NATA’ALA V GABAPPA & ANOR

NATA’ALA V GABAPPA & ANOR


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON MONDAY, 19TH MARCH, 2018


Suit No: CA/J/252/2016

CITATION:

Before Their Lordships:

ADZIRA GANA MSHELIA, JCA

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA


BETWEEN

SANI NATA’ALA
(APPELLANT)
AND

LAMIDO ALHAJI GABAPPA
ALHAJI GABAPPA
(RESPONDENTS)


PRONOUNCEMENT


A. EVIDENCE
1. Calling of Witnesses – The qualities that will certify a document as a certified true copy of a public document
Whether a party can be liable for the error of a witness who failed to produce the exact document he was subpoenaed to produce

Subpoena is an Order of Court or a legal document commanding a person to lay aside all pretences and excuses; and appear before a Court named, at a date and time mentioned, to testify for a party named, subject to penalty for failure to comply. Subpoena duces tecum is a subpoena that orders a person to appear in a named Court to produce documents, records, or things. See Blacks Law Dictionary, 9th Edition.
In the instant case, the Registrar of the Chief Magistrate Court, Gashu’a was subpoenaed at the instance of the Appellant to produce a certified true copy of the record of proceedings in Case No. YBSJ/GS/MC/206c/2010. See page 20 lines 21 to 25. When the Registrar appeared in Court with a record of proceedings and the same was sought to be tendered, the Respondents’ counsel objected to the admission of the document on the ground inter alia that it did not meet the requirements of certification of public document under Section 104 of the Evidence Act. The learned trial Judge agreed with the Respondents’ counsel and rejected the proceedings in Case No. YBSJ/GS/MC/206c/2010, of the Chief Magistrate Court, Gashu’a.
Section 104 of the Evidence Act, 2011; provides:

“1. Every public officer having the 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 the legal fees prescribed in that respect.

2. The certificate mentioned in Subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of seal, and such copies so certified shall be called certified copies.

3. An officer who, by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.”

From the statute as reproduced above, it is clear that for a document to qualify as a certified true copy of a public document which a record of proceedings of a Court is, it must have on the face of it stated:

(a) The Prescribed legal fees paid

(b) Certification that it is a certified true copy

(c) Date of certification

(d) Name of the Officer authorized to certify the document.

(e) Official title of the Certifying person

(f) Seal, where the officer is entitled to make use of it.

Meaning that, any document that fails to meet the above requirements is inadmissible as a certified true copy of a public document. Emeka V. Chuba – Ikpeazu & Ors. (2017) LPELR -SC. 149/2016; Omisore V. Aregbesola & Ors. (2015) 15 NWLR (PT. 1482) 205; Ndayako V. Mohammed (2006) 17 NWLR (PT. 10009) 676; Tabik Investment Ltd. V. GTB Plc (2011)LPERL – 3131 (SC.). The Courts are conscientious on the adherence of the above requirements of certified copies of public documents for the main reason to ensure any document presented as a certified true copy of a public document is indeed one which a third party can rely on. This explains the stance of the Courts that in the absence of the original of a public document, only a properly certified copy of a public document is admissible as secondary evidence. Emeka V. Chuba – Ikpeazu & Ors. (Supra); Araka V. Egbue (2003) 33 WRN 1; Minister Of Lands, Western Nigeria V. Azikiwe (1969) 1 ALL NLR 49; Nzekwu V. Nzekwu (1989) 2 NWLR (PT. 1040373; Tabik Investment Ltd. V. GTB Plc (Supra).

The question that begs to be answered in the instant case is whether the certified copy of the proceedings in Case No. YBSJ/GS/M /206c/2010, of the Chief Magistrate Court, Gashu’a, produced by the Registrar at the trial Court met the conditions of a certified true copy. This will take me to the Document marked rejected by the trial Court. See pages 59 to 70 of the record. I have gone through the record which contains the purported certified copy of the proceedings in Case No. YBSJ/GS/MC/206c/2010, of the Chief Magistrate Court, Gashu’a. The best I can find at page 68 of the record in an attempt to satisfy Section 104 is a certification: (i) Certified True Copy, (ii) Signature and (iii) Registrar. Who the Registrar is was not disclosed as the name of the officer authorised to certify is not given, there is no date, nor prescribed fees paid. The document produced by the Registrar of the Chief Magistrate Court, Gashu’a and sought to be tendered by the Appellant at the trial Court fell short of the requirements of Section 104 of the Evidence Act. The said document did not qualify as a Certified True Copy of the proceedings of the referred Magistrate Court. The learned trial Judge was right to so hold.
As to whether the fault was that of the Registrar and as such could not be visited on the Appellant. Mr. Salihu for the Appellant relied on the case of Akpaji V. Udenma (2009) 2 MJSC (PT. 11) 152; which Mr. Also for the Respondents distinguished. Let me start by stating that the correct name of the parties are AKPAJI V. UDEMBA which also has the citation Alloysius Akpaji V. Francis Udemba (2009) 6 NWLR (PT.1138) 45. In Akpaji’s case the apex Court held that the fault of the Registrar to assess the defendant’s defence for which he paid for and omitted to assess his counter claim leading to non- payment in full of the appropriate fees was a mere irregularity which did not vitiate the proceedings nor did it encroach on the jurisdiction of the Court. The apex Court therein made an exception as to when ignorance of the law could be excused in the spirit of fairness and justice. In the instant case there is no contention, it was the fault of the Registrar who was subpoenaed to bring a certified true copy of a public document but failed to do so and rather brought an improperly certified copy. The question now is, what is the effect of the said fault of the Registrar in the instant case. Firstly, let me I agree with the learned counsel for the Respondents that the instant case is not on all fours with the case of AKPAJI V. UDEMBA (supra). While the facts are not the same, the issue is the same. I therefore need to determine in the circumstances of the case whether the decision in Akpaji’s case is applicable. The major striking difference between the two cases is that in the case at hand the fault of the Registrar bothered on his failure to satisfy the requirements of an Act while in Akpaji’s case it was a violation of the Rules of High Court, howbeit the common denominator is that in the two cases the issue is the effect of the fault of a Court Registrar on the case of a party.

In the case leading to this appeal, the Registrar was a subpoenaed witness commanded by the Court to appear before it and produce the certified true copy of the proceedings in Case No. YBSJ/GS/MC/206c/2010, of the Chief Magistrate Court, Gashu’a. May I reiterate that a Subpoena is an Order of Court commanding a person to appear before a named Court, at a mentioned date and time, to testify or produce a document for a party named, subject to penalty for failure to comply. In the instant case being a Subpoena duces tecum, the Registrar was to lay aside all pretences, excuses, omissions, faults, inadvertences or errors and to appear before the trial Court on the date given to him to produce a certified true copy of the proceedings in Case No. YBSJ/GS/MC/206c/2010, of the Chief Magistrate Court, Gashu’a. He was not to be sworn, examined in chief nor cross examined. That he was sworn was of no moment. His assignment before the Court was to produce the document the Court subpoenaed him to produce failure which carried a penalty. The fact that was before the trial Court was that the Registrar by his error, fault, negligence, omission, incompetence, pretence etc; did not produce the document the Court commanded him to produce. In my understanding, this was the objection of the learned counsel for the Respondent. His contention was that the document produced by the Registrar should not be admitted in evidence as the same was not the document he was subpoenaed to produce. As there was no controversy that the Registrar had failed to produce the exact document the Court subpoenaed him to produce, the Court ought to have noted that the document produced by the Registrar fell short of the document he was commanded to produce. Thereafter the Court would have had two options, which are: to further command him to abide the terms of its subpoena or to deem his act failure to abide by its earlier command which carries a penalty. Buhari V. Obasanjo (2005) ALL FWLR (PT. 273)1; Incorporated Trustees Of Island Club & Ors. V. Prince Jide Sikuade (2016) LPELR – 42278 (CA). The trial Court and in fact the counsel in the matter seemed to have lost sight of the fact that the Registrar was a subpoenaed witness who was under obligation to obey the Court’s command or face penalty. When the Appellant applied for the Registrar to be subpoenaed to produce the named document and the trial Court granted the application; the effect of the obedience and consequences of the lack of obedience of the Court’s order now hinged on the Court and the Registrar. The business of the Appellant was to have the document he had applied to be produced for him to enable him effectively prosecute his case. In my view, the Appellant’s counsel would have agreed with the Respondents’ counsel that the Registrar had failed to strictly comply with the command of the Court and sought for him to be directed to produce a proper certified true copy of the proceedings as he was subpoenaed to or face the penalty; in which case he should have withdrawn the document he sought to tender. The failure of the Registrar to comply with the subpoena duces tecum of the trial Court, and or his fault, error and or inadvertence to produce the certified true copy of the proceedings as he was commanded; will to say the least be the most unjust act to be visited on the Appellant who hinged his case on the said document. It was in the same bid to avoid unfair and unjust play in proceedings, that the Supreme Court held:

“surely and certainly, the error or inadvertence of the said Registrar, cannot, in my respectful and firm view, be said to be that of the Respondent. The Registrar saw and assessed the statement of defence. If he must read the entirety of the statement of defence before assessing it (and I doubt it) and he failed correctly or properly to do so, his error or omission, cannot be ascribed to be that of the Respondent and/or the learned counsel.” PER OGBUAGU, J.S.C. (PP. 17 – 18, PARAS. F – G), Alloysius Akpaji V. Francis Udemba (2009) LPELR – 371 (SC); (2009) 6 NWLR (PT.1138) 545.

It follows from the decision of the apex Court referred to above that the Registrar who did not obey the command of the trial Court by producing a document short of a certified true copy of the proceedings of the Chief Magistrate Court; cannot by his fault or inadvertence by allowed to distort the flow of the prosecution of the Appellant’s case. The trial Court in the interest of justice ought to have ordered him to produce the right document he was ordered to produce so that the parties before him will have the opportunity to present their cases in the best way they could. For what I have said above therefore, I hold that the decision in Alloysius Akpaji V. Francis Udemba (Supra); is applicable to this case. The trial Court was in error to have marked the record of proceedings rejected and went ahead to consider the case without the document it subpoenaed the Registrar to produce and entered judgment for the Respondents which to my firm view occasioned a miscarriage of justice, which entitles the judgment of the trial Court to be set aside. Per ONYEMENAM, JCA. read in context


LEAD JUDGMENT DELIVERED BY ONYEMENAM, JCA


This appeal is against the decision of the Yobe State High Court, Bada Judicial Division, delivered by A. A Mohammed J. on 22nd March, 2016, wherein the learned trial Judge entered judgement against the Appellant.

Being dissatisfied with the judgement of the Court, the Plaintiff/Appellant appealed to this Court by filing Notice of Appeal with two (2) grounds of appeal.

The Appellant’s claim before the trial Court was for special and general damages for trespass and mischief which claim was hinged on the judgment of the Chief Magistrate Court Gashu’a in Case No: YBSJ/GS/MC/206c/10. In the course of trial, the Appellant served the Registrar of the Gashu’a Chief Magistrate Court with subpoena duces tecum to come and tender the record of proceedings in Case No: YBSJ/GS/MC/206c/10; Commissioner of Police V. Ado Alhaji Gabappa & Anor.

The Registrar could not tender the same as the said record of proceedings was rejected by the trial Court. Subsequently in his considered judgment the learned trial Judge dismissed the Appellant’s case.

On 22nd January, 2018, after the parties had filed and exchanged the relevant processes; the appeal was heard on the Court being satisfied that the Appellant who was absent from Court was served with the hearing notice against the hearing of the day. Mr. Emmanuel Tokpe who appeared with S. G. Pam Esq. while holding the brief of S. M. Also urged the Court to invoke the provisions of Order 19 Rule 9 (4) of the Court of Appeal Rules 2016 to deem the Appellant’s brief duly argued. The application was granted after which Mr. Tokpe adopted and relied on the Respondents’ brief filed on 21st August 2017 in urging the Court to dismiss the appeal and affirm the judgment of the trial Court.

In the Appellant’s brief deemed argued Mr. B. M. Salihu distilled a sole issue for the determination of the appeal. The issue is:

“Whether or not the refusal of the trial Court to admit into evidence the record of proceeding of the Chief Magistrate Court Gashu’a sought to be tendered through the Registrar of that Court, occasioned a substantial miscarriage of Justice.”

Mr. Also in the Respondents’ brief adopted the issue formulated by the Appellant’s counsel. This being the case and for the fact that the resolution of the sole issue distilled by both parties can determine the appeal, I shall resolve the dispute by determining the appeal on the sole issue.

SUBMISSIONS ON THE ISSUE

Mr. Salihu the learned counsel for the Appellant submitted that where a subpoena duces tecum is served on a person, he is only before the Court to tender the document requested and cannot be subjected to cross examination or made to give evidence. He referred to: Olubodun V Lawal (2008) 9 MJSC PAGE 1. The learned counsel drew the attention of the Court to page 20 of the record as to the nature of the subpoena issued by the trial Court.

He further submitted that the error of the Registrar of the Chief Magistrate Court Gashu’a in not taking steps that is statutorily mandatory for him to take cannot be taken out on the Appellant. He relied on: Akpaji V. Udemba (2009) 2 MJSC PT II page 152. Mr. Salihu also contended that the exclusion of the record of proceedings of the Chief Magistrate Court Gashu’a by the trial Court owing to its ruling at pages 26-29 of the record based on the objection raised by the learned counsel to the Respondents which clearly shows allegations of fault strictly in the line of duty of the Registrar of the Chief Magistrate Court Gashu’a, occasioned substantial miscarriage of Justice and behests this Court’s reversal of the decision of the trial Court. He cited: Military Governor Of Ondo State V. Kolawole (2008) 9 MJSC Pg. 203.

Finally, the learned counsel urged the Court to hold that the refusal of the trial Court to admit into evidence the record of proceedings of the Chief Magistrate Court Gashu’a was wrongful and same has occasioned a substantial miscarriage of Justice. He further urged the Court to allow the appeal and set aside the Judgment of the trial Court, and to uphold the Appellant’s claim as contained on the Appellant’s statement of claim before the trial Court.

In response Mr. Also in the Respondents’ brief agreed with the Appellant’s counsel’s submission on the nature of subpoena issued and served on the Registrar of the Chief Magistrate Court Gashu’a by the trial Court. The learned counsel however contended that the record of proceedings which was sought to be tendered by the Appellant through the subpoenaed Registrar being a public document by virtue of Section 102(a)(iii) of the Evidence Act 2011; the proof of the same is governed by Sections 104 and 105 of the Evidence Act. He submitted that the said document was not a properly certified true copy of the record of proceedings which it purported to be. He cited:Chief Gani Fawehinmi Vs Inspector General Of Police & Ors. (2000) 7 NWLR (Part 665) 481; P.D.P VS Sidi -Ali (2004) ALL FWLR (PT.220) 1371 C.A. He noted the qualities of a public document that will be deemed properly certified for the purpose of it being admitted in evidence under Section 104 and cited: Tabik Investment Ltd Vs GTB Plc (2011) ALL FWLR (PT.6Q2) 1592 S.C.

Also submitted for the Respondents was that, where a person called by one of the parties to produce document went into the witness box, swore to an oath of affirmation, he becomes a witness for all purposes and liable to be cross examined. He also argued that objection could at such instance be raised in respect of any document sought to be tendered through the witness. He referred to: SECTION 205 OF THE EVIDENCE ACT, 2011; Onwuamaka Vs Okolie (1955-56) WRNLR 1959; Akano Vs Nigerian Army (2000) 14 NWLR (Pt.687) 313 at 328-329.

Furthermore, the learned counsel submitted that the case of Akpaji Vs Udemba (2009) 2 MJSC (PT II) P.152 AT 168 is distinguishable from the instant appeal. He argued that in Akpaji’s case the Respondent had presented his statement of defence for filing and the Registrar did not properly assess it before it was filed; while in the instant appeal the Registrar who was subpoenaed to produce a certified true copy of the record of proceedings in respect of case decided in the Chief magistrate Court produced it without proper certification. He urged the Court to hold that the case of Akpaji relied on by the Appellant’s counsel is inapplicable to this appeal.

Finally the learned counsel submitted that the Appellant in the instant case did not adduce sufficient evidence upon which the trial Court would have found in his favour. He urged the Court to hold that the learned trial Judge was right in delivering judgment against the Appellant and to affirm the Judgment of the trial Court.

RESOLUTION OF ISSUE

Subpoena is an Order of Court or a legal document commanding a person to lay aside all pretences and excuses; and appear before a Court named, at a date and time mentioned, to testify for a party named, subject to penalty for failure to comply. Subpoena duces tecum is a subpoena that orders a person to appear in a named Court to produce documents, records, or things. See Blacks Law Dictionary, 9th Edition.

In the instant case, the Registrar of the Chief Magistrate Court, Gashu’a was subpoenaed at the instance of the Appellant to produce a certified true copy of the record of proceedings in Case No. YBSJ/GS/MC/206c/2010. See page 20 lines 21 to 25. When the Registrar appeared in Court with a record of proceedings and the same was sought to be tendered, the Respondents’ counsel objected to the admission of the document on the ground inter alia that it did not meet the requirements of certification of public document under Section 104 of the Evidence Act. The learned trial Judge agreed with the Respondents’ counsel and rejected the proceedings in Case No. YBSJ/GS/MC/206c/2010, of the Chief Magistrate Court, Gashu’a.

Section 104 of the Evidence Act, 2011; provides:

“1. Every public officer having the 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 the legal fees prescribed in that respect.

2. The certificate mentioned in Subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of seal, and such copies so certified shall be called certified copies.

3. An officer who, by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.”

From the statute as reproduced above, it is clear that for a document to qualify as a certified true copy of a public document which a record of proceedings of a Court is, it must have on the face of it stated:

(a) The Prescribed legal fees paid

(b) Certification that it is a certified true copy

(c) Date of certification

(d) Name of the Officer authorized to certify the document.

(e) Official title of the Certifying person

(f) Seal, where the officer is entitled to make use of it. Meaning that, any document that fails to meet the above requirements is inadmissible as a certified true copy of a public document. Emeka V. Chuba – Ikpeazu & Ors. (2017) LPELR –SC. 149/2016; Omisore V. Aregbesola & Ors. (2015) 15 NWLR (PT. 1482) 205; Ndayako V. Mohammed (2006) 17 NWLR (PT. 10009) 676; tabik investment ltd. V. GTB Plc (2011)LPERL – 3131 (SC.). The Courts are conscientious on the adherence of the above requirements of certified copies of public documents for the main reason to ensure any document presented as a certified true copy of a public document is indeed one which a third party can rely on. This explains the stance of the Courts that in the absence of the original of a public document, only a properly certified copy of a public document is admissible as secondary evidence. Emeka V. Chuba – Ikpeazu & Ors. (Supra); Araka V. Egbue (2003) 33 WRN 1; Minister Of Lands, Western Nigeria V. Azikiwe (1969) 1 ALL NLR 49; Nzekwu V. Nzekwu (1989) 2 NWLR (PT. 1040373; Tabik Investment Ltd. V. GTB Plc (Supra).

The question that begs to be answered in the instant case is whether the certified copy of the proceedings in Case No. YBSJ/GS/MC/206c/2010, of the Chief Magistrate Court, Gashu’a, produced by the Registrar at the trial Court met the conditions of a certified true copy. This will take me to the Document marked rejected by the trial Court. See pages 59 to 70 of the record. I have gone through the record which contains the purported certified copy of the proceedings in Case No. YBSJ/GS/MC/206c/2010, of the Chief Magistrate Court, Gashu’a. The best I can find at page 68 of the record in an attempt to satisfy Section 104 is a certification:

(i) Certified True Copy,

(ii) Signature and

(iii) Registrar. Who the Registrar is was not disclosed as the name of the officer authorised to certify is not given, there is no date, nor prescribed fees paid. The document produced by the Registrar of the Chief Magistrate Court, Gashu’a and sought to be tendered by the Appellant at the trial Court fell short of the requirements of Section 104 of the Evidence Act. The said document did not qualify as a Certified True Copy of the proceedings of the referred Magistrate Court. The learned trial Judge was right to so hold.

As to whether the fault was that of the Registrar and as such could not be visited on the Appellant. Mr. Salihu for the Appellant relied on the case of Akpaji V. Udenma (2009) 2 MJSC (PT. 11) 152; which Mr. Also for the Respondents distinguished. Let me start by stating that the correct name of the parties are AKPAJI V. UDEMBA which also has the citation Alloysius Akpaji V. Francis Udemba (2009) 6 NWLR (PT.1138) 545. In Akpaji’s case the apex Court held that the fault of the Registrar to assess the defendant’s defence for which he paid for and omitted to assess his counter claim leading to non- payment in full of the appropriate fees was a mere irregularity which did not vitiate the proceedings nor did it encroach on the jurisdiction of the Court. The apex Court therein made an exception as to when ignorance of the law could be excused in the spirit of fairness and justice. In the instant case there is no contention, it was the fault of the Registrar who was subpoenaed to bring a certified true copy of a public document but failed to do so and rather brought an improperly certified copy. The question now is, what is the effect of the said fault of the Registrar in the instant case. Firstly, let me I agree with the learned counsel for the Respondents that the instant case is not on all fours with the case of Akpaji V. Udemba (Supra). While the facts are not the same, the issue is the same. I therefore need to determine in the circumstances of the case whether the decision in Akpaji’s case is applicable. The major striking difference between the two cases is that in the case at hand the fault of the Registrar bothered on his failure to satisfy the requirements of an Act while in Akpaji’s case it was a violation of the Rules of High Court, howbeit the common denominator is that in the two cases the issue is the effect of the fault of a Court Registrar on the case of a party.

In the case leading to this appeal, the Registrar was a subpoenaed witness commanded by the Court to appear before it and produce the certified true copy of the proceedings in Case No. YBSJ/GS/MC/206c/2010, of the Chief Magistrate Court, Gashu’a. May I reiterate that a Subpoena is an Order of Court commanding a person to appear before a named Court, at a mentioned date and time, to testify or produce a document for a party named, subject to penalty for failure to comply. In the instant case being a Subpoena duces tecum, the Registrar was to lay aside all pretences, excuses, omissions, faults, inadvertences or errors and to appear before the trial Court on the date given to him to produce a certified true copy of the proceedings in Case No. YBSJ/GS/MC/206c/2010, of the Chief Magistrate Court, Gashu’a. He was not to be sworn, examined in chief nor cross examined. That he was sworn was of no moment. His assignment before the ourt was to produce the document the Court subpoenaed him to produce failure which carried a penalty. The fact that was before the trial Court was that the Registrar by his error, fault, negligence, omission, incompetence, pretence etc; did not produce the document the Court commanded him to produce. In my understanding, this was the objection of the learned counsel for the Respondent. His contention was that the document produced by the Registrar should not be admitted in evidence as the same was not the document he was subpoenaed to produce. As there was no controversy that the Registrar had failed to produce the exact document the Court subpoenaed him to produce, the Court ought to have noted that the document produced by the Registrar fell short of the document he was commanded to produce. Thereafter the Court would have had two options, which are: to further command him to abide the terms of its subpoena or to deem his act failure to abide by its earlier command which carries a penalty. Buhari V. Obasanjo (2005) ALL FWLR (PT. 273)1; Incorporated Trustees Of Island Club & Ors. V. Prince Jide Sikuade (2016) LPELR – 42278 (CA). The trial Court and in fact the counsel in the matter seemed to have lost sight of the fact that the Registrar was a subpoenaed witness who was under obligation to obey the Court’s command or face penalty. When the Appellant applied for the Registrar to be subpoenaed to produce the named document and the trial Court granted the application; the effect of the obedience and consequences of the lack of obedience of the Court’s order now hinged on the Court and the Registrar. The business of the Appellant was to have the document he had applied to be produced for him to enable him effectively prosecute his case. In my view, the Appellant’s counsel would have agreed with the Respondents’ counsel that the Registrar had failed to strictly comply with the command of the Court and sought for him to be directed to produce a proper certified true copy of the proceedings as he was subpoenaed to or face the penalty; in which case he should have withdrawn the document he sought to tender. The failure of the Registrar to comply with the subpoena duces tecum of the trial Court, and or his fault, error and or inadvertence to produce the certified true copy of the proceedings as he was commanded; will to say the least be the most unjust act to be visited on the Appellant who hinged his case on the said document. It was in the same bid to avoid unfair and unjust play in proceedings, that the Supreme Court held:

“surely and certainly, the error or inadvertence of the said Registrar, cannot, in my respectful and firm view, be said to be that of the Respondent. The Registrar saw and assessed the statement of defence. If he must read the entirety of the statement of defence before assessing it (and I doubt it) and he failed correctly or properly to do so, his error or omission, cannot be ascribed to be that of the Respondent and/or the learned counsel.” PER OGBUAGU, J.S.C. (PP. 17 – 18, PARAS. F – G), Alloysius Akpaji V. Francis Udemba (2009) LPELR – 371 (SC); (2009) 6 NWLR (PT.1138) 545.

It follows from the decision of the apex Court referred to above that the Registrar who did not obey the command of the trial Court by producing a document short of a certified true copy of the proceedings of the Chief Magistrate Court; cannot by his fault or inadvertence by allowed to distort the flow of the prosecution of the Appellant’s case. The trial Court in the interest of justice ought to have ordered him to produce the right document he was ordered to produce so that the parties before him will have the opportunity to present their cases in the best way they could. For what I have said above therefore, I hold that the decision in Alloysius Akpaji V. Francis Udemba (Supra); is applicable to this case. The trial Court was in error to have marked the record of proceedings rejected and went ahead to consider the case without the document it subpoenaed the Registrar to produce and entered judgment for the Respondents which to my firm view occasioned a miscarriage of justice, which entitles the judgment of the trial Court to be set aside. I therefore resolve the sole issue in favour of the Appellant.

In the circumstance, I hold that the appeal has merits and succeeds, it is hereby allowed. I set aside the judgment of the High Court of Yobe State in Suit No. YBS/DT/HC/07C/2011 delivered on 22nd March, 2016.

I order that the case file be transferred to the Chief Judge of Yobe State to be reassigned to another Judge for accelerated hearing and determination.

MSHELIA, JCA

I have read before now the Judgment just delivered by my learned brother, Onyemenam, J.C.A. I agree with his reasoning and the conclusion reached therein that the appeal is meritorious and should be allowed. For the same reasons ably stated in the lead Judgment, I too allow the appeal, set aside the Judgment of the lower Court and order that the case file be transferred to the Chief Judge to be reassigned to another Judge for hearing and determination de-novo.

Same should be given accelerated hearing.

ABIRU, JCA

I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached.

Appearances:

Emmanuel Tokpe, Esq. with him, S. G. Pam holding the brief of S.M. For Appellant(s)

For Respondent(s)