Are Documents Made by Interested Persons to an Action Admissible in Court?

Generally, a
document made by a person interested in an action either in anticipation of the
suit or during its pendency is inadmissible. See Section 83 (3) of the Evidence
Act 2011 as amended.

Who is an
interested person in this context?

An interested
person in the context of admissibility or otherwise of documentary evidence is
one who is likely to pervert the truth as a result of his pecuniary or other
material interest in the result of a proceeding. For example, say Mr. John Doe,
a pharmacist, is claiming damages in the sum of ₦1,000,000.00 (One Million Naira) from a pharmaceutical company on grounds
of negligence (Donoghue v Stevenson). If Mr. John Doe swears to an affidavit or
prepares an expert opinion in respect of his case, it stands to reason that
such document prepared by Mr. John Doe will most likely be in support of his
claims. Furthermore, due to Mr. John Doe’s proximity to the case, he may be
tempted to simulate the facts to suit his side of the story considering that he
has a lot to lose or gain from the results of the proceeding.

What nature of
interest will bar the admissibility of the document in question?

Where a person
has a personal interest in the results of a proceeding as against an interest
in an official capacity such as that of an employee or servant, any document
prepared by him in respect of the matter is inadmissible. In the case of UTC
(Nig.) Plc v Lawal (2013) LPELR-23002(SC) at page 27 paras A-F, the
Supreme Court per Ariwoola J.S.C held as follows:

“…the interest
that is envisaged by the law which disqualifies is a personal interest not
merely interest in an official capacity…It does not mean an interest in the
sense of intellectual observation or an interest purely due to sympathy. It
means an interest in the legal sense, which imports something to be gained or
lost.”

Similarly, in the
case of Nigeria Social Insurance Trust V. Klifco Nigeria Ltd(2010)
LPELR-2006(SC) on pages 26-28, paras. D-G, the Supreme
Court per Chukwuma-Eneh, J.S.C held as follows:

“The nature of
the disqualifying interest will depend upon the nature of duty undertaken by
the servant. Where from the nature of the duty he can be relied upon to speak
the truth and that he will not be adversely affected thereby, the document has
always been admitted in evidence. This is because the rationale of the
provision is that he must be a person who has no temptation to depart
front the truth on one side or the other – a person not swayed by personal
interest, but completely detached judicial, impartial, independent” [Emphasis
Ours].

However, can one
accurately state that an employee has no personal interest in the outcome of a
proceeding to which his employer is a party? Can we safely conclude that a
document prepared by John Doe’s employee in respect of the negligence claim was
without any influence from John Doe himself? In light of these uncertainties,
we reckon that a determination by the courts, as to whether or not a document
prepared in an official capacity is ‘tainted with personal interest’ will have
to be decided on a case by case basis.