By: Timothy Tion Esq. writes from Tsar, Mbaduku, Vandeikya Local Government Area, Benue State
What Lawyers Must Know About Validating Certified True Copies in the Absence of Prescribed Fees
When is it truly necessary to pay for the certification of a public document—and when is the demand for fees simply unlawful? In the wake of Audu v. FRN (2024) and practical examples like the Benue State Internal Revenue Service (BIRS) scenario, legal practitioners must now navigate a shifting terrain where not all Certified True Copies (CTCs) require proof of payment. This post breaks down the current legal position, what to do when certification fees are demanded without a clear legal basis, and how to use FOI requests to protect your client’s documents from needless objections in court.
In Audu v. FRN (2024) LPELR-62977(SC), the Supreme Court clarified that payment of certification fees is only mandatory where such fees are prescribed by the public body issuing the Certified True Copy (CTC). In the case, the documents were certified by a public officer (the Project Officer of ERGP in the Office of the Accountant General), but the Court found that there was no evidence of prescribed legal fees for certification from that office. As such, non-payment of certification fees did not render the documents inadmissible.
The Court emphasized that Section 104 of the Evidence Act, 2011, unlike its predecessor (Section 111 of the 1990 Act), includes the phrase “prescribed in that respect”, indicating that legal fees must be specifically laid down by the issuing body before payment can be a condition for certification. Any contrary interpretation would lead to absurdity and injustice.
In his Legal Opinion, C.K. Anyanwu Esq.(lawyer of promise) acknowledges this principle but raises the concern of how one can ascertain whether a public body has prescribed fees or not. He therefore suggests that Section 104 of the Evidence Act be amended to clarify the public documents for which certification fees apply.
The suggestion that Section 104 of the Evidence Act should be amended to specify which public documents require payment may not be necessary, as the issue is not about the nature of the document but rather whether the issuing body has a lawfully prescribed fee for certification.
Thankfully, the Supreme Court recently declared in the yet to be reported case of Austin Osakue v. Edo State Agency for the Control of AIDS (EDOSACA), (SC/614/2014), that the Freedom of Information Act (FOIA), 2011 applies to all levels of government—federal, state, and local—thereby affirming that state and local government institutions are also subject to the FOIA. Therefore, to determine whether a public body is legally authorized to charge certification fees, one should submit a Freedom of Information (FOI) request to the relevant body, asking for a copy of the law or regulation that prescribes such fees. In many cases, no such law or regulation exists. However, officers of the issuing body may still collect money and mark the Certified True Copy (CTC) as “fees paid.” The issue is that such payments often aren’t remitted into the official account of the body because there is no lawful basis for collecting them in the first place.
A colleague of mine once complained that whenever he approached staff of the Benue State Internal Revenue Service (BIRS) at the High Court to pay for certification of witness statements—whether for defendants or prosecution witnesses—which form part of the proof of evidence in the Charge or Information filed at the High Court, the BIRS staff would always refuse to accept payment. Their reason was simple: there was no Revenue Head or Subhead under the BIRS Law covering certification of such documents. Accepting payment would therefore be illegal.
In Benue State, filing fees at the High Court are assessed by the court registrar and paid through POS terminals operated by BIRS staff. These POS terminals are programmed strictly in line with revenue heads and subheads listed under the BIRS Law. Since there is no prescribed fee for certification of witness statements under the Judiciary’s revenue heads, BIRS staff are right to reject such payments.
However, under the same BIRS Law, there is a legally prescribed fee for the issuance of CTCs of Certificates of Occupancy (C of O) under the Ministry of Lands. Therefore, anyone seeking to rely on a CTC of a C of O must present proof of payment of the official fee, as the law requires it.
Regarding my colleague’s concern, I pointed him to judicial decisions which clearly state that certification fees are only mandatory where a law or regulation prescribes them. His fear was that if he attempted to tender CTCs of prosecution witness statements without proof of fee payment, opposing counsel might object and the documents would be rejected. But such objections would lack merit unless the objector can point to a valid legal provision requiring payment for that specific certification.
THE BIRS STORY & ITS IMPLICATIONS FOR CERTIFICATION FEES UNDER THE EVIDENCE ACT
- The BIRS Example as a Case Study in Lawful Fee Prescription
The Benue State Internal Revenue Service (BIRS) scenario perfectly illustrates the distinction between lawful fee prescription and arbitrary charges. When BIRS staff stationed at the High Court refused to collect certification fees for witness statements, their justification was instructive:
No Revenue Subhead: The BIRS Law (and its accompanying revenue schedule) did not provide any subhead for “certification of witness statements.”
POS System Constraints: The programmed POS terminals only allowed payments tied to legally recognized revenue items (e.g., filing fees). Since certification fees for court documents were absent from the system, collecting such payments would be illegal.
This demonstrates that lawful certification fees must derive from express statutory or regulatory provisions, not administrative discretion.
- Contrast with Legally Prescribed Fees (Ministry of Lands Example)
Conversely, the same BIRS Law explicitly prescribes fees for issuing Certified True Copies (CTCs) of Certificates of Occupancy (C of O) under the Ministry of Lands. In this instance, payment is mandatory and therefore, a party tendering a CTC of a C of O must show proof of payment because the fee is legally recognized.
This also enhances revenue accountability as payments are receipted and reflect in government accounts, unlike arbitrary “fees” collected without legal backing and “chopped”.
- Judicial Implications for Admissibility of Certified Documents
The BIRS analogy reinforces the following legal principles:
No Fee = No Payment Requirement: Where no law prescribes a fee (as with witness statements), certification cannot be contingent on payment. Any “fee” collected is ultra vires and irrelevant to admissibility.
Burden of Proof on Objector: A party challenging a CTC’s admissibility based on non-payment must: (a) Identify the specific law authorizing the fee; and (b) Prove that the tendering party failed to pay it. This flows from the principle “he who asserts must prove” (Section 131, Evidence Act). Without such evidence, objections should fail.
For example: If the prosecution objects to the tendering of a prosecution witness’s certified statement on the basis of non-payment of CTC fees, it must point to a valid revenue law requiring payment for such certification. Absent this, the objection should be overruled.
- Why FOI Requests Are the Practical Solution (Not Amendment of Section 104)
Anyanwu’s suggestion to amend Section 104 presupposes that the problem is the Evidence Act’s ambiguity. However, the BIRS story shows the real issue is lack of transparency in fee prescriptions by public bodies. The issue is not the nature of the document but whether the issuing authority operates under a legal framework that prescribes fees. An amendment to Section 104 may not resolve this, as the problem lies in the absence of enabling regulations by public bodies rather than a defect in the Evidence Act.
FOI Requests Force Accountability: A public body (e.g., court registry, police, land registry) asked to disclose its legal basis for certification fees must either: (i) Provide the enabling law (which likely does not exist for most documents); or (ii) Admit it has no authority to charge, rendering any demand unenforceable.
Courts Must Insist on Legal Basis: Judges should reject objections to CTCs on the basis of non-payment of CTC fees, unless the objector proves a valid fee prescription.
- Conclusion: The Way Forward
The BIRS example underscores that Certification Fees are not inherently tied to the document type but to whether a law authorizes the charge. Therefore, statutory amendment is unnecessary—what is needed is stricter enforcement of existing principles: public bodies must operate within clear legal frameworks; and the Courts should disregard objections rooted in illegal fee demands.
Timothy Tion Esq. writes from Tsar, Mbaduku, Vandeikya Local Government Area, Benue State
www.naijacyberlawyer.blogspot.com.ng
