THE TROUBLE WITH MAGAJI V. NIGERIAN ARMY: ENDING THE LEGAL IMBROGLIO OF ADMISSIBILITY OF PHOTOCOPIES OF CERTIFIED TRUE COPIES.
PAUSE & PONDER:
The certified true copy of a public document relates back to the original public document certified. If the photocopy of the original is inadmissible in evidence, what then should be the fate of the photocopy of the certified true copy?
In this brief legal piece, I would discuss the trouble with the case of MAGAJI V. NIGERIAN ARMY, the trouble with the cases before and after MAGAJI V. NIGERIAN ARMY that pretend to address the trouble and the case that really addressed the trouble.
So, I would break it down this way:
TABLE OF CONTENTS
1. What the Law ought to be
2. Cases that pretend to address the issue
3. The case that really settled the issue
4. The trouble with the case of Magaji v. Nigeria Army
1. WHAT THE LAW OUGHT TO BE
As a rule, what's important is not what the Law ought to be, although the "ought" of law influences in the long run, the "is" of law.
Should photocopies of certified true copies of public documents be admissible in evidence without (further) certification?
To arrive at what the Law ought to be, the erudite pronouncement of Niki Tobi, JSC, in ARAKA V. EGBUE is apposite:
"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, JSC, in ARAKA V. EGBUE (2003) 33 WRN 1, 15-17.
Needless to say, the above pronouncement by Niki Tobi, JSC did not imply that photocopies of certified true copies of public documents require (further) certification. It only emphasized the obvious, that is, certified true copies and not photocopies of public documents are admissible in evidence.
But apart from emphasizing the obvious, it did more. It drew our attention to what the Law ought to be apropos of whether photocopies of certified true copies of public documents ought to be admitted without (further) certification.
And this is why. If photocopies of public documents are not admissible because of the dangers of photo trick as eruditely posited by Niki Tobi, JSC, then photocopies of certified true copies of public documents SHOULD NOT be admissible for the same reason. If photo trick could be applied on photocopies of public documents, photo trick could also be applied on photocopies of certified true copies.
A fortiori, though section 90 (1) (c) of the Evidence Act 2011 (as amended) provides:
"...the only secondary evidence admissible in respect of public documents are certified true copies", without expressly stating that photocopies of certified true copies do not qualify as secondary evidence admissible in law, when one applies the mischief rule to the above section, one would definitely come to conclusion that the mischief the legislature intended to cure was the possibility of manipulating public documents while photocopying them. And if original public documents can be manipulated, certified true copies of public documents can as well be manipulated while being photocopied.
In SAVANNAH BANK OF (NIG.) LTD V. AJILO (1989) LPELR-SC.188/1987, the Apex Court held:
"One of the most useful guides to interpretation is the mischief rule which considers the state of the law before the enactment, the defect which the legislation sets out to remedy or/and prevent, the remedy adopted by the legislature to cure the mischief and the true reason of the remedy. The duty of the court therefore is to adopt such interpretation that will enable the suppression of the mischief and to promote the remedy within the true intent of the legislation".
We await the Supreme Court to apply the mischief rule to section 90 (1)(c) supra.
But until then, this is what the Law OUGHT to be:
PHOTOCOPIES OF CERTIFIED TRUE COPIES NEED CERTIFICATION.
This takes us to the second head.
2. CASES THAT PRETEND TO ADDRESS THE ISSUE
I must admit that I used to think that the following cases had settled the question whether photocopies of certified true copies of public documents are admissible in evidence beyond doubt:
- MINISTER OF LANDS WESTERN NIGERIA V. DR. NNAMDI AZIKWE & OTHERS (1969) ALL N.L.R. 49
- ARAKA v EGBUE 2003 17 NWLR Pt 848 Pg 1 at Pg 4
- ONOBRUCHERE v ESEGINE (1986) 1 NWLR (Pt 19) 799
- NZEKWU v NZEKWU (1989) 2 NWLR (Pt 104) 373
- OGUNLEYE V. AINA (2011) 3 NWLR (1235) 497, 580
- OGBORU V. UDUAGHAN (2011) 2 NWLR (1232) 538
- ABDULLAHI V F.R.N (2016) 10 NWLR (Pt. 1521)475 at Page 499, Paras A-B
- UDO V. STATE (2016) 12 NWLR (PT. 1525) SC1 at page 24, paras. C-G .
- UDOM V. UMANA (NO. 1) (2016) 12 NWLR (PT 1526) 179 at page 235, paras. B & C.
- MAGAJI v NIGERIA ARMY (2008) 8 NWLR Pt 1089 Pg 338 at 396 ( I discussed this under a separate head)
I have carefully read the above cases and have observed that none of them (with the exception of Magaji's case which I intend to discuss separately) addressed the issue. The recurring issue in the above cases was whether photocopies of public documents are admissible in evidence or, put differently, whether a certified true copy of a public document is the only form of secondary evidence admissible.
The issue was not whether photocopies of certified true copies are admissible.
For example in ARAKA V. EGBUE supra, Niki Tobi , JSC while interpreting section 97 (2) (c) of the Evidence Act, Cap 112, LFN 1990 (now section 90 (1) (c) of the Evidence Act, 2011) , held thus:
“It is clear from the provision of section 97 (2) (c) of the Evidence Act that the only acceptable secondary evidence of a public document is a certified true 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."
Like I said early on, the issue was not about the admissibility of photocopies of certified true copies.
Counsel in the case wanted to tender a photocopy of a public document (not a photocopy of a certified true copy). Same was rejected.
It is noteworthy that "but no other kind of secondary evidence is admissible" as used in ARAKA V. EGBUE supra only excludes photocopies of public documents and not photocopies of certified true copies.
Although the foregoing argument in my view, is not what the law ought to be, that (unfortunately) appears to be the position of the law as it is at present (we shall discuss that later)
Since none of the above cases addressed the issue whether photocopies of certified true copies are admissible, we shall therefore turn to the case that clearly addressed the issue?
This takes us to the third head.
3. THE CASE THAT REALLY SETTLED THE ISSUE
To the best of my knowledge, there are at the moment, two Court of Appeal decisions that clearly pronounced on the admissibility or otherwise of photocopies of certified true copies of public documents. They are IFEANYI B. ESIONE V. PHILIP ISIOFIA (2016) LPELR-41060 (CA), and BREDERO LIMITED V. SHYANTER NIGERIA LIMITED & 2 ORS. (2016) LPELR-40205 (CA).
In IFEANYI B. ESIONE V. PHILIP ISIOFIA supra, the Court of Appeal held thus:
"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 (public) document is admissible with or without any need for re-certification.
The above position was reiterated bythe Apex Court, per Ogbuagu, JSC, in the case of
Magaji v. Nigerian Army (2008) 8 NWLR (Pt. 1089)
However, in BREDERO LIMITED V. SHYANTER NIGERIA LIMITED & 2 ORS supra, the court held thus:
"It is noteworthy that the opinion of Ogbuagu, J.S.C., was expressed in a supporting judgment and the issue was not raised at the Supreme Court. Thus, it is with due respect not a binding declaration of the law on this subject as it was an orbiter dictum.
It follows therefore that the binding authority on this subject is the case of Minister of Lands, Western Nigeria Supra. On this authority therefore, Exhibit 3 was inadmissible and ought to have been expunged from the record".
Now, the Court of Appeal decisions mentioned above are manifestly contradictory. So, the question is, which one takes precedence?
IFEANYI B. ESIONE V. PHILIP ISIOFIA supra was decided on Thursday, 14th July, 2016. BREDERO LIMITED V. SHYANTER NIGERIA LIMITED & 2 ORS supra was however decided on Friday, 11th March, 2016. So, we have our answer. IFEANYI B. ESIONE V. PHILIP ISIOFIA supra is latter in time and must take precedence.
But we still have one more issue. Though IFEANYI B. ESIONE V. PHILIP ISIOFIA supra is latter in time, many a lawyer (and judges too) has argued that the pronouncement of Ogbuagu, JSC in the Supreme Court decision of MAGAJI V. NIGERIAN ARMY supra which the Court of Appeal heavily relied on is obiter dictum.
Suppose the said pronouncement is an obiter dictum, would it tell on the bindingness of IFEANYI B. ESIONE V. PHILIP ISIOFIA supra as a precedent?
In DAIRO V. U.B.N. PLC. (2007) NWLR (Pt. 1059) 99 at 158 - 159, paras. C - C (SC); (2007) 7 SC (Pt. II) 97, the Supreme Court held inter alia:
"...where, however, an obiter dictum in one case has been adopted and becomes a ratio decidendi in a latter case, such obiter dictum will be taken to have acquired the force of a ratio decidendi and would therefore become binding".
So, to this end, suppose the pronouncement of Ogbuagu, JSC in MAGAJI V. NIGERIAN ARMY supra is an obiter dictum, same has acquired the status of a binding ratio.
The next question is whether the pronouncement of Ogbuagu, JSC is an obiter dictum. This takes us to the fourth head.
4. THE TROUBLE WITH THE CASE OF MAGAJI V. NIGERIAN ARMY
This subheading is indubitably, the pièce de résistance of this article.
What is the trouble with MAGAJI V. NIGERIAN ARMY?
Simply put, the only trouble is the pronouncement of Ogbuagu, JSC that photocopies of certified true copies of public documents need no (further) certification.
I cannot for the life of me cotton on to the reason given by some of my learned friends ( and judges alike) as to why the pronouncement of Ogbuagu, JSC is not an obiter dictum.
I have carefully read the case of MAGAJI V. NIGERIAN ARMY supra wherein five issues were raised for determination.
Out of the five issues, only the fourth issue is relevant for the purpose of this discussion.
Issue No. 4:
"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 TENDERED FROM THE BAR. (Grounds 8 &. 9)". Emphasis mine.
The above issue four (and all other issues) was formulated by the Appellant's counsel, Clarke, SAN, and adopted by the Respondent's counsel, Adamu, Esq.
From the said issue four, two sub issues can be further formulated to aid our understanding:
1. Whether a "confessional statement" obtained under duress is admissible
2. Whether a "confessional statement" can be tendered from the bar.
In resolving the said issue four (sub issue 2), the court held per Niki Tobi, JSC, delivering the leading judgement:
"... Rule 57 of the Rules of Procedure (Army) 1972, MM; 1972 provides that a written statement which is admissible in accordance with the provisions 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..."
In other words, a "confessional statement" according to the Rule, can be tendered from the bar.
Again, in resolving issue four (sub issue 1) the court held per Ogbuagu, JSC:
"...as stated by the court below, the issue of duress raised by the defence counsel (now the Appellant's counsel) was in the written Address and therefore, there could not have been procedurally, trial within trial..."
In other words, the issue of duress was not raised appropriately as address of counsel, no matter how wonderful, cannot take the place of evidence.
The foregoing sub issues, with due respect to Ogbuagu, JSC, were the only questions of law necessary in order to ADEQUATELY resolve issue four.
But, surprisingly, Ogbuagu, JSC, went on to bring in the issue whether photocopies of certified true copies of public documents are admissible.
In the words of the Learned Law Lord:
"...Exhibit 1 although a photo copy IS/WAS CERTIFIED. It is now settled that photo copies 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. F.R.A. Williams), it was held that a photo copy of a 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..." (emphasis mine)
It is clear from the pronouncement of Ogbuagu, JSC quoted above, that what was before the court was a certified true copy (ie Exhibit 1) and not a photocopy of a certified true copy. Therefore, the reason for admitting the said Exhibit 1 in evidence (ratio decidendi) is because it was a certified true copy and no other reason. Therefore the finding that "photocopies of certified true copies of public documents are admissible without need for (further) certification" is completely unconnected with the issues, facts and questions before the court.
Now, suppose what the Prosecution (Respondent) wanted to tender was a photocopy of a certified true and the Defence (Appellant's counsel) raised an objection to its admissibility, do you not think that the foregoing pronouncement by Ogbuagu, JSC would have been apposite? I think so.
An obiter dictum is loosely analogous to Ignoratio Elenchi (the fallacy of irrelevant conclusion)
The nature of the fallacy consists in substituting for a certain issue another which is more or less closely related to it, and addressing the substituted issue.
The issue for determination is reflected in the fourth issue formulated and adopted by the Appellant and the Respondent respectively. The said issue was substituted for another issue hence, the obiter dictum.
Edozie, JSC in the case of AIC Ltd v. NNPC (2005) 11 NWLR (pt. 937) 563 at 589, held as follows:-
"obiter dicta reflect, inter alia, the opinion of the judgment of the Judge which does not embody the resolution of the court. THE EXPRESSION OF JUDGE IN A JUDGMENT MUST BE TAKEN WITH REFERENCE TO THE FACTS OF THE CASE WHICH HE IS DECIDING THE ISSUES CALLING FOR DECISION AND ANSWERS TO THOSE ISSUES." (emphasis mine)
In ATANDA v. HON. COMMISSIONER FOR LANDS
AND HOUSING, KWARA STATE & ANOR (2017) LPELR-42346(SC), Sanusi, JSC held:
"...the decision of the lower Court was not linked with the remarks of the learned justice of the Court below at all. That is to say, it is not ratio decidendi of the decision which is the subject matter of this appeal. On the other hand, "ratio decidendi" is the reason on which the Court based its judgment or it is the principle of the decision, unlike obiter dictum..."
For the avoidance of doubt, the decision reached by the court on issue four was that Exhibit 1, a certified true copy (not a photocopy of a certified true copy) was admissible. And the reasons for the decision (rationes decidendi) was because the said Exhibit 1 was:
1. Not obtained under duress
2. Admissible under the Rule 57 of the Rules of Procedure (Army) 1972, MM; 1972
Pray tell, can one correctly say that the remark of Ogbuagu, JSC on the admissibility of photocopies of certified true copies is the ratio decidendi for the decision that Exhibit 1, a certified true copy, is admissible in evidence?
With all due respect, that remark is the quintessential obiter dictum, the epitome of remarks by the way!
What remains to be discussed is the legal effect of obiter dicta.
"An obiter dictum of the Supreme Court is clearly not binding on the court or indeed on the lower courts, for obiter dicta, though they may have considerable weight, are not rationes decidendi and are therefore not conclusive authority. Where, however, an obiter dictum in one case has been adopted and becomes a ratio decidendi in a latter case, such obiter dictum will be taken to have acquired the force of a ratio decidendi and would therefore become binding.
The question whether a decision or pronouncement of the Supreme Court is binding on the Court of Appeal depends on whether that decision or pronouncement is an obiter dictum or was made per incuriam. If the pronouncement is a mere obiter dictum, then, of course, it cannot be binding, but if it was made per incuriam, it will nevertheless be binding on the Court of Appeal in accordance with the principle of stare decisis until the error in the judgment has been corrected".
SEE: DAIRO V. U.B.N. PLC. (2007) NWLR (Pt. 1059) 99 at 158 - 159, paras. C - C (SC); (2007) 7 SC (Pt. II) 97
According to Robert S. Summers in ""Is" and "Ought" in Legal Philosophy, 'the law as it is' and 'the law as it ought to be' are distinguishable.
I have stated 'the law as it ought to be' early on and noted that 'is' overrides 'ought' in our legal jurisprudence.
'The law as it is' is as stated in the Court of Appeal case of IFEANYI B. ESIONE V. PHILIP ISIOFIA supra that photocopies of certified true copies of public documents need no (further) certification. This is so because the pronouncement by Ogbuagu, JSC to the same effect in the Supreme Court decision of MAGAJI V. NIGERIAN ARMY supra, though an obiter dictum, was adopted by the Court of Appeal and is therefore binding.
Could this possibly be the last conflicting decision emanating from our courts?
It's anybody's guess!
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