The Proprietary Or Otherwise Of Certifying A Newspaper By Harvey Anyalewechi Esq.

The question of whether or not a newspaper is a private or public document and whether or not it requires certification before it can be tendered in evidence is one controversial legal issue that has sent lawyers from the 35 states of Nigeria to Abuja just to get a newspaper certified at the National Library.

In this article, the author argues that a Newspaper, in its original form (counterpart), does not require certification before it can be tendered in evidence in a court of law. The author also submits categorically that there is no law in Nigeria that requires a newspaper to be certified before it can be admissible in evidence in a court of law. The author concludes that the practice of certifying a newspaper at the National Library before it is tendered in evidence is erroneous and a grave misconception.

By the provision of Section 85 of the Evidence Act 2011 as amended, “the content of a document may be proved either by primary or by secondary evidence”. Primary evidence means the document itself produced for the inspection of the court- section 86 Evidence Act. Secondary evidence includes certified copies given under the provisions of the Evidence Act; 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; and copies made from or compared with the original ….”- Section 87 Evidence Act.

Again, under the Evidence Act, a document is either a Private document or a Public document. A document is a public document if it “forms part of the official acts or 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; or Public records kept in Nigeria of private documents”. All documents other than public documents are private documents. – Section 102 and 103 Evidence Act.

It is my observation that those who argue that a newspaper requires certification by the National Library before tendering same in court often cite Section 4(1) of the National Library Act, CAP N 56 as authority. The said section provides thus:

“the publishers of every book published in Nigeria shall within one month after the publication, deliver at his own expense to the National Library three copies of the book, two of which shall be kept in the National Library for permanent preservation and one of which shall be sent by the Director to the Ibadan University library”.

Section 4 (7) (c) of the National Library Act defined a “book” to include “collective works such as encyclopaedias, dictionaries, year book or similar works, newspaper, magazines and similar periodicals.”

Let me at this point reiterate that the essence of the National Library Act is to set up the National Library board, charged with the responsibility of establishing and maintaining the National Library of Nigeria and to promote such service as in the opinion of the Board are usually provided by “national libraries of the highest standing” [see the long title to the Act. Emphasis mine].

Also, Section 2 (2) (a) of the National Library Act states that:

“for the purpose of carrying out the general functions imposed on the Board… it shall be the duty of the Board, so far as its resources permits to assemble, maintain and extend a collection of books, periodicals, pamphlets, newspaper, maps, musical scores, films and recordings and such other matter as the Board considers appropriate for a library of the highest standing”.

The only inference that can be drawn from the above provisions of the National Library Act, is that the collection of books, in this case newspapers, is merely to stuff the National library with materials so as to meet the standard of a “library of the highest standing” and nothing more pretentious than that. Thus, it cannot be true that a newspaper becomes a public document the moment a copy of it is or required to be deposited at the National Library as posited by some practitioners.  S. T. Hon (SAN) in his book “S. T. Hon’s Law of Evidence in Nigeria” (Vol II) at page 993-995 while arguing that a Newspaper requires certification concluded as follows:

“In conclusion, there is no doubt that a newspaper or magazine, even if published by a private person or organisation, is a public document because as shown above in the definition of public document, a document becomes a public document because it is made for public inspection. A newspaper kept in the National Library or Archive is, no doubt, meant for public inspection”

With due respect, I think such conclusion is vague as holding same would imply that every book (including text books, journals, pamphlets, law reports, etc.) published in Nigeria is a public document as such book is also required to be deposited in the National Library under the National Library Act, and thereby requiring certification before being tendered in evidence in court.  A newspaper, it should be noted, is a product of a private enterprise (or in some cases private enterprise with government equity) and does not form part of the official acts or records of “the sovereign authority” as described in Section 102 of the Evidence Act.

The only time a newspaper will require certification is when the copy sought to be tendered in court is a photocopy or is obtained from the National Library or National Archive as secondary evidence.

Alternatively, assuming without conceding that a newspaper is a public document, a copy of a newspaper obtained from a vendor will still not require certification of any kind. This is because Section 85 of the Evidence Act provides that- “the contents of documents may be proved either by primary or by secondary evidence”. And, primary evidence means the document itself produced for the inspection of the court- Section 86 Evidence Act. Subsection 4 of the said section 86 emphatically provides that-

“Where a number of documents have all been made by one uniform process, as in the case of printing, lithography, photography, computer or other electronic or mechanical process, each shall be 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”. [Emphasis mine]

In line with the above position, the Supreme Court in KASSIM v. STATE (2017) LPELR-42586 (SC) per KEKERE-EKUN, JSC observed thus:

“Now, what really is the essence of the demand for a certified true copy of a public document? I think, and in agreement with ADEKEYE JSC, in GODWILL & TRUST INVESTMENT LIMITED v. WITT & BUSH LIMITED (2011) 8 NWRL, 500; (2011) LPELR-1333 (SC), the essence of demanding for a certified copy of a public document is the assurance of the authenticity of the document vis-à-vis the original. And so why go for that assurance in the certified true copy vis-à-vis the original, when the original is available? And so, when the cap is in the market, the head is also in the market; there is no further need to take the cap home from the market in order to test it on the head. I, therefore, agree with the court below that where the original copy of a document is available, it is admissible without the requirement of certification.”

Also, in UWUA UDO v. THE STATE (2016) 2-3 SC (Pt. 111) 29 the Supreme Court held that a public document tendered in its original form is admissible in evidence by virtue of sections 85 and 86 of the Evidence Act, 2011.

Conclusively, a newspaper in its original form, no matter how argued, remains a primary document that need no further certification before tendering same in evidence.

Written by;

Harvey Anyalewechi Esq.

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