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EXTRACT
The admissibility of photocopies of certified true copies of documents is one practice that has been with some of our courts for quite sometime, albeit per incuriam, with the jurisprudence being that certified true copy of a public document does not require any recertification. Several judicial authorities, including those of the apex court, have reiterated that photocopies of certified true copies of public documents do not need recertification and are admissible in evidence. But there are also authorities that reiterate that photocopies of certified true copies of public documents are inadmissible in evidence until they are recertified. This scenario has created some fluidity as to what, really, is the legal status of photocopy of certified copy of a public document.
In this article, it is shown that the latter category is the legal status of a photocopy of the certified copy of a public document. This has been the position of the law, both judicial and statutory, almost seventeen years before the decision in DTN v. Williams,1 which has been held to be the locus classicus on this principle of our legal jurisprudence. It will be obvious to the reader from this discourse that the former decisions holding that photocopies of certified true copies of public documents need no recertification, were reached per incuriam.
INTRODUCTION
The law of evidence is the life wire of courtroom advocacy. While less emphasis is laid on the evidential law in proceedings such as arbitration and various quasi-judicial proceedings, it is indispensable in courtroom advocacy. Many good cases are lost on the altar of poor comprehension of the law of evidence. Conversely, many bad cases are revived because of the advantage of good knowledge of the law of evidence. It is therefore of great imperative, that a trial lawyer is well equipped with the accurate knowledge of the various provisions of the Evidence Act. The extant statute on the law of evidence in Nigeria is the Evidence Act, 2011 (as amended). The focus of this discourse is the admissibility or otherwise of photocopy of certified true copy of a public document. We shall also consider the position of the law on this principle in India.
HISTORICAL PERSPECTIVE
The Supreme Court in Ministry of Lands, Western Nigeria v. Azikiwe,2 per Coker, JSC (as he then was) had held to the effect that no other kind of secondary evidence is admissible, with respect to public document, except a certified true copy of such document. In fact, the Evidence Act3 is emphatic that no other type of evidence is admissible. The document that was in the spotlight in the referenced case above, was a photocopy of a certified true copy of the public document and the Supreme Court, unequivocally rejected the same.
The foregoing was the decision of the apex court, under the statutory guidance of the Evidence Act, Laws of Nigeria, 1958. See also In Re: Obadina Family v. Ambrose Family,4 which followed the above decision.
Subsequently, the apex court appeared to have overruled itself in Cavallotti Geovanni v. Bonesco Luigi.5 This decision opened the floodgate for the appellate courts to deviate from the earlier decision on the same subject. In DTN v. Williams (supra), even though this is a Court of Appeal decision, the learned justices of the Court of Appeal relied on this unreported case of the Supreme Court, to reach their decision that photocopy of certified true copy of a public document is admissible."
On the question: whether the photocopy of certified true copy of a public document is admissible in evidence or not, it is our respectful view that it is inadmissible by law, whether or not there was an objection to its admissibility. It must be noted that the decisions in Ministry of Lands, Western Nigeria v. Azikiwe (supra) and DTN v. Williams (supra) relied on the same provision of the Evidence Act in force at the material time. Section 96(2) of the Evidence Act, 1958, relied upon by the earlier decision is in pari materia with section 97(2) of the Evidence Act, 1990, relied upon in the latter decision, but yet different conclusions were reached. It is noteworthy that section 96(2) relied on in DTN v. Williams (supra) is a successor to section 97(2) of the old Evidence Act, 1958, and that provision has remained in force through different sections of the subsequent Evidence Acts in force in Nigeria. It was repeated as sections 96(2) and 97(2) in the Evidence Acts, 1958 and 1990, respectively, and are applicable to the authorities being spotlighted in this discourse. The same provision is now in section 90(2) in the extant Evidence Act, 2011 (as amended).
DID THE APEX COURT OVERRULE ITSELF OR DECISION REACHED PER INCURIA?
It is the opinion of the authors that the latter decision in Cavallotti Geovanni v. Bonesco Luigi (supra) was reached per incuria, rather than the Supreme Court overruling itself. At the centre of this discourse is the interpretation of the Evidence Act. It is trite law, that in interpreting the words used in a statute, the court endeavours to give effect to the plain words of the statute.6 The sections in question here are sections 89 and 90 of the Evidence Act, 2011(as amended). The Act prescribes the circumstances in which secondary evidence could be used in judicial proceedings. The circumstances include, a situation where the original copy of the concerned document is a public document within the meaning of section 102 of the Act.7 The lists of such documents to be regarded as public documents are: public record of private documents and documents forming the official acts or records of official act of sovereign authorities, official bodies and tribunal, public officers, legislative, judicial and executive bodies, whether in Nigeria or elsewhere.8 The other circumstance a public document is admissible is when the copy of the original document qualifies for certification in the manner permitted by the Act.9
Before such documents could be admitted as evidence in any judicial proceedings, such must be a certified true copy of the original and not a photocopy of the certified true copy of the original.10 The effect of the above provision is that it is not all secondary evidence that is admissible in evidence in judicial proceedings.11 Hence, where a party intends to tender a photocopy of a certified true copy of a secondary evidence, that photocopy must be recertified, to portray it as a certified copy of the original copy.
This provision of the Evidence Act has been recurrent in various editions of our Evidence Act.12 Is the court obliged to give interpretation to this provision, as it is? Put differently, is this provision of the Evidence Act ambiguous as to nudge the court not to give it its ordinary meaning?
The law recognizes three rules of statutory interpretation.13 They are the Mischief Rule, the Literal Rule and the Golden Rule. The Mischief Rule is used to explain what was said in the Parliament and not to change what was said. It is normally intended to fish out the mischief which the Parliament wants to avoid. The Literal Rule is construed according to the plain intent of the Parliament. As the name implies, unambiguous and precise intention of the parliament is given effect to, under this rule. The Golden Rule only applies when there is internal disharmony in the statute concerned. The disharmony is resolved by either ignoring the offending provision or introducing provision that will align with the non-offending provision.
Of all the three rules of interpretation of statutes, it does appear that the most appropriate rule to apply in interpreting the provision of the Evidence Act under spotlight, is the Literal Rule. This is because, the provision is quite plain and unambiguous. The subsection recognizes that there are other types of secondary evidence. This is why it narrowed its provision to ", but no other secondary evidence, is admissible. Hence it is cardinal rule of interpretation of a statutory provision that it must be given its clear and ordinary meaning.14 This position is affirmed by the Supreme Court in Ejelikwu v. State15 to the effect that no interpretation of a statute will be geared towards altering the intentions of the draftsman.
RESOLUTION OF THE CONFLICT
The position of the law had been that where there are two conflicting decisions of the Supreme Court, the lower court is at liberty to elect which one to follow.16 But the current position of the law is that when a lower court is faced with a situation where it has to choose which of the conflicting decisions of the Supreme Court it must follow, the court should rely on the later of two or more conflicting decisions of the Supreme Court on a point in a case before it.17 This judicial approach has acquired the force and character of a legal principle, and implicit therein is the assumption that the Supreme Court in rendering a decision that conflicts with its previous decision has, by virtue of its inherent power to depart from or overrule its previous decisions, overruled or departed from that decision.18
However, it is doubtful whether the decision in Cavallotti Geovanni v. Bonesco Luigi, which departed from the earlier decision in Ministry of Lands, Western Nigeria v. Azikiwe, could be said to be in accordance with the principle above. This doubt arises from the fact that the authority of Ministry of Lands, Western Nigeria v. Azikiwe, continues to be cited and relied on by the Supreme Court, even in recent cases19, hence settling the disagreement between the two locus classicus, the principle in Ministry of Lands, Western Nigeria v. Azikiwe, remains the position of the law in that regard.
THE INDIAN EVIDENCE ACT, 2023
A new Evidence Act, known as The Bharatiya Sakshya Adihiniyam, 2023, replaced the old Indian Evidence Act, 1872, on 1st of July, 2024. Section 60 of the new Act is in pari materia with Section 90 of Nigeria's Evidence Act, 2011(as amended). This is a completely new innovation in India's Evidence law. The 1872 Act did not contain such provision. Under the old Act, the rules of evidence were based on traditional legal systems of various social groups and communities and was determined by caste, community, faith and social position. Hence, the 2023 Act, which became operative on July 1, 2024 standardized the concept regarding admissibility of evidence in Indian courts. The provision in section 60 of the Indian law which states that: ".... but no other kind of secondary evidence, is admissible", is an affirmation that section 90(1)(c) of the Nigeria's Evidence Act, 2011(as amended), which has been in our statute books since 1958, is indeed a good piece of legislation.
CONCLUSION
It is our humble opinion that a photocopy of a certified true copy of a public document is different from a certified true copy of the public document. Hence, an already certified copy of a public document must be recertified, if its photocopy is to be tendered in evidence. Its admittance in evidence, without recertification, cannot be said to be in compliance with the spotlighted section of the Evidence Act. It is rather the application of the Mischief Rule or the Golden Rule of interpretation in circumstance where Literal Rule of interpretation of statute is applicable. This is per incuriam.
Footnotes
1. (1986) 4 NWLR (Pt. 36) 525 at 536.
2. (1968) 1 All NLR 49(58-59)
3. Section 90(1)(c) of the Evidence Act
4. (1969) LPELR – 25544(SC)
5. SC 420/1967. Judgment delivered on 3rd October, 1969 (Unreported)
6. Savannah Bank of Nigeria Ltd & Anor. v. Ajilo & Anor (1989) LPELR – 3019(SC)
7. Section 89(e) of the Evidence Act, 2011, as amended
8. Section 102(a) and 102(b) of Evidence Act, 2011, as amended
9. Section 89(f) of the Evidence Act, 2011, as amended.
10. Section 90(1)(c) of the Evidence Act, 2011, as amended
11. Section 87 of the Evidence Act, 2011, as amended.
12. Section 96(2) of the Evidence Act, 1958; section 97(2) of the Evidence Act, Laws of the Federation of Nigeria, 1990
13. Awolowo v. Shagari (1979) LPELR – 653(SC)
14. Buhari v. Yusuf (2003) LPELR – 812(SC
15. (1993) LPELR – 1062(SC)
16. Santana Medical Serv. Ltd v. NPA (1999) 12 NWLR (Pt. 630) 189 at 202C.
17. PDP v. Uche (2023) 9 NWLR (Pt. 1890) 523 at 582F – H.
18. Osakwe v. CFE, Asaba (2010) 10 NWLR (Pt. 1201) 1
19. Sanmi v. State (2019) LPELR – 47418(SC);
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