Introduction to Documentary Evidence in Nigeria

Section 258 of the Evidence Act 2011 defined document to mean books, maps, plans, graphs, drawing, photographs, including any matter expressed by use of letters or figures.

Documents under the Act also referred to disc, tape, sound track, or other device in which sounds or other data are embodied.

The Act also defined document to include, film, tape or anything by which visual image are embodied or any device by which means of information are recorded, stored or retrieved including computer output.

Types or Categories of Documentary Evidence

Under the Evidence Act 2011, there are two categorises of documentary evidence: Public documents and Private Documents.

Difference between Public Documents and Private Documents.

Section 102 defined public document to include:

a.Documents forming the official acts or records of (i) the sovereign authority ( ii) official bodies and tribunals,or (iii);public officers, legislative, judicial and executive, whether of Nigeria or elsewhere.
b.Public record kept in Nigeria of Private documents.

By the definition provided in Section 102 above, a document is a public document once:

• It is in the record of public officers or
• It forms part of the record of public institutions
• It forms an act of official bodies, tribunal, sovereign authorities and government.
• Anyone can access it when it is needed.
• Where public document is obtained, it will always have the official stamp of the body or public officer that issued it.

The court in the case of Northwest Energy (Nig) Ltd v Ibafon Oil Ltd(2015) 16 NWLR (Pt.1484) P.4,
Stated:

“Classification of public Document stands on two conditions which must co-exist
a. Its availability for public inspection and
b. The fact that it was made or brought into existence for that purpose”.

On the contrary to public document, every other Documents other than public documents are private Documents. See Section 103 of the Evidence Act 2011.

In other words, documents that emanates from private persons, are regarded as private documents.

Proof of Documentary Evidence

Documentary Evidence are proved by:

a. Primary Evidence

b. Secondary Evidence

Primary evidence of a document includes:

• The document itself produced for inspection in court
• The counterpart of the document, where the document is executed in counterparts.
• Each part of a document where it is made in several parts.
• Each document made in the same uniform process from common copies of the original. See Section 86 of the Evidence Act 2011.

Secondary evidence of a document includes:

• Certified copies
• Photocopies of the original
• Copies made or compared with the original
• Oral account of the content of the original given by someone who has seen it
• Counterpart of document as against the party who did not execute it. See Section 87 of the Evidence Act 2011

The general Principle of law is that documents are proved by primary evidence(See Section 88 of the Evidence Act 2011)

However, the Evidence Act also made provisions for when secondary evidence of documents may be given.

In the case of private documents, section 89 of the Evidence Act 2011, stated those situations when secondary evidence may be admissible to include:

• When the original is in possession of the adverse party, for which notice to produce has been given
• When the original has been destroyed or lost.

For a party to give secondary evidence of private document, the party seeking to tender the photocopy of the private document must lay proper foundation as to the whereabout of the original, in situation where the original is lost or destroyed.

But where the original is in possession of the adverse party, notice to produce to inspect must have been given to the adverse party in compliance with section 91 of the Evidence Act 2011.

The notice to produce empowers a party to tender the photocopy of the original he has where the original is not produced, provided that no notice to produce will be required where:

• The adverse party has the original in court.
• The adverse party ought to know that he will be required to produce the original in court.
• The adverse party has admitted the loss of the original etc. See Section 91 of the Evidence Act 2011.

In the case of Public documents, the only secondary evidence that may be given is the Certified true Copies of the public document.

In other words, no other copies of public documents are admissible in law apart from the original itself- where it is movable or the certified true copy-where it is immovable. See Northwest Energy (Nig) Ltd v Ibafon Oil Ltd(2015) 16 NWLR (Pt.1484) P.5.

The Supreme 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. See the case of Ogheneovu v FRN(2019) 13 NWLR (Pt.1689) P.240

Admissibility of Document in Nigeria

By virtue of Section 83(1) of the Evidence Act 2011

“In any Proceeding where direct evidence of a fact would be admissible, any Statement made by a person in a document which seems to establish that fact shall on production of the original document, be admissible as evidence of that fact”

The conditions for the admissibility of document include:

1.The requirement as to the maker of the document.

a.The maker of such document either had personal knowledge of the facts contained in the statement,or
the maker was supplied with the facts he recorded by a person who has personal knowledge of same.
b.The maker should be called as witness, except where the maker is:

• dead,
• unfit by reason of mental or bodily condition,
• cannot be found after reasonable effort or
• The person is outside Nigeria, such that it is not practicable to secure his attendance.

Where the maker is not called as a witness, proper foundation must be led as to the whereabout of the maker.

2. Relevance. The document sought to be tenderd must be relevant for it to be admissible. Relevance is the bedrock of admissibility.

3. The document must be pleaded and frontloaded.

4. The document must be inadmissible state.

Pleading of Documents

Only material facts supporting the admission of a documentary ought and should be pleaded and not necessarily the document itself.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 bmupon a pleader to rely on it. See Access Bank PLC v Ogboja(2022) 1 NWLR (PT.1812) P.561

It follows that, documents in support of pleaded facts can be tendered and admitted even though the document itself had not been pleaded. See also Okonkwo v C.C. B(Nig) Plc(2003) 8 NWLR(PT.822) 347

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”

Does Document Speak for Itself?

It is widely said that Document tendered in court Speak for itself.  In other words, Court can infer from the face of the Document, it’s content. If there is a mistake on the face of the Document, it can be seen from the face of the Document.

The conclusion is that a party cannot use oral Evidence to vary, add or contradict the content of a Document, save for the exceptions provided under the Evidence Act. See Section 127 of the Evidence Act 2011.

To what extent does Documentary evidence Speak for itself?

Documentary evidence no matter it’s relevance, cannot on its own speak for itself without the aid of an explanation relating it’s existence. It only speak for itself from the face of it.

Where a party dumps a document in court without showing how it affects the case of the party, the court has no duty to embark on an independent enquiry to fix the document to the case of the party.

It is therefore the duty of a party tendering a document to give the document relevance by connecting it to issues before the court.

The court in the case of Jimi v INEC(2022)8 NWLR (Pt.1833) P.588 held

“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”

Effect of Document tendered but marked Rejected

Where a document is tendered, the usual practice is for court to admit such document and mark it as exhibit. However, where the admissibility of the document is challenged, and the court refuse to admit the document, the usual practice is that court will reject the document and State:

“The document was tendered but marked rejected”.

The consequence of this is that such document naturally, does not exist before the trial Court and court cannot use it in determinination of the issue before the court. See Emokpae v Stanbic -IBTC P.M.Ltd.(2015) 17 NWLR (Pt.1487) P. 62.

However, party who tendered a document that was rejected can appeal against the ruling of the court rejecting the said document. This is usually, interlocutory appeal.

Objections to the Admissibility of Documents.

Objections can be raised regarding the admissibility of Documents in Court during the tendering of document.

Whenever such objection is raised to documentary admissibility, the party who tendered it, is at liberty to withdraw the Document or join issues with the party Who objected to the admissibility.

The party raising objection to the admissibility of a Document is expected to State the grounds for such objection.

Where the party who tendered the Document joins issue with the party objecting to the admissibility -by arguing on why the Document should be admitted in evidence, the Court will rule on the objection raised.

Grounds Upon which Objection can be raised, challenging the admissibility of Documents.

a. Where the Document is not Certified or properly certified. The only ground for admissibility of Public Document is that the Document tendered must be the original copy of the public Document, or a certified true copy of the original.

Certification of Public Documents under the Evidence Act 2011 is vital. Only certified copies of Public Document or the original itself are admissible.

Certification of Public Document is done by the officer Who is in charge of the original. In certifying the Document, the officer is expected to inscribe his name, title, signature, dated and official stamp in each pages so certified.

Where the above requirements are not met, it becomes a solid ground for objecting to the admissibility of the Document.

b. Photocopies of Documents.

Where the Document sought to be tendered is a photocopy and no foundation was led as to the whereabout of the original document, it can become another ground for objecting to the admissibility of a Document.

c.Where a document is tendered through a witness other than the maker without proper foundation laid as to the whereabout of the maker, objection can be raised as well.

This is because, the general rule of evidence is that documents should be tenderd through the maker. Document tendered through a witness other than the maker amount to hearsay. See Section 37 and 38 of the Evidence Act supra. On Who a maker of Document is, see Section 83(4) of the Evidence Act supra.

The only ground to tender Document through witness other than the maker is that proper foundation has to be laid as to the whereabout of the maker.

c. Where the Document is an Unregisterd Instrument.

Where the Document sought to be tendered is required to be registered, by virtue of land Instrument registration law or other relevant laws, it becomes a ground for raising objection to the admissibility of the Document.

This is because an Unregisterd land Instrument is inadmissble in law save where it is tendered for the purpose of evidencing the existence of a contract.

d. Computer generated evidence

Where the Document sought to be tendered is a computer generated evidence and there is no certificate of compliance attached to the document,  it becomes a gound for raising objection to the admissibility of the Document.

The requirement of certifate of compliance cannot be waived. The certificate States how the Document was produced, the machine used to produce it, the working condition of the machine, etc.

e. Where the document tendered is unsigned and undated. An unsigned Document is worthless and has no probative value.