DOCUMENTARY EVIDENCE

A document, as within the intendments of the Act, has been provided by section 258 of the Evidence Act, 2011 to include:

a) books, maps, plans, graphs, drawings, photographs, and also includes any matter expressed or described upon any substance by means of letters, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter; 

b) any disc, tape, soundtrack or other devices in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it, 

c)  any film, negative, tape and or other devices in which one or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced from it; and

d)  any device by means of which information is recorded, stored or retrievable including computer output 

Documentary evidence has been defined as any evidence introduced at a trial in the form of pieces of paper, booklets, etc which provide information. It is also such evidence as is furnished by written instruments, inscription, documents of all kinds and also any inanimate object admissible for the purpose, as is distinguished from oral evidence, or that delivered by human beings viva voce.

The best evidence of the contents of a document is the document itself. By section 85 of the Evidence Act, 2011, the contents of documents may be proved either by primary or secondary evidence. See the case of FAGBENRO v. AROBADI (2006) 7 NWLR (pt 978) 172. Primary evidence in this respect basically means the original copy of the document in issue while secondary evidence means a copy other than the original copy of the document in issue; this may be a photocopy of the document

Section 94 of the Evidence Act Cap. 112 LFN 1990 defines primary evidence as:

1)  Primary evidence means the document itself produced for the inspection of the court

2) Where a document has been executed in several parts, each part shall be primary evidence of the document

3) Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence of the document (an example here is where a contract which has about 5 parties to it is drafted and copies are made for all the parties involved. In executing the contract, each party signs all 5 copies of the contract agreement at the same time using a carbon paper. Each copy of that agreement signed using carbon paper is the primary evidence of the agreement.[FORBES v SAMUEL (1913) 3 K.B. 706]. A message sent through a fax machine is the primary evidence of the message. An unsigned carbon copy of a letter is however not the primary evidence of the contents of the signed top copy.)

4)    Where a number of documents have all been made by one uniform process, as in the case of printing, lithography or photography, each shall be primary evidence of the contents of the rest, but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.

This was also provided for by the Evidence Act, 2011 in section 86.

Section 87 provides that secondary evidence includes -

• certified copies given under the provisions hereafter contained in this Act;
• copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
• copies made from or compared with the original;
• counterparts of documents as against the parties who did not execute them;
• oral accounts of the contents of a document given by some person who has himself seen it.

Section 88 provides that documents shall be proved by primary evidence except in the cases hereafter mentioned in this Act. Section 89 goes on to provide the cases where secondary evidence may be given. These include:

a.   when the original is shown or appears to be in the possession or power –

•       of the person against whom the document is sought to be proved, or
•      of any person legally bound to produce it, and when after the notice mentioned in section 91 such person does not produce it; (take notice of this part)

b.  when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

c.   when the original has been destroyed or lost and in the latter case all possible search has been made for it;

d.   when the original is of such a nature as not to be easily movable;

e.   when the original is a public document within the meaning of section 102;

f.    when the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence;

g.  when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court, and the fact to be proved is the general result of the whole collection;

h.   when the document is an entry in a banker’s book.

For the secondary evidence of a document to be admissible before the court, such a copy has to be a Certified True Copy (CTC) of the document sought to be tendered. See sections 104 and 105 of the Evidence Act. Going by its name, a CTC of a document is a copy that has been certified or verified to be a true and actual copy of the original document in question. The only acceptable secondary evidence of a public document is a CTC of the document. See UDO v. THE STATE (2016) 12 SCM, 150, ARAKA v EGBULE (2003) 17 NWLR (pt 848) 1 @ 18 para D-E. As held by the Supreme Court in UDO v. THE STATE (supra), where the original of a document is tendered in evidence, it need not be certified as provisions of sections 104 and 105 would not apply to it.  

NOTICE TO PRODUCE

By section 91 of the Evidence Act, 2011 secondary evidence of the contents of a document shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law, and if no notice to produce is prescribed by law, then such notice as the court considers reasonable in the circumstances of the case. This, therefore, means that to be able to tender a document in court by secondary evidence, such party seeking to tender it has to give the party in possession of the original document notice of the party’s intention to plead the document and such notice requires the possessing party to produce the original in court.

As it is with every general rule in law, there are exceptions to the above-stated rule. The notice to produce will not be required:

·     Where the document to be proved is itself a notice

·     Where, from the nature of the case, the adverse party (possessing party) must know that he will be required to produce it

·    Where it appears or is proved that the adverse party has obtained possession of the original by fraud or force

·     Where the adverse party or his agent has the original in court

·     Where the adverse party or his agent has admitted the loss of the document

The notice to produce may be served on the party or any other person who is under the power or control of the party. Failure to produce such a document allows the party who served the notice to bring the secondary evidence. The essence of Notice is not to give the producing party an opportunity to raise a defence to the document but it is to clear the road for the serving party to produce the secondary evidence of the document.

Where there is oral as well as documentary evidence, the documentary evidence should be used as a hanger from which to assess oral evidence. A party is precluded from giving oral evidence of the contents of a document. See ANAMBRA STATE GOVT v GEMEX INT. LTD. (2012) 1 NWLR (pt 1281) page 333 @ E-F

NOTE: a person wishing to prove the contents of a document in the possession of another can only do so by serving such party with a subpoena and this may come in three ways but this is a topic for another post. Subpoena may be distinguished from Notice to produce in that while the Notice does not necessarily compel the party it is served on to produce the document in question, a subpoena compels the party it is served on and failure to comply amounts to disobeying the court’s order and such a disobedient party may be liable to prison committal or some other appropriate punishment.