Written by Mpi Elton Chizindu Esq
When a witness is led in evidence in chief to tender a document, such a witness is referred to his deposition on oath and pointed to a place where he pleaded the document the document sought to be tendered. Counsel applies to show the document to the witness and asked if he recognises the document and thereafter an application to tender is made to the court. The court directs the registrar to show the document to the other counsel to either object to the admissibility of the document or allow it to be admitted.
Most lawyers are faced with the problem of objecting to certain documents and sometimes when they object, they loose the point of law on which to hinge their objections. Admissibility of a document can only be objected to on points of law and in accordance with the provisions of the Evidence Act. This piece serves as a guide on how to object to documents sought to be tendered and grounds for objection relying on recent judicial authorities.
The court can suo motu reject a document even when there is no objection on the other side. This power lies at the discretion of the court.
It is also important to note that the basis of admissibility is relevancy and admissibility of document must be in accordance with the Evidence Act.
The following grounds can be used to object to the admissibility of any document in a proceeding. It is the duty of the lawyer to ascertain the most appropriate ground in any case.
MODES OF TENDERING EVIDENCE DURING TRIAL
Tendering of documents in examination of witnesses can be done through any of the following ways:
a.Undisputed documents can be tendered from the Bar after an agreement by the Counsel in the matter.
MANNIR ABDULLAHI V. FEDERAL REPUBLIC OF NIGERIA SC.288/2012
b. Disputed documents are to be tendered through the witnesses in evidence-in chief for the party calling him or in cross-examination by the adverse party.
OGBUNYINYA V. OKUDO Suit No: SC.13/1979
PROCEDURE FOR TENDERING DOCUMENT THROUGH A WITNESS
1. Witness is sworn on OATH
2. Introductory questions are put to the witness
3. Proceed to the the relevant paragraph in the witness deposition where the witness mentioned a particular document and what the witness is relying the document as, in the cas.
a. Whether the witness can recognise the document if he sees it?
b. How can he identify the document?
4. Counsel to seek the leave of court to show the document to the witness for identification; through the Registrar. After identifying, the witness will confirm that he made the statement
5. Witness to express readiness to tender the document as evidence in the case.
6. The adverse party could object as to admissibility on points of law relying on the Evidence Act and some decided cases in support.
7. Counsel will seek the leave of court to tender the document in evidence and for the court to mark it as Exhibit.
8. Evidence is admitted and marked as Exhibit.
It is important to note that where a counsel fails to object to admissibility of a document where it matters can be fatal to a case. It’s not in all cases that the court can suo motu reject a document that was not objected to on the grounds that it does not conform to the rules of evidence. Sometimes Counsel can mislead the court and make the court to admit an inadmissible document. However this can be excluded on appeal.
In FOLORUNSHO V. FRN (2017) LPELR-41972(CA) Supreme Court sited the cases of MOTANYA v. ELINWA & ORS (1994) LPELR-1919 (SC); OTOKI v ALAKIJA (2012) LPELR-7994 (CA) and ABUBAKAR v CHUKS (2007) LPELR- 52 (SC) said “The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial judge. It is not automatic. Admissibility of a document is one thing and the weight the Court will attach to it is another. The weight the Court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence.”Per NIMPAR, J.C.A. (P. 18, Paras. A-E) –
ALHAJI SAFIANU AMINU & 2 ORS VS ISIAKA HASSAN & 2 ORS . Supreme Court held that “Neither a trial court nor the parties to an action has any power to admit without objection, a document that is in no way and under no circumstances admissible in law. If such a document is wrongfully received in evidence before the trial court, an appellate court has an inherent jurisdiction to exclude it even where no objection was raised to its going in at the Lower court. PER PETER-ODILI, JSC”
GROUNDS FOR OBJECTION OF ADMISSIBILITY OF A DOCUMENT.
As a lawyer, before you let that document be admitted in evidence which could be detrimental to your case, you might have to consider raising an objection based on any of the following grounds.
1. That the document sought to be tendered being a secondary evidence, no foundation has been laid as to the whereabouts of the original. S. 83, S. 88 and 89. EA.
The general rule is that documents must be proved by primary evidence .S 88 EA.
When Secondary evidence is sought to be tendered, a foundation must be laid in accordance with s. 89 either in the witnesses deposition or orally in court. See EZENWA ONWUZURUIKE v. DAMIAN EDOZIEM & ORS (2016) LPELR-26056(SC)
2. That the document sought to be tendered was not pleaded nor frontloaded. That there is no nexus between the depositions of the witness and document sought to be tendered. See OLANIYAN V OYEWOLE (2008) CA.
For this objection to stand it must be established that there is no fact in the deposition pointing to the transaction or existence of that document. This objection should be raised with caution.
ALHAJI SAFIANU AMINU vs. ISIAKA HASSAN
2014 1 S.C.N.J. 163 AT 166, “It is to be said that documentary evidence needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. Consequently, where the contents of a document are material, it shall be sufficient in any pleading to avert the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are or any part thereof are material.” PER PETER-ODILI, JSC”
3. That the document sought to be tendered falls within the purview of a public document enshrined in S. 102 of the Evidence Act was not certified(S.104 EA) see the cases of MANNIR ABDULLAHI V. FEDERAL REPUBLIC OF NIGERIA SC.288/2012, TABIK INVESTMENT LTD. & ANOR v. GUARANTY TRUST BANK PLC (2011) LPELR-SC.101/2005
4. That the public document having been certified was not certified properly in accordance with S. 104 of the Evidence Act. A proper certification would include ;”Such certificate as is 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 authorized by law to make use of a seal, and such copies so certified shall be called certified copies.(104(2) EA.
5. That the document sought to be tendered is an unsigned document. Whether public or private. (s. 94 (1) EA.
The law is that an unsigned document is void and worthless. BREWTECH NIGERIA LIMITED v.FOLAGESHIN AKINNAWO (2016) LPELR-40094(CA), GARUBA V. KWARA INVESTMENT CO. LTD (2005) 5 NWLR (PT 917) 160, GBADAMOSI & ANOR V. BIALA & (2014) LPELR 24389(CA)
6. That the document is a computer generated evidence and the foundation in Section 84 EA has not been complied with nor was a certificate issued.
S.84 (4)(c) provides”dealing with any of the matters to which the conditions mentioned in subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”
The case of DICKSON V. SYLVIA & ORS (2016) LPELR-41257(SC) is a recent authority on computed generated evidence. Another case which is also a strong authority in admissibility of computer generated evidence is the case of
KUBOR v. DICKSON (2013) All FWLR (Pt. 676) 392 at 429.”
7. That the document sought to be tendered being a private document has transmogrified into a public document pursuant to S 102 (b)Public records kept in Nigeria of private documents.
EZENWA ONWUZURUIKE v. DAMIAN EDOZIEM & ORS (2016) LPELR-26056(SC) Supreme Court stated that “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. It is then a primary evidence in terms of s.94 (1) of the Act and a copy made of it as Exhibit C is secondary evidence which must be certified before it can be received in evidence.”Per NGWUTA, J.S.C. (P. 16, Paras. A-E)”
In the case of TABIK INVESTMENT LTD v. G.T.B (2011) All FWLR (pt 602) 1592 at 1607 this Court held that a private petition sent to the police, as in the instant case, formed part of the record of the police and consequently a public document within the provisions of Section 109 of the Evidence Act. The Court held as fallows:-“By the provision of Section 318(b) of the Constitution of the Federal Republic of Nigeria 1999 and Section 18(1) of the interpretation Act, a police officer is a public officer and so all documents from the custody of the police, especially documents to be used in Court are public documents.” Per ONNOGHEN, J.S.C. (Pp. 10-11, Paras. F-B)
8. That the certified true copy of the public document is a photocopy .The law is trite that a photocopy of a certified true copy is not admissible. This position was made clear when the supreme Court stated in MANNIR ABDULLAHI V. FEDERAL REPUBLIC OF NIGERIA SC.288/2012 …”put differently, in the absence of the original documents themselves only such, properly, certified copies are admissible as secondary copies of public documents “but no other kind of secondary evidence,” G and T. I. Ltd and Anor v. Witt and Bush Ltd (2011) LPELR -1333 (SC)
RULES AS TO NOTICE TO PRODUCE
S. 91 Evidence Act 2011 as ammended.
“Secondary evidence of the contents of the documents referred to in paragraph (a) of section 89 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: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it – (a) when the document to be proved is itself a notice; (b) when, from the nature of the case, the adverse party must know that he will be required to produce it; (c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (d) when the adverse party or his agent has the original in court; e) when the adverse party or his agent has admitted the loss of the document”
There is a lot of misconception in the application of this section.
Fortunately this misconception has been laid to rest in the recent supreme Court case of NWEKE V. STATE(2017)LPELR-42103(SC)notice to produce a document in accordance with s.91 does not enable a party to fish for a document , nor does it compel the party whom the document is in possession to produce it. It simply enables the party who gives the notice the avenue to tender the document in his own possession which is the secondary document or private document.
The court held in NWEKE V STATE SUPRA
“A party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 91 of the Evidence Act 2011. It is unnecessary to serve a notice to produce, when the secondary copies of those documents are not in the possession of the party serving the notice.”Per GALINJE, J.S.C. (P. 8, Paras. B-E).”
From this decision it is apparent that it is a waste of time to serve a notice to produce when you do not have the secondary document because the party served to produce is not under obligations to produce such document.
Finally before you allow a document to be admitted due to lack of a solid ground for objection, you might have to reconsider by using the grounds above.