissible.
If there is nothing to modify, nothing to alter, nothing to qualify the language which the instrument contains, it must be construed in the ordinary and natural meaning of the words and sentences – per Lord Halsbury in St. John Hampstead Vestry v. Colon (1886) 12 App. cases 1. If the language used in a statute is free from ambiguity and so clear and explicit as to leave no doubt as to its meaning, the court must construe the enactment according to its expressed intention. See P.D.P. and Anor. v. INEC & Ors. (1999) 11 NWLR (Pt. 626) 200 and Nabhan v. Nabhan (1967) 1 All NLR 47.
Looking at the provisions of section 97(2)(c) of the Evidence Act, it is abundantly clear that the statute has left no room for me to admit secondary evidence of a public document other than by tendering a certified copy of the document.
This is not the first time this court has considered the issue of admission of secondary evidence of a public document. In the case of Minister of Lands, Western Nigeria v. Azikiwe and Ors. (1969) 1 All NLR 49 (1969) N.S.C.C. this court held;
“The combined effect of the subsections (e) or (f) 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.”
P.16
I have looked at the Indian cases referred to by the appellant’s counsel. It is an excellent research conducted by the Chambers of Chief Rotimi Williams S.A.N. However, where the intention of the legislature is clear and explicit the power of the court to travel outside on a voyage of discovery is strictly limited. In any event, we are bound to follow the judicial precedent set up by this court under the rule of stare decisis on similar subject matter. It seems to me that the sole guide to the interpretation of the provision of the statute in question here is the statute itself, nothing except an Act of Parliament (the National Assembly) can alter the provision enacted herein.
For these reasons, and the fuller reasons in the judgment of my learned brother, Niki Tobi, JSC., which I have had the privilege to read before now the appeal is dismissed. The judgment of the court of Appeal is hereby affirmed. I also award N10,000.00 costs in favour of the respondent.
— A. I. KATSINA-ALU, J.S.C.:
 I have read before now in draft the judgment delivered by my brother Niki Tobi, JSC. I agree with it and for the reasons given by him I would dismiss the appeal. I hereby order that the case be remitted to the Chief Judge of Lagos State to be tried de novo by another Judge. I abide by the order for costs.
— A. O. EJIWUNMI, J.S.C.:Â
I have had the privilege of reading the draft of the judgment just delivered by my learned brother, Niki Tobi, JSC in that judgment, the main issue in the appeal has been thoroughly examined and I need not add any further reasons for dismissing the appeal. I agree with all the consequential orders made in the said leading judgment of my brother Niki Tobi, J.S.C.Â
P.17
— O. EDOZIE, J.S.C.:
I have had a preview of the lead judgment just read by my learned brother Tobi, JSC and I agree with it that the appeal should be dismissed.
The appeal involves the construction of section 97(2)(c) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990 relating to the type of secondary evidence admissible to prove the contents of a public document and specifically to the issue whether a photocopy of the original document is admissible in that regard.
Section 97 of the Evidence Act enacts:-
“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 …
(2) the secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) of this section is as follows:-
(c) in paragraphs (e) or (f) a certified copy of the document, but no other kind of secondary evidence is admissible … ”
The cardinal or golden rule of interpretation of statutes is that the words of the statute must prima facie be given their ordinary meaning without importing into them what is not there. In other words where the words used in an enactment are plain on the face of it, effect must be given to their literal meaning: see Niger Progress Ltd v. North East Line Corporation (1989) 3 NWLR (Pt. 107) 68; Amokeobo v. I.G.P (1999) 6 NWLR (Pt. 607) 467 at 482; Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258; Okumagba v. Egbe (1965) 1 NMLR 62; African Newspapers Ltd. v. The Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377.
P.18
In the last of these cases, this court observed
“If the language used by the legislature is clear and explicit, the court must give effect to it because in such a situation the words of the statute speak the intention of the legislature. The words of the statute must not be overruled by the Judge.”
See also Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478 at p. 482; Awolowo v. Shagari (1979) 6-9 SC 51 at 90-93; Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 641-642.
Guided as I am by the principles enunciated in the above cases, it is my view that section 97(2)(c) of the Evidence Act (supra) does not admit of any ambiguity. The language is clear, explicit and categorical that the only secondary evidence admissible to prove the existence, condition and contents of a public document is a certified true copy of the original and no other type of secondary evidence.
The main thrust of the appeal appears to be that if the original of the public document is lost or destroyed thereby rendering the making of a certified copy impracticable, it would be unjust not to admit other form of secondary evidence such as a photocopy of the original document. I share the plight of the appellant but it must be borne in mind that the duty of the court is to expound the law and not to expand it. It is not the function of the court to supply omissions in statutes and thereby embark on judicial legislation: Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255 at p.278; Osho v. Philips (1972) 4 SC 252.
P.19
The provision under consideration, that is, section 97(2)(c) of the Evidence Act (supra) has been judicially considered in several decisions of this court: see the Minister of Lands Western Nigeria v. Dr. Nnamdi Azikiwe (1969) 1 All NLR 49; Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799: Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373 to mention but a few. The decisions in these cases are consistent that only a certified copy is admissible as secondary evidence to prove the contents of a public document. Those decisions cannot be faulted.
In the light of the foregoing and the more detailed reasons given in the lead judgment, I also dismiss the appeal with an endorsement of all the consequential orders contained in the lead judgment.
Appeal dismissed.
P.20
Dissenting Opinion(s)
None
REFERENCES
Research enhancement — dynamically linked
Referenced Judgments
1. Adewunmi v. A-G., Ekiti State (2002) 2 NWLR (Pt. 751) 474 — cited at P.5, P.13
2. Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116 — cited at P.14
3. African Newspapers Ltd. v. The Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137 — cited at P.18
4. Amokeobo v. I.G.P. (1999) 6 NWLR (Pt. 607) 467 at 482 — cited at P.18
5. Anyakora v. Obiakor (1990) 2 NWLR (Pt. 130) 52 — cited at P.7
6. Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 641-642 — cited at P.19
7. Awolowo v. Shagari (1979) 6-9 SC 51 — cited at P.5, P.19
8. Berliet (Nig.) Ltd. v. Kachalla (1995) 9 NWLR (Pt. 420) 478 at p. 482 — cited at P.19
9. Bibi Aisha v. Bushar S.S.M Avaqai (1969) AIR SC 253 — cited at P.5
10. C.P.N. Singh v. B.P.N. Singh (1927) AIR Pat. 61 — cited at P.5
11. Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258 — cited at P.18
12. Garba v. Federal Civil Service Commission (1988) 1 NWLR (Pt. 71) 449 — cited at P.14
13. Ifesue v. Mbadugha (1984) 1 SCNLR 427; (1984) All NLR 256 — cited at P.5
14. International Bank for West Africa Limited v. Imano (Nigeria) Limited (1988) 3 NWLR (Pt.85) 633 — cited at P.7
15. Minister of Lands Western Nigeria v. Dr. Azikiwe (1969) 1 All NLR 49 — cited at P.5, P.10, P.16, P.19
16. Nabhan v. Nabhan (1967) 1 All NLR 47 — cited at P.16
17. Niger Progress Ltd. v. North East Line Corporation (1989) 3 NWLR (Pt. 107) 68 — cited at P.14, P.18
18. Nwangwu v. Duru (2002) 2 NWLR (Pt. 751) 265 at 281 — cited at P.5
19. Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373 — cited at P.12, P.19
20. Obomhense v. Erhahon (1993) 7 NWLR (Pt. 303) 22 at 42 — cited at P.5
21. Ogualaji v. A-G., Rivers State (1997) 6 NWLR (Pt. 508) 209 — cited at P.5
22. Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 — cited at P.14, P.18
23. Okumagba v. Egbe (1965) 1 All NLR 62 — cited at P.5, P.18
24. Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255 at p.278 — cited at P.19
25. Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799 — cited at P.11, P.19
26. Osho v. Philips (1972) 4 SC 252 — cited at P.19
27. P.D.P. and Anor. v. INEC & Ors. (1999) 11 NWLR (Pt. 626) 200 — cited at P.16
28. Permanent Trustees Company of New South Wales v. Feis (1918) AC 879 at 885 — cited at P.7
29. *Prince Adigun v. A-G., Oyo State (No 2)* (1987) 21 NWLR (Pt. 56) 197 — cited at P.14
30. Savannah Bank v. Ajilo (1987) 2 NWLR (Pt. 57) 421 — cited at P.14
31. Schroder and Co. v. Major and Co. Nigeria Limited (1989) 2 NWLR (Pt. 101) 1 — cited at P.7
32. St. John Hampstead Vestry v. Colon (1886) 12 App. Cases 1 — cited at P.16
33. Veerasetly v. Nanchudachari (1955) AIR Mys. 139 — cited at P.5
34. Warburton v. Loveland (1932) (H/L) 589 — cited at P.5
Referenced Statutes
1. Constitution of the Federal Republic of Nigeria — cited at P.13 (doctrine of separation of powers)
2. Evidence Act, Cap. 62, Laws of the Federation of Nigeria and Lagos, 1958:
o Section 96(1)(c) — cited at P.2
o Section 96(1)(e) — cited at P.1
o Section 96(2)(a) — cited at P.2
o Section 96(2)(c) — cited at P.1, P.10
o Section 96(2)(d) — cited at P.10
3. Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990:
o Section 93(1) — cited at P.11
o Section 97(1)(c) — cited at P.3–4, P.6, P.8–10
o Section 97(1)(e) — cited at P.1, P.3, P.5–6, P.8–10, P.15–16, P.18
o Section 97(1)(f) — cited at P.15–16
o Section 97(2)(a) — cited at P.4, P.6, P.8–9, P.12
o Section 97(2)(c) — cited at P.1, P.3–6, P.8–9, P.11–12, P.15–16, P.18–20
o Section 97(2)(e) — cited at P.6
o Section 108 — cited at P.12
o Section 109 — cited at P.4, P.8, P.16, P.18
o Section 110 — cited at P.9, P.11
o Section 111 — cited at P.11
o Section 111(1) — cited at P.5–6
o Section 131(1) — cited at P.11