BY D. TELLA ATTONI, ESQ.
This article is informed by the recent objection I raised against opposing counsel’s attempt to tender a Photostat copy of a certified true copy of an alleged public document in court .
In a civil suit before a trial judge, opposing Counsel had sought to tender a public document in evidence. On finding out that the said document was a photo copy of a certified true copy of an alleged public document, I quickly objected to its admissibility on the ground that such document required re-certification or certification.
In a nutshell, my submission regarding a Photostat copy of a certified true copy of a public document was that such document cannot be placed on the same legal pedestal with a certified true copy of a public document, particularly since such document must have been produced and/or photocopied from an alleged certified true copy of the original of a public document. Consequently, the same ought to be certified by the appropriate public officer.
Following my said objection, opposing Counsel as well as amici curiae all contended that a Photostat copy of a certified true copy of a public document requires no further certification or recertification. On this, they referred the lower court to the Supreme Court decision in MAGAJI VS. NIGERIAN ARMY (supra).
It should be noted that certified true copies of public documents are normally produced from the original public document and then certified by a public officer mandated by law to vouchsafe its authenticity, and issued upon the payment of Statutory fees by an applicant . On the other hand, Photostat copies of certified true copies lack such quality/ authenticity and are not vouchsafe by any public officer as having been produced from the said certified true copies they were purportedly produced from.
Before proceeding further, let me immediately point out that MAGAJI VS NIGERIAN ARMY (supra) cited by the said opposing counsel was decided in 2008, and since after the said pronouncement , the apex court has gone ahead to consistently and firmly hold that in respect of public documents, the only form of secondary evidence admissible in law are certified true copies of such documents and no other.
See the apex court decisions in the following long line of cases :
- UDOM V. UMANA (NO. 1) (2016) 12 NWLR (PT 1526) 179 at page 235, paras. B & C. where ,the apex court reaffirmed its position regarding the only type of secondary evidence of a public document that is receivable in evidence. According to the Apex court:
“The whole essence of the court’s insistence on the scrupulous adherence to the above certification requirement of public documents is to vouchsafe their authenticity. Vis-à-vis, the original copies, to third parties G & T.I Ltd. And Anor v. Witt & Bush Ltd. (2011) LPELR- 1333 (SC) 42, C-E; (2011) 8 NWLR (PT. 1250) 500. That explains why. In the absence of the original document only such properly, certified copies are admissible as secondary copies of public documents “but no other kind of secondary evidence”.
- UDO V. STATE (2016) 12 NWLR (PT. 1525) SC1 at page 24, paras. C-G . Held
“The law has always been that the best evidence of the contents of a documents is the document itself produced for the inspection of the court. See Fagbenro v. Arobadi (2006) 7 NWLR (PT. 978) 172 . It is also the law that the only admissible secondary evidence of a public document is a certified true copy thereof.
In Araka v. Egbue (2003) 17 NWLR (PT. 848) 1 @ 18, D-E Tobi , JSC while interpreting section 97 (2) (c) of the Evidence Act., Cap 112, LFN 1990 (now section 90 (1) (c) of the Evidence Act, 2011) , held thus:
“It is clear from the provision of section 97 (2) (c) of that the only acceptable secondary evidence of a public document is a certified true copy of the document. The subsection has put the position precisely, concisely and beyond speculation or conjecture by the words ‘but no other kind of secondary evidence is admissible.”
Per Edozie, JSC @ 26, C-D (Supra)
“Guided as I am by the principles enunciated in the above cases (on the golden rule of interpretation of statutes) it is my view that section 97 (2) (c) of Evidence Act (supra) does not admit of any ambiguity. The language is clear, explicit and categorical, that the only admissible evidence to prove the existence, condition and contents of a public document is a certified true copy of the original and other (sic) type of secondary evidence of admissible.”
- ABDULLAHI V F.R.N (2016) 10 NWLR (Pt. 1521)475 at Page 499, Paras A-B where the same apex court stated thus:
“…put differently, in the absence of the original documents themselves only such, in the absence of the original documents as secondary copies of public documents “but no other kind of secondary evidence”.
Let me also point out that being later in time, the foregoing judicial cases must take precedent over the decision in MAGAJI VS NIGERIA ARMY(supra) which appears to be in conflict with them.
See DAHIRU V KAMALE (2005)9 NWLR(Pt. 929) 8 at page 41, para.C where the point was made that when a lower court is faced with two conflicting decisions of the Supreme Court, the lower court will be bound by the latest .
The next point to note, is the fact that the said pronouncement in MAGAJI VS NIGERIA ARMY(supra) was an obiter dictum . Consequently, the same has no binding effect on our lower courts .
On meaning of obiter dictum, see the judicial decision in DAILY TIMES (NIG.)PLC. VS D.S.V LTD. (2014)5 NWLR.(Pt.1400)327 at page 353, paras. A-B where the court of Appeal held thus:
“Obiter dictum”, which is latin for “something said in passing”, is a remark made or an opinion expressed by a judge- “ by way “- that is, incidentally or collaterally, and not directly upon the question before the court…”
A careful study of the decision in MAGAJI VS NIGERIA ARMY (supra), reveals that the issue of admissibility of a Photostat copy of a certified true copy of a public document was not raised by any of the parties as an issue for determination .
Further , NIKI TOBI, JSC. who delivered the leading judgment in that case, made no pronouncement or declaration regarding the admissibility of Photostat copies of certified true copies of public documents .
The only pronouncement made in respect of the said issue was the pronouncement made by OGBUAGU, J.S.C in his supporting judgment in which he pronounced that a photo copy of a certified true copy of a public document is admissible.
In view of the foregoing, I will be on solid ground and/or right to contend that the pronouncement or opinion of OGBAGU, J.S.C., regarding the admissibility of Photostat copy of certified true copy of a public document was with due respect not a binding declaration of the law on the subject, as it was an obiter dictum and therefore not binding on either the Supreme court or the lower courts.
My position as stated above was well settled by the court of Appeal in BREDERO NIGERIA LIMITED VS. SHYANTER NIGERIA LIMETED & 2 ORS.(2016)LPELR-40205(CA) when it declared that the decision in MAGAJI VS NIGERIA ARMY(supra) regarding the admissibility of Photostat copy of certified true copy of a public document was not a binding declaration of the law on the subject as it was an obiter dictum and therefore not binding.
MOHAMMED MUSTAPHA, J.C.A, delivering the leading Judgment in the above case put it this way:
“Learned senior counsel for the appellant submits that the only admissible evidence of a public document is a certified true copy of that document and not the photocopy of the certified true copy; learned counsel referred the court to OGBORU V. UDUAGHAN (2011)2 NWLR part 1232 at 538, and contended that the admission of Exhibit 1, the photocopy of the true copy of the certificate of occupancy was wrong.
In response it is submitted for the 1st Respondent that the appellant only objected to the admissibility of Exhibit 1 but did not object to Exhibit 3…
It is common ground that what was admitted in evidence at the trial Court was a photocopy of a certified true copy of a certificate of occupancy. There is a divergence of judicial opinion as to whether a photocopy of a certified true copy of a public document is admissible in evidence. SECTION 89 (e) and (c) (i) of the Evidence Act are to the effect that the secondary evidence admissible of a public document is a certified true copy of the document but no other secondary evidence.
In the case of MINISTER OF LANDS, WESTERN NIGERIA V. AZIKIWE (1969) AN 48, 57 58, THE Supreme Court held firmly that a photocopy of a certified true copy of a public document is not admissible in evidence in the light of the words “no other secondary evidence is admissible” in Section 90 (i) of the Evidence Act and to prevent the possibility of a photo-trick. This has been followed in a plethora of other cases including OGUNLEYE V. AINA (2011) 3 NWLR (1235) 497, 580 and OGBORU V. UDUAGHAN (2011) 2 NWLR (1232) 538
On the other hand, it has been held in a plethora of other cases that such a document is admissible in evidence since it is a photographic reproduction of the certified true copy of a public document . One of such cases, indeed, the leading case in the line of authorities is DAILY TIMES NIG. LTD V. WILLIAMS (1986) 4 NWLR (36). 526, It must however be noted that Daily Times Nigeria Ltd. Supra was decision of the Court of Appeal which cannot supercede the decision of the Supreme Court in the Minister of Lands, Western Nigeria case supra. There is also the case of MAGAJI V. NIGERIA ARMY 2008) 8 B NWLR (1089) 338, referred to earlier.
It is noteworthy that the opinion of Ogbuagu, J.S.C; was expressed in a supporting judgment and the issue was not raised at the Supreme Court. Thus, it is with due respect not a binding declaration of the law on this subject as it was an orbiter dictum.
It follows therefore that the binding authority on this subject is the case of Minister of lands, Western Nigeria supra. On this authority therefore, Exhibit 3 was inadmissible and ought to have been expunged from the record. This issue in consequence is resolved in favour of the appellant, and against this 1sts respondent. “
Underlining mine for emphasis)
It is submitted that the wordings of Section 90 (1) (c ) of the Eidence Act, has clearly excluded any other form of secondary evidence except certified true copies. Therefore, a trial court will be in error if it goes ahead to admit such document that has expressly been excluded by the Evidence Act .See UDO V. STATE(supra)
The need for the re-certification of a Photostat copy of a certified true copy of a public document was aptly stated in OGBORU V UDUAGHAN (2011)2 NWLR (Pt.1232)538 at pages 574 and 575, paras H-D where the court of appeal also relied on the supreme court decision in Araka v Egbue (2003)33 WRN 1,15-17 in holding thus:
“Why ,then ,it may be asked ,should a photocopy of a certified true copy of a public document be re-certified? The answer is that :…in this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of section 97(2) (a) could be tutored and therefore not authentic . Photo tricks could be applied in the process of copying the original document with the result that the copy , which is secondary evidence , therefore not a carbon copy of the original . The court had not the eyes of an eagle to detect such trick (see per Tobi,JSC in Araka v Egbue(2003)33 WRN 1,15-17).
We are ,entirely, in agreement with these elucidations on the question or the inadmissibility of photocopies of certified copies of public documents .We adopt them as our reasoning in this appeal in answer to the submissions of the counsel for the respondents. The net effect is that the said exhibits , mere photocopies of public documents ,were inadmissible pieces of papers that should not have found their way into the records of the tribunal . In a word, although we resolve the issue of frontloading in favour of these documents, we regret to say that being photocopies of certified copies of public documents, they were wrongly admitted in evidence.”
See also OGUNLEYE V AINA (2011 3 NWLR (Pt.1235) 479 at page 585, paras.F-G. , where the Appeal court rightly stated thus:
“…a photocopy of a certified true copy of a public document is inadmissible in evidence, like the leading judgment in this appeal, I too ,would lean in favour of the position that a photocopy of a certified true copy of a public document is inadmissible in evidence.”
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A Report Of The Judgement Of The 16 Divisions Of The Court Of Appeal In Nigeria