(2017) LPELR-43205(CA)lawpavilionpersonal.com/ipad/books/43205.pdfdisposition of property has been reduced to the form of a document or series of documents, no evidence may be given

BALA v. GWARAM & ORS

CITATION: (2017) LPELR-43205(CA)

In the Court of AppealIn the Jos Judicial Division

Holden at Jos

ON WEDNESDAY, 31ST MAY, 2017Suit No: CA/J/53/2015

Before Their Lordships:

ADZIRA GANA MSHELIA Justice, Court of AppealADAMU JAURO Justice, Court of AppealUCHECHUKWU ONYEMENAM Justice, Court of Appeal

BetweenTIJJANI BALA(Suing for himself and on behalf of all Heirs of LateMalam Bala Abdullahi)

- Appellant(s)

And1. ALHAJI SABO GWARAM2. ALHAJI HAMIDU SAIDU GHANI3. ALHAJI YAKUBU ABDULLAHI

- Respondent(s)

RATIO DECIDENDI

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1. EVIDENCE - BURDEN OF PROOF/ONUS OF PROOF: Nature of burden of proof"The general rule in civil cases is that the burden of proof rests upon the party who substantially assertsthe affirmative before the evidence is gone into. The position therefore is that the burden of proof lies onthe person who would fail, assuming no evidence had been adduced on either side. Also in respect ofparticular facts, the burden rests on the party against whom judgment would be given if no evidence wasadduced in respect of those facts. Once that party produces the evidence that would satisfy the Court thenthe burden shifts on the party against whom judgment would be given if no more evidence was adduced.ALHAJI SAFIANU AMINU & ORS v. ISIAKA HASSAN & ORS (2014) LPELR SC.44/2002; OYOVBIARE vOMAMURHOMU (1999) 10 NWLR (PT. 621) 23 AT 34-35 (SC)To hand down in clarity of words, the nature and burden of proof in civil matters, the Supreme court inOKOYE & ORS V. NWANKWO (2014) LPELR- SC. 234/2004; held:"The burden of proof in civil cases has two distinct meanings, viz. (a) The first is the burden of proof as amatter of law and the pleadings usually referred to as legal burden or the burden of establishing a case.;(b) The second is the burden of proof in the sense of adducing evidence usually described as the evidentialburden. While the legal burden of proof is always stable or static the burden of proof in the second sensei.e. evidential burden of proof may oscillate constantly according as one scale of evidence or the otherpreponderates. In a civil case, while the burden of proof in the sense of establishing the case initially lieson the Plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift from theplaintiff to the defendants and vice-versa as the case progresses. FEDERAL MORTGAGE FINANCE LTD VEKPO (2004) 2 NWLR (pr. 556) 100 AT 130 PER OLAGUNJU JCA; BALOGUN v. LABIRAN (1988) 3 NWLR (PT.80) 66; NWOSU V UDEOJA (1990) 1 NWLR (PT. 125) 188; ELEMO v. OMOLODE (1968) NMLR 359; CHIGWUv. BAPTIST CONVENTION (1958) 2 ALL NLR 294; ADEGOKE V. ADIBI (1992) 5 NWLR (PT. 242) 410." PERPETER-ODILI J.S.C. (pp. 36-37, PARAS. D-B)."Per ONYEMENAM, J.C.A. (Pp. 12-14, Paras. C-B) - read incontext

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2. EVIDENCE - PUBLIC DOCUMENT: Condition precedent to admissibility of public document"...the Respondents' counsel in his address at the trial Court submitted that Exhibits PL1 and PL11 heavilyrelied on by the Appellant in proof of his case were inadmissible because they were not certified truecopies of the order of the Kobi Sharia Court. This view was upheld by the trial Court and as such noprobative value was accorded the said exhibits. The proof of the title documents tendered as Exhibits PL1and PL11 was quite material to the success of the Appellant's case. But with the facts and circumstancesof the instant appeal, I cannot fault the finding of the trial Court on Exhibits PL1 and PL11 which beyondany dispute are public documents; and especially in the light of Section 104 of the Evidence whichprovides thus:"104(1) Every public officer having custody of a public document which any person has a right to inspectshall give that person on demand a copy of it on payment of legal fees prescribed in that respect, togetherwith a certificate written at the foot of such copy that it is a true copy of such document or part of it as thecase may be.(2) The certification mentioned in Subsection (1) of this Section shall be dated and subscribed by suchofficer with his name andhis official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, assuch copies so certified shall be called certified copies.(3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall bedeemed to have the custody of such documents within the meaning of this section.From the wordings of Subsection (2) (supra), a document can only be called a certified copy of a publicdocument if, in addition to the "payment of legal fees prescribed in that respect, together with a certificatewritten at the foot of such copy that it is a true copy." (Subsection 1, supra), it (the certificate) "is... datedand subscribed by such officer with his name and his official title"... Essentially, any document that fallsbelow the above mandatory requirement is inadmissible as a certified copy of a public document. UDOMGABRIEL EMMANUEL V. UMANA OKON UMANA & ORS (2016) LPELR- SC. 1/2016; OMISORE V AREGBESOLAAND ORS (2015) 15 NWLR (PT. 1482) 205, 294; NDAYAKO V. MOHAMMED (2006) 17 NWLR (PT. 1009) 676;TABIK INVESTMENT LTD V. GUARANTY TRUST BANK PLC (2011) LPELR- 3731 (SC); NWABUOKU V.ONWORDI (2006) ALL FWLR (PT. 331) 1236.To drive home the importance and the fact that the proper certification of a public document as requiredby the law cannot be dispensed with; His Lordship Nweze JSC, stated as follows:"The whole essence of the Court's insistence of the scrupulous adherence to the above certificationrequirement of public document is to vouchsafe their authenticity vis-a-vis the original copies, to thirdparties, G and T. I. Ltd and Anor v. Witt and Bush Ltd (2011) LPELR -1333 (SC) 42, C-F. That explains why,in the absence of the original document; only such properly certified copies are admissible as secondarycopies of public documents "but no other kind of secondary evidence," G AND T.I. LTD AND ANOR v WITTAND BUSH LTD (SUPRA); ARAKA V EGBUE (2003) 33 WRN 1; MINISTER OF LANDS, WESTERN NIGERIA V.AZIKWE (1969) 1 ALL NLR 49; NZEKWU V NZEKWU (1989) 2 NWLR (PT. 104) 373 TABIK INVESTMENT LTDAND ANOR V. GUARANTEE TRUST BANK PLC (2011) 6 MJSC (PT. 1) 1, 21; DAGACI OF DERE V. DAGACI OFEBWA (2006) 30 WRN 7; ITEOGU V LPDC (2009) 17 NWLR (PT. 171) 614, 634 ETC. Thus, although theoriginal copies of public documents themselves are admissible, ONOBRUCHERE AND ANOR V ESEGINE(1986) 7 NSCC 343 AT 350; ITEOGU V. LPDC (2009) 17 NWLR (PT. 1171) 614, 634; the only pieces ofsecondary evidence in respect of the original of such public documents that are admissible are thecertified copies thereof but no other secondary evidence, MINISTER OF LANDS W.N. V AZIKIWE (1969) 1ALL NLR 49; ONOBRUCHERE AND ANOR. V. ESEGINE (SUPRA); ARAKA V. EGBUE (SUPRA); SPDC V ASWANITEXTILE INDUSTRIES LTD (1991) 3 NWLR (PT. 180) 496, 505; OJIBAH V OJIBAH (1991) 5 NWLR (PT. 191)296, 312; NZEKWU (1989) 2 NWLR (PT. 104) 373; TABIK INVESTMENT LTD AND ANOR V. GUARANTEETRUST BANK PLC (SUPRA); DAGACI OF DERE V DAGACI OF EBWA (SUPRA); ITEOGU V LPDC (SUPRA) 614,634 etc. put differently, in the absence of the original documents themselves, only such properly certifiedcopies are admissible as secondary copies of such public documents "but no other kind of secondaryevidence." G AND T.I. LTD AND ANOR V. WITT AND BUSH LTD (2011) LPELR- 1333 (SC) 42 C-E; ARAKA V.EGBUE (SUPRA); MINISTER OF LANDS, WESTERN NIGERIA V. AZIKIWE (SUPRA); NZEKWU V NZEKWU(SUPRA) TABIK INVESTMENT LTD AND ANOR V. GUARANTEE TRUST BANK PLC (SUPRA); DAGACI OF DERE VDAGACI OF EBWA (SUPRA); ITEOGU V LPDC (SUPRA) ETC." SEE: EMEKA V. CHUBA-IKPEAZU & 7 ORS (2017)LPELR- SC. 149/2016; (PP. 61-65, PARA F-C)There is nothing more to say on Exhibits PL1 and PL11 which are public documents but to uphold thefinding of the trial Court that in so far as the said public documents were not certified in accordance withSection 104 of the Evidence Act; the same are inadmissible in law and were wrongly admitted as in thisappeal; the learned trial Judge was right when he failed to accord any probative value to them."PerONYEMENAM, J.C.A. (Pp. 14-19, Paras. F-C) - read in context

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3. EVIDENCE - PUBLIC DOCUMENT: Whether the only admissible secondary evidence of public documentsis a certified true copy of same"On Exhibits PL1 and PL11, I had dealt with them while resolving issue 1. I will only add here that assecondary evidence of the order of the Kobi Sharia Court, they are admissible to prove the said order onlyif they are certified true copies as required by Section 105 of the Evidence Act and in compliance withSection 104 of the Evidence Act since the same are public documents by virtue of Section 102 of theEvidence Act. While resolving issue 1, I came to the conclusion that Exhibits PL1 and PL11 which are publicdocuments were not certified in accordance with Section 104 of the Evidence Act, 2011. Failure to becertified, they cannot in law be proof of the order of Kobi Sharia Court. Accordingly, the learned trial Judgewas right when he did not rely on them to find for the existence of the order of the Kobi Sharia Court."PerONYEMENAM, J.C.A. (P. 26, Paras. A-E) - read in context

4. EVIDENCE - DOCUMENTARY EVIDENCE: Ways of proving the contents of a document"Section 128 (1) provides:"1. When a judgment of a Court or any other judicial or official proceeding, contract or any grant or otherdisposition of property has been reduced to the form of a document or series of documents, no evidencemay be given of such judgment or proceeding or of the terms of such contract, grant or disposition ofproperty except the document itself, or secondary evidence of its contents in cases in which secondaryevidence is admissible under this Act; nor may the contents of any such document be contradicted,altered, added to or varied by oral evidence." By the above provision of the Evidence Act, a party seekingto establish the existence of a judgment of a Court must produce the said judgment or a secondaryevidence of the same as no oral evidence is allowed to be given on the said judgment in its proof."PerONYEMENAM, J.C.A. (P. 25, Paras. A-F) - read in context

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UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the

Leading Judgment): This appeal is against the decision of

the Bauchi State High Court delivered on 21st May, 2014 in

Suit No. BA/115/2012; wherein Hon. Justice A. H. Suleiman

dismissed the Appellant's claims in its entirety and awarded

the cost of N25,000.00 in favour of the 1st & 2nd

Respondents.

By a writ of Summons dated 13th July, 2012, the Appellant

as plaintiff sued the Respondents before the trial Court.

The Appellant in his Statement of Claim claimed the

following reliefs against the Respondents jointly and

severally thus:

A) A DECLARATION that the purported transaction

between the 3rd Defendant and the 2nd Defendant on

one hand and between the 2nd Defendant and the 1st

Defendant on the other hand over shop No. B-583

Kobi Street Bauchi when Suit No. CVA/32/2002 was

still pending is null, void and of no effect whatsoever.

B) A DECLARATION that the Plaintiffs are the legal

owners of shop No. B-583 Kobi Street, Bauchi is by

virtue of judgment of Upper Sharia Court II Bauchi.

C) AN ORDER of immediate ejection of the 1st

Defendant from shop No. B-583 lying and

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situate at Kobi Street, Bauchi.

D) A PERPETUAL INJUNCTION restraining the

Defendants from interfering in whatever manner

possible with the peaceful possession of shop No.

B-583 lying and situate along Kobi Street, Bauchi

belonging to the Plaintiffs.

E) Five Hundred Thousand Naira (N500,000.00)

general damages against the 1st Defendant for

trespass.

F) One Hundred and Fifty Thousand Naira

(150,000.00) legal fee paid by the Plaintiff to their

solicitors to prosecute this suit.

G) Cost of the action.

The dispute is on the ownership of shop No. B-583 lying

and situate along Kobi Street, Bauchi, Bauchi State. The

case of the Appellant is that he and the remaining heirs of

his father Bala Abdullahi who was the son of late Mallam

Abdullahi whose residence was No. B-583 Kobi Street,

Bauchi in front of which house a shop known as Shop No.

B-583 Kobi Street was built are the owners of the said shop

by virtue of inheritance. The Appellant said that upon the

death of Mallam Abdullahi in 2001, the estate of the

deceased was distributed by Kobi Sharia Court vide Suit

No. 002/GADO/2002 on 18th March, 2002 and the said

shop was given to Mallam Bala

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Abdullahi (the father of the Appellant) as his own share of

inheritance. It is also the Appellant's case that the 3rd

Respondent who is a brother to the Appellant's father was

dissatisfied with the distribution of the estate, he therefore

appealed to the Upper Sharia Court II, Bauchi. That while

the said appeal was still pending, Mallam Bala died; that,

as a result, the 3rd Respondent and his brothers came back

home and re-distributed the estate, wherein he took over

the said shop No. B-583 for himself and promptly sold same

to the 2nd Respondent who in turn sold to the 1st

Respondent who is now the occupant of the said shop.

It is further the Appellant's case that in 2012, the Upper

Sharia Court concluded the appeal filed by the 3rd

Respondent wherein it affirmed the decision of the Sharia

Court Kobi and directed the said Sharia Court Kobi to issue

title documents of its earlier decision in suit No.

002/GADO/2002 to all the heirs of late Mallam Abdullahi

and a writ of possession was issued to the Appellant.

The case of the Respondents at the trial Court is that the

said shop No. B-583 Kobi Street, Bauchi rightfully belongs

to the 3rd Respondent who

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built same and later exercised his power of sale as a bona

fide owner to sell same to one Alh. UBA IBRAHIM who later

sold to the 2nd Respondent and the 2nd Respondent finally

sold to the 1st Respondent who had been in absolute

possession and enjoying a peaceful possession of same

since 2005 without any challenge from anyone whatsoever.

It is also the case of the Respondents that in 2010 some

cousins of the Appellant numbering about 9 led by one

Sulaiman Ibrahim showed their dissatisfaction with the sale

transaction of the said shop between 2nd and 1st

Respondent by instituting an action against them before

the Upper Sharia Court II, Bauchi in suit No. CVF/41/2010

between SULAIMAN IBRAHIM & ORS. V. ALH. SABO

GWARAM & ALH. HAMIDU S. GANI, seeking a

declaration that the sale transaction between the 2nd and

1st Respondents was a nullity; that the said Upper Sharia

Court II, in its judgment affirmed the legality of the

transaction and dismissed the claims of the Appellant's

cousins and the said decision in Suit No. CVF/41/2010 is

still subsisting having neither been upturned nor quashed

by any superior or appellate Court; that having lost the

case through

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his cousins, the Appellant instituted this action before the

trial Court seeking the reliefs reproduced above as

contained in his statement of claim dated 8th July, 2012.

See pages 3-6 of the record.

The Respondents entered their appearance, but only 1st

and 2nd Respondents filed their separate statements of

defence, the 3rd Respondent did not file any defence. At

trial, the Appellant led evidence and called one other

witness who testified for him and tendered four (4)

documents marked as Exhibits PL1, PL2, PL3 and PL4

(Exhibit PL I is an Hausa version of a right of possession

issued by Kobi Sharia Court.; Exhibit PL II is the English

transaction of PL1.; Exhibit PL3 is a quit notice served on

the 1st Respondent, while PL4 is the reply to PL3). The

Appellant then closed his case.

The Respondents on their part called 3 witnesses with 1st

& 2nd Respondents as PW2 and PW3 and one other and

tendered four (4) documents marked as Exhibits DL1,

DL1A, DL2 and DL2A. (Exhibits DL1 is the record of

proceedings of Upper Sharia Court II, Bauchi in Suit No.

CVF/41/2010.; Exhibit DL1A is the English translated

version of Exhibit DL1. While Exhibit D12 is a writ

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of possession issued to the 1st Respondent by the Upper

Sharia Court II, Bauchi in Suit No. CVF/41/2010 dated 26th

September, 2011 and Exhibit DL2A is the English

translated version of Exhibit DL2) and the Respondents

closed their case. The 3rd Respondent represented himself

throughout the trial, but he neither filed any Defence nor

led any evidence and did not cross examine any of the

witnesses called by either the Appellant or the 1st and 2nd

Respondents, but rather rested his case on the 1st and 2nd

Respondents' case. At the conclusion of the hearing, parties

filed and exchanged their respective addresses and adopted

same on 21st March, 2014.

In its considered judgment delivered on 21st May, 2014,

the learned trial Judge dismissed the case of the Appellant

in its entirety and awarded the cost of N25,000.00 in favour

of the 1st and 2nd Respondents. Dissatisfied with the said

judgment the Appellant now appealed to this Court vide a

Notice of appeal dated and filed on 20th August, 2014 with

3 Grounds of appeal. The Appellant and 1st and 2nd

Respondents filed and exchanged their respective briefs of

argument according to the Rules of this Court. The 3rd

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Respondent did not file any brief. Although he was on 16th

March, 2017 personally served with the hearing notice for

the proceedings of 23rd March, 2017; he did not attend

Court on said date neither was any reason adduced for his

absence. Thereupon the Court heard the appeal on the

briefs of the Appellant; and the 1st and 2nd Respondents on

23rd March, 2017. The referred parties adopted their

respective briefs on the said date.

In the Appellants' brief settled by Mr. S.M. BAKARO Esq.

two (2) issues were nominated for the determination of this

appeal. The issues are:

1) Whether from the evidence of PW1 and PW2 it was

established that the transaction between 3rd and 2nd

Respondents was done in violation/against a valid

order of Court as delivered by Kobi Sharia Court in

Suit No. 002/GADO/2002 delivered in 2002 (Grounds

1, 2 and 3)

2) Whether considering the evidence of PW1 & PW2

and Exhibits PL1 and PL2 there was indeed Suit No.

002/GADO/2002 that distributed the estate of Mallam

Abdullahi grandfather of the Appellant? (Ground 1)

On his part, learned Counsel for the 1st and 2nd

Respondents, Mr. M. M. MAIDOKI Esq. who settled the

brief on

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behalf of the Respondents adopted the two issues

nominated by the Appellant reproduced above and further

raised another issue as the 3rd issue for determination. The

additional issue raised by the Respondents' Counsel is

hereunder reproduced as follows:

3. Whether from the facts, evidence placed before the

trial Court and the surrounding circumstances of this

matter, the decision of the trial Court is liable to be

set aside.

I shall determine the appeal based on the 2 issues raised by

the Appellant as the same will resolve the dispute between

the parties. The 2 issues shall be resolved in the order they

are set out above.

SUBMISSIONS ON ISSUE NO. 1

"Whether from the evidence of PW1 and PW2 it was

established that the transaction between 3rd and 2nd

Respondents was done in violation/against a valid

order of Court as delivered by Kobi Sharia Court in

Suit No. 002/GADO/2002 delivered in 2002"

Mr. S.M. BAKARO Esq. learned Counsel for the Appellant

urged the Court to answer this issue in the affirmative. He

contended that the Appellant as PW1 established via his

statement on oath and Exhibits PL1 and PL2 that the shop

(subject matter of

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this appeal) was indeed the share of inheritance of their

late father Mallam Bala who died in 2003 in line with

paragraph 5 of the Appellant's statement of claim. He

submitted that where a party leads evidence in line with his

pleading and tendered documentary evidence to fortify the

oral evidence then the trial Court would have no option but

to accept the piece of evidence as true. He referred to

Section 138(1) AND (2) OF THE EVIDENCE ACT, 2011 (AS

AMENDED) AND THE CASES OF ORGAN V. NLNG LTD

(2013) 16 NWLR (PT. 1381) PAGE 542; AKANDE V.

ADISA (2012) 15 NWLR (PT. 1324) PAGES 558;

REPTICO S. A. GENEVA V. AFRIBANK (NIG) PLC

(2013) 14 NWLR (PT. 1373) PAGE 217.

Learned Counsel further contended that even though the

1st Respondent is in possession of the shop, he has not

shown better title. He referred to: ISEOGBEKUN VS

ADELAKUN (2013) 2 NWLR (PT. 133) 178 and urged

the Court to resolve this issue in favour of the Appellant.

Responding, learned Counsel for the 1st and 2nd

Respondents urged the Court to answer this issue in the

negative, contending that based on the pleadings and the

evidence led by the parties, the Appellant did not establish

his case on

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the preponderance of evidence. He argued that the

Appellant pleaded and heavily relied on the purported

decisions of Kobi Sharia Court in Suit No 002/GADO/2002

and the decision of Upper Sharia Court II, Bauchi in Suit

No. CVF/32/2002, but could not produce either the record

of proceedings or the Certified True Copies of the said

judgments at the trial Court. On the other hand, the

learned Counsel referred to paragraphs 4-8 of the 2nd

Respondents statement of defence and his statement on

oath to the effect that the 3rd Respondent built the shop in

dispute and sold it to one Alhaji Uba Ibrahim who later sold

to the 2nd Respondent who in turn sold same to the 1st

Respondent. He further referred to the evidence of PWII,

under cross-examination at page 84 of the record wherein

he stated that he knows the shop in dispute alongside 2

other shops to have been built by the 3rd Respondent. He

also referred to Exhibit DL1 and DL2 which is unchallenged

decision of a Court of competent jurisdiction. The learned

Counsel for the Respondents cited the case of SAKATI V.

BAKO (2015) 14 NWLR (PT. 1480) 537; and submitted

that the provisions of Section 138(a) and (b) of the

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Evidence Act and all the authorities cited by the Appellant's

Counsel on this issue only go to strengthen the

Respondents' argument and urged the Court to resolve this

issue in favour of the Respondents.

RESOLUTION OF ISSUE NO. 1

The Appellant's contention at the trial Court is that by Suit

No: 002/GADO/2002, that Malam Hamza Umar, a Principal

Sharia Judge of Kobi Sharia Court distributed their grand

father Mallam Abdullahi's estate to his heirs after his

demise in 2001. That by such distribution, their father Late

Alhaji Bala was given the middle shop out of the three

shops lying and situate at No: B- 583 Kobi Street.

Dissatisfied with the decision, the 3rd Respondent appealed

to the Upper Sharia Court 11, but that while the appeal was

still pending and upon the death of their father; the

remaining heirs of their grand father redistributed the

estate and now gave the middle shop which had been given

to their late father to the 3rd Respondent who immediately

sold the same to the 2nd Respondent who in turn resold the

said shop to the 1st Respondent who is currently in

possession of the shop. The Appellant also pleaded and

testified that the Upper

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Sharia Court 11 in Appeal No: CVA/32/2002 affirmed the

decision of the Kobi Sharia Court. They pleaded and

tendered the title documents (Takardan Izinin Mallaka)

with their certified translations.

Based on the foregoing, the Appellant seeks this Court to

find that by their evidence before the trial Court they

established that the transaction between the 3rd and 2nd

Respondents was done in violation of a valid order of Kobi

Sharia Court in Suit No. 002/GADO/2002 delivered on 28th

March, 2002.

The general rule in civil cases is that the burden of proof

rests upon the party who substantially asserts the

affirmative before the evidence is gone into. The position

therefore is that the burden of proof lies on the person who

would fail, assuming no evidence had been adduced on

either side. Also in respect of particular facts, the burden

rests on the party against whom judgment would be given if

no evidence was adduced in respect of those facts. Once

that party produces the evidence that would satisfy the

Court then the burden shifts on the party against whom

judgment would be given if no more evidence was adduced.

ALHAJI SAFIANU AMINU & ORS v. ISIAKA

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H A S S A N & O R S ( 2 0 1 4 ) L P E L R

SC.44/2002;OYOVBIARE v OMAMURHOMU (1999) 10

NWLR (PT. 621) 23 AT 34-35 (SC)

To hand down in clarity of words, the nature and burden of

proof in civil matters, the Supreme court in OKOYE & ORS

V. NWANKWO (2014) LPELR- SC. 234/2004; held:

"The burden of proof in civil cases has two distinct

meanings, viz. (a) The first is the burden of proof as a

matter of law and the pleadings usually referred to as legal

burden or the burden of establishing a case.; (b) The

second is the burden of proof in the sense of adducing

evidence usually described as the evidential burden. While

the legal burden of proof is always stable or static the

burden of proof in the second sense i.e. evidential burden

of proof may oscillate constantly according as one scale of

evidence or the other preponderates. In a civil case, while

the burden of proof in the sense of establishing the case

initially lies on the Plaintiff, the proof or rebuttal of issues

which arise in the course of proceedings may shift from the

plaintiff to the defendants and vice-versa as the case

progresses. FEDERAL MORTGAGE FINANCE LTD V

EKPO (2004) 2 NWLR (pr. 556) 100 AT 130

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PER OLAGUNJU JCA; BALOGUN v. LABIRAN (1988) 3

NWLR (PT. 80) 66; NWOSU V UDEOJA (1990) 1 NWLR

(PT. 125) 188; ELEMO v. OMOLODE (1968) NMLR

359; CHIGWU v. BAPTIST CONVENTION (1958) 2 ALL

NLR 294; ADEGOKE V. ADIBI (1992) 5 NWLR (PT.

242) 410." PER PETER-ODILI J.S.C. (pp. 36-37,

PARAS. D-B)

In the instant appeal the Appellants asserted in the

affirmative that the shop the 3rd Respondent sold to the

2nd Respondent and which is occupied by the 1st

Respondent is the same one both the Kobi Sharia Court and

the Upper Sharia Court 11, Kobi; distributed and affirmed

its distribution to the late Alhaji Bala Abdullahi; whose

lawful heir the Appellant is. The burden of proof of the facts

therefore rested on the Appellant at the trial Court. To

discharge the said burden, the Appellant in line with their

pleadings gave evidence as has been summarised above in

this judgment. They tendered amongst others Exhibits PL1

and PL11. Exhibit PL1 is the Hausa version of the title

documents (Takardan Izinin Mallaka); as per the alleged

Kobi Sharia Court inheritance distribution. Exhibit PL11 is

the translated version.

On this the Respondents’ counsel in his address at

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the trial Court submitted that Exhibits PL1 and PL11

heavily relied on by the Appellant in proof of his case were

inadmissible because they were not certified true copies of

the order of the Kobi Sharia Court. This view was upheld by

the trial Court and as such no probative value was

accorded the said exhibits. The proof of the title documents

tendered as Exhibits PL1 and PL11 was quite material to

the success of the Appellant's case. But with the facts and

circumstances of the instant appeal, I cannot fault the

finding of the trial Court on Exhibits PL1 and PL11 which

beyond any dispute are public documents; and especially in

the light of Section 104 of the Evidence which provides

thus:

"104(1) Every public officer having custody of a public

document which any person has a right to inspect shall give

that person on demand a copy of it on payment of legal fees

prescribed in that respect, together with a certificate

written at the foot of such copy that it is a true copy of such

document or part of it as the case may be.

(2) The certification mentioned in Subsection (1) of this

Section shall be dated and subscribed by such officer with

his name and

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his official title, and shall be sealed, whenever such officer

is authorized by law to make use of a seal, as such copies

so certified shall be called certified copies.

(3) An officer who, by the ordinary course of official duty, is

authorized to deliver such copies, shall be deemed to have

the custody of such documents within the meaning of this

section.

From the wordings of Subsection (2) (supra), a document

can only be called a certified copy of a public document if,

in addition to the "payment of legal fees prescribed in that

respect, together with a certificate written at the foot of

such copy that it is a true copy." (Subsection 1, supra), it

(the certificate) “is… dated and subscribed by such officer

with his name and his official title"... Essentially, any

document that falls below the above mandatory

requirement is inadmissible as a certified copy of a public

document. UDOM GABRIEL EMMANUEL V. UMANA

OKON UMANA & ORS (2016) LPELR- SC. 1/2016;

OMISORE V AREGBESOLA AND ORS (2015) 15 NWLR

(PT. 1482) 205, 294; NDAYAKO V. MOHAMMED

(2006) 17 NWLR (PT. 10009) 676; TABIK

INVESTMENT LTD V. GUARANTY TRUST BANK PLC

(2011) LPELR- 3731 (SC);

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NWABUOKU V. ONWORDI (2006) ALL FWLR (PT.

331) 1236.

To drive home the importance and the fact that the proper

certification of a public document as required by the law

cannot be dispensed with; His Lordship Nweze JSC, stated

as follows:

"The whole essence of the Court's insistence of the

scrupulous adherence to the above certification

requirement of public document is to vouchsafe their

authenticity vis-a-vis the original copies, to third parties, G

and T. I. Ltd and Anor v. Witt and Bush Ltd (2011)

LPELR -1333 (SC) 42, C-F. That explains why, in the

absence of the original document; only such properly

certified copies are admissible as secondary copies of

public documents "but no other kind of secondary

evidence," G AND T.I. LTD AND ANOR v WITT AND

BUSH LTD (SUPRA); ARAKA V EGBUE (2003) 33

WRN 1; MINISTER OF LANDS, WESTERN NIGERIA V.

AZIKWE (1969) 1 ALL NLR 49; NZEKWU V NZEKWU

(1989) 2 NWLR (PT. 104) 373 TABIK INVESTMENT

LTD AND ANOR V. GUARANTEE TRUST BANK PLC

(2011) 6 MJSC (PT. 1) 1, 21; DAGACI OF DERE V.

DAGACI OF EBWA (2006) 30 WRN 7; ITEOGU V LPDC

(2009) 17 NWLR (PT. 171) 614, 634 ETC. Thus,

although the original copies of public documents

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themselves are admissible, ONOBRUCHERE AND ANOR

V ESEGINE (1986) 7 NSCC 343 AT 350; ITEOGU V.

LPDC (2009) 17 NWLR (PT. 1171) 614, 634; the only

pieces of secondary evidence in respect of the original of

such public documents that are admissible are the certified

copies thereof but no other secondary evidence,

MINISTER OF LANDS W.N. V AZIKIWE (1969) 1 ALL

N L R 4 9 ; O N O B R U C H E R E A N D A N O R . V .

ESEGINE(SUPRA); ARAKA V. EGBUE (SUPRA); SPDC

V ASWANI TEXTILE INDUSTRIES LTD (1991) 3

NWLR (PT. 180) 496, 505; OJIBAH V OJIBAH (1991) 5

NWLR (PT. 191) 296, 312; NZEKWU (1989) 2 NWLR

(PT. 104) 373; TABIK INVESTMENT LTD AND ANOR

V. GUARANTEE TRUST BANK PLC (SUPRA); DAGACI

OF DERE V DAGACI OF EBWA (SUPRA); ITEOGU V

LPDC (SUPRA) 614, 634 etc. put differently, in the

absence of the original documents themselves, only such

properly certified copies are admissible as secondary

copies of such public documents "but no other kind of

secondary evidence." G AND T.I. LTD AND ANOR V.

WITT AND BUSH LTD (2011) LPELR- 1333 (SC) 42 C-

E; ARAKA V. EGBUE (SUPRA); MINISTER OF LANDS,

WESTERN NIGERIA V. AZIKIWE (SUPRA); NZEKWU

V NZEKWU (SUPRA) TABIK INVESTMENT LTD AND

ANOR V. GUARANTEE TRUST BANK PLC

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(SUPRA); DAGACI OF DERE V DAGACI OF EBWA

(SUPRA); ITEOGU V LPDC (SUPRA) ETC." SEE:

EMEKA V. CHUBA-IKPEAZU & 7 ORS (2017) LPELR-

SC. 149/2016; (PP. 61-65, PARA F-C)

There is nothing more to say on Exhibits PL1 and PL11

which are public documents but to uphold the finding of the

trial Court that in so far as the said public documents were

not certified in accordance with Section 104 of the

Evidence Act; the same are inadmissible in law and were

wrongly admitted as in this appeal; the learned trial Judge

was right when he failed to accord any probative value to

them.

The Appellant equally leaned heavily on the decisions of the

Kobi Sharia Court and the Upper Sharia Court 11 as

decisions through which they claim title to the shop in

dispute. Based on the referred decisions, the Appellant

wants this Court to hold that the Respondents particularly

the 3rd and 2nd Respondents violated the decision of the

Kobi Sharia Court. This if proved will no doubt tilt the scale

of justice substantially in favour of the Appellant but

unfortunately none of these two judgments were placed

before the trial Court. The Appellant neither tendered the

judgment nor the

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proceedings of the referred Courts to enable the trial Court

determine whether and to what extent the 3rd and 2nd

Respondents went contrary to the alleged subsisting

decision of the competent Courts. Failure of the Appellant

to place before the Court the said judgments meant luring

the trial Court into a wild goose chase which is not

permitted in law. There was therefore nothing upon which

the trial Court would have based its decision on whether

the named Respondents violated the alleged distribution

made by the Kobi Sharia Court, and the affirmation of the

same by the Upper Sharia Court 11. The trial Court was by

the absence of the decisions in question placed in the dark

as to the decisions of Kobi Sharia Court in Suit No:

02/GADO/2002 and Upper Sharia Court 11 in Appeal No:

CVA/32/2002. From the foregoing there was in all no

documentary evidence so to say in support of the case of

the Appellant.

On the oral evidence of PW1 and PW2, PW2 under cross

examination said he does not know when the shops one of

which is in dispute were built but he knows the shops were

built by the 3rd Respondent. PW2 also said that when the

3rd Respondent sold the middle shop

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which is one of the shops he built to the 2nd Respondent

who subsequently sold to the 1st Respondent; that he was

one of the people that challenged the sale at the Upper

Sharia Court Bauchi in Suit No: CVA/44/2010; and that the

Upper Sharia Court upheld the sale transactions;

whereupon he as PW2 stepped out of the matter and they

did not appeal against the judgment of the Upper Sharia

Court which confirmed the 1st Respondent's title to the

shop in dispute. It is worthy to note at this point that the

Respondents produced and tendered the certified true copy

of the said Upper Sharia Court's judgment in evidence and

there is no evidence on record about any decision of a

superior Court setting aside the said judgment of the Upper

Sharia Court. The evidence of the PW1 and PW2 as

captured in the record which I have tried to x ray herein

does not in any way support the fact that the 3rd

Respondent by the sale of the shop in dispute to the 2nd

Respondent violated any known or established Court order

and in particular the order of the Kobi Sharia Court. I

therefore resolve issue 1 in favour of the Respondents and

against the Appellant.

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SUBMISSIONS ON ISSUE NO. 2

The learned Counsel for the Appellant contended that the

evidence of PW1 and PW2 along with Exhibits PL1 and PL2

clearly shows the existence of Suit No. 002/GADO/2002 and

referred to pages 77-80 of the records for the details of

Exhibit PL1 and PL2. He quoted the provisions of Section

124(1) (b) of the Evidence Act, 2011. He submitted that

considering the referred provision of the Evidence Act, the

evidence of PW1 and PW2 as well as Exhibits PL1 and PL2;

the learned trial judge was in error when he failed to find

for the Appellant and dismissed his claim. He cited the

cases of: LAWAN vs. YAMA (2004) 9 NWLR (PT. 877)

PAGE 138-139 PARAS. E-C; DAGASH v. BULAMA

(2004) 14 NWLR (PT. 892) PAGE 230-231 PARA. H-C;

REPTICO S.A. GENEVA VS AFRIBANK (NIG) PLC

(SUPRA) P. 208 PARAS. B-C AND NDAYAKO VS

DANTORO (2004) 13 NWLR (PT. 889) PAGE 214

PARAS. G-H; and urged the Court to resolve this issue in

favour of the Appellant.

Reacting, the learned Counsel for the Respondents argued

that the evidence of PW1 and PW2 cannot in anyway stand

in place of the record of proceedings or Certified True

Copies of the judgments or orders in the purported Suit No.

002/GADO/2002

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and Appeal No: CVA/32/2002. He submitted that where a

judgment of a Court is pleaded, only a record of that

judgment should be taken in evidence and not any other

person's insinuations. He referred to Section 128(1) of the

Evidence Act, 2011.

The learned Counsel contended that the Appellant's failure

to produce the CTC of the judgment of Kobi Sharia Court at

the trial Court indicates that either such decisions does not

exist at all or where it exists if produced it could be

unfavourable to the Appellant who withheld same.

He referred to Section 167 (d) of the Evidence Act (2011)

and further contended that the provisions of Section 124

(1) (b) of the Evidence Act, 2011 cannot help the argument

of the Appellant as Exhibits PL1 did not answer the

requirements of Section 104(1) and (2) of the Evidence Act,

2011. He finally submitted on this issue that all the cases

cited by then Appellant's Counsel on this issue cannot aid

his case as they rather strengthened the arguments of the

Respondents and urged the Court to so hold and resolve

the issue in favour of the Respondents.

RESOLUTION OF ISSUE NO. 2

The contention of the Appellant on this issue

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is that by reason of - Section 124 (1) (b) of the Evidence

Act, 2011; the learned trial Judge was in error when he did

not rely on the evidence of PW1 and PW2; and Exhibits PL1

and PL11 to find that there was in existence a Suit No.

002/GADO/2002 and that there was also an ensuing order

of the suit. Section 124 (1) (b) of the Evidence Act provides

that; proof shall not be required of a fact the knowledge of

which is not rationally open to dispute and which is -

susceptible to verification by reference to a document the

authority of which cannot logically be questioned. The

learned counsel for the Appellant urged this Court to rely

on the said Section 124 (1) (b) of the Evidence Act; to admit

the existence of Suit No. 002/GADO/2002 and its decision

based on the mere assertion of the evidence of PW1 and

PW2 of the said suit and judgment; and Exhibits PL1 and

PL11 (uncertified copies of public documents) which are

the a l leged orders emanat ing f rom Su i t No .

002/GADO/2002. This he reasoned that the said suit and its

ensuing order is subject of verification as its authority

cannot reasonably be questioned. Brilliant submission I

would say by counsel to navigate

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through his case, but the law unfortunately does not work

that way as the law has provided the mode of proof of a

judgment or order of a Court.

Section 128 (1) provides:

"1. When a judgment of a Court or any other judicial or

official proceeding, contract or any grant or other

disposition of property has been reduced to the form of a

document or series of documents, no evidence may be

given of such judgment or proceeding or of the terms of

such contract, grant or disposition of property except the

document itself, or secondary evidence of its contents in

cases in which secondary evidence is admissible under this

Act; nor may the contents of any such document be

contradicted, altered, added to or varied by oral evidence."

By the above provision of the Evidence Act, a party seeking

to establish the existence of a judgment of a Court must

produce the said judgment or a secondary evidence of the

same as no oral evidence is allowed to be given on the said

judgment in its proof. Following this provision therefore,

the evidence of the PW1 and PW2 on the existence and

content of the alleged decision of the Kobi Sharia Court is

inadmissible and was

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rightly not relied on by the trial Court.

On Exhibits PL1 and PL11, I had dealt with them while

resolving issue 1. I will only add here that as secondary

evidence of the order of the Kobi Sharia Court, they are

admissible to prove the said order only if they are certified

true copies as required by Section 105 of the Evidence Act

and in compliance with Section 104 of the Evidence Act

since the same are public documents by virtue of Section

102 of the Evidence Act. While resolving issue 1, I came to

the conclusion that Exhibits PL1 and PL11 which are public

documents were not certified in accordance with Section

104 of the Evidence Act, 2011. Failure to be certified, they

cannot in law be proof of the order of Kobi Sharia Court.

Accordingly, the learned trial Judge was right when he did

not rely on them to find for the existence of the order of the

Kobi Sharia Court. I therefore resolve issue 2 in favour of

the Respondents.

Having resolved the 2 issues in favour of the Respondents,

the appeal fails completely without restraint. The same is

therefore dismissed. I affirm the judgment of the High

Court of Bauchi State in Suit NO: BA/115/2012; delivered

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on 21st May, 2014.

I award a cost of N100,000.00 in favour of the 1st and 2nd

Respondents.

ADZIRA GANA MSHELIA, J.C.A.: I have had a preview of

the Judgment just delivered by my learned brother

Onyemenam, JCA. I agree with the reasoning and

conclusion reached therein. My Lord had meticulously dealt

with all the issues raised for determination in this appeal. I

have nothing gainful to add thereto. For the reasons

contained in the said lead Judgment, I too dismiss the

appeal as lacking in merit. I adopt the consequential orders

contained in the lead Judgment, inclusive of the one made

with regard to costs.

ADAMU JAURO, J.C.A.: I have had a preview of the

judgment just delivered by my learned brother,

UCHECHUKWU ONYEMENAM, JCA. I agree with the

reasoning therein advanced to arrive at the conclusion that

the appeal lacks merit and should be dismissed.

I adopt the said judgment as mine, in dismissing the

appeal.

I endorse the order relating to costs in the lead judgment.

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Appearances:

S.F. DASHE For Appellant(s)

M.M. MAIDOKI with him, A.T. NASEER for 1stand 2nd Respondents. For Respondent(s)

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