Sections 88, 89 and 90 of the Evidence Act, 2011, communally regulate admission and proof of documents. Under Section 88 of the Evidence Act, documents shall be proved by primary evidence except in the cases mentioned in the Act.
Primary evidence has been defined by Section 86(1) of the Evidence Act to mean the document itself produced for inspection of the Court. The Evidence Act grants dispensation with primary evidence in Sections 89 and 90 of the Act to the effect that secondary evidencemay be given of the existence, condition or contents of primary evidence when inhibited by circumstances as spelt out in Section
89 thereof. Hence, the nature of the secondary evidence admissible under Section 89 are provided for by Section 90 of theEvidence Act. Section 90(1)(c) of Evidence Act, 2011, also provides for admissibility of the photocopy of a public document to be a certified copy of the document, but no other photocopy.
Again, sections 102 and 103 of the Evidence Act, have clearly distinguished what private and public documents are. The Evidence Act, section 102, and the Stroud’s Judicial Dictionary, both define a public document to be a document made for the purpose of the public making use of it and one to which the public has access or original documents executed or made by public officers or public agency while carrying out official act. For the avoidance of doubt, the said section 102 states as follows:
(a) documents forming the official acts or records of the official acts of—
(i) the sovereign authority,
(ii) official bodies and tribunals, or
(iii) public, officers, legislative, judicial and executive,
whether of Nigeria or elsewhere: and
(b) public records kept in Nigeria of private documents.
While section 103 of the Evidence Act defines a private document as one which is meant for personal use and consumption.
Section 111 of the Evidence Act, provides for the certification of public documents. … Such certificate must be dated and subscribed by a public officer in custody of the document with his name and his official title with a seal if the officer is entitled in law to make use of a seal.
In Udom vs. Umana (No. 1) (2016) 12 NWLR Pt. 1526, pg. 179 at 234 -235, the Apex Court per, the noble Rhodes-Vivour, JSC., in his contribution instructed thus:
…. Before a public document can be tendered and accepted by the Court, it must be certified. A public document is certified if:
1. It was paid for;
2. there is an endorsement/certificate that it is a true copy of the document in question;
3. the endorsement/certificate must be dated and signed by the officer responsible for certification, with his name and official
title. Payment of the prescribed fees is indeed part of the conditions that must be fulfilled before a public document can be
validly certified to be the true copy of its original.
The case of Udom vs. Umana(supra) and sections 88, 89, 90 and 102 of the Evidence Act, 2011, would ordinarily come into play when questions of tendering of
documentary evidence and admissibility of same arise and wherein the totality of the dispute is initiated by way of Writ of Summons. In that stance, a witness would need to enter the witness box to lead evidence that will convert the pleaded documents into evidence. On the converse and in cases where proceedings are initiated by Originating Summons or Motion, there is no room for leading evidence in chief and tendering of documents from the witness box. All the evidence needed therein would be incorporated in the affidavit and counter affidavit sworn on oath either in support or against the Originating Summons or Motion. All that is left for the Court in this regard, is to read and interpret the documents and analyze the affidavit and counter affidavit facts as they are before it. This is to say that the parties are left with no room for vive voce evidence.
This position is in consonance with the decision of the Court of Appeal, per Mbaba, JCA., in British American
Tobacco Nig. Ltd. vs. International Tobacco Co. Plc. (2013) 2 NWLR Pt. 1339, Pg. 493 at 520 – 521 where he found that:…public documents exhibited as secondary copies in affidavit evidence cannot necessarily be certified true copies and that document exhibited to an affidavit is already an exhibit before the Court, being part of the affidavit evidence which a Court is entitled to look at, and use…..See Adejumo V Governor of Lagos State (1970) All NLR 187. Where the same position was taken by the Supreme Court. See also Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 608, 735 and Jukok International Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55. The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy … It is therefore not the position of law to expect the exhibited photocopy to be certified by the adverse party before the Court can attach probative value to it” Per EKANEM, J.C.A. (Pp. 14-16, Paras. D-F). See BOKO v. NUNGWA & ORS (2018) LPELR-45890(CA).
This position is a departure from the case of Governor of Kwara State v. Lawal (2007) 13 N.W.L.R (Pt. 1051) @pp 360-361, where the Court of Appeal held that:
“Where a public document as opposed to a private document is produced in an attempt to prove facts in issue before a court of law, before it can be considered admissible in evidence, it must be duly certified as required by law, irrespective of whether such a document is being used in an interlocutory application or at the hearing of a substantive suit. In other words, only a certified true copy of a public document must be tendered.”
And also the case of Fawehinmi v. IGP (2000) 7 N.W.L.R. (Pt. 665) @p. 525, which was upheld by the Supreme Court. But the S.C in Jukok International Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55 departed from the cases of Governor of Kwara State v. Lawal (2007) 13 N.W.L.R (Pt. 1051) @pp 360-361, and Fawehinmi v. IGP (2000) 7 N.W.L.R. (Pt. 665) @p. 525 and then set the ball rolling for the decision in British American. Tobacco Nig. Ltd. vs. International Tobacco Co. Plc. (2013) 2 NWLR Pt. 1339, Pg. 493 at 520 – 521.
A document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be proper before the Court to be used, once the Court is satisfied and it is credible, being already an evidence before the Court (on oath), the formality of certification for admissibility, (if it required certification) had been dispensed with. Of course, the reason for this is easy to deduce, the first being that affidavit evidence is already an admitted evidence before the Court, unlike pleading, which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided. Again, as mentioned earlier, document attached to an affidavit evidence must necessarily be a photocopy or secondary copy (except where the document was executed in several parts or counter parts and the deponent has many of the parts to exhibit in original forms). See British American Tobacco Nig. Ltd. vs. International Tobacco Co. Plc. (2013) 2 NWLR Pt. 1339, Pg. 493 at 520 – 521.
It is therefore not the position of the law as it is today, to expect the exhibited photocopy of public documents to be certified by the adverse party before the Court can attach probative value to it. Originating Summons and Motions are fought on the platform of affidavit and counter affidavit evidence, documents annexed thereto have equally become evidence before the Court thereby dispensing with the question of their admissibility or non-admissibility. In this regard, secondary evidence or photocopies of the original documents are without
contest and suffices.
O.G. Ogbom, Esq., LL.B,(Hons) BL, LL.M., is a Port Harcourt based legal practitioner.