EVIDENCE 2.1B DOCUMENTARY EVIDENCE 2 (TENDERING SECONDARY EVIDENCE)
Tendering Secondary Evidence:
Remember the best evidence rule which is also couched in Section 88 above.
:: However, (as the court noted in Habib Bank V Koya[1]), a party can tender secondary evidence after he has laid proper foundation as to the whereabouts of the primary/original document. The relevant provision shall be discussed right away.
Section 89[2]. Secondary evidence may be given of the existence, condition or contents of a document when–
(a) the original is shown[3] or appears to be in the possession[4] or power— (i) of the person against whom the document is sought to be proved, or (ii) of any person legally bound to produce it, and when after the notice[5] mentioned in Section 91 such person does not produce it[6];
(b) 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[7].
(c) the original has been destroyed or lost and in the latter case all possible search has been made for it; in Halsbury’s Laws of England, it was noted that: -the propounder must satisfy the court that the primary document really existed and it has (in fact) been lost/destroyed[8] and a diligent search for it has been made in good faith but to no avail. See R V Hill[9].
(d) the original is of such a nature as not to be easily movable; e.g. inscription on wall, monuments, gravestones, and so on-Owner V Beehive Spinning Co. Sebastine Tar Hon noted that the admission of secondary evidence here reduces the workload of the courts in having to move to the locus in quo[10].
(e) the original is a public document within the meaning of Section 102[11]; this subsection has an extension which is Section 104 it provides: (1) Every public officer having the custody[12] of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be. (2) The certificate… shall be dated and subscribed by such officer with his name and his official title and shall be sealed, whenever such officer is authorized to make use of a seal. and such copies so certified shall be called certified copies[13]. (3) An officer who by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
Don’t be scared. The combined interpretation of Section 89(e), 102 and 104 is simply saying that instead of bringing an original/primary public document, you can bring a copy of it. PROVIDED that the copy is properly[14] certified by the officer designated to keep the original of it… and (as was held in Chief Ajao V Ambrose Family) only these Certified True Copies (CTC) of public documents may be produced in proof of the contents of the public documents. See Bishi Tin Co ltd V C.O.P[15]. Also, Minister of Lords V Azikwe[16]. Jules V Ajani.[17] In Bulama V Daggash, the public document was certified, signed and dated by the Secretary to the Government of Borno State. The court held that this was substantial compliance with the provisions.
(f) 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) 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[18]; e.g.
(h) the document is an entry in a banker’s book: This is another Section that requires your attention. Section 258 provides that “banker’s books” (and related expressions) includes ledger, day books, cash books, account books and all other books used in banking business[19]. This Section 89(h) must be read together with:
Section 90 (1)(e) which requires that bankers books cannot be received as evidence unless it is first be proved that[20] — (i) the book in which the entries were made was at the time of making the entry one of the ordinary books of the bank, (ii) the entry was made in the usual and ordinary course of business, (iii) the book is in the control and custody of the bank, which proof may be given orally or by affidavit by an officer of the bank, and (iv) the copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit[21].
In FRN V Fani-Kayode, the Court of Appeal held that substantial compliance is enough. Some banks now keep their books in softcopy. Well, such computer printouts of the softcopy (of bankers book) have been accepted in various cases some of which include: Yesufu V ACB Ltd, Kossen V Savannah Bank Limited, IBWA V Imano Nigeria Ltd, Narindex Limited V N.I.M.B Limited,
On documentary evidence, see also; Loannou V Dametruou (1952) 1 All ER p. 179. R V Lawani (1959) LLR 97. R V Haplin (1975) 1 QB 907. Lilley V Pettit 1046 KB 401.
IN SUMMARY, evidence can be proved by documents. Primary document is preferable but a person seeking to rely on secondary document can adduce same where his case falls within the exceptions allowed by law see e.g. Section 89. Additional requirements are however imposed for parties seeking to rely on a copy of a public documents and (or) bankers books in the former case, a CTC would be needed and in the latter, such book must be shown to have been the bankers book at the relevant time… amongst other considerations to be shown.
[1] Court allowed a photocopy to be tendered where the plaintiff had successfully explained the whereabouts of the original.
[2] This Section is in pari material with Section 65 of the Indian Evidence Act 1872 as amended.
[3] Proof that it is in the hands of the adversary may be by showing that it was last in his possession-R V Hunter.
[4] Possession may be actual, constructive etc maybe through solicitor, agent, servant, banker. The adversary should be shown to be in possession of the document-Edokpolor V Sem-Edo Wires. ma
[5] Such person should be served with notice to produce the document-Bevan V Waters 1 159 ER 1140, Nnamdi Azikiwe University V Nwafor. Nigeria Merchant Bank V Onabolu, Olaogun Entreprises V SJ and M. Failure to produce is not fatal. Kossen V Savannah Bank Limited Just enables the other party to adduce secondary evidence-Union Bank V Idrisu. From Section 90, no notice requied if document itself is a notice, adverse party obtained possession by fraud or duress, adverse party ought to know that he would be required to produce it, adverse party has admitted loss of document or where adverse party has original in court.
[6] In Sobande V Sarki, the original letter in dispute was proved to be in the possession of the plaintiff, hence a photocopy from defendants was admissible.
[7] Kossen V Savannah Bank Ltd. Although in Okonkwo V Ogbogu, the court held that such admission would not make inadmissible document admissible.
[8] Doe V Whittcomb.
[9] Where they said; “We have made all efforts to find the original but we can’t get it” then the court allowed Secondary evidence. B.O.N Ltd V Saleh also Habib Bank V Koya and Onochie V Ikem where upon similar reasons of loss and irretrievability, the courts allowed secondary evidence to be adduced. That rats ate the original was accepted in Chandar V Longa Bal.
[10] Digitization now allows for pictures and videos to be taken sha.
[11] Section 102 provides; The following documents are public documents-
(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: See Section 318 Criminal Code and
(b) public records kept in Nigeria of private documents. 103. All documents other than public documents are private documents. In Adekoya V Ailara, it was held that a public document is one made by a public officer for the purpose of the public making use of it and being able to make reference to it. The document must be available for public inspection. Ukana V C.O.P. Certificate of incorporation (Dana Impex Ltd V Awukam), Power of Attorney (Okamgba V Eke), Result sheets of Electoral Commission (Okoh V Igwesi)
[12] Ogbuanyinya V Okudo defined proper custody as deposit “with a person and in a place where, if authentic, it might naturally and reasonably be expected to be found”. Proper custody does not really affect admissibility but affects the weight and credibility to be placed on the document as in Torti V Ukpabi, the court held that a document produced from proper custody is presumed to be genuine. The court in Okonji V Njokanma noted that the document must proceed from proper custody else the weight attached to it may be diminished.
[13] P.D.P V Sidi-Ali. Bulama V Daggash.
[14] Look at the Sections above.
[15] (1963) 2 All NLR where the court held that the only the Certified True Copy of the Mining Lease could be admitted since it was a public document.
[16] 1969 1 All NLR 49 at 5.
[17] 1980 5 SC 9 at 114. Where uncertified copy of deed of conveyance was rejected as it is a public document. Uncertified copies of public documents have also been rejected in Okoh V Igwesi : Nwadike V Nwadike : Global Soap and Detergent Industries Ltd V NAFDAC : Nwancho V Elem : In Omega Bank Plc V OBC Limited, the court noted that such uncertified documents are evidentially valueless. In Goodwill and Trust Investment V Witt and Bush Ltd, the certificate of incorporation was certified by the Registrar of the High Court instead of the Registrar of CAC who was the proper officer. The court held that it ought to have been certified by the CAC.
[18] Sebastine Tar Hon in his treatise notes that this provision is needed to save the time of the court.
[19] The courts have given varying interpretations In Esso Petroleum Ltd V Oyagbola 1969 NWLR 194 at 198. Court held that leger cards are books of banks. Good. In Yusefu V ACB Ltd, the court rejected the contention that vouchers constituted bankers books.
[20] These requirements were also listed out by Ighu JSC in I.B.W.A V Imano Nig.
[21] These requirements were also listed in IBWA V Imano Ltd per Ighu JSC.
