Admissibility of Uncertified Public Documents Attached to Affidavit- a Look at the Supreme Court’s Decision in Andoakaa V. Obot

ABSTRACT

This paper critically examines the inconsistent and/discordant tone of the Courts, particularly the Court of Appeal towards the admissibility of secondary evidence of public documents prior to the decision of the Supreme Court decision in the case of Andoakaa v. Obot & Ors. The particular focus of this paper is a review of the different attitudes of the Court of Appeal in admitting secondary evidence of public documents attached to affidavits and a consideration of whether the Supreme Court have now settled the position by virtue of its decision in Andoakaa v Obot & Ors.

The opening part of this paper is dedicated to an assessment of the difference(s) between public and private documents and the effect of the distinction on the admissibility of documents. In the conclusion and recommendation part, this paper recommends a consistent attitude of courts towards the admissibility of public documents in conformity with the reality in legal practice and technological advancement towards the attainment of a reliable judicial precedence.

Introduction

In the discharge of the adjudicatory functions with which Judges are saddled, they are often faced with litigants presenting different evidence in proof and disproof of the existence or non-existence of particular set of facts placed before the court for determination, all in attempts to sway the Court to believe their version of the story presented for adjudication. Litigants in practice often rely on either documents containing information reinforcing their position or on their viva voce oral account of what they consider to be the true account of the matter presented before the Court.

In relation to viva voce or oral evidence, which is often subjected to cross-examination, the problem appears to be minimal when compared with documentary evidence which is prone to all forms of distortion. The problem becomes more pronounced when documents emanate from an authority other than the person who desires to tender and/or rely on such document in Court. The likelihood of alteration of the document by the person who desires to move the Court to rely on such document to give judgment in his favour has made it necessary that patent assurance in form of endorsement i.e. certification, is made on the document by the issuing authority.

However, the length of time it takes to secure the endorsement/certification by the issuing authority and the bureaucratic procedure involved in having such endorsement on the document has become a militating factor which has necessitated a relaxation of the rule on the endorsement/certification by the issuing authority in certain situation i.e. Affidavit evidence/proceedings. The propriety and/or workability of the relaxation of the rule without defeating the purpose of the endorsement is the crux of this paper and shall be critically examined, anon.   

Oral and Documentary Evidence

It is settled law and as clearly provided in section 83 of the Evidence Act¹ that, in any proceeding 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 upon the fulfillment of the conditions stated in the section. It is also settled that where oral and documentary evidence are placed before the Court, the Court will, unless there are conditions rendering the documents unreliable, place premium on the documentary evidence over and above oral evidence.

Lending a voice to the superiority of documentary evidence, learned author, Uglow Steven² stated thus:

“Documentary evidence is of considerable importance in both civil and criminal proceedings… Reliance on documentary evidence is often worthwhile as it is regarded as having greater weight. Often the information has been compiled closer to the events, and unlike a witness, a document will not be shaken by cross-examination”

Also, in recognizing the reliability of documentary evidence over and above oral evidence, the Supreme Court of Nigeria in the case of Ibrahim vs. Abdallah³ held as follows:

“Documentary evidence is the best evidence. The document is the best proof of its contents. There is credibility of documentary evidence over oral evidence, which would require that a witness is put on oath and examinations for the Court to deduce the truth in his testimony. On the other hand, the contents of a document speak for itself (A-G, Rivers vs. A-G Bayelsa (2013)3 NWLR (Pt. 1340)123, Ogologo vs. Uche (1998)4 NWLR (Pt. 572)34 referred to)”.

While documentary evidence have always been considered to be the more reliable form of evidence when compared with oral evidence or account, the nature of documentary evidence which is admissible in different proceedings before the court has however generated a degree of controversy and birthed divergent stand points by different Judges/Justices of superior courts in Nigeria. One of such controversy include the nature of public document(s) admissible in Court proceedings in the absence of the original public document issued by the public authority. This paper shall critically appraise the admissibility of public documents attached to affidavits, taking into focus the divergent decisions of superior courts on the subject-matter with a view to proffer a way forward based on the decisions which accord with the recent developments in technology and in line with the doctrine of stare decisis which will engender stability in judicial decisions.

Definition of Public Documents

Before proceeding into the consideration of admissibility of uncertified public documents attached to affidavits which is the fulcrum of this paper, it is imperative to observe that documents are generally divided into two(2) i.e. Private and Public Documents. While section 103 of the Evidence Act, 2011 defines private documents as all documents other than public documents, Section 102 of the Evidence Act, 2011 in defining what constitutes public documents provides ipse:

102. 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; and

(b) Public records kept in Nigeria of private documents.

In consonance with the above definition of public documents as provided in section 102(a) & (b) of the Evidence Act, 2011, the following have been held by Courts as forms of Public Document, to wit:

Forms of Public Documents

Newspaper

As held by the Supreme Court in the case of Kubor vs. Dickson,⁴ newspaper publications are public documents which require certification to be admissible in Court. The issue of certification is mandatory notwithstanding that the newspaper is an online printout generated from a computer. Putting the point trenchantly, the Court held in Kubor’s case thus:

“The only admissible secondary evidence of a public document is a certified true copy of same. In the instant case, exhibit “D” which was an internet print out of the public newspaper, was by nature a secondary evidence of the original by reason of the provisions of section 85 and 87(a) of the Evidence Act, 2011. On the authority of section 90(1)(c) and section 102(b) of the Evidence Act, it is only the certified true copy of the document as secondary evidence and none other that was admissible. Therefore, the absence of certification rendered exhibit “D” a worthless document and inadmissible.  

Private documents forming part of a public record

Another notable form of public documents are private documents forming part of a public record. A practical example of this can be seen in the case of petitions written by private individuals to the Police. In the case Onwuzuruike vs. Edoziem & Ors⁵) Onnoghen, J.S.C., (as he then was) held thus:

“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 follows:- “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.”⁶

Gazette and other statutory instruments

Court documents

Court documents no matter how insignificant it might appear to be, is a public document which requires certification before it can become admissible⁷ Onobruchere vs. Esegine⁸ case.

Without further going through the labyrinth of combing judicial decisions on what amounts to public documents, it is safe to say that whatever document emanating from or authored by a public officer, which forms part of public or official records in Nigeria can be conveniently classified as a public document.⁹)

Who Can Tender Public Documents and Weight to Be Attached Thereto

The original copy of a public document is admissible in evidence upon its production. Once a public document is signed and certified as required by section 110 and 112 of the Evidence Act, it becomes admissible on production, and it is not necessary to call a witness to prove custody or to verify the document. Such a document can be tendered from the bar by counsel who produced it. This is because court presumes such a document to be genuine under section 114 and of the Evidence Act.¹⁰

Where it is desirable that a public document is to be tendered through subpoena duces tecum issued by the Court on a public officer who has custody of such public documents, the procedure laid down by the Court in the case of Famakinwa vs. University of Ibadan¹¹ is undoubtedly the appropriate procedure to adopt in such circumstance. For clarity, the Court of Appeal held at page 624 – 625 of the report as follows:

“Section 192 of the Evidence Act merely authorizes a subpoena duces tecum to be issued to a person to deliver to the court a document. That person could do so personally or through another person he considers suitable for the assignment and once such a document is delivered or caused to be delivered to court, his obligation is discharged and he cannot be sworn or cross-examined. It then remains for the party at whose instance the subpoena was issued to discharge the burden of proving the document by having it admitted in evidence by tendering it through a person who has capacity to do so. In other words the person subpoenaed to court to produce a document merely places the document before the court where they could be identified and made use of by witnesses.”¹²

Public Documents Attached to Affidavits

The paramount question which is perhaps the crux of the instant article is “if any of the public documents alighted above is intended to be attached by a party in proceedings commenced by affidavit, that is, Originating Summons proceedings, or if a party in an interlocutory application desires to rely on any of the documents highlighted above, is it a compulsory requirement that such document(s) must be certified to be admissible in prove of the facts sought to be established or can the need for certification be dispensed with and the court seized of the matter proceed to determine the suit or the application on the fate of such document without certification?”

As basic as the above poser appears to be, a consideration of the authorities on the use of uncertified public documents in proceedings before the Courts remain largely unsettled and the recent decision of the Supreme Court in Andoakaa vs. Obot & Ors appears not to have settled the troubled waters in this regard. A critical assessment of the authorities decided before the decision in the case of Andoakaa vs. Obot & Ors will be reviewed vis-à-vis the decision in the Andoakaa’s case.

To begin with, one of the foremost authorities which has perhaps been relied upon by lower courts to substantiate the position that public documents do not require certification where they are to be attached to affidavits in proceedings -interlocutory or substantive suits notwithstanding- is the Supreme Court decision in the case of Ezechukwu vs. Onwuka¹³. Both Trial Courts and the Court of Appeal have often found succor in the words of Peter-Odili, J.S.C. where the Learned Justice of the Supreme Court held at page 562 as follows:  

“The stance of the appellants is that exhibit R being a public document and a photocopy not certified should be expunged by the court which would result in the collapse of the case of the respondent from the trial court up. That position of the appellants is not for our purpose herein as it is not disputed that only certified copies of public documents are admissible in evidence in legal proceedings and any objection to the admissibility of copies of public documents not properly certified can be raised during a trial.”  

There were proofs of service of the hearing notices exhibits R, S1 and S2 returned by Mr. M. T. Shior who effected service which documents were in the court records and since the court has the power to look at its record to convince itself of the truth of the service alleged, the fact of non-certification of the said documents are therefore a non-issue since the court is allowed to take judicial notice of same being in its custody. See section 74 of the Evidence Act.”

Specifically, the Court of Appeal in the case of Jukok Int’l Ltd V. Diamond Bank Plc (( (2016) 6NWLR (Pt. 1507)55)) where the Court was faced with the question of the admissibility of deed of appointment of a receiver/manager, notice of appointment and a certification of registration of appointment of the receiver/manager being public documents, held thus: 

“By virtue of sections 89, 90 and 105 of the Evidence Act, 2011, only a certified true copy of a public document is admissible as secondary evidence of its contents. However, copies of public documents attached to an affidavit as exhibits need not be certified true copies because the documents already form a part of the evidence adduced by the deponent before the court, and are available for the court to use once it is satisfied that they are credible. Furthermore, such documents need not be certified true copies where the contents of the documents are not in dispute as in this case because the 2^nd appellant did not disown his signature on the documents which the appellants contend ought to have been certified.”

Noteworthy from the above decision of the Court of Appeal is the fact that the admissibility of the uncertified public documents was not based solely on the principle of law that documents attached to affidavit form part of the affidavit but also on the fact that the party against whom the documents were sought to be tendered did not disown the documents particularly his signature which appeared on the documents. The effect of these rationales will be discussed later in this article.

In another decision of the Court of Appeal in the case of AYABAM v. C.O.P. BENUE STATE (((2019)LPELR-47283(CA))) were the question of the admissibility of uncertified public documents fell for determination, in holding that uncertified public documents attached to counter-affidavit just like in affidavits are admissible failure of certification notwithstanding. EKANEM, J.C.A stated in page 138 of the report as follows:

“It is the contention of the appellant that the letter along with the attachment is inadmissible in evidence, being uncertified photocopy of original public document and that the trial Court did not consider the objection. It is my view that the fact that the trial Court did not consider the point raised by the appellant is of no moment. This is because the document was attached to a counter-affidavit and so the question of its admissibility did not arise. In Jukok International Limited v. Diamond Bank Plc (2016)6NWLR (Pt. 1507)55, this Court held that an uncertified copy of an originating summons cannot be rejected by the Court simply because it is not certified. The trial Court therefore rightly took cognizance.”

(Italics for emphasis)

It needs to be noted that the decision in the case of Ezechukwu vs. Onwuka(Supra) was not decided solely on the provisions of Sections 89, 90 and 105 of the Evidence Act, 2011, but the decision which like every other decision of Courts was decided on its peculiar facts and with proper cognizance taken of Section 74 of the Evidence Act, 2011. This is reflective of the decision of the Court in the words of Peter-Odili, J. S. C., where the Learned Justice of the Apex held thus:

“There were proofs of service of the hearing notices exhibits R, S1 and S2 returned by Mr. M. T. Shior who effected services which documents were in the court records and since the court has the power to look at its record to convince itself of the truth of the service alleged, the fact of non certification of the said documents are therefore a non issue since the court is allowed to take judicial notice of same being in its custody. See section 74 of the Evidence Act. Also, the presumption of validity is prescribed covering any judicial or official act which has been shown to have been done substantially in a regular way. See Fannami v. Bukar & Ors (2004) FWLR(PT. 198) 1241.”   

Further, the Supreme Court in Ezechukwu’s case emphasized the age-long position of law that the only admissible secondary evidence of public documents are certified true copy of the public documents and no other form of secondary evidence can be admitted in place of the Certified true Copy. ((See Peter-Odili, J.S.C., at page 562 of the judgment.))

Another point that is worthy of note is that while the case of Jukok vs. Diamond Bank has gained reputation for being the authority for admissibility of uncertified public documents, heavy reliance as often time been placed on the case without proper regard being had to the rationale for the Court’s arrival at the decision. This is because the decision for the admission of the public document without certification was reached based on the fact that the content of the (public) documents were not challenged. In our humble view, it appears that if the Appellant in JUKOK’s case had raised an objection to the content of the public documents before the Lower Court, the Court (i.e. the appellate Court if not both the Lower and Appellate Courts) would have taken a different stance on the admissibility and reliance on the said documents.

While the above position that uncertified secondary evidence of public documents are admissible remains the position maintained by some Justices of the Court of Appeal, there are other factions of Justices of the Court of Appeal who are stern on the position that only certified secondary evidence of public documents are admissible. They have continued to maintain this stance when the public document(s) were given in evidence during interlocutory or substantive proceedings of the Court. This school believes and has held in many cases that an uncertified secondary evidence of a public document remains inadmissible regardless of the nature of the proceedings- interlocutory or substantive. 

One of the notable decisions of the Court of Appeal on this point can be seen in the case of Gov. Kwara State vs. Lawal (((2007)13 NWLR (PT. 1051) 347)) where Sankey, J. C. A. in stating the position held thus:

“Where a public document, as opposed to a private document, is produced in an attempt to prove facts in issue before a court of law, before it can be considered admissible in evidence, it must be duly certified as required by law, irrespective of whether such a document is being used in an interlocutory application or at the hearing of a substantive suit. In other words, only a certified true copy of a public document must be tendered. Apart from Federal or State Gazettes and documents printed by order of government, which are prima facie proof of any fact of public nature, all other forms of official documents not duly certified are inadmissible in evidence.”

Also, in the case of Daniel Tayar Transport Enterprises Co (Nig) Ltd vs. Busari & Anor¹⁴) where the Court of Appeal was faced with the question of the admissibility of (uncertified) photocopies of public documents attached to a counter-affidavit, in rejecting the uncertified secondary evidence of the public documents in evidence, Olayiwola Aderemi, J.C.A, held thus:

“As I have observed (supra) exhibits A, B, C and D annexed to the counter-affidavit are by its (counter-affidavit) tenor and the submissions of the learned counsel for the respondents, held out to be public documents in the sense that they are judicial documents – that is processes already filed in the Court… Indeed, a document which is a photocopy of a certified true copy of proceedings of a Court of law is admissible in evidence once the document of which it is a photocopy is an authentic document of a Court duly certified as the true copy of the original issued with the seal of the Court… But a photocopy of a deed of conveyance is inadmissible in evidence so also is inadmissible in evidence a photocopy of a writ of summons or any other process. See Ojo v. Adejobi (1978)3 SC 65. From the foregoing I am in agreement with Mr. Anozia that exhibits A, B, C and D aforementioned are inadmissible and I do not countenance them.”  

The Court of Appeal, Abuja Judicial Division in the case of Bayawo vs. NDLEA & Ors (((2018)LPELR- 45030 CA)), when appraising the authorities where Courts have taken cognizance and admitted uncertified public documents and coming to the conclusion that the only admissible secondary evidence of a public document is the certified copy of the public document held as follows:

“As shown in the summation of arguments, appellants grouse in issue 1 is with the lower Court’s decision that his failure to certify the 3rd November, 2010 Letter (Exhibit AB16) of the former Attorney-General of the Federation to respondents to reinstate him rendered the said letter, an uncontested public document, inadmissible in evidence. The first prong of his argument is that the said Exhibit AB16 being a document attached to an affidavit is admissible in evidence even if not certified. He relied principally on the decision of the Supreme Court in Ezechukwu v. Onwuka (2016) 5 NWLR (PT. 1506) 529 @ 562 and the decision of this Court in B.A.T. Nig. Ltd v. International Tobacco Plc (2013) 2 NWLR (PT. 1339) 493 @ 520-521 for this proposition. I am afraid neither decision supports appellant’s counsel’s argument. In respect of the apex Court’s decision, counsel cited the contribution of Odili, J.S.C., at p. 562 but called it ‘lead judgment’ in his brief of argument (at para. 3.5) and wrongly credited it to I.T. Mohammed, J.S.C., who was not even in the panel that decided the case (the real lead judgment of the case was actually read by M.D. Mohammed, J.S.C.). The fact however is that the apex Court, including Odili, J.S.C., never said that a public document attached to an affidavit is admissible in evidence even if not certified as required by Sections 89 (e) and (f) and 901 (c) of the Evidence Act 2011 that says only a certified true copy ‘but no other evidence’ is admissible as proof of secondary evidence of public documents. The only admissible secondary evidence of public document is a certified true copy and nothing else. That is so even if the proceeding is an interlocutory application let alone one like the instant originating summons that was the substantive suit: see Imoh v. Imoh (2013) ALL FWLR (PT. 659) 1114 @ 1138-1139 Para B-C; Ajiboye v. Duro (2010) ALL FWLR (PT. 507) 136 @ 176… In Imoh v. Imoh it was said (at p.1139 B-C) that an uncertified public document remained inadmissible regardless of whether parties objected to it, as parties cannot by consent render an inadmissible evidence admissible. Odili, J.S.C., in her contribution in Ezechukwu v. Nwadinobu at page 562 paragraphs referenced by appellant’s counsel did not say anything different; all His Lordship said there was that Exhibit R in issue, a Hearing Notice, was part of the records of the Court so it could rely on the copy in the records of court so “the fact of non-certification of the said documents are therefore a nonissue since the Court is allowed to take judicial notice of same being in its custody”: see page 562 paragraphs G-H of Ezechukwu v. Nwadinobu supra. Secondary evidence of public documents, to be admissible and used in evidence, must be certified, even more so in a substantive action like the instant one in which appellant sought to use Exhibit AB16. Of course, if a piece of evidence that is inadmissible in any circumstance like Exhibit AB16 somehow slips into the proceedings without objection, the Court is still bound to reject it in its judgment, like his Lordship the President of the National Industrial Court did in this case: Shanu v. Afribank Plc (2002) 17 NWLR (PT. 795) 185. It is not a matter on which the Court has to call for further addresses from counsel, a point confirmed by even the arguments and cases cited by appellant in his brief of argument.”

As evident in the above judgment of the Court, the Supreme Court case of Ezechukwu v. Onwuka which has often been cited as authority for the admissibility of uncertified secondary evidence of public documents clearly does not decide what it is professed to be the authority for. It therefore suffices to state that the conflicting authorities on admissibility of uncertified secondary evidence of public documents are basically judgments of the Court of Appeal.  ((It must be noted that there are two schools of thought on the course opened to a lower court when faced with conflicting decisions of a higher court. First school, which postulates that the lower court is at liberty to pick and choose which one to follow, while the second advocates that the lower Court should follow the later in time. The problem with the later school lies in the possibility of the later decision in time being a decision reached per in curiam. For the purpose of this paper, the former school of thought will be the basis for the writer’s recommendations and conclusion. See the cases of SHELL PET. DEV. CO.(NIG.) LTD. vs. MAXON (2009) 9 NWLR (Pt. 719) 541; OJUGBELE vs. LAMIDI (1999)10 NWLR (Pt.621)171.))

It is our humble view that when the rationale for the certification secondary evidence of public documents is strictly considered, particularly in light of advancement in technology and the possibility of alteration of documents, the decision in the cases of BAYAWO v. NDLEA (Supra) and the other cases decided in the same line, appear to be better and preferable judgments/authorities the authorities decided in the contrary. This is because, since the essence of certification is to confirm authenticity¹⁵), the fact that documents attached to affidavits form part of the affidavit¹⁶) cannot be a reason cogent enough to dispense with the need for certification of secondary evidence of public documents before the court can admit the public documents and act on them as credible evidence in giving its judgment or ruling.

The Supreme Court’s Decision in Aondoakaa V. Obot & Anor¹⁷

The 1st Respondent in the appeal emerged as the winner of the Peoples’ Democratic primary election held in Uyo State and was duly presented to the Independent National Electoral Commission (INEC) as the party’s candidate. A dispute however arose when the 1st respondent’s name was substituted with the name of another candidate and a suit was instituted to challenge the substitution.

The Court of Appeal, Calabar Division delivered judgment in favour of the 1st Respondent and ordered the President of the Court of Appeal to set up a new Tribunal to try the 1st Respondent’s petition in Uyo. The Appellant at the time was the Attorney General of the Federation and Minister for Justice (AGF). It was the 1st Respondent’s contention that in his capacity as AGF, the Appellant wrote to the President of the Court of Appeal (PCA), urging His Lordship not to comply with the judgment ordering the constitution of a new panel in view of a petition he had received from the person who had been substituted for the 1st Respondent. The PCA however went ahead and complied with the order of the Court.

​The new panel ordered that the 1st Respondent be sworn into the House of Representatives as the member representing Uyo Federal Constituency. An appeal was filed to the Court of Appeal which was however unsuccessful. The appeal was dismissed with an order that INEC should issue a Certificate of Return to the 1st Respondent. The Appellant again wrote to the Chairman of INEC, and the Speaker of the House of Representatives urging and advising them not to obey the judgment of the Court of Appeal. Consequent upon the letters written to the Chairman of INEC and the Speaker of the House of Representatives, the 1st Respondent was neither issued with his Certificate of Return nor sworn into office. He therefore instituted an action at the Federal High Court vide an originating summons, against the Appellant and 2nd Respondent. The Appellant was sued in his capacity as Attorney General of the Federation as 1st Defendant and in his personal capacity as 2nd Defendant. The letters written by the Appellant were attached as Exhibits to the affidavit in support of the originating summons.

The learned trial Judge entered judgment in favour of the 1st Respondent and made the declarations and orders sought in his favour. The appellant was dissatisfied with the decision and filed an appeal at the Court of Appeal. However, the Court of Appeal affirmed the judgment of the Federal High Court. The Appellant, still dissatisfied, further appealed to the Supreme Court. In its appeal the appellant contended that the letters attached as exhibits to the affidavit in support of the originating summons were secondary evidence of public document which were not certified and urged the court to discountenance the documents.  

The Supreme Court ruled against the Appellant and held that the uncertified public documents attached to the affidavit were admissible and that the court could act on the documents

A close look at the decision in the case of Aondoakaa V. Obot & Anor¹⁸) would show that the authority is nothing more than a compendium of the decisions of Court of Appeal on admissibility of uncertified public documents attached to affidavits.

Taking a cue from the dictum of Mary Ukaego Peter-Odili, JSC where the Learned Justice of the Apex Court reproduced a seeming re-enactment of the previous decisions of the Court of Appeal at pages 74 – 77 of the judgement as follows:

“The appellant had taken exception to the admissibility of Exhibits B, C, D since they were photocopies of public documents. The point has to be made that, copies of public documents attached to an affidavit as exhibits need not be certified, true copies because the documents already form part of the evidence adduced, by the deponent before the Court and are available to the Court to use once it is satisfied that they are credible. Again, to be said is that such documents need not be certified true copies where the contents of the documents are not in dispute as in this case because the appellant did not disown his signature on the document he is contending ought to have been certified. I refer to Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799; Nzekwu v. Nzekwu (1989) 2 NWLR (Pt. 104) 373; Araka v. Egbue (2003) 17 NWLR (Pt. 848) 1; Ogu v. M.T. & M.C.S. Ltd (2011) 8 NWLR Ltd (2011) 8 NWLR (Pt. 1249) 345; Ojuya v. Nzeogwu (1996) 1 NWLR (Pt. 427) 713; Ilorin East L.G. v. Alasinrin (2012) LPELR 8400; B.A.T. (Nig.) Ltd. V. Int’l Tobacco Co. Plc. (2013) 2 NWLR (Pt. 1339) 493.” 

Again, in a recognition of the fact that where a party against whom an uncertified public document(s) is sought to be used against in a proceeding involving affidavit evidence objects to the admissibility of such affidavit evidence, it will be incumbent on the Court to either direct that the document be certified or reject same in evidence, the Supreme Court held in AONDOAKAA’s case as follows:

“It is of note that the appellant never denied authoring those documents. It would have been a different thing if the appellant had denied that he did not write and sign the said Exhibits. In any event, the appellant quarrelled seriously with the trial Court admission of Exhibits B, C and D and opined that since the documents were not certified, they ought not be admitted. It is the law that any documents attached to an affidavit need not be certified. See B.A.T. (NIG.) LTD. V. INT’L TOBACCO CO. PLC. (2013) 2 NWLR (PT. 1339) P. 496 at 520-523 PARAS A-E. “…certificate of registration of Dorchester trademark, certificate of assignment of the trademark and certificate of renewal of the trademark, respectively at the state. For the purpose of the application, Exhibits W01, W02 and W03 must certainly true copies, since the applicant was expected to photocopy the originals of those documents given to them by the issuing registry, as exhibited copies for this application. One cannot expect the applicant to have taken the documents (photocopies) to the issuing registry for certification before using the same for this application. Only recently, we had cause to explain, in a well-considered judgment, that public documents, exhibited as secondary copies in affidavit evidence cannot, necessarily, be certified true copies, and that documents exhibited to an affidavit evidence which a Court is entitled to look at, and use. See the unreported decision of this Court in the case of Ilorin East L.G. v. Alh. Woli Alasinrin & Anor – CA/IL/38/2011, delivered on 20/2/2011 wherein we state thus:- “I do not think the issue of certification of a secondary evidence (photocopy) as in exhibit C, can rise in this case, being one sought on affidavit evidence and the respondents not claiming to have obtained it from the appellant, lawfully…”  

From the above, it is evident that the case of Aondoakaa V. Obot & Anor (supra) has not altered the position of law on admissibility of uncertified public documents attached to affidavits. It suffices to state that where the exceptions recognised in the case relating to a challenge to the public document is raised, a court would be on firm footing to reject the document in evidence. 

It is also believed that like a panel of the Court of Appeal in Bayawo v. NDLEA (supra) departed from the general opinion of the justices of the Court of Appeal by holding that uncertified public document must be rejected in evidence, the Supreme Court will also depart from the position in Aondoakaa’s case in future.  

Recommendations and Conclusion

Firstly, it is a fact of common knowledge that affidavits – whether in interlocutory proceedings and substantive hearing; such as Originating Summons proceedings- are susceptible to distortion of facts, as deponents to affidavits are capable of giving false statements under oath¹⁹ and taking into perspective the fact that unless where differences in opposing Affidavits are irreconcilable, the Court would naturally not call for oral evidence or require the presence of a deponent in proof of facts stated in an affidavit which makes it improbable that the authenticity of the uncertified secondary evidence of the public document will be inquired into. 

This position is even more compelling considering the fact that where there are documents annexed to one of the conflicting affidavits, the court may resolve the difference in favour of the affidavit to which the document is attached²⁰). The question that readily comes to mind and perhaps makes the certification of secondary evidence of public document more indispensable, therefore, is “What if the document(s) attached to one of the conflicting affidavits that makes it more formidable is the uncertified secondary evidence of public document?” The consequent injustice capable of being meted by this procedure is better imagined than experienced.

To underscore the need for certification of secondary evidence of public documents and where the need arises, the re-certification of photocopies of certified copies of secondary evidence of public documents, Niki Tobi, J.S.C. in ARAKA v. EGBUE (((2008) ALL FWLR(Pt. 420)603))

“A photocopy of a CTC of a public document must be re-certified because in this age of sophisticated technology, photo tricks manipulation cannot be ruled out and secondary evidence produced in the context of section 97(2)(a) of the Evidence Act could be tutored and therefore not authentic. In the process of copying original document, it could be manipulated with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original. The Court has not the eyes of an eagle to detect such tricks.”²¹

Another considerable raison d’être which the writer finds very compelling is the need to maintain stability and/or equilibrium in the judgment of Courts in Nigeria. Taking into focus the fact that authorities are almost settled –particularly authorities on election petition and trial proceedings based on Writ of Summons- on the point that except the original public document itself, the only admissible secondary evidence of public documents are the certified true copies of secondary evidence of public documents. It is necessary to maintain this stability and consistency in our jurisprudence. The decision of the Supreme Court in the case of EMEKA vs. CHUBA-IKPEAZU²², is a clear illustration of the position as it relates to the attitude of the Court to uncertified public documents in election petitions where NWEZE, J.S.C. stated the position as follows:

“Although the original copies of public documents themselves are admissible, the only pieces of secondary evidence in respect of the original of such public documents that ere admissible are the certified copies thereof but no other secondary evidence. Put differently, in the absence of the original documents themselves, only such properly certified copies are admissible as secondary copies of such public documents but no other kind of secondary evidence.”

On a final note, it is humbly opined that in light of the expositions on the position of law as it relates to admissibility of secondary evidence of public documents made above, it is desirable that secondary evidence of public documents attached to affidavits – whether in interlocutory applications or in the substantive suit- to be admissible and used by the court in its judgment or ruling, such public documents should be certified as only this can assure the court of the fact that the copy of the public document sought to be placed before the Court is the authentic secondary evidence of the public document.

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About Author

1. Evidence Act, 2011, CAP., E14, Laws of the Federation of Nigeria, 2011. [↩]
2. Uglow Steven, Evidence: Text and Materials,(2006), London, Thomson Sweet and Maxwell, p, 187 [↩]
3. (2019)17 NWLR (PT. 1701) Page 293 particularly the words of Okoro, J.S.C. at pages 310, para. F, 316-317 para. H-A. [↩]
4. (2013) 4 NWLR (PT. 1345) 534 [↩]
5.  (2016) LPELR-26056(SC [↩]
6. See pages 10-11, paras. F-B [↩]
7. It is necessary to note however that where the document(s) is a Court process filed in a suit and it is required that the attention of the Court be drawn to the existence of the process in the Court’s file, the need for certification may be dispensed with since it is already before the Court. This was the decision of the Court in Uzodinma v. Izunaso (No 2) (2011) 17 NWLR (Pt. 1275) 30 SC. Similar principle also apply to documents which have already been filed in the Course of a proceeding intended to be relied upon at another stage of the same proceeding by the party who has earlier filed the documents as held in the case of Agbaosi v. Imevbore(2014)1 NWLR (Pt.1389) 556 CA. [↩]
8. (1986)1 NWLR (Pt. 19)799 [↩]
9. It is however necessary to state that the custody from which a public document is produced is no longer a ground for its admissibility or otherwise, as that only raises the issue of presumption. See Torti v. Ukpabi(1984)LPELR-3259(SC [↩]
10. See the cases of Aaregbev. Oyinlola(2009) 14 NWLR (Pt. 1162) 429; Anatogu v. Iweka II (1995) 8 NWLR (Pt. 415) 547; Agagu v. Dawodu (1990) 7 NWLR (Pt. 160) 56; Anyakora v. Obiakor (1990) 2 NWLR (Pt. 130) 52; Ogbunyiya v. Okudo (1979) 6-9 SC. 32. [↩]
11. (1992) 7 NWLR (Pt. 255) page 608 at page 624 -625 [↩]
12. See also: R v. Gilmore(1961) NZLR. 384 [↩]
13. (2016)5NWLR(Pt. 1506)529 S.C [↩]
14. (2000)LPELR-5541(CA [↩]
15. See: Adekeye, J.S.C. in GOODWILL & TRUST INVESTMENT LTD. & ANOR V. WITT & BUSH LTD (2011) LPELR-1333(SC):“Section 111(i) of the Evidence Act describes what amounts to certification and the nature of certified copies of public document. Section 112 stipulates that: “Such Certified True Copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purported, to be copies. In effect the essence of the demanding for a Certified True Copy of a public document is to assure the authenticity of the document vis-a-vis the original. There is emphasis in the Evidence Act and under the Company and Allied Matters Act, that every public officer who has custody of a public document shall do the certification.” (P. 42, para. C-E [↩]
16. See the case of Ezechukwu v. Onwuka(supra [↩]
17. (2021) LPELR-56605 SC [↩]
18. (supra [↩]
19. See the provision of section 117, 118 and 119 of the Criminal Code Act, Cap. C38, LFN, 2010, as well as on provisions relating to the offence of Perjury, created to punish deponents who make false depose in affidavits. [↩]
20. See Ezechukwu v. Onwuka(supra [↩]
21. Page 20-21, para. G – A [↩]
22. (2017)15 NWLR(PT. 1589)345 [↩]