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LAW OF EVIDENCE II

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This PDF contains succinct yet detailed Key-Points on Principles of Evidence Law in Nigeria (Second Semester). The contents are in line with outlines of Nigerian Universities (Faculties of Law) and recommended textbooks. Liberal and apt language used to facilitate a quick-grasp / understanding for Students and Practitioners.

Description

PREVIEW, LAW OF EVIDENCE II

 

Contents

DOCUMENTARY EVIDENCE. 2

HEARSAY EVIDENCE. 7

COMPUTER AND ELECTRONIC EVIDENCE. 13

CHARACTER EVIDENCE. 16

CORROBORATION. 20

COMPETENCE AND COMPELLABILITY OF WITNESS. 24

VISIT TO LOCUS IN QUO. 30

OPINION AND EXPERT EVIDENCE. 31

WRONGFUL ADMISSION AND REJECTION OF EVIDENCE. 36

TESTIMONIAL PRIVILEGE. 37

STATE PRIVILEGE. 41 

DOCUMENTARY EVIDENCE.

:: Documentary Evidence is evidence tendered through the means[1] of documents. Section 258 defines “documents” to include[2]; books, maps… matter described upon any substance… disc, tape… film… any device by means of which information is recorded, stored or retrievable including computer output. In essence, a document is anything capable of passing information-Arthur John. Something that teaches you and from which you can learn something-Senior V Holdsworth[3].

:: Documents are classified into public[4] or private[5]. Public or private documents are further subdivided into primary and secondary documents.

:: Since English is Nigeria’s Lingua Franca, documents are to be tendered in (or translated by a competent person[6] or the court’s interpreter[7] to) English[8].

:: The courts have held that documents are not admissible to prove customary transactions in Nigeria-Kankai V Maigemu, Olubodun V Lawal.

:: Documents should be properly tendered through competent and duly sworn witness(es)-Amobi V Amobi.

:: Section 85. The contents of documents may be proved either by primary or by secondary evidenceEsso Petroleum V Oladitan

:: Section 86. (1) Primary evidence means the document itself produced for the inspection of the court. (2)Where a document has been executed in several parts, each part shall be primary evidence of the document-Torti V Ukpabi[9]. Omoboriowo V Ajasin[10]  Esso Petroleum V Oladitan[11].

 (3)Where a document has been executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart shall be primary evidence as against the parties executing it[12]-Edokpolor V Sem Edo Wire. Jacob V A.G Akwa Ibom State[13].

(4) Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be primary evidence of the contents of the rest[14]; but where they are all copies of a common original, they shall not be primary evidence of the contents of the original.

Section 87. Secondary evidence includes:  (a) certified copies given under the provisions hereafter contained in this Act;  (b) copies made from the original by mechanical or electronic processes which in themselves ensure the accuracy of the copy, and copies compared with such copies; (c) copies made from or compared with the original; (d) counterparts of documents as against the parties who did not execute them; and  (e) oral accounts of the contents of a document given by some person who has himself seen it.

Section 88. Documents shall be proved by primary evidence[15] except in the cases mentioned in this Act.

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[16]), 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[17]. Secondary evidence may be given of the existence, condition or contents of a document when

(a) the original is shown[18] or appears to be in the possession[19] 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[20] mentioned in Section 91 such person does not produce it[21];

(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[22].

(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[23] and a diligent search for it has been made in good faith but to no avail. See R V Hill[24].

(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[25].

(e) the original is a public document within the meaning of Section 102[26]; this subsection has an extension which is Section 104 it provides: (1) Every public officer having the custody[27] 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[28]. (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[29] 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[30]. Also, Minister

[1] Although it is not the only means-(Kurobo V Zach-Motison) as oral evidence can be entertained to fill in the gaps-(Owena Bank Plc V Olatunji).

[2] This means that the categories are not closed-Ibrahim V State,  R V Daye 1908 2 KB 333 at 334. Not only paper and notwithstanding what material it is provided. Computer printouts as well.

[3] 1975 1 All ER 1009l Also Grant and Another V Southern and County Properties Ltd 1974 2 All ER 465.

[4] Stroud’s Judicial Dictionary 4th Edition p.2182 defines public document as document made by a public officer for the purpose of the public making use of it and one which the public have access. A Similar definition was given in Nwadialo, Ukana V COP, Sturla V Freccia, Adekoya V Ailara, State V Mbagwu. R V Lawani. Examples of public document include letter from a state Ministry of Justice-(*Kwara State Water Corporation V AIC Nig Ltd), Mining lease-(Bischi Tin Co V C.O.P), INEC Election Result Sheets-(Okoh V Igwesi), Certificate of Incorporation-(Dana Impex Ltd V Awukam, R V John), Registered Power of Attorney-(Okamgba V Eke), Newspapers, registered deeds-(Adelaja V Alade) and so on. Just look at the nature of Public Documents as defined above.

[5] Section 103 “All documents other than public documents are private documents”.

[6] Asiniola V Fatodu.

[7] Damina V The State.

[8] Abolarin V Ogundele, also the case of Giwa V Yarbun.

[9] 1984 1 SC NLR 214. In this case the Supreme Court held that the several election sheets were each primary evidence of others as they were executed in several parts.

[10] 1984 1 SC NLR 108 In this case, the court held that the since certificates of return were executed in several parts, each part is admissible as primary evidence.

[11] 1968 NMLR 453.

[12] Meaning that the counterpart shall be primary evidence for those who signed it. This is good because a person who signs a document is bound by its terms-Okoli V Morecab Finance Limited, Moss V Kenrow.

[13] Where the court regarded each copy of a typed letter (which was printed in counterparts) as primary evidence. See also Anyaegbu V Ozor and the case of Obun V Ebu, where (in both cases) carbon copies of the Election Results were admitted as primary evidence and they need not be certified to be tendered in evidence. See also Coker V Ayoade.

[14] This provision was upheld in Esso Petroleum Co V Oladitan to hold that tellers typed by the same uniform process are all originals and primary documents.

[15] This accords with the rule that primary evidence is the best evidence.

[16] Court allowed a photocopy to be tendered where the plaintiff had successfully explained the whereabouts of the original.

[17] This Section is in pari material with Section 65 of the Indian Evidence Act 1872 as amended.

[18] Proof that it is in the hands of the adversary may be by showing that it was last in his possession-R V Hunter.

[19] 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

[20] 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.

[21] 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.

[22] Kossen V Savannah Bank Ltd. Although in Okonkwo V Ogbogu, the court held that such admission would not make inadmissible document admissible.

[23] Doe V Whittcomb.

[24] 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.

[25] Digitization now allows for pictures and videos to be taken sha.

[26] 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)

[27] 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.

[28] P.D.P V Sidi-Ali. Bulama V Daggash.

[29] Look at the Sections above.

[30] (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.

 

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