THE HON. JUSTICE E. O. ARAKA V. THE HON. JUSTICE DON EGBUE
June 13, 2025THE STATE V MOSHOOD OLADIMEJI
June 13, 2025Legalpedia Citation: (2003-07) Legalpedia 69234 (SC)
In the Supreme Court of Nigeria
Fri Jul 11, 2003
Suit Number: SC.167/1999
CORAM
Uthman Mohammed Justice of the Supreme Court of Nigeria
Aloysius Iyorgyer Katsina-Alu Justice of the Supreme Court of Nigeria
Akintola Olufemi Ejiwunmi Justice of the Supreme Court of Nigeria
Niki Tobi Justice of the Supreme Court of Nigeria
Dennis Onyejife Edozie Justice of the Supreme Court of Nigeria
PARTIES
THE HON. JUSTICE E. O. ARAKA
APPELLANTS
THE HON. JUSTICE DON EGBUE
RESPONDENTS
AREA(S) OF LAW
EVIDENCE, STATUTORY INTERPRETATION, APPEAL, PRACTICE AND PROCEDURE, CIVIL PROCEDURE, ADJECTIVAL LAW, CONSTITUTIONAL LAW, LIBEL
SUMMARY OF FACTS
This is an action on libel. The appellant, as plaintiff, filed an action claiming the sum of N10 Million as damages for libel against the respondent in a letter dated 10th September, 1984, written by the respondent concerning the appellant and in the way of his office as Chief Judge of Anambra State.
By their pleadings, the parties joined issues and the matter went to trial. The appellant opened his case by calling Kingsley Ngwu Udoh, a legal practitioner, as his first witness. The witness testified that he was representing the Principal Secretary to the Executive Governor of Enugu State who was subpoenaed to tender documents in the court. After saying that the original letter dated 10th September, 1984 addressed to the Military Governor of Anambra State could not be found, witness tendered a photocopy of the letter through counsel for the appellant. Counsel for the respondent objected on the ground that the letter being a public document can only be admitted in evidence if it is a certified true copy of the original as required by Section 96(1)(e) and 96(2)(c) of the Evidence Act, Cap. 62, Laws of the Federation of Nigeria and Lagos, 1958, now Section 97(1)(e) and (2)(c) of Cap. 112 of the Evidence Act, 1990.
The learned trial Judge, Omotosho, J., overruled the objection and held that the original of the letter dated 10th September, 1984, having been lost, any secondary evidence of the lost document is admissible under Section 96(1)(c) and Section 96(2)(a) of the Evidence Act. The document was thereafter admitted as exhibit 1.
Dissatisfied, the respondent went to the Court of Appeal. That court reversed the decision of the learned trial Judge. Uwaifo, JCA (as he then was) held that the plain language of Section 97(2)(c) of the Evidence Act requires that for a public document, the secondary evidence admissible is a certified copy of the document, and no other kind of secondary evidence.
Dissatisfied, the appellant filed this appeal at the Supreme Court.
HELD
1. The appeal was dismissed.
2. The court held that Section 97(2)(c) of the Evidence Act is clear and unambiguous in providing that the only secondary evidence admissible in respect of a public document is a certified copy, and no other kind of secondary evidence.
3. The court ordered that the case be remitted to the Chief Judge of Lagos State to be tried de novo by another Judge, as the trial Judge, Omotosho, J., was noted to be deceased.
4. The court awarded N10,000.00 to the respondent.
ISSUES
1. Whether, in a case where the original of a public document is lost and cannot be found or where such document has been destroyed and is no longer in existence, any secondary evidence of such document (other than a certified true copy thereof) is admissible in evidence?
2. Whether the provision of Section 97(2)(c) is applicable in a case where the original of a public document is lost and cannot be found or where such document has been destroyed and is no longer in existence?
RATIONES DECIDENDI
INTERPRETATION OF SECTION 97(2)(C) – SECONDARY EVIDENCE OF PUBLIC DOCUMENTS
It is clear from the provision of Section 97(2)(c) that the only acceptable secondary evidence of a public document is a certified 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”. This provision is clearly in contradistinction to the provision of Section 97(2)(a) of the Act which admits any secondary evidence of the contents of the document. In my humble view, Section 97(2)(a) anticipates private documents within the very vague meaning of Section 110 of the Act. In other words, while Section 97(2)(c) provides for public documents, Section 97(2)(a) provides for private documents, which Section 110 simply defines as all other documents which are not public documents. – Per NIKI TOBI, J.S.C.
OBJECTIVE OF SECTION 97(2)(C) – AUTHENTICITY OF PUBLIC DOCUMENTS
One main objective behind Section 97(2)(c) of the Evidence Act is to ensure the authenticity of the document tendered vis-a-vis the original. This is in addition to the need for the preservation of public documents. 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, does not completely and totally reflect the original and therefore not a carbon copy of the original. The court has not the eyes of an eagle to detect such tricks. – Per NIKI TOBI, J.S.C.
INTERPRETATION OF CLEAR STATUTORY PROVISIONS – DUTY OF THE COURT
The duty of the court is to interpret the words contained in the statute and not go outside the words in search of an interpretation which is convenient to the court or to the parties or one of the parties. Even where the provisions of a statute are hard in the sense that they will do some inconvenience to the parties, the court is bound to interpret the provisions once they are clear and unambiguous. It is not the duty of the court to remove the chaff from the grain in the process of interpretation of a statute to arrive at favourable terms for the parties outside the contemplation of the lawmaker. That will be tantamount to traveling outside the statute on a voyage of discovery. This court cannot embark upon such a journey. – Per NIKI TOBI, J.S.C.
INTERPRETATION OF CLEAR STATUTORY PROVISIONS – LITERAL RULE
The primary function of the court is to search for the intention of the lawmaker in the interpretation of a statute. Where a statute is clear and unambiguous, as it is in this case, the court in the exercise of its interpretative jurisdiction, must stop where the statute stops. In other words, a court of law has no jurisdiction to rewrite a statute to suit the purpose of one of the parties or both parties. The moment a court of law intends to rewrite a statute or really rewrites a statute, the intention of the lawmaker is thrown overboard and the court changes place with the lawmaker. In view of the fact that that will be against the doctrine of separation of powers entrenched in the Constitution, a court of law will not embark on such an unconstitutional act. Courts of law follow the literal rule of interpretation where the provision of the statute is clear and no more. And that is the position in this appeal. – Per NIKI TOBI, J.S.C.
RELIANCE ON INDIAN AUTHORITIES – STARE DECISIS
Learned counsel for the appellant has cited quite a number of Indian authorities on the issue. I have read all of them. They could be of great learning but I do not, with respect, agree with their interpretation of the provision involved in this appeal. In the light of the authorities of this court on the issue, am unable to throw away those decisions in favour of the Indian authorities. Apart from the fact that I see no reason to do so, the well established principles of stare decisis in our law will not allow me to do so. Foreign authorities of the greatest learning cannot supplant our case law which is rightly decided on issues coming before this court.” – Per NIKI TOBI, J.S.C.
ROLE OF FOREIGN DECISIONS IN NIGERIAN JURISPRUDENCE
I should not be misunderstood as saying that foreign decisions, including Indian authorities cannot be used by this court. No, that is not the point I am making. Foreign decisions will continue to be useful in the expansion of the frontiers of our jurisprudence but this court cannot invoke such decisions where it thinks they are contrary to the judgments of the court which are correctly decided. Of course, this court will not hesitate to use any foreign decision if it’s correct, even though contrary to our decision; if the court comes to the conclusion that its decision is wrong. In such a case, this court will, in the light of the foreign decision, overrule itself and choose to go by the foreign decision which is correctly given. Subject to the above, the state of the law that foreign decisions are of persuasive authority will remain and for all times and forever.– Per NIKI TOBI, J.S.C.
FILING OF INTERLOCUTORY APPEALS – CONCERN OVER DELAY
This appeal has once again brought to the fore the filing of appeals of an interlocutory nature. While the parties have exercised their constitutional right of appeal, not much could have been lost if the issue before us was taken at the end of the case together with any other ground or grounds of appeal, if the respondent lost out at the end. The action was filed in October, 1985 and we are still on an interlocutory appeal, about eighteen years after. I am not saying that the respondent was wrong in exercising his constitutional right of appeal. I cannot say that. But the point I am making is that a little discretion would have taken this matter lesser period in the courts.” – Per NIKI TOBI, J.S.C.
INTERPRETATION OF SECTION 97(2)(C) – CLARITY AND CERTAINTY
Looking at the provisions of Section 97(2)(c) of the Evidence Act, it is abundantly clear that the statute has left no room for me to admit secondary evidence of a public document other than by tendering a certified copy of the document.– Per UTHMAN MOHAMMED, J.S.C.
PRECEDENT ON SECTION 97(2)(C) – MINISTER OF LANDS CASE
This is not the first time this court has considered the issue of admission of secondary evidence of a public document. In the case of Minister of Lands, Western Nigeria v. Azikiwe and Ors. (1969) 1 All NLR 49 (1969) N.S.C.C. this court held; ‘The combined effect of the subsections (e) or (f) is that in the case of public documents the only type of secondary evidence permissible is a certified true copy of the document and none other.’ – Per UTHMAN MOHAMMED, J.S.C.
LIMITATION OF JUDICIAL POWER IN STATUTORY INTERPRETATION
It seems to me that the sole guide to the interpretation of the provision of the statute in question here is the statute itself, nothing except an Act of Parliament (the National Assembly) can alter the provision enacted herein.– Per UTHMAN MOHAMMED, J.S.C.
DUTY OF COURT IN STATUTORY INTERPRETATION – NOT TO EXPAND THE LAW
The duty of the court is to expound the law and not to expand it. It is not the function of the court to supply omissions in statutes and thereby embark on judicial legislation: Olowu v. Abolore (1993) 5 NWLR (Pt. 293) 255 at p.278; Osho v. Philips (1972) 4 SC 252. The provision under consideration, that is, section 97(2)(c) of the Evidence Act (supra) has been judicially considered in several decisions of this court: see the Minister of Lands Western Nigeria v. Dr. Nnamdi Azikiwe (1969) 1 All NLR 49; Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799: Nzekwu v. Nzekwu (1989) 2.NWLR (Pt. 104) 373 to mention but a few. The decisions in these cases are consistent that only a certified copy is admissible as secondary evidence to prove the contents of a public document. Those decisions cannot be faulted. – Per DENNIS ONYEJIFE EDOZIE, J.S.C.
GOLDEN RULE OF STATUTORY INTERPRETATION – ORDINARY MEANING
The cardinal or golden rule of interpretation of statutes is that the words of the statute must prima facie be given their ordinary meaning without importing into them what is not there. In other words where the words used in an enactment are plain on the face of it, effect must be given to their literal meaning: see Niger Progress Ltd v. North East Line Corporation (1989) 3 NWLR (Pt. 107) 68; Amokeodo v. I.G.P (1999) 6 NWLR (Pt. 607) 467 at 482; Ekeogu v. Aliri (1991) 3 NWLR (Pt. 179) 258; Okumagba v. Egbe (1965) 1 NMLR 62; African Newspapers Ltd. v. The Federal Republic of Nigeria (1985) 2 NWLR (Pt. 6) 137; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377. In the last of these cases, this court observed ‘If the language used by the legislature is clear and explicit, the court must give effect to it because in such a situation the words of the statute speak the intention of the legislature. The words of the statute must not be overruled by the Judge.’ – Per DENNIS ONYEJIFE EDOZIE, J.S.C.
PLAIN MEANING PRINCIPLE – NO AMBIGUITY IN SECTION 97(2)(C)
Guided as I am by the principles enunciated in the above cases, it is my view that Section 97(2)(c) of the Evidence Act (supra) does not admit of any ambiguity. The language is clear, explicit and categorical that the only secondary evidence admissible to prove the existence, condition and contents of a public document is a certified true copy of the original and no other type of secondary evidence. – Per DENNIS ONYEJIFE EDOZIE, J.S.C.
CASES CITED
STATUTES REFERRED TO
1. Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990
2. Evidence Act, Cap. 62, Laws of the Federation of Nigeria and Lagos, 1958
3. Constitution of the Federal Republic of Nigeria
