IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YENAGOA JUDICIAL DIVISION
HOLDEN AT YENAGOA
BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI
DATE:FRIDAY 31ST JANUARY, 2020 Suit No: NICN/YEN/04/2019
NELSON TEMIENOR TUEDON …………………………………
THE GOVERNING COUNCIL OF
THE NIGERIAN CONTENT MONITORING BOARD
2. THE NIGERIAN CONTENT MONITORING BOARD
Mr. Peter Wilson Ebiegberi Esq holding the brief of Mr. Anthony Omaghoni Esq for the Claimant/Respondent.
M. John Itodo Esq appearing with Mr. I.M. Igomu for all the Defendants/Applicants.
This ruling emanated as a result of Preliminary Objection raised by the learned counsel to the Defendants. The learned counsel to the Defendants Mr. John Itodo of counsel objected to some documents sought to be rendered by the Claimant. These documents are:
a. Letter from Defendants to Federal Character Commission dated 2nd day of February, 2012.
b. Letter from Federal Character Commission dated 7th day of February, 2012.
c. Memo from the GM HR to ES/TMC in May, 2017 proposing the institution of End of Service Bonus Policy.
d. Letter from the Defendants rejecting the Claimant’s request for End of Service Bonus dated 14th day o f November, 2018.
e. Extract from the minute of meeting held on 1st August, 2017 of the 1st Defendant evidencing the approval of the End of Service Bonus Policy by the Governing Council signed by R.V. Chukwonwe (Mrs) Coordinator Legal Services.
Which all these documents are itemized as Nos. 13, 14, 15, 16 and 19 as contained in the Claimant’s List of Documents to be Relied Upon in the cause of this trial.
In his submission learned counsel to the Defendants submits that the documents dated 7th February, 2012 and that of 1st August, 2017 are all computer generated documents and failed short of the provisions of Section 84 of the Evidence Act.
Secondly, these two documents sought to be tendered, the witness is not the maker and as such same cannot be tendered through the witness (Claimant). He referred to Section 83 (4) of the Evidence Act, 2011.
On the other documents, it’s the submission of the learned counsel that the document dated 18th May, 2017 its an internal memo of the 2nd Defendant, thus it’s a public document and only the original or CTC of same is admissible in law. Counsel referred this court to the authority of NDLEA VRS OMIDINA (2013) 6 NWLR (PT. 1381) pg 589 at 617 – 618 paras H – A. Counsel also canvassed the same arguments with respect to a document dated 1st August 2017. He said the fact that subpoena duces tecum was served on the Defendants by the Claimant, even if they have not complied with same, their failure cannot serve as a reason to admit these inadmissible documents. Counsel urged this court to reject the said documents and marked same rejected.
On his part counsel to the Claimant Mr. A.T. Omaghoni Esq submits that the fact that the Claimant is not the maker of the documents does not mean that same cannot be tendered through him. He said the documents emanated from Federal Character Commission and office of the Head of Service of the Federation and there are exceptions to the provisions of Section 83 (d) of the Evidence Act, 2011. He said the Defendants having been served with a notice to produce and subpoena duces tecum, the Defendants have no moral justification to opposed to the admissibility of these documents.
In his reply, counsel to the Defendants submits that the witness ought to have laid a proper foundation to show that they tried to bring the Head of Service to court but to no avail before the provisions of Section 83 (d) can avail them.
He said the Claimant applied for the documents but failed to make any further move and went to sleep. He said the Claimant failed to make any move with regards to the payment of fees.
On the issue of subpoena duces tecum counsel submits that just like what obtains for the CTC of these documents, the Claimant had not made any payment for logistics of the said witness who will come to court and tender the said documents. He referred to Section 253 (2) of the evidence Act, 2011 and the case of SADI vrs DUKE (2006) 17 NWLR (pt. 1009) 610 at 652, and urged this court to reject the documents.
I have considered the arguments canvassed by both counsel to the Defendants and that of the Claimant each canvassing both on Points of Law and of facts; in other to effectively and effectually determine this application I formulate a lone issue for determination as follows:
Whether the documents sought to be tendered by the Claimant are admissible in law.
I will treat the Preliminary Objection raised by the counsel to the Defendants in two folds that is;
a. By whom can documentary evidence be proved the maker/non-maker?
b. Whether a none certified public document is admissible in evidence if a person whom the document is in possession failed to produce same despite being served with notice to produce and subpoena duces tecum.
On the first leg, not infrequently, objection to the admissibility of a document is raised on the ground that the document is being tendered by a person other than the maker. It is the contention of the learned counsel to the Defendants that the two documents sought to be tendered emanated from Federal Character Commission and the office of the Head of Service of the Federation. As such the documents can only be tendered through officers from these offices.
It is noteworthy that, while Section 83 (1) (b) of the Evidence Act 2011 provides for the calling of the maker of the statement contained in a document as one of the conditions to be satisfied in order for it to be admissible, the provision in that same section is to the effect that “the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, unfit by reason of this bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is reasonably inpracticable to secure his attendance, or if all reasonable efforts to find him have been made without success.”
Crucially, the trial court has the discretionary power under section 83 (2) (a) of the Evidence Act to admit a document in evidence not withstanding that the maker is available but not called as a witness.
Furthermore, it is not mandatory that a document must be tendered through its maker. The court may admit a document in evidence even if the maker is available but not called as a witness. In exercising such discretion, the only criteria to guide the court is whether the document is relevant. See Obembe vrs Ekele (2001) 10 NWLR (pt. 722) 677 at 693 – 694 paras H – A per Muhammed JCA (as he then was).
But its only where a document is challenged and impugned as unauthentic, the maker of the document should be called to support the document otherwise no weight should be attached to it. See Aregbesola vrs Oyinlola (2011) 9 NWLR (pt. 1253) pg 458 at 586 -587 paras H – A per Ogunbiyi JCA (as he then was).
The defendants having not challenged or impugned the documents sought to be tendered as unauthentic, its my ardent belief that the documents sought to be tendered are admissible in law. The argument canvassed on this leg of preliminary objection is hereby dismissed. I so hold.
On the second leg of the argument canvassed by counsel to the Defendant while I aligned myself with the arguments canvassed by the learned counsel to the defendants that the documents sought to be tendered are public documents within the meaning of Section 102 of the Evidence Act 2011, and that same can only be admissible upon satisfying the conditions stated in Section 104 (1) & (2) of the Evidence Act 2011, but the Claimant having served the Defendants with a notice to produce and subpoena duces tecum, these singular facts alone will now change the narrative.
Section 91 of the Evidence Act, 2011 provides for “notice to produce”. To procure the production of documents in the possession or under the control or powers of his opponent, a party may serve on his opponent (or his opponent’s solicitor) at the earliest opportunity a notice in writing calling upon him/her to produce these documents. See Jimba vrs African Petrol Nig. Ltd (1998) 3 NWLR (pt. 581) 278. The party howsoever may or may not comply with the notice. But once the notice is served and the document is not produced, the opponent becomes entitled exipso facto to give secondary evidence once he can established that: (a) that the notice to produce was infact served on the opponent; (b) that inspite of service of the notice to produce the opponent has failed or refused to produce the document, and (c) that the original of the document is in possession of the opponent.
Therefore, the claimant having served the required notice to the defendants and the defendants failed to produced same, its my ardent belief that the documents are admissible in law. I so hold.
The learned counsel cited the provisions of Section 253 (2) of the Evidence Act, 2011 which there is no such provision in the Evidence Act but I am certain that counsel is referring to Section 229 (2) of the Evidence Act, which even at that same is not applicable in this regards. This is because it borders on apprehension of a witness who was issued with a summon or subpoenaed but refused to appear in court but not on the issue of tendering and admissibility of a document. Also the authorities cited by counsel to the defendants NDLEA vrs Omidina (supra); Saidi vrs Duke (supra) are all distinguishable from the case at hand.
In all, the preliminary objection is hereby dismissed, I admit all the documents in evidence relying on the provisions of Section 12 (b) of the National Industrial Court Act 2006 as follows:
a. Letter from the Defendant to Federal Character Commission dated 2nd February, 2012 EXT CW004.
b. Letter from Federal Character Commission dated 7th February, 2012 EXT. CW005.
c. Memo from the GM HR to ES/TMC May, 2017 EXT. CW 006.
d. Letter from the Defendants rejecting the Claimant’s For End of Service Bonus dated 14th November, 2018 EXT CW 007.
e. Extract from the minute of the meeting of 1st Defendant of 1st August 2017 EXT. CW 008.
Ruling is hereby entered accordingly.
HON. JUSTICE BASHAR A. ALKALI
NATIONAL INDUSTRIAL COURT OF NIGERIA