RELEVANCY- ADMISSIBILITY OF DOCUMENTS

BY
OBINNA H.C. ONYENEKE

1.0 INTRODUCTION

The literature encircling relevancy and admissibility of documents in judicial

proceedings the world over has witnessed a plethora of perspectives established
and dependent on domestic statutory provisions, as well as requisite judicial
pronouncements and/or interpretations bothering on the across-the-board
subject of documentary evidence.

1.1 WHAT IS A DOCUMENT?

Interestingly, the ability of various domestic Laws of evidence to accommodate

the ever-increasing trends in modern information and communication
technology to an extent that has modified the meaning attached to documents,
i.e., transcending from paper works which can be relied upon as proof or in
support of something1, to extend to, books, maps, plans, graphs, drawings,
photographs and 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,2
remains a welcome development. This meaning also incorporates any device by
means of which information is recorded, stored or retrievable.3

Electronic communication now flourishes as the prevalent and most desirable

form of communication in the sphere of business and social interaction,
especially as it is permanent, nearly indestructible and easily transferable.
Email, BlackBerry Messenger, Yahoo Messenger, and even text messages now
suffice as tools employed in negotiations, settlement discussions, confidential
communications, transaction closings, and the completion of contracts for goods
or services. Owing to the speedy progression in business, social and personal
1
Curzon’s dictionary of Law, 3rd ed. (London: Pitman Pub: 1988) Pg. 52
2
Section 258(1) (a) of the Evidence Act, 2011
3
Section 258(1) (d) of the Evidence Act, 2011

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networking, evolution of this trend in view of the communication level in the
society will continuously expand. Yet, there is this air of informality which is
publicly associated with electronic data unlike its hard copy counterparts.

The invaluable advantages of the various progressions in the aforesaid

technology had aroused varied deliberations and judicial precariousness in
Nigeria up until the enactment of the new Evidence Act in 2011. For instance,
tendering of electronic mails ("emails") was normally as contentious and
acrimonious as the litigation itself, with the opposite party usually relying on,
inter alia, the hearsay rule under the old Evidence Act 1945, to forestall the
admissibility of such electronically generated evidence4. The 2011 Evidence
Act is yielding its statutory powers towards ameliorating some troubles
encountered in Nigerian Courts via admissibility of electronically
generated evidence.

A great deal has been stated in Nigerian law of evidence concerning the
relevance of private and public documents, primary and secondary documentary
evidence as well as the issues of improperly obtained evidence. Those segments
shall be dealt with and the discussions here will likely be apt, succinct and
concise with relevant statutory and judicial renditions where available and
appropriate.

It is worthy of note that an effective deliberation on electronically generated

evidence in relation to documentary evidence shall be depicted majorly in this
paper.

2.0 RELEVANCY

2.1 Relevance and Admissibility

The entire law of evidence is mainly contingent upon the rules governing
admissibility and inadmissibility of evidence. Going by the Act, the
admissibility of any piece of evidence is governed by its relevance and this in

4
Legal Alert- May 2012, “Admissibility of electronic evidence”, available on
˂http://www.proshareng.com/articles/2437/Legal-Alert--May-2012--Admissibility-of-Electronic-Evidence˃
accessed 2/12/2012

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itself depends on the provisions of the Act. Thus, admissibility is an exclusive
preserve of relevance and a relevant piece of evidence will be admitted.5

Admissibility of any piece of evidence depends on the extent of relevance of the

fact to be established to the fact in issue, relevancy being purely guided by the
provisions of the Act. A fact in issue includes:

“any fact from which either by itself or in connection

with other facts the existence, non-existence, nature or
extent of any right ,liability or disability asserted or
denied in any suit or proceeding necessarily follows”.6

As such, facts in issue represent, inter alia, all such facts that a plaintiff in a
civil case must prove in order to establish his claim if they are not admitted
expressly or impliedly by the defendant. Apparently, the yardstick for
measuring a fact in issue is determined both by the substantive law on the
subject matter of the action and by the pleadings.

Basically, facts which are irrelevant are inadmissible7 but that is not to say that
the reverse is entirely the case as not every relevant fact is admissible. The test
of relevance and consequent admissibility is encapsulated in the preceding
provision of the Act which reads thus:

“Evidence may be given in any suit or proceeding of the

existence or non-existence of every fact in issue and of
such other facts as are hereafter declared to be relevant,
and of no others:

Provided that-

(a) the court may exclude evidence of facts which though

relevant or deemed to be relevant to the issue appears
to it to be remote to be material in all the
circumstances of the case; and

5
Jacob v. A.G Akwa Ibom State (2002) 8 FWLR (Pt. 86) 57; (2002) 7 NWLR (Pt. 765)18
6
Section 258 (1) of the Evidence Act, 2011
7
Salawu Agunbiade v. A. O. Sasegbon, (1968) N.M.L.R 223

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 (b) this section shall not enable any person to give evidence
of a fact which he is disentitled to prove by any provision
of the law for the time being in force.”8

The above provision has indubitably given credence to the fact that the court
may exclude evidence of facts which, although may seem relevant but appears
to the court to be remote to be material in all the circumstances of this case. 9
This may also be utilised in the case of hearsay evidence and opinion evidence
which though relevant, are inadmissible under the Act.10

From the foregoing, determination of relevance of any evidence before the

Court is inextricably tied to the discretion of the Court as the sole opinion of the
Court defines relevance of any evidence before it. Admissibility therefore shall
be based on any piece of evidence which is receivable by the Courts and from
which the Court could draw a legal inference in reaching a conclusion or
judgement. The concepts of relevance and admissibility are too interconnected
and virtually inseparable as relevancy remains the test of admissibility.

There are only two types of evidence that can be drawn from the aforesaid
provision of the Act, to wit:

(i) The existence or non-existence of a fact in issue

(ii) Such other acts as are declared to be relevant by the Act.

Facts in issue are necessary ingredients of the subject matter of a suit while facts
relevant in issue are those stated under sections 4 to 13 of the Act and any fact
beyond these types of evidence is inadmissible as it is irrelevant.

2.2 Facts which are Relevant

The Act11 has elaborated on various ways by which facts may accrue relevance
and consequently be admissible evidence before the Courts. As extensive as

8
Section 1 of the Evidence Act,2011
9
Akere v. Adesanya (1993) 4 N.W.L.R. 484
10
R v. Turner (1975) 1 All E.R. 70
11
Sections 4 to 13 of the Evidence Act, 2011

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these provisions are, a discussion on few and their characteristics may suffice
here.

Every fact in issue from which evidence can be drawn is a relevant fact. Also,
facts which though not in issue but are so connected with a fact in issue as to
form part of the same transaction, are relevant, whether they occurred at the
same time and place or at different times and places.12 In considering the
potency of the preceding provision, resort must be had to the normal reasoning
power of the Court.13

Notably, difficulties abound in deciding whether a fact which has occurred at a

different time or place from the fact in issue is so connected as to assume
relevance. It is essential that the Courts apply logical reasoning devoid of fast
rules on this occasion in arriving at a justifiable conclusion.

Also, facts which are the occasion, cause or effect, immediate or otherwise, or
relevant facts, or facts in issue or which constitute the state of things under
which they happened, or which afforded an opportunity for their occurrence or
transaction, are relevant.14 However it may seem, this section cannot be banked
on to support the admissibility of hearsay evidence.15

Any fact which shows or constitutes a motive or preparation for any fact in
issue or relevant fact is relevant,16 and the conduct of any party to any
proceedings or his agent, in reference to such proceeding or to any fact in issue
in it or a fact relevant to it; and of any person an offence against whom is the
subject of the proceedings is relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact.17

When the conduct of any person is relevant, any statement made to him or in his
presence and hearing which affects such conduct is relevant. 18 Conducts in this
12
Section 4 of the Evidence Act, 2011
13
T. A. Aguda, “The Law of Evidence” (2003: Sweet&Maxwell: Ibadan) 27
14
Section 5 of the Evidence Act, 2011
15
Peter Osude v. Inspector-General of Police (1965) 1 All N.L.R 102
16
Section 6 (1) of the Evidence Act, 2011
17
Section 6 (2) of the Evidence Act, 2011
18
Section 6 (4) of the Evidence Act, 2011. See also R v. Christie (1914) A.C. 545

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case does not include statements, unless such statements accompany and
explain acts other than statements.19

The Act goes on to enlist several other criteria by which facts may assume
relevance which may not form part of this discourse. However, it remains to be
said that the concept of admissibility has a wider scope than the concept of
relevancy. This is basically owing to the provisions of the Act and/or any other
Enactments in force in Nigeria which specifies occasions whereby facts though
not relevant assume relevance.

2.2 Facts Relevant in Special Circumstances

Under the Act, facts not otherwise relevant become relevant-

(a) if they are inconsistent with any fact in issue or relevant fact;

(b) if by themselves or in connection with other facts they make

the existence or non-existence of any fact in issue or relevant
fact probable or improbable.

The Supreme Court in AKINGBADE v. ELEMOSHO20 utilised this section in

granting admissibility to a Deed of Conveyance in respect of other plots of land
not in dispute before the Court, making it neither a fact in issue or a relevant
fact, but which contained plots of land in the same layout with the one in issue
as the Deed rendered the fact in issue probable.

There are instances where irrelevant facts attain admissibility in special

circumstances. These instances are encapsulated in sections 35, 36 and 66 of the
Act. Section 3521 provides that

“Acts of possession and enjoyment of land may be evidence of

ownership or of a right of occupancy not only of the particular
piece or quantity of land with reference to which such acts are
done, but also of other land so situated or connected with it by

19
Section 6 (3) of the Evidence Act, 2011
20
(Unreported) Supreme Court F.S.C. No. 353/62 dated April 9, 1964.
21
Evidence Act, 2011

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 locality or similarly that what is true as to the one piece of land
is likely to be true of the other piece of land”

This section has been widely known and used frequently in actions for
declaration for declaration of title to land under customary law. It creates a
presumption of probability which is enlivened by the plaintiff’s proof of his
ownership of the adjacent lands concerned or such ownership must have been
admitted by the defendant. See IDUNDUN & ORS v. OKUMAGBA.22

In NATHAN OKECHUKWU & ORS. v. FREDERICK OKAFOR &

ORS,23 the Federal Supreme Court held that by virtue of section 45, judgement
should be given for the plaintiffs because the plaintiff’s act of possession and
enjoyment of the lands adjoining the disputed lands claimed and possessed
under the same grant as that under which the plaintiffs claimed the land in
dispute, together with the erection by them of boundary pillars, constituted
sufficient evidence to support the plaintiff’s claim of title to the disputed vacant
and undisclosed lands under the grant.24 It is worthy of note that relevant and
admissible evidence under the section only raises a probability not a
presumption of ownership of land.25

Secondly, reference should be made of section 36 of the Act under which a

certain type of evidence is relevant in charges of receiving stolen property. It
stipulates that:

“Whenever any person is being proceeded against for receiving

any property, knowing it to have been stolen or for having in
his possession stolen property, for the purpose of proving guilty
knowledge, there may be given in evidence at any stage of the
proceeding-

(a) the fact that other property stolen within the period of 12
months preceding the date of the offence charged was found
or had been in his possession; and

22
(1976) 9-10 S.C. 227 at 251
23
(1961) All N.L.R. 685 F.S.C.
24
See also Jimoh Adebakin v. Sabitiyu Odujebe (1973) 1 N.M.L.R. 148, SC
25
T. A. Aguda, “The Law of Evidence” (2003: Sweet&Maxwell: Ibadan) 36. See also Ededem Archibong v.
Ntoe Asim Ita (1954) 14 W.A.C.A. 520

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 (b) the fact that within the 5 years preceding the date of the
offence charged he was convicted of any offence involving
fraud or dishonesty.”

With respect to (b) supra, two conditions must be fulfilled prior to the
admission of the evidence. They are

(1) Seven days notice in writing must be given to the offender that proof of such
previous conviction is intended to be given; and

(2) Evidence must be given that the property in respect of which the offender is
being tried was found or had been in his possession. See the case of
ODUTADE v. POLICE.26

The third ambit of the special circumstances parameter makes reference to

section 6627 of the Act which states that:

“Where the title to or interest in family or communal land is

in issue, oral evidence of family or communal tradition
concerning such title or interest is admissible”

This provision has been acknowledged as an exception to the hearsay rule. 28 See
the case of COMMISSIONER OF LANDS v. KADIRI ADAGUN,29 where
the Court stated thus:

“It is the undoubted practice in this country to accept as admissible

in cases as to title to family land evidence of the tradition of the
family ownership. Literacy among the people of this country does
not go back very far, and the oral tradition is generally the only
evidence available as to ownership of land earlier than the
memory of living witnesses. The weight to be given to traditional
evidence is of course another matter, depending on how far it is

26
(1952) 20 N.L.R. 81
27
Evidence Act, 2011
28
Suara Ayantade v. Ogundokun & Anor. (1979) L.R.N. 1
29
(1937) 3 W.A.C.A 206

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 supported by other evidence of living people of facts within their
own knowledge.”30

3.0 DOCUMENTS AND DOCUMENTARY EVIDENCE

Although definitions of documents have been indicated at the introduction, it

remains to be said that the meaning attached to documents have been
evolutionary owing to recent trends in modern technology which has removed
documents from the exclusive preserve of books and papers to include
electronic and computer generated evidence.

Though this is not news in older common law jurisdictions such as the United
Kingdom and the United States of America, it was not until 3 June, 2011 that
the President of Nigeria, President Goodluck Jonathan, signed the 2011
Evidence Act (“The Act”) into law which, in its explanatory memorandum,
repealed the Evidence Act, Cap. E14, Laws of the Federation of Nigeria.

The domain of documents has surpassed the threshold of engravements on tomb

stones, sign boards and even bill boards standing along the roads containing
figures or marks,31 to include “an official or formal paper, form, book, etc.
giving information about something, or evidence or proof of something, or a
record of something”.32 Borrowing a leaf from the English case of Owner v.
Beehive Spinning Co33, it was held that a notice board, not removable by law,
is a document which is admissible by secondary evidence. If document refers to
paper only, then the evolution of the electronic document may be foreclosed.

Interestingly, it now encompasses computer print-outs and other electronically

generated information so much so that the Act, as against its predecessors, has
proffered such a definition for a Computer as "any device for storing and
processing information, and any reference to information being derived from

30
See also Lajide Onamogba Akuru v. Olubadan-In-Council (1954) 14 W.A.C.A. 523
31
Joash Amupitan “Admissibility of documents in Nigerian Law of Evidence” (1994) available on
˂http://dspace.unijos.edu.ng/bitstream/10485/823/1/admissibility%20of%20documents%20in%20nigerian%20l
aw%20o.pdf˃ accessed 2/12/2012
32
A.S. Hornby in Oxford Advanced Learner’s Dictionary of Current English, 5th edn, edited by J. Crowther
(Oxford University Press, 1995).
33
(1914) K.B. 105

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other information is a reference to its being derived from it by calculation,
comparison or any other process.''34

Much as the preceding versions of the Evidence Act have been repealed by the
Act, judicial discourse bothering on same are not at all extinct owing to the fact
that prior to the introduction of electronic evidence into the Act, Nigerian
Courts have in their discretion and while utilising the liberal rule on statutory
interpretation, allowed the admissibility of electronic evidence in view of both
the former definition of documents in section 2 of the old Act35, and the
meaning attached to secondary evidence in the same Act.

Thus, in the case of ELIZABETH ANYAEBOSI V. R. T. BRISCOE,36 the

Supreme Court upheld the judgements of the Lower Courts to the effect that the
computerised statement of account was admissible under Section 96 (1) and (2)
of the now repealed Evidence Act 1945 which section allows the admission of
secondary evidence upon the fulfilment of certain conditions precedent.

Also, in the case of ESSO WEST AFRICA INC. V. T. OYEGBOLA,37 the

Nigerian Supreme Court stated obiter that "The law cannot be and is not
ignorant of modern business methods and must not shut its eyes to the mysteries
of the computer". See also the case of OGUMA ASSOCIATED
COMPANIES (NIG.) LTD V. I.B.W.A LIMITED,38 where the Supreme
Court stated obiter that Nigerian Courts need to become circumspect in
interpreting Section 96 of the 1945 Evidence Act in the light of modern day
banking procedures and gadgets such as computers which are now increasingly
used by businesses.

In the case of FRN v. FANI KAYODE,39 the respondent was arraigned before
the Federal High Court by the Economic and Financial Crimes Commission
(“EFCC”) on a 47 counts charge of money laundering. He pleaded not guilty to
the charge. On the date fixed for the trial, one Olubayo Sodipo, an officer of the
34
Section 258(1) of the Evidence Act, 2011
35
Evidence Act Cap. E14 Laws of the Federation 2004
36
(1987) 3 NWLR (part 59) 84 @ 96-97
37
(1969) 1 NMLR 194
38
(1988) 1 NSCC 395 @ 413
39
(2010) ALL FWLR (Pt. 543) 181

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First Inland Bank Plc was called to give evidence in support of the
prosecution’s case. In the course of the testimony, the prosecution applied to
tender a certified true copy of the computer generated statement of account of
the respondent domiciled with the First Inland Bank Plc through him. The
respondent objected to the tendering of the document under section 97 of the
1945 Evidence Act40. The Trial Court upheld the respondent’s objection and
rejected the document. Aggrieved by the ruling, the appellant appealed to the
Court of Appeal which considered the provision of section 97 (1) (h) and (2) (e)
of the 1945 Evidence Act41 among other provisions.

The Court of Appeal held that the fact that PW2 testified on oath that the
computer generated statement of account was a document from the custody of
the bank and it was certified and a true representation of the statement of
account kept by the bank, then, there is substantial compliance with the
provisions of section 97 (2) (e) of the 1945 Evidence Act.42 In the instant case, it
is rather inarguable that the certified true copy of the computer generated
statement of account of the respondent domiciled with the First Inland Bank
meets all the requirements of being admitted as an exhibit at the trial and that
document does not fall within the category of evidence made completely
inadmissible by the law.

How exactly are documents being classified?

3.1 Public and Private Documents

Under the Act, documents are classified into public and private documents.
Public documents are defined under the Act to include documents forming the
official records of the official acts of the sovereign authority; of official bodies
and tribunals; of public officers, legislative, judicial and executive, whether of
Nigeria or elsewhere; and public records kept in Nigeria of private documents.43
40
Now section 89 of the Evidence Act, 2011
41
Now sections 89 (h) and 90 (e) of the Evidence Act
42
Now section 90 (e) of the Evidence Act, 2011
43
Section 102 of the Evidence Act, 2011

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On the other hand, private documents encompass all documents other than
public documents.44

A strict applicability test is required while attaching meaning to public

documents to the extent that it is only the official documents of the official acts
of the authorities provided therein that suffice as public documents. Such
official acts are provided for under section 106 of the Act. Consequently, the
two provisions must be read together in attaching full meaning to this context.
In R v. TORIDI LAWANI45, the Police Accident Report book was held not to
be a public document as it was not a document forming the acts or the records
of the acts of public officers specified in section 112 of the Evidence Act,
1945.46

The second ambit of the definition of public documents refer to such private
documents which are filed or registered with public officers and are meant for
public inspection or sought to be received and is contained in only one
document, as illustrated in ADEKIA v VAATIA,47 where the primary evidence
was the schedule of payment attached to the agreement between the parties but
instead of the Plaintiff to produce the schedule of payment in Court, he decided
to give oral evidence of the document. The Court held that failure of the
Plaintiff to produce the schedule of payment (primary evidence) was fatal to his
case and in the absence of proper foundation through pleading and evidence, the
secondary evidence of same was inadmissible.

At this point, a deliberation on means of proving the contents of the

aforementioned documents assumes relevance.

3.2 Primary and Secondary Documentary Evidence

Under the Act, the contents of documents may be proved either by primary or
secondary evidence.48 Whereas primary evidence comprises

(i) A document itself produced for the inspection of the court;

44
Section 103 of the Evidence Act, 2011
45
(1959) L.L.R 97, as cited in J. Amupitan supra pg 132
46
This is the equivalent of section 106 of the Evidence Act, 2011
47
(1987) 1 NWLR (Pt. 48) 134
48
Section 85 of the Evidence Act,2011

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(ii) A document executed in several parts, each part sufficing as primary
evidence of the document;

(iii) A document executed in counterparts, each counterpart being executed by

one or some of the parties only and each counterpart sufficing as primary
evidence as against the parties executing it; and

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

In relation to the first class of primary evidence of documents, the original of a

document is the primary evidence of same as upheld in the case of JACOB v.
ATTORNEY GENERAL AKWA IBOM STATE.49 See also OGU v. M.T.
& M.C.S.50 which dealt extensively with the meaning of primary and secondary
evidence. Here, primary evidence was stated to mean the document itself in its
original form produced for the inspection of the court.

The Supreme Court in TORTI v. UKPABI51 while upholding the provisions of

the second ambit of primary evidence as represented in paragraph 1.3 (ii) supra,
admitted as primary evidence, a copy of the statement of result of polls which
were prepared and executed by the defunct Federal Electoral Commission
(FEDECO) and other party agents, and which one of the parties sought to tender
a copy of the form in his possession. The Court applied S. 94 (2) of the old
Evidence Act52 to admit the document as one execution in several parts and
consequently, primary evidence. This case also upheld the provisions of
paragraph 1.3 (iii) supra.

Notable Supreme Court judgements in the sister cases of OMOBORIOWO v.

AJASIN,53 and NWOBODO v. ONOH54 were based on the same facts with the
49
(2002) 8 FWLR (Pt. 86) 57; (2002) 7 NWLR (Pt. 765)18
50
(2011) 8 NWLR (Pt. 1249) 345
51
(1984) 1 S.C. 370
52
Presently, this is the equivalent of section 86 (2) of the Evidence Act, 2011
53
(1984) N.S.C.C. 81
54
(1984) N.S.C.C. 1
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same legal conclusions as TORTI v. UKPABI55. See also the Court of Appeal
decision in EDOKPOLOR & CO. LTD v. SAM EDO WIRE LTD.56

Suffice it to say that the fourth ambit of the definition as represented in

paragraph 1.3 (iv) supra has clearly protected the interest of documents which
are generated via computer or other electronically generated evidence within the
sphere of primary evidence. As such, computer print-outs have now been
classified as primary evidence contrary to previous statutory and judicial
opinions. However, the need for our appellate courts to make judicial
pronouncements with respect to this field is quite indispensable.

On the other hand, secondary evidence has a limited application under the Act
and is only applicable in the circumstances elucidated in sections 87, 89 and 90
of the Act. It is a general rule that the contents of documents must be proved by
primary evidence.57 Therefore, secondary evidence is usually resorted to at the
instance of the unavailability of the primary evidence or the inconvenience
associated with bringing same sought to be tendered in Court.

Secondary evidence as defined under the Act 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;

(e) Oral accounts of the contents of a document given by the same person who
has himself seen it.

While the above provisions specify the mandatory qualities of secondary

evidence, section 89 (a)–(h) of the Act stipulates the conditions under which

55
(1984) 1 S.C. 370
56
(1989) 4 N.W.L.R. Pt. 116 @ 473
57
OGU v. M.T. & M.C.S (2011) 8 NWLR (Pt. 1249) 345

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secondary evidence may be admissible while section 90 specifies the nature of
admissible evidence under such circumstances.

When the original document is shown or appears to be in the possession of the

person against whom the document is sought to be proved or of any person
legally bound to produce it and when such person fails to produce it in Court
after the notice to produce has been given in accordance with section 9158,
secondary evidence of the contents of the document is admissible59. See the case
of EDOKPOLOR & CO. LTD v. SAM EDO WIRE LTD,60 where secondary
evidence of the contents of an agreement was disallowed because the appellants
did not establish through proper foundation via pleadings and evidence that the
original document was in the possession of the respondents.

Secondary evidence of the written admission is also admissible61 when 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.62 Even when the written admission is not available, the Supreme Court
has held in CAVALLOTTI GIOVANNI v. BONASO LUIGI63 that other
secondary evidence may be admissible.

In a situation where the original has been destroyed or lost and in the latter case,
all possible searches have been made for it64, any secondary evidence of the
contents of the document is admissible.65 Here, there is a clear distinction
between a situation where the original has been destroyed in which case there is
no requirement for search, and a situation where the original is lost where there
is an essential requirement for search. In OKPALO v. POLICE66, oral
evidence was allowed without proof of search because the original was
58
Section 89 of the Evidence Act, 2011
59
Section 90 (1) (a) of the Evidence Act, 2011
60
(1989) 4 N.W.L.R. Pt. 116 @ 473
61
Section 90 (1) (b) of the Evidence Act, 2011
62
Section 89 (b) of the Evidence Act, 2011
63
(unreported), Supreme Court S.C. No. 402/67 dated October 31, 1967
64
Section 89 (c) of the Evidence Act 2011
65
Section 90 (1) (a) of the Evidence Act, 2011
66
(1961) All N.L.R. 546

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destroyed. In MINISTER OF LAGOS AFFAIRS v. THE FEDERAL
ADMINISTRATOR-GENERAL & Ors67, the party seeking to prove the
contents of a lost document must first show that all possible searches has been
made for it without success.

Two clear instances of ambiguity exists here by virtue of the above stipulations
that any or other secondary evidence is admissible both in the instance where a
written admission which is admissible under the Act is unavailable, and when
the original of a document cannot be tendered in evidence because it is lost.
Though it may be seen to preclude flexibility, it is appropriate and of paramount
relevance that specific types of secondary evidence are prescribed to suffice as
replacements in those instances.

When the original is of such a nature as not to be easily moveable68, any

secondary evidence of the contents of the document is admissible. Any
secondary evidence here may include oral or photograph. See the English
common law cases of Owner v. Beehive Spinning Co69, and Motimer v.
Mcallan70. In the later case, oral evidence of the contents of the original of the
book of the Bank of England was allowed as it could not be removed
conveniently on grounds of public inconvenience.

Only a certified copy of a document is admissible as secondary evidence when

the original is a public document71 or when the original is a document of which
a certified copy is permitted by the Act or by any other law in force in Nigeria,
to be given in evidence. In NIGERIAN PAPER MILL V. PITHAWALA
ENGINEERING,72 it was decided that once a copy of a public document is
duly certified and authenticated, it becomes admissible by mere production and
it is unnecessary to verify it.

67
(1961) W.N.L.R. 159
68
Section 89 (d) of the Evidence Act, 2011
69
(1914) K.B. 105
70
(1911) K.B. 61
71
Within the meaning of section 102 of the Evidence Act, 2011
72
(1989) 1 N.W.L.R. (Pt. 99) 622

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 In ONOBRUCHERE v. ESEGINE,73 it was held that an uncertified copy of a
judgement was inadmissible as not being a certified copy under s. 97 (2) (c) of
the Act.74 The Court in AGAGU v. DAWODU75 decided that the essence of a
required certified copy in case of a public document is to preserve the original
copy which may be required by many people. As such, nothing precludes the
admissibility of the original of such document where it is available. The Court
in EZEANUMA v. ONYEMA76 held that only certified copies of public
documents are admissible in evidence.

It has been held recently in UDUMA v. ARUNSI77 that public documents in

private possession must be certified to be admissible in evidence.78 It is
immaterial whether they were pleaded and were relevant to the proceedings.79

The purpose here is not to appear exhaustive of the facts surrounding this
discourse. Rather, it is more geared towards analysing requisite salient points.

Admissibility of documentary evidence generally is covered by Sections 83 and

84 of the Act80. The former stipulates that

“(1) In any proceedings 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 if the following conditions are
satisfied-

(a) if the maker of the statement either-

73
(1986) 1 N.W.L.R (Pt. 19) 799
74
The Evidence Act, 1945
75
(1990) 7 N.W.L.R. 56
76
(2011) 13 NWLR (Pt. 1263) 36
77
(2012) 7 N.W.L.R. (Pt. 1298) 55
78
See also Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1
79
See Okoreaffia v. Agwu (2012) 1 NWLR (Pt. 1282) 425
80
The Evidence Act, 2011

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 (i) had personal knowledge of the matters dealt with by
the statement, or

(ii) where the document in question … forms part of a

record purporting to be a continuous record, made
the statement (in so far as the matters dealt with by it
are not within his personal knowledge) 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 those
matters; and

(b) if the maker of the statement is called as a witness in the

proceedings:

On the other, Section 84 admits the admissibility of computer-generated

evidence, on the following conditions:

(a) that the document containing the information was produced

by the computer during a period of regular use;

(b) that during that period of regular use, the computer was
supplied with information of the kind contained in the
statement;

(c) during that period of regular use the computer was

operating properly;

(d) that the information is derived from information supplied to

the computer in the ordinary course of those activities.

However, there is a caveat in the Act which provides that any party intending to
tender a computer generated statement has to file a certificate identifying the
document containing the statement and describing the manner in which it was
produced as well as furnishing the particulars of any device involved in the
production of that document as may be appropriate to show that the document
was produced by a computer.81 Additionally, the Act provides for presumptions

81
Section 84(4) of the 2011 Evidence Act

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as to electronic messages, to the effect that the Court should presume that an e-
mail sent to a person corresponds with the message as fed into the computer.82

Even though documentary evidence emanating from computers was only

recently protected under the Act, judicial proponents seem to have heralded its
emergence way before it acquired statutory relevance. As such, the provisions
of sections 84 and 258 granting relevance to computers can be subsumed to fit
into the different types of documents- Public and Private documents. Ways of
proving same-primary and secondary evidence- will also be applicable.

As shall be seen in the succeeding parts of this exercise, the source of a

document to be tendered in evidence in Court has been severally held to be
immaterial provided the contents of the document is relevant to the fact in issue
and consequently admissible based on prescribed attributes under the Act.

Since relevancy is the test for admissibility, what is the consequence of

evidence improperly obtained by either of the parties and sought to be tendered
in evidence in Court? What level of relevance will be attached to it and is it
admissible under the Act?

4.0 Improperly Obtained Evidence

The Act provides that evidence obtained-

(a) Improperly or in contravention of a law; or

(b) In consequence of an impropriety or of a contravention of a law,

shall be admissible unless the Court is of the opinion that the desirability of
admitting the evidence is out-weighed by the undesirability of admitting
evidence that has been obtained in the manner in which the evidence was
obtained.

Although the courts in Nigeria have not specifically pinned down the issue of
admissibility of improperly obtained evidence on constitutional grounds, they
have made reference to the “general principle of our jurisprudence that justice
must not only be done but must manifestly be seen to be done”83

82
Section 153 (1) (2) of the Evidence Act, 2011
83
Gaji v. State (1975) All N.L.R. 266, 286

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Despite the fact that the Evidence Act purports to deal exhaustively with its
subject matter and sets out in considerable detail the rules relating to relevancy
and admissibility of evidence,84 and it contains a “saving” section85 which states
that the admissibility of any piece of evidence not in terms excluded by the Act
is not to be prejudiced by its provisions, there is nothing in the Act as to how
such evidence should be treated.

Section 3 of the Act is only inclusionary in nature since it merely allows the
courts to admit evidence which is admissible under common law and is not
excluded by the Act. The common law position was adopted by the Nigerian
Supreme Court in MUSA SADAU V. STATE.86

Here, the police was informed that the accused was printing vehicle licence
papers and a search warrant was duly issued authorising a search of the
accused's premises. Such a search has a legal requirement of being conducted, if
possible, in the presence of in the presence of two respectable neighbours.87 The
police however neglected this requirement on searching the house, blank printed
vehicle licences were recovered and were tendered and received in evidence at
the trial of the accused in the lower court and the accused was convicted largely
on the strength of those documents.

On appeal, the Supreme Court held first that the search itself was not illegal but
merely irregularly executed. Furthermore, the irregularity, if any, did not taint
the admissibility of the documents but attached only to the persons who
executed the search warrant. The court, after referring expressly to sections 6-18
of the Evidence Act,88 and went on to say89:

“… there is no general rule of law in civil as well as in criminal

cases that evidence which is relevant is excluded merely by the way
in which it has been obtained. This is subject in criminal cases to
the discretion of a trial judge “to set the essentials of justice above
84
Sections 4 to 13 of the Evidence Act, 2011
85
Section 3 of the Evidence Act, 2011
86
(1968) 1 All N.L.R. 124
87
Criminal Procedure Code Section 78 (1)
88
Now sections 4 to 13 of the Evidence Act, 2011
89
(1968) 1 All N.L.R. 124, 129

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 the technical rule if the strict application of the latter would
operate unfairly against the accused”.90

IGBINOVIA 91 gave the Supreme Court another chance to adjudicate on the

issue of improperly obtained evidence. In that case, in the course of
investigation it became difficult to identify those who perpetrated the criminal
homicide. The police therefore planted a policeman, disguised as a hardened
criminal, in the midst of the suspects locked up in one of the police cells. He
was instructed to get information from the suspects that could identify those
who perpetrated the crime in question.

The appellant was at first tight-lipped but when the constable described some of
his (supposed) evil acts, he opened up and blurted out that he was one of those
who murdered the deceased in the case for which they were being detained.
This extra-judicial confessional statement was received in evidence at the trial.
While delivering the judgment of the court, Obaseki JSC, having held that the
confession was admissible since it was made voluntarily, added92

“… the highly prejudicial nature of the confession can only

come into play and be given consideration if the circumstances
giving rise to its making border on illegality or its admission is
excluded by rules of law or practice …”

Here again is a restatement of the existence of a discretion to exclude otherwise

relevant and admissible evidence if by reason of the circumstances of its
discovery its probative value can be discounted.

The implication of these judicial dicta is that all improperly obtained evidence
are admissible in so far as they are relevant to the facts in issue before the
Court. The source of the Nigerian position on this issue remains KURUMA v.

90
Harris v. DPP (1952) AC 694, 707
91
(1981) 2 S.C. 5
92
See also Totti v. Ukpabi (1984) 1 S.C. 379, where the same judge reiterated the general rule.

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R.93 where it was held that illegally procured evidence if relevant is admissible
by virtue of section 5 (a) of the Evidence Act of 1945.94

AGBAJE, JSC (as he then was) opined thus:

“Ordinarily, admissibility of evidence is governed by section 695

of the Evidence Act… once a piece of evidence is relevant, it is
admissible irrespective of how it was obtained.”

In a more recent case of AREGBESOLA v. OYINLOLA,96 it was decided that

“The test to be applied in considering whether evidence is
admissible is whether it is relevant to the matters in issue.
If it is admissible, the Court is not concerned with how the
evidence is obtained… when it is a question of admission of
evidence, strictly, it is not whether the method by which it
is obtained is tortuous or excusable but whether what has
been obtained is relevant to the issue being tried”.

There is a failure of the Act to limit the scope of the admissibility of improperly
obtained evidence. Consequently, when evidence is obtained through, inter alia,
violation of fundamental human rights such as the right to privacy (including
breaking and entry as well as tapping of telephone conversations), such
evidence though improperly obtained could be admissible if it is relevant to the
issue before the Courts. Even the consequential loss of life which might be
occasioned in obtaining evidence will not suffice under the Act to render such
evidence inadmissible provided it is relevant to the issue before the Court.

Conclusion

The subject of relevancy apparently covers relevance and admissibility as it

grants credibility to evidence-documentary or otherwise-before the court. It
remains to be said that litigants should avail themselves of proper research in

93
(1955) A.C. 197
94
See also section 3 of the Evidence Act, 2011.
95
Now section 1 of the Evidence Act, 2011
96
(2011) 9 N.W.L.R (Pt. 1253) 458

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this field of evidence to ensure that that they are properly equipped with the
appropriate and requisite documents to be used in evidence in Court so as not to
waste the time of the Court.

The issue of improperly obtained evidence appears more risky than usual and
may not be seen to represent and uphold the Fundamental human rights of
citizens as granted under the 1999 Constitution of the Federal Republic of
Nigeria and consequently cannot be seen to uphold as much justice as are the
tenets of the judicial arm of Government. It negates and tends to supersede the
provisions of the Criminal Procedure Code and other legislations which it may
contravene in sourcing evidence used in trial advocacy except the Courts say
otherwise especially in line with the provisions of section 15 of the Act.

This is not a welcome development especially for the victims of circumstance

on this issue. One cannot be seen to approbate and reprobate at the same time as
the legislature cannot appreciably make a provision protecting a certain act in
legislation and goes ahead to overturn same in another.

Computers have become a veritable component of global outreach the world

over and its emergence in the Act has received a nod of national excellence.
This will enable our judicial system to tune into current events not just in their
usual discretion but with adequate statutory backing.

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