Whether a public document tendered and marked rejected in the same course of proceedings can still be re-tendered and admitted into evidence

 

REGENCY (OVERSEAS) CO. LTD V. ARIORI & ORS (2019) LPELR-47281(CA)

 "The main issue in controversy is one dealing with whether a public document tendered and marked rejected in the same course of proceedings can still be re-tendered and admitted into evidence. It is the general position of the law that a document tendered and marked rejected is no longer admissible in evidence. See the cases of EBONYI STATE UNIVERSITY & ORS v ETENG (2012) LPELR - 19973 (CA); ADDISON UNITED NIG LTD v LION OF AFRICA INSURANCE LTD (2011) ALL FWLR (PT 594) 130; WASSAH & ORS v KARA & ORS (2014) LPELR - 24212 (SC). Indeed there is no dispute as to the fact that the proper foundation and certification necessary for the admissibility of the document in question was not complied with by the Respondents in the tendering of the document and the Appellant rightly objected to its admissibility which the Court then marked as rejected. The Respondents then went back to put its house in order by getting the document certified and re-tendered same which was now admitted in evidence. The lower Court in admitting of the earlier rejected document made a distinction between when the general position of the law will apply and what the exceptions are. The lower Court in its ruling at page 183 of the record held thus: "at this stage, I must point out that basically a party cannot seek to tender a document which had been rejected earlier in the proceedings, but this position of the law has two broad classifications (1) Where the document sought to be tendered is the proper one but rendered inadmissible by a provision of the law in itself i.e. qua that document itself. (2) Where the document is one which even though proper, must be put in a particular condition before it can be admitted, like secondary evidence of public records, private documents of which public records were kept, bankers books, etc. The document in issue here falls into the second classification above. In respect of those in the first classification, once rejected, they are taken to have been dealt with on their merits. However in respect of those in the second classification, when the document which then was not put in conformity with what type or copy of it the law allows to be tendered, and were so rejected on that ground, it is permissible for an applicant to obtain the proper copy admissible in law and seek to tender it. If an applicant does so and so applies, that will not be taken as a second bite at the cherry and such permissions will be granted. For the earlier decision refusing the tendering of the copy of the same document was based on the fact that the copy of it sought to be tendered was not put in the condition he law stipulates, such documents must be put before they are admissible in court proceedings." In the case of UZOMA v ASODIKE (2009) LPELR - 8421 (CA), this Court gave credence to the position of the lower Court when it held thus: "It is now settled that a wrongly certified or even an uncertified public document can be re-certified and re-tendered in evidence. See UMOGBAI v AIYEMHOBA (2002) FWLR (PT 132) 192 CA, (2002) 8 NWLR (PT 770) 687, and also LAW OF EVIDENCE IN NIGERIA - S.T. Hon at page 287. Poor certification is generally treated as mere irregularity, and the Court can order the document to be properly certified by curing the defect complained of." Also the Apex Court per RHODES-VIVOUR, JSC in the case of TABIK INVESTMENT LTD & ANOR v GTB PLC (2011) LPELR - 3131 (SC) held thus: "The Court of Appeal set aside the judgment of the trial Court because Exhibits A, B1, B2 AND B3, public documents were not paid for. This is correct, but rejecting the document is rather harsh. The learned trial judge ought to have ordered counsel to ensure that the said documents are paid for, and after payment the trial continues." Based on the foregoing, it becomes obvious that the document in question (which there is no dispute as to the fact that it is a public document) was not rejected on the ground that it was inadmissible under the law, but on the ground that it was not tendered in accordance with the proper form required of a public document. By virtue of the provision of Sections 104 & 105 of the Evidence Act, a public document to be considered proper and admissible must first be certified. See also the cases of OKOREAFFIA & ANOR v AGWU & ORS (2010) LPELR - 4708 (CA); AGBALLAAH v NNAMANI (2005) ALL FWLR (PT 245) 1052 at 1078, paras D - E; DANIEL v ADAJI & ORS [1998] 11 NWLR (PT 574); AGBAJE v COKER (2016) LPELR - 40157 (CA). The Respondents in the course of the trial was able to get the document certified and brought into conformity with the proper and acceptable mode of a public document, the lower Court then had no qualms in admitting the earlier rejected document. Having gone to regularise the document, I have no difficulty in aligning my view with that of the lower Court and the Respondents. The tendering of the proper form of the document is akin to the party regularising its position which in no way prejudiced the Appellant. The apex Court also gave credence to this position on the basis that Courts must strive to do substantial justice rather than relying on undue technicalities. See the case of TABIK INVESTMENT LTD & ANOR v GTB PLC (Supra); OGUNNUBI v KOSOKO [1991] 8 NWLR (PT 210) 511; OLAOSEBIKAN v INEC & ORS (2009) LPELR - 8513 (CA); ADELUSOLA & ORS v AKINDE & ORS (2004) LPELR - 120 (SC); EROMOSELE v FRN (2018) LPELR - 43851 (SC). I also have no difficulty in holding that the re-admission of the document is permissible in the interest of justice. It is also now trite that the Court has moved away from the era of placing undue reliance on technicalities at the expense of the substance and justice of a case. See the cases of AKULAKU & ORS v YONGO [2002] 5 NWLR (PT 759) 135; BANK OF THE NORTH LTD & ANOR v C. T. AKPAJA [2002] 13 NWLR (PT 785) 617; DAKUT v DAKUR (2012) LPELR - 7921 (CA). The trial Court rightly held at page 183 of the record thus: "That was more or less a technical defect, and as such once that is cure by bringing a copy of the same document, which is in the condition or with the particulars, the law stipulates for their admission in Court proceedings, they will be allowed in." Therefore admitting the document in question will not in any way prejudice or overreach the case of the Appellant. At the end of the trial, the Court will weigh all evidence and decide the case based on a balance of probability. From the foregoing, once a public document is duly certified, there exists no impediment to its admissibility by the Court."

Per ABIMBOLA OSARUGUE OBASEKI-ADEJUMO ,J.C.A ( Pp. 5-11, paras. E-C )