By C.C.Udemba
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Despite plethora of authorities on the distinct nature of documentary evidence from oral evidence, there are instances where they co-relate.
Court of Appeal’s decision in Uzamere v. Urhoghide [1] and that of Supreme Court in AG Rivers State v. AG Akwa Ibom State[2] and Ogundepo v. Olumessan[3] having the combined effect that a document speaks for itself and only a written agreement can vary another written agreement, here are more than 25 instances oral evidence can contradict or alter, add or vary contents of a document:
- To prove fraud, intimidation, illegality, want of due execution, etc.4 ,
- Existence of a separate oral agreement the document is silent on and which is not inconsistent with its terms.5
- Existence of a separate oral agreement that is a condition precedent to the one the one documented.6
- Existence of a separate oral agreement to rescind or modify the agreement on the document.[4]
- Any usage or custom of the contract on the document.8
- To prove a transaction documented on a memorandum if the memorandum was not intended to have any legal effect, grant or disposition of property.[5]
- Where legal relationship exists and documented and the only thing sought to be proved is the “existence of the legal relationship”.[6]
- To establish ignorance, carelessness or fraud of the parties by a stranger to the contract.[7]
- To vary a private document that is a collateral or informal agreement as opposed to another binding legal instrument.[8]
- To provide for an omitted/supplemented term of an agreement that was contained in a document, that is not inconsistent with the terms in the document, that ought not to be documented and the Court believed that the document did not contain the whole agreement.[9]
- To show a prior contemporaneous oral agreement or warranty which is part of the terms of the consideration in the main contract and not inconsistent with the terms on the document.[10]
- To show the unexpressed intention of parties to a deed to agree to some terms.15
- To identify series of documents containing the terms of the contract where the contract by reference incorporated the terms of another agreement.[11]
- To establish intention of the parties in a long-drawn transaction of which ought not be interpreted in isolation.17
- To back up a receipt for payment and receipt of money.[12]
- Where a document contains an admission against interest, the oral evidence on it is admissible even though the document itself was rejected.[13]
- To explain any controversy where the original document was destroyed by a witness.[14]
- To provide date of an undated document.[15]
- To corroborate an illiterate jurat.[16]
- To disclose the capacity in which a party entered into a contract.23
- To clear ambiguous portions in the document.[17]
- To prove what happened in a legislative assembly.[18]
- To prove the shareholding of a company by the person alleging it.[19]
- To show meaning of illegible expressions, abbreviations and words used in a peculiar sense.27
- To show the relation of the words of a document to facts.28
- To show the particular subject matter to which the document relates where the language of the document applies to more than one subject matter.[20]
- To prove other facts other than altering or varying the rights and liabilities on the document.[21]
- To assist the court to understand constitution and government of a religious or charitable group, meaning of words or terms by a particular class of people.[22]
- To confirm, contradict or discredit a document admitted under 4050 Evidence Act,2011 or the person through whom it was made.[23]
And more …
READER BONUS:
Secondary Evidence: Juxtaposed Tabularization Of Ss.89 & 90 Of The Evidence Act, 2011 For Easy Reference.
What amounts to primary documentary evidence been narrowed by s.86(1)-(4) of the Evidence Act,2021, counsel may approach that of Secondary evidence basically in the light of Ibrahim v. State[24]that once a document fails the test of primary evidence, it becomes secondary evidence.
s.87(a)-(e) having clearly stipulates what amounts to Secondary evidence, the admissibility of which pursuant to s.90 is largely dependent on the circumstances upon which it is tendered subject to s.89, therefore counsel is required to lay proper foundation, thus:
| SN | S.89 CIRCUMSTANCES/PROPER FOUNDATION | S.90 NATURE OF EVIDENCE ADMISSIBLE |
| 1 | When the original is in possession, power of the opponent or one who defiled a notice to produce. 89(a)(i)(ii) | Any secondary evidence of the contents of the document. 90(1)(a) ACB v. Nwadike (1996)4 NWLR (Pt.443)470 CA |
| 2 | Opponent admitted in writing the existence, content, condition and content of the original. 89(b) | The written admission. 90(1)(b) Okonkwo V. Ogbogu (1996)5 NWLR (pt.449)420 sc |
| 3 | Original got destroyed, lost and all possible searches have been made for it. 89(c) | Any secondary evidence of the contents of the document. 90 (1)(a) |
| 4 | Original is of such a nature that is not easily moveable. 89(d) | Any secondary evidence of the contents of the document. 90 (1)(a) |
| 5 | Public document as in s.102 evidence act,2011. 89(e) | A certified true copy (CTC) only. 90 (1)(c) |
| 6 | Any original document that is required to be certified by any law in Nigeria for it to be in evidence. | A certified true copy (CTC) only. 90 (1)(c) |
| 89(f) | ||
| 7 | Original of numerical accounts and documents which cannot be conveniently examined in Court and what is sought to prove is the general result of the whole collection. 89(g) | Evidence of the general result of the document by an expert in that field. 90 (1)(d) |
| 8 | A document that is an entry in a bank’s book (e.g, statement of account). 89(h) | The copy of the document having proved that; a) the book the document/entries were copied from was made at the time of making one of the ordinary books of the bank, b) the entry was made in the usual and ordinary course of business, c) the book is in the control and custody of the bank which proof may be given orally or by affidavit by an officer of the bank, d) the copy has been examined with the original entry and is correct which proof must be given by some person who has examined the copy with the original entry and may be given orally or by affidavit. 90 (1)(e) I.B.W.A Ltd v. Imano Ltd (2001)3 SCNJ 160 |
| 9 | When a seaman sues for his wages, he may give secondary evidence of the ship’s articles and of any agreement supporting his case, without notice to produce original. 90(2) | |
Written By C.C.Udemba (Associate: Ukpai Ukairo & Associates), c.c.udemba.attorney@gmail.com: 08187780666
[1] (2011) ALL FWLR (pt.558)839
[2] (2011) ALL FWLR (pt.579)1023
[3] 2011)18 NWLR (pt.1278) 54; 4 s.128(1)(a)Evidence Act,2011 5 s.128(1)(b). 6 s.128(1)(c).
[4] s.128(1)(d). 8 s.128(1)(e).
[5] s.128(2).
[6] s.128(3).
[7] Savannah Bank (Nig) Ltd. v. Salami (1996)8 NWLR (Pt.465)131 S.C; Sunati v. Tukur (2003)FWLR (pt.157)1128
[8] Ibid.
[9] Ibid.
[10] Ibid. 15 Ibid
[11] Awolaja v. Seatrade G.B.V (2002)4 NWLR (Pt.758) 520. 17 B.F.I.G v. B.P.E (2008) ALL FWLR (pt.416)1915
[12] Musa v. Chrislieb PLC (2000)12 NWLR (pt.680)145
[13] Edosomwam v. Ogbeyfun (1996)4 NWLR (Pt.442) 266 SC
[14] Onakoya v. F.R.N (2002)11 NWLR (Pt.779) 595 S.C
[15] Owema Bank v. Olatunji (2002) 12 NWLR (Pt.781)259 CA; Jinadu v. Esurumbi-aron(2005)14 NWLR(Pt.944)142 at 183
[16] Edokpolo & CO. Ltd v. Ohenhen (1994) 7 NWLR (Pt.358)511 23 Mbonu v. Nwoti (1991)7 NWLR (pt.206) 737 CA.
[17] Bunge v. Gov.Rivers State(2006)12 NWLR (Pt.995) 573
[18] Inakoju v. Adeleke (2007)4 NWLR (pt.Pt.1025)423
[19] Orji v. D.T.M (Nig)ltd(2009)18 NWLR (Pt.1173)467 27 s.129(1)Evidence Act,2011 28 s.129(4).
[20] s.129(8).
[21] s.130(3).
[22] s.74.
[23] s.238.
[24] (1991) 4 NWLR (Pt.186) 399 at 426 SC
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