⦿ CASE SUMMARY OF:
Okechukwu Uzoma v. Dr. Victor Asodike (2009) – CA
⦿ LITE HOLDING
⦿AREA OF LAW
– Evidence Law
– Tendering Certified True Copy.
– C of O.
Dr. Victor Asodike
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Ejembi Eko, J.C.A.
* FOR THE APPELLANT
– Chidi Nworka, Esq.
* FOR THE RESPONDENT
– Chukwuma Onyeocha, Esq.
⦿ FACT (as relating to the issues)
This is an interlocutory appeal against the Ruling of Imo State High Court in suit No. HOW/99/2002 before A.O.H Ukachukwu, J.
One Dr [Mrs] Adaoha Okwusosa, a relation of the plaintiff/Appellant, was testifying for the plaintiff and in the course of her testimony a ceftified true copy of a certificate of occupancy, (C of O), pleaded by both parties was tendered for admission in evidence, after it was identified. The defence objected to admissibility of the said certified true copy of the C of O registered as No. 73 page 73 volume 90 at the Lands Registry, Owerri, Imo State. The said witness [PW.1] is the plaintiff’s eldest sister. The plaintiff/Appellant resides in the USA. She was not in court when the PW.1 was testifying.
The grounds for the objection by the defence counsel are that:
1. Though a party to a suit can apply for certified copy or a document and tender it in evidence, the witness is not a party to the suit and therefore could not apply for the certification of the C of O and tender the certified true thereof.
2. The witness must account for proper custody of the original document, the C of O.
3. The purported certification of the C of O on a plain sheet of paper did not satisfy section 111 of the Evidence Act.
4. The purported certification was done during the pending of the action to comply with the numerous amendments by the plaintiff to accommodate the document.
In reply to the objection at the court below plaintiff’s Counsel contended that the defendant admitted the existence of the document by paragraph of the statement of defence, and that paragraph 4 of the amended statement of claim pleaded the said C of O. He further contended that the C of O being a public document by virtue of section 91(1)(e) of Evidence Act the plaintiff is entitled under Section 97(1)(e) and (f) of the said Act to lead secondary evidence with no duty at all to explain where the original document is. It was further the appellant’s contention at the trial court that no rule of law or practice requires a party to appear personally in court, nor is there any rule of law that requires that only a party in the suit can apply for certification of a pleaded document.
It was further posited at the trial court that the certification of the C of O meets the requirement of Section 111 of Evidence Act and that the failure of the officer to certify at the foot of the document should not be visited on the plaintiff/Appellant.
In the reserved Ruling delivered on 11th April, 2005 the learned trial Judge upheld the objection, refused to admit the certified true copy of the C of O in evidence and marked it “Rejected”. He gave various reasons for the decision.
They include the fact that it is an admitted fact the plaintiff who resides in the U.S.A. has custody of the original C of O; the witness must give account of the proper custody of the original C of O in order to tender the certified copy thereof; that since the certification was not at the foot of the document but on another sheet paper it did not meet the requirements of Section 111(1) of the Evidence Act.
Aggrieved by this Ruling the Plaintiff/Appellant promptly appealed on three grounds to this court.
1. Whether the learned trial Judge was right in his construction of section 97 of the Evidence Act as it applies to the document sought to be tendered in this matter.
2. Whether the learned trial Judge was right in his construction of section 111(1) of the Evidence Act and application of the same to the facts and circumstances of this case.
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. The C of O being a document forming the acts or records of public officers and public executives is clearly a public document by dint of section 109(b) of the Evidence Act. By the combined effect of sections 97(1) (e) and (2) (c), and 109 (b) of the Act, the secondary evidence admissible in respect of the original C of O is a certified true copy of the document.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. This dispute is only in respect of the position on the document the certificate of certification was placed. The defendant/Respondent objected to the certification as the endorsement was on a plain sheet of paper, and not at the foot of the copy of the document certified. This clearly is an act of the certifying officer, It is not an act of the plaintiff or his representative. Judicial stance is shifting towards substantial justice as opposed to arcane or crass technicality. It is now settled that a wrongly certified or even an uncertified public document can be re-certified and re-tendered in evidence.
ii. The certification has also the official stamp of Registrar of Deeds,. Imo state duly signed and stamped affixed therein. The photocopy of the c of o referred to as “THE WITHIN” in the certification is attached and on its face all the particulars tally with those in the certification. There is no dispute that the certifying officer is the Registrar of Deeds of Imo State that he purports to be. Unless the contrary is established the certifying officer is presumed to be the public officer, who has custody of the document, the facsimile of which is the certified true copy.
Section 111 of the Evidence Act CAP E14 Laws of the Federation of Nigeria, 2004;
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
On the contrary it has been held in a number of cases that a duly certified public document would be admissible in evidence without laying foundation and that the issue of proper custody and related matters will not arise. It can even be tendered from the bar by or through counsel who is not even a party in the case. In the similar vein a witness who is not a party to a public document can tender the duly certified true of the said public document. A public document duly certified is presumed to be genuine. – Ejembi Eko, JCA. Uzoma v. Asodike (2009)
Poor certification is generally treated as mere irregularity, and the court can order the document to be properly certified by curing the defect complained of. In this regard the mistake of the certifying officer ought not to have been and will not be visited on the litigant. – Ejembi Eko, JCA. Uzoma v. Asodike (2009)
Equity, it is said, follows the law. Accordingly, where rigid or strict adherence to the letters of the statute will result in absurdity, unfairness or injustice the courts in their interpretative and equitable jurisdiction will yield to overriding interest of justice and allow substantial justice to prevail. One of the readily available tools in this regard is the principle of equity that looks at and upholds the substance and not the form. The learned trial judge in the instant case was more persuaded by the form, and not the substance of the certification. In so doing he held that if the certifying officer found that there was no space at the foot of the document for the certificate, he could have started at the foot of the document and continued either at the back or on a fresh sheet of paper instead of endorsing the certificate on a virgin page. This, in my opinion, is placing more emphasis on the style or form as opposed to substance. Equity looks at the substance and not the form or style. – Ejembi Eko, JCA. Uzoma v. Asodike (2009)
Within the purview of the law of evidence, a copy is invariably and generally admissible to prove the contents of a writing. On the other hand, the word Certificate’ is a derivative of the latin word Certificando’. It denotes a document in which a fact is formally attested e.g. Death certificate, school certificate, share certificate, certificate of marriage, certificate of occupancy, etc. Thus, the term “certified True Copy” or “certified copy”, for short, means a duplicate of an original (usually) official document certified as an exact reproduction by the officer responsible for issuing or keeping the original. It is termed or called attested copy’; exemplified copy; verified copy’ etc. See Black’s Law Dictionary 8th Edition 2004 at 239 & 360. – Saulawa, JCA. Uzoma v. Asodike (2009)
It is a trite and indeed a fundamental principle of the law of evidence, that an abjection to the validity or admissibility of a document which is evidentiary only of a fact in issue, may not necessarily be pleaded. However, where the document is one which has been pleaded by the party relying upon it as a basis of his cause of action, as in the instant case, any objection to the validity or admissibility of that document must be pleaded by the opposing party. – Saulawa, JCA. Uzoma v. Asodike (2009)
I think, there is a need to reiterate that as judicial umpire and priest in the sacred temple of justice, the trial judge, nay any judge for that matter, has no any assigned cardinal duty or role other than that of dispensing justice according to the well laid down dictates of the rule of law without fear or favour, affection or ill-will. He ought to bear in mind at all times, that his fundamental object above all, is to find out the truth, and to justice to all manner of parties that appear before him according to law, with all sense of responsibility and fear of the Almighty God, the Best of all judges. – Saulawa, JCA. Uzoma v. Asodike (2009)