Admissibility of Public Documents in Nigeria – State of the Law

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 Introduction

Evidence remains the cornerstone of litigation. It is the foundation of justice and the bedrock upon which cases fail or succeed in court. This accords with the principle that pleaded facts which are not proved are deemed abandoned. Hence an erudite scholar once said that the basic function of evidence is to ensure that justice is done and the truth is as far as practicable, ascertained[i]. A Lawyer therefore adduces evidence in order to convince the court of the correctness of his theory of the case. Documentary evidence is a fundamental type of evidence without which there cannot be any meaningful discussion of the law of evidence. It is statutorily classified into private and public documents under the Nigerian legal regime[ii]

The thrust of this write-up will therefore be to discuss public documents in the light of the criteria for its admissibility under the extant legal regime.

Meaning and importance of Documentary evidence

 A document includes –

  • 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;
  • Any disc, tape, sound track or other device 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; and
  • Any film, negative, tape or other device 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
  • Any device by means of which information is recorded, stored or retrievable including computer output[iii]

Documentary evidence refers to statements in a document tendered for purposes of establishing a fact.[iv] It is used to prove or disprove the existence of a fact in issue. Documentary evidence can be defined as information received from a relevant document or any storage device for the purpose of tendering it as admissible evidence and as exhibit to establish a fact in the Court. The importance of documentary evidence cannot be overemphasised. Hence the validity and veracity of oral testimony is tested and affirmed by documentary evidence. In First African Trust Bank Ltd v Partnership Inv. Co. Ltd (2003) 18 NWLR (Part 851) 35, 74, the Supreme Court stated that:

“Documentary evidence, where this is relevant, ought to be produced and tendered as they speak for themselves as against the ipse dixit of a witness in respect of such transactions which may not be readily accepted by the court.”

Similarly, in Alhaji Mukaila Kotun & Ors v Mrs Adeola Olasewere & Ors (2010) 1 NWLR (Part 1175) 411, 437, the Court of Appeal stated that:

“The position of the law is that documentary evidence always serves as a hanger from which to access oral testimony, consequently when documentary evidence supports oral testimony as in this case, oral testimony becomes more credible.”

 In Tijani Jolasun v Napoleon Bamgboye 44 NSCQR 94, 132-133 the court stated

“That the position of the law is that when documentary evidence supports oral testimony, such oral testimony becomes more credible. This is so because exhibits lend more credence to the oral testimony of the appellant/applicant.”

Furthermore in Felicia Akinbisade v The State (2006) 17 NWLR (Part 1007) 184, 201 the court stated that:

“The most reliable if not the best evidence in most cases is documentary evidence. I say so because it is, in most instances, more reliable than oral or parol evidence. Although documentary evidence could be victim of forgery, by human conduct, act or intervention, the instances of forgery are less when compared with oral or parol evidence, where witnesses tell lies with ease.”

Definition of Public Documents

 Section 102 of the Evidence Act 2011 defines public documents –

  • Documents forming the official acts or records of the official acts of –
  • The sovereign authority;
  • Official bodies and tribunals, or
  • Public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
  • Public records kept in Nigeria of private documents.

All documents other than public documents are private documents.[v] Once a document does not come under section 102, it is a private document.  According to The Law Dictionary[vi]a public document is a state paper, or other instrument of public importance or interest, issued or published by authority of congress or a state legislature. Also any document or record, evidencing or connected with the public business or the administration of public affairs, preserved in or issued by any department of the government. Public documents are documents made or kept by persons who are officers of government. It is important to note that for a document to acquire the status of a public document it must have been made by a public officer or kept by a public officer. Public officers include president, governors, ministers, commissioners, civil servants in governmental ministries, departments, and agencies, civil servants in the judiciary and legislative bodies, and judges etc. Therefore a document is public based on custody or origin.

Determination of a public document

 It is  imperative to distinguish between the definition of “a public document” under the Act and the English common law, as laid down in Sturla v Freccia (1880) 5 App.Cas. 623, H.L. In this case the report of a committee appointed by the Genoese government on the fitness of a candidate for the post of consul which contained a statement of his age was held inadmissible as a public document in proof of the fact in proceedings in connection with the devolution of property in the United Kingdom. The document was held not to be a public document for three reasons, namely, (1) that the report was not made under a strict duty to inquire into all the circumstances it recorded, (2) it was not concerned with a public matter, although it was realised that public matter need not concern the entire community, and (3) that it was not meant to be retained nor was it meant for public inspection.[vii] Under section 102 of the Evidence Act 2011, it is unnecessary to use these yardsticks to decide whether or not a particular document is a public document[viii]

In Onwuzuruike v Edoziem (2016) 6 NWLR (Pt. 1508) 215, 233-234, the court said that

‘’The public document must form part of the acts of records of the authorities listed. See S. 109(a) (i), (ii) and (iii) or private documents kept in Nigeria as public records. See S. 109(b) of the Evidence Act. The document need not be the product of the authority as long as it forms part of its records. In my humble view, the origin or authorship of a document is not determinative of its status as a public document; and this is where the trial court erred for failure to distinguish the source or authorship of a document from what it eventually becomes. The police, to whom the petition was addressed and who held same as part of their records are public officers within the meaning and intendment of S. 109 of the Evidence Act. In the hands of the appellant who wrote it, the document was a private document, but the moment it was received by the police to whom it was addressed it became part of the record of public officers and thus a public document. “

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In Udo v State (2016) 12 NWLR (Pt. 1525) 1, 23-24

 “The court held that the confessional statement of the accused was a public document since it forms part of the official acts of the police, who are public officers.”

In Jukok Int’l Ltd v Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55, the court held that a deed of debenture over fixed assets, an all assets debenture, copies of deed of appointment of a receiver duly registered, notice of appointment and certificate of registration with CAC were all public documents. Also in Gov., Ekiti State v Olayemi (2016) 4 NWLR (Pt. 1501) 1, 48, the court said that law enacted by a State House of Assembly such as Local Government Administration (Amendment) Law No 7, 2011 of Ekiti State is a public document because it is contained in the Gazette of Ekiti State or in a publication by order of the Government of Ekiti State.  Interestingly, in the case of Governor, Ekiti State & anor v Chief George F. Ojo and ors (2006) 17 NWLR (Part 1007), 95 127, the court mentioned the various classes of documents as provided under the Evidence Act as public and private and held that a public document does not cover classified and confidential communication between government and its official since such documents is not meant to be used by the public. The court held that the letter in contention was addressed to a limited number of people and that the document is secret which indicates that the circulation is restricted to those to whom it is addressed and it is not meant for public consumption.

Admissibility of Public documents

The court in Dr David C.O. Okoye & anor v Christopher N. Obiaso & Ors (2010) 8 NWLR (Part 1195) 145, 168 established clearly that the issue of admissibility of any documentary evidence is governed by the principle as to whether or not the document is pleaded by the party (ies) to the proceedings; whether it is relevant to the subject matter of inquiry by the court or tribunal and whether it is admissible in law. Therefore, the starting point for the admissibility of any public document is that it must have been pleaded. As evidence tendered without being pleaded goes to no issue. Also, the public document must be relevant to proving the fact in issue or any relevant fact in order to be admissible.  Most importantly, the public document must be admissible. The law is undoubtedly settled that all admissible evidence are relevant, but not all relevant evidence are admissible.

Requirements for Admissibility of Public Documents

 It is the duplicate or photocopy of public documents that is usually tendered in evidence. The photocopies of public document are only admissible after going through the process of certification. To this end, Section 104 of the Evidence Act 2011 which contains the requirements for the admissibility of public documents provide as follows:

Subsection (1) Every public officer having the custody 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.

Subsection (2) The certificate mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorised by law to make use of a seal, and such copies so certified shall be called certified copies.

Subsection (3) An officer who, by the ordinary course of official duty, is authorised to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.

In the case of S.O. Adeyefa & ors v Bello Bamgboye (2013) 10 NWLR (Part 1363) 532, 546 the court defined “certify” as follows:

‘’After all, certify, put simply, means to authenticate or vouch for a thing in writing. It may also be said to mean- ‘to attest as being true or as represented.’ As exhibit ‘A1’ did not contain the seal of the customary court, it failed to pass the test of due certification as dictated by the law and the heavy premium placed on it by the appellants/applicants appears to be to no avail. By virtue of section 110 of the Evidence Act, 1990 public documents must be duly certified before they can be admissible in evidence. This is a pronouncement of the Court of Appeal per Tobi, JCA (as he then was) in Aina v Jinadu (1992) 4 NWLR (Pt. 233) 91 at 107. It was well made and I endorse same without any shred of hesitation’’

The court further stated that the law is clear on this issue that:

“every public officer having the custody of a public document which any person has right to inspect shall give that person, on demand, a copy of it on payment of the prescribed legal fees, with a certification at the foot of the document, that it is true copy of its original. The certification expected to be endorsed on the said copy shall be dated and subscribed by such officer with his name and his official title and shall be sealed. The copies of such documents so certified are referred to as certified copies admissible in court.”

 The court in Oba Aruna Okiki II & Ors v Nosiru Jagun & Ors (2000) 5 NWLR (Pt. 665) 19, 26, stated the requirements for certifying public documents. The court stated that:

‘’Under S.111 of the Evidence Act 1990, five essential requirements are necessary for a document to be regarded a certified copy. These are

  • The legal fees must be paid where payable,
  • There must be a certificate at the foot of such a document that it is a certified copy of the original or part thereof,
  • It must be dated,
  • It must be subscribed by the officer issuing the document with his name and title of office; and
  • It must be sealed.”

Clearly from the authorities considered above, the courts in interpreting the law have unambiguously stipulated how a public document must be certified as only certified true copies of public documents are legally admissible in the absence of the original. Notably, certification can be handwritten. The court in Ineibere Bob-Manuel v Felix C.N. Woji (2010) 8 NWLR (Pt. 1196) 260, 273 noted that the certification can be handwritten and in the absence of contrary evidence to the genuineness of the certificate, the document must be presumed genuine. The court also in the same case made pronouncements on the status of a certified true copy of a public document as follows-

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‘’The averment that the document in question was conveyed and registered in the lands registry at Port Harcourt, is enough compliance that, though, a private document, it became a public document, and its proof by, tendering a certified true copy is enough by virtue of sections 91 (2) (b) and 97 (1) (e), (f) of the Evidence Act, 2004. There is no need to search for the original document”

In tendering secondary evidence, it is important to lay foundation as to the whereabouts of the original document. Glaringly, the exception is a certified true copy of a public document which is tendered without laying any foundation as to the whereabouts of the original as it would obviously be in the custody of a public officer assigned with such duties. The requirement of tendering certified true copies of public documents is presumably intended to remedy the mischief of having to procure the original copies of public documents as they are documents that belong to the public and should be kept in the custody of public officers. The court in Ineibiere Bob-Maunel v Felix C.N. Woji(supra) pg. 273 further stated that

“Under section 95 of the Evidence Act, all kinds of secondary evidence are listed. This includes ‘’certified copies’’. In giving secondary evidence of all categories, except certified true copy, as provided for in section 97 (1) (a), (b), (c), (d), (g) and (h) of the Evidence Act, evidence of whereabouts of the original must be given.”

 The court in Ogboru v Uduaghan (2011) 2 NWLR (Pt. 1232) 538, emphasised the need for a re-certification of the photocopy of a certified true copy of a public document for it to be legally admissible.

The Admissibility of original copies of Public Documents

There has been a lingering controversy on the admissibility of the originals of public documents. In some cases, the courts proclaimed certified true copies as the only admissible version of public documents. This controversy has however been largely laid to rest by the apex court in Kassim v State (2017) LPELR – 42586 (SC) (Delivered by the Supreme Court of Nigeria on Friday, the 30th day of June, 2017). 

Summary of facts: The appellant was charged and convicted of the offence of culpable homicide by both the High Court and Court of Appeal. Dissatisfied with the decisions of the above courts, the appellant appealed to the Supreme Court. Part of the pieces of evidence which the trial court relied on to convict the accused were extra judicial statements made by the accused to the police in the cause of their investigation and a medical report issued from M. A. Wase Specialist Hospital Kano. The appellant appealed and one of the issues laid before the Supreme Court for determination was whether Exhibits 1, 2, & 3 are inadmissible in law for failing to satisfy the requirements and conditions for the admissibility of evidence under the relevant provisions of the Evidence Act, 2011. The court held that the said exhibits are public documents within the meaning given under section 102 of the Evidence Act. The appellant contended that since the said documents are public documents, therefore only certified true copies of the documents are admissible. Hence the appellant urged the apex court since to hold that the original versions of the said exhibits tendered in evidence were inadmissible.

The Supreme Court held as follows:

‘’I will come anon to the interpretation of these provisions of the Evidence Act, 2011. Before then, suffice that I mention that the Courts are not unanimous on whether; where original copy of a document forming part of public record is available, the secondary evidence of it, as opposed to the original and primary evidence of it, is the only legal evidence admissible in evidence and it is illegal to prove its contents by the production of the original copy. Galadima, JCA (as he then was), for instance had, in CHIEF SUNDAY N. A. (SUING BY HIS ATTORNEY, MR. SOLOMON IWEBUZOR) v. DELTA FREEZE NIG. LTD. & ORS. (2010) LPELR – 9114(CA), queried the prudence of insisting on the certified true copy of a public document when the original is available as the primary evidence of the contents. His Lordship states “that I should hold that Exhibit B being primary evidence under Section 94 is admissible without the need for certification by virtue of Sections 93 and 96 of the Evidence Act. With due respect to the learned trial Judge he was in error in holding that Exhibit B ought to have been certified. It does not require to be certified to render it admissible in evidence. In the case of EBU v. OBUN (2004) 14 NWLR (pt. 892) 76 at 88, learned counsel for the Respondent submitted that originals of public documents ought to be certified to make them admissible. In response this court (it was) held per Opene, JCA thus: “I do not know how the learned counsel came about this argument? When a document is certified, it is certified to be a true copy of the original. If then the original is to be certified, what will it be certified to be a true copy of itself (original)?” Clearly, in view of this decision, I hold that Exhibit B was wrongly rejected and ought to have been considered by the learned trial judge in his judgment instead of treating it as if it had never been admitted.” ​In the REGISTERED TRUSTEES OF THE PORT HARCOURT CHRISTIAN COUNCIL PROJECT v. MR. SUNDAY G. O. AMADI & ORS. (2010) LPELR – 9119 (CA) (a decision Galadima, JCA (as he then was) and myself were privies), it was held per Thomas, JCA, that since documents must be proved either by producing either the original or, in its absence, the secondary evidence of it, the proof of the contents of the document by the production of the original copy should not be the basis for rejecting in evidence the original. The decision was anchored on the Supreme Court decision in OKEKE v. ATTORNEYGENERAL OF ANAMBRA STATE (1993) 1 NWLR (pt. 215) 60 at 80 in which it was held that documents are in the first place proved by primary evidence, which is by the production of the original copy for inspection by the Court. Proof of the contents of a document by production of the contents of a document by secondary evidence of the document, that is by production of a duly certified true copy of the original, is merely an alternative to the production of the original that is the primary evidence. On this, Coker, JSC, in AJAO v. AMBROSE FAMILY & ORS. (1969) 1 NMLR 25 seems to agree on the settled primary principle that all documents, prima facie, must be proved by primary evidence. The respondent’s counsel has aligned himself with the view that it is not illegal to produce the original of a public document for the inspection of the Court as the primary evidence of its contents, and that Exhibits 1, 2 & 3 are not inadmissible in evidence. He relies on the very provisions of the Evidence Act, 2011 appellant’s counsel relies on to submit that Exhibits 1, 2 & 3, being originals of public documents are inadmissible in evidence. We need to examine Sections 83, 85, 86(1), 87, 88, 89, & 90(1)(c) of the Evidence Act, 2011. The salient provisions of these Sections are herein below reproduced as follows “83(1). In a proceeding where direct oral 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 85. The contents of documents may be proved either by primary or secondary evidence. 86. (1) Primary evidence means the document itself produced for the inspection of the Court. 87. Secondary evidence may be given of the existence, condition or contents of a document when (a) the original is shown or appears to be in possession or power (i) of the person against whom the document is sought to be proved; or (ii) or any person to legally bound to produce it and when after the notice to produce mentioned in Section 91 such person does not produce it; (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; (c) the original has been destroyed or lost and in the latter case all possible search has been made for it; (d) the original is of such a nature as not to be easily movable. (e) the original is a public document within the meaning of Section 102; (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 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; or (h) the document is an entry in a banker’s book. 90(1) The secondary evidence admissible in respect of the original document referred to in the several paragraphs of Section 89 is as follows (c) In paragraph (e) or (f), a certified copy of the document, but no other secondary evidence, is admissible. 102. The following documents are public documents (a) documents forming the official acts or records of official acts or (i) the sovereign authority; (ii) official bodies and tribunals; or (iii) public officers, legislative judicial and executive, whether of Nigeria or elsewhere: 104.(1) Every public officer having the custody 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.” The learned counsel for the appellant did not, in his submission, address the significance of Section 83(1) of the Evidence Act, 2011 to the effect that in any proceeding where direct oral evidence of a fact would be admissible, any statement by a person in a document which seems to establish the fact shall, on production of the original, be admissible as evidence if the maker of the statement has personal knowledge of the matters dealt with in the statement or if the maker made the statement, in a matter he has personal knowledge of, in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of these matters. And if the maker of the statement is called as a witness in the proceeding. Section 85 of the Evidence Act, couched in general terms, provides that the contents of documents may be proved by either primary or by secondary evidence. Section 86(1) of the Act defines the primary evidence as the document itself produced for the inspection by the Court. That is the original itself produced for the inspection by the Court. Section 88 of the same Act directs that documents shall be proved by primary evidence except in the cases mentioned in the Act, such cases being rather in alternative. The word “except” after the imperative phrase “documents shall be proved by primary evidence” can only mean “unless”. Section 89 of Evidence Act lists the circumstances that are exceptions to the imperatives of Section 88 and 85 of the Act read together. I do not think it is illegal, in view of Sections 83, 85 and 88 of the Evidence Act, for the contents of a public document to be proved by the production of the original copy of the document, in its primary state, for the inspection of the Court. Now, the Question: what prejudice or miscarriage of justice has the appellant herein suffered by the production of the originals of Exhibits 1, 2 & 3 for the inspection of the Court? I see none, and I have not shown any. The Courts these days, I earlier stated, are moving away from arcane technicalities towards doing substantial justice’’.

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Conclusion 

It is safe to conclude that the law on the admissibility of public document is well crystallised. While there seem to be much ado about the admissibility of the originals of public documents, the recent pronouncement of the Supreme Court in Kassim v State (Supra) can be authoritatively said to have settled the law on this issue. It is therefore hoped that in the spirit of stare decisis, lower courts in our realm will follow suit and apply the ratio in Kassim v State(Supra).

 By Olutayo Awoyele (with contributions from Temiloluwa Vaughn)
Legal Practitioner
07053965551
olutayoanthony@gmail.com

[i] Babalola, A, Law and Practice of Evidence in Nigeria (Sibon Books Ltd. Ibadan 2001) pg.15
[ii] See section 102 of the Evidence Act 2011
[iii] See Section 258 (1) of the Evidence Act 2011
[iv] Osinbajo, Y., Cases and Materials on the Nigerian Law of Evidence. (Macmillan Nigeria 1992), p.1
[v] Section 103 of the Evidence Act
[vi] http://thelawdictionary.org/public-document/ accessed on o4 June, 2018
[vii] T. AikinolaAguda, Law and Practice Relating to Evidence in Nigeria (MIJ Professional Publishers Limited, 2nded. 1998) Pages 277 – 278
[viii] ibid

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