Evidence Law: A Common Ground Between Civil And Criminal Litigation (Part 2) | Wale Adeagbo AICMC

DOCUMENTARY EVIDENCE

Evidence tendered by the use of documents is simply referred to as documentary evidence. Section 258(1) of the Evidence Act, 2011, has defined the word document very extensively to include books, maps, plans, graphs, drawings, photographs, discs, tapes, soundtracks, films, negatives, computer outputs and so on. Documentary evidence is of two types to wit- private and public documents.[1]

It should be noted that be it private or public, the best evidence of the contents of a document is the production of the document itself.[2] Thus, the contents of a document can only be proved by tendering its original copy or secondary evidence thereof, upon proper foundation being first laid for the admissibility of such secondary evidence. Section 88 of the Evidence Act has provided that documents shall be proved by primary evidence, except in the cases and instances stipulated in the Evidence Act.

Primary Evidence

As brilliantly captured by the provisions of Sections 85 and 88 of the Evidence Act, the contents of documents may be proved either by primary or secondary evidence. Section 86 of the Act has described primary documentary evidence to mean the original document itself; each part of a document executed in several parts; the counterpart of a document executed by a party; and documents made by one uniform process (printing, photography, electronic process), each of which shall be the primary evidence of the contents of the rest.

Secondary Evidence

Secondary evidence includes certified copies in line with the Act; copies made from the original by electronic or mechanical processes; copies made from or compared with the original; counterparts of documents as against the parties who did not execute them; and oral accounts of the contents of a document given by some person who has himself seen it.[3]

A photocopy of a document be it private or public, being secondary evidence of the contents of the original, is inadmissible. However, for such secondary evidence to be admissible, the proper foundation must be laid. The instances by which secondary evidence may be given are as provided under Section 89 as follows:

1. When the original is in the possession of the adversary;
2. When the original has been destroyed or lost and a search has been made for it in the latter case;
3. When the original is not movable;
4. When the original is a public document within the meaning of Section 102, Evidence Act;
5. When the original is a document of which a certified copy is permitted;
6. When the original consists of documents which cannot be conveniently examined in court, etc.

The Lawyers Directory

Admissibility of documentary evidence

It has now become trite that the admissibility of a document and the evidential weight to be attached to it are very distinct. See ISMAILA v. MATHEW.[4] For a document to be admissible, it has to pass through the tripartite criteria of:

• Being pleaded;
• Being relevant; and
• Being admissible in law.

ASSESSMENT DRILLS

1. Evidence Act, 2011 defines evidence to mean:
2. The fountainhead of a party’s case
3. The instrument regulating the procedure of evidence in the Nigerian legal system
4. quasi meaning
5. none of the above

2. Evidence includes the following:
3. Testimony
4. Oral evidence
5. Depositions
6. All the above

3. The Evidence Act empowers the Attorney General of the Federation to make regulations in respect to admissibility of evidence under Section:
4. 252
5. 245
6. 254
7. 255

4. Rules of Court form part of the legal framework of the law of evidence:
5. Probably
6. Undecided
7. No
8. Yes

5. Affidavit evidence is most appropriate in matters initiated by:
6. Writ of summons
7. Writ of execution
8. Originating claims
9. Originating summons

6. Your answer in No 5 above is because the matter is:
7. Contentious
8. Equilibrium
9. Potentially contentious
10. Non-contentious

7. Documents attached to an affidavit:
8. Do not concern the court
9. Form part of the evidence
10. Need not be admissible ordinarily
11. B and C above

8. Brail is deemed and considered to be oral evidence:
9. Probably
10. Undecided
11. No
12. Yes

9. Re-examination is employed to:
10. Restate evidence
11. Re-strategize
12. Clear ambiguities
13. Clear ambiguities and restore credibility

10. The best evidence of the contents of a document is:

1. Primary evidence
2. Secondary evidence
3. Private evidence
4. Original

REFERENCES

[1] Sections 102 and 103, Evidence Act.

[2] Ogah v Ikpeazu (2017) 17 NWLR (Pt. 1594) 299 at 343

[3] Section 87, Evidence Act.

[4] (2017) All FWLR (Pt. 891) 824 @ 836 CA