ALHAJI AHMADU KUBAU v MALLAM SHEHU RILWANU (CA/K/179/2001) [2013] NGCA 5 (10 May 2013)

ABDU ABOKI

....... Justice, Court of Appeal

THERESA NGOLIKA ORJI-ABADUA

....... Justice, Court of Appeal

ITA GEORGE MBABA

....... Justice, Court of Appeal

ALHAJI AHMADU KUBAU

Appellants

MALLAM SHEHU RILWANU 
(Substituted his deceased father ALH. RILWANU JUMARE by order of Court made on 10:12:01)

Respondents

RATIO DECIDENDI

1

WORDS AND PHRASES - "A HEARING NOTICE": Definition of "a hearing notice"

"...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." Per ORJI-ABADUA, J.C.A. (P. 32, paras. C-D)

2

EVIDENCE - ADMISSIBILITY OF DOCUMENTARY EVIDENCE: Whether a trial court must make a distinction between documents in considering its admissibility in evidence

"...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." Per ORJI-ABADUA, J.C.A. (P. 39, paras. G-E)

3

EVIDENCE - BURDEN OF PROOF: Whether the onus is on the person who objects to a document to prove that the maker was an illiterate person

"...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." Per ORJI-ABADUA, J.C.A. (Pp. 28-29, paras. A-B)

4

CONSTITUTIONAL LAW - FAIR HEARING: Whether when one of the parties is not given an opportunity to be heard, the hearing can qualify as fair hearing

"...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." Per ORJI-ABADUA, J.C.A. (P. 31, paras. C-G)

5

PRACTICE AND PROCEDURE - HEARING NOTICE: Whether parties can complain of fair hearing when they voluntarily opted out from the trial although they had adequate information of the hearing date and the venue of the trial

"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." Per ORJI-ABADUA, J.C.A. (P. 33, paras. A-C)

6

PRACTICE AND PROCEDURE - HEARING NOTICE: Whether a hearing notice is a mandatory judicial process that must be issued and served in all cases

"...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." Per ORJI-ABADUA, J.C.A. (P. 32, paras. G-B)

7

LEGISLATION - ILLITERATE PROTECTION LAW/ACT: The purpose of the illiterate protection Law

"...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." Per ORJI-ABADUA, J.C.A. (P. 29, paras. C-F)

8

PRACTICE AND PROCEDURE - RIGHT OF ADDRESS: When can a party or counsel be taken to have waived his right of address in court

"...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." Per ORJI-ABADUA, J.C.A. (Pp. 33-34, paras. C-D)  

9

EVIDENCE - SECONDARY EVIDENCE OF PUBLIC DOCUMENT: Whether the only type of secondary evidence permissible is a certified true copy of the document and none other

"...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." Per ORJI-ABADUA, J.C.A. (Pp. 41-45, paras. B-F)

10

INTERPRETATION OF STATUTE - SECTION 97 SUB-SECTION (1) PARAGRAPHS (E) AND (F) OF THE EVIDENCE ACT: Interpretation of Section 97 sub-section (1) paragraphs (e) and (f) of the Evidence Act as it relates to when secondary evidence may be given of the existence, condition or contents of a document

11

INTERPRETATION OF STATUTE - SECTION 97(2)(C) OF THE EVIDENCE ACT: