Admissibility of Documentary Evidence in Nigeria: Legal Requirements, Evidential Challenges, And Judicial Approaches

CONTRIBUTOR: ANEKWE ANGELA EKENE

Introduction

Documentary evidence is one of the most important forms of evidence in modern litigation. In almost every civil or criminal proceeding, parties rely on documents to establish facts, corroborate oral testimony and support the reliefs they seek. However, a court may only receive and consider a document in evidence where the party seeking to tender it satisfies the applicable legal requirements.

The Evidence Act 2011, which provides the principal statutory framework governing evidence in Nigeria, prescribes the conditions for the admission of documentary evidence in judicial proceedings. Compliance with these conditions is not merely procedural. It determines whether the court may lawfully receive and rely on the document in resolving the issues before it.

The courts have consistently recognised the importance of documentary evidence in the administration of justice. In Osibowale v. Caribbean Finance Ltd & Ors,^[1] the Court held that documentary evidence is generally more reliable than oral evidence.^[2] The Court of Appeal has similarly observed that documents, once tendered and admitted, speak for themselves. Unlike oral testimony, which may be distorted by memory, perception or misrepresentation, documentary evidence provides a relatively permanent and objective record of the matters it contains.^[3]

Nevertheless, the courts must balance the probative value of documentary evidence against the need to preserve the integrity of judicial proceedings and protect the rights of opposing parties. The courts cannot admit documents indiscriminately or without compliance with the prescribed legal requirements. Accordingly, the relevance of a document does not, by itself, guarantee its admissibility. Although relevance is the foundation of admissibility, a relevant document may still be inadmissible where it fails to satisfy another rule of evidence.^[4]

This article examines the principles governing the admissibility of documentary evidence under the Evidence Act 2011 and relevant judicial authorities. It analyses the distinctions between public and private documents and between primary and secondary evidence. It also considers the legal conditions that parties must satisfy before courts may admit documentary evidence in judicial proceedings.

Public and Private Documents

A public document is one made by a public officer in the discharge of an official duty and intended for public use or reference.^[5] Section 102 of the Evidence Act 2011 defines public documents as documents that constitute the acts or records of sovereign authorities, official bodies and tribunals, and public officers exercising legislative, judicial or executive functions, whether in Nigeria or elsewhere.^[6] By contrast, section 103 defines private documents as all documents that do not fall within the category of public documents.^[7]

The distinction between public and private documents is particularly significant in determining the appropriate method of proof and the form in which a document may be admitted in evidence. In Kayili v. Yilbuk,^[8] the Supreme Court held that where a document is a public document under section 109 of the Evidence Act, for admissibility in evidence, there must be a certified true copy of the document as provided by sections 111 and 112 of the Evidence Act. Where a document is not a public document within the meaning of section 109 of the Evidence Act, it will be subject to section 91 of the Act, where the maker is not called, and no foundation is laid for its admissibility.^[9]

A private document, on the other hand, must generally be proved by primary evidence through the production of the original document. Where the party seeking to tender the document does not call its maker, the party must satisfy the applicable statutory conditions and lay the necessary foundation for its admissibility. Secondary evidence of a private document, including a photocopy, a copy of a copy or oral evidence of its contents, is admissible only in the circumstances prescribed by the Evidence Act.

Section 104 of the Evidence Act 2011 prescribes the procedure for obtaining certified copies of public documents,^[10] while section 105 permits parties to prove the contents of public documents by producing duly certified copies.^[11] These provisions ensure the authenticity and reliability of documentary evidence while protecting judicial proceedings from the admission of inaccurate or improperly reproduced official records.

Primary and Secondary Evidence

Section 85 of the Evidence Act 2011 provides that the contents of documents may be proved by either primary or secondary evidence.^[12] The distinction between these forms of evidence is fundamental to the admissibility of documents in Nigerian judicial proceedings.

Under section 86 of the Act, primary evidence means the document itself produced for the court’s inspection.^[13] Section 87 defines secondary evidence to include certified copies; copies made from the original by mechanical processes that ensure their accuracy; copies made from or compared with the original; counterparts of documents as against parties who did not execute them; and oral accounts of a document’s contents given by a person who has seen the document.^[14]

Section 88 establishes the general rule that documents must be proved by primary evidence, except in the circumstances prescribed by the Act. Secondary evidence is therefore an exception to the general rule. A party seeking to rely on it must establish the unavailability of the original document and demonstrate that the case falls within one of the statutory exceptions. Section 89 specifies the circumstances in which a party may give secondary evidence of the existence, condition or contents of a document.^[15]

These include where the original is in the possession or control of an adverse party who, after receiving notice to produce it, fails to do so; where the original has been lost or destroyed; where the original cannot easily be moved; where the original is a public document; or where the Act or another applicable law permits the use of a certified copy.

However, section 91, rather than section 89, governs the requirement to give notice to produce. Subject to the exceptions prescribed by the Act, a party may not tender secondary evidence of a document in the possession of another person unless that person has received reasonable notice to produce the original.^[16]

In Idi v. The State,^[17] the Supreme Court reaffirmed that primary evidence is the document itself produced for the court’s inspection, while secondary evidence may include a certified true copy of the original where the document is a public document. The Court further clarified that the Evidence Act does not prohibit the tendering of an original public document. An original public document constitutes primary evidence and does not require certification. Certification is necessary when a party seeks to prove the contents of a public document by secondary evidence.^[18]

Conditions for Admissibility of Documentary Evidence

A document must satisfy several requirements before a Nigerian court may admit it in evidence. The first and most fundamental requirement is relevance. Section 1(1) of the Evidence Act 2011 permits evidence of every fact in issue and any other fact declared relevant under the Act.^[19] Accordingly, a document is not admissible merely because it exists or because a party intends to rely on it. It must relate to a fact in issue or make the existence or non-existence of that fact more or less probable.

In Fadlallah v. Arewa Text Ltd,^[20] the Supreme Court held that, in civil proceedings, a document must not only be pleaded but must also be relevant to the issue in dispute. Although the document need not conclusively establish the fact for which it is tendered, it must have a logical connection to the matters requiring determination. Consequently, a pleaded document that is relevant to either party’s case should ordinarily be admitted, subject to compliance with other applicable rules of evidence.

The court determines the relevance and admissibility of a document by reference to the parties’ pleadings and the issues arising from them.^[21] A document that does not relate to any pleaded fact or issue is inadmissible, regardless of its apparent importance. Pleadings therefore provide the framework within which the court assesses whether documentary evidence is relevant to the matters in dispute.^[22]

The second condition is compliance with the formal requirements prescribed by the Evidence Act 2011 for the particular class of document sought to be tendered. For example, section 83(1) provides that a statement contained in a document is admissible as evidence of any fact stated in it, provided that direct oral evidence of that fact would be admissible and the statutory conditions governing the making of the document are satisfied. These conditions generally require the document to have been made by a person with personal knowledge of the matters recorded or as part of a record compiled by a person acting under a duty, based on information supplied by a person who had, or could reasonably be presumed to have had, personal knowledge of those matters.^[23]

Section 83(2) prescribes additional conditions for admitting the statement where the maker of the document is not called because procuring the maker’s attendance would occasion undue delay or expense.^[24] These statutory requirements remain fundamental to the admissibility of documentary evidence under Nigerian law.

Certification of Public Documents

One of the most important practical requirements governing the admissibility of documentary evidence in Nigerian proceedings is the certification of public documents. A public document may be proved by producing the original as primary evidence. However, where a party seeks to prove its contents by means of a copy, the copy must generally be duly certified in accordance with the Evidence Act 2011.

Section 104 requires every public officer who has custody of a public document that a person is entitled to inspect to provide, upon demand and payment of the prescribed fees, a copy bearing a certificate that it is a true copy of the document or the relevant part of it.^[25] The certificate must be dated and signed by the officer and must state the officer’s name and official title. Where the officer is authorised by law to use an official seal, the copy must also bear that seal. A copy certified in this manner constitutes a certified true copy.^[26]

For section 104, an officer who is authorised, in the ordinary course of official duty, to issue copies of a public document is deemed to have custody of that document.^[27] Under section 105, a certified copy issued in accordance with section 104 may be produced to prove the contents of the public document, or the relevant part of it, which it purports to reproduce.^[28]

Conclusion

The admissibility of documentary evidence in Nigeria is governed by a detailed legal framework rooted in the Evidence Act 2011 and developed through judicial interpretation. Legal practitioners must carefully satisfy the requirements of relevance, compliance with applicable statutory conditions, proof of execution, certification of public documents and, increasingly, the specific rules governing electronically generated evidence.

Failure to satisfy any of these requirements may render an otherwise important document inadmissible, with potentially decisive consequences for a party’s case. Effective litigation therefore requires practitioners to identify the nature of each document, determine the appropriate mode of proof and ensure compliance with the relevant evidential requirements before tendering it in court.

Reference:

1. (2011) LPELR-4548(CA) ↑
2. See AKINBISADE V. THE STATE (2006) 17 NWLR (PART 1007) 184 SC. See also AIKI V. IDOWU (2006) 9 NWLR (PART 984) 47 at 55 ↑
3. see CHIEF ADEOYE ADIO FAGUNWA & ANOR V. CHIEF NATHANIEL ADIBI & 2 ORS (2004) 17 NWLR (PART 903) page 544 at 566; OJIEGBE V. OKWARANYIA (1962) 2 SCNLR 358; SALAMATU V. BIBA (1975) NWLR 176; OKAI V. AYIKAI (1946 12 WACA 31.” Per STANLEY SHENKO ALAGOA, JCA (Pp 17 – 17 Paras A – E) ↑
4. Isa v State [2016] 4 NWLR (Pt. 1503) 435 (SC). ↑
5. Ukana v. C.O.P. (1995) 8 NWLR (Pt. 416) 705 ↑
6. Gov., Ekiti State v. Ojo (2006) 17 NWLR (Pt. 1007) 95 ↑
7. Evidence Act, s 103; OGUNNUBI & ORS v. ADEZELI & OR (2023) LPELR-60069(CA) ↑
8. (2015) 7 NWLR (Pt. 1457) 26 ↑
9. (P. 68, paras. G-H) ↑
10. Evidence Act, s 104. ↑
11. Evidence Act, s 105. ↑
12. Iorapuu v. State (2020) 1 NWLR (Pt. 1706) 391 ↑
13. Evidence Act, s 86. ↑
14. Evidence Act, s 87. ↑
15. Evidence Act, s 88. ↑
16. Evidence Act, s 89. ↑
17. (2018) 4 NWLR (Pt. 1610) 359 ↑
18. PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 144 referred to). ↑
19. Evidence Act, s 1(1). ↑
20. (1997) 8 NWLR (Pt. 518) 546 ↑
21. Agunbiade v. Sasegbon (1968) NMLR 233, Torti v. Ukpabi (1984)1 SCNLR 214; Oyediran v. Alebiosu II. (1992) 6 NWLR (Pt.249) 550; Thanni v. Saibu (1977) 2 SC 89 at 116 ; Monier Construction Co. Ltd. v. Azubuike, (1990) 3 NWLR (Pt.136) 74 referred to] (Pp. 557, para. F; 562, paras. C-E) ↑
22. Garba v. D.G., Bureau of Lands, Kwara State (2023) 1 NWLR (Pt. 1864) 1 ↑
23. Evidence Act, s 83(1). ↑
24. Evidence Act, s 83(2). ↑
25. Evidence Act, s 104 (1). ↑
26. Evidence Act, s 104 (2). ↑
27. Evidence Act, s 104 (3). ↑
28. Evidence Act, s 105 ↑