The admissibility of public documents is one that that has been settled by the provisions of the Evidence Act 2011, especially at section 90(1)(c) which provides that it is only certified true copies of public documents and no other that can be admissible as secondary evidence. And also the decision of the supreme court in Kassim v State (2011) LPELR-42586(SC) and a host of others.
One controversy that has arisen over time is as to the admissibility of photocopies of Certified True Copies of a Public document. This argument is always a recurring decimal among lawyers especially the junior members of the bar who may have heard or read of decisions of court on this Issue. Most recent of such decisions is the case of Bredero Nigeria Limited V Shyantar Nigeria Limited & 2 Ors (2016) LPELR- 40205(CA).
Tendering of photocopies of a certified true copy of a public document is one that will always face legal practitioners especially in a system where keeping of public records is not at a perfect state.
It is important to point out that there are two views to the thought of the inadmissibility of Photocopies of Certified True Copies of Public Documents. While the first school of thought says photocopies of certified true copies are not admissible by the provisions of section 90(1)(c) of the Evidence Act as it bars the admissibility of any other form of secondary evidence of a public document apart from a Certified true copy. The other school of thought is as to the fact that a photocopy of a certified true copy of a public document should be recertified.
Before giving credence to any of these schools of thought it is apposite to examine the provisions of the Evidence Act to see what the law is. Section 90(1)(c) provides that only a certified true copy of a public document is admissible as Secondary evidence. As the only primary evidence of a public document is the original. See Kassim v State (Supra).
Section 105 of the evidence Act provides thus:
“Copies of documents certified in accordance with section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”
The provisions of Sections 105 of the Evidence Act are fundamental to this issue and will be examined. The Black’s Law Dictionary 6th Edition defines “Copy” as a transcript, double, imitation or reproduction of an original writing, painting, instrument or the like. This definition brings a photocopy within the scope of the definition of the term copy.
The wording of Section 105 of the Evidence Act are clear and unambiguous on this issue as documents certified in accordance with section 104 simply means a certified true copy of the original, and copies of the document certified in accordance with Section 104, can be said to include a photocopy. This is in line with the Supreme Court decision in Magaji V Nigeria Army (2008) 8 NWLR PT 1089,338, 396 paras. A-C which is based on Section 112 of the Evidence Act 2004 which is in pari materia with Section 104 of the Evidence Act 2011.
The Supreme Court Decision Magaji V Nigeria Army (supra) came under attack by the Court of Appeal in Bredero Nigeria Limited V Shyantar Nigeria Limited & 2 Ors (Supra), where My Lord of the court of Appeal held that in Magaji V Nigeria Army (supra), the issue on admissibility of a photocopy of a certified true copy of a public document was a mere obiter which is not binding, and that the binding authority on the issue is the decision in MINISTER OF LANDS, WESTERN NIGERIA V. AZIKIWE (1969) AN 48, 57 58, the Supreme Court held firmly that a photocopy of a certified true copy of a public document is not admissible in evidence in the light of the words “no other secondary evidence is the admissible”. It is important to point out here on the issue of an obiter of the of the supreme court, that it was held Per Nnaemeka-Agu (J.S.C) as he then was in the case of Ifediorah V Ume (1988)2NWLR PT 74,5, PP13, Paras D-E that an obiter dictum by an ultimate court on an important point of law is one which is binding on and followed by all the lower courts.
Having been able to establish the fact that an obiter dictum of the Supreme Court is law and binding, the conflicting decisions of the Supreme Court in MINISTER OF LANDS, WESTERN NIGERIA V. AZIKIWE(SUPRA) and Magaji V Nigeria Army (SUPRA) can now be placed on equal footing to be tested.
It is common knowledge that when there are two conflicting decisions of the Supreme Court on an issue, the later in time prevails. It is based on this principle that the Decision in Mogaji v Nigeria Army (Supra) that should be followed as it is later in time and as such a photocopy of a certified True Copy of a public document is admissible.
Finally on the issue of recertification of a certified true copy of a public document as was decided in the case of Ogboru v Uduaghan (2011)2NWLR PT 1232,538, 574-575 Paras H-C, it is important to point out that recertification of a certified true copy of a public document is alien to our law. As recertification will amount to authenticating the previous certification, and this is not what the law is meant to cure as the purport of certification is to ensure the authenticity of a document Vis-à-vis the original and the need for preservation of public documents. See ARAKA V EGBUE (2003)17NWLR Pt 848, 1,pp20 Paras G-A.
In accessing whether a document is properly certified, the courts should be concerned as to whether such a document complies with the provision of Section 104 of the Evidence Act and not whether it is a photocopy or not. Once the document complies with the provisions of Section 104 of the Evidence Act, it should be presumed that the document is same with the original.
O.J Nwose (Esq.) firstname.lastname@example.org
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A Report Of The Judgement Of The 16 Divisions Of The Court Of Appeal In Nigeria