Admissibility of Original Copy of a Public Document

“Documents May Be Proved By Either Primary Or Secondary Evidence, And That The Primary Evidence, Is The Document Itself, Whilst The Secondary Evidence, Is The Certified True Copy Of The Original Where The Document Is A Public Document Within The Meaning Of The Act… Primary Document, They Are Original And Are Admissible In Evidence” In the Supreme Court of Nigeria Holden at Abuja On Friday, the 30th Day of June, 2017 Before Their Lordships Clara Bata Ogunbiyi Kudirat Motonmori Olatokunbo Kekere-Ekun Ejembi Eko Paul Adamu Galinje Sidi Dauda Bage Justices, Supreme Court SC.363/2015 Between Gambo Idi ……… Appellant And The State……… Respondent Lead Judgement delivered by Hon. Clara Bata Ogunbiyi, JSC Facts The Appellant was charged before he High Court of Kano State, for committing the offence of rape contrary to Section 283 of the Penal Code Law. He was alleged to have had sexual intercourse with one Hafsat Musa, aged 7 years, against her will and inflicted injuries on her in his room at Kofar Gesto Quarters, Karaye Local Govern-ment of Kano State. The victim testified as PW1 along with other three witnesses, while the Ap¬pellant testified for himself and called three other witnesses as well. Three exhibits were tendered by the Prosecution; Exhibit A and B were the Confes-sional Statement of the Appellant and the Medical Report issued after examination of the victim at the hospital. The trial Judge found the Appellant guilty, convicted him and sentenced him to 10 years imprisonment and a fine of N200,000.00. The Appellant appealed to the Court of Appeal, which Court dismissed the appeal and affirmed the conviction and sentence of the Appellant by the trial Court. The Appellant, still dissatisfied, appealed to the Supreme Court. Issue for Determination: Whether the learned Justices of the Court of Ap¬peal were right to have relied on the inadmissible testimony of PW1 as well as Exhibit B, which failed to comply with the requirements of the Evidence Act, in affirming that the guilt of the Appellant for the alleged offence of rape was proved beyond reasonable doubt as required by law. Argument It was argued on behalf of the Appellant, that the trial judge drew a conclusion on the competence of PW1 (the victim who was a minor) to give evidence, when the preliminary questions and answers put to her were not reflected in the re¬cords as required by law. He argued that, the trial judge did not comply with section 209(1) and (3) of the Evidence Act. He further relied on the case of DAGAYYA v THE STATE (2006) 7 NWLR (Pt. 980) 637 at 640. He submitted that, the non-com¬pliance with section 209 of the Evidence act makes PW1 an incompetent witness. What more, he stated that, the evidence of PW1 was very incoherent and full of material contradictions. He submitted that, the trial court erred by relying on such evidence to convict the Appellant. He relied on IGBI v THE STATE (2000) )3 NWLR (Pt. 648) 169. The Appellant also argued that, the trial court ought not to rely on Exhibit ‘B’ as evidence cor-roborating the testimony of PW1, to convict him. He contended that Exhibit ‘B’ failed to satisfy the basic requirements and conditions precedent to its admissibility. He argued that, Exhibit ‘B’ is a public document within the meanir$ of section 102 (a) (iii) of the Evidence Act. Hence, it is only the certified true copy of Exhibit ‘B’ and no other kind is admissible, even where the on is available. He relied on section 103, 104(1), (2) gin (3) and 105 of the Evidence act. He also relied on the case of ARAKA v EGBUE (2003) 17 NWLR (Pt. 848) 1 at 18; ANATOGU v IWEKA II (1995) 8 NWLR (Pt. 415) 547 at 571. Counsel for the Respondent, in response to the Appellant, stated that there is nowhere it is made a requirement, that a trial judge must record the preliminary questions and answers he put to the child in the record of the court. He submitted that, the requirement is for the judge to form an opinion whether the child understands the nature of an oath and possess an intelligence to give evidence before it. He also submitted that, contrary to the submission of the Appellant’s counsel, PW1 was a competent witness and that both the trial court and the lower court, were right in relying on her evidence to convict the Appellant. He relied on OGUNBAYO v STATE (2007) SC (Pt. 11) 1. Counsel submitted further that, the evidence of PW1 was incoherent and filled with material contradictions. The Respondent argued that, the argument of the Appellant’s Counsel in resect of Exhibit ‘B’, was a complete misconception of) the nature and effect of same as an original document. He further contend¬ed that, Counsel totally misconceived the actual interpretation of Section 18(1) of the Interpretation Act. He stated that the fact that Section 18(1) of the Act makes a Police Officer a Public Officer, does not make any document emanating from him, in the exercise of his duties as an Investigation Police Officer, a public document. He further submitted that, the documents tendered as Exhibit ‘B’ were original documents, and thus, required no certification. He relied on PDP v INEC (2014) 17 NWLR (Pt. 1437) 525; DAGGASH v B’ULA1VIA (2004) 14 NWLR (Pt. 892) 144. Finally, he urged the court to hold that, the evidence of PW1 was neither incoherent nor contradictory. Court’s Judgement and Rationale The Supreme Court, in resolving the issue of the admissibility_, of the testimony of PW1, held that where a minor is called upon as a witness to give evidence in a case, the law under the express provision of section 209(1) & (3) of the Evidence Act stipulates that the court is duty bound to conduct a preliminary enquiry to ascertain whether or not the minor possessed sufficient intelligence to answer the questions that will be put to her, also that she understands the duty of speaking the truth. The Court stated that, the law is established that this special procedure requires the learned trial judge to put first, certain questions that are unrelated and unconnected with the facts in issue to the minor, who ought to provide answers intelligently. The Supreme Courtquoted the entry of the lower court in the record as follows: “I have asked the witness, as to her age, her school, her family life, the existence of bad and the consequence of speaking the truth, and I am satisfied that she can give evidence on oath. These words of the learned trial judge, in my view show sufficient compliance with section 209(1) of the Evidence Act, 2011 and the evidence of PW1 was properly received at the trial”. The Supreme Court disagreed with the Appellant’s Counsel who posited that, the questions and answers are to be recorded in black and white. The Court stated that Counsel for the Appellant is asking for a re-writing of the provi­sions of the law as there is nowhere it is made a requirement that the trial judge must record the preliminary questions and answers be put to the child in the record of the court. The con­tention by the Appellant, the Supreme Court held, is not a requirement of the law and therefore, not within reason. The purpose for the requirement, is rather meant for the trial judge to form an opinion whether the child understands the nature of an oath and possesses intelligence enough to give evidence before it. On the issue of the admissibility of Exhibit ‘B’, the Supreme Court, relying Section 85 of the Evidence Act, held that, documents may be proved by either primary or secondary evidence, and that the primary evidence is the document itself, whilst the secondary evidence, is the certified true copy of the original, where the document is a public document within the meaning of the Act. The Court further held, relying on the authority of TOBIK INVESTMENT LTD v GTB PLC (2011) 17 NWLR (Pt. 1276) 240, that documents emanating from the Nigeria Police, especially documents to be used in Courts are public documents which only certified true copies are admissible in evidence. However, this requirement does not include documents contained in the case diary which is a subject and result of investigation. By Section 127(1) & (2) of the Criminal Procedure Code, which includes Exhibit ‘B’, are primary document, they are original and are admissible in evidence. The Court also cited and relied on KWARA STATE MINISTRY OF AGRICULTURE v SGP NIG LTD (1998) 11 NWLR (Pt. 575) at 583 where it was stated that “a public document is admissible as primary evidence without certification”. Finally, the Supreme Court held, on the issue of contradictions in the evidence of PW1, that the law is well entrenched and established that, it is not all contradictions in the testimony of the prosecution witnesses that are fatal. For any of such to be det­rimental, it must be substantial and fundamental. The court relied on STATE v SALISU BABUGA (1996) 7 NWLR (Pt. 460) 279. Their Lordships held that the appeal lacked merit and affirmed the conviction and sentence of the Appellant. Appeal Dismissed. Representations: Wilson 0. Diriwari for the Appellant O.I. Oladunmoye for the Respondent. Reported by Optimum Law Publishers Limited Publishers of the Nigerian Monthly Law Reports (NMLR))]]>