How to tender documents in Court: Introduction
Documents don’t fly into the record of courts. Although, by virtue of frontloading system, documents a party seek to rely on during trial, must be frontloaded at the time of the filing of processes.
To tender a document in evidence, the party seeking to tender the document simply lead the witness in Examination in Chief to identify the document, and apply to Court to tender same, for it to be admitted.
A party seeking to tender a document, must have a copy of the document sought to be tendered, alongside the original of the document.
Eventually, the person will tender the original and make an application to substitute the original copy with a photocopy.
Who can tender a document in Court?
The issue of tendering of document in court depends on the type and nature of the documents sought to be tendered.
As a general rule, documents can only be tendered through the maker of such documents.
A person is said to have made a document if the document or the material part of it was written, made or produced by him with his own hand, or was signed or initialed by him or otherwise recognized by him in writing as one for the accuracy of which he is responsible. See Section 83(4) of the Evidence Act 2011.
Tendering a document through a witness other than the maker, amounts to hearsay and hearsay evidence is inadmissible in law. See Section 37 of the Evidence Act 2011
However, there are exception to the rule of hearsay as it relates to documents.This exceptions are specifically mentioned in Section 39 of the Evidence Act and there are:
- Where the maker of the document is dead.
- Where the maker of the document cannot be found
- Where the maker is incapacitated bodily or mentally.
- Where heavy cost will be incured in trying to secure the attendance of the maker or it will be practically impossible to get the maker
Section 83(1) (b) of the Evidence Act 2011 also made provisions for similar exceptions as to when a document can be tendered through a witness, other than the maker.
The court can as well permit under certain circumstances for a document to be tendered through a witness other the make, at any stage of the Proceeding, where the maker was in court but was not called as witness, or the original is not produced but the Certified True copy of the original. See Section 83(2) of the Evidence Act supra
This explains why Certified True Copies of a public document need not be tendered by the maker or through a witness. It can be tendered from the bar by the lawyer seeking to tender same.
Condition for you to tender a document through a witness other than the maker.
For a lawyer to tender a document through a witness other than the maker, proper foundation as to the whereabout of the maker must be laid.
This is done by establishing facts as to the death of the maker if the maker is dead, the place where the maker is, if much cost will be incured, trying to get him to testify and the fact that the maker is missing, if the maker cannot be found.
Tendering Photocopies of Document
It is a general rule of evidence that documentary evidence are proved through primary or secondary evidence. The best evidence is always the primary evidence.
The primary evidence of a document include:
- The original of a document itself
- A counterpart copy of the original document if it has counterpart copy
- A part of the document if the document is made in several parts.
- Each document made in the same uniform or mechanical process. See Section 86 of the Evidence Act.
Whereas, secondary evidence includes:
- Photocopies made from the original
- Certified True Copies
- Counterpart of a document as against the party who did not execute it
- Oral account of the content of a document by a party who has seen it. See Section 87 of the Evidence Act
By Section 88 of the Evidence Act, only primary evidence can be tendered with exceptions. One of such exceptions is where the original of the document is lost or destroyed, or the original is immovable or the original is in possession of the person against whom it is to be tendered(after notice to produce has been given). See also Section 89 and 91 of the Evidence Act supra
However, to tender a secondary evidence, a party seeking to tender the said document must lay foundation as to the fact that the document is lost, in possession of adverse party. But Where it is a certified true copy, it can be tendered from the bar.
Tendering a document during Cross-examination
A document can be tendered through an adverse witness for the purpose of contradicting that witness during Cross-examination.
How to tender a document (sample)
First, lead the witness to adopt his Statement on Oath. Sample of how to lead witness in Chief is below:
Q. Witness, tell the Court your name
A. My name is MK Iteshi
Q. Where do you live?
A. I live at No 45 Ogbaga Road Abakaliki
Q.What do you do for a living?
A. I am an electrical Engineer
Q. Recall that you made a Statement on Oath before this Court on 1st January 2022.
Q. If you see the said Statement on Oath, will you recognize it?
Q. Take a look, Is this the Statement?
Q. Do you want the Court to adopt same as your evidence in this matter?
Q.In paragraph 4 of the Said Statement, you mentioned Power of Attorney dated 1st day of June 2021?
Q If you see it, will you recognize it?
Q. Take a look, is that the document?
Q. My Lord, I apply to tender same in Evidence as exhibit and I also pray to substitute the original with a photocopy.
Q. That is all in examination in Court.
Effects of Document tendered in Court but was 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, a 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.
Tendering of Documents in court is so vital. Documents not tendered, although frontloaded is deemed not to exist before the court. A document must be tendered before court can act on it.