LEGAL NUGGETS (Series 105)- ISSUE: ADMISSIBILITY OF EVIDENCE-Whether an Uncertified Photocopy of a Document Attached to an Affidavit in a Suit Commenced by Originating Summons is Admissible in Law.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

ISSUE: ADMISSIBILITY OF EVIDENCE-Whether an uncertified photocopy of a document attached to an affidavit in a suit commenced by originating summons is admissible in law.

"The case of the appellant as can be garnered from his affidavit and further affidavit is that the 1st respondent gave false information under Oath in his Form CF001 when he stated that he retired voluntarily from the services of the Federal Inland Revenue.
In rebuttal of the assertion, the 1st respondent first filed his Counter Affidavit of 12 paragraphs to which he annexed Exhibits RB1 and RB2. The 1st respondent again filed a 12 paragraphed Reply to Further Affidavit of Plaintiff and annexed 3 Exhibits marked Exhibits RB1A, RB1B and RB1C respectively to it.

All these documents as annexed by the 1st respondent are to support his averment that he did not supply or give false information in his Form CF001. Exhibit RB1 is the photocopy of a letter with ref. No. IR.10329/T/1, dated 13th November, 1997, addressed to Mr. R. I. O. Brown, acknowledging his application for Voluntary Retirement/Withdrawal of his services from the employ of the Federal Inland Revenue Service. 

The said letter was signed by one P. A. Fatoki, Director, HRM/PRS, for Chairman. Exhibit RB2 is the certified true copy of Exhibit RB1 and which certification was done on 2nd April, 2015. 
(See pages 34 - 36 of the record of appeal). Sections 88, 89 and 90 of the Evidence Act, 2011, communally regulate admission and proof of documents. 
Under Section 88 of the Evidence Act, documents shall be proved by primary evidence except in the cases mentioned in the Act. Primary evidence has been defined by Section 86(1) of the Evidence Act to mean the document itself produced for inspection of the Court. 

The Evidence Act grants dispensation with primary evidence in Sections 89 and 90 of the Act to the effect that secondary evidence may be given of the existence, condition or contents of primary evidence when inhibited by circumstances as spelt out in Section 89 thereof. 

Hence, the nature of the secondary evidence admissible under Section 89 are provided for by Section 90 of the Evidence Act, (supra). Given a community reading of the foregoing, the question that seems to beg for an answer here is as to whether Exhibit RB1 by its nature belongs to private or public document as the case may be. 

Notwithstanding the fact that Exhibit RB1 bears the Nigerian Coat of Arm and was signed by a Public Officer of a Public Institution, established by an Act of the National Assembly i.e. the Federal Inland Revenue Service (Establishment) Act, Cap. F36, Laws of the Federation of Nigeria, these to my mind would not readily bring it within the domain of public document as envisaged by Section 102 of the Evidence Act, (supra).
This is so because in the first instance, it is a document, though emanating from the Federal Inland Revenue Service, but addressed specifically to the 1st respondent and meant for his personal use and consumption. 

The letter is therefore not a document left open to any member of the public to approach the said Federal Inland Revenue Service and demand and receive copy of, as would be the case if it were a public document. 

In Stroud's Judicial Dictionary, a public document is said to be a document made for the purpose of the public making use of it and one to which the public has access.
 However, though it was the secondary or photocopy of the letter itself that was annexed to his counter affidavit as Exhibit RB1, the 1st respondent still would not require certification of same in order for it to be ascribed probative value by the Court. 

In any event, and by way of making assurance doubly sure, the 1st respondent still went the extra mile to make and attach Exhibit RB2, which is the certified true copy of Exhibit RB1 and which was made available to the Court through him. 
Sections 88, 89, 90 and 102 of the Evidence Act, 2011, would ordinarily come into play when questions of tendering of documentary evidence and admissibility of same arise and wherein the totality of the dispute is initiated by way of Writ of Summons. 

In that stance a witness would need to enter the witness box to lead evidence that will convert the pleaded documents into evidence. On the converse and in the instant case where proceedings were initiated by Originating Summons, there is no room for leading evidence in chief and tendering of documents from the witness box. 

All the evidence needed herein have been incorporated in the affidavit and counter affidavit sworn on oath either in support or against the Originating Summons. All that is left for the Court in this regard, is to read and interpret the documents and analyze the affidavit and counter affidavit facts as they are before it. 
This is to say that the parties are left with no room for vive voce evidence. Being a private document, the letter by the Federal Inland Revenue Service approving the voluntary retirement/withdrawal from service of the 1st respondent, was validly placed before the trial Court who in turn rightly relied on same in reaching its decisions. 

The fall-out from all of these is that whilst in the custody of the 1st respondent, the said letter (Exhibit RB1) remained a private document for which it needed no certification irrespective of the fact that it was tendered in evidence as a photocopy. As Exhibit RB1 came before the trial Court from the custody of the 1st respondent, the requirement of certification became unnecessary. 

This whole exercise in my humble view, is in consonance with the decision of this Court, per Mbaba, JCA, in British American Tobacco Nig. Ltd. vs. International Tobacco Co. Plc. (2013) 2 NWLR Pt. 1339, Pg. 493 at 520 - 521 where he found that: public documents exhibited as secondary copies in affidavit evidence cannot necessarily be certified true copies and that document exhibited to an affidavit is already an exhibit before the Court, being part of the affidavit evidence which a Court is entitled to look at, and use.
I do not think the issue of certification of a secondary evidence (photocopy) as in Exhibit C, can arise in this case being one fought on affidavit evidence, and the respondents not claiming to have obtained it from the appellant, lawfully a document attached to or exhibited with affidavit forms part of the evidence adduced by the deponent and is deemed to be properly before the Court to be used, once the Court is satisfied and it is credible. 

Being already an evidence before the Court (on oath), the formality of certification for admissibility, (if it required certification) had been dispensed with.
Of course the reason for this is easy to deduce, the first being that affidavit evidence is already an admitted evidence before the Court, unlike pleading, 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 (except where the document was executed in several parts or counter parts and the deponent has many of the parts to exhibit in original forms).
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.

On the whole and given the fact that cases of Originating Summons are fought on the platform of affidavit and counter affidavit evidence, documents annexed thereto have equally become evidence before the Court thereby dispensing with the question of their admissibility or non-admissibility. In this regard, secondary evidence or photocopies of the original documents are without contest and so would suffice. 

The question therefore as to whether having regard to the provisions of Sections 88, 89, 90 and 102 of the Evidence Act, 2011, the learned trial Judge was correct to have relied on Exhibit RB1 being an uncertified photocopy of the letter of approval of retirement from service of the 1st Respondent without any evidence on the original of the said document, is answered in the affirmative. 

I am saying that the learned trial Court was right to rely on Exhibit RB1 without sighting the original thereof." Per JOMBO-OFO, JCA.(Pp.11-18,Paras.A-A).

ISSUE: PUBLIC DOCUMENT-Effect of failure to exhibit proof of payment for certification of a document

"A look at Exhibit RB2 as can be gleaned at page 36 of the record of appeal, shows that it is devoid of assessment of fees and or payment receipt number for its certification. 
Upon the provisions of Section 104 of the Evidence Act, 2011 every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document.

In Udom vs. Umana (No. 1) (2016) 12 NWLR Pt. 1526, pg. 179 at 234 -235, the Supreme Court per Nweze, JSC, held that the phraseology of Subsection 2 of Section 104 of the Evidence Act, 2011 is to the effect that: a document can only be called a certified copy of a public document if, in addition, to the "payment of legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy" (Subsection 1, supra), it (the certificate) "is dated and subscribed by such officer with his name and his official title". 

In effect, any document that falls below the above mandatory threshold is inadmissible as a certified copy of a public document. 
As already noted every other requirement of Section 104 of the Evidence Act, supra was met with, save for the payment of fees for the certification of Exhibit RB2. 

In other words the document ostensibly received certification without payment of fees. Upon dealing with a similar situation in the case of Tabik Investment Ltd. & Anor. vs. Guarantee Trust Bank Plc. (2011) 17 NWLR Pt. 1276, pg. 240, the Apex Court emphasized the mandatoriness and the unambiguity in the use of the word "shall" in Section 111 (1) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, which is in pari materia with Section 104 of the Evidence Act, 2011. 
Going further in the findings of the Apex Court per, the noble Rhodes-Vivour, JSC, in his contribution instructed thus.
Before a public document can be tendered and accepted by the Court, it must be certified. 
A public document is certified if: 
1. It was paid for;
2. there is an endorsement/certificate that it is a true copy of the document in question; 3. the endorsement/certificate must be dated and signed by the officer responsible for certification, with his name and official title. 
Payment of the prescribed fees is indeed part of the conditions that must be fulfilled before a public document can be validly certified to be the true copy of its original. 
However, Exhibit RB2 though devoid of any proof of payment of the prescribed fees cannot be seen to be misplaced before the Court. 
The certification on its face goes to no issue the reason being that as a private document which was already in evidence before the Court, it needed no such certification. 

Absence of certification will still not rob Exhibit RB2 of its authenticity. Being that the certification thereof was a surplusage and could have been dispensed with, the learned trial Judge was thus correct to hold that it was properly certified." Per JOMBO-OFO, JCA.(Pp.19-22,Paras.F-C).

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