Introduction to Admissibility of Documentary evidence in Nigeria.
Admissibility of Documents is the acceptance of Document tendered by a party in Court by a judge, Magisterate or anyone sitting in a judicial capacity.
It is not every Document tendered in Court that are admitted. Some Documents are admitted in Court and marked as “Exhibit” while Some are Rejected and marked “Rejected”
The implication of Documents tendered and admitted in evidence as Exhibit is that, Court may likely rely on the Document or use it to determine the facts in issue before the court.
But where a Document is tendered and marked “Rejected“, such a Document will no longer be used in the said suit against which it was rejected and marked as such.
The type of Document admissible in law.
Documents are categorised into two: Public Documents and Private Documents. In law, both Private Document and Public Document can be proved through primary or Secondary Evidence.
Primary Evidence are the original of the Document, it’s part, it’s counterpart copy or other copies of the Document made in the same uniform or mechanical process.
While Secondary Evidence are photocopies of the original Document, certified copies of the original Document, oral Evidence of the content of the Document by a person who has seen it, and counterpart of a Document as against the party Who didnt execute it. See Section 86 to 88 of the Evidence Act 2011.
Admissibility of Public Documents in Nigeria.
Public Documents can be proved by primary or Secondary Evidence. Original copies of Public Document can be tendered where the original is movable, but in most times, it is always the certified true copies of Public Document that are tendered.
By virtue of Section, 87, 89(e to f), 105, and 104 of the Evidence Act, Certified true copies of Public Document constitutes secondary evidence of public documents which require certification before it can be admitted in Evidence.
Where however, the document are primary evidence, they would not require certification.
This is because certification come into play when the document is coming in the secondary form. Example: Government Chemist report or medical report. See the case of Ogheneovu v FRN(2019) 13 NWLR (Pt.1689) P.240
The condition for Admissibility of secondary evidence of Public Documents is that it must be certified true copy. Only certified true copy of Secondary Evidence of public document, can be tendered and admitted in evidence. See Northwest Energy (Nig) Ltd v Ibafon Oil Ltd(2015) 16 NWLR (Pt.1484) P.5.
The Court in the case of Onobruchee v Esegine(1986) 1 NWLR (PT 19) 799, held that even if a document is signed, but not certified, as far as it is photocopies, it is inadmissible, even if it admitted, it will be expunged during judgement. The requirement of certification cannot be waived, nor can parties confer admissibility on a document.
By virtue of Section 104(1) and (2) of the Evidence Act supra, the proper person to satisfy a Document of this nature is the public officer, having the custody of the public document which any person has right to inspect.
Such an officer is expected to inscribe a certificate at the foot of the Document, showing that it is a true copy of it. The certificate will include:
- name of the officer
- The official title of the officer
- The signature and date
- Seal of his office where necessary
Admissibility of private documents.
The law is that only primary Evidence of a Private Document can be tendered and admitted, but there are instances where the law allows Secondary Evidence of private document. The instances are:
- Where the original is lost, and proper foundation has been led as to the loss of the Document.
- Where the original Document is in possession of the adverse party and notice to produce has been given etc. See Section 89 and 91 of the Evidence.
Principle that governs admissibility of Documentary evidence in Nigeria.
The cardinal Principles that guide Admissibility of Documentary evidence was enunciated by Court in the case of Okonjo v Njokamma to wit:
- It’s admissible States.
For a pieces of Document to be admissible, such Document must be relevant to the proceeding before the court. An irrelevant document is a Document that is not in anyway connected to the facts in issue and has no probative value.
It becomes unecessary to admit such Document if it will not help the court to determine the issues before the court.
Whereas, any Document that emanated from the facts in issue or that forms part of what gave rise to cause of action is relevant.
Relevance is the primary yardstick for measuring whether a document should be admitted or not. A tribunal, or court must be satisfied that a piece of document sort to be tendered are relevant to proceeding before it.
The Court in the case of Jwan v Ecobank(Nig) PLC(2021) 10 NWLR PT. 1785 P 461 said:
“Relevance of a document determines its admissibility during trial.
..relevance of a document will not be tantamount to its probative value in the final determination of the facts contained therein, which it seeks to establish”.
In an era of frontlaoding, a Document must be pleaded by the party seeking to tender it in Court. Beside pleading it, the party will also frontload the Document.
This is to enable an adverse party to prepare for his defence as the law frowns at hide and seek game.
How to plead a Document.
A party pleads a Document by refering to the Document in one or more of the paragraphs of his pleading specifically or generally by refering to facts, transactions or circumstances surrounding the Documents.
In pleading a Document, only material facts supporting the admission of a documentary ought and should be pleaded and not necessarily the document itself.
The Court Supreme Court reinterated this position in the case of. Pillars(Nig) Ltd v Desbordes (2021)12 NWLR(PT.1789) P.124 to 125 that:
” By virtue of section 1 of the Evidence Act, facts only and not the evidence to prove the facts need to be pleaded. Specific documentary evidence need not be pleaded as long as the facts relating to the document are expressly pleaded”
See also Ezemba v Ibeneme(2004) 14 NWLR(Pt. 894) 617
Thus a document need not be specifically pleaded . In other words, once sufficient materials in respect of a document are averred, it shall be sufficient for a pleader to rely on it. See Access Bank PLC v Ogboja(2022) 1 NWLR (PT.1812) P.561
Thus, documents in support of pleaded facts can be tendered and admitted even though the document itself had not been specifically pleaded. See also Okonkwo v C.C. B(Nig) Plc(2003) 8 NWLR(PT.822) 347
However, the mere fact that a document is pleaded or frontloaded, does not give relevance to the document. A party tendering a document must demonstrate the relevance of the document to his case or an aspect of his case. See Jimi v INEC(2022)8 NWLR (Pt.1833) P.588
c. In admissible State
The document sought to be admitted must be in admissible State. Admissible State in this regards entails that the Document must be in compliance with the requirement of the law by it’s form and nature.
This include the manner in which the Document was procured.The Document must not be obtained in contravention of a written law.
Thus the Document must be dated and signed, certified if it is one that require Certification and any other requirement that law may prescribe.
However, where a Document is not in admissible State, but it is relevant, Court may still admit it. But the probative value of the Document will be less.
Still, non-compliance with the Principle laid down by Court in Okonjo v Njokamma supra, may becomes a gound for raising objection to the admissibility of the Document.
The Power of Court to admit or reject a Document.
Court has wide power to admit or reject a Document tendered. The Power Court has as such is statutory. Under Section 14 of the Evidence 2011:
a. improperly or in contravention of a law.
b. in consequence of an impropriety or of a contravention of a law, shall be admissible unless the court is of the opinion that the desirability of admitting the evidence is outweighed by the undesireability of admitting evidence that has been obtained in the manner in which the evidence was obtained.
However, Section 15 of the Evidence Act provides the matter the court shall take into account which include:
a.The probative value of the evidence
b.The importance of the evidence in the proceeding
c.The nature of the relevant offence, cause of action or defence and the nature of the subject matter of the Proceeding.
d. The gravity of the impropriety or contravention
e. whether the impropriety was deliberate or reckless.
d. whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention.
g. the difficulty if any, of obtaining the evidence without impropriety or contravention.
Grounds for raising objection to Admissibility of Documents in Court
a. Where the Document sought to be tendered is a photocopy and no foundation was led as to the whereabout of the original.
b. Where the Document is tendered through a witness other than the maker and no foundation was laid to establish the whereabout of the maker.
c. Where the Document is a computer generated Evidence and there is no Certificate of compliance as required by law.
d. Where the Document sought to be tendered was not signed or dated.
e. Where the Document sought to be tendered is irrelevant to the proceeding.
f. Where the Document tendered was not pleaded.
g. Where the Document sought to be tendered was not certified or properly certified in accordance with Section 104 of the Evidence Act 2011.
h. Where the Document(confessional statement) was obtained under duress, threat or inducement.
Documents are vital to proceedings in Court. Much is at stake when a Document is tendered. If a Document is Rejected, a party’s case may have been dismantled.
It becomes imperative that a lawyer understands the nitty-gritties of Documentary evidence, for better result in case management and favourable court judgement.