This was an appeal against the decision of the Court of Appeal which set aside the ruling of the High Court admitting improperly certified public documents in evidence. In a unanimous decision, the Supreme Court dismissed the appeal but ordered recertification of the documents.
History of the Case:
Names of Justices that sat on the appeal: Aloma Mariam Mukhtar, J.S.C. (Presided and Read the Leading Judgment); Walter Samuel Nkanu Onnoghen, J.S.C.; Francis Fedode Tabai, J.S.C.; John Afolabi Fabiyi, J.S.C.; Bode Rhodes- Vivour, J.S.C.
Appeal No: SC.101/2005
Date of Judgment: Friday, 17th June, 2011 Names of Counsel: Bankole Falade Esq (with him, Itven Ukpono) – for the Appellants
Ademola Adeniyi, Esq (with him, Oladapo Otitoju, Esq, Olushola Atanda, Esq and Ramatu Abdulrahman [Miss]) – for the Respondent.
Court of Appeal:
Division of the Court of Appeal from which the appeal was brought: Court of Appeal, Abuja.
Names of Justices that sat on the appeal: Ibrahim
Tanko Muhammad, J.C.A. (Presided); Zainab Adamu
Bulkachuwa, J.C.A.; Mary Peter Odili, J.C.A
Appeal No: CA/A12, 2011 Date of Judgment: Wednesday, 16th February, 2005 Names of Counsel: Mr. A. Adeniji – for the Appellant Mr. O. Ajunwa (with him K. Okechi) – for the Respondents
Name of the High Court: Federal High Court, Abuja
Name of the Judge: Aladetoyinbo, J. Suit No: FCT/HC/CV/1093/2002.
A Date of Judgment: Wednesday, 121h November, 2003 Names of counsel: Okechukwu Ajunwa (with him, Chike Ukechukwu) – for the plaintiffs, Counsel: Bankole Falade Esq (with him, Itven Ukpono) – for the Appellants, Ademola Adeniyi, Esq (with him, Oladapo Otitoju, Esq, Olushola Atanda, Esq and Ramatu Abdulrahman [Miss]) -for the Respondent. MUKHTAR, J.S.C. (Delivering the Leading Judgment): The plaintiffs’ claim against the defendant as per the writ of summons in the High Court of the Federal Capital Territory are as follows: “(i) The sum of N5,000,000.00 (Five million Naira) being the value of cheque that the defendant negligently and unethically allowed to be cleared by the unknown person. (ii) The sum of N20,000,000.00 (Twenty Million Naira) . being the cost purchase of the said plot of land. (iii) The sum of N100,000,000.00 (One hundred Million Naira) as general damages.”
Briefly put, the case of the plaintiffs was that the Ist plaintiff (a registered company) maintains a current account with the defendant’s Area 3, Garki Branch, Abuja. On 91h of July 2001 the Ist plaintiff together with its Chairman/Chief Executive caused a draft to be issued from the Ist plaintiff’s account in favour of Professor G Michael A. Ajomo as purchase price of a plot of land in Abuja, but the draft was not received by the said beneficiary. After the payment they took possession and built a duplex on the land. A year later they discovered that the said draft was cleared from the defendant’s Kano branch, by a man purporting to be Professor Michael Ajomo, who had opened an account there and lodged the draft. On 13/7/2001 and 19/7/2010 the defendant allowed the fake Professor Ajomo to withdrew almost the entire N5,000,000.00 from the said account No. 18219110 which he had been assigned without verifying his identity. The plaintiffs claimed that the defendant violated the laid down procedure of the opening of account, in the case of this purported Professor Ajomo, and so they were negligent in the opening of the account, and the clearing of the amount in the draft in his favour. The plaintiffs gave particulars of negligence as follows:
(i) By allowing unknown person to open an account in the name of the beneficiary of the said draft, Prof. Michael Ajomo.
(ii) By not properly identifying the person as required by the Banks practice and law or the defendant standard operating Brochure TSG/CIS/07 of June 1999.
(iii) By using a staff of the Bank to stand as a referee to person she does not or had not met in her life.
(iv) By allowing the unknown Professor Michael Ajomo to withdraw from the said account without providing proper referees.
(v) By allowing the unknown Prof. Michael Ajomo to withdraw bulk of money with mere paper application without cheque book.
(vi) Failure to exercise the care and diligence in clearing the cheque.”
The defendant denied most of the above claims and stated that it met the due requirements for the opening of account No. 182159110, even though the requirement of referee was deferred, which was not alien to banking rules. The defendant denied that it was negligent, but alleged that it was the plaintiffs that lacked diligence and care in all the transactions regarding the purchase of the land and the purported conversion of the draft, and were thus negligent as per the following particulars of negligence.
(i) Failure to conduct proper and any search whatsoever on the file of the property at the FCDA lands department to verify the authenticity of the certificate of occupancy shown to him at the inception of the transaction as to put them on notice whether they were dealing with the right person(s) or whether the C of was genuine or fake.
(ii) Failure to conduct inquiry as to the person of Professor
A jomo, a renown Nigerian and Director General of the Institute of Advanced Legal Studies as to verify the intended sale of the land or otherwise.
(iii) Failure to demand for any authorisation given by Professor M. A. Ajomo to the person(s) they were dealing with in the sale of the property No. 677 Wuse District, Abuja.
(iv) Failure to follow or delegate someone to follow the trio of Suleiman Tukur, Eze Aloysius and Ben Nwosu (who claimed to be representing Professor M. A. Ajomo in the sale of the property and who claimed the professor was sick and bed ridden and could not come to Abuja to sign the Deed of Assignment to Lagos to ensure the said professor is the one they took the Deed of Assignment to, to sign.
(v) Failure to exercise the reasonable man’s level of diligence by demanding the professor’s account number in any bank and pay the said sum thereunto rather than give same to person(s) from whom they extracted no authorisation from the professor.
(vi) Failure to take note of the likely fraudulent intention of the person he was dealing with when he told the 2nd plaintiff that he was a Senator.” At the close of pleadings, one witness gave evidence, in the course of which documents were admitted in evidence, in spite of objection by learned counsel for the defendant. It is on the admission of the documents that the defendant appealed to the Court of Appeal, and the appeal was allowed. Aggrieved by the decision, the plaintiffs have appealed to this court on three grounds of appeal. The learned counsel exchanged briefs of argument which were adopted at the hearing of the appeal. Two issues for determination were formulated in the appellants’ amended brief of argument. The issues are: “1. whether the Court of Appeal was right when it held that it is only when the conditions mentioned in section, 111(1) of the Evidence Act, Cap. 112 Laws of the Federation 1990 (including payment of legal fee) have been fulfilled that copies of such public documents so certified shall be called certified copies.
2. Whether the Court of Appeal was right by rejecting the exhibits ‘A’, ‘B’, ‘B2’ and ‘B3’ documents forming part of records of the police department which was also tendered by the police officer (PW 1) from the same police department. In its amended brief of argument, two issues were formulated by the respondent and the issues are: 1. Whether documents purporting to be certified true copies would be admissible in evidence if they contravene the provisions of section 111 (1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990.
2.Whether the Nigerian Police is exempted from taking legal fees from persons requiring certification of documents in its (the police) custody.”
I will commence the treatment of this appeal with issue (1) in the appellants’ brief of argument. In proffering argument under this issue, the learned counsel of the appellants submitted that interpretation of statute is not based on only one rule of interpretation as held by the Court of Appeal, as there are many rules as to the interpretation of any section of statute such as section 111 (1) of the Evidence Act, under consideration. He placed reliance on the cases of Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) page 1; Garba v. Federal Civil Service Commission (1988) 1 NSCC page 306, (1988) 1 NWLR (Pt. 71) 449; Bronik Motors Ltd. v. Wema Bank (1983) 1 SCNLR 296; and Ibrahim v. Sheriff (2004) 14 NWLR (Pt. 892) page 43, where according to the learned counsel it was held that in the interpretation of statute there is presumption against unreasonable and inconvenient result. He enumerated five
requirements mentioned for obtaining certified true copy of a public document in the appellant’s brief of argument. After proffering argument in respect of the five requirements, the learned counsel attacked the finding of the lower court which reads as follows:
“The repeated use of the word ‘shall’ in the section in my view indicates mandatoriness” It was argued that it is not always that the use of the word ‘shall’ in -an enactment connotes mandatoriness, as held by the lower court. He referred to the cases of Amadi v. N.N. P.C (2000) 10 NWLR (Pt. 674) page 76; and Okiki v. Jagun (2000) 5 NWLR (Pt. 655) page 19.
In reply, the learned counsel for the respondent took this court through a plethora of authorities on the implication and meaning of the word ‘shall’ in an enactment. See Olanrewaju v. Governor Oyo State (1992) 9 NWLR (Pt. 265) Page 335, Ogidi v
State (2005) All FWLR (Pt. 251 page 202, (2005) 5 NWLR
To be continued.
Judiciary As Last Hope Of The Common Man
The judiciary is said to be the last hope of the common man. If there is no judiciary or where the judiciary is shut, the hope of the common man is dashed. If the saying is anything to go by, one is shocked that for nearly two months, the last bastion of hope of the masses was shut by striking workers, yet it has been business as usual. Both the government and the workers union are not bothered about the ugly situation.
Judiciary Staff Union of Nigeria (JUSUN) is on indefinite strike nationwide to protest the inability of both the federal and some state governments to grant financial autonomy to the judiciary. The independence of the judiciary is contained in Nigeria’s grundnorm, the Constitution of the Federal Republic of Nigeria 1999 as amended. Just as the positions of President and Governors of states are creations of the constitution, so also is the independence of the judiciary.
The truth of the matter is that JUSUN does not need to go on strike before the two tiers of government can implement the financial autonomy of the judiciary. It is a constitutional provision and political office holders swore to implement the spirit and letters of the Constitution.
Indeed, the judiciary and legislature are supposed to be independent as provided in the Constitution. When the three arms of government are independent, separation of powers is assured. This is because it will prevent fusion of powers which leads to tyranny. Fusion of powers smacks of dictatorship. In many states of the federation, governors have become absolute rulers.
It is becoming common that some state governors find it easy to shut the judiciary in order to have their way when unfavourable conditions tend to persist in their states.
For eight months, Rt. Hon. ChibuikeAmaechi shut the judiciary following an indefinite strike embarked upon by JUSUN. The closure of the courts caused a lot of hardship for both practising lawyers and litigants. Some lawyers who could not make ends meet died as a result. Litigants suffered lack of access to justice.
The indefinite strike embarked upon by JUSUN to demand financial autonomy is commendable because of its insistence on propriety obviously intended to prevent state chief executives from ruling on their whims and caprices.
But pathetically, many governors are unwilling to allow an independent judiciary that they will no longer hoodwink or coerce to do their biddings. The delay in implementing the autonomy is predicated on the fact that most of our leaders are bigger than the country’s institutions.
Hence, we have strong leaders and weak institutions. At the federal and state levels, the suppression of the country’s main institution has aided tyranny.
Consequently, the governors and even the president can afford to do anything unconstitutional and go scot-free with it.
The national and some state Houses of Assembly have become rubber stamps ready for the masters’ use anytime. Therefore, one hardly finds meaningful debates in the legislature except in states that have strong opposition. In the states, where all the members of the legislature come from the ruling party, meaningful debate is moonshine.
The fashionable term is “Carry go”. The term “Carry go” literally means treat as requested. There is obviously no alteration or modification. The application of “Carry go” has continued to worsen the state of our democracy. The governors or the president can afford to do anything he likes without any compunction. Consequently, the masses and indeed the electorate do not have a voice anymore. The voices of the electorate are lost in the legislators’ inefficiency and cowardice.
The country is worse for it. What we have in most states of the skewed Nigerian federation are monarchs, who brook no challenges. They rule howsoever they like, for themselves and their various families. They have goons all over their states whose duty it is to defend them. If not for the state of our nation where rust is ripeness, do the President and Governors have no choice in implementing the constitution?
Many state chief executives implement and execute projects that would facilitate corruption yet any project that would better the lot of the people is either treated with levity or left undone. The question that readily comes to the mind is: whose interest are the leaders working for? Is it for themselves or the populace?
By: Chidi Enyie
Elele OSPAC Seeks Govt’s Assistance
Elele Security Planning and Advisory Committee has appealed to the state government to come to their aid.
The local vigilante often called ESPAC said the call became imperative following its key role in sustaining peace in the communities.
In a chat with newsmen in his office yesterday, the commander, Daniel Wosa disclosed the unbearable situation his men faced on daily basis without anything to take home.
Wosa said some of his men had threatened to quit the voluntary job since nobody appreciated them.
The commander expressed regret that ESPAC members had volunteered to sacrifice their lives for the society yet nobody appreciated them.
“Some struggle to feed their families. It is unfair …”
“We appeal to governor Nyesom Wike to consider us because of the key role we have been playing in Rivers state.
“Today communities,road users and business men can attest to our untiring effort since we came on board.”
“No more kidnapping, killing and other vices which threatened the peace of the land,” he noted.
“Boys under me who volunteered to sacrifice for the wellbeing of others need recognition,” he stated.
Wosa said there was no security challenge the group could not contend if only government could give them support.
He specifically commended the executive Chairman, Ikwerre Local Government Area, Hon Samuel Nwanosike for his assistance and said if not Ikwerre Council boss the situation would have degenerated.
Wosa said some time now he had been using his hard-earned money to appease his men.
Wosa said it was on record Elele OSPAC had never been found wanting in the cause of its duty and explained that the group worked in collaboration with the conventional police to achieve desired objective
Meanwhile,a youth leader in Ikwerre Local Government, Comrade Eleonu Chukwuka says Hon Samuel Nwanosike’ s achievement in security has given him the second term ticket.
Comrd Chukwuka said Ikwerre Council Boss had written his name in gold by surmounting the security situation in Ikwerre.
The youth leader while chatting with newsmen said the introduction of OSPAC by Nwanosike led to other infrastructural and human capital development and pointed out that peace was key to development.
It is a thing of joy that farmers can return to farm. Normal life has returned.
It is the greatest achievement which snowballed to what we are seeing today in Ikwerre.
Ikwerre people are proud of him and will back till eternity.
Legal Departments In LGAs And Justice Dispensation
Lawyers at the Local Government (LG) Legal Department would supervise and undertake prosecu-torial activities in magistrate courts, and represent their respective local governments in area courts, Magistrates Courts, High Courts, among others.
They would be on hand to render necessary legal advisory services to their local governments.
They could be in charge of advising their LG Chairmen on legal issues relating to issuance of the Customary Right of Occupancy at the LG level, thereby playing roles similar to those being played by the ministries of Justice and Lands at the State level in the Statutory Right of Occupancy. Section 6 of the Land Use Act, 1978 provides: “It shall be lawful for a Local Government in respect of land not in an urban area. (a) to grant customary rights of occupancy to any person or organi-sation for the use of land in the Local Government areas for agricultural, residential and other purposes. (b) to grant customary right of occupancy to any person or organisation for the use of land for grazing purposes and such other purposes ancillary to agricultural purposes as may be customary in the local government area concerned”.
They could take steps to set up (citizens) ADR/Mediation centres at the LG level, as well as render other legal aid/advisory services aimed at helping the local community or to make justice more affordable and easily accessible by local inhabitants.
Establishing a legal department at the LG level will tremendously reduce the pressure of having all lawyers striving to settle down only in major cities, such as Lagos, Port Harcourt, Kano, Onitsha, Aba, Ibadan, Jos, Abuja, Enugu City, Uyo, Warri, Calabar, Kaduna City, etc; lawyers employed by the various local governments would have to relocate to the local council headquarters where they’d live and operate from, with their families.
Establishing a legal department at the LG Level would bring lawyers and legal services closer to the people at the grass-root; residents of local communities will no longer need/have to travel to the major cities in order to get the services of lawyers to draft their various agreements, contracts, or to render other legal services.
Lawyers in the LG Legal Departments will, apart from attending to the legal needs of the local government councils, assist in prosecution of some cases, especially in courts located within the local council areas. This will minimise involvement of law prosecutors in criminal prosecution. Lay police officers‘ and non-lawyers’ continued involvement in criminal prosecution in Nigeria, is partly responsible for the worsening cases of awaiting trial cases and prison congestion in the country.
This is because of their professional limitations in this area, so many of the so-called police prosecutors are not able to match or withstand the legal firework of professionally qualified lawyers who act as defence counsel in courts during criminal prosecutions; these lay police officers and non-lawyers hardly understand the intricacies of formal courtroom proceedings and trial procedure, and more often than not, have very little or no preparation prior to their court appearances.
It may therefore be seen that the clamour for extrication of lay policemen from criminal prosecution is primarily not targeted at creating more jobs for lawyers, but rather at leaving criminal prosecution in the hands of qualified personnel (lawyers) who alone understand the law and are well able to match the expertise of defence counsel in court, in order to ensure that justice was dispensed in good time and more effectively.
Gradually, from among these lawyers, who are LG legal officers, some magistrates or even judges are appointed, just as it is done at the state level.
Establishing a legal department at the LG level would provide huge job/employment opportunities for lawyers in Nigeria.
Imagine, if all the 774 local government areas in Nigeria could create and have legal departments, and each local government (depending on capacity) employs an average of 10-20 lawyers in its legal department, we’d have at least 7,740 to 15,480 lawyers or much more immediately gainfully employed at the local government level.
Establishing a legal department at the LG level would redress the existing inequity and unfairness at the local government level. The following departments already exist in all the LGAs in Nigeria: Education, Health, Agriculture, Finance, Information, and Works. It’s gross marginalisation against the legal profession that there’s not yet a legal department in all LGAs in Nigeria. This obvious anomaly, which has wreaked huge havoc, considering the undeniable importance of law and lawyers in society, needs to be be urgently corrected to provide the needed balance that would make lawyers more relevant to society and move society forward.
B) Stakeholders To Make This All-Important Project A Reality:
The Nigerian Bar Association (NBA) at both the National and Branch levels: NBA has responsibility to set the ball rolling. Indeed, if the NBA does nothing, nothing happens.
The Attorney-General of the Federation of Nigeria, considering that he is the Chief Law officer of the Federation.
Attorneys-General of the various states in Nigeria.
The Chief Justice of Nigeria.
The President of the Court of Appeal.
The Chief Judge of the Federal High Court and the President of the National Industrial Court of Nigeria.
The Chief Judge of the Federal capital High Court and the High Courts of the various States in Nigeria.
The House of Assembly of the various States in Nigeria.
The Nigerian Governors‘ Forum and the Governors of the various States in Nigeria.
The Body of Senior Advocates of Nigeria (BOSAN), the Egbe Amofin Lawyers, the Body of Benchers (BOB), the Eastern Bar Forum (EBF), the Muslim Lawyers’ Association of Nigeria (MULAN), the Mid-West Bar Forum (MBF), the Christian Lawyers’Association of Nigeria (CLASFON), the National Association of Catholic Lawyers (NACL), etc.
C) Conclusion: What Does This Take As A First Step?
It starts with an amendment to the Local Government Law of each State, to create a legal department in the LGAs in the state.
This is long overdue. Provision of necessary logistics and support infrastructure would then follow.
This writer believes that there would be business enough for lawyers in Nigeria, only if the lawyers could, by themselves and working hand in hand with their Bar Associations, put their acts together and stand up to do something concrete and constructive for themselves and their profession.
Time for action is now; there is no time to wait or waste, because time will never be right. Barack Obama said, “the change we desire will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek. A stitch in time saves nine.”
It would be recalled that lawyers under the employment of Local Government Authorities in Rivers state, penultimate week, demonstrated for full recognition and salary increment to match that of their counterparts in the employment of the State Government, while the Authorities are against such on the ground that they (lawyers), are first and foremost, not employed as lawyers by the authorities, thus, may be making an unlawful request.
Udemezue is of the Civil Litigation Department with the Nigeria Law School.
By: Sylvester Udemezue with reports from King Onunwor
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