The Photocopy of a Certified True Copy (CTC) of a Public Document does not Require Further Certification, and as such, is Admissible in Evidence as if it’s a CTC: Magaji v. Nigerian Army Remains a Good and Valid and the Subsisting Law and Precedent.
By Reginald A. Uzoechi, Esq.
This is a rejoinder to an article published on this platform, titled: “Contrary To The Supreme Court Pronouncement In Magaji Vs. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338, Photostat Copies Of Certified True Copies Of Public Documents Are Inadmissible In Law.” The said article was written by a learned friend, D. TELLA ATTONI, ESQ., and published on July 22, 2017. The title of that article is a summary of the submission of my learned friend and is said to be in line with the clear wordings of section 90 (1) (c) of the Evidence Act 2011.
While I commend my learned friend for a brilliant try to upturn a settled precedent and well-known principle of law and his erudite rendition on the subject matter, I rather do not find his arguments tenable and valid as to sustain his conclusion. More so, some of the authorities he cited were misapplied or do not qualify as a precedent in the circumstances of his submission.
My learned friend started his submission by postulating that:
‘…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.’
The flaw in this postulation is that it failed to take cognisance or the fact that, the need for certification of a public document is to show that the said CTC is a true, actual and accurate copy of the original. See Gambari v. INEC & Ors. (2011) LPELR-9080 (CA). Once a document is certified, it satisfies the condition that it is an authenticated copy of the original, though a presumption which may be rebutted if the contrary is proved, see Kikiade & Ors. v. Alalade (2012) LPELR-7965 (CA). Thus, making further photocopies of the said CTC will not require further certification, because the very first certification shows that the document (photocopy) is an authentic copy of a public document and as good as the CTC in the eyes of the law. This is the principle expoused in the case of Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338.
Interesting, my learned friend contended that Magaji v. Nigerian Army (supra) is no longer the law because, according to him:
‘…after the said pronouncement [the pronouncement in Magaji v. Nigerian Army (supra)], 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.’
He cited the cases of Udom v. Umana (NO. 1) (2016) 12 NWLR (PT 1526) 179 at 235, paras. B & C; Abdullahi v. F.R.N (2016) 10 NWLR (Pt. 1521)475 at 499, Paras A-B to establishing the principle that, ‘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.”’
First, the principle in the above cases is not in any way in conflict, contrary or contradictory to the principle in Magaji v. Nigeria Army (supra), that the photocopy of a CTC of a public document does not require further certification. They are rather complimentary, because Magaji v. Nigerian Army (supra) is simply an authority that a photocopy of a CTC of a public document requires no further certification, and it is admissible as the CTC itself.
Secondly, the issue in the above cases is not whether a Photocopy of a CTC of a public document is admissible or not; or whether the photocopy of the CTC of a public document requires further certification. The issue is rather, whether the photocopy of a public document (not the photocopy of the CTC of a public document) is admissible. The Supreme Court rightly held that it is only the CTC and original of a public document that is admissible.
My learned friend pushed his argument a bit further by contending that, ‘…being later in time, the foregoing judicial cases must take precedent over the decision in Magaji v. Nigerian Army (supra) which appears to be in conflict with them.’ He cited the case of 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.
There is however, a prelude to the above principle which my learned friend missed out. That is that, when a relevant prior decision is not cited before the court, or mentioned in the judgment of the court, it must be assumed that the court acted in ignorance or forgetfulness of it. If the new decision is in conflict with the old decision, it is given per incuriam and not binding on a later court. See Badau & Anor v INEC & Ors. (2008) LPELR-3841(CA) p.26, paras. A-B.; (2008) All FWLR (PT.435) 1794.
Neither Udom v. Umana (supra) nor Abdullahi v. F.R.N (supra) made reference to or overruled Magaji v. Nigerian Army (supra) on the issue at hand. The position is also maintained that Magaji v Nigerian Army (supra) is not in conflict with the two cases mentioned above.
And, assuming, without conceding, that the decision of the Supreme Court in Magaji v Nigerian Army (supra) is in conflict with Udom v. Umana (supra) and Abdullahi v. F.R.N. (supra) on the issue at hand, then the two latter cases were held per incuriam, since they neither called up nor overruled Magaji v. Nigerian Army (supra).
The next point contended by my learned friend is that, ‘the said pronouncement in MAGAJI VS NIGERIAN ARMY (supra) was an obiter dictum. Consequently, the same has no binding effect on our lower courts.’ He relied on the case of Daily Times (Nig.) PLC. v. D.S.V. LTD. (2014) 5 NWLR (Pt.1400) 327 at page 353, paras. A-B, on the meaning of obiter dictum, which ‘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…’
My learned friend submitted that a ‘careful study of the decision in MAGAJI VS NIGERIAN 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.’ It was his further contention that, ‘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, JSC in his supporting judgment in which he pronounced that a photo copy of a certified true copy of a public document is admissible.’
My learned friend capped up his submission by calling in aid the case of Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (2016) LPELR-40205 (CA), where the Court of Appeal held that, ‘the decision in MAGAJI VS NIGERIAN 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.’
From every indications, it is clear that this case of Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (supra) is actually the principal authority that inspired my learned friend’s submission and the basis of the topic of his article.
With due respect to my learned friend, a pronouncement does not become an obiter dictum because the issue pronounced on was not ‘specifically raised for determination by any of the parties.’ Admittedly, ‘it is not everything stated in a decision that constitutes binding precedent. What is binding is the enunciation of the principles or the reasons upon which the question before the court was decided. Any other thing said by way of arriving at that decision is usually referred to as ‘obiter dicta’ which is not binding, though they may have persuasive efficacy. But where however, an obiter dictum is based on the ratio decidendi of the Supreme Court, it will be regarded as binding.’ – Per Onnoghen, J.S.C. (now CJN) in Adedayo & Ors. v. PDP & Ors. (2013) LPELR-20342(SC); see also Clement v. Iwuanyanwu (1989) 3 NWLR (PT.107) 39.
Furthermore, the fact that a pronouncement was not specifically made in the lead judgment (but in the concurring Judgment) does not also make it an obiter dictum. At least, there is no known authority to that effect.
With these said, one is yet to come to terms as to how the Court of Appeal arrived at the conclusion (which conclusion by learned friend bought hook, line and sinker) that the pronouncement of the Supreme, per Ogbuagu JSC, in Magaji v. Nigerian Army (supra) concerning the admissibility of the photocopy of the CTC of a public document and that such document needs no further certification, is an obiter dictum.
A critical examination of the said pronouncement of the Supreme Court in Magaji v. Nigerian Army (supra) vis-à-vis the entire decision will help one determine its status as an obiter dictum or a ratio decidendi.
The said pronouncement was made by Ogbuagu, JSC while treating issue No. 4 raised for the determination of the appeal before the Supreme Court. The said issue 4 reads:
‘Whether the lower Court was right when it upheld the admissibility of the purported statement of the appellant which was alleged to have been obtained under duress and was rendered from the bar.’ (This issue was said to have been distilled from Grounds 8 & 9 of appeal).
In addressing the issue, Ogbuagu, JSC observed that:
‘The application to tender the said document was made pursuant to Rule 57 of the Rules of Procedure (Army) 1972, M/M, 1972 which reads as follows:
“…A written statement which is admissible in accordance with the provision of section 9 of the Criminal Justice Act, 1967, as modified by the Court Martial Evidence Regulation 1967 shall be handed to the Court by the prosecutor or the accused as the case may be without being produced by a witness.”’
The learned law lord observed that the above provision has answered to the issue and went ahead to add that:
‘… However, I have already stated that if the purpose of calling as a witness is just to tender a document, a trial court may dispense with the personal appearance of the person who recorded the contents of the document such as the Investigator in the instant case. Exhibit 1 although a photocopy is/was certified. It is now settled that photocopies of documents, must be certified. See Section 111/112 of the Evidence Act. In the case of Daily Times Ltd. v. Williams (1986) 4 NWLR (Pt.36) 52 referred to by the court below as IHEONU v. FRA WILLIAMS, it was held that a photocopy of certified document, is admissible. So this authority also puts to rest, the complaint in the appellant’s brief about the admissibility of the appellant’s Statement or Exhibit 1. As a matter fact, in the case of International Bank Nig. Ltd. v. Dabiri & 2 Ors. (1998) 1 NWLR (Pt. 583) 284 @ 297, C.A, it was held that photocopies of a Certified True Copy needs no further certification under section 111 (1) of the Evidence Act [now section 104 (1) of the Evidence Act 2011.]’
How could such pronouncement be said to be an obiter dictum? The pronouncement of Ogbuagu, JSC, above is not an obiter dictum. It was a pronouncement made while resolving an issue raised for the determination of the appeal. It was a pronouncement made as part of the reasons for the decision in that appeal. It qualified as a binding precedent. See Adedayo & Ors. v. PDP & Ors. (supra).
Again, a critical review of the decision in Ministry of Lands, Western Nigeria v. Dr. Nnamdi Azikiwe & Ors. (1969) ANLR 48 clearly discloses that there is not definite pronouncement that a photocopy of a CTC of a public document is inadmissible or that it requires further certification. The decision, in relation to the issue at hand, only pronounced “that in the case of public document the only type of secondary evidence permissible is a certified true copy and none other This is the same position the Supreme Court took in the two later decisions of Udom v. Umana (supra) and Abdullahi v. F.R.N (supra) cited by my learned friend; which decisions have been shown to be complimentary and not in conflict with Magaji v. Nigerian Army (supra).
The Court of Appeal made it clear in Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (supra) that, if not for it’s observation that the pronouncement of Ogbuagu, JSC in Magaji v. Nigerian Army (supra) regarding the admissibility of a photocopy of a CTC of a public document, is an obiter dictum; it would have been bound by the said decision/pronouncement in Magaji v. Nigerian Army (supra).
With due respect to the learned law lords, that conclusion of the Court of Appeal that the said pronouncement of Ogbuagu JSC in Magaji v. Nigerian Army (supra) is an obiter dictum, is in itself a misadventure and reached per incuriam and cannot be binding. This is because that decision in Magaji v. Nigerian Army (supra), by all standards of judicial precedent, is binding on the Court of Appeal. But the Court of Appeal decided to dodge the binding effect of that decision by declaring the specific pronouncement in issue as an obiter dictum.
It is unfortunate to note at this juncture that of all the decisions reviewed by my learned friend in his article, it is only the Court of Appeal decisions that are actually conflicting with each other on the admissibility of the photocopy of a CTC of a public document.
It is not surprising because the Court of Appeal has been ‘judicially notice’ for handing conflicting decisions. One of such conflicting decisions is on the issue of whether appeal lies from the decision of the National Industrial Court of Nigeria to the Court of Appeal as of right or only on grounds of breach of fundamental right under chapter four of the 1999 Constitution of Nigeria. The conflict lingered until the Supreme Court settled the issue in a decision on a case stated, that appeal lies as of right to the Court of Appeal from the decision of the National Industrial Court of Nigeria. See Skye Bank Ltd. v. Iwu, suit No. SC/885/14, delivered on Friday June 30, 2017.
Only recently again, the Court of Appeal held in GTB PLC v. Abiodun (2017) LPELR-42551 (CA), that ‘a written statement on oath that lacks the specific words of swearing cannot suffice in law and such statement on oath is invalid and cannot be relied on at the trial for its not compliance with the Oath Act.’ The Court of Appeal however, forgot that there is it’s earlier decision where it drew a distinction between Affidavit and Written Statement on Oath and held that, ‘…where a statement on oath is to be adopted again on oath by the maker before his cross-examination on it, whatever defect in the original oath in respect of the witness statement has been cured by the second oath in court before the judex prior to the maker and subsequent cross-examination.’ See Uduma v. Arunsi & Ors. (2010) LPELR-9133 (CA).
The list of conflicting decisions of the Court of Appeal is rather endless. It was for this reason that the immediate past Chief Justice of Nigeria, Mahmud Mohammed, CJN (Rtd), at the 2015 Annual Conference of the Court of Appeal noted that:
‘…We must not ignore the negative perception that is occasioned by conflicting judgments delivered at various divisions of the Court of Appeal. Such judicial contradictions only result in untold hardships to litigants in their quest for justice. They further cast your lordships in an unfavourable light and leave the judiciary at the mercy of innuendos, crass publications and editorials.’
Let’s come back to the issue at hand. While the Court of Appeal in Bredero Limited v. Shyanter Nigeria Limited & 2 Ors. (supra) held that the decision in Magaji v. Nigerian (supra) regarding the admissibility of photocopy of a certified true copy of a public document is not a binding declaration of the law on the subject as it was an obiter dictum and therefore not binding; the same Court of Appeal in a latter case of Ifeanyi B. Esione v. Philip Isiofia (2016) LPELR-41060 (CA), held that:
‘…the argument as to the admissibility of a photocopy of a certified true copy of a document has now been settled by the Supreme Court. The apex Court in its wisdom has now established that photocopy of a certified true copy of a document is admissible with or without any need for re-certification. The above position was reiterated by the Apex Court, per Ogbuagu, JSC, in the case of Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089) 338…’
The Court went ahead to quote the relevant dictum of Ogbuagu, JSC as has been replicated above.
As has been noted, the decision of the Court of Appeal in Ifeanyi B. Esione v. Philip Isiofia (supra) is later in time to the decision in Bredero Nig. Ltd. v. Shyantor Nig. Ltd. & Ors. (supra). Consequently, if my learned friend’s submission, that a later-in-time decision takes precedence in a situation of conflict, is anything to go by, then the Court of Appeal’s decision in Ifeanyi B. Esione v. Philip Isiofia (supra) overrides and supercedes the decision in Bredero Nig. Ltd. v. Shyantor Nig. Ltd. & Ors. (supra).
Flowing from the foregoing, and as far as judicial precedent is concerned, the case of Magaji v. Nigerian Army (supra) remains the authority that the photocopy of a CTC of a public document does not require further certification and is admissible as the CTC itself. Not until the Supreme Court overrules itself on that, it remains a good and valid law, and the subsisting precedent on that point and subject matter.
Reginald A. Uzoechi, Esq. is a Research Assistant at the National Industrial Court of Nigeria. He can be reached on email@example.com.