- Objection 1: Was the document frontloaded? (The Document was not frontloaded)
- What is the effect of failing to frontload a document on the admissibility of the document?
- Does a party's failure to indicate at Pre-trial Conference (PTC) that he would object to a document prevent him from doing so subsequently in the proceedings?
- Objection 2: Is the Document Relevant to the Proceedings?
- Is it Admissible in Law?
The objections to be addressed hereunder would be framed or couched as questions and briefly expounded upon. Links to further readings (available both on our site and on other sites) are also included. Reading materials are also mentioned.
We begin our discuss in this part by an extenso reproduction of an online publication relevant to the discuss. We do not take credit for the publication as it was published by Barrister Awojobi Adetoro. Do however note that after the quoted section, we have carried out our own analysis of the central issue under discuss in this section.
It is important to note that where a counsel fails to object to admissibility of a document where it matters can be fatal to a case. It’s 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 cited 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) –
GROUNDS FOR OBJECTION OF ADMISSIBILITY OF A DOCUMENT.
As a lawyer, before you let that document be admitted in evidence which could be detrimental to your case, you might have to consider raising an objection based on any of the following grounds.
1. That the document sought to be tendered being secondary evidence, no foundation has been laid as to the whereabouts of the original. S. 83, S. 88 and 89. EA.
The general rule is that documents must be proved by primary evidence . S 88 EA.
When Secondary evidence is sought to be tendered, a foundation must be laid in accordance with s. 89 either in the witnesses deposition or orally in court. See EZENWA ONWUZURUIKE v. DAMIAN EDOZIEM & ORS (2016) LPELR-26056(SC)
2. That the document sought to be tendered was not pleaded nor frontloaded. 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”
3. That the document sought to be tendered falls within the purview of a public document enshrined in S. 102 of the Evidence Act was not certified(S.104 EA) see the cases of MANNIR ABDULLAHI V. FEDERAL REPUBLIC OF NIGERIA SC.288/2012, TABIK INVESTMENT LTD. & ANOR v. GUARANTY TRUST BANK PLC (2011) LPELR-SC.101/2005
4. That the public document having been certified was not certified properly in accordance with S. 104 of the Evidence Act. A proper certification would include ;”Such certificate as is mentioned in subsection (1) of this section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.(104(2) EA.
5. That the document sought to be tendered is an unsigned document. Whether public or private; s. 94 (1) EA.
The law is that an unsigned document is void and worthless. BREWTECH NIGERIA LIMITED v.FOLAGESHIN AKINNAWO (2016) LPELR-40094(CA), GARUBA V. KWARA INVESTMENT CO. LTD (2005) 5 NWLR (PT 917) 160, GBADAMOSI & ANOR V. BIALA & (2014) LPELR 24389(CA)
The position of the law is an unsigned document cannot generate or initiate an action. An unsigned document is entitled, to no weight. It is incapable of being used by a court to resolve facts that are disputed in an action between the parties. See Tsalisawa v. Habiba (1991) 2 NWLR (Pt. 174) 463.” Per OREDOLA, J.C.A.(P. 22, paras. A-B)
Since an unsigned document cannot be used to resolve facts that are disputed then it makes no sense for the court to admit it since it cannot be used to resolve any issue. It therefore becomes inadmissible in a court of law. Such unsigned documents can probably be admitted in customary courts and or magistrate court that is a court of summary trial. Then the question would be on the weight that would be attached to it. In the high court and other superior courts an unsigned document actually has no weight and is of no effect.
6. That the document is a computer generated evidence and the foundation in Section 84 EA has not been complied with nor was a certificate issued.
S.84 (4)(c) provides”dealing with any of the matters to which the conditions mentioned in subsection (2) above relate, and purporting to be signed by a person occupying a responsible position in relation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for the purpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”
The case of DICKSON V. SYLVIA & ORS (2016) LPELR-41257(SC) is a recent authority on computed generated evidence. Another case which is also a strong authority in admissibility of computer generated evidence is the case of
KUBOR v. DICKSON (2013) All FWLR (Pt. 676) 392 at 429.”
7. That the document sought to be tendered being a private document has transmogrified into a public document pursuant to S 102 (b)Public records kept in Nigeria of private documents.
EZENWA ONWUZURUIKE v. DAMIAN EDOZIEM & ORS (2016) LPELR-26056(SC) Supreme Court stated that “The document need not be the product of the authority as long as it forms part of its records. In my humble view, the origin or authorship of a document is not determinative of its status as a public document; and this is where the trial Court erred for failure to distinguish the source or authorship of a document from what it eventually becomes.The Police, to whom the petition was addressed and who held same as part of their records are public officers within the meaning and intendment of s.109 of the Evidence Act. In the hands of the appellant who wrote it, the document was a private document, but the moment it was received by the Police to whom it was addressed it became part of the record of public officers and thus a public document. It is then a primary evidence in terms of s.94 (1) of the Act and a copy made of it as Exhibit C is secondary evidence which must be certified before it can be received in evidence.”Per NGWUTA, J.S.C. (P. 16, Paras. A-E)”
In the case of TABIK INVESTMENT LTD v. G.T.B (2011) All FWLR (pt 602) 1592 at 1607 this Court held that a private petition sent to the police, as in the instant case, formed part of the record of the police and consequently a public document within the provisions of Section 109 of the Evidence Act. The Court held as fallows:-“By the provision of Section 318(b) of the Constitution of the Federal Republic of Nigeria 1999 and Section 18(1) of the interpretation Act, a police officer is a public officer and so all documents from the custody of the police, especially documents to be used in Court are public documents.” Per ONNOGHEN, J.S.C. (Pp. 10-11, Paras. F-B)
8. That the certified true copy of the public document is a photocopy .The law is trite that a photocopy of a certified true copy is not admissible. This position was made clear when the supreme Court stated in MANNIR ABDULLAHI V. FEDERAL REPUBLIC OF NIGERIA SC.288/2012 …”put differently, in the absence of the original documents themselves only such, properly, certified copies are admissible as secondary copies of public documents “but no other kind of secondary evidence,” G and T. I. Ltd and Anor v. Witt and Bush Ltd (2011) LPELR -1333 (SC)
RULES AS TO NOTICE TO PRODUCE
S. 91 Evidence Act 2011
“Secondary evidence of the contents of the documents referred to in paragraph (a) of section 89 shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law, and if no notice to produce is prescribed by law, then such notice as the court considers reasonable in the circumstances of the case: Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the court thinks fit to dispense with it – (a) when the document to be proved is itself a notice; (b) when, from the nature of the case, the adverse party must know that he will be required to produce it; (c) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force; (d) when the adverse party or his agent has the original in court; e) when the adverse party or his agent has admitted the loss of the document”
There is a lot of misconception in the application of this section.
Fortunately this misconception has been laid to rest in the recent supreme Court case of NWEKE V. STATE(2017)LPELR-42103(SC)notice to produce a document in accordance with s.91 does not enable a party to fish for a document , nor does it compel the party whom the document is in possession to produce it. It simply enables the party who gives the notice the avenue to tender the document in his own possession which is the secondary document or private document.
The court held in NWEKE V STATE SUPRA
“A party on whom notice to produce is served is not under any obligation to produce the document. The service of the notice to produce only entitles the party serving the notice to adduce secondary evidence of the document in question by virtue of Section 91 of the Evidence Act 2011. It is unnecessary to serve a notice to produce, when the secondary copies of those documents are not in the possession of the party serving the notice.”Per GALINJE, J.S.C. (P. 8, Paras. B-E).”
From this decision it is apparent that it is a waste of time to serve a notice to produce when you do not have the secondary document because the party served to produce is not under obligations to produce such document. Finally before you allow a document to be admitted due to lack of a solid ground for objection, you might have to reconsider by using the grounds above.
Barr Awojobi Adetoro’s facebook page
Objection 1: Was the document frontloaded? (The Document was not frontloaded) #
This objection is included in this list only because it is still commonly raised in the course of proceedings. The pertinent question that however arises is; does this objection hold sway?
What is the effect of failing to frontload a document on the admissibility of the document? #
In Ribadu v Doma (2020) LPELR 51378 CA the argument was put forward that the failure to frontload documents to be relied upon made the writ of summons (and by necessary implication, the suit) incompetent. The Court of Appeal refused this submission (Per Uzo Ifeyinwa Ndukwe-Anyanwu, JCA Pp 7 – 8 Paras C – A) and held inter alia that where a party lists his documents and does not file (or frontload) them together with his writ, it does not make the writ incompetent. And if for any reason the listed documents are not frontloaded, they may still be tendered in Court with or without objection. But this, does not make the writ or originating process incompetent.
In the earlier case of Offiong v Ekpo (2017) LPELR-43651(CA) where the Court of Appeal interpreted the provision of Order 31 Rule 4 of the Cross River State High Court Civil Procedure Rules 2009, the Court held the failure to frontload the document as fatal to its admissibility.
Though the requirement of frontloading was strictly interpreted in the cases of Offiong v Ekpo, in some other (especially later) cases such as Ribadu v Doma, the opposite course has been taken by the Court. Thus, in these other cases, the Court has refused rejecting a document in evidence on the basis that it was not frontloaded.
In ONUOHA v. ONUOHA(2019) LPELR-48993(CA) Per THERESA NGOLIKA ORJI-ABADUA, JCA (Pp 46 – 54 Paras B – B in relying on the earlier case of Dunalin Inv. Ltd vs. BGL Plc. (2016)18 NWLR PART 1544 page 262 at 340, the Court of Appeal held inter alia that “…A rejection of a potentially vital document for failure to front-load same, as in the instant case, would no doubt occasion a miscarriage of justice…”
A prominent basis for the judicial position that documents that were not frontloaded are still admissible is that while parties are under obligation to comply and obey the Rules of Court, it is the Evidence Act and not the Rules of Court that governs admissibility of evidence. Front-loading system is basically an innovation under the various Rules of Courts; it ranks inferior to the Evidence Act which was enacted by the National Assembly.
See the later cases of – APC & ANOR v. OBASEKI & ORS (2021) LPELR-53538(CA), AKONJOM & ANOR v. EKOM & ORS (2019) LPELR-49093(CA) which support the position that failing to frontload a document does not affect the admissibility of the document.
It is also important to note that frontloaded documents that have not been tendered and admitted in evidence cannot be acted upon by the Court. A Court only acts on legally admissible evidence before it. The fact that the documents have been frontloaded does not make the documents, which were not tendered, part of the evidence before the Court – BLUENEST HOTELS LTD v. AEROBELL (NIG) LTD (2018) LPELR-43568(CA).
Does a party’s failure to indicate at Pre-trial Conference (PTC) that he would object to a document prevent him from doing so subsequently in the proceedings? #
In ASHAKA CEMENT PLC v. ASHARATUL MUBASHSHURUN INVESTMENT LTD (2016) LPELR-40196(CA) Per HABEEB ADEWALE OLUMUYIWA ABIRU, JCA (Pp 24 – 24 Paras A – E) the Court of Appeal held inter- alia that the failure of a party to indicate at PTC that he will be objecting to a document cannot and should not, prevent the party from raising an objection to admissibility at trial. This is because that proper time for a party to object to the admissibility of a document is at the time it is tendered in evidence. In the Court’s view, the party who was misled by the failure of the other party to indicate its objection at pretrial conference can be compensated in costs, but such failure to indicate should not be a ground for admitting a document that the Evidence Act states is inadmissible in law. The Rules of Court cannot override a substantive legislation.
Objection 2: Is the Document Relevant to the Proceedings? #
It is a common saying at the bar that “the basis of admissibility is relevance”. This almost cliché response is often used when an objection has been raised to the admission of a document. Indeed, relevancy is the basis of admissibility of evidence (and even documents)– Sections 4, 5 and 6 of the Evidence Act. In fact, the relevancy of a document could in deserving cases trump the improper acquisition of the document – see Sections 14 and 15 of the Evidence Act.
However, it is necessary to inquire – is relevancy the only basis or consideration that determines the admissibility or inadmissibility of documents (and even evidence) in Court?
Admissibility of evidence (especially documentary evidence) is not governed by relevancy ALONE. The Supreme Court has made this clear in a number of its decisions one of which is Musa v Chuks (Supra).
“It is settled law that the issue of admissibility of any documentary evidence is governed by the principle as to whether or not the document is pleaded by the party(ies) to the proceedings[1]; whether it is relevant to the subject matter of inquiry by the Court or tribunal and whether it is admissible in law”. For any document to be admissible it must be in compliant with the three stated condition precedents – Okoye & Anor v Obiaso & Ors (2010) Vol 186 LRCN 181 at 198, Musa Abubakar v. E.I Chuks (2007) 2 SCNJ. See also – TABIK Investment Ltd & Anor v. Guarantee Trust Bank Plc. (2011)6-7 Part III P.40; FAAN V WAMAL Express Services (Nig) Ltd (2011)8 NWLR (Pt. 1249) P. 219. The case of Okonji v Njokanma (2006) Vol 12 WRN adds the requirement – if proper foundation has been laid for the admission of the document into evidence.
Alhaji Usman Sharu baban-lungu and Anor v. Alhaji Ahmed Abubakar Zarewa and ors (2013) LPELR- 20726 CA. pp.38-39 Paras F-C;
“the often cited authority for the proposition that once a document is relevant to a matter, it is admissible is Torti v Ukpabi 1984) 1 SCNLR 214 where the Supreme Court stated that the test of admissibility of a document is relevance. However, it is a misunderstanding of the law of evidence to assert the application of this statement of the Supreme Court in all situations. It is elementary that a document sought to be tendered in evidence by a party in the course of trial in the high court must satisfy two requirements; (i) the rules of pleadings i.e. that it must be pleaded; and (ii) the rules of evidence i.e. that it must possess the quality required by the Evidence Act to make it admissible in law”… “… the fact that a document is relevant is not always enough ground for its admissibility; there are other criteria to be considered. The point was ably captured by Oguntade JCA (as he then was) in the case of Fawehinmi v Inspector General (2000) 7 NWLR (Pt 655) 481 at 524 to 525 G-B.”
From what has been espoused above, that a document or piece of evidence is relevant does not mean it must be or will be admitted in evidence. Not all relevant documents are admissible.
Similarly, relevant facts in most cases may not be admitted based on some grounds (Suberu v Sumonu) namely;
- – by Section 1(a) of the evidence Act relevant facts may be excluded (or ruled as inadmissible) if they are considered by the judge to be too remote to be material in all circumstances of the case
- – Relevant facts may also be excluded where a provision of the law disentitles a person from giving evidence of such relevant facts -Section 1(b) of the EA Examples of such persons would be persons covered by Section 308 of the 1999 Constitution.
- – If the Evidence Act or another Act excludes such otherwise relevant fact or declares it to be inadmissible, it so shall be or it so it is. (E.g Documents required to be stamped by the Stamp Duties Act ).
- – Where the document or evidence is improperly or illegally obtained and the Judge has exercised his discretion not to admit the evidence even though it is indeed relevant – Section 14 and 15 of the Evidence Act.
- – Where the interest of justice demands
- – Where it would be contrary to public policy to admit such evidence
- – Where it is hearsay evidence. If a fact that is ordinarily relevant amounts to hearsay, the Court will rule same as being inadmissible due to the relevant provisions of the Evidence Act
- – Under section 243 of the Evidence Act the production of a document or giving of oral evidence may be excluded in evidence where it is satisfied that the production of such document or the giving of such oral evidence is against public interest. There is no reason to believe that this provision does not apply even where the document or evidence is relevant to the proceedings.
Isheno v. Julius Berger (Nig) Ltd [2008] 6 NWLR (Pt. 1084) 582 at 603, puts it this way: “Relevancy is the cynosure or heartbeat of the law of evidence and all admissible documents must be relevant; but the converse is by no means true, as not all relevant documents are admissible”
Relevancy is a matter of logic. Admissibility is a matter of law.
Furthermore, the relevancy of a document is even to be considered before its admissibility in law is then determined.
Relevancy is the precursor to admissibility. So, after the hurdle of relevancy is scaled [ i.e. the Court would have asked – is this evidence relevant?], the hurdle of its admissibility in law arises. Relevancy is therefore not the only determinant of the admissibility of a document or piece of evidence. So, after the relevancy of the document is positively laid to rest, the next question or hurdle arises;
Is it Admissible in Law? #
However, Section 2 of the Evidence Act seems to extend the scope of what amounts to admissible evidence beyond the written walls of the Act (that is the Evidence Act). It may be admissible under the EA but inadmissible by the provisions of another Act [Put differently, another act apart from the Evidence can exclude a piece of evidence – note the proviso]. According to Justice Kanyip; section 2 acknowledges that there are existing laws that exclude the application of even the Evidence Act 2011 (https://nji.gov.ng/images/Workshop_Papers/2017/Refresher_Magistrates/s1.pdf)
Note that by Section 3 of the Evidence Act, the Act does not bar the admission of evidence that is rendered admissible by other legislation in Nigeria. Section 3 seems to give further teeth though with a different edge to Section 2. Thus, by Section 3, despite of the provisions of the EA, if another act makes a piece of evidence admissible, it is so – notwithstanding the provision of the Evidence Act. [Put differently again, another Act part from the Evidence Act can render a piece of evidence admissible].
By Section 88 of the Evidence Act 2011, the general rule is that documents are to be proved by primary evidence
Primary Evidence is defined/described by Section 86 of the Evidence Act to include;
- The document itself produced for the Court’s inspection. This is simply the document live.
- Where the document was executed in several parts, each part is primary evidence of the document
| PROPER FOUNDATION TO BE LAID IN ABSENCE OF THE ORIGINAL DOCUMENT- S.89, EVIDENCE ACT | TYPE OF SECONDARY EVIDENCE ADMISSIBLE- S.90 EVIDENCE ACT |
| a) When the original is shown to be in possession of the person against whom the document is sought to be proved or the person legally bound to produce it *Notice to produce is to be issued | Any secondary evidence of the contents of the document is admissible. |
| b) When the existence 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 | The written admission is admissible. |
| c) Where the original is destroyed or lost and all possible search has been made for it | Any secondary evidence of the contents of the document is admissible. |
| d) When the original is of such a nature as not to be easily movable. | Any secondary evidence of the contents of the document is admissible. |
| e) When the original is a public document within the meaning of section 102 | A certified of the document, but no other secondary evidence is admissible. |
| f) When the original is a document of which a certified copy is permitted by the act or by any other law in force to be given evidence. | A certified copy of the document but no other secondary evidence is admissible |
| g) Where the originals consist 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. | Evidence may be given as to the general result of the documents by any person who has examined them and who is skilled in examination of such documents. |
| h) Where the document is an entry in a banker’s book | The copies cannot be received as evidence unless; • The book in which the entries copied were made was at the time of making one of the ordinary books of the bank. • The entry was made in the usual and ordinary course of business. • The book is in the control and 10 custody of the bank, which proof may be given orally or by affidavit by an officer of the bank, and • 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 in S.90(I)(e)(I-IV). • Note whether this conditions are still applicable in the light of the provisions of section 84, Evidence Act. |
[1] The authority of Ogu v M.T. & M.C.S LTD (2011) 8 NWLR (Pt 1249) P 345 presents an exception to the requirement of pleading the document when it is one covered by Section 209 of the Evidence Act. In other words, a document used in contradicting a witness pursuant to Section 209 of the Evidence Act is admissible even if it was not pleaded by any of the parties. There is need to juxtapose this position with more recent authorities.
