Public Document Condition For Admissiblity

Appeal:

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:

Supreme Court:

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

High Court

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.