IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE BENIN JUDICIAL DIVISION
HOLDEN AT BENIN
DATED: 10THJUNE, 2020 SUIT N0: NICN/IL/08/2018
BEFORE HIS LORDSHIP HON. JUSTICE A.A. ADEWEMIMO
1. CHIEF OLAOYE AHMED BADE
2. ALHAJI B.T. OYENIYAN
3. MRS OYEDUN ALICE KEHINDE
4. MRS. AKINRELE ELIZABETH A.
5. MRS OLAJORIN SUNDAY E.
6. MR ATOLAGBE O. OBALOLA
7. DR M.A. ASHOLA
(Also known as The Aggrieved Staff)
1. PAN AFRICAN COLLEGE OF EDUCATION, OFFA
2. DR OLATUNJI AFOLAYAN
S.A Omotoho Esq. for the claimants
Prince B. L. Ijaya for the Defendants
1. The subject matter of this Ruling is the defendants’ objection to the admissibility ofExhibits HM7, HM12 (i), HM13, HM17 (i)-(viii) and HM18 tendered throughCW1in the course of the trial in the substantive case. The claimants in this case took out a complaint filed on the 24th day of September, 2019 for accrued salaries and allowances from the defendants after their resignation.The case later proceeded to hearing on the 1st day of April, 2019 when the court called upon the claimants to open their case in the absence of the defendants, having regard to the failure of the defendants to appear in court on three different occasions, when the case was set down for hearingdespitebeing made aware of the business of the court on those occasions. The claimants testified through CW1( Chief Olaoye Ahmed Bade) who gave evidence and tendered several documents which were admitted and marked Exhibits HM1- 18, and the case was adjourned for cross- examination of CW1,while a hearing notice was ordered to be issued on the defendants’ counsel. The defence counsel thereafterattended court and cross examined CW1 on the 16th day of May, 2019, after which the claimants closed their caseand the defence called DW1- DW3 to testify on behalf of the defendants andclosedthe defence. The case was adjourned for adoption of final address, and parties adopted their final addresses on 11th March, 2020, whereupon Dr.B.LIjaiyaof counsel for the defendants raised anobjection to the admissibility of Exhibits HM7, HM12 (i), HM13, HM17 (i)-(viii) and HM18 and argued same in his final written address dated and filed 2nd day of July, 2019 which was adopted at the hearing.
2. In arguing the objection, the defence counsel submitted that Exhibits HM7, 12(i), 13, 17(i)-(viii) and HM18 are inadmissible on the ground that they are unsigned. He argued that Exhibit HM12 (i) isinadmissible because the writer who professed to be a legal practitioner did not affix his NBA stamp on the document, and this is contrary to Rules 10(1), (2) and (3) of the Rules of Professional Conduct 2007. He posited that no court should act on inadmissible evidence, and such document ifadmitted without objection cannot be properly acted upon by the court, citing, Okoye & Anor. vObiaso&Ors. (2010) LPELR- 2507 (SC) and Archibong V. The State (2006) LPELR- 537 (SC). He stated that the position of the law on unsigned documents is very clear, and there is an avalanche of judicial authorities to the effect that an unsigned document is a worthless document. He referred to Lawrence V Olugbemi&Ors. (2018) LPELR- 45966 (CA) and urged the Court to expunge the exhibit and not to act on the same.
3. In opposition to the objection, S. AOmotosho of counsel to the claimants submitted that a document is said to be signed when one places his sign, mark or thumb impression or writes his initials on the document. He cited Aromire v Ajomagberin (2011) ALL FWLR (PT. 586) 540 AT 557 C.A to the effect that a person’s name constitutes a signature, he argued thatExhibit HM 7 was duly signed since the initials and name of the maker is conspicuously written at the bottom. On the contention of the Defendants that Exhibits HM 13, HM 17 (i-viii) are unsigned, counsel argued that the objection was highly misconceived because such documents in the likes ofExhibits HM 13, HM 17 (i-viii) and HM 18, are not normally signed. Thus, where there is no law or business usage that insists that such must be signed, the documents are admissible without proof of signature citing Arewa Textiles Plc V. Finetex Ltd. (2003) FWLR (PT. 162) 1985 C.A.
4. On Exhibit HM12 (i)claimants’ counsel argued that failure to affix the NBA stamp and Seal on a legal document does not make the document invalid or void ab initio but voidable. He cited Yaki v Bagudu (2015) ALL FWLR (PT. 810) PAGE 1026 AT 1057 PARAS E-F; and submitted that the court may allow same to be corrected. It was also argued by counsel that assuming Exhibits HM 7, HM 12 (i), HM 13, HM 17 (i-viii) and HM 18 are expunged in this case, the claimants’ case will still be established. He urged the court to dismiss the objection.
5. In considering the admissibility of documents, it is a well-entrenched principle of law that relevancy governs admissibility, and a document is admissible when it satisfies certain prescribed conditions, In G. Vappa Ltd. v Daily Times of Nigeria Limited (2013) LPELR-22028(CA) Pg. 36-37 Augie JCA, listed the conditionsas follows:
“The admissibility of a document is one thing while the probative value that may be placed thereon is another… three main criteria govern the admissibility of a document, namely- Is the document pleaded? Is it relevant to the inquiry being tried in Court? and is it admissible in law?”
6. Needless to say that the three criteria identified above must coexist before a document can be admitted in evidence. In the instant case, while it is incontrovertible that the documents in contention were pleaded and relevant, whether they are admissible in law is another issue. A document is deemed admissible in law when it lacks any feature that can disqualify it under the law.
7. In determining the admissibility of Exhibit HM12(i), I find it pertinent to reproduce Rule 10 of the Rules of Professional Conduct, 2007, made pursuant to the Legal Practitioners Actfor ease of reference as follows;
Rule 10. ----- (1) A lawyer acting in his capacity as a legal practitioner, legal officer or adviser of any Government department or ministry or any corporation, shall not sign or file a legal document unless there is affixed on any such document a seal and stamp approved by the Nigerian Bar Association.
(2) For the purpose of this rule, “legal documents” shall include pleadings, affidavits, depositions, applications, instruments, agreements, deeds, letters, memoranda, reports, legal opinions or any similar documents.
(3) If without complying with the requirements of this rule, a lawyer signs or files any legal documents as defined in Sub-rule (1), the document so signed or filed shall be deemed not to have been properly signed or filed.”
8. There is no doubt that the essence of Rule 10 (1) of the RPC is to ensure that only legal practitioners duly registered on the Roll of Legal practitioners are allowed to practice the profession. See Today’s Cars Ltd. v LASACO Assurance Plc. & Anor. (2016) LPELR-41260(CA) where Ogakwu JCA held that:
“It is pertinent to add that the rationale behind the requirement for affixing stamp and seal to legal documents seems to be to checkmate quacks in the legal profession, but more importantly, to ensure that legal practitioners fulfill their financial obligations in that regard to the Nigerian Bar Association.”
9. I have considered all the arguments for and against the admissibility of Exhibit HM12(i), the provisions inRule 10 of the Rules of Professional Conduct and all the authorities cited. I have also taken note of the fact that this court is endowed with the power to look at its records in reaching a just decision on the issues before it, see Estisione H. Nigeria Ltd & Anor. V. Osun State Government & Anor.Alabi v Adeleye&Ors. (2015) LPELR-25590(CA. In this wise, having perused the record of court anddiscovered that Sharafa A. Omotosho Esq. who authored Exhibit HM12 (i) is also the counsel on record for the claimants in this suit, and has signed several processes including the Statement of Facts dated 8th August, 2018 and Reply to Statement of Defence dated 7th November, 2018 on which he duly affixed the NBA approved seal and stamp. This undoubtedly confirms that he is an enrolled legal practitioner, and the risk envisaged by Rule 10 of the RPC is averted. In Tarzoor v Ioraer (2015) LPELR-25975(CA),it was held by Garba JCA that signing or filing a document by a Legal practitioner without stamp and seal
;“….. is akin to a legal document or process filed at the expiration of the time allowed by the rules or extended by the court… in the case at hand the process filed in breach of Rule 10(1) can be saved and it’s signing and filing regularized by affixing the approved seal and stamp on it. It is a legal document improperly filed and the fixing of the seal and stamp would make the filing proper in law.
10. In DG, DICN & Anor. vDinwabor&Ors. (2016) LPELR 41316 CA, Abiru J.C.A held that:
“The present position of the Supreme Court on the point is that noncompliance is a mere irregularity that can be redeemed by a party and that it does not render the Court process incompetent.”
11. Likewise, the Court of Appeal held perAbubakar JCA inEmechebe v Ceto Int’l. (Nig.) Ltd (2018) NWLR (Pt 11631) Pg. 520 at 534 that:
“..........It was not that the respondent had failed to affix any stamp at all, and even if the appellant’s contention was upheld, it was best an irregularity which could be remedied by affixing the unexpired stamp and seal which from the records before the court, the learned counsel for the respondent had clearly affixed to the other applications filed at the trial court.”
12. It is uncontroverted that Exhibit HM12 (i) is not a process but an exhibit tendered to prove before this court that the claimants made a demand for their unpaid salaries and allowances after their exit from the 1st defendant. It will thus amount to standing justice on its head to hold that the exhibit is inadmissible, having been pleaded and proven relevant in this suit, the absence of the stamp and seal of the legal practitioner notwithstanding. This position is further reinforced by the fact that the defendants never denied receipt of Exhibit HM12(i), and did not raise any dust on the letter until the trial in this case. The impropriety or otherwise of the signature on Exhibit HM12 (i) cannot therefore negate the existence of the document, the document is still admissible in law, in as much as the failure to affix the stamp and seal is deemed an irregularity which can be remedied. Moreover, the failure to affix the stamp and seal will only affect the value to be placed on the document if not regularized, and having held that S.A. Omotosho wasenrolled on the register of legal practitioners of the Supreme Court, the objection of the defendant is at besttechnical and the position of the law is that the course of justice should not be sacrificed on the altar of technicality, see BOI Ltd. &Ors. v. Adediran& Anor.(2014) LPELR-23703(CA), where Mbi-UsiDanjuma, J.C.A held that:
“Substantial Justice, where possible, must not be allowed to be defeated by irregularities or technicalities that could be cured by the exercise of a court's discretion.” See also SunkanmiAdebesin v The State (2014) LPELR-22694(SC)
I find thatthe interest of justice will be best served if the claimants’ counsel is allowed to affix his NBA approved stamp and seal to Exhibit HM12(i)in adherence to the Rules of Professional Conduct and settled authorities on this issue. I so hold.
13. On Exhibit HM7, I find that the importance of authenticating a document by affixing the signature of the author on it is a pre-condition to its admissibility. In Ikpeazu v Ekeagbara&Ors. (2016) LPELR-40847(CA) pg. 53-53, his lordshipHussaini JCA held that:
“The importance of signature and the need to append signature on legal documents or any document at all cannot be underestimated for… It is the signature and the name of the person that links the document to the maker. Where this is lacking, the document is fundamentally defective and therefore of no use for all purposes”
14. A person is said to have signed a document when he appends his name or mark on the document for the purpose of authenticating it, see The Vessel MV Naval Gent &Ors. v Associated Commodity International Ltd. (2015) LPELR-25973(CA) per Nimpar JCA where he described a signature as:
“Any name, mark or writing used with the intention of authenticating a document.”
15. Learned counsel for the claimants submitted in response to the objection that the name “R. Adeshina” printed at the bottom of Exhibit HM7 is sufficient proof of signature. A perusal of Exhibits HM6, 7 and 8 reveals that they are all identical in content, but while Exhibits HM6 and HM8 were duly signed above the imprint “R. Adeshina” Exhibit HM7 was left unsigned. Also apparent on Exhibit HM7 is an underlining above the imprinted name, similar to the one in Exhibits HM6 and HM8. It can therefore be deduced that a provision was made to affix the signature of the author on the underlining visible above the imprinted name, which remained unsigned in Exhibit HM7. Also glaring is the fact that Exhibits HM6, 8 and 9 which are similar in content and layout with Exhibit HM7, asidefrom the name of the addressee, were signed by the same author above the underlining. The absence of signature on Exhibit HM7is therefore inexcusable.
16. Flowing from the above, I find that the claimants’ counsel submissions and arguments that Exhibit HM7was properly signed holds no water. Learned counsel for the claimants cited and made heavy weather of the case of Goodman v EBAN (J) LTD (Supra) and argued that the imprint “R. Adeshina” at the bottom of the letter is the same as signing a document under the law. He submitted that the court in that case held that, “………..signing is the affixing, either by writing with penor pencil or by otherwise impressing on the document one’s name or signature so as to personally authenticate the document.”. A careful reading of the holding above however reveals that the authority cited is not apposite to this case, this is so, considering the definition of the term “affix” which means to stick or attach something to something else, while the word “authenticate” in the Oxford dictionary 8th(International Students’) Edition is defined as “ prove that something is genuine” There is nothing to prove that the imprint “R. Adeshina” on Exhibit HM7 was meant to personally authenticate it, or that it is genuine. In addition, there is nothing to distinguish the imprinted name from the entire content of the letter, as proof that same was affixed or impressed on the letter for the purpose of authentication. Although it was pleaded that Exhibit HM7 is a copy of the original which was addressed and dispatched, see paragraph23 of the claimants Statement of Facts, the question still remains that if the claimants are claiming that Exhibit HM7 is a copy of the original, what will be the presumption as to the content of the original itself? The answer in this instance will be that the original was equally not signed.
17. In the circumstance, the position of the law on unsigned documents will now come into play, that is, such documents lack any evidential value see Aregbesola& 2 Ors. vOyinlola& 2 Ors. (2010) LPELR-3805(CA) per Ogunbiyi J.C.A where he held that:
“We agree with the contention that any unsigned document carries no weight even if it had been admitted in evidence.” See also Omega Bank v O.B.C Ltd (2005) 1 SCNJ 150.
It is premised on the above that I find that Exhibit HM7 is a document that ought to be signed but unsigned and unauthenticated, making it inadmissible in law and lacking in any evidential value. Consequently, the defence counsel’s objection to the admissibility of Exhibit HM7 is sustained and the exhibit is hereby discountenanced. I so hold.
18. The other documents in contention are Exhibit HM 13, i.e. the academic calendar of the 1st defendant for 2015/2016 session, ExhibitHM17 (i)-(iv) i.e. lecture timetables for 2016/2017 session, HM17 (v)-(viii) i.e. examination marking guides for the 1st semester exams and lastly, Exhibit HM18 which the claimants tagged as a list of Registered NCE 1 students for 2016/2017 session in the 1st defendant. It is safe to say that these documents by their nature, are not usually signed, therefore the absence of a signature on them cannot render them inadmissible. In Abeje v Apeke (2013) LPELR-20657(CA), Daniel-Kalio JCA held that:
“… Indeed many decisions say that an unsigned document is a worthless piece of paper that has no evidential value… it has to be said that it is not everything in writing that goes under the rubic of “document” that will lose its evidential worth simply because it is not signed…”
See alsoArewa Textiles Plc. v Finetex (2002) LPELR-5361(CA) Pg. 30where Salami J.CA remarked that:
“There is requirement to sign a judgment but as a matter of practice curriculum vitae are invariably not signed.”
And inNwosu North and South International Ltd. & Anor v International Trading and Industrial Corporation Ltd. (2014) LPELR-23425(CA) Tur JCA held that;
“Where a document which ought to be signed is not, authenticity is in doubt… it would certainly not go in as exhibit. (Emphasis mine)
19. Furthermore, the claimants in paragraph 8 of their Reply to the Statement of Defence dated 7th November, 2018, pleaded these documents and gave the defendants notice to produce the originals. Needless to say, that the cited exhibits are official documents of the 1st defendant which forms part of its official and academic record. While the defendants did not contend the existence of Exhibits HM13, HM17 (i)-(viii) and HM18, their objection to the admissibility of the documents stems from the perception that they were unsigned. The defendants however did not produce any documents to contradict the content of the Exhibits, or proffer any credible evidence in rebuttal of same.The provisions of the Evidence Act is clear that where a notice to produce any document is not acceded to, secondary evidence of such documents can be admitted in evidence see Section 89(a) of the Evidence Act, 2011. This position was reiterated in the case of VENN v Access Bank of Nigeria Plc (2014) LPELR-24077(CA) where Oseji JCA held;
“In the first place a notice to produce is a formal demand on the adverse party to bring before the court for the use of the requesting party such document or documents listed in said notice. Where a notice to produce is served on a party who fails to produce same, then the law allows secondary evidence of such document to be adduced where available.”
20. It is on the basis of the above, that I find that the defence counsel’s objection to Exhibits HM13, 17(i)-(viii) and 18 was misplaced, as they are documents that are ordinarily not signed and secondary evidence of the original, which aremade admissible under Section 89(a) of the Evidence Act, 2011. Premised on the above. I find that the defence counsel’s objection to the admissibility of ExhibitsHM12 (i), 13, 17 (i-viii) and 18 is misplaced and therefore overruled. I so hold.
21. In conclusion, I hold as follows;
a) Exhibit HM7 is unsigned and inadmissible in law and is hereby discountenanced.
b) The defendants’ objection to admissibility of Exhibits HM12 (i), 13, 17(i-viii) and 18is misplaced and same is overruled.
c) The claimants counsel is hereby allowed to affix his stamp and seal to Exhibit HM12(i)to regularize same.
Ruling is accordingly entered.
Hon. Justice A.A Adewemimo