918) 286; and Odu’a Investment Co. Ltd. v. Talabi (1997) 7 SCNJ page 600′, (1997) 10 NWLR (Pt. 523) 1. The learned counsel for the respondent submitted that contrary to the submission of the appellants’ counsel the interpretation employed by the court below, best suit the interpretation of section 111 (1) of the Evidence Act, as the wording of the section is crystal clear, plain and precise. He further submitted that if a law demands or require the fulfillment of a condition for the validity of an act, the condition becomes a condition precedent and failure to comply with the condition makes the act a nullity. He cited the cases of Aina v. linadu (1992) 4 NWLR (Pt. 233) page 91; Federal Government oj Nigeria v. Zebra Energy Ltd. (2003) FWLR page 154, (2002) 18 NWLR (Pt. 798) 162. The learned counsel further emphasised that the totality of the five conditions stipulated by section 111(1) of the Evidence Act must be fulfilled before any document purporting to be certified true copy could be admissible in evidence as found by the lower court.
I will at this juncture look at the proceedings of the trial court on the day the exhibits that are the subject in controversy were admitted in evidence. When certified true copies of the statements of the staff of the defendant/respondent, Miss Samira Bako and Mr. Haruna Musa to the police were sought to be tendered in evidence, the learned counsel for the defendant objected to their admissibility inter alia thus:
“The evidence seeking to tender this document are inadmissible, the statements being public documents were not properly certified in accordance with section 97 (2)(a), 109, 111 of the Evidence Act. There is nothing in this document to show that it is certified true copy or that payment was made. Okechukwu Ajunwa …
On the issue of the certification in accordance with section 111 of the Evidence Act. Alatasha v. Asin (1999) 5 NWLR (Pt. 601) page 32 at page 43 and 44. Payment is not a condition precedent for admission of a certified true copy of a public document. There is certified as a true copy written at the back of one document.
Replying on point of law, Ademola Adeniji – Section 111 of the Evidence Act not having any provision (sic) should be strictly complied with, its require (sic) payment as a matter of law and there must be evidence of payment sought (sic) be tendered as certified true copy, there is no such evidence on this document, it disqualified the document because of failure of payment. It is not just mere irregularity it is an incurable irregularity.
Section 111 of the Evidence Act required the officer who certified the document or true copy to state his rank and his title, we rest our argument for the non- payment of fee for the certified true copy.”
At the end of the day, the learned trial judge admitted the statements in evidence. Now, what is the provision of this controversial section 111 (l) of the Evidence Act Cap. 112, Laws of the Federation of Nigeria, 1990? Section 111 (1) stipulates thus:
“Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.”
The above provision is very clear on what a person seeking public document should do and what the public officer who is releasing it should also do. Such acts expected of a person desirous of securing such document, like payment of fees are specified, and the official acts required by the official in whose custody the document is also specified. It is instructive to note that the word ‘shall’ has been consistently used in respect of each act and performance. The word ‘shall’ connotes mandatory discharge of a duty or obligation, and when the word is used in respect of a provision of the law that requirement must be met. The word’ shall’ may have other meanings, for when used in a legislation, it may be capable of translating into a mandatory act, giving permission or direction. See Nnonye v. Anyichie & ors (2005) 2 NWLR (Pt. 910) page 623.
The use of the word ‘shall conjures mandatoriness, the cor satisfied. It is settled law that a le interpretation and effect, most especially where the words used are straight forward and unambiguo. See Toriola v. Williams (1982) 7 SC. 27; Sunmonu v. Oladokun (1996) 8 NWLR (Pt. 467) page 387, and Lawai v. G. B. Ollivani (1972) 3 SC 124.
In this vein, I subscribe to the holding of the lower court which is encapsulated thus:
“I think from whichever angle one looks at the provision of this section, one can hardly escape arriving at the only rule of interpretation of statutes which are clear and unambiguous that is golden rule of interpretation. This section to my mind is so clear and unambiguous that is golden rule of interpretation. This section to my mind is so clear and direct. The repeated use of the word ‘shall’ in the section in my view indicates mandatoriness.”
The learned justices did not err by the above holding. This issue which is covered by ground (1) of appeal is resolved in favour of the respondent, and the related ground of appeal fails and it is dismissed.
I will now move to issue (2) supra. In proffering argument under this issue, the learned counsel for the appellant submitted that the learned Justices of the Court of Appeal erred in law when they rejected the certified true copies of the documents which the lower court found to be public document on the basis that there was no evidence of payment of legal fees as required by section 111 (1) of the Evidence Act. He submitted that even if payment of legal fee is mandatory for certification of copies of public document, such payment would be paid by private and or members of the public who may be applying for such certified true copies of the document, and not government department as in this case.
It is the submission of the Iearned counsel for the respondent that had the legislature intended the police or anybody or agency to be exempted, it would have indicated so in the act. It was argued that the appellants have not shown the provision of law exempting the police from taking legal fee before certifying document in the police custody as certified true copy, and that it is the Evidence Act and not the Police Act that regulate the admissibility of documents in proceedings, and since the provisions of section 111 (1) of the Evidence Act did not exempt the police, from paying the fees. The learned counsel submitted that the phrase ‘any person’ used in section 111 (1) of the Evidence Act is not reference to the police, the custodian of the document in this case, but to the litigant who require the document to be tendered in support of this case.
As I have said earlier, the provision of section 111(1) of the Evidence Act is clear and unambiguous, and so should be subjected to simple interpretation. The fact that it sets out conditions that must be satisfied before a public document is admitted in evidence, requires that such conditions much be met. The argument that the payment of legal fees required in section 111 (1) of the Evidence Act supra would be by private or members of the public who are applying for such certified true copies of the public document, and not payable by government department as in this case, holds no water. None of the appellants belongs to any govenrment department, so such concession cannot be arrogated to them. The tendering of the documents (exhibits A, B1, B2 and B3) was at the instance of the appellants, as litigants seeking reliefs in the learned trial court. They are neither government officials, government agencies nor government department, so they cannot be perceived as falling within any exemption, if at all there is any such. That is to say that the provision of section 111(1) of the Evidence Act has left no room for any exemption, for if the legislature intended or contemplated that there would be any such exemption it would have been specifically stated. In this respect, the court below was on firm ground when it observed and found as follows:
“It is clear that the section has not made any exemption from the payment of legal fees by any person who requires to secure a certified true copy of any public document in custody of a public officer including members of the police force. If there are exemptions, the section or any section related thereto should have specifically provided for such exemptions.”
In the light of the above treatment of this issue, the answer to issue (2) supra is in the affirmative. The grounds of appeal to which the issue is married fail and they are hereby dismissed. The end result is that the appeal fails and it is hereby dismissed. This court however directs that the appellants should pay the required fees as provided in section 111 (1) of the Evidence Act, to meet and satisfy the said provision. It is in the interest of justice that this be done as quickly as possible so that the hearing continues immediately. This order is to meet the end of justice. I assess costs at N50,000.00 in favour of the respondent.
ONNOGHEN, J.S.C.: This appeal is an interlocutory one arising from the admission, during trial of a document which was objected to by learned Counsel for the defendant/respondent in this appeal.
Upon appeal to the Court of Appeal, the appeal was allowed on the ground that the admission of the documents in issue was contrary to the provisions of section 111 (l) of the Evidence Act,
Cap. 112, Laws of the Federation, 1990. The present appeal is against the decision of the Court of Appeal.
I have had the benefit of reading in draft the lead judgment of my learned brother Mukhtar, JSC just delivered and I agree with his reasoning and conclusion that the appeal is without merit and should be dismissed.
Section 111 (1) of the Evidence Act provides as follows:
“Every public officer having custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document…”
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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