PUBLIC DOCUMENT : Position of the law on public documents attached to an affidavit
PRINCIPLE
"Exhibit DK10 is a photocopy of a letter addressed to the secretary of the 3rd respondent titled "Submission of INEC Nomination Forms-Benue State". Being addressed to the 3rd respondent an official body, and having been received by it, it becomes a public document.
It is certified by the legal officer of the 2nd respondent who can not do so not being an officer of the 3rd respondent. This is the basis of the objection of appellant's counsel; but I think his objection is founded on quicksand and therefore can not stand.
The case of the appellant was initiated by way of originating summons which is fought on the basis of affidavit evidence. Generally speaking objection can not be raised against a document attached to an affidavit or a counter-affidavit because the question of admissibility of the document does not arise in that circumstance. See Adejumo V Governor of Lagos State (1970) All NLR 187.
The same position was taken by the Supreme Court again in Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 608, 735. The position of the law above has been extended to documents attached to an affidavit in respect of an originating summons. See Jukok International Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55.
The reason for the position of the law regarding documents attached to an affidavit was stated by Mbaba JCA in Ilorin East Local Government v. Alasinrin (2012) LPELR - 800 thus: "That a document attached or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court and to be used, once the Court is satisfied that it is credible. Being already an evidence before the Court (on oath), the formality of certification for admissibility (if it required certification) has been dispensed with. Of course the reason for this is easy to adduce, the first being that affidavit evidence is already an admitted evidence before the Court, unlike pleadings which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided.
The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy ... It is therefore unthinkable to expect the exhibited photocopy to be certified by the adverse party before the Court can attach probative value to it". Appellant's counsel cited the case of Fawehinmi v. Inspector-General of Police supra to buttress his argument.
The case of Fawehinmi v. Inspector-General of Police supra was decided by this Court in the year 2000. The more recent decisions of this Court set out above represent the current state of the law and I am bound to follow them." Per EKANEM, J.C.A. (Pp. 14-16, Paras. D-F)
It is certified by the legal officer of the 2nd respondent who can not do so not being an officer of the 3rd respondent. This is the basis of the objection of appellant's counsel; but I think his objection is founded on quicksand and therefore can not stand.
The case of the appellant was initiated by way of originating summons which is fought on the basis of affidavit evidence. Generally speaking objection can not be raised against a document attached to an affidavit or a counter-affidavit because the question of admissibility of the document does not arise in that circumstance. See Adejumo V Governor of Lagos State (1970) All NLR 187.
The same position was taken by the Supreme Court again in Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 608, 735. The position of the law above has been extended to documents attached to an affidavit in respect of an originating summons. See Jukok International Ltd v. Diamond Bank Plc (2016) 6 NWLR (Pt. 1507) 55.
The reason for the position of the law regarding documents attached to an affidavit was stated by Mbaba JCA in Ilorin East Local Government v. Alasinrin (2012) LPELR - 800 thus: "That a document attached or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court and to be used, once the Court is satisfied that it is credible. Being already an evidence before the Court (on oath), the formality of certification for admissibility (if it required certification) has been dispensed with. Of course the reason for this is easy to adduce, the first being that affidavit evidence is already an admitted evidence before the Court, unlike pleadings which must be converted to evidence at the trial, at which time issues of admissibility of an exhibit is decided.
The second point is that an exhibited copy of a document attached to an affidavit evidence must necessarily be a photocopy or secondary copy ... It is therefore unthinkable to expect the exhibited photocopy to be certified by the adverse party before the Court can attach probative value to it". Appellant's counsel cited the case of Fawehinmi v. Inspector-General of Police supra to buttress his argument.
The case of Fawehinmi v. Inspector-General of Police supra was decided by this Court in the year 2000. The more recent decisions of this Court set out above represent the current state of the law and I am bound to follow them." Per EKANEM, J.C.A. (Pp. 14-16, Paras. D-F)
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: ISSUE - PUBLIC DOCUMENT : Position of the Law on Public Documents Attached to an Affidavit.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI){kind=link}
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