Rejoinder: On Whether Photostat Copy Of Certified Public Document Is Admissible In Evidence – Ogbuagu JSC Pronouncement In Magaji V. Nigerian Army Is Per Incuriam – By Basil Momodu

I read the article written by my learned friend, Tella Attoni , titled: Contrary to the Supreme Court  Pronouncement in Magaji v. Nigerian Army (2008) 8 NWLR (pt. 1089)338, Photostat Copies of Certified True Copies of Public Documents are Inadmissible in Law. The article was published on the platform of TheNigerialawyer on July 22, 2017.

I also read a rejoinder to the said article written by my learned friend, Reginald A. Uzoechi Esq. I must, as a prelude to this write up, commend the exceptional brilliance exhibited by both Counsel in marshalling points of law. This write up would not have been necessary if certain errors of serious nature were not held out as correct position of the law.

There is the need to throw more light on the subject. It is the duty of every lawyer to clothe himself with necessary standing and descend through intellectual ladder into arena of legal discourse to ensure that submissions and pronouncements capable of confusing practitioners and having the tendency of introducing serious elements of uncertainty into the law are torpedoed.

 More so when the critical question in argument cannot be said to be a recondite point of law. A recondite point of law is one that is not settled, little known, difficult to understand, profound, abstract, esoteric, obscure etc, see Agu v. COP (2017) 2NWLR (1549) 254; see also Ajomale v. Yaduat (No. 2)(1991)5 NWLR(pt. 191)266.

  I want to believe that what the learned Uzoechi thought was the main question in learned Attoni’s article, judging from his reaction in which he called in aid many cases including the case of Abdullahi FRN (2016) 10 NWLR (pt. 1521) p.475, is whether photocopies of public documents require certification. Both counsel cited a long line of judicial authorities in this respect.

The very recent case of Udom v. Umana (No. 1) (2016)12 NWLR (pt. 1526)179 was also cited. In that case, the Supreme Court reaffirmed its position that the only type of public document admissible, in the absence of the original document, is certified true copy and no other. This position evidently represents a common ground for both Counsel as both Counsel were in agreement in that respect and as such could not have been so vehemently re-examined by learned Uzoechi as if it was a point of divergence. More so when the point has become an elementary law. See Kubor v. Dickson (2013) 4 NWLR (pt. 1345) 534; Okoreaffia v. Agwu (2012) 1NWLR (pt. 1282) 425; Buhari v. Obasanjo (2005) 13 NWLR (pt. 941) 1

But the critical question which learned Attoni examined, which could easily be found in the title of his article, is whether photostat copies of certified true copies of public documents are admissible in evidence. The submission of Attoni Esq., is that photostat copy of a certified true copy of public document cannot be placed on the same legal pedestal with a certified true copy of a public document.

He argued that since such document must have been produced and/or photocopied from an alleged certified true copy of the original of a public document, it ought to be certified by the appropriate officer to vouchsafe its authenticity and issued upon the payment of statutory fee.

The vehemence unleashed by Counsel on the question whether a photostat copy of certified public document requires further certification in their articles appears to give an impression that the question presents a recondite point of law. It appears both Counsel took for granted that a pronouncement of a Justice of Supreme Court in a concurring judgement can be wrong, with due respect.

 Due consideration was not given to the correctness of the pronouncement of Ogbuagu JSC in Magaji’s case by both Counsel. But before we engage in legal analysis of the said pronouncement, let’s take an eagle eye view of the Supreme Court case of Minister of Land Western Nigeria v. Azikiwe & Ors (1969)1  ANLR 49.

 The case, in my humble view, represents the law on the question whether a Photostat copy of certified public document requires certification. In that case the Supreme Court held as follows;

In the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and none other. The document now marked exhibit “2” was not a certified true copy but a Photostat copy and it was therefore inadmissible as secondary evidence of a public document which it purported to be. There was no objection to its admissibility when it was produced but it was not within the competence of parties to a case to admit by consent or otherwise a document which, by law was inadmissible.

The document referred to in the case is a photostat copy of a certified true copy of a public document which makes the authority one that is directly on the point. My learned friend Uzoechi Esq. submitted that such a document is admissible. The main authority he presented which is directly on the point is the pronouncement of Ogbuagu JSC in his concurring judgement in Magaji v. Nigerian Army (supra). Other authorities cited by him, did not hit the mark that Photostat copies of certified true copies of public documents are admissible in law.

In driving home his point, the learned Uzoechi reached out for the case of Adedayo v. PDP & ors (2013) LPELR-20342(SC) to recall the pronouncement of Onnoghen JSC as follows:

…But where however, an obiter dictum is based on the ratio decidendi of the Supreme Court, it will be regarded as binding.

In my view, this was not helpful. Reaching out for this case is a tacit admission of the fact that the said pronouncement of Ogbuagu JSC in Magaji’s case is an obiter dictum which has assumed the status of a ratio decidendi because of the fact that it was based on a ratio decidendi of the Supreme Court. He did not however showed the ratio decidendi in the lead judgement of Tobi JSC which the learned Ogbuagu JSC’s pronouncement in Magaji’s case was based to acquire the legal potency to be so binding as to overrule a valid decision of a properly constituted panel of the Supreme Court in Minister of Land’s case.

 The Supreme Court was established under section 120 of the 1963 Constitution as the highest court of the land. The Minister of Land’s case was decided in 1969 by which time, the Supreme Court has already assumed its position as the apex court in Nigeria.  The case may be said to be old considering that it was decided in 1969. But departure from cases should not be based on ground of old age. The age of a case has nothing to do with its legal value.

 In Okpala v. Okpu (200) WRN 1, counsel had described a decision of Supreme Court that was about three decade old as “archaic” and urged the court not to follow it, but the Supreme Court said:

As a matter of law, a case which has survived the test of judicial precedent is recognized as stable, if decided by the highest court of the land, and will receive the adoration of the lower court until overruled by the highest court. But until it is overridden, it represents the state of the law…In my humble view, the older a case the maturer it is…

Let’s now return to the question as to the correctness of the said pronouncement in law. It is considered necessary to reproduce the said pronouncement here for ease of reference:

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) 526 (referred to by the court below as Iheonu v. Williams), it was held that a photocopy of a certified document, is admissible. So this authority put to rest, the complaints in the appellant’s brief about the admissibility of the appellant’s statement or exhibit 1. as a matter of fact, in the case of International Merchant Bank (Nig.) Ltd v. Dabiri & 2 Ors (1998)1 NWLR (Pt. 533) 284 at 297 C.A, it was held that photocopies of a certified true copy of a public document, needs no further certification under section 111(1) of the Evidence Act. – at page 396 para A-C.

From the foregoing, citing the Daily Times’ case, a Supreme Court authority, the respected and erudite law lord aligned with both Counsel in their submissions that photocopies of document must be certified. But on the critical question as to whether photocopies of certified true copy of a public document need further certification, he relied on a Court of Appeal authority, the Merchant Bank’s case (supra), to hold that they do not, when there is a valid decision of properly constituted panel of the Supreme Court in Minister of Land’s case (supra) holding the contrary.

It is interesting to note that the Minister of Land’s case has not been overruled. The learned and erudite Ogbuagu JSC, not delivering the majority decision or the lead judgement in Magaji’s case, cannot overrule the decision in Minister of Land’s case and he did not. One may have thought differently, if the said pronouncement was made by Niki Tobi JSC who delivered the majority judgement in Magaji’s case.  Even in such situation, the court is expected to do so expressly.

 In view of the foregoing, will it be correct to say that a pronouncement made in a concurring judgement, which was not reflected in the lead judgement of the court, has overruled a majority decision of Supreme Court? What is binding in a judgement is the ratio decidendi as reflected in the lead judgement.

 According to Dias on Jurisprudence at p.182 (Fourth Edition), “…no rule should be treated as ratio which would not support the ultimate order” of court. The ultimate order of court is found in the lead judgement. Accordingly, in Moghalu v Ngige, the court said:

…by the doctrine of stare decisis only the decision of the majority reflected in the lead judgement in an earlier case has the necessary binding effect in a subsequent case…

Consequently, it is not correct to refer to Ogbuagu JSC pronouncement in Magaji’s case as a binding decision of the Supreme Court as learned Uzoechi’s argument appears to suggest because his lordship was, with due respect, ill-informed about the applicable law. The said pronouncement cannot also take advantage of the pronouncement of Onnoghen JSC as he then was (now CJN) in Adediran v. PDP (supra) that when an obiter dictum is based on the ratio decidendi of the Supreme Court, it will be regarded as binding, as argued learned Uzoechi , as it was not reflected in the lead judgement delivered by Niki Tobi JSC.

However, Ogbuagu pronouncement in Magaji’s case gives the hints that the present Supreme Court may overrule Minister of Land’s case in no distant future whenever there is an opportunity to do so and hold that a Photostat copy of certified public document is admissible in law.

Basil Momodu Esq.

Legal Research and Law Publishing.

lindabasil@yahoo.com