By Hameed Ajibola Jimoh Esq.
Sometimes, it sounds unnecessary for the law especially the Evidence Act, 2011, herein after referred to as the AE- to make provisions for some requirements as to the admissibility of certain secondary evidence. Also, sometimes, it might be considered that the word ‘proper’ foundation required to be laid is just a mere nomenclature and that what the law requires is a ‘mere foundation’. This paper is of a different view with these opinions. This paper emphasises the need for the fulfilment of the requirements for admissibility of the identified secondary evidence which is sought to be tendered before a trial court (by a witness) for the said secondary evidence to be admitted by the trial court in place of its original and this paper further emphasises the importance of laying ‘proper’ foundation at the time of introducing and or tendering such secondary evidence before same could be held admissible in evidence in a trial court. This paper therefore submits that failure in the above two situations (respectively), is fatal to the admissibility of the said evidence which would thereby suffer being ‘rejected’ by the trial court and be so ‘marked’.
Generally, the contents of a document may be proved by the production of the document in its original form (known as primary evidence), which is called the best evidence or by the production of a certified copy given under the relevant provisions of the Evidence Act, which is the secondary evidence of such document”. See section 88 of the EA. See also: Fagbero v. Arobadi  7 NWLR (Pt. 978)172 and Ezemba v. Ibeneme  14 NWLR (Pt.894) 617. Therefore, and to this end, the admissibility of a copy of a document, the original copy of which is not available for the Court’s perusal and inspection is provided for under the EA. Section 87 of the Evidence Act refers to such documents as secondary evidence and section 87 of the EA defines what are ‘secondary evidence’ thus
‘87. Secondary evidence includes:
(a) certified copies given under the provisions hereafter contained in this Act:
(b) 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;
(c) copies made from or compared with the original:
(d) counterparts of documents as against the parties who did not execute them; and
(e) oral accounts of the contents of a document given by some person who has himself seen it.’. It should however be noted that the list of secondary evidence here is not exhausted as the section uses ‘includes’.
Furthermore, the Act i.e. EA, provides for about eight circumstances when the Court could admit such documents in evidence. It should however be observed that of all the eight (8) circumstances, only one circumstance is of a peculiar nature and that circumstance is when the original document could not be found anywhere, anymore. For the remaining circumstances, the original copy is located somewhere but could not be brought to Court for one reason or the other. Section 89 EA, therefore lists the requirements which each of the eight (8) secondary evidence permitted by the Act shall fulfil before same could be admissible in evidence by the trial court. The said section 89 of the EA states as follows: “Secondary evidence may be given of the existence, condition or content of a document when: –
(a) The original is shown or appears to be in the possession or power –
(i) of the person against whom the document is sought to be proved, or
(ii) of any person legally bound to produce it and when after the notice mentioned in section 91 such person does not produce it;
(b) The existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) The original has been destroyed or lost and in the latter case, all possible search has been made for it;
(d) The original is of such a nature as not to be easily movable;
(e) The original is a public document within the meaning of section 102;
(f) The original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence;
(g) The original consists of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved is the general result of the whole collection; or
(h) The document is an entry in a banker’s book.”. Aguda has opined that: “the Act does not make one type of secondary evidence superior to the other and it may be safely suggested that, following the English Common Law (as in Doe D. Gilbert v. Ross (1840) 7 M. & W. 138; 151 ER. 711) there are no degrees of secondary evidence in this country. Once it is impossible to produce the original of a document, and it is a case in which secondary evidence of the contents is admissible, such secondary evidence may take the form of any of the documents listed in a-d above, or it may take the form of oral evidence”.
Furthermore, section 90 of the Act spells out the nature of secondary evidence admissible in evidence with respect to the various original documents mentioned under section 89 of the Act. See also Araka v. Egbue  33 WRN 1; (2003) 17 NWLR (pt. 848) 1 @ 26C-G. The said section 90 EA provides thus
‘90. (I) The secondary evidence admissible in respect of the original documents referred to in the several paragraph, of section 89 is as follows:
(a) in paragraphs (3). (c) and (d). any secondary evidence of the contents of the
document is admissible:
(b) in paragraph (b), the written admission is admissible:
(c) in paragraph (c) or (f), a certified copy of the document, but no other secondary
evidence, is admissible;
(d) in paragraph (g), evidence may he given as to the general result of the documents by any person who has examined them and who is skilled in the examination of such documents; and
(c) in paragraph (h), the copies cannot he received as evidence unless it is first be
(i) the book in which the entries copied were made was at the time of making one of the ordinary books of the bank,
(ii) the entry was made in the usual and ordinary course of business,
(iii) 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, and
(iv) 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.
(2) “When a seaman sues for his wages he may give secondary evidence or the ship’s articles and of any agreement supporting his case, without notice to produce the originals.’.
I must however be quick to observe that in regard to section 89(h) of the EA relating to ‘The document is an entry in a banker’s book.”, sections: 51, 89, 90, 84 and 258, (section 83 of the EA might also be put into consideration) are relevant sections of the EA that must be put into consideration. This is more so that section 84 is more probable, having regard to the technological advancement in the banking sector. Also, apart from the said secondary evidence being made by a certificate in compliance with section 84 of the EA, such document or evidence or statement of account or banking record must be tendered through one of the staff of the bank concerned and not just through a witness or a police investigation officer who is not a staff of the concerned bank. See section 90(1)(e) of the EA.
Furthermore, the word ‘proper’ in laying proper foundation to my mind, presupposes that: i). there is ‘improper’ foundation; and iii.) there could be no foundation laid at all. The word ‘proper’ has been defined by the Oxford Advanced Learner’s Dictionary, 6th Edition, page 935 to mean: right; appropriate or correct; according to the rules’ (underlining is mine for emphasis). While ‘improper’ is defined by the same dictionary at page 602, as ‘(formal) not suited or appropriate to the situation’. From the definition of ‘proper’ by this dictionary, the ‘rules’ in this regard of evidence is the ‘Evidence Act, 2011’. Therefore, the requirement of the Act is that ‘proper foundation’ must be laid by a witness where the original copy is not available to be tendered before the trial court. Therefore, not laying foundation at all for the unavailability of the original and why it is only the secondary evidence that is meant to be tendered in evidence and laying an improper foundation for the unavailability of the original and why it is only the secondary evidence is meant to be tendered in evidence are respectively fatal and in violation of the statutory requirements under the AE. In my humble submission, the provisions of a statute such as the EA is mandatory to be complied with and no option is permitted. In my humble submission too, the above submission in this regard is or are to the effect(s) that a trial court has no such power or discretion to deviate from the clear meanings and or provisions of a statute no matter the contrary view that such a trial court or judge might have! In my humble submission and recommendation too, an appeal can or shall also or therefore lie on law against the decision of such trial court that deviates from a provision of statute. To that extent too, a trial court, in my humble submission (and perhaps in order to do justice in a case), does not have the power and or discretion to consider the provisions of a statute which the trial court is bound to apply as provided by the statute as being ‘technical’ in application! Respectfully to all courts (especially the trial courts in Nigeria), provisions of a statute must be complied with by every court of law and in fact, every person (no discretion is allowed in this regard)! Also, it is a trite law that one cannot place such an ‘improper foundation’ being laid or ‘no foundation at all’ being laid on no law or no legal basis and expect it to stand. See: the case of Macfoy v United African Company Limited PC 27 Nov. 1961. Also, I humbly submit that the use of the word ‘may’ in section 89 of the EA which in my humble submission, presupposes or means ‘shall’ connotes that the requirement as to ‘proper foundation’ in to be laid in tendering a secondary evidence is ‘mandatory’. The following case laws are humbly relied upon on this my submission:
- In the case of MEKWUNYE v. CARNATION REGISTRARS LTD & ANOR (2021) LPELR-55187(CA) On ‘- Interpretation of the words “shall” and “may” as used in a statute and different interpretations to same’ held:
“In IFEZUE V. MBADUGHA & ANOR (1984) LPELR 1437 (SC), the Apex Court observed that it is now trite that the word “Shall” does not always mean “Must” a matter of compulsion. It could be interpreted, where the context so admits to mean ‘may’. Whereas the word “MAY” is not always ‘may’. It may sometimes be equivalent to SHALL.” Per RITA NOSAKHARE PEMU, JCA (Pp 22 – 23 Paras E – A);
- In ALOZIE v. STATE (2021) LPELR-56091(CA) On – Interpretation of the word “may” as used in a statute held:
“It is a general principle of interpretation of statutes that the use of the word “may” connotes permissive action though in exceptional circumstances it may mean mandatory or compulsory action. See Nigeria Navy Vs Labinjo (2012) 17 NWLR (Pt.1328) 56 at 77; and Mohammed Vs State (2018) 5 NWLR (Pt.1613) 540’. Generally, “may” is said to be a permissive or enabling expression and unlike “shall” is not a mandatory. ” Per TANI YUSUF HASSAN, JCA (Pp 31 – 31 Paras D – F);
- LIBA v. MUSA & ANOR (2021) LPELR-55010(CA) on – Guideline as to how to construe the word “may” when used in a statute, held:
“It is also important to point out that “may” is an enabling or permissive word just as the 1st Respondent’s Counsel has argued. In that sense, it imposes or gives a discretionary or enabling power but where the object of the power is to effectuate a legal right. The word “may” has been construed as compulsory or as imposing an obligatory duty. The principle to be drawn from decided cases on the construction of the word “may” appears to be quite clear. It is trite that “may” does not always mean may in the sense of being mandatory. See the case of PDP VS. SHERIFF & ORS 2017 LPELR-42736 (SC).” Per MOHAMMED BABA IDRIS, JCA (Pp 13 – 14 Paras F – C);
- OLAOYE & ANOR v. AKANDE & ORS (2017) LPELR-43267(CA), on – Guideline as to how to construct the word “may” when used in a statute, held:
“As regards the interpretation of the word “may”, the Supreme Court in ADESOLA V ABIDOYE (1999) 14 NWLR (PT. 637) 28 @ 56 while considering Section 22 (5) of the Chiefs Law of Oyo State 1978 observed: “The use of the expression “May” in this situation is not merely facultative but mandatory. There is no alternative. The aggrieved has no choice of action in the remedy provided for him. Accordingly, the word “May” in Section 22(5) of the Chiefs Law of Oyo State 1978 should be construed as imperative, the exercise of the right being not optional.” Per CHINWE EUGENIA IYIZOBA, JCA (Pp 33 – 33 Paras A – D).
Furthermore, in the case of Dr. Arthur Agwuncha Nwankwo and Ors V. Alhaji Umaru Yar’Adua and Ors. (2010) LPELR-2109(SC), the apex Court held as follows on the interpretation to be accorded the word ‘shall’ in a statute, “The word shall when used in a statutory provision imports that a thing must be done. It is a form of command or mandate. It is not permissive, it is mandatory. The word shall in its ordinary meaning is a word of command which is normally given a compulsory meaning as it is intended to denote obligation. Bamaiyi V. A.G. Federation (2001) 12 NWLR Pt. 722 pg. 468 Ifezue V. Mbadugha (1984) 1 SCNLR pg. 427 Chukwuka V. Ezulike (1986) 5 NWLR pt. 45 pg. 892, Ngige V. Obi (2006) 14 NWLR pt. 991, pg. 1.” See also Chika Madumere and Anor V. Barrister Obinna Okwara and Anor (2013) LPELR-20752(SC).
Furthermore, in regard to ‘strict’ compliance with the provisions of a statute (and as a guide to trial court that might find itself in regard to deciding on the application of a statutory provision to ‘proper foundation’, the word ‘strict’ according to the Oxford Advanced Learner’s Dictionary, 6th Edition, page 1186, means among other meanings, ‘that must be obeyed exactly’ and the word ‘exactly’ by the same Dictionary at page 398 means ‘used to emphasise that something is correct in every way or in every detail’. Therefore, in I.N.E.C. v. Action Congress  2 NWLR (Pt.1126) 524 P. 616, paras D-F, Per Salami, J.C.A. posit on the strict compliance with statutory provisions by a court and every person (including a lawyer and a litigant in a case or administrative body of government) thus:-“Where a method or manner of discharging responsibility is stipulated by a statutory provision it is that method that must be employed: See Co-operative and Commerce Bank Nigeria Plc v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528, 556 para. G, the Supreme Court stated as follows: -“Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and no other must have to be adopted” In Nuhu Sani Ibrahim v. INEC & Ors. (1999) 8 NWLR (Pt. 614)334, 352 paras. E-F, this court per Salami, JCA said that – “It is settled law that where a legislation lays down a procedure for doing a thing, there should be no other method of doing it.” Also, The Supreme Court in Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd. (Supra) Pp. 193 – 194, held as follow:- “It is the view of this court that where a statute clearly provides for a particular act to be done or performed in a particular way, failure to perform the act as provided will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision. It was held by this court in Adesanoye v. Adewole (2006) 14 NWLR (pt. 1000) 242 that in such a situation, the consequences of non-compliance follow notwithstanding that the statute does not specifically provide for sanction. This knocks the bottom off the submission of the learned counsel for the appellant in this case that because section 50(1) of the Act does not provide for sanction, the contract cannot be said to be illegal. A contract which violently violates the provisions of a statute as in this case, with the sole aim of circumventing the intendment of the law maker is to all intents and purpose illegal null and void and unenforceable. Such a contract or agreement is against public policy and makes nonsense of legislative efforts to streamline the ways and means of business relations. This court, and any other court for that matter would not be allowed to be used to enforce any obligations arising therefrom.”.
Furthermore, the reason (or the main reason) for strict compliance with the provisions in a statute by a court of law is because such strict compliance is in accordance with the ‘doctrine of separation of powers’ and as enshrined in sections: 4, 5 and 6 of the Constitution, by section 6 of the Constitution, the judiciary (court of law) has the duty to interpret laws (and not to make laws rather to be bound by laws made by the legislature), this power is donated by Section 6 of the 1999 Nigerian constitution. In exercise of such duty, the courts in Nigeria is to ensure that they interpret the law in such a manner as not to defeat the intention of the Legislators. It is expected that they restrain and confine themselves as passive-onlookers to judicial precedent i.e stare decisis which is the traditional mode of approach to cases brought before it, as it bothers on interpretation of statutes. This is because, it is expressed that the judge duty is to declare the existing law and not make one (Judicis est jus dicere non dare). This principle was echoed by the Supreme Court in the case of Okumagba v. Egbe (1965) 1 All NLR 62 at p. 65. So judges in performance of their judicial functions in constructing statutes, recourse had to be made to the plain meaning of words as against their moral view, as it behooves on them not to fill in the gaps in a legislation rather covey the intention of the legislature. As Allen K.C in his work “Law in the Making” 6th.ed., page 294, posited that: “By no possible extension of his office can a judge introduce new rules for the compensation of injured employee…The Legislature can project the future a rule of law which has never before existed. The court can do nothing of the kind.” See: –DO JUDGES MAKE LAW? by Nonso Robert Attoh, Faculty of Law, University of Nigeria, Enugu State, Nigeria (2015/2016 Session). Therefore, in my humble view, whenever a litigant or witness intends to tender a secondary evidence in such conditions allowed by the EA, to prove existence or contents of the primary evidence which is the original of the said evidence, such person has to make sure that ‘proper’
Questions in Examination-In-Chief to introduce and or tender a secondary evidence in a trial before the trial court could be put to a witness having regard to which of the condition in sections: 89; and 90 respectively (as the case might be) for instance, relating to section 89(c) of the EA which provides that ‘89‘(c) The original has been destroyed or lost and in the latter case, all possible search has been made for it;’. may be framed thus
“Take a look at the document dated …… Is it an original or photocopy?” Witness: “It is a photocopy” Counsel: “Where is the original?” Witness: “The original got missing while I was relocating to another address.” Counsel: what effort did you make to locate the original?” Witness: I searched for the original ……… (i.e. narrating efforts made to ‘search’ for the original) to no avail” Counsel: “My Lord, we seek to tender the document as an exhibit in this suit.”.
This questioning during Examination-In-Chief is apposite especially in the condition where the original of the said secondary evidence is ‘missing’ or ‘lost’ or can no more be found by the witness. Section 89 (c) of the Evidence Act, 2011, emphatically provides that where the original is said to be lost, there must be evidence before the court that a search was conducted for its location. Therefore, where this aspect of testimony is not available to the Court, it is arguable that, sufficient foundation has not been laid for the admissibility of the document and the document is inadmissible in evidence, whether or not there is opposition to its admissibility by opposing counsel. The Supreme Court has held in Buhari v. INEC & Ors (2008) LPELR-814, p.124 (paras A-B), that ‘where a Court admits the evidence because the opposing counsel did not object to its admissibility, the Court is bound to expunge it at the point of writing its judgment or ruling.’.
Therefore, it is to be noted in my humble submission that it is not over to the jubilation of the party who has tendered a secondary evidence without laying any foundation at all or having laid ‘improper’ foundation in violation of the requirements of the EA, that the trial court has admitted same. As held in the case of Buhari v INEC & Ors. (supra), ‘where a Court admits the evidence because the opposing counsel did not object to its admissibility, the Court is bound to expunge it at the point of writing its judgment or ruling’. I must further observe that while it is not in all cases’ that the court can suo motu reject a document that was not objected to on the grounds that it does not conform to the rules of evidence. Sometimes Counsel can mislead the court and make the court to admit an inadmissible document. However, this can be excluded on appeal. In FOLORUNSHO V. FRN (2017) LPELR-41972(CA) Supreme Court sited the cases of MOTANYA v. ELINWA & ORS (1994) LPELR-1919 (SC); OTOKI v ALAKIJA (2012) LPELR-7994 (CA) and ABUBAKAR v CHUKS (2007) LPELR- 52 (SC) said “The fact that a document has been admitted in evidence, with or without objection, does not necessarily mean that the document has established or made out the evidence contained therein, and must be accepted by the trial judge. It is not automatic. Admissibility of a document is one thing and the weight the Court will attach to it is another. The weight the Court will attach to the document will depend on the circumstances of the case as contained or portrayed in the evidence.”Per NIMPAR, J.C.A. (P. 18, Paras. A-E)’. Also in the case of ‘ALHAJI SAFIANU AMINU & 2 ORS VS ISIAKA HASSAN & 2 ORS (2014) 1 S.C.N.J. Supreme Court held that “Neither a trial court nor the parties to an action has any power to admit without objection, a document that is in no way and under no circumstances admissible in law. If such a document is wrongfully received in evidence before the trial court, an appellate court has an inherent jurisdiction to exclude it even where no objection was raised to its going in at the Lower court. PER PETER-ODILI, JSC”.
Therefore, in my humble submission, an evidence or document can be objected to by the opposing party at the time the person who produces it for his use is to tender same in evidence (i.e. for the trial court to admit same in evidence) that the document sought to be tendered being a secondary evidence, ‘no foundation has been laid as to the whereabouts of the original’. Section. 83, Section: 88; and 89 EA, respectively. The general rule remains that documents must be proved by primary evidence. Section 88 EA. Therefore, when secondary evidence is sought to be tendered in evidence in a court trial, a foundation must be laid in accordance with s. 89 either in the witness’s deposition or orally in court. See EZENWA ONWUZURUIKE v. DAMIAN EDOZIEM & ORS (2016) LPELR-26056(SC).
Furthermore, another issue has to be noted here. For a proper foundation to be laid, the facts surrounding the unavailability of the original evidence or document must have been pleaded by the said party, else, such proper foundation would lack ‘foundation’ itself. Therefore, the opposing party may also raise an objection even where the foundation for the unavailability of the original document or primary evidence is properly laid ‘That the document sought to be tendered was not pleaded nor frontloaded’ and or ‘That there is no nexus between the depositions of the witness and document sought to be tendered.’ See OLANIYAN V OYEWOLE (2008) CA. For this objection to stand it must be established that there is no fact in the deposition pointing to the transaction or existence of that document. This objection should be raised with caution.
ALHAJI SAFIANU AMINU vs. ISIAKA HASSAN 2014 1 S.C.N.J. 163 AT 166, “It is to be said that documentary evidence needs not be specifically pleaded to be admissible in evidence so long as facts and not the evidence by which such a document is covered are expressly pleaded. Consequently, where the contents of a document are material, it shall be sufficient in any pleading to avert the effect thereof as briefly as possible without setting out the whole or any part thereof, unless the precise words of the document or any part thereof are or any part thereof are material.” PER PETER-ODILI, JSC”.
Furthermore, I wish to produce an opinion of my brother Isaac Uche Obi Esq. who is said to be a partner at the Alliance Law Firm, Lagos, in his article titled ‘Admissibility of secondary documentary evidence: Nigeria and India in focus’ published on ‘The Guardian’ of the 24th January, 2020, which I totally agree with thus
‘It is common knowledge that a lost property could be found, hence the cliché “lost but found”. Even where there is evidence before the Court that a thorough search was conducted for the lost or missing original document, the outcome of such a search, fruitful or otherwise, should be produced in evidence before the court. Evidence of the outcome of such a search is what confirms whether the original document could be said to be conclusively lost or missing at the time of testifying. Where the evidence stops short of affording the court an opportunity to form an opinion as to whether a search was, at all, conducted and what its outcome was, then it is not conclusive that the original document is lost or missing at the material time, for the purpose of satisfying the provisions of section 89 of the Act.
This provision of the Act should not be allowed to be a veritable tool in the hands of unscrupulous litigants to deny the courts the benefit of reviewing original documents for the purpose of ascribing probative weight and value and dispensing substantial justice.
Another area of concern concerning the application of this provision of the Act is the frequent failure of counsel to incorporate in their pleadings the foundational facts that support the evidence of loss and search and reliance on secondary evidence of an original document. What tends to happen is that parties, through counsel, spring it as a surprise at the point of giving evidence. It is the practice that parties only front-load photocopies of documents intended to be relied upon during trial, in the course of settlement of pleadings. It is advocated that a party who intends to rely on the photocopy of a document during trial, must disclose this position at the stage of settlement of pleadings, stating why the original copy will not be tendered at trial. This way, the opposing counsel has sufficient time to investigate the reasons why the original copy of the document will not be available for inspection during trial.
There have been several instances when witnesses testify to the court that the original copies of documents got lost or missing in the course of relocation or in other scenarios, when, in fact, such fact was never pleaded anywhere by the party concerned. In such a circumstance, even where there is evidence before the court that a search was conducted for the lost or missing original document, the secondary document ought to remain inadmissible because sufficient foundation still has not been laid. This emphasizes the usefulness of pleading the fact and circumstances that parties intend to rely upon in proof of their cases, since evidence of facts not pleaded is not admissible during trial, and if wrongly admitted should be expunged at the stage of judgment, as held in the case of Aminu & Ors v. Hassan & Ors (2014) LPELR – 22008 (SC) (pp. 47-48, paras F-C).
Some have argued that such issues be left for cross-examination rather than pleadings. But such postulation overlooks the trite principle of law that bars a party from springing any manner of surprise on the opposite party, see Justice Party & Anor v. INEC & Ors LPELR – 7256 (CA), page 5-7, paras F-C. As stated earlier, a party who is embarking on trial has the right to know, in advance, the case that an opponent intends to fashion during hearing. That way, adequate preparation could be made to meet all the material points in issue at trial. This is especially important when viewed against the backdrop of the sharp practice of opposing parties first manipulating original documents with the aid of technology to produce a desired outcome before then photocopying same for use as secondary evidence.’.
The above extract is to pay more importance on the need for laying ‘proper foundation’ before secondary evidence could be held admissible in a trial by a trial court.
Furthermore, I humbly refer the reader to the Ruling delivered by the Federal High Court of Nigeria, Abakaliki Judicial Division Coram Honourable Justice Akintayo Aluko, on the 21st March, 2017, in SUIT NO: FHC/AI/12C/2016, BETWEEN: FEDERAL REPUBLIC OF NIGERIA V EMMANUEL NKWUDA ‘M’. The Ruling, in my humble submission, is a great knowledge on the requirements of the EA for the admissibility of document which is ‘an entry in a banker’s book or a statement of account and the consequence of the failure to so comply and or fulfil the requirements of the EA’. In this Ruling, the Honourable Presiding Judge rejected the secondary evidence sought to be tendered by the PW 5 on the ground of failure to comply with the provisions of sections: 51, 89, 90, 84,and 258 of the EA and so marked the said evidence.
Furthermore, in regard to ‘bank statement of account’, the following points should be noted by the reader:
- “The Blacks Law Dictionary (9th Edition) defines Statement of Account at its page 1539 as: *”a report issued periodically (usually monthly) by a bank to a customers’ account, including the checks drawn and cleared, deposits made charges debited and the account balance.”. See: Mainstreet Bank Ltd v UBA Plc (2014) LPELR-24118 (CA)’;
- It is important to underscore the fact that a document which was typed using a computer is not a computer generated evidence. Thus, section 84 of the EA intends that only complex evidence generated from the computer against which the calculating or measuring accuracy of the computer is depended upon or stands to be tested is to be objected to or subjected to scrutiny by the courts and not ordinary documents printed out of the computer. Held in the case of ‘Attorney General of Federation v. Anebunwa (2022) 14 NWLR (Pt. 1850’) thus
“a document which was typed using a computer is not a computer-generated evidence…. Section 84 of the Evidence Act, 2011 intends that only complex evidence generated from the computer, against which the calculating or measuring accuracy of the computer is depended upon or stands to be tested is to be objected or subjected to scrutiny by the courts and not ordinary documents printed out of the computers”. Per Ogunwumiju JSC;
B2. For instance, in the case of ‘EMERGING MARKETS TELECOMMUNICATIONS SERVICES LTD. (ETISALAT NIGERIA) vs. ADOYI(2021)LCN/14954(CA)’ the court held as follows
‘ISSUE: ADMISSIBILITY OF GSM TEXT MESSAGE(S)-
Circumstances under which gsm text messages are admissible in evidence without fulfillment of the preconditions in Section 84 of the Evidence Act, 2011(Issue is mine)
“As regards Exhibit 5, the Appellant argues that it be expunged for non-compliance with Section 84 of the Evidence Act, 2011 as amended.
It is trite and settled that admissibility of evidence is governed by Section 6 of the Evidence Act. A piece of evidence is admissible once it is found relevant and irrespective of how it was obtained unless the evidence be it oral or documentary, is excluded by statutory provision. The Appellant’s argument in respect of Exhibit 5 is that it may be relevant but has not complied with the requirement of other statute, a precondition for admissibility as it was sent to the Respondent’s phone and printed by him from another computer. In my view and humbly, the step taken by the Respondent is the reason why one is unable to agree with the learned Appellant’s argument in the particular circumstance of Exhibit 5. The Respondent retrieved some of the messages sent to his phone by the Appellant and typed them out. It is necessary to bear in mind that the messages were not public document or for the public domain, they were sent to the Respondent through the registered line he has with the Appellant. Further, the Respondent put the Appellant on notice to produce the certified true copies of a comprehensive printout which it failed to do. See page 7 of the Record. Having done all the foregoing, it will not be substantial justice for the Respondent to be deprived of relevant evidence as Exhibit 5 for his case due to no fault of his, on the basis of Section 84 of the Evidence Act. Whether or not he will get judgment is another matter entirely, he should not be disallowed to present his case before the Court with the necessary evidence for which he gave notice to the Appellant, the custodian of the comprehensive printout. Failure to produce the comprehensive printout on the part of the Appellant brings it under the presumption that such document if produced would be against it. In my considered view and humbly, Exhibit 5 as held by the Court remains part of the pieces of admitted evidence in the Respondent’s case, it will not be expunged. If that be the position, the reliance on same by the Court is proper and correct in the circumstance of this appeal.” ‘Per WILLIAMS-DAWODU, JCA.’;
- The bank statement is a Computer generated document which has to be certified by the officer to ensure that no one illegally or without authorization tampered with the source data as officially imputed in the Computer. Also the certification must include that the Computer was operational or in good working order when the document was generated;
- By virtue of section 84 and of the evidence Act, 2011, in any proceeding, a statement contained in a document produced by a Computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the following conditions are satisfied in relation to the statement and Computer in question: That the document containing the statement was produced by the Computer during a period over which the Computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate:
(a) or not, or by any individual; That over that period there was regularly supplied to the Computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so
(b) contained is derived; That throughout the material part of that period the Computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents;
(c) and That the information contained in the statement reproduces…;
- Also, in the case of ‘Union Bank v. Agbontaen (2018) LPELR-44160(CA)’, it was held that whether the statement of account or electronic ledger is to be tendered either in its original form or as a secondary evidence pursuant to S. 90 (e) of the Evidence Act, 2011, it is required that it must satisfy the conditions prescribed by Section 84 of the Act. S. 84 is or a specific application while S. 90(e) is of a general application;
- In Section 84, the marginal note reads thus:
‘Admissibility of statement in document produced by computers.’ While in Sections 89 and 90 respectively they read thus: ‘Cases in which secondary evidence relating to document are admissible.’ and ‘Nature of secondary evidence admissible under Section 89.’;
It thus emphasises the imperative nature of the provisions of Section 84 of the Act with regard to admissibility of document produced by computer whether being tendered in evidence as a primary (original) or secondary evidence. While on the other hand Sections 89 (1) (h) and 90(1) (e) of the EA respectively, deals with the admissibility of secondary evidence generally, including banker’s books and not limited to electronic or computer derived documents;
- The Apex court in case of ‘A.G OF THE FEDERATION v. ANUEBUNWA (2022) LPELR-57750(SC)’ has made it a computer generated evidence, wherein the officer issuing it shall comply with the provision of section 84;
- If there is no certificate of authenticity attached, there is an exception to same, which is that the party need to satisfy the Court that he or she did not produce the said computer generated evidence. As It, certainly, cannot be the intention of the legislature that section 84 of the Evidence Act, 2011 should strip a party, who is not the owner/maker of computer-generated document, of his right to present electronic evidence, meant for the prosecution or defence of his case in a court of law. See the holding of Ogbuinya, JCA in Stanbic Bank Plc v. Longterm Global Capital Ltd & ORS (Appeal No. CA/L/1093/2017, unreported) Pp. 68-70. Furthemore, see the article of my learned brother ‘C.K. Anyanwu Esq. (Lawyer of Promise) on the topic ‘THE LEGAL STATUS OF BANK STATEMENT AND THE CONDITION PRECEDENT FOR ITS ADMISSIBILITY IN EVIDENCE* (Paradigm Shift)’, published online social media.
However, it should be noted that in the interest of justice, the law is trite now that ‘Where a Document is rejected for lack of proper foundation and not for inherent inadmissibility, it can be re-tendered as exhibit. The court held thus
‘Where a Document is rejected for lack of proper foundation and not for inherent inadmissibility. In the circumstance, the Court of Appeal was right to hold that the trial court ought not to have “rejected” and “marked rejected” the admissible statement of account because proper foundation was not laid. The Document could later be admitted in evidence after proper foundation had been laid by the respondent for its admissibility.’ [Edoho v. A.-G. Akwa Ibom State(1996) 1 NWLR (Pt. 425) 488 referred to.] (P. 134, paras. A-C). See Diverse Assets Mgt. Ltd. v. Wema Bank Plc(2023) 12 NWLR (Pt. 1897) 121 Court: S.C. (Underlining is mine for emphasis).
Therefore, considering the above legal arguments and submissions, the importance of the law requiring secondary evidence of the original evidence in trial and for a proper foundation to be laid where the original is not available was ably captured by my learned brother Isaac Uche Obi Esq. (supra) and I humbly adopt same as mine thus
‘The admissibility of a copy of a document, the original of which is not before the court has been one of the most abused procedures in our judicial architecture. In this era of digital technology, the window has been opened for litigants to tamper with the content of originals of documents, make copies of the tampered version of the original and mount the witness box to state on oath that the original of the document went missing when he was changing office, or during an inferno in his office or residence, or under various other circumstances. With such a statement, the witness is presumed to have laid sufficient foundation for the admissibility of the copy of such a document.
It is noteworthy that, on many occasions, the court and the opposing party become aware of this position, for the first time, during the evidence-in-chief of the party concerned. It is nowhere contained in the pleadings of the concerned party, that the party’s office or residence suffered any such mishap or that there was a relocation of the office or home. Many courts and, even, counsel do not see anything improper in this practice of failing to lay proper foundation for the admissibility of such secondary evidence, and will neglect to oppose the admissibility of such document, once foundation has, seemingly, been laid.
A case that quickly comes to mind is the recent fire incident that gutted part of the Accountant General of the Federation’s office in Abuja. Hours before that incident, there was controversy concerning the way and manner in which the Federal Government’s palliatives to the citizens, arising from the consequential lockdown of some cities in Nigeria in order to contain the ravaging COVID-19 pandemic, was being distributed by the officials of government concerned. The Minister in charge of the operation was quoted as saying that records of the distribution of the palliatives were in the custody of the Accountant General of the Federation. The insinuation generated by this incident is that the inferno was master-minded by government officials to conceal the culpability of the said officials in the alleged corrupt practices perpetrated during the distribution of the palliatives.
Assuming that the controversy ends up in court and secondary evidence of record of documents in use during the distribution of the palliatives is tendered before the court, after being tampered with, all that is needed for their admissibility is to tell the court that the original copies got burnt during the inferno in the Accountant General’s office and by that piece of evidence, the tampered documents are admitted in evidence and relied upon to determine the case.’
Finally, therefore, in my humble submission, the law under the EA has indeed taken cognizance of certain circumstances and or situations of humans and human life as well as the development in events, hence, requires ‘secondary evidence’ in place of the original evidence in certain situations under the Act. However, so far ‘proper foundation’ is laid where the original is not available. It is therefore my humble believe that at least a piece of knowledge would have been derived by the reader of this article from the content of this paper and that is my joy! I wish the reader a congratulatory remark!
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